By Justin Marcus Smith, J.D.

The court assessed the government was not attempting to “smuggle” expert testimony into the case.

In False Claims Act litigation, a party could offer the fact testimony of a physician who settled beforehand as pertinent to scienter about medical necessity, without having to conform to Fed. R. Civ. P. 26 expert witness disclosure, held the federal district court in New Bern, North Carolina. Three other treating physicians, who were parties in the matter, could likewise answer questions about what they were thinking at the time they treated patients if they did not rely on terms like “medical necessity” or offer opinions on “technical questions” to inform jury deliberation. The physician parties’ state of mind was directly at issue. Facts pertinent thereto, and opinions they formed at the time of treatment, even when based on specialized knowledge, were generally not expert opinion testimony subject to R. 26(a)(2) disclosure. In contrast, current opinions about medical necessity were forbidden. The court sustained the government’s objection to any current opinion about medical necessity and overruled in part to the extent the government sought to stop the non-party settling physician from testifying about his opinion of medical necessity at the time he provided treatment. The same distinction applied to the physician parties (U.S. ex rel. Devarapally v. Ferncreek Cardiology, P.A., No. 5:17-cv-00616-FL-RN (E.D.N.C. Dec. 12, 2025)).

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