Supplemental Briefing Order — Integra v. Providence (C.D. Cal.)

Summary

An in-chambers supplemental briefing order issued as civil minutes on February 14, 2019 by Philip S. Gutierrez, United States District Judge, in United States ex rel. Integra Med Analytics LLC v. Providence Health and Services, et al., No. 2:17-cv-01694-PSG-SS, in the U.S. District Court for the Central District of California, filed as Document 75. Following the February 13, 2019 hearing on the motions to dismiss (Dkts. # 56, 57), it asks JATA to supplement its request for judicial notice by February 22, 2019 with the web context of the online documents it says were publicly disclosed. The parties are to brief whether the Medicare claims data and OIG reports alone trigger the public disclosure bar under Mateski, the ordinary meaning of news media in 31 U.S.C. 3730(e)(4)(A), and Rule 12(b)(6). Supplemental briefs of up to 25 pages are due March 8, 2019.

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“Supplemental Briefing Order — Integra v. Providence (C.D. Cal.).” Original at ecf.cacd.uscourts.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-2-17-cv-01694-dkt-75-c-d-cal-fc35bcf50c/, SHA-256 9fca3e4b552c08f774ce53c451f4fbbd6e1b2e0a0cf2ed2d62eb4deea9d3f473.

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Case 2:17-cv-01694-PSG-SS Document 75 Filed 02/14/19 Page 1 of 3 Page ID
#:1904
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. CV 17-1694 PSG (SSx) Date February 14, 2019
Title United States ex rel. Integra Med Analytics LLC v. Providence Health and Services, et al.

Present: The Honorable Philip S. Gutierrez, United States District Judge
Wendy Hernandez Not Reported
Deputy Clerk Court Reporter
Attorneys Present for Plaintiff(s): Attorneys Present for Defendant(s):
Not Present Not Present
Proceedings (In Chambers): Supplemental Briefing Order

On February 13, 2019, the Court held a hearing on the motions to dismiss filed by
Defendants Providence Health & Services and its affiliate hospitals (the “Hospital Defendants”)
and J.A. Thomas and Associates, Inc. (“JATA”). See Dkts. # 56, 57. As the Court indicated at
the hearing, it believes that its decision on these motions could be aided by additional
submissions. Accordingly, the Court requests that the parties submit the following briefs and
materials.

A. Request for Judicial Notice

Defendants ask the Court to find at this stage that Relator Integra Med Analytics LLC’s
(“Relator”) claims are precluded by the False Claims Act’s public disclosure bar. This may
require the Court to determine whether various information available online about JATA’s
business practices was publicly disclosed from the news media within the meaning of the statute.
JATA originally submitted a request for judicial notice that contains links to various online
documents that Defendants contend were publicly disclosed from the news media. See Request
for Judicial Notice, Dkt. # 59 (“RJN”). For many of these documents, JATA simply linked
directly to the PDF of the document. See id. This is presumably because Defendants initially
took the position that the mere fact that a document is available online is enough to show public
disclosure. However, as the Court explained at the hearing, it believes that the public disclosure
inquiry may require analysis of the nature of the source of the online information. Because the
direct links to the PDFs do not allow the Court to see the context in which the documents were
available and presented, they do not allow for such an analysis.

Accordingly, for each document, JATA is requested to supplement its request for judicial
notice with additional information about the sources of the PDF documents and the context in

CV-90 (10/08) CIVIL MINUTES - GENERAL Page 1 of 3
Case 2:17-cv-01694-PSG-SS Document 75 Filed 02/14/19 Page 2 of 3 Page ID
#:1905
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. CV 17-1694 PSG (SSx) Date February 14, 2019
Title United States ex rel. Integra Med Analytics LLC v. Providence Health and Services, et al.

which the documents were presented. The Court envisions this including a link to the webpage
where the PDF documents are available (presumably as links on that page). In the event the
documents are linked on a subpage of an organization’s website, JATA should provide the Court
with instructions for how a user could navigate to that subpage from the organization’s home
page. If it is not possible to navigate directly to the subpage, and the subpage or document could
be found only through a search, JATA should inform the Court of that. JATA is requested to
submit this information to the Court no later than February 22, 2019.

B. Supplemental Briefs

After JATA supplements its request for judicial notice, the parties are requested to submit
supplemental briefs addressing the following issues:

1. The Court understood Defendants’ initial briefs to argue that Relator’s claims
would be precluded by the public disclosure bar as substantially similar to publicly disclosed
information only if the Medicare claims data, the reports from the HHS Office of the Inspector
General, and the online information about JATA’s business practices were all publicly
disclosed. See, e.g., JATA Reply, Dkt. # 57, 17:15–19 (“The combination of the publicly
disclosed Medicare claims data which reflects the rate at which certain secondary diagnosis
codes are used by Providence hospitals . . . and the public disclosures involving JATA’s business
practices and [HHS] OIG’s public skepticism about Kwashiorkor . . . are substantially similar to
Integra’s allegation in the SAC.”).

At the hearing, Defendants alternatively argued that the Court does not need to decide
whether the information about JATA’s business practices was publicly disclosed because public
disclosure of the Medicare claims data and the OIG reports alone would be enough to trigger the
public disclosure bar. As this argument has not yet been briefed, the parties are requested to
brief whether public disclosure of the Medicare claims data and OIG reports alone would be
sufficient to trigger the public disclosure bar because Relator’s allegations are substantially
similar to information from those sources. It appears that the Ninth Circuit’s decision in United
States ex rel. Mateski v. Raytheon Co., 816 F.3d 565 (9th Cir. 2016), may provide the standard
the Court should use evaluate substantial similarity. The parties are requested to address
whether Mateski supplies the relevant standard and, if it does, how the standard should be
applied in determining whether Relator’s allegations are substantially similar to information
from the Medicare claims data and OIG reports alone.

CV-90 (10/08) CIVIL MINUTES - GENERAL Page 2 of 3
Case 2:17-cv-01694-PSG-SS Document 75 Filed 02/14/19 Page 3 of 3 Page ID
#:1906
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL
Case No. CV 17-1694 PSG (SSx) Date February 14, 2019
Title United States ex rel. Integra Med Analytics LLC v. Providence Health and Services, et al.

2. As the Court explained at the hearing, it is not convinced by Defendants’ argument
that all information generally available online has been “publicly disclosed . . . from the news
media.” See 31 U.S.C. 3730(e)(4)(A). Accordingly, the parties are requested to further brief the
issue of what the term “news media” means in the statute. In light of the Supreme Court’s
instruction that courts interpreting undefined terms in the FCA should look first to their
“ordinary meaning,” see Schindler Elevator Corp. v. United States ex rel. Kirk, 563 U.S. 401,
407 (2011), the parties should, at a minimum, provide their views on the “ordinary meaning” of
the term “news media.” The parties should also address the level of generality at which the
Court should look at these sources; for example, should it decide whether YouTube as a whole is
a news media source or should it instead look at the individual YouTube account at issue?
Finally, for each piece of information about JATA’s business practices that Defendants argue
has been publicly disclosed, the parties should address why it has or has not been publicly
disclosed from the news media under the standard they propose.

3. In asking the Court to determine at this stage whether the information about
JATA’s business practices was publicly disclosed from the news media, Defendants rely on
information outside the complaint. Given that it appears that resolution of this issue may turn on
factual determinations about the nature of the online sources of the business practice
information, the parties are requested to brief whether this issue can be appropriately decided on
a motion to dismiss under Rule 12(b)(6).

The supplemental briefs should be submitted simultaneously on March 8, 2019 and may
not exceed 25 pages in length. As it appears that the Hospital Defendants and JATA largely take
the same positions on these issues, they are encouraged to submit a single joint brief. In the
event they choose to submit separate briefs, the combined page length of the briefs may not
exceed 25 pages.

IT IS SO ORDERED.

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