United States District Court, D. Minnesota
ORDER
Wilhelmina M. Wright United States District Judge
Before
the Court is Plaintiff David Feinwachs's appeal of the
April 5, 2019 Order of United States Magistrate Judge Steven
E. Rau, which denied Feinwachs's motion for further
consideration of sealing. Also before the Court are eight
motions in limine-six filed by Feinwachs, (Dkts. 199, 212,
221, 333, 371), and two filed by Defendants The Minnesota
Hospital Association (MHA) and its subsidiary MCCA, (Dkts.
380, 395). For the reasons addressed below, the April 5, 2019
Order is reversed and remanded, and the motions in limine are
granted in part and denied in part.
BACKGROUND
MHA is
a trade association that represents Minnesota hospitals and
healthcare systems, and MHA's subsidiary, MCCA, is the
organization that directly employs the people who perform the
work of MHA. Until the termination of his employment in
November 2010, Feinwachs served as MHA's general counsel
and lobbyist.
Feinwachs
commenced this lawsuit in January 2011, asserting claims
against multiple defendants under the federal False Claims
Act (FCA), 31 U.S.C. §§ 3729 et seq., and
the Minnesota False Claims Act (MFCA), Minn. Stat.
§§ 15C.01 et seq. Over the nearly 9-year
history of this lawsuit, multiple claims and defendants have
been added and dismissed. At present, Feinwach's two
retaliation claims against his former employers, pursuant to
the FCA (Count Eight) and the MFCA (Count Nine), are the only
remaining claims. Feinwachs alleges that Defendants
unlawfully terminated his employment in retaliation for his
efforts to stop what he believed to be Medicaid fraud being
committed by healthcare companies in Minnesota. Defendants
deny that Feinwachs was terminated in retaliation for efforts
to stop Medicaid fraud, and they allege that instead
Feinwachs was terminated for insubordination.
Feinwachs
and Defendants seek rulings on the admissibility of certain
evidence at trial. The parties briefed and argued 36 motions
in limine in late 2018, most of which were resolved at a
November 7, 2018 hearing before Chief Judge John R. Tunheim.
Currently before the Court are the motions in limine that
were not resolved at that hearing and several additional
motions in limine that the parties filed thereafter. In
addition, Feinwachs appeals the magistrate judge's April
5, 2019 Order denying Feinwachs's motion for further
consideration of sealing.
ANALYSIS
I.
Plaintiff's Appeal of the April 5, 2019 Order
The
Court first addresses Feinwachs's appeal of the
magistrate judge's April 5, 2019 Order. That order
pertains to the unsealing of certain documents that contain
or refer to emails that, according to Feinwachs, are
protected by the attorney-client privilege and the
work-product doctrine.
A
district court applies an “extremely deferential”
standard of review to a magistrate judge's ruling on a
nondispositive issue. Scott v. United States, 552
F.Supp.2d 917, 919 (D. Minn. 2008). Such a ruling will be
modified or set aside only if it is clearly erroneous or
contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P.
72(a); LR 72.2(a)(3); Ferguson v. United States, 484
F.3d 1068, 1076 (8th Cir. 2007). A ruling is clearly
erroneous when, “although there is evidence to support
it, the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed.” Wells Fargo & Co. v. United
States, 750 F.Supp.2d 1049, 1050 (D. Minn. 2010)
(internal quotation marks omitted). A ruling is contrary to
law when it “fails to apply or misapplies relevant
statutes, case law or rules of procedure.” Id.
(internal quotation marks omitted).
A.
Factual and Procedural Background
On May
19, 2010, and July 12, 2010, before the commencement of this
lawsuit, Feinwachs's counsel emailed Feinwachs and his
former co-plaintiff, David Kunz, on their respective personal
email accounts. These two emails (hereinafter “the 2010
emails”) pertain to gathering evidence related to this
lawsuit. Kunz subsequently forwarded these emails to
Feinwachs, and MHA later discovered on its computer network
the emails that Kunz had forwarded.
In
preparation for trial, the parties filed motions in limine in
October 2018. These motions included Feinwachs's motion
to exclude from evidence email communications between
himself, Kunz, and their counsel, (Dkt. 217), and
Defendants' motion to admit in evidence email
communications between Feinwachs, Kunz, and their counsel,
(Dkt. 201). Feinwachs opposed Defendants' motion, arguing
that these emails are protected by the attorney-client
privilege and work-product doctrine. Defendants countered
that, because the emails were effectively disclosed to
Defendants when the emails were forwarded to MHA's
computer network, any such protections have been waived. At
the November 7, 2018 hearing on the parties' motions in
limine, Chief Judge Tunheim concluded that the emails found
on MHA's computer network were “not private”
and, therefore, not protected by the attorney-client
privilege. Chief Judge Tunheim did not render a decision as
to whether the work-product doctrine applies to any of the
disputed emails.
The
parties filed a joint motion regarding continued sealing in
December 2018, pursuant to Local Rule 5.6(d)(2), in which the
parties disagreed about whether the 2010 emails should remain
under seal. On February 8, 2019, the magistrate judge ordered
the unsealing of memoranda, declarations, and exhibits that
contain or address the 2010 emails. Thereafter, Feinwachs
moved for further consideration of sealing, see LR
5.6(d)(3), arguing that documents that contain or discuss the
2010 emails should remain under seal because they are
protected by the attorney-client privilege and the
work-product doctrine.
The
magistrate judge denied Feinwachs's motion for further
consideration of sealing. Relying on the law-of-the-case
doctrine, the magistrate judge concluded that Chief Judge
Tunheim's prior rulings on the parties' motions in
limine at the November 7, 2018 hearing is controlling because
prior rulings “should continue to govern the same
issues in subsequent stages in the same case.”
United States v. Carter, 490 F.3d 641, 644 (8th Cir.
2007) (quoting Arizona v. California, 460 U.S. 605,
618 (1983)). Because Chief Judge Tunheim previously deemed
the 2010 emails to be “not private, ” the
magistrate judge reasoned that Feinwachs cannot rely on the
protections of either the attorney-client privilege
or the work-product doctrine to support the
continued sealing of these documents. Feinwachs argued that
Chief Judge Tunheim had reserved ruling on whether the
work-product doctrine applies to the 2010 emails, but the
magistrate judge deemed this argument to be
“irrelevant.” The magistrate judge found that
Chief Judge Tunheim's statement that he would “take
a further look at [the emails] and resolve [the work-product
issue] later” referred to a different motion in limine
that addressed a different set of emails. For these reasons,
the magistrate judge denied Feinwachs's motion for
further consideration of sealing.
B.
Analysis
As the
magistrate judge correctly observed, the purpose of the
law-of-the-case doctrine is to prevent relitigating a settled
issue in a case. Maxfield v. Cintas Corp., No. 2,
487 F.3d 1132, 1134-35 (8th Cir. 2007). This doctrine
provides that, “when a court decides upon a rule of
law, that decision should continue to govern the same issues
in subsequent stages of the same case.” Id.
(internal quotation marks omitted). The law-of-the-case
doctrine protects the settled expectations of the parties,
ensures the uniformity of decisions, and promotes judicial
efficiency. Id. at 1135. As the magistrate judge
correctly observed, Chief Judge Tunheim determined that the
emails on MHA's computer network were “not
private” and that the attorney-client privilege has
been waived as to those emails. Nothing in the record
suggests that Chief Judge Tunheim reserved any
aspect of his decision that the attorney-client privilege had
been waived. To the extent that Feinwachs continues to assert
the protection of the attorney-client privilege to support
sealing emails that were found on MHA's computer network,
his argument is foreclosed by the law-of-the-case doctrine.
Feinwachs
also argues, however, that the work-product doctrine renders
the 2010 emails confidential and, therefore, subject to
continued sealing in this case. The law-of-the-case doctrine
is inapplicable, he argues, to the extent that he is
asserting protection under the work-product doctrine as to
these two emails because Chief Judge Tunheim reserved ruling
on that issue. The magistrate judge disregarded this argument
as “irrelevant, ” finding that Chief Judge
Tunheim's decision to delay ruling on the work-product
issue was “unrelated to the emails” that are the
subject of Feinwachs's motion for further consideration
of sealing. This finding is erroneous.
At the
November 7, 2018 hearing, Feinwachs argued that protection
under the work-product doctrine has not been waived with
respect to the 2010 emails even if the attorney-client
privilege has been waived with respect to those emails. In
response to this argument, Chief Judge Tunheim stated that he
would “take a further look” at the disputed
emails to consider whether any are “work product, as
opposed to privilege[d], ” and that the Court would
“resolve it later.” The record does not support
the magistrate judge's finding that this statement
pertained to a different group of emails. Rather, this
statement pertained to the 2010 emails.
Feinwachs
subsequently filed a supplemental motion in limine
re-asserting the work-product doctrine as to the 2010 emails.
That motion had not been decided by the Court at the time of
the magistrate judge's April 5, 2019 Order.
Fainwachs's supplemental motion in limine is addressed
below in Part II.E. of this Order.[1] As such, the law-of-the-case
doctrine did not foreclose Feinwachs's
work-product arguments in support of his motion for further
consideration of sealing.
For
these reasons, the magistrate judge clearly erred in the
April 5, 2019 Order by denying Feinwachs's motion for
further consideration of sealing based on the law-of-the-case
doctrine. The April 5, 2019 Order is reversed to the extent
that it ordered any document unsealed on that basis. As
addressed in Part II.E. below, the Court now concludes that
the 2010 emails were created in anticipation of litigation
and are opinion work product. Accordingly, the
sealing issue is remanded to the magistrate judge for further
proceedings consistent with this Order.
II.
Plaintiff's Motions in Limine
Feinwachs
moves to exclude evidence of (1) the dismissal of his
underlying qui tam claims, (2) his advocacy of gun
ownership rights, (3) the terms of his contingency fee
arrangement with his attorney, (4) the past lobbying efforts
by Feinwachs and his attorney relating to the MFCA, (5)
emails between Feinwachs and his attorney that were
discovered on MHA's computer network, and (6) certain
aspects of Feinwachs's alcohol treatment records. The
Court addresses each motion in turn.
A.
Dismissal of Qui Tam Claims
Feinwachs
moves to exclude evidence of, or reference to, the fact that
he initially asserted, and later voluntarily dismissed,
qui tam claims in this case. He argues that such
evidence is irrelevant and its probative value, if any, is
substantially outweighed by the danger of unfair prejudice
and confusing the jury. See Fed. R. Evid. 402, 403.
Defendants counter that this evidence is relevant to
liability and damages and that excluding this information
would confuse the jury.
Feinwachs
initially commenced this lawsuit as a qui tam action
alleging FCA claims against several health maintenance
organizations (HMOs). After the United States declined to
intervene in March 2015, the Court granted Feinwachs's
motion to voluntarily dismiss, without prejudice,
Feinwachs's FCA claims against the HMO defendants. At the
November 7, 2018 hearing, Chief Judge Tunheim granted
Feinwachs's related motion to exclude evidence of or
reference to the decision of the United States not to
intervene in the qui tam action, concluding that
such evidence is irrelevant and potentially prejudicial. But
Chief Judge Tunheim denied Feinwachs's related motion to
exclude evidence that no court or agency has ever found that
the HMOs engaged in fraud, concluding that such evidence is
relevant to the objective reasonableness of Feinwachs's
belief that fraud was being committed. Chief Judge Tunheim
deferred ruling on whether to exclude evidence that Feinwachs
initially asserted, and later voluntarily dismissed, his
qui tam claims in this case.
The FCA
prohibits retaliation against an employee “because of
lawful acts done by the employee . . . in furtherance of an
[FCA] action . . . or other efforts to stop 1 or more [FCA]
violations.” 31 U.S.C. § 3730(h)(1). To establish
retaliation under the FCA, a “plaintiff must prove that
(1) the plaintiff was engaged in conduct protected by the
[FCA]; (2) the plaintiff's employer knew that the
plaintiff engaged in the protected activity; (3) the employer
retaliated against the plaintiff; and (4) the retaliation was
motivated solely by the plaintiff's protected
activity.” Elkharwily v. Mayo Holding Co., 823
F.3d 462, 470 (8th Cir. 2016) (internal quotation marks
omitted). As “[t]he text of the MFCA retaliation
provision . . . is substantially similar to the federal
corollary, ” United States ex rel. Scharber v.
Golden Gate Nat'l Senior Care LLC, 135 F.Supp.3d
944, 968-69 (D. Minn. 2015), courts analyze MFCA claims under
the same legal standard as analogous FCA claims, Olson v.
Fairview Health Servs., 831 F.3d 1063, 1069 n.6 (8th
Cir. 2016).
“The
protected activity element of a retaliation claim does not
require the plaintiff to have filed an FCA lawsuit or to have
developed a winning claim at the time of the alleged
retaliation.” Schuhardt v. Wash. Univ., 390
F.3d 563, 567 (8th Cir. 2004). The FCA's anti-retaliation
provision “protects an employee's conduct even if
the target of an investigation or action to be filed was
innocent.” Graham Cty. Soil & Water
Conservation Dist. v. United States ex rel. Wilson, 545
U.S. 409, 416 (2005); accord Townsend v. Bayer
Corp., 774 F.3d 446, 459-60 (8th Cir. 2014).
Neither
filing a qui tam claim, nor prevailing on the merits
of a qui tam claim, is a prerequisite to proving the
elements of Feinwachs's retaliation claims. As such,
evidence that Feinwachs filed such claims after his
termination and later dismissed those claims has no relevance
to any claim or defense to liability with respect to
Feinwachs's retaliation claims. Defendants contend that
excluding this evidence “will create negative and
inaccurate inferences that fraud occurred and MHA was
associated with it.” But the Court previously ruled
that Defendants may present evidence that no court or agency
has ever found that the HMOs engaged in fraud. Such evidence,
if presented, would alleviate the inferences about which
Defendants are concerned.
According
to Defendants, evidence that Feinwachs filed, and later
dismissed, his qui tam claims is relevant to damages
because it demonstrates that Feinwachs “was
extraordinarily busy dedicating time to his ultimately
unsuccessful repeat lawsuits and did very little to mitigate
his damages by finding a comparable new job.” Although
this evidence may have some marginal relevance to damages,
the minimal probative value of this evidence is substantially
outweighed by the dangers of unfair prejudice and confusing
or misleading the jury. See Fed. R. Evid. 403.
Admitting this evidence risks creating improper inferences
with respect to liability even though, as addressed above,
this evidence is irrelevant to liability. Moreover, this
evidence is ...