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					    Case 2:09-cv-03506-HGB-JCW Document 16-1                  Filed 06/15/10 Page 1 of 14




                           UNITED STATES DISTRICT COURT
                           EASTERN DISTRICT OF LOUISIANA

MARY WAGEMANN; UNITED STATES *                               CIVIL ACTION NO. 09-3506
                             *
OF AMERICA, EX REL; MARY WAGEMAN;
MEDICAL ASSITANCE PROGRAMS EX*                               SECTION “C”
REL; MARGY WAGEMANN          *
               Plaintiffs    *                               MAGISTRATE “2”
                             *
VERSUS                       *
                             *
          S
DOCTOR’ HOSPITAL OF SLIDELL, *
L.L.C., PETER H. HERTZAK     *
                  Defendants *
                             *
*****************************

                             MEMORANDUM IN SUPPORT OF
                              MOTION TO DISMISS CLAIMS

MAY IT PLEASE THE COURT:

       The Complaint (the “Complaint”) filed by Mary Wagemann (the “Relator”) against

       s
Doctor’ Hospital of Slidell, L.L.C. (“Hospital”) and Doctor Peter J. Hertzak (“Hertzak”)

(collectively “Defendants”) attempts to raise a cause of action pursuant to the False Claims Act,

31 U.S.C. 3729 et seq., and is replete with conclusory allegations, including those of purported

fraud. The bare allegations contained in the Complaint, however, do not meet the requirements

of the Federal Rules of Civil Procedure for pleading fraud. In fact, the Relator fails to identify a




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single specific false claim (i.e., fraud), which is an absolutely necessary requirement for alleging

a claim pursuant to the False Claims Act (“FCA”).

           Even if the Relator had plead fraud with the required specificity, which Defendants

vehemently deny, she has not stated a cause of action under the FCA because she has not, and

cannot, show how any of the purportedly fraudulent actions of Defendants were material to the

           s
government’ decision to pay a claim - a critical element to maintaining a claim under the FCA.

           Accordingly, the claims raised pursuant to Section 3729 of the FCA in Relator’s

Complaint should be dismissed with prejudice and the Court should award Defendants their

                                                        s
reasonable attorneys’fees and expenses based on Relator’ claim under Section 3729 of the FCA

being clearly frivolous, vexatious and brought primarily for the purposes of harassment and to

bolster her state law claims.

           In addition, the claims raised against Hertzak pursuant to Section 3730(h) of the FCA and

La. R.S. 23:967 should be dismissed as Hertzak is not the employer of Relator.

I.                     s
           The Relator’ FCA Complaint Must Meet the Requirements for Pleading Fraud
           With Particularity

           A.       Because the FCA requires allegations of fraud, a complaint under the FCA
                    must comply with Rule 9(b)

           All claims that are brought pursuant to the FCA must comply with the requirements of

Rule 9(b) of the Federal Rules of Civil Procedure.1 Rule 9(b) applies to FCA claims because this

type of complaint necessarily contains allegations of fraud in that the conduct to which liability

attaches consists, in part, of false statements or claims for payment presented to the

Government.2


1
  United States ex rel. Russell v. Epic Healthcare Management Corp., 193 F.3d 304, 308 (5th Cir. 1999); United
States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 903 (5th Cir. 1997).
2
    Russell, 193 F.3d at 308; Thomspon, 125 F.3d at 903.


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            B.       The purpose of Rule 9(b)

            Rule 9(b) serves three (3) main purposes. Initially, it ensures that the defendant will have

sufficient information relating to the alleged fraud to defend against the allegation.3 The Rule is

also designed to act as a bar against unfounded allegations and to prohibit a plaintiff from

bringing a claim as a pretext for discovery into unknown wrongs. 4 Finally, the higher standard

stems from the obvious concern that general, unsubstantiated charges of fraud can do damage to

the reputation of the purportedly fraudulent party.5 Without the requirements of Rule 9(b), a

plaintiff could allege fraud solely on speculation and conclusory allegations.6 Rule 9(b) forbids

such pleadings.7

            C.                 s
                     Rule 9(b)’ general requirements

            Rule 9(b) provides that “[i]n all averments of fraud . . . circumstances constituting fraud .

. . shall be stated with particularity.”8 In order to plead fraud with particularity, the plaintiff must

include the “time, place and contents of the false representations, as well as the identity of the

person making the misrepresentation and what [that person] obtained thereby”.9 In other words,

at a minimum, Rule 9(b) requires the plaintiff to disclose the “who, what, when, where and how”




3
    Tuchman v. DVC Communication Corp., 14 F.3d 1061, 1067 (5th Cir. 1994).
4
    Id.
5
    Guidry v. Bank of Laplace, 954 F.2d 278, 281 (5th Cir. 1992).
6
    Thomspon, 125 F.3d at 903.
7
    United States ex rel. Williams v. Bell Helicopter Textron, Inc., 417 F.3d 450, 454 (5th Cir. 2005).
8
    Fed. R. Civ. P. 9(b).
9
    Russell, 193 F.3d at 308 (internal quotations omitted).




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of the alleged fraud.10 The failure of a plaintiff to meet these conditions and, thus, plead fraud in

compliance with Rule 9(b), is considered a failure to state a claim under Rule 12(b)(6).11

            D.       Even allegations upon information and belief must comply with Rule 9(b)

                                     s
            Even where the plaintiff’ allegations are based upon information and belief, it is still

necessary for the Complaint to set forth a factual basis for such a belief. 12 Such allegations “must

not be taken for license to base claims of fraud on speculation and conclusory allegations.”13 The

unavailability to the plaintiff of documents containing the requisite information does not excuse

compliance with Rule 9(b).14

            With respect to the FCA, the Fifth Circuit has explicitly declined to relax Rule 9(b),

finding that such a court-crafted exception would be contrary to both the Rule and the FCA,

particularly given that the FCA grants a private right of action only to those persons who “have

independently obtained the knowledge of fraud.”15 “A special relaxing of Rule 9(b) is a qui tam

plaintiff’ ticket to the discovery process that the statute itself does not contemplate.”16
          s

            E.       Specific Requirements of the Fifth Circuit for Rule 9(b)

            In the Fifth Circuit, the specific requirements for satisfying “particularity” under Rule

9(b) are as follows:

            In summary, whether the averments are upon “information and belief” or upon
            actual knowledge, the plaintiff must specify: (1) precisely what statements were

10
  Thomspon, 125 F.3d at 903 (internal quotations omitted). The “particularity” requirement of Rule 9(b) means the
“who, what, when, where and how: the first paragraph of any newspaper story.” Dileo v. Ernst & Young, 901 F.2d
624, 627 (7th Cir.), cert. denied, 498 U.S. 941, 111 S.Ct. 347 (1990).
11
     Russell, 193 F.3d at 308; Thompson, 125 F.3d at 901.
12
     Id.
13
  United States ex rel. Willard v. Humana Health Plan of Texas, 336 F.3d 375, 385 (5th Cir. 2003) (internal
quotations omitted).
14
     Russell, 193 F.3d at 308.
15
     Id. at 308-9.
16
     Id. at 309.


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           made and what documents or oral representations or what omissions were made
           and (2) the time and place of each such statement and the person responsible for
           making (or, in the case of omissions, not making) the same, (3) the contents of
           such statements and the manner in which they misled the plaintiff, and (4) what
           the defendants obtained as a consequence of the fraud.17

General allegations which do not state with particularity what representations the defendant

made do not meet the particularity requirement of Rule 9(b).18

II.        The False Claims Act

           The FCA only “interdicts material misrepresentations made to qualify for government

privileges or services.”19 Consequently, the mere submission of an inaccurate claim to the

Government does not constitute a false or fraudulent claim under the FCA.

           Under the FCA, it is only persons who (a) knowingly present false or fraudulent claims to

the United States (“Government”) for payment or approval or (b) knowingly make, use, or cause

to be made or used a false record or statement to get a false or fraudulent claim paid or approved

by the Government, that may be subject to civil penalties.20

           The FCA emphasizes that, although no specific intent to defraud is required, the term

“knowingly” requires that in order to rise to the level of a fraudulent or false claim under the

FCA, the person presenting the claim to the government must: (a) have actual knowledge of the

information presented; (b) act in deliberate ignorance of the truth or falsity of the information; or

(c) act in reckless disregard of the truth or falsity of the information.”21




17
     Guidry, 954 F.2d at 288 (internal quotations omitted).
18
     Unimobil 84, Inc. v. Spurney, 797 F.2d 214, 217 (5th Cir. 1986).
19
     Id. (internal quotations omitted).
20
     31 U.S.C. 3729(a)
21
     Id.


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III.       Alleging a General Methodology Under the FCA Is Not Sufficient

           In the FCA context, the mere allegation of a general scheme or methodology of fraud is

insufficient to meet the requirement of Rule 9(b); rather, specific instances must be alleged with

particularity.22

           Simply put, the Relator must plead which specific claims by Defendants were allegedly

fraudulent, identify the persons submitting those claims, state when and where those claims were

submitted and explain why those claims were fraudulent.23

IV.                    s
           The Relator’ Complaint Does Not Meet the Minimum Requirements for Pleading
           Fraud under the FCA

           In this case, the Relator does not (and cannot) meet the requirement for satisfying Rule

9(b). Despite being a requirement for advancing a claim brought pursuant to the FCA, the

Relator does not allege any single specific fraudulent claim submitted to the Government by

                                 s
Defendants. Instead, the Relator’ Complaint only alleges a general “scheme” (containing a

mechanical recitation of elements of a FCA claim) whereby Defendants allegedly submitted

fraudulent claims to the Government.24




22
   See, e.g., United States ex rel. Williams v. Bell Helicopter Textron, Inc., 417 F.3d 450, 453-54 (5th Cir. 2005)
(allegations that fail to plead any particular facts of wrongdoing or the knowledge thereof on the part of the
corporation are too general and conclusory to state a claim pursuant to the FCA); Yuhasz v. Brush Wellman, Inc.,
341 F.3d 559, 563-64 (6th Cir. 2003) (the failure of the Complaint to contain particularized allegations of
wrongdoing with respect to fraudulent submittals to the Government requires dismissal); United States ex rel.
Clausen v. Laboratory Corp. of America, Inc., 290 F.3d 1301, 1312 (11th Cir. 2002) (failure to allege with
particularity that “actual improper claims were submitted to the Government is indeed fatal”); United States ex rel.
                                                                                                      s
Butler v. Magellan Health Services, Inc., 101 F.Supp.2d 1365, 1369 (M.D.Fl. 2000) (plaintiff’ pleading of a
fraudulent scheme of conduct is insufficient pursuant to the FCA; specific occurrences of false claims must be pled);
United States ex rel. Walsh v. Eastman Kodak Co., 98 F.Supp.2d 141, 147 (D.Mass. 2000) (the setting out of a
methodology by which the defendant might have produced false claims without citing a single false claim is
insufficient); United States ex rel. Schwartz v. Coastal Healthcare Group, Inc., 2000 WL 1595976 (10th Cir. 2000)
(Rule 9(b) not satisfied by allegations of a general scheme or methodology by which the FCA could have been
violated without identifying with particularity the claims for payment that were allegedly fraudulent).
23
     See Williams v. WMX Tech., Inc., 112 F.3d 175, 177 (5th Cir. 1997).
24
     See paragraph XI of the Complaint.


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        The aforesaid allegations by the Relator do not set forth any facts concerning specific acts

of fraud; rather, they merely state general conclusions without identifying the “who, what, when,

where and how” that is necessary in order to state a claim pursuant to the FCA. The Relator’s

failure to cite a single specific false claim submitted to the Government renders the Complaint

insufficient to state a claim as a matter of law.

        The recent decision of the Fifth Circuit in United States ex rel. Williams v. Bell

Helicopter Textron, Inc., 417 F.3d 450 (5th Cir. 2005), presents an example of where the district

court properly concluded that a qui tam Complaint was too general and conclusory to satisfy the

particularity requirements set forth in Rule 9(b).

                              s                                          s
        In the district court’ original opinion dismissing the plaintiff’ Complaint in that case, it

explained:

                    s
        … plaintiff’ allegations do not meet Rule 9(b) standards of particularity. While
        many allegations specifically identify the individuals involved in alleged
        wrongdoing, such as overcharging [the government] for contract work performed
        for Bell, they do not allege the “who, what, when, where and how” of the false
        claim submitted to the government. Knowingly submitting the false or fraudulent
        claim is the FCA violation, and must be pleaded with particularity, not the
        wrongdoing that may, or may not, have been improperly billed to the United
        Stated by Bell.25

        Following the initial opinion issued by the district court, the plaintiff amended his

Complaint bringing it to 31 pages in length. The district court then issued another opinion

                         s
dismissing the plaintiff’ Complaint (as amended for the second time), holding:

                                                   s
        The Court has the impression that relator’ scatter-shot complaint has as its goal
        providing a vehicle for pretrial discovery that he hopes will give him knowledge
        that might enable him to succeed in a claim against Bell. This practice is not
                                                                          s
        contemplated by the FCA or Rule 9(b). Moreover, while relator’ current pleading
        contains an abundance of words, that quantity still does not satisfy as to any of the


25
   Memorandum Opinion and Order dated January 5, 2004 at p. 5 (internal quotations omitted), a copy of which is
attached hereto as Exhibit “1”.


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           theories of recovery the “who, what, when, where and how” specificity
           requirement the Fifth Circuit reads into Rule 9(b).26

                                                       s
           As set forth above, a review of the Relator’ qui tam Complaint against Defendants

                                                                                s
reveals that it is woefully deficient; especially in light of the Fifth Circuit’ ruling relating to the

much more factually detailed Complaint in Bell Helicopter. The Relator does not allege the

“who, what, when, where and how” of any false claim having been submitted by the Defendants

                                          s
to the Government. Therefore, the Relator’ Complaint does not meet the Rule 9(b) standard of

pleading fraud with particularity.

V.         Relator Fails To State A Cause Of Action Under Section 3729 Of The FCA

           Not only has the Relator not met her burden of pleading fraud with particularity, she

cannot do so with respect to the allegations set forth in her FCA Complaint as the facts alleged

(even if accepted as true and plead with the required specificity) fail to show one of the key

elements of a FCA Complaint – materiality.

           A.       The 12(b)(6) Standard

           When reviewing a motion to dismiss, the Court must accept all well-plead facts as true.27

However, a plaintiff must plead enough facts to “raise a right to relief above the speculative




26
   Memorandum Opinion and Order dated March 18, 2004 at p.12 (internal quotations omitted), a copy of which is
attached hereto as Exhibit “2”. Also, for the convenience of the Court and to be able to see the Complaint that was
found deficient pursuant to Rule 9(b) by the Fifth Circuit, a copy of the Second Amended Complaint filed by the
plaintiff in Bell Helicopter is attached hereto as Exhibit “3”.
27
     Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).




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level.”28 To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.29

           The United States Supreme Court has promulgated a “two-pronged approach” to

determine whether a complaint states a plausible claim for relief.30 The Court must first identify

those pleadings that, “because they are no more than conclusions, are not entitled to the

assumption of truth.”31 In addition, the mere formulaic recitation of an element of a claim is not

to be assumed true without more specific factual allegations.32 Legal conclusions “must be

supported by factual allegations.”33

           When identifying the well-plead factual allegations, the Court must then “assume their

veracity and then determine whether they plausibly give rise to an entitlement to relief.”34 A

claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged. 35 This is a

“context-specific task that requires the reviewing court to draw on its judicial experience and

common sense.”36 The “sheer possibility” that plaintiff’ claim is true is insufficient.37
                                                        s


28
   Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965 (2007); Rhodes v. Prince, 2010 WL 114203
at 2 (5th Cir. 2010); Pinero v. Jackson Hewitt Tax Service, Inc., 638 F.Supp.2d 632, 636 (E.D.La. 2009); Able
Security and Patrol, L.L.C. v. Louisiana, 2010 WL 1294053 (E.D.La. 2010); Yanesky v. St. Tammany Parish School
Board, 2010 WL 1254586 (E.D.La. 2010).
29
  Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570); Rhodes, 2010 WL at 2;
Gonzales v. Kay, 577 F.3d 600, 603 (5th Cir. 2009); Floyd v. City of Kenner, La., 351 Fed.Appx. 890, 892 (5th Cir.
2009); Pinero, 638 F.Supp.2d at 636; Able Security, 2010 WL at 1; Yanosky, 2010 at 1.
30
     Iqbal, 129 S.Ct. at 1950; Rhodes, 2010 WL at 2; Able Security, 2010 WL at 1; Yanosky, 2010 WL at 1.
31
     Iqbal, 129 S.Ct. at 1950; Rhodes, 2010 WL at 2; Able Security, 2010 WL at 1; Yanosky, 2010 WL at 1.
32
     Iqbal, 129 S.Ct. at 1950; Floyd, 551 Fed.Appx. at 896; Pinero, 638 F.Supp.2d at 636; Able Security, 2010 WL at
1.
33
     Id.
34
  Iqbal, 129 S.Ct. at 1950; Floyd, 351 Fed.Appx. at 896; Rhodes, 2010 WL at 2; Able Security, 2010 WL at 1;
Yanosky, 2010 WL at 1.
35
     Iqbal, 129 S.Ct. at 1950; Rhodes, 2010 WL at 2; Floyd, 351 Fed.Appx. at 892-3; Pinero, 638 F.Supp.2d at 636.
36
     Iqbal, 129 S.Ct. at 1950; Rhodes, 2010 WL at 2; Floyd, 351 Fed.Appx. at 892-3.


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           B.       Elements Of A FCA Claim

           For defendants to be liable under 31 U.S.C. 3729(a)(1), courts agree that a plaintiff must

demonstrate that: (1) the defendants made a claim with a governmental entity, (2) the claim was

false or fraudulent and (3) the defendant knew the claim was false or fraudulent.38 Similarly, to

recover against a defendant under 31 U.S.C. 3729(a)(2), the plaintiff must show that: (1) the

defendant made a record or statement in order to get the government to pay money, (2) the

record or statement was false or fraudulent and (3) the defendant knew it was false or

fraudulent.39

           Although the statute contains no express reference to materiality, many courts, including

the Fifth Circuit, have found that there is a fourth, “materiality” element required to maintain a

cause of action under the FCA.40 The Fifth Circuit notes that in examining statutes similar to the

civil FCA, the United States Supreme Court has defined “material” as “ha[ving] a natural

tendency to influence, or [being] capable of influencing, the decision of the decision making

body to which it was addressed.”41




37
     Id.; Pinero, 638 F.Supp2d at 636.
38
   See, e.g., U.S. v. Southland Management Corp., 288 F.3d 665, 675 (5th Cir. 2002); United States v. Basin Elec.
Power Coop., 248 F.3d 781, 803 (8th Cir. 2001); United States ex rel. Oliver v. The Parsons Co., 195 F.3d 457, 461
(9th Cir. 1999); United States v. Burns, 162 F.3d 840, 850 (5th Cir. 1998).
39
  Southland Management, 288 F.3d at 675; United States ex rel. Lamers v. City of Green Bay, 168 F.3d 1013, 1018
(7th Cir. 1999).
40
     Southland Management, 288 F.3d at 675; Thompson, 125 F.3d at 902.
41
  Southland Management, 288 F.3d at 676, citing United States v. Wells, 519 U.S. 482, 489, 117 S.Ct. 921, 137
L.Ed.2d 107 (1997) (quoting Kungys v. United States, 485 U.S. 759, 770, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988)).
See also Neder v. U.S., 527 U.S. 1, 119 S.Ct. 1827 (1999).


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           C.       The Relator Fails To Allege That Defendants Made a Material
                    Misrepresentation Capable of Influencing The Decision Of A Government
                    Agency

           The Relator alleges that Defendants fraudulently altered medical records in order to

extend the hospitalization stay of patients and/or somehow subsumed billing for cosmetic

surgery procedures into bills submitted for OB/GYN procedures. Even taken as true for the

purposes of a Rule 12(b)(6) motion, these allegations fail to state a claim under the FCA as the

alleged fraudulent acts have absolutely no tendency or capability of influencing the decision

making body to pay claims.

           In general, Medicare reimbursements do not vary with the cost of treating a particular

patient.42 Rather, Medicare reimburses a fixed amount per patient based on a diagnosis related

group (“DRG”) code assigned to each patient.43 A patient’ DRG is based on her diagnosis and
                                                         s

age, not on the particular care or services she receives.44 The Centers for Medicare and Medicaid

Services (“CMS”), the federal agency that administers Medicare and Medicaid, sets DRGs

according to national averages for the costs of treating particular illnesses.45 In most cases, the

DRG rate constitutes full payment for all items and services provided by the hospital.46 In other

words, if the DRG rate for an OB/GYN procedure were $100.00, Defendants would get only

$100.00 for performing that procedure on a patient no matter how long the patient stayed in the

hospital or how many resources were expended in performing that procedure.

42
     U.S. ex rel. Lam v. Tenet Healthcare Corp., 287 Fed.Appx. 396, 397 (5th Cir. 2008).
43
  Lam, 287 Fed. Appx. At 397; U.S. ex rel. Kennedy v. Aventis Pharmaceuticals, Inc., 2008 WL 5211021 at p. 3
                                                                                           s/Candler Health System,
(N.D.Ill. 2008), citing 42 U.S.C. 1395ww(d); see also U.S. ex rel. Digiovanni v. St. Joseph’
Inc., 2008 WL 395012 at p. 5-6 (S.D.Ga. 2008); U.S. ex rel. Magid v. Wilderman, 2004 WL 945153 at p. 8 (E.D.Pa.
2004);
44
   Id. citing 42 C.F.R. 412.60; Digiovanni, 2008 WL at p. 5-6; U.S. ex rel. Magid v. Wilderman, 2004 WL 945153 at
p. 8 (E.D.Pa. 2004)
45
 Id. citing 42 U.S.C. 1395ww(d)(1)(D); Digiovanni, 2008 WL at p. 5-6; U.S. ex rel. Magid v. Wilderman, 2004
WL 945153 at p. 8 (E.D.Pa. 2004)
46
     Id. citing 42 C.F.R. 412.60(c)(2) (emphasis added).


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          Thus, not only has the Relator failed to allege “materiality” as required to support a claim

under the FCA, but she cannot possibly do so as the alleged fraudulent acts of Defendants are

incapable of influencing the payments they receive from Medicare.

VI.       Relator Fails To State A Claim Under Section 3730(h) of the FCA or La. R.S. 23:967
          against Hertzak Individually

                                       s
          It is not clear from Relator’ Complaint is she has in fact attempted to assert a cause of

action against Hertzak, individually, for retaliation under Section 3730(h) of the FCA or

          s
Louisiana’ whistleblower statute, LSA-R.S. 23:967. To the extent she has attempted to do so,

however, it is facially apparent that such claims are fatally flawed.

          La. R.S. 23:967 states in pertinent part that “an employer shall not take reprisal against an

employee who in good faith, and after advising employer of the violation of law… .”. The clear

language of the statute prohibits an employer from taking reprisal against its employee. Simply

                            s
put, like many of our state’ employment laws, unless one employs a person, one cannot be

liable to that person under the statute. Relator has not, and cannot, allege that she was employed

directly by Dr. Hertzak. Rather, Relator has admitted in her Complaint that she was employed by

“Doctor’ Hospital of Slidell, L.L.C.”.47 As such, Relator fails to state a cause of action against
        s

Dr. Hertzak under La. R.S. 23:967 and her claims, if any, against him under this statute must be

dismissed.

          In addition, Section 3730(h) of the FCA provides in pertinent part:

          Any employee, contractor, or agent shall be entitled to all relief necessary to make
          that employee, contractor, or agent whole, if that employee, contractor, or agent is
          discharged, demoted, suspended, threatened, harassed, or in any other manner
          discriminated against in the terms and conditions of employment because of
          lawful acts done by the employee, contractor, or agent on behalf of the employee,
          contractor, or agent or associated others in furtherance of other efforts to stop 1 or
          more violations of this subchapter.

47
             r      V      a ’ Com pl i
     S ee P aaX X X I ofR el tors   ant.


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Again, Relator fails to allege a cause of action against Hertzak, individually, under Section

3730(h) as she in no way shape or form sets forth any allegations that Hertzak threatened or

harassed her or that Hertzak did, or was able to, discharge, demote or suspend her. As such, to

the extent Relator has raised a claim against Hertzak under Section 3730(h) of the FCA, said

claim should be dismissed.



VII.   Conclusion

       As discussed above, Relator has not only failed to plead fraud with the particularity

required by Rule 9(b) of the Federal Rules of Civil Procedure, but she has also failed to properly

state a cause of action under the FCA by failing to plead the materiality of the alleged fraudulent

acts of Defendants. In addition, Relator has failed to state a cause of action against Dr. Hertzak

pursuant to Section 3730(h) of the FCA or La. R.S. 23:967. For all these reasons, Defendants

respectfully request not only that this Court dismiss all claims brought against them under the

                                       s
FCA and order Relator pay all attorney’ fees and costs incurred by Defendants on the basis that

        s
Relator’ claims under Section 3729 of the FCA are clearly frivolous, vexation and brought

primarily for the purposes of harassment and to bolster her state court claims; but also that this

Court dismiss all claims brought against Dr. Hertzak, individually, pursuant to Section 3730(h)

                                           s
of the FCA and La. R.S. 23:967 for Relator’ failure to state a claim thereunder.

                                      Respectfully submitted,

                                      s/ Jerry Stovall
                                      Jerry Stovall (Bar #23318)
                                      Breazeale, Sachse & Wilson, L.L.P.
                                      23rd Floor, One American Place
                                      Post Office Box 3197
                                      Baton Rouge, LA 70821-3197
                                      Telephone: (225) 387-4000




                                                13                                          920043.1
   Case 2:09-cv-03506-HGB-JCW Document 16-1                     Filed 06/15/10 Page 14 of 14



                                      and

                                      Justin Stephens (Bar# 30987)
                                      Breazeale, Sachse & Wilson, L.L.P.
                                      LL&E Tower, Suite 1500
                                      909 Poydras Street
                                      New Orleans, LA 70112
                                      Telephone: (504) 584-5454

                                                         s
                                      Counsel for Doctor’ Hospital of Slidell, L.L.C. and Dr.
                                      Peter H. Hertzak


                                CERTIFICATE OF SERVICE

       I hereby certify that on June 15, 2010 I electronically filed the foregoing with the Clerk

of Court by using the CM/ECF system which will send a notice of electronic filing to counsel

registered with the court for receipt of pleadings by e-mail. I also certify that the foregoing has

been served on all counsel of record by facsimile, electronic mail and/or by depositing same in

the United States Mail, properly addressed and postage prepaid.



                                             s/ Jerry Stovall




                                                14                                          920043.1

				
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