Health Law Daily Retaliation claim under FCA does not require evidence FCA claim was filed
Friday, September 13, 2019

Retaliation claim under FCA does not require evidence FCA claim was filed

By Rebecca Mayo, J.D.

A retaliation claim requires only a showing that an employee took acts in furtherance of an FCA claim, not that they actually filed a claim.

A district court held that evidence that a qui tam action was filed and voluntarily dismissed when the government declined to intervene, may be properly excluded from a claim for retaliation under the False Claims Act (FCA) because filing an FCA claim is not a prerequisite to a retaliation claim. The court further held that inadvertent attorney work-product disclosures by a former co-plaintiff were not a waiver of work-product protection (Feinwachs v. Minnesota Hospital Association, September 11, 2019, Wright, W.).

The evidence. In January 2011, the general counsel and lobbyist for Minnesota Hospital Association (MHA) filed a qui tam action against MHA and several other defendants alleging violations of the FCA. Prior to filing the suit, the employee exchanged emails with his attorney and his former co-plaintiff using personal email. Two of these emails that discussed gathering evidence related to the lawsuit were forwarded to the employee’s work email by the former co-plaintiff. These two emails were later discovered by MHA on its computer network.

In 2015 the government declined to intervene and the employee voluntarily dismissed the qui tam action and refilled the claims. In preparation for trial, the employee filed motions to exclude from evidence all email communications between himself, the former co-plaintiff, and their attorney and any reference to the fact that the employee had originally filed a qui tam action. The trial court judge denied to motion to exclude the emails, finding that attorney-client privilege did not apply to the emails on the MHA server. The parties then filed a joint motion regarding continued sealing of the documents and a magistrate judge ordered the unsealing of the emails. The employee appealed.

Emails. The law-of-the-case doctrine prevents relitigating a settled issue in a case by providing that a court’s decision upon a rule of law should govern the same issues in subsequent stages of the same case. Since the trial court judge decided that the attorney-client privilege had been waived, any further arguments to the contrary are foreclosed. However, the judge reserved his ruling on whether the emails were protected by the work-product doctrine and this argument was not foreclosed. The district court held that the emails in question were prepared in anticipation of litigation and contained the attorney’s mental impressions, conclusions, opinions, and legal theories. Although these documents were effectively disclosed to MHA, the disclosure was made inadvertently by the co-plaintiff and nothing in the record indicated that the employee intended for any adversary to see the emails. Therefore, the court found that the work-product protection was not waived and these documents should remain sealed.

Qui tam claims. The employee sought to exclude evidence of, or reference to, the initial qui tam action that was filed and that the government declined to intervene. MHA argued that the employee’s claim of retaliation was based on the theory that MHA allegedly fired him because he was going to file the qui tam action, and therefore it was relevant. However, the court held that neither filing a qui tam claim nor prevailing on the merits of a qui tam claim is a prerequisite to proving the elements of a retaliation claim. There only needs to be acts in furtherance of an FCA action or other efforts to stop one or more FCA violations. The court further held that any inference that MHA was involved in fraudulent activity may be mitigated by presenting evidence that no court of agency ever found that the HMOs engaged in fraud. Therefore, the court granted the motions o exclude the evidence of the initial qui tam claims.

The case is No. 11-cv-00008-WMW-SER.

Attorneys: Brian E. Wojtalewicz (Wojtalewicz Law Firm, Ltd.) for David Feinwachs. Elizabeth S. Gerling (Jackson Lewis P.C.) for The Minnesota Hospital Association and MCCA.

Companies: The Minnesota Hospital Association; MCCA

MainStory: TopStory CaseDecisions FCANews EmploymentNews ProgramIntegrityNews QuiTamNews MinnesotaNews

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