                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


UNITED STATES OF AMERICA, ex rel.
SHEILA EL-AMIN, et al.,

            Plaintiffs/Relators,

       v.                                          Civil Action No. 95-02000 (CKK) (JMF)

THE GEORGE WASHINGTON
UNIVERSITY,

            Defendant.


                                   MEMORANDUM OPINION
                                      (November 25, 2013)

       Relators Sheila El-Amin, Joyce Lasley, Katherine Linden, and Robert Roubik are four

certified registered nurse anesthetists (“CRNAs”) formerly employed by Defendant, the George

Washington University (“GWU”). They bring this qui tam action against GWU on behalf of the

United States, alleging that GWU violated the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-

3733, by submitting false claims for reimbursement for anesthesia procedures to Medicare.

Relators contend that these claims were false because GWU allegedly sought reimbursement

from Medicare under the pretense that the anesthesia procedures had been wholly performed by a

licensed anesthesiologist when parts had actually been performed by residents or CRNAs.

       Presently before the Court is Defendant GWU’s [797] Motion for Summary Judgment,

which seeks summary judgment on the remaining claims of Relators’ Third Amended
Complaint. Upon careful consideration of the parties’ submissions,1 the relevant authorities, and

the record as a whole, GWU’s Motion for Summary Judgment is GRANTED.

                                       I. BACKGROUND

       This case has been actively litigated for over eighteen years, during which time three

district judges and two magistrate judges have issued myriad rulings that have culminated in the

pending motion. Although the Court assumes familiarity with the many prior opinions and

orders detailing the background of this protracted action, it provides here a relevant summary of

the facts and procedural developments that have led to this point. 2

       A.      The Remaining Claims

       For all practical purposes, the story of this case in its present form began on June 5, 1998,

when Relators filed the fourth and final iteration of their Complaint. See Third Am. Compl.,

ECF No. [42] (“Compl.”). The Complaint, in this final iteration, asserted three overarching

claims. Relators’ First Claim asserted that GWU has “knowingly presented, or caused to be

presented, to officers or employees of the United States Government, false or fraudulent claims

for payment or approval in violation of 31 U.S.C. § 3729(a)(1)[3].” Id. ¶ 63. Relators’ Second

Claim asserted that GWU “knowingly made, used, or caused to be made or used, false records or

statements to get false or fraudulent claims approved by the Government in violation of 31




1
   Mem. & Stmt. of Undisp. Facts in Supp. of GWU’s Mot. for Summ. J., ECF No. [797-1]
(“GWU’s Mem.”); Relators’ Opp’n. to Def.’s Mot. for Summ. J., ECF No. [798] (“Relators’
Opp’n.”); Reply in Supp. of GWU’s Mot. for Summ. J., ECF No. [799] (“GWU’s Reply”).
2
  Much of the factual and procedural background recited herein is restated from the Court’s [778]
August 27, 2012 Memorandum Order and [789] June 14, 2013 Memorandum Order, both of
which contain a comprehensive discussion of the factual and procedural background of this case
up through the pretrial stage.
3
   Consistent with the parties’ usage, the Court shall refer to the versions of the United States
Code and Code of Federal Regulations in effect at the time of the underlying conduct.

                                                 2
U.S.C. § 3729(a)(2).” Id. ¶ 65. Relators’ Third Claim asserted that GWU “conspired” with three

national anesthesiologist associations to “defraud” the federal government. Id. ¶ 67.

       Of these three claims, only two remain “live,” and only in part. Relators’ Third Claim

was dismissed by Judge Thomas A. Flannery on November 10, 1998, because Relators “fail[ed]

to identify any agreement between the parties to defraud the government or to engage in any act

that could constitute an attempt to defraud the government.” U.S. ex rel. El-Amin v. George

Washington Univ., 26 F. Supp. 2d 162, 165 (D.D.C. 1998). In that same decision, Judge

Flannery also held that Relators’ First and Second Claims are barred by the applicable statute of

limitations insofar as they relate to Medicare claims predating October 24, 1989. See id. at 173.

In addition, many years later—specifically, on February 25, 2005—Judge John Garrett Penn

further narrowed the scope of this action by dismissing Relators’ so-called “false concurrency”

subspecies of claims, concluding that the allegations in the Complaint failed to meet the

heightened pleading standards of Federal Rule of Civil Procedure 9(b). See U.S. ex rel. El-Amin

v. George Washington Univ., 2005 WL 485971, at *11 (D.D.C. Feb. 25, 2005).

       Today, we are left only with Relators’ First and Second Claims, as limited by the

aforementioned decisions. To prevail on their First Claim, Relators must show that (1) GWU

submitted a claim for payment or approval to the federal government, (2) the claim was false,

and (3) GWU knew the claim was false. See 31 U.S.C. § 3729(a)(1). To prevail on their Second

Claim, Relators must show that (1) GWU created a record and used the record to get the

government to pay its claim for payment or approval, (2) the record was false, and (3) GWU

knew the record was false. See id. § 3729(a)(2). Under either provision, Relators must show

that GWU submitted a “claim” to the government, a term that is broadly defined to include any




                                                3
request or demand of money from the government, whether made directly or through an

intermediary. See id. § 3729(c).

       B.      Falsity and the “Seven Steps” Regulation

       In this case, to demonstrate that GWU submitted “false” claims to Medicare, Relators

will attempt to show that GWU’s anesthesiologists failed to meet the requirements of a billing

regulation commonly known as the “seven steps” regulation. See 42 C.F.R. § 405.552. Much

earlier in this action—specifically, on August 31, 2005—Judge Penn concluded that a physician

must perform each of the seven steps for each procedure to be eligible for the highest level of

reimbursement and could not delegate performance of those tasks to residents or CRNAs. See

U.S. ex rel. El-Amin v. George Washington Univ., 2005 WL 3275997, at *8 (D.D.C. Aug. 31,

2005); see also Mem. Order (June 19, 2006), ECF No. [604] (denying GWU’s motion for

reconsideration). Therefore, for each allegedly false claim, Relators will attempt to show that the

attending anesthesiologist failed to satisfy one or more of the seven steps. See 42 C.F.R. §

405.552(a)(1)(i)-(vii).

       C.      The Fifteen Named Anesthesiologists

       The Complaint includes allegations about the conduct of fifteen named anesthesiologists,

but periodically alludes to other, unnamed anesthesiologists. See Compl. ¶ 34. On February 25,

2005, Judge Penn found that, together, the FCA and Federal Rule of Civil Procedure 9(b) require

“specificity regarding identities of individual actors.”      U.S. ex rel. El-Amin v. George

Washington Univ., 2005 WL 485971, at *6 (D.D.C. Feb. 25, 2005). Judge Penn accordingly

held that Relators can pursue “only claims based on the conduct of the fifteen anesthesiologists

named,” and dismissed “any claims based on the conduct of unnamed anesthesiologists.” Id. at

*7. Judge Penn denied Relators an opportunity to amend their Complaint, noting that “[t]he



                                                4
record clearly reveals that Relators have been on notice of allegations of particular deficiencies

in their complaint, having had three opportunities to rectify those deficiencies.” Id. at *12.

       On November 22, 2006, Judge Penn denied Relators’ successive motion to amend their

Complaint to identify additional anesthesiologists. See Mem. Order (Nov. 22, 2006), ECF No.

[633]. Judge Penn reasoned that, “[a]fter more than ten years, three separate amended

complaints, and several motions to dismiss,” Relators had “been given plenty of opportunity to

clarify their claims,” but still “failed to add to the list of fifteen anesthesiologists that were

allegedly involved in the anesthesia procedures at issue, even though they were on notice as to

the specific deficiencies in their complaint.” Id. at 2-4 (quotation marks omitted).

       On February 4, 2008, the Court resolved GWU’s motion in limine to preclude Relators

from presenting evidence concerning anesthesia procedures performed by physicians other than

the fifteen anesthesiologists named in the Complaint. See U.S. ex rel. El-Amin v. George

Washington Univ., 533 F. Supp. 2d 12, 34-35 (D.D.C. 2008). The Court agreed with GWU that

“[p]rocedures which were wholly performed by the so-called unnamed anesthesiologists do not

have any probative value [regarding] the procedures that were performed, in whole or in part, by

the 15 named anesthesiologists.” Id. at 34.          The Court therefore precluded Relators from

introducing evidence concerning such procedures at trial. However, the Court did not preclude

Relators from introducing evidence concerning “hybrid” procedures—i.e., those procedures in

which “a named and unnamed anesthesiologist worked together on the same anesthesia

procedure.” Id.

       D.      “Habit” or “Routine Practice” Evidence

       Way back in 2000, the parties were in the process of briefing one of what has turned out

to be a series of dispositive motions.      In connection with that briefing, on May 9, 2000,



                                                 5
Magistrate Judge Alan Kay resolved GWU’s motion to strike parts of the declarations made by

the four Relators. See Mem. Order (May 9, 2000), ECF No. [315]. Magistrate Judge Kay agreed

with GWU that the Relators’ declarations made broad and sweeping generalizations about

Medicare billing and procedures about which they clearly had no personal knowledge, as

evidenced by their own depositions and GWU’s business records. On September 13, 2000,

Judge Flannery upheld Magistrate Judge Kay’s decision. See Mem. Op. (Sept. 13, 2000), ECF

No. [398]. First, Judge Flannery found that Relators “admitted they had no knowledge of

GWU’s billing practices and obviously were disqualified from testifying about these practices.”

Id. at 4. Second, Judge Flannery concluded that Relators could not testify as to “individual

doctors or practices” where they “admitted that they had no specific recollection of the facts.”

Id. Third, Judge Flannery rejected Relators’ suggestion that they could testify as to GWU’s

alleged “routine practice” because they had “failed to lay a proper foundation for admission . . .

under [Federal Rule of Evidence] 406(a),” and in particular failed to show that the underlying

custom or practice was “inflexible,” “uniform,” or “nonvolitional.” Id. at 5.

       Many years later, these issues resurfaced as the parties prepared motions in limine in

anticipation of trial. On February 4, 2008, the Court resolved GWU’s motion to preclude

Relators from offering trial testimony regarding anesthesia procedures in which they were not

involved, including any testimony that GWU’s anesthesiologists acted according to “habit” or

“routine practice.” See U.S. ex rel. El-Amin v. George Washington Univ., 533 F. Supp. 2d 12,

25-31 (D.D.C. 2008). Despite the passage of several years since Judge Penn last rejected the

notion that Relators could provide such testimony, Relators still failed to “identify the specific

practice that is allegedly routine, provide the Court with any evidence that the anesthesiologists’

conduct was habitual or uniform, or controvert [GWU’s] argument that the anesthesiologists’



                                                6
conduct varied with each patient and procedure, and was therefore not routine.” Id. at 19. “Even

if the Court could comprehend what conduct was purportedly habitual, the Relators [] provided

no evidence that would warrant a finding of habit or routine practice.” Id. at 28. For instance,

they failed to “direct the Court to a single piece of evidence, like a deposition or a declaration,

that would support this claim.” Id. For these and other reasons, the Court limited Relators’ trial

testimony “to those anesthesia procedures of which they have personal knowledge.” Id. at 31.

Further, based on the record then created by the parties, the Court “precluded [Relators] from

presenting evidence regarding . . . the habit or routine practice of [GWU] or its

anesthesiologists.” Id. As a result, “Relators cannot broadly assert, as they attempted to do in

their declarations, that a particular anesthesiologist virtually never performed the required pre-

anesthetic examination or never prescribed the anesthesia plan. Instead, their testimony will be

tied to specific Medicare claims for specific patients.” Id. at 49 (quotation marks and citation

omitted).

       E.      The Medicare Claims at Issue and the Database of Records

       This case has been greatly complicated by the fact that, with few exceptions, the

Medicare claim forms at issue no longer exist. Relators initially sought to obtain these forms

from GWU itself, but their efforts did not bear fruit because GWU did not have the forms.

       Over the years, Relators have from time to time alleged that GWU spoliated evidence by

failing to preserve the claim forms, but Judge Penn considered, and rejected, this allegation long

ago. On December 13, 2006, he concluded that Relators failed to present “clear and convincing

evidence” that GWU “engaged in any misconduct.” Mem. Order (Dec. 13, 2006), ECF No.

[636] at 5.    Specifically, Judge Penn found that Relators failed to satisfy the threshold

requirement that “an act of destruction ha[d] occurred.” Id. Relators identified the electronic



                                                7
claim forms as the allegedly spoliated evidence, but the record before Judge Penn “show[ed] that

the forms were either created internally and saved on magnetic tapes, which were then shipped

offsite, or the data was electronically transferred to an outside vendor for processing. In neither

instance [was] there evidence that GWU also saved this information on its computers.” Id. at 7.

Judge Penn further suggested that Relators failed to show that GWU acted with the requisite

intent, observing that GWU began converting its record-retention system long before the

government began its investigation and that, because Medicare claim forms must be retained by

the government for a statutorily prescribed period of time, there was little incentive for GWU to

destroy its copies. Id. at 9-10.

       With this avenue foreclosed, Relators proceeded to subpoena third parties, including the

Health Care Financing Administration (now known as the Centers for Medicare and Medicaid

Services), which routinely stores Medicare claim forms. When the administration failed to

respond to the subpoena, Relators traveled to the Federal Records Center in Dayton, Ohio, where

the claim forms were supposedly stored. Despite a lengthy manual search, which spanned

several weeks, Relators were ultimately able to locate only a few hundred relevant claim forms.

As a result, Relators engaged in a lengthy effort to reconstruct the great bulk of the original

Medicare claims forms using circumstantial evidence.

       Initially, Relators even resisted producing the claim forms that they obtained from their

search to GWU, leading GWU to move to compel Relators to produce all relevant Medicare

claim records in their possession for the relevant period (October 1989 through October 1995).

On November 22, 2006, based largely on Relators’ concession that the documents were in fact

discoverable, Judge Penn ordered Relators to produce them. See Mem. Order (Nov. 22, 2006),

ECF No. [632], at 1-2; see also Mem. Order (Apr. 30, 2007), ECF No. [688], at 4. Relators



                                                8
ultimately produced 223 claim forms, only fifty of which identified one of the fifteen

anesthesiologists named in the Complaint.

       Judge Penn then attempted to move the case towards a final pretrial conference, see

Order for Pretrial Conference (Dec. 15, 2006), ECF No. [637], but GWU proceeded to file a

motion for partial summary judgment seeking to limit Relators’ First and Second Claims to those

allegedly false claims for which Relators possessed the actual Medicare claim form. In support,

GWU argued, in essence, that the Medicare claim form is the sole piece of evidence that can

demonstrate that GWU submitted a false claim to Medicare and that nothing less will do.

Relators, for their part, conceded that they do not have a Medicare claim form for each claim at

issue, but nonetheless maintained that tens of thousands of pages of circumstantial evidence—

contained in twenty-two boxes that they filed with the Court—are an adequate substitute. On

November 20, 2007, the Court agreed with the basic principle pressed by Relators—namely, that

an FCA plaintiff can rely on circumstantial evidence to establish that a claim was submitted to

Medicare. See U.S. ex rel. El-Amin v. George Washington Univ., 522 F. Supp. 2d 135, 143

(D.D.C. 2007). “While . . . the FCA requires Relators to prove the existence of a false or

fraudulent claim, nothing in the language requires Relators to possess (and present to the

factfinder) the actual claim form . . . submitted to the government.” Id. at 141. The Court also

rejected GWU’s contention that the “best evidence rule” precludes Relators from relying on

anything but the Medicare claim forms to prove the forms’ contents. While the best evidence

rule applies in this context, Relators are excused from presenting the original forms because

“they made a reasonable effort to locate the HCFA claim forms, including serving a subpoena on

the HCFA, and that despite their diligent efforts these forms are not obtainable.” Id. at 146. At




                                               9
the time of the Court’s decision, GWU had “not challeng[ed] the accuracy or reliability of the

documentation in Relators’ possession.” Id. at 148.

       Nonetheless, there remained a fundamental problem with the expected trial record.

Specifically, despite Judge Penn’s efforts to get this case ready for trial, Relators had never

“adequately defined the universe of claims that are ‘in issue.’” Id. at 144. On February 4, 2008,

in resolving the parties’ competing motions in limine, the Court stated:

               To date, the Relators have not provided the Court or the Defendant
               with a list, both comprehensive and exact, of the allegedly
               fraudulent claims submitted to Medicare. This is no longer
               acceptable. The Relators will be required, at the upcoming pretrial
               conference, to identify the exact Medicare claims that were
               allegedly false. For each claim, the Relators will be expected to
               provide, at a minimum, [1] the date the claim was filed with
               Medicare, [2] the name of the attending anesthesiologist, [3] the
               type of medical procedure involved, and [4] the amount of the
               claim. The Relators will also be expected to identify each
               document that they will seek to introduce at trial that corresponds
               to each allegedly fraudulent claim.

U.S. ex rel. El-Amin v. George Washington Univ., 533 F. Supp. 2d 12, 31 n.9 (D.D.C. 2008).

       On February 27, 2008, the Court held a Status Hearing, at which time it directed Relators

to “look through the claims and figure out whether [they] have evidence to support it,” “indicate

the claims [and] indicate the exhibits,” “shar[e] the actual exhibits along with the claims,” and

“associate the claims with exhibits.” Tr. of Status Hr’g Before the Hon. Colleen Kollar-Kotelly,

U.S.D.J. (Feb. 27, 2007), ECF No. [727], at 15, 25, 30, 35. The Court later memorialized its

directions in a written Order:

               Plaintiffs shall identify to Defendants each specific Medicare claim
               that they allege was false, and shall provide, at a minimum, [1] the
               date the claim was submitted to Medicare, [2] the name of the
               attending anesthesiologist, [3] the type of medical procedure
               involved, and [4] the amount of the claim. Plaintiffs shall also
               identify, for each allegedly false Medicare claim, any exhibits that
               they would seek to introduce at trial regarding that claim (for


                                                10
               example, billing records, medical records, and deposition
               designations).

Order (Feb. 27, 2008), ECF No. [726], at 1.

       Relators responded to the Court’s Order by creating two rudimentary charts with a word

processing program—one for liability and a second for damages. GWU attempted to sift through

these charts and believed them to be non-compliant with the Court’s requirements. On June 25,

2008, the Court held a Status Hearing to discuss Relators’ compliance with the Court’s

instructions. See Tr. of Status Hr’g Before the Hon. Judge Collenn [sic] Kollar-Kotelly, U.S.D.J.

(June 25, 2008), ECF No. [736]. During the Status Hearing, the Court observed:

               I entered an order that . . . [Relators] shall identify . . . each
               specific Medicare claim that they allege was false, provide at a
               minimum the date of the claim submitted to Medicare, name of the
               attending anesthesiologist, type of medical procedure and amount
               of the claim. I also asked that for each of the alleged false
               Medicare claims that any exhibits [be included] that would . . . be
               admitted at trial regarding any of these claims to support each of
               them[:] billing records, medical records or depositions and be very
               specific. * * * And the purpose of doing this was before getting to
               the pretrial stage is . . . to at least look at what [Relators’] claims
               were across the board and what [their] exhibits were and get
               objections from the defendants, if there were any, so that we can
               narrow this down and move to the next stage.

Id. at 3-4. The Court then proceeded to provide a non-exhaustive list of problems with Relators’

submissions:

               I will point out a couple of things. We obviously need the name of
               the anesthesiologist. I think that you also need the date the claim
               was submitted. It should not be a guess that it’s sort of around the
               day of the procedure. That’s not good enough. Even if you can’t
               show that the claim was paid for purpose of damages you need to
               show that it was actually submitted for liability. I don’t think you
               can just simply assume that it was [sub]mitted. And as I said
               there’s a fair number of spaces that are empty on the charts where
               there’s no information. I don’t see the identifications that I would
               have expected in terms of persons’ depositions. I need the speaker
               and the testimony page, and the lines so you can figure it out. I
               have concerns about, you know, the amount of the claim being a

                                                 11
               reconstructed fee, how billing might have been done. I don’t think
               it’s going to work for damages as to what was actually paid so we
               need to look at what proof there is.

Id. at 5-6.

        At this point, the Court enlisted the assistance of Magistrate Judge John M. Facciola, who

has guided the parties in creating an electronic database identifying each Medicare claim and the

associated evidence in an attempt to establish a trial-ready record. See Tr. of Status Hr’g Before

the Hon. Colleen Kollar-Kotelly, U.S.D.J. (Oct. 8, 2008), ECF No. [746]. Ultimately, with

Magistrate Judge Facciola’s guidance, the parties agreed to split the cost of an outside vendor to

create a web-based database that would allow the parties and the Court to access all relevant

records in a fluid and dynamic manner (hereinafter the “Database”). See Mem. Order (Oct. 22,

2008), ECF No. [741]. As envisioned, the Database would “permit the instantaneous retrieval . .

. of the information offered by [Relators] in support of any factual proposition” and “be entirely

self-contained so that it can be used without reference to any other information to resolve the

questions presented by each claim.” Id. at 1-2; see also See Tr. of Status Hr’g Before the Hon.

Colleen Kollar-Kotelly, U.S.D.J. (Oct. 8, 2008), ECF No. [746], at 13-14.            The parties

subsequently produced a database containing 2,579 total rows, each of which correspond to a

medical procedure for which Relators allege that GWU knowingly submitted a false claim or

created false records in order to have a false claim paid. See Joint Status Report (May 11, 2011),

ECF No. [766].

        The Court subsequently held several status hearings with the parties to guide them in

their use of the Database, including the entry therein of GWU’s evidentiary objections and

Relators’ responses thereto, see Mem. Order (Apr. 18, 2011), ECF No. [795]; Min. Order (May

24, 2011); Min. Order (June 21, 2011). On July 13, 2011, the Court entered a Scheduling and

Procedures Order for briefing those evidentiary objections, which, as the Court made repeatedly
                                               12
clear, “should, to the greatest extent possible, be in direct conversation and allow both the parties

and the Court to speak to categories of records sharing relevant characteristics.” See Min. Order

(May 24, 2011); Min. Order (June 21, 2011); Scheduling & Procedures Order (July 13, 2011),

ECF No. [770].

       On August 27, 2012, the Court issued an [778] Order that, inter alia, precluded Relators

from introducing evidence for 2,162 of the 2,579 total Medicare claims contained in the

Database. Specifically, the Court found that for 2,142 of those claims, the four Relators did not

personally attend the underlying anesthesia procedures and could not identify any other evidence

that they could introduce at trial to establish the essential elements of a violation of the FCA.

See Mem. Order (Aug. 27, 2012), ECF No. [778], at 21-24. The Court further held that, for

several hundred Medicare claims (most of them overlapping with the over two thousand claims

already precluded), the Relators had conceded that they offered no evidence or illegible evidence

in support of those claims, or that their evidence failed to connect the claims to one of the fifteen

anesthesiologists named in the Complaint. See id. at 24-30.

       The Court declined to rule on the other categorical objections asserted by GWU at that

time. Instead, observing that the scope of the record had been substantially narrowed, the Court

ordered the parties to cause their outside vendor to remove from the Database the 2,162

Medicare claims for which Relators were precluded from introducing evidence, while preserving

them for any appeal. The Court further ordered Relators, to the extent they intend to rely on any

testimonial evidence at trial, to enter an “offer of proof” into the Database for each remaining

Medicare claim, identifying all the evidence they would seek to introduce at trial to establish

each of the essential elements of a violation of the FCA. Id. at 30-31. The Court made clear that

this offer of proof would serve as Relators’ final pretrial presentment; once tendered, the



                                                 13
“[D]atabase will set forth, in one form or another, all of the evidence (documentary, testimonial,

or otherwise) that Relators intend to introduce at trial as to each claim.” Id. at 31, 33 (emphasis

in original). The Court indicated that GWU should respond to the offer of proof and re-raise any

objections on which the Court had deferred ruling to the extent they still applied. Id. at 31.

       After a subsequent hearing and further submissions—during which time the Court

“provided Relators one final opportunity to respond to [GW’s] objections and direct the Court to

[its supporting] evidence in the Database”—the Court issued its June 14, 2013 Memorandum

Order precluding Relators from introducing evidence at trial for all but 21 of the remaining

alleged false claims in the Database. See Mem. Order (June 14, 2013), ECF No. [789] at 9, 37-

39. Relators, the Court concluded, had failed to point to any evidence that they could introduce

at trial to establish the essential elements of a violation of the FCA for each of these Medicare

claims. Id. at 12. With regard to the remaining claims in the Database, this Order also required

GWU to submit a renewed motion in limine addressing the remaining 21 alleged false claims and

re-raising any objections on which the Court had not yet ruled. Id. at 37.

       After receiving briefing from the parties on this issue, the Court ultimately held that these

21 remaining alleged false claims were also not supported by admissible evidence that could

establish a False Claims Act violation. See Mem. Op. (Aug. 27, 2013), ECF No. [794] at 17.

The documents that Relators offered as evidence for these alleged false claims could not be

authenticated, nor did they support the propositions for which they were offered. Id. Concluding

its opinion, the Court found that it was “left with no choice but to conclude that none of the

documents in the Database are sufficient to support either of Relators’ FCA Claims.” Id.

Accordingly, it ordered the parties to proceed to summary judgment briefing, requesting that




                                                 14
Relators raise any and all additional evidence, aside from the documents in the Database,

showing that their claims should be able to go forward to a jury. Id.

                                    II. LEGAL STANDARD

       Summary judgment is appropriate where “the movant shows that there is no genuine

dispute as to any material fact and [that she] . . . is entitled to judgment as a matter of law.” FED.

R. CIV. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar

summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly

disputes over facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Nor may summary judgment be avoided

based on just any disagreement as to the relevant facts; the dispute must be “genuine,” meaning

that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-

movant. Id.

       In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to

specific parts of the record—including deposition testimony, documentary evidence, affidavits or

declarations, or other competent evidence—in support of her position, or (b) demonstrate that the

materials relied upon by the opposing party do not actually establish the absence or presence of a

genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual

basis in the record cannot create a genuine dispute sufficient to survive summary judgment.

Ass’n of Flight Attendants–CWA, AFL–CIO v. U.S. Dep’t of Transp., 564 F.3d 462, 465–66

(D.C. Cir. 2009). Moreover, where “a party fails to properly support an assertion of fact or fails

to properly address another party’s assertion of fact,” the district court may “consider the fact

undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e).



                                                 15
       When faced with a motion for summary judgment, the district court may not make

credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the

light most favorable to the non-movant, with all justifiable inferences drawn in her favor.

Liberty Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are

susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.

Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine

“whether the evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477

U.S. at 251–52. In this regard, the non-movant must “do more than simply show that there is

some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); “[i]f the evidence is

merely colorable, or is not significantly probative, summary judgment may be granted.” Liberty

Lobby, 477 U.S. at 249–50 (internal citations omitted).

                                        III. DISCUSSION

       In light of the many rulings preceding this opinion, the Court has little difficulty in

concluding that GWU is ultimately entitled to summary judgment. As the factual background

tracing the slow narrowing of this case shows, Relators have not provided any evidence that

would be admissible at trial to prove their allegations as to 2,579 medical procedures for which

they assert GWU knowingly submitted a false claim. In its August 2012 Order, the Court

sustained various evidentiary objections by Defendant and precluded Relators from introducing

evidence for 2,162 of the 2,579 total Medicare claims contained in the Database.               In its

subsequent June 14. 2013 Order, the Court found that Relators had failed to point to any

evidence that they could introduce at trial to establish the essential elements of a violation of the



                                                 16
FCA for another 396 claims. Finally, in its most recent ruling, this Court held that the remaining

21 alleged false claims were also not supported by admissible evidence that could establish a

False Claims Act violation. 4

       As a result of these rulings, and the rulings coming before them, there is no longer a

“genuine dispute as to any material fact” regarding whether GWU knowingly submitted false

Medicare claims. In their Opposition brief, Relators point to no additional evidence and offer no

argument in support of their claims that has not already been rejected by a prior opinion in this

case. Indeed, Relators simply point to their previous arguments in this case, while recognizing

the fact that these contentions have already been rejected.       See Relators’ Opp’n. at 5 n.1

(“Relators acknowledge that the Court has excluded or otherwise ruled that all of this evidence

as insufficient.”); id. at 7 n.2 (“Relators acknowledge that the Court has ruled that [the] records

do not contain sufficient evidence to prove that it is more likely than not that any of the

anesthesia procedures were billed to Medicare.); id. at 7 n.3 (acknowledging that Relators’

proposed “[w]itnesses do no[t] recall the conduct of particular procedure[s] [at issue] that

occurred many years ago” and recognizing that “the Court has excluded ‘routine practice’

testimony.”).

       Consequently, in the absence of any admissible evidence in support of Relators’ claims,

summary judgment for the Defendant is appropriate. See, e.g., Greer v. Paulson, 505 F.3d 1306,

1316 (D.C. Cir. 2007) (“Because Greer has proffered no admissible evidence of a sufficient link

between the pre- and post-1994 incidents, she has failed to raise a genuine issue that she

exhausted administrative remedies for this claim and thus summary judgment was appropriately

granted to the Secretary.”); Nessar v. District of Columbia, No. 12-cv-627, 2013 WL 4516397, at

4
 The Database is expected to include the Court’s rulings as to all 2,579 Medicare claims and to
be available for any appeal should the parties choose to file one.
                                                17
*4 (D.D.C. Aug. 27, 2013) (“Plaintiff had an opportunity through discovery to develop factual

support for the allegations in his Complaint, yet he has failed to do so. With no evidence that

any positions were filled in the June-October 2008 time-frame, no genuine issue of material fact

remains to justify a denial of summary judgment with respect to [his] claims.”). Relators’

subjective opinion and conclusory allegations that GWU submitted false claims, in the absence

of any admissible evidentiary support, are insufficient to survive summary judgment.                See

Association of Flight Attendants–CWA, 564 F.3d at 465-66 (conclusory allegations are

insufficient to defeat a motion for summary judgment); Dorns v. Geithner, 692 F.Supp.2d 119,

135 (D.D.C. 2010) (granting summary judgment to defendant because “the plaintiff ha[d]

produced no evidence beyond her own subjective opinion” to support her claim). In short, in

light of the various motions in limine limiting the evidence on which Relators can rely, Relators

lack a triable case in this matter. The Court has no choice but to grant summary judgment on the

body of evidence (or lack thereof) before it.

                                       IV. CONCLUSION

       For the foregoing reasons, the Court GRANTS Defendant’s [797] Motion for Summary

Judgment. An appropriate Order accompanies this Memorandum Opinion.


                                                          /s/
                                                     COLLEEN KOLLAR-KOTELLY
                                                     United States District Judge
                                                                        Digitally signed by John M. Facciola
                                                                          DN: c=US,
                                                                          email=john_m._facciola@dcd.uscou
                                                                          rts.gov, o=United States District
                                                                          Court for the District of Columbia,
                                                                          cn=John M. Facciola
                                                                          Date: 2013.11.25 10:57:40 -05'00'
                                                     ____________________________
                                                     JOHN M. FACCIOLA
                                                     United States Magistrate Judge




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