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Hundreds of Millions of Potential Liability Result from Federal Jury False Claims Act Verdict Against Ophthalmology Product Distributor

By Michael Shaheen, Lyndsay Gorton, Payal Nanavati & Amanda McDowell on March 6, 2023
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In a prime example of the significant interplay between the Anti-Kickback Statute (“AKS”) and the False Claims Act (“FCA”), a federal jury has returned a verdict of more than $43 million in damages against Cameron-Ehlen Group, Inc., which does business as “Precision Lens,” and its owner.  The verdict in this long-running and closely watched fraud case out of the U.S. District Court for the District of Minnesota comes after a six-week trial, with the jury ultimately finding that the defendants paid kickbacks to ophthalmic surgeons to induce their use of defendants’ products in cataract surgeries reimbursed by Medicare, resulting in the submission of 64,575 false claims between 2006 and 2015.  While the jury calculated damages at the massive sum of $43 million, that number may grow exponentially after the court applies the FCA’s treble-damages calculation (increasing the liability to $129 million) and statutory penalties of between $5,500 and $11,000 for each of the 64,575 claims (resulting in additional penalties of $355 million to $710 million).  All told, the total FCA liability is expected to range between $485 million and $839 million.

The 2015 qui tam complaint at the heart of this matter asserted that, in exchange for “lavish hunting, fishing and golf trips, private plane flights, frequent-flyer miles and other items of value,” ophthalmologists used products supplied by Precision Lens in various ophthalmology procedures.  More specifically, the owner of Precision Lens belonged to numerous elite clubs, owned a private resort, and partially owned exclusive hunting land where he purportedly entertained physicians without receiving fair market value compensation between 2004 and 2014.  According to the complaint, to finance these trips, Precision Lens created a “slush fund” that was used to “hide” over $100,000 in “marketing rebates.”  After these excursions, physicians allegedly ordered supplies from Precision Lens—departing from their prior practice of buying supplies directly from the manufacturer.  As a result, the complaint posited, Precision Lens became “the exclusive distributor in the Midwest region.”

The Government intervened in the suit in August 2017.  Also in 2017, two other defendants, Sightpath Medical—a former corporate partner of Precision Lens—and its former CEO, agreed to pay $12 million to resolve similar allegations of illegally providing luxury trips and consulting agreements to induce the use of specific eye-surgery products in Medicare surgeries.

This case highlights the interplay between the AKS and the FCA with the Government arguing that claims for payment submitted to Medicare or Medicaid that include items or services tainted by an AKS violation are automatically deemed false claims under the FCA, regardless of whether a defendant had the specific intent to violate the AKS or FCA.  Moreover, because there are no offset provisions under the AKS, the Government takes the position that the entirety of the claim is deemed tainted and that there should be no consideration for value conveyed or the medical reasonableness of using the product at issue.  As a result, and as demonstrated by this case, AKS violations under Medicare or Medicaid can snowball into an avalanche of damages. 

This case will be one to continue watching as the judge has not yet issued a decision on the magnitude of the penalties.

Photo of Michael Shaheen Michael Shaheen

Michael Shaheen is a partner in the White Collar & Regulatory Enforcement and Health Care groups in the Washington, D.C. office of Crowell & Moring. His practice focuses on federal litigation, investigations, and enforcement actions. Michael has significant experience with the False Claims…

Michael Shaheen is a partner in the White Collar & Regulatory Enforcement and Health Care groups in the Washington, D.C. office of Crowell & Moring. His practice focuses on federal litigation, investigations, and enforcement actions. Michael has significant experience with the False Claims Act (FCA), with particular emphasis on health care fraud.

Before joining Crowell & Moring, Michael served as a Trial Attorney with the Fraud Section of the Department of Justice (DOJ), where his work primarily involved investigating and prosecuting FCA matters. At DOJ, he obtained judgments totaling hundreds of millions of dollars and was involved in the settlement of numerous false claims cases of similar magnitude. Michael served in a variety of roles in these cases, ranging from first-chair trial attorney to lead investigator.

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Photo of Lyndsay Gorton Lyndsay Gorton

Lyndsay Gorton is a Government Contracts counsel in Crowell & Moring’s Washington, D.C. office. Her practice focuses on government contracts litigation and counseling, including government investigations, fraud matters under the False Claims Act, bid protests, and federal and state regulatory compliance. In addition…

Lyndsay Gorton is a Government Contracts counsel in Crowell & Moring’s Washington, D.C. office. Her practice focuses on government contracts litigation and counseling, including government investigations, fraud matters under the False Claims Act, bid protests, and federal and state regulatory compliance. In addition to her primary government contracts practice, Lyndsay has federal court litigation experience representing a broad variety of clients in commercial litigation matters, and has led and managed teams at every stage of litigation, including discovery, dispositive motion practice, trial, and settlement. She also uses her litigation experience to assist her clients with internal investigations, risk management, and compliance.

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Photo of Payal Nanavati Payal Nanavati

Payal Nanavati is a counsel in the firm’s Washington, D.C. office, where she practices in the Health Care and Government Contracts groups. Payal’s government contracts practice focuses on defending companies under the False Claims Act, litigation before the Armed Services Board of Contract…

Payal Nanavati is a counsel in the firm’s Washington, D.C. office, where she practices in the Health Care and Government Contracts groups. Payal’s government contracts practice focuses on defending companies under the False Claims Act, litigation before the Armed Services Board of Contract Appeals, and bid protests before the Government Accountability Office. Her health care practice includes working with providers and plans seeking to comply with laws and regulations applicable to digital health initiatives, fraud and abuse, and mental health parity.

Payal is a co-host of Crowell & Moring’s health care podcast, Payers, Providers, and Patients – Oh My!, which covers legal and regulatory issues that affect health care entities’ in-house counsel, executives, and investors.

Payal’s recent pro bono representations include clients seeking asylum or legal immigration status under the Violence Against Women Act and successfully defending against eviction attempts by a client’s landlord. During law school, Payal served as a staff member for the Journal of Gender and Law.

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Photo of Amanda McDowell Amanda McDowell

Amanda H. McDowell is an associate in the Government Contracts and Health Care groups in Crowell & Moring’s Washington, D.C. office. Amanda represents contractors in litigation, regulatory, and counseling matters. Her practice focuses on False Claims Act litigation, government investigations, bid protests, and…

Amanda H. McDowell is an associate in the Government Contracts and Health Care groups in Crowell & Moring’s Washington, D.C. office. Amanda represents contractors in litigation, regulatory, and counseling matters. Her practice focuses on False Claims Act litigation, government investigations, bid protests, and state and federal regulatory compliance.

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  • Posted in:
    Health Care and Life Sciences
  • Blog:
    Government Contracts Legal Forum
  • Organization:
    Crowell & Moring LLP
  • Article: View Original Source

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