The government moved to dismiss a qui tam case; the Fifth Circuit found that the relators received the statutorily-required opportunity to contest that motion at a hearing:
“Health Choice had a hearing before the magistrate judge. It had a witness available to testify at that hearing, and the witness was not prohibited from testifying. Health Choice declined to call the witness to testify and the magistrate judge did not prevent Health Choice from presenting the witness. Health Choice’s statements at oral argument suggest that it consciously and strategically chose not to offer evidence because it believed it had already won the motion. Even assuming that [42 U.S.C.] § 3730(c)(2)(A) requires the hearing to be an evidentiary hearing, there was no error because Health Choice declined to offer evidence at the hearing.”
(citations omitted). A concurrence emphasized the fact-specific nature of the holding, and one of the three panel members concurred as to the judgment only. United States ex rel. Health Choice Alliance v. Eli Lilly & Co., No. 19-40906 (July 7, 2021).
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