United States v. Bright Smile Family Dentistry, P.L.C., Case No. CIV-10-25-L

UNITED STATES OF AMERICA, ex rel. Lou Boggs and Kim Borden, Plaintiff/Relator, v. BRIGHT SMILE FAMILY DENTISTRY, P.L.C., a/k/a Brite Smile Family Dentistry a/k/a Bright Smile Family Dentistry Family & Cosmetic Dentistry, ELI TANIOS JARJOURA Individually, and as the Owner of Bright Smile, d/b/a Eli Tanios Jarjoura, P.C. d/b/a Bright Smile Family Dentistry Family & Cosmetic Dentistry d/b/a Brite Smile Family Dentistry; JULIE SPEIGHTS, DDS, d/b/a Julie Speights, P.C., d/b/a Bright Smile Family Dentistry Family & Cosmetic Dentistry, d/b/a Brite Smile Family Dentistry; ROBERT ORRIN BAIRD, DDS, d/b/a Robert Orrin Baird, P.C., d/b/a Bright Smile Family Dentistry Family & Cosmetic Dentistry, d/b/a Brite Smile Family Dentistry; GOLNAZ NAGHDI, DDS, d/b/a Golnaz Naghdi, P.C., d/b/a Bright Smiles Family Dentistry Family & Cosmetic Dentistry, d/b/a Brite Smile Family Dentistry; VAN PHONG VU, DDS, d/b/a Van Phong, P.C., d/b/a Bright Smile Family Dentistry Family & Cosmetic Dentistry, d/b/a Brite Smile Family Dentistry; JASON WAYNE CHANG, DDS, d/b/a Jason Wayne, P.C., d/b/a Bright Smile Family Dentistry Family & Cosmetic Dentistry, d/b/a Brite Smile Family Dentistry; TERRANCE BRYAN SHUTTS, DDS, d/b/a Terrance Bryan Shutts, P.C., d/b/a Bright Smile Family Dentistry Family & Cosmetic Dentistry, d/b/a Brite Smile Family Dentistry; ROSS P. ALLEN, DDS, d/b/a Ross P. Allen, P.C., d/b/a Bright Smile Family Dentistry Family & Cosmetic Dentistry, d/b/a Brite Smile Family Dentistry; ABDESSAMAD BENBAJJA, DDS, d/b/a Abdessamad Benbajja, P.C., d/b/a Bright Smile Family Dentistry Family & Cosmetic Dentistry, d/b/a Brite Smile Family Dentistry; ELIE ABOU-NASSER, d/b/a Elie Abou-Nasser, P.C., d/b/a Bright Smile Family Dentistry Family & Cosmetic Dentistry, d/b/a Brite Smile Family Dentistry, Defendants.

Case No. CIV-10-25-L

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

Dated: April 18, 2013

ORDER

Plaintiff/Relators Lou Boggs and Kim Borden ("relators") bring this qui tam action against the named defendants alleging four causes of action under various provisions of the Federal False Claims Act, 31 U.S.C. § 3729, et seq., ("FCA") (Counts I through IV), and one cause of action alleging a violation of the Oklahoma Medicaid False Claims Act, 63 O.S. § 5053, et seq. (Count V). Amended Complaint, Doc. No. 18. Relators assert that certain gas card and courtesy transportation offerings by the defendants, who are dentists, violated the federal and state False Claims Acts.

Relators first advanced their allegations in January of 2010. The United States Attorney for the Western District of Oklahoma conducted an investigation into the allegedly improper conduct of the defendants, but declined to pursue the allegations. The relators thereafter secured summons and commenced thislawsuit.¹ The trial in this case is set on the court's July 2013 jury trial docket.

This matter is before the court on several motions for summary judgment. Seven of the defendants have filed the following similar motions: Defendant Ross P. Allen's Motion for Summary Judgment [Doc. No. 137]; Defendant Robert Orrin Baird's Motion for Summary Judgment [Doc. No. 138]; Defendant Jason Wayne Chang's Motion for Summary Judgment [Doc. No. 139]; Defendant Abdessamad Benbajja's Motion for Summary Judgment [Doc. No. 140]; Defendant Golnaz Naghdi's Motion for Summary Judgment [Doc. No. 141]; Defendant Terrance Bryan Shutt's Motion for Summary Judgment [Doc. No. 142]; and Defendant Van Phong Vu's Motion for Summary Judgment [Doc. No. 143] (collectively referred to as the "Allen defendants"). Relators filed a combined response to the Allen defendants' dispositive motions and the Allen defendants filed a combined reply brief.

This matter is also before the court on Defendants Bright Smile Family Dentistry, P.L.C., Eli Tanios Jarjoura, DDS, and Julie Speights, DDS's Motion for Summary Judgment [Doc. No. 146] (collectively referred to as the "Bright Smile defendants"). Relators responded to the motion and the Bright Smile defendants filed a reply brief.

This order also addresses Defendants Elie Abou-Nassar, D.D.S.'s² and Elie Abou-Nassar, D.D.S., P.L.L.C.'s ("Abou-Nassar's"), Motion for Summary Judgment [Doc. No. 147]. It should be noted that Abou-Nassar's motion adopts the Bright Smile defendants' summary judgment motion and the Allen defendants have adopted both Abou-Nassar's summary judgment motion and the Bright Smile defendants' summary judgment motion [Doc. No. 148]. The court has carefully reviewed the respective response and reply briefs and all of the exhibits. For the reasons set forth below, the court finds that all defendants are entitled to summary judgment as a matter of law.

Summary judgment is appropriate when the pleadings and supporting documents, viewed in the light most favorable to the nonmoving party, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Fed. R. Civ. P. 56(a) ("[T]he court shall 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."). Substantive law determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In ruling on a motion for summary judgment, the judge must "view the evidence presented through the prism of the substantive evidentiary burden." Idat 254-55. The dispute must be genuine, that is, "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248.

The party opposing summary judgment may not rest upon the mere allegations or denials of the party's pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Fed. R. Civ. P. 56(e)(3) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it[.]"). The mere possibility that a factual dispute may exist, without more, is not sufficient to overcome a convincing presentation by the moving party. Allegations alone will not defeat summary judgment. Cone v. Longmont United Hosp. Ass'n., 14 F.3d 526, 530 (10th Cir. 1994). Any doubt as to the existence of a genuine issue of material fact must be resolved against the party seeking summary judgment. In addition, the inferences drawn from the facts presented must be construed in the light most favorable to the nonmoving party. Board of Education v. Pico, 457 U.S. 853, 863 (1982).

In a response to a motion for summary judgment, a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial. Bryant v.O'Connor, 848 F.2d 1064, 1067 (10th Cir. 1988). The mere possibility that a factual dispute may exist, without more, is not sufficient to overcome a convincing presentation by the moving party. Allegations alone will not defeat summary judgment. Cone v. Longmont United Hosp. Ass'n., 14 F.3d 526, 530 (10th Cir. 1994).

The procedural history of this case reveals that at the motion to dismiss stage, the court allowed relators' claims to proceed noting, however, that whether these claims would ultimately succeed was not appropriate for determination at that time. Order, Doc. No. 39, p. 11. The court also found that several factual questions rendered outright dismissal of the Amended Complaint inappropriate at the motion to dismiss stage. Id.

Despite a long period of discovery, and in the face of numerous factually-supported motions for summary judgment filed by all the defendants, relators have not identified a genuine issue of fact requiring a trial as to their claims. Although relators have attempted to "dispute" defendants' statement of material undisputed facts, the court finds that when relators' responses are carefully reviewed, the operative facts are not actually controverted. On the undisputed summary judgment record presented, a trial is not warranted. A reasonable jury could not find a False Claims Act violation from the evidence presented by relators at the summary judgment stage. As established by the authorities cited above, parties may not escape summary judgment on the mere hope thatsomething may turn up at trial. Nor is the mere possibility that a factual dispute may exist sufficient to overcome a convincing presentation made by the parties seeking summary judgment.

The Allen defendants have moved for summary judgment on the basis that they had no knowledge of any gasoline gift certificates given to any patients or representatives of patients which were used as an inducement. The Statement of Material Facts contained in each of the Allen defendants' dispositive motions are virtually identical.

• The Allen defendants deny giving any gasoline gift certificates to any patients or representatives of patients.

• The Allen defendants state that they have never knowingly presented or caused to be presented false or fraudulent claims for payment to the United States or the State of Oklahoma.

• The Allen defendants also state that they have never knowingly made, used or caused to be made false records or statements to get false or fraudulent claims paid by the United States.

• Each of the Allen defendants deny personally advertising in the Metro Family or Kid's Directory publications.

Based on the undisputed facts, the Allen defendants persuasively assert that there is a complete lack of scienter evidence in this case.

Relators' Amended Complaint alleges violations of the Federal FalseClaims Act, 31 U.S.C. § 3729(a)(1)(A), (B), (C) & (G). These statutory...