United States District Court, D. Connecticut
UNITED STATES ex rel. PAUL FABULA, and PAUL FABULA, individually, Plaintiff-Relator
v.
AMERICAN MEDICAL RESPONSE, INC., Defendant.
RULING ON MOTION FOR RECONSIDERATION
MICHAEL P. SHEA, U.S.D.J.
I.
INTRODUCTION
I
assume familiarity with and incorporate by reference the
Court's Summary Judgment Ruling, ECF No. 177, granting in
part and denying in part Defendant AMR's motion for
summary judgment. Fabula filed a motion for reconsideration
on September 23, 2019. ECF No. 178. For the following
reasons, the motion for reconsideration is denied.
II.
LEGAL STANDARD
Under
District of Connecticut Local Rule of Civil Procedure 7(c), a
party may file a motion for reconsideration, which is
“equivalent as a practical matter to a motion for
amendment of judgment under Fed.R.Civ.P. 59(e).”
Salvagno v. Williams, No. 3:17-CV-2059 (MPS), 2019
WL 2720758, at *4 (D. Conn. June 27, 2019); City of
Hartford v. Chase, 942 F.2d 130, 133 (2d Cir. 1991).
Local Rule 7(c) explicitly notes that “[s]uch motions
will generally be denied unless the movant can point to
controlling decisions or data that the court overlooked in
the initial decision or order.” And the Second Circuit
has approved a strict standard on motions for
reconsideration, holding that “[a] motion for
reconsideration should be granted only when the defendant
identifies an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear
error or prevent manifest injustice.” Kolel Beth
Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr.,
729 F.3d 99, 104 (2d Cir. 2013). “It is well-settled
that [a motion for reconsideration] is not a vehicle for
relitigating old issues, presenting the case under new
theories, securing a rehearing on the merits, or otherwise
taking a ‘second bite at the apple' . . . .”
Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir.
1998).
III.
DISCUSSION
In his
motion for reconsideration, Fabula argues that “the
Court overlooked data and factual matter which, at the very
least, create triable issues of fact warranting denial of
summary judgment in the entirety.” Fabula Mem., ECF No.
178-1 at 3. But the motion does not “point to
controlling decisions or data that the court
overlooked-matters, in other words, that might reasonably be
expected to alter the conclusion reached by the court.”
Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d
Cir. 1995). Indeed, most of the evidence and arguments
discussed in the motion are addressed in the Court's
summary judgment ruling. To the extent Fabula cites evidence
not explicitly addressed in the original ruling, that
evidence is not controlling and does not alter the
conclusions I reached in the summary judgment ruling. I
address some of the major points in the motion below, but do
not address points already discussed at length in the summary
judgment ruling.
A.
Emails from Lindsay Martus (ECF No. 153 at 20-21; ECF No.
152-5 at 29)
Fabula
points to two emails from AMR supervisor Lindsay Martus that
he claims “establish[] that [] AMR provided
instructions to EMTs and paramedics to revise and/or prepare
addenda for PCRs to establish medical necessity.”
Fabula Mem., ECF No. 178-1 at 4. These emails do not relate
to the Complaint Ambulance Runs as to which Fabula was
required to submit evidence raising a genuine dispute of
material fact. The Complaint Ambulance Runs for patient WP
occurred in Summer 2011, but the emails discuss an October 1,
2010 transport, ECF No. 153 at 20-21, and a March 15, 2011
transport that Fabula was not on, ECF No. 152-5 at 29.
Neither of these emails creates a genuine dispute of material
fact as to whether AMR submitted a false claim to the
Government in connection with a Complaint Ambulance Run.
Fabula
also misstates the nature of these emails and overstates
their import. Compare Fabula Reply, ECF No. 185 at 5
(“Two of those emails (ECF Nos. 153 at [20-21], 152-5
at 29) plainly evidence that AMR instructed its personnel to
provide false or misleading information in addenda to
establish medical necessity. . . . Glaringly absent from the
emails is any language indicating that the written
instructions about what to add are discretionary or merely a
‘guide' or ‘helpful information.'”)
with Martus Email, ECF No. 153 at 21 (“[W]hen
I put the paperwork out to ops with the med nec reason that
we have on file it doesn't mean that the employee must
document the reason I noted, this is just helpful
information . . . .”) (emphasis added)
and Martus Email, ECF No. 152-5 at 29 (“Mr[.]
Bodiford is also NOT REQUIRED to document what we write on
the cover sheets, this is just a guide for the
EMT/or Medic to assist the author of the PCR.”)
(emphasis added).
B.
Berry Deposition (ECF No. 152-3 at 61)
Fabula
also highlights deposition testimony by his expert, Peter
Berry, to support his argument that two addenda for patient
WP “stating that the patient was unable to sit due to
‘postural hypotension' were false, in that the
contemporaneous information in the PCRs entered at the time
of the runs did not indicate that WP was suffering from
postural hypotension at the time of the run, and contained no
medical information to support such a diagnosis.”
Fabula Mem., ECF No. 178-1 at 4-5. Specifically, Berry
testified that he found “no physical findings
whatsoever of postural hypotension in any of the
documents” relating to patient WP, including any of the
physical assessments or vital signs. Berry Dep., ECF No.
152-3 at 61 (emphasis added).
This
argument relies on a theory that was not pled-i.e.,
that AMR failed to comply with Medicare rules because it
failed to document vital signs or make other physical
assessments in its PCRs. See Summ. J. Ruling, ECF
No. 177 at 37. With respect to the transports of WP, the
Fourth Amended Complaint pled a theory of factually false
addenda that “include[d] false statements purportedly
demonstrating medical necessity . . . whether or not
ambulance service was in fact medically necessary in the
particular case.” United States ex rel.
Chorches for Bankr. Estate of Fabula v. Am. Med.
Response, Inc., 865 F.3d 71, 76 (2d Cir. 2017).
Fabula's argument now seeks to draw unsupported and
unreasonable inferences that lack of documentation amounts to
evidence of factual falsity. See, e.g., Fabula
Reply, ECF No. 185 at 6-7 (claiming that PCRs for WP
demonstrate “objective falsity because they contain no
medical information of any kind demonstrating postural
hypotension”). For patient WP, the failure to document
evidence of postural hypotension (failing to document vital
signs, for example) on each PCR simply does not suggest that
patient WP did not suffer from that condition. See
also Summ J. Ruling, ECF No. 177 at 28 (“Fabula
was not involved with the runs he has identified and has
offered no evidence that patient WP did not actually suffer
from postural hypotension.”). Because the Fourth
Amended Complaint pled a theory of factual falsity,
i.e., that AMR instructed crew members to insert
factually false information into revisions to PCRs, it was
Fabula's burden to produce some evidence of factual
falsity with respect to the Complaint Ambulance Runs
involving patient WP; nothing in the motion for
reconsideration suggests that he did so.
C.
Fourth ...