Free Notice (Other) - District Court of Federal Claims - federal

Case 1:03-cv-00289-FMA

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS UNITED MEDICAL SUPPLY COMPANY, INC., ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. )

No. 03-289C (Judge Allegra)

DEFENDANT'S NOTICE OF FILING AFFIDAVITS Pursuant to the Court's order dated April 26, 2006, as amended, defendant, the United States, respectfully submits the attached affidavits concerning the Government's search for, and handling of, potentially relevant documents at each of the ordering facilities under the prime vendor contract. We emphasize the following points and developments: 1. Fifty-six boxes of responsive purchasing records from Brooke Army Medical Center in San Antonio, Texas, covering the entire contract performance period, which the Government advised the Court in October 2005 had been inadvertently destroyed, were rediscovered (intact) in June 2006 and forwarded to undersigned counsel. See Thompson Aff. ¶ 4. 2. On June 5, 2006, the Government provided plaintiff's counsel with the final batch of electronic records of credit card purchases of medical/surgical supplies by each of the military ordering facilities during the contract term, which were obtained by personnel from the Department of Defense's Office of Inspector General ("OIG"), as a partial substitute for any missing original records. On June 7, 2006, we provided plaintiff's counsel a seven-page, singlespaced document prepared by the OIG, explaining how the credit card information was extracted from records of the Defense Manpower Data Center in Seaside, California; all of the column headings in the spreadsheets; and other matters relating to the credit card information.

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3. Among the Government's affiants is Anthony Amendolia, a case manager at the Defense Supply Center Philadelphia, which awarded the contract. Appended to his affidavit are copies of electronic mail messages that he exchanged in October and November 2002 with contacts at the ordering facilities which were still in existence at that time, concerning the need to preserve documents potentially relevant to this case, including credit card records. 4. Affiants from many ordering locations, however, were unaware of, or cannot now recall receiving, the notifications from Mr. Amendolia in 2002. See, e.g., Steele Aff. ¶ 3. Moreover, although the medical supply officer at Raymond W. Bliss Army Health Center at Fort Huachuca in Phoenix, Arizona, an outpatient-only facility, advised Mr. Amendolia in 2002 that his office possessed and would retain relevant records, see Amendolia Aff. Tab 9, that facility apparently retained no institutional memory of those communications after the medical supply officer departed and is believed to have inadvertently destroyed relevant records, as a result. See Songer Aff. ¶¶ 8-11. Further, an affiant states that the Air Force Medical Logistics Office (now known as Air Force Medical War Reserve Materiel) did not receive the messages from Mr. Amendolia in 2002, because its e-mail server was not yet in service. Love Aff. ¶ 5. 5. Although the affiant from the Naval Hospital, Corpus Christi (Texas), Maria Trevino, does not recall being contacted in connection with this case prior to May 10, 2006, she appears as a recipient of the e-mails sent by Mr. Amendolia in 2002 (albeit with an e-mail "alias" of "Marie Trevino"); and a Department of Justice paralegal, Peter Brown, stated in an affidavit that we filed with the Court on October 24, 2005 that he contacted Ms. Trevino concerning credit card records in March 2005 and was told none existed. (We have reconfirmed this from Mr. Brown's notes.)

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6. Three of the 20 military bases at which ordering facilities were located no longer exist. Reese Air Force Base was closed in 1997. Any potentially relevant evidence would have been destroyed in 1998, approximately four years before plaintiff filed its claim. See Terry Aff. ¶ 3. Naval Air Station Dallas was decommissioned in September 1998. Almost certainly, no relevant records existed for that location when plaintiff filed its claim in 2002, although the Navy has been unable to locate anyone who can say for certain. See Hatch Aff. Kelly Air Force Base was "realigned" and became part of Lackland Air Force Base in July 2001, approximately one year before plaintiff's certified claim. The Government has so far been unable to determine what happened to any potentially relevant records from Kelly. See Terra Aff. ¶¶ 6-7. 7. Affiants from most of the existing Air Force Base ordering facilities (which are primarily clinics and smaller outpatient hospitals) state that, at the time those facilities received notice of plaintiff's claim in the second half of 2002, their retention period for credit card records was one year after final payment. See, e.g., Baca Aff. ¶ 12. Accordingly, the Air Force locations appear to have possessed relatively few, if any, relevant credit card records when they learned of the claim, and few such records are likely to have been destroyed thereafter. This is consistent with what Mr. Amendolia advised Mr. Brown in March 2005. See Brown 10/24/05 Aff. ¶ 2. However, some Air Force medical facilities did find responsive documents in the course of preparing these affidavits. See, e.g., Sabroski Aff. ¶ 6 (credit card records from March 1999 through May 2001); Tawil Aff. ¶ 6. Far more regrettably, Goodfellow Air Force Base reports that it shredded credit card records predating October 1, 1999, as recently as 2006. Yuhas Aff. ¶¶ 10-11. These facts indicate that defendant's search in 2005 was not as exhaustive, at least with

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respect to the Air Force facilities, as undersigned counsel had instructed, and had believed it was. We emphatically regret this miscommunication and any resulting loss of evidence. 8. Finally, the Government is also apparently responsible for the destruction of a relatively small amount of credit card records at William Beaumont Army Medical Center (which is associated with Fort Bliss and is also the in-patient facility serving Fort Huachuca) in El Paso, Texas. An affiant states that William Beaumont still possessed some credit card records (but very few contract records) when it became aware of the claim in late 2002, but that, in March 2003, when a Department of Justice attorney visited the site, the attorney did not instruct the facility to retain the records, which were later destroyed in accordance with the Army's thenapplicable two-year retention policy. See Nelson Aff. However, the supervisory supply specialist at William Beaumont also states: After United Medical closed the El Paso warehouse and transferred operations to the Fort Worth warehouse [in July 2000], WBAMC continued to order supplies from United Medical through the Fort Worth service representative, however[,] most orders were rejected or canceled by United Medical. By October 2000, our off-site service representative was no longer available and United Medical ceased doing business with WBAMC altogether. Consequently, by the time we received word of the lawsuit most records, including credit card records, had been destroyed. Molinar Aff. ¶ 8. Respectfully submitted, PETER D. KEISLER Assistant Attorney General s/David M. Cohen DAVID M. COHEN Director 4

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OF COUNSEL: KATHLEEN HALLAM Chief Trial Attorney Defense Supply Center Philadelphia

s/Kyle Chadwick KYLE CHADWICK Senior Trial Counsel Commercial Litigation Branch Department of Justice Attn: Classification, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 305-7562 Attorneys for Defendant

July 5, 2006

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CERTIFICATE OF FILING I certify that on July 5, 2006, the attached was filed electronically. I understand that service is complete upon filing and parties and others may access this filing through the Court's electronic system.

s/Kyle Chadwick

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