Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

vs. ) Case No. 22-cv-651-SMY

)

GENERAL MEDICINE, P.C., et al., )

)

Defendants. )

MEMORANDUM AND ORDER

YANDLE, Chief District Judge:

The United States of America brings this action under the False Claims Act, 31 U.S.C. §

3729, et seq. (“FCA”), and common law theories of fraud, payment by mistake, and unjust

enrichment against General Medicine, P.C.; General Medicine of Illinois Physicians, P.C.; General

Medicine of North Carolina, P.C.; Advanced Medical Haggerty Partners, P.A.; Borough Medical

Partners, P.A.; Centro Medical Partners, P.A; City Medical Partners, P.A.; Integrated Medical

Partners, P.A.; Metro Medical Haggerty Partners, P.A.; Metropolis Medical Partners, P.A.;

National Medical Partners, P.A.; New Castle Haggerty Medical Partners, P.A.; Regional Medical

Partners, P.A.; Sigma Haggerty Medical, P.A.; Silverton Medical Partners, P.A.; Statewide Medical

Partners, P.A.; Vicinity Medical Partners, P.A.; Westco Haggerty Medical Partners, P.A.; and

Thomas M. Prose (collectively, “GM”). The Government alleges GM engaged in a wide-ranging

health care fraud involving billing Medicare for thousands of false claims to the Medicare Program

for visits with residents of nursing and assisted living facilities in multiple states.

Now before the Court are GM’s motion to exclude (Doc. 148) and the Government’s

motions to exclude (Docs. 149, 150, and 151). The motions are fully briefed (Docs. 165, 166, 167,

and 169). For the following reasons, GM’s motion is DENIED and the Government’s motions

are GRANTED.

Legal Standard

Federal Rule of Evidence 702 provides for the admission of expert testimony that assists

the trier of fact to understand the evidence or to determine a fact in issue. Fed.R.Evid. 702. District

courts have a “gatekeeping” obligation to ensure that expert testimony is both relevant and reliable.

Fed. R. Evid. 702; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (2003); Lees v.

Carthage College, 714 F.3d 516, 521 (7th Cir. 2013). Essentially, the Court must answer three

questions before admitting expert testimony: (1) is the expert qualified; (2) is the expert's

methodology reliable; and (3) will the expert's testimony assist the trier of fact in understanding

the evidence or determining a fact in issue. Myers v. Illinois Cent. R. Co., 629 F.3d 639, 644 (7th

Cir. 2010). The party offering the expert testimony bears the burden of proof as to relevance and

reliability. Brown v. Burlington N. Santa Fe Ry. Co., 765 F.3d 765, 772 (7th Cir. 2014) (citing

Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009)).

“A Daubert inquiry is not designed to have the district judge take the place of the jury to

decide ultimate issues of credibility and accuracy.” Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th

Cir. 2012). “If the proposed expert testimony meets the Daubert threshold of relevance and

reliability, the accuracy of the actual evidence is to be tested before the jury with the familiar tools

of “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the

burden of proof.”” Id. (quoting Daubert, 509 U.S. at 596).

Discussion

GM’s Motion to Exclude Michael Petron (Doc. 148)

The Government retained Michael Petron, CPA, CFE to provide opinion testimony relating

to the issue of damages. Petron is a certified public accountant and a certified fraud examiner. He

developed and implemented a random sample to estimate the amount of overpayment associated

with evaluation and management visits at nursing homes and assisted living facilities that were

allegedly not performed, not medically necessary, or lacked the proper documentation to satisfy

the requirements for the services performed.

Petron details his methodology and findings in his report. He used Medicare claims data

provided by the Government reflecting Medicare claims submitted by GM January 1, 2015 through

March 31, 2021. To arrive at a population of medical encounters from which to create his sample,

Petron limited the claims data by: (1) Procedures for [Medicare] CPT [billing] codes 99309, 99310,

and 99337 where the associated paid amount was greater than zero; (2) Dates of service from April

1, 2016, to March 31, 2021; (3) removing Encounters where any of the three CPT codes 99309,

99310 or 99337 appeared more than once for a beneficiary and date of service combination; and

(4) removing Encounters were total paid was less than $50. These limitations resulted in a sample

frame population of 347,486 encounters with a total amount paid by Medicare of $30,216,594.

Petron then divided the encounters from this sample frame into three subgroups, or strata, based

on each of the three relevant CPT codes. Petron notes this stratified random sampling “is a well-

researched and established sample design methodology.”

Petron used a software program, Rat-Stats, to extrapolate an overpayment estimate from

the sample. Rat-Stats was developed by the Office of Inspector General at the Department of

Health and Human Services, (“HHS-OIG”), and Petron commonly uses the program to assist in

sample size calculations, sample selections, and estimation. Utilizing Rat-Stats, Petron performed

two extrapolations to the sample frame encounter population that showed Medicare overpayment

estimates.

GM does not argue that Petron is unqualified or that his methodology is not sound. Petron

has the requisite background and experience to render his statistical opinions and applied well-

known methodology to his sampling and extrapolation findings. His report includes a detailed

methodology section in which he outlines and explains his statistical analysis and conclusions.

GM contends, however, that the Government does not have sufficient proof the claims

presented are false claims, and therefore any extrapolation analysis is invalid. GM does not raise

a true Daubert challenge. Rather, it challenges the sufficiency of the Government’s evidence to

prove the claims asserted in this case. Petron, as a damages expert, provides an opinion as to an

overpayment of money by Medicare. Whether the overpayment is an overpayment of false claims

under the FCA is question for the jury. The reliability of data and assumptions used in applying a

methodology is tested by the adversarial process and determined by the jury; the court's role is

generally limited to assessing the reliability of the methodology – the framework – of the expert's

analysis.” See Manpower, Inc. v. Insurance Co. of Pennsylvania, 732 F.3d 796, 808 (7th Cir.

2013).

GM’s disagreements with Petron’s ultimate conclusions are not a justifiable basis to

exclude his opinions. Its arguments go to the weight of Petron’s testimony, not to its admissibility.

See Daubert, 509 U.S. at 596. The “key to the gate is not the ultimate correctness of the expert's

conclusions. Instead, it is the soundness and care with which the expert arrived at [his] opinion;

the inquiry must focus ... solely on principles and methodology, not on the conclusions they

generate.” Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013) (citing Daubert,

509 U.S. at 595). “So long as the principles and methodology reflect reliable scientific practice,

“[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the

burden of proof are the traditional and appropriate means of attacking shaky but admissible

evidence.” Id. GM may certainly attempt to discredit Petron on cross-examination or in their own

presentation of the evidence. Therefore, GM’s motion is DENIED.

Government’s Motion to Exclude Jonathan Evans, M.D. (Doc. 149)

GM retained Jonathan Evans, M.D., M.P.H. to rebut the opinions offered by Government

experts Charles Crecelius, M.D. and Richard Baer, M.D. Dr. Evans is board certified in Internal,

Geriatric, and Hospitive and Palliative Medicine. He has worked with senior health care services

organizations, focusing on the quality of care for elderly patients in skilled nursing facilities for

several decades. Dr. Evans reviewed the reports of Dr. Crecelius and Dr. Baer, medical records,

and relevant case material. He provided opinions on whether various types of services performed

by GM and specific patient visits billed by GM were medically necessary.

The Government moves to exclude Dr. Evans pursuant to Rule 37(c) because of his failure

to disclose a complete list of cases in which he has testified in the last four years. Specifically, in

Dr. Evan’s report disclosed on March 27, 2025, he stated to the best of his knowledge that he was

not involved in any depositions over the past four years. Dr. Evans listed trial testimony and an

ALJ hearing. Dr. Evans further noted that “there are a few others prior to these but the information

was lost when my former computer broke down.”

During his deposition on May 19, 2025, Dr. Evans admitted that he had been deposed

multiple times in the last four years. When asked why this information was not disclosed in the

report, he explained he had technical issues after exceeding his computer’s storage capacity, he

was unable to recover the other cases in which he had been deposed, and he did not keep a running

list. Dr. Evans indicated he could attempt to obtain technical assistance to recover the materials

on his computer and could contact most of the attorneys he had worked with. Dr. Evans advised

that if there were any other cases, they would have been malpractice cases involving nursing

homes. He further testified that he has never previously worked as an expert on a case involving

health care fraud nor has he testified in a case involving the False Claims Act.

The Government requested Dr. Evans to provide the complete list of cases in which he had

been deposed pursuant to Federal Rule of Civil Procedure 26(a), and he agreed to do so. The

Government now moves to exclude Dr. Evans testimony because, to date, the Government has not

received any additional disclosures from GM regarding the other matters for which Dr. Evans has

testified in within the last four years.

Rule 26 requires an expert witness to prepare a written report. Fed.R.Civ.P. 26(a)(2)(B).

Among other things, the written report must contain a list of all cases in which the witness has

testified as an expert, at trial or by deposition, during the previous four years. Fed.R.Civ.P.

26(a)(2)(B)(v). Rule 26(e)(2) imposes on parties a “duty to supplement” their initial disclosures.

Fed.R.Civ.P. 26(e). If a party fails to provide information or identify a witness as required by Rule

26(a) or (e) the court may impose appropriate sanctions. Fed.R.Civ.P. 37(c)(1). Pursuant to Rule

37(c)(1):

If a party fails to provide information ... as required by Rule 26(a) or (e), the party

is not allowed to use that information or witness to supply evidence on a motion, at

a hearing, or at a trial, unless the failure was substantially justified or is harmless.

In addition to or instead of this sanction, the court, on motion and after giving an

opportunity to be heard:

(A) may order payment of the reasonable expenses, including attorney's fees,

caused by the failure;

(B) may inform the jury of the party's failure, and

(C) may impose other appropriate sanctions, including any of the orders listed in

Rule 37(b)(2)(A)(i)-(vi).

Fed. R. Civ. P. 37. Here, because GM has failed to supplement its disclosures to provide the

required information, it must demonstrate that the failure was substantially justified or that it was

harmless. David v. Caterpillar, 324 F.3d 851, 857 (7th Cir. 2003).

GM asserts there was no intent to withhold information from the Government. And in an

apparent attempt to justify its failure to disclose the required information, GM notes the

Government did not communicate with GM’s counsel to resolve the issue prior to Dr. Evans’s

deposition and did not file a motion to compel.

First, it is unclear why the Government’s counsel would attempt to resolve the matter prior

to Dr. Evans’ deposition when his testimony is what alerted Counsel that certain information had

not been disclosed. Moreover, GM’s attempt to shift the blame to the Government is unavailing.

GM had an affirmative duty to comply fully with Rule 26’s disclosure requirements. And despite

becoming aware that Dr. Evans’s disclosures were not complete at least by May 2025, to date, GM

has not supplemented them. The Court finds its failure to do so unjustifiable.

GM also asserts the Government has not been harmed by the failure of Dr. Evans to

disclose his previous testimony and depositions as required. The intent behind Rule 26 is to allow

parties to prepare for trial and to avoid unnecessary surprises throughout the preparation. Adequate

access to other cases in which an expert has testified allows the opposing party to obtain prior

testimony and potentially identify inconsistent positions taken in previous cases for use in cross-

examination. See Hess v. White Castle Sys. Inc., No. 19-CV-274-RJD, 2020 WL 1529533, at *2

(S.D. Ill. Mar. 31, 2020) (excluding expert for failing to provide a list of cases); Wallace v.

Hounshel, No. 1:06-cv-01560-RLY-TAB, 2008 WL 2184907, *3 (S.D. Ind. May 22, 2008) (same).

The failure to disclose information regarding those cases and the expert’s prior testimony clearly

prejudices the opposing party’s opportunity to conduct relevant additional discovery and prepare

for trial.

The Court recognizes that exclusion is an extreme and harsh remedy, and there is a general

preference to determine a case on the merits. Musser v. Gentiva Health Servs., 356 F.3d 751, 759

(7th Cir. 2004). And the Seventh Circuit has warned that an imposition of sanctions “must be

proportionate to the circumstances surrounding the failure to comply with discovery.” Langley v.

Union Elec. Co., 107 F.3d 510, 515 (7th Cir. 1997) (quoting Crown Life Ins. Co. v. Craig, 995

F.2d 1376, 1382 (7th Cir. 1993)). That said, in this case, discovery closed long ago, and dispositive

motions have been filed. Under these circumstances, exclusion of Dr. Evans as an expert witness

is warranted and the appropriate remedy. Accordingly, the Government’s motion to exclude Dr.

Evans is GRANTED.

Government’s Motion to Partially Exclude Richelle Marting (Doc. 150)

GM retained Richelle Marting, J.D. to review the Government’s expert Dr. Crecelius’s

opinions and formulate an opinion as to whether the medical record documentation produced in

discovery was sufficient to arrive at a determination of whether services are reasonable and

necessary. Marting is a healthcare attorney and a certified professional coder. She holds a

Bachelor of Science degree in Health Information Management and a master’s degree in health

services administration.

Marting authored a preliminary report containing opinions regarding medical necessity,

physicians’ services in long-term care, and the completeness of medical record and a report

containing opinions on the coding of GM’s claims billed to Medicare. The Government moves to

limit Marting’s testimony to bar her from offering opinions reflected in her preliminary report

regarding: (1) interpretations of the term “medical necessity;” (2) how to review medical records

to determine if a service was medically necessary, including the documents necessary to do so,

and her critiques of Dr. Crecelius’s medical necessity review; (3) whether the records reviewed by

Dr. Crecelius were “complete;” and (4) her overview of physicians’ services in long-term care.

GM does not object to the exclusion of Marting’s preliminary report. Accordingly, the

Government’s motion is GRANTED and Marting will be prohibited from testifying to the

opinions expressed in her preliminary report.

Government’s Motion to Partially Exclude Bo Martin (Doc. 151)

Bo Martin, Ph.D. is a statistician specializing in the health care industry. His expertise

includes statistically valid methods for random sampling and extrapolation. Martin was retained

to review the Petron report to (1) evaluate Petron’s statistical methods for sampling from a

population of claims and the relying on the findings from that sample as inputs to estimate a total

amount for the population and (2) to assess whether Petron considers the findings of claims having

overpayments in the sample to be false claims.

The Government moves to exclude Martin’s second opinion: “My second opinion is that,

in my reading of the Petron Report, I see no indication that he has an opinion that the sampled

claims found to have overpayments are false claims. Moreover, I find no indication that other

experts for the Government have determined any claims to be false or fraudulent.” In reaching

this opinion, Martin searched for the term “false” in the PDFs of Dr. Baer and Dr. Crecelius’s

expert reports. In his deposition, Martin acknowledged that a person does not need experience or

training as a statistician to search a PDF document for the term “false.”

An expert must testify to something more than what is obvious to the layperson to be of

any assistance to the jury. See United States v. Dewitt, 943 F.3d 1092, 1096 (7th Cir. 2019).

Martin’s opinion that the Government’s experts did not determine any of GM’s claims to be “false

claims” is not an opinion that assists the jury. He concedes someone can simply read the reports

to determine whether the documents contain the word “false.” And by their own testimony, the

Government’s experts acknowledge they are not opining as to whether GM violated the False

Claims Act. Rather, Dr. Crecelius was retained to provide opinions as to the medical necessity of

GM’s practices and patient visits. While Dr. Baer was retained as an expert on Medicare coverage

and policy. Accordingly, the Government’s motion is GRANTED. The Court excludes Martin’s

second opinion.

IT IS SO ORDERED.

DATED: February 11, 2026

STACI M. YANDLE

Chief United States District Judge

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