Free Motion to Strike - District Court of Federal Claims - federal

Case 1:01-cv-00517-MBH

Document 55

Filed 03/31/2006

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United States Court of Federal Claims

GHS Health Maintenance Organization, Inc., d/b/a BlueLincs HMO, Texas Health Choice, L.C., and Scott & White Health Plan, Plaintiffs, v. United States, Defendant.

No. 01-517C Judge Marian Blank Horn

BLUELINCS MOTION TO STRIKE DECLARATION OF NANCY H. KICHAK Plaintiff GHS Health Maintenance Organization, Inc. d/b/a BlueLincs HMO ("BlueLincs"), by counsel and pursuant to Rule 56, RCFC, submits the following Motion To Strike Declaration of Nancy H. Kichak. In support of its Motion, BlueLincs states as follows: 1. Plaintiffs, Scott & White Health Plan and Texas Health Choice, L.C., have filed a

Motion to Strike the Declaration of Nancy Kichak and References Thereto in Defendant's Memoranda ("Scott & White Motion to Strike") on various grounds. 2. BlueLincs adopts and incorporates by reference the grounds set forth in the Scott

& White Motion to Strike. 3. BlueLincs also asserts that the Declaration, or portions thereof, should be stricken

because it violates RCFC 56(e) which requires that supporting and opposing affidavits shall be made on personal knowledge and shall set forth facts that would be admissible in evidence.

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4.

In further support of its Motion To Strike Declaration of Nancy H. Kichak,

BlueLincs respectfully refers the Court to BlueLincs Memorandum of Law in Support of Motion To Strike Declaration of Nancy H. Kichak that is filed contemporaneously herewith. WHEREFORE, Plaintiff, GHS Health Maintenance Organization, Inc. d/b/a BlueLincs HMO, requests that its Motion to Strike Declaration of Nancy H. Kichak be granted.

Respectfully submitted,

Dated: March 31, 2006 _s/Daniel B. Abrahams________ Daniel B. Abrahams EPSTEIN BECKER & GREEN, P.C. 1227 25th Street, N.W. Suite 700 Washington D.C. 20037 PHONE: (202) 861-0900 FAX: (202) 296-2882 [email protected] Of Counsel: Constance A. Wilkinson Michael D. Maloney EPSTEIN BECKER & GREEN, P.C. 1227 25th Street, N.W. Suite 700 Washington D.C. 20037 PHONE: (202) 861-0900 FAX: (202) 296-2882

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CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on this 31st day of March, 2006, I caused to be electronically served a copy of BlueLincs Motion to Strike Declaration of Nancy H. Kichak on the following: Michael S. Nadel McDermott Will & Emery LLP 600 Thirteenth Street, N.W. Washington, D.C. 20005 [email protected]

Jane W. Vanneman, Esq. Senior Trial Counsel Commercial Litigation Branch Department of Justice ATTN: Classification Unit, 8th Floor 1100 L Street, NW Washington, DC 20530 [email protected]

_s/Daniel B. Abrahams________

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Case 1:01-cv-00517-MBH

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United States Court of Federal Claims

GHS Health Maintenance Organization, Inc., d/b/a BlueLincs HMO, Texas Health Choice, L.C., and Scott & White Health Plan, Plaintiffs, v. United States, Defendant.

No. 01-517C Judge Marian Blank Horn

BLUELINCS MEMORANDUM OF LAW IN SUPPORT OF MOTION TO STRIKE DECLARATION OF NANCY H. KICHAK Plaintiff GHS Health Maintenance Organization, Inc. d/b/a BlueLincs HMO ("BlueLincs"), by counsel, submits the following Memorandum of Law in Support of Motion To Strike Declaration of Nancy H. Kichak. Plaintiffs, Scott & White Health Plan and Texas Health Choice, L.C., have filed a Motion to Strike the Declaration of Nancy Kichak and References Thereto in Defendant's Memoranda ("Scott & White Motion to Strike") on various grounds. BlueLincs adopts and incorporates by reference the grounds set forth in the Scott & White Motion to Strike as if fully set forth herein. BlueLincs also asserts that the Declaration, or portions thereof, should be stricken because it violates RCFC 56(e). That rule states: Supporting and opposing affidavits shall be made on personal knowledge [and] shall set forth such facts as would be admissible in evidence. RCFC 56(e). See also Adarbe v. U.S., 58 Fed.Cl. 707, 711 n. 1 (2003).

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The Declaration of Nancy H. Kichak (the "Kichak Declaration") violates this provision. The Kichak Declaration states: "I, Nancy H. Kichak, declare as follows, based on personal knowledge and information available to me as a result of my official duties." Kichak

Declaration at p. 1 (emphasis added). While the declaration initially purports to be based on personal knowledge, it then goes on to also say it is based on information available. It is not clear if this other information is hearsay or otherwise inadmissible into evidence and it is not possible to segregate the assertions in the declaration into the admissible portions. Thus, on its face, the Kichak Declaration violates Rule 56(e) because the Rule does not permit an affiant to testify to matters that are based on information available to her (such as that told her by third parties) as a result of her official duties. In addition, as noted in the Scott & White Motion to Strike, the Kichak Declaration contains "argument" that would not be admissible in evidence. For the reasons set forth in the Scott & White Motion to Strike and for these additional reasons, the Kichak Declaration should be stricken from the record. Respectfully submitted,

Dated: March 31, 2006 _s/Daniel B. Abrahams________ Daniel B. Abrahams EPSTEIN BECKER & GREEN, P.C. 1227 25th Street, N.W. Suite 700 Washington D.C. 20037 PHONE: (202) 861-0900 FAX: (202) 296-2882 [email protected]

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Of Counsel: Constance A. Wilkinson Michael D. Maloney EPSTEIN BECKER & GREEN, P.C. 1227 25th Street, N.W. Suite 700 Washington D.C. 20037 PHONE: (202) 861-0900 FAX: (202) 296-2882 CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on this 31st day of March, 2006, I caused to electronically served a copy of BlueLincs Memorandum of Law in Support of Motion to Strike Declaration of Nancy H. Kichak on the following: Michael S. Nadel McDermott Will & Emery LLP 600 Thirteenth Street, N.W. Washington, D.C. 20005 [email protected]

Jane W. Vanneman, Esq. Senior Trial Counsel Commercial Litigation Branch Department of Justice ATTN: Classification Unit, 8th Floor 1100 L Street, NW Washington, DC 20530 [email protected]

_s/Daniel B. Abrahams________

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