Letter to Chief Judge Bredar Re: United States v. Ron Elfenbein, 1:22-cr-00146-JKB (Dkt. 41, D. Md.)

Summary

Defense counsel Martin S. Himeles, Jr. wrote to Chief Judge James K. Bredar on July 5, 2023, the day before the pretrial conference in United States v. Ron Elfenbein, a health care fraud case in the District of Maryland. The letter says the government produced 60 transcripts of prior testimony by its principal expert, Stephen Quindoza, on June 13, 2023, and that they show Quindoza offering legal conclusions, such as that a provider is responsible for billing errors or cannot claim ignorance of Medicare rules. It asks the Court to bar such conclusions and to keep Quindoza from testifying about reckless disregard, the civil False Claims Act standard, because criminal health care fraud requires acting knowingly, willfully and with intent to defraud. It also asks that three words be omitted when paragraph 30(b) of the Superseding Indictment, quoting Form 855B, is read to the jury.

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Ma r t i n Hi m e les
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41 0 .9 4 9. 11 4 4

July 5, 2023

BY HAND DELIVERY

The Honorable James K. Bredar, Chief United States District Judge
c/o Clerk’s Office
U.S. District Court for the District of Maryland
101 West Lombard Street
Baltimore, Maryland 21201

Re: United States v. Ron Elfenbein, 1:22-cr-00146-JKB

Dear Chief Judge Bredar:

The pretrial conference in the above matter is scheduled for tomorrow at 1:30 p.m. We are
writing to highlight two matters that recently have come to our attention, and which we would ask
that the Court address at the conference.

On June 13, 2023, shortly before motions in limine were due, the government produced 60
transcripts of prior testimony of its principal expert witness, Stephen Quindoza, consistent with its
discovery obligations. After completing and filing our motions in limine, we began to review Mr.
Quindoza’s prior testimony, and it raises significant concerns. First, the testimony suggests that
Mr. Quindoza, a frequent government witness in health care fraud cases, may be asked to testify
to conclusions of law, or may volunteer such conclusions even if not asked. Second, Mr.
Quindoza’s prior testimony raises concerns that the jury will be presented with testimony
concerning the reckless disregard standard applicable in civil False Claims Act cases, which has
no application in this case and would risk confusing the jury to Dr. Elfenbein’s detriment.

I. Mr. Quindoza must be precluded from offering legal conclusions.

Mr. Quindoza has testified for the government in health care fraud and other criminal cases
involving Medicare well over one hundred times. In most almost every case, one purpose of his
testimony is to explain what Medicare is, how it works, and what rules apply to physicians and
other health care providers when they bill for services provided to Medicare beneficiaries. Such

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THE HONORABLE JAMES K. BREDAR
JULY 5, 2023
PAGE 2

testimony can be entirely proper in helping the jury understand the complex regulatory background
against which Medicare claims are submitted, but it cannot include testimony concerning legal
conclusions or dispositive legal issues. In Mr. Quindoza’s prior testimony, however, he has often
been asked to testify to legal conclusions, and even when not asked, he is quick to offer such
testimony. Because Mr. Quindoza’s legal conclusions would usurp both the Court’s function in
instructing the jury concerning the law and the jury’s function in applying the law to the facts, this
Court should prohibit Mr. Quindoza from offering such testimony.

“Expert testimony that states a legal conclusion or concerns dispositive legal issues is
generally inadmissible.” United States v. Blair, No. CR ELH-19-00410, 2021 WL 5040334, at *9
(D. Md. Oct. 29, 2021) (citing Adalman v. Baker, Watts & Co., 807 F.2d 359, 368 (4th Cir. 1986),
abrogated on other grounds by Pinter v. Dahl, 486 U.S. 622, (1988)). An exception to this rule
may be appropriate where a case involves “specialized . . . legal regimes” and “complex concepts,”
but only if the court determines that any “arguabl[e] . . . legal conclusion[s]” would assist the jury.
United States v. Offill, 666 F.3d 168, 175 (4th Cir. 2011). “[I]t does not help the jury for an expert
to give testimony that states a legal standard or draws a legal conclusion by applying law to the
facts . . . because it supplies the jury with no information other than the witness’s view of how the
verdict should read.” Id. (internal citations and quotation marks omitted). Moreover, courts must
ensure that proposed expert testimony does not “take away from the jury its responsibility to
determine the facts and, ultimately, whether the defendants are liable.” Sprint Nextel Corp. v.
Simple Cell, Inc., No. CV CCB-13-617, 2016 WL 524279, at *5 (D. Md. Feb. 10, 2016).

When Mr. Quindoza testifies, he is invariably asked to explain the requirements for
providers enrolling in Medicare, including the requirement that they certify that they will not
submit false claims, and the defendant’s certification to that effect. Such testimony may be
permissible, but Mr. Quindoza frequently does not stop by explaining what Medicare requires
providers to sign and what the defendant signed; he testifies that the provider, rather than the billing
company or other person who submits claims, is “responsible for” or “obligated to” ensure that
claims are not false. But a provider’s “responsibilities” and “obligations” are matters of law, and
responsibility for false claims in the civil context is far different than criminal responsibility. Cf.
Marx & Co. v. Diners’ Club Inc., 550 F.2d 505, 509–10 (2d Cir. 1977) (expert witness’s testimony
interpreting the contract term “best efforts” was improper).

Yet Mr. Quindoza routinely offers such testimony. In one case, Mr. Quindoza testified that
a certification the defendant was required to sign as part of his Medicare enrollment meant that he
was obligated to learn a broad range of regulations, unspecified CMS guidance, and even the
policies of unidentified CMS contractors, and could not claim ignorance of the Medicare rules of
regulations:

Q. Sir, we won't walk through the entirety of this paragraph but you
-- can you please explain to the jury what it says, generally?

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THE HONORABLE JAMES K. BREDAR
JULY 5, 2023
PAGE 3

A. It says that they will understand the rules and regulations of the
Medicare program and that they -- he will also follow them.

Q. And what rules and regulations of the Medicare program are
encompassed here?

A. Federal regulations, state, CMS guidance in their manuals,
policies issued by the contractors, anti-kickback statutes, and the
Stark law.

Q. Everything we have been talking about for the last hour?

A. Yes, sir.

Q. And at the beginning, it says, "I am familiar with" and agree to
abide by. What's the significance of "I am familiar with"?

A. That means he will learn them and understand them and also
follow them.

Q. Can a provider who participates in Medicare claim ignorance of
the Medicare rules and regulations?

A. No.

United States v. Kaplowitz, (S.D. Fl. Jan. 28, 2015) at Tr. 227:5-25. Mr. Quindoza thus construed
a statement of familiarity with the rules and regulations of the Medicare program and an agreement
to follow them as establishing familiarity with every policy and all guidance—of both CMS and
its contractors—and as further obligating the provider to study all future statutes, regulations,
policies and guidance. On that basis, he announced that there is an irrebuttable presumption that
providers have such knowledge. This obligation does not merely apply to knowledge of legal
requirements of Medicare. The CMS guidance and policies of Medicare include factual matters,
such as Medicare’s and its contractors’ policies and guidance concerning the meaning and use of
CPT codes. Such an aggressive interpretation of the certification reflects Mr. Quindoza’s legal
conclusion, and in a criminal case, it does away with the government’s burden to prove knowledge,
intent, and willfulness.

Mr. Quindoza often gives testimony like this:

Q. At the end of the day, though, who is responsible for the
truthfulness of the claim?

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THE HONORABLE JAMES K. BREDAR
JULY 5, 2023
PAGE 4

A. The practice.

Q. The doctor?

A. Yes, sir.

Q. Not the billing company?

A. That is correct.

United States v. Moss (M.D. GA. May 9, 2019) at Tr. 20:19-25. The jury is left to believe that the
provider is strictly liable for billing errors, without regard to his knowledge of them.

Lawyers who attempt to correct the misimpressions caused by Mr. Quindoza’s testimony
are met with even broader assertions that providers have an obligation to have as much knowledge
as he has, after forty years of experience, as in the following testimony on cross-examination:

Q. Well, what you just testified to is pretty complicated, isn’t it?
Maybe not to you; you’re in it every day. But if you’re not somebody
of your background, a layperson, or a young doctor or a doctor that’s
busy wouldn’t be as well versed as you are, would they?

[...]

THE WITNESS: They may not be, but they sign that application,
and they said they will understand it and they will follow it, so they
are obligated to know.

Q. Sir, my question to you was: Would you expect a young doctor
or a layperson or a busy doctor would be as well versed in it as you.
And your answer is?

A. I would expect a layperson not to understand it. I would expect a
young doctor to go find the information. I would expect an
experienced doctor to understand the rules as it applies to the claims
they submit, because that's what they said they would do.

Q. Okay. Sir, my question a third time to you is: Would you expect
any of those three categories to be as well versed in the Medicare
rules and regs as you are?

A. They should be, because they agreed to it.

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THE HONORABLE JAMES K. BREDAR
JULY 5, 2023
PAGE 5

United States v. Kumar (S.D. Fl. Feb. 7, 2019) at Tr. 65:1-24.

In all of these ways, Mr. Quindoza’s testimony routinely veers into expressions of his own
legal conclusions concerning what violates the law. Such testimony “supplies the jury with no
information other than the witness’s view of how the verdict should read.” Offill, 666 F.3d at 175.

That is not to say that Mr. Quindoza’s explanation of the Medicare program has no role in
the trial. The government is certainly entitled to offer his testimony, free of legal conclusions,
concerning the nature of the program, the provider enrollment process, the way claims are
adjudicated, and the applicable billing rules, including his understanding of the requirements for
the CPT codes at issue. His separate testimony concerning summaries of Medicare claims data
may be permissible as well, provided the summaries are accurate—a subject addressed in our
Motion in Limine. But the government cannot invite him to express his own legal conclusions,
such as that Dr. Elfenbein was “responsible for” errors even if he did not make them and was not
aware of them, or that Dr. Elfenbein was obligated to understand complex and convoluted
guidance and cannot rely on his good faith understanding of billing requirements if it differs from
the government’s contentions. Such testimony will not help the jury, but rather, it will usurp the
jury’s role of applying the law, as reflected in the Court’s instructions, to the facts.

We do not know whether the prosecutors in this case, like those who tried most of the cases
in which Mr. Quindoza has testified, will ask improper questions that elicit such testimony. But
based on the questions asked of Mr. Quindoza in other cases—and his testimony even when not
asked—we believe it is important to address this issue now and ensure that Mr. Quindoza will not
testify to these improper legal conclusions. Further, we would ask that, prior to his testimony, the
Court caution Mr. Quindoza not to express legal conclusions or testify concerning Dr. Elfenbein’s
or any provider’s obligation to understand CMS’s and its contractors’ policies and guidance, or to
understand the governing rules and regulations. Likewise, Mr. Quindoza should be cautioned not
to suggest that Dr. Elfenbein is presumed to know what the billing company, or other providers
who worked for Drs ERgent Care, were thinking or doing. The government cannot meet its burden
by substituting Mr. Quindoza’s presumption for actual knowledge.

II. Mr. Quindoza should be precluded from testifying about “recklessness,” and the
Court should ensure that the jury is not confused as to the relevant scienter standard
here.

Review of Mr. Quindoza’s prior testimony also suggests that he may offer testimony about
“reckless disregard” of the accuracy of claims, a scienter standard that has no place in this criminal
case. The Court should prohibit Mr. Quindoza from doing so.

According to the government’s expert disclosure, Mr. Quindoza will explain that “[t]o
participate in Medicare, providers and suppliers are required to submit an application in which
they agree to abide by the laws, policies, procedures, rules, and regulations governing

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THE HONORABLE JAMES K. BREDAR
JULY 5, 2023
PAGE 6

reimbursement.” Such testimony refers to the Medicare enrollment form, CMS Form 855B. By
signing the form, providers agree 1) not to “knowingly present or cause to be presented a false or
fraudulent claim for payment by Medicare” and 2) not to “submit claims with deliberate ignorance
or reckless disregard of their truth or falsity.” Sup. Ind. ¶ 10 (quoting CMS Form 855B) (emphasis
added). The agreement tracks the scienter requirement in the civil provisions of the False Claims
Act, which confers liability on any person who “knowingly presents, or causes to be presented, a
false or fraudulent claim[.]” 31 U.S.C. § 3729(a)(1)(A). The statute defines “knowing” as meaning:

that a person, with respect to information—

(i) has actual knowledge of the information;

(ii) acts in deliberate ignorance of the truth or falsity of the
information; or

(iii) acts in reckless disregard of the truth or falsity of the
information.

Id. at § 3729(b)(1)(A). Mr. Quindoza’s testimony typically almost always includes, and sometimes
highlights, the reference to “reckless disregard.”

To establish a criminal violation of 18 U.S.C. § 1347, however, the government must prove
that a defendant acted knowingly, willfully, and with intent to defraud. Mere recklessness does not
suffice, as the parties’ Joint Proposed Jury Instructions and the Court’s standard instructions
reflect. ECF No. 34 (Instruction Nos. 15 (Knowingly), 16 (Willfully), 17 (Intentionally), 43 (Intent
to Defraud)). Testimony about a “recklessness” standard—even one to which Dr. Elfenbein, like
every Medicare provider, was required to agree—would not be helpful to the jury and would likely
confuse them as to the state of mind required for health care fraud. See Offill, 666 F.3d at 175
(“The touchstone of [Rule 702] is whether the testimony will assist the jury.”). To the extent the
government wishes to offer in evidence Form 855B and have Mr. Quindoza testify about it or read
portions of it aloud to the jury, the reference to “reckless disregard” should be redacted and Mr.
Quindoza should be required not to mention it.

Similarly, the Court should ensure that the jury is not otherwise presented with a conflicting
and incorrect scienter standard. The superseding indictment alleges that that Dr. Elfenbein
“submitted and caused the submission of enrollment documents to Medicare for Drs ERgent Care,
in which he attested he would ‘not knowingly present or cause to be presented a false or fraudulent
claim for payment by Medicare, and [] will not submit claims with deliberate ignorance or reckless
disregard of their truth or falsity.’” Sup. Ind. ¶ 30(b) (emphasis added). This language, lifted from
the civil false claim statue, is not an accurate statement of the scienter required in a criminal health
care fraud case, where the government must prove that the defendant acted knowingly, willfully,
and with intent to defraud.

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THE HONORABLE JAMES K. BREDAR
JULY 5, 2023
PAGE 7

“[T]here is ample precedent for redacting an indictment to exclude a mens rea element not
required by the applicable statute.” United States v. Peralta, 930 F. Supp. 1523, 1528 (S.D. Fla.
1996) (citing cases), aff'd, 31 F. App'x 201 (11th Cir. 2001). Dr. Elfenbein does not contest that
he signed the Medicare enrollment form, nor does he contest that the form includes the quoted
language. He does, however, request that the Court omit the three words in bold font from any
reading of the Superseding Indictment.1 Recklessness is not the scienter standard in this case, and
mentioning it can only foster jury confusion. Courts should not read unredacted indictments to the
jury if undue prejudice would result. See United States v. Coleman, 552 F.3d 853, 859–60 (D.C.
Cir. 2009).

We look forward to addressing these and other matters at this week’s pretrial conference.

Respectfully,

/s/ Martin S. Himeles, Jr.
Martin S. Himeles, Jr.

cc: Gregg L. Bernstein, Esq.
Samantha A Miller, Esq.
Matthew Phelps, AUSA
D. Keith Clouser, USDOJ

1
The Joint Proposed Jury instructions suggest that the Court read paragraphs 25-31 of the
superseding indictment. ECF No. 34 (Instruction No. 11). These paragraphs include one reference
to “reckless disregard,” in paragraph 30(b).

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