Jones Ex Rel. United States v. Massachusetts General Hospital

United States Court of Appeals
For the First Circuit

No. 13-1973

KENNETH JAMES JONES, ex rel. United States of America,

Plaintiff, Appellant

PRISCILLA PITT JONES, Ed.D., ex rel. United States of America;
UNITED STATES, ex rel. Kenneth James Jones

v.

MASSACHUSETTS GENERAL HOSPITAL; MARILYN ALBERT, Ph.D.;
RONALD J. KILLIANY, Ph.D.; BRIGHAM & WOMEN'S HOSPITAL

Defendants, Appellees.

HARVARD MEDICAL SCHOOL; HARVARD UNIVERSITY;
MARIE F. KIJEWSKI, Sc.D.

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Howard, Lipez and Thompson,
Circuit Judges.

Jeremy L. Friedman, with whom Michael D. Kohn, Kohn, Kohn &
Colapinto, LLP, William D. Hughes and Hughes & Nunn LLP were on
brief, for appellant.
Alan D. Rose, with whom Brian D. Lipkin and Rose, Chinitz &
Rose were on brief, for appellees.
March 16, 2015
 HOWARD, Circuit Judge. Relator Kenneth Jones alleges

that defendants Dr. Ronald Killiany and Dr. Marilyn Albert

knowingly made false statements when submitting a grant application

to the National Institute on Aging ("NIA") and knowingly falsified

certain scientific data underlying the application. Those false

statements, Jones contends, influenced the NIA's decision to award

over $12 million in federal funds to Massachusetts General Hospital

and Brigham and Women's Hospital. In 2006 Jones filed a qui tam

action pursuant to the False Claims Act, 31 U.S.C. § 3729 (the

"FCA"), and in a previous appeal we vacated the district court's

entry of summary judgment in favor of the defendants. United

States ex. rel. Jones v. Brigham & Women's Hosp., 678 F.3d 72 (1st

Cir. 2012) ("Jones I"). The case proceeded to trial, and a jury

found for the defendants. Jones appealed again and now argues that

the district court erred in denying his motions for judgment as a

matter of law and for a new trial. Finding no reason to upset the

jury's considered verdict, however, we affirm the judgment below.

I. Background

A. Factual Background

In our previous decision we set forth the basic facts

underlying Jones's FCA claim. See Jones I, 678 F.3d at 75-79. We

repeat only those facts necessary to understand the claims that

Jones asserts in this latest appeal.

-3-
 On October 2, 2001, the defendants submitted a Program

Project Grant ("PPG") application to the NIA.1 The grant

application consisted of several distinct projects proposed by

researchers at Massachusetts General Hospital and Brigham and

Women's Hospital, organized around a common goal: to identify

physical characteristics or mental capacities that could accurately

predict the onset of Alzheimer's disease in patients. Jones

maintains that the application contained materially false claims

that induced the NIA to award the grant.

Dr. Marilyn Albert, one of the defendants, served as the

Principal Investigator of the PPG. In that role, Albert was

responsible for overseeing all research under the grant,

coordinating the work of the various projects, and ensuring

compliance with all NIH requirements. Albert also signed the

application submitted to the NIA. Four "Cores" provided specific

types of research or administrative support to the projects. As

pertinent to this case, relator Jones led "Core B," the Data

Management and Statistical Core of the PPG. As the leader of that

core, Jones assessed, compiled, and analyzed the data produced by

the various projects.

1
The NIA is an institute within the National Institutes of
Health (“NIH”). Grants for age-related research are submitted
first to the NIH's Center for Scientific Review and then forwarded
to the NIA. Jones I, 678 F.3d at 78. The parties refer generally
to the "NIH" in their briefs and, accordingly, we refer to the NIA
and NIH largely interchangeably for purposes of this opinion.

-4-
 Jones's FCA claim focuses on a single project under the

PPG umbrella: "Project 3." That project, led by defendant Dr.

Killiany, a neuroanatomist, sought to identify and measure certain

regions of interest in the brain. The study's goal was to

determine whether any physical characteristics of those regions

could be used to appreciably predict whether a person with mild

memory problems would go on to develop Alzheimer's disease. Jones

asserts that, leading up to the 2001 application, Killiany

intentionally manipulated data that formed the cornerstone of the

Project 3 proposal. That data involved the entorhinal cortex

("EC"), a small structure in the brain that serves as a pathway

into the hippocampus and may also play an independent role in a

person's memory.

To track changes in the EC and its relationship to

Alzheimer's disease, at the outset of the study each participant

was placed into one of two categories based on that participant's

clinical dementia rating. Participants labeled as "normal" showed

normal, healthy cognition, while those labeled as "questionable"

presented mild memory problems. Over the course of the study, if

a "questionable" participant's cognitive difficulties progressed to

the point that she developed probable Alzheimer's disease, that

participant was placed into yet a third category and reclassified

as a "converter."

-5-
 A Magnetic Resonance Imaging ("MRI") scan was taken of

each participant, and those scans were used to measure the size of

each participant's EC. By all accounts, the EC is a difficult

structure to measure; it is generally only about one cubic

centimeter in volume, and its boundaries are difficult to discern

on an MRI scan. In 1997, Killiany and another researcher, Dr.

Teresa Gomez-Isla, developed a "protocol" to predictably locate and

outline the EC. They focused on identifying the boundaries between

the EC and surrounding regions of the brain and employed what they

both would describe at trial as a "conservative" approach to

measuring the EC. Killiany and Gomez-Isla (functioning as

"raters") then employed this approach for the scans of a group of

twenty-five participants. The raters manually traced the EC on MRI

scans of each participant using a trackball mouse and software

called "Neuroview." Importantly, both raters were allegedly

"blinded," meaning that they were not informed of a participant's

cognitive categorization as "normal" or "questionable."

Members of Core B, the statistical core, then conducted

a "reliability study," comparing Killiany's and Gomez-Isla's

twenty-five tracings to determine whether two raters could, in

practice, consistently implement the protocol and reach similar

results. The comparison yielded an inter-rater reliability

measure, or Pearson coefficient, of 0.96, representing a very close

-6-
match and indicating that two raters could predictably trace the EC

and obtain consistent measurements.

Following the reliability study, Gomez-Isla's role in the

study concluded. Killiany pressed on and measured the EC of other

participants in the study. Over the course of the study, Killiany

measured the EC of approximately 103 total participants. As he

completed his measurements, he would periodically send his

calculations to Dr. Mary Hyde, the Data Manager for the statistical

core. As he progressed, however, Killiany identified several

"anatomical anomalies" in the brains of certain participants. He

also testified that implementing the protocol presented a learning

curve. As he encountered anomalies and learned more about the EC,

he reviewed his prior measurements. When a prior measurement

seemed inaccurate, Killiany "would remeasure the area and reapply

the operational definition, based on [an] increasing amount of

information about measuring the structure on MRI." When Killiany

remeasured a participant's EC, he sent a separate file with the new

measurement to Hyde rather than overwriting his original

measurements. This practice resulted in duplicate tracings of the

same MRI scan for some participants. In four instances, Killiany

remeasured scans that had been compared with Gomez-Isla's

measurements in the reliability study.

Based on Killiany's second set of measurements, the study

concluded that the volume of a subject's EC could predict with 93%

-7-
certainty whether a previously "questionable" participant with mild

memory problems would become a "converter" and eventually develop

Alzheimer's disease. This finding was presented in a 2000 article

in the Annals of Neurology on which Killiany, Albert, and Jones--

among others--were listed as co-authors. That article also

reported the inter-rater reliability rating of 0.96.

In early 2001, Dr. Keith Johnson from Brigham & Women's

Hospital, who led a separate project under the proposed PPG grant,

first noticed the existence of two sets of EC measurements for some

participants. Johnson brought this discrepancy to Jones's

attention by e-mail on February 7, 2001. Jones investigated the

matter and became concerned about the efficacy of Killiany's data.

Jones raised those concerns in a March 2001 meeting with Albert and

informed her that a statistically significant relationship between

the volume of a participant's EC and her clinical dementia rating

only existed when Killiany's second set of measurements were used.

By contrast, if Killiany's original measurements were substituted,

the relationship disappeared. Without Killiany's remeasurements,

no statistically significant relationship was apparent from the

data. Given this discrepancy, Jones requested that Albert review

the matter.

Albert asked Dr. Mark Moss, a neuroanatomist, to review

twenty-three specific measurements about which Jones had particular

concerns. Moss reviewed each of those scans and, with one

-8-
exception, concluded that Killiany's second set of measurements

more accurately outlined the EC for each participant. Unsatisfied

with Moss's conclusion, Jones requested that the scans be

remeasured by an independent evaluator. Albert refused this

request.

Albert and MGH submitted the application to the NIA on

October 2, 2001. The application described the preliminary results

of several of the Alzheimer's disease studies, including Killiany's

study of the EC. It reported the study's finding that the volume

of the entorhinal cortex could predict--with 93% accuracy--whether

a "questionable" participant would go on to develop Alzheimer's

disease. Furthermore, in describing the methods undertaken to

produce those results, the application stated that all operators

were "blinded to the groupings of the subjects (e.g., control,

questionable, converter)," and--citing Killiany's 2000 article--

that the "procedures in place for generating the manually drawn

image maps have been demonstrated to have high reliability." The

NIH ultimately awarded MGH over $12 million in federal funding for

the five-year period between 2002 and 2007.

B. Procedural Background

On June 14, 2006, Jones filed this qui tam action naming

several defendants, including Brigham & Women's, MGH, Dr. Killiany,

and Dr. Albert. In the operative complaint, Jones alleged that, in

submitting the proposal to the NIA, the defendants "knowingly made

-9-
false and fraudulent claims for federal funds." Jones asserted

that "statements of false and fraudulent preliminary data infected

the entire grant application," because the defendants relied upon

Killiany's data "with full knowledge of the false and fraudulent

nature of those [sic] data and the significance of the information

to the NIH grant process."

The district court initially granted summary judgment for

the defendants, but we vacated that order. Jones I, 678 F.3d at

75. Although we recognized that expressions of opinion and

scientific judgment cannot constitute a false statement under the

FCA, we "disagree[d] that the creation of the data in question was

necessarily a matter of scientific judgment." Id. at 87. Even if

Killiany's remeasurements "fall within an accepted range of

scientific accuracy," we concluded, "a question remains as to

whether the data was falsified by intentionally exaggerating the EC

boundaries of normal subjects to achieve a desired result." Id. at

88. As a result, we remanded the case for trial.

At trial, in addition to testifying himself, Jones

elicited testimony from all of the major actors in the study,

including Albert, Killiany, Gomez-Isla, and Moss. Jones testified

to his discovery of the second set of data and his investigation

into the statistical significance of that data. He also testified

that, because the original scans of four of Killiany's

remeasurements had been included in the reliability study, he had

-10-
calculated a revised reliability measure. When Killiany's initial

measurements were replaced with the remeasurements, Jones asserted,

the Pearson coefficient dropped to 0.54--a "worthless" correlation

between the two raters. During the plaintiff's case, Killiany and

Albert resisted efforts to characterize their work as fraudulent.

The jury also heard testimony from three experts for

Jones.2 Dr. Norbert Schuff, a scientist specializing in MRI

volumetric measurements of the brain, testified that Killiany's

revised measurements "deviated substantially" from the protocol and

that, in his opinion, there was "no scientific justification to

make those specific revisions" to some but not other scans. Dr.

Richard Goldstein, a statistical consultant, testified that, in his

opinion, Killiany's remeasurements demonstrated that the inter-

rater reliability protocol was not followed and that the

concentration of Killiany's largest remeasurements among the normal

group made it highly improbable that he remained blinded. Finally,

Martha Davila-Garcia, an Associate Professor of Medicine who had

experience as a peer reviewer advising the NIH about dozens of

grant proposals, testified that the purported reliability measure

2
In many respects, this testimony was similar to the opinions
offered by the same experts at the summary judgment stage that we
described in Jones I. See 678 F.3d at 80-82. At trial, Jones
offered testimony from Dr. Richard Goldstein, a statistical expert,
in place of Dr. Daniel Teitelbaum, whose testimony we considered in
Jones I but who became unavailable as a witness before trial.

-11-
would be important to the NIH's review of the defendants'

application.

In their own case in chief, the defense recalled only two

witnesses: Albert and Killiany. The defense focused on more fully

fleshing out its alternative rationale for Killiany's

remeasurements--namely that those measurements more accurately

identified the EC.

At the close of evidence, the defendants moved for

judgment as a matter of law on all claims, and Jones moved for a

ruling on damages. The jury returned a verdict in favor of the

defendants, and Jones subsequently filed a motion for judgment as

a matter of law under Rule 50(b) and incorporated an alternative

request for a new trial under Rule 59. Among other grounds, Jones

contended that "undisputed, substantial evidence" existed as to

each element of the FCA claim. In that motion Jones also attempted

to "renew[] his Rule 56 motion for summary judgment," conceding

that he made no "separate, formal written motion under Rule 50(a)."

The district court denied the motion and this timely appeal

followed.

II. Analysis

Jones maintains that the district court erred in denying

his motion for judgment as a matter of law because no substantial

evidence exists to support the verdict. In the alternative, Jones

argues that a new trial was warranted because the clear weight of

-12-
the evidence supported his FCA claim. Finally, Jones recites

several alleged procedural, evidentiary, and instructional errors

that he asserts also warrant a new trial.

A. Judgment as a Matter of Law

We review the district court's denial of Jones's motion

for judgment as a matter of law "de novo, examining the evidence

and reasonable inferences therefrom in the light most favorable to

the nonmovant," Estate of Berganzo-Colón ex rel. Berganzo v.

Ambush, 704 F.3d 33, 38 (1st Cir. 2013). This standard is

demanding, and "'[a] party seeking to overturn a jury verdict faces

an uphill battle.'" Id. (quoting Marcano Rivera v. Turabo Med.

Ctr. P'ship, 415 F.3d 162, 167 (1st Cir. 2005)). Ultimately,

courts "may only grant a judgment contravening a jury's

determination when the evidence points so strongly and

overwhelmingly in favor of the moving party that no reasonable jury

could have returned a verdict adverse to that party." Marcano

Rivera, 415 F.3d at 167 (citation and internal quotation marks

omitted).

But a party must preserve this challenge for us to review

it on appeal. Rule 50(a)(2) requires that a party first file a

motion for judgment as a matter of law "any time before the case is

submitted to the jury." Fed. R. Civ. P. 50(a)(2). If the court

does not grant that motion, following the verdict a party may file

a motion under Rule 50(b) to renew the claims. Fed R. Civ. P.

-13-
50(b). "We have held in no uncertain terms," however, that a

"failure to raise an issue prior to a Rule 50(b) motion for

judgment as a matter of law, without more, results in a waiver of

that issue on appeal." Muñoz v. Sociedad Española de Auxilio Mutuo

y Beneficiencia de P.R., 671 F.3d 49, 58 (1st Cir. 2012); accord

Costa-Urena v. Segarra, 590 F.3d 18, 26 n.4 (1st Cir. 2009) ("It is

well-established that arguments not made in a motion for judgment

as a matter of law under Rule 50(a) cannot then be advanced in a

renewed motion for judgment as a matter of law under Rule 50(b).").

Indeed, the 2006 Amendments to the Federal Rules of Civil Procedure

were intended to solidify this requirement. See Fed. R. Civ. P. 50

advisory committee's note, 2006 amendments ("Because the Rule 50(b)

motion is only a renewal of the preverdict motion, it can be

granted only on grounds advanced in the preverdict motion."

(Emphasis added)).

In this case, Jones plainly failed to preserve his Rule

50(b) arguments. Jones made no Rule 50(a) motion challenging the

sufficiency of the evidence to support a verdict in favor of the

defendants. Rather, it is undisputed that Jones made an oral

motion regarding a singular issue of damages, alone, at the close

of evidence. Having reviewed the record, we find that this motion

did not encompass or necessarily include an argument that Jones was

entitled to judgment as a matter of law.

-14-
 In an attempt to avoid this consequence, Jones points to

various other references in the record as establishing his

objection to the sufficiency of the evidence. Even were we to

agree that a rigid invocation of the phrase "Rule 50(a)" may not be

necessary in all circumstances (a proposition on which we express

no opinion), Jones's effort to show that he raised the issue is

unavailing.

First, Jones invokes his pretrial summary judgment motion

under Rule 56 as one such "pertinent reference." He claims that

motion preserved his sufficiency-of-the-evidence challenge because

"every factual and legal issue presented in Jones'[s] post-trial

motion (and on this appeal) was also presented in the previous Rule

56 motion." Jones also asserts that "[n]o rule precludes [him]

from renewing his Rule 56 motion after trial, and no authority

requires a Rule 50(a) motion raising the same grounds raised in a

pre-trial motion for summary judgment."

The argument is misguided. As we have repeatedly

emphasized, by the conclusion of trial a summary judgment motion

"'has been overtaken by subsequent events, namely, a full-dress

trial and an adverse jury verdict.'" Granfield v. CSX Transp.,

Inc., 597 F.3d 474, 481 n.8 (1st Cir. 2010) (quoting Rivera-Torres

v. Ortiz Vélez, 341 F.3d 86, 92 (1st Cir. 2003)). After trial, a

party may not invoke any sufficiency challenges included only in a

summary judgment motion. This rule is based on the common-sense

-15-
"procedural fact" that the record fully develops between any

proffered summary judgment motion and trial. E. Mountain Platform

Tennis, Inc. v. Sherwin-Williams Co., Inc., 40 F.3d 492, 500 (1st

Cir. 1994). "A denial of a motion for summary judgment is merely

a judge's determination that genuine issues of material fact exist.

It is not a judgment, and does not foreclose trial on issues on

which summary judgment was sought." Id. (citation and internal

quotation marks omitted). To reinvoke any sufficiency argument and

"preserve its challenge for appeal, a disappointed party must

restate its objection in a motion for judgment as a matter of law."

Ji v. Bose Corp., 626 F.3d 116, 127 (1st Cir. 2010). And nothing

in our cases suggests that, when a party does file such a motion

for judgment as a matter of law, it may ignore the unqualified

requirement that a 50(b) motion may only restate those arguments

raised by a prior 50(a) motion.3

Attempting to evade clear precedent, Jones asserts that

the Supreme Court's decision in Ortiz v. Jordan, 131 S. Ct. 884

(2011), establishes that a party "satisfies Rule 50(b) by raising

3
Some circuits have "recognized an exception" and permit a
party to appeal a summary judgment motion post-trial--without
filing a motion for judgment as a matter of law--where a "party's
challenge is based on a circumscribed legal error, as opposed to an
error concerning the existence of fact issues." Ji, 626 F.3d at
127; see, e.g., Chemetall GMBH v. ZR Energy, Inc., 320 F.3d 714,
720 (7th Cir. 2003). But we have declined to do so, Ji, 626 F.3d
at 127-28, and the Supreme Court has not resolved this question,
Ortiz v. Jordan, 131 S. Ct. 884, 892 (2011). In any event, Jones
does not contend--nor could he--that his motion for summary
judgment presented purely legal questions.

-16-
the same grounds in his pretrial motion for summary judgment under

Rule 56," and, consequently, "[n]o separate Rule 50(a) motion [is]

required." Ortiz does not support that proposition. In Ortiz the

defendants sought to appeal--following a full-trial on the merits--

a district court order denying summary judgment on the basis of

qualified immunity. There the defendants did, in fact, seek

judgment as a matter of law pursuant to Rule 50(a), although they

acknowledged they did not renew that motion under Rule 50(b).

Ortiz, 131 S. Ct. at 890-91. The Court held, however, that the

defendants' "failure to renew their motion for judgment as a matter

of law under Federal Rule of Civil Procedure 50(b)" left the

appellate court without authority to reconsider the summary

judgment motion and reject the district court's verdict. Id. at

889.

Jones appears to invoke the Court's having referred only

to Rule 50(b) as establishing that a Rule 50(a) motion is not

required to raise arguments presented in a prior summary judgment

motion. But this cherry-picked reference must be read in context.

Because the defendants in Ortiz did, in fact, pursue a Rule 50(a)

motion, the hypothetical question of whether a party could reinvoke

its summary judgment arguments through a Rule 50(b) motion, alone,

was not before the Court. In the face of clear precedent in this

Circuit and the pertinent advisory committee commentary, we decline

-17-
to make such a considerable inferential leap and read that holding

into Ortiz.4

Beyond his prior summary judgment motion, Jones asserts

in passing, and without further development, that several other

"pertinent references" exist in the record to preserve his

sufficiency argument. He invokes his "previous appeal to this

Court, Joint Pretrial Memorandum, proposed jury instructions,

objections to jury instructions[,] and closing argument."

(Citations omitted). His citation to the prior appeal to this

court is simply another attempt to resuscitate his prior summary

judgment motion. And the remaining identified filings and argument

4
In addition to Ortiz, Jones briefly cites in his brief, and
invoked at oral argument, two decisions of our circuit for this
proposition: Martinez Moll v. Levitt & Sons of P.R., Inc., 583 F.2d
565 (1st Cir. 1978) and Young v. City of Providence ex rel.
Napolitano, 404 F.3d 4 (1st Cir. 2005). Both are inapposite. In
Martinez Moll we determined whether the defendants had waived an
argument before the district court, in part, by considering whether
that issue was raised in either the defendants' Rule 50(b) motion
or its prior motion for summary judgment. 583 F.2d at 570-71.
Because we found that the proffered argument was absent from the
defendants' summary judgment motion, however, we had no opportunity
to consider whether raising the issue only at that stage would have
sufficiently preserved it for appeal. Id. at 571. And Jones's
fleeting invocation of our decision in Young fares no better. We
noted in Young that the district court had resolved a Rule 50
motion after trial at the same time it considered a motion for
summary judgment it had "held in abeyance." Id. at 12. Yet, the
district court's decision makes clear that legal issues had been
bifurcated for a dual-phase trial, and the summary judgment motion
involved only "matters which had been reserved for determination in
phase two of the trial." Young v. City of Providence, 301 F. Supp.
2d 163, 168, 169 (D.R.I. 2004). Accordingly, the district court
there did not permit the defendants to renew a prior summary
judgment motion.

-18-
did nothing to put the district court or defendants on notice that

Jones would argue that, as a matter of law, the defendants had

failed "to put forth sufficient admissible evidence" such that no

reasonable jury could return a verdict in defendants' favor,

Casillas-Díaz, 463 F.3d at 81.

We thus conclude that Jones has not preserved his

argument that he was entitled to judgment as a matter of law. But

he would fare no better even if he had preserved it. We briefly

explain.

As we noted in Jones I, to prove a violation of the FCA

under the provision in effect when Jones filed his complaint, Jones

was required to show that the defendants "'knowingly present[ed],

or cause[d] to be presented to an officer or employee of the United

States Government . . . a false or fraudulent claim for payment or

approval,'" or "'knowingly ma[de], use[d], or cause[d] to be made

or used, a false record or statement to get a false or fraudulent

claim paid or approved by the Government.'" Jones I, 678 F.3d at

82 (quoting 31 U.S.C. § 3729(a)(1)-(2)). In addition, any

knowingly false or fraudulent claim must be "material," meaning

that it "has 'a natural tendency to influence, or [is] capable of

influencing'" the NIA's decision to award the grant. Id. at 93

(quoting United States ex rel. Loughren v. Unum Grp., 613 F.3d 300,

307 (1st Cir. 2010) (alteration in original)).

-19-
 Jones's argument appears premised on the conclusion that

the jury was required to believe his theory of the case that

Killiany's remeasurements constituted a knowing and purposeful

manipulation of the data, and that Albert turned a blind eye to

that problem. Jones's case at trial was largely premised on three

main indicators of fraud: (1) that Killiany's remeasurements had no

justification, (2) that Killiany had become unblinded to

participant categorization and only revised measurements of

"normal" subjects, and (3) that it was fraudulent to report the

inter-rater reliability results based on Killiany's first data set.

"[U]ndisputed evidence in the record" established each element of

his FCA claim, Jones asserts.

Yet, on this record, the jury was entitled to believe the

plausible explanation proffered by the defense: that the EC is a

difficult area of the brain to measure, and that Killiany's

remeasurements simply reflect his increased understanding of the EC

as he reviewed additional participants' scans. Indeed, except for

Jones himself, each witness involved in the study--Killiany,

Albert, Moss, and Gomez-Isla--primarily supported the defendants'

explanation. Gomez-Isla was unsurprised that Killiany went back to

remeasure some of the initial scans and testified that "you could

tell there was a learning curve" and that one would "get[] better

the more scans you were going through and trying to draw." Moss,

who reviewed Killiany's scans after Jones questioned them,

-20-
similarly agreed that there was a "learning curve" and posited that

as a researcher "move[s] from naive to expert" he "hone[s] in on

more consistency." Albert and Killiany also maintained that

Killiany remained blinded throughout the study. And sufficient

evidence existed for the jury to conclude that Albert and others

either did not know that the inter-rater reliability score was

false, or that the underlying data was not fraudulent at all.

The jury's resolution of such conflicting explanations of

the defendants' actions is within its province and is thus not

fodder for a motion for judgment as a matter of law. The jury was

entitled to--and rationally could--find persuasive the evidence at

trial that undermined any conclusion that Killiany's remeasurements

were fraudulent or that Albert knew them to be so.

Additionally, Jones argues, essentially, that he was

entitled to judgment as a matter of law because the defendants did

not call any of their own expert witnesses, leaving Jones's

experts' testimony uncontested. But contrary to these repeated

assertions, testimony does not become "uncontested" simply because

the defendants do not call their own expert witnesses at trial.

The testimony of Jones's own witnesses could be--and indeed, was--

considerably undermined such that the jury was entitled to question

the import of that testimony.

For example, Dr. Schuff testified that Killiany's

"original measurements were without major error according to the

-21-
protocol," that Killiany's later changes "deviated substantially

from that initial protocol" and that there was "no scientific

justification" to make such revisions to some, but not other,

scans. Yet, the defense elicited a multitude of damaging

concessions from Dr. Schuff, including that: he was not a

neuroanatomist; he had never attempted to employ Killiany's method

to measure the EC; he used a different protocol in his own lab

which consistently produced a much larger volume in the EC; and he

had only measured the EC on an MRI on fifty prior occasions and,

when he did so, had consistently drawn the EC too short and too

small. The jury could conclude that his testimony did nothing to

counteract the defendants' theory of the case. Indeed, he conceded

that he had no basis to determine whether Killiany's original or

revised measurements were more or less accurate.

The jury could also conclude from the defense's

questioning of Dr. Goldstein, the statistical expert, that his

dramatic conclusions--including his assertion that the statistical

probability that Killiany remained blinded while his "six largest

changes" all involved subjects categorized as "normal" was "94 out

of 1 million"--were unsound. Dr. Goldstein hypothesized that he

would have expected half of Killiany's remeasurements to increase

from their original volume, and half to decrease, but agreed that

he formed this opinion "from a place of ignorance." Indeed,

although he found it "particularly bothersome that Killiany

-22-
departed from the protocol," he conceded that he did not know what

the protocol entailed or how Killiany had explained his revised

measurements. Dr. Goldstein admitted he had no training in the

anatomy of the brain or the EC specifically, and that, in arriving

at his conclusions, he considered no evidence about why Killiany

remeasured the scans. Finally, Dr. Goldstein did not investigate

whether Killiany's initial measurements were affected by systematic

error which, he conceded, might explain Killiany's decision to

remeasure. Given these concessions, the jury would have been

entitled to discount Dr. Goldstein's testimony altogether.

To a large extent, Jones's basic contention that

"undisputed" evidence existed entitling him to judgment as a matter

of law conflates the distinct inquiries that a court undertakes in

resolving a summary judgment motion and a motion for judgment as a

matter of law. Our holding in Jones I vacating the district

court's entry of summary judgment did no more than acknowledge that

unresolved issues of material fact might support a verdict in this

case for either party. But even if the defendants presented

limited testimony--expert or otherwise--to rebut Jones's theory of

the case, Jones ignores that the jury may have found his witnesses

and experts not credible or otherwise unreliable, or found

believable Killiany's and Albert's alternative explanations for

their actions. Our review is "weighted toward preservation of the

jury verdict," Crowe v. Bolduc, 334 F.3d 124, 134 (1st Cir. 2003),

-23-
and here--even if Jones's sufficiency argument had been preserved--

there was sufficient evidence for the jury to find in favor of the

defendants.

B. Motion for a New Trial

Jones also argues that, for various reasons, the district

court erred in denying his motion for a new trial. See Fed. R.

Civ. P. 59(a)(1)(A). A new trial may be warranted if "the verdict

is against the weight of the evidence" or if "the action is

required in order to prevent injustice." Jennings v. Jones, 587

F.3d 430, 436 (1st Cir. 2009) (quoting Kearns v. Keystone Shipping

Co., 863 F.2d 177, 181 (1st Cir. 1988)). We review for abuse of

discretion the district court's denial of a motion for a new trial.

Ambush, 704 F.3d at 38.

i. Weight of the Evidence

Jones first contends that the district court

inappropriately refused to "re-weigh" the evidence and, had it done

so, it would have determined that the "verdict is against the clear

weight of the evidence." In denying Jones's motion, the district

court plainly concluded that the weight of the evidence supported

the verdict. But Jones suggests that, as a matter of law, the

court was required to go further and independently re-weigh the

evidence, piece by piece, presumably engaging in its own

credibility determinations and findings of fact, before denying the

motion for a new trial. To be sure, when entertaining a motion for

-24-
a new trial "[t]he district court may 'independently weigh the

evidence.'" Cham v. Station Operators, Inc., 685 F.3d 87, 97 (1st

Cir. 2012) (quoting Jennings, 587 F.3d at 436) (emphasis added);

see MacQuarrie v. Howard Johnson Co., 877 F.2d 126, 132 (1st Cir.

1989) (noting that the judge "may consider the credibility of the

witnesses who testified"). But nothing in the text of Rule 59 or

any of our cases suggests that the district court must do so;

accordingly, a district court does not categorically err whenever

it declines to independently re-weigh the evidence, so long as it

concludes that the weight of the evidence supports the verdict.5

Jones then invites us to "relax the standards of review

under Rule 59" in "the unique circumstances of this case" and,

essentially, weigh the evidence ourselves. But that proposal

ignores both our precedent and common sense. Our role is not to

independently weigh the evidence; "[w]e reverse only if we find

that the trial court has abused its discretion in making its

assessment of the weight of the evidence." Correia v. Fenney, 620

F.3d 9, 11 (1st Cir. 2010) (emphasis added). And this

"circumscribed" review is sensible because "[c]ircuit judges,

reading the dry pages of the record, do not experience the tenor of

5
Indeed, the district court provided no written rationale for
denying Jones's motion for a new trial (and contrary to Jones's
assertion, one was not required). But a requirement that the court
always independently re-weigh the evidence would either necessitate
that we speculate as to how the district court treated the evidence
or mandate that the district court always issue a written order.

-25-
the testimony at trial." Jennings, 587 F.3d at 436, 437 (citation

and internal quotation marks omitted).

Simply put, we are unable to conclude that the district

court abused its discretion in denying Jones's motion for a new

trial for the same reasons already recited. There was ample

evidence in the record for the jury to believe the defendants'

alternative explanation for Killiany's revised measurements and

conclude that the defendants' statements were either not false or

that defendants lacked knowledge that they were false.

ii. Reassignment

Jones also challenges the district judge's decision to

retain this case on remand rather than allow it to be reassigned to

a different trial judge. District of Massachusetts Local Rule

40.1(K)(2) provides that upon remand the court must reassign the

case to another district judge "unless the terms of the remand

require that further proceedings be conducted before the original

judge or unless the judge determines that there will result a

substantial saving in the time of the whole court and that there is

no reason why, in the interest of justice, further proceedings

should be conducted before another judge." To our knowledge, the

District of Massachusetts is the only district court in the country

to apply such a presumption. See Toby J. Heytens, Reassignment, 66

Stan. L. Rev. 1, 12 (2014). Upon remand, the judge granted the

defendants' motion that the case remain before him.

-26-
 We review the district court's application of the local

rule in this case for abuse of discretion. Rodi v. S. New England

Sch. of Law, 532 F.3d 11, 19 (1st Cir. 2008). Jones contends that

the court's failure to provide a written rationale for its order,

alone, constitutes reversible error because he neglected "to make

the predicate findings" that retaining the case would conserve

judicial resources and not contravene the interest of justice. He

does not point to any authority, however, requiring a written

order. Moreover, sound reasons supporting the court's decision are

apparent on this record. The defendants contended in their motion

that "in view of [the court's] knowledge of the extensive record,"

its retention of the case would result in the conservation of

judicial resources, and we can assume that the court endorsed this

argument. Given the intricate statistical and scientific evidence

presented by this case, the district court did not abuse its

discretion in refusing to reassign this case.6

6
At a pretrial conference, the judge stated that "everyone
can rest assured that I have no leanings at all other than an
earnest desire to follow the instructions of the First Circuit."
Jones contends that this statement reveals that the court
"misunderstood the rule to be about whether he had 'leanings'
either way" in the case. The judge's statement, however, may have
been simply a conciliatory effort to assuage any concerns the
parties may have had, rather than a specific rationale for his
order.

-27-
 iii. Evidentiary Rulings

Jones also argues that the district court erroneously

decided several evidentiary matters, necessitating a new trial. We

review each ruling for abuse of discretion,7 although any error is

"harmless if it is highly probable that the error did not affect

the outcome of the case." McDonough v. City of Quincy, 452 F.3d 8,

19-20 (1st Cir. 2006).

a. The "Accuracy" of Killiany's Remeasurements

Jones first asserts that the district court erred in

denying his motion in limine and permitting the defendants to offer

testimony regarding the "accuracy" of Killiany's remeasurements.

The district court resolved this motion orally, prior to opening

statements, and questioned why the defense should not be permitted

to assert that "Killiany was doing this for an appropriate reason."

The court concluded that the explanation would not be precluded but

invited Jones to "impeach it or suggest that [accuracy] is not the

real reason he [remeasured]." As described above, the defense

emphasized this explanation throughout the trial.

7
The defendants are correct to point out that, generally,
"[a]n unsuccessful motion in limine does not preserve an
evidentiary objection," and a party must again object if and when
the challenged evidence is proffered at trial, O'Rourke v. City of
Providence, 235 F.3d 713, 727 (1st Cir. 2001), unless "the in
limine ruling is final and unconditional," Crowe, 334 F.3d at 133.
But, although Jones filed motions in limine, in each case detailed
here his objections were not resolved until trial, at which point
he properly objected. Thus, Jones's evidentiary objections are
properly preserved.

-28-
 Jones's objection is essentially one of relevance. He

relies on our statement in Jones I that "whether Killiany's

measurements were more or less accurate than the initial

measurements is not at issue," 678 F.3d at 88, to suggest that such

evidence "likely misled the jury and prejudiced Jones." But he

takes our statement out of context. In Jones I we merely rebutted

the district court's conclusion that Jones's claim presented a

question of good faith, scientific disagreement not cognizable by

the FCA--namely whether, in fact, Killiany's second measurements

were more or less scientifically justifiable than his first. We

did not indicate that evidence tending to show Killiany remeasured

his scans in an effort to make them more accurate was wholly

irrelevant. Nor could we have done so. Evidence is relevant if it

has "any tendency" to make a fact of "consequence in determining

the action" "more or less probable," Fed. R. Evid. 401, and

"[t]rial courts are afforded wide latitude in determining whether

evidence crosses this low threshold," United States v. Williams,

717 F.3d 35, 41 (1st Cir. 2013). As established above, the

defense's alternative explanation for Killiany's second set of data

was that he remeasured certain MRI scans in order to more

accurately reflect the volume of the EC in each subject. This

explanation had obvious import in determining whether the data

submitted to the NIA was false and whether Killiany and Albert knew

it to be false. It was not an abuse of discretion for the court to

-29-
permit witnesses to testify about this alternative explanation, nor

was such evidence unduly prejudicial, confusing, or misleading.

See Fed. R. Evid. 403.

b. The Appendix to Dr. Schuff's Expert Report

Jones argues that the court erred in excluding the full

appendix to Dr. Schuff's expert report as inadmissible hearsay.

During the course of the trial, a juror requested the appendix,

which listed Dr. Schuff's assessment of the degree to which each of

Killiany's remeasurements comported with the protocol that Killiany

developed with Isla-Gomez. The district court did not abuse its

discretion, however. The report was proffered as support for Dr.

Schuff's conclusion that Killiany's second measurements conflicted

with the protocol--that is, for the truth of the matter.

Accordingly, the report is a quintessential example of hearsay.

See Fed. R. Evid. 801(c)(2). Contrary to Jones's assertion, the

fact that Dr. Schuff testified at trial and was questioned

regarding the bases for several of his conclusions regarding

specific measurements does not automatically permit the entirety of

his appendix to be admitted into evidence.8 An expert's testimony

8
Jones invokes a Court of Claims case stating that "reports
which are prepared to state or to support expert opinions are not
admissible without the preparer being present in court to testify
as to his qualifications as an expert and to be cross-examined on
the substance." Forward Commc'ns Corp. v. United States, 608 F.2d
485, 511 (Ct. Cl. 1979). Yet, simply because an expert does
testify at trial does not render such a report automatically
admissible in its entirety as an exhibit. Indeed, because an
expert may often rely on facts or data that "need not be

-30-
"is not a vehicle by which evidence that is otherwise inadmissible

may be introduced." Presley v. Commercial Moving & Rigging, Inc.,

25 A.3d 873, 893 (D.C. 2011).

c. Testimony Regarding Jones's Signature

Jones next contends that the district court erred in

allowing Albert to verify Jones's signature on a form authorizing

his inclusion as a co-author on a 2002 article setting forth the

results of Killiany's study. Jones claims that the authenticity of

his signature was a "collateral issue." "It is well established

that a party may not present extrinsic evidence to impeach a

witness by contradiction on a collateral matter." United States v.

Beauchamp, 986 F.2d 1, 3 (1st Cir. 1993). To be collateral, a

matter must be "'not relevant . . . to establish a fact of

consequence'" or, in other words, "'not relevant for a purpose

other than mere contradiction of the in-court testimony of the

witness.'" Id. at 4 (quoting 1 McCormack on Evidence § 45, at 169

(4th ed. 1992)).

Here, Jones's endorsement of Killiany's work--by joining

as a co-author in that article--was far from collateral. That

article was written, and Jones's signature was allegedly inscribed,

almost a year after Jones first became concerned about Killiany's

data. Given Jones's central testimony at trial, whether Jones

admissible" in forming her conclusion, Fed. R. Evid. 703, such a
rule would, in many cases, provide an all-too-convenient backdoor
for otherwise inadmissible evidence.

-31-
continued to endorse the project after raising concerns goes to the

heart of his credibility, and was certainly relevant to the jury's

determination of whether Killiany's remeasurements were fraudulent.

d. Testimony Regarding Jones's Financial Interests

At various points during the trial the district court

permitted the defendants to question Jones regarding the share of

any recovery he would receive as a relator under the FCA. Given

that Jones did not file his complaint until five years after he

first raised concerns about Killiany's data--and by which point the

grant had been fully funded--the defense sought to show that Jones

only made his claim once he was assured maximum recovery. The

defense also elicited testimony from Albert that Jones's

compensation decreased when the project hired an additional

statistician to address certain concerns of the NIH regarding the

project.

While in some cases it may prove inappropriate or

unnecessary to delve into the financial incentives of a relator, in

this case Jones's testimony and credibility were critical to the

FCA claim. "[B]ias is fertile territory for cross-examination,"

and because the jury "must asess the credibility of witnesses to

determine the accuracy of their testimony . . . information as to

bias can be of great assistance in making such determinations."

Udemba v. Nicoli, 237 F.3d 8, 17 (1st Cir. 2001). Given the

particular circumstances of this case, the district court did not

-32-
abuse its discretion in permitting these lines of inquiry. It was

neither unfairly prejudicial nor irrelevant for the defense to

question Jones's continued support for the project until the

funding from the NIH ran dry.9

iv. Jury Instructions

Finally, Jones catalogs a multitude of instructional

errors in laundry list fashion and, in most cases, with little to

no analysis. We can make short work of all but one of his

challenges.

We review a claim of instructional error de novo if the

claimed error "embodied an error of law," but only for abuse of

discretion if the instructions purportedly inadequately "explained

the law" or "tended to confuse or mislead the jury on the

controlling issues." United States v. Jadlowe, 628 F.3d 1, 14 (1st

Cir. 2010) (citation and internal quotation marks omitted). Error

is established if the instruction is "misleading, confusing, or

incorrect as a matter of law," although we will only order a new

trial if that error "'based on the entire record, was

9
In less than a page and without any effort to do more than
simply assert error, Jones also protests the admission of
"laudatory statements" about the defendants. He similarly contests
the admission of "false" testimony that the defendants' research
has been subsequently replicated by scientists, although he cites
nothing to indicate that claim is, in fact, false. We need not
resolve these remaining challenges. It is a "settled appellate
rule that issues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived."
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

-33-
prejudicial.'" Costa-Urena v. Segarra, 590 F.3d 18, 24 (1st Cir.

2009) (quoting Romano v. U-Haul Int'l, 233 F.3d 655, 665 (1st Cir.

2000)).

First, the vast majority of the claimed instructional

arguments are waived for lack of development. See United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Jones merely refers us to

his proposed jury instructions "in a perfunctory manner" and

"unaccompanied by some effort at developed argumentation" as to how

the district court erred in excluding those instructions.10 Id.

Second, despite Jones's contention that his proposed instruction

that whether Killiany's "revised tracings were more or less

'accurate' to the actual structure of the EC is not at issue in

this case" was not delivered by the district court, the court

similarly instructed the jury that they were not asked "to

determine accuracy or to determine the borders of the entorhinal

cortex." The court's minor rewording was not an abuse of

discretion. Third, while Jones objects to the court's materiality

instruction and argues that the court's original instruction

implied a "but for" causation requirement, any possible error was

10
And were we to reach them, we note that Jones's arguments
would be reviewed only for plain error because he raised no
objections below--before or after the charge--to the district
court's decision not to provide those instructions we now deem
waived. In addition, although not included in his proposed jury
instructions, in his appellate brief Jones makes only a passing
reference to the district court's instruction that a false fact
must be based on the "most accurate" data the defendants had.
Accordingly this argument, too, is waived.

-34-
cured when the district court added, at the urging of Jones and in

line with our precedent, that a "statement is material if it has a

natural tendency to affect the thinking of the NIH." See United

States ex rel. Loughren v. Unum Grp., 613 F.3d 300, 307 (1st Cir.

2010). Fourth, Jones contests the district court's decision not to

provide an instruction that Jones could prove knowledge by

demonstrating that the defendants acted with "deliberate

ignorance." In fact, however, based on Jones's objection at the

pre-charge conference, the court instructed the jury that Albert

could be liable if she was "deliberately blind" to the alleged

fraud. And Jones's counsel chose not to object to the instruction

as to Killiany, conceding that he "understood the Court's ruling

with respect to deliberate ignorance as it applies to Dr. Killiany

in the first question."

All that remains is Jones's objection to the district

court's decision to bifurcate questions of liability between the

defendants on the jury's verdict form. The court supplied the jury

with a special verdict form that asked two questions: first,

whether "Dr. Killiany knowingly falsif[ied] scientific data by

exaggerating certain re-measurements of the EC to cause proof of a

particular scientific hypothesis to emerge from the data," and,

second, whether "the statements made in the Grant application about

having used blinded, reliable methods to produce the measurements

[were] both material and knowingly false." The court informed the

-35-
jury that: "If you answer Question 1 no, but Question 2 yes, then

Mr. Killiany is not liable, but Ms. Albert and the hospitals are.

If you answer Question 1 yes, but Question 2 no, Ms. Albert's not

liable but Mr. Killiany and the hospitals are."

We confess that we do not see how this division of

liability necessarily follows from the two questions on the verdict

form. But despite our disagreement with the court's charge, any

error in the explanation of the verdict form was harmless. See

Allen v. Chance Mfg. Co., 873 F.2d 465, 469-70 (1st Cir. 1989).

The jury responded in the negative to both questions and that

determination renders academic any error on the part of the

district court that might otherwise necessitate a new trial.

III. Conclusion

Jones has had the opportunity to present his claims in

court before a jury. That jury ultimately concluded that Killiany

did not intentionally falsify scientific data and that the

application's statement that the study used blinded, reliable

methods was not false. For the foregoing reasons, we find no

reason to upset that determination, and the judgment of the

district court is, accordingly, AFFIRMED.

-36-