JAMES EDWARD WELSH, Judge.
Spencer Nelson Harding, III, appeals the circuit court's judgment convicting him of murder in the first degree. He asserts that the circuit court erred and abused its discretion in overruling his motion to exclude and strike the testimony and reports of the State's DNA analyst and in considering DNA evidence that lacked statistical analyses. He also contends that the evidence was insufficient to convict him of murder in the first degree. We disagree and affirm the circuit court's judgment.
Viewing the evidence in the light most favorable to the verdict, the evidence established that on October 29, 2005, Molly McWilliams and Harding were at a local drinking establishment in Carrolton, Missouri, called "The Bar." That evening, the managing officer of The Bar saw McWilliams and Harding talking to each other inside the bar. Both McWilliams and Harding, stayed at the bar until closing time, which was around 1:15 or 1:30 a.m., on October 30, 2005. After closing, McWilliams and Harding continued talking to each other outside the bar by Harding's pickup truck, which was a white Ford pickup truck with a Ray/Carroll sticker that had been taken off the door. Jeremy Dodds, who was also leaving the bar, stopped at Harding's truck and talked to Harding briefly. According to Dodds, Harding and McWilliams were standing next to the truck with the driver's door open, and it appeared to him that they were getting ready to get inside the truck.
Evidence was presented that Harding had had a "Ray/Carroll" agricultural cooperative sticker removed from the door, but the door still had a faded circle with writing on it from the removal of the sticker.
A local gas station's video surveillance tape establishes that Harding entered the gas station around 1:40 a.m. and left the station at 1:44 a.m. The surveillance video also shows that Travis Constant entered the gas station at 2:03 a.m.
Sometime after 2:00 a.m., on October 30, 2005, Travis and Kristina Constant were out for a drive, and they saw a white Ford pickup truck parked on the wrong side of the road next to a field where McWilliams's body would be discovered a few hours later. The pickup truck had a metal, crisscrossed tailgate, a red gas can in the back, a license plate tied on to the tailgate, and a faded circle with writing on it on the side of the door. The Constants later identified the truck as belonging to Harding.
That morning, at around 8:00 a.m., a farmer discovered McWilliams's body lying face down in the field. McWilliams's body was about thirty yards from the road. She had blood in her hair and was wearing a green sweatshirt, blue jeans, and a white sports bra. Grass stains were evident on McWilliams's clothes, and the placement of those stains suggested that the body had been dragged. In an area covered with blood near the body, the police found a pair of purple underwear and a Budweiser beer can. McWilliams was not wearing underwear under her jeans. McWilliams's face was bruised, and blood and bruises were on her hands. Some of the wounds on McWilliams's body appeared to be drag wounds.
An autopsy revealed that the cause of McWilliams's death was strangulation and blunt trauma to the head. McWilliams sustained three deep lacerations to the back of her head, which were consistent with being struck by some sort of weapon. She also sustained numerous abrasions and contusions to various parts of her body and had a fractured left hand. The examiner concluded that the injuries were inflicted while McWilliams was still alive. The examiner said that McWilliams's injuries were consistent with being struck multiple times with an object. Although he could not tell if the injuries were inflicted by more than one person, the examiner said that the injuries were consistent with her having engaged in a struggle. The examiner also concluded that McWilliams had been strangled because she had abrasions on both sides of the neck and a fractured hyoid bone. Further, the examiner found a recently inflicted abrasion on McWilliams's vagina and said that the abrasion was consistent with consensual sex, assault, or rape. He could not make a finding of sexual assault.
On October 31, 2005, the police went to Harding's residence and found his white Ford pickup truck parked out front. The officers asked Harding to accompany them to the major case squad's command post so that they could talk to him, and Harding agreed to go with them. At the command post, Officer Benny Sheffield told Harding that he was not under arrest, that he was free to leave at anytime, and that he did not have to talk to the police. The officer also advised Harding of his Miranda rights, and Harding filled out a form waiving his Miranda rights.
See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
During the questioning, Harding told the officers that he had heard about the case on the news and that he thought the police would be coming to talk to him. Harding said that he was not surprised that the police came to see him and that he had intentionally stayed home that day because he thought the police would be coming to talk to him. Harding said that he was the usual suspect when something like this happened. Harding told the officers that he been falsely accused of a rape in Carrollton and that he had spent fourteen months in jail because of that false accusation.
Harding told the officers that he had been at "The Bar" on the night in question, and he volunteered that he had seen McWilliams there. He said that he left the bar between 1:15 a.m. and 1:30 a.m. He said that, as he was leaving, McWilliams asked him for gas money so that she could pay some people to take her home. Harding said that he gave her twenty dollars to get her away from him because he thought McWilliams seemed to be high or on drugs at the time. Harding said that McWilliams gave him a hug as she was leaving. Harding then went to his truck. According to Harding, when he got to his truck, someone had poured beer on his seat and had stolen a pack of cigarettes from his glove compartment. Harding said that he then went to the gas station to purchase cigarettes and then went straight home.
Harding told the officers that he washed the truck seat cover the next day to remove the beer. He also told them that he had washed his jeans and shirt that he had worn that night but said that he was wearing the same sweater that he had worn that night. Harding gave the officers the sweater so that they could test it. Further, Harding told the officers that he was the only person who ever drove his truck and that he only drinks Budweiser beer. He said that McWilliams had never been in his truck. When the officers asked Harding if he had ever engaged in sex or oral sex with McWilliams, Harding replied that he never messed around with her and that McWilliams never "did it" with him. He said that McWilliams had "come on to him" on previous occasions but that he had turned her down.
No blood was found on the sweater.
According to Officer Sheffield, he never told Harding during the interview that it was, in fact, McWilliams that was found dead in the field, but Sheffield noted that Harding kept referring to McWilliams in the past tense. When Sheffield told Harding that he was not sure that it was McWilliams in the field, Harding responded that it would be a shame if it was because McWilliams was someone he "really gave a shit about."
Harding consented to the officers' search of his truck and house. During a search of Harding's truck, officers found a cooler in the bed of the truck. The cooler contained two cans of Budweiser beer. The lot numbers on the beer cans in the cooler matched the lot number printed on the can found in the field near McWilliams's body. Authorities also obtained a buccal swab and hair samples from Harding.
Stacey Bolinger, a DNA analyst for the Highway Patrol Lab, examined the interior of the truck for possible blood. When she located possible blood stains in the truck, she tested the stains with a chemical called LMG to determine if blood was present. Bolinger identified several areas in the truck that tested positive for blood. Those areas were: the driver's side interior door panel, the driver's side interior door handle, the steering wheel faceplate, the passenger side floorboard, and the middle seat belt. Because these areas screened positive for the presence of blood, Bolinger swabbed these areas so that DNA tests could be performed. Bolinger also had received the rape kit that the medical examiner had obtained in his examination of McWilliams. Bolinger examined two oral swabs, two rectal swabs, and two vaginal swabs for the presence of semen. Tests on the vaginal swabs and rectal swabs tested positive for semen. Further, Bolinger took swab samples from the mouthpiece of the beer can found in the field to conduct a DNA analysis.
Bolinger then conducted a DNA analysis on the samples she obtained. After amplifying the DNA extracted from the swab of the truck's steering wheel faceplate, Bolinger obtained a DNA profile. She determined it was a single source profile, which she could use as a point of comparison. The profile was consistent with that developed from the known standard of McWilliams. Bolinger also developed a DNA profile from the swab she obtained from the beer can found in the field, which was consistent with the DNA profile developed from the known standard of Harding. For both of those profiles, Bolinger conducted random match probability analyses. According to Bolinger, McWilliams's DNA profile occurs in only 1 in 14.18 quadrillion people in the Caucasian population, and Harding's DNA profile occurs in only 1 in 22.4 quadrillion people in the Caucasian population.
According to Bolinger, random match probability is the chance of picking one person out of a million and having that person have the same DNA profile as a profile done in her lab.
A quadrillion is "the number represented by 1 followed by 15 zeroes." Webster's New World College Dictionary 1172 (4th ed. 2002).
Bolinger separated the sperm fraction from the non-sperm fraction for the vaginal swab. She only obtained a partial profile from the minor contributor of the sperm fraction but developed a full DNA profile consistent with Harding for the major contributor. Bolinger conducted random match probability analysis as to that sample. Again, according to Bolinger, Harding's DNA profile occurs in only 1 in 22.4 quadrillion people in the Caucasian population. Bolinger stated that the major component of the non-sperm fraction for the vaginal swab was consistent with McWilliams. She said that Harding could not be eliminated as a minor contributor to the non-sperm fraction.
Bolinger also re-tested the rectal swabs one year after the initial testing, at the prosecutor's request. She determined that the major component of the non-sperm fraction was consistent with McWilliams. She also determined that the sperm fraction from the rectal swab was consistent with being a mixture of at least two individuals. She said that, as to the sperm fraction from the rectal swab, the major component of that profile was consistent with McWilliams and that Harding could not be eliminated as a source of the minor component. Because, however, Bolinger could not provide random match probability statistics as to those samples, Harding moved to strike Bolinger's testimony at trial, and the circuit court took the objection with the case.
Bolinger was also able to develop partial DNA profiles from the swabs of the driver's side interior door handle and the driver's side interior door panel. The DNA found in these samples consisted of a mixture from at least two individuals. Over objection, Bolinger testified at trial that she could not eliminate Harding and McWilliams as the source of the DNA found on the door panel or door handle. Bolinger also said that she did not perform statistical analyses on these samples. Further, because Bolinger had not reviewed the raw electronic and analyzed data for the samples before trial, she could not testify about the parameters she used for peak detection thresholds.
At the close of Bolinger's testimony, Harding renewed his objection to strike Bolinger's testimony because of her inability to answer questions and provide data which he contended violated his right to confrontation and because Bolinger's testimony lacked statistical data which he contended denied him due process. The circuit court denied the motion and said that it would consider the evidence lacking statistical data. In particular, the court said:
The evidence established that Bolinger did give a copy of the raw DNA data to the defense. Inexplicably, Harding was demanding that Bolinger analyze the raw data for the defense. Bolinger refused to do that absent authorization from the State or being directed to do so by the court.
[T]he other DNA evidence, wherein the State did produce evidence of certain frequencies within the population with respect to other DNA evidence, is stronger evidence. And the evidence where the calculation was not done is weaker evidence.
. . . .
The evidence that does not have the calculation with respect to the frequency probability is not as strong as the other evidence. But being consistent is simply going to be given whatever weight that might have.
Harding waived his right to a jury trial. After the trial, the circuit court found Harding guilty of first degree murder and sentenced Harding to life imprisonment with no opportunity for probation or parole. Harding appeals.
In his first point on appeal, Harding contends that the circuit court erred and abused its discretion in overruling his motion to exclude and strike the testimony and reports of the State's DNA analyst, Stacey Bolinger, and in considering DNA evidence that lacked statistical analyses. In particular, Harding contends that, because Bolinger refused to answer questions about her conclusions and the methodology she used to review the raw and analyzed electronic data from her DNA testing, his Sixth Amendment right to confront the witness was violated. He also asserts that the circuit court erred in failing to exclude Bolinger's testimony because Bolinger failed to conduct frequency calculations for the random match probabilities on some of the samples that she tested and, therefore, her conclusions were irrelevant. We disagree.
The decision of whether to admit expert testimony is left to the sound discretion of the circuit court, and we will not disturb the circuit court's decision absent an abuse of discretion. State v. Hayes, 88 S.W.3d 47, 61 (Mo.App. 2002). "`This discretion is abused only when the ruling is clearly against the logic of the circumstances, or when it is arbitrary and unreasonable.'" Id. (citation omitted).
To the extent that Harding contends that his Sixth Amendment right to confront the witness was violated because Bolinger could not answer questions about her conclusions and the methodology she used to review the raw and analyzed electronic data from her DNA testing, his contention is without merit. Bolinger testified at trial and was subject to cross-examination. Whether or not Bolinger could answer specific questions posed by Harding did not deny Harding his rights to confront her under the Sixth Amendment. In his cross-examination of Bolinger, Harding was effectively able to point out that Bolinger had not reviewed the raw and analyzed electronic data from her DNA testing and that she could not testify about her decision to consider certain alleles and to disregard other alleles in making her DNA conclusions. The Confrontation Clause is not implicated where the witness is available for cross-examination at trial. See Crawford v. Washington, 541 U.S. 36, 59 n. 9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); State v. Perry, 275 S.W.3d 237, 243 (Mo. banc 2009). The Confrontation Clause's guarantee is procedural and "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." Crawford, 541 U.S. at 61, 124 S.Ct. 1354.
The State argues that Harding waived appellate review of the Confrontation Clause claim because he had filed a written motion to exclude Bolinger's testimony, and, on the eve of trial, Harding withdrew the motion as part of an agreement with the State on various matters. Although Harding did withdraw his motion to exclude Bolinger's testimony, he told the court that he intended to challenge Bolinger's testimony at trial during cross-examination.
Harding also complains that the circuit court erred in failing to exclude Bolinger's testimony because she failed to conduct frequency calculations for the random match probabilities on the partial DNA profiles. Harding contends that, without that statistical analysis, Bolinger's conclusions were irrelevant and, therefore, inadmissible.
The evidence established that Bolinger conducted frequency calculations for the random match probabilities on the major component of the sperm fraction from the vaginal swab, the results from the beer can found in the field, and from the results on the steering wheel faceplate. She did not conduct frequency calculations for the random match probabilities on the partial DNA profiles obtained on the driver's side interior door panel, on the driver's side interior door handle, or on the partial DNA profiles obtained on the vaginal and anal swabs. As to these partial profiles, Bolinger said only that Harding could not be eliminated as the source of the DNA found in these partial profiles.
DNA evidence, even without a showing of statistical significance, is admissible. State v. Ferguson, 20 S.W.3d 485, 495 (Mo. banc), cert. denied, 531 U.S. 1019, 121 S.Ct. 582, 148 L.Ed.2d 499 (2000). In Ferguson, the defendant claimed that the circuit court erred in admitting DNA evidence because the State presented no evidence of the statistical significance of its DNA test results and that the characterization of the DNA comparison as a "match" is meaningless. Id. Although the defendant conceded that he did not object to evidence and asked for plain error review, the Ferguson court found that it was not error — much less plain error — for the circuit court to admit DNA testimony without evidence of the statistical significance of the DNA test results. Id. The court said:
Scientific evidence, such as hair, fiber, and blood type evidence, is often admitted where the only conclusion to be drawn is that the tested sample is consistent with the defendant's sample, or that defendant's sample shows that he cannot be excluded as the perpetrator. Therefore, it was not error, much less manifest injustice, to admit the testimony that [the defendant's] DNA "matched" that of the DNA extracted from the semen stain on [the victim's] coat.
Id.
Even though a full genetic profile was not obtained, the circuit court could rely on the partial profiles that left Harding as a possible source of the DNA along with the other evidence in determining guilt. "The weight to be afforded this evidence was within the province of the [fact-finder] to decide." State v. Rockett, 87 S.W.3d 398, 405 (Mo.App. 2002) (holding that the jury could rely on DNA evidence that did not result in a positive identification of the defendant). Indeed, in State v. Abdelmalik, 273 S.W.3d 61, 64 (Mo.App. 2008), this court said that, even though a full genetic profile may not be produced from the materials gathered, it is permissible for a fact-finder to give significant weight to the DNA evidence when the partial profiles generated from these samples do not eliminate the defendant as a possible source of the material. The circuit court, therefore, did not err in allowing Bolinger to testify about the partial DNA profiles she developed in the case without conducting frequency calculations for the random match probabilities on the partial DNA profiles.
To state the corollary of Harding's position is to demonstrate the fallacy of it. If the evidence eliminated Harding as a source of the DNA sample, such evidence would certainly be relevant and admissible even without statistics regarding the percentage of the population.
Although not determinative, it is not lost on this court that the fact-finder in this case was a seasoned trial judge who could and did easily differentiate between the various categories of DNA evidence presented and assigned each such weight as he believed that evidence was entitled.
In his second point on appeal, Harding contends that the evidence was insufficient to convict him of murder in the first degree. In particular, he points to this evidence to establish that the evidence was insufficient to sustain his conviction:
(1) McWilliams engaged in a violent struggle that ended in her death and sustained many wounds that bled profusely, but, within 36 hours of the offense, Harding had no injuries and the sweater that he wore on the night of the offense, which had not been cleaned, had no blood or other tissues or fluids that would have linked him to the offense;
(2) None of the tools in Harding's truck had blood or traces of body fluids on them that would have linked him to McWilliams' death;
(3) Times provided by witnesses who purportedly saw Harding's truck in the area, when considered together, rendered Harding's guilt of murder physically impossible, and
(4) All of the people who purportedly saw Harding's truck near the field where McWilliams' body was found had a motive to lie.
Harding, however, in focusing on the evidence and inferences that do not support his conviction, ignores the appropriate standard of review.
In reviewing the sufficiency of the evidence, we deem all evidence favorable to the State to be true. State v. Crawford, 68 S.W.3d 406, 407 (Mo. banc 2002). We do not reweigh the evidence, and we disregard all evidence and inferences contrary to the verdict. Id. at 408. Our review is limited to determining whether or not the state presented sufficient evidence from which a reasonable fact-finder could have found the defendant guilty beyond a reasonable doubt. Id. Even when the State's case is based upon circumstantial evidence, we must accept as true all evidence tending to prove the defendant's guilt and accept all reasonable inferences supporting the verdict while disregarding all parts of the record contrary to the verdict. State v. Shelton, 78 S.W.3d 200, 204 (Mo.App. 2002).
The evidence in this case was sufficient for a reasonable fact-finder to establish that Harding was guilty beyond a reasonable doubt of murder in the first degree. The evidence established that Harding and McWilliams were seen together inside and outside a bar in the early morning hours before McWilliams's dead body was discovered in a field. After the bar closed, Jeremy Dodd saw Harding and McWilliams standing next to Harding's truck with the driver's door open, and it appeared to Dodd that Harding and McWilliams were getting ready to get inside the truck. Not long after Harding left the bar, Harding's truck was seen parked on the wrong side of the road immediately next to the field where McWilliams's body would be discovered a few hours later. Two cans of Budweiser beer found in a cooler in the back of Harding's truck matched the lot number printed on a can found in the field near McWilliams's body.
Further, as previously discussed, several areas inside Harding's truck tested positive for the presence of blood. A DNA profile consistent with McWilliams's DNA was found on the steering wheel faceplate. Partial DNA profiles were developed from the blood stains on the driver's side interior door handle and the driver's side interior door panel, and neither Harding nor McWilliams could be eliminated as the source of the DNA found there. Moreover, a DNA profile consistent with Harding was found on the beer can discovered in the field near McWilliams's body.
Tests on McWilliams's vaginal swabs and rectal swabs tested positive for semen. DNA consistent with Harding's DNA profile was found in the major component of the sperm fraction of McWilliams's vaginal swab, and Harding could not be eliminated as the minor contributor on the non-sperm fraction of the vaginal swab. As to the sperm fraction from the rectal swab, Harding could not be eliminated as a source of the minor component.
Moreover, Harding told the police that McWilliams had never been in his truck and that he had never had sex with McWilliams. The DNA evidence establishes otherwise. Harding's denials evidence a consciousness of guilt that the court could consider in determining his guilt. Perry, 275 S.W.3d at 249; State v. Blair, 298 S.W.3d 158, 45 (Mo.App. 2009).
Given all of this evidence, we find that the evidence was sufficient for a fact-finder to conclude that Harding was guilty of murder in the first degree beyond a reasonable doubt. We will not reweigh the evidence because such is contrary to our standard of review.
We, therefore, conclude that the circuit court did not err and abuse its discretion in overruling Harding's motion to exclude and strike the testimony and reports of the State's DNA analyst and in considering DNA evidence that lacked statistical analyses. The circuit court also did not err in overruling Harding's motion for judgment of acquittal at the close of all the evidence and in convicting him because the evidence was sufficient for the court to find Harding guilty of murder in the first degree. We affirm the circuit court's judgment.
All concur.
vidual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information."
31 U.S.C. § 3730(e)(4)(B).
The Patient Protection and Affordable Care Act, Pub.L. 111-148, 124 Stat. 119, signed into law on March 23, 2010, replaced the prior version of 31 U.S.C. § 3730(e)(4) with new language. Because the legislation makes no mention of retroactivity, the Court uses the previous version of Section 3730(e)(4). Graham Cnty. Soil Water Conservation Dist. v. United States ex rel. Wilson, 130 S.ct. 1396, 1400 n. 1 (2010) (citing Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 948 (1997)).
In Rockwell International Corp. v. United States, the Supreme Court held that the "jurisdiction" in Section 3730(e)(4) refers to the subject matter jurisdiction of the court. 549 U.S. 457, 467-68 (2007).
The Court must conduct a three-step inquiry to determine whether it has jurisdiction under Section 3730(e)(4). Glaser, 570 F.3d at 913. First, the Court must examine whether the Relators' allegations have been publicly disclosed. Id. Second, if there has been public disclosure, the Court must determine whether the lawsuit is "based upon" the publicly disclosed information. Id. Finally, if the allegations are based upon publicly disclosed information, the Court determines whether the Relators are an "original source" of the information upon which the allegations are based. Id. (citation omitted).
I. Have Relators' Allegations Been Publicly Disclosed?
Under Section 3730(e)(4), "public disclosure of allegations or transactions" may occur in "a criminal, civil, or administrative hearing, in a congressional, administrative, or Government [General] Accounting Office report, hearing, audit, or investigation, or from the news media . . ." Invoking this provision in their motion to dismiss, Defendants assert that the allegations underlying Plaintiffs' complaint were publicly disclosed in government reports as well as through the news media. In support of this assertion, Defendants offer a 1998 General Accounting Office ("GAO") Report, "Concerns with Physicians at Teaching Hospitals (PATH) Audits," (R. 69, MOR and Individual Doctors' Mot. to Dismiss Mem., Ex. A); a 2001 Office of Inspector General ("OIG") Semiannual Report discussing the Physicians at Teaching Hospitals ("PATH") audits initiative, ( id., Ex. B at 10-11); and several news reports pertaining to the PATH audits, (id. Exs. E, F, G, H, I, J), and the Zimmer prosecution, ( id, Exs. L, M, N, O, P). Relators, on the other hand, argue that their claims were not part of the PATH audits, and that the PATH audits would not have led to the discovery of the false claims in this case. (R. 84, Relators' Mem. at 2.)
There is no question that the government reports and the news articles offered by Defendants fall within the category of sources-"administrative, or Government [General] Accounting Office report . . . or from the news media"-enumerated in Section 3730(e)(4)(A).
In the Seventh Circuit, "public disclosure" occurs when "the critical elements exposing the transaction as fraudulent are placed in the public domain." United States ex rel. Feingold v. Adminastar Fed, Inc., 324 F.3d 492, 495 (7th Cir. 2003) (citations omitted). A public disclosure "brings to the attention of the relevant authority that there has been a false claim against the government." Glaser, 570 F.3d at 913 (internal quotation marks omitted). Under the "critical elements" standard, the specific defendants need not be named in the public disclosure. See United States ex rel. Gear v. Emergency Med. Assocs. of Ill., Inc., 436 F.3d 726, 729 (7th Cir. 2006). Instead, if there have been"[i]ndustry-wide public disclosures," qui tam actions against "any defendant who is directly identifiable from the public disclosures" are barred. Id.; see also United States, ex rel. Baltazar v. Warden, No. 07 C 4107, 2009 WL 935805, at *6 (N.D. Ill. Apr. 2, 2009) (internal citations omitted) (It is not required that "the specific defendants be named or identified in the public disclosures . . . It is sufficient that the public disclosures contain information regarding industry-wide abuses that mimic closely the plaintiff['s] [allegations of] fraud."); Schultz v. Devry Inc., No. 07 C 5425, 2009 WL 562286, at *3 (N.D. Ill. Mar. 4, 2009) ("The specific defendants in the lawsuit do not need to be identified in public disclosures . . . The disclosures were of industry-wide abuses; thus [defendants] were identifiable, and the public disclosure bar applied.").
The purpose of qui tam litigation is to encourage private citizens to come forward with information regarding fraudulent activity. Feingold, 324 F.3d at 495. However, when there has already been a public disclosure, the government "is already in a position to vindicate society's interests, and a qui tam action would serve no purpose." Id. Thus, under the first portion of the three-step inquiry, the Court must focus on whether the GAO and OIG reports and related news articles exposed the "critical elements" of Relators' allegations of fraud.
A. The PATH Initiative
The PATH initiative grew out of OIG hospital audits that identified irregularities in Medicare billing practices at teaching hospitals. (R. 69, MOR and Individual Doctors' Mot. to Dismiss Mem., Ex. A at 3.) In 1995, the Department of Justice ("DOJ") entered into a $30 million settlement with the University of Pennsylvania to resolve allegations of improper billing of Medicare. ( Id.) Specifically, an OIG audit had concluded that "some of the university's teaching physicians had inappropriately billed Medicare because medical records did not adequately document their involvement in services provided by residents." ( Id.) The audit also found that some teaching physicians had "upcoded" their claims, meaning that they had billed for more expensive procedures than may have been provided. ( Id.) Concerned that these problems might be widespread among teaching hospitals, the OIG, in cooperation with the DOJ, instituted "a nationwide initiative" now known as the PATH audits. ( Id.) When the PATH initiative began, the OIG's intention was to audit all major teaching hospitals or faculty practice plans associated with each of the nation's 125 medical schools, one of which is Rush. ( Id. at 6; R. 36., TAC ¶ 52.) The audits focused on two main areas of concern: (1) "whether teaching physicians who billed [Medicare] part B for services furnished by residents provided sufficient `personal direction' in the delivery of the service"; and (2) "whether teaching physicians have inflated their part B claims by `upcoding,' that is billing using a code that is one or more levels higher than the level of service that was actually performed." (R. 69, MOR and Individual Doctors' Mem., Ex. A at 8.)
The OIG subsequently reduced the number of institutions to be audited due to competing demands and other factors. (R. 69, MOR and Individual Doctors' Mot. to Dismiss Mem., Ex. A at 6, 12.)
Regarding the first area of concern-the personal direction of residents by teaching physicians-the GAO report admitted that the requirements under Medicare Part B had not always been clearly communicated or consistently enforced. ( Id. at 13.) However, the report also emphasized that "the need for a teaching physician to be physically present to bill for services performed by residents is a longstanding requirement of the Medicare program. The fact that a physical presence requirement has not always been consistently communicated or enforced does not obviate the need for teaching physicians to document their personal involvement in services to legitimately bill Medicare." ( Id. at 5.) According to the Inspector General, these "physical presence problems . . . pertained to teaching institutions across the country." ( Id. at 26.)
As of 2001, the PATH initiative had resulted in settlements with eight teaching hospitals and the recovery of over $98.7 million. (R. 69, MOR and Individual Doctors' Mot. to Dismiss Mem., Ex. B at 11.) Eight other investigations outside of the PATH initiative, but which included billings for teaching physicians, resulted in FCA settlements totaling over $41.1 million. ( Id.) During this time, the PATH initiative and the related litigation also received press coverage in numerous medical news sources. ( Id., Exs. E, F, G, H, I, J.) In the OIG semiannual report issued six years after the audits initially began, the objective of the audits remained unchanged-"[t]he fundamental tenet of the PATH initiative is that in order to receive a separate payment from Medicare Part B for a service rendered to a patient, the teaching physician must have personally provided that service or have been present when the resident furnished the care." ( Id at 10.)
In United States ex rel. Gear v. Emergency Medical Associates of Illinois, the Seventh Circuit was squarely presented with the issue of whether the PATH initiative constituted a public disclosure for the purposes of a qui tam suit alleging fraudulent billing of Medicare for services performed by residents. 436 F.3d at 729. The Seventh Circuit concluded that the PATH initiative was an "industry-wide public disclosure" that barred qui tam actions against any defendant "directly identifiable from the public disclosures." 436 F.3d at 729. The court looked at the development of the PATH initiative and observed that there had been public allegations since the mid-1990s that Medicare was being billed for services provided by residents as if attending physicians had actually performed the service. Id. at 728. The PATH initiative thus sought to determine whether "hospitals and other entities were improperly billing Medicare for services provided by unsupervised residents." Id. Noting the OIG and GAO reports pertaining to the audits, the settlements and litigation that occurred, and that "medical news sources [took] notice, with some alarm," the Seventh Circuit held that the PATH initiative disclosed "industrywide abuses and investigations," barring suit against any implicated defendant. Id. at 728-29.
Relators cite Cooper v. Blue Cross Blue Shield, 19 F.3d 562, 564-66 (11th Cir. 1995), in support of the proposition that a public disclosure that does not identify the particular fraud does not constitute a public disclosure for the purposes of Section 3730(e)(4). Cooper, however, emphasized that the important issue for public disclosure purposes is whether the government will have "difficulty identifying all of the individual actors engaged in fraudulent activity." Id. at 566. Here, the PATH audits implicated only the teaching hospitals and faculty practice plans associated with each of the nation's 125 medical schools, (R. 69, MOR and Individual Doctors' Mot. to Dismiss Mem., Ex. A at 12), which is very different than the reports of widespread fraud among Medicare health plan administrators in Cooper. See Cooper, 19 F.3d at 566.
B. The "Critical Elements" of Relators' Allegations
While it is clear under Seventh Circuit precedent that the PATH initiative is an "industrywide public disclosure," whether the initiative exposed "the critical elements" of Relators' allegations requires further analysis of the overlap between the audits and Relators' claims. As a preliminary inquiry, the Defendants must be "directly identifiable from the public disclosures." Id. at 729. In this case, the Defendants, like the defendants in Gear, were not named specifically in the PATH initiative. Id. However, the Seventh Circuit noted that under the PATH audits, "[t]eaching hospitals associated with the nation's 125 medical schools were informed that they were subject to an audit of the billing for resident services." Id at 728. Thus, the defendants in Gear, corporations that provided physicians to hospital emergency rooms, including residents participating in a medical school residency program, were implicated and "directly identifiable" from the PATH audits. Id. at 728-29. Similarly, the Defendants in this case, a teaching hospital and attending physicians associated with Rush Medical College, (R. 36, TAC ¶¶ 52-69), are "directly identifiable" from the PATH audits.
Next, the Court must decide whether the PATH initiative, an "industry-wide public disclosure" that implicated Defendants, actually exposed the "critical elements" of Relators' claims. As discussed above, Relators' TAC alleges that Defendants fraudulently billed the government by failing to follow Medicare Rules and Regulations regarding attending physician supervision and documentation requirements for overlapping surgeries. (R. 36, TAC ¶ 2.) In opposing Defendants' motion to dismiss, Relators attempt to frame the "critical elements" of their allegations narrowly- and thus allegedly outside the scope of the PATH audits — as solely "focus[ing] on what [MOR] doctors were doing during [the time they were entitled to leave the operating room during non-key and critical parts of the surgery], and specifically, whether they were immediately available, as required under the Medicare conditions of payment." (R. 84, Relators' Mem. at 6.) At either level of abstraction, however, the Court finds that the critical elements of Relators' allegations are encompassed by the scope of the PATH audits and related news coverage.
Once again, the Seventh Circuit's reasoning in Gear is particularly instructive in this case. In Gear, the relator alleged that certain teaching hospitals had violated Medicare rules and regulations which prohibit residents from "moonlighting" as attending physicians during residency hours. 436 F.3d at 727 (citing 42 C.F.R. § 415.208(b)(1)). The court rejected the relator's argument that the information in the complaint was not in the public domain because the PATH initiative did "not expose any transactions from which the government (or anyone else) could infer that the particular entities [the relator] named were fraudulently billing Medicare." Id. at 729 (citations omitted); see also United States ex rel. Findley v. FPC-Boron Employees' Club, 105 F.3d 675, 687 (D.C. Cir. 1997) (concluding that the relators' claims were precluded by the FCA's jurisdictional bar because the relators' complaint merely "repeat[ed] what the public already knows and add[ed] only the identity of particular [defendants] engaged in the questionable and previously documented generic practice"). Instead, viewing the relator's allegations as pertaining to both the specific "moonlighting resident" regulations allegedly violated, as well as the broader issue of Medicare being billed for services provided by residents as if attending physicians had actually performed the services, the Seventh Circuit held that "the information on which the complaint [was] based was already publicly disclosed" by the PATH audits. Id. at 728.
Relators acknowledge that "the nature of their Complaint may have invited [the] mischaracterization" that the nature of their claims sounds "similar, if not identical" to the claims in Gear, and "welcom[ed] the opportunity presented by the Motion to Dismiss, to explain to the Court and the Defendants what this case is, and is not, about." (R. 84, Relators' Mem. at 2-3.) They attempt to distinguish Gear by focusing on the brevity of the complaint in Gear, and what the relator in Gear did-or did not do-prior to filing the lawsuit. ( Id. at 9.) ("Gear, a medical resident, provided no evidence that he had done anything about the conduct he alleged to be false prior to filing his lawsuit.") This distinction, however, is unpersuasive in the preliminary inquiry of whether the allegations were publicly disclosed, and is more appropriate in the subsequent steps of the inquiry under Section 3730(e)(4).
Similarly, Relators' arguments that their "claims are based solely on the overlapping surgery issue which was never the subject of the PATH investigation" and that the "PATH audits did not and could not have revealed the false claims at issue here" are unpersuasive. (R. 84, Relators' Mem. at 11.) Admittedly, the specific "overlapping surgeries" provisions of the Teaching Physician Regulations upon which Relators rely were promulgated after the initiation of the PATH audits. However, these regulations-like the "moonlighting resident" regulations allegedly violated in Gear-were drafted in response to the same concerns that led to the audits. (R. 69, MOR and Individual Doctors' Mot. to Dismiss Mem., Ex. A at 10), and are merely a subset in the larger system of Medicare rules and regulations regarding attending physician supervision of residents that were revised in 1995. See 60 Fed. Reg. 63124, Dec. 8, 1995. While focusing on the specific rules regarding overlapping surgeries, the crux of Relators' claims still mirrors the allegations of fraud exposed in the PATH audits-that attending physicians are failing to provide the required direct supervision of residents to bill Medicare under Part B.
Relators' own characterization of the case emphasizes this point:
This case concerns the illegal practices of the Defendants to dramatically increase the amount of orthopedic surgeries being performed by surgeons associated with MO at Rush and the SurgiCenter . . . well beyond the safe capacity of the orthopedic surgeons involved to manage their caseloads. These practices included MO[R] orthopedic surgeons' complete abrogation of their duties and responsibilities to supervise and manage the work of orthopedic residents (surgeons in training) and the dramatic and false over-billing of Medicare and Medicaid by those same surgeons for surgeries at which they were not present for most, and in some cases all, of the time that a patient was lying unconscious on the operating table, undergoing surgery.
(R. 36, TAC ¶ 2.)
Importantly, the PATH initiative demonstrates that the government is on notice of the possibility for fraudulent billing by Defendants. See United States ex rel. Lopez v. Strayer Educ., Inc., 698 F. Supp. 2d 633, 641 (E.D. Va. Mar. 18, 2010) (quoting United States ex rel. Gilligan v. Medtronic, Inc., 403 F.3d 386, 389 (6th Cir. 2005)) ("To constitute a `public disclosure' sufficient to negate FCA jurisdiction, a disclosure need not specifically show fraud, but must merely be `sufficient to put the government on notice of the likelihood of related fraudulent activity.'"). Here, because of the PATH initiative and the notice it provided, "the government is already in a position to vindicate society's interests, and a qui tam action would serve no purpose." Glaser, 436 F.3d at 729.
Relators' concern that the PATH audits cannot "serve to forever immunize all teaching medical institutions from all whistleblower lawsuits premised on Medicare fraud" is unfounded in this case. (R. 84, Relators' Mem. at 15.) The PATH initiative was ongoing through at least 2001, (R. 69, MOR and Individual Doctors' Mot. to Dismiss Mem., Ex. B), and Relators' claims
are based on allegedly fraudulent activity that occurred between 1996 and 2004. Holding that the allegations in this case were previously publicly disclosed by the PATH audits is far from "forever immun[izing]" the Defendants from suit based on Medicare fraud. See Findley, 105 F.3d at 679 (affirming the district court's determination that three public sources, from 1952, 1974, and 1986 constituted public disclosure in a suit brought in 1994). Moreover, Section 3703(e)(4)(A) provides two additional safeguards to prevent the "immunization" of defendants in a case like this: suits based on allegations that have been publicly disclosed are not barred if the suits are brought by the government or an "original source." 31 U.S.C. § 3730(e)(4)(A).
Thus, under the first portion of the three-step "public disclosure" bar inquiry, the Court concludes that the PATH initiative, an "industry-wide public disclosure," implicated the Defendants in this case and exposed the critical elements of Relators' allegations.
II. Is the Lawsuit "Based Upon" the Public Disclosures?
Because Relators' allegations against Defendants were disclosed in the PATH audits and the related news coverage, the Court must next decide if Relators' suit is "based upon" the "public disclosure." 31 U.S.C. § 3730(e)(4)(A). In Glaser v. Wound Care Consultants, Inc., the Seventh Circuit recently overruled its prior interpretation of the phrase "based upon" found in Section 3730(e)(4)(A). 570 F.3d at 910. The Seventh Circuit had previously held that an FCA lawsuit is "based upon" a public disclosure when the lawsuit "depends essentially upon publicly disclosed information and is actually derived from such information." Bank of Farmington, 166 F.3d at 864. Though this interpretation was reaffirmed in United States ex rel. Fowler v. Caremark RX L.L.C., 496 F.3d 730, 738 (7th Cir. 2007), it was the minority position among the circuit courts, and ultimately rejected in Glaser. 570 F.3d at 910. In Glaser, the Seventh Circuit reasoned that under the minority interpretation of "based upon," the "entire original-source inquiry-asking whether the relator had `direct and independent knowledge' of the information and `voluntarily provided' it to the government is superfluous." Id. Instead, the Seventh Circuit adopted the majority interpretation, holding that "an FCA relator's complaint is `based upon' publicly disclosed allegations or transactions when the allegations in the relator's complaint are substantially similar to the allegations already in the public domain." Id. (emphasis added).
Under the "substantially similar" interpretation of "based upon" adopted by the Seventh Circuit in Glaser, the addition of particular allegations not specifically covered by the public disclosure is "not enough to take [the] case outside the jurisdictional bar." Id. at 920. In Glaser, the relator argued that her complaint contained particular allegations of fraud not mentioned in the government investigation of the defendant, and thus was not "based upon" the investigation. Id. In rejecting her argument, the Seventh Circuit noted that "based upon" does not mean "solely based upon," and "[a]n FCA qui tam action even partly based upon publicly disclosed allegations or transactions is nonetheless `based upon' such allegations or transactions." Id. at 920-21 (quoting United States ex rel. Precision Co. v. Koch Indus., Inc., 971 F.2d 548, 552 (10th Cir. 1992) ("To insert the term `solely' into § 3730(e)(4)(A) would impermissibly expand federal jurisdiction by allowing qui tam plaintiffs to avoid the more exacting `original source' requirement simply by asserting an additional count.")). Instead, the Seventh Circuit held that relator's allegations of wrongdoing were "virtually identical" to those in the investigation because they pertained to the same entity and described the same fraudulent conduct. Id. at 920.
In this case, Relators' allegations of wrongdoing also pertain to the same entities implicated in the PATH initiative and describe the same fraudulent conduct as the initiative. The PATH audits implicated teaching hospitals and practice plans associated with the nation's medical schools, (R. 69, MOR and Individual Doctors' Mot. to Dismiss Mem., Ex. A at 6); Defendants in this case are a teaching hospital and attending physicians associated with a medical school. (R. 36, TAC ¶ 52.) The PATH audits disclosed allegations of fraud pertaining to the lack of proper supervision of residents by attending physicians and the resulting over billing of Medicare, (R. 69, MOR and Individual Doctors' Mot. to Dismiss Mem., Ex. A at 8); Relators allege that residents were not properly supervised and Medicare was improperly billed because Defendants failed to follow the Medicare Rules and Regulations pertaining to overlapping surgeries. (R. 36, TAC ¶ 2.) Thus, the allegations in the TAC are "based upon" the PATH audits because the allegations in the TAC are "substantially similar to the allegations already in the public domain." Glaser, 570 F.3d at 910.
The attempt by Relators to draw a distinction between the PATH audits and their allegations is again belied by the TAC:
Drafters of the Medicare laws were well aware of the fact that financial incentives could lead a surgeon to conduct a surgery with limited, or even no supervision, in order to maximize the number of surgeries and billing. Therefore the Medicare Legislators created laws prohibiting improper supervision of surgical residents while billing Medicare. Medicare laws included specific standards detailing the ability of a surgeon to bill Medicare for overlapping surgeries in the context of teaching hospitals. MO[R] surgeons violated those laws.
(R. 36, TAC ¶ 15.)
Relators, however, argue that their complaint "could not have simply mimicked or copied in any way the public disclosures [regarding the PATH audits] because those disclosures say nothing about the impact or consequences of performing overlapping surgeries." (R. 84, Relators' Mem. at 10.) Again, focusing the claims only on the overlapping surgery rules and regulations does not save Relators' allegations from being "substantially similar" to the allegations disclosed in the audits and related news coverage. Merely inserting the identity of specific parties and focusing on a minute area of a well-documented fraudulent practice may "add[] a few allegations not covered by the [PATH initiative]," but that is insufficient to overcome the requirements of Section 3730(e)(4)(A). Glaser, 570 F.3d at 920.
Relators attempt to distinguish Glaser by pointing out that the relator in Glaser was a patient who knew nothing about the false claims she alleged and admitted that her entire case was the creation of the lawyers who filed it, whereas in this case, Dr. Goldberg witnessed the allegedly fraudulent conduct "with his own eyes and ears" and tried to stop the conduct. (R. 84, Relators' Mem. at 9-10.) While this distinction may have proven persuasive under the Seventh Circuit's prior interpretation of "based upon," it is less relevant under the governing "substantially similar" interpretation; the question now is whether the claims are "substantially similar" to the public disclosures, not whether they "depend essentially" or are "actually derived from" the disclosures. Thus, because the allegations in Relators' complaint are substantially similar to publicly disclosed allegations, Relators' complaint is based upon those public disclosures and therefore falls within the threshold jurisdictional bar of § 3730(e)(4)(A).
Notably, though, even under the prior interpretation of "based upon," the Seventh Circuit in Gear still found the relator's claims to be "based upon" the public disclosures despite the relator's affidavit claiming that he based his complaint on his own personal observations and experience. Gear, 436 F.3d at 729. The court found this affidavit "insufficient to counter the weighty public record" regarding the PATH audits. Id.
III. Were Relators an "Original Source"?
The final step in the three part "public disclosure" bar inquiry is determining whether Relators qualify as "original sources" under Section 3730(e)(4)(B). Because Relators' "allegations are substantially similar to information about an alleged fraud that is already publicly disclosed, the statute permits [Relators] to avoid the jurisdictional bar only if [they have] `direct and independent knowledge of the information on which the allegations are based' and `voluntarily provided the information to the Government before filing' a qui tam action." Glaser, 570 F.3d at 910 (quoting 31 U.S.C. § 3730(e)(4)(B)). The Court need not pursue this inquiry further, however, as Relators concede that Dr. Goldberg did not properly notify the Government prior to filing the suit, and Beecham does not have any independent knowledge of the allegations in the TAC. (R. 84, Relators' Mem. at 32-33.) Thus, Relators do not qualify as an "original source" and their claims under the FCA are barred by Section 3730(e)(4).
Although Relators claim that they "do not seek recovery for any claim that . . . was tainted by a kickback from Zimmer," (R. 84, Relators' Mem. at 9), the Court notes that the analysis above applies with equal force to any allegations related to Zimmer. Relators made no mention of Zimmer until the TAC, which was filed nearly three years after Zimmer entered into the publicly disclosed deferred prosecution agreement Relators rely upon. (R. 36, TAC ¶¶ 140-42; Ex. D.)
CONCLUSION
For the foregoing reasons, Defendants' motions to dismiss for lack of subject matter jurisdiction, (R. 68; R. 75), are GRANTED with regard to Counts I, III, V (as it relates to the FCA), and VI. Given the Court's dismissal of Relators' federal claims, the Court relinquishes jurisdiction over Relators' state-law claim for violation of IWRPA, brought in Counts II, IV, and V (as it pertains to IWRPA). Wright v. Associated Ins. Cos., 29 F.3d 1244, 1251 (7th Cir. 1994) ("[T]he general rule is that, when all federal claims are dismissed before trial, the district court should relinquish jurisdiction over pendent state-law claims rather than resolving them on the merits.") (citation omitted). The state-law claims brought in Counts II, IV, and V are therefore dismissed without prejudice to their potential refiling in state court. Judgment in favor of Defendants is entered on all of the federal claims, Counts I, III, and V, for lack of subject matter jurisdiction.