No spine nation, it's not the Godfather of Soul (may he rest in peace), neither is it that other Godfather, you know the one that ran a pizza company who basically was taken to the woodshed by his wife Gloria last weekend, neither is it memories of Adolf Hitler who liked to scream, "Nein, Nein, Nein." What Nein X Nine = Nein amounts to is the answer that the Supreme Court issued to Blackstone Medical and Orthofix with regard to their Petition for a Writ of Certiorari. The Cert Petition is a legal request to the SCOTUS whereby a defendant, in this case Blackstone and Orthofix, asks the Court to review a decision by the a lower court, in this case, Blackstone Medical Incorporated v. U.S. ex rel. Hutcheson. But before we go any further let's understand the issue at hand.
The issue in Blackstone Medical was whether a device company THAT PAID ILLEGAL KICKBACKS to prescribing physicians (we know who you are) could be liable under the False Claims Act for causing false claims to be submitted to MEDICARE. The basis for the law is that anyone submitting claims for federal monies cannot submit false or fraudulent claims. If so, the Federalis can recover large fines for each submission as well as treble damages. Treble damages is a term that indicates that a Statute permits a court to triple the amount of the actual/compensatory damages (are you listening boys). In addition to the treble damages, the whistleblower shares in the bounty. Blackstone, Orthofix and its cadre of attorneys were hoping to argue that another law for which the filer had certified compliance was being violated.
Considering that this Writ of Cert came in front of the Robert's Court and was denied is BIG. It seems that Blackstone's/Orthofix attorneys were hoping for a "Hail Mary"considering that the Roberts Court has decided five FCA cases in five terms. In addition, for those that applauded the effort of the Writ and the law firm for throwing the kitchen sink at the plaintiff, let us remember a few facts.
It is estimated that the SCOTUS usually hears 40-50 cases per term
Legally, 99% of the time, a Writ like the one filed by Blackstone/Orthofix is denied
Why? Because the SCOTUS adjudicates issues that affect and effect Constitutional Law or disputes between Circuit Courts of Appeals with the intent to create uniformity in the law. So the question is asked, will this establish a new precedent, whereby any company that knowingly and willfully is involved in kickbacks (PODS?) think twice about its business model? Will the BOYZ and Orthofix be ready to ante up more than that $50 million in escrow that has been reserved for this rainy day? Or, will their arrogance and money let them believe that they could crush the whistleblower acting like the two thousand pound gorilla that they like to think they are? The end result is that not even Darth Vader will right the ship. So like TSB likes to say, "it's game time BOYZ." This is an opportunity for the DOJ to set an example once and for all. Stop acting like the paper lion that you are perceived to be by those of us in the industry that attempt to do the right thing. Bitch slap the parties involved with the MAXIMUM, don't negotiate. Let them come to you asking for forgiveness and show them no mercy. Considering that they thumbed their noses at everyone, pay back can be a bitch. So you know what Jackson Browne use to sing;
I'm sitting down by the highway, down by the highway side
Everybody's going somewhere, riding just as fast as they can ride
I guess they have a lot to do, before they can rest assured
Their lives are justified, pray to God for me baby, He can let me slide
Cause I've been up and down this highway, far as my eyes can see
No matter how fast I run, I can never seem to get away from me
No matter where I am, I can't help feeling I'm just a day away from where I want to be
Now I'm running home baby, like a river to the see.
Seems like Blackstone and Orthofix have them Bright Baby Blues. Who knows, maybe OTW will write something in defense of the industry? The bigger question that remains is whether or when will the government proceed with criminal charges?