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A Missouri cardiologist, lodging some strong allegations of her own, is asking a federal judge to dismiss a fraud and RICO suit that accuses her of certifying thousands of false claims in the Fen-Phen diet drug settlement. Lawyers for Dr. Linda Crouse argue in the motion that the AHP Settlement Trust has “embarked on a campaign to attack and discredit” some of the doctors who read results of echocardiogram tests for claimants to “mask their own incompetence in administering the settlement funds.” The suit against Crouse, filed in September by the individual trustees of the AHP Settlement Trust, alleges that she defrauded the trust by “certifying that thousands of [Fen-Phen] claimants had serious valvular heart disease when either she knew that they did not or had no reasonable basis for certifying that they did.” Now, in a motion to dismiss, Crouse’s lawyers — Abraham C. Reich and Gerald E. Arth of Fox Rothschild — argue that the RICO suit is long on rhetoric but short on specifics. And that lack of specificity is a fatal flaw in a RICO/fraud case, they argue, because the Federal Rules of Civil Procedure say that fraud must be pleaded with “particularity.” In the opening pages of their brief, Reich and Arth go on the offensive, arguing that the trustees’ motive for targeting Crouse is a “blatant scheme” to delay and deny benefits to claimants, to “shield” the manufacturer of the diet drugs from its own “miscalculation of the magnitude of the harm caused by those drugs,” and to “mask their own incompetence” in the administration of the settlement. The brief says the complaint filed against Crouse “is a paradigm of ‘shoot first ask questions later’ reasoning” that is “larded with salacious allegations of wrongdoing” but is “painfully thin” on evidence. The allegations, they argue, “amount to nothing more than a disagreement with Dr. Crouse over the proper medical interpretation of the echocardiograms of 55 Fen-Phen claimants.” By suing Crouse for racketeering, fraud and conspiracy, the brief says, the trustees have employed “the legal equivalent of a nuclear strike — without a scintilla of evidence to support such serious charges.” Urging U.S. District Judge Harvey Bartle III to dismiss the case, they argue that “this court cannot give them [the trustees] a free pass to blithely ruin the reputation of Dr. Crouse.” The suit was filed by attorneys Richard L. Scheff, Susan L. Burke and Scott A. Coffina of Montgomery McCracken Walker & Rhoads and asks that Crouse be hit with trebled damages for the fraudulent claims she is accused of certifying. The suit alleges that Crouse “acted in a grossly negligent, outrageous, wanton and reckless fashion when she certified to the trust that thousands of claimants had [heart valve damage] without taking the analytical steps required to make such a determination.” Crouse’s “actions and inactions,” the suit says, have cost the trust “millions of dollars” that were paid to claimants who don’t suffer from heart valve problems. The suit alleges that on thousands of occasions during three years, Crouse departed from normal practices and professional standards by failing to complete the steps required to reach a reasonable medical determination of the existence of valvular heart disease, or VHD. “Altogether, Dr. Crouse signed more than 2,500 certification forms, each time swearing under oath that the claimant suffered from VHD that could not be attributed at least in part to the presence of other factors,” Scheff said. Under the 1999 settlement agreement, cardiologists and cardiothoracic surgeons were required to undertake specific procedures to certify the existence of VHD before signing off on the court-approved certification form, known as the Green Form. The steps include the use of an echocardiogram, the taking of a claimant’s medical history to rule out potential causes of VHD other than the use of Fen-Phen, and others. The RICO suit alleges that contrary to normal practices and professional standards, Crouse signed off on Green Forms without spending the time required to properly conduct and interpret the echocardiograms, to meet or examine the claimants, to take medical histories, or to review medical records. “In almost all cases, [Crouse] never even met the person whose medical condition she was certifying,” the suit alleges. The suit accuses Crouse of abusing her position as a prominent cardiologist with an impressive resume. According to the suit, Crouse is a fellow of the American College of Cardiology and the American Heart Association, and is board-certified in internal medicine and in cardiovascular diseases. In addition, the suit says, she is the director of the Echocardiographic Laboratory at the Shawnee Mission Medical Center Regional Cardiovascular Institute and the Women’s Cardiovascular Center. “Dr. Crouse is the type of cardiologist on whom the parties to the settlement agreement and the trust intended to rely to ensure that only persons actually suffering from VHD who had ingested the diet drugs recovered the substantial sums available,” the suit says. “Instead of abiding by her professional responsibilities, Dr. Crouse intentionally defrauded the trust by designing and operating a Green Form mass production assembly line that generated hundreds of Green Forms per week,” the suit alleges. The suit says Crouse “signed these Green Forms either knowing that many of her representations were false or knowing that she was acting with reckless disregard as to the truth of the representations.” In one instance, the suit alleges, Crouse signed an echocardiogram report attesting to VHD “a mere 16 seconds after the echocardiogram ended.” But Crouse’s lawyers argue that the settlement simply says that claimants with moderate or higher valvular regurgitation qualify for benefits. Although the trustees claim that the settlement was based on a presumption that cardiologists would act as “gatekeepers,” Crouse’s lawyers say that the cardiologists were never told that. As for the Green Form, Crouse’s lawyers argue that it says only that the cardiologist “may” take a claimant’s medical history to aid in the determination of the condition but that it does not require it. And a medical history, they say, is not necessary to determine the existence of VHD. While the suit accuses Crouse of knowingly submitting “thousands” of false Green Forms, Crouse’s lawyers say an exhibit to the complaint, filed under seal, which “supposedly details the fraudulent acts,” lists only 55 Green Forms, not thousands. As a result, they argue, the suit “does not provide an adequate basis for levying the serious misconduct charges in the complaint against one of the most respected cardiologists in the United States.” The 29-page brief goes on to challenge specific aspects of the case against Crouse. Reich and Arth argue that the suit fails to allege a “pattern of racketeering activity” since not a single mailing or use of the wires is identified with the necessary specificity. Despite “repeated incantations” in the suit that Crouse used the mail and telephone to carry out the alleged scheme, they argue, the trustees “fail to identify a single specific instance where the mail or wires was used — not one!” Under Supreme Court case law, they argue, a RICO pattern must have “relatedness” and “continuity.” The suit against Crouse fails, they argue, since all of the conduct alleged in the sealed exhibit occurred over three months. Conduct lasting less than 12 months is not enough for a RICO pattern, they argue. Any claim of a pattern would also fail, they argue, since the allegations amount to a “single scheme to defraud by a single actor aimed at a single victim.” Although the trustees claim that Crouse’s conduct forced other claimants to await completion of an investigation and audits, Reich and Arth argue that it is “completely specious” to contend that those who are not targets of a scheme should be counted as victims for purposes of determining whether a RICO pattern exists. The trustees also lack standing to bring such a RICO claim, they argue, because Crouse sent the forms to lawyers — not to the trust — and the submission of forms to the trust was solely within the lawyers’ discretion. As a result, they argue, any injury was “at most only indirectly” caused by Crouse. And the suit also fails to allege “actual injury,” they argue, because there is no allegation that any of the 55 claims identified in the exhibit filed under seal were ever paid. “Without actual pecuniary loss, the trustees have no RICO claim,” they argue.

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