Pompy v. Moore

1

LESLY POMPY and INTERVENTIONAL PAIN MANAGEMENT ASSOCIATES, P.C., Plaintiffs, v. MARC MOORE, BRIAN BISHOP, and BLUE CROSS BLUE SHIELD OF MICHIGAN, Defendants.

No. 19-10334

United States District Court, E.D. Michigan, Southern Division

February 28, 2024

OPINION AND ORDER GRANTING MOTIONS TO DISMISS DENYING MOTION TO STRIKE, AND DENYING MOTION FOR RELIEF FROM ORDER AND MOTION TO FILE A THIRD AMENDED COMPLAINT

DAVID M. LAWSON United States District Judge.

Plaintiff Lesly Pompy, a medical doctor who specializes in anesthesiology and pain management, was indicted by a federal grand jury for controlled substance and health care fraud crimes, for which he was acquitted at trial. He had filed the present action against his antagonists who steered the investigation, without the assistance of a lawyer. The case was stayed when the indictment was returned. After the jury's favorable verdict, the stay was lifted, Dr. Pompy retained counsel, and a second amended complaint was filed. Defendant Blue Cross Blue Shield of Michigan had been dismissed from the case near its outset but was added back in the second amended complaint. Blue Cross now has moved to strike the re-pleaded allegations against it from the second amended complaint. Defendants Marc Moore and Brian Bishop - investigators in the underlying criminal proceeding - have moved to dismiss the case against them. And the plaintiff has moved for relief from the earlier order dismissing the claims against Blue Cross and seeks leave to file a third amended complaint. The proposed third amended complaint would include Dr. Pompy individually as a plaintiff in the Racketeering claims in Counts 1 and 2 against Blue Cross and Moore, beef up the allegations against defendant Moore in Count 2, join Blue Cross as a defendant in Counts 3 and 4 (alleging civil conspiracy and civil rights violations under federal law), and add a count of common law trespass against Bishop. The Court heard oral argument on the motions on February 21, 2024. The defendants' motions raise several procedural and technical defenses. However, after reviewing the allegations in the second amended complaint and the proposed third amended complaint, it is apparent that the plaintiffs have not pleaded, and will not be able to plead, facts in support of the theories of recovery that they posit. Therefore, the Court will grant Moore's and Bishop's motions to dismiss, deny the plaintiffs' motion for relief from the order dismissing the claims against Blue Cross and for leave to amend the pleadings further, and deny Blue Cross's motion to strike as moot.

I. Facts and Proceedings

The facts recited below are drawn from the second amended complaint, except where, as noted, they include claims and facts stated in the proposed third amended complaint.

A. The Parties

Plaintiff Lesley Pompy formerly was a licensed physician in the State of Michigan. He was the sole principal of plaintiff Interventional Pain Management Associates, P.C. (IPMA), which operated a pain management clinic in Southfield, Michigan. After graduating from New York Medical School in 1986 and obtaining his medical license, he eventually moved to Monroe County, Michigan, where he was the chief of anesthesiology at Mercy Memorial Hospital from 1991 through 2002. Between 1990 and 2014, he was board certified in anesthesiology, pain management, and addiction management. In 2002, Pompy decided to step down from his hospital post, and he then established IPMA as a private clinic offering pain management to patients with difficult cases who were referred by various area physicians.

Defendant Marc Moore is an investigator with the Michigan State Police holding the rank of detective lieutenant. During the operative timeframe he was the officer in charge of the Monroe Area Narcotics Team and Investigative Services (MANTIS), which is a “drug task force team under the direction of the Michigan State Police, comprised of investigators from the Michigan State Police, Monroe County Sheriff's Office, and the Monroe City Police Department.” 2d Am. Compl. ¶ 5, ECF No. 146 PageID.2300.

Defendant Brian Bishop is an investigator with the United States Department of Homeland Security. During the operative timeframe he was assigned as a “diversion investigator” for the Drug Enforcement Administration.

Defendant Blue Cross Blue Shield of Michigan is one of the largest private health care insurers in the State of Michigan, insuring more than 4.5 million persons.

B. The Criminal Prosecution

The claims in the second amended and proposed third amended complaints all arise from an investigation of the prescribing practices at Dr. Pompy's pain management clinic, which in late 2016 culminated in the issuance of search warrants and the seizure of narcotics and documents from his offices, as well as seizures of his financial assets. Dr. Pompy subsequently was charged in an indictment filed in this district with 22 counts of distributing controlled substances, 21 U.S.C. § 841(a)(1), 15 counts of health care fraud, 18 U.S.C. § 1347, and two counts of maintaining drug involved premises, 21 U.S.C. § 856(a)(1). See United States v. Lesly Pompy, No. 18-20454 (E.D. Mich.). The indictment charged Dr. Pompy with distributing narcotics by issuing bogus prescriptions to patients over a span of years from 2012 through October 2016. The indictment alleged that Dr. Pompy's clinics served on average 60 patients per day, and on some days as many as 200 to 300 patients, and that his medical practices issued more than 4.2 million dosages of Schedule II controlled substances over the charged timeframe, in addition to more than 6 million prescriptions for various other controlled substances. Dr. Pompy's clinic also billed Medicare, Medicaid, and Blue Cross for many of the prescriptions and related services, which the indictment said either were medically unnecessary or not performed as claimed. Dr. Pompy proceeded to trial, and on January 11, 2023 a jury acquitted him on all counts.

C. Theories of Liability

Dr. Pompy alleges in his complaints that the investigation and prosecution were instigated by Blue Cross and MANTIS (principally through Lt. Moore), in an effort to discredit Dr. Pompy and obtain windfall proceeds via restitution and forfeiture, which Blue Cross and Moore hoped would be forthcoming from the criminal proceedings. According to Dr. Pompy, the defendants' zeal was a product of intersecting interests - on Blue Cross's part, the desire to curtail the practices of doctors who prescribed expensive medical procedures and prescriptions when treating patients suffering from intractable chronic pain; on Moore's part the desire to obtain “easy wins” and achieve career advancement through high profile raids of physicians who were publicly tarred as running “pill mill” operations fueling the rampant abuse of opioid drugs that has afflicted communities throughout the country, particularly in economically depressed regions such as the rural communities of Monroe County, Michigan. Dr. Pompy says that the high volume of treatments administered by his legitimate practice is explained by the fact that he was one of the few physicians medically qualified to offer chronic pain treatment in the medically underserved communities from which most of his patients hailed.

According to the complaints, Blue Cross and MANTIS engaged in a conspiratorial scheme to advance trumped-up charges against legitimate physicians who, in Blue Cross's view, were in the habit of writing “too many” prescriptions for expensive pain relief medications. To carry out the scheme, “BCBSM would provide data mining and undercover support, and [MANTIS] officers, acting under color of authority, would provide the muscle - ‘shock and awe' raids of doctors' offices, the seizure of doctors' assets, and cherry-picking evidence to persuade prosecutors to indict, to scare doctors into pleading guilty, or to convince juries to convict.” 2d Am. Compl. ¶ 8, PageID.2301. In pursuit of the scheme, Moore opened an investigation of Dr. Pompy's clinic, and Blue Cross assigned its employee, James Howell, to assist. Among other things, Howell used a fake Michigan driver license and went to IPMA to obtain pain medications under false pretenses. Howell lied and said that he was a truck driver who suffered occupationally related chronic back pain, and he eventually was successful in persuading Dr. Pompy to prescribe medications to treat his pain.

Dr. Pompy alleges that Blue Cross and MANTIS formed an ad hoc criminal “enterprise” when Blue Cross delegated Howell to assist in the investigation of IPMA. In furtherance of the illegitimate investigation, Howell allegedly made numerous false statements about his medical condition and history complaining about nonexistent pain and injuries, presented a fabricated referral from another physician, used a fake driver's license, and presented a fake member identification card indicating that he was a Blue Cross beneficiary. Howell visited IPMA for appointments eight times between January and May 2016, and each time he presented the fake credentials. He filled out extensive patient history forms on each occasion, and each time he lied in response to numerous questions. When he was directed to attend physical therapy, he scheduled bogus physical therapy appointments to maintain the ruse.

Dr Pompy initially refused to prescribe prescription pain medication before having Howell undergo an MRI scan, but he relented after Howell told him that Blue Cross refused to cover the scan, and that he could not afford to pay the cost himself. Finally, in May 2016, Dr. Pompy issued a prescription for a two-week “trial period” for Norco, Lyrica, and Zanaflex. Howell had the prescription filled and delivered the drugs...