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United States v. SuperValu, Inc.
United States District Court, C.D. Illinois, Springfield Division
December 31, 2019
UNITED STATES OF AMERICA, and THE STATES OF CALIFORNIA, DELAWARE, ILLINOIS, INDIANA, MASSACHUSETTS, MINNESOTA, MONTANA, NEVADA, NEW JERSEY, NORTH CAROLINA, RHODE ISLAND, VIRGINIA, ex rel. TRACY SCHUTTE and MICHAEL YARBERRY, Plaintiffs and Relators,
SUPERVALU, INC., SUPERVALU HOLDINGS, INC., FF ACQUISITIONS, LLC, FOODARAMA, LLC, SHOPPERS FOOD WAREHOUSE CORP., SUPERVALU PHARMACIES, INC., ALBERTSON'S LLC, JEWEL OSCO SOUTHWEST LLC, NEW ALBERTSON'S INC., AMERICAN DRUG STORES, LLC, ACME MARKETS, INC., SHAW'S SUPERMARKET, INC., STAR MARKET COMPANY. INC., JEWEL FOOD STORES, INC., and AB ACQUISITION LLC, Defendants.
RICHARD MILLS, U.S. District Judge:
is the Defendants' Motion to Compel Government Agency to
Allow Former Government Employee to Testify in accordance
with Trial Subpoena or, in the alternative, Defendants'
Motion for Adverse-Inference Instruction.
also is Non-Party Witness Dr. Cynthia Tudor's Motion to
Quash Trial Subpoena.
Defendants seek review of what they claim was an arbitrary
and capricious decision by a Government agency that refused
to permit trial testimony from a former government employee
who they allege wrote and issued an official, nationwide
memorandum relied upon by the Relators.
thorough and well-reasoned Opinion and Order in the related
case of United States ex rel. Proctor v. Safeway,
Inc., No. 3:11-cv-3406, United States Magistrate Judge
Tom Schanzle-Haskins denied Defendant Safeway's motion to
compel the Government Agency to allow former Government
employee to testify in accordance with the subpoena. Safeway
appealed the magistrate judge's decision. This Court
denied the appeal, affirming and adopting the magistrate
Defendants here ask the Court to grant their motion to compel
the Centers for Medicare and Medicaid Services (CMS) to
permit the testimony of a former employee, Cynthia Tudor,
Ph.D, on certain narrow topics relevant to this litigation.
Dr. Tudor is a former Director of CMS and former Director of
the Medicare Drug Benefit and C&D Data Group. Federal
regulations require agency authorization before an employee
or former employee of CMS may testify concerning information
acquired in the course of performing official duties.
See 45 C.F.R. §§ 2.1-2.6
(“Touhy regulations”). No. former
employee may provide testimony “unless authorized by
the Agency head pursuant to this part based on a
determination by the Agency head, after consultation with the
Office of the General Counsel, that compliance with the
request would promote the objectives of the
Department.” Id. § 2.3.
Defendants' Touhy request provided that Dr.
Tudor was expected to testify on the following topics:
1. Memorandum, dated October 11, 2006, from Cynthia Tudor to
All Part D Sponsors, regarding the HPMS Q & A- Lower Cash
Price Policy (See Attachment A); and
2. Medicare Part D's “Lower Cash Price Policy,
” including but not limited to CMS's objectives for
the Policy (see Attachment A; see also
Medicare Prescription Drug Benefit Manual, Ch. 14, 50.4.2 -
Beneficiary Cash Purchases (Rev. 12, 03/19/2010) and (Rev.
See Doc. No. 279-4.
March 27, 2019, CMS denied the Defendants' request to
obtain trial testimony from Dr. Tudor. CMS stated that
authorizing Dr. Tudor to testify would not promote the
objectives of the Department of Health and Human Services
(“the Department”) for three reasons: (1) CMS
representatives talked to employees who worked most closely
with Dr. Tudor and determined that she may lack personal
knowledge about the topics on which Safeway wanted her to
testify; (2) the specific topics seemed calculated to elicit
Dr. Tudor's opinions rather than facts based on personal
knowledge; and (3) testimony on the proposed topics posed a
risk of disclosure of information protected by the
deliberative process privilege or the attorney-client
Defendants claim that Dr. Tudor has personal knowledge of the
Memo she wrote and for which CMS continues to hold her out as
the author on its website. Moreover, Dr. Tudor would be
testifying as a fact witness based on her personal knowledge,
not as an expert witness. The Defendants further contend that
CMS has not provided any reason why the narrow topics in
Defendants' Tou ...