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David J. Chizewer and Frederick H. Cohen were the litigation equivalent of firemen when they agreed to represent a whistleblower against an Illinois health maintenance organization (HMO) he alleged had defrauded the state Medicaid program. His case was going up in flames quickly and they had to decide if they could salvage it. Amerigroup Corp.’s Illinois HMO was under contract with the Illinois Department of Public Aid (IDPA) to enroll anyone eligible for Medicaid without regard to medical condition in exchange for a set amount based on the recipients’ age and gender. The “capitation rate” paid the same regardless of the amount of services received. The whistleblower, Cleveland Tyson, formerly vice president of government relations for the Illinois subsidiary of Amerigroup, alleged Amerigroup defrauded the state by training its representatives to avoid people who were ill and women in the third trimester of pregnancy. In January 2005, Tyson’s case was set for trial, but his legal team � a tiny local firm and a sole practitioner � faced lopsided odds. Amerigroup was represented by Freeborn and Peters, which was later bolstered by Houston’s Baker Botts. U.S. ex rel. Tyson v. Amerigroup Illinois Inc., No. 02 C 6074 (N.D. Ill., March 13, 2007). A ‘moving train’ With the April 2005 trial date looming, Tyson’s attorneys asked Chizewer and Cohen, both principals at the Chicago’s Goldberg Kohn Bell Black Rosenbloom & Moritz,, to take over the case. Only months earlier Cohen and Chizewer, both well-known corporate litigators in Illinois, had won a widely publicized class action against the IDPA and the Illinois Department of Human Services for failing to provide preventive medical care to more than 600,000 low-income children on Medicaid in Illinois. Memisovski v. Maram, No 92 C 1982 (N.D. Ill., Aug. 23, 2004). “They didn’t have the resources to take the case to trial and do everything that needed to be done over the course of the four months before the trial was scheduled to begin,” Cohen said. “They needed somebody who knew the Medicaid system, was good at trying cases, got good results and could basically take over the case and present it in a very short time.” There was less time than either Cohen or Chizewer realized when they first stepped into court in January 2005. Judge David Coar, as both Cohen and Chizewer knew, believed firmly in sticking to the trial calendar. “When we came into the case we appeared in court on a Tuesday and there was a summary judgment response due that Friday,” Chizewer said. “We asked Judge Coar [who eventually recused himself] for one extra week to respond. He said no. We asked him for the weekend, until Monday. He said no. He told us that if we wanted to take over the case, fine, but we were getting on a moving train. We looked at each other and went for it.” That night Cohen flew to California to interview Paul Hardwick, Amerigroup’s former marketing manager in Illinois, and returned with an affidavit that supported Tyson’s allegation. “Amerigroup claimed they weren’t discriminating against pregnant women and people who were ill,” Cohen said. “The marketing manager said that was exactly what they were doing. Now we have conflicting evidence and that gets us past summary judgment.” The case that Chizewer and Cohen would present to the jury was formulated as they moved through a grueling discovery process. Amerigroup fought Cohen and Chizewer’s efforts to obtain e-mails relevant to the case, which showed company executives to be training representatives not to enroll women who were plainly at a late stage of pregnancy.
TRIAL TIPS • Trial preparation starts with discovery. • Narrow the number of witnesses. • Examine your case from your opponents’ point of view.

The e-mail evidence, and Amerigroup’s reluctance to yield it, caused Coar to strike the calendar and restart the discovery process. After three weeks of trial in October 2006 the jury found that Amerigroup had submitted 18,130 false claims to the federal and state governments, and awarded $48 million in damages. In March, Judge Harry Leinenweber entered judgment on the verdict, amending it for treble damages and penalties of $5,500 per claim under the federal False Claims Act and $5,000 per claim under the Illinois Whistleblower Reward and Protection Act � bringing the total judgment to $334 million. Tyson stands to collect up to 25% of the award. Amerigroup was represented by Daniel J. Riley of Baker Botts and Daniel J. Voelker of Freeborn & Peters. Neither attorney responded to requests for comment.

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