United States District Court, N.D. California
UNITED STATES OF AMERICA and STATE OF CALIFORNIA ex rel. LOI TRINH and ED TA-CHIANG HSU, Plaintiffs,
NORTHEAST MEDICAL SERVICES, INC., Defendant.
ORDER GRANTING IN PART MOTION to EXCLUDE EXPERT TESTIMONY (Docket No. 155).
CLAUDIA WILKEN, District Judge.
In this case, the United States of America and the State of California (collectively, the Governments) assert claims against North East Medical Services, Inc. (NEMS) under the federal False Claims Act (FCA) and the California False Claims Act (CFCA), related to NEMS's obligations under the Medicaid and Medicare Acts. NEMS asserts counterclaims for declaratory and injunctive relief.
NEMS seeks an order excluding the expert report and testimony of Stan Rosenstein, or, in the alternative, an order requiring that the Governments supplement Mr. Rosenstein's expert report and thereafter granting NEMS an opportunity to supplement its rebuttal expert disclosures. After considering the parties' submissions, the Court GRANTS NEMS's motion IN PART.
NEMS is a nonprofit healthcare organization which provides medical services to low-income communities in the San Francisco Bay Area, and which receives funding from the United States and the State of California under the Medicaid and Medicare programs for operating as a "federally-qualified health center." As a condition of this funding, NEMS is required to report certain information about its operations and finances to the Governments.
In May 2014, after deciding dispositive motions, the Court entered a scheduling order that provided a deadline of June 30, 2014 for expert disclosures and reports. Stip. (Docket No. 149); Order (Docket No. 150) (granting stipulation). On June 30, 2014, the Governments served Mr. Rosenstein's report on NEMS. Decl. Fox. ¶ 4 (Docket No. 157); Gov'ts' Exs. A1-A2 (Docket Nos. 158-1; 158-2). On July 1, 2014, NEMS objected by email that, among other things, Mr. Rosenstein's report did not sufficiently identify the facts and data that he had relied upon in reaching his opinions. Decl. Bacon Ex. B (Docket No. 155-2).
On July 3, 2014, the Governments served NEMS with a supplemental report which provided more detail about facts and data that Mr. Rosenstein relied upon. Decl. Bacon Ex. C (Docket No. 155-3). NEMS again objected that the supplemental report did not sufficiently identify the facts and data that Mr. Rosenstein considered. Specifically, NEMS requested that Mr. Rosenstein produce or identify by Bates number certain documents or document sets named in his report and supplement; that he identify and provide version numbers and complete citations for certain government documents he may have considered; and that he produce or identify by Bates number the facts and data used to create three tables contained in his report. Gov'ts' Ex. B (Docket No. 158-3). On July 8, 2014, the Governments responded that they believed Mr. Rosenstein's report, as supplemented, "fully satisfies the disclosure requirements of Rule 26(a)(2), " and that the documents relied upon "were produced in the course of discovery and are in NEMS's possession." Id . Two days later, on July 10, 2014, NEMS made this motion. On July 14, 2014, NEMS served upon the Governments its rebuttal expert report. Decl. Fox ¶ 9.
In its motion, NEMS argues (1) that Mr. Rosenstein's expert report should be excluded as both untimely under the Court's scheduling order and insufficient under Federal Rule of Civil Procedure 26(a)(2); and (2) that his report sets forth a new theory not articulated in the Governments' amended complaint-in-intervention and, therefore, that it runs afoul Federal Rule of Civil Procedure 9(b).
I. Rules 26 and 37
Federal Rule of Civil Procedure 26(a)(2)(B) requires that an expert witness's written report must include:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or ...