Jones Ex Rel. United States v. Massachusetts General Hospital ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-1973
KENNETH JAMES JONES, ex rel. United States of America,
Plaintiff, Appellant
PRISCILLA PITT JONES, Ed.D., ex rel. United States of America;
UNITED STATES, ex rel. Kenneth James Jones
v.
MASSACHUSETTS GENERAL HOSPITAL; MARILYN ALBERT, Ph.D.;
RONALD J. KILLIANY, Ph.D.; BRIGHAM & WOMEN'S HOSPITAL
Defendants, Appellees.
HARVARD MEDICAL SCHOOL; HARVARD UNIVERSITY;
MARIE F. KIJEWSKI, Sc.D.
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Howard, Lipez and Thompson,
Circuit Judges.
Jeremy L. Friedman, with whom Michael D. Kohn, Kohn, Kohn &
Colapinto, LLP, William D. Hughes and Hughes & Nunn LLP were on
brief, for appellant.
Alan D. Rose, with whom Brian D. Lipkin and Rose, Chinitz &
Rose were on brief, for appellees.
March 16, 2015
HOWARD, Circuit Judge. Relator Kenneth Jones alleges
that defendants Dr. Ronald Killiany and Dr. Marilyn Albert
knowingly made false statements when submitting a grant application
to the National Institute on Aging ("NIA") and knowingly falsified
certain scientific data underlying the application. Those false
statements, Jones contends, influenced the NIA's decision to award
over $12 million in federal funds to Massachusetts General Hospital
and Brigham and Women's Hospital. In 2006 Jones filed a qui tam
action pursuant to the False Claims Act, 31 U.S.C. § 3729 (the
"FCA"), and in a previous appeal we vacated the district court's
entry of summary judgment in favor of the defendants. United
States ex. rel. Jones v. Brigham & Women's Hosp., 678 F.3d 72 (1st
Cir. 2012) ("Jones I"). The case proceeded to trial, and a jury
found for the defendants. Jones appealed again and now argues that
the district court erred in denying his motions for judgment as a
matter of law and for a new trial. Finding no reason to upset the
jury's considered verdict, however, we affirm the judgment below.
I. Background
A. Factual Background
In our previous decision we set forth the basic facts
underlying Jones's FCA claim. See Jones I, 678 F.3d at 75-79. We
repeat only those facts necessary to understand the claims that
Jones asserts in this latest appeal.
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On October 2, 2001, the defendants submitted a Program
Project Grant ("PPG") application to the NIA.1 The grant
application consisted of several distinct projects proposed by
researchers at Massachusetts General Hospital and Brigham and
Women's Hospital, organized around a common goal: to identify
physical characteristics or mental capacities that could accurately
predict the onset of Alzheimer's disease in patients. Jones
maintains that the application contained materially false claims
that induced the NIA to award the grant.
Dr. Marilyn Albert, one of the defendants, served as the
Principal Investigator of the PPG. In that role, Albert was
responsible for overseeing all research under the grant,
coordinating the work of the various projects, and ensuring
compliance with all NIH requirements. Albert also signed the
application submitted to the NIA. Four "Cores" provided specific
types of research or administrative support to the projects. As
pertinent to this case, relator Jones led "Core B," the Data
Management and Statistical Core of the PPG. As the leader of that
core, Jones assessed, compiled, and analyzed the data produced by
the various projects.
1
The NIA is an institute within the National Institutes of
Health (“NIH”). Grants for age-related research are submitted
first to the NIH's Center for Scientific Review and then forwarded
to the NIA. Jones I, 678 F.3d at 78. The parties refer generally
to the "NIH" in their briefs and, accordingly, we refer to the NIA
and NIH largely interchangeably for purposes of this opinion.
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Jones's FCA claim focuses on a single project under the
PPG umbrella: "Project 3." That project, led by defendant Dr.
Killiany, a neuroanatomist, sought to identify and measure certain
regions of interest in the brain. The study's goal was to
determine whether any physical characteristics of those regions
could be used to appreciably predict whether a person with mild
memory problems would go on to develop Alzheimer's disease. Jones
asserts that, leading up to the 2001 application, Killiany
intentionally manipulated data that formed the cornerstone of the
Project 3 proposal. That data involved the entorhinal cortex
("EC"), a small structure in the brain that serves as a pathway
into the hippocampus and may also play an independent role in a
person's memory.
To track changes in the EC and its relationship to
Alzheimer's disease, at the outset of the study each participant
was placed into one of two categories based on that participant's
clinical dementia rating. Participants labeled as "normal" showed
normal, healthy cognition, while those labeled as "questionable"
presented mild memory problems. Over the course of the study, if
a "questionable" participant's cognitive difficulties progressed to
the point that she developed probable Alzheimer's disease, that
participant was placed into yet a third category and reclassified
as a "converter."
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A Magnetic Resonance Imaging ("MRI") scan was taken of
each participant, and those scans were used to measure the size of
each participant's EC. By all accounts, the EC is a difficult
structure to measure; it is generally only about one cubic
centimeter in volume, and its boundaries are difficult to discern
on an MRI scan. In 1997, Killiany and another researcher, Dr.
Teresa Gomez-Isla, developed a "protocol" to predictably locate and
outline the EC. They focused on identifying the boundaries between
the EC and surrounding regions of the brain and employed what they
both would describe at trial as a "conservative" approach to
measuring the EC. Killiany and Gomez-Isla (functioning as
"raters") then employed this approach for the scans of a group of
twenty-five participants. The raters manually traced the EC on MRI
scans of each participant using a trackball mouse and software
called "Neuroview." Importantly, both raters were allegedly
"blinded," meaning that they were not informed of a participant's
cognitive categorization as "normal" or "questionable."
Members of Core B, the statistical core, then conducted
a "reliability study," comparing Killiany's and Gomez-Isla's
twenty-five tracings to determine whether two raters could, in
practice, consistently implement the protocol and reach similar
results. The comparison yielded an inter-rater reliability
measure, or Pearson coefficient, of 0.96, representing a very close
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match and indicating that two raters could predictably trace the EC
and obtain consistent measurements.
Following the reliability study, Gomez-Isla's role in the
study concluded. Killiany pressed on and measured the EC of other
participants in the study. Over the course of the study, Killiany
measured the EC of approximately 103 total participants. As he
completed his measurements, he would periodically send his
calculations to Dr. Mary Hyde, the Data Manager for the statistical
core. As he progressed, however, Killiany identified several
"anatomical anomalies" in the brains of certain participants. He
also testified that implementing the protocol presented a learning
curve. As he encountered anomalies and learned more about the EC,
he reviewed his prior measurements. When a prior measurement
seemed inaccurate, Killiany "would remeasure the area and reapply
the operational definition, based on [an] increasing amount of
information about measuring the structure on MRI." When Killiany
remeasured a participant's EC, he sent a separate file with the new
measurement to Hyde rather than overwriting his original
measurements. This practice resulted in duplicate tracings of the
same MRI scan for some participants. In four instances, Killiany
remeasured scans that had been compared with Gomez-Isla's
measurements in the reliability study.
Based on Killiany's second set of measurements, the study
concluded that the volume of a subject's EC could predict with 93%
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certainty whether a previously "questionable" participant with mild
memory problems would become a "converter" and eventually develop
Alzheimer's disease. This finding was presented in a 2000 article
in the Annals of Neurology on which Killiany, Albert, and Jones--
among others--were listed as co-authors. That article also
reported the inter-rater reliability rating of 0.96.
In early 2001, Dr. Keith Johnson from Brigham & Women's
Hospital, who led a separate project under the proposed PPG grant,
first noticed the existence of two sets of EC measurements for some
participants. Johnson brought this discrepancy to Jones's
attention by e-mail on February 7, 2001. Jones investigated the
matter and became concerned about the efficacy of Killiany's data.
Jones raised those concerns in a March 2001 meeting with Albert and
informed her that a statistically significant relationship between
the volume of a participant's EC and her clinical dementia rating
only existed when Killiany's second set of measurements were used.
By contrast, if Killiany's original measurements were substituted,
the relationship disappeared. Without Killiany's remeasurements,
no statistically significant relationship was apparent from the
data. Given this discrepancy, Jones requested that Albert review
the matter.
Albert asked Dr. Mark Moss, a neuroanatomist, to review
twenty-three specific measurements about which Jones had particular
concerns. Moss reviewed each of those scans and, with one
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exception, concluded that Killiany's second set of measurements
more accurately outlined the EC for each participant. Unsatisfied
with Moss's conclusion, Jones requested that the scans be
remeasured by an independent evaluator. Albert refused this
request.
Albert and MGH submitted the application to the NIA on
October 2, 2001. The application described the preliminary results
of several of the Alzheimer's disease studies, including Killiany's
study of the EC. It reported the study's finding that the volume
of the entorhinal cortex could predict--with 93% accuracy--whether
a "questionable" participant would go on to develop Alzheimer's
disease. Furthermore, in describing the methods undertaken to
produce those results, the application stated that all operators
were "blinded to the groupings of the subjects (e.g., control,
questionable, converter)," and--citing Killiany's 2000 article--
that the "procedures in place for generating the manually drawn
image maps have been demonstrated to have high reliability." The
NIH ultimately awarded MGH over $12 million in federal funding for
the five-year period between 2002 and 2007.
B. Procedural Background
On June 14, 2006, Jones filed this qui tam action naming
several defendants, including Brigham & Women's, MGH, Dr. Killiany,
and Dr. Albert. In the operative complaint, Jones alleged that, in
submitting the proposal to the NIA, the defendants "knowingly made
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false and fraudulent claims for federal funds." Jones asserted
that "statements of false and fraudulent preliminary data infected
the entire grant application," because the defendants relied upon
Killiany's data "with full knowledge of the false and fraudulent
nature of those [sic] data and the significance of the information
to the NIH grant process."
The district court initially granted summary judgment for
the defendants, but we vacated that order. Jones I, 678 F.3d at
75. Although we recognized that expressions of opinion and
scientific judgment cannot constitute a false statement under the
FCA, we "disagree[d] that the creation of the data in question was
necessarily a matter of scientific judgment." Id. at 87. Even if
Killiany's remeasurements "fall within an accepted range of
scientific accuracy," we concluded, "a question remains as to
whether the data was falsified by intentionally exaggerating the EC
boundaries of normal subjects to achieve a desired result." Id. at
88. As a result, we remanded the case for trial.
At trial, in addition to testifying himself, Jones
elicited testimony from all of the major actors in the study,
including Albert, Killiany, Gomez-Isla, and Moss. Jones testified
to his discovery of the second set of data and his investigation
into the statistical significance of that data. He also testified
that, because the original scans of four of Killiany's
remeasurements had been included in the reliability study, he had
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calculated a revised reliability measure. When Killiany's initial
measurements were replaced with the remeasurements, Jones asserted,
the Pearson coefficient dropped to 0.54--a "worthless" correlation
between the two raters. During the plaintiff's case, Killiany and
Albert resisted efforts to characterize their work as fraudulent.
The jury also heard testimony from three experts for
Jones.2 Dr. Norbert Schuff, a scientist specializing in MRI
volumetric measurements of the brain, testified that Killiany's
revised measurements "deviated substantially" from the protocol and
that, in his opinion, there was "no scientific justification to
make those specific revisions" to some but not other scans. Dr.
Richard Goldstein, a statistical consultant, testified that, in his
opinion, Killiany's remeasurements demonstrated that the inter-
rater reliability protocol was not followed and that the
concentration of Killiany's largest remeasurements among the normal
group made it highly improbable that he remained blinded. Finally,
Martha Davila-Garcia, an Associate Professor of Medicine who had
experience as a peer reviewer advising the NIH about dozens of
grant proposals, testified that the purported reliability measure
2
In many respects, this testimony was similar to the opinions
offered by the same experts at the summary judgment stage that we
described in Jones I. See 678 F.3d at 80-82. At trial, Jones
offered testimony from Dr. Richard Goldstein, a statistical expert,
in place of Dr. Daniel Teitelbaum, whose testimony we considered in
Jones I but who became unavailable as a witness before trial.
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would be important to the NIH's review of the defendants'
application.
In their own case in chief, the defense recalled only two
witnesses: Albert and Killiany. The defense focused on more fully
fleshing out its alternative rationale for Killiany's
remeasurements--namely that those measurements more accurately
identified the EC.
At the close of evidence, the defendants moved for
judgment as a matter of law on all claims, and Jones moved for a
ruling on damages. The jury returned a verdict in favor of the
defendants, and Jones subsequently filed a motion for judgment as
a matter of law under Rule 50(b) and incorporated an alternative
request for a new trial under Rule 59. Among other grounds, Jones
contended that "undisputed, substantial evidence" existed as to
each element of the FCA claim. In that motion Jones also attempted
to "renew[] his Rule 56 motion for summary judgment," conceding
that he made no "separate, formal written motion under Rule 50(a)."
The district court denied the motion and this timely appeal
followed.
II. Analysis
Jones maintains that the district court erred in denying
his motion for judgment as a matter of law because no substantial
evidence exists to support the verdict. In the alternative, Jones
argues that a new trial was warranted because the clear weight of
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the evidence supported his FCA claim. Finally, Jones recites
several alleged procedural, evidentiary, and instructional errors
that he asserts also warrant a new trial.
A. Judgment as a Matter of Law
We review the district court's denial of Jones's motion
for judgment as a matter of law "de novo, examining the evidence
and reasonable inferences therefrom in the light most favorable to
the nonmovant," Estate of Berganzo-Colón ex rel. Berganzo v.
Ambush, 704 F.3d 33, 38 (1st Cir. 2013). This standard is
demanding, and "'[a] party seeking to overturn a jury verdict faces
an uphill battle.'" Id. (quoting Marcano Rivera v. Turabo Med.
Ctr. P'ship, 415 F.3d 162, 167 (1st Cir. 2005)). Ultimately,
courts "may only grant a judgment contravening a jury's
determination when the evidence points so strongly and
overwhelmingly in favor of the moving party that no reasonable jury
could have returned a verdict adverse to that party." Marcano
Rivera, 415 F.3d at 167 (citation and internal quotation marks
omitted).
But a party must preserve this challenge for us to review
it on appeal. Rule 50(a)(2) requires that a party first file a
motion for judgment as a matter of law "any time before the case is
submitted to the jury." Fed. R. Civ. P. 50(a)(2). If the court
does not grant that motion, following the verdict a party may file
a motion under Rule 50(b) to renew the claims. Fed R. Civ. P.
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50(b). "We have held in no uncertain terms," however, that a
"failure to raise an issue prior to a Rule 50(b) motion for
judgment as a matter of law, without more, results in a waiver of
that issue on appeal." Muñoz v. Sociedad Española de Auxilio Mutuo
y Beneficiencia de P.R., 671 F.3d 49, 58 (1st Cir. 2012); accord
Costa-Urena v. Segarra, 590 F.3d 18, 26 n.4 (1st Cir. 2009) ("It is
well-established that arguments not made in a motion for judgment
as a matter of law under Rule 50(a) cannot then be advanced in a
renewed motion for judgment as a matter of law under Rule 50(b).").
Indeed, the 2006 Amendments to the Federal Rules of Civil Procedure
were intended to solidify this requirement. See Fed. R. Civ. P. 50
advisory committee's note, 2006 amendments ("Because the Rule 50(b)
motion is only a renewal of the preverdict motion, it can be
granted only on grounds advanced in the preverdict motion."
(Emphasis added)).
In this case, Jones plainly failed to preserve his Rule
50(b) arguments. Jones made no Rule 50(a) motion challenging the
sufficiency of the evidence to support a verdict in favor of the
defendants. Rather, it is undisputed that Jones made an oral
motion regarding a singular issue of damages, alone, at the close
of evidence. Having reviewed the record, we find that this motion
did not encompass or necessarily include an argument that Jones was
entitled to judgment as a matter of law.
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In an attempt to avoid this consequence, Jones points to
various other references in the record as establishing his
objection to the sufficiency of the evidence. Even were we to
agree that a rigid invocation of the phrase "Rule 50(a)" may not be
necessary in all circumstances (a proposition on which we express
no opinion), Jones's effort to show that he raised the issue is
unavailing.
First, Jones invokes his pretrial summary judgment motion
under Rule 56 as one such "pertinent reference." He claims that
motion preserved his sufficiency-of-the-evidence challenge because
"every factual and legal issue presented in Jones'[s] post-trial
motion (and on this appeal) was also presented in the previous Rule
56 motion." Jones also asserts that "[n]o rule precludes [him]
from renewing his Rule 56 motion after trial, and no authority
requires a Rule 50(a) motion raising the same grounds raised in a
pre-trial motion for summary judgment."
The argument is misguided. As we have repeatedly
emphasized, by the conclusion of trial a summary judgment motion
"'has been overtaken by subsequent events, namely, a full-dress
trial and an adverse jury verdict.'" Granfield v. CSX Transp.,
Inc., 597 F.3d 474, 481 n.8 (1st Cir. 2010) (quoting Rivera-Torres
v. Ortiz Vélez, 341 F.3d 86, 92 (1st Cir. 2003)). After trial, a
party may not invoke any sufficiency challenges included only in a
summary judgment motion. This rule is based on the common-sense
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"procedural fact" that the record fully develops between any
proffered summary judgment motion and trial. E. Mountain Platform
Tennis, Inc. v. Sherwin-Williams Co., Inc., 40 F.3d 492, 500 (1st
Cir. 1994). "A denial of a motion for summary judgment is merely
a judge's determination that genuine issues of material fact exist.
It is not a judgment, and does not foreclose trial on issues on
which summary judgment was sought." Id. (citation and internal
quotation marks omitted). To reinvoke any sufficiency argument and
"preserve its challenge for appeal, a disappointed party must
restate its objection in a motion for judgment as a matter of law."
Ji v. Bose Corp., 626 F.3d 116, 127 (1st Cir. 2010). And nothing
in our cases suggests that, when a party does file such a motion
for judgment as a matter of law, it may ignore the unqualified
requirement that a 50(b) motion may only restate those arguments
raised by a prior 50(a) motion.3
Attempting to evade clear precedent, Jones asserts that
the Supreme Court's decision in Ortiz v. Jordan, 131 S. Ct. 884(2011), establishes that a party "satisfies Rule 50(b) by raising
3
Some circuits have "recognized an exception" and permit a
party to appeal a summary judgment motion post-trial--without
filing a motion for judgment as a matter of law--where a "party's
challenge is based on a circumscribed legal error, as opposed to an
error concerning the existence of fact issues." Ji, 626 F.3d at
127; see, e.g., Chemetall GMBH v. ZR Energy, Inc., 320 F.3d 714,
720 (7th Cir. 2003). But we have declined to do so, Ji, 626 F.3d
at 127-28, and the Supreme Court has not resolved this question,
Ortiz v. Jordan, 131 S. Ct. 884, 892 (2011). In any event, Jones
does not contend--nor could he--that his motion for summary
judgment presented purely legal questions.
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the same grounds in his pretrial motion for summary judgment under
Rule 56," and, consequently, "[n]o separate Rule 50(a) motion [is]
required." Ortiz does not support that proposition. In Ortiz the
defendants sought to appeal--following a full-trial on the merits--
a district court order denying summary judgment on the basis of
qualified immunity. There the defendants did, in fact, seek
judgment as a matter of law pursuant to Rule 50(a), although they
acknowledged they did not renew that motion under Rule 50(b).
Ortiz, 131 S. Ct. at 890-91. The Court held, however, that the
defendants' "failure to renew their motion for judgment as a matter
of law under Federal Rule of Civil Procedure 50(b)" left the
appellate court without authority to reconsider the summary
judgment motion and reject the district court's verdict. Id. at
889.
Jones appears to invoke the Court's having referred only
to Rule 50(b) as establishing that a Rule 50(a) motion is not
required to raise arguments presented in a prior summary judgment
motion. But this cherry-picked reference must be read in context.
Because the defendants in Ortiz did, in fact, pursue a Rule 50(a)
motion, the hypothetical question of whether a party could reinvoke
its summary judgment arguments through a Rule 50(b) motion, alone,
was not before the Court. In the face of clear precedent in this
Circuit and the pertinent advisory committee commentary, we decline
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to make such a considerable inferential leap and read that holding
into Ortiz.4
Beyond his prior summary judgment motion, Jones asserts
in passing, and without further development, that several other
"pertinent references" exist in the record to preserve his
sufficiency argument. He invokes his "previous appeal to this
Court, Joint Pretrial Memorandum, proposed jury instructions,
objections to jury instructions[,] and closing argument."
(Citations omitted). His citation to the prior appeal to this
court is simply another attempt to resuscitate his prior summary
judgment motion. And the remaining identified filings and argument
4
In addition to Ortiz, Jones briefly cites in his brief, and
invoked at oral argument, two decisions of our circuit for this
proposition: Martinez Moll v. Levitt & Sons of P.R., Inc., 583 F.2d
565 (1st Cir. 1978) and Young v. City of Providence ex rel.
Napolitano, 404 F.3d 4 (1st Cir. 2005). Both are inapposite. In
Martinez Moll we determined whether the defendants had waived an
argument before the district court, in part, by considering whether
that issue was raised in either the defendants' Rule 50(b) motion
or its prior motion for summary judgment. 583 F.2d at 570-71.
Because we found that the proffered argument was absent from the
defendants' summary judgment motion, however, we had no opportunity
to consider whether raising the issue only at that stage would have
sufficiently preserved it for appeal. Id. at 571. And Jones's
fleeting invocation of our decision in Young fares no better. We
noted in Young that the district court had resolved a Rule 50
motion after trial at the same time it considered a motion for
summary judgment it had "held in abeyance." Id. at 12. Yet, the
district court's decision makes clear that legal issues had been
bifurcated for a dual-phase trial, and the summary judgment motion
involved only "matters which had been reserved for determination in
phase two of the trial." Young v. City of Providence, 301 F. Supp.
2d 163, 168, 169 (D.R.I. 2004). Accordingly, the district court
there did not permit the defendants to renew a prior summary
judgment motion.
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did nothing to put the district court or defendants on notice that
Jones would argue that, as a matter of law, the defendants had
failed "to put forth sufficient admissible evidence" such that no
reasonable jury could return a verdict in defendants' favor,
Casillas-Díaz, 463 F.3d at 81.
We thus conclude that Jones has not preserved his
argument that he was entitled to judgment as a matter of law. But
he would fare no better even if he had preserved it. We briefly
explain.
As we noted in Jones I, to prove a violation of the FCA
under the provision in effect when Jones filed his complaint, Jones
was required to show that the defendants "'knowingly present[ed],
or cause[d] to be presented to an officer or employee of the United
States Government . . . a false or fraudulent claim for payment or
approval,'" or "'knowingly ma[de], use[d], or cause[d] to be made
or used, a false record or statement to get a false or fraudulent
claim paid or approved by the Government.'" Jones I, 678 F.3d at
82 (quoting 31 U.S.C. § 3729(a)(1)-(2)). In addition, any
knowingly false or fraudulent claim must be "material," meaning
that it "has 'a natural tendency to influence, or [is] capable of
influencing'" the NIA's decision to award the grant. Id. at 93(quoting United States ex rel. Loughren v. Unum Grp., 613 F.3d 300,
307 (1st Cir. 2010) (alteration in original)).
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Jones's argument appears premised on the conclusion that
the jury was required to believe his theory of the case that
Killiany's remeasurements constituted a knowing and purposeful
manipulation of the data, and that Albert turned a blind eye to
that problem. Jones's case at trial was largely premised on three
main indicators of fraud: (1) that Killiany's remeasurements had no
justification, (2) that Killiany had become unblinded to
participant categorization and only revised measurements of
"normal" subjects, and (3) that it was fraudulent to report the
inter-rater reliability results based on Killiany's first data set.
"[U]ndisputed evidence in the record" established each element of
his FCA claim, Jones asserts.
Yet, on this record, the jury was entitled to believe the
plausible explanation proffered by the defense: that the EC is a
difficult area of the brain to measure, and that Killiany's
remeasurements simply reflect his increased understanding of the EC
as he reviewed additional participants' scans. Indeed, except for
Jones himself, each witness involved in the study--Killiany,
Albert, Moss, and Gomez-Isla--primarily supported the defendants'
explanation. Gomez-Isla was unsurprised that Killiany went back to
remeasure some of the initial scans and testified that "you could
tell there was a learning curve" and that one would "get[] better
the more scans you were going through and trying to draw." Moss,
who reviewed Killiany's scans after Jones questioned them,
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similarly agreed that there was a "learning curve" and posited that
as a researcher "move[s] from naive to expert" he "hone[s] in on
more consistency." Albert and Killiany also maintained that
Killiany remained blinded throughout the study. And sufficient
evidence existed for the jury to conclude that Albert and others
either did not know that the inter-rater reliability score was
false, or that the underlying data was not fraudulent at all.
The jury's resolution of such conflicting explanations of
the defendants' actions is within its province and is thus not
fodder for a motion for judgment as a matter of law. The jury was
entitled to--and rationally could--find persuasive the evidence at
trial that undermined any conclusion that Killiany's remeasurements
were fraudulent or that Albert knew them to be so.
Additionally, Jones argues, essentially, that he was
entitled to judgment as a matter of law because the defendants did
not call any of their own expert witnesses, leaving Jones's
experts' testimony uncontested. But contrary to these repeated
assertions, testimony does not become "uncontested" simply because
the defendants do not call their own expert witnesses at trial.
The testimony of Jones's own witnesses could be--and indeed, was--
considerably undermined such that the jury was entitled to question
the import of that testimony.
For example, Dr. Schuff testified that Killiany's
"original measurements were without major error according to the
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protocol," that Killiany's later changes "deviated substantially
from that initial protocol" and that there was "no scientific
justification" to make such revisions to some, but not other,
scans. Yet, the defense elicited a multitude of damaging
concessions from Dr. Schuff, including that: he was not a
neuroanatomist; he had never attempted to employ Killiany's method
to measure the EC; he used a different protocol in his own lab
which consistently produced a much larger volume in the EC; and he
had only measured the EC on an MRI on fifty prior occasions and,
when he did so, had consistently drawn the EC too short and too
small. The jury could conclude that his testimony did nothing to
counteract the defendants' theory of the case. Indeed, he conceded
that he had no basis to determine whether Killiany's original or
revised measurements were more or less accurate.
The jury could also conclude from the defense's
questioning of Dr. Goldstein, the statistical expert, that his
dramatic conclusions--including his assertion that the statistical
probability that Killiany remained blinded while his "six largest
changes" all involved subjects categorized as "normal" was "94 out
of 1 million"--were unsound. Dr. Goldstein hypothesized that he
would have expected half of Killiany's remeasurements to increase
from their original volume, and half to decrease, but agreed that
he formed this opinion "from a place of ignorance." Indeed,
although he found it "particularly bothersome that Killiany
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departed from the protocol," he conceded that he did not know what
the protocol entailed or how Killiany had explained his revised
measurements. Dr. Goldstein admitted he had no training in the
anatomy of the brain or the EC specifically, and that, in arriving
at his conclusions, he considered no evidence about why Killiany
remeasured the scans. Finally, Dr. Goldstein did not investigate
whether Killiany's initial measurements were affected by systematic
error which, he conceded, might explain Killiany's decision to
remeasure. Given these concessions, the jury would have been
entitled to discount Dr. Goldstein's testimony altogether.
To a large extent, Jones's basic contention that
"undisputed" evidence existed entitling him to judgment as a matter
of law conflates the distinct inquiries that a court undertakes in
resolving a summary judgment motion and a motion for judgment as a
matter of law. Our holding in Jones I vacating the district
court's entry of summary judgment did no more than acknowledge that
unresolved issues of material fact might support a verdict in this
case for either party. But even if the defendants presented
limited testimony--expert or otherwise--to rebut Jones's theory of
the case, Jones ignores that the jury may have found his witnesses
and experts not credible or otherwise unreliable, or found
believable Killiany's and Albert's alternative explanations for
their actions. Our review is "weighted toward preservation of the
jury verdict," Crowe v. Bolduc, 334 F.3d 124, 134 (1st Cir. 2003),
-23-
and here--even if Jones's sufficiency argument had been preserved--
there was sufficient evidence for the jury to find in favor of the
defendants.
B. Motion for a New Trial
Jones also argues that, for various reasons, the district
court erred in denying his motion for a new trial. See Fed. R.
Civ. P. 59(a)(1)(A). A new trial may be warranted if "the verdict
is against the weight of the evidence" or if "the action is
required in order to prevent injustice." Jennings v. Jones, 587
F.3d 430, 436 (1st Cir. 2009) (quoting Kearns v. Keystone Shipping
Co., 863 F.2d 177, 181 (1st Cir. 1988)). We review for abuse of
discretion the district court's denial of a motion for a new trial.
Ambush, 704 F.3d at 38.
i. Weight of the Evidence
Jones first contends that the district court
inappropriately refused to "re-weigh" the evidence and, had it done
so, it would have determined that the "verdict is against the clear
weight of the evidence." In denying Jones's motion, the district
court plainly concluded that the weight of the evidence supported
the verdict. But Jones suggests that, as a matter of law, the
court was required to go further and independently re-weigh the
evidence, piece by piece, presumably engaging in its own
credibility determinations and findings of fact, before denying the
motion for a new trial. To be sure, when entertaining a motion for
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a new trial "[t]he district court may 'independently weigh the
evidence.'" Cham v. Station Operators, Inc., 685 F.3d 87, 97 (1st
Cir. 2012) (quoting Jennings, 587 F.3d at 436) (emphasis added);
see MacQuarrie v. Howard Johnson Co., 877 F.2d 126, 132 (1st Cir.
1989) (noting that the judge "may consider the credibility of the
witnesses who testified"). But nothing in the text of Rule 59 or
any of our cases suggests that the district court must do so;
accordingly, a district court does not categorically err whenever
it declines to independently re-weigh the evidence, so long as it
concludes that the weight of the evidence supports the verdict.5
Jones then invites us to "relax the standards of review
under Rule 59" in "the unique circumstances of this case" and,
essentially, weigh the evidence ourselves. But that proposal
ignores both our precedent and common sense. Our role is not to
independently weigh the evidence; "[w]e reverse only if we find
that the trial court has abused its discretion in making its
assessment of the weight of the evidence." Correia v. Fenney, 620
F.3d 9, 11 (1st Cir. 2010) (emphasis added). And this
"circumscribed" review is sensible because "[c]ircuit judges,
reading the dry pages of the record, do not experience the tenor of
5
Indeed, the district court provided no written rationale for
denying Jones's motion for a new trial (and contrary to Jones's
assertion, one was not required). But a requirement that the court
always independently re-weigh the evidence would either necessitate
that we speculate as to how the district court treated the evidence
or mandate that the district court always issue a written order.
-25-
the testimony at trial." Jennings, 587 F.3d at 436, 437 (citation
and internal quotation marks omitted).
Simply put, we are unable to conclude that the district
court abused its discretion in denying Jones's motion for a new
trial for the same reasons already recited. There was ample
evidence in the record for the jury to believe the defendants'
alternative explanation for Killiany's revised measurements and
conclude that the defendants' statements were either not false or
that defendants lacked knowledge that they were false.
ii. Reassignment
Jones also challenges the district judge's decision to
retain this case on remand rather than allow it to be reassigned to
a different trial judge. District of Massachusetts Local Rule
40.1(K)(2) provides that upon remand the court must reassign the
case to another district judge "unless the terms of the remand
require that further proceedings be conducted before the original
judge or unless the judge determines that there will result a
substantial saving in the time of the whole court and that there is
no reason why, in the interest of justice, further proceedings
should be conducted before another judge." To our knowledge, the
District of Massachusetts is the only district court in the country
to apply such a presumption. See Toby J. Heytens, Reassignment, 66
Stan. L. Rev. 1, 12 (2014). Upon remand, the judge granted the
defendants' motion that the case remain before him.
-26-
We review the district court's application of the local
rule in this case for abuse of discretion. Rodi v. S. New England
Sch. of Law, 532 F.3d 11, 19 (1st Cir. 2008). Jones contends that
the court's failure to provide a written rationale for its order,
alone, constitutes reversible error because he neglected "to make
the predicate findings" that retaining the case would conserve
judicial resources and not contravene the interest of justice. He
does not point to any authority, however, requiring a written
order. Moreover, sound reasons supporting the court's decision are
apparent on this record. The defendants contended in their motion
that "in view of [the court's] knowledge of the extensive record,"
its retention of the case would result in the conservation of
judicial resources, and we can assume that the court endorsed this
argument. Given the intricate statistical and scientific evidence
presented by this case, the district court did not abuse its
discretion in refusing to reassign this case.6
6
At a pretrial conference, the judge stated that "everyone
can rest assured that I have no leanings at all other than an
earnest desire to follow the instructions of the First Circuit."
Jones contends that this statement reveals that the court
"misunderstood the rule to be about whether he had 'leanings'
either way" in the case. The judge's statement, however, may have
been simply a conciliatory effort to assuage any concerns the
parties may have had, rather than a specific rationale for his
order.
-27-
iii. Evidentiary Rulings
Jones also argues that the district court erroneously
decided several evidentiary matters, necessitating a new trial. We
review each ruling for abuse of discretion,7 although any error is
"harmless if it is highly probable that the error did not affect
the outcome of the case." McDonough v. City of Quincy, 452 F.3d 8,
19-20 (1st Cir. 2006).
a. The "Accuracy" of Killiany's Remeasurements
Jones first asserts that the district court erred in
denying his motion in limine and permitting the defendants to offer
testimony regarding the "accuracy" of Killiany's remeasurements.
The district court resolved this motion orally, prior to opening
statements, and questioned why the defense should not be permitted
to assert that "Killiany was doing this for an appropriate reason."
The court concluded that the explanation would not be precluded but
invited Jones to "impeach it or suggest that [accuracy] is not the
real reason he [remeasured]." As described above, the defense
emphasized this explanation throughout the trial.
7
The defendants are correct to point out that, generally,
"[a]n unsuccessful motion in limine does not preserve an
evidentiary objection," and a party must again object if and when
the challenged evidence is proffered at trial, O'Rourke v. City of
Providence, 235 F.3d 713, 727 (1st Cir. 2001), unless "the in
limine ruling is final and unconditional," Crowe, 334 F.3d at 133.
But, although Jones filed motions in limine, in each case detailed
here his objections were not resolved until trial, at which point
he properly objected. Thus, Jones's evidentiary objections are
properly preserved.
-28-
Jones's objection is essentially one of relevance. He
relies on our statement in Jones I that "whether Killiany's
measurements were more or less accurate than the initial
measurements is not at issue," 678 F.3d at 88, to suggest that such
evidence "likely misled the jury and prejudiced Jones." But he
takes our statement out of context. In Jones I we merely rebutted
the district court's conclusion that Jones's claim presented a
question of good faith, scientific disagreement not cognizable by
the FCA--namely whether, in fact, Killiany's second measurements
were more or less scientifically justifiable than his first. We
did not indicate that evidence tending to show Killiany remeasured
his scans in an effort to make them more accurate was wholly
irrelevant. Nor could we have done so. Evidence is relevant if it
has "any tendency" to make a fact of "consequence in determining
the action" "more or less probable," Fed. R. Evid. 401, and
"[t]rial courts are afforded wide latitude in determining whether
evidence crosses this low threshold," United States v. Williams,
717 F.3d 35, 41 (1st Cir. 2013). As established above, the
defense's alternative explanation for Killiany's second set of data
was that he remeasured certain MRI scans in order to more
accurately reflect the volume of the EC in each subject. This
explanation had obvious import in determining whether the data
submitted to the NIA was false and whether Killiany and Albert knew
it to be false. It was not an abuse of discretion for the court to
-29-
permit witnesses to testify about this alternative explanation, nor
was such evidence unduly prejudicial, confusing, or misleading.
See Fed. R. Evid. 403.
b. The Appendix to Dr. Schuff's Expert Report
Jones argues that the court erred in excluding the full
appendix to Dr. Schuff's expert report as inadmissible hearsay.
During the course of the trial, a juror requested the appendix,
which listed Dr. Schuff's assessment of the degree to which each of
Killiany's remeasurements comported with the protocol that Killiany
developed with Isla-Gomez. The district court did not abuse its
discretion, however. The report was proffered as support for Dr.
Schuff's conclusion that Killiany's second measurements conflicted
with the protocol--that is, for the truth of the matter.
Accordingly, the report is a quintessential example of hearsay.
See Fed. R. Evid. 801(c)(2). Contrary to Jones's assertion, the
fact that Dr. Schuff testified at trial and was questioned
regarding the bases for several of his conclusions regarding
specific measurements does not automatically permit the entirety of
his appendix to be admitted into evidence.8 An expert's testimony
8
Jones invokes a Court of Claims case stating that "reports
which are prepared to state or to support expert opinions are not
admissible without the preparer being present in court to testify
as to his qualifications as an expert and to be cross-examined on
the substance." Forward Commc'ns Corp. v. United States, 608 F.2d
485, 511 (Ct. Cl. 1979). Yet, simply because an expert does
testify at trial does not render such a report automatically
admissible in its entirety as an exhibit. Indeed, because an
expert may often rely on facts or data that "need not be
-30-
"is not a vehicle by which evidence that is otherwise inadmissible
may be introduced." Presley v. Commercial Moving & Rigging, Inc.,
25 A.3d 873, 893 (D.C. 2011).
c. Testimony Regarding Jones's Signature
Jones next contends that the district court erred in
allowing Albert to verify Jones's signature on a form authorizing
his inclusion as a co-author on a 2002 article setting forth the
results of Killiany's study. Jones claims that the authenticity of
his signature was a "collateral issue." "It is well established
that a party may not present extrinsic evidence to impeach a
witness by contradiction on a collateral matter." United States v.
Beauchamp, 986 F.2d 1, 3 (1st Cir. 1993). To be collateral, a
matter must be "'not relevant . . . to establish a fact of
consequence'" or, in other words, "'not relevant for a purpose
other than mere contradiction of the in-court testimony of the
witness.'" Id. at 4 (quoting 1 McCormack on Evidence § 45, at 169
(4th ed. 1992)).
Here, Jones's endorsement of Killiany's work--by joining
as a co-author in that article--was far from collateral. That
article was written, and Jones's signature was allegedly inscribed,
almost a year after Jones first became concerned about Killiany's
data. Given Jones's central testimony at trial, whether Jones
admissible" in forming her conclusion, Fed. R. Evid. 703, such a
rule would, in many cases, provide an all-too-convenient backdoor
for otherwise inadmissible evidence.
-31-
continued to endorse the project after raising concerns goes to the
heart of his credibility, and was certainly relevant to the jury's
determination of whether Killiany's remeasurements were fraudulent.
d. Testimony Regarding Jones's Financial Interests
At various points during the trial the district court
permitted the defendants to question Jones regarding the share of
any recovery he would receive as a relator under the FCA. Given
that Jones did not file his complaint until five years after he
first raised concerns about Killiany's data--and by which point the
grant had been fully funded--the defense sought to show that Jones
only made his claim once he was assured maximum recovery. The
defense also elicited testimony from Albert that Jones's
compensation decreased when the project hired an additional
statistician to address certain concerns of the NIH regarding the
project.
While in some cases it may prove inappropriate or
unnecessary to delve into the financial incentives of a relator, in
this case Jones's testimony and credibility were critical to the
FCA claim. "[B]ias is fertile territory for cross-examination,"
and because the jury "must asess the credibility of witnesses to
determine the accuracy of their testimony . . . information as to
bias can be of great assistance in making such determinations."
Udemba v. Nicoli, 237 F.3d 8, 17 (1st Cir. 2001). Given the
particular circumstances of this case, the district court did not
-32-
abuse its discretion in permitting these lines of inquiry. It was
neither unfairly prejudicial nor irrelevant for the defense to
question Jones's continued support for the project until the
funding from the NIH ran dry.9
iv. Jury Instructions
Finally, Jones catalogs a multitude of instructional
errors in laundry list fashion and, in most cases, with little to
no analysis. We can make short work of all but one of his
challenges.
We review a claim of instructional error de novo if the
claimed error "embodied an error of law," but only for abuse of
discretion if the instructions purportedly inadequately "explained
the law" or "tended to confuse or mislead the jury on the
controlling issues." United States v. Jadlowe, 628 F.3d 1, 14 (1st
Cir. 2010) (citation and internal quotation marks omitted). Error
is established if the instruction is "misleading, confusing, or
incorrect as a matter of law," although we will only order a new
trial if that error "'based on the entire record, was
9
In less than a page and without any effort to do more than
simply assert error, Jones also protests the admission of
"laudatory statements" about the defendants. He similarly contests
the admission of "false" testimony that the defendants' research
has been subsequently replicated by scientists, although he cites
nothing to indicate that claim is, in fact, false. We need not
resolve these remaining challenges. It is a "settled appellate
rule that issues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived."
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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prejudicial.'" Costa-Urena v. Segarra, 590 F.3d 18, 24 (1st Cir.
2009) (quoting Romano v. U-Haul Int'l, 233 F.3d 655, 665 (1st Cir.
2000)).
First, the vast majority of the claimed instructional
arguments are waived for lack of development. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Jones merely refers us to
his proposed jury instructions "in a perfunctory manner" and
"unaccompanied by some effort at developed argumentation" as to how
the district court erred in excluding those instructions.10 Id.Second, despite Jones's contention that his proposed instruction
that whether Killiany's "revised tracings were more or less
'accurate' to the actual structure of the EC is not at issue in
this case" was not delivered by the district court, the court
similarly instructed the jury that they were not asked "to
determine accuracy or to determine the borders of the entorhinal
cortex." The court's minor rewording was not an abuse of
discretion. Third, while Jones objects to the court's materiality
instruction and argues that the court's original instruction
implied a "but for" causation requirement, any possible error was
10
And were we to reach them, we note that Jones's arguments
would be reviewed only for plain error because he raised no
objections below--before or after the charge--to the district
court's decision not to provide those instructions we now deem
waived. In addition, although not included in his proposed jury
instructions, in his appellate brief Jones makes only a passing
reference to the district court's instruction that a false fact
must be based on the "most accurate" data the defendants had.
Accordingly this argument, too, is waived.
-34-
cured when the district court added, at the urging of Jones and in
line with our precedent, that a "statement is material if it has a
natural tendency to affect the thinking of the NIH." See United
States ex rel. Loughren v. Unum Grp., 613 F.3d 300, 307 (1st Cir.
2010). Fourth, Jones contests the district court's decision not to
provide an instruction that Jones could prove knowledge by
demonstrating that the defendants acted with "deliberate
ignorance." In fact, however, based on Jones's objection at the
pre-charge conference, the court instructed the jury that Albert
could be liable if she was "deliberately blind" to the alleged
fraud. And Jones's counsel chose not to object to the instruction
as to Killiany, conceding that he "understood the Court's ruling
with respect to deliberate ignorance as it applies to Dr. Killiany
in the first question."
All that remains is Jones's objection to the district
court's decision to bifurcate questions of liability between the
defendants on the jury's verdict form. The court supplied the jury
with a special verdict form that asked two questions: first,
whether "Dr. Killiany knowingly falsif[ied] scientific data by
exaggerating certain re-measurements of the EC to cause proof of a
particular scientific hypothesis to emerge from the data," and,
second, whether "the statements made in the Grant application about
having used blinded, reliable methods to produce the measurements
[were] both material and knowingly false." The court informed the
-35-
jury that: "If you answer Question 1 no, but Question 2 yes, then
Mr. Killiany is not liable, but Ms. Albert and the hospitals are.
If you answer Question 1 yes, but Question 2 no, Ms. Albert's not
liable but Mr. Killiany and the hospitals are."
We confess that we do not see how this division of
liability necessarily follows from the two questions on the verdict
form. But despite our disagreement with the court's charge, any
error in the explanation of the verdict form was harmless. See
Allen v. Chance Mfg. Co., 873 F.2d 465, 469-70 (1st Cir. 1989).
The jury responded in the negative to both questions and that
determination renders academic any error on the part of the
district court that might otherwise necessitate a new trial.
III. Conclusion
Jones has had the opportunity to present his claims in
court before a jury. That jury ultimately concluded that Killiany
did not intentionally falsify scientific data and that the
application's statement that the study used blinded, reliable
methods was not false. For the foregoing reasons, we find no
reason to upset that determination, and the judgment of the
district court is, accordingly, AFFIRMED.
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