The last time we heard about Susan Thayer’s whistleblower suit against Planned Parenthood, a federal district court in Iowa had thrown it out because she hadn’t provided any specific examples of fraud and therefore had failed Rule 9(b)’s requirement to plead “with particularity.” That was a relief to Planned Parenthood because Susan had been the manager of two different Planned Parenthood centers in Iowa, and hell hath no fury like a scorned insider.
Susan didn’t give up. She appealed to the Eighth Circuit, and she won—at least on that portion of the case. The Eighth Circuit ruled on August 29 that the district court was wrong to dismiss her case because just she hadn’t provided specific examples of fraud.
The appellate court distinguished Susan’s case from its own earlier decision dismissing an anesthesiologist’s case against a hospital because he failed to provide specific examples of fraud. The distinguishing feature? The anesthesiologist didn’t have access to the hospital’s billing office; so he must have been guessing about the billing practices. Susan, on the other hand, knew all about Planned Parenthood’s billing practices. After all, she had been manager of two of its centers. So her allegations have more weight than mere guesses do.
But isn’t that backwards? Shouldn’t Susan’s intimate, inside knowledge hold her to a higher rather than lower standard of specificity when she alleges fraudulent billing? If an anesthesiologist, who’s never been inside the billing office, is required to provide specific examples of fraudulent bills, why shouldn’t a former manager, who was probably in the billing office every day, be required to do at least as much?
The case is Thayer v. Planned Parenthood, No. 13-1654, 2014 BL 239809 (8th Cir. 2014).
