First Circuit Rejects Relator’s Attempt To Revive FCA Case After Jury Verdict For Defendants

Yesterday, the U.S. Court of Appeals for the First Circuit affirmed a jury verdict for Massachusetts General Hospital, Brigham & Women's Hospital and various other defendants in U.S. ex. Rel. Jones v. Massachusetts General Hospital, — F.3d —-, 2015 WL 1138442 (1st Cir. Mar. 16, 2015) (Jones II). The case concerned allegedly false statements made by Dr. Robert Killiany and Dr. Marilyn Albert on a grant application to the National Institute on Aging (NIA), which the relator claimed resulted in an award of federal funds to the hospitals. Dr. Killiany had conducted a preliminary study in which Dr. Killiany had measured the entorhinal cortex (EC) (a small structure in the brain) to evaluate whether the size of an individual's EC could predict the likelihood that an individual would later develop Alzheimer's disease. The relator alleged that prior to providing his preliminary data to the NIA, Dr. Killiany performed two measurements on some ECs. Although Dr. Killiany's initial measurements of these ECs would not have supported a correlation between EC size and the development of Alzheimer's disease, the "remeasurements" did. The relator alleged that Dr. Killiany deliberately excluded from his grant application the initial measurements that would have undermined the conclusions of Dr. Killiany's preliminary study.

In rejecting the relator's challenge to the district court's denial of his motions for judgment as a matter of law and for a new trial, the First Circuit held that there was "no reason to upset the jury's considered verdict" for the defendants. Jones II, 2015 WL 1138442, at *1. The court held that the relator had failed to preserve his argument for judgment as a matter of law on appeal, and even if he had preserved it, he could not prevail: "The jury was entitled to—and rationally could—find persuasive the evidence at trial that undermined any conclusion that Killiany's remeasurements were fraudulent or that Albert knew them to...