“Twisted” Path to New Trial for Dr. Paulus

A 2018 Sixth Circuit panel upheld a jury verdict convicting Dr. Richard Paulus of submitting fraudulent medical claims. That same panel, with 2020 hindsight(!), reversed that conviction. It held that the trial court’s order unconstitutionally blocked exculpatory evidence.

Jury Verdict Set Aside

The “twisted” history of the verdict began when a jury deadlocked twice and needed an Allen charge in order to convict Dr. Paulus of billing angiograms that were unnecessary.  The trial court rejected the jury’s verdict and set aside the conviction: a doctor’s decision about the degree of blockage of an artery was a matter of subjective medical opinion that “could be neither be false nor fraudulent.”  The government disagreed and appealed.  (Double jeopardy does not prevent appeal of a judgment of acquittal after verdict.)

Verdict Reinstated

In the first appeal, the panel (McKeague, Batchelder, Griffin) recognized the difficulty of distinguishing a fraudulent medical opinion from mere expert disagreement.  Relying on the U.S. v. Persaud, however, the panel reaffirmed that fraud occurs when a doctor deliberately inflates artery blockage in order to bill for unnecessary procedures.  The panel emphasized that “it is up to the jury – not the court – to decide whether the government’s proof is worthy of belief.”  Deferring to the jury, the panel reversed, reinstated the conviction, and remanded the case for sentencing.

Claim of Brady Violation

Before sentencing, Dr. Paulus learned that his hospital had audited his angiograms long before trial. More important: the government knew about the audit but did not disclose it.  That audit revealed a 7% rate of misdiagnosis whereas government experts testified during trial to a nearly 50% error rate.  Dr. Paulus moved for a new trial, claiming that the government withheld exculpatory evidence in violation of Brady v. Maryland. Continue Reading

Ben Beaton on the Learned Sixth

Are you a Sixth Circuit (or SCOTUS) aficionado who has been working from home? Maybe all of the social distancing that you’ve appropriately been practicing has you itching to engage in discussion with fellow court watchers? If that description sounds on target for you, let me suggest season 4, episode 17 of the SCOTUS101 podcast—the most recent episode at the moment. The pod features an extended interview with our own Ben Beaton, beginning with discussion of this very blog and ending with Ben trying his hand at some pretty intense Sixth Circuit trivia. There’s plenty of good stuff in between, too, from Judge Thapar and Justice Ginsburg to Kentucky basketball and bourbon. Enjoy.

Coronavirus Update: 6th Circuit Conference Postponed to 2021

Last night Chief Judge Cole announced a one-year delay in the Sixth Circuit Judicial Conference, which had been scheduled for June 2020. Rumor had it that our own Ben Glassman was to participate, so now fans of Ben and Simone Biles alike will all have to set their sights to 2021.

Full statement below. Stay safe, stay sane, everyone.

**Notice Regarding the 2020 Sixth Circuit Judicial Conference**

Thursday, March 26, 2020

In light of the ongoing national public health crisis, and in consultation with the Sixth Circuit Judicial Conference Planning Committee, I have decided to postpone the Sixth Circuit Judicial Conference from June 2020 to June 2021. While unfortunate, the health and safety of our attendees must remain our highest priority, and the duration of this outbreak is uncertain.

On behalf of the judges of the United States Courts in the Sixth Circuit, thank you for your continued patience as we work through unprecedented territory. We look forward to the program in 2021 and hope that your schedule permits your attendance. Updates about the 2021 Sixth Circuit Judicial Conference will be posted here as they become available.

With sincere wishes that you and your families will be safe and remain in good health,

R. Guy Cole, Jr.
Chief Judge

Telephonic oral arguments: tips for advocates

As federal courthouses limit their in-person operations because of COVID-19, telephonic oral arguments will become more common. Already the Second Circuit has announced that all of its oral arguments will proceed by teleconference until further notice. Similarly, the Seventh Circuit will hear oral argument by phone through April. For scheduled oral arguments in the D.C. Circuit, each panel will decide whether to proceed by phone, postpone the argument, or submit the case on the briefs. So it’s worth taking a moment to think through how to make the best of a telephonic oral argument.

I’ve argued in the neighborhood of half a dozen cases telephonically, for both appellants and appellees, and in my experience, telephonic oral arguments are certainly a different breed. (The Sixth Circuit used to schedule a telephonic oral argument calendar routinely, in the days when the court had a significant number of vacancies and a daunting backlog of cases.) Oralists and judges alike are deprived of the visual cues that can make argument so efficient and effective—body language and facial expressions that indicate confusion or disagreement or interest. Just asking and answering questions become more challenging.

These challenges make the strategy behind oral argument preparation all the more important.

Continue Reading

Sixth Circuit Issues ADA Work-from-Home Decision, Right Before We All Start Working from Home

As the world hunkers down and works from home during this COVID-19 crisis, a WFH accommodation decision from the Sixth Circuit feels timely. Though the decision predates social distancing and office closures, its relevance to the employer-employee relationship may outlast the coronavirus. In Tchankpa v. Ascena Retail Group, Inc., the Sixth Circuit affirmed the principle that employers may require medical documentation to support work-from-home accommodation requests before granting those requests under the Americans with Disabilities Act and that an employee must show an “objectively intolerable workplace” to prove he was constructively discharged.

Continue Reading

UPDATED Coronavirus Update: Potter Stewart Courthouse Closed 2 Weeks

Cincinnati’s federal courthouse–home to the Sixth Circuit–is closed for two weeks beginning today, as reported by the Cincinnati Enquirer.

Though the federal courts basically continue to function (to the consternation of my wife, given the number of recent filings made with kiddos underfoot here at the SPB Ky office), the Potter Stewart courthouse and many others will close to the public.

The drop box and of course ECF filings remain available. And the Sixth Circuit has made available a temporary email address for PDF electronic filings by non-prisoner pro se litigants: CA06_Temporary_Pro_Se_Efiling@ca6.uscourts.gov.

Stay safe and stay home, everyone!

UPDATED Coronavirus Update: Fed Courts Status Page

The Administrative Office of the Courts now maintains a single page with links to courthouse and filing notices for all federal courts. You can find the page and its updates here. No new news from the Sixth Circuit since the March 16 notice we published last week.

Many thanks for the hard work of keeping our courts open go to AO Director and friend-of-the-blog James Duff (and his staff). The former biglaw partner, Supreme Court aide, impeachment counsel, and UK basketball walk-on has had one of the most interesting careers any lawyer could imagine. Jim’s experience should serve him well during these most unusual times.

*Updated* Coronavirus Update: A Moving Target

This post reflects the latest news available to Ben Glassman, Ben Beaton, and others at Squire Patton Boggs. We expect the blog and the court’s website to continue updating litigants as the situation develops.

Response to COVID-19 among the federal courts in the Sixth Circuit continues to evolve. Since yesterday’s post, the Middle and Eastern Districts of Tennessee have joined the majority of district courts in the circuit by entering general orders postponing trials and including ends-of-justice findings.

In the Middle District, the order postpones trials until the end of this month, while in the Eastern District the postponement lasts until April 24. Although not substantive changes, the website of the Western District of Michigan now specifically advises that COVID-19-related postponements are being handled judge by judge and case by case, and the notice posted on the website for the Northern District of Ohio advises that there are no current changes to court operations.

Coronavirus Update: The latest from Sixth Circuit courthouses

This post reflects the latest news available to Ben Glassman and others at Squire Patton Boggs. We expect the blog and the court’s website to continue updating litigants as the situation develops.

The Sixth Circuit and several district courts within it are implementing changes to court proceedings in light of COVID-19. At the circuit level, the court was scheduled to hear oral arguments this week in Cincinnati, but these have been canceled for now. (Just one, consolidated constitutional challenges to the creation and administration of Michigan’s Independent Citizens Redistricting Commission for State Legislative and Congressional Districts, has been converted to a telephone argument.) The next scheduled oral arguments are not until the week of April 27. Although we understand that much of the court’s staff is teleworking, that should be a transparent process, and the Clerk’s Office remains physically open and functioning with a skeleton crew.

District courts within the circuit are not uniform. As of this moment, both the Eastern District of Michigan and the Western District of Tennessee have entered general orders postponing in-court matters after the initial stages of a criminal case. The Southern District of Ohio and the Eastern and Western Districts of Kentucky have entered orders postponing jury trials by one month. No such orders currently appear to have been entered for the four remaining districts—the Northern District of Ohio, Western District of Michigan, and the Eastern and Middle Districts of Tennessee. The websites of the two Tennessee districts specifically confirm that there are no such orders, though the Middle District of Tennessee is not conducting group naturalizations at this time. District courts that have entered general postponement orders have included ends-of-justice findings under 18 U.S.C. § 3161(h)(7)(A) in order to exclude the additional time from the Speedy Trial Act.

A busy Sixth Circuit in “an Alice in Wonderland world”

Thanks as always to Squire Patton Boggs Sixth Circuit Fellow Kirk Mattingly, EIC of the UofL Law Review, for his help with this and other content.

During a wild fortnight leading up to today’s announcements that courts would close to the public or shut down entire civil dockets, the Sixth Circuit has stayed busy. Whether you’re catching up on the court or just looking for reading material during an extended spring break, here are a few highlights:

  • The en banc court sat Wednesday to consider the constitutionality of Ohio’s restrictions on doctors who knowingly perform abortions motivated by a prenatal Down’s Syndrome diagnoses. Ohio SG Ben Flowers, DOJ Civil Rights Division attorney Alexander Maugeri, and Jessie Hill of ACLU-Ohio argued.
  • The special master spearheading the so-called “negotiation class” in the opioid MDL passed away. Judge Polster announced his replacement: Professor William Rubenstein of Harvard Law School, a civil procedure expert who helped guide the NFL concussion settlement. Rubenestein replaces the late Francis McGovern of Duke Law. RIP.
  • The court heard still another attempt—in Lebamoff v. Snyder—to chip away at state “three-tier” laws governing the manufacture, distribution, and sale of alcohol under the 21st Amendment. The presiding judge was Judge Sutton, the noted federalist who dissented in the Sixth Circuit’s last major Dormant Commerce decision, later affirmed by the Supreme Court, to three-tier laws in Tennessee Wine v. Byrd.
  • The takedown of “Rooferees” owner and NCAA referee John Higgins by UK basketball fans will not result in liability for the ubiquitous KentuckySportsRadio.com, which (according to plaintiffs) encouraged the online and telephonic harassment of the ref’s Omaha roofing business. This appeal in Higgins v. KSR, near and dear to many in Big Blue Nation after an appalling last-second Elite Eight loss to UNC, was argued—ironically—at the University of Louisville.
  • Judges Thapar and Kethledge called for the reconsideration of the Supreme Court’s “de minimis cost” defense, from the 1977 decision in TWA v. Hardison, for employers defending religious-accommodation claims under Title VII. Equating the statutory language of “undue hardship” with the judicial gloss of de minimis cost, the concurrence suggested, is a tall task, perhaps best explained by the Hardison majority having

“stumbled through the looking glass and into ‘an Alice-in-Wonderland world where words have no meaning[.]’ Welsh v. United States, 398 U.S. 333, 354 (1970) (Harlan, J., concurring in the judgment).”

Stay safe, stay sane, everyone.

“I knew who I was this morning, but I’ve changed a few times since then.” – Alice

 

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