This page is the second part of an interview (click here for part 1) between Tony Munter and Gary Farmer, a False Claims Act attorney in Florida. In this section of the interview, Tony and Gary discuss the pleading requirement (Rule 9(b) in the Federal Rules of Civil Procedure) and how it differs between federal and Florida false claims cases. With that in mind Tony Munter is not licensed in the jurisdiction of Florida.
Gary: The other real problem we’re having in the federal system, with all due respect to the four circuit panels including the 11th circuit who decided it this way, I just think its frankly ludicrous to comply with a rule of pleading, in this case Rule 9(b). The rules state that fraud must be pled with particularity. Half of our Circuit Courts of Appeal have interpreted that requirement as requiring a Relator in order to satisfy Rule 9B to come forward with an actual claim paid by the government. When you’re talking about off label marketing or durable medical equipment or other types of false claims involving healthcare, you’ve got incredibly strong law on the privacy rights of those patients. So to satisfy a rule of pleading these courts are saying we must violate a substantive law and have a patient’s actual claim, false claim that was submitted and paid by the government in order to satisfy Rule 9(b).