United States ex rel. Saldivar v. Fresenius Medical Care Holdings, Inc.
157 F. Supp. 3d 1311
N.D. Ga.2015Background
- Relator Chester Saldivar, a former Fresenius chief technician (Apr 2007–Dec 2009), handled ordering and monthly inventory reporting for Epogen and Zemplar at two clinics and filled inventory forms used to calculate doses billed to Medicare.
- Fresenius had a corporate overfill policy, monthly/quarterly scorecards, and a bonus scheme tied to overfill recovery; Saldivar received and reviewed national reports showing clinic overfill performance.
- Relator alleges Fresenius used manufacturer overfill (extra medicine in vials) to administer additional doses and sought Medicare reimbursement for that overfill in violation of the False Claims Act (FCA). The Third Amended Complaint asserts four FCA counts (Epogen and Zemplar billing and concealment claims).
- Fresenius moved to dismiss for lack of subject-matter jurisdiction, invoking (1) the FCA public-disclosure bar and (2) the FCA first-to-file bar, relying on prior public materials (Woodard complaint, OIG/CIA communications, SEC filings, industry reports).
- The court treated Fresenius’s motion as a factual 12(b)(1) attack, considered evidence (including Saldivar’s deposition and OIG correspondence), and analyzed the Cooper three-step public-disclosure/original-source test and the first-to-file rule after the Supreme Court’s Carter decision.
Issues
| Issue | Plaintiff's Argument (Saldivar) | Defendant's Argument (Fresenius) | Held |
|---|---|---|---|
| Whether the public-disclosure bar deprives the court of jurisdiction | Saldivar is an original source with direct, independent knowledge from ordering/inventory duties and internal reports; public disclosures did not supply his specific information | Prior public materials (Woodard, OIG/CIA letters, SEC filings) publicly disclosed the same allegations and thus bar the suit | Denied. Court found public disclosures existed but Saldivar qualifies as an original source for at least part of the alleged period, so PDB does not bar jurisdiction |
| Whether the first-to-file bar applies | Relator's claims are based on distinct legal theory and time frame; Woodard did not include the same material elements against Fresenius when Relator filed | Woodard and related earlier actions disclose the same underlying facts and were pending, so relator is barred by first-to-file | Denied. Under Carter, claims against Fresenius in Woodard were not pending when Relator filed; even if pending, Woodard’s allegations were materially different (different essential elements) so first-to-file does not apply |
| Whether factual challenge permits weighing evidence on jurisdiction | Saldivar argued jurisdictional facts (his role, documents) support original-source status | Fresenius relied on Saldivar’s deposition and public records to rebut original-source claim | Court applied factual 12(b)(1) standard: free to weigh evidence and concluded Saldivar’s firsthand evidence sufficed to establish jurisdiction |
| Scope/timing of public disclosures relevant to liability period | Saldivar argued pre-2005 disclosures are stale after Medicare AAC rule change; his knowledge covers later period | Fresenius argued earlier disclosures, and ongoing disclosures via the CIA, put government/public on notice covering the relevant period | Court assumed (for analysis) disclosures covered the claims but still found Saldivar’s direct evidence made him an original source for at least part of the claim period; therefore jurisdiction exists |
Key Cases Cited
- McElmurray v. Consolidated Gov't of Augusta-Richmond County, 501 F.3d 1244 (11th Cir. 2007) (distinguishes facial vs factual jurisdictional attacks and original-source analysis)
- Lawrence v. Dunbar, 919 F.2d 1525 (11th Cir. 1990) (trial court may weigh evidence in factual 12(b)(1) attacks)
- Mortensen v. First Federal Savings & Loan Ass'n, 549 F.2d 884 (3d Cir. 1977) (jurisdictional factual-attack principles)
- Graham Cnty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 559 U.S. 280 (2010) (explains purpose of FCA public-disclosure bar and balance between insiders and parasitic suits)
- Cooper v. Blue Cross & Blue Shield of Fla., 19 F.3d 562 (11th Cir. 1994) (articulates Cooper three-step public-disclosure/original-source framework)
- U.S. ex rel. Osheroff v. Humana Inc., 776 F.3d 805 (11th Cir. 2015) (clarifies Step 2 "based on" public-disclosure inquiry and original-source limits)
- Kellogg Brown & Root Servs., Inc. v. U.S. ex rel. Carter, 135 S. Ct. 1970 (2015) (holds first-to-file bar applies only while earlier claims remain pending)