Michael Drakeford v. Tuomey , 792 F.3d 364 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2219
UNITED STATES ex rel. MICHAEL K. DRAKEFORD, M.D.,
Plaintiff – Appellee,
v.
TUOMEY, d/b/a Tuomey Healthcare System, Inc.,
Defendant – Appellant.
−−−−−−−−−−−−−−−−−−−−−−−−−−−
AMERICAN HOSPITAL ASSOCIATION; SOUTH CAROLINA HOSPITAL
ASSOCIATION,
Amici Supporting Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Matthew J. Perry, Jr., Senior
District Judge; Margaret B. Seymour, Senior District Judge.
(3:05-cv-02858-MBS)
Argued: October 31, 2014 Decided: July 2, 2015
Before DUNCAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Diaz wrote the majority
opinion, in which Judge Duncan joined. Judge Wynn wrote a
separate opinion concurring in the judgment.
ARGUED: Helgi C. Walker, GIBSON, DUNN & CRUTCHER, LLP,
Washington, D.C., for Appellant. Tracy Lyle Hilmer, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: James M. Griffin, Margaret N. Fox, A. Camden Lewis,
LEWIS, BABCOCK & GRIFFIN, LLP, Columbia, South Carolina; Daniel
M. Mulholland III, HORTY SPRINGER & MATTERN, Pittsburgh,
Pennsylvania; E. Bart Daniel, Charleston, South Carolina, for
Appellant. Stuart F. Delery, Assistant Attorney General,
Michael D. Granston, Michael S. Raab, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.; G. Norman Acker,
III, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Melinda
R. Hatton, Maureen D. Mudron, AMERICAN HOSPITAL ASSOCIATION,
Washington, D.C.; Jessica L. Ellsworth, Amanda K. Rice, HOGAN
LOVELLS US LLP, Washington, D.C., for Amici Curiae.
2
DIAZ, Circuit Judge:
In a qui tam action in which the government intervened, a
jury determined that Tuomey Healthcare System, Inc., did not
violate the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-33
(2012). 1 The district court, however, vacated the jury’s verdict
and granted the government a new trial after concluding that it
had erroneously excluded excerpts of a Tuomey executive’s
deposition testimony. The jury in the second trial found that
Tuomey knowingly submitted 21,730 false claims to Medicare for
reimbursement. The district court then entered final judgment
for the government and awarded damages and civil penalties
totaling $237,454,195.
Tuomey contends that the district court erred in granting
the government’s motion for a new trial. Tuomey also lodges
numerous other challenges to the judgment entered against it
following the second trial. It argues that it is entitled to
judgment as a matter of law (or, in the alternative, yet another
new trial) because it did not violate the FCA. In the
alternative, Tuomey asks for a new trial because the district
court failed to properly instruct the jury. Finally, Tuomey
1Under the qui tam provisions of the FCA, a whistleblower
(known as the relator) can file an action on behalf of the
federal government for alleged fraud committed against the
government. If the action is successful, the relator shares in
the recovery.
3
asks us to strike the damages and civil penalties award as
either improperly calculated or unconstitutional.
We conclude that the district court correctly granted the
government’s motion for a new trial, albeit for a reason
different than that relied upon by the district court. We also
reject Tuomey’s claims of error following the second trial.
Accordingly, we affirm the district court’s judgment.
I.
A.
Tuomey is a nonprofit hospital located in Sumter, South
Carolina, a small, largely rural community that is a federally-
designated medically underserved area. At the time of the
events leading up to this lawsuit, most of the physicians that
practiced at Tuomey were not directly employed by the hospital,
but instead were members of independent specialty practices.
Beginning around 2000, doctors who previously performed
outpatient surgery at Tuomey began doing so in their own offices
or at off-site surgery centers. The loss of this revenue stream
was a source of grave concern for Tuomey because it collected
substantial facility fees from patients who underwent surgery at
the hospital’s outpatient center. Tuomey estimated that it
stood to lose $8 to $12 million over a thirteen-year period from
the loss of fees associated with gastrointestinal procedures
4
alone. To stem this loss, Tuomey sought to negotiate part-time
employment contracts with a number of local physicians.
In drafting the contracts, Tuomey was well aware of the
constraints imposed by the Stark Law. While we discuss the
provisions of that law in greater detail below, in broad terms,
the statute, 42 U.S.C. § 1395nn, prohibits physicians from
making referrals to entities where “[t]he referring
physician . . . receives aggregate compensation . . . that
varies with, or takes into account, the volume or value of
referrals or other business generated by the referring physician
for the entity furnishing” the designated health services. 42
C.F.R. § 411.354(c)(2)(ii) (2014). Pursuant to the Stark Law,
“[a] hospital may not submit for payment a Medicare claim for
services rendered pursuant to a prohibited referral.” United
States ex rel. Drakeford v. Tuomey Healthcare Sys., Inc., 675
F.3d 394, 397–98 (4th Cir. 2012).
Beginning in 2003, Tuomey sought the advice of its longtime
counsel, Nexsen Pruet, on the Stark Law implications arising
from the proposed employment contracts. Nexsen Pruet in turn
engaged Cejka Consulting, a national consulting firm that
specialized in physician compensation, to provide an opinion
concerning the commercial reasonableness and fair market value
of the contracts. Tuomey also conferred with Richard Kusserow,
a former Inspector General for the United States Department of
5
Health and Human Services, and later, with Steve Pratt, an
attorney at Hall Render, a prominent healthcare law firm.
The part-time employment contracts had substantially
similar terms. Each physician was paid an annual guaranteed
base salary. That salary was adjusted from year to year based
on the amount the physician collected from all services rendered
the previous year. The bulk of the physicians’ compensation was
earned in the form of a productivity bonus, which paid the
physicians eighty percent of the amount of their collections for
that year. The physicians were also eligible for an incentive
bonus of up to seven percent of their earned productivity bonus.
In addition, Tuomey agreed to pay for the physicians’ medical
malpractice liability insurance as well as their practice
group’s share of employment taxes. The physicians were also
allowed to participate in Tuomey’s health insurance plan.
Finally, Tuomey agreed to absorb each practice group’s billing
and collections costs.
The contracts had ten-year terms, during which physicians
could maintain their private practices, but were required to
perform outpatient surgical procedures exclusively at the
hospital. Physicians could not own any interest in a facility
located in Sumter that provided ambulatory surgery services,
save for a less-than-two-percent interest in a publicly traded
company that provided such services. The physicians also agreed
6
not to perform outpatient surgical procedures within a thirty-
mile radius of the hospital for two years after the expiration
or termination of the contracts.
Tuomey ultimately entered into part-time employment
contracts with nineteen physicians. Tuomey, however, was unable
to reach an agreement with Dr. Michael Drakeford, an orthopedic
surgeon. Drakeford believed that the proposed contracts
violated the Stark Law because the physicians were being paid in
excess of their collections. He contended that the compensation
package did not reflect fair market value, and thus the
government would view it as an unlawful payment for the doctor’s
facility-fee-generating referrals.
To address Drakeford’s concerns, Tuomey suggested a joint
venture as an alternative business arrangement, whereby “doctors
would become investors . . . in . . . a management company that
would provide day-to-day management of the outpatient surgery
center,” J.A. 3268, and both Tuomey and its co-investors would
“receive payments based on that management [structure].” J.A.
2036. Drakeford, however, declined that option.
Unable to break the stalemate in their negotiations, in May
2005, Tuomey and Drakeford sought the advice of Kevin McAnaney,
an attorney in private practice with expertise in the Stark Law.
McAnaney had formerly served as the Chief of the Industry
Guidance Branch of the United States Department of Health and
7
Human Services Office of Counsel to the Inspector General. In
that position, McAnaney wrote a “substantial portion” of the
regulations implementing the Stark Law. J.A. 2026.
McAnaney advised the parties that the proposed employment
contracts raised significant “red flags” under the Stark Law. 2
J.A. 2054. In particular, Tuomey would have serious difficulty
persuading the government that the contracts did not compensate
the physicians in excess of fair market value. Such a
contention, said McAnaney, would not pass the “red face test.”
J.A. 2055. McAnaney also warned Tuomey that the contracts
presented “an easy case to prosecute” for the government. J.A.
2078.
Drakeford ultimately declined to enter into a contract with
Tuomey. He later sued the hospital under the qui tam provisions
of the FCA, alleging that because the part-time employment
contracts violated the Stark Law, Tuomey had knowingly submitted
false claims for payment to Medicare. As was its right, the
government intervened in the action and filed additional claims
2According to McAnaney, the joint venture alternative
raised separate concerns under the Anti-Kickback Statute, 42
U.S.C. § 1320a-7b(b), which bars “the payment of remuneration
for the purpose of inducing the purchase of health care covered
by any federal health care insurance program.” Michael K.
Loucks & Carol C. Lam, Prosecuting and Defending Health Care
Fraud Cases 233 (2d ed. 2010).
8
seeking equitable relief for payments made under mistake of fact
and unjust enrichment theories.
B.
At the first trial, Tuomey argued that McAnaney’s testimony
and related opinions regarding the contracts should be excluded
as an offer to compromise or settle under Federal Rule of
Evidence 408 because McAnaney was mediating a dispute between
Tuomey and Drakeford. Alternatively, Tuomey contended that
because McAnaney was hired jointly by Tuomey and Drakeford, he
owed a duty of loyalty to both clients that precluded him from
testifying. The district court sustained Tuomey’s objection,
although it did not articulate the ground for its ruling.
Tuomey also objected to the government’s attempt to admit
excerpts from the deposition testimony of Gregg Martin, Tuomey’s
Senior Vice President and Chief Operating Officer. Tuomey
argued that the deposition testimony should be excluded because
it contained Martin’s recollections of a discussion he had with
Tuomey’s counsel concerning McAnaney’s opinions regarding the
employment contracts. According to Tuomey, the testimony was
merely a “back doorway to get in Mr. McAnaney’s opinions.” J.A.
808. The government countered that the deposition testimony was
admissible to show Tuomey’s state of mind and intent to violate
the Stark Law. The district court again sustained Tuomey’s
objection.
9
The jury returned a verdict finding that, while Tuomey had
violated the Stark Law, it had not violated the FCA. The
government filed a post-verdict motion for judgment on its
equitable claims. It also moved for judgment as a matter of law
under Federal Rule of Civil Procedure 50 on the FCA claim, or
alternatively for a new trial under Rule 59 because of the
district court’s decision to exclude McAnaney’s testimony and
opinions, as well as the Martin deposition excerpts.
The district court denied the government’s motion for
judgment as a matter of law. But the court agreed that it had
committed “a substantial error” by excluding the Martin
deposition excerpts. J.A. 1296. It therefore granted the
government’s motion for a new trial. Notably, the district
court’s decision was based solely on its error in excluding the
Martin deposition excerpts.
While the government asked for a new trial only on the
knowledge element of the FCA claim, the district court granted a
new trial as to the entirety of the claim. Notwithstanding the
court’s decision to grant a new trial on the FCA claim, the
district court entered judgment for the government on its
equitable claims based on the jury’s finding of a Stark Law
violation, and ordered Tuomey to pay damages in the amount of
$44,888,651 plus pre- and post-judgment interest.
10
On appeal, we vacated the judgment, concluding that the
jury’s finding of a Stark Law violation was a common factual
issue necessary to the resolution of both the equitable claims
and the FCA claim. 3 Yet, because the district court rendered the
jury’s verdict finding a Stark Law violation a “legal nullity”
when it granted the government’s motion for a new trial, we held
that the court deprived Tuomey of its Seventh Amendment right to
a jury trial by entering judgment on the equitable claims.
Drakeford, 675 F.3d at 405. We remanded the case for a new
trial as to all claims.
While the case was on appeal, the presiding judge passed
away. At the second trial, the new presiding judge allowed the
government to introduce the previously excluded Martin
deposition testimony, and also allowed McAnaney to testify. The
jury found that Tuomey violated both the Stark Law and the FCA.
It further found that Tuomey had submitted 21,730 false claims
to Medicare with a total value of $39,313,065. The district
court trebled the actual damages and assessed an additional
civil penalty, both actions required by the FCA. 31 U.S.C.
§ 3729(a)(1). From the resulting judgment of $237,454,195,
Tuomey appeals.
3
Tuomey also sought leave to pursue an interlocutory appeal
of the district court’s order granting a new trial on the FCA
claim. We denied that motion.
11
II.
A.
Tuomey’s appeal presents these issues: First, did the
district court err in granting the government’s motion for a new
trial on the FCA claim? If not, did the district court err in
(1) denying Tuomey’s motion for judgment as a matter of law (or,
in the alternative, for yet another new trial) following the
second trial; and (2) awarding damages and penalties against
Tuomey based on the jury’s finding of an FCA violation? We
address each issue in turn, but first provide a general overview
of the Stark Law.
B.
The Stark Law is intended to prevent “overutilization of
services by physicians who [stand] to profit from referring
patients to facilities or entities in which they [have] a
financial interest.” Drakeford, 675 F.3d at 397. The statute
prohibits a physician from making a referral to an entity, such
as a hospital, with which he or she has a financial
relationship, for the furnishing of designated health services.
42 U.S.C. § 1395nn(a)(1). If the physician makes such a
referral, the hospital may not submit a bill for reimbursement
to Medicare. Id. § 1395nn(a)(1)(B). Similarly, the government
may not make any payment for a designated health service
provided in violation of the Stark Law. Id. § 1395nn(g)(1). If
12
a person collects any payment for a service billed in violation
of the Stark Law, “the person shall be liable to the individual
for, and shall refund on a timely basis to the individual, any
amounts so collected.” Id. § 1395nn(g)(2). 4
Inpatient and outpatient hospital services are considered
designated health services under the law. Id. § 1395nn(h)(6).
A referral includes “the request by a physician for the item or
service.” Id. § 1395nn(h)(5)(A). A referral does not include
“any designated health service personally performed or provided
by the referring physician.” 42 C.F.R. § 411.351. However,
there is a referral when the hospital bills a “facility fee”
(also known as a “facility component” or “technical component”)
“in connection with the personally performed service.” Medicare
and Medicaid Programs; Physicians’ Referrals to Health Care
Entities With Which They Have Financial Relationships, 66 Fed.
Reg. 856, 941 (Jan. 4, 2001); see also Medicare Program;
Physicians’ Referrals to Health Care Entities With Which They
Have Financial Relationships (Phase II), 69 Fed. Reg. 16054,
16063 (Mar. 26, 2004).
4
Because the Stark Law does not create its own right of
action, the government in this case sought relief under the FCA,
which provides a right of action with respect to false claims
submitted for Medicare reimbursement. See Drakeford, 675 F.3d
at 396 & n.2.
13
A financial relationship constitutes a prohibited “indirect
compensation arrangement,” if (1) “there exists an unbroken
chain of any number . . . of persons or entities that have
financial relationships . . . between them,” (2) “[t]he
referring physician . . . receives aggregate compensation . . .
that varies with, or takes into account, the volume or value of
referrals or other business generated by the referring physician
for the entity furnishing” the designated health services, and
(3) the entity has knowledge that the compensation so varies.
42 C.F.R. § 411.354(c)(2); see also Drakeford, 675 F.3d at 408
(“[C]ompensation arrangements that take into account anticipated
referrals . . . implicate the volume or value standard.”). The
statute, however, does not bar indirect compensation
arrangements where: (1) the referring physician is compensated
at fair market value for “services and items actually provided”;
(2) the compensation arrangement is “not determined in any
manner that takes into account the volume or value of
referrals”; (3) the compensation arrangement is “commercially
reasonable”; and (4) the compensation arrangement does not run
afoul of any other federal or state law. 42 C.F.R.
§ 411.357(p); Drakeford, 675 F.3d at 398.
Once a relator or the government has established the
elements of a Stark Law violation, it becomes the defendant’s
burden to show that the indirect compensation arrangement
14
exception shields it from liability. See United States ex rel.
Kosenske v. Carlisle HMA, Inc., 554 F.3d 88, 95 (3d Cir. 2009).
C.
We first address the district court’s decision to grant the
government a new trial on the FCA claim. The government pressed
two grounds in support of its motion. First, it argued that the
district court erred by excluding McAnaney’s testimony, along
with all evidence containing the views he expressed to the
parties on the potential Stark Law liability surrounding the
contracts. Second, the government argued that the district
court erroneously excluded the Martin deposition excerpts.
While the district court granted a new trial on the latter
ground, we instead affirm the district court on the basis of its
more glaring error, the exclusion of McAnaney’s testimony and
related evidence.
1.
We review a district court’s decision to grant a new trial
for abuse of discretion. Cline v. Wal-Mart Stores, Inc., 144
F.3d 294, 301 (4th Cir. 1998). We apply the same standard to
the district court’s decision to exclude evidence. Buckley v.
Mukasey, 538 F.3d 306, 317 (4th Cir. 2008). “By definition, a
district court abuses its discretion when it makes an error of
law.” RZS Holdings AVV v. PDVSA Petroleo S.A., 506 F.3d 350,
356 (4th Cir. 2007). Even so, we may reverse a district court
15
only if its evidentiary error affects a party’s substantial
rights. Buckley, 538 F.3d at 317. And, of course, we may
affirm a district court’s ruling on any ground apparent in the
record. Republican Party of N.C. v. Martin, 980 F.2d 943, 952
(4th Cir. 1992).
2.
We believe that the district court abused its discretion in
granting a new trial on the ground that it had improperly
excluded the Martin deposition excerpts. Even if the district
court should not have excluded this evidence in the first
instance, an evidentiary error is harmless when it does not
affect a party’s substantial rights--in this case, whether it
can be said with a high probability that the error did not
affect the judgment. Taylor v. Va. Union Univ., 193 F.3d 219,
235 (4th Cir. 1999) (en banc), abrogated on other grounds by
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003); Daskarolis v.
Firestone Tire & Rubber Co., 651 F.2d 937, 942 (4th Cir. 1981)
(noting that even if the district court believed that it had
excluded admissible evidence, the erroneous exclusion could not
be grounds for a new trial because it did not affect the
substantial rights of the parties). The district court made no
effort to assess the alleged error under this stringent harmless
error standard. Furthermore, because the exclusion of the
Martin deposition testimony was, in fact, a harmless error, the
16
district court abused its discretion in granting a new trial on
this ground.
In its motion for a new trial, the government argued that
Martin’s testimony was necessary evidence supporting the
scienter element of its FCA claim. Specifically, the government
contended that Martin, Tuomey’s agent, received and ignored
McAnaney’s warnings that the part-time employment contracts
raised significant Stark Law compliance issues. Thus, says the
government, the evidence would have demonstrated Tuomey’s
reckless disregard of the legal minefield that it was
traversing. We think, however, that the probative value of this
particular evidence is weak at best, and excluding it did not
negatively affect the government’s substantial rights.
The deposition excerpts predominantly focus on Martin’s
recollection of a discussion he had with Tuomey’s lawyer, Tim
Hewson. Hewson recounted to Martin the details of a conference
call between Hewson, McAnaney, and Drakeford’s lawyer, Greg
Smith. 5 Specifically, Hewson told Martin that McAnaney had Stark
Law compliance concerns with both the proposed part-time
5
Hewson was likely recounting the details of two separate
conference calls. The first call was between McAnaney, Smith,
and Hewson and covered the part-time employment contracts. The
following day, Steve Pratt joined those three for a second call
focusing on the joint venture arrangement. When asked if he was
aware that there were two separate conference calls, Martin
responded that he did not “remember for sure.” J.A. 105.
17
employment contracts as well as the joint venture arrangement
(which Martin referred to as the “under arrangement”). However,
Martin was unable to remember specifics about the conversation,
and often confused McAnaney’s concerns with issues raised by
Steve Pratt.
Martin did vaguely recall that Hewson had told him that
McAnaney said the proposed arrangements would raise “red flags”
with the government. J.A. 104-05. Yet, Martin could not
remember whether McAnaney’s warnings were particular to the
part-time employment contracts, the joint venture arrangement,
or both. Indeed, in Martin’s recollection it was hard to
“separate the two.” J.A. 107. To the extent that Martin could
distinguish the two proposed arrangements, he recalled being
warned of greater problems with the joint venture arrangement.
With respect to McAnaney’s concerns about the employment
contracts, Martin had a vague recollection of some issues
related to fair market value, but was unable to offer more
detail. Ultimately, Martin acknowledged that there was a
“difference of opinion” between McAnaney and Hewson, but decided
to trust Hewson’s opinion that the contracts posed no Stark Law
concerns. J.A. 111.
That Martin’s deposition testimony was hazy is not at all
surprising, given that he was being asked to recall--nearly four
years after the fact--the substance of a conversation with
18
Tuomey’s lawyer, who himself was recalling an earlier conference
call with McAnaney. Standing alone, we fail to see how the
government was substantially prejudiced by the district court’s
decision to exclude this evidence. Thus, we hold that the
district court abused its discretion in relying on this ground
to grant the government’s motion for a new trial.
3.
Nonetheless, we affirm the district court’s order granting
a new trial on the alternative ground urged by the government--
that it was prejudiced by the exclusion of McAnaney’s testimony
and other related evidence of his warnings to Tuomey regarding
the legal peril that the employment contracts posed. 6 To make
its case that Tuomey “knowingly” submitted false claims under
the FCA, the government needed to show that Tuomey knew that
there was a substantial risk that the contracts violated the
Stark Law, and was nonetheless deliberately ignorant of, or
recklessly disregarded that risk. In our view, McAnaney’s
6 Tuomey says that we may not affirm on this alternative
ground because the government’s brief never asked us to do so.
But this assertion splits the thinnest of hairs. While perhaps
the government could have been more direct in its brief, it
clearly alerted us (and Tuomey) that there was an alternate
ground for affirming the district court. See Appellee’s Br. at
82 (“[The] new trial ruling was correct not only because of the
exclusion of Martin’s testimony, but also because the exclusion
of McAnaney’s testimony and related evidence was clearly
erroneous and affected the substantial rights of the
government.”).
19
testimony was a relevant, and indeed essential, component of the
government’s evidence on that element, and Tuomey offered no
good reason why the jury should not hear it.
The district court has now presided over two trials in this
case, with strikingly disparate results. In the first trial,
the jury did not hear from McAnaney and found for Tuomey on the
FCA claim. When the case was retried, McAnaney was allowed to
testify and the jury found for the government. Coincidence? We
think not. Rather, we believe that these results bespeak the
importance of what the jury in the first trial was not allowed
to consider.
And this is so even while acknowledging that McAnaney was a
looming presence throughout the first trial. For example, the
jury heard audio of a Tuomey board meeting, where a board member
mentioned that McAnaney had voiced concerns with the part-time
employment contracts. Left unsaid, however, was the precise
nature of those concerns or the weight and seriousness that
McAnaney attached to them. The jury also knew that Hewson
(Tuomey’s counsel at Nexson Pruet) was generally aware of
McAnaney’s views on the employment contracts, but that he
dismissed them as not credible because, in his view, Drakeford
was deliberately seeking to cherry pick a legal opinion that
would undermine the entire deal.
20
The jury was also aware that Drakeford 7 wrote to Tuomey’s
board summarizing McAnaney’s opinions. The district court,
however, excluded Drakeford’s letter, although it did allow the
jury to consider the board’s response wherein it summarily
rejected Drakeford’s unspecified objections. Finally, the jury
heard that Tuomey refused to allow McAnaney to prepare a written
opinion discussing his concerns regarding the contracts, and
subsequently terminated McAnaney’s engagement altogether on
September 2, 2005.
While certainly not insubstantial, the sum of the evidence
at the first trial regarding McAnaney was that Tuomey (1) was
aware that McAnaney had unspecified concerns about the
employment contracts; (2) refused to allow McAnaney to relay his
concerns in writing; and (3) later terminated McAnaney’s joint
representation. Yet, under the FCA, the government had to prove
that Tuomey knew of, was deliberately ignorant of, or recklessly
disregarded the falsity of its claims (i.e. that its claims
violated the Stark Law). We think that McAnaney’s specific
warnings to Tuomey regarding the dangers posed by the contracts
were critical to making this showing.
McAnaney warned Tuomey that procuring fair market
valuations, by itself, was not conclusive of the accuracy of the
7 Drakeford was not called as a witness at either trial.
21
valuation. He emphasized that it would be very hard to convince
the government that a contract that paid physicians
“substantially above even their collections, much less their
collections minus expenses,” would constitute fair market value.
J.A. 2053. According to McAnaney, compensation arrangements
under which the contracting physicians are paid in excess of
their collections were “basically a red flag to the government.”
Id. He noted that similar cases had previously been prosecuted
before, although all of them ultimately settled.
McAnaney also pointed out that the ten-year term of the
contracts, combined with the thirty-mile, two-year noncompete
provision would reinforce the government’s view that Tuomey was
“paying [the physicians] above fair market value for referrals.”
J.A. 2055. He concluded that the contracts did not pass the
“red face test,” and warned that the government would find this
“an easy case to prosecute.” J.A. 2055, 2078.
We think the importance of McAnaney’s testimony to the
government’s case is self-evident. Indeed, it is difficult to
imagine any more probative and compelling evidence regarding
Tuomey’s intent than the testimony of a lawyer hired by Tuomey,
who was an undisputed subject matter expert on the intricacies
of the Stark Law, and who warned Tuomey in graphic detail of the
22
thin legal ice on which it was treading with respect to the
employment contracts. 8
4.
Tuomey urges, however, that McAnaney’s testimony and other
evidence containing his views were properly excluded under
Federal Rule of Evidence 408. That rule, however, mandates the
exclusion of evidence relating to offers to compromise or settle
disputed claims if the evidence is being offered to prove
liability on the claim. Bituminous Constr., Inc. v. Rucker
Enters., Inc., 816 F.2d 965, 968 (4th Cir. 1987). We are not
persuaded that McAnaney was retained to help Drakeford and
Tuomey compromise or settle a disputed claim. Rather, the
record unambiguously shows that Drakeford and Tuomey hired
McAnaney to advise them of the Stark Law risks posed by the
employment contracts. As a result, Rule 408 does not support
the district court’s decision to exclude McAnaney’s testimony. 9
8 We note that Tuomey waived the attorney-client privilege
with respect to its communications with McAnaney when it
asserted the advice-of-counsel defense. See Rhone-Poulenc Rorer
Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994) (“A
defendant may . . . waive [attorney-client] privilege by
asserting reliance on the advice of counsel as an affirmative
defense.”).
9 In any event, as our concurring colleague ably explains,
even assuming that McAnaney’s testimony would ordinarily be
excludable under Rule 408, Tuomey nonetheless opened the door to
its admission by raising the advice-of-counsel defense.
23
See ICAP, Inc. v. Global Digital Satellite Sys., Inc., 225 F.3d
654, 2000 WL 1049854, at *3 (4th Cir. 2000) (unpublished table
opinion) (finding Rule 408 inapplicable where the parties’
communications involved contract negotiations rather than
settlement negotiations).
Nor do we find merit in Tuomey’s objection based on
McAnaney’s supposed duty of loyalty to his clients. At trial,
Tuomey never suggested which evidentiary rule supported
exclusion on this ground, although it now characterizes this
argument as a claim for exclusion under Rule 403. That rule of
course allows a district court to exclude relevant evidence, but
only “if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Fed. R.
Evid. 403. Left unsaid by Tuomey is precisely how the probative
value of McAnaney’s compelling testimony was substantially
outweighed by the countervailing factors set out in Rule 403.
In sum, Tuomey has offered no good reason why the jury in
the first trial was not allowed to hear from McAnaney. And we
agree with the government that this evidence was critical to its
ability to satisfy its burden to prove that Tuomey acted with
the requisite intent under the FCA. We therefore affirm the
district court’s order granting a new trial on the FCA claim.
24
III.
We turn now to Tuomey’s challenges to the judgment entered
following the second trial. Tuomey asks for judgment as a
matter of law because a reasonable jury could not have found
that (1) the part-time employment contracts violated the Stark
Law, or (2) Tuomey knowingly submitted false claims.
Alternatively, Tuomey asks for a new trial because of the
district court’s refusal to tender certain jury instructions.
A.
We review the district court’s denial of Tuomey’s motion
for judgment as a matter of law de novo. Austin v. Paramount
Parks, Inc., 195 F.3d 715, 727 (4th Cir. 1999). We “view all
the evidence in the light most favorable to the prevailing party
and draw all reasonable inferences in [its] favor.” Konkel v.
Bob Evans Farms Inc., 165 F.3d 275, 279 (4th Cir. 1999). We
will reverse the district court if a reasonable jury could rule
only in favor of the moving party. Dennis v. Columbia Colleton
Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002) (“[I]f
reasonable minds could differ, we must affirm.”).
1.
Tuomey argues that it is entitled to judgment as a matter
of law because the contracts between it and the physicians did
not run afoul of the Stark Law. As we explain, however, a
reasonable jury could find that Tuomey violated the Stark Law
25
when it paid aggregate compensation to physicians that varied
with or took into account the volume or value of actual or
anticipated referrals to Tuomey.
To begin with, we note that the Stark Law’s “volume or
value” standard can be implicated when aggregate compensation
varies with the volume or value of referrals, or otherwise takes
into account the volume or value of referrals. 42 C.F.R.
§ 411.354(c)(2)(ii). That is precisely what the district court
directed the jury in the second trial to assess. Tuomey
insists, however, that our earlier opinion in this case
foreclosed the jury’s consideration of whether the contracts
varied with the volume or value of referrals. Instead, says
Tuomey, the only question that should have been put to the jury
was “whether the contracts, on their face, took into account the
value or volume of anticipated referrals.” Drakeford, 675 F.3d
at 409.
We disagree. The district court properly understood that
the jury was entitled to pass on the contracts as they were
actually implemented by the parties. We said as much in our
earlier opinion, where
we emphasize[d] that our holding . . . [was] limited
to the issues we specifically address[ed]. On remand,
a jury must determine, in light of our holding,
whether the aggregate compensation received by the
physicians under the contracts varied with, or took
into account, the volume or value of the facility
component referrals.
26
Id. at 409 n.26 (emphasis added).
A reasonable jury could have found that Tuomey’s contracts
in fact compensated the physicians in a manner that varied with
the volume or value of referrals. There are two different
components of the physicians’ compensation that we believe so
varied. First, each year, the physicians were paid a base
salary that was adjusted upward or downward depending on their
collections from the prior year. In addition, the physicians
received the bulk of their compensation in the form of a
productivity bonus, pegged at eighty percent of the amount of
their collections.
As Tuomey concedes, “the aggregate compensation received by
the physicians under the Contracts was based solely on
collections for personally performed professional services.”
Appellant’s Br. at 42. And as we noted in our earlier opinion,
there are referrals here, “consisting of the facility component
of the physicians’ personally performed services, and the
resulting facility fee billed by Tuomey based upon that
component.” Drakeford, 675 F.3d at 407. In sum, the more
procedures the physicians performed at the hospital, the more
facility fees Tuomey collected, and the more compensation the
physicians received in the form of increased base salaries and
productivity bonuses.
27
The nature of this arrangement was confirmed by Tuomey’s
former Chief Financial Officer, William Paul Johnson, who
admitted “that every time one of the 19 physicians . . . did a
legitimate procedure on a Medicare patient at the hospital
pursuant to the part-time agreement[,] the doctor [got] more
money,” and “the hospital also got more money.” J.A. 2012. We
thus think it plain that a reasonable jury could find that the
physicians’ compensation varied with the volume or value of
actual referrals. The district court did not err in denying
Tuomey’s motion for judgment as a matter of law on this ground. 10
10 We are not persuaded by Tuomey’s reliance on commentary
promulgated by the Centers for Medicare & Medicaid Services as
it developed implementing regulations for the Stark Law. Tuomey
points to a portion of the commentary wherein the agency states
that the “fact that corresponding hospital services are billed
would not invalidate an employed physician’s personally
performed work, for which the physician may be paid a
productivity bonus (subject to the fair market value
requirement).” 69 Fed. Reg. at 16089. But this statement deals
only with a productivity bonus based on the fair market value of
the work personally performed by a physician--it says nothing
about the propriety of varying a physician’s base salary based
on the volume or value of referrals.
In any case, the commentary regarding productivity bonuses
appears under a section of the regulations that specifically
addresses comments related to the exception for bona fide
employment relationships. This exception covers circumstances
where there is a meaningful administrative relationship between
the physician and the hospital. The jury was instructed on this
exception at trial, and rejected it. Tuomey does not quarrel
with that aspect of the jury’s verdict; rather it contends that
the commentary applies irrespective of whether a bona fide
employment relationship actually exists. Nothing in the statute
or the regulations, however, supports this notion.
28
2.
Tuomey next argues that the district court erred in not
granting its motion for judgment as a matter of law because it
did not knowingly violate the FCA. Specifically, Tuomey claims
that because it reasonably relied on the advice of counsel, no
reasonable jury could find that Tuomey possessed the requisite
intent to violate the FCA. Because the record here is replete
with evidence indicating that Tuomey shopped for legal opinions
approving of the employment contracts, while ignoring negative
assessments, we disagree.
The FCA imposes civil liability on any person who
“knowingly presents, or causes to be presented, a false or
fraudulent claim for payment or approval” to an officer or
employee of the United States Government. 31 U.S.C.
§ 3729(a)(1)(A), (b)(2)(A)(i). Under the Act, the term
“knowingly” means that a person, with respect to information
contained in a claim, (1) “has actual knowledge of the
information;” (2) “acts in deliberate ignorance of the truth or
falsity of the information;” or (3) “acts in reckless disregard
of the truth or falsity of the information.” Id. § 3729(b)(1).
The purpose of the FCA’s scienter requirement is to avoid
punishing “honest mistakes or incorrect claims submitted through
mere negligence.” United States ex rel. Owens v. First Kuwaiti
29
Gen. Trading & Contracting Co., 612 F.3d 724, 728 (4th Cir.
2010) (internal quotation marks omitted).
The record evidence provides ample support for the jury’s
verdict as to Tuomey’s intent. Indeed, McAnaney’s testimony,
summarized above, is alone sufficient to sweep aside Tuomey’s
claim of error. 11 We agree with the district court’s conclusion
that “a reasonable jury could have found that Tuomey possessed
the requisite scienter once it determined to disregard
McAnaney’s remarks.” J.A. 4055-56. A reasonable jury could
indeed be troubled by Tuomey’s seeming inaction in the face of
McAnaney’s warnings, particularly given Tuomey’s aggressive
efforts to avoid hearing precisely what McAnaney had to say
regarding the contracts.
Nonetheless, a defendant may avoid liability under the FCA
if it can show that it acted in good faith on the advice of
counsel. Cf. United States v. Painter, 314 F.2d 939, 943 (4th
Cir. 1963) (holding, in a case involving fraud, that “[i]f in
good faith reliance upon legal advice given him by a lawyer to
whom he has made full disclosure of the facts, one engages in a
11
We note also that the jury at the second trial considered
the deposition testimony of Tuomey executive Gregg Martin.
While this evidence is (for reasons we have explained) not
overly compelling in isolation, it is not without some value in
showing that Tuomey was aware that its proposed contracts raised
Stark Law concerns.
30
course of conduct later found to be illegal, the trier of fact
may in appropriate circumstances conclude the conduct was
innocent because ‘the guilty mind’ was absent”). However,
“consultation with a lawyer confers no automatic immunity from
the legal consequences of conscious fraud.” Id. at 943.
Rather, to establish the advice-of-counsel defense, the
defendant must show the “(a) full disclosure of all pertinent
facts to [counsel], and (b) good faith reliance on [counsel’s]
advice.” United States v. Butler, 211 F.3d 826, 833 (4th Cir.
2000) (internal quotation marks omitted).
Tuomey contends that it provided full and accurate
information regarding the proposed employment contracts to
Hewson, who in turn advised Tuomey that the contracts did not
run afoul of the Stark Law. But as the government aptly notes,
“[i]n determining whether Tuomey reasonably relied on the advice
of its counsel, the jury was entitled to consider all the advice
given to it by any source.” Appellee’s Br. at 53.
In denying Tuomey’s post-trial motions, the district court
noted--and we agree--that a reasonable jury could have concluded
that Tuomey was, after September 2005, no longer acting in good
faith reliance on the advice of its counsel when it refused to
give full consideration to McAnaney’s negative assessment of the
part-time employment contracts and terminated his
31
representation. 12 Tuomey defends its dismissal of McAnaney’s
warnings by claiming that his opinion was tainted by undue
influence exerted by Drakeford and his counsel. But there was
evidence before the jury suggesting that Tuomey also tried to
procure a favorable opinion from McAnaney. Indeed, Tuomey’s
counsel admitted that he was trying “to steer McAnaney towards
[Tuomey’s] desired outcome” and that Tuomey needed to “continue
playing along and influence the outcome of the game as best we
can.” J.A. 4482. Thus, a reasonable jury could conclude that
Tuomey ignored McAnaney because it simply did not like what he
had to say.
Tuomey points to the fact that it retained Steve Pratt, a
prominent healthcare lawyer, and Richard Kusserow, former
Inspector General at the United States Department of Health and
Human Services, as further evidence that it acted in good faith
and did not ignore McAnaney’s warnings. Pratt rendered two
12
The government contended that Tuomey submitted 25,973
total claims for payment to Medicare between fiscal years 2005
and 2009. The government’s evidence on this point consisted of
a summary chart detailing the number of claims filed by Tuomey
in each fiscal year. It appears, however, that the jury
subtracted the 4,243 claims that Tuomey submitted in fiscal year
2005 (running from October 1, 2004 to September 30, 2005) from
the government’s number. From this, the district court surmised
that the jury resolved to hold Tuomey responsible for those
claims filed beginning in fiscal year 2006 (that is, on or after
October 1, 2005) given that they were filed after Tuomey
terminated McAnaney’s joint representation on September 2, 2005.
We think this is an entirely reasonable view of the evidence.
32
opinions that generally approved of the employment contracts.
But he did so without being told of McAnaney’s unfavorable
assessment, even though Tuomey had that information available to
it at the time. In addition, Pratt reviewed and relied on the
view of Tuomey’s fair-market-value consultant that the
employment contracts would compensate the physicians at fair
market value, but he did not consider how the consultant arrived
at its opinion. Nor did he know how much the doctors earned
prior to entering into the contracts, or that the hospital stood
to lose $1.5-2 million a year, not taking into account facility
fees, by compensating the physicians above their collections.
We thus think it entirely reasonable for a jury to look
skeptically on Pratt’s favorable advice regarding the contracts.
The same can be said of the Kusserow’s advice. Kusserow--
who was called by the government to rebut Tuomey’s advice-of-
counsel defense--advised Tuomey regarding the employment
contracts about eighteen months before the parties retained
McAnaney. As was the case with Pratt, he received no
information regarding the fair market value of the employment
contracts, information that Kusserow considered vital “to be
able to do a full Stark analysis of [the proposed contracts].”
J.A. 1676. And although Kusserow did say in a letter to
Tuomey’s counsel that he did not believe the contracts presented
“significant Stark issues,” J.A. 1675, he hedged considerably on
33
that view because of “potentially troubling issues related to
the productivity and [incentive bonus provisions in the
contracts] that have not been fully addressed.” J.A. 1677.
As the district court observed, “the jury evidently
rejected Tuomey’s advice of counsel defense” as of the date that
Tuomey received McAnaney’s warnings, “grounded on the fact that
the jury excluded damages from [before the termination of
McAnaney’s engagement] in making its determination” of the civil
penalty and damages. J.A. 4055. Thus, while Kusserow’s advice
was certainly relevant to Tuomey’s advice-of-counsel defense, a
reasonable jury could have determined that McAnaney’s warnings
(and Tuomey’s subsequent inaction) were far more probative on
the issue.
In sum, viewing the evidence in the light most favorable to
the government, we have no cause to upset the jury’s reasoned
verdict that Tuomey violated the FCA.
B.
Next, Tuomey raises several challenges to the district
court’s jury instructions. We review a district court’s
“decision to give (or not give) a jury instruction and the
content of an instruction . . . for abuse of discretion.”
United States v. Russell, 971 F.2d 1098, 1107 (4th Cir. 1992).
Our task is to determine “whether the instructions[,] construed
as a whole, and in light of the whole record, adequately
34
informed the jury of the controlling legal principles without
misleading or confusing the jury to the prejudice of the
objecting party.” Spell v. McDaniel, 824 F.2d 1380, 1395 (4th
Cir. 1987). We will reverse the district court’s decision not
to give a party’s proposed instruction “only when the requested
instruction (1) was correct; (2) was not substantially covered
by the court’s charge to the jury; and (3) dealt with some point
in the trial so important, that failure to give the requested
instruction seriously impaired that party’s ability to make its
case.” Noel v. Artson, 641 F.3d 580, 586 (4th Cir. 2011)
(internal quotation marks omitted). 13
1.
First, Tuomey urges us to grant it a new trial because the
district court failed to give jury instructions consistent with
our analysis in the first appeal. Specifically, Tuomey claims
that the district court ignored our admonition that “the
question, which should properly be put to a jury, is whether the
contracts, on their face, took into account the value or volume
of anticipated referrals.” Drakeford, 675 F.3d at 409.
According to Tuomey, the district court’s failure to so instruct
the jury erroneously permitted the jury to consider extrinsic
13
Because two of Tuomey’s challenges to the instructions
address the proper calculation of damages, we address them
separately infra at Sections IV.A.1, and IV.B.
35
evidence of intent in determining whether the physicians’
compensation took into account the volume or value of referrals.
As the district court correctly determined, however, we did
not mean to limit the government’s ability to present evidence
as to Tuomey’s intent to violate the FCA. Rather, we sought to
emphasize that the government could not rely on such evidence
alone to show a violation. See id. at 409 n.25 (“We agree with
[United States ex rel. Villafane v. Solinger, 543 F. Supp. 2d
678, 693 (W.D. Ky. 2008)] that intent alone does not create a
violation. However, that does not aid Tuomey if the jury
determines that the contracts took into account the volume or
value of anticipated referrals.”). Thus, the district court did
not err in declining to give this instruction.
2.
Tuomey next argues that the district court erred in not
separately instructing the jury on the knowledge element in the
Stark Law regulations’ definition of an indirect compensation
arrangement. As Tuomey correctly notes, the Stark Law requires
that “[t]he entity furnishing [designated health services must]
ha[ve] actual knowledge of, or act[] in reckless disregard or
deliberate ignorance of, the fact that the referring
physician . . . receives aggregate compensation that varies
with, or takes into account, the volume or value of referrals.”
42 C.F.R. § 411.354(c)(2)(iii).
36
Here, however, the district court instructed the jury that
Tuomey would have acted knowingly under the FCA if it “realized
what it was doing and was aware of the nature of its conduct and
did not act through ignorance, mistake or accident.” J.A. 3942–
43. Given that a jury found Tuomey possessed the requisite
scienter under the FCA, it necessarily also found Tuomey knew
that its contracts varied with or took into account referrals.
Therefore, the district court’s error (if any) in not separately
instructing the jury as to the knowledge component of the Stark
Law was harmless.
3.
Third, Tuomey argues that the district court erred by
refusing to charge the jury that claims based upon differences
of interpretation of disputed legal questions are not false
under the FCA. For this proposition, it cites to our decision
in United States ex rel. Wilson v. Kellogg Brown & Root, Inc.,
525 F.3d 370, 377 (4th Cir. 2008), in which we said as much.
However, we also held there that for a claim to be “false” under
the FCA, “the statement or conduct alleged must represent an
objective falsehood.” Id. at 376.
When submitting its claims to the government, Tuomey was
required to certify its compliance with the Stark Law. See
United States ex rel. Thompson v. Columbia/HCA Healthcare Corp.,
125 F.3d 899, 902 (5th Cir. 1997) (“[W]here the government has
37
conditioned payment of a claim upon a claimant’s certification
of compliance with . . . a statute or regulation, a claimant
submits a false or fraudulent claim when he or she falsely
certifies compliance with that statute or regulation.”); United
States ex rel. Pogue v. Diabetes Treatment Ctrs. of Am., 565 F.
Supp. 2d 153, 158–59 (D.D.C. 2008). Here, Tuomey either
complied with the Stark Law or it didn’t. This is an objective
inquiry. And the jury found that Tuomey, in fact, violated the
Stark Law. As a result, Tuomey’s certification that it complied
with the Stark Law was false. The subjective inquiry--whether
Tuomey knew that its claims were in violation of the Stark Law--
is covered under the knowledge element. 14 Therefore, the
district court did not err in refusing to give this instruction.
4.
For their last jury instruction challenge, Tuomey contends
that the district court erred by failing to instruct the jury
that Tuomey was entitled to rely on legal advice even if it
turned out to be wrong. However, the district court instructed
14In Wilson, there was no either/or proposition of the kind
present here. Rather, in that case, the relators contended that
the disputed statement was false because the defendant “agreed
to [certain conditions] in the contract even though it knew it
would not, and later did not, abide by those terms.” Wilson,
525 F.3d at 377. As we explained, the relators’ assertion did
not rest on an objective falsehood, “but rather on Relators’
subjective interpretation of [the defendant’s] contractual
duties.” Id.
38
the jury that knowledge does not include actions taken “through
ignorance, mistake or accident.” J.A. 3943. It later
emphasized that the jury could not conclude that Tuomey had
knowledge “from proof of mistake, negligence, carelessness or a
belief in an inaccurate proposition.” Id. (emphasis added).
Because the import of Tuomey’s proposed charge was covered by
the district court’s instructions, we reject Tuomey’s claim of
error.
IV.
Finally, Tuomey makes several challenges to the
$237,454,195 judgment entered against it. First, it argues that
the district court improperly calculated the civil penalty.
Next, it claims that the district court used the incorrect
measure of actual damages. Finally, it brings constitutional
challenges to the award under the Fifth and Eighth Amendments.
A defendant found liable under the FCA must pay the
government “a civil penalty of” not less than $5,500 and not
more than $11,000 “plus 3 times the amount of damages which the
Government sustains because of that person.” 31 U.S.C.
§ 3729(a)(1); 28 C.F.R. § 85.3(a)(9). 15 In this case, the jury
15
The FCA sets the civil penalty range at $5,000 to
$10,000, but includes a provision that adjusts the range for
inflation.
39
found that Tuomey had submitted 21,730 false claims, for which
it awarded actual damages of $39,313,065, which the district
court trebled. The district court then added a civil penalty of
$119,515,000 to that sum, which it calculated by multiplying the
number of false claims by the $5,500 statutory minimum penalty.
Ordinary, we review a court’s calculation of damages for
clear error. Universal Furniture Int’l, Inc. v. Collezione
Europa USA, Inc., 618 F.3d 417, 427 (4th Cir. 2010). However,
to the extent the claim is that the calculations are influenced
by legal error, our review is de novo. Id. Likewise, the
constitutionality of a damages award is a legal question that we
review de novo. See Cooper Indus., Inc. v. Leatherman Tool
Grp., Inc., 532 U.S. 424, 436 (2001).
A.
1.
According to Tuomey, the civil penalty assessed was
improperly inflated because the jury was permitted to take into
account both inpatient and outpatient procedures performed by
the contracting physicians. Instead, relying on our earlier
opinion in this case, Tuomey claims that the only relevant
claims “were those Tuomey ‘presented, or caused to be presented,
to Medicare and Medicaid for payment of facility fees generated
as a result of outpatient procedures performed pursuant to the
40
contracts.’” Appellant’s Br. at 54 (alterations omitted)
(quoting Drakeford, 675 F.3d at 399). Tuomey is incorrect.
It is true that the contracts solely addressed compensation
for outpatient procedures. That is, the physicians’ collections
(which form the basis for both their base salaries and their
productivity bonuses) do not account for the volume or value of
inpatient procedures performed. Tuomey, however, takes out of
context language from our earlier opinion recognizing this fact
to suggest that we commanded that the relevant claims be limited
to those seeking payment for outpatient procedures. We said
nothing of the sort.
If a physician has a financial relationship with a
hospital, then the Stark Law prohibits the physician from making
any referral to that hospital for the furnishing of designated
health services. E.g., United States ex rel. Bartlett v.
Ashcroft, 39 F. Supp. 3d 656, 669 (W.D. Pa. 2014) (“Because a
‘compensation arrangement’ existed between Physician Defendants
and [the] Hospital, the Stark [Law] prohibited Physician
Defendants from making any patient referrals to [the] Hospital
for designated health services.” (emphasis added)). Inpatient
hospital services are designated health services. 42 U.S.C. §
1395nn(h)(6). And a referral includes “the request or
establishment of a plan of care by a physician which includes
the provision of the designated health service.” Id.
41
§ 1395nn(h)(5). Plainly, then, inpatient services constitute a
prohibited referral for the furnishing of designated health
services, and the district court properly instructed the jury to
factor them into the damages calculation.
2.
Tuomey also asserts that the jury’s damage award is flawed
because the government failed to present sufficient evidence of
referrals. Specifically, Tuomey contends that the government
did not identify the “referring physician,” and thus failed to
prove that the alleged false claims came about through a
prohibited referral.
The government’s proof on this point came in the form of
summary evidence and testimony detailing the claims submitted by
Tuomey. We agree with the district court that the government’s
evidence was sufficient to support the jury’s verdict. We note
also, as did the district court, that “Tuomey was entitled to
offer its own expert and its own alternate damages calculations,
but elected not to do so.” J.A. 4061.
In any case, Tuomey offers no authority to support its
argument that the claims must explicitly identify the referring
provider. Conversely, several courts have accepted that the
“‘attending/operating’ physician identified in Form UB-92
42
qualifies as a referring physician.” 16 United States v. Rogan,
459 F. Supp. 2d 692, 713 (N.D. Ill. 2006); see also United
States v. Halifax Hosp. Med. Ctr., No. 6:09-cv-1002-Orl-31TBS,
2013 WL 6017329, at *10-11 (M.D. Fla. Nov. 13, 2013) (finding
that the fact that one of the physicians with whom the hospital
has a financial relationship is identified as an “operating” or
“attending” physician is sufficient evidence that the physician
was also the “referring physician” absent evidence to the
contrary). Given the lack of support for Tuomey’s position, we
conclude that the jury had sufficient evidence to identify the
prohibited referrals.
3.
Tuomey next argues that the district court erroneously
assessed the penalty based on the 21,730 UB-92/04 forms Tuomey
submitted to Medicare for reimbursement. Instead, Tuomey
asserts that the number of false claims should be limited to
four Medicare cost reports that it submitted. 17
16Form UB-92 (later replaced by Form UB-04) is used by
hospitals to submit a claim for reimbursement to Medicare.
17Cost reports (CMS-2552) “are the final claim that a
provider submits to the fiscal intermediary for items and
services rendered to Medicare beneficiaries. . . . Medicare
relies upon the hospital cost report to determine whether the
provider is entitled to more reimbursement than already received
through interim payments, or whether the provider has been
overpaid and must reimburse Medicare.” J.A. 68-69 (citing 42
C.F.R. §§ 405.1803, 413.60, 413.64(f)(1)).
43
Tuomey provides no Stark Law case to support its argument.
Rather, it cites to FCA cases where the UB-92/04 forms
themselves were not fraudulent, but were submitted as part of an
ongoing fraudulent scheme. In those cases, the fraud was
consummated only when the cost report was submitted. See United
States ex rel. Hockett v. Columbia/HCA Healthcare Corp., 498 F.
Supp. 2d 25, 70-71 (D.D.C. 2007); Visiting Nurse Ass’n of
Brooklyn v. Thompson, 378 F. Supp. 2d 75, 99 (E.D.N.Y. 2004).
But even those cases suggest that a UB-92/04 form can
constitute a discrete fraudulent claim under the FCA when the
government proves that the forms were, in fact, false or
fraudulent. See Hockett, 498 F. Supp. 2d at 70-71; Visiting
Nurse Ass’n, 378 F. Supp. 2d at 99. This occurs when “the
provider knowingly asks the Government to pay amounts it does
not owe.” United States ex rel. Clausen v. Lab. Corp. of Am.,
Inc., 290 F.3d 1301, 1311 (11th Cir. 2002).
Here, each time Tuomey submitted to Medicare a UB-92/04
form asking for reimbursement for a prohibited referral, it was
knowingly asking the government to pay an amount that, by law,
it could not pay. Consequently, we find the district court did
not err in finding that each UB-92/04 form constituted a
separate claim.
44
B.
Tuomey also challenges the district court’s measure of
actual damages. It argues that the true measure is not the sum
total of all claims the government paid (as the court instructed
the jury), but rather the difference (if any) between the true
value of the services provided by Tuomey and what the government
actually paid. According to Tuomey, since “there was no
evidence that the Government did not get what it paid
for[,] . . . there were no actual damages under the FCA.”
Appellant’s Br. at 87. Here again, Tuomey’s view of the law is
incorrect.
The Stark Law prohibits the government from paying any
amount of money for claims submitted in violation of the law.
42 U.S.C. § 1395nn(g)(1). Compliance with the Stark Law is a
condition precedent to reimbursement of claims submitted to
Medicare. When Tuomey failed to satisfy that condition, the
government owed it nothing. United States v. Rogan, 517 F.3d
449, 453 (7th Cir. 2008).
The Stark Law expresses Congress’s judgment that all
services provided in violation of that law are medically
unnecessary. By reimbursing Tuomey for services that it was
legally prohibited from paying, the government has suffered
injury equivalent to the full amount of the payments. Cf.
United States v. Mackby (Mackby II), 339 F.3d 1013, 1018-19 (9th
45
Cir. 2003) (finding that the fact that the defendant actually
rendered the service billed did not negate the government’s
injury, as “[d]amages under the FCA flow from the false
statement”). In this case, the damage from the false statement
came from the payment to an entity that was not entitled to any
payment at all. Accordingly, we reject Tuomey’s claim of
error. 18
C.
Finally, Tuomey argues that the district court’s award of
$237,454,195, consisting of damages and a civil penalty, is
unconstitutional under the Excessive Fines Clause of the Eighth
Amendment and the Due Process Clause of the Fifth Amendment.
While the award is substantial, we cannot say that it is
unconstitutional.
“The Excessive Fines Clause of the Eighth Amendment
prohibits the government from imposing excessive fines as
punishment.” Korangy v. FDA, 498 F.3d 272, 277 (4th Cir. 2007).
“Civil fines serving remedial purposes do not fall within the
reach of the Eighth Amendment.” Id. But where “a civil
sanction ‘can only be explained as serving in part to punish,"
18For the same reason, we also reject Tuomey’s contention
that the district court erred in failing to instruct the jury
that the government had to prove that the services received were
worth less than what the government paid.
46
then the fine is subject to the Eighth Amendment.” Id. (quoting
Austin v. United States, 509 U.S. 602, 610 (1993)). In such a
case, the fine “will be found constitutionally excessive only if
it is ‘grossly disproportional to the gravity of [the]
offense.’” Id. (alteration in original) (quoting United States
v. Bajakajian, 524 U.S. 321, 334, (1998)). We have said,
however, that instances in which the penalty prescribed under
the FCA is unconstitutionally excessive will be “infrequent.”
United States ex rel. Bunk v. Gosselin World Wide Moving, N.V.,
741 F.3d 390, 408 (4th Cir. 2013).
By contrast, the Due Process Clause “imposes substantive
limits beyond which penalties may not go.” TXO Prod. Corp. v.
Alliance Res. Corp., 509 U.S. 443, 453-54 (1993) (internal
quotation marks omitted) (Fourteenth Amendment case); Morgan v.
Woessner, 997 F.2d 1244, 1255 (9th Cir. 1993) (finding that the
Supreme Court’s analysis under the Due Process Clause of the
Fourteenth Amendment applies equally under the Fifth Amendment),
cited with approval in EEOC v. Fed. Express Corp., 513 F.3d 360,
376 (4th Cir. 2008). Like the Eighth Amendment, the Due Process
Clause does not apply to compensatory damage awards. This is
because compensatory damages “redress the concrete loss the
plaintiff has suffered by reason of the defendant’s wrongful
conduct,” and the assessment of the plaintiff’s injury is
“essentially a factual determination.” Cooper Indus., 532 U.S.
47
at 432. On the other hand, punitive damages are “essentially
‘private fines’ intended to punish the defendant and to deter
future wrongdoing.” Id. Consequently, there must be
“procedural and substantive constitutional limitations on these
awards.” See State Farm Mut. Auto Ins. Co. v. Campbell, 538
U.S. 408, 416 (2003). Thus, the Due Process Clause imposes
limits on “grossly excessive” monetary penalties that go beyond
what is necessary to vindicate the government’s “legitimate
interests in punishment and deterrence.” BMW of N. Am., Inc. v.
Gore, 517 U.S. 559, 562 (1996).
The “FCA imposes damages that are essentially punitive in
nature.” Vt. Agency of Natural Res. v. United States ex rel.
Stevens, 529 U.S. 765, 784 (2000). But the Supreme Court has
also noted that the treble damages provision of the statute has
a compensatory aspect, in that they account for the fact that
some amount of money beyond actual damages is “necessary to
compensate the Government completely for the costs, delays, and
inconveniences occasioned by fraudulent claims.” Cook Cnty.,
Ill. v. United States ex rel. Chandler, 538 U.S. 119, 130
(2003). Additionally, the provision allows the government to
recover some measure of the amount it must pay to compensate
relators in qui tam actions. Id.; see also 31 U.S.C. § 3730(d)
(“If the Government proceeds with an action brought by [a
relator, the relator] shall . . . receive at least 15 percent
48
but not more than 25 percent of the proceeds of the action or
settlement of the claim . . . .”). On the other hand, the civil
penalty is completely punitive. United States v. Mackby (Mackby
I), 261 F.3d 821, 830 (9th Cir. 2001).
The Supreme Court has instructed courts to consider three
guideposts when reviewing punitive damages awards under the Due
Process Clause: “(1) the degree of reprehensibility of the
defendant’s misconduct; (2) the disparity between the actual or
potential harm suffered by the plaintiff and the punitive
damages award; and (3) the difference between the punitive
damages awarded by the jury and the civil penalties authorized
or imposed in comparable cases.” 19 State Farm, 538 U.S. at 418.
There is no reason to believe that the Court’s “approach to
punitive damages under the Fifth Amendment would differ
dramatically from analysis under the Excessive Fines Clause.”
Rogan, 517 F.3d at 454.
The degree of reprehensibility of the defendant’s conduct
is “[p]erhaps the most important indicium of the reasonableness
of a punitive damages award.” Gore, 517 U.S. at 575. Of
19
Because the FCA’s civil penalty and treble damages
provisions are Congressional mandates, we believe this final
factor is not instructive here. Indeed, to the extent that the
district court exercised any discretion at all, it did so by
imposing the statutory minimum civil penalty for each fraudulent
claim.
49
course, in this case the damages and penalties assessed against
Tuomey are congressionally prescribed. 31 U.S.C. § 3729(a)(1).
As we have previously stated, the Stark Law expresses Congress’s
judgment of the reprehensibility of the conduct at issue by
deeming services provided in violation of the law worthless.
And “[t]he fact . . . that Congress provided for treble damages
and an automatic civil monetary penalty per false claim shows
that Congress believed that making a false claim to the
government is a serious offense.” Mackby II, 339 F.3d at 1018;
cf. Rogan, 517 F.3d 454 (“[O]ne would think that a fine
expressly authorized by statute could be higher than a penalty
selected ad hoc by a jury.”).
In addition, the Supreme Court has directed courts to
evaluate the degree of reprehensibility of the defendant’s
conduct by considering whether:
the harm caused was physical as opposed to economic;
the tortious conduct evinced an indifference or a
reckless disregard of the health or safety of others;
the target of the conduct had financial vulnerability;
the conduct involved repeated actions or was an
isolated incident; and the harm was the result of
intentional malice, trickery, or deceit, or mere
accident.
State Farm, 538 U.S. at 419. While Tuomey’s conduct in this
case does not implicate the first three factors, we think the
last two are relevant here. See Saunders v. Branch Banking &
Trust Co. of Va., 526 F.3d 142, 153 (4th Cir. 2008) (finding
50
that even the presence of a single State Farm factor “can
provide justification for a substantial award of punitive
damages”).
Clearly, Tuomey’s conduct “involved repeated actions,”
State Farm, 538 U.S. at 419, as it submitted 21,730 false
claims. Thus, while the penalty is certainly severe, it is
meant to reflect the sheer breadth of the fraud Tuomey
perpetrated upon the federal government. Bunk, 741 F.3d at 407-
08 (explaining that the court was comfortable assessing high
civil penalties in FCA actions involving a large number of
claims). As we have said, “[w]hen an enormous public
undertaking spawns a fraud of comparable breadth [high
penalties] help[] to ensure what we reiterate is the primary
purpose of the FCA: making the government completely whole.”
Id. Substantial penalties also serve as a powerful mechanism to
dissuade such a massive course of fraudulent conduct. See id.
at 408. And the government has “a strong interest in preventing
fraud” because “[f]raudulent claims make the administration of
Medicare more difficult, and widespread fraud would undermine
public confidence in the system.” Mackby II, 339 F.3d at 1019.
Nor were Tuomey’s actions in this case the result of a
“mere accident.” State Farm, 538 U.S. at 419. Rather, the jury
determined that Tuomey submitted false claims for Medicare
reimbursement “knowingly,” that is, with actual knowledge, in
51
deliberate ignorance, or with reckless disregard that the claims
violated the Stark Law. Under the circumstances, we agree with
the government that “strong medicine is required to cure the
defendant’s disrespect for the law.” Gore, 517 U.S. at 577.
Next, we consider the disparity between actual harm and the
punitive damages award. Specifically, we compare the actual
damages assessed against Tuomey to the civil penalty and the
portion of treble damages that can be considered punitive.
Here, we can properly regard the entire civil penalty,
$119,515,000, as punitive. On the other hand, the actual
damages of $39,313,065 are entirely compensatory. As discussed
above, the additional sum of $78,626,130 resulting from the
trebling of actual damages is a hybrid of compensatory and
punitive damages.
Although the Supreme Court has not told us where to draw
the line, see Chandler, 538 U.S. at 131, we may safely assume
that the portion of the trebled award allocated to the relator
is compensatory. See id. Assuming further that Drakeford
receives the minimum amount allotted by the statute--that is
fifteen percent of the total recovery--the relator would be
entitled to $11,793,920 of the trebled award, leaving
$66,832,210 to be allocated to punitive damages. By this
calculation, the portion of damages that is compensatory is
$51,106,985 and the $186,347,210 balance is punitive.
52
While the Court has been reluctant to fix a bright-line
ratio that punitive damages cannot exceed for purposes of the
Due Process Clause, it has suggested that “an award of more than
four times the amount of compensatory damages might be close to
the line of constitutional impropriety.” State Farm, 538 U.S.
at 425. Here, the ratio of punitive damages to compensatory
damages is approximately 3.6-to-1, which falls just under the
ratio the Court deems constitutionally suspect. 20 We therefore
conclude that the damages award is constitutional under the
Fifth and Eighth Amendments.
V.
Finally, we do not discount the concerns raised by our
concurring colleague regarding the result in this case. But
having no found no cause to upset the jury’s verdict in this
case and no constitutional error, it is for Congress to consider
whether changes to the Stark Law’s reach are in order.
AFFIRMED
20 The government contends that the ratio between the
penalty awarded and the actual damages (after accounting for the
relator’s recovery) may be as low as 2-to-1 or even 1-to-1.
This calculation, however, ignores the treble damages award, a
portion of which we consider to be punitive.
53
WYNN, Circuit Judge, concurring:
Because Tuomey opened the door to the admission of Kevin
McAnaney’s testimony by asserting an advice of counsel defense,
and because I cannot say, based on the record before me, that no
rational jury could have determined that Tuomey violated both
the Stark Law and the False Claims Act, I concur in the outcome
today.
But I write separately to emphasize the troubling picture
this case paints: An impenetrably complex set of laws and
regulations that will result in a likely death sentence for a
community hospital in an already medically underserved area.
I.
Regarding the issue of whether the district court correctly
granted a new trial, we review such a decision for abuse of
discretion. Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301
(4th Cir. 1998). Similarly, we “review a trial court’s rulings
on the admissibility of evidence for abuse of discretion,” and
we will overturn such a ruling only if it is “arbitrary and
irrational.” United States v. Cole, 631 F.3d 146, 153 (4th Cir.
2011) (quotation marks and citation omitted).
A.
Judge Perry, who presided over the first trial, excluded
McAnaney’s testimony pursuant to Evidence Rule 408, which can be
used to exclude evidence of settlement negotiations. Under Rule
408, “conduct or a statement made during compromise negotiations
about [a disputed] claim” is generally inadmissible when used to
“prove or disprove the validity or amount of a disputed claim.”
Fed. R. Evid. 408(a).
It is unclear to me that the district court abused its
discretion in determining that McAnaney’s testimony could be
excluded under Rule 408. In his deposition testimony, McAnaney
described himself as “a tie breaker” who was jointly hired by
Drakeford and Tuomey when they could not agree about whether the
contracts violated the Stark Law—arguably a disputed claim.
J.A. 139-41. Tuomey’s and Drakeford’s dispute about the
legality of the contracts reached impasse and ended in Drakeford
acting as a relator of this qui tam action only three months
later. Had Drakeford and Tuomey been able to reach an
agreement, Drakeford presumably would not have filed this suit,
in which the government, having intervened, now stands in
Drakeford’s shoes.
Rule 408’s exclusionary provision applies where a “dispute
or a difference of opinion exists,” not just “when discussions
crystallize to the point of threatened litigation.” Affiliated
Mfrs., Inc. v. Aluminum Co. of Am., 56 F.3d 521, 527 (3d Cir.
1995). When viewed thusly, it is hard to say that Judge Perry
55
acted either arbitrarily or irrationally in deeming McAnaney’s
testimony excludable.
Crucially, however, evidence subject to exclusion under
Rule 408 is so excludable “only if the evidence is offered to
prove either liability for or invalidity of a claim or its
amount;” otherwise, it may come in. Bituminous Const., Inc. v.
Rucker Enterprises, Inc., 816 F.2d 965, 968 (4th Cir. 1987)
(emphasis added); Fed. R. Evid. 408(b) (“The court may admit
this evidence for another purpose.”). Stated differently,
“[s]ince the rule excludes only when the purpose is proving the
validity or invalidity of the claim or its amount, an offer for
another purpose is not within the rule.” 2-408 Weinstein’s Fed.
Evid. § 408.08 (quotation marks and citation omitted).
Therefore, if the McAnaney evidence was admissible for a purpose
beyond the validity or amount of a disputed claim, Rule 408
would provide no basis for barring it wholesale from the first
trial.
B.
The government argues, among other things, that the
McAnaney evidence went to the heart of an issue wholly beyond
the scope of Rule 408’s limited exclusionary ambit—namely,
Tuomey’s advice of counsel defense. With this, I must agree.
As explained by a district court in this Circuit in the
context of a False Claims Act fraud claim, “good faith reliance
56
on the advice of counsel may contradict any suggestion that a
[defendant] ‘knowingly’ submitted a false claim.” United States
v. Newport News Shipbuilding, Inc., 276 F. Supp. 2d 539, 565
(E.D. Va. 2003). “[I]f a [defendant] seeks the advice of
counsel in good faith, provides full and accurate information,
receives advice which can be reasonably relied upon, and, in
turn, faithfully follows that advice, it cannot be said that the
defendant ‘knowingly’ submitted false information or acted with
deliberate ignorance or reckless disregard of its falsity, even
if that advice turns out in fact to be false.” Id. See also,
e.g., United States v. Butler, 211 F.3d 826, 833 (4th Cir. 2000)
(identifying the elements of the advice of counsel defense as
“(a) full disclosure of all pertinent facts to [a lawyer], and
(b) good faith reliance on the [lawyer]’s advice”).
When a party raises an advice of counsel defense, however,
all advice on the pertinent topic becomes fair game. “It has .
. . become established that if a party interjects the ‘advice of
counsel’ as an essential element of a claim or defense,” then
“all advice received concerning the same subject matter” is
discoverable, not subject to protection by the attorney-client
privilege, and, by logical extension, admissible at trial. 1
McCormick On Evid. § 93 (7th ed. 2013). See also, e.g., In re
EchoStar Commc’ns Corp., 448 F.3d 1294, 1299 (Fed. Cir. 2006)
(“Once a party announces that it will rely on advice of counsel
57
. . . the attorney-client privilege is waived. The widely
applied standard for determining the scope . . . is that the
waiver applies to all other communications relating to the same
subject matter. . . . Thus, when EchoStar chose to rely on the
advice of in-house counsel, it waived the attorney-client
privilege with regard to any attorney-client communications
relating to the same subject matter, including communications
with counsel other than in-house counsel, which would include”
the advice of outside counsel.) (quotation marks and citation
omitted).
Here, there can be no doubt that Tuomey pressed an advice
of counsel defense. Tuomey argued to the first jury, for
example, that “[t]he lawyers were the ones running the show . .
. . All Tuomey did was accept their recommendations and vote on
them if they thought that it was something that would be good
for the hospital. Advice of counsel is a very, very good
defense. It is one that the law recognizes, and it is one that
. . . fits perfectly in this situation.” Trial I, Transcript
for Mar. 25, 2010, at 1986.
Further, the district court instructed the jury on the
advice of counsel defense, making clear that it provided a
vehicle for absolving Tuomey of False Claims Act liability. The
court instructed, among other things, that “the defendant has
asserted an affirmative defense of advice of counsel to the
58
United States’ allegation that it acted in violation of the
False Claims Act. An affirmative defense is an argument that,
if true, will defeat the government’s claim.” Trial I,
Transcript for Mar. 26, 2010, at 2098-99. Regarding what Tuomey
needed to show to succeed with that defense, Judge Perry
instructed that “in order for the defendant to prevail on its
affirmative defense of advice of counsel, Tuomey must prove the
following: One, that the advice was sought in good faith; two,
that Tuomey provided full and accurate information to the
attorney; three, the advice could be reasonably relied upon;
and, four, Tuomey faithfully followed the attorney’s advice.”
Id.
Having put the advice it got from its lawyers squarely at
issue, Tuomey should not have been permitted to cherry-pick
which advice of counsel the jury was permitted to hear.
Instead, the jury should have been allowed to consider all the
advice of all Tuomey’s counsel—including McAnaney.
The record makes clear that, whatever else McAnaney’s
assessment was, it was also advice of counsel. McAnaney’s
engagement letter to Tuomey and Drakeford, who had hired him
jointly, stated that McAnaney, a lawyer, had been “retained” to
“review and advise” the parties “with respect to a proposed
business relationship.” J.A. 145. McAnaney committed to being
guided by the parties’ “instructions in carrying out the
59
representation” and reporting to the parties his “conclusions”
and “any potential compliance issues.” Id. In other words,
McAnaney was Tuomey’s counsel, and he advised Tuomey about the
contracts at the heart of this case.
The record makes similarly clear that Tuomey did not follow
McAnaney’s advice. McAnaney advised Tuomey that the proposed
contracts raised significant “red flags” under the Stark Law.
J.A. 2054. McAnaney advised that Tuomey would have difficulty
persuading the government that the contracts did not compensate
the physicians in excess of fair market value. And McAnaney
warned Tuomey that the contracts presented “an easy case to
prosecute” for the government. J.A. 2078. Rather than heed
this advice and back away from the contracts, however, Tuomey
told McAnaney not to put his conclusions in writing and ended
his engagement.
Allowing McAnaney’s testimony into evidence to show the
advice he gave in light of Tuomey’s advice of counsel defense
would have been outside of Rule 408’s limited exclusionary
ambit. In other words, by pressing an advice of counsel
defense, Tuomey itself opened the door for McAnaney’s testimony
to come in, even if it otherwise might have been excludable
under Rule 408. See Fed. R. Evid. 408(b). Despite this, the
district court barred McAnaney’s testimony wholesale.
60
In keeping McAnaney out of the first trial, the district
court prevented the jury from getting the full picture of what
advice Tuomey had gotten from counsel. Tuomey told the jury
that “[t]he lawyers were the ones running the show . . . All
Tuomey did was accept their recommendations.” Trial I,
Transcript for Mar. 25, 2010, at 1986. But the government was
effectively prevented from showing that Tuomey had gotten
conflicting recommendations from its different counsel, picked
its preferred advice, and discarded the rest. It is hard to
imagine that this constituted anything other than a prejudicial
abuse of discretion. Cf. Rodriguez-Garcia v. Municipality of
Caguas, 495 F.3d 1 (1st Cir. 2007) (reversing because erroneous
Rule 408 ruling hamstrung plaintiff’s ability to show elements
of claim).
In sum, in allowing Tuomey to press its advice of counsel
defense and giving the jury an advice of counsel instruction yet
preventing the jury from hearing all the advice that Tuomey got,
the district court abused its discretion and prejudiced the
government. This error alone was grave enough to warrant a new
trial. Accordingly, I, too, conclude that Judge Perry’s
decision to grant a new trial must be upheld.
61
II.
Moving beyond the district court’s decision to grant a new
trial, I agree with the majority that the jury’s determination
that Tuomey violated both the Stark Law and the False Claims Act
must stand. Our standard of review at this juncture is a highly
deferential one, “accord[ing] the utmost respect to jury
verdicts” and “constraining” us to affirm so long as the record
contains “sufficient evidence for a reasonable jury” to have
returned the verdict it did. Lack v. Wal-Mart Stores, Inc., 240
F.3d 255, 259 (4th Cir. 2001). After careful review of the
record, I cannot conclude that no reasonable jury could have
reached the verdict before us.
Nevertheless, I am troubled by the picture this case
paints: An impenetrably complex set of laws and regulations
that will result in a likely death sentence for a community
hospital in an already medically underserved area.
A.
The Stark Law is, at its core, a prohibition on self-
referrals, barring doctors from referring patients for certain
services to entities in which the doctors (or their immediate
family members) have a financial interest, unless an exception
applies. Patrick A. Sutton, The Stark Law in Retrospect, 20
Annals Health L. 15, 25-26 (2011). Further, entities providing
62
the pertinent services are prohibited from billing Medicare or
Medicaid pursuant to such a prohibited referral. Id.
“The Stark Law is a strict liability statute so it is
immaterial whether one intended to violate the law; an
inadvertent violation can trigger liability.” Paula Tironi, The
“Stark” Reality: Is the Federal Physician Self-Referral Law Bad
for the Health Care Industry?, 19 Annals Health L. 235, 237-38
(2010). Individuals and entities that violate the Stark Law can
be subject to severe monetary penalties and exclusion from
federal health care programs. Id. These “steep civil sanctions
and program exclusions may be ruinous. Health care providers
are open to extensive liability, their financial security
resting uneasily upon a combination of their attorneys’ wits
[and] prosecutorial discretion.” Jo-Ellyn Sakowitz Klein, The
Stark Laws: Conquering Physician Conflicts of Interest?, 87 Geo.
L.J. 499, 503-04 (1998).
Despite attempts to establish “bright line” rules so that
physicians and healthcare entities could “ensure compliance and
minimize . . . costs,” 66 Fed. Reg. 856, 860 (Jan. 4, 2001), the
Stark Law has proved challenging to understand and comply with.
Indeed, “[t]he Stark law is infamous among health care lawyers
and their clients for being complicated, confusing and counter-
intuitive; for producing results that defy common sense, and
sometimes elevating form over substance. Ironically, the Stark
63
law was actually intended to simplify life by creating ‘bright
lines’ between what would be permitted and what would be
disallowed, and creating certainty by removing intent from the
equation.” Charles B. Oppenheim, The Stark Law: Comprehensive
Analysis + Practical Guide 1 (AHLA 5th ed. 2014). Some of the
invective used to describe the Stark law even borders on
lyrical: “ambiguous[,] arcane[,] and very vague;” and “heaps of
words in barely decipherable bureaucratese.” Steven D. Wales,
The Stark Law: Boon or Boondoggle? An Analysis of the
Prohibition on Physician Self-Referrals, 27 Law & Psychol. Rev.
1, 22-23 (2003) (quotation marks and citations omitted).
Given this complexity and the strict liability nature of
the statute, a Stark Law “compliance program can help a
physician or [] entity prove good faith and obtain leniency in
the event of a violation; however, the Stark Law’s complexity
and frequent revisions make it difficult for physicians and
entities to develop and implement such programs.” Tironi, supra
at 238. Against this problematic backdrop, the availability of
an advice of counsel defense should perhaps be especially robust
in Stark Law cases prosecuted under the False Claims Act.
B.
The False Claims Act discourages fraud against the federal
government by imposing liability on “any person who . . .
knowingly presents, or causes to be presented, a false or
64
fraudulent claim for payment or approval.” 31 U.S.C. §
3729(a)(1)(A) (emphasis added). The False Claims Act is meant
“to indemnify the government . . . against losses caused by a
defendant’s fraud,” Mikes v. Straus, 274 F.3d 687, 696 (2d Cir.
2001) (citing United States. ex rel. Marcus v. Hess, 317 U.S.
537, 549, 551–52 (1943)), as opposed to a defendant’s mistake.
Accordingly, a defendant may skirt False Claims Act
liability by showing good faith reliance on the advice of
counsel. As the majority opinion recognizes, in fraud cases,
“‘[i]f in good faith reliance upon legal advice given him by a
lawyer to whom he has made full disclosure of the facts, one
engages in a course of conduct later found to be illegal,” the
trier of fact may conclude that the conduct was innocent because
“‘the guilty mind’ was absent.” Ante at 30-31 (quoting United
States v. Painter, 314 F.2d 939, 943 (4th Cir. 1963)).
In the context of the Stark Law, it is easy to see how even
diligent counsel could wind up giving clients incorrect advice.
Between the law’s being amended to have a broader scope but then
narrowed with various exceptions, along with the promulgation
and amendment of copious associated rules and regulations, “the
Stark Law bec[ame] a classic example of a moving target. For
lawyers, who must depend on the predictability of the law when
they give counsel to their clients, such unpredictability [i]s
an unusually heavy burden.” Wales, supra at 21.
65
In this case, there can be no doubt that Tuomey sought and
followed the advice of its long-time counsel, Nexsen Pruet.
Nexsen Pruet drafted and approved the contracts at the heart of
this litigation. Tuomey and Nexsen Pruet consulted with others,
including the nation’s largest healthcare law firm and a
national consulting firm with expertise in physician
compensation. Those experts, too, signed off on the
arrangements (though the parties dispute whether Tuomey had
shared all pertinent information for purposes of these
additional assessments).
Nevertheless, as the majority opinion notes, “a reasonable
jury could have concluded that Tuomey was . . . no longer acting
in good faith reliance on the advice of its counsel when it
refused to give full consideration to McAnaney’s negative
assessment of the” contracts. Id. at 32. As already explained,
McAnaney, the former Chief of the Industry Guidance Branch at
the Department of Health and Human Services’ Office of Counsel
to the Inspector General, also served as Tuomey’s counsel. And
he advised Tuomey that the proposed arrangements raised
significant red flags and may well be unlawful. Had Tuomey
followed McAnaney’s advice, it likely would have faced no
lawsuit in which to raise an advice of counsel, or any other,
defense.
66
III.
This case is troubling. It seems as if, even for well-
intentioned health care providers, the Stark Law has become a
booby trap rigged with strict liability and potentially ruinous
exposure—especially when coupled with the False Claims Act.
Yet, the district court did not abuse its discretion when it
granted a new trial and the jury did not act irrationally when
it determined that Tuomey violated both the Stark Law and the
False Claims Act. Accordingly, I must concur in the outcome
reached by the majority.
67