The opinion of the court was delivered by: Simandle, District Judge
This matter is before the Court on three motions in limine filed by the parties in advance of a jury trial in this case. Defendants have moved to disqualify Plaintiff's proposed expert on liability and damages, Lamar Blount [Docket Item 74]. Plaintiff has moved to disqualify Defendants' proposed liability experts Dr. Alan Tice and Dr. Philip Paparone, or in the alternative to limit their testimony [Docket Item 82]. Plaintiff also asks the Court to preclude Defendants from referring to the fact that the United States elected not to intervene in this case and has not initiated a criminal prosecution against Defendants [Docket Item 80] and Defendants do not oppose this request.
For the reasons the Court will discuss below, the Court will deny as moot Defendants' motion to exclude Mr. Blount's testimony regarding the meaning of the governing Medicare regulations (but will narrow that testimony because the issues on which Mr. Blount was to testify were decided by this Court's summary judgment decision) and deny Defendants' motion to exclude Mr. Blount's testimony regarding false claims and compensatory damages. The Court will determine the admissibility of Mr. Blount's summary chart before trial. The Court will further provide Plaintiff an opportunity to provide Mr. Blount's supplemental rebuttal opinion regarding industry practice for physicians billing Medicare "incident to" their services, but will not determine the admissibility of that testimony at this stage.
As to Plaintiff's motions, the Court grants Plaintiff's request to limit the testimony of Dr. Tice and Dr. Papparone, but declines to exclude their testimony entirely. The Court will also grant Plaintiff's unopposed request to preclude reference to the government's decision not to intervene and not to initiate (so far) prosecution against Defendants. The Court will not determine, at this stage, whether Defendants may tell the jury that their verdict could be tripled and the punitive damages could be added.
This is a qui tam action under the False Claims Act ("FCA"), 31 U.S.C. § 3729, in which the United States has declined to intervene. Plaintiff Silvana Landau has alleged that Dr. Christopher Lucasti and his practice, South Jersey Infectious Diseases, Inc. ("SJID"), knowingly presented false claims to the United States in which they sought payment from Medicare for services "incident to" Dr. Lucasti's outpatient intravenous antibiotic therapy treatment, when Dr. Lucasti was not actually present in his office during the infusions.
Of the three prongs of the FCA,*fn1 only the scienter prong remains in dispute. There is no dispute that Defendants presented claims for payment to the United States (through the Centers for Medicare and Medicaid Services ("CMS") and its predecessor Health Care Financing Administration ("HCFA")). Further, the Court in its January 6, 2010 Opinion and Order determined that Medicare regulations 42 C.F.R. § 410.26(b)(5) and 410.32(b)(3)(ii) in effect on and after January 1, 2002*fn2 require a physician to be physically present in the office suite when billing Medicare for outpatient infusion therapy at the physician services rate, and "[t]o the extent a physician is not present as required, yet bills Medicare for a service incident to the services of a physician, that claim violates the Medicare requirement and is false." Landau v. Lucasti, --- F. Supp. 2d ----, 2010 WL 93282, at *11 (D.N.J. 2009). Nevertheless, the Court denied Plaintiff' summary judgment on the issue of scienter, finding that expert testimony from Dr. Allan Tice that it was accepted practice within the field "not to abide by the plain meaning of Section 410.26" created a question for a jury because a reasonable fact-finder "could find that a reasonable and prudent doctor would be satisfied by the experts in his own field and was merely negligent in not taking further steps to learn that the plain language of the regulations did apply to his practice." Id. at *10.
II. DEFENDANTS' MOTION TO DISQUALIFY PLAINTIFF'S EXPERT L. LAMAR BLOUNT AND STRIKE HIS EXPERT REPORTS
Mr. Blount and his wife, Carolyn Blount, make up Health Law Network, Inc., a business that provides expert healthcare witnesses, compliance, and litigation support. Mr. Blount has been a Certified Healthcare Financial Professional since 1997 and was a healthcare financial consultant and auditor from 1974 to 2002, when he began his litigation support practice. (Blount June 30, 2009 Report App. C.) Mr. Blount is also a Certified Public Accountant. (Id.) He has over thirty years experience with healthcare auditing and financial consulting, including Medicare reimbursement planning. (Blount Aff. ¶¶ 3-7; Blount June 30, 2009 Report App. C.) At Health Law Network, Mr. Blount focuses on Medicare and Medicaid compliance, False Claims Act cases, hospital and physician reimbursement, clinical documentation, ICD (disease classifications) and CPT (procedural classifications) codes, and billing disputes. (Blount Aff. ¶ 7.) Mr. Blount has lectured on Medicare compliance and published on the subject, including a chapter on "incident to" services and Medicare compliance (encompassing the direct supervision requirement) in Mastering the Reimbursement Process, published by the American Medical Association. (Blount Aff. ¶¶ 9-13; Blount June 30, 2009 Report App. C.)
Plaintiff retained Health Law Network to answer the following questions:
(1) Does Medicare require the presence of a physician during the administration of infusion therapy if the physician bills for the service?
(2) Did Dr. Lucasti meet Medicare's requirements in billing for infusion therapy services?
(3) If Dr. Lucasti did not meet Medicare's requirements for billing infusion therapy services, what is the amount improperly billed to and reimbursed by Medicare?*fn3
The bulk of Defendants' motion to disqualify Mr. Blount and exclude his reports turns on his qualifications to render his opinion upon the meaning of the Medicare regulations governing "incident to" and their applicability to infusion therapy. The Court need not determine whether Mr. Blount is qualified to render his opinion upon this question, because that question has been decided as a matter of law and should not be presented to the jury. The Court has found that the Medicare regulations on and after January 1, 2002 required Dr. Lucasti to be physically present in his office suite and available during infusion therapy provided incident to his services. Because this question is not to be decided by the jury, Mr. Blount's testimony on the subject ...