Home Blog

Even More Harbor Freight Jack Stands Recalled

0

The very recent recalls of the Harbor Freight Steel Jack Stands have brought to light an alarming safety hazard and source of severe injuries that cause over 4,500 injuries each year according to the National Center for Statistics and Analysis (NHTSA).

With over 1.7 million Pittsburgh 3-Ton and 6-Ton Jack Stands recalled to potential for severe injury and death from a jack stand collapse remains an incredible risk.  With decades of experience getting justice for injury victims, our jack stand collapse attorneys can help you or a loved one get suitable compensation for their injuries or possible death.  We have always offered a free case evaluation and you won’t pay a dime unless we win.

How Dangerous Are Floor Stand Jacks?

Even without recallable manufacturing defects, jack stands remain a dangerous tool for any business or individual needing to jack a vehicle up for repair.  Over 4,822 people were injured by collapsing jacks annually according to an NHTSA report, with over 96% of the individuals needing to visit the emergency room.  Currently – there is no concise study available on any fatal injuries caused by collapsing jack stands.

Of these 4,800+ injuries, the NHTSA broke them down into the following injury types:

  • 5% – Amputations
  • 40% – Contusions
  • 15% – Fractures
  • 18% – Lacerations
  • 10% – Strains or Sprains
  • 13% – Other Injuries

In over 39% of these cases – the hand, wrist, or fingers were injured by the jack stand collapse.

Our attorneys understand the law surrounding these incidents, and by calling us at 1-800-590-4116 we can help you learn whether or not you have a case with no fees required.

The May 2020 Harbor Freight Jack Stand Recalls 

After years of complaints, the NHTSA finally issued a recall of over 1.7 Million Pittsburgh Automotive® 3-Ton and 6-Ton Heavy-Duty Steel Jack Stands.

Harbor Freight is generally known for producing cheap tools and severe manufacturing defects within their Chinese factory led to the possibility of these stands collapsing suddenly under large loads.  This collapse can result in serious injuries and even death. 

The July 2020 Harbor Freight Jack Stand Recall

Harbor freight put out a new batch of jacks to replace the ones that had to be recalled, however, in July of 2020, just a few months later, the new 3-ton jacks also had to be recalled due to a manufacturing issue. A number of these new jack stands were failing and collapsing as the old batch had, except for a different reason this time. While the exact cause of the manufacturing issue has not been reported, the cause of these collapses is a defect in the welding of the jack stand. In response, the company has issued a recall to cover many of the jacks that people had bought to replace the jacks that had already been recalled.

What Harbor Freight Products Were Recalled?

In March 2020, an initial 454,000 Pittsburgh Automotive 6-Ton Heavy Duty Steel Jack Stands were recalled by Harbor Freight.  Only months later in May 2020, an additional 3-Ton Heavy Duty Steel Jack Stands were recalled due to the same manufacturing defect. In July 2020, more 3-Ton Heavy Duty Jack Stands were recalled, due to an issue with the welding which caused them to collapse.

What Manufacturing Defects Caused These Harbor Freight Jack Recalls?

The first two instances of these product recalls were linked to manufacturing defects within a manufacturer called Jiaxing Golden Roc Tools Co., Ltd.  An analysis of these jack stands determined that the product quality was inconsistent due to aged tooling – and due to this the gears used to keep the load aloft are prone to slippage.  In addition an inconsistent location of the main pawl armature hole also caused a margin of error which further exacerbated the issue.

The latest recall was due to a defect in the quality of the welding of load bearing pieces in the jack. When these welded joints received a heavy load, the stress caused them to snap and the jack to collapse, putting Harbor Freight customers in danger again due to twisting metal and falling loads.

This kind of welding defect could have a number of causes. If the joints don’t get hot enough when they’re formed, several issues could occur. For welding to be done successfully, both of the pieces have to be hot. This is because welding is basically fusing together two pieces of metal, until they become combined on the molecular level, if one of the pieces is too cold, that means it’s material won’t be altered enough to accept the fusing. The outcome of this is that if both pieces aren’t adequately heated at the same time, you’re essentially sticking one piece of metal onto another instead of fusing them together, creating a weak joint.

The failures of the July 3-Ton Jack Stand could also be due to cracking. This is a common defect that happens within the joints of the weld. It happens when the heated metal gets cooled rapidly, causing a build up of stress that makes cracks appear in the metal. A common process, annealing, is used to prevent this kind of issue from happening. By reheating the weld to a lower temperature than the original one and allowing the metal to then naturally cool, the metal refuses but undergoes less stress while cooling. Of course, cutting corners on these product quality steps is one way that suppliers and manufacturers are able to cut costs, unfortunately, the result is that the customer on the receiving end can be put at unnecessary risk.

Weld problems could also be a result of distortions, oxidation, slag, and corrosion, many issues that can be caused by poor quality base metals.

With such a large load depending on these jack stands, even a small defect can have catastrophic responses for those individuals working around the lifted load. 

How Were The Defective Harbor Freight Jack Stands Failing?

If affected by the May defect, the ratchet teeth on the jack stand lifting extension were inconsistency engaging the pawl, which provides the support for the load.  Due to the manufacturing defects these ratchet teeth were not engaging at an appropriate depth which could cause sudden slippage.

While under load, potential shifts in weight were causing these gear teeth to slip suddenly, which would cause the jack stand to collapse and potentially injure any bystanders. 

In the case of the July defect, the top stand that holds the arm of the jack is also the place where the teeth and levering action are located, because of the pyramid shape of the stand, the top of the stand had to be fused by welding. However, because this is where the levering action is located and where the arm meets the base, the area has to absorb a lot of stress, and the welds could not handle it and would fail, causing the entire jack to collapse.

How Can Our Jack Stand Collapse Attorneys Help You?

Our team at McEldrew Young Purtell Merritt have helped bring justice to hundreds of individuals that were injured through no fault of their own.  Our team provides a free consultation so we can help you understand whether or not your injuries deserve compensation.  Throughout the entire process – you won’t pay a single dime.  We don’t charge any fee unless we win your case.

If you or a loved one owns or has been injured by a jack stand collapse, don’t hesitate to contact us immediately at 1-800-590-4116 so we can help you determine whether or not you have a case.

Fiat Chrysler SUVs and Minivans Recalled Due to Projectile Hazard During Airbag Deployment

0

Another year has brought another massive vehicle recall due to defective airbags. On July 13, the U.S. National Highway Traffic Safety Administration (NHTSA) announced the recall of 1.2 million Fiat Chrysler minivans and SUVs due to a defect which has already resulted in at least 14 reports of injury. The airbag covers of the recalled 2007–11 Dodge Nitro SUVs and 2008–10 Chrysler Town & Country and Dodge Grand Caravan minivans are secured by defective clips, many of which have loosened over time to turn themselves and the plastic emblems they hold into projectiles.

This recall comes on the heels of the 6-years-and-counting saga of Takata’s airbag recall, involving 56 million vehicles made by 19 different automakers in what the NHTSA has called “the largest and most complex safety recall in U.S. history.” As many as 15.9 million defective Takata airbags still remain on the road, resulting in occasional tragedies like the story of 17-year-old Huma Hanif, whose neck was cut by a piece of metal ejected from a faulty airbag inflator, causing her to bleed to death. Her family claims that they were never contacted about the recall.

How Defective Product Law Protects Drivers

Federal laws cover manufacturing defects, design defects and communication about known product dangers, ensuring consumers of a basic right to the implied safety of a purchased product. When you buy a product and use it in the proper way, these laws are there to protect you from unexpected harm. 

On the other side of the equation, consumer safety laws aim to keep everyone in the manufacturing and supply chain honest, applying equally to manufacturers, distributors and retailers. Companies have an obligation to design and manufacture safe products — and when they fail to do so, you have a right to seek action. 

Vehicle Makers Are Held to an Especially High Standard

Product law requires automobile manufacturers to go to great lengths to ensure that every car they produce performs well under typical driving conditions, and mitigates injury in the event of a crash. There is even the added burden of crashworthiness, which requires a car’s designers and manufacturers to look ahead to the human consequences of all types of driver outcomes. This is one of the reasons that auto makers use devices like crash test dummies in simulating crashes.

Since airbags were first required in new passenger vehicles at the start of the 1999 model year, they have been a big part of that safety. Front airbags have been shown to reduce driver fatalities in frontal crashes by 29 percent and front-seat passenger deaths (provided they are 13 or older) by 32 percent. Side airbags reduce a car driver’s risk of death in driver-side crashes by 37 percent and an SUV driver’s risk by 52 percent.

The heightened safety that airbags deliver has become an expectation — which makes it all the more tragic when airbag defects end up causing injury instead of preventing it.

What Types of Injuries Can Defective Airbags Inflict?

While the Fiat Chrysler airbag issue is still unfolding, more is known about the ramifications of Takata’s airbag issue, which has so far claimed the lives of 24 people worldwide while injuring hundreds.

Airbags come out of their housing at speeds up to 200 miles per hour, and must be held to a high design and manufacturing standard. When they fail, injuries can include:

  • Broken bones, skull fractures and brain injury
  • Chemical burns from the gas propellant used for inflation
  • Deep cuts and hemorrhaging from projectiles and shrapnel
  • Blindness caused by exploding airbags

Source: Wikipedia, shared under a CC BY-SA 3.0 license

When to Consult with an Experienced Product Liability Lawyer

At McEldrew Young Purtell Merritt, we have over 30 years of experience in litigating product liability cases. We take all claims on a contingency basis, and will only charge you attorney fees if we are able to obtain financial compensation for your losses. Our experience comes in handy when connecting cases with the right expert witnesses, which can be invaluable in demonstrating the validity of a claim.

McEldrew Young Purtell Merritt welcomes clients local to our Philadelphia offices and those from New Jersey, New York, Pennsylvania and further afield. To schedule a meeting for a free consultation, fill out our form or call us directly at 1-866-694-5578.

What Trucking Companies Cause The Most Accidents On The Road?

0

The East Coast is more developed and tightly populated than much of the rest of the country. The result of this congestion is that the highways that run across the area are very tightly packed. This means there is a greater density of drivers in the region than in other parts of the country, increasing the likelihood of accidents. When these accidents involve commercial trucks, the resulting damage is often serious.

Trucking accidents cause thousands of injuries every year, and because of the massive trailers and large loads they carry, the potential for serious, life-threatening accidents is increased. The size of the trucks and the loads they carry also means that more drivers can be impacted by accidents involving trucks, due to the potential for flying debris from the trailer, spilled cargo, and the number of space trucks take up on the road.

Unfortunately, many trucking companies are too lax in their safety standards and hiring practices, given how dangerous commercial trucking is. The result is that thousands of Americans are injured in trucking accidents every year. These injuries mean victims have to deal with emotional and physical pain and as well as financial hardship due to crushing medical debts, an inability to work, and car repairs. 

Thankfully, personal injury laws exist to help families get back on track after they suffer from a crash involving a truck. An experienced personal injury lawyer can help them navigate the complex liability laws involving commercial vehicles to hold the appropriate parties responsible and get the compensation they deserve.

At McEldrew Young & Purtell, we’ve handled thousands of personal injury cases and have won millions for our clients. As experts in truck accident injury laws, we’ll take a look at some of the trucking companies that get in the larger number of accidents, so you know who to look out for when you’re on the road.

United Parcel Service

More commonly known as UPS, United Parcel Service, Inc. is one of the largest parcel transport companies in the country. Headquartered in Atlanta, they have a large fleet and nearly 100,000 drivers on the road. While they have a fairly low number of safety inspection violations, UPS drivers were involved in nearly 2,300 crashes, causing 800 injuries and 55 deaths.

FedEx

FedEx Freight, Inc. is an Arizona based service that focuses on less-than-truckload shipping. They employ roughly 20,000 drivers, who were involved in almost 900 crashes, roughly 260 of which caused injuries. The accidents resulted in 26 deaths.

Swift Transportation

The Swift Transportation Co. of Arizona is another company that’s based out of the Grand Canyon State. Their business focuses on transporting truckload-sized freight. Their size is similar to that of FedEx, with roughly 20,500 drivers on the roster. Alarmingly, 15 percent of their vehicles were found to have violations during the inspection, according to the Federal Motor Carrier Safety Administration. Their drivers were involved in around 1,800 crashes, roughly 520 of which caused injuries and 45 that caused deaths.

While not every trucking accident is serious, these statistics show how dangerous a truck-related crash can be.

Philadelphia Truck Accident Lawyer

If you or a loved one suffered because of a truck-involved crash, your best course of action is to consult an experienced law firm as soon as possible. Only a knowledgeable personal injury attorney can help you get compensation for the physical, emotional, and financial harm your family has suffered.

With over 30 years of personal injury law experience, McEldrew Young Purtell Merritt has the expertise to fully evaluate your legal case and get you the payout you deserve. To schedule a meeting for a free consultation, fill out our form or call us directly at 1-800-590-4116.

Top 10 Most Fatal Occupations: A Study By The Bureau of Labor Statistics

0

One issue that people don’t always consider when they’re interested in a job is the danger associated with performing the job’s duties. While some professions, like firefighting, have known risks, there are many more that aren’t as clear to those pursuing a career in that field or just starting out. 

Unfortunately, some dangers aren’t apparent until it’s too late, and unsafe working conditions or haphazard safety measures can make the dangers that come with certain jobs even more frequent. While many jobs can be hazardous, others come with an increased risk of death. The Bureau of Labor Statistics releases a study of the most fatal occupations every few years. We’ll take a look at the results from the most recent numbers they’ve released and break down the top 10 most dangerous jobs in the country.

  1. Production Occupation Fatalities

In 2018, the Bureau of Labor Statistics recorded 225 total fatalities in the production field. The production occupation includes jobs like factory workers, metal workers, and plastic workers, they’re involved in the production of goods. Of the 225 fatalities, 63 of them were a result of contact with equipment and 40 were a result of exposure to harmful substances.

As defined by the Bureau of Labor Statistics, occupations involve a range of related jobs between different industries. For production occupations, the most at risk workers were metal and plastic workers, who suffered 80 fatalities, mostly as a result of injury due to equipment.

  1. Sales Occupation Fatalities

Sales and related occupations accounted for 241 worker fatalities, this includes positions like cashier and floor salesperson. The majority of these deaths were a result of violence inflicted by people, with 129 instances of deaths due to violence. The next highest cause of death was transportation injuries, accounting for 38 deaths.

  1. Material Moving Fatalities

Material moving workers suffered 255 deaths while on the job. This occupation covers jobs like conveyor operators and crane operators. The majority of the were a result of transportation accidents, accounting for 100 deaths, while contact with equipment was the second leading cause of death, accounting for 63 deaths.

  1. Farming Fatalities

Many people don’t know that modern agriculture can be very dangerous. Farming, fishing, and forestry occupations suffered 262 fatalities, with 100 of those being transportation related and 92 coming as a result of contact with equipment. Agricultural workers accounted for the largest number of fatalities in the grouping, suffering 158 deaths, most related to transportation. 

  1. Protective Service Occupation Deaths

Protective service occupations accounted for 270 worker deaths. The category includes jobs like firefighter and police officer. Violence due to another person was the leading cause of death, resulting in 117 fatalities, while transportation accidents were the second highest cause of death, causing 98 deaths. 

Burn Injury Lawyer Philadelphia, PA

In the category, police officer was the most dangerous occupation, suffering 108 fatalities, 56 due to violence and 45 due to transportation accidents. Security guards were the second most dangerous occupation in the category, suffering 58 deaths.

  1. Groundskeeping and Maintenance Fatalities

Building and grounds cleaning and maintenance occupations had 350 fatalities. The cause of death in the category was quite varied with 89 related to transportation accidents, 99 related slips, 74 related to exposure to harmful substances, and 67 related to contact with equipment. The most dangerous job in the category was ground maintenance worker, which suffered 225 deaths, also varied across causes.  The category includes duties like tree-trimming, applying pesticides, and landscaping so the variety of dangers reflects that. 

  1. Management Occupation Fatalities

Management occupations across industries accounted for 387 worker deaths.The majority of the deaths, 159, were related to transportation, while 82 were related to violence. The most dangerous job in the category was agricultural manager, which suffered 257 deaths.

  1. Maintenance Occupation Deaths

Installation, maintenance, and repair occupations suffered 420 on the job deaths. The leading cause of death was contact with equipment (114 deaths) while a close second was transportation accidents.

  1. Construction Fatalities

Construction and extraction occupations accounted for 1,003 worker fatalities, with the leading cause of death being slips and falls, which resulted in 339 deaths. Another major cause of death were transportation accidents, resulting in 228 deaths.

  1. Transportation Occupation Fatalities

The most dangerous occupational category was transportation and material moving. Workers in the category suffered 1,443 deaths, with the majority of deaths, 1,014, being a result of transportation accidents. This category includes truck drivers, delivery drivers, and travelling sales workers, all of whom are on the road a lot and are at more risk as a result.

Philadelphia Work-Related Injury Lawyers

If you or a loved one suffered a work-related injury you should consult a personal injury attorney to get the compensation you’re entitled to. With over 30 years of personal injury law experience, McEldrew Young Purtell Merritt has the expertise to fully evaluate your legal case and get you the payout you deserve. To schedule a meeting for a free consultation, fill out our form or call us directly at 1-800-590-4116.

Novartis Agrees to Pay $678 Million to Settle Allegations of Illegal Kickbacks Involving Several of the Company’s Cardiovascular Drugs

0

Attorney Eric L. Young Represents Whistleblower Oswald Bilotta in One of the Largest Ever Recoveries in a Health Care Fraud Case Brought Under the Qui Tam Provisions of the False Claims Act

PHILADELPHIA, July 1, 2020 — Attorney Eric. L. Young announced today that Novartis Pharmaceuticals Corporation (“Novartis”) has agreed to settle alleged violations of the False Claims Act based on a qui tam complaint filed by whistleblower Oswald Bilotta, who is represented by McEldrew Young Purtell Merritt, Attorneys-at-Law (“McEldrew Young”), and Shepherd, Finkelman, Miller & Shah, LLP (“SFMS”).

“Today’s announcement puts the pharmaceutical industry on further notice that offering or paying unlawful remuneration to health care providers will have costly consequences,” said Eric Young, managing partner of McEldrew Young’s whistleblower practice. “The days are over for drug manufacturers who routinely provide incentives to doctors as a means of increasing the number of prescriptions written. There is no legitimate reason why drug manufacturers should take doctors to five-star restaurants, major sporting events or extravagant fishing excursions,” Mr. Young added.

Mr. Bilotta’s original whistleblower complaint was filed under seal in January 2011, in the United States District Court for the Southern District of New York, and alleged that Novartis’ Cardiovascular Diseases (“CV”) Division engaged in a variety of unlawful marketing schemes, as well as violations of the Anti-Kickback Statute, 42 U.S.C. § 1320a – 7b(b). On April 26, 2013, the Department of Justice announced that the United States had intervened in the action and filed a complaint in intervention. In the seven years since, McEldrew Young and SFMS have worked hand in hand with the U.S. Attorneys’ Office for the Southern District of New York to further substantiate Mr. Bilotta’s allegations through lengthy discovery and extensive legal arguments.

Both the United States’ and the whistleblower’s complaints alleged that Novartis had fraudulently billed Medicare, Medicaid, TRICARE, and other federal and state-funded health care programs. As part of the scheme, Novartis allegedly spent millions of dollars on incentive programs to doctors who steered patients toward drugs from Novartis’ CV Division in exchange for illegal kickbacks. The drugs implicated in the alleged kickback scheme, included Lotrel, Diovan, Diovan HCT, Tekturna, Tekturna HCT, Exforge, Exforge HCT, Valturna, Tekamlo, and Starlix.

The alleged kickbacks violated the False Claims Act, 31 U.S.C. §§ 3729-33, as well as analogous state and local laws, because government-funded health care programs reimbursed many of the prescriptions written by the doctors who allegedly received kickbacks. Eric Young noted that “U.S. taxpayers are often the biggest victims of pharmaceutical sales and marketing fraud because it increases the cost of health care for everyone — precious Medicare and Medicaid dollars are squandered due to corporate greed rather than being spent for the public good.”

Whistleblower Bilotta is a former Novartis sales representative from Long Island, New York, who identified and reported alleged unethical and illegal conduct by Novartis. Mr. Bilotta was also instrumental in identifying many of the physicians who allegedly accepted illicit financial incentives in exchange for prescribing the company’s drugs. The allegations set forth in Mr. Bilotta’s complaint detail how Novartis provided doctors with a wide array of inducements, including meals at top restaurants, trips to sporting events, and chartered fishing excursions. Many of these events were held under the guise of “educational programs” where doctors were paid to purportedly provide medical information to their peers.

“Mr. Bilotta has demonstrated remarkable courage and perseverance in coming forward with evidence of Novartis’ alleged wrongful conduct and seeing the case to its final resolution after nearly a decade,” said Mr. Young.

For Novartis, the past is prologue as it relates to the announcement of today’s settlement. Remarkably, less than four months before the original whistleblower complaint was filed in this case, Novartis entered into a settlement agreement with the United States government where it agreed to pay nearly $422 million in fines and penalties, both criminal and civil, to resolve similar allegations that it paid kickbacks to prescribers of certain other Novartis drugs.

As the managing partner of McEldrew Young’s whistleblower practice, Eric Young has established a distinguished record of success. Mr. Young has recovered more than $2 billion dollars for the government on behalf of his whistleblower clients. McEldrew Young represents whistleblowers from across the country and abroad. Many whistleblower cases are brought under the False Claims Act, which allows a private individual, known as a relator, to file a lawsuit on behalf of the United States government against a company that has perpetrated fraud against the government. If a relator successfully recovers funds on behalf of the government, he or she can receive a reward of 15 percent to 30 percent of the civil monetary recovery.

Case citation: United States ex rel. Bilotta v. Novartis Pharmaceuticals, Corp., S.D.N.Y. 11-CV-00071-PGG.

The CFTC Encourages Whistleblowers to Report Information Involving Commodities Fraud

0

The Commodity Futures Trading Commission (“CFTC” or “Commission”) may not be as familiar as it’s more well known counterpart, the Securities and Exchange Commission, but the agency nonetheless serves an equally vital function by ensuring stability and confidence in the derivatives markets. One of the ways the Commission maintains the integrity of the markets is by actively soliciting the public for information involving commodities fraud through its whistleblower program.

The Creation and Expansion of the CFTC

The passage of the Commodity Futures Trading Commission Act in 1974 substantially amended the Commodity Exchange Act (“CEA”) and led to the creation the CFTC.  The Commission’s predecessor, the Commodity Exchange Authority, was limited to regulating only the agricultural commodities specifically enumerated in the Commodity Exchange Act. By expanding the definition of “commodity” to include transactions in futures and options in United States markets, as well as “any other board of trade, exchange, or market,” the regulatory authority of the newly-created CFTC was significantly expanded.

Today, the CFTC operates as an independent agency of the United States government that regulates and oversees domestic derivatives markets, including commodity futures, options and swaps markets. According to its mission statement, the Commission’s fundamental objective is to “promote the integrity, resilience, and vibrancy of the U.S. derivatives markets through sound regulation.”

Since the 1970s, futures and options markets have expanded to include the trading of futures and options for many non-agricultural commodities, such as oil and gold, as well as financial instruments, including foreign currencies, stock indices, and Treasury debt instruments. The markets under the CFTC’s regulatory authority are significant because of their financial size and importance — trades in these markets amount to billions of dollars annually. Following the financial crisis of 2008, Congress authorized the Commission to regulate and reform the swaps market, another class of derivatives comprised of over-the-counter trading of custom contracts between private parties.

Commodities, Derivatives & Swaps

A commodity is a basic good for which there is demand, but is interchangeable with another commodity of the same type. In other words, there are no practical differences between two or more producers of the same commodity. Examples of commodities include beef, gold, corn and coal. The definition of commodities has expanded over time to apply to additional products including, most recently, certain cryptocurrencies. In 2014, the CFTC first stated its position that virtual currencies are a “commodity” subject to regulatory oversight pursuant to the CEA.

A derivative is a financial instrument, the value of which is based on one or more underlying assets. In practical application, a derivative is a contract between two parties with specific conditions that define the terms by which payments are made. The most common types of derivatives are forwards, futures, options, and swaps. The most common underlying assets are commodities, stocks, bonds, interest rates, and currencies.

A swap is a derivative contract that was first introduced in the late 1980s. A swap between two parties involves the exchange of agreed-upon cash flows of two financial instruments. The cash flows are usually based on a predetermined nominal value, referred to as the notional principal amount. Unlike most standardized options and futures contracts, swaps are not exchange-traded instruments. Rather, they are customized contracts traded in the over-the-counter market between private parties. Since swaps take place on the over-the-counter market, there is always the potential for default by a counterparty.

The CFTC Whistleblower Program

The CFTC whistleblower program was created as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). Dodd-Frank was enacted in 2010 in response to the financial crisis of 2008, the Bernie Madoff scandal, and other highly-publicized financial frauds. Section 748 of Dodd-Frank amended the CEA by adding Section 23, entitled “Commodity Whistleblower Incentives and Protection.

Section 23 of the CEA, 7 U.S.C. § 26, authorizes the CFTC to issue monetary awards to whistleblowers who voluntarily report original information involving violations of the CEA. The information must lead to a successful enforcement action resulting in the recovery of monetary sanctions exceeding $1 million, or a related action. A “related action” is one brought by certain government entities based on the same original information provided by the whistleblower that resulted in the successful CFTC enforcement action. An eligible whistleblower can receive an award of between 10% and 30% of the monetary sanctions collected in either the CFTC action or a related action.

Since its inception in 2011, the CFTC whistleblower program has recovered more than $800 million in monetary sanctions, and awarded over $100 million to whistleblowers who provided original information or analysis that led to those successful recoveries. In the last two fiscal years, the CFTC awarded over $90 million to whistleblowers, an amount which represents 88% of the total sum awarded to whistleblowers since the program’s inception.  The sharp increase in the monetary amount of the awards illustrates the Commission’s increased reliance on, and commitment to, whistleblowers.

The CFTC’s Whistleblower Office has actively promoted educational and outreach campaigns designed to reach potential whistleblowers through various means, including speeches, web postings, as well as appearances at seminars, conferences and industry trade shows. In May 2019, the Whistleblower Office started issuing “CFTC Whistleblower Alerts” which cover trending topics and issues on which the Commission has focused its recent investigative and enforcement efforts.

Spoofing and Market Manipulation

The CFTC’s latest Whistleblower Alert, issued in January 2020, deals with a disruptive trading practice known as “spoofing.” In its Interpretive Guidance and Policy Statement on Disruptive Practices, the CFTC explained that a violation of section 4c(a)(5)(C) of the CEA “occurs when the trader intends to cancel a bid or offer before execution.” Additionally, the prohibition against spoofing “covers bid and offer activity on all products traded on all registered entities . . . .”

The Interpretative Guidance lists certain types of disruptive conduct which the CFTC deems to constitute spoofing:

(i) submitting or cancelling bids or offers to overload the quotation system of a registered entity;
(ii) submitting or cancelling bids or offers to delay another person’s execution of trades;
(iii) submitting or cancelling multiple bids or offers to create an appearance of false market depth; and
(iv) submitting or canceling bids or offers with intent to create artificial price movements upwards or downwards.

The Commission further explained that a person must act with a degree of scienter beyond recklessness to violate the prohibition against spoofing in section 4c(a)(5)(C) of the CEA. In a similar context involving a violation of SEC Rule 10b-5, the United State Supreme Court defined scienter as “a mental state embracing intent to deceive, manipulate, or defraud.” Ernst and Ernst v. Hochfelder, 425 U.S. 185, 193-94 n.12 (1976).

The CFTC Recovers the Largest Monetary Penalty for Spoofing in History

In November 2019, the CFTC issued an order which included factual findings and the imposition of remedial sanctions against Tower Research Capital LLC (“TRC”), a proprietary financial services firm engaged in futures trading. For a period of at least twenty-one months, the Commission alleged that three TRC traders (“Traders”) engaged in a scheme whereby they placed orders they wanted filled on one side of the market (the “Real Orders”) while also placing orders on the opposite side of the market which they intended to cancel from the outset (the “Spoof Orders”).

Once the Traders received a full or partial fill of their Real Orders, they proceeded to cancel their Spoof Orders, which they allegedly never intended to complete in the first place. Through their actions, the Traders allegedly intended to send false signals to the market that they actually planned to buy or sell the contracts contained in the Spoof Orders. In furtherance of the alleged scheme, the CFTC claimed the Traders broke down larger orders into several smaller, randomly-sized orders in an attempt to camouflage their scheme from others in the market.

According to the CFTC, the ultimate objective of the Traders’ manipulative scheme was to induce other market participants to trade against the Real Orders. As an added benefit, the Traders anticipated the market would react by filling the Real Orders more quickly, at more favorable prices, or in larger quantities than usual. The CFTC alleged the Traders intended to create or exacerbate an order book imbalance, thereby creating a false impression of supply or demand in the market. Thus, the Commission charged that the Traders knew their Spoof Orders would create the false appearance of market depth and induce participants to make trades based on the misleading market activity created by the Spoof Orders.

The CFTC charged TRC with violations section 6(c)(1) of the CEA, 7 U.S.C. § 9(1), and Regulation 180.1(a)(1) and (3), 17 C.F.R. § 180.1(a)(1),(3), which make it is unlawful to intentionally or recklessly “(1) [u]se or employ, or attempt to use or employ, any manipulative device, scheme, or artifice to defraud;” or “(3) [e]ngage or attempt to engage, in any act, practice, or course of business, which operates or would operate as a fraud or deceit upon any person,” in connection with any contract for future delivery on or subject to the rules of a registered entity.

Based on the cited provisions, the CFTC charged that the Traders “employed a manipulative and deceptive scheme” when they placed the Spoof Orders with the intent to create the false appearance of market depth. By virtue of section 2(a)(1)(B) of the CEA, 7 U.S.C. § 2(a)(1)(B), and Regulation 1.2, 17 C.F.R. § l.2, TRC was liable for the alleged fraudulent conduct of the Traders because they acted within the scope of their employment with TRC while engaged in the prohibited conduct.

In order to settle the Commission’s charges, TRC agreed to, among other things, pay: (i) restitution of $32,593,849; (ii) a civil monetary penalty of $24,400,000; and (iii) disgorgement of $10,500,000. These amounts totaled a record-setting penalty of $67.4 million for a spoofing case.

The Importance of Legal Representation for Whistleblowers

The CFTC Whistleblower Program, as well as other those of other government agencies (e.g. the SEC and IRS), provide a process through which individuals can directly report fraud against the government without the assistance of a lawyer. However, if a whistleblower intends to file anonymously, the SEC and IRS whistleblower programs both require that he or she be represented by an attorney. In contrast, the CFTC allows an unrepresented whistleblower to proceed anonymously through the entire process.

While it may be tempting to “go it alone,” a whistleblower without legal representation faces a number of pitfalls that could preclude them from receiving an award, even after providing vital information and assistance that led to a successful recovery. In order to remain eligible for an award, the rules and procedures of a government agency’s whistleblower program must be followed closely. For example, there are strict deadlines for filing objections to a decision concerning an agency’s reliance on the information provided by the whistleblower, or the amount awarded following a successful recovery.

While every government agency protects the identity of a whistleblower to the fullest extent possible, a targeted company can sometimes still surmise the identity of a whistleblower. If, after learning of a whistleblower’s identity, a company retaliates against that person, the company may be subject to separate liability based on statutory protections that provide specific legal and equitable remedies for anyone subjected to their employer’s reprisals.

The experienced attorneys at McEldrew Young Purtell Merritt provide skilled assistance throughout the entire process of filing a whistleblower claim, beginning with a thorough review of evidence and the drafting of a submission designed to persuade the agency to undertake an investigation. If there is a successful recovery based on information provided, our whistleblower attorneys will monitor the notices posted on the agency’s website to ensure that a claim for an award is filed within the narrow time frame prescribed by agency rules.

McEldrew Young Purtell Merritt attorneys also evaluate the amount of an award to ensure it accurately reflects the significance of the information provided and the level of cooperation given during the agency’s investigation. If an award doesn’t fairly reflect the whistleblower’s contributions, we use the appeal process and work to secure a more just result. For a free, no obligation consultation, call McEldrew Young Purtell Merritt’s whistleblower attorneys at (215) 367-5151, or you can submit your information through the contact form on this website.

Retailing Giants Ending Sales of Inclined Infant Sleepers as CPSC Study Links Product to Over 73 Deaths

0

After the U.S. Consumer Product Safety Commission (CPSC) issued a warning in late October 2019 that inclined infant sleepers led to over 73 infant deaths, major retailers are finally responding and pulling these products from their shelves.

Consumer Reports urged retailers in an open letter they sent to 14 different retailing giants, including Amazon, eBay, Bed Bath and Beyond, and Kohls, that they pull these products from their stores in order to keep consumers safe.

Too many retailers had been skirting the issue by continuing to stock products intended for “snoozing,” “napping,” or “resting,” and Consumer Reports stressed that “It is not enough for the products to specify that they are not to be used for ‘prolonged’ sleep … any kind of inclined sleeping position poses risks to infants.”

The CPSC commissioned the biomechanical research to be led by Erin M. Manned, Ph.D., whose study found that “none of the inclined sleep products that were tested and evaluated as part of the study are safe for infant sleep.”

Which Inclined Sleeper Products Were Causing Infant Deaths?

With over 1,108 incidents reported to the CPSC so far, these types of sleepers have been sold at big-box retailers since 2014, and multiple brands and products have been facing recalls.

These include:

The Fisher Price Rock n’ Play Sleeper pictured above

Fisher Price Rock ‘n Play Sleepers: These were recalled in April 2019 after a CPSC study links the product to over 30 infant deaths over 10 years. About 4.7 million sleepers were eventually impacted by the recall.

Fisher Price Ultra Lite Day & Night Play Yards: Shortly after the first recall, Fisher Price recalled approximately 71,000 inclined sleeper accessories for their Ultra-Lite Day & Night Play Yards.

Kids II Rocking Sleepers: These infant sleepers were also recalled shortly after Fisher Price, with their product being linked to five infant deaths since their 2012 launch. These recalled affected approximately 694,000 units.

Dorel Juvenile Group USA’s Bassinets: Dorel had manufactured multiple infant sleepers sold under the Disney and Eddie Bauer brand names. In July 2019 the Eddie Bauer Slumber and Soothe Rock Bassinet and Disney Baby Doze and Dream Bassinet we both recalled affecting about 24,000 units.

SwaddleMe By Your Bed: Only recalled in January 2020, By Your Bed recalled almost 46,300 bassinets that caused similar issues as other recalled beds.

What About These Inclined Sleepers Is Causing Infant Deaths?

The deaths caused by these inclined sleepers is linked to a number of factors but ultimately the research identified carbon dioxide rebreathing, asphyxiation, and suffocation as causes of death.

Parents.com was able to speak to Dr. Mannen who performed the CPSC study identified a couple scenarios that infants were facing:

Suffocation Due to CO2 Rebreathing: The low breathability of certain materials (even mesh) located to the sides of the infants face can lead to carbon dioxide rebreathing which is a large risk factor for Sudden Infant Death Syndrome.

Babies Rolling on Their Stomachs: In more than 20 of the cases studies the infants had been found on their tummies, and once they are in a stomach down position, they lacked the strength to push themselves into a new position which could lead to suffocation.

Positional Asphyxia In Standard Sitting Positions: In addition to the dangers of a child rolling over, even without rolling, infants were at risk of potential asphyxiation as the heavy head of an infant has a tendency to fall forward due to the steep angle of these inclined sleepers.

Legal Assistance Is Available For The Families Of Inclined Infant Sleeper Victims

If you or a loved one’s child was harmed after being placed in a Fisher-Price inclined infant sleeper or another brand of infant sleeper don’t hesitate to call our lawyers at McEldrew Young Purtell Merritt directly at 1-800-590-4116 to learn how we can help you.

If your child has been harmed while sleeping, resting or playing in one of these devices, please don’t blame yourself. You purchased a baby item in good faith, believing it was safe for your child to rest there.

Now it’s time to explore your legal options to determine whether you’d like to pursue legal action against the manufacturer that produced an unsafe product. Please speak with our Pennsylvania Fisher Price Rock n Play law firm today about your options.

Five Killed and 60 Hospitalized After Tragic Pennsylvania Turnpike Crash

0

A tragic accident on the Pennsylvania Turnpike early Sunday morning left five dead and over 60 injured when a passenger bus with Z&D Tour Inc. lost control around a turn and set off a chain-reaction which involved three tractor-trailers and a passenger vehicle.

Police say that the bus was not able to get around a particularly tight turn, went up an embankment and flipped between the exits for New Stanton and Breezewood.  This set off a chain reaction which led to the horrific amount of injuries sustained, in what the spokesman for the Pennsylvania Turnpike Carl DeFebo called “the worst accident in his decades-long tenure with the turnpike.”. 

UPS confirmed that two of their drivers were killed in the accident:

Sadly, UPS confirms the identities of two of our drivers who are victims of this tragic incident. Daniel Kepner, age 53, had 5 years of service, and, Dennis Kehler, age 48, had 28 years of service. Both were driving together in a tractor-trailer vehicle out of our Harrisburg, Pennsylvania, operating center. Our drivers will be missed and our thoughts and prayers go out to their families. This is all of the information available at this time,”

FedEx and Z&D Tour Inc. have so far declined to comment beyond that they are cooperating with authorities.

Trucking Accidents in Pennsylvania Cause Serious Injuries

There are thousands of fatal accidents each year caused by trucks and tractor-trailers, and sadly Pennsylvania has one of the highest rates of trucking accidents in the US. Victims overloaded local hospitals and staff, having prepared for mass casualty plans, were able to handle the influx of victims, and provide the necessary treatment for their injuries.

Multiple patients had to be treated at Allegheny Health Network’s Forbes Hospital for neurosurgical issues, abdominal injuries, brain bleeds, contusions, and fractures from this Sunday’s accident, and staff from Forbes reported that their training for such an event had paid off.

Trucking accidents can cause serious injuries compared to standard vehicles, and almost 98% of the time a collision occurs between a large truck and a passenger vehicle the passenger sustains catastrophic injuries.

What or Who Exactly Caused The Tractor-Trailer Crash on The PA Turnpike?

While the bus from Z&D Tour Inc. has been identified as the first car in the crash, authorities have yet to determine what exactly caused the pile-up, and they say it can take weeks or months to determine.  While the weather can certainly be a factor, it’s still too early too determine whether it is a factor.

The bus that initially flipped was heading from Chinatown in New York City to Cincinnati.  

Finding The Right Attorney If You Or A Loved One Has Been In A Tractor Trailer Accident

With the severity of injuries that trucking accidents cause to passenger vehicles, it’s important that you make sure your medical costs immediately after the accident, and following the accident are covered.  

At McEldrew Young Purtell Merritt, we understand the complexities that are associated with these catastrophic accidents, and we provide comprehensive counsel to those who have suffered injuries due to trucking or multi-vehicle accidents.  Our team can take care of all types of serious and catastrophic injury claims, including brain or spinal cord injury, broken bones, burns, paralysis, and amputation or loss of limb and remove the stress from your family to help you focus on recovering from your injuries.

 McEldrew Young Purtell Merritt has won over $200,000,000 for our clients in various personal injury cases, and our team has worked directly with dozens of trucking cases involving commercial vehicles.

We take a vested interest in your case and you won’t pay a dime unless we win.  In many cases, we can advance the expenses necessary to help you find treatment and work with medical experts in order to properly diagnose your injuries, and how they’ll impact your life going forward.

Don’t hesitate to contact our team or call us directly at 1-800-590-4116 to speak directly to our team.

 

TEVA Agrees to Pay $54 Million to Settle McEldrew Young False Claims Act Qui Tam Whistleblower Lawsuit

0

Attorney Eric. L. Young announced today that Teva Pharmaceuticals USA, Inc., Teva Neuroscience, Inc., and Teva Sales and Marketing, Inc. (hereinafter collectively referred to as “TEVA”) have settled allegations in a qui tam complaint filed by McEldrew Young, Attorneys-at-Law, and co-counsel, Shepherd, Finkelman, Miller & Shah, LLP (“SFMS”), on behalf of two relators, Charles Arnstein and Hossam Senousy, both of whom previously worked as sales representatives for TEVA.

The allegations in the qui tam complaint focused on a scheme to induce physicians to write prescriptions for the drugs Copaxone and Azilect by paying them as “speakers” or “consultants,” when, in reality, many of the programs at issue were sham events. As a result of TEVA’s allegedly illegal payments, the physicians prescribed Copaxone, which treats relapsing-remitting multiple sclerosis, and Azilect, which treats symptoms of Parkinson’s disease, and influenced other prescribers to do the same.

According to the complaint, physicians who participated in the alleged sham speaker programs wrote prescriptions for the two drugs that were filled at pharmacies across the country.  After filling and dispensing the prescriptions, the pharmacies then submitted claims for reimbursement to various government-funded health care programs.  The pharmacies’ claims resulted in payments by the government for prescriptions that were allegedly induced through fraud, i.e., TEVA’s alleged illegal payments to physicians who wrote the prescriptions.  Since TEVA’s actions allegedly caused the submission of false claims to the government via the dispensing pharmacies, those actions constituted violations of the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-3733.

The complaint also alleged violations of the Anti-Kickback Statute (“AKS”), 42 U.S.C. § 1320a -7b, which, among other things, criminalizes “knowingly or willingly” offering or paying a person “remuneration,” in the form of  kickbacks, bribes, or rebates, to “induce” that person to “recommend” the purchase of a drug covered by a “Federal health care program.” 42 U.S.C. § 1320a-7b(b)(2).  Simply stated, the AKS prohibits a pharmaceutical manufacturer from offering, directly or indirectly, any remuneration to induce a physician to prescribe, or a Medicare patient to purchase, that manufacturer’s drugs.

The AKS was amended in 2010 to explicitly state that “a claim that includes items and services resulting from a violation of [the AKS] constitutes a false or fraudulent claim for purposes of [the FCA].”  42 U.S.C. § 1320a-7b(g). Thus, a claim submitted to a government-funded health care program for a prescription drug in violation of the AKS also constitutes a violation of the FCA.  The 2010 amendments also reduced the standard for “intent” under the AKS, such that “a person need not have actual knowledge of [the AKS] or specific intent to commit a violation of [the AKS].”  42 U.S.C. § 1320a-7b(h).

Background

McEldrew Young and SFMS filed the original qui tam complaint on behalf of the relators in May 2013.  The complaint alleged that, beginning in 2003, TEVA provided bogus honoraria or speaking fees to physicians for participation in numerous sham speaker programs in connection with the drugs Azilect and Copaxone.

On November 18, 2014, the United States, along with the various state and municipal governments that were also named as plaintiffs in the complaint, notified the Court of their decision to decline intervention in the case.  On March 12, 2015, the Court issued an Order unsealing the complaint while confirming that the various governments had declined to intervene in the action.

Despite the governments’ decision against intervention, McEldrew Young and SFMS were not deterred in prosecuting the case on behalf of their clients, as well as the federal, state and municipal governments that suffered damages as a result of TEVA’s allegedly illegal practices. “Although we were faced with an adversary of disproportionate size and considerably greater resources, we remained steadfast and aggressively prosecuted the case based on our belief in our clients and the correctness of our position,” said Eric Young, managing partner of McEldrew Young’s whistleblower practice. McEldrew Young and SFMS were assisted during litigation by co-counsel David J. Caputo and Joseph Trautwein of Youman & Caputo, LLC, and Heidi A. Wendel of Heidi Wendel Law.

Summary Judgment Motion

On February 27, 2019, Chief U.S. District Judge Colleen McMahon issued a Memorandum Decision and Order denying TEVA’s motion for summary judgment in its entirety.  In a detailed, seventy-page opinion, Judge McMahon rejected numerous arguments asserted by TEVA and ruled that all allegations of TEVA’s FCA violations would proceed to trial on the merits, which was scheduled to start on August 19, 2019.

In dismissing TEVA’s assertion that the AKS required evidence of a quid pro quo arrangement, the Court found that the relators’ complaint raised a genuine issue of material fact as to whether TEVA had violated the AKS.  The Court also ruled that there was a genuine issue of material fact regarding the efficacy of TEVA’s compliance program.  Although TEVA’s written compliance polices had “all of the right language,” the Court noted that the existence of those policies had no bearing on whether TEVA actually adhered to them.

Settlement of Complaint Allegations

“This settlement helps ensure that when a physician chooses a prescription drug for his or her patient, that choice will be motivated solely by the best interests of the patient and not tainted by any improper financial considerations,” said Eric Young.  Mr. Young added, “We were inspired by the level of our clients’ commitment to hold TEVA accountable for its alleged misconduct.  Today’s result is also a victory for American taxpayers who are the ultimate victims when unscrupulous individuals and companies defraud the government, oftentimes with impunity.”

As the managing partner of McEldrew Young’s whistleblower practice, Eric Young has a distinguished track record of success.  Mr. Young has recovered more than $2 billion dollars for the government on behalf of his whistleblower clients. McEldrew Young represents whistleblowers from across the country and abroad.  Many whistleblower cases are brought under the False Claims Act, which allows a private individual, known as a relator, to file a lawsuit on behalf of the United States government against an individual or company that has perpetrated a fraud against the government.  If a relator successfully recovers funds on behalf of the government, he or she may receive a reward of up to twenty-five percent (25%) of the civil monetary recovery if the government intervenes, and up to thirty percent (30%) if the government declines to intervene, such as in this case.

Case citation: United States ex rel. Arnstein and Senousy v. Teva Pharmaceuticals USA, Inc., No. 1:13-cv-03702-CM-OTW (S.D.N.Y.)

Retina Institute Settles with Government for $6.65 Million Over Allegations of False Claims Act Violations

0

On October 2, 2019, Retina Institute of California Medical Group (RIC), along with its former CEO and several physicians, agreed to pay $6.65 million to resolve allegations of False Claims Act violations. RIC is a medical partnership of ophthalmologists with multiple locations in California. The medical group was alleged to have defrauded government health care programs by billing for unnecessary exams, improperly waiving Medicare copayments, and other regulatory violations. Eric Young, managing partner of McEldrew Young Purtell Merritt’s whistleblower practice, worked on the case with attorneys from the law firm of Berger Montague.

The case, United States ex rel. Smith and Rogers v. Chang, No. 13-CV-3772-DMG (C.D. Cal.), was filed in May 2013. The complaint was unsealed in July 2016 after the government elected not to intervene in the case. The two Relators were both former employees of RIC who provided substantial documentation to support allegations in the complaint. Bobette Smith was the CEO of the practice group from June 2012 to January 2013, and Susan Rogers worked as the manager of the billing department over the same six month period. The allegations in the complaint were based on information discovered by the Relators during the course of their employment, as well as their personal observations and investigation into what they believed to be fraud against the federal government and the State of California.

Routine Waiver of Medicare Deductibles and Copayments Can Result in False Claims Act Violations

Medical service providers are required to collect copayments and deductibles from all Medicare beneficiaries, except in specific cases of financial hardship. Any incentive that generates improper referrals, particularly where a medical service provider offers free or discounted items or services to Medicare beneficiaries, or promotes overutilization of medical services can constitute the submission of false claims to the federal government. Thus, a service provider that routinely waives cost-sharing amounts for Medicare beneficiaries, but bills Medicare for the full allowable amount, can be face substantial penalties under the False Claims Act.

The Office of Inspector General for the Department of Health and Human Services set forth detailed guidance on this issue back in 1994:

“Routine waiver of deductibles and copayments by charge-based providers, practitioners or suppliers is unlawful because it results in (1) false claims, (2) violations of the anti-kickback statute, and (3) excessive utilization of items and services paid for by Medicare.

*  *  *  *

A provider, practitioner or supplier who routinely waives Medicare copayments or deductibles is misstating its actual charge. For example, if a supplier claims that its charge for a piece of equipment is $100, but routinely waives the copayment, the actual charge is $80. Medicare should be paying 80 percent of $80 (or $64), rather than 80 percent of $100 (or $80). As a result of the supplier’s misrepresentation, the Medicare program is paying $16 more than it should for this item.

In certain cases, a provider, practitioner or supplier who routinely waives Medicare copayments or deductibles also could be held liable under the Medicare and Medicaid anti-kickback statute . . . When providers, practitioners or suppliers forgive financial obligations for reasons other than genuine financial hardship of the particular patient, they may be unlawfully inducing that patient to purchase items or services from them.

One important exception to the prohibition against waiving copayments and deductibles is that providers, practitioners or suppliers may forgive the copayment in consideration of a particular patient’s financial hardship. This hardship exception, however, must not be used routinely; it should be used occasionally to address the special financial needs of a particular patient. Except in such special cases, a good faith effort to collect deductibles and copayments must be made. Otherwise, claims submitted to Medicare may violate the statutes discussed above and other provisions of the law.”

Retina Institute’s Alleged Systematic Waiver of Medicare Copayments and Deductibles

According the allegations in the complaint, the defendants attempted to induce referrals by routinely waiving Medicare copayments and deductibles for patients without properly investigating or documenting their financial status. In order to disguise the practice, the defendants sometimes allegedly had patients complete a financial hardship form; however, most deductible and copayment waivers were allegedly granted without the completed form. On those limited occasions when the form was used, patients often signed the forms, allegedly without providing any information regarding their financial status.

A ophthalmologist who maintained a general practice near one of RIC’s locations allegedly told an RIC ophthalmologist he expected that copays for Medicare patients to be waived, and that he would not refer patients if copays were not waived. The Relators had records which identified the patients who were referred to RIC by this particular ophthalmologist. The documents showed the receipts for those patients amounted to only 80% of the Medicare allowable amount. Without consideration of financial hardship or any documents to verify such designations, the copayments for these patients were allegedly waived as a matter of course.

Relators independently investigated several patients whose records indicated a financial hardship waiver. They discovered that some of those patients lived in expensive homes, including one residence valued in the millions of dollars.

The Relators each separately explained to Dr. Tom Chang, one of RIC’s physician/owners, that the policy and practice of routinely waiving Medicare copays and deductibles did not comply with Medicare regulations. Dr. Chang allegedly responded, on more than one occasion, that he would prefer to continue using the financial hardship waivers to ensure that RCI did not lose any referrals or patients. Dr. Chang allegedly said he would simply pay the fines if Medicare ever learned about the practice. In light of his former position as a Medicare compliance officer for the Department of Ophthalmology at the University of Southern California School of Medicine, Dr. Chang’s alleged comments and lack of concern are quite noteworthy.

Relator Smith made several attempts to advise RIC’s partners about changing the manner in which financial hardship cases were handled. She even made a presentation to the RIC senior management team and Executive Committee warning of the potential adverse consequences of continuing with the current practice. During the presentation, Dr. Chang allegedly repeated that he would pay the fines if Medicare ever discovered the way in which RCI handled the waivers.

The History and Purpose of the Anti-Kickback Statute

The Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b) (“AKS”), prohibits any person or entity from offering, making, soliciting, or accepting remuneration, in cash or in kind, directly or indirectly, to induce or reward any person for purchasing, ordering, or recommending or arranging for the purchasing or ordering of federally-funded medical goods or services. The statute was enacted in 1972 to address concerns that remuneration provided to those who influence health care decisions would result in services that were medically unnecessary, of poor quality, or harmful to a vulnerable patient population. Congress therefore passed the AKS to prohibit the payment of kickbacks in any form. The statute was amended in 1977, and again in 1987, to ensure that kickbacks could not be disguised as legitimate transactions to circumvent the law.

Retina Institute’s Alleged Violations of the Anti-Kickback Statute

A physician who refers a patient for medical services to an entity in which the physician has a financial interest violates the AKS unless the referral falls within the “safe harbor” regulations.

The physician defendants named in the complaint had financial ownership interests in an ambulatory surgery center known as the San Gabriel Surgery Center. Those physician defendants, as well as other RIC physicians, routinely referred RIC patients in need of surgery to the San Gabriel Surgery Center.  Such referrals would only be covered by the safe harbor regulations if the physician’s investment interest was fully disclosed to the patient.

According to the allegations in the complaint, RIC physicians did not advise their patients that RIC principals had an investment interest in the San Gabriel Surgery Center.  Patients were allegedly given a brochure instead that stated, “The ownership for San Gabriel Ambulatory Surgery Center may be obtained by contacting the center at (626) 300 – [XXXX].”

In order to ascertain whether accurate information was disseminated, Relator Smith asked the scheduling agent at RIC to call the phone number on the brochure to learn who owned the surgery center. The scheduling agent allegedly reported to Relator Smith that the individuals who responded to the call could not provide any information about the ownership of the center nor could they find anyone who could answer the question.

The Government Relies on the Assistance of Whistleblowers

This case illustrates the important role that whistleblowers play in identifying and reporting fraud.  Due to the enormity of claims processed under government-funded health care programs, it is impossible for every instance of fraud to be detected.  Employees are often in the best position to observe fraud and gather evidence to corroborate their observations. The government depends on such individuals to come forward and report what they reasonably believe to be fraud.

The False Claims Act permits a private individual to sue on behalf of the United States and share in any recovery. The government may intervene in the action, in which case a Relator may receive a reward of 15 percent to 25 percent of any monetary recovery.  In cases such as this one, where the government declines to intervene, the whistleblower may pursue the action on their own and can receive a reward of 25 percent to 30 percent of any monetary recovery.

If you have evidence of fraud being committed against the government by an employer, business competitor or contractor, call the experienced whistleblower attorneys McEldrew Young Purtell Merritt at (215) 367-5151 for a free, no-obligation consultation.

Call Now ButtonCall Now