United States Court of Appeals For the Seventh Circuit
Civil Procedure — summary judgment — qui tam actions
It was error to grant summary judgment to the defendant in a qui tam action, even though the plaintiff did not name any expert witnesses.
“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 judgment 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.”
Reversed and Remanded.
Appeal from the United States District Court for the Eastern District of Wisconsin, Stadtmueller, J., Kanne, J.