Nicholas Malfitano Apr. 13, 2016, 9:18am


PHILADELPHIA -- Due to a presumed lack of evidence, a federal court has dismissed a False Claims Act (FCA) lawsuit brought by a trio of relators on behalf of the U.S. government, in a qui tam action against a dental products company.

On Monday, Judge Harvey Bartle III for the U.S. District Court for the Eastern District of Pennsylvania granted a motion for summary judgment on behalf of defendant Dentsply International Inc., which dismissed claims initiated by plaintiffs Shawn Bates, Edward Josefoski and Roberta Lesser for alleged violations of both the FCA and the Virginia Fraud Against Taxpayers Act (VFATA).

The district court previously dismissed all of the plaintiffs’ claim except for Counts I (false presentation of claims under the FCA), II (false statements causing payment of damages under the FCA) and XXVII (violation of the VFATA).

Dentsply designs, creates, manufactures and markets professional dental products, including consumable, laboratory and specialty products. Bates and Josefoski are former employees of Dentsply while Lesser remains a current employee.

In Counts I and II of their second amended complaint, the plaintiffs alleged Dentsply violated the FCA by “engaging in various illegal marketing activities that caused dental providers to submit false claims to government healthcare programs and by providing bribes and kickbacks to those dental providers in violation of the Anti-Kickback Statute.”

But Dentsply argues the relators cannot prove any claims for reimbursement exist or that any claims were false, caused by Dentsply, or the result of knowing actions taken by Dentsply. Plus, they argue relators have no proof the company’s marketing practices were directed towards providers who submitted claims for government reimbursement.

Bartle said it was up to the relators to show Dentsply knowingly presented false claims to a government agent, while Dentsply was entitled to summary judgment if they could show the relators had no proof to substantiate their claims.

“Here… the relators have not pointed to even a scintilla of evidence in the record demonstrating that Dentsply or a dental healthcare professional influenced by Dentsply submitted a claim for reimbursement to the federal government,” the judge wrote. “Even though Dentsply’s summary judgment brief highlights this evidentiary void, the relators ignore this point entirely in their responsive brief.”

Bartle added the relators’ complaint instead focused on Dentsply’s “marketing and promotion practices.”

“They speculate in general terms that Dentsply caused fraudulent claims for reimbursement to be made because some dental professionals who used Dentsply products accepted government reimbursement for services performed on some subset of their patients. This is insufficient to proceed with their FCA claims,” the judge wrote.

With respect to the claim brought under the VFATA, Bartle explained Virginia courts look to the FCA for guidance in applying it.

“As is the case with their FCA claims, relators have presented no evidence of any violation of the Virginia Fraud Against Taxpayers Act. Accordingly, we will grant the motion of Dentsply International, Inc. for summary judgment against relators Shawn Bates, Edward Josefoski, and Roberta Lesser on Counts I, II and XXVII of their second amended complaint,” Bartle ruled.

The plaintiffs are represented by Brian J. McCormick Jr. of Ross Feller Casey and Eric D. Gill, Margaret L. Hutchinson and Zane D. Memeger of the U.S. Attorney’s Office, all in Philadelphia; Joseph Trautwein of Trautwein & Associates in Erdenheim; and Greg T. Kinskey of the Office of the Attorney General of Texas in Austin.

The defendants are represented by Margaret O’Neill and Robert A. Limbacher of Goodell DeVries Leech & Dann in Philadelphia, and Jennifer L. Bragg, Jennifer L. Spaziano, Lauryn K. Fraas and Maya P. Florence of Skadden Arps Slate Meagher & Flom in Washington, D.C.

U.S. District Court for the Eastern District of Pennsylvania case 2:12-cv-07199

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com.

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