In U.S. v. AseraCare, the Court entered summary judgment in favor of Bradley Arant client AseraCare and against the government, awarding costs against the plaintiffs as well. A Law360 article described this result as “dealing a blow to the U.S. Department of Justice and capping one of the most extraordinary court battles in FCA history” (login required).
In federal court in Birmingham, a team of Bradley Arant litigators defended AseraCare, a national hospice provider. Department of Justice lawyers from Washington, D.C., represented the government. Based on a mere difference of opinion among physicians as to hospice eligibility, the government contended that AseraCare had violated the False Claims Act (FCA). Relying on statistical extrapolation, the government sought over $200 million from AseraCare, before adding the statutory penalties that could have more than doubled the government’s recovery.
The case tried from early August to October 2015. The Court bifurcated the trial into two phases. The jury reached its phase one result on October 15.
Following the jury’s phase one result, the Court granted an AseraCare motion, ordering a new trial and asking the parties to brief the Court on whether summary judgment should be granted based on the evidence thus far. On March 31, 2016, the Court entered that summary judgment in AseraCare’s favor.
An article in the National Law Review noted that the Court’s opinion “explains and resolves this important FCA legal issue with elegant and devastating simplicity, ensuring that the decision will be a strong and influential precedent for pending and future cases focused on asserting FCA liability for mere clinical disagreements or subjective interpretations of medical record documentation.”
In the Court’s opinion, it wrote “that allowing a mere difference of opinion among physicians alone to prove falsity would totally eradicate the clinical judgment required of the certifying physicians” and that if “all the Government needed to prove falsity in a hospice provider case was one medical expert who reviewed the medical records and disagreed with the certifying physician, hospice providers would be subject to potential FCA liability any time the Government could find a medical expert who disagreed with the certifying physician’s clinical judgment.” The Court “refuse[d] to go down that road.”
Members of Bradley Arant’s trial team included Jack Selden, Chris Christie, Kim Martin, Matt Lembke, Nick Danella, Tiffany deGruy, Erin Sullivan, Aaron Chastain, Fritz Spainhour, Virginia Reeves, Amanda Turnage, Ambria Lankford, and Chris Puri.