United States District Court, D. New Jersey
UNITED STATES OF AMERICA, ex rel. WENDY A. BAHNSEN, et al, Plaintiffs,
BOSTON SCIENTIFIC NEUROMODULATION CORPORATION, Defendant.
OPINION & ORDER
MICHAEL VAZQUEZ, U.S.D.J.
pending before before the Court, in this False Claims Act
case, is a motion in limine filed by Defendant
Boston Scientific Neuromodulation Corporation
("BSNC" or "Defendant"), which seeks to
exclude certain evidence regarding claims data. D.E. 420.
Plaintiffs Wendy Bahnsen and Caroline Fuentes (collectively
"Plaintiffs") filed a brief in opposition (D.E.
421), to which Defendant replied (D.E. 422). The Court
reviewed the submissions made in support and in opposition,
and considered this motion without oral argument pursuant to
Federal Rule of Civil Procedure 78(b) and Local Civil Rule
78.1(b). For the reasons that follow, Defendant's motion
is GRANTED in part and
DENIED in part.
seeks to exclude certain evidence, such as individual line
entries, unprocessable entries, adjusted line entries, voided
line entries, and duplicate submissions. BSNC argues that the
information does not qualify as "claims" under the
False Claims Act ("FCA"), 31 U.S.C. Â§ 3729 et
al. The information is apparently derived from
spreadsheets that were produced in discovery by a third-party
Medicare Administrative Coordinator ("MAC").
Plaintiffs respond that the motion is not appropriate because
it addresses an issue that should have been resolved by
summary judgment. Alternately, Plaintiff argues that all
entries on the spreadsheet are in fact claims under the FCA,
or at a minimum, that a jury should decide whether the
relevant entries qualify as claims.
outset, the Court does not understand Plaintiffs'
argument concerning summary judgment because the Court
expressly permitted BSNC to raise this issue by way of a
motion in limine rather than deciding it at the
summary judgment stage. D.E. 388 at 30. Consequently,
Defendant's motion is proper. However, there is
additional information that the Court needs in order to
definitively rule on the motion at hand. In the Court's
view, both parties to some extent advocate for a definition
of claim that is not consistent with the FCA. As a result,
the Court will review the relevant law as to what constitutes
a claim for FCA purposes before turning to the parties'
arguments. In addition, the Court will rule on the motion to
the extent possible, given the information that is currently
available to the Court.
UNDER THE FCA The FCA provides, in relevant
part, as follows:
[A]ny person who-
(A) knowingly presents, or causes to be presented, a false or
fraudulent claim for payment or approval;
(B) knowingly makes, uses, or causes to be made or used, a
false record or statement material to a false or fraudulent
claim; is liable to the United States Government for a civil
penalty of not less than $5, 000 and not more than $10, 000,
. . . plus 3 times the amount of damages which the Government
sustains because of the act of that person.
31 U.S.C. § 3729(a). Thus, a violation occurs when a
claim is "presented]." Id. In addition,
only claims that "cause or would cause economic loss to
the government" are subject to the FCA. Hutchins v.
Wilentz, Goldman & Spitzer, 253 F.3d 176, 179 (3d
Cir. 2001). Accordingly, attempts are also subject to FCA
liability. Id. at 184 (stating that the FCA
"seeks to redress fraudulent activity which attempts to
or actually causes economic loss to the United States
imposes two types of financial liability. First, a submitter
of a "false or fraudulent claim" (or false
record/statement vis-a-vis such a claim) is liable for a
civil monetary penalty between $5, 000 to $10, 000 per claim.
31 U.S.C. § 3729(a); United States v.
Bornstein, 423 U.S. 303, 313 (1976). This penalty will
be imposed for false claims that are actually paid by the
government, in addition to attempted false claims. United
States ex rel. Schwedt v. Planning Research Corp., 59
F.3d 196, 199 (D.C. Cir. 1995) ("[E]ven if the claim is
rejected, its very submission is a basis for
liability."). Second, the submitter of the claim is also
liable for actual damages, which are trebled under the FCA.
31 U.S.C. § 3729(a)(1)(G); see also United States v.
Anchor Mortg. Corp., 711 F.3d 745, 748 (7th Cir. 2013)
(stating that the "statute requires treble
further defines "claim":
(2) the term "claim"-
(A) means any request or demand, whether under a contract or
otherwise, for money or property and whether or not the
United States has title to the money or property, that-
(i) is presented to an officer, employee, or agent of the
United States; or
(ii) is made to a contractor, grantee, or other recipient, if
the money or property is to be spent or used on the
Government's behalf or to advance a Government program or