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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

STATE FARM MUTUAL AUTOMOBILE : CIVIL ACTION

INSURANCE CO. et al., : NO. 05-5368

:

Plaintiffs, :

:

v. :

:

ARNOLD LINCOW et al., :

:

Defendants. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. JUNE 2, 2010

TABLE OF CONTENTS

I. BACKGROUND.................................................2

II. STANDARD OF REVIEW.........................................4

A. Rule 50.................................................4

B. Rule 59.................................................6

III. DEFENDANTS’ POST-TRIAL MOTIONS.............................7

A. Waiver..................................................9

B. Evidentiary Issues.....................................17

1. Legal Standard....................................17

2. Common Law Fraud Claim............................18

3. RICO Claim........................................21

4. Statutory Insurance Fraud Claim...................23

5. Causation.........................................24

6. Defendants’ Counterclaim..........................27

C. Alleged Trial Errors...................................29

1. Legal Standard....................................29

2. Admission of Exhibit P-77.........................30

3. Jury Instructions.................................36

4. Cumulative Effect of Errors.......................45

a. Videotaped Deposition of Dr. Lincow..........46

b. Gene Veno’s Testimony........................47

c. Dora Dixon-Jefferson’s Testimony.............48

d. Steven Hirsch’s Cross-Examination............49

D. Defendant Mintz’s Arguments............................51

1. Procedural Background.............................51

2. Waiver............................................52

3. Sufficiency of the Evidence Against Mintz.........53

IV. DAMAGES....................................................55
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A. Background.............................................55

B. Damages Evidence.......................................57

C. Election between Treble and Punitive Damages...........58

D. Motion to Amend the Judgment to include Steven Hirsh and

Lolo, Inc............................................58

E. Motion to Treble Damages...............................59

F. Motion for Attorneys’ Fees.............................61

V. CONCLUSION..................................................64

I. BACKGROUND

In October 2005, Plaintiff insurance companies (“State

Farm” or “Plaintiffs”) brought RICO and fraud actions against

certain health-care providers (“Defendants”) who were allegedly

involved in various schemes to defraud Plaintiffs by billing them

for medical services that were either never provided or provided

unnecessarily. Certain Defendants filed a counterclaim seeking

unpaid benefits. 

Plaintiffs alleged that Defendants were members of a

conspiracy that sharply inflated the costs of medical care for

car accident victims. State Farm alleged that Defendants schemed

to drastically inflate the medical bills of car accident victims

by systematically prescribing tests and treatments, as well as

prescriptions and medical equipment -- whether medically

necessary or not -- and then routinely billed State Farm for

additional treatments that were never provided. At trial,

Plaintiffs’ proof of Defendants’ fraud consisted of State Farm’s

claim files, testimony of patients, testimony of physicians

working at Defendant medical facilities, testimony of Defendant
All Defendants were represented at trial by the same 1

counsel and all offered the defense that the services at issue

provided were medically necessary and consistent with the

standard of care. 

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physicians and expert testimony. 

Defendants deny the charges and claim, instead, that

all of the billing statements to State Farm reflected services

which were medically necessary and consistent with the standard

of care. 

On March 26, 2009, after a four week jury trial, the

jury awarded Plaintiffs $4,049,741.00 against all Defendants

jointly and severally (doc. no. 593). Additionally, individual 1

Defendants were also found liable for punitive damages totaling

$11.4 million. (Id.) The jury also found in favor of Plaintiffs

on Defendants’ counterclaims. 

Defendants and Plaintiffs have both filed post-trial

motions with extensive briefing. On April 27, 2009, Defendants

filed a motion for post-trial relief pursuant to Fed. R. Civ. P.

50 (doc. no. 613). On May 11, 2009, Plaintiffs submitted their

response to Defendants’ motion for post-trial relief (doc. no.

661). Plaintiffs filed sealed motions to alter or amend the

judgment (doc. no. 615) and for attorneys’ fees and costs (doc.

no. 616). 

On August 21, 2009, Defendants filed their brief in

support of the motion for post-trial relief (doc. no. 828). On
 Plaintiffs move for leave to file a reply to 2

Defendants’ rebuttal brief (doc. no. 955). The Court grants this

motion and references Plaintiffs’ reply brief. 

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November 5, 2009, Plaintiffs submitted their brief in opposition

to Defendants’ motion for post-trial relief (doc. no. 919). On

November 30, 2009, Defendants filed their rebuttal brief in

support of motion for post-trial relief (doc. no. 939). On

December 15, 2009, Plaintiffs filed a motion for leave to reply

to Defendants’ rebuttal brief (doc. no. 955). The Court heard 2

oral argument on the motions on February 18, 2010. 

II. STANDARD OF REVIEW

A. Rule 50 motion for judgment as a matter of law 

Rule 50 provides that, in the aftermath of a jury

trial, a court may grant a motion for judgment as a matter of law

if it determines that there was “no legally sufficient

evidentiary basis for a reasonable jury to have found for a

particular party on an issue,” and that, without a favorable

finding on that issue, the party cannot maintain his claim under

controlling law. Fed. R. Civ. P. 50(a)(1). In determining

whether to grant judgment as a matter of law, the court “must

view the evidence in the light most favorable to the non-moving

party, and determine whether the record contains the ‘minimum

quantum of evidence from which a jury might reasonably afford

relief.’” Glenn Distribs. Corp. v. Carlisle Plastics, Inc., 297

F.3d 294, 299 (3d Cir. 2002) (quoting Mosley v. Wilson, 102 F.3d
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85, 89 (3d Cir. 1996)). Indeed, a court may grant judgment as a

matter of law “only if, viewing the evidence in the light most

favorable to the nonmovant and giving it the advantage of every

fair and reasonable inference, there is insufficient evidence

from which a jury reasonably could find liability.” LePage's,

Inc. v. 3M, 324 F.3d 141, 145-46 (3d Cir. 2003) (quoting

Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.

1993)).

In this endeavor, “[t]he court may not weigh evidence,

determine the credibility of witnesses or substitute its version

of the facts for that of the jury,” Parkway Garage, Inc. v. City

of Philadelphia, 5 F.3d 685, 691 (3d Cir. 1993), but rather may

grant a Rule 50 motion only “if upon review of the record it can

be said as a matter of law that the verdict is not supported by

legally sufficient evidence.” Id. at 691-92; see also LePage's,

at 145-46 (“[R]eview of the jury's verdict is limited to

determining whether some evidence in the record supports the

jury's verdict.”); Glenn Distribs., 297 F.3d at 299 (stating that

“[t]he standard for granting summary judgment under Rule 56

‘mirrors the standard for a directed verdict under Fed. R. Civ.

P. 50(a)’”) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 250 (1986)).

Upon the renewed motion of a party, Fed. R. Civ. P.

50(b) allows the trial court to enter judgment as a matter of law
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at the conclusion of a jury trial notwithstanding a jury verdict

for the opposing party. Such judgment may be entered under Rule

50(b) “only if, as a matter of law, the record is critically

deficient of that minimum quantity of evidence from which a jury

might reasonably afford relief.” Trabal v. Wells Fargo Armored

Serv. Corp., 269 F.3d 243, 249 (3d Cir. 2001). In deciding

whether to grant this “sparingly invoked remedy,” the court must

“refrain from weighing the evidence, determining the credibility

of witnesses, or substituting our own version of the facts for

that of the jury.” Marra v. Phila. Housing Auth., 497 F.3d 286,

300 (3d Cir. 2007). 

B. Rule 59 Motion for New Trial

“The court may, on motion, grant a new trial on all or

some of the issues . . . after a jury trial, for any reason for

which a new trial has heretofore been granted in an action at law

in federal court. . . .” Fed. R. Civ. P. 59(a)(1). The decision

whether to grant a new trial following a jury verdict is within

the discretion of the district court and such requests are

disfavored. See, e.g., Williamson v. Consolidated Rail Corp.,

926 F.2d 1344, 1353 (3d Cir. 1991) (“new trials because the

verdict is against the weight of the evidence are proper only

when the record shows that the jury's verdict resulted in a

miscarriage of justice or where the verdict, on the record, cries

out to be overturned or shocks [the] conscience”). The standard
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by which a motion for a new trial is judged depends on the

grounds upon which the motion rests.

Where the asserted basis for a new trial involves a

matter originally within the trial court's discretion - e.g.,

evidentiary rulings - the court has more latitude to grant a

motion for a new trial. Klein v. Hollins, 992 F.2d 1285, 1289-90

(3d Cir. 1993). The court's inquiry in evaluating a motion for a

new trial on the basis of trial error is twofold. It must first

determine whether an error was made in the course of the trial,

and then must determine “whether that error was so prejudicial

that refusal to grant a new trial would be ‘inconsistent with

substantial justice.’” Farra v. Stanley-Bostitch, Inc., 838 F.

Supp. 1021, 1026 (E.D. Pa. 1993) (Robreno, J.) (citing Bhaya v.

Westinghouse Elec. Corp., 709 F. Supp. 600, 601 (E.D. Pa. 1989)

(quoting Fed. R. Civ. P. 61), aff'd, 922 F.2d 184 (3d Cir. 1990),

cert. denied, 501 U.S. 1217 (1991); see Gebhardt v. Wilson

Freight Forwarding Co., 348 F.2d 129, 133 (3d Cir. 1965) ("If the

evidence in the record, viewed from the standpoint of the

successful party, is sufficient to support the jury verdict, a

new trial is not warranted merely because the jury could have

reached a different result.").

III. DEFENDANTS’ POST-TRIAL MOTIONS

Defendants, in their motion for post-trial relief (doc.
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no. 613) advance a potpourri of arguments including: (1)

Plaintiffs failed to prove liability under the civil RICO

statute, 18 U.S.C. § 1962(c) (2000), as Plaintiffs did not prove

an enterprise separate, distinct and apart from Defendants; (2)

Plaintiffs failed to prove the existence of a RICO conspiracy;

(3) Plaintiffs failed to introduce sufficient evidence to prove

Defendants’ conduct was the proximate cause of any of State

Farm’s alleged damages; (4) the verdict under RICO against Dr.

Mintz, Dr. Forman, Dr. Butow and Dr. Hennessy is not supported by

sufficient evidence; (5) the $11.4 million award of punitive

damages is unwarranted and violates Defendants’ due process

rights; (6) the verdict against Defendants on Plaintiffs’ claim

under the Pennsylvania Insurance Fraud Act, 18 Pa. C.S. § 4177,

is not supported by sufficient evidence; (7) the verdict against

Defendants on Plaintiffs’ claim of common law fraud is not

supported by sufficient evidence; (8) the trial court erred in

its instruction to the jury; (9) the trial court incorrectly

excluded Gene Veno’s testimony; (10) the trial court incorrectly

refused to admit Dora Dixon-Jefferson’s deposition testimony at

trial; (11) the trial court incorrectly refused to allow defense

counsel to cross examine Steven Hirsh regarding a blank

prescription; (12) the trial court incorrectly permitted the

testimony of State Farm employees regarding claim files; (13) the

trial court incorrectly permitted the testimony of Dr. Gregory
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Mulford; (14) the trial court incorrectly refused to correct

improper comments in Plaintiffs’ opening and closing arguments;

and (15) the trial court incorrectly allowed Plaintiffs to

introduce Dr. Lincow’s videotaped deposition. (See Doc. no. 613.) 

Accordingly, Defendants ask for judgment as a matter of

law and/or a new trial. The Court will analyze Defendants’

arguments in turn. 

A. Waiver 

As a preliminary matter, Plaintiffs argue that

Defendants’ renewed motion for judgment as a matter of law must

fail because Defendants “neglected significant substantive

prerequisites” before submitting the instant motion. (Pls.’ Br.,

doc. no. 919 at 3.) Plaintiffs claim that defense counsel failed

to move for a directed verdict on sufficiency of the evidence

claims and, therefore, Defendants have waived these arguments and

may not reassert them now. Moreover, Plaintiffs argue that

Defendants failed to specifically identify: (1) the judgment

sought; (2) the facts which entitle Defendants to judgment as a

matter of law; and (3) the law supporting these claims. 

1. Rule 50 waiver standard 

“It is well settled that a party who does not file a

Rule 50 motion for judgment as a matter of law at the end of the

evidence is not thereafter entitled to have judgment entered in

its favor notwithstanding an adverse verdict on the ground that
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there is insufficient evidence to support the verdict.” 

Greenleaf v. Garlock, Inc., 174 F.3d 352, 364 (3d Cir. 1999)

(rejecting defendant's argument that a proposed jury instruction

was a request for judgment as a matter of law, and waiving

defendant's argument as to the sufficiency of the evidence

claim). The Third Circuit has stated that a motion for judgment

as a matter of law pursuant to Rule 50(b) must be preceded by a

Rule 50(a) motion “sufficiently specific to afford the party

against whom the motion is directed with an opportunity to cure

possible defects in proof which otherwise might make its case

legally insufficient.” Lightning Lube, 4 F.3d at 1173 (citing

Acosta v. Honda Motor Co., 717 F.2d 828, 831-32 (3d Cir. 1983)). 

Such a motion properly places the non-movant and the court on

notice of the movant's claims. Therefore, “a defendant's failure

to raise an issue in a Rule 50(a)(2) motion with sufficient

specificity to put the plaintiffs on notice waives the

defendant's right to raise the issue in their Rule 50(b) motion.” 

 Williams v. Runyon, 130 F.3d 568, 571-72 (3d Cir. 1997).

The failure to move for a directed verdict at the close

of all evidence "does more than limit an aggrieved party's remedy

to a new trial. In this Circuit, it wholly waives the right to

mount any post-trial attack on the sufficiency of the evidence." 

Yohannon v. Keene Corp., 924 F.2d 1255, 1262 (3d Cir. 1991)

(Defendant waived the right to judgment n.o.v. when it failed to
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renew its motion for a directed verdict at the close of all the

evidence); see also Gebhardt v. Wilson Freight Forwarding Co.,

348 F.2d 129, 132 (3d Cir. 1965) (Defendant, at the close of

Plaintiff's evidence, made a motion ‘for a compulsory non suit'

which was treated as analogous to a motion for a directed verdict

under the rule. The motion was denied and the defendant then

offered evidence in support of the defenses pleaded in its

answers. The motion was not renewed at the close of all the

evidence. The defendant made no motion for a directed verdict at

the close of the cross-claimant's case or at the close of all the

evidence); Follette v. Nat’l Tea Co., 460 F.2d 254, 255 (3d Cir.

1972) (Defendant failed to moved for a directed verdict at the

end of plaintiff's case or at the conclusion of the entire case). 

Consequently, failure to move with sufficient specificity to

permit the Court to intelligently revisit the issue, waives the

party’s right to Rule 50 judgment. 

As the Third Circuit has noted, "[t]he provisions of

the rule are clear. . . . [the rule] is as plainly described as

we believe to be possible. The rule has been in effect for a

very considerable length of time. We do not see any reason to

obfuscate a plain rule by adding a gloss to it to aid those who,

for reasons unknown to us, have not seen fit to follow it." 

Lowenstein v. Pepsi-Cola Bottling Co. of Pennsauken, 536 F.2d 9,

12 (3d Cir. 1976) (rejecting defendant’s argument that a request
The transcript incorrectly reads “Rule 15". (Trial Tr. 3

at 61, Mar. 16, 2009.) 

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for a binding instruction should be treated as satisfying the

prerequisite for a judgment n.o.v.); see also Mallick v. Int’l

Broth. of Elec. Workers, 644 F.2d 228, 234 (3d Cir. 1981) (same)

("We, however, do not deem [Rule 50] whose underpinnings rest in

the United States Constitution to be a mere technicality to be

readily dispensed with. Moreover, judicial efficiency may be

better served when jury verdicts receive the respect to which

they are entitled under the Seventh Amendment."). 

2. Defendants’ Rule 50 motions at trial

Defense counsel made two statements implicating a Rule

50 motion. Each is addressed in turn. 

a. At the conclusion of Plaintiffs’ case

Defense counsel argues that he made an oral Rule 50

motion on March 16, 2009, when Plaintiffs rested their case in

chief. 

Plaintiffs’ counsel: That might be the last witness,

Your Honor. 

The Court: Okay, Well that might be a good

time to break, but we could maybe

argue the Rule [50] now and get 3

ready for tomorrow, and then

tomorrow first thing in the morning
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we can do those objections. Do you

have the transcript?

Plaintiffs’ counsel: Yes, Your Honor. 

The Court: Okay. Then I can take a look at the

transcript. 

Plaintiffs’ Counsel: Okay. 

Defense Counsel: Your Honor, at this point I would

just basically incorporate all of

the arguments I have made. I don’t

think its necessary to burden the

Court on a long argument.

The Court: Well, I’m back in here –-

Defense Counsel: I understand that. I think Your

Honor needs to review those –-

The Court: Right. 

Defense Counsel: –- then I would be prepared to

start. 

The Court: Well, you argue right now if you

want to rest on what you have said

so far?

Defense Counsel: Yes, I do, Your Honor. I don’t want

to belabor that. 

The Court: So, do you want to break and then

come in tomorrow morning at 9:30
The transcript incorrectly reads “directive". (Trial 4

Tr. at 22, Mar. 24, 2009.)

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and then we will play [Plaintiffs’

video deposition tape] and then you

are ready to go.

Defense Counsel: I will be ready to go, sir. 

The Court: Okay. Very good. 

(Trial Tr. at 61-63, Mar. 16, 2009.) 

b. At the charging conference 

During the March 24, 2009, charging conference in

Chambers, defense counsel explicitly moved for a directed

verdict. 

Defense Counsel: I would like to make a motion for a

direct[ed] verdict on the issue of 4

RICO, because I do not believe the

evidence supports the finding by a

preponderance of the evidence that

there was an enterprise separate

and apart from the defendants

themselves. That issue has been

previously thoroughly briefed to

the Court. 

The Court: It has. 

Defense Counsel: I don’t think I should have to –
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with the Court’s permission, I

would just like to make that motion

and leave it at that. 

The Court: Absolutely. 

Defense Counsel: Thanks. 

The Court: Okay. I will take that under

advisement, and we’ll submit the

case to the jury and reserve

judgment on that issue. 

Defense Counsel: Thank you. 

 (Trial Tr. at 22-23, Mar. 24, 2009.) 

Defendants further claim that all of the issues raised

in their motion for post-trial relief were previously raised in

pre-trial dispositive motions, motions in limine, objections to

Plaintiffs’ Rule 26(a)(3) disclosures or at trial. (Defs.’ Br.,

doc. no. 939 at 1-2.) 

3. Analysis 

The Court agrees with Plaintiffs that the only issue

identified in the motion for a directed verdict under Rule 50 is

the issue of the distinctiveness requirement of RICO. Defense

counsel’s vague comments at the close of Plaintiffs’ case did not

sufficiently specify the contested issues in order to put the

Court and Plaintiffs on notice of the deficiencies claimed by

Defendants. 
Defendants, in briefing supporting their motion, do not 5

argue every claim for post-trial relief made in their original

motion. (Compare Defs.’ Br., doc. no. 828; Defs.’ Mot., doc. no.

613.) Defendants raised the following issues in their motion but

did not later address them in their briefs: (1) RICO

distinctiveness; (2) Dr. Gregory Mulford’s expert testimony; and

(3) Plaintiffs’ opening and closing arguments. Accordingly,

those arguments, including RICO distinctiveness, will be deemed

abandoned and will not be addressed by the Court. 

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In this four week long jury trial, and lengthy pretrial discovery lasting over three years, a general incorporation

of “all of the arguments I have made” is insufficient to put the

Court and the Plaintiffs on notice of the alleged deficiencies

claimed by Defendants. Moreover, Defendants’ renewed 50(a)

motion expressed at the charge conference specified only the

issue of distinctiveness requirement, and no other issue.

Accordingly, aside from the issue of RICO

distinctiveness, Defendants’ motion for judgment as a matter of

law based upon the sufficiency of the evidence to support

Plaintiffs' claims will be denied. 

Moreover, although Defendants indicated they would

argue RICO distinctiveness in their motion for post-trial relief

(doc. no. 613), they did not argue this issue in their later

briefs. (See docs no. 828 & 939.) Accordingly, those arguments

which Defendants have not addressed in their briefs, including

RICO distinctiveness, will be deemed abandoned and will not be

addressed by the Court. See Reynolds v. Wagner, 128 F.3d 166, 5

178 (3d Cir. 1997) (“an argument consisting of no more than a
Both waiver and abandonment, although technically 6

different, reflect the legal doctrine that a party must assert a

legal position in a timely and substantive manner. Here, first,

because of Defendants’ insufficient Rule 50 motion at trial, all

issues relating to sufficiency of the evidence aside from RICO

distinctiveness, are waived. Second, because Defendants have

failed to fully brief certain arguments that were tersely

addressed in their motion, those arguments will be deemed

abandoned. 

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conclusory assertion . . . will be deemed waived.”) (citing

Pennsylvania v. U.S. Dep't of Health & Human Serv., 101 F.3d 939,

945 (3d Cir. 1996) (“arguments mentioned in passing, but not

squarely argued, will be deemed waived”)). 

6

B. Evidentiary Issues

Even if Defendants had properly moved for judgment as a

matter of law based on the sufficiency of Plaintiffs’ evidence,

the Court finds that Defendants’ motion would still fail. For

the sake of completeness, the Court will analyze each of

Defendants’ arguments regardless of the issue of waiver. 

1. Legal Standard 

 Regarding arguments of insufficient evidence, the

Third Circuit directs:

Such a motion should be granted only if, viewing the

evidence in the light most favorable to the nonmovant

and giving it the advantage of every fair and

reasonable inference, there is insufficient evidence

from which a jury reasonably could find liability. In

determining whether the evidence is sufficient to

sustain liability, the court may not weigh the

evidence, determine the credibility of witnesses, or

substitute its version of the facts for the jury's
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version.

Lightning Lube, 4 F.3d at 1166 (internal citations omitted). 

“[The] [e]ntry of judgment as a matter of law is a sparingly

invoked remedy[.]” Marra, 497 F.3d at 300 (internal quotation

omitted). 

2. Common law fraud claim

Defendants rely on a Fifth Circuit case, Allstate v.

Receivable Finance, to argue that they are entitled to judgment

as a matter of law. 501 F.3d 398 (5th Cir. 2007). Defendants

argue that in the instant case, as was found in Receivable

Finance, Plaintiffs have not provided sufficient evidence of

actual reliance by Plaintiffs on the alleged misrepresentations

of Defendants. 

In Receivable Finance, insurers brought a fraud claim

against a group of chiropractic clinics, chiropractors and

employees that specialized in treating patients who had suffered

trauma in automobile accidents or through on-the-job injuries. 

Plaintiff insurers alleged that defendants grossly and knowingly

billed for unnecessary and excessive chiropractic and/or medical

diagnoses, treatments, procedures, services and consultations. 

The case proceeded to jury trial and the jury returned a verdict

finding that defendants committed fraud against the insurers. 

The district court issued an amended final judgment awarding

damages in favor of the insurers and an appeal followed. Id. at
In Receivable Finance, the plaintiff brought claims 7

against defendants alleging common law fraud and conspiracy under

Texas law. 

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401-05. The Fifth Circuit reversed and found that the evidence

presented at trial was insufficient to show that insurers

actually relied on misrepresentations made by defendants when

settling claims, as required under Texas law, to establish common

law fraud. The court also found that the damages award was based

on “conjecture and speculation” as to how much the defendants

obtained through their fraud. Id. at 414. 

Receivable Finance is distinguishable because, unlike 7

in Receivable Finance, Plaintiffs in the instant case produced a

corporate designee who testified on behalf of State Farm

specifically on the issue of reliance. 

In this case, Plaintiffs’ corporate witness, Bryan

Acornley, testified that he reviewed all of the log notes of the

claims representatives that handled the claims. Mr. Acornley

also testified, in detail, about Plaintiffs’ reliance on

Defendants’ medical records and how such records dictate the

value of insurance claims. (Trial Tr. 56-61, March 16, 2009.) 

Mr. Acornley testified that: (1) the evaluation of payments of

the third party claims was based on Defendants’ medical records

submitted by third party plaintiffs; (2) payments to third party

plaintiffs were a result of these medical records; and (3)

payments were made to defense counsel in these third party claims
In connection to this argument, Defendants claim that 8

the Court improperly admitted Exhibit P-77, a summary document

relied upon by Mr. Acornley in his testimony. (Defs.’ Br., doc.

no. 828 at 46-58.) Defendants, in later briefs, seem to argue

that only if Exhibit P-77 and Mr. Acornley's testimony are

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in order to defend State Farm insureds from medical injury claims

relying on Defendants’ medical records. (Id. at 56-57.) 

Moreover, Mr. Acornley testified that the analysis of the cases

that led to settlement decisions were based on the medical

reports and diagnostic tests of Defendants. (Id. at 56, 92.) 

The Court finds that Mr. Acornley's testimony satisfied

the reliance requirement under common law fraud. Whereas the

Receivable Finance court found that the plaintiff’s evidence was

"sparse and unspecific," Mr. Acornley’s testimony was detailed

and pointed to first hand knowledge that State Farm paid money to

resolve claims of patients treated by Defendants because State

Farm believed and relied on Defendants’ representations as

reflected in the medical files. See Receivable Finance, 501 F.3d

at 408. Mr. Acornley testified directly to this point and

indicated that Plaintiffs had, in fact, relied on the patients’

records in the evaluation and payment of the claims. In contrast

to the record of Receivable Finance, Plaintiffs provided evidence

about the specific customs and practices of State Farm. Mr.

Acornley’s evidence, as a corporate designee for State Farm, was

not speculative or without basis. Thus, State Farm showed actual

reliance.8
excluded is Receivable Finance distinguishable. (Defs.' Br.,

doc. no. 939 at 3-4.) The Court, as discussed infra, finds that

it did not err in admitting this exhibit. 

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3. RICO claim

As with the common law fraud argument, Defendants argue

that Plaintiffs failed to present sufficient evidence that they

relied on Defendants’ misrepresentation as it relates to

Plaintiffs’ RICO claim. (Defs.’ Br., doc. no. 828 at 18-24.)

Defendants also argue Plaintiffs failed to present evidence that

someone involved in the third party claims relied on Defendants’

bills and records with adjudicating those cases. Consequently,

Defendants argue they are entitled to judgment as a matter of law

on Plaintiffs’ RICO claim. 

The Supreme Court, in Bridge v. Phoenix Bond & Indem.

Co., held that reliance is not an element of a RICO claim

predicated on mail fraud. 553 U.S. 639, 128 S.Ct. 2131 (2008).

“[A] plaintiff asserting a RICO claim predicated on mail fraud

need not show, either as an element of its claim or as a

prerequisite to establishing proximate causation, that it relied

on the defendant’s alleged misrepresentations.” Id. at 2144. In

light of Bridge, Defendants concede that they are not entitled to

judgment as a matter of law on Plaintiffs’ RICO claims. However,

Defendants still argue that Plaintiffs failed “to present any

evidence of actual reliance by anyone . . . .” (Defs.’ Br., doc.

no. 828 at 22.) This argument is unavailing as to both first and
Robert Carter, a patient of Defendants, testified that 9

his medical records were used in claims against State Farm and at

trial. 

Defendant Dr. Forman testified that the medical records 10

were relied upon by insurance companies and attorneys.

Vivian Riggins, a patient of Defendants, identified 11

that she utilized her medical records in litigation or claims. 

 To the extent that Defendants argue that Plaintiffs 12

have not presented sufficient evidence to support a jury verdict

that Defendants engaged in violations of the RICO statute, the

Court finds that Plaintiffs provided sufficient evidence.

Plaintiffs presented evidence that Defendants associated as a

RICO enterprise comprised of various medical facilities and

practitioners engaging in a continuous pattern of racketeering

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third party claims. 

As to the first party claims, the Court finds that

Plaintiffs presented ample evidence at trial from which a

reasonable jury could find that Plaintiffs relied on Defendants’

misrepresentations including, but not limited to: (1) the

testimony of Bryan Acornley; (2) medical reports directed to

attorneys (Trial Ex. P-31); (3) the testimony of R. Carter9

(Trial Tr. at 4-5, Mar. 10, 2009); (4) the testimony of Dr.

Forman (Trial Tr. at 30-31, Mar. 5, 2009); and (5) the 10

testimony of V. Riggins (Trial Tr. at 41-42, Mar. 17, 2009). 11

Additionally, as to the third party claims, viewing the

evidence in the light most favorable to the Plaintiff, a

reasonable jury could find that various factfinders (including

judges, juries) and third parties (defense attorneys, defendants,

and insurance companies) also relied on these records.12
activity involving the submission of false and fraudulent

insurance claims. 

The Insurance Fraud Statute is penal in nature and most 13

of its provisions relate to criminal prosecutions. Subsection

(g), however, authorizes an insurer that is injured as a result

of a violation of the statute's criminal provisions to bring a

civil action to recover compensatory damages, investigative

costs, and attorneys' fees. Treble damages may also be awarded

where a defendant “has engaged in a pattern of violating this

section.” Under Pennsylvania law, non-penal provisions of a

penal statute are liberally construed. See Commonwealth by

Creamer v. Monumental Properties, Inc., 329 A.2d 812, 816 (Pa.

1974).

- 23 -

4. Statutory insurance fraud claim

Defendants argue, similar to their previous arguments,

that Plaintiffs did not produce sufficient evidence of actual

reliance on Defendants’ actions under 18 Pa. C.S. § 4117.

Pennsylvania’s Insurance Fraud Statute, 18 Pa. C.S. § 4117, makes

it a crime to, inter alia: (1) knowingly; (2) present any false,

incomplete or misleading information; (3) concerning any fact or

thing material to a claim; (4) to any insurer. 18 Pa. C.S. §

4117(a)(2).13

 Defendants admit that the text of the statute does not

identify reliance as an element of Pennsylvania’s Insurance Fraud

Statute. Although no Pennsylvania Court has so held, they argue

that by analogy to the Pennsylvania Consumer Protection Law, 73

Pa. C.S. § 201-9.2(a), the Pennsylvania Supreme Court would find

that a plaintiff is required to prove justifiable reliance as

part of his case in chief. See Hunt v. U.S. Tobacco Co., 538
- 24 -

F.3d 217, 222-223 (3d Cir. 2008) (holding that the Pennsylvania

Supreme Court would require a plaintiff to prove justifiable

reliance in alleging deceptive conduct under the Pennsylvania's

consumer protection law, the Unfair Trade Practices and Consumer

Protection Law); Yocca v. Pittsburgh Steelers Sports, Inc., 854

A.2d 425, 438 (Pa. 2004). 

The Court will rely on the plain meaning of the statute

and will decline to go where no Pennsylvania court has gone

before. See Commonwealth v. McClintic, 909 A.2d 1241, 1245 (Pa.

2006) (citing Sternlicht v. Sternlicht, 876 A.2d 904, 909 (Pa.

2005) and Ramich v. Workers' Comp. Appeal Bd. (Schatz Elec.

Inc.), 770 A.2d 318, 322 (Pa. 2001)); 1 Pa.C.S. § 1921(b) (“When

the words of a statute are clear and free from ambiguity, the

letter of it is not to be disregarded under the pretext of

pursuing its spirit.”)

 However, assuming arguendo reliance was required, the

Court finds, as discussed earlier, that a reasonable jury could

find that Plaintiffs presented sufficient evidence that State

Farm and other related parties relied upon the fraudulent

misrepresentations of Defendants and were injured as a

consequence. 

5. Causation 

Defendants argue that Plaintiffs’ evidence is legally

insufficient because it fails to show what portion of the
- 25 -

payments Plaintiffs made in first and third party cases was for

medical treatment that was unnecessary. Defendants argue that

Plaintiffs failed to present sufficient evidence demonstrating

how much of the medical treatment was unnecessary. They argue

that Plaintiffs may only recover payments made as a result of

Defendants’ alleged fraud. 

Defendants again rely on Receivable Finance for the

proposition that the jury’s damage award “was based on conjecture

and speculation as to what amount [Plaintiffs paid and] the

[D]efendants obtained through [Defendants’] fraud,” therefore it

“cannot be sustained.” Receivable Finance, 502 F.3d at 414.

Defendants argue at length that the jury awarded over four

million dollars in compensatory damages without Plaintiffs

presenting sufficient evidence relating to each Defendant’s

individual culpability. (Defs.’ Br., doc. no. 828 at 36-38.) 

In this case, Plaintiffs’ expert witness, Dr. Gregory

Mulford, testified that “[i]t was my opinion. . . that there is a

disturbingly clear pattern of excessive inappropriate and

medically unnecessary diagnostic testing, treatment, services and

prescriptions that were consistently done in the charts that I

reviewed.” (Trial Tr. at 94, Mar. 13, 2009.) He also testified

to having reviewed over two hundred files and identified various

fraudulent patterns at Defendants’ medical centers including

provision of x-rays, CAT scans, MRIs, EMGs, prescription
To the extent that Defendants argue that Plaintiffs 14

failed to prove proximate cause between its third party damages

claims and Defendants’ activities, the Court finds that

Plaintiffs were the target of the scheme thereby creating a

direct relation between the injuries asserted and the injurious

- 26 -

medication, durable medical equipment and physical therapy in

“the overwhelming majority” of cases. (Id. at 95.) 

At trial, Dr. Mulford was shown several of Defendants’

office files and testified to the inappropriate patterns of

treatment, prescriptions and testing. (Id. at 100-102, 105,

119.) For instance, Dr. Mulford examined the claim file of

Kenneth Fairfax and called the pattern of treatment both

“consistent” with the patterns of treatment throughout the claim

files and “redundant” after reviewing records of Mr. Fairfax for

several different accidents. (Id. at 122-27.) In fact, Dr.

Mulford identified the records for Mr. Fairfax’s three car

accidents as a “good illustration” of the fraudulent patterns at

issue. (Id. at 127.) Dr. Mulford testified that the repeated

medical procedures were unjustified in Mr. Fairfax’s case and Mr.

Fairfax’s case was emblematic of Defendants’ consistent pattern

of a deviation from the accepted standard of care in the medical

practice. (Id. at 128-29.) Finally, Dr. Mulford testified that,

only after reviewing the entirety of the claims files, was he

able to identify that there was a systematic standard practice to

improperly treat patients at Defendants’ medical centers. (Id.

at 118, 129.) 

14
conduct. “‘[P]roximate cause exists when ‘the RICO plaintiff's

interest are the direct target of the alleged scheme. . . .” 

State Farm Mut. Auto. Ins. Co. v. Midtown Med. Ctr. Inc., No. 02-

2789, 2007 WL 3224542 at *4 (E.D. Pa. Oct. 23, 2007) (citing

Northwestern Human Servs., Inc. v. Panaccio, 2004 U.S. Dist.

LEXIS 19147 at *15-16, *18-19 (E.D. Pa. 2004)). As noted in

Hecht, a RICO act proximately causes injury if it was a

“substantial factor in the sequence of responsible causation, and

if the injury is reasonably foreseeable or anticipated as a

natural consequence.” Hecht v. Commerce Clearing House, Inc.,

897 F.2d 21, 23 (2d Cir. 1990) (citing O'Malley v. O'Neill, 887

F.2d 1557, 1561 (11th Cir. 1989)). Thus, Plaintiffs adequately

presented proximate cause and Defendants’ assertion fails.

- 27 -

Reviewing the record in a light most favorable to

Plaintiffs, the prevailing party at trial, the Court cannot

conclude that it is “critically deficient of that minimum

quantity of evidence from which a jury might reasonable afford

relief.” Trabal, 269 F.3d at 249. 

6. Defendants’ counterclaim 

Defendants claim they are entitled to judgment as a

matter of law on their counterclaim because Plaintiffs failed to

present legally sufficient evidence that any of the treatment

provided to the counterclaim patients was medically unnecessary.

Defendants claim they presented evidence about necessary and

reasonable medical treatment and services they provided to

patients and seek due payment from State Farm under 75 Pa. C.S. §

1716. (Defs.’ Br., doc. no. 828 at 40-41.) In support,

Defendants cite Jeffrey Lincow’s testimony regarding the

counterclaim patient medical files, as well as the money owed by
- 28 -

State Farm for the services rendered. Defendants also claim they

provided expert testimony to prove that the treatment of these

patients was reasonable and necessary. (Id. at 42-45.) 

Plaintiffs counter that the jury had before it legally

sufficient evidence to evaluate Defendants’ counterclaim. 

Specifically, Plaintiffs point to: (1) the testimony of patients

that received osteopathic manipulations not rendered by

chiropractors; (2) examinations that were identified and billed

for in medical records, but not rendered; and (3) medical records

evidencing chiropractic treatment was billed for but not

rendered. (Pls.’ Br, doc. no. 919 at 43-46.) Moreover,

Plaintiffs point to the testimony of Drs. Amy Landsman and Denise

Shusterman who both testified that changes to their medical

reports of patients were not authorized. (See Trial Tr. at 96,

99-102, Mar. 9, 2009; Trial Tr. at 191-95,199, 205, Mar. 12,

2009.)

Plaintiffs argue, and the Court agrees, that the jury

was in a position to judge the credibility of Jeffrey Lincow as

well as the credibility and accuracy of the medical records upon

which his testimony was premised. The Court will “not weigh

evidence, determine the credibility of witnesses or substitute

its version of the facts for that of the jury[.]” Parkway

Garage, 5 F.3d at 691. The Court cannot find that the record is

“critically deficient of that minimum quantity of evidence from
Fed. R. Civ. P. 61, as amended in 2007, provides as 15

follows: Rule 61. Harmless Error 

Unless justice requires otherwise, no error in admitting

or excluding evidence - or any other error by the court or

a party - is ground for granting a new trial, for setting

aside a verdict, or for vacating, modifying, or otherwise

disturbing a judgment or order. At every stage of the

proceeding, the court must disregard errors and defects

that do not affect any party's substantial rights. 

Fed. R. Civ. P. 61; cf. Fed. R. Evid. 103(a) (“Error may not be

predicated upon a ruling which admits or excludes evidence unless

a substantial right of the party is affected.”). 

- 29 -

which a jury might reasonably afford relief.” Trabal, 269 F.3d

at 249. 

C. Alleged trial errors

Defendants claim they are entitled to a new trial based

on several alleged errors committed by the Court. 

1. Legal Standard 

Whether any error committed by the court was harmless

is governed by Federal Rule of Civil Procedure 61. Trial 15

errors are considered harmless when “it is highly probable that

the error did not affect the outcome of the case.” McQueeney v.

Wilmington Trust Co., 779 F.2d 916, 917 (3d Cir. 1985). “Unless

a substantial right of the party is affected,” a

non-constitutional error in a civil case is harmless. Linkstrom

v. Golden T. Farms, 883 F.2d 269, 269 (3d Cir. 1989). “Absent a

showing of substantial injustice or prejudicial error, a new

trial is not warranted and it is the court's duty to respect a
To the extent that Defendants argue Plaintiffs failed 16

to lay a proper foundation for the introduction of the summary

exhibit, P-77, Defendants have waived this argument by failing to

object on this basis at trial. A thorough examination of the

record indicates that, at trial, Defendants did not object on the

basis of proper foundation of the business records as potential

hearsay. (Trial Tr. at 24-54, Mar. 16, 2009.) Defense counsel’s

objection to the exhibit, and Mr. Acornley’s testimony that

relied on the exhibit, was not lack of foundation, but was a

prejudice argument based on the claim that he did not have the

opportunity to review the claim files to impeach Mr. Acornley’s

testimony. (Id. at 44:13-18.) Seemingly, Defendants now

reference their hearsay objection to Exhibit P-77 in their pretrial disclosures. (See Docs. no. 512, 523, Defendants’

Objections to Plaintiffs’ Amended Rule 26(a)(3).) However,

Defendants failed to raise a contemporaneous hearsay objection

when Exhibit P-77 was introduced at trial. Fed. R. Civ. P.

103(a)(1). 

 Defendants failed to object to this piece of evidence

on the basis of improper foundation at trial and, thus, this

objection is waived for purposes of post-trial review. See Grace

v. Mauser-Werke Gmbh, 700 F. Supp. 1383, 1388 (E.D. Pa. 1988)

(holding that because plaintiff's counsel did not object to

specific questions asked of expert at trial, objections to those

questions are waived); see also Gov't of the Virgin Islands v.

Archibald, 987 F.2d 180, 184 (3d Cir. 1993) (“If a party fails to

object in a timely fashion, the objection is waived and we will

review the admission of evidence only for plain error.”). 

- 30 -

plausible jury verdict.” Montgomery County v. MicroVote Corp.,

152 F. Supp. 2d 784, 795 (E.D. Pa. 2001).

 The Court will consider each of Defendants’ arguments

in turn. 

2. Admission of Exhibit P-7716

a. Objection at trial 
- 31 -

Defendants claim that they were prejudiced when the

Court admitted Exhibit P-77, an exhibit summarizing claim

payments made in third party cases and relied upon by Plaintiffs’

witness, Mr. Acornley. (Defs.’ Br., doc. no. 828 at 46-57.) 

Defendants objected at trial that Plaintiffs had not provided

Defendants with copies of the actual claim files to which the

summary related. (See Trial Tr. at 24-54, Mar. 16, 2009.) 

Lengthy argument ensued wherein Plaintiffs responded that these

documents were disclosed to Defendants more than two years before

trial, the documents were housed at the law offices of

Plaintiffs’ counsel and were available to be reviewed by Defense

counsel. (Id.; see also Pls.’ Br., doc. no. 919 at 47 (“the

first disclosure of Plaintiffs, sent to opposing parties on July

30, 2006, identified that ‘[r]ecords are stored at the law

offices of Goldberg, Miller & Rubin, P.C. and may be reviewed by

counsel or will be forwarded to counsel upon request.’”).) 

Plaintiffs also aver that they disclosed the

description of a corporate designee who was expected to testify

at trial in March 2007 and disclosed versions of the third party

cases summaries in May of 2007. Finally, in the Plaintiffs’

second amended Rule 26(a)(3) disclosure, Plaintiffs disclosed

Exhibit P-77 and labeled it as “Exhibit B to Plaintiffs’ Second

Supplemental Responses to Defendants’ Interrogatories - 3 Party rd

Payments/Damages.” (See doc. no. 534.) Plaintiffs argue that
- 32 -

defense counsel failed to review the claim files which had been

made available for several years and only unreasonably requested

production of these files during trial. 

At trial, the Court overruled Defendants’ objection and

admitted Exhibit P-77. (Trial Tr. at 54-55, Mar. 16, 2009.) The

Court held, “[t]he objection will be overruled on the following

basis. . . . It does appear that the documents have been referred

to at the very least, if not specifically identified by the

plaintiff[s], and that the defendant[s] did not request specific

access either by way of Rule 34 or by way of the mechanism which

appears to be available under Rule 26[]. So, that disclosure

seems to have been satisfied in this case.” (Id. at 53-54.) 

b. Rule 1006 

 Fed. R. Evid. 1006 provides: 

The contents of voluminous writings, recordings, or

photographs which cannot conveniently be examined in court

may be presented in the form of a chart, summary, or

calculation. The originals, or duplicates, shall be made

available for examination or copying, or both, by other

parties at reasonable time and place. The court may order

that they be produced in court.

“Courts have cautioned that Rule 1006 is not a

back-door vehicle for the introduction of evidence which is

otherwise inadmissible, and that the voluminous evidence that is

the subject of the summary must be independently admissible.” 

Eichorn v. AT&T Corp., 484 F.3d 644, 650 (3d Cir. 2007); see also

United States v. Pelullo, 964 F.2d 193, 204-05 (3d Cir. 1992).
- 33 -

c. Analysis 

Rule 1006 provides two scenarios for the production of

documents supporting the information contained in the summary

chart by the party seeking to rely upon them at trial. Before

trial, at a reasonable time and place or, at trial, the

production may be ordered by the court. The two scenarios are

not mutually exclusive. Under either scenario, Defendants’

argument fails. One, the supporting documents were made

available prior to trial; two, Defendants failed to specifically

request production of the documents at trial. 

1. Documents were made available pre-trial

 The Court finds that, at least two years before the

trial, Plaintiffs advised Defendants that the documents were

available for review at Plaintiffs’ counsel’s law office, or

would be forwarded upon request. This degree of availability

certainly meets the requirements of a reasonable time and place. 

See, e.g., United States v. Jamieson, 427 F.3d 394, 410-11 (6th

Cir. 2005) (notice of the last of the record summaries, over one

month before trial began, was timely); Fidelity Nat’l Title Ins.

Co. of N.Y. v. Intercounty Nat’l Title Ins. Co., 412 F.3d 745,

753 (7th Cir. 2005) (thirty days before trial deemed “reasonable 

time” when the defendant’s law firm could have “easily spot

checked the summaries for accuracy” but failed to do so). 

 During trial, defense counsel, Mr. Todd, admitted, “I
If the documents were not produced for Defendants, the 17

appropriate course of action would have been a request for a

motion to compel the production of documents and, based on the

extensive docket of this case, both parties made use of this

procedure frequently. Defendants' argument does not suggest that

the admission of the testimony was improper because the

Plaintiffs’ failed to produce documentation after being compelled

by the Court to do so. See Midtown Med., 2007 WL 3224542 at *4

(finding Defendants should have moved to compel documents that

they argued were not made available under Rule 1006). 

Unlike in Air Safety, a case cited by Defendants, in 18

this case State Farm identified the source of the summary, and

its intent to use this exhibit, several months before trial. Air

Safety, Inc. v. Roman Catholic Archbishop of Boston, 94 F.3d 1, 8

(1st Cir. 1996) (internal quotations omitted) (in Massachusetts

trial, records were not “made available” under Rule 1006 when

they were held at party’s office in Illinois and were not

identified as the source of the summaries until trial); (see also

Plaintiff’s pretrial memorandum, doc. no. 472 at Ex. A List of

Trial exhibits; Plaintiffs’ Second Amended Rule 26(a)(3)

Disclosure, doc. no. 534 at Ex. A. List of Trial exhibits). 

- 34 -

acknowledge, Your Honor, that they identified third party claim

files in discovery. I acknowledge that I got 40 of them . . . .

I took the 40 in essence as a sampling . . . . because I couldn’t

look at 600 or whatever the number [of third party claim files]

was. . . .” (Trial Tr. at 42-43, Mar. 16, 2009.) Furthermore, 17

Plaintiffs disclosed Exhibit P-77, and their intention to use a

summary chart of the patient files, in pre-trial disclosures, on

at least two occasions. (See docs. no. 534, 472.) Under these

circumstances, Plaintiffs satisfied their duty under Rule 1006

to make available the documents supplying the information

contained in the summary chart before trial. 

18

2. Defendants failed to request production of

the documents at trial
Despite Defendants’ lengthy argument dedicated to this 19

objection and Defendants’ conclusion that the Court “refused to

order” the documents be brought to court, at no point do

Defendants identify where and when this request to produce was

made and how the Court refused such a specific request from

Defendants. 

- 35 -

Rule 1006 also provides “[t]he court may order that

[the documents] be produced in court.” Fed. R. Evid. 1006; see

also United States v. Strissel, 920 F.2d 1162, 1163 (4th Cir. 

1990) (last sentence of Rule 1006 indicates that the trial judge

has discretion to order underlying documentation to be produced

in court, but the rule does not require that the underlying

evidence be introduced into evidence in all cases). Thus, if

deemed necessary at trial, the court may require the documents to

be produced in court. 

Although there was considerable discussion as to

whether the documents had been made available before trial and

whether they should be brought to Court, at no point during this

discussion did Defendants specifically request the Court to order

that the documents be produced in court. (Trial Tr. at 25-55,

Mar. 16, 2009.) Accordingly, the Court did not err in failing 19

to order the Plaintiffs to produce the documents in court. 

3. No unfair prejudice to Defendants

Even, assuming arguendo, the Court erred by not

ordering Plaintiffs to produce the claim files at trial,

Defendants did not suffer any unfair prejudice. “The purpose of
Plaintiffs contend that defense counsel had access to 20

approximately 41 of these claim files. (Pls.’ Br., doc. no. 919

at 52.) Defendants aver, by way of declaration attached to their

rebuttal brief, that only 8 of the over 40 claims produced by

Defendants were among the claims referenced in Exhibit P-77.

(Defs.’ Br, doc. no. 939, Decl. of K. Albert at ¶ 19.) 

Defendants also aver that, after inspection, none of the eight

claims produced by Plaintiffs, and referenced in Exhibit P-77,

contains any information about payments made in any of the other

third party cases identified in Exhibit P-77. 

- 36 -

[Rule 1006's requirement that a summary is made available to the

opposing party for examination] is to provide the opposing party

who desires to attack the authenticity of accuracy of the summary

with the opportunity to prepare for cross-examination or offer

rebuttal evidence.” Becker v. Arco Chemical Co, 15 F. Supp. 2d

600, 617 (E.D. Pa. 1998), rev'd in part on other grounds, 207

F.3d 176 (3d Cir. 2000). 

In this case, defense counsel was afforded an

opportunity at effective cross-examination on the basis of

information that was available to Defendants at trial. Defense

counsel admits he had 40 of the 141 claim files identified in P77, but he did not question Mr. Acornley or Mr. Hopkins about 20

any of the specific claims during cross-examination. Thus, the

Court finds that any error in admitting the P-77 summary exhibit

did not prejudice Defendants’ cross-examination or affect their

substantial rights. 

3. Jury Instructions

a. Legal Standard
- 37 -

“A party is entitled to a jury instruction that

accurately and fairly sets forth the current status of the law.” 

Douglas v. Owens, 50 F.3d 1226, 1233 (3d Cir. 1995); see also

McPhee v. Reichel, 461 F.2d 947, 950 (3d Cir. 1972) (“It is the

responsibility of the trial judge to provide the jury with a

clear and accurate statement of the law . . .”); Resolution Trust

Corp. v. Eason, 17 F.3d 1126, 1132 (8th Cir. 1994) (as long as

the entire charge fairly and adequately contains law applicable

to the case, judgment will not be disturbed on appeal); Harrison

v. Otis Elevator Co., 935 F.2d 714, 717 (5th Cir. 1991) (trial

court has broad discretion to compose jury instructions as long

as they are fundamentally accurate and not misleading). 

Additionally, “[n]o litigant has the right to a jury

instruction of its choice, or precisely in the manner and words

of its own preference.” Douglas, 50 F.3d at 1233; see also

Heller Int'l Corp. v. Sharp, 974 F.2d 850, 860 (7th Cir. 1992)

(district court has substantial discretion with respect to

specific wording of jury instructions and need not give proposed

instruction if essential points are covered by those that are

given); Anderson v. Branen, 17 F.3d 552, 559-60 (2d Cir. 1994)

(litigant is entitled to instruction that correctly reflects

applicable law and sufficiently covers essential issues, but

party is not entitled to prescribe exact language of that

charge).
- 38 -

b. RICO conspiracy jury instruction

The Court instructed the jury on § 1962(d) verbatim

from the Fifth Circuit’s Pattern Jury Instructions. The jury

instruction on this issue, inter alia, reads: 

88. To establish a violation of Section 1962(d), State

Farm must prove by a preponderance of the evidence: 

1. That two or more persons in some way or manner

came to a mutual understanding to attempt to accomplish

a common and unlawful plan, that is that while being

employed by or associated with an enterprise, they

engaged in activities which affected interstate or

foreign commerce, or conducted the affairs of the alleged

enterprise through a pattern of racketeering activity, in

the manner alleged; and 

2. That the defendant knowingly and willfully

became a member of a conspiracy by objectively

indicating, through his words or actions, his agreement

to conduct or participate, directly or indirectly, in the

conduct of the affairs of an enterprise through a pattern

of racketeering activity; and

3. That at least one of the conspirators committed

at least one overt act during the existence of a

conspiracy in an effort to accomplish some object or

purpose of the conspiracy.

See Fifth Circuit Pattern Jury Instructions (Civil Cases),

Instruction No. 8.1 (2006). 

Defendants argue that the instruction on RICO

conspiracy was inadequate for two reasons. One, the Court failed

to instruct the jury on the option of finding multiple

conspiracies and that, therefore, some or all of Defendants may

not be liable for RICO conspiracy. Two, the Court failed to

instruct the jury that employees of a corporate entity who are

acting within the scope of their employment cannot conspire with
- 39 -

each other or the corporate entity. 

To that end, Defendants proposed the following jury

instruction:

A conspiracy cannot lie against a corporate entity for

the concerted action of its employees, officers or

directors who allegedly violate RICO on its behalf.

Greenberg v. Tomlin, 816 F.Supp. 1039 (E.D. Pa. 1993).

Employees of a corporation who are acting in the course

and scope of their employment, cannot conspire with

each other. Pioneer Contracting, Inc. v. Eastern

Exterior Wall Systems, Inc., 2005 U.S. Dist. Lexis 5197

(E.D. Pa. 2005). If you find that defendants at all

times relevant were acting within the course and scope

of their employment for 7622 Medical Center, P.C., you

must find in their favor on the conspiracy claim.

(Defs.’ Proposed Jury Instructions, doc. no. 458 at unnumbered

page 6.) 

c. Analysis 

1. The multiple conspiracy charge

Defendants were not entitled to a separate instruction

on multiple conspiracies. 

The Third Circuit has reiterated “[a] RICO enterprise

may engage in a pattern of racketeering activity that consists of

separate and distinct conspiracies.” U.S. v. Irizarry, 341 F.3d

273, 292 n.7 (3d Cir. 2003) (citing United States v. Pungitore,

910 F.2d 1084, 1099-1101, 1134-35 (3d Cir. 1990)); see also

United States v. Carrozza, 4 F.3d 70, 79 (1st Cir. 1993) (stating

that a series of agreements that under pre-RICO law would

constitute multiple conspiracies could under RICO be tried as a

single enterprise conspiracy if the defendants have agreed to
While these are RICO criminal cases, the applicable law 21

of conspiracy is equally applicable to civil cases. Moreover,

the only cases cited by the parties, which are specifically

relevant to RICO multiple conspiracies, are RICO criminal cases. 

- 40 -

commit a substantive RICO offense); United States v. Ruggiero,

726 F.2d 913, 923 (2d Cir. 1984) (holding that § 1962(d) does not

violate the principle prohibiting conviction of multiple

conspiracies under an indictment charging a single conspiracy);

United States v. Friedman, 854 F.2d 535, 562-63 (2d Cir. 1988)

(“So long as the alleged RICO co-conspirators have agreed to

participate in the affairs of the same enterprise, the mere fact

that they do not conspire directly with each other does not

convert the single agreement to conduct the affairs of an

enterprise through a pattern of racketeering activity into

multiple conspiracies.”); United States v. Bibbero, 749 F.2d 581,

587 (9th Cir. 1984) (a single conspiracy may involve several

subagreements or subgroups of conspirators).21

Here, Defendants argue that there was evidence of at

least two separate conspiracies – one among Defendants related to

first party claims and one among Defendants and attorneys related

to third party claims. Defendants contend the Court erred in

refusing to provide the requested instruction because, with

respect to the conspiracy involving first party claims, only

Defendants were involved in that alleged conspiracy and the jury

may have been required as a matter of law to find some or all of
Defendants cite Kemp, where the Third Circuit affirmed 22

the conviction of a Philadelphia city government defendant and

others, on multiple counts including conspiracy to commit honest

services fraud. United States v. Kemp, 500 F.3d 257, 287 (3d

Cir. 2007). Kemp is not on point. In Kemp the issue was whether

the allegations in the indictment (single conspiracy) and the

proof at trial (multiple conspiracy) gave rise to a variance, and

if so, whether the variance prejudiced Defendants’ substantial

rights. 

Here, by contrast, the issue is whether the jury charge

on a RICO conspiracy claim accurately and fairly stated the

applicable principles of law. 

- 41 -

Defendants not guilty of RICO conspiracy.22

The objection has no merit. Even if the jury concluded

that there were separate and distinct conspiracies between

Defendants and other co-conspirators, this did not preclude the

jury from finding, under the jury charge, that Defendants engaged

in a pattern of racketeering activity as a single enterprise

conspiracy. Irizarry, 341 F.3d at 292 n.7. 

2. Intracorporate conspiracy charge

Defendants were not entitled to a separate instruction

on intracorporate conspiracy. 

Defendants argue that the jury could find that all

Defendants were employees of Dr. Lincow, and therefore, some or

all of Defendants could not have been found guilty of RICO

conspiracy since employees of the same entity acting within the

scope of their employment cannot conspire with each other or the

corporate entity. 

First, it is not clear that the proposed instruction
See also Mauriber v. Shearson/Am. Express, Inc., 567 F. 23

Supp. 1231, 1241 (S.D.N.Y. 1983) (stating that where “action by

an incorporated collection of individuals creates the ‘group

danger’ at which conspiracy liability is aimed, . . . the view of

the corporation as a single legal actor becomes a fiction without

a purpose” (citing Dussouy v. Gulf Coast Inv. Corp., 660 F.2d

594, 603 (5th Cir. 1981))); Fabrico Mfg. Corp. v. Wilson Sporting

Goods, Co., 1985 WL 1474, at *2 (N.D. Ill. May 22, 1985).

- 42 -

even expresses a correct point of law. The Third Circuit has

never decided whether the intracorporate conspiracy doctrine bars

§ 1962(d) claims. The five circuits that have addressed the

issue are split on the answer. The Seventh, Ninth and Eleventh

Circuits have held that the intracorporate conspiracy doctrine

does not bar § 1962(d) claims. See Ashland Oil, Inc. v. Arnett,

875 F.2d 1271, 1281 (7th Cir. 1989) (stating that in contrast to

the goals of the antitrust laws, “intracorporate conspiracies do

threaten RICO's goals of preventing the infiltration of

legitimate businesses by racketeers”); Webster v. Omnitrition

Int’l, Inc., 79 F.3d 776, 787 (9th Cir. 1996); Kirwin v. Price

Communications Corp., 391 F.3d 1323 (11th Cir. 2004)

(“Corporations and their agents are distinct entities and, thus,

agents may be held liable for their own conspiratorial

actions.”). The Fourth and Eighth Circuits have reached the 23

opposite conclusion. See Detrick v. Panalpina, Inc., 108 F.3d

529, 544 (4th Cir. 1997); Fogie v. THORN Americas, Inc., 190 F.3d

889 (8th Cir. 1999).

Second, Defendants point to Pioneer and Greenberg, two
Defendants do not challenge Plaintiffs’ assertion that 24

(1) Dr. Lincow was an employee of Medical Management Consulting,

Inc.; (2) Drs. Lawrence Forman and Stephen Sacks were not

employees of any of the Defendant corporations, but rather

independent contractors; (3) Stephen Hirsh was an employee of

- 43 -

district court opinions in support of their argument. See

Pioneer Contracting, Inc. v. Eastern Exterior Wall Sys., Inc.,

No. 04-1437, 2005 WL 747221, at *1 (E.D. Pa. Mar. 29, 2005)

(noting that a “conspiracy cannot lie against the corporation for

the actions of its employees who violate RICO on its behalf.

Moreover, employees of a corporation, while acting in the course

and scope of their employment, cannot conspire with each other”);

Greenberg v. Tomlin, 816 F.Supp. 1039, 1050 (E.D. Pa. 1993).

These cases are distinguishable. Pioneer involved an

alleged vertical conspiracy between a corporate entity and two of

its employees. Pioneer, 2005 WL 747221, at *9. Greenberg,

likewise, involved a corporate entity who was charged with

conspiring with its own officers. 816 F. Supp. at 1045, 1050

(“both the pleadings and the record reveal that the foundation

for the Plaintiffs’ Section 1962(d) claims is the alleged

conspiracy between [individual Defendants] and the corporate

defendant”). Here, on the other hand, the evidence at trial

showed that the conspiracy was not a straight vertical conspiracy

between a single corporate entity and its employees. Rather, the

alleged conspiracy is one between several distinct corporate

entities and their employees.24
Defendant, Lolo, Inc; and (4) Drs. Richard Mintz, Stephen

Hennessey and Richard Butow were only employees of 7622 Medical

Center, P.C. (Compare Pls. Br, doc. no. 919 at 56-57, 59, 62;

with Defs.’ Br., docs. no. 828 at 64-65; doc. no. 939 at 7-8.) 

In short, Defendants have failed to point to evidence of record

to show that the alleged conspiracies were vertical, i.e.

involving a single corporation and its employees.

- 44 -

Moreover, unlike Pioneer and Greenberg, there was

substantial evidence of Defendants acting in pursuit of their own

interests and not for the benefit of the corporation. See e.g.,

Castle v. Crouse, No. 03-5252, 2004 WL 257389, at *6 (E.D. Pa.

Feb. 11, 2004) (noting an exception to the rule against

intra-corporate conspiracies exists where the employees act in

pursuit of their own interests and not for the benefit of the

corporation). These actions include, but are not limited to:

changing reports and records of other providers without their

knowledge or consent; prescribing pharmaceuticals pursuant to an

illegal kickback agreement; rendering of inaccurate medical

reports listing improper diagnoses and the prescription of

unnecessary testing, treatment, medications and equipments. 

These types of actions, evidence to all of which was presented at

trial, demonstrate Defendants were acting in pursuit of their own

financial interests. Thus, Pioneer and Greenberg are further

distinguishable from the instant case.

Under these circumstances, Defendants have not

established their proposed instruction expresses a correct point
- 45 -

of law or that the facts of this case warrant such an

instruction. 

d. Conclusion

 The jury charge as given, taken verbatim from the

Fifth Circuit Pattern Jury Instructions, reflects applicable law

and sufficiently covers the essential issues including: (1)

mutual understanding of Defendants to accomplish a common and

unlawful plan; (2) Defendants knowingly and wilfully became

members of the conspiracy by objectively indicating agreement to

participate; and (3) that at least one of the conspirators

committed at least one overt act during the conspiracy. 

Defendants have failed to demonstrate that their proposed

additional instruction as to the issues of multiple conspiracies

or intracorporate conspiracy is required under existing Third

Circuit law and the facts of this case. Defendants have not met

their burden of showing that the failure to give their proposed

instruction warrants a new trial. 

4. Cumulative effect of errors

Defendants argue that they are entitled to a new trial

because of the cumulative effect of the Court’s errors whereby

they incorporate their previous arguments regarding the admission

of Exhibit P-77 and Defendants’ proposed RICO conspiracy jury

instruction. In addition, Defendants also maintain that the

Court erred when it: (1) allowed the jury to view the videotaped
- 46 -

deposition of Dr. Lincow; (2) refused to allow them to call Mr.

Gene Veno as a witness; (3) refused to admit Ms. Dora DixonJefferson’s deposition testimony; and (4) refused to permit

defense counsel to effectively impeach Mr. Steven Hirsh. Each

objection will be analyzed separately. 

a. Videotaped deposition of Dr. Lincow

In addition to their previous argument, Defendants

maintain that the Court erred in permitting Plaintiffs to use

portions of the videotaped deposition of Dr. Lincow. (Defs.’ Br.

at 66.) Defendants believe that Plaintiffs should not have been

permitted to show the videotaped deposition of Dr. Lincow to the

jury, where he became upset and unruly, when he was otherwise

available to testify. Defendants claim that Plaintiffs only

purpose in using the videotape was to inflame the jury with

images of Dr. Lincow acting inappropriately where such images had

no proper evidentiary value.

Dr. Lincow’s deposition was properly admitted as an

admission by party opponent. Fed. R. Evid. 801(d)(2). The Court

agrees with Plaintiffs and finds that the videotaped deposition

of Dr. Lincow was also properly admitted under Fed. R. Civ. P.

32(a)(3) (depositions of a party may be used for any purpose). 

Defendants had notice that the deposition was being videotaped

and could be used at trial. Dr. Lincow had served as an expert

witness at several trials and knew the purpose of a deposition. 
- 47 -

That Dr. Lincow may have come to regret his boorish behavior at

the deposition is not grounds for excluding it. In the final

analysis, a deposition is a court proceeding and a witness and

counsel are responsible for how they behave at depositions. See

GMAC Bank v. HTFC Corp., 248 F.R.D. 182 (E.D. Pa. 2008) (Robreno,

J.) (sanctioning a party and his counsel for conduct at a

deposition). The Court finds that it did not err in permitting

Plaintiffs to play portions of Dr. Lincow’s videotaped deposition

at trial. 

b. Gene Veno’s testimony 

Defendants claim the Court erred in refusing to allow

Defendants to call Mr. Gene Veno as a witness. Defendants claim

that Mr. Veno is the Executive Vice President of the Pennsylvania

Chiropractic Association and would have testified that, upon

receiving official notice from the Pennsylvania Insurance

Department, the Chiropractic Association informed its members

that they were authorized to delegate adjunctive procedures to

unlicensed staff members under the Pennsylvania Chiropractice

Practice Act and that it was common practice in the chiropractic

community to do so. Defendants believe Mr. Veno’s testimony was

highly probative on the issue of Defendants’ lack of intent to

commit fraud. 

At trial, Plaintiffs moved to preclude Mr. Veno’s

testimony and the Court granted Plaintiffs’ motion. (Doc. no.
Whether Mr. Veno was qualified to give testimony about 25

the state of the law in Pennsylvania, or his opinion of the law

as applied to chiropractors, is not dispositive. 

- 48 -

545.) Mr. Veno’s proposed testimony was that of an expert

witness. However, Mr. Veno had not been identified as an expert

witness and, therefore, had not complied with Fed R. Civ. P.

26(a)(2). 

25

 In any event, as contemplated by the Court’s order,

the parties later stipulated to a letter between Mr. Veno and the

insurance department. Defense counsel used this document at

trial, which essentially presented Mr. Veno’s opinion to the

jury. The Court did not err when it precluded Mr. Veno’s

testimony.

c. Dora Dixon-Jefferson’s testimony

Defendants claim that the Court erred when it refused

to admit Ms. Dora Dixon-Jefferson’s deposition testimony. 

Defendants claim that Ms. Dixon-Jefferson would have testified

that, as a result of the diagnostic services she received from

Defendants, it was discovered that she had lung cancer. 

Defendants claim that her testimony was important to

contradicting Plaintiffs’ argument that Defendants’ medical

treatments had no medical purpose. Plaintiffs moved to preclude

Ms. Dixon-Jefferson’s testimony and the Court later entered an

order denying State Farm’s motion as moot because she was not

called as a witness at trial (doc. no. 586). 
Mr. Hirsh was a licensed pharmacist who worked at 26

Ogontz Pharmacy, located in Dr. Lincow’s 7622 Professional

Building. Ogontz Pharmacy filled medical prescriptions for

patients of 7622 Professional Building and 1900 SG Associates. 

Mr. Hirsh is also a Defendant in this case. He did not defend

himself in this trial and a default judgment was entered against

him. 

Mr. Hirsh also pleaded guilty to wire fraud and aiding

and abetting, stemming from a scheme he devised to defraud

third-party payors and claims processors in the amount of

approximately $750,000 by falsely billing those organizations for

reimbursements for prescription medications that were never

dispensed to patients, in violation of 18 U.S.C. § 1343. See

United States v. Hirsh, No. 03-58. Mr. Hirsh served a one-year

- 49 -

Defendants now claim that Ms. Dixon-Jefferson was not

called as a witness because she was suffering medical

complications as a result of her cancer and “counsel for

Defendants requested that Ms. Dixon-Jefferson’s oral deposition

be introduced into evidence.” (Defs.’ Mot., doc. no. 613 at ¶

83.) Defendants then claim that the Court refused to admit her

deposition, “apparently because the Court believed its

prejudicial impact outweighed its probative value.” (Id. at ¶

83.) However, Defendants point to nothing in the record to

support their claim that they requested the introduction of her

oral deposition or that such a request was denied. Accordingly,

the Court relies on its March 23, 2009, order denying Plaintiffs’

motion as moot because Defendants did not call Ms. DixonJefferson as a witness. The Court finds no error in precluding

Ms. Dixon-Jefferson’s testimony. 

d. Steven Hirsch’s cross-examination26
prison term for this offense. 

- 50 -

Plaintiffs called Mr. Steven Hirsch (“Hirsch”) as a

witness during trial. Hirsh testified that Dr. Mintz prescribed

medication for patients treated by other Defendants. (Trial Tr.

at 8, 10, 25, Mar. 13, 2009.) Hirsh identified three

prescriptions bearing the type-written name of the 7622 Medical

Center and Dr. Mintz at the top. (Id. at 9-16.) Hirsch

testified that the initialed signature at the bottom of the three

prescriptions were not that of Dr. Mintz and must have been

written by someone else. 

Defendants sought to impeach Hirsch by calling into

question his identification of the prescriptions and negate

Plaintiffs’ contentions that Dr. Mintz was writing prescriptions

for patients seen by other doctors at 7622 Medical Center. 

Defense counsel attempted to impeach Hirsch by using a blank

prescription pad that was allegedly also used at the 7622 Medical

Center. (Defs.’ Mot., doc. no. 613 at ¶¶ 91-94.) The Court

refused to allow defense counsel to cross-examine Hirsh using the

blank prescription. (Id. at ¶¶ 95-96.) At the time, defense

counsel agreed with the Court that this line of questioning could

be reserved for his direct examination of Dr. Mintz. (Defs.’

Mot., doc. no. 613 at ¶ 96.) Defense counsel admits he never
Neither party references where in the transcript the 27

Court refused to allow defense counsel to use the blank

prescription or where defense counsel agreed to reserve the line

of questioning for his direct examination. Indeed, the trial

transcript contains no such objection or sidebar discussion.

(Trial Tr. at 1-48, Mar. 13, 2009.) However, both parties agree

the Court agreed to revisit the issue during direct examination

and defense counsel failed to raise this issue during Defendants’

case-in-chief. (Defs.’ Mot., doc. no. 613 at ¶¶ 95-96; Pls.’

Br., doc. no. 919 at 67-68.)

- 51 -

raised this issue again during Defendants’ case-in-chief.27

 Having failed to raise the issue with Dr. Mintz in

direct examination, Defendants have waived their objection. Even

if it was not waived, in the context of a four week trial and

rulings on numerous motions, the exclusion of this testimony did

not affect Defendants’ substantial rights. 

Accordingly, because the Court has found that it did

not commit any of the alleged errors, the Court concludes there

has been no cumulative prejudicial effect of the alleged errors. 

D. Defendant Mintz’s argument 

Defendant Mintz has separately briefed the Court in

support of Defendants’ motion for post-trial relief. Because

many of his arguments are duplicative of issues already

addressed, the Court will consider only his argument as they

relate to the sufficiency of the evidence Plaintiffs presented

against him at trial. 

1. Procedural background 

On August 28, 2009, Defendant Dr. Richard Mintz
- 52 -

(“Mintz”) filed a separate brief in support of Defendants’ motion

for post-trial relief (doc. no. 842). On November 5, 2009,

Plaintiffs submitted their brief in opposition to Mintz’s brief

in support of the motion for post-trial relief (doc. no. 918). 

On November 25, 2009, this Court issued a stipulation and order

requiring Defendants to submit their reply to Plaintiffs’ Brief

in opposition by December 7, 2009 (doc. no. 938). On December 7,

2009, Richard Mintz filed a reply to Plaintiffs’ Opposition Brief

(doc. no. 945). On December 10, 2009, Mintz filed a second reply

to Plaintiffs’ opposition brief (doc. no. 952). 

Plaintiffs move to strike Mintz’s second reply brief

and move for leave to file a surreply to Mintz’s reply brief

(doc. no. 958). Defendant Mintz, in response to Plaintiffs’

motion to strike, avers that the incorrect version of his brief

was filed on December 7, 2009. (Mintz Resp., doc. no. 962 at ¶

7.) Accordingly, the Court will deny Plaintiffs’ motion to

strike Defendant Mintz’s second reply brief (doc. no. 958) and

the Court will refer only to his second reply brief (doc. no.

952). The Court will also grant Plaintiffs’ motion to file a

surreply and will consider this brief (doc. no. 958) in its

analysis. 

2. Waiver

Plaintiffs argue that trial counsel for Defendant Mintz

failed to move for a directed verdict on the legal issues raised
Mintz chose to be represented by common counsel for all 28

Defendants at trial. At trial, all Defendants held to the common

strategy that no wrongful conduct had occurred. (See supra n.1) 

After trial, and with the assistance of new counsel, and in

hindsight, he has raised several new arguments which more

particularly address whether Mintz participated in such conduct. 

However, Mintz may not now belatedly assert new objections that

his trial counsel did not pursue at trial. 

- 53 -

by his new counsel in Mintz’s post-trial motion. Similar to the

Court’s earlier analysis of Defendant’s waiver, see discussion

supra, Defendant Mintz has only specifically identified the issue

of the distinctiveness requirement of RICO in Defendants’ Rule

50(a) motion. Accordingly, aside from the issue of RICO

distinctiveness, Mintz’s motion for judgment as a matter of law

based upon the alleged insufficiency of the evidence to support

Plaintiffs’ claim must be denied. 

Even if Defendant Mintz had properly moved for judgment

as a matter of law based on the sufficiency of Plaintiffs’

evidence, the Court finds that the motion would still fail. For

the sake of completeness, the Court will analyze Mintz’s

arguments regardless of the issue of waiver. 

3. Sufficiency of the evidence against Mintz

The great majority of Mintz’s brief is premised on his

contention that Plaintiffs failed to present sufficient evidence

that he knowingly participated in a scheme to defraud

Plaintiffs. Mintz argues he is entitled to judgment as a 28

matter of law because Plaintiffs failed to prove their claim
- 54 -

against him under RICO, Pennsylvania’s Insurance Fraud Act and

common law fraud. Accordingly, he argues that the evidence was

insufficient to sustain a damages award against him.

Plaintiffs argue that they did prove Mintz knowingly

and willingly participated in the scheme to defraud Plaintiffs.

Plaintiffs argue they presented substantial evidence including,

but not limited to: (1) the writing of prescriptions for patients

that Mintz did not personally examine as part of the “kickback

arrangement” with Dr. Forman and Mr. Hirsh; (2) allowing others

to use his prescription pad to write prescriptions in his

(Mintz’s) name; and (3) Mintz performed unnecessary testing on

patients who had been referred by Dr. Lincow. (Pls.’ Br., doc.

no. 918 at 11.)

Reviewing the record in a light most favorable to

Plaintiffs, the Court cannot conclude that it is “critically

deficient of that minimum quantity of evidence from which a jury

might reasonable afford relief.” Trabal, 269 F.3d at 249. Mintz

testified he was a full time employee of 7622 Medical and he was

familiar with the administrative practices and procedures at the

office. (Trial Tr. at 107-10, Mar. 13, 2009.) Mintz also

testified to merging his practice with Dr. Lincow and received

90% of his referrals of accident patients from Dr. Lincow. (Id.

at 121-22.) Mintz also testified that he was aware Dr. Forman

was unable to legally write prescriptions for medications. (Id.
- 55 -

at 143-45.) Mintz provided the 7622 Medical practice a signature

stamp of his. (Id. at 122.) Mintz testified that he agreed to

write prescriptions for Dr. Forman’s patients even though he did

not see or examine the patients. (Id. at 143-45.) Dr. Forman

also testified that Mintz ordered medications for patients he did

not see. (Trial Tr. at 146-148, Mar. 5, 2009.) Finally, Steven

Hirsh testified that Mintz prescribed medication for patients

treated by other Defendants. (Trial Tr. at 8, 10, 25 Mar. 13,

2009; see also exhibits P-30, P-100, P-109, P-77, P-12, P-20.) 

Based on these facts, a reasonable jury had sufficient

evidence to determine that Mintz knowingly and willfully

participated in the scheme to defraud State Farm. Plaintiffs

provided sufficient evidence regarding Mintz to prove their claim

against him under RICO, Pennsylvania’s Insurance Fraud Act and

common law fraud. 

IV. DAMAGES

A. Background 

The jury awarded Plaintiffs damages in the amount of 

$4,049,741.00 for statutory insurance fraud, common law fraud and

civil RICO violations, based on inaccurate medical records and

billing. The jury also awarded punitive damages as follows:

Arnold Lincow, D.O, in the amount of $5,000,000.00; Lawrence

Forman, D.O., in the amount of $600,000; Richard Mintz, D.O., in

the amount of $600,000; Stephen Hennessy, D.C., in the amount of
- 56 -

$600,000; Richard Butow, D.C., in the amount of $600,000; 7622

Medical Center, P.C., doing business as 1900 S.G. Associates and

Allied Medical Group, in the amount of $2,500,000; Medical

Management Consulting, Inc., in the amount of $500,000; Allied

Medical Group, P.C., in the amount of $500,000; Jefron X-Ray,

Inc., in the amount of $500,000. Judgment was entered on March

26, 2009. (Doc. no. 593.)

Defendants make several arguments related to the

damages awarded in this case. Defendants argue that, in the

event the Court concludes Defendants are not entitled to judgment

as a matter of law and/or a new trial, the Court should

nonetheless refuse to treble the jury’s $4,049,741.00

compensatory damage award. 

Drawing all reasonable inferences in favor of the

Plaintiffs, the party who prevailed at trial, there is a

reasonable basis to uphold the award. The compensatory award

reflects an attempt by the jury to allocate the total damages

award jointly and severally against all Defendants. The jury

interrogatories further reflect the jury conclusively found all

Defendants had individually violated: (1) 18 U.S.C. § 1962(c) for

damages; (2) § 1962(d) for conspiracy; (3) 18 Pa. C.S.A. §4117;

and (4) common law fraud. The jury was instructed, by agreement

of the parties, that if it was to award damages, if at all, it

would be jointly and severally against all Defendants. Moreover,
- 57 -

the $11.4 million in punitive damages is awarded individually,

depending on the degree of culpability by each Defendant. (Doc.

no. 593.) There is nothing to suggest that the jury did not

understand the law regarding liability. Rather, the jury found

all Defendants liable on all counts presented to them for

deliberation. The Court is persuaded that the jury's crafted

award, viewed as a whole, is reasonable and fully supported by

the record.

B. Damages evidence

Defendants argue that the evidence regarding damages

was not sufficient. Specifically, they argue that Plaintiffs

failed to prove cognizable damages under RICO, common law fraud

and statutory fraud. Defendants reiterate their argument that

Plaintiffs presented no evidence that State Farm actually relied

upon the patients’ medical records when paying first-party claims

or resolving third party claims. 

As detailed above, Plaintiffs presented evidence of the

actual loss caused by Defendants. Mr. Acornley’s testimony, as

well as other presented exhibits, sufficiently identified

payments made to Defendants as well as other payments as a result

of the fraudulent records. The jury had sufficient evidence to

determine that all of the treatment and testing was fraudulent,

thereby properly awarding Plaintiffs compensatory damages of more

than $4 million. 
- 58 -

C. Election between treble and punitive damages 

The jury awarded $11.4 million in punitive damages. 

Trebling the compensatory damages would amount to $12,149,223.00.

Defendants argue that Plaintiffs must choose between the treble

damages under RICO or the punitive damages for the common law

fraud violation. Plaintiffs agree and have indicated that, to

the extent that they have been awarded both sets of damages, they

elect to receive treble damages. (Pls.’ Br., doc. no. 919 at

68.) Because Plaintiffs have indicated they elect to receive

treble damages, the Court does not analyze Defendants’ arguments

that the punitive damage award violates due process or should be

reduced. 

D. Motion to amend the judgment to include Steven Hirsh and

Lolo, Inc. (doc. no. 615)

On April 27, 2009, Plaintiffs filed a sealed motion to

alter or amend judgment pursuant to Fed. R. Civ. P. 59(e) (doc.

no. 615). Plaintiffs request that this Court alter or amend the

judgment to include Steven Hirsh and Lolo, Inc., as a default

judgment was entered against them for both their failure to

appear at trial and defend the claims against them. Plaintiffs

believe that both Hirsh and Lolo should be jointly and severally

liable under the judgment entered by the Court. 

Plaintiffs originally instituted this action against

Defendants, including Steven Hirsh and Lolo, Inc. These two

Defendants did not respond to the action. The Court subsequently
- 59 -

entered default judgments against them on March 25, 2009. (See

doc. no. 592.) Plaintiffs argue that the parties are deemed

joint tortfeasors and they should be jointly and severally liable

for compensatory damages. 

 Defendants Steven Hirsh and Lolo, Inc., as well as the

other Defendants, have not responded to this motion. The Court

will grant this motion and hold Steven Hirsh and Lolo, Inc.

liable under the judgement. 

E. Motion to treble damages (doc. no. 615)

1. Plaintiffs’ argument 

Plaintiffs move to have their compensatory damages

trebled under the Pennsylvania Insurance Fraud Statute and RICO.

18 Pa. C.S. § 4117(g) provides that “[a]n insurer may recover

treble damages if the Court determines that the defendant has

engaged in a patten of violating this section.” RICO provides

treble damages, attorneys’ fees, and costs of suit “for any

person injured in his business or property by reason of a

violation of [18 U.S.C. § 1962].” 18 U.S.C. § 1964(c). 

2. Defendants’ opposition 

Defendants, except for Mintz, did not file a formal

opposition to the motion to treble. (Doc. no. 662.) Mintz

argues that Plaintiffs are not entitled to treble damages because

they did not prove liability under RICO or the Pennsylvania

Insurance Fraud statute against any Defendant. He argues that
Defendant Mintz’s argument that there is no statutory 29

provision allowing for joint and several liability is without

merit. There is no requirement for district courts to instruct

juries to award damages against each defendant separately and

individually. Although there is little direct law on this point,

there are numerous RICO criminal forfeiture cases which indicate

that the nature of the RICO offense mandates joint and several

liability. See Fleischhauer v. Feltner, 879 F.2d 1290, 1301 (6th

Cir. 1989); United States v. Caporale, 806 F.2d 1487, 1506-09

(11th Cir. 1986), cert. denied, 482 U.S. 917 (1987); United

States v. Benevento, 663 F.Supp. 1115, 1118-19 (S.D.N.Y. 1987),

836 F.2d 129 (2d Cir. 1988); see also Beneficial Standard Life

Ins. Co. v. Madariaga, 851 F.2d 271, 272 (9th Cir. 1988) (civil

RICO liability assessed joint and severally). 

Defendants all participated in the “enterprise”

responsible for the RICO violations; awarding damages separately

between each plaintiff and defendant is inconsistent with the

nature of the injury Defendants inflicted and brings about a

danger of multiplying damages before they are trebled. 

- 60 -

the basis for compensatory damages is unclear and, based on the

absence of sufficient evidence, should be vacated. Moreover, he

notes that trebling of a compensatory award under the Insurance

Fraud Act is only permissible, not mandatory as Plaintiffs

suggest. Finally, Mintz argues that there is no joint and

several liability among Defendants for any statutory violation

and any decision to treble the compensatory award against all

Defendants would be erroneous. 

29

3. Analysis 

Because Plaintiffs prevailed on their civil RICO

claims, § 1964(c) dictates the award of treble damages, in

addition to costs and attorneys’ fees. 

Plaintiffs also prevailed on the Pennsylvania Statutory
Goldberg, Miller & Rubin, P.C. has prepared a long list 30

from their invoices of the amount of time each attorney and

paralegal spent on tasks related to the case. Plaintiffs’

counsel avers that the attorneys’ fees and costs, are $945,952.85

- 61 -

Insurance Fraud claim, § 4117(g) similarly allows for the award

of treble damages, which is discretionary. In this case, the

conduct for which Defendants were found liable was serious,

occurred over a long period of time and was performed by licensed

professionals while delivering medical services. There is no

just reason to forego trebling the damages in this case. 

In this case, trebling the compensatory damages would

lead to an award of $12,149,223.00. 

E. Plaintiffs’ motion for attorneys’ fees and costs (doc.

no. 616)

1. Plaintiffs’ argument 

Plaintiffs have also moved for attorneys’ fees and

costs, pursuant to 18 U.S.C. § 1964(c) and 18 Pa. C.S. § 4117(g). 

Plaintiffs argue that § 1964(c) permits successful RICO

plaintiffs to recover for attorneys’ fees and costs and § 4117(g)

provides that compensatory damages include “reasonable

investigation expenses, costs of suit and attorney fees.” 

Plaintiffs argue that the jury returned a unanimous finding

against all Defendants on all counts presented for jury

consideration, including claims for violations of 18 U.S.C. §

1964 and § 4117. Plaintiffs aver to have incurred attorneys’

fees of $945,952.85 and costs of $219,745.35.30
and $219,745.35, respectively. 

- 62 -

2. Defendants’ opposition 

Defendants filed a joint opposition to the motion for

attorneys’ fees and costs (doc. no. 618). Defendants did not

file a brief in support of this motion, but rather “reserved” the

right to contest the amount of fees and costs at the hearing on

May 26, 2009. The Court later limited the May 26, 2009, hearing

to consider only the preliminary injunction to preserve

Defendants’ assets prior to execution (doc. no. 614). The Court,

by order, stated it would consider these motions at a later date,

after resolving Defendants’ motion for post-trial relief (doc.

no. 718). Defendants, other than Mintz, have provided no further

collective briefing on the motions for attorneys fees or treble

damages. 

Defendant Mintz argues that as the prevailing party in

this case, State Farm may be entitled to attorneys’ fees under

RICO and the Insurance Fraud Act but it not entitled to an award

of attorneys’ fees on its claim of common law fraud. (Doc. no.

662.). He argues the Insurance Fraud Act attorneys’ fees are

permissive, not mandatory. He believes that an additional award

of fees would constitute a windfall.

Mintz argues that because the verdict did not specify

under which theory of liability the compensatory damages award

was rendered, the assessment of attorneys’ fees is impossible. 
- 63 -

He argues that it is impossible to determine the amount of

damages attributable to each Defendant and there is no basis for

finding joint and several liability. Mintz claims the verdict

must be vacated and, at the very least, a new trial on damages

awarded. 

3. Analysis

Both civil RICO and the Pennsylvania insurance law

provide for an award of attorneys’ fees and costs to the

prevailing party. Plaintiffs filed their Complaint on October

13, 2005. The four week jury trial of this matter concluded

three and a half years, later on March 26, 2009. The civil

docket in this matter consists of over one thousand (1,000)

entries. The jury returned a verdict for Plaintiffs on each

count of the Complaint and rejected Defendants’ counterclaim. 

Thus, this Court is persuaded that Plaintiffs’ request is both

reasonable and appropriate to the nature, extent, duration and

success of this litigation. 

Goldberg, Miller & Rubin, P.C. will be required to

provide, at a later date, an updated affidavit demonstrating that

the attorneys’ billing rates and hours spent are within community

standards and that the legal work was reasonable and necessary. 

Defendants will be given an opportunity to object before the

Court rules on the amount of the fee. 
- 64 -

V. CONCLUSION 

For the aforementioned reasons, Defendants’ motion for

post-trial relief is denied. Plaintiffs’ motion to alter or

amend the judgment is granted. Plaintiffs’ motion for attorneys’

fees and costs is granted. An appropriate order follows.