PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-1811

UNITED STATES OF AMERICA, and the State of North Carolina, California and Illinois, ex rel., SCARLETT LUTZ, Relator; CHRIS REIDEL; KAYLA WEBSTER, Relator; DR. MICHAEL MAYES, Relator,

Plaintiffs – Appellees,

v.

LATONYA MALLORY,

Defendant – Appellant,

and

HEALTH DIAGNOSTIC LABORATORY INC.; SINGULEX INC.; LABORATORY CORPORATION OF AMERICA HOLDINGS; BLUEWAVE HEALTHCARE CONSULTANTS, INC.; PHILIPPE J. GOIX, PhD; FLOYD CALHOUN DENT, III; ROBERT BRADFORD JOHNSON; BERKELEY HEARTLAB, INC.; QUEST DIAGNOSTICS, INCORPORATED,

Defendants.

No. 18-1812

UNITED STATES OF AMERICA, and the States of North Carolina, California and Illinois, ex rel., SCARLETT LUTZ, Relator; DR. MICHAEL MAYES, Relator; CHRIS RIEDEL; KAYLA WEBSTER, Relator,

Plaintiffs – Appellees,

v. CHRISTINA M. DENT; LAKELIN PINES, LLC; TRINI “D” ISLAND, LLC,

Parties-in-Interest – Defendants,

and

LATONYA MALLORY; HEALTH DIAGNOSTIC LABORATORY INC.; LABORATORY CORPORATION OF AMERICA HOLDINGS; PHILIPPE J. GOIX, PhD; BERKELEY HEARTLAB, INC.; QUEST DIAGNOSTICS, INCORPORATED; SINGULEX INC.; BLUEWAVE HEALTHCARE CONSULTANTS, INC.; FLOYD CALHOUN DENT, III; ROBERT BRADFORD JOHNSON,

Defendants.

No. 18-1813

UNITED STATES OF AMERICA, and the State of North Carolina, California and Illinois, ex rel., SCARLETT LUTZ; KAYLA WEBSTER; CHRIS RIEDEL; DR. MICHAEL MAYES,

Plaintiffs – Appellees,

v.

ROBERT BRADFORD JOHNSON; FLOYD CALHOUN DENT, III; BLUEWAVE HEALTHCARE CONSULTANTS, INC.,

Defendants – Appellants,

AROC ENTERPRISES, LLC; BLUE EAGLE FARMING, LLC; CAE PROPERTIES, LLC; WAR-HORSE PROPERTIES, LLLP; EAGLE RAY INVESTMENTS, LLC; FORSE INVESTMENTS, LLC; ROYAL BLUE MEDICAL INCORPORATED; COBALT HEALTHCARE CONSULTANTS, INC.,

Parties-in-Interest – Appellants,

and

2 BERKELEY HEARTLAB, INC.; LATONYA MALLORY,

Defendants.

Appeals from the United States District Court for the District of South Carolina, at Beaufort. Richard Mark Gergel, District Judge. (9:11-cv-01593-RMG; 9:14-cv-00230- RMG; 9:15-cv-02485-RMG)

Argued: December 8, 2020 Decided: February 22, 2021

Before MOTZ, WYNN, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Wynn and Judge Floyd joined.

ARGUED: William Walter Wilkins, NEXSEN PRUET, LLC, Greenville, South Carolina; Beattie Ashmore, BEATTIE B. ASHMORE, PA, Greenville, South Carolina; Nekki Shutt, BURNETTE SHUTT & MCDANIEL, PA, Columbia, South Carolina, for Defendants. Benjamin M. Shultz, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Kirsten E. Small, NEXSEN PRUET, LLC, Greenville, South Carolina, for Defendants Floyd Calhoun Dent, III and Robert Bradford Johnson. Joseph P. Griffith, Jr., JOE GRIFFITH LAW FIRM, LLC, Mt. Pleasant, South Carolina, for Appellant Floyd Calhoun Dent, III. M. Dawes Cooke, Christopher M. Kovach, John W. Fletcher, BARNWELL WHALEY PATTERSON & HELMS, L.L.C., Charleston, South Carolina, for Defendants Floyd Calhoun Dent, III and Robert Bradford Johnson and Parties-in-Interest Blue Eagle Farming, LLC, Eagle Ray Investments, LLC, Forse Investments, LLC, War-Horse Properties, LLLP, Royal Blue Medical, Inc., AROC Enterprises, LLC, CAE Properties, LLC, and Cobalt Healthcare Consultants, Inc. Jacqueline M. Pavlicek, BURNETTE SHUTT & MCDANIEL, PA, Columbia, South Carolina, for Parties-in-Interest Christina Dent, Lakelin Pines LLC, and Trini “D” Island, LLC. Joseph H. Hunt, Assistant Attorney General, Charles W. Scarborough, Melissa N. Patterson, Benjamin M. Shultz, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Sherri A. Lydon, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellees.

3 DIANA GRIBBON MOTZ, Circuit Judge:

LaTonya Mallory, the owner of a blood testing laboratory, and the two men who led

its sales operation, Floyd Calhoun Dent III and Robert Bradford Johnson (collectively,

“Defendants”), appeal a jury verdict finding them liable for multiple violations of the False

Claims Act,

. During a twelve-day trial, the Government presented

evidence that Defendants violated the Act in several ways, including by paying physicians

for drawing patients’ blood and processing the blood samples in violation of the

Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b). Notwithstanding their vigorous

protestations of innocence, the jury found that Defendants had indeed violated the False

Claims Act and assessed actual damages in excess of $16 million. In a series of careful

opinions, the district court denied their post-trial motions for judgment as a matter of law

and for a new trial. After trebling the actual damages and adding civil penalties, as required

by the False Claims Act, the district court entered judgment against all three Defendants

for $111,109,655.30 and against Dent and Johnson for an additional $3,039,006.56. For

the reasons that follow, we affirm the judgment of the district court in all respects.

I.

In 2008, Mallory founded Health Diagnostic Laboratory (“HDL”), which provided

blood testing for cardiovascular disease and diabetes. One year later, Dent and Johnson

formed BlueWave Healthcare Consultants, Inc., which entered into an exclusive contract

with HDL to market and sell HDL’s tests. In addition to a base fee, HDL agreed to pay

BlueWave a percentage of its revenue based on the number of HDL blood tests that

4 physicians ordered. In 2010, BlueWave entered into a similar agreement with another lab,

Singulex, which also provided blood testing for cardiovascular disease. This contract, too,

permitted BlueWave to collect a base amount plus a sales commission based on the number

of tests sold.

HDL agreed to pay BlueWave between 13.8 and 19.8 percent of the revenue it

generated for HDL. Singulex agreed to pay BlueWave 24 percent of the revenue it

generated for HDL. To fill out its sales force, BlueWave then contracted with other

independent salespeople. Under these agreements, the salespeople also obtained

commissions based on the volume of sales made.

HDL and Singulex used the same business model: in exchange for ordering one of

their blood tests, the labs paid physicians a “process and handling fee” (“P&H fee”).

According to Defendants, the P&H fee covered the costs physicians incurred when

preserving a blood sample and shipping it to either HDL or Singulex. HDL paid physicians

a $3 “draw fee” (compensation for drawing blood) plus a $17 P&H fee (compensation for

handling and shipping the blood samples), for a total of $20. Singulex paid physicians $13

for drawing and processing the blood.

Between 2010 and June 2014, Medicare and TRICARE (the federal health care plan

for members of the military) paid HDL approximately $538 million and HDL paid

BlueWave approximately $220 million. Medicare and TRICARE paid Singulex

approximately $47 million, and Singulex paid BlueWave approximately $24 million.

At trial, the Government contended that the volume-based commissions paid by

HDL and Singulex to BlueWave and its sales contractors violated the Anti-Kickback

5 Statute because these commissions constituted “remuneration” intended to induce sales

representatives to sell as many tests as possible. The Anti-Kickback Statute prohibits

“knowingly and willfully” soliciting or receiving remuneration in exchange for “arranging

for the furnishing” of a healthcare service and “recommending purchasing” a healthcare

service. 42 U.S.C. § 1320a-7b(b)(1). It also prohibits “knowingly and willfully” paying

remuneration to “induce” someone to take such actions. Id. § 1320a-7b(b)(2). The

Government maintained that the statute thus prohibited HDL and Singulex from paying

BlueWave for inducing others to arrange the tests. Similarly, the Government contended

that the statute prohibited BlueWave from paying its salespeople for recommending

purchase of the tests. The Government argued that since Defendants knowingly entered

into agreements to pay independent contractors based on volume, they violated the

Anti-Kickback Statute. Because that statute provides that a claim that violates its terms

also “constitutes a false or fraudulent claim” under the False Claims Act, id. § 1320a-7b(g),

the Government contended that this Anti-Kickback Statute violation also gave rise to

liability under the False Claims Act. The jury agreed.

II.

Defendants assert that the district court fundamentally erred in denying them

judgment as a matter of law. See Fed. R. Civ. P. 50(b). We review the denial of a judgment

as a matter of law de novo, but reverse only if substantial evidence does not support the

jury’s findings. Konkel v. Bob Evans Farms Inc.,

(4th Cir. 1999). We

6 can set aside the verdict only if “no rational trier of fact could have agreed with the jury.”

Cavazos v. Smith,

(2011) (per curiam).

A.

Defendants initially and principally contend that the Government failed to prove

that they “knowingly and willfully” violated the Anti-Kickback Statute, see 42 U.S.C. §

1320a-7b(b)(1), and so they cannot have “knowingly” run afoul of the False Claims Act.

This argument rings hollow. The Government provided abundant evidence as to

Defendants’ knowledge and intent.

Attorneys from within both HDL and BlueWave warned Defendants that paying

commissions to independent contractors might well violate the Anti-Kickback Statute. 1

For example, in August 2012, HDL’s general counsel, Derek Kung, wrote a memo to HDL

board members — including Mallory — explaining that its BlueWave contract posed a

“high degree of risk” of violating the Anti-Kickback Statute. Kung explained that the U.S.

Department of Health and Human Services’s Office of the Inspector General “has provided

commentary regarding its concern over independent contractor sales agreements with

compensation based on a percentage of sales.” He urged the Board to change to an

“employee based sales system.”

Similarly, HDL employee Nicholas Pace, a lawyer who oversaw HDL’s compliance

efforts, testified that he recognized that the Anti-Kickback Statute prohibited arrangements

1 Because we conclude that the Government provided sufficient evidence to show that the commissions violated the Anti-Kickback Statute and accordingly the False Claims Act, we do not address the Government’s other theories of liability.

7 like the commission-based one with BlueWave, and that he discussed these concerns in

meetings with board members, including Mallory. He told the Board that HDL’s

arrangement with BlueWave was concerning because HDL “rel[ied] on a third party that

owned the customer relationship, paying them tens of millions of dollars under that

arrangement.” And in November 2013, an attorney working for BlueWave sent Johnson

the opinion in United States v. Vernon,

(11th Cir. 2013), which upheld a

conviction under the Anti-Kickback Statute based on the payment of commissions to a

third party.

The Government also offered evidence that outside lawyers warned all three

Defendants about the illegality of the commissions. Brian E. Dickerson, an attorney for

BlueWave salesperson Emily Barron, testified that he cautioned BlueWave about problems

with the commissions in September 2013. He recalled that Barron came to him with a legal

opinion from another lawyer stating that both the P&H fees and the volume-based

commission structure violated the Anti-Kickback Statute, so she asked him to review her

contract with BlueWave. Dickerson agreed that the scheme was not legal and advised

Barron to terminate her relationship with BlueWave.

Dickerson also attempted to reach someone at BlueWave who could offer a legal

opinion as to its business practices. At one point, Mallory forwarded an email from

Dickerson to her colleagues, including Dent and Johnson. In her email, Mallory stated that

Dickerson “communicated to Derek [Kung] yesterday and again today that he has issues

with the [BlueWave] contract.”

8 Dickerson testified that he told three BlueWave attorneys directly that the

commissions violated the Anti-Kickback Statute. He never received a legal opinion from

BlueWave in response. Shortly thereafter, BlueWave fired Barron. From these clear

warnings about the commissions scheme’s potential illegality, a reasonable jury could

certainly infer that Defendants “knowingly and willfully” offered or accepted

remunerations in violation of the Anti-Kickback Statute.

Moreover, Defendants’ justifications for their continued blind eye to illegal activity

in no way undermines the jury’s conclusion as to their knowledge. Defendants claim that

because the Anti-Kickback Statute is ambiguous, they could have reasonably concluded

that the statute did not prohibit volume-based commissions, and so they cannot have

knowingly violated the False Claims Act. They rely on U.S. ex rel. Purcell v. MWI Corp.,

(D.C. Cir. 2015), but that case involved a dispute over duties based on

ambiguous contractual language, not a claim based on assertedly ambiguous statutory

language. In any event, contentions “like these — that a defendant cannot be held liable

for failing to comply with an ambiguous term — go to whether the government proved

knowledge.”

. Here, unlike in Purcell, Defendants were repeatedly “warned

away from [their] interpretation” of purportedly ambiguous terms, including by legal

practitioners.

. Ample evidence permitted the jury to conclude that Defendants

willfully violated the Anti-Kickback Statute, and so knowingly violated the False Claims

Act.

Nor do we find any more persuasive Defendants’ contention that they could not

have known about the commissions’ illegality because attorneys helped draft the contracts

9 providing for commission payments. Defendants point to no legal opinion on which they

relied in concluding that the Anti-Kickback Statute permitted commission payments to

independent contractors. Moreover, the jury could have reasonably concluded that

Defendants should have given more consideration to the many subsequent warnings about

the commissions. See U.S. ex rel. Drakeford v. Tuomey,

(4th Cir. 2015)

(“In determining whether [defendants] reasonably relied on” the advice of counsel, the jury

“was entitled to consider all the advice given to it by any source.” (internal citation

omitted)).

Similarly, Defendants cannot rely on outside audits as a justification for questioning

the legality of the commission scheme. These audits did not require the jury to find that

Defendants acted legally. In fact, one auditor specifically explained that its services were

“not designed, nor should they be relied upon, to disclose . . . illegal acts.”

In sum, Defendants offer no argument or evidence that required the district court to

grant them judgment as a matter of law. Rather, based on all of the evidence presented at

trial, a reasonable jury could conclude that Defendants willfully paid commissions to

independent contractors and, accordingly, that they knowingly violated the Anti-Kickback

Statute. Of course, the jury did not have to reach this conclusion — but certainly the

evidence offered by the Government permitted it to do so.

B.

Defendants also contend that they are entitled to judgment as a matter of law

because, assertedly, commissions to salespeople can never constitute kickbacks under the

Anti-Kickback Statute. But no language in the statute so provides. Moreover, federal

10 appellate courts have frequently, and indeed invariably, upheld Anti-Kickback Statute

violations based on commission payments to third parties. See, e.g., United States v. St.

Junius,

, 209–10 (5th Cir. 2013); United States v. Vernon,

,

1256–58 (11th Cir. 2013); United States v. Polin,

, 864–66 (7th Cir. 1999).

The Anti-Kickback Statute does include a statutory safe harbor for commissions

paid to salespeople who are “employee[s]” that have a “bona fide employment

relationship” with their employer. 42 U.S.C. § 1320a-7b(b)(3)(B). But the Department of

Health and Human Services has expressly recognized that this safe harbor does not cover

independent contractors. In 1989, when considering regulatory safe harbors, the agency

noted that “many commenters” wanted to expand the safe harbor “to apply to independent

contractors paid on a commission basis,” but it “declined to adopt this approach.”

, 3093 (Jan. 23, 1989). The agency explained that it refused to do so because of

the “many examples of abusive practices by sales personnel who are paid as independent

contractors.”

The Department then noted that if employers “desire to pay []

salesperson[s] on the basis of the amount of business they generate,” they “should make

these salespersons employees” to avoid “civil or criminal prosecution.”

Two years

later, in 1991, when the Department finalized its safe harbor rules, it again refused to apply

the commissions safe harbor to independent contractors “because of the existence of

widespread abusive practices by salespersons who are independent contractors.”

(July 29, 1991).

Defendants also argue that, because BlueWave sales representatives did not directly

refer HDL or Singulex tests to patients, Defendants cannot be liable under the

11 Anti-Kickback Statute. But they misread the plain text of the statute. The statute expressly

prohibits individuals from receiving remuneration in exchange for “arranging for or

recommending purchasing” healthcare services. 42 U.S.C. §§ 1320a-7b(sb)(1)(B),

(b)(2)(B). This includes sales representatives who are compensated for recommending a

healthcare service, like the HDL or Singulex tests, to physicians. See Vernon,

(explaining that no provision of the Anti-Kickback Statute is “limited to payments to

physicians”); Polin,

(noting that § 1320a-7b(b)(2)(B) penalizes the

recommendation of healthcare services, regardless of who recommends them). Again,

Defendants’ argument does not provide a basis for judgment as a matter of law.

III.

In addition to their claim of entitlement to judgment as a matter of law, Defendants

offer a litany of reasons why the district court assertedly erred in denying them a new trial.

We review denials of a new trial for abuse of discretion, and a new trial is warranted only

if the verdict is against the clear weight of the evidence, based upon false evidence, or will

result in a miscarriage of justice. Minter v. Wells Fargo Bank, N.A.,

(4th Cir. 2014).

A.

First, Defendants contend that they are entitled to a new trial based on a variety of

purported legal errors in the district court’s jury instructions.

12 i.

Defendants argue that the district court erred in refusing to give a stand-alone

advice-of-counsel instruction. To establish the advice-of-counsel defense, a “defendant

must show the (a) full disclosure of all pertinent facts to [counsel], and (b) good faith

reliance on [counsel’s] advice.” Drakeford,

(alterations in original)

(quoting United States v. Butler,

(4th Cir. 2000)).

Defendants requested an instruction stating that they “have asserted an affirmative

defense of advice of counsel to the Government’s allegations that they violated the False

Claims Act” and that the affirmative defense, “if true, will completely defeat the

Government’s allegations under the False Claims Act.” The district court refused to give

this instruction because it concluded that the instruction did not fit the facts of the case.

This was so, the court explained, because Defendants did not produce evidence that

they made full disclosure of all pertinent facts to counsel, nor did they identify any specific

legal opinion, written or otherwise, that they relied upon from HDL and BlueWave’s

formation until at least 2012. In response, Defendants point to an email sent by an attorney

from the law firm LeClairRyan to his colleague in 2009. However, Defendants offered no

evidence that they ever read this email. And in the email, the lawyer simply says that in

his “recollection, P&H fees do[] not run afoul of Anti-[K]ickback,” but he “want[ed] to

confirm that no recent OIG [o]pinions have slipped past [him].” This is hardly a clear

endorsement of the P&H fee structure.

13 Furthermore, although the district court did not give the advice-of-counsel

affirmative defense instruction proposed by Defendants, it did instruct the jury to consider

Defendants’ “good faith” reliance on legal advice. The court explained:

A defendant who acts with a good-faith belief that his or her conduct is lawful does not willfully violate the Anti-Kickback Statute even if that belief is mistaken . . . . In determining whether a defendant acted in good faith, you must consider the totality of the evidence presented. This includes all of the legal opinions and advice received by or known to the defendant, regardless of the source, to determine whether the defendant acted in good faith.

This charge captured the essence of Defendants’ proposed instruction — if the jury found

that Defendants, relying on the advice of counsel, had a good-faith belief that their conduct

was legal, then they did not violate the Anti-Kickback Statute. Thus, the district court’s

refusal to give the stand-alone advice-of-counsel instruction that Defendants requested

provides no basis for reversal. See Noel v. Artson,

(4th Cir. 2011) (only

when a requested instruction is “not substantially covered by the court’s charge to the jury”

does an appellate court reverse).

ii.

Defendants’ next challenge to the jury instructions arises from former BlueWave

sales contractor Kyle Martel’s invocation of the Fifth Amendment. The district court

instructed the jury that:

[I]f you find that [a] witness was a member of a conspiracy to violate the False Claims Act, you may but are not required to infer [from their] refusal [to testify] that the witness’s answer would have been unfavorable to the interests of any co-conspirator.

At trial, the Government questioned Martel for 25 minutes, and he invoked the Fifth

Amendment in response to nearly every question. The Government presented Martel with

14 a number of exhibits, including emails he sent marketing HDL’s tests as a profit source.

Defendants contend that the district court improperly instructed the jury that it could infer

guilt from his silence. 2

The Supreme Court has long recognized that there exists a “prevailing rule that the

Fifth Amendment does not forbid adverse inferences against parties to civil actions when

they refuse to testify in response to probative evidence offered against them.” Baxter v.

Palmigiano,

(1976). And a “non-party’s silence in a civil proceeding

implicates Fifth Amendment concerns to an even lesser degree” than a party’s invocation

of the privilege. LiButti v. United States,

(2d Cir. 1997) (quoting RAD

Servs., Inc. v. Aetna Cas. & Sur. Co.,

(3d Cir. 1986)) (internal quotation

marks omitted).

In determining whether a district court may permit adverse inferences, we engage

in a case-specific analysis. See Cerro Gordo Charity v. Fireman’s Fund Am. Life Ins. Co.,

(8th Cir. 1987). Courts generally follow the factors set forth by the

Second Circuit in LiButti: (1) the nature of the relevant relationships; (2) the degree of

control of the party over the non-party witness; (3) the compatibility of interests of the

party and non-party witness in the outcome of the litigation; and (4) the role of the non-

party witness in the litigation. LiButti, 107 F.3d at 123–24.

2 Defendants do not renew on appeal their trial challenge to the admission of Martel’s invocation of his Fifth Amendment rights as violative of the Federal Rules of Evidence.

15 As a BlueWave contractor, Martel played a substantial role in Defendants’ scheme.

See RAD Servs.,

(permitting the jury to draw an adverse inference when

the record was “replete with circumstantial evidence of” the witnesses’ “involvement with

the alleged plan”). The Government introduced evidence that BlueWave paid Martel

nearly $6 million in commissions in exchange for selling HDL’s tests. Evidence also

showed that Martel emphasized physicians’ ability to profit from P&H fees, a key

component of the Government’s case. And by requiring that the jury first find that Martel

was a co-conspirator, the district court cabined its instruction, ensuring that the jury would

only consider Martel’s invocation of the Fifth Amendment to the extent it was relevant to

their assessment of Defendants’ liability.

It is immaterial that Martel no longer worked for BlueWave or HDL at the time of

trial. Courts have often permitted invocation of the Fifth Amendment by a former

employee of a company that is a party to the litigation. See, e.g., Cerro Gordo Charity,

; RAD Servs.,

; Brink’s Inc. v. City of New York,

, 710 (2d Cir. 1983). Accordingly, we see no error in the jury instructions

permitting the jury to make adverse inferences based on Martel’s testimony.

iii.

Defendants raise two additional challenges to the jury instructions. Both are

meritless.

Defendants first contend that the district court erred by failing to instruct the jury

that it must find that a false claim be “material.” Instead, the court instructed the jury that

if it found that a claim violated the Anti-Kickback Statute, the second element of the False

16 Claims Act — that “[t]he claim was false or fraudulent” — was necessarily satisfied. The

instruction was proper. The Anti-Kickback Statute expressly states that “a claim that

includes items or services resulting from a violation of this section constitutes a false or

fraudulent claim for purposes of” the False Claims Act. 42 U.S.C. § 1320a-7b(g). A

violation of the Anti-Kickback Statute thus automatically constitutes a false claim under

the False Claims Act. See United States ex rel. Lutz v. United States,

(4th Cir. 2017) (“An [Anti-Kickback Statute] violation that results in a federal health care

payment is a per se false claim under the [False Claims Act].”); see also Guilfoile v. Shields,

, 190–91 (1st Cir. 2019). 3

Defendants also argue that the district court erred when it told the jury that the

Government must prove “that at least one purpose of the remuneration” was to induce the

referral of services, rather than the “primary purpose of the remuneration.” This

instruction, too, was proper, as every circuit to address the issue has held. See, e.g., United

States v. Borrasi,

, 781–82 (7th Cir. 2011); United States v. McClatchey,

(10th Cir. 2000); United States v. Davis,

(5th Cir.

3 Defendants appear to argue that the district court should have also instructed the jury on the False Claims Act’s “false statement” provision, which prohibits knowingly making or causing to be made “a false record or statement material to a false or fraudulent claim.”

(a)(1)(B). But the theory of liability propounded by the Government — on which we base our holding — implicates only the “presentment” provision of that statute, which prohibits “knowingly present[ing], or caus[ing] to be presented, a false or fraudulent claim for payment or approval.”

§ 3729(a)(1)(A). The district court properly instructed the jury on the elements of a “presentment” claim, so Defendants’ argument is not relevant here.

17 1998); United States v. Kats,

(9th Cir. 1989); United States v. Greber,

, 71–72 (3d Cir. 1985).

B.

In addition to their jury-instruction arguments, Defendants contend that the district

court abused its discretion by excluding three defense experts: Daniel Mulholland, a

healthcare attorney; Jessica Schmor, a nurse; and Curtis Udell, a purported expert on the

fair-market value of P&H fees.

Under Federal Rule of Evidence 702, the trial judge “must ensure that any and all

scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v.

Merrell Dow Pharms., Inc.,

(1993). In determining whether an expert’s

reasoning or methodology is scientifically valid, a court considers a host of Daubert

factors, including whether the theory can be (and has been) tested; whether the technique

is subject to peer review; the rate of error; the existence of standards controlling the

technique’s operation; and whether the technique has garnered general acceptance.

at

593–94.

The district court excluded Mulholland’s testimony as to whether Defendants

“would have reason to know what the legal obligations were.” The court explained that

this testimony presents a legal conclusion informing the jury about how it should apply the

law, which is prohibited. See United States v. Barile,

(4th Cir. 2002).

The district court excluded Schmor’s testimony because her opinion did not rest on

sufficient facts or data. Schmor, a nurse, sought to testify as to Medicare’s reimbursement

code calculations, but she lacked personal knowledge about Medicare’s precise

18 methodology. Similarly, the district court excluded Udell’s testimony because the Court

found his methodology for calculating the fair market value of P&H fees unreliable. Udell

based his calculation on the amount physicians charge for various services. Because

physicians consistently inflate charges to ensure they receive full reimbursement from

Medicare, the court concluded that Udell’s proposed figures did not represent the actual

value of the processing and handling services. In excluding the testimony of these experts,

the district court did not abuse its discretion. 4

IV.

Finally, Dent challenges the district court’s grant of prejudgment writs of

attachment. At issue are three properties that Dent transferred to his wife and to two

corporations that she controlled.

Pursuant to the Federal Debt Collection Procedures Act, the Government may

obtain a prejudgment remedy in connection with a “claim for a debt.”

.

Under Subchapter D of the Act, the Government must first establish that a transfer is

fraudulent.

§ 3304. Then, the Government can rely on “applicable principles of equity”

4 We summarily reject two additional, meritless contentions from Defendants. First, they argue that the jury rendered a fatally inconsistent verdict by imposing personal liability on Dent and Johnson but not BlueWave. The jury rendered a general verdict in this case, which in civil cases “must be accepted” notwithstanding any possible inconsistencies. Hines v. IBG Int’l, Inc.,

, 1334 (4th Cir. 1987). Second, using cherry-picked data, Mallory argues that the $16,601,591 damages award against her improperly included certain false claims attributed to Singulex. Given the dearth of support for her argument and our “general reluctance to inquire into the workings of the jury,” United States v. Powell,

(1984), this challenge cannot succeed.

19 to void the transfer, use a remedy against “the asset transferred or other property of the

transferee,” or seek “any other relief the circumstances may require.”

§ 3306(a).

The district court found that Dent’s property transfers were fraudulent. A transfer

is fraudulent if the debtor makes the transfer “with actual intent to hinder, delay, or defraud

a creditor.” Id. § 3304(b)(1)(A). The statute outlines certain factors courts should look to

in determining intent in this context, including whether the transfer was to an insider,

whether the debtor retained control of the property after the transfer, whether the debtor

had been threatened with suit before the transfer, whether the value of the consideration

was roughly equivalent to the value of the asset, and whether the debtor was insolvent.

Id. § 3304(b)(2).

Many of these factors are present here. The timing of the transfers, as well as the

nominal amount of consideration, cuts in favor of the Government. Dent made the transfers

several months after he knew he was under federal investigation. He received a subpoena

from the Department of Health and Human Services in January 2013. On May 1, 2013, he

purchased a real property for $1.6 million, and sold it to his wife for $5 that same day —

consideration far less than the value of the property. In August 2013, he sold a parcel of

land that he had purchased for $2.75 million to his wife, again for $5. In February 2014,

Dent sold six more properties to his wife for $5, and an island to one of his wife’s corporate

entities for $5.

Moreover, Dent transferred the properties to an insider — either to his wife or to

corporations controlled by his wife. He retained possession and control of the properties,

acknowledging that one of the properties at issue remains his “family home” and that his

20 parents reside in another. Dent’s actions meet the standard for a fraudulent transfer. See

id. § 3304(b)(2). Accordingly, the district court did not err in granting the prejudgment

writ of attachment.

V.

For the foregoing reasons, the judgment of the district court is in all respects

AFFIRMED.

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