United States ex rel. Jamison v. McKesson Corp.
2011 U.S. App. LEXIS 16194
5th Cir.2011Background
- Jamison, a Durable Medical Equipment (DME) seller, alleged Beverly Enterprises and McKesson participated in a fraudulent joint-venture scheme to obtain Medicare Part B reimbursements.
- He learned of potential fraud from public Office of Inspector General (OIG) reports and other government documents.
- The initial complaint in 2004 contained general schemes and named about 450 defendants but lacked specific allegations against any particular defendant.
- After government intervention in 2008, the district court dismissed the action for lack of jurisdiction under the FCA public disclosure bar.
- The court addressed FCA jurisdiction using a three-part framework (public disclosure, basis of the action, original source) and held Jamison’s action was based on public disclosures and Jamison was not an original source.
- Ultimately the court affirmed dismissal for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Jamison’s action was based on public disclosures | Jamison’s complaint relied on disclosed schemes and industry-wide fraud. | Public disclosures did not plead specific actions against Beverly or McKesson; they do not collectively identify the defendants. | Yes; based on public disclosures. |
| Whether Jamison’s original complaint established jurisdiction | Original complaint should support jurisdiction despite amendments. | Original complaint did not establish jurisdiction; amendments cannot retroactively create jurisdiction. | No; amended materials cannot cure lack of original jurisdiction. |
| Whether Jamison was an original source of the information | Jamison gathered information through his industry experience and public records. | Information relied on was largely publicly disclosed; Jamison did not have direct independent knowledge not derived from public disclosures. | No; Jamison not an original source. |
| Allocation of burden of proof on public disclosures issue | Defendants must point to plausible public disclosures; relator must show a genuine issue. | Public disclosures identified or plausibly could contain disclosures; Jamison must show no genuine dispute. | Defendants identified plausible disclosures; Jamison failed to create a genuine issue. |
Key Cases Cited
- United States ex rel. Reagan v. E. Tex. Med. Ctr. Reg’l Healthcare Sys., 384 F.3d 168 (5th Cir. 2004) (jurisdiction intertwined with merits; testing public disclosure bar on summary judgment)
- Rockwell International Corp. v. United States, 549 U.S. 457 (U.S. 2007) (amendments cannot create jurisdiction retroactively; original complaint matters)
- United States ex rel. Fried v. W. Indep. Sch. Dist., 527 F.3d 439 (5th Cir. 2008) (combines first two FCA steps for practicality in jurisdictional analysis)
- In re Natural Gas Royalties, 562 F.3d 1032 (10th Cir. 2009) (industry-wide disclosures can suffice to alert government to fraud and guide investigation)
- Cooper v. Blue Cross & Blue Shield of Florida, Inc., 19 F.3d 562 (11th Cir. 1994) (caution against broad industry-wide disclosures without identifying perpetrators)
- United States ex rel. Findley v. FPC-Boron Employees’ Club, 105 F.3d 675 (D.C. Cir. 1997) (governmental disclosures of industry practices can support or limit jurisdiction)
- Baltazar v. Warden, 635 F.3d 866 (7th Cir. 2011) (public disclosure indicating broad fraud must still be tied to individual wrongdoers)