UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY

 

 : 

UNITED STATES OF AMERICA, ex : 

rel. MARC SILVER, et al., : 

 : 

Relators, : No. 1:11-cv-1326-NLH-AMD 

 : 

v. : 

 : MEMORANDUM 

OMNICARE, INC., et al., : OPINION AND ORDER 

 : 

Defendants. : 

 : 

______________________________ : 

APPEARANCES: 

LISA J. RODRIGUEZ 

SCHNADER HARRISON SEGAL & LEWIS LLP 

WOODLAND FALLS CORPORATE PARK 

220 LAKE DRIVE EAST 

SUITE 200 

CHERRY HILL, NJ 08002-1165 

WILLIAM H. ELLERBE 

RUSSELL D. PAUL 

BERGER & MONTAGUE PC 

1818 MARKET STREET 

PHILADELPHIA, PA 19103 

DANIEL WILLIAM MEYLER 

U.S. ATTORNEY’S OFFICE 

DISTRICT OF NEW JERSEY 

970 BROAD STREET, SUITE 700 

NEWARK, NJ 07102 

Attorneys for Relators

JUDITH H. GERMANO 

GWEN M. SCHOENFELD 

GERMANO LAW LLC 

460 BLOOMFIELD AVENUE 

SUITE 200 

MONTCLAIR, NJ 07043 

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MICHAEL MANTHEI (Pro Hac Vice) 

WILLIAM PEZZOLO (Pro Hac Vice) 

HOLLAND & KNIGHT LLP 

10 ST. JAMES AVENUE 

BOSTON, MA 02116 

PETER J. KOCORAS (PRO HAC VICE) 

THOMPSON HINE LLP 

20 NORTHT CLARK STREET, SUITE 800 

CHICAGO, IL 60602 

Attorneys for Defendant PharMerica Corp. 

HILLMAN, District Judge: 

 This matter is before the Court on Defendant PharMerica 

Corporation’s (“PharMerica”) Motion to Bifurcate the Daubert

Motions and Summary Judgment Motions (“Motion”), [Docket Number 

616], which Relator Marc Silver (“Silver”) opposes. The Court 

has considered the parties’ submissions and decides this matter 

pursuant to Fed. R. Civ. P. 78 and L. Civ. R. 78.1. For the 

reasons that follow, PharMerica’s Motion will be granted in 

part. 

 As noted in the Court’s prior opinions, this case is a qui 

tam action for alleged violations of the False Claims Act, 31 

U.S.C. § 3729, et seq., and the federal Anti-Kickback Statute, 

42 U.S.C.A. § 1320a-7b, et seq.1 Silver claims PharMerica 

1 Therefore, the Court has subject matter jurisdiction pursuant 

to 28 U.S.C. § 1331 (federal question jurisdiction) and 

exercises supplemental jurisdiction over Silver’s related state 

law claims pursuant to 28 U.S.C. § 1367. 

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engaged in a scheme to offer nursing homes below market prices 

for drugs to patients insured by Medicare Part A in exchange for 

referrals of prescriptions for nursing home patients insured by 

Medicare Part D or by Medicaid. The facts relevant to this 

matter are set forth in greater detail in the Court’s prior 

opinions. This memorandum opinion and order assumes the 

parties’ familiarity with those opinions and need not discuss 

the factual and procedural history of this action in further 

detail. 

 On November 9, 2021, the Honorable Ann Marie Donio, 

U.S.M.J. issued an Amended Scheduling Order, [Dkt. No. 601], 

setting a deadline to file dispositive motions and Daubert 

motions no later than May 13, 2022. On February 11, 2022, 

PharMerica moved for: (1) additional time to depose Silver’s 

expert witness Professor Israel Shaked; (2) additional time to 

complete expert discovery; (3) the Court to bifurcate the 

deadlines for Daubert motions and motions for summary judgment; 

(4) a June 30, 2022 deadline to file Daubert motions; (5) a 

status conference after the Court rules on the Daubert motions; 

and (6) a deadline to file motions for summary judgment to be 

set 90 days from the Court’s ruling on the Daubert motions. 

PharMerica’s Motion, [Dkt. No. 607]. On February 16, 2022, 

Judge Donio issued an Order, [Dkt. No. 613], granting in part 

and denying in part PharMerica’s requests. The Order extended 

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the deadline to file dispositive motions and Daubert motions to 

May 27, 2022, but denied the bifurcation request, instructing 

the parties to submit that request to the District Judge. 

PharMerica now moves to amend the February 16, 2022 

Scheduling Order, renewing its requests that the Court (1) 

bifurcate Daubert motions and summary judgment motions and (2) 

extend the deadline to file Daubert motions from May 27, 2022 to 

June 24, 2022, with summary judgment motions to be filed after 

the Court addresses the Daubert motions.2 

PharMerica emphasizes, despite this case’s already advanced 

age, bifurcation may reduce the length of time required to 

resolve this action. PharMerica argues that because expert 

opinions are a central component to Silver’s case, bifurcation 

will promote efficiency and streamline the case. According to 

PharMerica, Silver’s case relies on expert opinions for 

“contribution margin” calculations for each of the 175 nursing 

homes and for each year of the relevant period. Thus, if 

PharMerica is successful on its Daubert motions to exclude 

Silver’s experts’ opinions, then summary judgment will be 

2 PharMerica requests, in the alternative, that if the Court 

denies the bifurcation request, then the deadline for 

dispositive motions should be moved to August 31, 2022, since 

this is the “earliest date by which PharMerica reasonably can 

prepare and file both motions, each of which will be hundreds of 

pages, inclusive of briefs and exhibits.” Moving Br. at 5. 

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simplified, making this case “smaller by orders of magnitude.” 

PharMerica’s Brief in Support of Bifurcation (“Moving Br.”), 

[Dkt. No. 616], at 2 (citing Heller v. Shaw Indus., Inc., Civ. 

No. 95-7657, 1997 WL 535163, at *7 (E.D. Pa. Aug. 18, 1997) 

(“Where essential elements of plaintiffs’ case depend on expert 

testimony, a determination of defendant’s summary judgment 

motion must be preceded by a determination of the relevance and 

reliability, and hence admissibility, of the proffered expert 

testimony.”)). 

 Silver opposes PharMerica’s request, essentially arguing 

that bifurcation will significantly delay the case by about a 

year and courts regularly decide motions for summary judgment in 

tandem with Daubert motions. Silver thus claims PharMerica 

fails to present good cause to amend the February 16, 2022 

Scheduling Order. 

Pursuant to Federal Rule of Civil Procedure 16(b)(4), the 

Court may modify a Scheduling Order if the movant makes a 

showing of good cause. Here, PharMerica has satisfied this 

standard. As discussed above, PharMerica argues there is good 

cause to bifurcate the Daubert motions and motions for summary 

judgment because bifurcation could save time and resources of 

both the parties and the Court. The Court agrees. Separating 

the two motions has the potential to streamline and simplify 

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this complex case,3 making bifurcation entirely appropriate for 

the parties’ dispositive motions. Webstaurant Store, Inc. v. 

Everything Is In Stock LLC, Civ. No. 20-cv-2558 (CCC/ESK), 2020 

WL 4040842, at *1 (D.N.J. July 15, 2020) (“A court may bifurcate 

the issues in a case pursuant to Rule 42(b) when such an action 

would be ‘in furtherance of convenience or to avoid prejudice, 

or when separate trials will be conducive to expedition and 

economy.’”) (Id. quoting Princeton Biochemicals, Inc. v. Beckman 

Instruments, 180 F.R.D. 254, 256 (D.N.J. 1997)). Without 

assessing the merits of the parties’ forthcoming motions, 

PharMerica is right to suggest bifurcation may support judicial 

economy as it is possible that a ruling on the Daubert motions 

could prove dispositive to the subsequent motions for summary 

judgment. See Weiss v. First Unum Life Ins. Co., Civ. No. 02-

cv-4249 (GEB), 2008 WL 755958, at *1 (D.N.J. Mar. 19, 2008) 

(holding that bifurcation is appropriate and promotes judicial 

economy where one issue “could prove to be dispositive”). 

Despite Silver’s concerns that bifurcation may unduly 

prolong the case, any delay presented by bifurcation can hardly 

3 The complexity of the issues inherent to a case is often 

considered by courts in deciding whether to bifurcate issues. 

See Lennox Int’l Inc. v. Ethical Prods., Inc., Civ. No. 21-cv12437 (SRC/JSA), 2021 WL 5757409, at **2-3 (D.N.J. Dec. 2, 

2021). This is a fairly complex case, encompassing voluminous 

information that will likely require extensive explanation by 

the parties’ experts. This complexity supports bifurcation. 

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burden a case that has already lingered for over a decade. 

Moreover, Silver does not contend that bifurcation will cause 

any prejudice to his ability to present his case or waste 

judicial resources. Raritan Baykeeper, Inc. v. NL Indus., Inc., 

Civ. No. 09-cv-4117 (JAP/DEA), 2014 WL 4854581, at *2 (D.N.J. 

Sept. 30, 2014) (“In determining whether bifurcation is proper, 

courts should consider whether bifurcation will avoid prejudice, 

conserve judicial resources, and enhance juror comprehension of 

the issues presented in the case”) (quotation omitted). 

Therefore, upon this record, the Court finds it appropriate to 

bifurcate the Daubert and summary judgment motions. See 

Idzojtic v. Pennsylvania R.R. Co., 456 F.2d 1228, 1230 (3d Cir. 

1972) (“The district court is given broad discretion in reaching 

its decision whether to separate the issues”); see also 

Webstaurant Store, Inc., 2020 WL 4040842, at *1 (holding that 

“Court have wide discretion to bifurcate issues and claims”). 

In addition to bifurcation, PharMerica also argues that 

more time is needed before the parties can prepare Daubert

motions and summary judgment motions. This Court will refer 

that issue back to the able hands of Judge Donio who has 

overseen case management in this matter, is intimately familiar 

with the issues and the parties, and is therefore best suited to 

set a fair schedule consistent with the record and her prior 

rulings. 

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 THEREFORE, 

IT IS on this 14 day of April , 2022 

 ORDERED that PharMerica’s Motion to Bifurcate the Daubert 

motions and summary judgment motions and to modify the Amended 

Scheduling Order [Dkt. No. 616] be, and the same hereby is, 

GRANTED in part in that the parties may file their Daubert 

motions prior to summary judgment motions and may delay the 

filing of said summary judgment motions for a reasonable time 

after the Daubert issues are resolved by this Court on a 

schedule left to the sound discretion of Judge Donio. 

 

 s/ Noel L. Hillman 

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J. 

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