Davita Dialysis Centers settle non-intervened qui tam lawsuit for $495 million
Regular readers might recall my post on an epic discovery battle fought in the Northern District of Georgia. Today, I am happy to announce that a very abnormal discovery battle has ended and Davita Dialysis Centers will settle a non-intervened qui tam lawsuit for $495 million. The entire case has settled as a result of the aforementioned discovery battle, after it became clear that a federal judge was not going to allow certain very bizarre discovery shenanigans by DaVita to continue.
And when I say that the discovery shenanigans were bizarre, I mean they were bizarre. In a nutshell, during fact discovery numerous witnesses changed their testimony in the exact same way either during their depositions or after the fact via an errata sheet. How exactly DaVita and their lawyers thought this ruse would work is beyond comprehension, but in my opinion it worked out exactly like it should have.
That is to say, with U.S. District Judge Charles A. Pannell interviewing the witnesses himself in chambers, DaVita’s lawyers hiring their own lawyers, and with the Judge ultimately declaring the attorney-client privilege between DaVita and its lawyers null and void and ordering discovery re-opened so that relator’s counsel could probe into the exact communications that caused each and every witness to change their testimony on the exact same topic.
And when that happened, the case settled to the tune of $495 million dollars, making it one of the larges non-intervened settlements of all time. (As regular readers know, when a case is non-intervened it means the relator and his lawyers — in this case, Marlan Wilbanks and L. Lin Wood — prosecute the case themselves, without assistance from the Government.)
That, in and of itself, would be interesting enough to warrant a blog post, but there was one final interesting twist this week with the press releases issued by the United States Department of Justice and the U.S. Attorney’s Office for the Northern District of Georgia. The use of press releases by DoJ is of course one way the Government wields its power, and it is also one of the ways DoJ and the United States spread the word about the power of the federal False Claims Act; as a result, DoJ always does a press release when it settles a case, or when a criminal indictment is handed down, or when other breaking news takes place. When a non-intervened case settles, however, the United States does not normally issue a press release.
Moreover, even when Justice does a press release for an intervened qui tam case, they do not include the name of the relator’s private counsel or even disclose the fact that the relator had private counsel. But yesterday, the U.S. Attorney’s Office for the Northern District of George broke both taboos, at least for a short period. First, it issued this press release which names Marlan Wilbanks and Lin Wood by name as the relators’ lawyers and gives credit where credit is due for their extraordinary efforts. The original press release includes the following on page three:
The United States did not intervene in the whistleblowers’ action; counsel for the whistleblowers, L. Lin Wood and Marlan B. Wilbanks, litigated this action, which was monitored by the United States Attorney’s Office for the Northern District of Georgia and the Civil Division of the United States Department of Justice. To bring this case to its successful resolution, whistleblowers Dr. Vanier and Mr. Barbir, along with their attorneys, Lin Wood and Marlan Wilbanks, engaged in extensive and exceptional litigation efforts.
Later that same day, the press release was modified to read as such on the webpage for the Northern District of Georgia USAO.
Oh well — but congrats to Mr. Wilbanks and to Mr. Wood are in order for their historic and hard-fought victory!
