In the
United States Court of Appeals
For the Seventh Circuit
No. 12‐3671
UNITED STATES OF AMERICA and
STATE OF WISCONSIN,
Plaintiffs,
and
TOBY T. WATSON,
Plaintiff‐Appellant,
v.
JENNIFER KING‐VASSEL,
Defendant‐Appellee.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 11‐CV‐236 — J. P. Stadtmueller, Judge.
ARGUED APRIL 25, 2013 — DECIDED AUGUST 28, 2013
2 No. 12‐3671
Before MANION and KANNE, Circuit Judges, and LEE, District
Judge.*
KANNE, Circuit Judge. After acquiring the medical records
for N.B., a minor, Dr. Toby T. Watson initiated this qui tam
False Claims Act suit against N.B’s former treating psychiatrist,
Dr. Jennifer King‐Vassel. While in King‐Vassel’s care, N.B.
received Medicaid assistance that covered N.B.’s prescription
drug costs. Watson alleged that several of King‐Vassel’s
off‐label prescriptions to N.B. constituted false claims submit‐
ted to the United States government. The district court entered
summary judgment in favor of King‐Vassel due to Watson’s
failure to name expert witnesses. The court determined that
expert testimony was required to prove essential elements of
his case. Disagreeing with the district court’s conclusion, we
reverse.
I. BACKGROUND
Dr. Toby T. Watson placed an advertisement in a
Sheboygan, Wisconsin, newspaper soliciting minor Medicaid
patients who had been prescribed any of a number of
psychotropic medications. He placed the ad after researching
qui tam actions and meeting the President of the Law Project
for Psychiatric Rights (not coincidentally, the attorney who
represented Watson before this court). Watson’s ad offered the
opportunity to “participate in a possible Medicaid fraud suit”
and to share in any recovery from the litigation.
*
Of the Northern District of Illinois, sitting by designation.
No. 12‐3671 3
N.B.’s mother—Christine Maxwell Meyer—responded to
the advertisement and eventually entered into an agreement
with Watson to share the proceeds from the potential lawsuit.
Though Watson had never treated, or apparently even met,
N.B., Meyer agreed to procure a copy of N.B.’s medical records
to facilitate the lawsuit. Toward this end, Meyer addressed to
King‐Vassel a signed authorization to disclose N.B.’s treatment
records. The authorization stated that Meyer was requesting
the records “[f]or the purpose of providing psychological
services and for no other purpose whatsoever … .” (R. 42‐1 at
7.) The authorization did not mention litigation or any possible
Medicaid fraud suit. (Id. at 7‐8.)
Rather than providing psychological services to N.B.,
however, Watson combed the records for so‐called “off‐label”
prescriptions. An “off‐label” prescription is one written for a
purpose that has not been approved by the Food and Drug
Administration (“FDA”). These purposes can, and often will,
find support in scientific literature, but, for whatever reason,
the drug’s manufacturer either has not, or has not yet, gone
through the FDA approval process for that specific use. Once
a drug has been approved for one use, however, the FDA
cannot prevent physicians from prescribing the drug for other
uses. Cf. Buckman Co. v. Plaintiffʹs Legal Comm., 531 U.S. 341,
349‐50 (2001) (discussing the parallel situation of off‐label
medical device use); see also United States ex rel. Franklin v.
Parke‐Davis, 147 F. Supp. 2d 39, 44 (D. Mass. 2001). Indeed,
off‐label prescriptions by physicians are quite common.
Randall S. Stafford, Regulating Off‐Label Drug Use—Rethinking
the Role of the FDA, 358 New Eng. J. Med. 1427, 1427 (2008). The
legality of the prescription, however, does not answer
4 No. 12‐3671
questions such as whether an individual off‐label prescription
is medically reasonable (generally a question for a medical
malpractice suit) or whether the government is obligated to
pay for a Medicaid patient’s off‐label prescriptions (a practice
that Watson is attempting to police in this case).
Unsurprisingly, given the ubiquity of off‐label prescriptions,
Watson found off‐label prescriptions in N.B.’s medical record.
King‐Vassel treated N.B. between 2004 and 2008 and
prescribed a number of psychotropic medications. Watson
identified forty‐nine individual prescriptions that he alleged
constituted false claims to the United States government.
Under the applicable interlocking provisions of the False
Claims Act and laws governing Medicaid, the federal govern‐
ment generally will not pay for medications prescribed for
purposes not approved by the FDA or “supported” by any of
several pharmaceutical reference books (called “compendia”).
Watson theorized that the forty‐nine prescriptions fit that
description and filed suit in the Eastern District of Wisconsin
against King‐Vassel (as well as several other parties who have
been dismissed) under the qui tam provision of the False
Claims Act (“FCA”). Although the Department of Justice
declined to intervene in the suit (as is its right in a qui tam
action, though often indicative of a lower chance of success),
Watson pressed ahead with the case.
On July 16, 2012, King‐Vassel moved for summary judg‐
ment. King‐Vassel’s summary judgment motion focused on
two primary issues: whether Watson had “direct and inde‐
pendent knowledge” of the alleged Medicaid fraud (a prereq‐
uisite for qui tam standing), (R. 29 at 5), and whether the fraud
allegations were based on publicly available information (a
No. 12‐3671 5
disqualifying factor for a qui tam FCA suit), (id. at 10). At the
very end of her supporting brief, King‐Vassel included a short,
two‐paragraph section arguing that the case should “be
dismissed with prejudice” because Watson had failed to name
an expert who could “discuss, among other things, how claims
for reimbursement for medications are presented to Medicaid
programs, and how payments are made by those Medicaid
programs.” (Id. at 15.)
Watson’s brief in opposition to the summary judgment
motion focused on the two primary issues that King‐Vassel
identified. (R. 42 at 2‐6.) Watson also responded to the argu‐
ment about expert testimony by arguing (1) that experts should
not be required to explain the Medicaid payment system; and
(2) that experts would not be required to explain the pharma‐
ceutical aspects of the case (which relate, for reasons described
below, to whether the claims would truly be “false” within the
meaning of the FCA). (R. 42 at 6‐8.) Again, this issue did not
factor heavily in the briefing.
The district court ruled against King‐Vassel on her primary
summary judgment arguments. United States ex rel. Watson v.
King‐Vassel, No. 11‐CV‐236, 2012 WL 5272486, *3‐*5 (E.D. Wis.
Oct. 23, 2012). However, the court also analyzed both strands
of the failure to name an expert argument—that an expert
would be needed to explain Medicaid (King‐Vassel’s argu‐
ment) and that an expert would be required to explain some of
the pharmaceutical data (which only appeared in Watson’s
opposition brief). Id. at *5‐*8. The court held that Watson’s
failure to name an expert for either reason entitled King‐Vassel
to summary judgment. Id. Watson timely filed this appeal.
(Dkt. 1.)
6 No. 12‐3671
II. ANALYSIS
The district court granted summary judgment for
King‐Vassel on the issue of whether Watson was required to
present expert witnesses with regard to two distinct parts of
his case: (1) the Medicaid claim process, and (2) whether the
claims Watson sued over were “false” within the meaning of
the False Claims Act. Both of these issues are intimately
entangled with the operation of the False Claims Act and
Medicaid. Thus, we think a brief description of both will be
helpful to the reader. We will proceed to address the issues in
the order the district court analyzed them—the Medicaid
process first, followed by the falsity of the claims—and delve
deeper into Medicaid and the FCA at the appropriate times.
For the reasons detailed below, we disagree with the district
court’s entry of summary judgment.
The False Claims Act makes it unlawful for a person to
“knowingly present[ ], or cause[ ] to be presented, a false or
fraudulent claim for payment or approval” to the United States
government. 31 U.S.C. § 3729(a)(1)(A). The Act establishes civil
penalties for those who violate its terms; the penalties range
from $5,000 to $10,000, “plus 3 times the amount of damages
which the Government sustains.” 31 U.S.C. § 3729(a)(1)(G).
Although the Attorney General can enforce these provisions,
the Act also provides for enforcement through the empower‐
ment of “private attorneys general.” Stalley v. Methodist
Healthcare, 517 F.3d 911, 917 (6th Cir. 2008). The FCA allows for
these private citizens, called relators, to bring qui tam suits
against alleged fraudsters on behalf of the United States
government. 31 U.S.C. § 3730. The United States may, if it
chooses, intervene in these suits, 31 U.S.C. § 3730(b)(2), or, if
No. 12‐3671 7
the United States declines, as happened in this case, the relator
may then prosecute the case on his own (although still techni‐
cally on behalf of the United States). 31 U.S.C. § 3730(c)(3).
Under either option, if the prosecution of the alleged fraudster
is successful, the relator can receive a substantial award for
bringing the false claim to light. 31 U.S.C. § 3730(d)(1)‐(2);
United States ex rel. Gear v. Emergency Med. Assocs. of Ill., Inc.,
436 F.3d 726, 727 (7th Cir. 2006).
Medicaid provides “medical assistance on behalf of families
with dependent children and of … individuals[ ] whose
income and resources are insufficient to meet the costs of
necessary medical services.” 42 U.S.C. § 1396‐1. Although the
federal government ultimately foots much of the bill, the
administration of the program is left to the states. In the case of
prescription drugs, pharmacies pay pharmaceutical companies
for drugs and then submit claims to the state Medicaid agency
for reimbursement. 42 U.S.C. §§ 1396a(a)(23), (32). The federal
government then reimburses the state. 42 U.S.C. § 1396‐1. In
that way, claims submitted to state Medicaid agencies are
considered claims presented to the federal government and
may serve as the basis for FCA liability. See United States ex rel.
Crews v. NCS Healthcare of Ill., Inc., 460 F.3d 853, 856 (7th Cir.
2006) (discussing the necessity of an actual claim to Medicaid
as a basis for FCA liability).
With that bit of background out of the way, we proceed to
the specifics of this case, which is before us on an appeal of the
entry of summary judgment. “We review a district court’s
grant of summary judgment de novo, drawing all reasonable
inferences and viewing all facts in favor of the non‐moving
party.” Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013)
8 No. 12‐3671
(citation omitted). A district court should dispose of an issue
on summary judgment if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). To survive a motion for
summary judgment, “the nonmoving party must establish
some genuine issue for trial such that a reasonable jury could
return a verdict in her favor.” Gordon v. FedEx Freight, Inc., 674
F.3d 769, 772‐73 (7th Cir. 2012). The moving party may seek
summary judgment on the ground that the non‐moving party
has no evidence to support a claim. “Of course, a party seeking
summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal
quotation marks omitted). “As a general matter, if the moving
party does not raise an issue in support of its motion for
summary judgment, the nonmoving party is not required to
present evidence on that point, and the district court should
not rely on that ground in its decision.” Sublett v. John Wiley &
Sons, Inc., 463 F.3d 731, 736 (7th Cir. 2006); see also Costello v.
Grundon, 651 F.3d 614, 635 (7th Cir. 2011).
The district court held that Watson’s failure to name expert
witnesses meant that his evidence was insufficient to establish
an essential element of his case. King‐Vassel, 2012 WL 5272486,
at *7. Expert testimony may be required for matters that are
beyond the common understanding of a lay juror. Cf. Smith v.
Hunt, 707 F.3d 803, 809 (7th Cir. 2013) (expert testimony on
basic relationship between opiates not required because it
would be “within the ken of the average juror”);
No. 12‐3671 9
United States v. McGee, 408 F.3d 966, 978 (7th Cir. 2005) (expert
testimony not required because drug trafficking and related
gang violence were within “the ken of the average juror”). The
district court thought that the issues implicated by Watson’s
complaint were necessarily beyond the common understand‐
ing of a lay juror. Below we explain why that was not the case.
A. Failure to Name a Medicaid Expert
The district court erred in granting summary judgment to
King‐Vassel on the basis of Watson’s failure to identify a
Medicaid expert. To reach its conclusion, the district court
began its analysis by describing the Medicaid process as a
“black box” and the process of submitting claims as a “grand
mystery.” King‐Vassel, 2012 WL 5272486, at *7. The district
court reasoned that, because Watson did not identify an expert
to explain these mysteries, Watson could not prove that
King‐Vassel caused the submission of any allegedly false
claims, much less that she did so knowingly. Therefore, the
district court concluded, Watson’s claim did not meet essential
elements of the FCA (that a person “knowingly … cause[ ]” a
false claim). Our disagreement with the district court stems
from its overly rigid interpretations of both prongs of the
knowing causation requirement: the FCA’s state of mind
element (“knowingly”) and the prerequisite that the defendant
have actually caused the submission of the false claim. We will
begin with the former.
1. Dr. King‐Vasselʹs state of mind
Although the FCA uses the seemingly straightforward
word “knowingly,” the statute’s state of mind element is
actually quite nuanced. To establish liability under the FCA,
10 No. 12‐3671
the defendant must have acted with “actual knowledge,” or
with “deliberate ignorance” or “reckless disregard” to the
possibility that the submitted claim was false. 31 U.S.C.
§ 3729(a)(1)(A), (b). Therefore, while “[i]nnocent mistakes or
negligence are not actionable under [the FCA],” United States
ex rel. Yannacopoulos v. Gen. Dynamics, 652 F.3d 818, 832 (7th
Cir. 2011) (citation omitted), the statute does not require a
“specific intent to defraud,” 31 U.S.C. § 3729(b)(1)(B). We will
focus primarily on the third mental state—“reckless disre‐
gard”—as it is the most capacious of the three.
Though the FCA has contained the “reckless disregard”
language for almost thirty years, see United States ex rel.
Williams v. Renal Care Grp., Inc., 696 F.3d 518, 530 (6th Cir.
2012), we have not found the need to define it with any more
specificity than to say that it does not encompass “[i]nnocent
mistakes or negligence,” Yannacopoulos, 652 F.3d at 832.
Congress and our sister circuits have provided some assis‐
tance, however. Congress added “reckless disregard” to the
FCA in 1986. Renal Care Grp., 696 F.3d at 530. The Senate
Report that accompanied that change evinced an intent to hold
liable “[o]nly those who act in gross negligence,” that is, those
who failed “to make such inquiry as would be reasonable and
prudent to conduct under the circumstances.” S. Rep. No.
99–345, at 20 (internal quotations omitted), reprinted in 1986
U.S.C.C.A.N. 5266, 5285. One of our sister circuits has de‐
scribed reckless disregard in the FCA context as “an extension
of gross negligence” or an “extreme version of ordinary
negligence.” United States v. Krizek, 111 F.3d 934, 942 (D.C. Cir.
1997). This description tracks Black’s definition that a person
acts with reckless disregard “when the actor knows or has
No. 12‐3671 11
reason to know of facts that would lead a reasonable person to
realize” that harm is the likely result of the relevant act. Blackʹs
Law Dictionary 540‐41 (9th ed. 2009). We think these all are apt
and useful descriptions of the concept of reckless disregard.
And here, based on those descriptions, we think that the
district court was incorrect to hold that Watson could not,
without an expert, “establish that King‐Vassel had any
knowledge whatsoever of the likelihood of submission of a
fraudulent claim.” King‐Vassel, 2012 WL 5272486 at *6. Watson
need only show that King‐Vassel had reason to know of facts
that would lead a reasonable person to realize that she was
causing the submission of a false claim (per Black’s) or that
King‐Vassel failed to make a reasonable and prudent inquiry
into that possibility (per the Senate report). We think that
Watson did so.
Specifically, Watson presented an affidavit from Christine
Maxwell Meyer—N.B.’s mother—that asserted several facts
that, if believed, could lead a rational jury to find that
King‐Vassel showed reckless disregard to the existence of a
potentially false claim. For instance, Meyer affied that she had
provided King‐Vassel with N.B.’s Medicaid information. (R. 44
at 2.) Meyer further testified that she had never paid out of
pocket for N.B.’s appointments with King‐Vassel, and that
King‐Vassel had never “suggested that she had not billed
Medicaid for her services to N.B.” (Id.) Relating to the prescrip‐
tions, Meyer testified that she “always used [her] medical
assistance card to pay for N.B.’s medications” at the Wal‐Mart
pharmacy where the prescriptions were filled. (Id.) Watson
additionally presented records from Wal‐Mart that supported
these claims. (R. 46‐3.) And, Watson presented paperwork that
12 No. 12‐3671
seemed to indicate King‐Vassel had been compensated by the
Medicaid program for her prescriptions to N.B. (R. 46‐4)
(describing one of the services King‐Vassel was paid for as
“Medication Management”).
We would not describe any of these pieces of evidence as
irrefutable proof of King‐Vassel’s state of mind. And it is
certainly the case that an expert’s testimony on Medicaid
billing practices or standard doctor’s office procedure could
make Watson’s case stronger. But including expert testimony
would no doubt make many cases stronger. We do not think,
however, that King‐Vassel’s state of mind is beyond the
common understanding of the lay juror. A reasonable jury
could plausibly interpret the evidence Watson assembled to
show that King‐Vassel recklessly disregarded the fact that N.B.
received Medicaid assistance,1 and that claims for payment for
his prescriptions would be submitted to Medicaid. Entry of
summary judgment on this basis was therefore incorrect.
1
Meyer stated in the affidavit that “Dr. King knew that N.B. was on
Medicaid and knew that his care was being paid for by Medicaid.” (R. 44 at
2.) King‐Vassel argues that this was speculation and beyond Meyer’s
personal knowledge. (Appellee’s Br. at 17.) We agree with King‐Vassel on
this point, and so do not rely on this particular statement to reach our
conclusion. Nevertheless, the affied‐to facts within the scope of Meyer’s
personal knowledge—that Meyer had supplied King‐Vassel with N.B.’s
Medicaid information and had never paid out of pocket, for
instance—could give rise to the conclusion that King‐Vassel had reason to
know N.B.’s Medicaid status.
No. 12‐3671 13
2. Proximate cause
The district court also determined that summary judgment
was proper because of what it described as “a proximate‐cause
problem for Dr. Watson.” King‐Vassel, 2012 WL 5272486, at *7.
That is, the court described Medicaid as such a complicated,
arcane system that, without an expert to properly explain it,
Watson could not prove that King‐Vassel’s writing of a
prescription would actually cause the submission of a claim to
Medicaid. Again, we do not think that this was an appropriate
basis for summary judgment.
Under Watson’s theory of the case, FCA liability extends to
those persons or entities who actually cause the submission of
a false claim to the United States government. 31 U.S.C.
§ 3729(a)(1)(A). Thus, an action that breaks the chain of
causation would relieve a defendant of liability. Debates over
proximate cause are certainly familiar to American civil
jurisprudence. See Palsgraf v. Long Island R.R. Co., 162 N.E. 99
(N.Y. 1928); see also United States v. Laraneta, 700 F.3d 983,
990‐91 (7th Cir. 2012); CDX Liquidating Trust v. Venrock Assocs.,
640 F.3d 209, 214‐15 (7th Cir. 2011). Generally, however,
reasonably foreseeable intervening forces will not break the
chain of proximate causation. See, e.g., Laraneta, 700 F.3d at 990
(citation omitted) (giving the conventional definition of
proximate cause as “that which, in a natural and continuous
sequence, unbroken by any efficient intervening cause,
produces the injury and without which the result would not
have occurred”); see also W. Page Keeton et al., Prosser and
Keeton on the Law of Torts § 44, at 303‐04 (5th ed. 1984) (“The
courts are quite generally agreed that [foreseeable intervening
forces] will not supersede the defendant’s responsibility.”);
14 No. 12‐3671
Restatement (Second) of Torts § 443 (1965) (“The intervention
of a force which is a normal consequence of a situation created
by the actor’s … conduct is not a superseding cause of harm
which such conduct has been a substantial factor in bringing
about.”). Here, we think the potential intervening factors that
the district court identified, as well as those it described as
constituting “a grand mystery,” are not so unforeseeable as to
break the chain of causation.
We are not precisely certain what the district court meant
when it described Medicaid as follows:
[T]here is a grand mystery between the time of
the prescription and the claim being made to
Medicaid. In many ways, that mystery is like a
black box—perhaps Dr. King‐Vassel’s signature
on the prescription set off a series of reactions
that on the other side of the box resulted in a
false claim, but the churning mechanism on the
inside is still a mystery.
King‐Vassel, 2012 WL 5272486, at *7. To be sure, the statutes and
regulations describing the Medicaid process are dense, see, e.g.,
42 U.S.C. § 1396, et seq., and 42 C.F.R. § 430.0, et seq., but, at
least in theory, they are accessible to every member of the
public. Regardless, we do not think that the Medicaid process
itself creates the “proximate cause problem” that the district
court identified. Certainly there are intervening events—the
patient actually filling the prescription at a pharmacy is a
baseline requirement, and no doubt various clerks push
various papers to ensure that the claim proceeds through
proper channels. But these events strike us as eminently
No. 12‐3671 15
foreseeable forces that will occur without fanfare in the vast
majority of cases. Rather than some sort of Rube Goldberg
contraption hidden under cover, we think a more apt analogy
for the Medicaid process is an automobile: while most people
could not explain every step between key‐turn and ignition,
the cause‐effect relationship is commonly appreciated. An
expert might be required in some cases to explain the process
(of both Medicaid and the car), but not to testify about the
existence of the relationship. We think that, absent some
affirmative evidence that King‐Vassel’s prescriptions did not
cause a claim to be filed, Watson should have been able to rely
on traditional, time‐tested notions of causation to overcome
summary judgment. In short, we do not think a jury needs
expert testimony to understand that writing a prescription to
a person insured by Medicaid will likely cause a claim to be
filed with Medicaid.
B. Failure to Name a Medical Expert
The district court also faulted Watson for his failure to
name a medical expert. Without such testimony, the court held,
Watson could not prove the falsity of the alleged false claims,
a fatal blow to his case. King‐Vassel, 2012 WL 5272486, at *7. To
review, the FCA makes it unlawful to “knowingly present[ ],
or cause[ ] to be presented, a false or fraudulent claim for
payment or approval” to the United States government. 31
U.S.C. § 3729(a)(1)(A). Watson’s theory of the case was that
various prescriptions made to N.B. were not eligible for lawful
reimbursement by Medicaid. And, because King‐Vassel caused
claims to be made to the federal government for those prescrip‐
tions, she was responsible for the presentment of a false claim.
It was therefore critical to Watson’s case to know whether or
16 No. 12‐3671
not Medicaid could legally pay for the drugs as prescribed by
King‐Vassel. The district court held that an expert was re‐
quired to testify on that issue.
Medicaid can only provide reimbursement for “covered
outpatient drugs.” 42 U.S.C. §§ 1396b(i)(10), 1396r‐8(a)(3).
Covered drugs do not include any drugs “used for a medical
indication which is not a medically accepted indication.” 42
U.S.C. § 1396r‐8(k)(3). Watson’s theory was that King‐Vassel
prescribed medication to N.B. for reasons that were not
medically accepted indications. Helpfully, “medically accepted
indication” is a statutorily‐defined term that refers to a
prescription purpose approved by the Food, Drug, and
Cosmetic Act, 21 U.S.C. § 301 et seq., or “supported by” any of
several identified “compendia,” 42 U.S.C. § 1396r‐8(k)(6),
§ 1396r‐8(g)(1)(B)(i) (listing as approved “compendia” the
American Hospital Formulary Service Drug Information, the
United States Pharmacopeia‐Drug Information (or its successor
publications), and the DRUGDEX Information System). The
prescriptions at issue are “off‐label” and so the parties agree
that the drugs were not prescribed for an indication covered
under the FDCA. The district court’s ruling, therefore, centers
around the “compendia.” These compendia are large reference
books that contain a variety of information about the prescrip‐
tion pharmaceuticals currently available on the American
market—everything from their chemical makeup to potential
side‐effects to the age ranges of patients the drugs have been
tested on. See Edmonds v. Levine, 417 F. Supp. 2d 1323, 1332‐33
(S.D. Fla. 2006). The amount and type of information varies by
book. Id. They seem to be intended primarily for an audience
of health care professionals, but again, were specifically
No. 12‐3671 17
incorporated by Congress into the statutory standard for a
“medically accepted indication.” 42 U.S.C. § 1396r‐8(k)(6),
§ 1396r‐8(g)(1)(B)(i).
The district court concluded, rather summarily, that
“medical documents typically are not readily understandable
by the general public and would require an expert to explain
their application to a particular set of circumstances.”
King‐Vassel, 2012 WL 5272486, at *7. Watson did not name an
expert who could explain the compendia and their relevance
to King‐Vassel’s prescriptions to N.B. Thus, according to the
court, Watson did not present “definite, competent evidence”
to overcome the motion for summary judgment. Id. We take no
issue with the district court’s general reasoning. Certainly,
scientific evidence can be beyond the competence of a lay jury
to understand, and a party may need to provide an expert to
put that evidence in the proper context. But, we are not
convinced that it was appropriate to apply that general rule to
the specific facts of this case at this particular stage.
First, we note that King‐Vassel did not move for summary
judgment on the basis of Watson failing to present an expert
who could explain the compendia. Rather, King‐Vassel’s short,
two‐paragraph argument relating to expert witnesses focused
on the need for “experts to discuss, among other things, how
claims for reimbursement for medications are presented to
Medicaid programs, and how payments are made by those
Medicaid programs.” (R. 29 at 15.) In other words,
King‐Vassel’s motion relies entirely on the issues we disposed
of above in Section II.A. “As a general matter, if the moving
party does not raise an issue in support of its motion for
summary judgment, the nonmoving party is not required to
18 No. 12‐3671
present evidence on that point, and the district court should
not rely on that ground in its decision.” Cloe v. City of Indianap‐
olis, 712 F.3d 1171, 1182 (7th Cir. 2013) (citation omitted).
An exception to that general rule exists, however, when
“the losing party is on notice that she has to come forward with
all of her evidence.” Id. (citation omitted). The record is, at best,
ambiguous as to whether this exception should apply here. The
district court’s February 29, 2012, scheduling order required
Watson to “name all expert witnesses and produce reports
from expert witnesses” by April 11, 2012. (R. 24 at 1.) So
Watson was certainly on notice that he had to name any
required experts prior to King‐Vassel’s July 16 motion for
summary judgment. But there is nothing in the record giving
Watson notice that the court would enter summary judgment
because an expert was required to explain the compendia—a
notion that neither the parties nor the district court seem to
have considered prior to the short discussion in Watson’s
opposition brief. (R. 42 at 7‐8.) We think this theory is a thin
reed on which to hang the entry of summary judgment.
We think that conclusion is especially appropriate because,
viewing the record in the light most favorable to Watson, we
are not convinced that an expert was necessarily required to
explain the compendia with respect to each of Watson’s claims.
Recall that an expert witness may be required when the ability
to interpret the evidence presented is not within the capability
of a lay juror. Watson wanted to present evidence that
King‐Vassel’s prescriptions to N.B. were not for a medically
accepted indication that was supported by any of the statuto‐
rily‐listed drug compendia. Again, the compendia provide a
great deal of information about individual pharmaceuticals.
No. 12‐3671 19
Edmonds, 417 F. Supp. 2d at 1332‐33. So any given prescription
could turn out to be unsupported for any number of rea‐
sons—from the relatively simple to the dizzyingly complex.
Watson argued in the district court, and to us, that the pre‐
scriptions here (or at least some of them) were unsupported for
simple reasons such as N.B.’s age. Because there were no
indications that were supported for certain drugs for any
patient of N.B.’s age, Watson argues, the prescriptions to N.B.
must not have been for a medically accepted indication.2
(Appellant’s Br. at 15‐17.) This analysis, says Watson, would
not require the assistance of an expert. We agree.
The district court presumed that interpreting the compen‐
dia would be a far more complicated task, indeed one that
would require a medical expert. At the summary judgment
stage, when the court must view the record in the light most
favorable to the nonmoving party, Fitzgerald, 707 F.3d at 730,
we think this presumption was error. To be sure, the district
court was correct to lament the fact that “Watson did not
submit any pages of [the compendia] to the Court that would
show how easy it would be [to interpret them].” King‐Vassel,
2012 WL 5272486, at *7. But, Watson was not put on notice by
anything in the record that such submissions would be useful
to the court at this stage, much less that they would be
dispositive.
2
Watson asks us to take judicial notice of a chart on one of the cited pages.
His appellate counsel created this chart, purportedly based on the drug
compendia, but Watson did not enter it into the district court record. His
appellate counsel has attempted to enter this chart into the record in a
separate case in another court. (Appellant’s Br. at 15 n.28.) Regardless, we
decline Watson’s invitation.
20 No. 12‐3671
The district court may very well be correct that Watson
requires an expert to explain some number of the prescriptions
he charges constitute false claims. For instance, if N.B. was
prescribed a specific drug to treat “anxiety,” and there is
support in one of the compendia for prescribing the drug to
treat “depression,” Watson would need to present expert
testimony to prove that those two diagnoses are not
co‐extensive. But the sweeping nature of the summary judg‐
ment order cut off all of Watson’s claims without regard to the
specific facts underlying each one. And it did so despite the
fact that King‐Vassel had not moved for summary judgment
on that basis. While the district court remains free to apply its
reasoning in a more specific manner on remand (because, of
course, Watson did not name any experts by the court’s
deadline), we think the summary judgment order as written
was premature and overbroad.
Before concluding, we feel compelled to note that nothing
in this opinion should be read to countenance the pre‐suit
actions of either Watson or his trial counsel: they dragged
blameless parties into court unnecessarily and sought a
medical release by representing that Watson was going to treat
N.B.—ʺa total falsity.” King‐Vassel, 2012 WL 5272486, at *9.
Invoking its “inherent power” under Chambers v. NASCO, Inc.,
501 U.S. 32, 45 (1991), the district court levied monetary
sanctions against the pair for “skirting the line of their respec‐
tive professional responsibilities.” King‐Vassel, 2012 WL
5272486, at *9. Regarding Watson, the court noted that he had
“obtained N.B.’s medical records in a manner that could best
be described as borderline‐fraudulent.” Id. Those sanctions
have not been appealed, and, in any event, we would be
No. 12‐3671 21
hard‐pressed to improve on the district court’s description. If
anything, we might remove the word “borderline.” Despite
ruling in Watson’s favor today, we hope that the district court’s
sanctions will dissuade professionals from stooping to such
unsavory tactics in the future.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s
grant of summary judgment, and REMAND for further
proceedings consistent with this opinion.