In United States ex. rel. Antoon v. Cleveland Clinic Found., No. 13-4348, the Sixth Circuit affirmed the dismissal of a lawsuit against the Cleveland Clinic and Intuitive Surgical.   Plaintiffs alleged violations of the False Claims Act (FCA) through misrepresentations about the qualifications of the doctor performing the surgery and about the success rate for robotic surgery.  The district court dismissed the lawsuit on multiple grounds, but the opinion by Judge Lawson (sitting by designation) only discussed the FCA’s public disclosure bar, which goes to the jurisdiction of the court.   

The Sixth Circuit held that the plaintiffs had made public disclosures of the alleged fraud before filing the federal lawsuit by filing state court complaints and instigating a CMS investigation.  Because of this, the district court did not have jurisdiction unless the plaintiffs could qualify as an “original source” of the allegations, which requires “direct and independent knowledge of the information on which the allegations are based.”  31 U.S.C. § 3730(e)(4)(B).  The court refused to read the “direct and independent” language as requiring first-hand knowledge of the facts behind the allegations,  but found that plaintiffs did not provide anything but speculation.  It held that the plaintiffs’ only contribution to the allegations was the suspicion that their doctor was lying.  That was not enough of a contribution to qualify as an original source under the FCA. 

Judge Gibbons filed a short concurrence arguing that the court should explicitly require first-hand knowledge to qualify as an original source.  While this would otherwise seem like fertile ground for further cases or a circuit split, the concurrence notes that this issue only applies to cases involving pre-2010 conduct because Congress changed the definition of “original source” in 2010. 

 Colter Paulson and Tom Zeno from our Cincinnati office represented Intuitive Surgical at the trial court and on appeal.