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The motion was referred to the Magistrate Judge for a report andrecommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and (C).
IN THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF TENNESSEEEASTERN DIVISION _________________________________________________________________UNITED STATES OF AMERICA,Plaintiff,v.LORNE ALLAN SEMRAU,Defendant.)))))No. 07-10074 Ml/P)))) _________________________________________________________________REPORT AND RECOMMENDATION _________________________________________________________________
Before the court by order of reference is the United States’(“government”) Motion in Limine and Memorandum in Support toExclude Defendant’s Expert Witness Testimony of Dr. Steven Lakenand Request by the United States for a Daubert Hearing, filedFebruary 19, 2010 (“Motion to Exclude”).
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(D.E. 168.) On March22, the defendant, Dr. Lorne Allan Semrau, filed a response inopposition to the motion and an Amended Notice of Filing ofAffidavit of Mark Stork George, M.D. On March 25, the governmentfiled a Supplement to its Motion to Exclude, arguing that inaddition to excluding Dr. Laken’s testimony under Fed. R. Evid.702, the court should also exclude his testimony under Fed. R.Evid. 403. On April 29, the government filed an Addendum to itsMotion to Exclude, attaching two recently published law journal
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At the March 3, 2010 status conference with the court, the partiesasked that the hearing be conducted on May 13 and 14, due to theunavailability of counsel during most of March and April, andbecause Dr. Laken and the government’s two expert witnesses wouldnot be available to testify at the hearing until the middle of May.-2-articles. On May 11, Dr. Semrau filed a Notice of Filing Affidavitof F. Andrew Kozel, M.D., M.S.C.R, and on May 12, he filed a Noticeof Filing Supplemental Materials and Authority.On May 13 and 14, the court conducted a Daubert hearing on themotion.
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All parties were present and heard. The court heardtestimony from Dr. Steven J. Laken, Dr. Marcus E. Raichle, and Dr.Peter Imrey. The court received the following exhibits asevidence: (1) curriculum vitae for all three witnesses; (2) the“fMRI Testing Report” containing Dr. Laken’s opinions; (3) a chartdisplaying the results of Dr. Semrau’s examinations; (4) an articletitled “Functional MRI Detection of Deception After Committing aMock Sabotage Crime”; and (5) a fifty-three page slide presentationused during Dr. Imrey’s testimony. Finally, on May 18, Dr. Semraufiled a Notice of Filing Supplemental Peer Reviewed Articles,Published Articles, and Scientific Presentations.After careful consideration of the briefs and exhibits filedin connection with the present motion, the testimony of thewitnesses and exhibits admitted at the hearing, and the entirerecord in this case, the court submits the following proposedfindings of fact and conclusions of law, and recommends that the
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The U.S. Department of Health and Human Services administersMedicare and Medicaid through the Centers for Medicare & MedicaidServices (“CMS”). CMS enters into contracts with private insurancecompanies throughout the United States to administer the Medicareand Medicaid programs. These insurance companies process and paythe claims filed under these programs, and are subsequentlyreimbursed by CMS. During the relevant time period of theindictment, CIGNA was the contractor for Tennessee and CAHABA wasthe contractor for Mississippi.-3-Motion to Exclude be granted.
I. PROPOSED FINDINGS OF FACT A.Summary of the Charges
According to the Second Superseding Indictment, at all timesmaterial to the indictment, Dr. Lorne Allan Semrau was a licensedpsychologist in Tennessee and a participating provider in theMedicare and Medicaid programs.
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Dr. Semrau was the owner andCEO/President of two Tennessee corporations, Superior Life CareServices, Inc. (“Superior”) and Foundation Life Care Services, LLC(“Foundation”). Through these corporations, Dr. Semrau contractedwith psychiatrists to provide mental health services to patients innursing homes in Tennessee and Mississippi. Services provided bythe psychiatrists included conducting initial patient evaluations,providing monthly medication management, and administering AbnormalInvoluntary Movement Scale (“AIMS”) tests on patients.The indictment alleges that Dr. Semrau instructed thepsychiatrists to fill out “log sheets” to document the servicesthey provided to patients. These log sheets were maintained bySuperior and Foundation, and contained the name of the nursing
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fMRI Report and Recommendation
Landmark decision in Semrau vs. USA on the use of fMRI brain scans for lie detection.
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