Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States ex rel. Bahnsen v. Boston Scientific Neuromodulation Corp.

United States District Court, D. New Jersey

December 15, 2017




         This matter comes before the Court on a Motion for Summary Judgment filed by Plaintiffs Wendy Bahnsen and Carolina Fuentes (collectively "Plaintiffs").[1] D.E. 296. Defendant Boston Scientific Neuromodulation Corporation ("BSNC" or "Defendant") filed a brief in opposition, D.E. 309, to which Plaintiff replied. D.E. 336.[2] The Court reviewed the submissions made in support and in opposition of the motion and considered the motion without oral argument pursuant to Fed.R.Civ.P. 78(b) and L. Civ. R. 78.1(b). For the reasons that follow, Plaintiffs' motion for summary judgment is GRANTED in part and DENIED in part.[3]


         A. Factual Background[4]

         Defendant BSNC is a wholly owned subsidiary of Boston Scientific Corporation. Plaintiffs' Amended Complaint ("Am. Compl.") ¶ 16; D.E. 19. During the relevant time period, BSNC "marketed, sold, supplied and submitted claims for a range of medical devices and related equipment, including the Precision Plus™ SCS[Spinal Cord Simulation] System." Id. As a government supplier of medical equipment, BSNC was responsible for responding to requests to replace external equipment. Its Billing and Collections Department was responsible for processing the necessary documentation. Id. ¶ 27.

         BSNC employed Plaintiff Bahnsen in its Valencia, California office from March 2008 through October 2009. Plaintiffs' Statement of Material Facts Not In Dispute ("PSOMF") ¶ 1; D.E. 296-2. From March 2008 through January 2009, Ms. Bahnsen worked in BSNC's Customer Service Department. Am. Compl. ¶ 8. In January 2009, BSNC transferred Ms. Bahnsen to its Billings and Collections Department to work as a Reimbursement and Claims Management Specialist. Id.

         In March 2009, Ms. Bahnsen entered into an "Agreement Concerning Employment for U.S. Employees" ("Bahnsen Agreement") with Boston Scientific Corporation. PSOMF ¶ 3. Massachusetts law governs the contract. Def. Opp. at 8. The agreement contains a clause whereby Ms. Bahnsen promised that if BSNC terminated her employment, she would "immediately deliver to Boston Scientific all property owned by Boston Scientific, and all documents and materials of any nature containing any Proprietary Information, without retaining any copies." Defendant's Counterclaims ("Def. CC") ¶ 10; D.E. 84. The agreement also has a "Remedies for Breach" provision that states, "[a]ny breach of this Agreement is likely to cause Boston Scientific substantial and irrevocable damage[.]" Id. ¶ 12. BSNC terminated Ms. Bahnsen's employment on October 15, 2009. Id. ¶ 14.

         BSNC employed Plaintiff Fuentes in its Valencia office from May 2005 through June 2010. PSOMF¶2. From her hiring through March 2008, Ms. Fuentes worked as the Administrative Assistant to BSNC's Vice President of Health Economics and Reimbursement. Am. Compl. ¶ 13. In February 2009, after Ms. Fuentes returned to work from medical leave, BSNC transferred her to its Billing and Collection Department. Defendant's Supplemental Statement of Material Facts Not In Dispute ("DSSOMF") ¶ 1; D.E. 309-1.

         In August 2005, Ms. Fuentes entered into an "Employee Invention and Confidential Information Agreement Policy Letter 2" ("Fuentes Agreement") with Advanced Bionics (a predecessor to BSNC). PSOMF ¶¶ 2, 4, 7. California law governs the Fuentes Agreement. Def. Opp. at 8. The agreement includes a clause requiring Ms. Fuentes "during the term of [her] employment and thereafter, [to] keep confidential and refrain from using or disclosing to others all confidential information .. . which Employee develops or learns about during the course of [her] employment." Def. CC. ¶ 7. BSNC terminated Ms. Fuentes' employment on October 15, 2009. Id. ¶ 13.

         In early 2008, Ms. Fuentes copied the contents of her work laptop onto a thumb drive. At the time, Ms. Fuentes position was an Administrative Assistant. The parties dispute why Ms. Fuentes took this action. Plaintiffs claim that Ms. Fuentes acted from concern that "her supervisor was out to get her, and [because she] wanted to protect herself against retaliation." PSOMF ¶ 7. Defendant claims Ms. Fuentes acted "to defend her work performance as an Administrative Assistant." DSSOMF ¶ 7(a).

         Over the course of their employment in BSNC's Billing and Collections Department, Plaintiffs allege that they became aware of BSNC's illegal billing practices. PI. MSJ at 2. This led Plaintiffs to speak with Dr. Joseph Piacentile, [5] a former False Claims Act[6] ("FCA") whistleblower and whistleblower consultant, at some time between September and October 2009. Dr. Piacentile advised Plaintiffs to obtain copies of documents that evidenced BSNC's illegal billing practices. PSOMF ¶ 8; DSSOMF ¶ 16. Plaintiffs then consulted attorneys about bringing a False Claims Act ("FCA") suit against BSNC for its illegal billing practices. PSOMF ¶ 10. Thereafter, Plaintiffs took "from BSNC's offices copies of CMS-1500 forms, reports from the Zirmed system, and medical documentation like written orders from physicians, pertaining to claims that had already been submitted to Medicare." PSOMF ¶ 9.

         In March 2011, Plaintiffs filed a qui tarn Complaint alleging that BSNC submitted false claims to the Government in violation of the FCA, 31 U.S.C. § 3729 et. seq. Def. CC. ¶ 16. Plaintiffs then filed an Amended Complaint in September 2012. D.E. 19. Plaintiffs allege that Defendant became aware that they had removed BSNC documents years before they filed their suit. PSOMF ¶ 11. Defendant, however, claims that although in October 2009 Ms. Bahnsen's husband told BSNC that Ms. Bahnsen "had stolen company documents, " BSNC "did not have actual knowledge of the misappropriation until it received the Amended Complaint." DSSOMF ¶ 11(a). Defendant claims that one week after receiving the Amended Complaint it hired the law firm of Norton Rose Fulbright U.S. LLP ("Norton Rose")[7] to investigate BSNC's potential regulatory exposure from Plaintiffs' actions and suggest mitigation tactics. BSNC paid Norton Rose $30, 834 for this work. DSSOMF ¶¶ 19-20.

         In December 2013, after Plaintiff began producing the copied documents to BSNC, Defendant also hired a forensic investigative firm, Computer Forensic Services, Inc. ("CSF"). Id. ¶¶ 23-25. BSNC asked CSF to determine what documents and information Plaintiff might have taken from BSNC. Defendant paid CSF $37, 381.25 for its services. Id. ¶¶ 25-26.

         In January 2014, Defendant filed amended counterclaims against Plaintiffs. In its counterclaims, Defendant alleges that Plaintiffs' copying and sharing of BSNC documents breached the terms of both their agreements with BSNC. Def CC. ¶¶ 25-34; PSOMF ¶¶ 3-4.

         B. Procedural Background

         Plaintiffs filed the aforementioned Complaint and Amended Complaint. In response, Defendant filed motions to strike, to dismiss the Amended Complaint, and to disqualify Plaintiffs' counsel. D.E. 28-30. Of note, Defendant moved to strike "Confidential and Protected Information" from the Amended Complaint, alleging that Plaintiffs' use of BSNC's information violated the Health Insurance Portability and Affordability Act ("HIPPA"). D.E. 28. Judge Wigenton denied all three of Defendant's motions, including Defendant's motion concerning HIPPA information. D.E. 49.

         On June 28, 2013 Defendant filed an Answer to the Amended Complaint and raised counterclaims against Plaintiffs. D.E. 54. On January 23, 2014, Defendant amended its counterclaims. D.E. 84. In response, Plaintiffs moved to dismiss the amended counterclaims. D.E. 85. Judge Wigenton denied Plaintiffs'motion. D.E. 132.

         On December 22, 2014 the case was reassigned from Judge Wigenton to Judge Arleo. D.E. 149. Then, on March 1, 2016, the case was again reassigned from Judge Arleo to the undersigned. D.E. 226. The Court thereafter granted the parties' stipulated voluntary partial dismissal. D.E. 293. Plaintiffs moved for summary judgment on January 27, 2017. D.E. 296. Defendant filed a brief in opposition, D.E. 309, to which Plaintiff replied. D.E. 336.


         A moving party is entitled to summary judgment where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact in dispute is material when it "might affect the outcome of the suit under the governing law" and is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts will not preclude granting a motion for summary judgment. Id. "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the nonmoving party's evidence 'is to be believed and all justifiable inferences are to be drawn in his favor.'" Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255)). A court's role in deciding a motion for summary judgment is not to evaluate the evidence and decide the truth of the matter but rather "to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.

         A party moving for summary judgment has the initial burden of showing the basis for its motion and must demonstrate that there is an absence of a genuine issue of material fact. Celotex Corp. v. Catrett,477 U.S. 317, 323 (1986). After the moving party adequately supports its motion, the burden shifts to the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. at 324 (internal quotation marks omitted). To withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict the moving party. Anderson, 477 U.S. at 250. "[I]f the non-movant's evidence is merely 'colorable' or ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.