Monthly Archives: June 2017

2017 ABA False Clams Act Trial Institute Days 2 & 3

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IMG_20170616_105326Days 2 and 3 were devoted to the mock trial. The fact pattern for the mock trial involved six bellwether cases of elder abuse at a skilled nursing facility (SNF). The pretend relator was the former director of nursing at the facility. The government intervened in the mock case. The case centered around the claim that the SNFs provided “worthless services” to the six patients.

The opening session was an excellent presentation by Kerri Ruttenberg about trial graphics. Kerri provided terrific guidance about creating, polishing, and perfecting trial graphics and presentation slides.

The remainder of Day 2 involved voir dire, opening statements, and the examination of witnesses for the mock trial. The mock opening statements and examinations provided some good models and teaching moments.

Day 3 began with closing arguments and then proceeded to jury instructions. The mock case was designed to have “good” facts for the relator and government, including some egregious examples of extremely poor medical care by the hypothetical nursing home. However, since the legal standard for “worthless service” claims is a very high bar–the care must be “so deficient that for all practical purposes it is the equivalent of no performance at all”–the case set up a classic trial dispute.

Then we got to watch the jury deliberate. The mock jury, while swayed by the heart-breaking examples of extremely poor patient care, struggled to apply the legal standard. Some jurors were willing to apply a pragmatic approach to the question of whether the services were worthless–looking at the care holistically and finding the care to be worthless. Other mock jurors, apparently persuaded by the defendant’s closing argument, looked at the care as a collection of specific acts and had difficulty finding the care was worthless since not every act of care was deficient. The jurors also struggled to evaluate the difference between merely negligent care and care that was worthless.

Watching the “sausage making” of jury deliberations is always an invaluable experience for trial lawyers, and the ABA’s False Claims Act trial institute provided a fascinating opportunity to watch the process in a trial under the False Claims Act.

2017 ABA False Claims Act Trial Institute Day 1

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The ABA’s 2017 False Claims Act Trial Institute kicked off yesterday at the Washington School of Law at American University. Of course, the first panel of the Institute examined the effect of U.S. Supreme Court’s 2016 decision in Universal Health Services v. U.S. ex rel Escobar on False Claims Act jurisprudence. The panel discussed a number of the issues that have arisen since Escobar.

  1. Is Intervention Relevant to Materiality? The panel discussed the recent circuit court decisions in United States v. Triple Canopy, Inc., in which the court noted that the government’s decision to intervene was evidence of materiality, and United States ex rel. Petratos v. Genentech Inc., in which the court found the government’s decision not to intervene suggested a lack of materiality.
  2. How Much Should the Government’s Payment of Claims Matter to the Materiality Determination? On a related issue, the panel discussed Escobar‘s discussion of the government’s payment of claims despite knowledge of potential violations. The panel recognized that there are many factors that may cause the government to continue making payments despite knowing about possible legal violations, particularly where practical issues preclude the government from simply stopping payments. The panel seemed to agree that the specific facts of the case will determine whether the government’s continued payments are pertinent to the materiality analysis and that continued payment is not dispositive.
  3. Discovery on Materiality Issues? The panel also discussed discovery issues relating to the materiality factors set forth in Escobar. In particular, Escobar‘s recognition that the government’s response to similar violations in the “mine run” of cases is relevant to materiality suggests that some discovery into the government’s actions in similar cases should be allowed.

The second panel discussed the working relationship between relators, relators’ counsel, and government counsel to develop and prosecute cases. Conversely, the third panel addressed False Claims Act case development from the defendant’s perspective.