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United States Ex Rel. Heesch v. Diagnostic Physicians Group, Pc

United States District Court, S.D. Alabama, Southern Division

August 5, 2014

UNITED STATES OF AMERICA ex rel. Christian M. Heesch, Plaintiff(s),
v.
DIAGNOSTIC PHYSICIANS GROUP, P.C.; IMC-DIAGNOSTIC AND MEDICAL CLINIC, P.C.; IMC-NORTHSIDE CLINIC, P.C.; INFIRMARY MEDICAL CLINICS, P.C.; and INFIRMARY HEALTH SYSTEM, INC., Defendants.

ORDER

KRISTI K. DuBOSE, District Judge.

This action is before the Court on Defendant Diagnostic Physicians Group, P.C.'s ("DPG") Motion for Summary Judgment (Doc. 415) and supporting materials (Docs. 418 - 420), together with the Response (Doc. 450) and supporting materials (Docs. 442 - 449) filed by Christian M. Heesch, M.D. ("Relator"), and DPG's Reply (Doc. 454). Upon consideration and for the reasons set forth herein, DPG's motion for summary judgment is DENIED.

I. Procedural History

Relator Christian M. Heesch originally filed this action on July 8, 2011 against the above-named Defendants, including DPG, based on alleged False Claims Act ("FCA") violations. (Doc. 1). After investigation, the Government filed its Complaint in Intervention on August 7, 2013. (Doc. 30). The Court later dismissed certain claims against Defendants Infirmary Medical Clinics, P.C., IMC-Northside, P.C., and Infirmary Health Systems, P.C. (Doc. 304). In July 2014, the Government and the remaining Defendants settled other claims relating to Anti-Kickback and Stark violations. (Doc. 441).

The parties did not settle Relator's claim for retaliatory discharge raised in his second (Doc. 21, p. 36) and third amended complaints (Doc. 66, p. 20), which is a claim for relief under the FCA's whistleblower provisions. 31 U.S.C. § 3730(h). In his amended complaints, Relator alleges that he had an employment agreement with DPG. (Doc. 66, p. 20). Relator further alleges that as a result of his investigating DPG's unlawful practices, DPG leadership and DPG physicians retaliated against him by harassing him and ultimately voting to terminate his employment. (Doc. 21, p. 36; Doc. 66, p. 4). DPG denies wrongdoing, and moves this Court for summary judgment on Relator's retaliation claim. (Doc. 415; Doc. 418, Exh. 1, p. 1).

II. Standard of Review

The court must "grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Rule 56(c) governs procedures and provides as follows:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or ...

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