Renfroe files rebuttal in qui tam case – should have filed a flight plan!

Pacer offered Renefroe’s Rebuttal to the Response in opposition to summary judgment as the Friday night special – and, starting with a tailspin of an introduction, it takes off in so many directions they should have filed a flight plan,

After reading it over a couple of times and doing some background research, I sat it aside until tonight to see if it would fly when I read it again.  Didn’t happen.  So, we’re going to walk but start with the five-count amended Complaint filed in May 2007 and move forward from there to the Rebuttal.

This past May, Renfroe filed a Motion for Summary Judgment on the first four counts.

…the Relators’ claims fall within the category of claims prohibited under 31 U.S.C. § 3730(e)(4) this Court lacks jurisdiction over Counts I through IV of the First Amended Complaint, and these claims must be dismissed with prejudice.

What is the category?

No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.

…“original source” means an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.

The qui tam legal team notes this about the Renfroe’s motion in their previously referenced Response:

While…fashioned as a summary judgment motion, it asserts the same arguments made in State Farm’s Memorandum in Support of Its Motion to Dismiss for Lack of Jurisdiction.

Renfroe’s Rebuttal, however, incorrectly adopts State Farm’s rebuttal to the second set of dispositive motions – go figure.

Renfroe adopts the arguments made in support of dismissal under Section 3730(e)(4) in “State Farm Fire and Casualty Company’s Rebuttal in Support of its Motion to Dismiss the Amended Complaint Under Federal Rules of Civil Procedure 12(b)(6) and 9(b).

These conflicting citations provide a glimpse of the tailspin I felt reading the Rebuttal.  The qui tam attorneys, by the way, cite the correct reference.  Importantly, they also correctly cite and comply with the request Judge Senter made in the Scheduling Order when they limit their Response to the several additional points that specifically address Renfroe’s arguments and incorporate by reference Relators’ Response to StateFarm’s Motion in its entirety.

“[w]here it is practical and expeditious to do so, Relators and Movants may consolidate their responses and memoranda into as few documents as possible, and to this end, any responses, rebuttals, or memoranda may incorporate other responses, rebuttals, or memoranda by reference.

Renfroe would have done well to follow their example – particularly since the Rigsbys’ indicated in their earlier Response to the second set of dispotive motions that they were dropping all but Count III, conpiracy to file false claims, against Renfroe.

I rather suspect Renfroe’s attorneys were too busy over anticipating the impact of the little chart they created comparing the qui tam claim to the Cox/Comer class action, as suggested by the peculiarly worded footnote in that section.

Renfroe is addressing only the public disclosures relevant to the Count III allegation that remains against Renfroe, but reiterates its arguments that Dr. Hunter’s testimony (Docket No. 91-9) also triggers the application of the public disclosure bar as to Counts I, II, III and IV of the First Amended Complaint. At the very least, the general allegation of a conspiracy between adjusters and the insurance companies is implicit in Dr. Hunter’s testimony, but as is demonstrated below, the Cox/Comer Complaint addresses this point directly.

However, the Rigsby’s qui tam complaint did more than add the “nugets” of information Renfroe claims. The Rebuttal is simply too all over the map to explain; but what you’ll see when you read it is Renfroe tossing a “nuggest” here and there as if each is instead the gold standard.  After re-reading the Rigsbys’ response along with the Rebuttal -which I hope you will do as well – IMO the Renfroe’s rebuttal needed to stay in the hanger – it just didn’t fly.