NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BNSF RAILWAY COMPANY, Relator; 

UNITED STATES OF AMERICA, 

Plaintiffs-Appellees, 

 v. 

CENTER FOR ASBESTOS RELATED 

DISEASE, INC., 

Defendant-Appellant.

No. 23-35507 

D.C. No. 9:19-cv-00040-DLC 

MEMORANDUM*

Appeal from the United States District Court

for the District of Montana

Dana L. Christensen, District Judge, Presiding

Argued and Submitted August 21, 2024

Portland, Oregon

Before: CHRISTEN, NGUYEN, and HURWITZ, Circuit Judges.

The Center for Asbestos Related Disease (CARD) appeals a judgment in 

favor of relator BNSF Railway Company (BNSF) in this qui tam action filed 

pursuant to the False Claims Act (FCA), 31 U.S.C. §§ 3729–30. The jury found

CARD liable for 337 false claims. The parties are familiar with the facts, so we do 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

SEP 24 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

not recount them here. We have jurisdiction pursuant to 28 U.S.C. § 1291. We 

affirm. 

1. The district court did not err in denying CARD’s motion for summary 

judgment on the falsity, scienter, and materiality elements of the FCA claims, see 

United States ex rel. Campie v. Gilead Scis., Inc., 862 F.3d 890, 898–99 (9th Cir. 

2017), nor on the applicable statute of limitations, 31 U.S.C. § 3731(b).

1

 Only the 

legal issues CARD challenged at the summary judgment level are properly before 

us, as “factual issues addressed in summary-judgment denials are unreviewable on 

appeal.” Dupree v. Younger, 598 U.S. 729, 735 (2023). 

The district court correctly denied summary judgment on falsity, scienter, 

and materiality because each required fact-specific inquiries that remained for the 

jury: whether CARD submitted false or fraudulent information (falsity), whether 

its statements reflected “honestly held” opinions (scienter), and what the relevant 

federal agencies knew about the claims CARD submitted (materiality). See 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The statute of limitations issue was also fact-bound because it depended on 

when the relevant government official knew or should have known of the material 

1 CARD also argues that the district court erred by denying its Rule 50(a) motion 

on these issues, but CARD waived this argument by failing to file a Rule 50(b) 

motion after the jury verdict. Fed. R. Civ. Pro. 50(b); Unitherm Food Sys., Inc. v.

Swift-Eckrich, Inc., 546 U.S. 394, 401–04 (2006).
3 

facts underlying the claims CARD submitted. See 31 U.S.C. §3731(b)(2); e.g.

United States ex rel. Purcell v. MWI Corp., 254 F. Supp. 2d 69, 78 (D.D.C. 2003). 

The district court did not err at the summary judgment stage by concluding that the 

earliest alleged false claim was not barred by the statute of limitations.

2. CARD also challenges several jury instructions. We review de novo 

whether the jury instructions correctly state the law. Peralta v. Dillard, 744 F.3d 

1076, 1082 (9th Cir. 2014) (en banc). “Jury instructions must be supported by the 

evidence, fairly and adequately cover the issues presented, correctly state the law, 

and not be misleading.” Id. An instruction error requires reversal “unless the error 

is more probably than not harmless.” Clem v. Lomeli, 566 F.3d 1177, 1182 (9th 

Cir. 2009) (quoting Dang v. Cross, 422 F.3d 800, 811 (9th Cir. 2005)).

a. CARD’s appeal involves 112 claims for which CARD submitted 

Medicare eligibility forms certifying that the patients had been diagnosed with an 

asbestos-related disease, even though no CARD doctor had made that diagnosis.2 

2 Although CARD challenges only 112 claims, BNSF presented evidence of more 

than 1,000 claims of fraud to the jury. The jury found CARD liable for 337 claims, 

and the verdict form did not specify which claims comprised the verdict. But there 

are 333 claims for which there was no radiologist read identifying a possible 

asbestos-related disease. The governing statute, 42 U.S.C. § 1395rr-1, requires 

radiographic support. Id. § 1395rr-1(e)(2)(B)(i)(I). There are two claims for 

diagnoses signed by a nurse but no physician, and several other claims submitted

for CARD staff members without radiographic support. CARD does not challenge 

these sets of claims. “Because we cannot determine one way or another” whether 

the jury’s verdict rested in part on the 112 claims CARD challenges, “we cannot 
4 

For each of these claims, CARD relied on radiological reads from an outside “BReader.”

CARD argues on appeal that the Affordable Care Act, 42 U.S.C. § 1395rr1(e)(2)(B)(i), permitted it to submit these forms based solely on the positive “BRead,” and therefore challenges the district court’s definition of “diagnosis” in 

Instruction F-24. There is no dispute, however, that the statute requires a 

diagnosis by someone.

3 42 U.S.C. § 1395rr-1(e)(2)(A)(i) (“An individual 

described in this paragraph is any individual who . . . is diagnosed with 1 or more 

conditions described in subparagraph (B)[.]”). But CARD conceded before trial

that “B-Readers do not diagnose,” and that “an abnormality detected by a B-reader 

is not considered a diagnosis of asbestos related disease.”4 Given the statutory 

requirement for a diagnosis and CARD’s stipulations, any error in the F-24

say that the verdict would have been the same” without the district court’s alleged

errors. Clem, 566 F.3d at 1183.

3 CARD’s briefing in part argued that the text of the statute was ambiguous and 

required Chevron deference to agency interpretations. We no longer recognize 

Chevron deference after Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 

2254 (2024). But even if we were to give agency interpretations persuasive effect, 

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), CARD’s argument fails for the 

reasons stated herein. We thus deny as moot CARD’s Motion for Judicial Notice 

of a purported agency interpretation, Dkt. No. 35.

4 The evidence at trial also showed that CARD sent letters to many of the “B-read 

only” patients for whom it filed Medicare claims stating that they “had no 

diagnosis of asbestos related disease.”
5 

instruction was harmless.5 See Clem, 566 F.3d at 1183. 

b. Instruction F-23 read, in part, “Certification of a person as eligible for 

Medicare coverage . . . who does not satisfy these requirements is a false claim.” 

CARD contends this instruction compelled the jury to find CARD liable for false 

statements without finding scienter. But CARD did not make this objection at 

trial.6 Fed. R. Civ. P. 51(c)(1). Thus, we review only for plain error. Fed. R. Civ. 

P. 51(d)(2); Skidmore v. Led Zeppelin, 952 F.3d 1051, 1065 (9th Cir. 2020) (en 

banc). We find none. Instruction F-23 pertained to the falsity element of the FCA, 

not the scienter element. Jury instructions are reviewed “as a whole.” Led 

Zeppelin, 952 F.3d at 1065. The district court properly instructed the jury that 

CARD was liable only if BNSF could prove each of the required elements of the 

FCA, including scienter, and the court separately instructed the jury on scienter.

c. CARD also argues that Instruction F-20 erroneously stated the law and 

precluded the jury from considering CARD’s contention that it lacked scienter 

when it submitted the “B-Read only” claims because it thought it was following 

5 Nothing in this memorandum should be construed to deny Medicare eligibility or 

benefits to the patients listed in BNSF’s claims against CARD. We consider 

eligibility only through the lens of the FCA, and do not reach whether these 

patients are, in fact, Medicare eligible. 

6 CARD’s sole objection to Instruction No. F-23 was that the last sentence should 

be omitted because “these are the requirements, but the summary is not one of the 

requirements of the diagnosis.”
6 

agency directives. Instruction F-20 stated: “In evaluating a defendant’s 

knowledge, you may consider that parties who seek public funds are expected to 

know the law and may not rely on the conduct of Government agents contrary to 

law.” This instruction accurately recites the law. Heckler v. Cmty. Health Servs.

of Crawford Cnty., Inc., 467 U.S. 51, 63 (1984) (“Protection of the public fisc 

requires that those who seek public funds act with scrupulous regard for the 

requirements of law . . . . [T]hose who deal with the Government are expected to 

know the law and may not rely on the conduct of Government agents contrary to 

law.”). Instruction F-20 also states the “good faith” rule central to CARD’s 

defense: “A defendant who relies on a good faith interpretation of a regulation is 

not subject to liability under the Act, even if that interpretation is objectively 

unreasonable.” Instructions F-18 and F-19 further detail the scienter element. 

Viewing the jury instructions “as a whole,” Led Zeppelin, 952 F.3d at 1065, the 

instructions accurately explained the scienter element and the jury was free to 

make its own determination of whether CARD’s “B-Read only” practice was 

“honestly held.” See Winter ex rel. United States v. Gardens Reg’l Hosp. and Med. 

Ctr., Inc., 953 F.3d 1108, 1117–18 (9th Cir. 2020).

3. The district court did not err by excluding testimony of Senator Baucus

pursuant to Evidence Rule 403 because it carried a high risk of unfairly prejudicing 

the jury. District courts have “wide discretion” to determine the admissibility of 
7 

evidence, and “[t]his is particularly true with respect to Rule 403 since it requires 

an on-the-spot balancing of probative value and prejudice[.]” Sprint/United Mgmt. 

Co. v. Mendelsohn, 552 U.S. 379, 384 (2008). The district court also reasoned that 

it was the court’s role to instruct the jury on the controlling law, which was the 

subject of the proposed testimony. Moreover, CARD was able to present 

alternative evidence of its subjective beliefs and purported “good faith 

interpretations” of the ACA.

AFFIRMED.