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United States v. Durrani

United States District Court, S.D. Ohio, Western Division

June 5, 2017

UNITED STATES OF AMERICA, et al., Plaintiffs,
v.
ABUBAKAR ATIQ DURRANI., et al., Defendants.

          ORDER GRANTING DEFENDANT CINCINNATI CHILDREN'S HOSPITAL MEDICAL CENTER'S MOTIONS TO DISMISS (DOCS. 48, 49)

          Timothy S. Black United States District Judge.

         This civil action is before the Court regarding Defendant Cincinnati Children's Hospital Medical Center's motions to dismiss (Doc. 48, 49).

         I. BACKGROUND

         The 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.

         In this 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.[1] 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 government.

(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 complaint”).

         Defendant 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.

         II. STANDARD OF REVIEW

         Defendants 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.

         III. ANALYSIS

         A. The Court does not have subject matter jurisdiction over this action.

         The FCA 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 ...

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