Court shuts down whistleblower suit against Tutera, Medline

A whistleblower lawsuit against a nursing home provider and medical equipment company Medline Industries Inc. can't continue because it's too similar to a prior suit settled by Medline, a federal appeals court ruled this week.

In an August 2011 whistleblower suit, August Bogina III accused Tutera, a skilled nursing and senior living provider with locations in ten states, of receiving millions in dollars of kickbacks in exchange for doing business with Medline. Bogina claimed he learned of the kickbacks as a business associate of Michael Tutera, a former member of Tutera's ownership group.

Bogina's suit was dismissed in March 2015 for being “substantially similar” to a previous case against Medline that had been settled for $85 million in March 2011.

Bogina appealed that decision, arguing that his lawsuit was different from the first Medline suit because it named Tutera as a defendant, and alleged that the kickbacks were ongoing. In its Monday ruling, the U.S. Court of Appeals for the Seventh Circuit said Bogina's lawsuit lacked strength to count as an “original source,” and bypass the False Claim Act's first-to-file provision.

In his opinion, Judge Richard A. Posner called Bogina's assertions “unimpressive,” and condemned his actions as those of a “bounty hunter.”

“Bogina is not allowed to proceed independently if he merely ‘adds details' to what is already known in outline,” Posner wrote.