United States of America, ex rel. v. Sightpath Medical, Inc.

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                


United  States  of  America  ex  rel.  Kipp  Case No. 13-cv-3003 (WMW/DTS) 
Fesenmaier,                                                              

                        Plaintiff,          ORDER                        

v.                                                                       

The Cameron-Ehlen Group, Inc., doing                                     
business as Precision Lens; and Kathryn                                  
Weitzel Ehlen, personal representative for                               
the Estate of Paul C. Ehlen,                                             

                      Defendants.                                        


    Judgment has been entered in this matter against defendants The Cameron-Ehlen 
Group, Inc. (“Precision Lens”) and Paul Ehlen in the amount of $487,048,705.13, not 
including post-judgment interest, statutory attorneys’ fees or other taxable costs.  See Dkt. 
1043.  This matter is now before the Court on the motion of Precision Lens and defendant 
Kathryn Weitzel Ehlen (in her capacity as personal representative for the Estate of Paul 
Ehlen)  for  post-judgment  relief.1   See  Dkt.  1047.    In  their  motion,  defendants  seek 
(1) judgment as a matter of law under Rule 50(b) of the Federal Rules of Civil Procedure; 
(2) to the extent that judgment as a matter of law is not granted, a new trial under Rule 59 
of the Federal Rules of Civil Procedure; and (3) to the extent that neither a new trial nor 

1 Paul Ehlen died shortly after judgment was entered in this matter, and his wife, Kathryn 
Weitzel Ehlen, was substituted as a party pursuant to Rule 25(a)(1) of the Federal Rules of 
Civil Procedure.  See Dkt. 1079.                                          
judgment as a matter of law is granted, a reduction in the monetary judgment on the 
grounds that the monetary award violates the Excessive Fines Clause2 of the federal 

constitution.                                                             
    For the reasons addressed below, defendants’ motion is granted in part and denied 
in part—specifically, the request for a new trial is denied, the request for judgment as a 
matter of law is denied with respect to all but one of the transactions found by the jury to 
be a kickback, and the request for a reduction in the judgment is granted, although not to 
the extent sought by defendants.  The judgment previously entered in this matter will be 

amended to reflect an award of $216,675,248.55, not including post-judgment interest, 
statutory attorneys’ fees, or other taxable costs.  This is the maximum award permitted by 
the constitution in this case.                                            
                         BACKGROUND                                      
    After a two-month trial, a jury concluded that Precision Lens and Paul Ehlen 

violated  the  Anti-Kickback  Statute  (“AKS”),  42  U.S.C.  §  1320a-7b,  by  offering 
remuneration  in  the  form  of  trips,  meals  and  other  items  of  value  to  dozens  of 
ophthalmologists over a 10-year period.  The ophthalmologists, in turn, purchased medical 
supplies from Precision Lens and later sought reimbursement from Medicare for medical 
procedures conducted using those items.  The jury concluded that, because the requests for 


2 Defendants’ constitutional challenge also arises under the Due Process Clause of the Fifth 
Amendment,  but  defendants  do  not  distinguish  in  their  briefing  between  the  two 
constitutional provisions, and the legal analysis under both provisions appears to have been 
treated  largely  the  same by  courts  in  similar  cases.    See,  e.g.,  United  States ex  rel. 
Drakeford v. Tuomey, 

 (4th Cir. 2015).  For simplicity, the Court will 
refer throughout this order only to the Excessive Fines Clause.           
Medicare reimbursement did not disclose that the AKS had been violated with respect to 
the  purchase  of  supplies  used  during  the  medical  procedures,  those  requests  for 

reimbursement violated the False Claims Act (“FCA”), 

.  The jury 
also concluded that Precision Lens and Paul Ehlen had caused the false claims to be 
submitted to Medicare or had caused records or statements to be made or used in support 
of the false claims.  According to the jury, 64,575 false claims were submitted to Medicare 
due to Defendants’ conduct, resulting in $43,694,641.71 in damages to Medicare.  See 
Dkt. 985 at 38-39 (verdict form).                                         

    The Court subsequently directed that judgment be entered against Precision Lens 
and Paul Ehlen in the amount of $487,048,705.13.  Of that amount, less than one tenth 
($43,694,641.71) represented actual damages to the United States.  That actual-damages 
amount was then trebled pursuant to 

(a)(1), resulting in approximately 
$131 million in trebled damages.  The remaining three quarters of the judgment amount, 

or approximately $358 million, represented statutory penalties assessed for each of the 
64,575  requests  for  Medicare  reimbursement  found  by  the  jury  to  be  false  claims.  
Approximately $2.5 million was deducted from the judgment amount due to settlements 
from other parties on claims related to the conduct at issue in this proceeding.3 





3 The more precise calculation of the amount of judgment can be found in the Court’s 
May 12, 2023 Order. Dkt. 1042.                                            
                           ANALYSIS                                      
    Defendants challenge the judgment on many grounds.  Those challenges can be 

divided into four categories:  First, defendants contend that the Court erred in several 
respects when interpreting the FCA and AKS and that, absent those errors, the result of this 
case would have been different—either because summary judgment would have been 
granted in their favor or because the jury would have been instructed differently and, 
therefore, reached a different conclusion.  Second, defendants contend that the Court erred 
in its handling of several evidentiary issues that arose before and during trial.  Third, 

defendants contend that there was insufficient evidence admitted at trial from which the 
jury could reasonably conclude that defendants had violated the FCA—or, there was 
insufficient evidence from which to conclude that defendants had violated the FCA with 
respect to many of the specific transactions found by the jury to be kickbacks.  Fourth, 
defendants challenge the calculation of damages and the amount of judgment, including an 

argument that the punitive portion of the judgment exceeds the amount permitted by the 
Excessive Fines Clause.                                                   
                      A.  Standards of Review                            
    Rule 50(b) of the Federal Rules of Civil Procedure governs renewed motions for 
judgment as a matter of law.  “In ruling on the renewed motion, the court may: (1) allow 

judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct 
the entry of judgment as a matter of law.”  Fed. R. Civ. P. 50(b).  A renewed motion for 
judgment as a matter of law may be granted only if “‘a reasonable jury would not have a 
legally sufficient evidentiary basis’” to return the verdict that it reached.  Bavlsik v. Gen. 
Motors, LLC, 

 (8th Cir. 2017) (quoting Fed. R. Civ. P. 50(a)(1)).  In 
deciding a motion for judgment as a matter of law, the court must view the evidence in the 

light most favorable to the party who prevailed before the jury, making all reasonable 
inferences in that party’s favor.  

                                    
    Rule 59 governs motions for a new trial.  Following a jury trial, on the motion of 
any party, a district court may grant a new trial on all or some of the issues.  See Fed. R. 
Civ. P. 59(a)(1)(A).  But “a district judge is not free to reweigh the evidence and set aside 
the  jury  verdict  merely  because  the  jury  could  have  drawn  different  inferences  or 

conclusions or because judges feel that other results are more reasonable.”  King v. Davis, 

 (8th Cir. 1992) (citation omitted). The “trial judge may not usurp the 
functions of a jury.”  White v. Pence, 

 (8th Cir. 1992) (quotation omitted).  
A new trial is warranted only when “the verdict was so contrary to the evidence as to 
amount to a miscarriage of justice.”  Butler v. French, 

 (8th Cir. 1996). 

                   B.  Legal Standards for Liability                     
                            1.  Intent                                   
    To prove a violation of the AKS, a plaintiff must establish that the remuneration 
offered or paid by the defendant was intended “to induce” the payee to purchase, lease, or 
order—or arrange for or recommend purchasing, leasing, or ordering— any good, facility, 

service, or item, or to refer an individual to a person for the furnishing of any item or service.  
See 42 U.S.C. § 1320a-7b(b)(2).  “The AKS’s plain language thus makes it unlawful for a 
defendant to pay a kickback with the intent to induce a referral, whether or not a particular 
referral results.”  United States ex rel. Parikh v. Citizens Med. Ctr., 

 (S.D. Tex. 2013).                                                     

    Throughout this litigation, the parties have disputed whether the AKS requires that 
intent to induce purchases be the primary motivation of the remuneration for liability to 
attach, or whether it is sufficient that the intent to induce purchases was one motivation of 
the remuneration  (perhaps among many).   When addressing the  parties’ motions for 
summary judgment, the Court surveyed the case law of the several appellate courts that 
have considered the issue and found that each of those courts had concluded that an AKS 

violation exists if one purpose of the remuneration was to induce purchases, even if other 
legitimate purposes for the remuneration also existed.  See United States v. Borrasi, 

 (7th Cir. 2011) (collecting cases from the Third, Fifth, Ninth, and Tenth 
Circuits and rejecting the argument that inducement must be “the primary motivation 
behind the remuneration”); United States ex rel. Lutz v. Mallory, 

 (4th 

Cir. 2021) (similarly adopting the one-purpose standard rather than the primary-purpose 
standard).                                                                
    Defendants continue to maintain that the AKS requires that the primary motivation 
of the remuneration was to induce purchases.  Defendants’ argument is preserved for 
appeal, but the Court continues to be persuaded that the appropriate standard on intent was 

applied in this matter for the reasons explained in the Court’s January 12, 2021 order.  See 
Dkt. 722 at 16-19.                                                        
                          2.  Causation                                  
    Defendants raise essentially two claims with respect to the causation standard 

applied by the Court in this matter.  First, relying on United States ex rel. Cairns v. D.S. 
Medical LLC, 

 (8th Cir. 2022), defendants argue that plaintiffs were required 
to establish but-for causation in proving a violation of the AKS.  But as more fully 
addressed in this Court’s January 4, 2023 order, the causation standard described in Cairns 
applies only to claims governed by 42 U.S.C. § 1320a-7b(g).  See Dkt. 842 at 1-7; Cairns, 

 (“Our ruling today is narrow.  We do not suggest that every case arising 

under the False Claims Act requires a showing of but-for causation.”).    
    Second, defendants object to what they characterize as plaintiffs’ “taint theory” of 
establishing causation.  On defendants’ version of events, plaintiffs led the jury to believe 
that any request for Medicare reimbursement submitted within one year of an alleged 
kickback—the so-called “taint period”—may be presumed to have been caused by the 

kickback and therefore unlawful.  But plaintiffs were not permitted to argue any such thing. 
As the Court explained in a previous order, “‘[t]emporal proximity between a kickback and 
a Medicare claim, without more, is insufficient to establish the requisite causal link under 
the AKS.’”  Dkt. 722 at 27 (quoting United States ex rel. Greenfield v. Medco Health 
Solutions, Inc., 

 (3d Cir. 2018)).                         

    To be sure, for most (although not all) of the alleged kickbacks, the United States 
did seek recovery for any requests for Medicare reimbursement that were submitted by 
doctors in the year following the alleged kickback.  But the strategic decision to seek 
recovery for one year of Medicare claims following the alleged kickbacks reasonably 
reflected that temporal proximity, although not sufficient by itself to establish causation, 
was nevertheless relevant.  All else being equal, claims for Medicare reimbursement made 

very shortly after a kickback would be more likely to have been caused by that kickback 
than claims for Medicare reimbursement made many years after the fact.  Plaintiffs would 
inevitably have had a more difficult time, all else being equal, establishing causation on 
claims made more than one year after an alleged kickback event.  Reasonably, then, 
plaintiffs limited their case for the most part to requests for Medicare reimbursement that 
occurred within one year of the alleged kickback event.  But for each allegedly false claim, 

regardless of when it occurred, plaintiffs were required to establish proximate causation, 
not merely temporal proximity.                                            
                           3.  Damages                                   
     The FCA provides for the recovery of “damages which the [United States] sustains 
because of” a false claim.  

(a).  Plaintiffs argue that the appropriate 

measure of damages in this matter is the full amount of each Medicare claim paid by the 
United States that was found by the jury to be false.  The rationale for this argument is 
straight forward.  Because doctors are required to certify that they are in compliance with 
the AKS, had the doctors (truthfully) refused to certify that they were in compliance with 
the AKS with respect to any particular claim for Medicare reimbursement, that claim for 

reimbursement never would have been approved.  Applying plaintiffs’ logic, every penny 
paid by the United States in reimbursement of false claims amounts to actual damages that 
are recoverable by the United States under the FCA.                       
    Defendants offered several alternative theories for calculating damages.  One theory 
is that the United States’s actual damages were zero, because every one of the medical 

procedures for which reimbursement was sought was medically necessary and, therefore, 
would have been reimbursed anyway.  Another theory is that actual damages should be 
limited, at most, to the profits that accrued to Precision Lens from the sales of lenses and 
viscoelastic tainted by kickbacks.  A third theory separates the requests for Medicare 
reimbursement into claims for Physician Professional Fees and claims for Facility Fees—
defendants objected to either fee being recoverable. But defendants especially objected to 

the Physician Professional Fees being recoverable because no portion of that fee served 
directly as reimbursement for the purchase of Precision Lens products.    
    This Court agreed with plaintiffs that the full amount of the claims—including the 
portions attributable to Physician Professional Fees—were recoverable as actual damages 
in his matter.  See Dkt. 842 at 7-12.  The rationale for that decision is set forth more fully 

in this Court’s January 4, 2023 order and will not be revisited here, except to state that it is 
well-established that the appropriate measure of damages is the full value of the false 
claims paid by the United States.  See, e.g., United States v. Rogan, 

 (7th 
Cir. 2008); Teva Pharmaceuticals USA, Inc., No. 20-11548-NMG, 

, 
at *5 (D. Mass. Oct. 11, 2022).                                           

                        4.  Jury Instructions                            
    Finally, defendants object to several of the final instructions given to the jury and 
argue that, because of supposed errors in those instructions, a new trial should be granted.  
“[A] district court has broad discretion in instructing the jury, and jury instructions do not 
need to be technically perfect or even a model of clarity.”  B & B Hardware, Inc. v. Hargis 
Indus., Inc., 

 (8th Cir. 2001) (citations and internal quotation omitted).  

A new trial based on erroneous jury instructions “is necessary only when the errors misled 
the jury or had a probable effect on the jury’s verdict.”  Slidell, Inc. v. Millennium Inorganic 
Chemicals, Inc., 

 (8th Cir. 2006) (citation omitted).  
                         i.  AKS Instruction                             
    As explained above, defendants have argued that the AKS requires that, for liability 
to attach, the intent to induce purchases must be the primary motivation of the remuneration.  

The Court rejected this argument.  As a result, the jury’s instructions did not follow 
defendants’ proposed primary-motivation standard.  Defendants renew their argument that 
the jury instructions were erroneous in this regard.  That argument is rejected for the same 
reasons that defendants’ underlying argument regarding the appropriate standard of intent 
was rejected.                                                             

    Defendants similarly object that the phrase “in exchange for” was omitted from the 
Court’s final instruction on the AKS, arguing this phrase should have been included 
because it would have reinforced what they believe to be the correct primary-purpose 
standard.  As the Court has explained, the primary-purpose standard is not a correct 
statement of the law, and any proffered instruction reinforcing that incorrect understanding 

would have been an error.                                                 
    Finally, defendants argue that the jury should have been instructed that a hope or 
expectation of future business from physicians does not by itself result in AKS liability.  
The Court believes that the definition of remuneration provided to the jury adequately 
established the boundaries of liability under the AKS and that no clarifying instruction was 
necessary.                                                                

                        ii.  FCA Instruction                             
    Most of defendants’ objection to the final jury instruction on the FCA pertains to 
the appropriate standard of causation under the FCA, with defendants asserting that the 
jury should have been instructed that the but-for standard set forth in Cairns applies in this 
matter.  For the reasons addressed above, the Court rejects this argument that but-for 
causation is the appropriate standard in this litigation and concludes that the jury was 

instructed correctly regarding causation.                                 
    Defendants also argue that the Court provided an inaccurate description of the 
concept of materiality to the jury.  The definition of materiality provided to the jury derived 
directly from Universal Health Services, Inc. v. United States ex rel. Escobar, 

 
(2016), and was an accurate and neutral summarization of the holding of that case. 

                          iii.  Damages                                  
    As explained above, the Court determined that the appropriate measure of damages 
in this proceeding is the full amount paid by the United States for each false claim resulting 
from  a  kickback.    See  Dkt.  722  at 7-10  (order  on  motions  for  summary  judgment).  
Defendants argue that this conclusion regarding the appropriate measure of damages is 

wrong and that, because of the error, the jurors were instructed improperly on how to 
calculate damages in this matter.  Because the Court does not believe its conclusion 
regarding damages to be wrong, the Court similarly does not believe that there was any 
error in the damages instruction that was given to the jury.              
                        iv.  Relator’s Award                             
    The jurors were instructed that “[y]ou are not to allow the possibility of a relator’s 

share of the recovery enter into your deliberations about whether, or the extent to which, 
the United States is entitled to monetary damages.”  Jury Instruction 18.  Defendants 
objected  to  the  instruction,  arguing  that  the  jurors  should  have  been  informed  that 
Fesenmaier and his attorneys had a pecuniary interest in the outcome of the litigation. 
    The jury instruction given was appropriate, and the instruction that defendants 
preferred  would  have  been  inappropriate.    That  Fesenmaier  stood  to  benefit  from  a 

favorable outcome in this case is wholly irrelevant to the questions presented to the jury: 
whether, and to what extent, Precision Lens or Paul Ehlen violated the FCA.  See United 
States ex rel. Feldman v. Van Gorp, No. 03 CV 8135 (WHP), 

, at *5 
(S.D.N.Y. July 8, 2010).  Nor was it relevant—or even, for that matter, unusual—that the 
attorneys of one party stood to benefit from a favorable outcome.  The jury was instructed 

correctly to ignore the issue.                                            
                       C.  Evidentiary Issues                            
    Defendants’ next category of post-judgment arguments pertains to decisions made 
by  the  Court  regarding  the  admissibility  of  evidence  at  trial.    None  of  defendants’ 
arguments are availing.                                                   

                   1.  Evidence Related to Materiality                   
    In  2010,  both  the  U.S.  Department  of  Health  and  Human  Services  Office  of 
Inspector  General (“HHS-OIG”)  and  the  Centers  for  Medicare  &  Medicaid  Services 
(“CMS”) were presented with complaints that Precision Lens had violated the AKS.  The 
HHS-OIG elected not to investigate the complaints, and the CMS continued to pay claims 
for Medicare reimbursement for procedures in which Precision Lens products had been 

used.  Defendants sought admission of exhibits and testimony regarding the actions (or the 
inaction) of HHS-OIG and CMS, arguing that the comportment of those agencies tended 
to show that the United States did not regard defendants’ conduct as material.  The Court 
disagreed with defendants then, and continues to disagree with defendants now, that the 
evidence was relevant to materiality.  The inaction of HHS-OIG and CMS did not fairly 
reflect  that  those  entities  found  kickbacks  generally  or  the  actions  of  defendants 

particularly to be unimportant.  And the admission of the evidence described above would 
have risked the jury drawing an unwarranted inference from that evidence. 
    Defendants also argue that expert David Gregory should have been permitted to 
testify  regarding  whether  and  to  what  extent  the  false  statements  on  the  Medicare 
reimbursement forms were material.  As the Court explained, when this issue was presented, 

Gregory (by defendants’ own admission) had not offered an opinion on materiality in his 
expert report.  For this reason, he was appropriately not permitted to testify on the topic.  
See Dkt. 931 (citing Fed. R. Civ. P. 37(c)(1)).                           
                2.  Tiffany’s Fifth Amendment Invocation                 
    At trial, the United States sought to designate the bulk of the deposition testimony 

of James Tiffany, who was the former chief executive officer of Sightpath Medical, LLC 
(“Sightpath”).  Both Tiffany and Sightpath previously were defendants to this action, and 
both Tiffany and Sightpath had a substantial business relationship with Precision Lens 
during much of the period during which the events at issue occurred.  Throughout his 
deposition, Tiffany invoked his Fifth Amendment right against self-incrimination and 
declined to answer any substantive question posed to him by counsel for any party.  

Defendants  objected  to  admission  of  the  deposition  on  the  grounds  that  Tiffany’s 
invocation of his Fifth Amendment rights was not relevant to the issues in dispute and that 
admission of Tiffany’s invocation would be unfairly prejudicial to them.  
    The Court sustained in part and overruled in part defendants’ objection.  The United 
States was permitted to introduce no more than 50 lines from the Tiffany deposition 
transcript—essentially, only enough to establish that the United States had been unable to 

elicit deposition testimony from Tiffany because of his Fifth Amendment invocation.  
Defendants, in turn, were permitted to counter-designate a snippet of Tiffany’s deposition 
showing that they, too, had been unable to elicit testimony from Tiffany. 
    In their post-judgment motion, defendants renew their objection to the admission of 
any portion of the deposition.  Defendants’ argument is rejected on the grounds set forth in 

the Court’s January 22, 2023 order, Dkt. 872, overruling in part the objection to the 
admission of the deposition.                                              
                      3.  Ehlen Audio Recording                          
    Defendants sought admission of a 77-minute audio recording4 in which Paul Ehlen 
discussed with Fesenmaier the investigation of the transactions later found to be kickbacks 


4 In their motion for post-judgment relief, defendants refer to audio recordings (plural) 
“which span 50 hours over the course of years.”  Dkt. 1048 at 33.  But during trial, 
defendants sought the admission of only one such recording, Exhibit D-75, and only that 
one recording was expressly excluded.  In fact, the Court expressly stated before trial that 
the audio recordings of Ehlen and Fesenmaier would not be categorically excluded and 
would instead be evaluated on a case-by-case basis.  See Dkt. 842 at 21.  
and, speaking generally, asserted his innocence of having violated the AKS.  The Court 
sustained the objection to the admission of that evidence on the grounds that it was 

inadmissible hearsay.  See Dkt. 922.   Defendants contend that Paul Ehlen’s statements in 
the recording are not hearsay and that, even if they were, the statements are admissible 
under Rule 803(3) of the Federal Rules of Evidence as reflecting Ehlen’s state of mind at 
the time that he made the statements.                                     
    The Court remains satisfied that Paul Ehlen’s statements in the recording at issue 
are inadmissible hearsay.  Moreover, to the extent that defendants intended to introduce the 

recordings  for  non-hearsay  purposes,  Paul  Ehlen’s  statements  were  irrelevant  to  any 
question being presented to the jury.  That Paul Ehlen—while being investigated by the 
United States—told Fesenmaier that he did not believe the transactions for which he was 
being investigated to be kickbacks is not probative of whether those transactions were, in 
fact, kickbacks.  Moreover, that Paul Ehlen did not know he was being recorded does not 

make his statements any more probative.                                   
             4.  Evidence Related to Knowledge of Fesenmaier             
    Defendants designated portions of Fesenmaier’s deposition for admission.  The 
Court sustained plaintiffs’ objection to the designation, explaining at the time that 
         much  of  the  designated  testimony  relates  to  Fesenmaier’s 
         motivation  in  bringing  a  claim  against  Defendants.  Mr.   
         Fesenmaier has not testified in this matter, and his deposition 
         testimony regarding his motivation is not relevant.  See United 
         States ex rel. Landis v. Tailwind Sports Corp., 

 (D.D.C. 2017) (finding that a defendant could not   
         call the relator as a witness solely for the purpose of attacking 
         his character or highlighting his motivation for filing the qui 
         tam action).                                                    
Dkt. 935.  Similarly, the Court precluded Paul Ehlen from testifying about Fesenmaier’s 
possible motivations for acting as a whistleblower.  See Tr. 3509-11.     
    Defendants argue that evidence regarding Fesenmaier’s motivations and state of 
mind should have been admitted.  But this kind of evidence would have been “not relevant 
to any of the elements of an FCA claim” and thus was properly excluded under Rule 403.5  

Feldman, 

, at *5.  As the Court explained at greater length prior to trial, 
when a relator does not testify, “his self-serving interest in filing suit is irrelevant, as it does 
not affect whether a defendant’s actions were legal or not.”  United States ex rel. Kiro v. 
Jiaherb, Inc., No. CV 14-2484-RSWL-PLAX, 

, at *4 (C.D. Cal. July 3, 
2016) (citing Landis, 

).                            

               5.  Evidence Related to Amount of Damages                 
    Defendants next argue that various forms of evidence should have been admitted at 
trial showing (in their view) that the amount of actual damages to the United States 
resulting from any false certification was less than the full amount of reimbursement paid 
to the doctors.  The issue of how actual damages should be calculated in this matter has 

been litigated repeatedly, and the Court’s exclusion of defendants’ proffered evidence on 
damages follows directly from the Court’s prior ruling that the appropriate measure of 

5 To be sure, “[t]he motivation of a witness in testifying, including [his] possible self-
interest and any bias or prejudice against the defendant, is one of the principal subjects for 
cross-examination.”  Henry v. Speckard, 

 (2d Cir. 1994).  A party 
certainly may test the quality of an adversarial witness’s testimony by pointing out that the 
motivations of the witness are something other than pure.  But Fesenmaier did not testify 
at trial.  Accordingly, there was no testimony of Fesenmaier for defendants to attempt to 
impeach.                                                                  
actual damages in this matter was the full amount of false claims paid by the United States.  
In light of that ruling, the evidence for which defendants sought admission was irrelevant 

and therefore properly excluded.  See Fed. R. Evid. 403.                  
                      6.  Expert Demonstratives                          
    Defendants objected to the admission of Exhibit P-1216, which was intended for 
use as a demonstrative exhibit by plaintiffs during the testimony of their expert Michael W. 
Phillips but was later admitted into evidence.  The Court’s explanation as to why the exhibit 
was admitted was provided on the record during trial, see Tr. 2546, and it is unnecessary 

to provide further explanation here.  The Court notes only that every word and number on 
the exhibit would have been admitted into evidence through Phillips’s testimony—and, 
indeed, every word and number was in the process of being admitted through Phillips’s 
testimony when the exhibit was admitted.  Admission of the document thus spared the 
needless expenditure of juror time in a trial that had already gone on for nearly one month 

and would go on for yet another month.                                    
    Defendants counter that, having admitted plaintiff’s demonstrative exhibit used 
during expert testimony, the Court should have granted the same courtesy to defendants 
and admitted Exhibit D-335, which was shown to the jury as a demonstrative during the 
testimony of their expert Scott Van Meter but was not admitted into evidence.  But the 

rationales that supported the admission of the Phillips exhibit did not support the admission 
of the Van Meter exhibit.  The Van Meter exhibit, unlike the Phillips exhibit, was a true 
demonstrative—the  exhibit  provides  a  visualization  of  data  supporting  Van  Meter’s 
underlying testimony regarding physician purchases before and after alleged kickback 
events.6   The  exhibit  used  during  the  Phillips  testimony,  by  contrast,  was  merely  a 
summarization of opinions that Phillips already intended to offer as testimony.  Indeed, the 

Phillips exhibit was hardly a “demonstrative” at all.  It is a chart that shows only what 
Phillips’s testimony was about to be.  The information on the Phillips demonstrative exhibit 
therefore  was  destined  for  admission,  while  the  information  on  the  Van  Meter 
demonstrative exhibit was not.                                            
    Nor  does  the  Court  believe  that  defendants  were  unduly  prejudiced  by  the 
discrepancy.  This is not a situation in which two experts offered dueling opinions on a 

topic and one of those opinions was admitted into evidence while the other was excluded, 
thereby preventing one side or the other an adequate opportunity to present its case on a 
particular issue.  Phillips and Van Meter testified as to entirely unrelated topics—the 
former regarding the fair market value of transactions alleged to be kickbacks, the latter as 
to the quantity of purchases made by doctors from Precision Lens before and after the 

alleged kickback events.                                                  
            7.  Van Meter Testimony on Maintenance of Business           
    Finally, defendants argue that Van Meter should have been permitted to testify to 
the  effect that  the  alleged  kickbacks  did  not cause  the  physicians  to  continue  using 
Precision Lens products.  Van Meter’s opinions in this regard, however, were not fairly 


6 Defendants characterize the Van Meter exhibit as a Rule 1006 summary, but it was not.  
See White Industries, Inc. v. Cessna Aircraft Co., 

 (W.D. Mo. 
1985) (distinguishing Rule 1006 summaries from “pedagogical” summaries).  This by 
itself does not mean that the exhibit was inadmissible.  The Phillips exhibit was not a 
Rule 1006 summary, either.  It does mean, however, that Rule 1006 of the Federal Rules 
of Evidence did not compel admission.                                     
encompassed by his expert report.  He was, therefore,  properly precluded from testifying 
on that topic.  See Fed. R. Civ. P. 37(b).                                

                    D.  Sufficiency of the Evidence                      
    Defendants’ next group of arguments relates to the sufficiency of the evidence 
admitted at trial.  Some of these sufficiency-of-the-evidence arguments overlap with the 
arguments that were considered and rejected above.  For example, defendants contend that 
plaintiffs were required under the AKS to establish that the primary purpose of the alleged 
kickbacks was  to  induce referrals.    With  respect  to the sufficiency  of  the  evidence, 

defendants argue that the evidence admitted at trial does not suffice to meet this primary-
purpose standard.  But the Court rejected the primary-purpose standard, and defendants’ 
sufficiency-of-the-evidence argument related to the primary-purpose standard, therefore, 
fails as well.  Similarly, defendants contend that plaintiffs failed to establish but-for 
causation.    But  as  addressed  above,  plaintiffs  were  not  required  to  establish  but-for 

causation under the AKS.  Therefore, any sufficiency-of-the-evidence claim premised on 
but-for causation must be rejected.                                       
    Defendants, however, also challenge the sufficiency of the evidence on grounds that 
are not necessarily encompassed by the arguments examined above and which, therefore, 
must be addressed in greater detail.  Some of these challenges to the sufficiency of the 

evidence implicate the entirety of the verdict against defendants.  In these arguments, 
defendants contend that plaintiffs failed to establish a critical component of their case, 
fatally undermining any finding of liability.  Other challenges, by contrast, attack the 
sufficiency of the evidence with respect to specific transactions found by the jury to be 
kickbacks.  The Court will address these arguments next, starting with the more general 
arguments and ending with the more specific.                              

    In reviewing these arguments, the Court must view the evidence in the light most 
favorable to the verdict and may reverse the verdict only if no reasonable juror could have 
returned the verdict that the jury in this matter returned.  See, e.g., Ryther v. KARE 11, 

 (8th Cir. 1997).                                            
                          1.  Materiality                                
    To establish liability under the FCA, plaintiffs were required to show that the false 

or fraudulent information in the claim for Medicare reimbursement was material to the 
United States’s decision to pay the claim.  Defendants contend that there was insufficient 
evidence admitted at trial to establish the necessary materiality.        
    Defendants challenge the sufficiency of the evidence as to materiality on two 
grounds.  The first argument is a restatement of the argument described above regarding 

the failure of HHS-OIG and CMS to follow up on whistleblower complaints concerning 
the conduct of Precision Lens and Medicare’s subsequent payment of claims.  Defendants 
argue  that  these  agencies’  actions  establish  that  the  misstatements  in  the  Medicare 
reimbursement forms were not material.  The Court determined that the inaction of HHS-
OIG and CMS, far from being conclusive on the issue of materiality, was not even 

probative on the issue of materiality.  In any event, the jury had an adequate evidentiary 
basis upon which to conclude that lack of compliance with the AKS was a material 
misstatement through  the testimony  of Scott Lawrence, a  CMS  representative.7  See 
Tr. 444-79.                                                               

    Defendants also advance a second argument regarding materiality, focusing again 
on the “taint theory” that defendants attacked with respect to causation.  To summarize, 
Defendants’ argument generally contends that, even if a false certification of compliance 
with the AKS is, speaking generally, a potentially material misrepresentation, plaintiffs did 
not establish that the United States would have regarded the specific transactions alleged 
to be kickbacks in this litigation to be material.  For example, defendants characterize one 

of the transactions found by the jury to be a kickback as being nothing more than a salad 
and a soda offered at a Christmas party.  Plaintiffs sought recovery from Precision Lens 
and Paul Ehlen for one full year of Medicare claims submitted by that doctor following the 
Christmas party.  Defendants argue, in essence, that plaintiffs did not establish that the 
United States would have refused to pay the claim had the doctor certified on her Medicare 

reimbursement forms that she had accepted a salad and soft drink from one of her medical 
suppliers.                                                                




7 To be clear: “A misrepresentation cannot be deemed material merely because the [United 
States]  designates  compliance  with  a  particular  statutory,  regulatory,  or  contractual 
requirement as a condition of payment.”  Escobar, 

.  But Lawrence’s 
testimony provided the jury an adequate evidentiary basis to conclude that compliance with 
the AKS is an especially weighty concern of the United States, as the existence of a 
kickback implicates the quality of care provided to the patient.  Tr. 459 (“We care—any 
time there’s influence, we care about it any time because we want all the decision-making 
to be purely to benefit the patient and to follow the rules.”).           
    Defendants’ argument regarding the de minimis nature of some of the kickbacks has 
some force when applied to causation.8  That argument also may be relevant in establishing 

the existence of remuneration—that is, some benefits might be of such insubstantial benefit 
that they do not amount to remuneration under the AKS and, therefore, cannot constitute 
kickbacks.  While the Court rejects this contention in its analysis below, the contention is 
far from frivolous.  But defendants’ salad-and-a-soda argument is a poor fit in the context 
of materiality.  There is no reason to believe that the United States would not have cared 
about the doctor’s false certification of compliance with the AKS if only it had known that 

the kickback was a modest meal, not something more lavish.                
    Accordingly, the Court concludes that the evidence admitted at trial was sufficient 
to establish materiality.                                                 
                       2.  Proximate Causation                           
    Defendants raise several arguments with respect to the sufficiency of the evidence 

regarding  causation.    Many  of  these  arguments  reprise  the  complaints  pertaining  to 
plaintiffs’ putative “taint theory.”  The Court addressed that issue above and declines to 
repeat the point here, except to observe that the United States was required to establish 
causation with respect to each individual claim and that proximity in time to a kickback 
was not a sufficient basis upon which to conclude that the necessary causation existed here. 

    Two other arguments on this subject require somewhat closer attention.  First, 
defendants contend that the United States did not establish that Precision Lens or Paul 

8 How much influence, for example, can be purchased with a salad at lunch or a modest 
meal at a holiday party?                                                  
Ehlen caused any claim to be submitted, thereby severing a necessary link for proving 
liability under the FCA.  Second, defendants contend that the United States  did not 

establish that the requests for Medicare reimbursement at issue in this matter were false. 
    Both arguments can be addressed briefly.  First, the jury was entitled to conclude 
that the defendants violated the FCA if (among other things) the defendants caused records 
or statements to be made or used in support of a false claim to the United States.  The jury 
was  further  instructed  that  a  defendant’s  conduct  may  be  found  to  have  caused  the 
submission of a claim for Medicare reimbursement (1) if the alleged misconduct was a 

substantial factor in inducing providers to submit claims for reimbursement, and (2) if the 
submission of claims for reimbursement was reasonably foreseeable or anticipated as a 
natural consequence of defendants’ conduct.  The evidence at trial was sufficient for a 
reasonable juror to conclude that requests for Medicare reimbursement would likely result 
following the use of the products tainted by kickbacks.  The products at issue were used in 

cataract surgeries, which are especially prevalent in populations covered by Medicare.  The 
evidence at trial was also sufficient for the jury to conclude that defendants understood that 
compliance with the AKS would be a prerequisite of reimbursement.         
    Second, defendants argue that the doctors were required only to certify to the United 
States that they (that is, the doctors) had not knowingly violated the AKS.  Many of the 

doctors testified that they believed that they had adequately recompensed Precision Lens 
and Paul Ehlen for any benefit given to them—for example, by paying invoices for trips.  
Defendants contend that these doctors therefore could not have knowingly certified a false 
statement.  But a knowing violation of the FCA includes not only claims made with actual 
knowledge of falsity, but also claims made in deliberate ignorance or reckless disregard of 
the truth or falsity of the information provided on the reimbursement form.  There was a 

sufficient evidentiary basis for the jury to conclude that the doctors at issue acted in 
deliberate  ignorance  or  reckless  disregard  of  the  truth,  even  if  the  doctors  did  not 
subjectively believe themselves to have violated any law.                 
    The Court therefore concludes that the evidence admitted at trial was adequate to 
establish causation.                                                      
                      3.  Proof of Remuneration                          

    Defendants’ next series of arguments focuses on specific transactions found by the 
jury to be kickbacks.  According to defendants, there was insufficient evidence admitted at 
trial  from  which  to  conclude  that  remuneration  was  provided  to  doctors  in  these 
transactions. For this reason, defendants argue, there was insufficient evidence from which 
to conclude that these transactions amounted to kickbacks.                

                        i.  Fair Market Value                            
    Defendants first challenge several instances in which the jury “found kickbacks for 
trips in which doctors testified that they were invoiced and paid their own costs and/or what 
they considered to be fair market value.”  Dkt. 1048 at 13.  This category can be addressed 
briefly.  Regardless  of the  doctors’  beliefs  about  these  trips,  the  jury was  entitled  to 

conclude that the amount paid for these trips fell short of the fair market value of those 
trips based on Phillips’s testimony and analysis of fair market value of difficult-to-quantify 
benefits such as private flights.  There was sufficient evidence to conclude that this 
category of transactions constituted remuneration.                        
                       ii.  Third-Party Benefits                         
    Defendants next argue that, in some instances, the remuneration alleged by plaintiffs 

came from a third party, not from Precision Lens or Paul Ehlen.  Defendants are less than 
clear about which kickbacks they believe to fall into this category.  The memorandum in 
support of the post-judgment motion refers vaguely to locations in which many trips had 
been conducted, rather than to specific transactions believed to have not been remunerative.  
Absent greater precision as to the specific trips at issue, the Court will not enter into an 
extended analysis as to why each of the possible trips to which defendants might be alluding 

could reasonably have been found by the jury to have been remunerative.  It suffices to 
state that, for each of these trips, the jury could reasonably have concluded that the doctor 
either accrued a remunerative benefit from Precision Lens and Paul Ehlen (for example, in 
the form of a private flight for which fair market value was not provided) or that Precision 
Lens and Paul Ehlen were the ultimate payees of the benefit supplied by the third party. 

    Two instances, however, are specifically cited by defendants, and the Court will 
address them with greater detail here.  First, one of the transactions that the jury found to 
be a kickback was a 2006 golf outing in Las Vegas attended by Dr. Kurt Weir.  See Dkt. 985 
at 24 (verdict form).  Weir did not pay for the outing, but it is uncertain who did pay.  The 
United States believes it was Paul Ehlen. But the evidence is inconclusive.  Weir testified 

that he “assume[d]” that Paul Ehlen had paid for the trip, Tr. 594, but he did not have a 
specific recollection.  Weir’s assumption, in turn, appears to have been premised on an 
email shown to him during direct examination.  In that email, Linda Norling—a Precision 
Lens employee and Paul Ehlen’s personal assistant—informed the host at the casino where 
the golf course at issue was located that “Paul left me a VM last night and said it was OK 
to charge all of the Cascata golf to his card.”  Exhibit P-378 at 1.  But Norling testified that 

another doctor had provided her with his credit card information for that trip, see Tr. 2001-
03, and there is documentary evidence showing that Norling forwarded that doctor’s credit-
card information to the casino host approximately one month prior to sending the email 
shown to Weir, see Exhibit D-265.  If the other doctor paid for the trip, then Precision Lens 
and Paul Ehlen would not have provided remuneration with respect to that trip and no false 
claims could have resulted from that trip.                                

    The jury could have reasonably inferred from the evidence admitted at trial that it 
was the other doctor, not the defendants, who paid for Weir’s golf.  But that conclusion 
certainly is not compelled by the evidence.9  The jury also could have reasonably inferred 
that Norling’s email to the casino host meant exactly what it said—that Paul Ehlen had told 
her to tell the casino manager “to charge all of the Cascata golf to his card.”  Exhibit P-378 

at 1.  Viewed in the light most favorable to the verdict, the evidence was sufficient for the 
jury to conclude that Paul Ehlen had paid for Weir’s golf and therefore it was a kickback, 
notwithstanding that other evidence supported a different conclusion.     
    Second, defendants cite to the testimony of Dr. Richard Lindstrom that, for at least 
one of the trips that the jury found to be a kickback, he had flown on the private plane of 

Dr. Bill Link, not Paul Ehlen’s plane.  See Tr. 3128.  Link, however, was closely associated 


9 Norling herself, when reviewing the documents at trial, declined to testify that the other 
doctor had in fact paid for the trip.  See Tr. 2003 (“Q. Can you tell from these e-mails who 
ultimately paid for Dr. Weir’s golf?  A. No, I cannot tell.”).            
with Precision Lens, serving for approximately two years on its advisory board around the 
same  time  as  the  events  at  issue.    See  Tr. 3151.    Lindstrom  himself  was  under  the 

impression that Link and Ehlen would “divvy up the costs between the participants as they 
thought was appropriate.”  Tr. 3129.  None of the costs of that private flight appear to have 
been divvied to Lindstrom.  A reasonable juror could conclude from the evidence that a 
free flight provided by Link to an event attended by Paul Ehlen amounted to remuneration 
from Precision Lens and Ehlen to Lindstrom, albeit through an intermediary. 
                      iii.  Davis Christmas Party                        

    Dr.  Elizabeth  Davis  attended  the  Precision  Lens  Christmas  party  in  2013.  
According to her testimony, she ate a salad and drank a soda while she was there.  See 
Tr. 1838.  The jury found that this was a kickback.  See Dkt. 985 at 8.   
    Plaintiffs strive diligently to suggest that the value of the remuneration provided to 
Davis was something more than a salad and a soft drink. But the evidence adduced at trial 

does not bear that out.  For example, Precision Lens did submit a report under the Sunshine 
Act that the per-person value of the Christmas party was $240.  But the fact that other 
invitees might have received a great deal of value from the party does not mean that Davis 
received any more benefit than what she had admitted to receiving.  Plaintiffs also speculate 
that Davis might have attended pre-party or post-party events held by Precision Lens, but 

there is no evidence in the record bearing that out.  The jury reasonably could have 
concluded that Davis received a salad and a soda on that occasion, which she admitted, but 
nothing beyond that.                                                      
    The problem for defendants, however, is that remuneration within the meaning of 
the AKS includes the provision of anything of value for an amount other than the fair 
market value of that thing.10  42 U.S.C § 1320a-7a(i)(6).  Davis, by her own admission, 

received a dinner at a restaurant. While not an extravagant dinner, the dinner nevertheless 
is an item of value.  The jury was entitled to conclude from that testimony that Davis had 
received a kickback.                                                      
                      iv.  Riedel New York Trip                          
    The jury found that a trip taken by Dr. Patrick Riedel and his wife to New York City 

with Paul Ehlen and his wife constituted an unlawful kickback.  See Dkt. 985 at 26.  
Defendants argue that there is insufficient evidence to support jury’s verdict with respect 
to this trip.                                                             
    Although the question is close, there was sufficient evidence to support a finding 
that Riedel had received a kickback.  Riedel testified that he had taken a trip with Paul 

Ehlen to New York, that he had flown on Ehlen’s plane, and that he did not recall paying 



10 Defendants cite to United States ex rel. Martin v. Hathaway, 

 (6th 
Cir.  2023),  for  the  proposition  that  “giving  someone  a  soda  does  not  constitute 
remuneration within the meaning of the statute.”  Dkt. 1048 at 13.  But Hathaway says only 
that remuneration within the meaning of the AKS requires the transfer of money, goods or 
services, and does not include more nebulous transactions.  For example, in Hathaway, the 
alleged remuneration was “a hospital’s decision not to hire an ophthalmologist in return 
for a general commitment of continued surgery referrals from another ophthalmologist for 
patients from the local community . . . .”  

.  The transaction in Hathaway did not 
involve the transfer of money, services or goods, and thus there was no remuneration.  But 
Hathaway does not state that some transfers of money, goods, or services are so slight as 
to not be of value.                                                       
anything  for  trip.    See  Tr. 1143-1144.    A  reasonable  juror  could  conclude  from  the 
testimony that the trip occurred and that Riedel had received renumeration from Ehlen. 

    Although there was sufficient evidence from which to conclude that Riedel received 
a kickback, there is insufficient evidence regarding when the trip occurred to tie that 
kickback to any specific violation of the FCA.  Riedel could do no better than to testify that 
the trip occurred either in 2008 or 2009.  The selection of any date within that two-year 
period by the jury would have been arbitrary.  And no claims for Medicare reimbursement 
occurring before the date of that trip could have been caused by that kickback or could be 

said to have resulted in a violation of the FCA due to the kickback.11  Because there is 
insufficient evidence from which to conclude that any particular false claim resulted from 
the New York City trip, judgment as a matter of law must be granted on behalf of 
defendants with respect to that trip.                                     
                         v.  Swarup Trips                                

    Defendants final set of claims with respect to sufficiency of the evidence pertain to 
trips paid for by Dr. Jitendra Swarup.  Defendants again do not cite any specific kickback 
event, which makes further analysis of this argument exceedingly difficult.  Like the claim 
regarding the provision of a private flight to Dr. Lindstrom by Dr. Link rather than by 
defendants directly, the Court concludes that there was a sufficient nexus between Swarup, 

Sightpath, and plaintiffs that a jury could reasonably have concluded that the trips were 
remuneration to doctors on behalf of defendants.                          

11 Plaintiffs did not seek recovery for any claims for Medicare reimbursement submitted 
by Riedel in 2010.  See Exhibit P-1223.                                   
                          E.  Damages                                    
    Defendants next challenge the damages calculations made by the jury.  These 

arguments pertaining to damages can be grouped into four categories.  First, defendants 
contend  that  the  actual  damages  suffered  by  the  United  States  are  far  less  than  the 
$43,694,641.71 found by the jury.  Second, defendants contend that statutory penalties 
should not be assessed with respect to most of the 64,575 false claims found by the jury.  
Third, defendants contend that the penalties that make up the bulk of the $487,048,705.13 
judgment constitute a violation of the Excessive Fines Clause.  Fourth, the amount of the 

judgment,  defendants  contend,  should  be  further  offset  against  settlement  amounts 
procured from other defendants.                                           
                   1.  Calculation of Actual Damages                     
    Defendants’  arguments  attacking  the  jury’s  calculation  of  actual  damages  are 
substantively identical to their arguments attacking the Court’s conclusions with respect to 

the appropriate measure of damages in this case.  To the extent that those arguments were 
rejected above, they are again rejected here for the reasons explained above. 
    However, because the Court concluded above that there was insufficient evidence 
admitted at trial from which to conclude that an undated New York City trip taken by Paul 
Ehlen and Dr. Riedel resulted in a false claim being presented to Medicare,  the judgment 

in this matter must be reduced to reflect the fact that damages and statutory penalties may 
no longer be attributed to that trip.                                     
    The jury was not asked to attribute a specific amount of damages or a specific 
number of false claims to any particular transaction found to be a kickback.  Therefore, the 
Court cannot say for certain how much in damages or how many false claims the jury 
attributed to the New York City trip.  Making matters still more complicated, the jury also 

found that Riedel had received two other kickbacks in late 2007 and 2008, and the jury 
attributed false claims to those other kickbacks.  It is not possible to determine from the 
verdict form with certainty which false claims would have been attributed to the other 
kickbacks and which to the New York City trip.                            
    In any event, because the trip was noted on the verdict form with the arbitrary date 
of January 1, 2009, and because plaintiffs sought relief for all false claims that were made 

within one year of that date that resulted from the kickback, the Court will assume that all 
claims for Medicare reimbursement submitted by Riedel in 2009 for which plaintiffs 
sought relief are attributable to the New York City trip.  This amounts to 258 claims and 
$359,592 in actual damages to Medicare.  Accordingly, the judgment in this matter must 
be reduced by $4,563,840.  This amount consists of statutory penalties of $13,508 for each 

of the 258 claims and $1,078,776 in trebled actual damages.               
                       2.  Statutory Penalties                           
    The FCA requires the assessment of an additional penalty, separate from damages, 
on each false claim.  The jury found that 64,575 false claims were submitted to Medicare 
as a result of kickbacks attributable to defendants (including the false claims related to the 

Riedel trip to New York City), resulting in a total penalty of $358,445,780.12  Separate 

12 Of the 64,575 false claims found by the jury, at least 410 were made on or after 
December 1, 2015.  These false claims are subject to a minimum penalty of $13,508, or a 
total of $5,538,280.  See 

.  The remaining 64,165 false claims are subject 
to the $5,500 minimum penalty established by 

(a)(9), for a total of 
from the arguments addressed above, defendants challenge the calculation of the number 
of false claims, and therefore the amount of penalties that should result from those false 

claims, in two respects.                                                  
    First, defendants argue that, because each cataract surgery would have generated at 
least  two  separate  claims to  Medicare,  a  “Facility  Fee”  (which included  the  cost  of 
Precision Lens products) and a “Physician Professional Fee” (which did not), assessing 
statutory penalties on each fee represents a double-counting of misconduct, since only one 
surgery will have been performed.  But penalties are assessed under the FCA per false 

claim presented to the United States resulting from defendants’ misconduct, not based on 
the number of surgeries or kickbacks or any other metric.                 
    Second, defendants point to several claims with unusually small or unusually large 
amounts requested in  reimbursement  from Medicare.   Defendants contend that these 
amounts do not correlate to the kinds of procedures in which Precision Lens products 

would have been used, suggesting that these entries may be the result of a coding error 
rather than a reflection of actual false claims made to the United States.  This argument is 
unavailing for at least two reasons.  First, evidence of the existence of these outlier claims 
and the methodology through which the claims were assembled was presented to the jury, 
which was entitled to make a factual determination regarding whether the relevant data 




$352,907,500.  The sum of these figures is $358,445,780.  The Court has already concluded 
that $3,485,064 must be subtracted from that amount due to judgment as a matter of law 
having been granted on all FCA claims arising out of the Riedel trip to New York City. 
entries represented false claims motivated by a kickback.13  Second, there appear to have 
been very few of these outlier claims.  See Exhibit P-1169b.  Defendants have identified 

no more than a handful.  Even if each of these actual damages from these claims (many of 
which are for only one dollar) were excluded, and even if no penalties were assessed on 
any of these claims, the amount of judgment would change minimally.  Moreover, any such 
changes would have no effect on this Court’s analysis of the amount of judgment under the 
Excessive Fines Clause.  Even if the Court were to conclude that the outlier claims should 
be removed, judgment would be altered to reflect the limits established by the Excessive 

Fines Clause, and those constitutional limits would not be affected by the removal of a very 
small number of claims amounting to only a very small fraction of the judgment amount. 
                        3.  Constitutionality                            
    After taking into account that judgment as a matter of law has been granted on the 
claim related to Riedel’s New York City trip, defendants remain responsible under the FCA 

for $482,484,865.13 in damages and penalties.  Of that amount, $43,335,049.71 consist of 
actual damages to the United States.  Another $86,670,099.42 in damages result from the 
mandatory trebling of the actual damages amount.  See 

(a)(1).  The 
remaining $352,479,716 consist of statutory penalties assessed for each claim for Medicare 
reimbursement found to be false.14                                        


13 The jury was spared from providing a yes-or-no verdict on each of the tens of thousands 
of allegedly false claims.  Therefore, it is impossible to say whether any particular claim 
for Medicare reimbursement was found by the jury to be true or false.     
14 This is the minimum amount in penalties that the FCA permits the Court to impose.  See 

(a)(1).  The FCA authorizes the Court to impose up to twice that amount 
in penalties.                                                             
    Defendants argue that the Excessive Fines Clause precludes the imposition of such 
a massive imposition of penalties.  The Court agrees.                     

    “The Excessive Fines Clause applies to civil penalties that are punitive in nature.” 
United States v. Aleff, 

 (8th Cir. 2014) (citation omitted).  Neither party 
questions, as this Court has already determined in another context in this proceeding, see 
Dkt. 1077 at 6-7, that the amount owed by defendants consists substantially of penalties, 
even though how much of the judgment is “remedial” and how much is “punitive” is a 
matter of dispute.  In any event, the Excessive Fines Clause applies to the judgment entered 

in this matter.                                                           
    “A  punitive  sanction  violates  the  Excessive  Fines  Clause  if  it  is  ‘grossly 
disproportional to the gravity of a defendant’s offense.’”  Aleff, 

 (quoting 
United States v. Moyer, 

 (8th Cir. 2002)).  The United States Court of 
Appeals for the Eighth Circuit has instructed district courts to consider a variety of factors 

in determining whether a penalty is grossly disproportional, including the reprehensibility 
of the defendant’s conduct, the relationship between the penalty and the harm to the victim, 
the  sanctions  in  other  cases  for  comparable  misconduct,  legislative  intent,  and  the 
defendants’ ability to pay.  

  The Supreme Court has suggested that the ratio of punitive 
damages to compensatory damages may provide a guidepost to district courts in conducting 

this inquiry, further stating “an award of more than four times the amount of compensatory 
damages might be close to the line of constitutional impropriety,” State Farm Mut. Auto 
Ins.  Co. v.  Campbell,  

  (2003)  (emphasis  added),  and  that  “[w]hen 
compensatory  damages  are  substantial,  then  a  lesser  ratio,  perhaps  only  equal  to 
compensatory damages, can reach the outermost limit” of constitutionality, 

  But the 
Supreme Court also has “consistently rejected the notion that the constitutional line is 

marked by a simple mathematical formula.”  BMW of North America, Inc. v. Gore, 

 (1996).                                                     
    The Court considers each of those factors in turn.  At the outset, however, the Court 
notes is mindful that this is not a sentencing.  The Court’s role in this proceeding is not to 
determine the appropriate punishment for defendants.  Instead, the Court is limited to 
determining what is the permissible punishment under the Excessive Fines Clause. 

               a.  Reprehensibility of Defendants’ Conduct               
    The parties dispute the degree of moral turpitude underlying defendants’ conduct.  
Defendants characterize Paul Ehlen as a person exerting strenuously to comply with the 
AKS who was foiled by his generosity towards “a small number of doctors who were his 
longtime friends and whose families were friends with his family.”  Dk. 1048 at 48.  This 

depiction, in the Court’s view, does not comport with the evidence at trial.  Nor is it a 
depiction accepted by the jury, which found Paul Ehlen (and Precision Lens) to be in 
knowing disregard of the AKS.  Defendants’ conduct also was not an isolated slip-up. The 
jury concluded that defendants had committed well over 150 violations of the AKS over a 
ten-year period.                                                          

    The AKS is not a technicality.  “Put simply, anti-kickback statutes are important 
pieces  of  the  governmental  healthcare  apparatus,  ensuring  that  claims  presented  for 
reimbursement  are  the  product  of  untainted  and  independent  medical  judgment.”  
State v. MedImmune, Inc., 

 (S.D.N.Y. 2018).  Indeed, the United 
States’s interest in preventing kickbacks is important enough that violations of the AKS 
sometimes constitute criminal violations punishable by up to 10 years in prison.  See 42 

U.S.C. § 1320a-7b.                                                        
    Although all misconduct under the AKS is serious, defendants’ misconduct is 
somewhat less severe in a few respects than the usual AKS case.  First, the judgment vastly 
overstates  the  benefit  that  defendants  derived  personally  from  the  misconduct.  
Reimbursement for Precision Lens products comprised only a small percentage of the cost 
of  any  surgery  for  which  doctors  sought  reimbursement,  and  the  profit  accruing  to 

Precision Lens from any sale to those doctors would represent only a percentage of that 
already small percentage.15  Defendants are wrong to suggest that the harm to the United 
States is capped by the amount Precision Lens profited from any misconduct.  But the 
amount  of  profit  is  relevant,  although  certainly  not  determinative,  in  assessing  the 
reprehensibility of conduct.                                              

    Second, as this Court explained above, the definition of remuneration provided for 
in the AKS includes the provision of anything of value for an amount other than fair market 
value.  This definition precludes defendants from contending that some benefits to doctors 
were too slight to constitute violations of the AKS, and therefore the FCA.  But the 
definition  of  remuneration  cuts  in  the  other  direction  when  the  reprehensibility  of 

defendants’ conduct is considered.  One example, addressed at length above, is that a doctor 
was offered a salad and soda at a Christmas party amounts to remuneration.  While the jury 

15 Defendants’ calculations suggest that Precision Lens would have accrued only about 
$1.3 million in profit from the sale of the products at issue.            
could reasonably conclude that violation of the FCA resulted from that remuneration,  but 
it is difficult to categorize that particular instance of conduct as reprehensible. 

    Third, there is truth to defendants’ argument that the penalties imposed in this matter 
are something of an accounting fluke.  If Medicare required only one claim per surgery 
rather  than  separate  claims  for  Facility  Fees  and  Physician  Professional  Fees,  the 
substantial penalty assessed against defendants would be reduced at least by half.  If that 
were so, the judgment in this matter would be reduced by over $175,000,000, even though 
nothing about the conduct of the defendants or the harm resulting to the United States 

would have changed.16                                                     
    Finally,  at  no  point  has  anyone  alleged  that  physical  harm  resulted  from  the 
misconduct.  See State Farm, 

 (identifying factors to be considered in 
evaluating the reprehensibility of the defendant’s conduct).  No patient is alleged to have 
undergone a procedure that would not otherwise have occurred.  Not one of the products 

sold by Precision Lens is alleged to have been defective.  This is not to minimize the harm 
that was caused to patients, who were entitled to services untainted by kickbacks, or to the 
United  States,  which  was  entitled  not  to  provide  reimbursement  for  those  services.  
Fortunately, however, those harms were not physical.                      



16 Even the United States seems to recognize that this quirk of Medicare reimbursement 
leads to an unwarranted result in this matter, as the United States now requests that statutory 
penalties be applied only to half of the claims found to be false.  This concession alone, if 
accepted, would result in the judgment being reduced from roughly $487 million to roughly 
$310 million.                                                             
                       b.  Harm to the Victim                            
    As addressed earlier, the appropriate measure of actual damages in this matter is the 

amount paid by the United States as reimbursement for claims found to be false.  This 
amount, after the exclusion of claims potentially based on the claim for which judgment as 
a matter of law was granted for defendants, is $43,335,049.71.  Added to those actual 
damages are other, harder-to-quantify harms.  These include, for example, the costs to the 
United States in investigating and litigating this action and the harms to patients resulting 
from any conflicts of interest between them and their doctors.  The Court will not attempt 

to  derive  an  exact  number,  but  the  harm  that  resulted  from  defendants’  conduct  is 
significant.                                                              
           c.  Ratio of Punitive Damages to Compensatory Damages         
    Calculating the ratio of punitive damages to compensatory damages in this matter 
is  not  straightforward.    Of  the  remaining  judgment,  $43,335,049.71  is  plainly 

compensatory.  That amount reimburses the United States for the amounts paid on false 
claims.  The remaining statutory penalties of approximately $355 million are plainly 
punitive.  But the trebled damages required by the FCA have been characterized as both 
compensatory and punitive, as “treble damages have a compensatory side, serving remedial 
purposes in addition to punitive objectives.”  Cook County, Ill. v. United States ex rel. 

Chandler, 

 (2003).  If the trebled damages in this matter were to be 
regarded as purely punitive, the ratio of punitive damages to compensatory damages would 
exceed 10-to-1.  If the trebled damages were to be regarded as purely compensatory, the 
ratio of punitive damages to compensatory damages would fall to just below 3-to-1.  The 
true ratio in this matter, after trebled damages have been divided between compensatory 
and punitive aspects, lies somewhere between those two figures.           

                        d.  Legislative Intent                           
    The Eighth Circuit and other courts have identified legislative intent as a relevant 
factor in determining whether a penalty amounts to a violation of the Excessive Fines 
Clause.  See Qwest Corp. v. Minnesota Public Utilities Commission, 

 
(8th Cir. 2005).  This Court would not be the first to observe that this is something of an 
oddity.  Where legislative intent is used to help guide the analysis of the Excessive Fines 

Clause, “Congress both levies the fine and, at least as a presumptive matter, determines its 
constitutionality,”  which  “[s]eems  a  bit  like  letting  the  driver  set  the  speed  limit.”  
Yates v. Pinellas Hematology & Oncology, P.A., 

 (11th Cir. 2021) 
(J. Newsom, concurring).  The legislative-intent factor is also tautological when applied to 
statutory penalties.  Every statutory penalty evinces the intent of the legislature to impose 

that penalty.  The legislature passed the statute, after all.             
    Although the penalties for FCA violations are established by Congress, there is at 
least one indication from Congress itself that the penalties resulting from defendants’ 
misconduct might be overly severe.  If defendants had been charged criminally with 
violations of § 1320a-7b(b) for every transaction found by the jury to be a kickback, and 

found guilty of those violations, which is by no means a certainty, in light of the greater 
burden of proof on the United States in criminal proceedings, the maximum fine that this 
Court could have imposed for the misconduct would have been a $100,000 fine on each 
count, or about $15.5 million for each defendant.  Indeed, the maximum fine that may be 
assessed for any federal criminal violation (except where the statute of conviction itself 
imposes a larger fine) is only $250,000 per offense for individuals or $500,000 per offense 

for organizations—that is, a fine of about $38.7 million for Paul Ehlen and a fine of $77.5 
million for Precision Lens.  See 

.  The minimum penalties called for under 
the FCA, even after excluding trebled damages, which should also be regarded as partly 
punitive, amount to more than $350 million in this case.  Cf. United States v. 817 N.E. 29th 
Drive, Wilton Manors, Fla., 

, 1309 n.9 (11th Cir. 1999) (observing that “[a] 
forfeiture far in excess of the statutory fine range . . . is likely to violate the Excessive Fines 

Clause.”).                                                                
                     e.  Defendants’ Ability to Pay                      
    There is not a great deal of evidence in the record regarding defendants’ ability to 
pay the judgment entered in this matter.  The evidence that has been presented to the Court, 
however, suggests that neither Precision Lens nor Paul Ehlen’s estate will be able to satisfy 

even the compensatory damages in this matter, much less any penalties imposed in addition 
to those compensatory damages.  Kathryn Weitzel Ehlen attests that Paul Ehlen’s estate 
possesses assets of approximately $25 million, not including Paul Ehlen’s interest in 
Precision  Lens.    See  Declaration  of  Kathryn  Weitzel  Ehlen,  Dkt. 1073-1.    William 
Henneman, chief executive officer of Precision Lens, estimates the current value of the 

company to be less than $5 million.  See Declaration of William Henneman, Dkt. 1073-2.  
In light of the evidence produced at trial, neither representation is implausible. 
           f.  Sanctions in Other Cases for Comparable Misconduct        
    Finally, the Court is tasked with reviewing the sanctions assessed in other cases for 

similar misconduct.  Performing this task is difficult in the context of this litigation for four 
reasons.                                                                  
    First, it is not entirely clear what “comparable misconduct” is supposed to entail.  
For  example,  do  all  claims  arising  under  the  FCA  involve  comparable  misconduct?  
Perhaps all claims arising under the FCA premised on violations of the AKS constitute 
“comparable  misconduct.”    Or  all  claims  arising  under  the  FCA  in  which  penalties 

comprise such a substantial portion of the overall monetary judgment may be deemed 
“comparable misconduct.”  Certainly, cases in which a medical supplier is found to have 
supplied purchasers with kickbacks in the form of trips, meals, and other enticements 
would be “comparable misconduct.”  Different scopes of comparison would potentially 
yield different results regarding the constitutional limits on damages imposed by other 

courts.                                                                   
    Second, having presided over a trial that lasted for nearly two months, the Court is 
very  familiar  with  defendants’  conduct.    By  contrast,  in  determining  the  relative 
reprehensibility of the conduct of defendants in other cases, the Court must rely on the brief 
synopses of evidence supplied in case reports.  This is a very imperfect substitute for having 

reviewed thousands of documents and listened to weeks of testimony.       
    Third, in those cases that appear most closely comparable to this litigation, few 
courts  have  concluded  that  the  penalties  imposed  exceed  the  constitutional  barrier.  
Sometimes this has been because the penalties required by the FCA are found not to violate 
the Excessive Fines Clause.  Other times, the United States has agreed to seek a lesser 
monetary judgment in an effort to evade a constitutional challenge.17  While it would not 

be accurate to conclude that the amounts sought by the United States in those cases 
necessarily represent the constitutional limit on penalties that could have been imposed in 
those cases, to say that the full imposition of penalties required by the FCA would have 
been a constitutional violation also is not an apt conclusion.  Unfortunately for this case, 
the United States’s decision to seek lesser amounts in judgment in prior litigation deprives 
other courts of the benefit of analysis regarding whether the penalties required by the FCA 

would have been a violation of the Excessive Fines Clause in those cases.  
    With those caveats, this Court briefly summarizes the monetary awards imposed in 
litigation similar to this matter, with a particular focus on those cases identified by the 
parties as comparable to this litigation.                                 


17 That is the case here as well.  Plaintiffs are now seeking only about $310 million rather 
than the $487 million currently reflected by the judgment.  Plaintiffs contend that “[i]t is 
uncontroversial that the [United States] possesses the discretion to seek a lower penalty 
amount in the context of a constitutional analysis.”  Dkt. 1059 at 46.  But it is far from 
obvious to the Court that either the United States or the Court has this discretion to ignore 
the penalties plainly required on the face of the FCA following a jury verdict—except, of 
course, insofar as the statutory penalties are unconstitutional.  Nor are the invocations by 
the United States of “prosecutorial discretion” convincing.  Undoubtedly it was withing the 
discretion of the United States not to prosecute tens of thousands of claims under the FCA 
against the defendant.  But it did prosecute those claims.  Prosecutorial discretion does not, 
as a general matter, entail the privilege of seeking relief outside the boundaries of the law. 

Of  course,  if  the  United  States  believes  the  penalties  imposed  by  the  FCA  to  be 
unconstitutional in the context of this litigation, then it has an obligation not to seek those 
penalties to the extent that the penalties violate the Excessive Fines Clause.  But in that 
case,  the  United  States  should  be  forthright  about  why  a  lesser  punitive  sanction—
particularly a sanction that is not permitted on the face of the statute—is being sought, 
rather than framing its constitutional obligations as noblesse oblige.    
                            i.  Tyson                                    
    Plaintiffs identify United States ex rel. Tyson v. Amerigroup Illinois, Inc., 

 (N.D. Ill. 2007) as comparable to the present matter.  Tyson involved false 
claims for Medicaid reimbursement found to violate the FCA.  The monetary penalties 
imposed in that litigation were roughly similar to the penalties imposed in this case, $48 
million in actual damages and an overall monetary judgment of $334 million based on 
18,130 false claims.  The Court in Tyson concluded that the penalty imposed in that matter 
did not violate the Excessive Fines Clause.                               

    Despite the facial similarities with this litigation, Tyson is in some ways a poor 
comparator for this lawsuit.  First, the claims in Tyson related not to kickbacks by a medical 
supplier, but to discrimination against unhealthy patients by an insurance company.  The 
conduct of defendants in that matter—“a several years long, institution-wide goal to fleece 
Defendants’ pockets at the expense of the United States, the Medicaid system, and . . . 

pregnant women and ‘unhealthies,’”  Tyson, 488 F. Supp. 2d at 745— was, in this Court’s 
view, more morally opprobrious than the conduct at issue in this case.  Second, the 
defendant in Tyson directly profited from the misconduct more so than Precision Lens 
profited from the misconduct at issue in this litigation. 18  Third, although the conduct in 
Tyson appears to have been somewhat more reprehensible than the conduct in this case. 


18 It is impossible, however, to know to what extent the Tyson defendant profited from the 
misconduct.  The defendant in Tyson boosted its profits by discriminating against unhealthy 
patients and thereby skewing the risk profile of the pool of insureds.  The measure of profit 
resulting from the scheme, then, was the difference between the profits actually accrued by 
the defendant and the profits that would have accrued if the defendant had not acted in a 
discriminatory manner.  See Tyson, 

.                
The penalties imposed on the defendant in that matter were approximately $160 million 
less than the penalties imposed under the FCA in this case (with nearly identical actual 

damages to the United States).  Fourth, the penalty imposed in Tyson, although large, was 
by no means crippling for the defendant.  See 

.                 
    In each of these respects, Tyson differs substantially from the current litigation, 
limiting the value of Tyson as a comparator case.  The Court, therefore, is reluctant to 
conclude that the judgment entered in Tyson would also be constitutional if entered in this 
case.                                                                     

                          ii.  Drakeford                                 
    In United States ex rel. Drakeford v. Tuomey, the United States Court of Appeals 
for the Fourth Circuit concluded that a judgment under the FCA of $237,454,195—of 
which $39,313,065 represented actual damages, $78,626,130 represented trebled damages, 
and $119,515,000 represented penalties— did not violate the Excessive Fines Clause.  

 (4th Cir. 2015).  Drakeford is helpful insofar as the Fourth Circuit appears 
to have concluded that the penalty imposed in that matter, although not constitutionally 
excessive, was approaching the limits of what the Excessive Fines Clause might permit.  
See 

 (noting that “the ratio of punitive damages to compensatory damages is 
approximately 3.6-to-1, which falls just under the ratio the Court deems constitutionally 

suspect.”).  As in this case, but unlike the penalty in Tyson, the penalty imposed in 
Drakeford was likely to have crippling effects on the defendant.  See 

 (J. Wynn, 
concurring) (“But I write separately to emphasize the troubling picture this case paints: An 
impenetrably complex set of laws and regulations that will result in a likely death sentence 
for a community hospital in an already medically underserved area.”).  The violations of 
the FCA in Drakeford were premised on violations of the Stark Law, 42 U.S.C. § 1395nn, 

not the AKS, but they are roughly comparable to the claims in this proceeding in terms of 
reprehensibility.                                                         
    While Drakeford is not a perfect comparator to this case, it is a closer comparator 
than the other cases examined in this section.  The amended judgment imposed in this 
matter is somewhat in line with the judgment imposed in Drakeford.  To be constitutionally 
permissible, the Court has entered a slightly lower judgment amount despite slightly higher 

actual damages resulting from the conduct of defendants in this matter.  The resulting ratio 
of punitive damages to actual damages awarded in this matter is marginally lower in this 
matter  than  in  Drakeford.    As  explained  by  the  Supreme  Court,  however,  “[w]hen 
compensatory  damages  are  substantial,  then  a  lesser  ratio,  perhaps  only  equal  to 
compensatory damages, can reach the outermost limit” of constitutionality.  State Farm, 

.  Accordingly, this Court has placed more emphasis on this statement than 
the Drakeford court.                                                      
                          iii.  Montcrieff                               
    The defendant in United States ex rel. Montcrieff v. Peripheral Vascular Associates, 
P.A., was found to have billed Medicare for services that it did not perform, thereby 

violating the FCA.  

, 409 (W.D. Tex. Jan. 9, 2023).  A jury awarded 
$2,728,199 in actual damages.  

.  Although the defendant faced a minimum 
statutory penalty of $40,590,000 in addition to trebled actual damages, the United States 
sought the imposition of only about half that amount in penalties.  

.  The court in 
Montcrieff concluded that this reduced demand did not result in a judgment exceeding the 
boundaries of the Excessive Fines Clause.  Because of the substantially lower amount 

awarded in actual damages, Moncrieff is a poor comparator for this case for two reasons, 
the substantially lower amount awarded in actual damages as well as the difference in 
underlying misconduct.                                                    
                            iv.  Lutz                                    
    In United States ex rel. Lutz v. BlueWave Healthcare Consultants, Inc., defendants 
performed unnecessary medical tests and later sought reimbursement for those tests under 

Medicare, resulting in total damages of approximately $17 million to Medicare. No. 9:14-
CV-00239-RMG, 

, at *2 (D.S.C. May 23, 2018),  The court in Lutz 
concluded that the imposition of approximately $64 million in statutory penalties did not 
exceed the limits of the Excessive Fines Clause.  

.  Lutz is not a useful comparator, 
however, because of the differences in underlying conduct and because the actual damages 

and penalties in that matter were substantially less than those in this case.  Moreover, the 
brief analysis in Lutz regarding the Excessive Fines Clause appears to be excessively 
deferential to the penalties imposed by Congress.                         
                       v.  Bickel and Mackby                             
    Defendants cite two cases in which the United States sought penalties drastically 

lower than those provided for by the FCA, United States v. Bickel, No. 02-3144, 

 (C.D. Ill. Feb. 22, 2006); and United States v. Mackby, 

 (9th 
Cir. 2003).  However, neither Bickel nor Mackby is a helpful comparator for precisely the 
reason that defendants cite those cases. The United States voluntarily agreed to a lesser 
recovery in those proceedings, thereby averting more significant challenges under the 
Excessive Fines Clause.  Because of litigation decisions made by the United States in those 

cases, Bickel and Mosby are not useful guides here for determining when a statutory penalty 
violates the Excessive Fines Clause.                                      
                          g.  Conclusion                                 
    After consideration of the appropriate factors—the reprehensibility of defendants’ 
conduct, the harm to the victim, the ratio of punitive damages to actual damages, legislative 
intent, the financial status of the defendants, and the penalties imposed in similar cases—

the Court concludes that the Excessive Fines Clause permits recovery of no more than 
$216,675,248.55 in this matter.  This amount consists of $43,335,049.71 of actual damages, 
$86,670,099.42 in trebled damages, and $86,670,099.42 in penalties.  This amount does 
not include post-judgment interest, statutory attorneys’ fees, or other taxable costs. 
    While no single factor was determinative in reaching that conclusion, the Court 

makes the following observations.  The amount of the judgment represents five times the 
actual damages imposed in this case.  If the portion of the judgment amount attributable to 
compensatory damages were limited to actual damages, the ratio of punitive damages to 
actual damages would be precisely 4-to-1.  Alternatively, if a relator’s share of 15 percent 
($32,501,287.28) were added to the actual damages figure ($43,335,049.71) and regarded 

as  compensatory,  the  punitive  damages  ratio  to  actual  damages  ratio  would  be 
approximately 1.85-to-1.                                                  
    This latter ratio is somewhat less than that found in many of the cases examined 
above.  But as the Supreme Court has observed, “[w]hen compensatory damages are 
substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the 
outermost limit of” what the constitution permits.  State Farm, 

.  The 

compensatory damages assessed in this matter, however calculated, are notably severe. 
Additional penalties well exceeding those compensatory damages remain imposed on top 
of the compensatory damages.  The conduct for which defendants were found liable 
warrants such a judgment.  The Court is mindful, however, that an amount greater than the 
amount imposed here threatens to become grossly disproportional to the gravity of the 
offense.  Aleff, 

.                                         

                      4.  Offset from Settlement                         
    Finally, defendants requested that the original amount of judgment in this matter be 
offset by the full amount for which Sightpath, Tiffany, and Swarup paid to the United States 
in settlement for claims related to the claims litigated against Paul Ehlen and Precision 
Lens.  Plaintiffs had “no objection” to applying a partial settlement offset of $2.481 million. 

Dkt. 1035 at 7.  The Court deducted this amount from the judgment entered in this matter, 
while reserving the question of whether a greater amount should be deducted. See Dkt. 
1042 at 4-5.                                                              
    Neither  party  has  vigorously  litigated  the  question  subsequently.    Defendants 
reference it briefly in their memorandum in support of the motion for post-judgment relief, 

see Dkt. 1048 at 26, and defendants do not provide any argument in their responsive brief.  
As the offset of additional settlement amounts would not alter the Court’s conclusion 
regarding the amount of judgment that could be imposed in this proceeding, the issue is 
largely moot.  And, after rereviewing defendants’ initial arguments regarding offset a 
second time, the Court concludes that defendants have not adequately established that more 
than  $2.481  million  of  the  settlement  amounts  is  attributable  to  conduct  for  which 

defendants were found liable in this matter.  The Court, therefore, would not reduce the 
amount of judgment further as a result of that settlement even if the resolution of the 
Excessive Fines Clause claim did not render the amount of settlement offset moot. 

    Based on the foregoing analysis and all the files, records, and proceedings herein, 

IT IS HEREBY ORDERED THAT:                                                
    1.   Defendants’ motion for post-judgment relief, Dkt. 1047, is GRANTED IN 
         PART and DENIED IN PART, as follows:                            
         a.   Defendants’ motion for judgment as a matter of law is GRANTED 
              regarding the claim related to the trip to New York City of Patrick 
              Riedel occurring on or about January 1, 2009.              

         b.   The motion is GRANTED insofar as the penalties imposed upon the 
              defendants under the False Claims Act constitute a violation of the 
              Excessive Fines Clause.                                    
         c.   The motion is DENIED in all other respects.                
    2.   The judgment in this matter is AMENDED to reflect a judgment amount of 

         $216,675,248.55, not including post-judgment interest, statutory attorneys’ 
         fees, or other taxable costs.                                   
    LET JUDGMENT BE ENTERED ACCORDINGLY.                                 

Dated: February 8, 2024         s/Wilhelmina M. Wright                   
                                Wilhelmina M. Wright                     
                                United States District Judge             

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                


United  States  of  America  ex  rel.  Kipp  Case No. 13-cv-3003 (WMW/DTS) 
Fesenmaier,                                                              

                        Plaintiff,          ORDER                        

v.                                                                       

The Cameron-Ehlen Group, Inc., doing                                     
business as Precision Lens; and Kathryn                                  
Weitzel Ehlen, personal representative for                               
the Estate of Paul C. Ehlen,                                             

                      Defendants.                                        


    Judgment has been entered in this matter against defendants The Cameron-Ehlen 
Group, Inc. (“Precision Lens”) and Paul Ehlen in the amount of $487,048,705.13, not 
including post-judgment interest, statutory attorneys’ fees or other taxable costs.  See Dkt. 
1043.  This matter is now before the Court on the motion of Precision Lens and defendant 
Kathryn Weitzel Ehlen (in her capacity as personal representative for the Estate of Paul 
Ehlen)  for  post-judgment  relief.1   See  Dkt.  1047.    In  their  motion,  defendants  seek 
(1) judgment as a matter of law under Rule 50(b) of the Federal Rules of Civil Procedure; 
(2) to the extent that judgment as a matter of law is not granted, a new trial under Rule 59 
of the Federal Rules of Civil Procedure; and (3) to the extent that neither a new trial nor 

1 Paul Ehlen died shortly after judgment was entered in this matter, and his wife, Kathryn 
Weitzel Ehlen, was substituted as a party pursuant to Rule 25(a)(1) of the Federal Rules of 
Civil Procedure.  See Dkt. 1079.                                          
judgment as a matter of law is granted, a reduction in the monetary judgment on the 
grounds that the monetary award violates the Excessive Fines Clause2 of the federal 

constitution.                                                             
    For the reasons addressed below, defendants’ motion is granted in part and denied 
in part—specifically, the request for a new trial is denied, the request for judgment as a 
matter of law is denied with respect to all but one of the transactions found by the jury to 
be a kickback, and the request for a reduction in the judgment is granted, although not to 
the extent sought by defendants.  The judgment previously entered in this matter will be 

amended to reflect an award of $216,675,248.55, not including post-judgment interest, 
statutory attorneys’ fees, or other taxable costs.  This is the maximum award permitted by 
the constitution in this case.                                            
                         BACKGROUND                                      
    After a two-month trial, a jury concluded that Precision Lens and Paul Ehlen 

violated  the  Anti-Kickback  Statute  (“AKS”),  42  U.S.C.  §  1320a-7b,  by  offering 
remuneration  in  the  form  of  trips,  meals  and  other  items  of  value  to  dozens  of 
ophthalmologists over a 10-year period.  The ophthalmologists, in turn, purchased medical 
supplies from Precision Lens and later sought reimbursement from Medicare for medical 
procedures conducted using those items.  The jury concluded that, because the requests for 


2 Defendants’ constitutional challenge also arises under the Due Process Clause of the Fifth 
Amendment,  but  defendants  do  not  distinguish  in  their  briefing  between  the  two 
constitutional provisions, and the legal analysis under both provisions appears to have been 
treated  largely  the  same by  courts  in  similar  cases.    See,  e.g.,  United  States ex  rel. 
Drakeford v. Tuomey, 

 (4th Cir. 2015).  For simplicity, the Court will 
refer throughout this order only to the Excessive Fines Clause.           
Medicare reimbursement did not disclose that the AKS had been violated with respect to 
the  purchase  of  supplies  used  during  the  medical  procedures,  those  requests  for 

reimbursement violated the False Claims Act (“FCA”), 

.  The jury 
also concluded that Precision Lens and Paul Ehlen had caused the false claims to be 
submitted to Medicare or had caused records or statements to be made or used in support 
of the false claims.  According to the jury, 64,575 false claims were submitted to Medicare 
due to Defendants’ conduct, resulting in $43,694,641.71 in damages to Medicare.  See 
Dkt. 985 at 38-39 (verdict form).                                         

    The Court subsequently directed that judgment be entered against Precision Lens 
and Paul Ehlen in the amount of $487,048,705.13.  Of that amount, less than one tenth 
($43,694,641.71) represented actual damages to the United States.  That actual-damages 
amount was then trebled pursuant to 

(a)(1), resulting in approximately 
$131 million in trebled damages.  The remaining three quarters of the judgment amount, 

or approximately $358 million, represented statutory penalties assessed for each of the 
64,575  requests  for  Medicare  reimbursement  found  by  the  jury  to  be  false  claims.  
Approximately $2.5 million was deducted from the judgment amount due to settlements 
from other parties on claims related to the conduct at issue in this proceeding.3 





3 The more precise calculation of the amount of judgment can be found in the Court’s 
May 12, 2023 Order. Dkt. 1042.                                            
                           ANALYSIS                                      
    Defendants challenge the judgment on many grounds.  Those challenges can be 

divided into four categories:  First, defendants contend that the Court erred in several 
respects when interpreting the FCA and AKS and that, absent those errors, the result of this 
case would have been different—either because summary judgment would have been 
granted in their favor or because the jury would have been instructed differently and, 
therefore, reached a different conclusion.  Second, defendants contend that the Court erred 
in its handling of several evidentiary issues that arose before and during trial.  Third, 

defendants contend that there was insufficient evidence admitted at trial from which the 
jury could reasonably conclude that defendants had violated the FCA—or, there was 
insufficient evidence from which to conclude that defendants had violated the FCA with 
respect to many of the specific transactions found by the jury to be kickbacks.  Fourth, 
defendants challenge the calculation of damages and the amount of judgment, including an 

argument that the punitive portion of the judgment exceeds the amount permitted by the 
Excessive Fines Clause.                                                   
                      A.  Standards of Review                            
    Rule 50(b) of the Federal Rules of Civil Procedure governs renewed motions for 
judgment as a matter of law.  “In ruling on the renewed motion, the court may: (1) allow 

judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct 
the entry of judgment as a matter of law.”  Fed. R. Civ. P. 50(b).  A renewed motion for 
judgment as a matter of law may be granted only if “‘a reasonable jury would not have a 
legally sufficient evidentiary basis’” to return the verdict that it reached.  Bavlsik v. Gen. 
Motors, LLC, 

 (8th Cir. 2017) (quoting Fed. R. Civ. P. 50(a)(1)).  In 
deciding a motion for judgment as a matter of law, the court must view the evidence in the 

light most favorable to the party who prevailed before the jury, making all reasonable 
inferences in that party’s favor.  

                                    
    Rule 59 governs motions for a new trial.  Following a jury trial, on the motion of 
any party, a district court may grant a new trial on all or some of the issues.  See Fed. R. 
Civ. P. 59(a)(1)(A).  But “a district judge is not free to reweigh the evidence and set aside 
the  jury  verdict  merely  because  the  jury  could  have  drawn  different  inferences  or 

conclusions or because judges feel that other results are more reasonable.”  King v. Davis, 

 (8th Cir. 1992) (citation omitted). The “trial judge may not usurp the 
functions of a jury.”  White v. Pence, 

 (8th Cir. 1992) (quotation omitted).  
A new trial is warranted only when “the verdict was so contrary to the evidence as to 
amount to a miscarriage of justice.”  Butler v. French, 

 (8th Cir. 1996). 

                   B.  Legal Standards for Liability                     
                            1.  Intent                                   
    To prove a violation of the AKS, a plaintiff must establish that the remuneration 
offered or paid by the defendant was intended “to induce” the payee to purchase, lease, or 
order—or arrange for or recommend purchasing, leasing, or ordering— any good, facility, 

service, or item, or to refer an individual to a person for the furnishing of any item or service.  
See 42 U.S.C. § 1320a-7b(b)(2).  “The AKS’s plain language thus makes it unlawful for a 
defendant to pay a kickback with the intent to induce a referral, whether or not a particular 
referral results.”  United States ex rel. Parikh v. Citizens Med. Ctr., 

 (S.D. Tex. 2013).                                                     

    Throughout this litigation, the parties have disputed whether the AKS requires that 
intent to induce purchases be the primary motivation of the remuneration for liability to 
attach, or whether it is sufficient that the intent to induce purchases was one motivation of 
the remuneration  (perhaps among many).   When addressing the  parties’ motions for 
summary judgment, the Court surveyed the case law of the several appellate courts that 
have considered the issue and found that each of those courts had concluded that an AKS 

violation exists if one purpose of the remuneration was to induce purchases, even if other 
legitimate purposes for the remuneration also existed.  See United States v. Borrasi, 

 (7th Cir. 2011) (collecting cases from the Third, Fifth, Ninth, and Tenth 
Circuits and rejecting the argument that inducement must be “the primary motivation 
behind the remuneration”); United States ex rel. Lutz v. Mallory, 

 (4th 

Cir. 2021) (similarly adopting the one-purpose standard rather than the primary-purpose 
standard).                                                                
    Defendants continue to maintain that the AKS requires that the primary motivation 
of the remuneration was to induce purchases.  Defendants’ argument is preserved for 
appeal, but the Court continues to be persuaded that the appropriate standard on intent was 

applied in this matter for the reasons explained in the Court’s January 12, 2021 order.  See 
Dkt. 722 at 16-19.                                                        
                          2.  Causation                                  
    Defendants raise essentially two claims with respect to the causation standard 

applied by the Court in this matter.  First, relying on United States ex rel. Cairns v. D.S. 
Medical LLC, 

 (8th Cir. 2022), defendants argue that plaintiffs were required 
to establish but-for causation in proving a violation of the AKS.  But as more fully 
addressed in this Court’s January 4, 2023 order, the causation standard described in Cairns 
applies only to claims governed by 42 U.S.C. § 1320a-7b(g).  See Dkt. 842 at 1-7; Cairns, 

 (“Our ruling today is narrow.  We do not suggest that every case arising 

under the False Claims Act requires a showing of but-for causation.”).    
    Second, defendants object to what they characterize as plaintiffs’ “taint theory” of 
establishing causation.  On defendants’ version of events, plaintiffs led the jury to believe 
that any request for Medicare reimbursement submitted within one year of an alleged 
kickback—the so-called “taint period”—may be presumed to have been caused by the 

kickback and therefore unlawful.  But plaintiffs were not permitted to argue any such thing. 
As the Court explained in a previous order, “‘[t]emporal proximity between a kickback and 
a Medicare claim, without more, is insufficient to establish the requisite causal link under 
the AKS.’”  Dkt. 722 at 27 (quoting United States ex rel. Greenfield v. Medco Health 
Solutions, Inc., 

 (3d Cir. 2018)).                         

    To be sure, for most (although not all) of the alleged kickbacks, the United States 
did seek recovery for any requests for Medicare reimbursement that were submitted by 
doctors in the year following the alleged kickback.  But the strategic decision to seek 
recovery for one year of Medicare claims following the alleged kickbacks reasonably 
reflected that temporal proximity, although not sufficient by itself to establish causation, 
was nevertheless relevant.  All else being equal, claims for Medicare reimbursement made 

very shortly after a kickback would be more likely to have been caused by that kickback 
than claims for Medicare reimbursement made many years after the fact.  Plaintiffs would 
inevitably have had a more difficult time, all else being equal, establishing causation on 
claims made more than one year after an alleged kickback event.  Reasonably, then, 
plaintiffs limited their case for the most part to requests for Medicare reimbursement that 
occurred within one year of the alleged kickback event.  But for each allegedly false claim, 

regardless of when it occurred, plaintiffs were required to establish proximate causation, 
not merely temporal proximity.                                            
                           3.  Damages                                   
     The FCA provides for the recovery of “damages which the [United States] sustains 
because of” a false claim.  

(a).  Plaintiffs argue that the appropriate 

measure of damages in this matter is the full amount of each Medicare claim paid by the 
United States that was found by the jury to be false.  The rationale for this argument is 
straight forward.  Because doctors are required to certify that they are in compliance with 
the AKS, had the doctors (truthfully) refused to certify that they were in compliance with 
the AKS with respect to any particular claim for Medicare reimbursement, that claim for 

reimbursement never would have been approved.  Applying plaintiffs’ logic, every penny 
paid by the United States in reimbursement of false claims amounts to actual damages that 
are recoverable by the United States under the FCA.                       
    Defendants offered several alternative theories for calculating damages.  One theory 
is that the United States’s actual damages were zero, because every one of the medical 

procedures for which reimbursement was sought was medically necessary and, therefore, 
would have been reimbursed anyway.  Another theory is that actual damages should be 
limited, at most, to the profits that accrued to Precision Lens from the sales of lenses and 
viscoelastic tainted by kickbacks.  A third theory separates the requests for Medicare 
reimbursement into claims for Physician Professional Fees and claims for Facility Fees—
defendants objected to either fee being recoverable. But defendants especially objected to 

the Physician Professional Fees being recoverable because no portion of that fee served 
directly as reimbursement for the purchase of Precision Lens products.    
    This Court agreed with plaintiffs that the full amount of the claims—including the 
portions attributable to Physician Professional Fees—were recoverable as actual damages 
in his matter.  See Dkt. 842 at 7-12.  The rationale for that decision is set forth more fully 

in this Court’s January 4, 2023 order and will not be revisited here, except to state that it is 
well-established that the appropriate measure of damages is the full value of the false 
claims paid by the United States.  See, e.g., United States v. Rogan, 

 (7th 
Cir. 2008); Teva Pharmaceuticals USA, Inc., No. 20-11548-NMG, 

, 
at *5 (D. Mass. Oct. 11, 2022).                                           

                        4.  Jury Instructions                            
    Finally, defendants object to several of the final instructions given to the jury and 
argue that, because of supposed errors in those instructions, a new trial should be granted.  
“[A] district court has broad discretion in instructing the jury, and jury instructions do not 
need to be technically perfect or even a model of clarity.”  B & B Hardware, Inc. v. Hargis 
Indus., Inc., 

 (8th Cir. 2001) (citations and internal quotation omitted).  

A new trial based on erroneous jury instructions “is necessary only when the errors misled 
the jury or had a probable effect on the jury’s verdict.”  Slidell, Inc. v. Millennium Inorganic 
Chemicals, Inc., 

 (8th Cir. 2006) (citation omitted).  
                         i.  AKS Instruction                             
    As explained above, defendants have argued that the AKS requires that, for liability 
to attach, the intent to induce purchases must be the primary motivation of the remuneration.  

The Court rejected this argument.  As a result, the jury’s instructions did not follow 
defendants’ proposed primary-motivation standard.  Defendants renew their argument that 
the jury instructions were erroneous in this regard.  That argument is rejected for the same 
reasons that defendants’ underlying argument regarding the appropriate standard of intent 
was rejected.                                                             

    Defendants similarly object that the phrase “in exchange for” was omitted from the 
Court’s final instruction on the AKS, arguing this phrase should have been included 
because it would have reinforced what they believe to be the correct primary-purpose 
standard.  As the Court has explained, the primary-purpose standard is not a correct 
statement of the law, and any proffered instruction reinforcing that incorrect understanding 

would have been an error.                                                 
    Finally, defendants argue that the jury should have been instructed that a hope or 
expectation of future business from physicians does not by itself result in AKS liability.  
The Court believes that the definition of remuneration provided to the jury adequately 
established the boundaries of liability under the AKS and that no clarifying instruction was 
necessary.                                                                

                        ii.  FCA Instruction                             
    Most of defendants’ objection to the final jury instruction on the FCA pertains to 
the appropriate standard of causation under the FCA, with defendants asserting that the 
jury should have been instructed that the but-for standard set forth in Cairns applies in this 
matter.  For the reasons addressed above, the Court rejects this argument that but-for 
causation is the appropriate standard in this litigation and concludes that the jury was 

instructed correctly regarding causation.                                 
    Defendants also argue that the Court provided an inaccurate description of the 
concept of materiality to the jury.  The definition of materiality provided to the jury derived 
directly from Universal Health Services, Inc. v. United States ex rel. Escobar, 

 
(2016), and was an accurate and neutral summarization of the holding of that case. 

                          iii.  Damages                                  
    As explained above, the Court determined that the appropriate measure of damages 
in this proceeding is the full amount paid by the United States for each false claim resulting 
from  a  kickback.    See  Dkt.  722  at 7-10  (order  on  motions  for  summary  judgment).  
Defendants argue that this conclusion regarding the appropriate measure of damages is 

wrong and that, because of the error, the jurors were instructed improperly on how to 
calculate damages in this matter.  Because the Court does not believe its conclusion 
regarding damages to be wrong, the Court similarly does not believe that there was any 
error in the damages instruction that was given to the jury.              
                        iv.  Relator’s Award                             
    The jurors were instructed that “[y]ou are not to allow the possibility of a relator’s 

share of the recovery enter into your deliberations about whether, or the extent to which, 
the United States is entitled to monetary damages.”  Jury Instruction 18.  Defendants 
objected  to  the  instruction,  arguing  that  the  jurors  should  have  been  informed  that 
Fesenmaier and his attorneys had a pecuniary interest in the outcome of the litigation. 
    The jury instruction given was appropriate, and the instruction that defendants 
preferred  would  have  been  inappropriate.    That  Fesenmaier  stood  to  benefit  from  a 

favorable outcome in this case is wholly irrelevant to the questions presented to the jury: 
whether, and to what extent, Precision Lens or Paul Ehlen violated the FCA.  See United 
States ex rel. Feldman v. Van Gorp, No. 03 CV 8135 (WHP), 

, at *5 
(S.D.N.Y. July 8, 2010).  Nor was it relevant—or even, for that matter, unusual—that the 
attorneys of one party stood to benefit from a favorable outcome.  The jury was instructed 

correctly to ignore the issue.                                            
                       C.  Evidentiary Issues                            
    Defendants’ next category of post-judgment arguments pertains to decisions made 
by  the  Court  regarding  the  admissibility  of  evidence  at  trial.    None  of  defendants’ 
arguments are availing.                                                   

                   1.  Evidence Related to Materiality                   
    In  2010,  both  the  U.S.  Department  of  Health  and  Human  Services  Office  of 
Inspector  General (“HHS-OIG”)  and  the  Centers  for  Medicare  &  Medicaid  Services 
(“CMS”) were presented with complaints that Precision Lens had violated the AKS.  The 
HHS-OIG elected not to investigate the complaints, and the CMS continued to pay claims 
for Medicare reimbursement for procedures in which Precision Lens products had been 

used.  Defendants sought admission of exhibits and testimony regarding the actions (or the 
inaction) of HHS-OIG and CMS, arguing that the comportment of those agencies tended 
to show that the United States did not regard defendants’ conduct as material.  The Court 
disagreed with defendants then, and continues to disagree with defendants now, that the 
evidence was relevant to materiality.  The inaction of HHS-OIG and CMS did not fairly 
reflect  that  those  entities  found  kickbacks  generally  or  the  actions  of  defendants 

particularly to be unimportant.  And the admission of the evidence described above would 
have risked the jury drawing an unwarranted inference from that evidence. 
    Defendants also argue that expert David Gregory should have been permitted to 
testify  regarding  whether  and  to  what  extent  the  false  statements  on  the  Medicare 
reimbursement forms were material.  As the Court explained, when this issue was presented, 

Gregory (by defendants’ own admission) had not offered an opinion on materiality in his 
expert report.  For this reason, he was appropriately not permitted to testify on the topic.  
See Dkt. 931 (citing Fed. R. Civ. P. 37(c)(1)).                           
                2.  Tiffany’s Fifth Amendment Invocation                 
    At trial, the United States sought to designate the bulk of the deposition testimony 

of James Tiffany, who was the former chief executive officer of Sightpath Medical, LLC 
(“Sightpath”).  Both Tiffany and Sightpath previously were defendants to this action, and 
both Tiffany and Sightpath had a substantial business relationship with Precision Lens 
during much of the period during which the events at issue occurred.  Throughout his 
deposition, Tiffany invoked his Fifth Amendment right against self-incrimination and 
declined to answer any substantive question posed to him by counsel for any party.  

Defendants  objected  to  admission  of  the  deposition  on  the  grounds  that  Tiffany’s 
invocation of his Fifth Amendment rights was not relevant to the issues in dispute and that 
admission of Tiffany’s invocation would be unfairly prejudicial to them.  
    The Court sustained in part and overruled in part defendants’ objection.  The United 
States was permitted to introduce no more than 50 lines from the Tiffany deposition 
transcript—essentially, only enough to establish that the United States had been unable to 

elicit deposition testimony from Tiffany because of his Fifth Amendment invocation.  
Defendants, in turn, were permitted to counter-designate a snippet of Tiffany’s deposition 
showing that they, too, had been unable to elicit testimony from Tiffany. 
    In their post-judgment motion, defendants renew their objection to the admission of 
any portion of the deposition.  Defendants’ argument is rejected on the grounds set forth in 

the Court’s January 22, 2023 order, Dkt. 872, overruling in part the objection to the 
admission of the deposition.                                              
                      3.  Ehlen Audio Recording                          
    Defendants sought admission of a 77-minute audio recording4 in which Paul Ehlen 
discussed with Fesenmaier the investigation of the transactions later found to be kickbacks 


4 In their motion for post-judgment relief, defendants refer to audio recordings (plural) 
“which span 50 hours over the course of years.”  Dkt. 1048 at 33.  But during trial, 
defendants sought the admission of only one such recording, Exhibit D-75, and only that 
one recording was expressly excluded.  In fact, the Court expressly stated before trial that 
the audio recordings of Ehlen and Fesenmaier would not be categorically excluded and 
would instead be evaluated on a case-by-case basis.  See Dkt. 842 at 21.  
and, speaking generally, asserted his innocence of having violated the AKS.  The Court 
sustained the objection to the admission of that evidence on the grounds that it was 

inadmissible hearsay.  See Dkt. 922.   Defendants contend that Paul Ehlen’s statements in 
the recording are not hearsay and that, even if they were, the statements are admissible 
under Rule 803(3) of the Federal Rules of Evidence as reflecting Ehlen’s state of mind at 
the time that he made the statements.                                     
    The Court remains satisfied that Paul Ehlen’s statements in the recording at issue 
are inadmissible hearsay.  Moreover, to the extent that defendants intended to introduce the 

recordings  for  non-hearsay  purposes,  Paul  Ehlen’s  statements  were  irrelevant  to  any 
question being presented to the jury.  That Paul Ehlen—while being investigated by the 
United States—told Fesenmaier that he did not believe the transactions for which he was 
being investigated to be kickbacks is not probative of whether those transactions were, in 
fact, kickbacks.  Moreover, that Paul Ehlen did not know he was being recorded does not 

make his statements any more probative.                                   
             4.  Evidence Related to Knowledge of Fesenmaier             
    Defendants designated portions of Fesenmaier’s deposition for admission.  The 
Court sustained plaintiffs’ objection to the designation, explaining at the time that 
         much  of  the  designated  testimony  relates  to  Fesenmaier’s 
         motivation  in  bringing  a  claim  against  Defendants.  Mr.   
         Fesenmaier has not testified in this matter, and his deposition 
         testimony regarding his motivation is not relevant.  See United 
         States ex rel. Landis v. Tailwind Sports Corp., 

 (D.D.C. 2017) (finding that a defendant could not   
         call the relator as a witness solely for the purpose of attacking 
         his character or highlighting his motivation for filing the qui 
         tam action).                                                    
Dkt. 935.  Similarly, the Court precluded Paul Ehlen from testifying about Fesenmaier’s 
possible motivations for acting as a whistleblower.  See Tr. 3509-11.     
    Defendants argue that evidence regarding Fesenmaier’s motivations and state of 
mind should have been admitted.  But this kind of evidence would have been “not relevant 
to any of the elements of an FCA claim” and thus was properly excluded under Rule 403.5  

Feldman, 

, at *5.  As the Court explained at greater length prior to trial, 
when a relator does not testify, “his self-serving interest in filing suit is irrelevant, as it does 
not affect whether a defendant’s actions were legal or not.”  United States ex rel. Kiro v. 
Jiaherb, Inc., No. CV 14-2484-RSWL-PLAX, 

, at *4 (C.D. Cal. July 3, 
2016) (citing Landis, 

).                            

               5.  Evidence Related to Amount of Damages                 
    Defendants next argue that various forms of evidence should have been admitted at 
trial showing (in their view) that the amount of actual damages to the United States 
resulting from any false certification was less than the full amount of reimbursement paid 
to the doctors.  The issue of how actual damages should be calculated in this matter has 

been litigated repeatedly, and the Court’s exclusion of defendants’ proffered evidence on 
damages follows directly from the Court’s prior ruling that the appropriate measure of 

5 To be sure, “[t]he motivation of a witness in testifying, including [his] possible self-
interest and any bias or prejudice against the defendant, is one of the principal subjects for 
cross-examination.”  Henry v. Speckard, 

 (2d Cir. 1994).  A party 
certainly may test the quality of an adversarial witness’s testimony by pointing out that the 
motivations of the witness are something other than pure.  But Fesenmaier did not testify 
at trial.  Accordingly, there was no testimony of Fesenmaier for defendants to attempt to 
impeach.                                                                  
actual damages in this matter was the full amount of false claims paid by the United States.  
In light of that ruling, the evidence for which defendants sought admission was irrelevant 

and therefore properly excluded.  See Fed. R. Evid. 403.                  
                      6.  Expert Demonstratives                          
    Defendants objected to the admission of Exhibit P-1216, which was intended for 
use as a demonstrative exhibit by plaintiffs during the testimony of their expert Michael W. 
Phillips but was later admitted into evidence.  The Court’s explanation as to why the exhibit 
was admitted was provided on the record during trial, see Tr. 2546, and it is unnecessary 

to provide further explanation here.  The Court notes only that every word and number on 
the exhibit would have been admitted into evidence through Phillips’s testimony—and, 
indeed, every word and number was in the process of being admitted through Phillips’s 
testimony when the exhibit was admitted.  Admission of the document thus spared the 
needless expenditure of juror time in a trial that had already gone on for nearly one month 

and would go on for yet another month.                                    
    Defendants counter that, having admitted plaintiff’s demonstrative exhibit used 
during expert testimony, the Court should have granted the same courtesy to defendants 
and admitted Exhibit D-335, which was shown to the jury as a demonstrative during the 
testimony of their expert Scott Van Meter but was not admitted into evidence.  But the 

rationales that supported the admission of the Phillips exhibit did not support the admission 
of the Van Meter exhibit.  The Van Meter exhibit, unlike the Phillips exhibit, was a true 
demonstrative—the  exhibit  provides  a  visualization  of  data  supporting  Van  Meter’s 
underlying testimony regarding physician purchases before and after alleged kickback 
events.6   The  exhibit  used  during  the  Phillips  testimony,  by  contrast,  was  merely  a 
summarization of opinions that Phillips already intended to offer as testimony.  Indeed, the 

Phillips exhibit was hardly a “demonstrative” at all.  It is a chart that shows only what 
Phillips’s testimony was about to be.  The information on the Phillips demonstrative exhibit 
therefore  was  destined  for  admission,  while  the  information  on  the  Van  Meter 
demonstrative exhibit was not.                                            
    Nor  does  the  Court  believe  that  defendants  were  unduly  prejudiced  by  the 
discrepancy.  This is not a situation in which two experts offered dueling opinions on a 

topic and one of those opinions was admitted into evidence while the other was excluded, 
thereby preventing one side or the other an adequate opportunity to present its case on a 
particular issue.  Phillips and Van Meter testified as to entirely unrelated topics—the 
former regarding the fair market value of transactions alleged to be kickbacks, the latter as 
to the quantity of purchases made by doctors from Precision Lens before and after the 

alleged kickback events.                                                  
            7.  Van Meter Testimony on Maintenance of Business           
    Finally, defendants argue that Van Meter should have been permitted to testify to 
the  effect that  the  alleged  kickbacks  did  not cause  the  physicians  to  continue  using 
Precision Lens products.  Van Meter’s opinions in this regard, however, were not fairly 


6 Defendants characterize the Van Meter exhibit as a Rule 1006 summary, but it was not.  
See White Industries, Inc. v. Cessna Aircraft Co., 

 (W.D. Mo. 
1985) (distinguishing Rule 1006 summaries from “pedagogical” summaries).  This by 
itself does not mean that the exhibit was inadmissible.  The Phillips exhibit was not a 
Rule 1006 summary, either.  It does mean, however, that Rule 1006 of the Federal Rules 
of Evidence did not compel admission.                                     
encompassed by his expert report.  He was, therefore,  properly precluded from testifying 
on that topic.  See Fed. R. Civ. P. 37(b).                                

                    D.  Sufficiency of the Evidence                      
    Defendants’ next group of arguments relates to the sufficiency of the evidence 
admitted at trial.  Some of these sufficiency-of-the-evidence arguments overlap with the 
arguments that were considered and rejected above.  For example, defendants contend that 
plaintiffs were required under the AKS to establish that the primary purpose of the alleged 
kickbacks was  to  induce referrals.    With  respect  to the sufficiency  of  the  evidence, 

defendants argue that the evidence admitted at trial does not suffice to meet this primary-
purpose standard.  But the Court rejected the primary-purpose standard, and defendants’ 
sufficiency-of-the-evidence argument related to the primary-purpose standard, therefore, 
fails as well.  Similarly, defendants contend that plaintiffs failed to establish but-for 
causation.    But  as  addressed  above,  plaintiffs  were  not  required  to  establish  but-for 

causation under the AKS.  Therefore, any sufficiency-of-the-evidence claim premised on 
but-for causation must be rejected.                                       
    Defendants, however, also challenge the sufficiency of the evidence on grounds that 
are not necessarily encompassed by the arguments examined above and which, therefore, 
must be addressed in greater detail.  Some of these challenges to the sufficiency of the 

evidence implicate the entirety of the verdict against defendants.  In these arguments, 
defendants contend that plaintiffs failed to establish a critical component of their case, 
fatally undermining any finding of liability.  Other challenges, by contrast, attack the 
sufficiency of the evidence with respect to specific transactions found by the jury to be 
kickbacks.  The Court will address these arguments next, starting with the more general 
arguments and ending with the more specific.                              

    In reviewing these arguments, the Court must view the evidence in the light most 
favorable to the verdict and may reverse the verdict only if no reasonable juror could have 
returned the verdict that the jury in this matter returned.  See, e.g., Ryther v. KARE 11, 

 (8th Cir. 1997).                                            
                          1.  Materiality                                
    To establish liability under the FCA, plaintiffs were required to show that the false 

or fraudulent information in the claim for Medicare reimbursement was material to the 
United States’s decision to pay the claim.  Defendants contend that there was insufficient 
evidence admitted at trial to establish the necessary materiality.        
    Defendants challenge the sufficiency of the evidence as to materiality on two 
grounds.  The first argument is a restatement of the argument described above regarding 

the failure of HHS-OIG and CMS to follow up on whistleblower complaints concerning 
the conduct of Precision Lens and Medicare’s subsequent payment of claims.  Defendants 
argue  that  these  agencies’  actions  establish  that  the  misstatements  in  the  Medicare 
reimbursement forms were not material.  The Court determined that the inaction of HHS-
OIG and CMS, far from being conclusive on the issue of materiality, was not even 

probative on the issue of materiality.  In any event, the jury had an adequate evidentiary 
basis upon which to conclude that lack of compliance with the AKS was a material 
misstatement through  the testimony  of Scott Lawrence, a  CMS  representative.7  See 
Tr. 444-79.                                                               

    Defendants also advance a second argument regarding materiality, focusing again 
on the “taint theory” that defendants attacked with respect to causation.  To summarize, 
Defendants’ argument generally contends that, even if a false certification of compliance 
with the AKS is, speaking generally, a potentially material misrepresentation, plaintiffs did 
not establish that the United States would have regarded the specific transactions alleged 
to be kickbacks in this litigation to be material.  For example, defendants characterize one 

of the transactions found by the jury to be a kickback as being nothing more than a salad 
and a soda offered at a Christmas party.  Plaintiffs sought recovery from Precision Lens 
and Paul Ehlen for one full year of Medicare claims submitted by that doctor following the 
Christmas party.  Defendants argue, in essence, that plaintiffs did not establish that the 
United States would have refused to pay the claim had the doctor certified on her Medicare 

reimbursement forms that she had accepted a salad and soft drink from one of her medical 
suppliers.                                                                




7 To be clear: “A misrepresentation cannot be deemed material merely because the [United 
States]  designates  compliance  with  a  particular  statutory,  regulatory,  or  contractual 
requirement as a condition of payment.”  Escobar, 

.  But Lawrence’s 
testimony provided the jury an adequate evidentiary basis to conclude that compliance with 
the AKS is an especially weighty concern of the United States, as the existence of a 
kickback implicates the quality of care provided to the patient.  Tr. 459 (“We care—any 
time there’s influence, we care about it any time because we want all the decision-making 
to be purely to benefit the patient and to follow the rules.”).           
    Defendants’ argument regarding the de minimis nature of some of the kickbacks has 
some force when applied to causation.8  That argument also may be relevant in establishing 

the existence of remuneration—that is, some benefits might be of such insubstantial benefit 
that they do not amount to remuneration under the AKS and, therefore, cannot constitute 
kickbacks.  While the Court rejects this contention in its analysis below, the contention is 
far from frivolous.  But defendants’ salad-and-a-soda argument is a poor fit in the context 
of materiality.  There is no reason to believe that the United States would not have cared 
about the doctor’s false certification of compliance with the AKS if only it had known that 

the kickback was a modest meal, not something more lavish.                
    Accordingly, the Court concludes that the evidence admitted at trial was sufficient 
to establish materiality.                                                 
                       2.  Proximate Causation                           
    Defendants raise several arguments with respect to the sufficiency of the evidence 

regarding  causation.    Many  of  these  arguments  reprise  the  complaints  pertaining  to 
plaintiffs’ putative “taint theory.”  The Court addressed that issue above and declines to 
repeat the point here, except to observe that the United States was required to establish 
causation with respect to each individual claim and that proximity in time to a kickback 
was not a sufficient basis upon which to conclude that the necessary causation existed here. 

    Two other arguments on this subject require somewhat closer attention.  First, 
defendants contend that the United States did not establish that Precision Lens or Paul 

8 How much influence, for example, can be purchased with a salad at lunch or a modest 
meal at a holiday party?                                                  
Ehlen caused any claim to be submitted, thereby severing a necessary link for proving 
liability under the FCA.  Second, defendants contend that the United States  did not 

establish that the requests for Medicare reimbursement at issue in this matter were false. 
    Both arguments can be addressed briefly.  First, the jury was entitled to conclude 
that the defendants violated the FCA if (among other things) the defendants caused records 
or statements to be made or used in support of a false claim to the United States.  The jury 
was  further  instructed  that  a  defendant’s  conduct  may  be  found  to  have  caused  the 
submission of a claim for Medicare reimbursement (1) if the alleged misconduct was a 

substantial factor in inducing providers to submit claims for reimbursement, and (2) if the 
submission of claims for reimbursement was reasonably foreseeable or anticipated as a 
natural consequence of defendants’ conduct.  The evidence at trial was sufficient for a 
reasonable juror to conclude that requests for Medicare reimbursement would likely result 
following the use of the products tainted by kickbacks.  The products at issue were used in 

cataract surgeries, which are especially prevalent in populations covered by Medicare.  The 
evidence at trial was also sufficient for the jury to conclude that defendants understood that 
compliance with the AKS would be a prerequisite of reimbursement.         
    Second, defendants argue that the doctors were required only to certify to the United 
States that they (that is, the doctors) had not knowingly violated the AKS.  Many of the 

doctors testified that they believed that they had adequately recompensed Precision Lens 
and Paul Ehlen for any benefit given to them—for example, by paying invoices for trips.  
Defendants contend that these doctors therefore could not have knowingly certified a false 
statement.  But a knowing violation of the FCA includes not only claims made with actual 
knowledge of falsity, but also claims made in deliberate ignorance or reckless disregard of 
the truth or falsity of the information provided on the reimbursement form.  There was a 

sufficient evidentiary basis for the jury to conclude that the doctors at issue acted in 
deliberate  ignorance  or  reckless  disregard  of  the  truth,  even  if  the  doctors  did  not 
subjectively believe themselves to have violated any law.                 
    The Court therefore concludes that the evidence admitted at trial was adequate to 
establish causation.                                                      
                      3.  Proof of Remuneration                          

    Defendants’ next series of arguments focuses on specific transactions found by the 
jury to be kickbacks.  According to defendants, there was insufficient evidence admitted at 
trial  from  which  to  conclude  that  remuneration  was  provided  to  doctors  in  these 
transactions. For this reason, defendants argue, there was insufficient evidence from which 
to conclude that these transactions amounted to kickbacks.                

                        i.  Fair Market Value                            
    Defendants first challenge several instances in which the jury “found kickbacks for 
trips in which doctors testified that they were invoiced and paid their own costs and/or what 
they considered to be fair market value.”  Dkt. 1048 at 13.  This category can be addressed 
briefly.  Regardless  of the  doctors’  beliefs  about  these  trips,  the  jury was  entitled  to 

conclude that the amount paid for these trips fell short of the fair market value of those 
trips based on Phillips’s testimony and analysis of fair market value of difficult-to-quantify 
benefits such as private flights.  There was sufficient evidence to conclude that this 
category of transactions constituted remuneration.                        
                       ii.  Third-Party Benefits                         
    Defendants next argue that, in some instances, the remuneration alleged by plaintiffs 

came from a third party, not from Precision Lens or Paul Ehlen.  Defendants are less than 
clear about which kickbacks they believe to fall into this category.  The memorandum in 
support of the post-judgment motion refers vaguely to locations in which many trips had 
been conducted, rather than to specific transactions believed to have not been remunerative.  
Absent greater precision as to the specific trips at issue, the Court will not enter into an 
extended analysis as to why each of the possible trips to which defendants might be alluding 

could reasonably have been found by the jury to have been remunerative.  It suffices to 
state that, for each of these trips, the jury could reasonably have concluded that the doctor 
either accrued a remunerative benefit from Precision Lens and Paul Ehlen (for example, in 
the form of a private flight for which fair market value was not provided) or that Precision 
Lens and Paul Ehlen were the ultimate payees of the benefit supplied by the third party. 

    Two instances, however, are specifically cited by defendants, and the Court will 
address them with greater detail here.  First, one of the transactions that the jury found to 
be a kickback was a 2006 golf outing in Las Vegas attended by Dr. Kurt Weir.  See Dkt. 985 
at 24 (verdict form).  Weir did not pay for the outing, but it is uncertain who did pay.  The 
United States believes it was Paul Ehlen. But the evidence is inconclusive.  Weir testified 

that he “assume[d]” that Paul Ehlen had paid for the trip, Tr. 594, but he did not have a 
specific recollection.  Weir’s assumption, in turn, appears to have been premised on an 
email shown to him during direct examination.  In that email, Linda Norling—a Precision 
Lens employee and Paul Ehlen’s personal assistant—informed the host at the casino where 
the golf course at issue was located that “Paul left me a VM last night and said it was OK 
to charge all of the Cascata golf to his card.”  Exhibit P-378 at 1.  But Norling testified that 

another doctor had provided her with his credit card information for that trip, see Tr. 2001-
03, and there is documentary evidence showing that Norling forwarded that doctor’s credit-
card information to the casino host approximately one month prior to sending the email 
shown to Weir, see Exhibit D-265.  If the other doctor paid for the trip, then Precision Lens 
and Paul Ehlen would not have provided remuneration with respect to that trip and no false 
claims could have resulted from that trip.                                

    The jury could have reasonably inferred from the evidence admitted at trial that it 
was the other doctor, not the defendants, who paid for Weir’s golf.  But that conclusion 
certainly is not compelled by the evidence.9  The jury also could have reasonably inferred 
that Norling’s email to the casino host meant exactly what it said—that Paul Ehlen had told 
her to tell the casino manager “to charge all of the Cascata golf to his card.”  Exhibit P-378 

at 1.  Viewed in the light most favorable to the verdict, the evidence was sufficient for the 
jury to conclude that Paul Ehlen had paid for Weir’s golf and therefore it was a kickback, 
notwithstanding that other evidence supported a different conclusion.     
    Second, defendants cite to the testimony of Dr. Richard Lindstrom that, for at least 
one of the trips that the jury found to be a kickback, he had flown on the private plane of 

Dr. Bill Link, not Paul Ehlen’s plane.  See Tr. 3128.  Link, however, was closely associated 


9 Norling herself, when reviewing the documents at trial, declined to testify that the other 
doctor had in fact paid for the trip.  See Tr. 2003 (“Q. Can you tell from these e-mails who 
ultimately paid for Dr. Weir’s golf?  A. No, I cannot tell.”).            
with Precision Lens, serving for approximately two years on its advisory board around the 
same  time  as  the  events  at  issue.    See  Tr. 3151.    Lindstrom  himself  was  under  the 

impression that Link and Ehlen would “divvy up the costs between the participants as they 
thought was appropriate.”  Tr. 3129.  None of the costs of that private flight appear to have 
been divvied to Lindstrom.  A reasonable juror could conclude from the evidence that a 
free flight provided by Link to an event attended by Paul Ehlen amounted to remuneration 
from Precision Lens and Ehlen to Lindstrom, albeit through an intermediary. 
                      iii.  Davis Christmas Party                        

    Dr.  Elizabeth  Davis  attended  the  Precision  Lens  Christmas  party  in  2013.  
According to her testimony, she ate a salad and drank a soda while she was there.  See 
Tr. 1838.  The jury found that this was a kickback.  See Dkt. 985 at 8.   
    Plaintiffs strive diligently to suggest that the value of the remuneration provided to 
Davis was something more than a salad and a soft drink. But the evidence adduced at trial 

does not bear that out.  For example, Precision Lens did submit a report under the Sunshine 
Act that the per-person value of the Christmas party was $240.  But the fact that other 
invitees might have received a great deal of value from the party does not mean that Davis 
received any more benefit than what she had admitted to receiving.  Plaintiffs also speculate 
that Davis might have attended pre-party or post-party events held by Precision Lens, but 

there is no evidence in the record bearing that out.  The jury reasonably could have 
concluded that Davis received a salad and a soda on that occasion, which she admitted, but 
nothing beyond that.                                                      
    The problem for defendants, however, is that remuneration within the meaning of 
the AKS includes the provision of anything of value for an amount other than the fair 
market value of that thing.10  42 U.S.C § 1320a-7a(i)(6).  Davis, by her own admission, 

received a dinner at a restaurant. While not an extravagant dinner, the dinner nevertheless 
is an item of value.  The jury was entitled to conclude from that testimony that Davis had 
received a kickback.                                                      
                      iv.  Riedel New York Trip                          
    The jury found that a trip taken by Dr. Patrick Riedel and his wife to New York City 

with Paul Ehlen and his wife constituted an unlawful kickback.  See Dkt. 985 at 26.  
Defendants argue that there is insufficient evidence to support jury’s verdict with respect 
to this trip.                                                             
    Although the question is close, there was sufficient evidence to support a finding 
that Riedel had received a kickback.  Riedel testified that he had taken a trip with Paul 

Ehlen to New York, that he had flown on Ehlen’s plane, and that he did not recall paying 



10 Defendants cite to United States ex rel. Martin v. Hathaway, 

 (6th 
Cir.  2023),  for  the  proposition  that  “giving  someone  a  soda  does  not  constitute 
remuneration within the meaning of the statute.”  Dkt. 1048 at 13.  But Hathaway says only 
that remuneration within the meaning of the AKS requires the transfer of money, goods or 
services, and does not include more nebulous transactions.  For example, in Hathaway, the 
alleged remuneration was “a hospital’s decision not to hire an ophthalmologist in return 
for a general commitment of continued surgery referrals from another ophthalmologist for 
patients from the local community . . . .”  

.  The transaction in Hathaway did not 
involve the transfer of money, services or goods, and thus there was no remuneration.  But 
Hathaway does not state that some transfers of money, goods, or services are so slight as 
to not be of value.                                                       
anything  for  trip.    See  Tr. 1143-1144.    A  reasonable  juror  could  conclude  from  the 
testimony that the trip occurred and that Riedel had received renumeration from Ehlen. 

    Although there was sufficient evidence from which to conclude that Riedel received 
a kickback, there is insufficient evidence regarding when the trip occurred to tie that 
kickback to any specific violation of the FCA.  Riedel could do no better than to testify that 
the trip occurred either in 2008 or 2009.  The selection of any date within that two-year 
period by the jury would have been arbitrary.  And no claims for Medicare reimbursement 
occurring before the date of that trip could have been caused by that kickback or could be 

said to have resulted in a violation of the FCA due to the kickback.11  Because there is 
insufficient evidence from which to conclude that any particular false claim resulted from 
the New York City trip, judgment as a matter of law must be granted on behalf of 
defendants with respect to that trip.                                     
                         v.  Swarup Trips                                

    Defendants final set of claims with respect to sufficiency of the evidence pertain to 
trips paid for by Dr. Jitendra Swarup.  Defendants again do not cite any specific kickback 
event, which makes further analysis of this argument exceedingly difficult.  Like the claim 
regarding the provision of a private flight to Dr. Lindstrom by Dr. Link rather than by 
defendants directly, the Court concludes that there was a sufficient nexus between Swarup, 

Sightpath, and plaintiffs that a jury could reasonably have concluded that the trips were 
remuneration to doctors on behalf of defendants.                          

11 Plaintiffs did not seek recovery for any claims for Medicare reimbursement submitted 
by Riedel in 2010.  See Exhibit P-1223.                                   
                          E.  Damages                                    
    Defendants next challenge the damages calculations made by the jury.  These 

arguments pertaining to damages can be grouped into four categories.  First, defendants 
contend  that  the  actual  damages  suffered  by  the  United  States  are  far  less  than  the 
$43,694,641.71 found by the jury.  Second, defendants contend that statutory penalties 
should not be assessed with respect to most of the 64,575 false claims found by the jury.  
Third, defendants contend that the penalties that make up the bulk of the $487,048,705.13 
judgment constitute a violation of the Excessive Fines Clause.  Fourth, the amount of the 

judgment,  defendants  contend,  should  be  further  offset  against  settlement  amounts 
procured from other defendants.                                           
                   1.  Calculation of Actual Damages                     
    Defendants’  arguments  attacking  the  jury’s  calculation  of  actual  damages  are 
substantively identical to their arguments attacking the Court’s conclusions with respect to 

the appropriate measure of damages in this case.  To the extent that those arguments were 
rejected above, they are again rejected here for the reasons explained above. 
    However, because the Court concluded above that there was insufficient evidence 
admitted at trial from which to conclude that an undated New York City trip taken by Paul 
Ehlen and Dr. Riedel resulted in a false claim being presented to Medicare,  the judgment 

in this matter must be reduced to reflect the fact that damages and statutory penalties may 
no longer be attributed to that trip.                                     
    The jury was not asked to attribute a specific amount of damages or a specific 
number of false claims to any particular transaction found to be a kickback.  Therefore, the 
Court cannot say for certain how much in damages or how many false claims the jury 
attributed to the New York City trip.  Making matters still more complicated, the jury also 

found that Riedel had received two other kickbacks in late 2007 and 2008, and the jury 
attributed false claims to those other kickbacks.  It is not possible to determine from the 
verdict form with certainty which false claims would have been attributed to the other 
kickbacks and which to the New York City trip.                            
    In any event, because the trip was noted on the verdict form with the arbitrary date 
of January 1, 2009, and because plaintiffs sought relief for all false claims that were made 

within one year of that date that resulted from the kickback, the Court will assume that all 
claims for Medicare reimbursement submitted by Riedel in 2009 for which plaintiffs 
sought relief are attributable to the New York City trip.  This amounts to 258 claims and 
$359,592 in actual damages to Medicare.  Accordingly, the judgment in this matter must 
be reduced by $4,563,840.  This amount consists of statutory penalties of $13,508 for each 

of the 258 claims and $1,078,776 in trebled actual damages.               
                       2.  Statutory Penalties                           
    The FCA requires the assessment of an additional penalty, separate from damages, 
on each false claim.  The jury found that 64,575 false claims were submitted to Medicare 
as a result of kickbacks attributable to defendants (including the false claims related to the 

Riedel trip to New York City), resulting in a total penalty of $358,445,780.12  Separate 

12 Of the 64,575 false claims found by the jury, at least 410 were made on or after 
December 1, 2015.  These false claims are subject to a minimum penalty of $13,508, or a 
total of $5,538,280.  See 

.  The remaining 64,165 false claims are subject 
to the $5,500 minimum penalty established by 

(a)(9), for a total of 
from the arguments addressed above, defendants challenge the calculation of the number 
of false claims, and therefore the amount of penalties that should result from those false 

claims, in two respects.                                                  
    First, defendants argue that, because each cataract surgery would have generated at 
least  two  separate  claims to  Medicare,  a  “Facility  Fee”  (which included  the  cost  of 
Precision Lens products) and a “Physician Professional Fee” (which did not), assessing 
statutory penalties on each fee represents a double-counting of misconduct, since only one 
surgery will have been performed.  But penalties are assessed under the FCA per false 

claim presented to the United States resulting from defendants’ misconduct, not based on 
the number of surgeries or kickbacks or any other metric.                 
    Second, defendants point to several claims with unusually small or unusually large 
amounts requested in  reimbursement  from Medicare.   Defendants contend that these 
amounts do not correlate to the kinds of procedures in which Precision Lens products 

would have been used, suggesting that these entries may be the result of a coding error 
rather than a reflection of actual false claims made to the United States.  This argument is 
unavailing for at least two reasons.  First, evidence of the existence of these outlier claims 
and the methodology through which the claims were assembled was presented to the jury, 
which was entitled to make a factual determination regarding whether the relevant data 




$352,907,500.  The sum of these figures is $358,445,780.  The Court has already concluded 
that $3,485,064 must be subtracted from that amount due to judgment as a matter of law 
having been granted on all FCA claims arising out of the Riedel trip to New York City. 
entries represented false claims motivated by a kickback.13  Second, there appear to have 
been very few of these outlier claims.  See Exhibit P-1169b.  Defendants have identified 

no more than a handful.  Even if each of these actual damages from these claims (many of 
which are for only one dollar) were excluded, and even if no penalties were assessed on 
any of these claims, the amount of judgment would change minimally.  Moreover, any such 
changes would have no effect on this Court’s analysis of the amount of judgment under the 
Excessive Fines Clause.  Even if the Court were to conclude that the outlier claims should 
be removed, judgment would be altered to reflect the limits established by the Excessive 

Fines Clause, and those constitutional limits would not be affected by the removal of a very 
small number of claims amounting to only a very small fraction of the judgment amount. 
                        3.  Constitutionality                            
    After taking into account that judgment as a matter of law has been granted on the 
claim related to Riedel’s New York City trip, defendants remain responsible under the FCA 

for $482,484,865.13 in damages and penalties.  Of that amount, $43,335,049.71 consist of 
actual damages to the United States.  Another $86,670,099.42 in damages result from the 
mandatory trebling of the actual damages amount.  See 

(a)(1).  The 
remaining $352,479,716 consist of statutory penalties assessed for each claim for Medicare 
reimbursement found to be false.14                                        


13 The jury was spared from providing a yes-or-no verdict on each of the tens of thousands 
of allegedly false claims.  Therefore, it is impossible to say whether any particular claim 
for Medicare reimbursement was found by the jury to be true or false.     
14 This is the minimum amount in penalties that the FCA permits the Court to impose.  See 

(a)(1).  The FCA authorizes the Court to impose up to twice that amount 
in penalties.                                                             
    Defendants argue that the Excessive Fines Clause precludes the imposition of such 
a massive imposition of penalties.  The Court agrees.                     

    “The Excessive Fines Clause applies to civil penalties that are punitive in nature.” 
United States v. Aleff, 

 (8th Cir. 2014) (citation omitted).  Neither party 
questions, as this Court has already determined in another context in this proceeding, see 
Dkt. 1077 at 6-7, that the amount owed by defendants consists substantially of penalties, 
even though how much of the judgment is “remedial” and how much is “punitive” is a 
matter of dispute.  In any event, the Excessive Fines Clause applies to the judgment entered 

in this matter.                                                           
    “A  punitive  sanction  violates  the  Excessive  Fines  Clause  if  it  is  ‘grossly 
disproportional to the gravity of a defendant’s offense.’”  Aleff, 

 (quoting 
United States v. Moyer, 

 (8th Cir. 2002)).  The United States Court of 
Appeals for the Eighth Circuit has instructed district courts to consider a variety of factors 

in determining whether a penalty is grossly disproportional, including the reprehensibility 
of the defendant’s conduct, the relationship between the penalty and the harm to the victim, 
the  sanctions  in  other  cases  for  comparable  misconduct,  legislative  intent,  and  the 
defendants’ ability to pay.  

  The Supreme Court has suggested that the ratio of punitive 
damages to compensatory damages may provide a guidepost to district courts in conducting 

this inquiry, further stating “an award of more than four times the amount of compensatory 
damages might be close to the line of constitutional impropriety,” State Farm Mut. Auto 
Ins.  Co. v.  Campbell,  

  (2003)  (emphasis  added),  and  that  “[w]hen 
compensatory  damages  are  substantial,  then  a  lesser  ratio,  perhaps  only  equal  to 
compensatory damages, can reach the outermost limit” of constitutionality, 

  But the 
Supreme Court also has “consistently rejected the notion that the constitutional line is 

marked by a simple mathematical formula.”  BMW of North America, Inc. v. Gore, 

 (1996).                                                     
    The Court considers each of those factors in turn.  At the outset, however, the Court 
notes is mindful that this is not a sentencing.  The Court’s role in this proceeding is not to 
determine the appropriate punishment for defendants.  Instead, the Court is limited to 
determining what is the permissible punishment under the Excessive Fines Clause. 

               a.  Reprehensibility of Defendants’ Conduct               
    The parties dispute the degree of moral turpitude underlying defendants’ conduct.  
Defendants characterize Paul Ehlen as a person exerting strenuously to comply with the 
AKS who was foiled by his generosity towards “a small number of doctors who were his 
longtime friends and whose families were friends with his family.”  Dk. 1048 at 48.  This 

depiction, in the Court’s view, does not comport with the evidence at trial.  Nor is it a 
depiction accepted by the jury, which found Paul Ehlen (and Precision Lens) to be in 
knowing disregard of the AKS.  Defendants’ conduct also was not an isolated slip-up. The 
jury concluded that defendants had committed well over 150 violations of the AKS over a 
ten-year period.                                                          

    The AKS is not a technicality.  “Put simply, anti-kickback statutes are important 
pieces  of  the  governmental  healthcare  apparatus,  ensuring  that  claims  presented  for 
reimbursement  are  the  product  of  untainted  and  independent  medical  judgment.”  
State v. MedImmune, Inc., 

 (S.D.N.Y. 2018).  Indeed, the United 
States’s interest in preventing kickbacks is important enough that violations of the AKS 
sometimes constitute criminal violations punishable by up to 10 years in prison.  See 42 

U.S.C. § 1320a-7b.                                                        
    Although all misconduct under the AKS is serious, defendants’ misconduct is 
somewhat less severe in a few respects than the usual AKS case.  First, the judgment vastly 
overstates  the  benefit  that  defendants  derived  personally  from  the  misconduct.  
Reimbursement for Precision Lens products comprised only a small percentage of the cost 
of  any  surgery  for  which  doctors  sought  reimbursement,  and  the  profit  accruing  to 

Precision Lens from any sale to those doctors would represent only a percentage of that 
already small percentage.15  Defendants are wrong to suggest that the harm to the United 
States is capped by the amount Precision Lens profited from any misconduct.  But the 
amount  of  profit  is  relevant,  although  certainly  not  determinative,  in  assessing  the 
reprehensibility of conduct.                                              

    Second, as this Court explained above, the definition of remuneration provided for 
in the AKS includes the provision of anything of value for an amount other than fair market 
value.  This definition precludes defendants from contending that some benefits to doctors 
were too slight to constitute violations of the AKS, and therefore the FCA.  But the 
definition  of  remuneration  cuts  in  the  other  direction  when  the  reprehensibility  of 

defendants’ conduct is considered.  One example, addressed at length above, is that a doctor 
was offered a salad and soda at a Christmas party amounts to remuneration.  While the jury 

15 Defendants’ calculations suggest that Precision Lens would have accrued only about 
$1.3 million in profit from the sale of the products at issue.            
could reasonably conclude that violation of the FCA resulted from that remuneration,  but 
it is difficult to categorize that particular instance of conduct as reprehensible. 

    Third, there is truth to defendants’ argument that the penalties imposed in this matter 
are something of an accounting fluke.  If Medicare required only one claim per surgery 
rather  than  separate  claims  for  Facility  Fees  and  Physician  Professional  Fees,  the 
substantial penalty assessed against defendants would be reduced at least by half.  If that 
were so, the judgment in this matter would be reduced by over $175,000,000, even though 
nothing about the conduct of the defendants or the harm resulting to the United States 

would have changed.16                                                     
    Finally,  at  no  point  has  anyone  alleged  that  physical  harm  resulted  from  the 
misconduct.  See State Farm, 

 (identifying factors to be considered in 
evaluating the reprehensibility of the defendant’s conduct).  No patient is alleged to have 
undergone a procedure that would not otherwise have occurred.  Not one of the products 

sold by Precision Lens is alleged to have been defective.  This is not to minimize the harm 
that was caused to patients, who were entitled to services untainted by kickbacks, or to the 
United  States,  which  was  entitled  not  to  provide  reimbursement  for  those  services.  
Fortunately, however, those harms were not physical.                      



16 Even the United States seems to recognize that this quirk of Medicare reimbursement 
leads to an unwarranted result in this matter, as the United States now requests that statutory 
penalties be applied only to half of the claims found to be false.  This concession alone, if 
accepted, would result in the judgment being reduced from roughly $487 million to roughly 
$310 million.                                                             
                       b.  Harm to the Victim                            
    As addressed earlier, the appropriate measure of actual damages in this matter is the 

amount paid by the United States as reimbursement for claims found to be false.  This 
amount, after the exclusion of claims potentially based on the claim for which judgment as 
a matter of law was granted for defendants, is $43,335,049.71.  Added to those actual 
damages are other, harder-to-quantify harms.  These include, for example, the costs to the 
United States in investigating and litigating this action and the harms to patients resulting 
from any conflicts of interest between them and their doctors.  The Court will not attempt 

to  derive  an  exact  number,  but  the  harm  that  resulted  from  defendants’  conduct  is 
significant.                                                              
           c.  Ratio of Punitive Damages to Compensatory Damages         
    Calculating the ratio of punitive damages to compensatory damages in this matter 
is  not  straightforward.    Of  the  remaining  judgment,  $43,335,049.71  is  plainly 

compensatory.  That amount reimburses the United States for the amounts paid on false 
claims.  The remaining statutory penalties of approximately $355 million are plainly 
punitive.  But the trebled damages required by the FCA have been characterized as both 
compensatory and punitive, as “treble damages have a compensatory side, serving remedial 
purposes in addition to punitive objectives.”  Cook County, Ill. v. United States ex rel. 

Chandler, 

 (2003).  If the trebled damages in this matter were to be 
regarded as purely punitive, the ratio of punitive damages to compensatory damages would 
exceed 10-to-1.  If the trebled damages were to be regarded as purely compensatory, the 
ratio of punitive damages to compensatory damages would fall to just below 3-to-1.  The 
true ratio in this matter, after trebled damages have been divided between compensatory 
and punitive aspects, lies somewhere between those two figures.           

                        d.  Legislative Intent                           
    The Eighth Circuit and other courts have identified legislative intent as a relevant 
factor in determining whether a penalty amounts to a violation of the Excessive Fines 
Clause.  See Qwest Corp. v. Minnesota Public Utilities Commission, 

 
(8th Cir. 2005).  This Court would not be the first to observe that this is something of an 
oddity.  Where legislative intent is used to help guide the analysis of the Excessive Fines 

Clause, “Congress both levies the fine and, at least as a presumptive matter, determines its 
constitutionality,”  which  “[s]eems  a  bit  like  letting  the  driver  set  the  speed  limit.”  
Yates v. Pinellas Hematology & Oncology, P.A., 

 (11th Cir. 2021) 
(J. Newsom, concurring).  The legislative-intent factor is also tautological when applied to 
statutory penalties.  Every statutory penalty evinces the intent of the legislature to impose 

that penalty.  The legislature passed the statute, after all.             
    Although the penalties for FCA violations are established by Congress, there is at 
least one indication from Congress itself that the penalties resulting from defendants’ 
misconduct might be overly severe.  If defendants had been charged criminally with 
violations of § 1320a-7b(b) for every transaction found by the jury to be a kickback, and 

found guilty of those violations, which is by no means a certainty, in light of the greater 
burden of proof on the United States in criminal proceedings, the maximum fine that this 
Court could have imposed for the misconduct would have been a $100,000 fine on each 
count, or about $15.5 million for each defendant.  Indeed, the maximum fine that may be 
assessed for any federal criminal violation (except where the statute of conviction itself 
imposes a larger fine) is only $250,000 per offense for individuals or $500,000 per offense 

for organizations—that is, a fine of about $38.7 million for Paul Ehlen and a fine of $77.5 
million for Precision Lens.  See 

.  The minimum penalties called for under 
the FCA, even after excluding trebled damages, which should also be regarded as partly 
punitive, amount to more than $350 million in this case.  Cf. United States v. 817 N.E. 29th 
Drive, Wilton Manors, Fla., 

, 1309 n.9 (11th Cir. 1999) (observing that “[a] 
forfeiture far in excess of the statutory fine range . . . is likely to violate the Excessive Fines 

Clause.”).                                                                
                     e.  Defendants’ Ability to Pay                      
    There is not a great deal of evidence in the record regarding defendants’ ability to 
pay the judgment entered in this matter.  The evidence that has been presented to the Court, 
however, suggests that neither Precision Lens nor Paul Ehlen’s estate will be able to satisfy 

even the compensatory damages in this matter, much less any penalties imposed in addition 
to those compensatory damages.  Kathryn Weitzel Ehlen attests that Paul Ehlen’s estate 
possesses assets of approximately $25 million, not including Paul Ehlen’s interest in 
Precision  Lens.    See  Declaration  of  Kathryn  Weitzel  Ehlen,  Dkt. 1073-1.    William 
Henneman, chief executive officer of Precision Lens, estimates the current value of the 

company to be less than $5 million.  See Declaration of William Henneman, Dkt. 1073-2.  
In light of the evidence produced at trial, neither representation is implausible. 
           f.  Sanctions in Other Cases for Comparable Misconduct        
    Finally, the Court is tasked with reviewing the sanctions assessed in other cases for 

similar misconduct.  Performing this task is difficult in the context of this litigation for four 
reasons.                                                                  
    First, it is not entirely clear what “comparable misconduct” is supposed to entail.  
For  example,  do  all  claims  arising  under  the  FCA  involve  comparable  misconduct?  
Perhaps all claims arising under the FCA premised on violations of the AKS constitute 
“comparable  misconduct.”    Or  all  claims  arising  under  the  FCA  in  which  penalties 

comprise such a substantial portion of the overall monetary judgment may be deemed 
“comparable misconduct.”  Certainly, cases in which a medical supplier is found to have 
supplied purchasers with kickbacks in the form of trips, meals, and other enticements 
would be “comparable misconduct.”  Different scopes of comparison would potentially 
yield different results regarding the constitutional limits on damages imposed by other 

courts.                                                                   
    Second, having presided over a trial that lasted for nearly two months, the Court is 
very  familiar  with  defendants’  conduct.    By  contrast,  in  determining  the  relative 
reprehensibility of the conduct of defendants in other cases, the Court must rely on the brief 
synopses of evidence supplied in case reports.  This is a very imperfect substitute for having 

reviewed thousands of documents and listened to weeks of testimony.       
    Third, in those cases that appear most closely comparable to this litigation, few 
courts  have  concluded  that  the  penalties  imposed  exceed  the  constitutional  barrier.  
Sometimes this has been because the penalties required by the FCA are found not to violate 
the Excessive Fines Clause.  Other times, the United States has agreed to seek a lesser 
monetary judgment in an effort to evade a constitutional challenge.17  While it would not 

be accurate to conclude that the amounts sought by the United States in those cases 
necessarily represent the constitutional limit on penalties that could have been imposed in 
those cases, to say that the full imposition of penalties required by the FCA would have 
been a constitutional violation also is not an apt conclusion.  Unfortunately for this case, 
the United States’s decision to seek lesser amounts in judgment in prior litigation deprives 
other courts of the benefit of analysis regarding whether the penalties required by the FCA 

would have been a violation of the Excessive Fines Clause in those cases.  
    With those caveats, this Court briefly summarizes the monetary awards imposed in 
litigation similar to this matter, with a particular focus on those cases identified by the 
parties as comparable to this litigation.                                 


17 That is the case here as well.  Plaintiffs are now seeking only about $310 million rather 
than the $487 million currently reflected by the judgment.  Plaintiffs contend that “[i]t is 
uncontroversial that the [United States] possesses the discretion to seek a lower penalty 
amount in the context of a constitutional analysis.”  Dkt. 1059 at 46.  But it is far from 
obvious to the Court that either the United States or the Court has this discretion to ignore 
the penalties plainly required on the face of the FCA following a jury verdict—except, of 
course, insofar as the statutory penalties are unconstitutional.  Nor are the invocations by 
the United States of “prosecutorial discretion” convincing.  Undoubtedly it was withing the 
discretion of the United States not to prosecute tens of thousands of claims under the FCA 
against the defendant.  But it did prosecute those claims.  Prosecutorial discretion does not, 
as a general matter, entail the privilege of seeking relief outside the boundaries of the law. 

Of  course,  if  the  United  States  believes  the  penalties  imposed  by  the  FCA  to  be 
unconstitutional in the context of this litigation, then it has an obligation not to seek those 
penalties to the extent that the penalties violate the Excessive Fines Clause.  But in that 
case,  the  United  States  should  be  forthright  about  why  a  lesser  punitive  sanction—
particularly a sanction that is not permitted on the face of the statute—is being sought, 
rather than framing its constitutional obligations as noblesse oblige.    
                            i.  Tyson                                    
    Plaintiffs identify United States ex rel. Tyson v. Amerigroup Illinois, Inc., 

 (N.D. Ill. 2007) as comparable to the present matter.  Tyson involved false 
claims for Medicaid reimbursement found to violate the FCA.  The monetary penalties 
imposed in that litigation were roughly similar to the penalties imposed in this case, $48 
million in actual damages and an overall monetary judgment of $334 million based on 
18,130 false claims.  The Court in Tyson concluded that the penalty imposed in that matter 
did not violate the Excessive Fines Clause.                               

    Despite the facial similarities with this litigation, Tyson is in some ways a poor 
comparator for this lawsuit.  First, the claims in Tyson related not to kickbacks by a medical 
supplier, but to discrimination against unhealthy patients by an insurance company.  The 
conduct of defendants in that matter—“a several years long, institution-wide goal to fleece 
Defendants’ pockets at the expense of the United States, the Medicaid system, and . . . 

pregnant women and ‘unhealthies,’”  Tyson, 488 F. Supp. 2d at 745— was, in this Court’s 
view, more morally opprobrious than the conduct at issue in this case.  Second, the 
defendant in Tyson directly profited from the misconduct more so than Precision Lens 
profited from the misconduct at issue in this litigation. 18  Third, although the conduct in 
Tyson appears to have been somewhat more reprehensible than the conduct in this case. 


18 It is impossible, however, to know to what extent the Tyson defendant profited from the 
misconduct.  The defendant in Tyson boosted its profits by discriminating against unhealthy 
patients and thereby skewing the risk profile of the pool of insureds.  The measure of profit 
resulting from the scheme, then, was the difference between the profits actually accrued by 
the defendant and the profits that would have accrued if the defendant had not acted in a 
discriminatory manner.  See Tyson, 

.                
The penalties imposed on the defendant in that matter were approximately $160 million 
less than the penalties imposed under the FCA in this case (with nearly identical actual 

damages to the United States).  Fourth, the penalty imposed in Tyson, although large, was 
by no means crippling for the defendant.  See 

.                 
    In each of these respects, Tyson differs substantially from the current litigation, 
limiting the value of Tyson as a comparator case.  The Court, therefore, is reluctant to 
conclude that the judgment entered in Tyson would also be constitutional if entered in this 
case.                                                                     

                          ii.  Drakeford                                 
    In United States ex rel. Drakeford v. Tuomey, the United States Court of Appeals 
for the Fourth Circuit concluded that a judgment under the FCA of $237,454,195—of 
which $39,313,065 represented actual damages, $78,626,130 represented trebled damages, 
and $119,515,000 represented penalties— did not violate the Excessive Fines Clause.  

 (4th Cir. 2015).  Drakeford is helpful insofar as the Fourth Circuit appears 
to have concluded that the penalty imposed in that matter, although not constitutionally 
excessive, was approaching the limits of what the Excessive Fines Clause might permit.  
See 

 (noting that “the ratio of punitive damages to compensatory damages is 
approximately 3.6-to-1, which falls just under the ratio the Court deems constitutionally 

suspect.”).  As in this case, but unlike the penalty in Tyson, the penalty imposed in 
Drakeford was likely to have crippling effects on the defendant.  See 

 (J. Wynn, 
concurring) (“But I write separately to emphasize the troubling picture this case paints: An 
impenetrably complex set of laws and regulations that will result in a likely death sentence 
for a community hospital in an already medically underserved area.”).  The violations of 
the FCA in Drakeford were premised on violations of the Stark Law, 42 U.S.C. § 1395nn, 

not the AKS, but they are roughly comparable to the claims in this proceeding in terms of 
reprehensibility.                                                         
    While Drakeford is not a perfect comparator to this case, it is a closer comparator 
than the other cases examined in this section.  The amended judgment imposed in this 
matter is somewhat in line with the judgment imposed in Drakeford.  To be constitutionally 
permissible, the Court has entered a slightly lower judgment amount despite slightly higher 

actual damages resulting from the conduct of defendants in this matter.  The resulting ratio 
of punitive damages to actual damages awarded in this matter is marginally lower in this 
matter  than  in  Drakeford.    As  explained  by  the  Supreme  Court,  however,  “[w]hen 
compensatory  damages  are  substantial,  then  a  lesser  ratio,  perhaps  only  equal  to 
compensatory damages, can reach the outermost limit” of constitutionality.  State Farm, 

.  Accordingly, this Court has placed more emphasis on this statement than 
the Drakeford court.                                                      
                          iii.  Montcrieff                               
    The defendant in United States ex rel. Montcrieff v. Peripheral Vascular Associates, 
P.A., was found to have billed Medicare for services that it did not perform, thereby 

violating the FCA.  

, 409 (W.D. Tex. Jan. 9, 2023).  A jury awarded 
$2,728,199 in actual damages.  

.  Although the defendant faced a minimum 
statutory penalty of $40,590,000 in addition to trebled actual damages, the United States 
sought the imposition of only about half that amount in penalties.  

.  The court in 
Montcrieff concluded that this reduced demand did not result in a judgment exceeding the 
boundaries of the Excessive Fines Clause.  Because of the substantially lower amount 

awarded in actual damages, Moncrieff is a poor comparator for this case for two reasons, 
the substantially lower amount awarded in actual damages as well as the difference in 
underlying misconduct.                                                    
                            iv.  Lutz                                    
    In United States ex rel. Lutz v. BlueWave Healthcare Consultants, Inc., defendants 
performed unnecessary medical tests and later sought reimbursement for those tests under 

Medicare, resulting in total damages of approximately $17 million to Medicare. No. 9:14-
CV-00239-RMG, 

, at *2 (D.S.C. May 23, 2018),  The court in Lutz 
concluded that the imposition of approximately $64 million in statutory penalties did not 
exceed the limits of the Excessive Fines Clause.  

.  Lutz is not a useful comparator, 
however, because of the differences in underlying conduct and because the actual damages 

and penalties in that matter were substantially less than those in this case.  Moreover, the 
brief analysis in Lutz regarding the Excessive Fines Clause appears to be excessively 
deferential to the penalties imposed by Congress.                         
                       v.  Bickel and Mackby                             
    Defendants cite two cases in which the United States sought penalties drastically 

lower than those provided for by the FCA, United States v. Bickel, No. 02-3144, 

 (C.D. Ill. Feb. 22, 2006); and United States v. Mackby, 

 (9th 
Cir. 2003).  However, neither Bickel nor Mackby is a helpful comparator for precisely the 
reason that defendants cite those cases. The United States voluntarily agreed to a lesser 
recovery in those proceedings, thereby averting more significant challenges under the 
Excessive Fines Clause.  Because of litigation decisions made by the United States in those 

cases, Bickel and Mosby are not useful guides here for determining when a statutory penalty 
violates the Excessive Fines Clause.                                      
                          g.  Conclusion                                 
    After consideration of the appropriate factors—the reprehensibility of defendants’ 
conduct, the harm to the victim, the ratio of punitive damages to actual damages, legislative 
intent, the financial status of the defendants, and the penalties imposed in similar cases—

the Court concludes that the Excessive Fines Clause permits recovery of no more than 
$216,675,248.55 in this matter.  This amount consists of $43,335,049.71 of actual damages, 
$86,670,099.42 in trebled damages, and $86,670,099.42 in penalties.  This amount does 
not include post-judgment interest, statutory attorneys’ fees, or other taxable costs. 
    While no single factor was determinative in reaching that conclusion, the Court 

makes the following observations.  The amount of the judgment represents five times the 
actual damages imposed in this case.  If the portion of the judgment amount attributable to 
compensatory damages were limited to actual damages, the ratio of punitive damages to 
actual damages would be precisely 4-to-1.  Alternatively, if a relator’s share of 15 percent 
($32,501,287.28) were added to the actual damages figure ($43,335,049.71) and regarded 

as  compensatory,  the  punitive  damages  ratio  to  actual  damages  ratio  would  be 
approximately 1.85-to-1.                                                  
    This latter ratio is somewhat less than that found in many of the cases examined 
above.  But as the Supreme Court has observed, “[w]hen compensatory damages are 
substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the 
outermost limit of” what the constitution permits.  State Farm, 

.  The 

compensatory damages assessed in this matter, however calculated, are notably severe. 
Additional penalties well exceeding those compensatory damages remain imposed on top 
of the compensatory damages.  The conduct for which defendants were found liable 
warrants such a judgment.  The Court is mindful, however, that an amount greater than the 
amount imposed here threatens to become grossly disproportional to the gravity of the 
offense.  Aleff, 

.                                         

                      4.  Offset from Settlement                         
    Finally, defendants requested that the original amount of judgment in this matter be 
offset by the full amount for which Sightpath, Tiffany, and Swarup paid to the United States 
in settlement for claims related to the claims litigated against Paul Ehlen and Precision 
Lens.  Plaintiffs had “no objection” to applying a partial settlement offset of $2.481 million. 

Dkt. 1035 at 7.  The Court deducted this amount from the judgment entered in this matter, 
while reserving the question of whether a greater amount should be deducted. See Dkt. 
1042 at 4-5.                                                              
    Neither  party  has  vigorously  litigated  the  question  subsequently.    Defendants 
reference it briefly in their memorandum in support of the motion for post-judgment relief, 

see Dkt. 1048 at 26, and defendants do not provide any argument in their responsive brief.  
As the offset of additional settlement amounts would not alter the Court’s conclusion 
regarding the amount of judgment that could be imposed in this proceeding, the issue is 
largely moot.  And, after rereviewing defendants’ initial arguments regarding offset a 
second time, the Court concludes that defendants have not adequately established that more 
than  $2.481  million  of  the  settlement  amounts  is  attributable  to  conduct  for  which 

defendants were found liable in this matter.  The Court, therefore, would not reduce the 
amount of judgment further as a result of that settlement even if the resolution of the 
Excessive Fines Clause claim did not render the amount of settlement offset moot. 

    Based on the foregoing analysis and all the files, records, and proceedings herein, 

IT IS HEREBY ORDERED THAT:                                                
    1.   Defendants’ motion for post-judgment relief, Dkt. 1047, is GRANTED IN 
         PART and DENIED IN PART, as follows:                            
         a.   Defendants’ motion for judgment as a matter of law is GRANTED 
              regarding the claim related to the trip to New York City of Patrick 
              Riedel occurring on or about January 1, 2009.              

         b.   The motion is GRANTED insofar as the penalties imposed upon the 
              defendants under the False Claims Act constitute a violation of the 
              Excessive Fines Clause.                                    
         c.   The motion is DENIED in all other respects.                
    2.   The judgment in this matter is AMENDED to reflect a judgment amount of 

         $216,675,248.55, not including post-judgment interest, statutory attorneys’ 
         fees, or other taxable costs.                                   
    LET JUDGMENT BE ENTERED ACCORDINGLY.                                 

Dated: February 8, 2024         s/Wilhelmina M. Wright                   
                                Wilhelmina M. Wright                     
                                United States District Judge