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United States ex rel Repko v. Guthrie Clinic

June 23, 2009

UNITED STATES OF AMERICA EX REL RODNEY REPKO, PLAINTIFF,
v.
GUTHRIE CLINIC, P.C., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge McClure

ORDER

BACKGROUND

On July 19, 2004, plaintiff-relator Rodney Repko commenced this civil action with the filing of a complaint against defendants Guthrie Clinic, P.C., Guthrie Healthcare System, Inc., Robert Packer Hospital, Kevin Carey, and Terence Devine. Plaintiff-relator's Third*fn1 Amended Complaint (Rec. Doc. No. 64) sets forth a cause of action based on the False Claims Act, and was filed under the qui tam provisions of the act which authorize private individuals to bring a civil action in the name of the United States. 31 U.S.C. § 3730(b).

On June 6, 2006, the United States filed a notice of election declining to intervene in the action. (Rec. Doc. No. 27.) On June 8, 2006, we ordered that the complaint be unsealed and served upon the defendant. (Rec. Doc. No. 28.) On October 6, 2006, plaintiff-relator filed an amended complaint. (Rec. Doc. No. 29.) On October 12, 2007, with defendants' permission, plaintiff-relator filed a second amended complaint, titled Third Amended Complaint, which removed Kevin Carey as a defendant. (Rec. Doc. No. 64.)

The parties are now conducting discovery. On March 9, 2009, defendants filed a motion to compel discovery responses. (Rec. Doc. No. 154). Defendants filed the supporting brief March 18, 2009. (Rec. Doc. No. 156). Plaintiff-relator filed his opposing brief April 8, 2009. (Rec. Doc. No. 161). Defendants filed the reply brief April 22, 2009, thus the matter is ripe for disposition. (Rec. Doc. No. 164).

Now, for the following reasons we will grant the motion in part and deny it in part.

DISCUSSION

Defendants' motion to compel discovery is seeking full and complete answers to Defendants' First Set of Interrogatories, Defendants' Second Set of Interrogatories, and Defendants' First Request to Produce; compliance with the court's June 18, 2008 Order for plaintiff-relator to supplement his initial disclosures with damage calculations and documentary support; expenses incurred in filing the instant motion; and sanctions for failure to comply with the court's June 18, 2008 Order. 1. Motion to compel compliance with the court's June 18, 2008 Order

The instant motion is the second motion by defendants to compel plaintiff-relator to supplement his initial disclosures with damage calculations and evidentiary support for such. (See Rec. Doc. No. 91). On June 18, 2008, this court found that plaintiff-relator is not exempt from the initial disclosure requirement. (Rec. Doc. No. 125). We found plaintiff-relator's initial disclosures were inadequate for various reasons, and ordered him to more fully comply with Rule 26(a) and disclose a calculation of alleged damages with documentary support. We declined to impose sanctions at that time, but warned plaintiff-relator that "we will not hesitate to impose sanctions in the event that he fails to more fully comply with the initial disclosure requirement as we have ordered him to do." Of particular issue in the instant motion is the alleged lack of documentary support provided for the damage calculations provided.

"Plaintiff [-relator's] Amend[ed] Rule 26(A) Disclosure Re: Damages" is attached to defendant's motion as Exhibit L. (Rec. Doc. No. 154-2 at 64-69). Plaintiff-relator has provided a convoluted calculation of damages, while referring to [Third Amended] Complaint Exhibit 10. Third Amended Complaint Exhibit 10 is a chart of Robert Packer Hospital and Guthrie Clinic's "Net Revenue and Payor Mix" for the years 1995 through September 2007. (Rec. Doc. No. 64-11).

In his "Amend[ed] Rule 26(A) Disclosure Re: Damages" plaintiff-relator also refers to "the [d]efendant's internal documents, including the June 2001 documents appended to the March 2003 Jennings Ryan & Kolb report." By way of these documents, which plaintiff-relator has not produced, but asserts are in the possession of defendants, plaintiff-relator calculates damages for Troy Community Hospital, an entity alleged to be a subsidiary of Guthrie Healthcare system, but is not a party to the instant litigation. In addition to Troy Community Hospital, plaintiff-relator provides a damage calculation for Corning Hospital, also not a party to this action. Plaintiff-relator also calculates a 2007 and 2008 damage figure as "adjustments to those figures for 2006, 2007, and 2008, presumably an extrapolation of the figures from Third Amended Complaint Exhibit 10.

Plaintiff-relator also refers to Third Amended Complaint Exhibit 27. (Rec. Doc. No. 64-28). This exhibit lists the damages for GI encounters from 1995-2006 and Ophthalmology encounters from 1995-2005, while noting that these are preliminary damage calculations subject to increase.

Finally, plaintiff-relator notes that the long-term care and "other" damages need further discovery before calculation can be made.

In his opposition, plaintiff-relator argues he has made every effort to comply with disclosure requirements.

Federal Rule of Civil Procedure 26(a)(1)(A)(iii) requires: a computation of each category of damages claimed by the disclosing party - who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered...

Although plaintiff-relator's calculations could have been explained more clearly, he seems to have complied with the requirements of Fed. R. Civ. P. 26(a)(1)(A)(iii) and the calculations have been derived from the formula set ...


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