United States District Court, S.D. Ohio, Western Division
ORDER GRANTING DEFENDANT CINCINNATI CHILDREN'S
HOSPITAL MEDICAL CENTER'S MOTIONS TO DISMISS (DOCS. 48,
Timothy S. Black United States District Judge.
civil action is before the Court regarding Defendant
Cincinnati Children's Hospital Medical Center's
motions to dismiss (Doc. 48, 49).
Plaintiffs/Relators in this case are individuals who
allegedly underwent spinal surgeries performed either
directly by or at the instruction of Dr. Abubakar Atiq
Durrani, a spinal surgeon formerly operating in the
Cincinnati area. Dr. Durrani is a party to several hundred
cases, both civil and criminal, filed in the last several
years accusing him of perpetrating a scheme to defraud
patients by performing knowingly unnecessary spinal surgeries
without informed consent. Dr. Durrani, facing impending
criminal charges, fled the United States for his native
Pakistan in 2013. There is no indication he will return.
particular civil action, Defendants are Dr. Durrani himself
as well as the Center for Advanced Spine Technologies
(“CAST”), an Ohio corporation solely owned and
run by Durrani, and Cincinnati Children's Hospital
Medical Center (“CCHMC”), where Dr. Durrani
performed some of the Relators' surgeries. In this case,
Relators allege that
Defendants knowingly and falsely misled the government by
stating that a) the surgeries on Relators were medically
necessary and b) that the Defendants had obtained proper
informed consent to experimentally use hardware and BMP-2 [a
specific medical device] on Relators, at the expense of the
(Doc. 1, at 4). On the basis of these allegations,
Relators' qui tam complaint brings a claim
against Defendants on behalf of the United States Government
for violation of the False Claims Act (“FCA”), 31
U.S.C. §§ 3729 et seq. (Id. at
7-8). The initial complaint in this case has been
consolidated with another qui tam complaint filed
against the same Defendants by separate Relators in S.D. Ohio
case no. 1:13-cv-215 (“second qui tam
CCHMC filed separate motions to dismiss each of the qui
tam complaints on January 29, 2016. (Docs. 48, 49).
CCHMC's motions argue that the FCA claims raised by
Relators are jurisdictionally barred because the claims are
based upon a public disclosure and Relators were not an
original source. The motions additionally argue that Relators
violated the seal of the case and have failed to state a
claim upon which relief can be granted. The Court shall
adjudicate CCHMC's motions to dismiss together, as the
two complaints and the arguments for dismissing the
complaints are very similar.
STANDARD OF REVIEW
allege that the qui tam complaints in this case
should be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(1) because this Court lacks subject matter
jurisdiction over the claims in the complaints. Because
federal courts are courts of limited jurisdiction, the
relator bears the burden of establishing a court's
subject matter jurisdiction over her FCA claim. Walburn
v. Lockheed Martin Corp., 431 F.3d 966, 969 (6th Cir.
2005); United States ex rel. McKenzie v. BellSouth
Telecommunications, Inc., 123 F.3d 935, 938 (6th Cir.
1997). The basis for jurisdiction must be apparent from the
facts existing at the time the complaint is brought. See
Steel Co. v. Citizens for a Better Env't, 523 U.S.
83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); Smith
v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1
L.Ed.2d 1205 (1957) (“The jurisdiction of the Court
depends upon the state of things at the time of the action
brought.”). A district court's decision regarding
whether it has subject matter jurisdiction over an FCA case
is subject to de novo review on appeal.
Walburn, 431 F.3d at 969.
The Court does not have subject matter jurisdiction over this
precludes subject matter jurisdiction whenever a putative
relator's allegations are based, in whole or in part,
upon publicly disclosed allegations or transactions of which
the relator is not an original source. See 31 U.S.C.
§3730(e)(4) (2007). Specifically, the Public Disclosure
Rule states as follows:
(A) No court shall have jurisdiction over an action under
this section based upon the public disclosure of allegations
or transactions in a criminal, civil, or administrative
hearing, in a congressional, administrative, or Government
Accounting Office report, hearing, audit, or investigation,
or from the news media, unless the action is brought by the
Attorney General or the person bringing the action is an
original source of the information.
(B) For purposes of this paragraph, “original
source” means an individual who has direct and
independent knowledge of the information on which the
allegations are based and has voluntarily provided the
information to the Government before filing ...