In a February blog post, we detailed the summary judgment rulings in a False Claims Act case involving Lance Armstrong: United States ex rel. Landis v. Tailwind Sports Corporation, et al. The federal government alleges that Lance Armstrong, his Tailwind Sports team, and its manager, Johan Bruyneel, submitted false claims to the United States Postal Service (“USPS”) and violated sponsorship agreements by using and then denying the use of banned performance enhancing drugs.
In June 2017, in anticipation of a November 2017 trial, the government and Armstrong filed Motions in Limine (“MIL”) to exclude evidence from being introduced before the court. The parties’ MIL, specifically those motions aimed at barring expert economic testimony via Daubert challenges, could have a significant impact on the government’s ability to meet its burden of proof with respect to damages. Likewise, Armstrong could suffer a similar misfortune on the MIL as his expert testimony may be critical to combat the government’s claims. In addition, two of the MIL, which essentially argue that “everybody does it” and that the “first to come clean benefits,” could have far-reaching implications for FCA cases in the future. Regardless of the outcome of the MIL, such posturing suggests that this matter is almost certainly headed for trial.
Recent Developments: Motions In Limine
The government filed seven MIL to exclude evidence including: (1) evidence of, or reference to, relator Floyd Landis’ character or motivation in filing the qui tam action, (2) evidence of the widespread use of performance enhancing drugs in professional cycling, such that USPS was or should have been on notice when it signed the sponsorship agreement with Armstrong, and (3) testimony provided by Armstrong’s damages expert that the government was not harmed at all, and in fact profited from Armstrong’s endorsement.
Armstrong, in turn, filed eight MIL—seeking to prevent introduction of evidence damaging to his character and to exclude the government’s expert testimony with regard to damages. Specifically, Armstrong sought to exclude testimony by Larry Gerbrandt, one of the government’s expert witnesses on damages. On those MIL, Armstrong contests the government’s argument that the sponsorship agreement with Armstrong was worthless because of Armstrong’s doping and that Armstrong should be liable for the maximum civil penalties allowed under the FCA, a total that could reach $100 million. Armstrong also moved to exclude damaging character evidence at trial, such as testimony by Betsy Andreu, the wife of former USPS cyclist Francisco “Frankie” Andreu.
Both side’s MIL touch on two important FCA issues that may have an impact on other cases in the future. First, the government’s MIL concerning the widespread use of performance enhancing drugs implicates other FCA contexts where the relator alleges false claims resulting from common industry practices. Consider a similar case where a defendant may seek to excuse certain billing practices that result in overbilling to the government “because everyone does it.” Second, Armstrong’s MIL to exclude Landis’ character evidence implicates FCA cases in which whistleblowers may have participated in the alleged fraudulent conduct, but stand to gain from any “bounty” or recovery as a relator. The ruling on this MIL could have implications, for example, in a case where an executive or manager who participated in or permitted a scheme to submit False Claims later benefits as the relator a only because he or she was the first to “come clean”.
Stay-tuned, as the rulings on these MIL could have important implications for both this case and many to come in the future.