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Judge Ed Kinkeade's August order granting UTSW's motion to dismiss Gentilello retaliation claim

Judge Ed Kinkeade's August order granting UTSW's motion to dismiss Gentilello retaliation claim

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Published by: reesedunklin on Aug 28, 2012
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08/28/2012

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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TEXASDALLAS DIVISIONLARRY M. GENTILELLO, MD,Plaintiff,V.THE UNIVERSITY OF TEXASSOUTHWESTERN HEALTHSYSTEMS, UNIVERSITY OF TEXASSOUTHWESTERN MEDICAL CENTER  AT DALLAS, MEDICAL SERVICERESEARCH AND DEVELOPMENTPLAN, AND DALLAS COUNTY HOSPITAL DISTRICT,Defendants.§§§§§§§CIVIL ACTION NO.§3:07-CV-1172-§§§§§§§§
MEMORANDUM OPINION AND ORDER 
Before the Court is Defendants’ Motion to Dismiss and Brief in Support Thereof (Doc. No. 46) and Plaintiff’s Opposed Motion for Leave to File Second AmendedComplaint (Doc. No. 47). Defendants assert in their motion to dismiss that, as astatutory matter, Defendants are not subject to suit under the False Claims Act (“FCA”),and Dr. Gentilello’s retaliation claim is barred by sovereign immunity under theEleventh Amendment. The Court has considered the parties’ briefing, the live pleadingin this case, and applicable law. The Court
GRANTS
Defendants’ Motion to Dismissand Brief in Support Thereof (Doc. No. 46). Additionally, because the amendmentssought by Plaintiff’s Opposed Motion for Leave to File Second Amended Complaint arefutile, Dr. Gentilello’s, Motion for Leave to File Second Amended Complaint (Doc. No.
Case 3:07-cv-01172-K Document 51 Filed 08/24/12 Page 1 of 11 PageID 439
 
- 2 -47) is
DENIED
. Dr. Gentilello’s case is hereby 
DISMISSED with prejudice
.
I.Motion to Dismiss A.Factual Background
From approximately August 2003 until March 2007, Plaintiff Larry Gentilello,M.D., was the Chair of the Division of Burn, Trauma, and Critical Care at theUniversity of Texas Southwestern Medical Center at Dallas (“UTSW”), a tenuredProfessor of Surgery at UTSW, and holder of the C. James Carrico Distinguished Chairin Trauma and Surgical Care. During his time at UTSW, Dr. Gentilello allegedly learned that teaching physicians with UTSW’s department of surgery failed toadequately supervise surgical residents before, during, and after certain surgeriesperformed at Parkland Memorial Hospital. Furthermore, Dr. Gentilello claims that helearned that despite the lack of supervision by teaching physicians, UTSW billedMedicare and Medicaid as if attending teaching physicians adequately supervised thecare of patients. Dr. Gentilello claims that when he brought these wrongful practices tohis supervisor, UTSW retaliated against him by demoting him from his positions asChairman of the Division of Burn, Trauma, and Critical Care and the C. James CarricoDistinguished Chair in Trauma and Surgical Care in March 2007.On July 31, 2008, Dr. Gentilello filed suit against Defendants claiming false orfraudulent claims were made against the Untied States government and retaliation in violation of the False Claims Act. On August 31, 2011, Defendants reached a settlement
Case 3:07-cv-01172-K Document 51 Filed 08/24/12 Page 2 of 11 PageID 440
 
- 3 -regarding the
 qui tam
claims with the United States and Dr. Gentilello that released allclaims against Defendants in this case except for the retaliation claim brought by Dr.Gentilello. On the same day, the United States filed a Notice of Intervention forSettlement purposes, and the United States and Dr. Gentilello filed a Joint Stipulationof Partial Dismissal of Civil Action. On September 1, 2011, this Court issued an ordergranting the United States’ Notice of Intervention for Settlement Purposes and an orderdismissing Dr. Gentilello’s
 qui tam
claims. On the same day, the United States wasterminated as a party in the case. As a result of the settlement and partial dismissal by the Court, the only claimpending in this case is Dr. Gentilello’s retaliation claim. Defendants now move todismiss this claim. Defendants argue that, as a statutory matter, Defendants are notsubject to suit under the FCA, and Dr. Gentilello’s retaliation claim is barred by sovereign immunity under the Eleventh Amendment. Dr. Gentilello contends, however,that Defendants are subject to suit under the anti-retaliation provisions of the FCA, andDefendants have no Eleventh Amendment immunity from the anti-retaliation portionsof the FCA. Alternatively, Dr. Gentilello contends that the Defendants have waivedtheir defenses under the False Claims Act and Eleventh Amendment as part of the priorsettlement.
B.Legal Standard
Defendants bring their motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)
Case 3:07-cv-01172-K Document 51 Filed 08/24/12 Page 3 of 11 PageID 441

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