Posted by Scott Stein and Jennifer Cheung
The First Circuit recently vacated and remanded a lower court’s grant of summary judgment for the defendant in an FCA case based on allegations that defendant submitted a grant application to the National Institute on Aging for research that relied on falsified data. See United States ex rel. Jones v. Brigham and Women’s Hosp., et al., No. 10-2301, slip op. at 51 (1st Cir. May 7, 2012). The opinion is noteworthy for its detailed discussion of the role of expert testimony on summary judgment. Id. at 11-23.
According to the relator, the defendant allegedly altered study data (regarding certain measurements of the brain and conversion to Alzheimer’s disease) to make it statistically significant, and then knowingly included a discussion of this falsified data in a grant application to support a larger proposed study on Alzheimer’s disease. Id. at 2. Defendants allegedly received funds while knowingly in violation of regulations that required applicants to investigate and report allegations of scientific misconduct. Id. at 3.
One of relator’s three experts, Dr. Daniel Teitelbaum, stated that the falsified data was generated by the cherry-picking of study subjects in a non-random fashion that deviated from blinded and reliable research protocols. Id. at 15-16. In Dr. Teitelbaum’s view, had the original non-falsified data been used, the data would not be statistically significant and such results would not support the grant application. Id. Dr. Norbert Schuff took the position that defendant’s revisions of the data was extensive, inconsistent with initially adapted protocol, and made with knowledge of the study subjects’ diagnoses. Id. at 12-13. In his view, the objectivity of the measurements was material to the review of the grant application. Id. Similarly, Dr. Martha Isabel Davila-Garcia, a past application reviewer, took the position that the grant application contained a number of statements that were material to the funding decision. Id. at 13-15. In addition, in her view, the subsequent inquiry into the alleged misconduct by the defendant’s boss and mentor was insufficient. Id.
The lower court found that the relator had not generated genuine issues of material facts on any of the elements at issue – falsity, materiality, and knowledge – in its summary judgment ruling. Id. at 18. The relator challenged this conclusion, noting that the lower court did not mention Dr. Teitelbaum’s report, its admissibly, or the defendant’s motion in limine to preclude relator from offering certain expert testimony and evidence. Id. at 18-21.
While the First Circuit acknowledged that the lower court should be afforded great discretion in deciding whether to admit or exclude opinion evidence, it nevertheless held that the lower court committed an error of law and abused its discretion by failing to admit or exclude Dr. Teitelbaum’s report. Id. at 21-23. But rather than simply remand the case for further proceedings, the Court of Appeals examined the parties’ submissions to the trial court and concluded that the dispute over Dr. Teitelbaum’s qualifications was not sufficient to bar admissibility of his testimony. Id. at 23. According to the Court of Appeals, Dr. Teitelbaum’s testimony was connected to the heart of the relator’s claims. Id. at 22. Turning to the question of whether Dr. Teitelbaum’s testimony with other record evidence, including Dr. Schuff and Dr. Davila-Garcia’s testimonies, generated genuine issues of material fact, the Court of Appeals concluded that it did and therefore reversed and remanded the case to the lower court. Id. at 23-51.