United States ex rel. Schiff v. Marder

318 F.R.D. 186, 2016 U.S. Dist. LEXIS 185172, 2016 WL 4764958
CourtDistrict Court, S.D. Florida
DecidedJuly 8, 2016
DocketCase No. 1:13-cv-24503-KMM
StatusPublished
Cited by9 cases

This text of 318 F.R.D. 186 (United States ex rel. Schiff v. Marder) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States ex rel. Schiff v. Marder, 318 F.R.D. 186, 2016 U.S. Dist. LEXIS 185172, 2016 WL 4764958 (S.D. Fla. 2016).

Opinion

OMNIBUS ORDER

K. MICHAEL MOORE, CHIEF UNITED STATES DISTRICT JUDGE

THIS CAUSE came before the Court upon Defendants Allergy, Dermatology & Skin Cancer Center, Inc. (“ADSCC”) and Gary Marder, D.O.’s (“Dr. Marder”) (collectively, the “Marder Defendants”) Motion for Continuance of Trial Date (ECF No. 230) and the Marder Defendants’ Notice of Supplemental Authority (ECF No. 236) and Defendants Robert I. Kendall, M.D. and Kendall Medical Laboratory, Inc.’s (the “Kendall Defendants”) Notice of Joinder in Notice of Supplemental Authority (ECF No. 238). The Government responded to the Marder Defendants’ Motion (ECF No. 237) and the Marder Defendants filed a Reply (ECF No. 239). The Motion is now ripe for review. For the reasons set forth below, the Motion for Continuance of Trial Date (ECF No. 230) is DENIED as MOOT.

I. BACKGROUND

On April 22, 2016, the Court entered an omnibus order that, inter alia, denied the Marder Defendants’ Motion for Extension of Time to Conduct Discovery and further ordered the parties to complete the Court-mandated mediation process in this False Claims Act (“FCA”) action. See United States v. Marder, No. 1:13-CV-24503-KMM, 183 F.Supp.3d 1231, 1232, 2016 WL 1614405, at *1 (S.D.Fla. Apr. 22, 2016) (“Marder I"). As previously mentioned, the Court issued the Marder I Order “to provide clarity to the parties, preserve judicial resources, and to ensure that this case continued on a path towards a ‘just, speedy, and inexpensive determination’ that is consistent with the Federal Rules of Civil Procedure.” Id. (quoting Fed. R. Civ. P. 1).

Subsequent to the issuance of the April 22 Order, the Marder Defendants timely filed a Statement of Material Facts (ECF No. 204) on April 29, 2016 opposing the Government’s summary judgment motion, but due to an apparently inadvertent mistake failed to include the actual response memorandum op[188]*188posing summary judgment.1 However, this oversight was brought to the Marder Defendants’ attention by the Government and the Marder Defendants filed a motion requesting an extension of time the following day. See (ECF No. 203). Ultimately, the Court granted the Marder Defendants’ motion on May 18, 2016 in its second omnibus order. See United States v. Marder, No. 1:13-CV-24503-KMM, 2016 WL 2897407, at *8-9, *8 n. 12 (S.D.Fla. May 18, 2016) (“Marder II") (determining that the Marder Defendants’ “perplexing omission” was a result of excusable neglect that was “mortifying” given the high stakes of the case).

The Court primarily issued its order in Marder II “to prevent this cause of action from foundering into a procedural morass.” Id. at *1. One step the Court took to untie the knots created by “the Marder Defendants’ repeated procedural missteps and befuddling case management strategy” was to amend the trial schedule so that the Court could “fairly and efficiently resolve the Government’s summary judgment motion.” Id. at *9. The Court also denied the Marder Defendants’ Motion for Extension of Time to File Daubert Motions and the Marder Defendants’ various Motions to Strike.2 Id. at *6-7.

Perhaps most pertinent to the instant order, the Court struck the Marder Defendants’ proposed experts—Dr. David Goldberg and Lorraine Molinari—for the Marder Defendants’ failure to comply with both the Federal Rules of Civil Procedure and the Court’s October 23, 2015 scheduling order. Id. at *2-5. Additionally, the Court struck the Marder Defendants’ statistician expert, Dr. Victor Pestien, on the basis that his testimony was untimely. Id. at *9.

On May 25, 2016, the Marder Defendants sought partial reconsideration of—and an expedited briefing schedule on—the Court’s second omnibus order. See (ECF No. 224). According to the Marder Defendants, the Court’s Marder II Order “effectively leaves the Marder Defendants without a substantial defense in this case.” Id. at 2. In further support of their motion for reconsideration, the Marder Defendants asserted that striking their experts “is an extremely harsh sanction” given that “the Marder Defendants will likely not testify because of the pending parallel criminal investigation and these experts represent a substantial portion of the defense.” Id. at 6.

On June 1, 2016, the Court granted in part and denied in part the Marder Defendants’ motion for partial reconsideration. See (ECF No. 226). Without addressing the merits of the Marder Defendants’ motion, the Court ordered an expedited briefing schedule to address the following issues:

1) The effect of the Marder Defendants’ expert testimony on the [Government’s] pending motion for summary judgment; (2) whether the Marder Defendants’ proposed dates for discovery would necessitate the Court mooting out the summary judgment motions and issuing a continuance; 3) whether allowing Dr. Pestien to testify as a rebuttal expert would unduly prejudice the Government; 4) estimated length of trial; and 5) the estimated cost the Government has incurred since the close of discovery in dealing with the various issues addressed in the Court’s previous Omnibus Orders (See ECF Nos. 196, 223).

Id. In doing so, the Court opined that it was “more immediately concerned with the prejudicial effect the Marder Defendants’ expert testimony has on the Government’s already ripe, and potentially case dispositive, summary judgment motion.” Id. Additionally, the [189]*189Court set forth the conditions upon which it would entertain a continuance of the cause of action if any party deemed it to be necessary. Id.

In response to the Court’s order, the Government asserted that none of the Marder Defendants’ proposed expert testimony would have any effect on the pending motion for summary judgment. See (ECF No. 227) at 2-14. Additionally, the Government argued that reopening discovery to allow the Marder Defendants to cure the deficiencies in their expert testimony would not only be “unfairly prejudicial,” but would likely require the summary judgment briefing “to start over from the beginning.” Id. at 15. Further, the Government claimed that allowing Dr. Pes-tien’s testimony at this late stage “would be a substantial distraction just weeks before trial” and unduly prejudice the Government. Id. at 17. Lastly, the Government noted that it had spent approximately forty (40) hours “in dealing with the various issues addressed in the [Cjourt’s previous omnibus orders” resulting in estimated costs of approximately $21,200. Id. at 19.

On the other hand, the Marder Defendants asserted that the proposed expert testimony undeniably creates a question of material fact that precludes the entry of summary judgment in the Government’s favor. See (ECF No. 228) at 2. In fact, the Marder Defendants pointed to five (5) specific issues in the Government’s summary judgment motion that are disputed by their proposed expert testimony. Id. at 5.

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318 F.R.D. 186, 2016 U.S. Dist. LEXIS 185172, 2016 WL 4764958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-ex-rel-schiff-v-marder-flsd-2016.