UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

UNITED STATES OF AMERICA 

ex rel. WENDY A. BAHNSEN et al. 

Plaintiffs, 

v. 

BOSTON SCIENTIFIC 

NEUROMODULATION 

CORPORATION, 

Defendant. 

Honorable Susan D. Wigenton 

Civil Action No. 11-cv-1210 

RELATORS’ MEMORANDUM OF LAW 

IN OPPOSITION TO DEFENDANT, BOSTON SCIENTIFIC 

NEUROMODULATION CORPORATION’S 

MOTION TO DISQUALIFY BLANK ROME LLP 

Nicholas C. Harbist 

Blank Rome LLP 

301 Carnegie Center, 3rd Floor 

Princeton, NJ 08540 

Telephone: 609-750-2991 

Facsimile: 609-897-7442 

Attorneys for Relators 

Thomas J. Poulin 

W. Scott Simmer 

Blank Rome LLP 

Watergate 

600 New Hampshire Ave., NW 

Washington DC 20037 

Telephone: 202-772-5986 

Facsimile: 202-572-8432 

Of Counsel

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TABLE OF CONTENTS 

Page 

I. INTRODUCTION ...............................................................................................................1 

II. FACTUAL BACKGROUND ..............................................................................................3 

A. Relators’ Retention Of Company Documents And Disclosure Of Documents Thru 

Counsel To The Government Is Protected Activity Under The False Claims Act 

And Not Actionable. ................................................................................................4 

B. Relators’ Counsel Cannot be Disqualified Under RPC 3.7(A) Because Counsel 

Will Not Be Necessary Fact Witnesses. ..................................................................6 

C. Blank Rome, As A Firm, Cannot Be Disqualified.................................................11 

III. CONCLUSION ..................................................................................................................13 

 

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TABLE OF AUTHORITIES

 Page(s) 

CASES

AAMCO Transmissions, Inc. v. Baker, 

2008 U.S. Dist. LEXIS 102472 (E.D. Pa. Dec. 18, 2008) .................................. 10 

Cafaro v. HMC Int’l, LLC, 

2012 U.S. Dist. LEXIS 146697 (D.N.J. Oct. 11, 2012) ....................................... 6 

Carlyle Towers Condo Ass’n v. Crossland Sav. F.S.B., 

944 F. Supp. 341 (D.N.J. 1996) ........................................................................ 6, 7 

Cavallaro v. Jamco Property Mgmt., 

334 N.J. Super. 557 (App. Div. 2000) .................................................................. 6 

City of Atlantic City v. Trupos, 

201 N.J. 447 (2010) .............................................................................................. 7 

Essex Chem. Corp. v. Hartford Accident & Indem. Co., 

975 F. Supp. 650 (D.N.J. 1997) ............................................................................ 7 

FDIC v. United States Fire Ins. Co., 

50 F.3d 1304 (5th Cir. 1995) ............................................................................ 1, 2 

Freeman v. Vicchiarelli, 

827 F. Supp. 300 (D.N.J. 1993) ............................................................................ 8 

Host Marriott Corp. v. Fast Food Operators, 

891 F. Supp. 1002 (D.N.J. 1995) .................................................................... 9, 11 

J.G. Ries & Sons v. Spectraserv, Inc., 

384 N.J. Super. 216 (App. Div. 2006) .............................................................. 8, 9 

Lachman v. Sperry-Sun Well Surveying Co., 

457 F. 2d 850 (10th Cir. 1972) ............................................................................. 5 

Main Events Prods. v. Lacy, 

220 F.Supp. 2d 353 (D.N.J. 2002) ...................................................................... 12 

Neal v. Honeywell, 

826 F. Supp. 266 (N.D. Ill. 1993) ......................................................................... 4 

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iii 

Oswell v. Morgan Stanley Dean Witter & Co., 

2007 U.S. Dist. LEXIS 62072 (D.N.J. Aug. 22, 2007) .................................. 9, 10 

Spinello Cos. v. Metra Indus., 

2006 U.S. Dist. LEXIS 41875 (D.N.J. June 22, 2006) ................................... 9, 10 

Stoner v. Santa Clara County Office of Educ., 

502 F. 3d 116 (9th Cir. 2007) ............................................................................... 5 

Tangible Value, Inc. v. Town Sports Int’l Holdings, Inc.,

2012 U.S. Dist. LEXIS 141580 (D.N.J. Oct. 1, 2012) ................................. 11, 12 

United States ex rel. Green v. Northrop Corp., 

59 F. 3d 956 (9th Cir. 1995) ................................................................................. 5 

United States ex rel. Head v. Kane Co., 

668 F. Supp. 2d 146 (D.D.C. 2009) ...................................................................... 6 

United States ex rel. Lu v. Ou, 

368 F. 3d 773, 775-76 (7th Cir. 2004) .................................................................. 5 

United States v. Cancer Treatment Centers of America, 

350 F. Supp. 2d 765 (N.D. Ill. 2004) .................................................................... 6 

STATUTES

31 U.S.C. §§ 3730(b)(2), (e)(4)(B) ............................................................................ 5 

42 U.S.C. § 17921(1)(A) .......................................................................................... 10 

OTHER AUTHORITIES

ABA Model Code of Professional Responsibility EC5-10 (1981) ...................... 5, 10 

Advisory Comm. on Prof’l Ethics Op. 630 (October 12, 1989) .............................. 12 

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I. INTRODUCTION 

A disqualification inquiry, particularly when instigated 

by an opponent, presents a palpable risk of unfairly 

denying a party the counsel of his choosing . . . When, 

for purely strategic purposes, opposing counsel raises the 

question of disqualification, and subsequently prevails, 

public confidence in the integrity of the legal system is 

proportionately diminished. 

FDIC v. United States Fire Ins. Co., 50 F.3d 1304, 1316 (5th Cir. 1995). 

In this False Claims Act case, Relators aver that Boston Scientific 

Neuromodulation Corporation (“Boston Scientific”) defrauded Medicare and 

Medicaid by: (1) submitting claims misrepresenting the physician’s order required 

for payment of such claims; (2) fraudulently changing diagnosis codes on claim 

forms from the real diagnosis; and, (3) fraudulently making up diagnosis codes in 

absence of a diagnosis from a physician. (Relators’ First Amended Complaint 

(“FAC”) ¶23). After complaining about these unlawful billing practices, Relators 

were disciplined for continually trying to stop this billing fraud. When Relators 

refused to sign off on the false claims, Bahnsen was summarily and unlawfully 

terminated from her employment and Fuentes was subjected to a hostile work 

place. (FAC ¶¶144, 154, 161 and 162). 

In its Motion to Strike and this Motion to Disqualify, Boston Scientific 

claims that it will bring counterclaims based upon Relators’ breach of their 

respective corporate agreements when they retained, and then turned over, 

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confidential and proprietary documents to their counsel (Def. Br. at 2). Because 

Relators’ counsel are what Boston Scientific deems to be “necessary” witnesses to 

the Relators’ breach of their corporate agreements, so the argument goes, Blank 

Rome should be disqualified. Id. But a close examination of Boston Scientific’s 

assertions reveals not only the fallacy of this position under RPC 3.7, but also 

establishes that this Motion is made purely for “strategic purposes” as forewarned 

in FDIC, supra.

More importantly, Boston Scientific’s position would eviscerate the very 

purpose of False Claims Act prosecutions which, by their very nature, rely on nonpublic information from insiders who – often at their own peril –blow the whistle 

on corrupt corporate conduct. Under Boston Scientific’s view, because Relators’ 

counsel used and relied upon documents in the Relators’ possession to craft the 

Complaint and the Disclosure Statement – as mandated by the qui tam statute – 

Relators have violated their corporate agreements and, in turn, their attorneys have 

put themselves in the position of being “necessary” witnesses. Were this canard 

the law, Relators would never be able to secure counsel or provide material 

evidence of fraud to the Government. This is because a False Claims Act case 

cannot be brought by a Relator pro se, but must be drafted and filed by an attorney. 

The suggestion that an attorney can never review documents obtained from a 

whistleblower’s employment and utilize them in a False Claims Act case, would 

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effectively render the False Claims Act a nullity. Accordingly, this Motion to 

Disqualify should be seen for what it really is – an attempt to blunt whistleblowers 

whom have come forward with evidence of corporate fraud. Their protected 

activity is not only a necessary part of how the False Claims Act functions, but 

their conduct is encouraged in order to uncover fraud that would otherwise go 

undetected. Together with Defendant’s Motion to Strike, this is – a weak ploy to 

fend off credible evidence of its fraud. As such, this purely strategic motion 

should be denied. 

II. FACTUAL BACKGROUND 

In or about October 2010, Relators retained Blank Rome LLP to represent 

them in a qui tam action against Boston Scientific. (Bahnsen Dec. ¶ 1; Fuentes 

Dec. ¶1). As set forth in paragraphs 12 and 15 of the FAC, prior to filing the 

action the Relators voluntarily provided non-public information in their possession 

to the Government. 

After the Government conducted its investigation and eventually declined 

intervention on February 23, 2012, the Relators sought leave of counsel for Boston 

Scientific, and then filed the FAC making additional factually specific allegations.1

 

1

 The Relators also deny that the tables set forth in the FAC at paragraphs 37-41 

include protected healthcare information. (See Opp’n to Motion to Strike at 22-

24). 

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The Relators do not dispute that prior to their termination and their retention 

of Blank Rome as counsel, they were engaged in protected activity under the False 

Claims Act, by their investigation of billing fraud and, in furtherance of this 

investigation, retained Boston Scientific documents which came into their 

possession during the course of their employment, and which establish and support 

the violations of the False Claims Act. (Bahnsen Dec. ¶3; Fuentes Dec. ¶3). These 

documents were ultimately turned over to the Government through counsel 

pursuant to the disclosure statement mandated by the qui tam statute. (Bahnsen 

Dec. ¶3; Fuentes Dec. ¶3). Because Relators’ collection of these documents during 

the course of their employment was in furtherance of their False Claims Act 

investigation, Relators’ efforts are protected activity under the statute, and are not 

actionable. 

ARGUMENT

A. RELATORS’ RETENTION OF COMPANY DOCUMENTS AND 

DISCLOSURE OF DOCUMENTS THRU COUNSEL TO THE 

GOVERNMENT IS PROTECTED ACTIVITY UNDER THE FALSE 

CLAIMS ACT AND NOT ACTIONABLE. 

Because Relators’ retention of Boston Scientific documents and disclosure 

of such documents in furtherance of a False Claims Act action to the Government 

is protected activity, the alleged breach of any corporate agreements is not 

actionable as a matter of law. One of the fundamental purposes of the False 

Claims Act is “to encourage any individual who knows of government fraud to 

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bring that information forward.” Sen. R. No. 345, 99th Cong. 2d Sess., reprinted 

in, 1986 U.S.C.C.A.N. 5266, 5275 (history of the Act); Neal v. Honeywell, 826 F. 

Supp. 266 (N.D. Ill. 1993), aff’d, 33 F.3d 860 (7th Cir. 1994) (relying on H.R. Rep. 

No. 660, 99th Cong., 2d Sess., 22 (1986)). As explained more fully in Relators’ 

Opposition to the Motion to Strike, private agreements that would frustrate the 

public interest and the Congressional objective of encouraging False Claims Act 

cases are unenforceable. (Opp’n to Motion to Strike at 8-16). Thus, the private 

agreements signed by Relators that restrain them from cooperating with 

investigations or disclosing matters of public consequence are unenforceable under 

public policy grounds. See Lachman v. Sperry-Sun Well Surveying Co., 457 F. 2d 

850 (10th Cir. 1972); United States ex rel. Green v. Northrop Corp., 59 F. 3d 956, 

963 (9th Cir. 1995). Indeed, the Relators are required under the False Claims Act 

to disclose to the Government all of the inside information used to file qui tam 

lawsuits on behalf of the Government. See 31 U.S.C. §§ 3730(b)(2), (e)(4)(B). Of 

course, Counsel plays an integral role in advocating Relators’ protected activity. 

This is because a case brought by a Relator that can bind the United States to an 

adverse result must be brought by an attorney; not by a Relator acting pro se. 

Stoner v. Santa Clara County Office of Educ., 502 F.3d 1116 (9th Cir. 2007), cert. 

denied, 552 U.S. 1281 (2008); United States ex rel. Lu v. Ou, 368 F.3d 773, 775-76 

(7th Cir. 2004), abrogated in part on other grounds by, 556 U.S. 928 (2009). 

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In sum, because Relators lawfully obtaining and utilizing company 

documents in furtherance of a False Claims Act action is protected conduct under 

the False Claims Act, United States ex rel. Head v. Kane Co., 668 F. Supp. 2d 146, 

152 (D.D.C. 2009); United States v. Cancer Treatment Centers of America, 350 F. 

Supp. 2d 765, 773 (N.D. Ill. 2004), the corporate agreements upon which Boston 

Scientific’s argument is based, are unenforceable as a matter of law. Accordingly, 

Relators’ counsel’s review of the Boston Scientific documents and transmission of 

these documents to the Government cannot serve as the basis for disqualification. 

B. RELATORS’ COUNSEL CANNOT BE DISQUALIFIED UNDER RPC

3.7(A) BECAUSE COUNSEL WILL NOT BE NECESSARY FACT 

WITNESSES. 

The disqualification weapon brandished by Boston Scientific is a powerful 

and unwieldy one. Because courts are required to afford substantial deference to 

parties’ selection of counsel, Defendant’s burden is high. “[D]isqualification is 

considered a ‘drastic measure which courts should hesitate to impose except when 

absolutely necessary.’” Cafaro v. HMC Int’l, LLC, 2012 U.S. Dist. LEXIS 

146697, at *12 (D.N.J. Oct. 11, 2012) (citation omitted); see also Carlyle Towers 

Condo Ass’n v. Crossland Sav. F.S.B., 944 F. Supp. 341, 345 (D.N.J. 1996) 

(“disqualification a drastic measure” which courts “hesitate to impose except when 

absolutely necessary”). It is a “harsh, discretionary remedy which must be used 

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sparingly.” See Cafaro, supra, 2012 U.S. Dist. LEXIS 146697 at *13 (quoting

Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 572 (App. Div. 2000)). 

The party seeking disqualification bears the burden of persuasion of the 

necessity of disqualification, and must prove each element required. See City of 

Atlantic City v. Trupos, 201 N.J. 447, 462-63 (2010). A motion to disqualify 

opposing counsel must be based in “fact”; “surmise” is not enough to justify 

disqualification. Id. at 464, 469. And because disqualification of counsel during 

pending litigation renders a grave disservice to the affected client, courts must 

closely scrutinize the facts and precisely apply precedent to avoid injustice. 

Carlyle Towers, supra at 345. In evaluating the facts, “a party’s choice of counsel 

is entitled to substantial deference.” Essex Chem. Corp. v. Hartford Accident & 

Indem. Co., 975 F. Supp. 650, 654 (D.N.J. 1997), rev’d on other grounds 993 F. 

Supp. 241 (D.N.J. 1998). 

Boston Scientific asserts that Relators’ counsel are the only individuals, 

other than the Relators, who witnessed Relators’ breach of their corporate 

agreements and who possess Defendant’s documents, and concludes that counsel is 

“certainly a necessary fact witness for the counterclaims” (Def. Br. at 5). Boston 

Scientific is both factually and legally incorrect. 

First as a factual matter, Relators’ counsel did not “witness” the Relators’ 

taking of documents during their employment. At best, counsel can only 

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authenticate documents received from the Relators, after counsel had been 

retained. Rather, the Relators themselves are the only witnesses who would 

confirm that the documents were obtained during the course of their employment 

in furtherance of their lawful investigation of False Claims Act violations. 

(Bahnsen Dec. ¶3; Fuentes Dec. ¶3). Accordingly, Plaintiff’s counsel are not only 

unnecessary “witnesses,” but counsel’s potential hearsay testimony would relate 

only to the uncontested issue that documents received by the Relators during the 

course of their employment and were not returned upon termination. 2 See ABA 

Model Code of Professional Responsibility, Canon 5, EC 5-10 (1981) (in effect 

prior to the Model Rules adopted in 1983) (“It is not objectionable for a lawyer 

who is a potential witness to be an advocate if it is unlikely that he will be called as 

a witness because his testimony would be merely cumulative or if his testimony 

will relate only to an uncontested issue.”). 

Second, as a matter of law, the “likely to be a necessary witness” 

requirement of RPC 3.7 cannot be satisfied by a mere representation by 

Defendant’s counsel that the attorney will be called as a witness. J.G. Ries & Sons 

v. Spectraserv, Inc., 384 N.J. Super. 216, 230 (App. Div. 2006). In contrast to

Freeman v. Vicchiarelli, 827 F. Supp. 300, 302 (D.N.J. 1993), relied on by 

Defendant, where the attorney’s testimony was the “primary evidence” to establish 

 

2

 Boston Scientific cannot seriously contend that it would be entitled to question 

Blank Rome attorneys as to their privileged conversations with the Relators. 

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any “unlawfulness,” here counsel is merely the custodian of records already 

obtained by the Relators. Id. at 303. Nothing counsel would testify to would fall 

into the category of “primary evidence” in this case. On the contrary, where other 

testimony is available on the precise issue, counsel is not “likely to be a necessary 

witness.” J.G. Ries, supra at 231 (holding that Plaintiff’s counsel’s testimony 

regarding a letter he authored was not necessary where the letter could be 

introduced through the testimony of the party who had received it). See also

Oswell v. Morgan Stanley Dean Witter & Co., 2007 U.S. Dist. LEXIS 62072 at 

*10 (D.N.J. Aug. 22, 2007) (“under New Jersey Law . . ., a witness is ‘truly 

necessary’ if there are no documents or other witnesses that can be used to 

introduce the relevant evidence.”) (citation omitted) (Simandle, C.J.); Host 

Marriott Corp. v. Fast Food Operators, 891 F. Supp. 1002, 1010 (D.N.J. 1995) 

(where evidence about intent would be available from the defendant himself, the 

“likelihood” that counsel is a necessary witness is “dubious”).3

 As Boston 

Scientific concedes that the Relators can testify as to these very issues (Def. Br. at 

2), disqualification is not permissible under RPC 3.7. Spinello Cos. v. Metra 

Indus., 2006 U.S. Dist. LEXIS 41875 at *10 (D.N.J. June 22, 2006) (where all 

knowledge on the part of counsel came directly from his conversations with his 

 

3

 The Canons of Professional Ethics, in effect in New Jersey prior to 1971, 

similarly provided that “[w]hen a lawyer is a witness for his client except as to 

merely formal matters, such as attestation or custody of an instrument and the like, 

he should leave the trial of the case to other counsel.” Canon 19. 

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clients, the purported necessary testimony sought from the attorney was well 

within the personal knowledge of the parties and disqualification was not 

warranted); AAMCO Transmissions, Inc. v. Baker, 2008 U.S. Dist. LEXIS 102472 

at *2-6 (E.D. Pa. Dec. 18, 2008); Oswell, supra at *10. 

In sum, on these facts the Court cannot conclude that Boston Scientific has 

met its heavy burden to establish that counsel are likely to be “necessary” 

witnesses as, at best, counsel’s proposed testimony is duplicative of the Relators’ 

testimony and would amount to merely authentication evidence.4

 Imposing the 

“drastic remedy” of disqualification here would not only violate the text of RPC 

3.7, but undermine the very purpose of the False Claims Act.5 Spinello, supra at 

*6. 

 

4

 See also ABA Model Code of Professional Responsibility, Canon 5, EC 5-10 

(1981) (in effect prior to the Model Rules adopted in 1983) (noting that if an 

attorney’s testimony is merely cumulative, it is unlikely that he or she will be 

required to testify). 

5

 Similarly, Defendant’s arguments that Relators’ counsel should be disqualified 

because this representation violates rules RPC 1.2 (b) and 1.16 (a) are meritless. 

Contrary to Defendant’s assertion, there is no evidence that Relators’ counsel 

assisted or counseled Relators to remove documents from Boston Scientific’s place 

of business since Relators obtained the documents prior to retention of Blank 

Rome. (Bahnsen Dec. ¶ ¶ 1, 3; Fuentes Dec. ¶¶ 1, 3). Relators’ counsel cannot be 

said to have counseled the clients to remove protected health information from 

Boston Scientific, nor can it be argued that Blank Rome has caused the unique 

individually identifiable health information to be disclosed to counsel under these 

facts. Id. Moreover, for the reasons set forth more fully in Relators’ Opposition to 

the Motion to Strike, the inclusion of patient claim information in the First 

Amended Complaint neither breached Relators’ agreements with Boston Scientific, 

nor violated any provision of the Health Insurance Portability and Accountability 

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C. BLANK ROME, AS A FIRM, CANNOT BE DISQUALIFIED.

Boston Scientific asserts that Blank Rome should be disqualified as a firm 

and Relators must obtain “new counsel.”6

 This position is also incorrect under 

RPC 3.7, because Blank Rome as a firm cannot be disqualified, even if the Court 

concludes that a member of the firm is a “necessary” witness. Moreover, even if 

an attorney from Blank Rome qualifies as a “necessary” witness, that attorney 

should be precluded only from acting as an advocate at trial; not as to all pre-trial 

matters. 

RPC 3.7(b) provides that “[a] lawyer may act as an advocate at trial in which 

another lawyer in the lawyer’s firm is likely to be called as a witness unless 

precluded from doing so by RPC 1.7 or RPC 1.9.” Accordingly, disqualification of 

an attorney under RPC 3.7(a) is not imputed to the attorney’s firm unless 

representation would also involve a conflict of interest between the lawyer and the 

client within the meaning of either RPC 1.7 or RPC 1.9. See Tangible Value, Inc. 

v. Town Sports Int’l Holdings, Inc., 2012 U.S. Dist. LEXIS 141580 at *6 (D.N.J. 

Oct. 1, 2012); Host Marriott Corp., supra at 1010 (noting that even if an attorney’s 

testimony proved to be necessary in the matter, his firm would not be disqualified 

 

Act (“HIPPA”). See 42 U.S.C. § 17921(1)(A). Even if counsel can be said to have 

known of this conduct, there was no violation of HIPPA. (See Opp’n to Motion to 

Strike at 16-24). 

6

 While Boston Scientific’s Proposed Order purports to request disqualification of 

Mr. Harbist only, the Order further seeks a stay of proceedings, so that Plaintiffs 

may obtain “new counsel.” (See Def. Proposed Order). 

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from representing the defendant in the case). RPC 3.7 affected a substantial 

change in the law in this area, as previously the disciplinary rules mandated 

disqualification of both the lawyer and his or her firm. See Advisory Comm. on 

Prof’l Ethics Op. 630 (October 12, 1989). 

Moreover, even if the Blank Rome attorney directly involved with Relators 

was a “necessary” witness, that attorney need not be disqualified from pre-trial 

proceedings, as the disqualification only precludes the attorney from acting as an 

advocate at trial. See Tangible Value, Inc., supra at *6 (no disqualification of 

attorney from pre-trial proceedings); Main Events Prods. v. Lacy, 220 F.Supp. 2d 

353, 356-357 (D.N.J. 2002) (attorney who will testify at trial need not be 

disqualified from participating in pre-trial matters). 

In sum, even if discovery ultimately reveals that a Blank Rome attorney is 

somehow a “necessary” witness beyond the issue of authentication of the 

documents received from the Relators, Blank Rome should not be disqualified as 

other attorneys at the firm may act as “an advocate at trial.” Tangible Value, supra

at *8-*11. Moreover, even if a Blank Rome attorney is “necessary” witness, that 

attorney can participate in pre-trial proceedings without violating RPC 3.7. 

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III. CONCLUSION 

Unmasked for what it truly is, Boston Scientific’s Motion to Disqualify has 

no basis in the law or in the fact, and is merely a strategic ploy aimed at depriving 

Relators of counsel of their choice and silence Relators’ lawful whistleblowing 

activity. As such, Defendant’s Motion should be denied. 

Dated: November 30, 2012 /s/ Nicholas C. Harbist 

Nicholas C. Harbist 

Blank Rome LLP 

301 Carnegie Center, 3rd Floor 

Princeton, NJ 08540 

Telephone: 609-750-2991 

Facsimile: 609-897-7442 

Attorneys for Relators 

Thomas J. Poulin 

W. Scott Simmer 

Blank Rome LLP 

Watergate 

600 New Hampshire Ave., NW 

Washington DC 20037 

Telephone: 202-772-5986 

Facsimile: 202-572-8432 

Of Counsel 

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