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Graves v. Plaza Medical Centers, Corp.

United States District Court, S.D. Florida

September 6, 2017

OLIVIA GRAVES, on behalf of herself and the UNITED STATES OF AMERICA, Plaintiff/Relator,
v.
PLAZA MEDICAL CENTERS, CORP., HUMANA, INC., and MICHAEL CAVANAUGH, Defendants.

          OMNIBUS ORDER

          JOHN J O'SULLIVAN UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on all pending motions in limine and motions to strike expert witnesses which were considered during a hearing on August 25, 2017. Before addressing the individual motions to strike expert witnesses, the undersigned will address the applicable standard of review.

         Under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993), and Rule 702 of the Federal Rules of Evidence, the Court “serve[s] as a gatekeeper to the admission of scientific evidence.” Quiet Technology DC-8 v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1340 (11th Cir. 2003) (citing Daubert, 509 U.S. 579, 589 (1993)); McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002)); Rink v. Cheminova, 400 F.3d 1286, 1291 (11th Cir. 2005). To determine the admissibility of expert testimony under Rule 702, the Court must undertake the following three-part inquiry:

(1) [T]he expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated by Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand evidence or to determine a fact in issue.

Quiet Technology, 326 F.3d at 1340-41 (citing City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998) (citing Daubert, 509 U.S. at 589) (other citation omitted)). The Eleventh Circuit cautioned that although some overlap among the inquiries regarding expert qualifications, reliability and helpfulness exist, “these are distinct concepts that courts and litigants must take care not to conflate.” Id. at 1341.

         To determine reliability, the court considers:

(1) whether the expert's theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known and potential rate of error of the particular scientific technique; and (4) whether the technique is generally accepted in the scientific community.

Id. (citing McCorvey, 298 F.3d at 1256 (citing Daubert, 509 U.S. at 593-94)). “‘A district court's gatekeeper role ‘is not intended to supplant the adversary system or the role of the jury.'” Id. (citing Maiz v. Virani, 253 F.3d 641, 666 (11th Cir. 2001) (quoting Allison v. McGhan, 184 F.3d 1300, 1311 (11th Cir. 1999)). “Quite the contrary, ‘[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.'” Id. (quoting Daubert, 509 U.S. at 596). The Eleventh Circuit and this Court have excluded expert testimony on subjects outside the expert's qualifications, while allowing testimony on subjects about which the expert is qualified. Lebron v. Sec'y of the Fla. Dep't of Children and Families, 772 F.3d 1352, 1368-69 (11th Cir. 2014) (“Expertise in one filed does not qualify a witness to testify about others.”); Sanchez-Knutson v. Ford Motor Co., 181 F.Supp.3d 988, 994 (S.D. Fla. 2016) (allowing a mechanical engineer with experience in the area of vehicle design and manufacturing to testify regarding air/gas leakage as well as carbon monoxide accumulation in the vehicle in a products liability action but excluding his testimony as to the issues of diminution in value, toxicology, and the costs of replacing an HVAC system).

         Having reviewed the parties' respective motions, responses, replies, and supplemental filings as well as having heard arguments from the parties and having applied Daubert and other applicable law, and for the reasons stated on the record during the August 25, 2017 hearing, it is

         ORDERED AND ADJUDGED that

         1. Relator's Omnibus Motion in Limine (DE# 711, 12/28/16) is GRANTED IN PART AND DENIED IN PART. Motion in Limine No. 1 is GRANTED; the defendants shall not make any reference to, or proffer evidence of, the United States Department of Justice's (“DOJ”) decision to not intervene in this action or its absence from the trial. Motion in Limine No. 2 is DENIED; the defendant may reference Humana's cooperation with the Department of Justice because it is relevant to the issue of Humana's scienter. Motion in Limine No. 3 is GRANTED IN PART and DENIED IN PART; the defendants shall not question the Relator on the issue of attorneys' fees because her attorneys represented that the relator is not recovering any share of the attorneys' fees. The defendants may offer evidence of the trebling of damages and penalties under the False Claims Act as well as the relator's entitlement to a percentage share of any damages recovery. Motion in Limine No. 4 is GRANTED because the probative value is outweighed by the undue prejudice and plenty of opportunities to show the relator's bias exist without referencing prior court rulings; the defendants shall not reference or offer evidence of prior court rulings dismissing claims or striking allegations at trial. Motion in Limine No. 5 is GRANTED because the probative value is outweighed by the undue prejudice under Rule 403(b) of the Federal Rules of Evidence and may inflame the jury; the defendants shall not reference or offer evidence of the six (6) instances in the motion in limine that attack the relator's character. Motion in Limine No. 6 is GRANTED IN PART and DENIED IN PART; the defendants shall not reference or offer evidence of the defamation lawsuit, but the defendants may reference and offer evidence of the unproven, alleged defamation. Motion in Limine No. 7 is GRANTED IN PART; the defendants shall not reference or offer evidence of attacks on the relator's abilities as a medical doctor or whether the relator's patient's complained about her abilities. The defendants may reference or offer evidence of the mistakes that the relator made in her diagnoses of patients as well as her review of the patients' medical records. Motion in Limine No. 8 is DENIED IN PART; pursuant to Rule 608(b) of the Federal Rules of Evidence, the defendants may cross-examine the relator on the unrelated alleged fraud issues (e.g. forgery of the relator's signature regarding home health care fraud; falsifying lab scores; falsifying records before audits), but the defendants may not introduce extrinsic evidence. Motion in Limine No. 9 is GRANTED; the defendants shall not reference or offer evidence to establish that the claims were not false because Medicare did not deny them or seek refunds. Motion in Limine No. 10 is DENIED; the defendants may reference or offer evidence regarding the provision in Humana's contract that required the relator to give Humana notice of fraud as well as the relator's attempt to obtain another Humana contract after the relator said she would not do business with Humana because of the alleged fraud at issue in the present case. Both issues are relevant to the issue of the relator's credibility. Motion in Limine No. 11 is GRANTED as long as the relator does not introduce or argue patient harm caused by Dr. Cavanaugh's decisions not to refer patients to specialists; the defendants may not reference or offer evidence to imply that because the fraud caused no patient harm, there is no fraud. Motion in Limine No. 12 is GRANTED; the defendants shall not reference or offer evidence of prior inconsistent statements of the relator during settlement negotiations between the parties to impeach the relator. Motion in Limine No. 13 is GRANTED in part; the defendants shall not reference or offer evidence of the relator's fancy house or the value of her house, but are permitted to reference or offer evidence to show that the relator reviewed the medical records at issue at her leisure and without interruptions (i.e. not bothered).

         2. Relator's Motion to Strike, or, in the Alternative, Limit the Testimony of Leslie Norwalk (DE# 712, 12/28/16) is DENIED. The probative value of Leslie Norwalk's qualifications outweighs any undue prejudice pursuant to Rule 403 of the Federal Rules of Evidence. Ms. Norwalk is the former Acting Administrator of the Centers for Medicare and Medicaid Services (“CMS”) and is highly qualified to testify regarding Medicare Part C and whether Humana satisfied its duties under the Medicare Advantage Organization (“MAO”) regulations. Ms. Norwalk received Touey authorization from the government to testify to certain issues and the government did not object to her testimony at her deposition in this action. Because Ms. Norwalk's testimony does not violate Rule 403 of the Federal Rules of Evidence, the jury should be permitted to hear her qualifications and opinions.

         3. Defendant Humana Inc.'s Motion in Limine to Exclude Arguments and Evidence Concerning Humana Inc.'s Profitability, Wealth, Legal Representation, Financial Condition, Net Worth, and/or Other Similar Statements and Comparisons to Any Other Party (DE# 716, 12/28/16) is GRANTED IN PART. The relator shall not reference or offer evidence of Humana's gross revenues, profitability and assets; the relator may question witnesses regarding the financial importance of the Medicare Advantage Organization portion of Humana's business. The motion is DENIED WITHOUT PREJUDICE to renew at trial depending on whether Humana raises certain defenses regarding the issue of whether Humana could have done the same things with PMC as it did when Humana received notice of Dr. Thompson's alleged fraud.

         4. Defendants' Plaza Medical Centers, Corp.'s and Dr. Michael Cavanaugh's Motion in Limine to Limit Evidence of Allegedly Unsupported Diagnoses and Evidence of Damages to Those Specific Diagnosis/Code Submissions Identified by Relator in the Body of Her Complaint and Exhibit 29 and Incorporated Memorandum of Law (DE# 707, 12/28/16) will be disposed of after the ...


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