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U.S v. LEWIS

United States District Court, Northern District of Illinois, Eastern Division


May 16, 2003

THE UNITED STATES OF AMERICA, EX REL. ANIL K. BIDANI, M.D., PLAINTIFF, VS. EDMUND J. LEWIS AND AMERICAN MEDICAL SUPPLY CORPORATION, DEFENDANTS.

The opinion of the court was delivered by: James B. Moran, Senior Judge, United States District Court

MEMORANDUM OPINION AND ORDER

Anil K. Bidani M.D. (Bidani) brought this qui tam action pursuant to the False Claims Act, 31 U.S.C. § 3729, alleging that dialysis supply discounts received by defendants were illegal kickbacks under the Social Security Act, 42 U.S.C. § 1320a-7b. Defendants now bring a pretrial motion to bar the testimony of Larry Day. For the following reasons, their motion is denied.

In September 1999, defendants sought to quash a subpoena seeking the deposition of Larry Day, a consultant in the dialysis field. They argued at that time that Day's testimony was irrelevant since the claim against defendants concerns conduct that took place between 1991 and 1994, and Day had no knowledge of any events after 1989. Bidani's counsel represented at that time that Day did have relevant knowledge subsequent to 1989. Judge Hart denied the motion to quash and, on November 19, 1999, Bidani took a videotaped deposition of Day. Day testified that his knowledge regarding dialysis supply practices was limited to the time period prior to 1990, and that he had no personal knowledge of the defendants' activities (Day dep. at 22-23, 52-54).

Defendants assert that the deposition went forward only to determine whether Day had knowledge concerning the 1991-1994 time period, and argue that since no information in that time period was found the remaining testimony must be irrelevant. But the issue currently before us is broader than defendants' argument. In considering this motion in limine, we ask whether the deposition testimony sought to be barred is clearly inadmissable for any purpose. Aguino v. Automotive Service Industry Association, 93 F. Supp.2d 922.923 (N.D Ill. 2000). We answered that question in the negative in our opinion of September 19, 2002, Bidani 2002 WL 31103459, *2, finding that Bidani had offered sufficient reasons for admitting the testimony. Defendants have now had a chance to respond to those arguments, and we examine the proposed testimony again.

To succeed on his claim, Bidani will have to show that defendants' receipt of discounts on its acquisition of supplies were remuneration in violation of Medicare's anti-kickback statute (AKS), 42 U.S.C § 1320a-7b(b)(1). He will also have to show that defendants presented their claims to Medicare seeking reimbursement for those supplies, knowing that they received the discounts as wrongful remuneration. 31 U.S.C. § 3729 (a)(1). We recognize that Day's testimony does not concern specific conduct attributable to defendants. It does offer some view, however, into what was known in the dialysis industry regarding charges for supplies and how these charges were reported in the years leading up to the allegations. These general practices are potentially relevant to show defendants' knowledge of whether charges for supplies were reasonable or financially risky in light of the amount that would be recouped from Medicare, and could possibly shed light on whether defendants knew of the alleged implications of the discounts they were receiving. This is enough to survive under the minimal motion in limine standard.

For the above reasons, defendants' motion in limine is denied.

20030516

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