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  • Writer's pictureKirk Hartley

Litigation Industry Dynamics for Health-Care Fraud Whistleblower Claims, and Judges as a Catalyst fo

Sheri Qualters authored this interesting article in the National Law Journal on changing dynamics in a specific portion of today’s litigation industry. The article focuses on the large number of health fraud whistleblower cases pending in Boston and other venues, and apparent judicial decisions to unseal cases earlier as a means for addressing long delays and pushing cases forward. In short, judges appear to lifting seals on the cases to force the parties to move forward, one way or the other. The apparent judicial tactic highlights the reality that litigation is indeed an industry, and the judiciary can and does influence how the industry unfolds. Ms. Qualters article goes on to cover various aspects of the larger issues and some case specific issues. The following touches on some points raised in the article, and some broader points about the litigation industry.

The article includes some useful data to provide some perspective on the significance of the healthcare fraud subpart of the litigation industry, and whistleblowers as a force within that subpart:

"Justice Department data show a steady climb in recent years of whistleblower fraud cases in which the U.S. Department of Health and Human Services is the primary client agency, from 202 new matters filed in fiscal year 2007 to 383 in fiscal year 2010. The District of Massa­chusetts has unsealed three of 25 pending False Claims Act cases before the government decided whether to jump in. One was unsealed more than two years ago, but the government has yet to make an intervention decision. The government declined to intervene in the two other cases shortly after they were unsealed. Of the remaining cases, the government has declined to intervene in a dozen, intervened in five and not made an intervention decision in five others."

Health care industry lawyers can view earlier unsealing as a positive or a negative. Earlier unsealing may give them a better chance at winning a Twombly/Iqbal pleading motion based on a lack of "enough" detail if it can be launched and won before government intervention adds an imprimatur and perhaps fact investigation. On the other hand, for a liable/guilty company, early unsealing may make it harder to control the dynamics of settlement and related media spin and attention, thus increasing reputation risk and financial risk. Other variables of course also exist.

For private plaintiffs, earlier unsealing can be a negative in raising the effort level but that may be offset be creating settlement leverage for a case. For government lawyers, the delays highlight the need for NOT cutting budgets, and for creating specialist lawyers who can quickly analyze evidence and law, as is done in private litigation boutiques on both sides of issues. One might argue the feds should embrace a model of creating national specialists who could "parachute in" to a case in any district and avoid concentration of cases in specific courts. On the other hand, some would argue that having specialist courts is desirable, and inevitable because of physical concentration of industry businesses.

Taxpayers also have a stake. Some might say that long time frames for sealing are not a good idea, and that the public should know the issues immediately, especially as the health care debate continues and costs increase, with fraud playing some part in the gaming of the system, in some instances. On the other hand, sealing may discourage cranks wrongly seeking to punish a company (there probably are some cranks), and at least for some amount of time, sealing may encourage taking a case forward to the point that guilty/liable defendants will settle quickly if they can avoid a long string of bad press and efficiently clean up a problem. Ms. Qualters’ article includes some insightful quotes from some judges.

Overall, the litigation industry dances highlight the need for smart, savvy, and experienced judges who can find the right line between dictating outcomes and pushing cases forward. Hopefully the judges can help the parties focus on key issues, and produce outcomes which approximate something that most of us perceive as "justice" in general and in a specific case.

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