King's Daughters Health Sys.

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0076p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
IN RE: KING’S DAUGHTERS HEALTH SYSTEM, INC., a │
corporation dba King’s Daughters Medical Center, > No. 22-5071
│
Petitioner. ┘
On Petition for Writ of Mandamus.
United States District Court for the Eastern District of Kentucky at Ashland;
No. 0:15-cr-00015-1—David L. Bunning, District Judge.
Decided and Filed: April 15, 2022
Before: BATCHELDER, McKEAGUE, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ON PETITION FOR WRIT OF MANDAMUS: Ashley M. Ward, STITES & HARBISON,
PLLC, Lexington, Kentucky, Michael D. Risley, STITES & HARBISON, PLLC, Louisville,
Kentucky, for Petitioner.
_________________
ORDER
_________________
King’s Daughters Health System, Inc., doing business as King’s Daughters Medical
Center (“KDMC”), petitions for a writ of mandamus, asking that we compel the district court to
vacate its order granting a motion to compel and, further, that we compel the court to deny the
motion to compel. For the following reasons, we deny KDMC’s petition for a writ of
mandamus.
I.
This petition for a writ of mandamus is another chapter in the federal government’s
prosecution of Dr. Richard Paulus for healthcare fraud. We have recounted the background of
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this case in three opinions. See United States v. Paulus, 894 F.3d 267 (6th Cir. 2018) (Paulus I);
United States v. Paulus, 952 F.3d 717 (6th Cir. 2020) (Paulus II); United States v. Paulus, No.
20-6017, 2021 WL 3620445 (6th Cir. Aug. 16, 2021) (Paulus III).
Our opinion in Paulus II recounts the background relevant to this mandamus petition:
A.
For years Paulus was a successful cardiologist at King’s Daughters
Medical Center (KDMC). He performed an incredible number of angiograms and
was “first in the nation for the total amount billed to Medicare for these
procedures.” But not all was well. Complaints emerged that Paulus was
performing medically unnecessary procedures. And several audits indicated that
in multiple cases Paulus had reported a higher degree of blockage in his patients’
arteries than their angiograms reflected. Meaning, in some cases, the patient’s
angiogram showed a low degree of blockage and thus that the patient didn’t need
a stent inserted. Yet Paulus reported a much more severe blockage, inserted a
stent, and then billed patients and their insurance companies for the stent
procedure.
Eventually, these allegations reached the federal government. At first, the
government considered entering into a civil settlement with Paulus. In a letter
setting forth its demands, the government stated that its consultants had reviewed
496 of Paulus’s procedures and concluded that 146 of them (or about 30%) were
unnecessary because the patients’ angiograms showed minimal arterial blockage.
The government further noted that its experts weren’t the only ones who found
Paulus’s procedures to be problematic: the letter explained that KDMC’s
“consultants [had] also reviewed a random selection of Dr. Paulus’ procedures,
and found 75 angiographic films with [minimal blockage] in the artery he
stented.” But after some back-and-forth, the attempts at a civil settlement fell
through, and the government obtained an indictment.
B.
At trial the government called three expert witnesses, Drs. Ragosta,
Morrison, and Moliterno, who showed angiograms from 72 different patient files
to the jury. While displaying each angiogram, the doctors diagnosed the amount
of blockage in the patient’s artery and contrasted their diagnosis with that stated
in Paulus’s report. Based on the differences between what the government’s
experts saw in the angiograms and what Paulus reported, the experts concluded
that Paulus overstated his patients’ arterial blockage and inserted medically
unnecessary stents. They also emphasized that this was not “an isolated case[.]”
Instead, Ragosta presented evidence of overstatements in 62 out of the 250–300
cases he reviewed, and he called the 62 cases a “representative sample”; Morrison
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noted that over half of the 11 randomly selected procedures he reviewed were
unnecessary; and Moliterno asserted that all of the stent procedures he reviewed
were unnecessary. Based on this testimony, the government argued that Paulus
“saw one thing on the angiogram and consciously wrote down another.” And he
didn’t just do it occasionally. According to the government's closing argument,
Paulus did it “frequently, repetitive[ly], daily.”
After 23 days of trial, four days of jury deliberations, one judicial pep talk,
and one Allen charge, the jury convicted Paulus of one count of healthcare fraud
and ten counts of making false statements relating to healthcare. But the case
didn’t proceed to sentencing. The district court vacated the convictions, finding
that there was insufficient evidence both that Paulus made false statements and
that he had fraudulent intent. But that didn’t stand. We disagreed with the district
court’s reasoning and reversed its order.
C.
The plot twisted once more. After remand and before sentencing, the
government disclosed to Paulus for the first time the “Shields Letter.” According
to the letter, when KDMC was facing its own legal trouble, it hired a team of
independent experts to review Paulus’s work (“KDMC Review”). KDMC’s
consultants reviewed 1,049 of Paulus’s cases and flagged 75 of his procedures as
unnecessary. In the Shields Letter, KDMC’s attorneys explained to the
government their consultants’ findings and offered to refund Medicare for the
payments the hospital had collected for the 75 flagged procedures.
While Paulus already knew that KDMC had identified 75 of his
procedures as problematic, he did not know that KDMC consultants had reviewed
974 other procedures that they apparently found non-problematic. The defense
viewed this evidence as exculpatory because it meant that the KDMC Review
found that the rate of unnecessary surgeries, 75 out of 1,049, or about 7%, was far
lower than what the government experts had testified at trial; this lower
percentage was less consistent with systemic and purposeful fraud and more
consistent with occasional mistakes or diagnostic differences of opinion between
cardiologists. Seeking more information, Paulus moved to compel the government
to produce all information related to the letter.
It was only then that the defense got the full picture. The government
disclosed to Paulus a series of events that had taken place before his trial. Long
before Paulus was indicted, KDMC sent the government the Shields Letter. And
when the government later elected to charge Paulus, it planned to use the Shields
Letter in its case-in-chief and to disclose the letter to Paulus. But KDMC
objected, arguing that the letter was both privileged and inadmissible. So, about a
month before trial, the government brought the dispute to the district court, and
the court scheduled an ex parte hearing, so as to protect KDMC’s asserted
privilege.
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But even though privilege was ostensibly the reason for holding the
hearing ex parte, the district court made no decision regarding the privilege issue.
The court opened the hearing by saying it would put privilege aside and decide
instead whether the information was inadmissible under Federal Rule of Evidence
408. The government argued that the letter was admissible. And to its credit, the
government also argued that even if the letter wasn’t admissible, the government
was obligated to disclose it to Paulus under Brady. Although the government
wished to introduce evidence of the KDMC Review at trial for its inculpatory
value, it also recognized that the review had exculpatory value to Paulus. But the
district court was unconvinced. It held that the information was inadmissible—a
ruling that both parties now agree was wrong—and that the government wasn’t
obligated to turn it over to Paulus. And even though it made no ruling on
privilege, the district court concluded the hearing by inexplicably ordering that the
parties “[we]re not to disclose” any more information about the KDMC Review to
Paulus.
Having discovered this information after his trial, conviction, and remand
from this court, Paulus moved for a new trial. The district court rejected Paulus’s
arguments and proceeded to sentencing.
Paulus II, 952 F.3d at 720–22 (internal citations omitted).
On appeal, we vacated Paulus’s convictions and remanded for a new trial on grounds that
the Shields Letter was material to Paulus’s defense and that the government’s failure to disclose
the letter therefore violated Paulus’s Fifth Amendment due process rights under Brady v.
Maryland, 373 U.S. 83 (1963). Id. at 728.
KDMC’s counsel, William Shields, sent the Shields Letter in 2013 during settlement
negotiations with the government regarding the hospital’s potential violations of the False
Claims Act and Stark Law. The letter disclosed to the government only that KDMC’s experts
reviewed a random sample of 1049 stent procedures performed by Paulus and that its experts
preliminarily assessed that in “75 of those 1049 procedures the percentage of occlusion”—or
blockage—“was 30% or less.” The letter also disclosed the names of those 75 patients.
Important here, Shields wrote: “As A.U.S.A. Andrew Sparks and I have agreed, the disclosure of
this information does not waive any attorney-client privilege or attorney work product
protection.” KDMC does not contend that a written agreement exists. The government
maintains that it did not reach an oral or written agreement regarding KDMC’s waiver of
privileges by disclosing information about the study in the Shields Letter.
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On remand after Paulus II, in preparation for Paulus’s re-trial, the government
subpoenaed KDMC for the following additional information regarding the study referenced in
the Shields Letter:
• Documents identifying the 1,049 procedures reviewed, with patient name
and date of procedure;
• All opinions or conclusions reached by the experts regarding the
percentage of occlusion in the stented arteries;
• All opinions or conclusions reached by the experts regarding the medical
necessity of the procedures;
• All records describing or identifying the sampling methodology and the
manner in which the medical review was conducted;
• All records identifying the independent experts and the procedures each of
them reviewed; and
• All correspondence between KDMC and Dr. Paulus regarding the medical
review.
KDMC objected to the subpoena on grounds that the requested information was protected by the
attorney-client, work-product, and settlement privileges. The government then filed a motion to
compel, which KDMC opposed on privilege grounds.
The Magistrate Judge rejected KDMC’s privilege arguments and granted the
government’s motion to compel. KDMC objected to the Magistrate Judge’s order. Following a
hearing, the district court overruled KDMC’s objections and adopted the Magistrate Judge’s
opinion and order.
Ironically, Paulus also opposed the government’s motion to compel. This despite having
obtained vacatur of his convictions in Paulus II based on his argument that government violated
Brady because the information it had about the KDMC study was exculpatory and Paulus
therefore should have been able to use the letter in his defense. 952 F.3d at 722, 724–28.
KDMC now seeks a writ of mandamus from this court compelling the district court to
vacate its order granting the motion to compel and to deny the motion to compel on privilege
grounds.
No. 22-5071 In re King’s Daughters Health Sys. Page 6
II.
Mandamus is a “drastic and extraordinary remedy reserved for really extraordinary
causes.” Cheney v. U.S. Dist. Ct. for the Dist. of Columbia, 542 U.S. 367, 380 (2004) (internal
quotation marks and citation omitted). Because the writ of mandamus “is one of the most potent
weapons in the judicial arsenal, three conditions must be satisfied before it may issue.” Id.(internal quotation marks and citations omitted). First, a petitioner must “have no other adequate
means to attain the relief [it] desires—a condition designed to ensure that the writ will not be
used as a substitute for the regular appeals process.” Id. at 380−81 (citation omitted). Second, a
petitioner must show a “clear and indisputable” right to the relief sought. Id. at 381 (citation
omitted). Finally, a petitioner must show that issuing the writ is otherwise “appropriate under
the circumstances.” Id.; see also In re Pros. Direct Ins. Co., 578 F.3d 432, 437 (6th Cir. 2009)
(listing five balancing factors to consider when deciding whether to issue the writ).
A. No other adequate means
KDMC has satisfied the first requirement. It has no other adequate means to obtain
review of the district court’s order compelling disclosure of its purportedly privileged
information. To start, KDMC does not have recourse in a typical postjudgment appeal.
“[D]iscovery orders generally are not final decisions” and therefore ordinarily cannot be
appealed until “the trial court enters a final judgment[.]” United States ex rel. Pogue v. Diabetes
Treatment Ctrs. of Am., Inc., 444 F.3d 462, 471 (6th Cir. 2006). That remains true even in the
context of compelled disclosure of attorney-client privileged information: the Supreme Court has
determined that “postjudgment appeals generally suffice to protect the rights of litigants and
ensure the vitality of the attorney-client privilege.” Mohawk Indus., Inc. v. Carpenter, 558 U.S.
100, 109, 114 (2009). However, Mohawk only applies “where the privilege holder is a party to
the litigation with recourse in a post-judgment appeal.” Holt-Orsted v. City of Dickson, 641 F.3d
230, 238 (6th Cir. 2011). Here, KDMC is not a party to the government’s prosecution of Paulus.
Thus, it would not have recourse in a postjudgment appeal.
KDMC also lacks recourse under the collateral order doctrine. The collateral order
doctrine permits us to review a “small class of collateral rulings that do not end the litigation but
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are appropriately deemed ‘final.’” Ohio A. Philip Randolph Inst. v. Larose, 761 F. App’x 506,
510 (6th Cir. 2019) (quoting Mohawk, 558 U.S. at 105 (cleaned up)). We have “repeatedly held”
that “discovery orders are generally not appealable under the collateral order doctrine.” Pogue,
444 F.3d at 472.1
That leaves one other potential path to appellate review: KDMC could defy the district
court’s order, be held in contempt, and appeal the contempt order. Pogue, 444 F.3d at 474 (“a
nonparty can immediately appeal an adjudication of either civil or criminal contempt”); United
States v. Johnson, 736 F.2d 358, 359 n.1 (6th Cir. 1984) (“A judgment of civil contempt entered
against a nonparty is appealable as a final judgment.”).
It remains the “general rule” in this circuit that a non-party “seeking to appeal a discovery
order must first disobey the order and suffer a contempt citation[.]” Pogue, 444 F.3d at 471
(citing Alexander v. United States, 201 U.S. 117, 121–22 (1906)); see also Ohio A. Philip
Randolph Inst., 761 F. App’x at 512 (holding that mandamus was inappropriate “because the
RNC, NRCC, and Kincaid are nonparties to the action, [so] they can withhold the requested
documents and immediately seek review of the contempt sanction”). But, in some cases, we
have found mandamus appropriate for reviewing discovery orders related to attorney-client
privilege that were not otherwise reviewable until final judgment. See In re Powerhouse
Licensing, LLC, 441 F.3d 467, 473 n.3 (6th Cir. 2006); In re Lott, 424 F.3d 446, 449−50 (6th
Cir. 2005); In re Perrigo Co., 128 F.3d 430, 437 (6th Cir. 1997). Thus, we have recognized that
the general rule can be overcome if the mandamus petition presents “some substantial or novel
issue requiring immediate review[.]” Pogue, 444 F.3d at 473 n. 6 (describing In re Lott and In re
Perrigo Co.).
1
One exception, known as the Perlman rule, permits the holder of a privilege who is not a party to the
litigation to immediately appeal a discovery order directed “to a disinterested nonparty who will not risk contempt
merely to protect” the privilege. Pogue, 444 F.3d at 474 n.8 (citing Church of Scientology of Cal. v. United States,
506 U.S. 9, 18 n.11 (1992)). The Perlman rule does not apply here. It is true that KDMC is not a party to the
Paulus criminal case, but the “Perlman exception is relevant only to appeals brought by the holder of a privilege
where the disputed subpoena is directed at someone else.” Holt-Orsted, 641 F.3d at 237 (quoting parenthetically In
re Air Crash at Belle Harbor, New York on November 12, 2001, 490 F.3d 99, 106 (2d Cir. 2007)). Here, the
subpoena is directed at KDMC seeking KDMC’s privileged information.
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This mandamus petition presents novel issues, explored in detail below. It also comes to
us in a novel circumstance: it arises from a discovery order directed to a non-party in a criminal
prosecution (unlike the civil cases cited above). Furthermore, given the interests at stake in
criminal cases, we are reluctant to say that contempt constitutes “other adequate means” for a
non-party to seek review of an order compelling disclosure of attorney-client privileged
information to the government. Cheney, 542 U.S. at 380. In the end, though, even if KDMC has
shown that mandamus is an appropriate vehicle for obtaining review of the district court’s order,
KDMC has not shown that it is entitled to relief on the merits. See, e.g., In re Powerhouse
Licensing, LLC, 441 F.3d at 473 n.3 (recognizing “that the scope of the attorney-client privilege
implicates the kind of important interests that would normally favor mandamus” but denying
petition because district court’s order was not clearly erroneous).
B. Clear and indisputable right to relief
To obtain mandamus relief, KDMC must show that its right to relief is “clear and
indisputable.” Cheney, 542 U.S. at 381 (citation omitted). Below, the government conceded that
the materials sought by its subpoena would be protected by the attorney-client privilege but for
waiver. Therefore, the issue here is whether, and to what extent, KDMC waived its attorney-
client privilege over material related to its experts’ study of Paulus’s procedures by disclosing
selective information about the study to the government in the Shields Letter.
Ordinarily, the voluntary disclosure of attorney-client privileged communications to a
third party waives the privilege as to those communications. United States v. Dakota, 197 F.3d
821, 825 (6th Cir. 1999). And “[w]hen the disclosure is made in a federal proceeding or to a
federal office or agency and waives the attorney-client privilege or work-product protection, the
waiver extends to an undisclosed communication or information in a federal or state proceeding”
when “(1) the waiver is intentional; (2) the disclosed and undisclosed communications or
information concern the same subject matter; and (3) they ought in fairness to be considered
together.” Fed. R. Evid. 502(a)(1)–(3). Parties may contract as to the “effect of disclosure in a
federal proceeding”—but that agreement “is binding only on the parties to the agreement, unless
it is incorporated into a court order.” Fed. R. Evid. 502(e).
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The district court found that KDMC’s partial disclosure of its experts’ findings in the
Shields Letter waived KDMC’s privilege as to all the information related to the experts’ review
of Paulus’s procedures. It also reasoned that Rule 502(e) did not apply because KDMC did not
produce sufficient evidence to establish that it had an agreement with the government limiting
the effect of its initial disclosure of the Shields Letter.2
We agree with the district court that KDMC’s disclosure of some information regarding
its experts’ study waived its privilege over the related, undisclosed information now sought by
the government. KDMC’s disclosure of the information in the Shields Letter was
“intentional[.]” Fed. R. Evid. 502(a)(1). The undisclosed information now sought by the
government, such as information for all 1049 procedures reviewed by KDMC’s experts and the
methodology used by the experts, “concern[s] the same subject matter” as the information
disclosed in the letter. Fed. R. Evid. 502(a)(2). And there can be little doubt that the information
disclosed in the Shields Letter “ought in fairness to be considered together” with the undisclosed
information regarding the study. Fed. R. Evid. 502(a)(3).
Indeed, in this case, Paulus’s Fifth Amendment due process rights are in play. In Paulus
II, we reversed Paulus’s convictions on grounds that the information about KDMC’s expert study
contained in the Shields Letter was material and exculpatory, and therefore, the government’s
failure to disclose the letter to Paulus violated Brady. 952 F.3d at 728. We reasoned that “the
study tends to refute”—or at least, the information about the study contained in the Shields Letter
tends to refute—“the government’s evidence that Paulus systematically misdiagnosed the
2
The district court also relied on this court’s opinion in In re Columbia/HCA Healthcare Corp. Billing
Pracs. Litig., 293 F.3d 289 (6th Cir. 2002). Columbia/HCA is inapposite here. In that case, private plaintiffs filed
suit against a healthcare company related to its Medicaid and Medicare billing practices. Id. at 292. Prior to that
suit, the government had settled with the company after opening a fraud investigation into those same billing
practices. Id. The plaintiffs sought disclosure of internal audits the company had disclosed to the government
during that fraud investigation. Id. at 293. The company opposed disclosure, asserting the theory of selective
waiver. Id. It argued that it could disclose privileged material to the government while still maintaining its privilege
over that material as to other parties. Id. This court rejected the company’s argument and the theory of selective
waiver in its entirety: Once a party discloses privileged communications to one party, even the government, it does
not retain the privilege over those communications as to other parties. Id. at 302–04.
This case is different from Columbia/HCA because it involves a waiver dispute between the same parties
privy to the initial disclosure. In other words, KDMC initially disclosed privileged material to the government; now,
the government—the same party—seeks disclosure of additional undisclosed privileged material from KDMC based
on KDMC’s initial disclosure. Columbia/HCA concerned whether disclosure of privileged material to the
government waived privilege over that same material as to other parties.
No. 22-5071 In re King’s Daughters Health Sys. Page 10
amount of blockage in his patients’ arteries.” Id. at 726. We also reasoned that Paulus “could
have used the Shields Letter to impeach the government’s witnesses by calling into question how
representative their samples were.” Id. at 727. But, as the district court found, the Shields Letter
disclosed selective information about only a small portion of the data collected and analyzed by
KDMC’s experts.
Of course, Brady does not impose an obligation on private non-parties to disclose
privileged information to the government that might exculpate a criminal defendant. But we do
not think that KDMC, having selectively disclosed privileged information to the government
about its experts’ study in an effort to settle potential claims against it, can maintain its privilege
over the undisclosed information necessary to understand the study that we have found to be
material to Paulus’s criminal defense. On the flip side, if the full scope of information about the
study would not be exculpatory (as the government argued in Paulus II), Paulus is not entitled to
admit the selective information disclosed in the Shields Letter to paint an inaccurate picture of
that evidence to the jury. Were that the case, this situation is precisely the one for which Rule
502(a) was designed: where “fairness requires a further disclosure of related, protected
information, in order to prevent a selective and misleading presentation of evidence to the
disadvantage of the adversary.” Fed. R. Evid. 502(a) advisory committee notes. Either way,
KDMC’s privilege over the undisclosed information about the study must give way to allow for
a “complete and accurate presentation” of the study in Paulus’s criminal trial. Id.
Finally, we see no clear error in the district court’s finding that KDMC failed to establish
the existence of an agreement with the government limiting the scope of the waiver effectuated
by the Shields Letter. See Fed. R. Evid. 502(e). KDMC and the government presented
conflicting testimony on whether KDMC’s counsel reached a contemporaneous oral agreement
with the government limiting its privilege waiver when sending the Shields Letter to the
government. But KDMC has never produced a written agreement. Given the conflicting
testimony and the absence of written agreement, we cannot say that the district court’s finding
was clearly erroneous. See In re Powerhouse Licensing, LLC, 441 F.3d at 473. And ultimately,
even if KDMC and the government had reached the purported oral agreement, we are skeptical
No. 22-5071 In re King’s Daughters Health Sys. Page 11
that the agreement would be enforceable under Rule 502(e) given Rule 502(a) and the
government’s Brady obligations.
In sum, the district court did not err in granting the government’s motion to compel.
KDMC is not clearly entitled to relief on the merits of its privilege claim. Cheney, 542 U.S. at
380. And because KDMC is not clearly entitled to relief, we need not consider whether
mandamus is otherwise appropriate under the circumstances. See id.The petition for a writ of mandamus is DENIED.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk