By Wendy Biddle, J.D.
Doctor failed to establish good cause in filing severely late motion to compel.
The federal district court in Nashville, Tennessee denied a physician's motion to compel discovery, finding that the physician, who the United States alleges violated the False Claims Act by billing Medicare for prescription drugs that were not medically necessary, failed to file his motion in a timely manner. All discovery motions for the case were due by July 12, 2019 and this motion was filed February 25, 2020 without acknowledgment or reason for the delay (U.S. ex rel. Norris v. Florence, September 29, 2020, Newbern, A.).
This case arises out of a whistleblower complaint that alleged that Dr. David G. Florence operated an illegal pill mill out of his Center for Advanced Medicine clinic. The US alleged that the doctor violated the False Claims Act, the Controlled Substances Act and common law by billing Medicare for controlled substances that were not medically necessary or legitimate and for office visits that were non-payable or billed at excessively high rates.
The discovery deadlines for the case were extended multiple times, but the last discovery motion deadline was July 12, 2019. In June 2019, the doctor sent the government a stipulation of discovery dispute, but the parties did not agree on a joint stipulation. The doctor never filed a statement of dispute nor notified the court of the conflict. The doctor then filed the current motion to compel discovery, seven months after the discovery deadline passed.
Motion to file sur-reply. The government filed a motion for leave to file a sur-reply to the doctor’s motion to compel. The court found that the government had established good cause in support of its motion, namely because the doctor raised for the first time an argument the government failed to respond adequately to interrogatories. The court granted the motion.
Timeliness of motion. The doctor filed a motion to compel discovery, seven months after the discovery deadline. He presented no evidence that his failure to file a timely motion was excusable neglect and therefore the court held that it would not extend the discovery deadline.
Motion to compel. The doctor argued that the government failed to respond to interrogatories that asked what the standard was for a supervising physician and how the doctor breached that standard. In 2018 the government responded to the interrogatories with explanations of the breach and citations of the applicable statutes. Later, the government provided expert witness reports stating that the doctor’s pain management practices were consistent with pill mill prescribing. Those expert reports also included the applicable legal standard.
The doctor objected to the reports, stating that they do not apply to supervising physicians. The court disagreed. The court held that the government's responses were complete and detailed with the applicable statutes and regulations and do not warrant a motion to compel a further response.
The doctor also moved to compel production of investigative reports compiled by a special agent in the court of the government’s investigation. That same special agent was deposed by the doctor in 2019 and in the deposition stated he did not recall some of the specifics as he had not been involved for the last year and half of the six year investigation. The doctor requested the reports, stating it was necessary because the agent did not recall specifics. The government argued that the request was untimely but that the reports were attorney work product privilege, prepared in anticipation of the government’s current case against the doctor.
The court agreed with the government, finding that the reports are protected by the work product privilege because they were made at the request of counsel in the course of the investigation. Furthermore, the court held that the doctor failed to meet his burden of demonstrating that he has a substantial need for the reports.
The case is No. 2:13-cv-00035.
Attorneys: Dean Atyia, U.S. Attorney's Office, for the United States. John E. Haubenreich (Waller, Lansden, Dortch & Davis, LLP) for Debra Norris. C. Eugene Shiles (Spears, Moore, Rebman & Williams) for David G. Florence.
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