Professional Documents
Culture Documents
COMES NOW the Plaintiffs, Robert Michael Davidson and Vanessa Elaine Komar, husband and
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wife, representing themselves, pro se, state and allege as follows:
3 I. JURISDICTION AND VENUE
1. This Court has jurisdiction of the claim herein pursuant to 18 U.S.C.A. Section 1964 (c), 28 U.S.C.A.
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Section 1331, 28 U.S.C.A. Section 1367, and 28 U.S.C.A. Section 1332. This civil action arises under the laws
5 of the United States. Plaintiffs’ rights have been violated under Title IX of the Organized Crime Control Act of
1970, as amended, 18 U.S.C.A. Subsection 1961 et seq. The amount in controversy requirement is exceeded,
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by Plaintiffs (Robert M. Davidson and Vanessa E. Komar, husband and wife) jointly having sustained actual
7 damages (injury) to their business and property that exceeds, exclusive of interest and costs, the sum of
$5,000,000.00.
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2. Venue herein is proper under 18 U.S.C.A. Section 1965(a), 18 U.S.C.A. Section 1965(b), 18 U.S.C.A.
9 Section 1965(d), 28 U.S.C.A. Section 1391 (b), 28 U.S.C.A. Section 1391 (c), and the Texas Long-arm statute.
10 Venue herein is proper under 18 U.S.C.A. Section 1965(a) for at least one defendant. Venue is proper in this
Court for all “other” RICO defendants under 18 U.S.C.A. Section 1965(b), because the “ends of justice”
11 require it. The “ends of justice” apply because there is no other forum which is proper as to all Defendants
12 under 18 U.S.C. Section 1965(a). In this case, 18 U.S.C. Section 1965(b) is applicable because venue is not
improper as to all the Defendants under 18 U.S.C. Section 1965(a). Defendant Gambro Healthcare Inc is
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regularly conducting business of substantial and continuous character within the district under the names DVA
14 Renal Healthcare Inc. and DVA Healthcare Renal Inc. Defendant DVA Renal Healthcare Inc (a corporation
existing under and by virtue of the laws of the State of Tennessee) is a wholly-owned subsidiary of Davita Inc.
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Defendant DVA Renal Healthcare Inc is regularly conducting business of substantial and continuous character
16 within the district. Davita Inc is a corporation existing under and by virtue of the laws of the State of Delaware.
Defendant Davita Inc is regularly conducting business of substantial and continuous character within the
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district. Nationwide service under 18 U.S.C.A. Section 1965(b) may be imposed on Defendant Jay Grossman,
18 Defendant Eudice Grossman, Defendant Gayle F. Petrillo, Defendant Charles W. Ott, Defendant Joanne C.
Wray, Defendant Kent W. Thiry, Defendant Joseph C. Mello, Defendant Anthony P. Tartaglia, Defendant
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Michael J. Meehan, Defendant Bruce R. Heurlin, Defendant Albany Medical College, Defendant Vivra
20 Holdings Inc, and Defendant Sepracor Inc, because this Court has personal jurisdiction over Defendant
Gambro Healthcare Inc, Defendant DVA Renal Healthcare Inc, Defendant Davita Inc, and Defendant Sepracor
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Inc, under 18 U.S.C.A. Section 1965(a), and the “ends of justice” require nationwide service of process over
22 nonresident defendants. The ends of justice require nationwide service in this lawsuit because there is a
nationwide (literally coast to coast) conspiracy to “conceal on-going, parallel schemes of serial related clinical
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research frauds and insurance frauds” that can only be challenged in one suit in which all defendants are
24 present. By the very nature of their business (contract clinical research and specialty medical practice),
Defendants have willfully injected themselves, their business, and their conduct, into the stream of interstate
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commerce. Defendants have “nationwide contacts” and Defendants have conspired to defraud the United
10 Arizona. Defendant Charles W. Ott (“Ott”), is a citizen of the United States, and is a resident of the State of
California. Defendant Joanne C. Wray (formerly known as Joanne C. Siegel), is a citizen of the United States,
11 and is a resident of the State of California. Defendant Anthony P. Tartaglia (“Tartaglia”), is a citizen of the
12 United States, and is a resident of the State of New York. Defendant Kent J. Thiry (“Thiry”), is a citizen of the
United States, and is a resident of the State of California. Defendant Joseph C. Mello (“Mello”), is a citizen of
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the United States, and is a resident of the State of California. Defendant Michael J. Meehan (“Meehan”), is a
14 citizen of the United States, and is a resident of the State of Arizona. Defendant Bruce R. Heurlin, (“Heurlin”)
is a citizen of the United States, and is a resident of the State of Arizona. Defendant Vivra Holdings Inc, is a
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corporation existing under and by virtue of the laws of the State of Delaware with its office and principal place
16 of business located at 1350 Old Bayshore Hwy, Ste 777, Burlingame, CA 94010. Defendant Gambro
Healthcare Inc (“Gambro”), is a corporation existing under and by virtue of the laws of the State of Tennessee
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with its office and principal place of business located at 1919 Charlotte Avenue, Nashville, TN 37203.
18 Defendant Gambro Healthcare Inc is regularly conducting business of substantial and continuous character
within the district under the name DVA Renal Healthcare Inc. and DVA Healthcare Renal Inc. Defendant
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DVA Renal Healthcare Inc (“DVA Renal”), is a corporation existing under and by virtue of the laws of the
20 State of Tennessee with its office and principal place of business located at 10810 W. Collins Avenue,
Lakewood, CO 80215. Defendant DVA Renal Healthcare Inc is regularly conducting business of substantial
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and continuous character within the district and maintains a registered agent authorized to accept service at
22 701 Brazos Street, Suite 1050, Austin, TX. 78701. Defendant DVA Renal Healthcare Inc is a wholly-owned
subsidiary of Davita Inc. Defendant Davita Inc (“Davita”) is a corporation existing under and by virtue of the
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laws of the State of Delaware with its office and principal place of business located at 601 Hawaii Street, El
24 Segundo, CA 90245. Defendant Davita Inc is regularly conducting business of substantial and continuous
character within the district. Defendant Albany Medical College (“AMC”), is a corporation existing under and
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by virtue of the laws of the State of New York with its office and principal place of business located in 43 New
10 subinvestigators in multiple states (including Plaintiff Robert M. Davidson, M.D., in Arizona and
Texas), (f) to defraud clinical research coordinators in multiple states, and (g) to defraud the United
11 States.
12 5.2 These illegitimate business practices included an enterprise-wide pattern of (a) fraudulent omissions
and misrepresentations in the hiring and retention of key “Vivra” employees (including Plaintiff
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Robert M. Davidson, M.D.), (b) fraudulent omissions and misrepresentations to prospective and
14 current clinical research subjects, (c) fraudulent omissions and misrepresentations to specialty
practice patients, (d) fraudulent omissions and misrepresentations to federal regulators [acting in their
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“official” capacities], (e) fraudulent omissions and misrepresentations to 3rd party insurance payors
16 [both commercial and federal], (f) obstructions of justice, (g) Hobbs Act (extortion under RICO
statute) violations, (h) Travel Act violations, (i) intentional endangerments, and (j) deaths.
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5.3 These illegitimate business practices deprived certain “Vivra” employees (including Plaintiff Robert
18 M. Davidson, M.D.) of their right to the good and honest services of Defendants, and deprived
certain “Vivra” employees (including Robert M. Davidson, M.D.) of their right freely to conduct
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one’s lawful business. These illegitimate business practices deprived certain “Vivra” employees
20 (including Robert M. Davidson, M.D.) of property (inappropriate study subject enrollments), with
their consent, induced by Defendant Jay Grossman’s wrongful use of actual or threatened force,
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violence, or fear, or under color of official right. These illegitimate business practices were a regular
22 part of the “Vivra” enterprise’s regular way of doing business. While the “Vivra” association-in-fact
enterprise had the appearance of legitimacy (and indeed may have had some legitimate functions and
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some legitimate business practices), illegitimate business practices were a regular part of the “Vivra”
24 enterprise’s regular way of doing business.
5.4 Defendant Vivra Holdings Inc, Defendant Gambro Healthcare Inc, and Defendant DVA Renal
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Healthcare Inc have serially abused the corporate form, by means of signing and filing, or causing to
10 position of Respiratory Sales Specialist/Houston, TX. By information and belief, Sepracor Inc
maintains a U.S.-based, 1,250-person primary care and specialty-oriented sales force to further its
11 commercialization efforts. As recent as January 23, 2007, Xopenex (levalbuterol) Inhalation Solution
12 was listed on the Health and Human Services Commission Texas Medicaid Preferred Drug List
(PDL) and Prior Authorization (PA) Criteria. The Comptroller of Public Accounts of the State of
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Texas certified that on March 21, 2007, Sepracor Inc (Taxpayer # 12225365878) was in good
14 standing. Sepracor Inc is authorized to do business in Texas with the Secretary of State of Texas.
5.6 Plaintiffs have firmly established a nexus between misconduct of Gambro Healthcare Inc and the
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forum state of Texas. See the “Settlement Agreement and Release” in the case known to the Texas
16 Attorney General’s Office as “Gambro Healthcare Inc” MF 052976-01-7, GBL 1204 040. Pages 3 to
7 of 20 of the “Settlement Agreement and Release” detail the allegations of the State of Texas with
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respect to conduct of Gambro Healthcare Inc in the forum state of Texas. See the federal docket for
18 U.S. District Court Eastern District of Missouri Case # 4:01-CV-00553-DDN captioned “Bander v.
Gambro Healthcare U.S., Inc”. See the Order (Document 47) filed 12/02/2004, of David D. Noce,
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U.S. Magistrate Judge, the U.S. District Court Case # 4:01CV00553DDN, captioned “Bander v.
20 Gambro Healthcare U.S., Inc”. Gambro and Davita provide for-profit out-patient in-facility
hemodialysis for Medicare recipients in the forum State of Texas. Gambro and Davita paid 2006
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property taxes on business personal property and real property within Harris County, TX. Gambro
22 has been a contracted provider for hemodialysis services to Texas residents since at least as early as
2000. Gambro and Davita have been certified by the U.S. Department of Health & Human Services
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as hemodialysis facilities. Gambro and Davita currently own for-profit in center hemodialysis
24 facilities in Arlington, TX, Dallas, TX, Houston, TX, and Katy, TX. As of December 31, 2006,
Davita owns 111 out-patient dialysis centers in the State of Texas. As of December 31, 2006, 58%
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of Davita revenues were from Medicare and Medicare assigned HMO plans, 4% from Medicaid, and
10 Medical College, recklessly tolerated, commanded, and ratified, the willful misconduct of Kent J.
Thiry, Joseph C. Mello, Leanne M. Zumwalt, Timothy G. Wighton, Anthony P. Tartaglia, Charles
11 W. Ott, and others to be determined at trial. Plaintiffs allege a pattern of reckless corporate behavior.
12 Plaintiffs have linked that behavior to specific culpable individuals. See ¶ 8.18, ¶ 8.20, and ¶ 8.22 to
this Amended Complaint.
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5.10 Kent J. Thiry, Joseph C. Mello, Leanne M. Zumwalt, Timothy G. Wighton, Anthony P. Tartaglia,
14 Charles W. Ott, and others to be determined at trial, either individually or severally, possessed the
requisite culpable state of mind upon which to base liability of the corporate parties (Vivra Holdings
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Inc, Gambro Healthcare Inc, Davita Inc, DVA Renal Healthcare Inc, Sepracor Inc, and Albany
16 Medical College) to this lawsuit. They all had actual knowledge that Jay Grossman had been
accused of violence. They all had actual knowledge that Jay Grossman had been accused of clinical
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research fraud and violence, in both Albany, NY and in Tucson, AZ. They all had actual knowledge
18 of the lawsuit in Albany, NY (Albany County Case # 2960-91) and the sworn affidavit by Richard
Ball, M.D., et al. in Albany County Case # 2960-91. Charles W. Ott had actual knowledge that
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Joanne C. Wray (Siegel), R.N., was William H. Ziering’s former research nurse in Fresno, CA prior
20 to becoming Jay Grossman’s research nurse in Tucson, AZ. Charles W. Ott had actual knowledge of
William H. Ziering’s criminal mail fraud conviction in connection with his clinical research practice
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in Fresno, CA. Albany Medical College, Anthony P. Tartaglia, and Sepracor Inc, had actual
22 knowledge that Jay Grossman had been accused of clinical research fraud and violence, and actual
knowledge that Thomas B. Edwards had been disqualified for clinical research fraud at Albany
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Medical College by the FDA. Albany Medical College and Anthony P. Tartaglia knew that Albany
24 Medical College’s considerable revenue from clinical research studies conducted at Albany Medical
College would potentially suffer if Jay Grossman and Thomas B. Edwards were to continue their
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clinical research practices at Albany Medical College, after allegations of Jay Grossman’s research
10 Albany Medical College, Thomas B. Edwards, and Sepracor Inc). See ¶s 8.94 - 8.104 to this
Amended Complaint.
11 5.11 Kent J. Thiry, Joseph C. Mello, Leanne M. Zumwalt, Timothy G. Wighton, Anthony P. Tartaglia,
12 Charles W. Ott, and others to be determined at trial, acted either individually or in concert with
others, made or caused to be made certain misrepresentations or omissions, when they knew the
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information was false or had a duty to disclose the information. See ¶ 8.18, ¶ 8.20, and ¶ 8.22 to this
14 Amended Complaint.
5.12 “Vivra” was doing business in nearly every state in the country, as part of a conglomerate of
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corporate entities, the senior management of which was located in San Mateo, CA, Plantation, FL,
16 Norcross, GA, Louisville, KY, Marlborough, MA, and several other locations, prior to the Chapter
11 bankruptcy filing of the “Magellan defendants” that stayed the Plaintiffs’ original federal RICO
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action in Tucson, Arizona (Robert M. Davidson, et al v. Vivra Inc, et al, in U.S. District Court
18 Arizona, Case # CV-03-110-TUC-FRZ, filed on February 19, 2003) .
5.13 The acts and events out of which this cause of action arises occurred in Albany, NY, Tucson, AZ,
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Longview, TX, Kilgore, TX, Tyler, TX, Dallas, TX, Arlington, TX, Houston, TX, Katy, TX, Fort
20 Worth, TX, San Antonio, TX, Austin, TX, El Segundo, CA, Norcross, GA, Louisville, KY, Fresno,
CA, San Mateo, CA, Torrance, CA, Deland, FL, Fort Lauderdale, FL, Plantation, FL, Lakewood,
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CO, Nashville, TN, Brentwood, TN, Denver, CO, Marlborough, MA, Rockville, MD, and other
22 locations presently unknown to the Plaintiffs.
5.14 Defendants’ dealings with the FDA are prompted by the FDCA (Food Drug and Cosmetic Act) and
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by the PDUFA (Prescription Drug User Fee Act). The fruit of Defendants’ misconduct has resulted in
24 approvals by the FDA of numerous New Drug Applications for their corporate pharmaceutical
sponsors, and personal and corporate financial gain for the enterprise. NDA # 20-837, levoalbuterol
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HCl inhalational solution, gained FDA approval on 3/25/99 (review was posted on 6/20/01).
10 and others, to be determined at trial. Plaintiffs have jointly suffered direct (“by reason of”)
enterprise injury, conspiracy injury, predicate act injury, and substantive RICO injury, to their
11 business and property. Plaintiffs allege direct enterprise injury to their business and property due to
12 the conspirators adoption of a practice and pattern of fraudulent inducement and retention of
contracts as a regular part of the usual way in which the enterprise conducted its affairs. The
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“Vivra” association-in-fact enterprise adopted, as a regular way of doing the enterprise’s business,
14 the routine use of fraudulent hiring and retention inducements in order that they might induce the
employment of highly qualified individuals (including Robert M. Davidson, M.D.) to fill certain key
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positions. Plaintiffs allege that they have suffered distinct RICO injuries, i.e. that Plaintiffs’ injuries
16 derive from the pattern of racketeering activity which violates 18 U.S.C. Section 1962.
5.16 Defendants to this lawsuit have demonstrated a pattern of placing or causing to be placed “defective
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products” into the stream of interstate commerce. By information and belief, Albany Medical
18 College, Anthony P. Tartaglia, Sepracor Inc, and others to be determined at trial, acting in concert
and by agreement to conceal fraud, “exported” Jay Grossman from Albany, NY to Tucson, AZ in the
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early 1990’s. By information and belief, Albany Medical College, Anthony P. Tartaglia, Sepracor
20 Inc, and others to be determined at trial, acting in concert and by agreement to conceal fraud,
“exported” Thomas B. Edwards from Albany, NY to Pittsfield, MA in the late 1990’s. By
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information and belief, William H. Ziering, Jay Grossman, and others to be determined at trial,
22 acting in concert and by agreement to conceal fraud, “exported” Joanne C. Wray (formerly known as
Joanne C. Siegel) from Fresno, CA to Tucson, AZ in the late 1990’s. Albany Medical College,
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Anthony P. Tartaglia, Sepracor Inc, and others to be determined at trial, had actual knowledge that
24 the FDA’s approval (expedited under color of the PDUFA) for marketing of NDA #20-837,
levoalbuterol HCl inhalational solution, that gained FDA approval on 3/25/99 (review was posted on
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6/20/01), was at least in part, based upon fraudulent clinical research by Thomas B. Edwards,
10 Charles W. Ott, and Leanne M. Zumwalt, remain associated-in-fact. This longstanding association is
not coincidental, it is willful.
11 COUNT ONE
12 6. Defendants, Jay Grossman, Eudice Grossman, Kent J. Thiry, Joseph C. Mello, Vivra Holdings Inc, DVA
Renal Healthcare Inc, Gambro Healthcare Inc, and Davita Inc, as persons within the meaning of 18 U.S.C.A.
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Section 1961(3), through a pattern of racketeering activity, acquired and/or maintained, directly or indirectly,
14 an interest in and control of said “Vivra” enterprise in violation of 18 U.S.C.A. Section 1962(b).
Plaintiffs’ injury under COUNT ONE traces directly to the Physician Employment Agreement
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entered into as of April 22, 1997, by and between Vivra Specialty Partners of Arizona P.C. and Jay Grossman,
16 M.D. Plaintiffs’ injury under COUNT ONE also traces directly to SEC filings for Vivra Inc, that include SC 14
D1, filed on 05/09/1997, that details the Proposed Merger between Vivra Inc and Gambro Healthcare Inc, that
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took place on or about June 1997. Page 31 of SC 14 D1 describes Conduct of Specialty Business under the
18 Merger Agreement. A summary of the Specialty Merger Agreement is found at pages 36 and 37. Page 319
provides details of the Specialty Merger Agreement. Employee Stock Options are described at pages 33 and 34
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of SC 14 D1. By information and belief, Kent J. Thiry and Joseph C. Mello are thought to currently possess
20 substantial stock ownership in Davita Inc. The question of whether Vivra Holdings Inc actually did “spin off”
its asthma/allergy business to its shareholders in the form of a stock dividend on December 1, 1998, as was
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sworn to by Michael P. McQuillen, is moot relative to the question of Plaintiffs’ injury under COUNT ONE.
22 Plaintiffs incorporate here by reference ¶ 8.14 and ¶ 8.28 below.
COUNT TWO
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7. Defendants, Jay Grossman, Eudice Grossman, Gayle F. Petrillo, Charles W. Ott, Kent J. Thiry, Joseph C.
24 Mello, Joanne C. Wray, Anthony P. Tartaglia, Michael J. Meehan, Bruce R. Heurlin, Vivra Holdings Inc,
Gambro Healthcare Inc, DVA Renal Healthcare Inc, Davita Inc, Albany Medical College, and Sepracor Inc, as
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persons within the meaning of 18 U.S.C.A. Section 1961(3), and as persons employed by or associated with
10 4/28-30/99.”
8.3. Neither Gayle F. Petrillo nor Jay Grossman wanted Robert Davidson to be present at the Vivra
11 Tucson facility during the scheduled inspection of 4/28-30/99 for fear he would “blow the whistle on
12 them”.
8.4. Gayle F. Petrillo and Jay Grossman agreed to a scheme by which they would insure that Robert
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Davidson, M.D. was not present at the Vivra Tucson facility. They agreed to give him two days off
14 beginning on April 28, 1999.
8.5. Charles W. Ott, acting by agreement and in concert with others, bribed Joanne C. Wray, R.N. by
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directly or indirectly providing her with pro bono legal “services” in “defense” of her nursing license
16 after Jay Grossman was terminated “for cause” by Vivra Inc on July 30, 1999. Joanne C. Wray, R.N.
accepted the bribe from Charles W. Ott and others to be determined at trial. Both Charles W. Ott and
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Joanne C. Wray, R.N. wished to conceal Jay Grossman’s serial insurance and research frauds, so as
18 not to risk discovery by federal regulators of their own complicity in Jay Grossman’s serial insurance
and research frauds at the “Vivra” Tucson, AZ facility between on or about April 22, 1997, to on or
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about May 12, 1999. Charles W. Ott, Joanne C. Wray, Gayle F. Petrillo, Kent J. Thiry, Joseph C.
20 Mello, Leanne M. Zumwalt, Timothy G. Wighton, Eudice Grossman, and Jay Grossman, had a
“meeting of the minds”, wherein they all agreed to commit overt acts to conceal serial related
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insurance and research frauds and obstruct justice at the “Vivra” Tucson, AZ facility, motivated by
22 personal and corporate financial gain.
8.6. Joanne C. Wray, R.N. admitted to her actual involvement in serial upcoding and serial unnecessary
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procedures by Jay Grossman, billed or caused to be billed by “Vivra” to 3rd party insurance payers,
24 that made readily foreseeable and necessary use of interstate mail and wire facilities to facilitate their
scheme to defraud, at the “Vivra” Tucson, AZ location between on or about April 22, 1997, to on or
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about October 1, 1999. By information and belief, “Vivra” is thought to have continued to bill 3rd
12 on or about April 22, 1997, to on or about May 12, 1999. These serial insurance frauds and research
frauds were related and posed a definite threat of repetition (open-ended continuity). A “study buddy”
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is typically a former specialty practice patient who is enrolled serially by Jay Grossman in one
14 clinical research study after another. Between studies they became specialty practice patients again.
Cross-over was commonplace.
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8.11. Charles W. Ott was always very much aware of the reason why Jay Grossman attacked Joanne C.
16 Wray’s nursing license. Charles W. Ott knew that the reason was to shift blame for insurance and
research fraud from Jay Grossman to Joanne C. Wray.
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8.12. Both Jay Grossman’s attack upon Joanne C. Wray’s nursing license and Charles W. Ott’s “defense”
18 on or about October 1, 1999, of her nursing license were calculated overt acts in furtherance of a
conspiracy to conceal on-going, parallel schemes of serial related clinical research frauds and
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insurance frauds. The object was to shift blame for insurance and research fraud from Jay Grossman
20 to Joanne C. Wray. The object was to exert control over Joanne C. Wray and thereby conceal
insurance and research fraud.
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8.13. Jay Grossman, Charles W. Ott, Gayle F. Petrillo, Eudice Grossman, and Timothy G. Wighton, agreed
22 that Jay Grossman would assault Robert Davidson in the workplace on May 11, 1999.
8.14. This assault and battery in the workplace on May 11, 1999, was an unsuccessful attempt by Jay
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Grossman and others to provoke Robert Davidson into defending himself physically. This
24 unwitnessed assault and battery was a carefully orchestrated attempt by Jay Grossman, and others,
acting by agreement and in concert, to shift blame for insurance and research fraud from Jay
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Grossman to Robert Davidson. Their contingency plan (should their attempt fail) called for Jay
10 8.15. These overt acts (assault and battery) by Jay Grossman represent a physical “attack [upon] the
messenger” (Robert Davidson). These overt acts were intended to provoke and induce fear in Robert
11 Davidson. These acts succeeded in inducing fear in Robert Davidson.
12 8.16. Jay Grossman, Charles W. Ott, Gayle F. Petrillo, Eudice Grossman, and Timothy G. Wighton, agreed
that Jay Grossman would attack [file a complaint against Joanne C. Wray (formerly Siegel) with
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Arizona state board of nursing] Joanne C. Wray’s nursing license. The object was to thereby
14 economically cripple Ms Wray, and thereby increase her dependency upon “Vivra” for her
professional livelihood. The object was to conceal insurance and research fraud. The object was to
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shift blame for insurance and research fraud from Jay Grossman to Joanne C. Wray.
16 8.17. Jay Grossman, Charles W. Ott, Gayle F. Petrillo, Eudice Grossman, and Timothy G. Wighton, agreed
that Charles W. Ott would bribe Joanne C. Wray, by providing her with “free” legal representation as
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long as she remained an employee of “Vivra”. The object was to prevent Ms. Wray from seeking a
18 legal remedy against Jay Grossman and “Vivra”. The object was also to prevent Ms Wray from
“blowing the whistle” on Jay Grossman’s serial extortions, insurance frauds, and research frauds, at
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the “Vivra” Tucson, AZ, facility, from on or about April 22, 1997, to on or about May 12, 1999.
20 Charles W. Ott, Jay Grossman, Eudice Grossman, Gayle F. Petrillo, Timothy G. Wighton, and others,
knew that Joanne C. Wray, R.N., was Dr William H. Ziering’s former research nurse in Fresno, CA
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prior to becoming Jay Grossman’s research nurse in Tucson, AZ. Defendants to this lawsuit are
22 collaterally estopped from denying the criminal conviction, and prison sentence for clinical
research fraud, specifically mail fraud and aiding and abetting, of William H. Ziering, M.D., on
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June 3, 2002. It was not coincidental that Joanne C. Wray, R.N. was Dr Ziering’s research nurse in
24 Fresno, CA, prior to her becoming Jay Grossman’s research nurse in Tucson, AZ. Charles W. Ott, Jay
Grossman, Eudice Grossman, Gayle F. Petrillo, Timothy G. Wighton, and others, used their
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10 their agreement to conceal on-going, parallel, schemes of serial related clinical research frauds and
insurance frauds in Tucson, AZ. They were motivated by personal and corporate financial gain. These
11 “lulling” inducements were willfully and wantonly directed at Robert M. Davidson, M.D. by Kent J.
12 Thiry, Joseph C. Mello, and Charles W. Ott, acting by agreement and in concert, to improperly lessen
Plaintiffs’ apprehension and delay Plaintiffs’ seeking a legal remedy. By information and belief,
13
Charles W. Ott was the General Counsel of Vivra Inc and Vivra Asthma & Allergy Inc, from June
14 1997 through December 1999. By information and belief, Joseph C. Mello served as president and
chief executive officer of Vivra Asthma & Allergy Inc, from April 1998 until June 2000. In June
15
2000, he became Chief Operating Officer of Davita Inc. These officers had motive (personal and
16 corporate financial gain), means, and opportunity to commit these frauds. These individuals had
access to information concerning Jay Grossman’s long history of malfeasance and these individuals
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knew that Jay Grossman was engaged in wrongdoing.
18 8.19. Robert Davidson affirms that he brought his concerns to the attention of “Vivra” management on at
least three separate occasions prior to Ms. Gaard’s audit.
19
8.20. Charles W. Ott, and others, perjured themselves by signing “NO” to the Certificate of Disclosure,
20 question re: any >10% shareholder having been subject to sanctions by regulatory or federal body for
fraud, misrepresentation within seven year period (see Arizona Corporations Commission Annual
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Report filings for 1999 and 2000, for Vivra Asthma Allergy Care America of Arizona, P.C.). Officers
22 of Gambro Healthcare Inc and DVA Renal Healthcare Inc, including Larry C. Buckelew, the current
President of DVA Renal Healthcare Inc (formerly known as Gambro Healthcare Inc), perjured
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themselves by signing “NO” to the Certificate of Disclosure, question re: any >10% shareholder
24 having been subject to sanctions by regulatory or federal body for fraud or misrepresentation within
seven year period (see Arizona Corporations Commission Annual Report filings for 1999-2006, for
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Gambro Healthcare Inc and DVA Renal Healthcare Inc). See Larry C. Buckelew’s signature on the
10 General’s Office as “Gambro Healthcare Inc” MF 052976-01-7, GBL 1204 040. Pages 3 to 7 of 20 of
the “Settlement Agreement and Release” detail the allegations of the State of Texas with respect to
11 conduct of Gambro Healthcare Inc in the forum state of Texas.
12 8.21. Jay Grossman, Eudice Grossman, and Gayle Petrillo each agreed to perform overt acts that made
willful, wanton, and readily foreseeable and necessary use of interstate mailings, to libel Robert
13
Davidson, M.D. [and Arnold Funckes, M.D.] on or about August 20, 1999, in Tucson, AZ when,
14 according to an email from Eric Johansen on August 20, 1999, “Dr Grossman had sent letters to all
the drug companies and insurance companies that Vivra bills printing a grey picture of you [Robert
15
Davidson] and Dr Funckes. Trying to put the blame on you two and how you walked out of the office
16 and left patients that were waiting to be seen…a copy of these letters were put in the regulatory
binders [at the Vivra Tucson facility of VAACAA].” The object of these defendants’ fraudulent
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scheme (Jay Grossman’s, Eudice Grossman’s, and Gayle F. Petrillo’s fraudulent scheme) was to
18 conceal fraud by blaming their problems on their staff.
8.22. “Vivra” willfully directed frauds at the Plaintiffs in the inducement and retention of Robert
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Davidson’s employment with Vivra. See the Classified advertisement of July 15, 1998, from the
20 Tucson Citizen, titled “Physician, Pharmaceutical Research”. See the “ZERO TOLERANCE
POLICY” memorandum (addressed to All Vivra Employees) on “Vivra” Norcross, GA letterhead
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and both editions of the Vivra Employee’s Handbook for Vivra’s avowed policy regarding violence in
22 the workplace and Vivra’s averments as to legitimacy of its business operations. At the direction of
Kent J. Thiry and Joseph C. Mello, acting by agreement and in concert, the October 1998 revision of
23
the Employee Handbook was sent by both interstate mail and wire facilities to the employees,
24 including Robert M. Davidson, M.D., at the Vivra Tucson 698 E. Wetmore Road location, on or about
November 19, 1998, at 1410 hours from fax # 954-723-1217. The mailings directed specifically at
25
Robert M. Davidson, M.D. of the initial Employees Handbook (December 12, 1995 revision) and
10 malfeasance and these individuals knew that Jay Grossman was engaged in wrongdoing. By their
willful actions and omissions, Kent J. Thiry and Joseph C. Mello both sought to mislead Robert
11 Davidson, M.D. and Vanessa E. Komar, and thereby induce Plaintiffs’ decision for Robert Davidson,
12 M.D. to accept and continue employment with Vivra. Acting by agreement and in concert, they both
used the mails or wire facilities to commit fraud. Plaintiffs relied on the misrepresentations. Plaintiffs
13
have shown injury to Plaintiffs’ business and property that was directly (“by reason of”) caused by the
14 racketeering activities, i.e., the predicate acts. Plaintiffs have shown enterprise injury to their business
and property that was directly (“by reason of”) caused by the concerted acts of Kent J. Thiry and
15
Joseph C. Mello. At the time of these fraudulent hiring and retention inducements, Kent J. Thiry
16 was chairman of the board and chief executive officer of Vivra Holdings Inc. Vivra Holdings Inc is
liable to Plaintiffs for the willful, wanton misconduct of its chairman of the board and chief
17
executive officer. These fraudulent hiring and retention inducements preceded the alleged “spin-off”
18 on December 1, 1998, by Vivra Holding Inc of its asthma/allergy business to its shareholders in the
form of a stock dividend. The question of whether Vivra Holdings Inc actually did “spin off” its
19
asthma/allergy business on December 1, 1998, as was sworn to by Michael P. McQuillen, is therefore
20 moot relative to Plaintiffs’ allegation of injury to business and property by reason of the
aforementioned fraudulent hiring and retention inducements.
21
8.23. Jay Grossman serially upcoded all E&M claims and coded for unnecessary procedures on every
22 specialty practice patient. Reimbursement claims for these upcoded office visits and unnecessary
procedures were submitted or caused to be submitted to 3rd party payers, including Medicare, by
23
“Vivra”, at the “Vivra” Tucson, AZ facility between April 22, 1997, and May 12, 1999, by willful,
24 wanton use of interstate mail and wire facilities to accomplish the fraudulent scheme, for personal and
corporate financial gain. See ¶ 8.62 to this Amended Complaint.
25
12 Partners of Arizona P.C., Vivra Asthma Allergy Care America of Arizona, P.C., Gambro Healthcare
Inc, DVA Renal Healthcare Inc, Gambro Inc, Davita Inc, and others, to acquire or maintain, directly
13
or indirectly, through a pattern of racketeering activity, an interest in or control of an enterprise [that
14 is, “Vivra”] that is engaged in, or the activities of which affect, interstate commerce, in violation of 18
U.S.C.A. Section 1962 (b). See page 1 of the Physician Employment Agreement (the “Agreement”)
15
on April 22, 1997, between Jay Grossman, M.D. and Vivra Specialty Partners of Arizona, P.C., and
16 that certain Stock Purchase and Sale Agreement (the “Purchase Agreement”). See paragraphs 4.1, 4.2,
6.3, and 6.4, of the “Agreement”. See SEC filings for Vivra Inc, especially those that detail the merger
17
on or about June 1997, between Gambro Healthcare Inc and Vivra Inc, and the Employee Stock
18 Option Plans related to the merger.
8.29. An unrelenting, pervasive pattern of intimidation and harassment of the clinical research staff by Jay
19
Grossman under color of official right, engendered an atmosphere of “don’t ask, don’t tell” and
20 “psychic blindness” to certain objective clinical facts, including patient safety, out of fear of
retribution, at the Vivra Tucson facility, between April 22, 1997, and May 12, 1999.
21
8.30. According to the Tucson FDA EIR of 5/5-6/28/99, it states, “Included in the records provided by
22 Andrea York was a handwritten letter dated 4/17/99, Exhibit 7.03-7.05 and signed by the majority of
the staff describing their concerns about their work environment ranging from theft…prescreens done
23
by front office, patients with questionable qualifying criteria being randomized anyway.”
24 8.31. Page 3, Paragraph 5 of the FDA Tucson EIR of 5/5-6/28/99 states, “He [former Vivra Tucson
Supervisory Clinical Research Coordinator, Eric Johansen] has seen Dr JG argue with Dr RD
25
regarding Dr RD informing patient (and documenting in the clinic notes) of the possible side effects
10 remember feeling ethically compromised and not sleeping well there at the end of my employment.”
8.35. In a letter to Robert Davidson on November 28, 2000 [as an email attachment], former Vivra Tucson,
11 AZ, clinical research study coordinator, Linda Buer [formerly Linda LeBlanc] wrote: “However, my
10 (Grossman) against me. Grossman has money, time and influence. I have neither.” “I wish you well in
this suit, but do not want to participate in what appears to me to be a vendetta.”
11 8.41. By information and belief, Jay Grossman and Charles W. Ott regularly traveled interstate in aid of the
12 “Vivra” enterprise between on or about April 22, 1997, and on or about October 1, 1999.
8.42. Paragraph 1, Page 5 of FDA Exhibit 1.05 states, “After checking my calendar for 1998, I confirmed
13
that I was at the Vivra site in Tucson for approximately 214 days of that year.”
14 8.43. Paragraph 4, Page 3 of FDA Exhibit 1.03 states “in addition to my work at the research site, I have
worked with several drug companies in the development of research protocols, and as a consultant.”
15
Please also reference the Monthly Operations Meeting Agenda of January 15, 1999, at the “Vivra”
16 Tucson facility.
8.44. Jay Grossman’s and Charles W. Ott’s frequent interstate travel, and frequent use of interstate mail and
17
interstate wire facilities, in interstate commerce, between on or about April 22, 1997, and on or about
18 October 1, 1999, was with intent to aid the “Vivra” enterprise, and they thereby serially performed or
attempted to perform related related predicate acts proscribed by 18 U.S.C.A. Section 1952,
19
Subsection (a)(3), in a pattern of racketeering activity, with open-ended continuity, for personal and
20 corporate financial gain.
8.45. During an on-going FDA inspection of Jay Grossman’s regulated conduct in Albany, NY, Jay
21
Grossman took all of the Case Report Forms for a study plus the study binder and some copies of the
22 patient files when he abruptly moved from Albany, NY to Tucson, AZ (reference page 3 of Albany,
NY FDA EIR of 1993). This relocation is thought to have occurred in either 1992 or 1993.
23
8.46. Carolanne Currier of the FDA, gave permission to omit coverage required by the Compliance
24 Program 7348.811 and was told to check only the 7 Case Report Forms received as supporting
documents to the assignment (reference page 4 of Albany, NY FDA EIR of 1993).
25
10 abnormalities (both present and prior EKG’s) were brought to Jay Grossman’s attention and despite
safety concerns having been expressed to Jay Grossman by Robert Davidson. Jay Grossman knew that
11 MHJ had multiple risk factors for coronary artery disease, including hypertension, hyperlipidemia,
12 and positive family history of myocardial infarction. Jay Grossman willfully, wantonly, and
repeatedly endangered MHJ for personal financial gain. Jay Grossman’s motive, method, and victim
13
for these frauds were similar, in fact, they were identical. Jay Grossman had motive (personal
14 financial gain), means, and opportunity to commit these frauds.
8.49. Jay Grossman employed this scheme or artifice to defraud to enroll MHJ in the Glaxo-Wellcome
15
FLTA 4039 study on or about 2-10-99, and again when Jay Grossman enrolled her in the Pfizer 264-
16 101 study on or about 3-26-99 at the “Vivra” 698 E. Wetmore Road, Suite 100, Tucson, AZ facility.
Thus, Jay Grossman’s motive, methods, and type of victim were similar [in fact, they were identical]
17
for these two frauds. MHJ was a so-called “study buddy” of Jay Grossman’s. A “study buddy” is
18 typically a former specialty practice patient who is enrolled serially by Jay Grossman in one clinical
research study after another. Between studies they became specialty practice patients again. Cross-
19
over was commonplace.
20 8.50. It was routine, customary, necessary, and entirely foreseeable, that EKG data, such as that obtained on
5-30-98 and on 3-15-99 would be placed, or caused to be placed, directly or indirectly, into the U.S.
21
mail and interstate wire communications, by Jay Grossman, to corporate pharmaceutical sponsors, in
22 support of New Drug Applications. The EKG of 3-15-99 for MHJ was transmitted on or about 3-15-
99 by Jay Grossman or caused to be transmitted by Jay Grossman either by interstate mail or wire
23
facility to the corporate sponsor (Pfizer) in behalf of a New Drug Application to the FDA. See the
24 Affidavit and Exhibits attached to this Amended Complaint. Included in these exhibits are copies of
the EKG data obtained on 5-30-98 and 3-15-99 for MHJ. Also included in these exhibits is the EKG
25
of study subject CKC from study visit #1 in the Novartis E25 research study at the “Vivra” Tucson
10 8.51. Jay Grossman, Eudice Grossman, Gayle Petrillo, and others, acting in concert and by agreement to
commit or cause to be committed serial overt acts of fraud that willfully and wantonly made routine,
11 necessary, and readily foreseeable use of the United States mail or interstate wire facilities or caused
12 use of the United States mail or interstate wire facilities in furtherance of a scheme or artifice to
defraud, and Jay Grossman, Eudice Grossman, and Gayle F. Petrillo, did so with the specific intent to
13
deceive or defraud, for personal and corporate financial gain. The scheme or artifice to defraud
14 involved submitting or causing to be submitted fraudulently upcoded reimbursement claims and
fraudulent reimbursement claims for medically-unnecessary PFTs (pulmonary function tests) to
15
Medicare and other commercial 3rd party payers, from the “Vivra” Tucson, AZ facility, between on or
16 about April 22, 1997, and on or about October 1, 1999, for every specialty practice seen at the “Vivra”
Tucson, AZ facility. Particularity in the allegation of these frauds is found at ¶ 8.62 below, and
17
incorporated here by reference. The scheme or artifice to defraud specifically involved submitting or
18 causing to be submitted falsified clinical research data (Case Report Forms and clinical source
documents) in support of New Drug Applications, to the FDA and to clinical research sponsors, from
19
Albany, NY and from the “Vivra” Tucson, AZ facility, between on or about April 22, 1997, and on or
20 about May 12, 1999. Particularity in the allegation of these frauds is found at ¶ 8.47-8.50 and ¶ 8.53-
8.61, and incorporated here by reference. Jay Grossman, Eudice Grossman, and Gayle Petrillo, had
21
motive (personal and corporate financial gain), means, and opportunity to commit these frauds. The
22 scheme or artifice to defraud involved “study buddies”. A “study buddy” is typically a former
specialty practice patient who is enrolled serially by Jay Grossman [or Thomas B. Edwards] in one
23
clinical research study after another. Between studies they became specialty practice patients again.
24 Cross-over was commonplace. Plaintiffs incorporate here by reference ¶s 8.30, 8.68, and 8.69.
25
10 fever as a child.
8.56. Subject MMD was intentionally (and/or recklessly) endangered by Jay Grossman, motivated by
11 personal financial gain.
12 8.57. Jay Grossman had [apparently] crossed-out this subject’s history of rheumatic fever, realizing that
rheumatic fever was an exclusion criteria for nearly all asthma studies.
13
8.58. Jay Grossman did not make the written assertion that “subject now states that she did have rheumatic
14 fever as a child” until after Jay Grossman had learned that Robert Davidson had become aware of this
research subject’s loud heart murmur, abnormal EKG’s, and her history of rheumatic fever.
15
8.59. Subject MMD was improperly enrolled by Jay Grossman into the Novartis E25 asthma study on
16 10/6/98. Not only did this subject have history of rheumatic fever (a clear study exclusion for nearly
any asthma study), but she also had a history of pulmonary embolism (another clear study exclusion
17
for nearly any asthma study). Thus, Jay Grossman’s motive, methods, and type of victim were similar
18 [in fact, they were identical] for these two frauds. This study subject (MMD) was thus serially
intentionally (and/or recklessly) endangered by Jay Grossman, for personal financial gain. MMD was
19
a so-called “study buddy” of Jay Grossman’s. Jay Grossman had motive (personal financial gain),
20 means, and opportunity to commit these frauds.
8.60. Jay Grossman enrolled subject SML [DOB 5-7-44] into the Hoechst Marion Roussel 3647A/3005
21
acute sinusitis study despite subject having a clear study exclusion (maintenance inhaled
22 corticosteroid therapy). Subject SML subsequently experienced a Serious Adverse Event:
hospitalization, while in study. Moreover, this subject had recently participated in a prior asthma
23
study [Zeneca 088] during which she required multiple prednisone bursts and multiple courses of
24 antibiotic therapy for several bouts of acute sinusitis with asthma exacerbation. This clinical research
subject was, thus, intentionally (and/or recklessly) endangered by Jay Grossman, motivated by
25
personal financial gain. Subject SML was another so-called “study buddy” of Jay Grossman’s.
10 in the Affidavit filed by Richard Ball, M.D. in Albany County Case # 2960-91 on December 6, 1994,
and the allegations of violence, unethical, and probably illegal conduct found in the letter from Robert
11 Davidson to Dr Antoine El Hage of FDA on April 14, 1999, and the Affidavit filed by Robert
12 Case Report Forms and records for this study into his office and recreated past medical histories into
the clinic notes from information taken from source document medical questionnaires. EJ stated he
13
has seen Dr JG tear up clinic notes and redo them because of the information on them.”
14 8.70. By information and belief, SEC filings of Vivra Inc (then the successor in interest to Vivra Specialty
Partners Inc), Gambro Inc (then the successor in interest to Gambro Healthcare Inc), and Davita Inc
15
(now the successor in interest to Gambro Healthcare Inc), describe employee stock option plans for
16 specialty practice physicians. By information and belief, Jay Grossman is alleged to have been a
recipient of stock and stock options from “Vivra”. By information and belief, Kent J. Thiry and
17
Joseph C. Mello are recipients of stock and stock options from “Vivra”.
18 8.71. The bonus compensation for Vivra specialty practice physicians is referred to in an Agenda item for
the Monthly Operations Meeting at the Vivra Tucson facility on January 15, 1999.
19
8.72. Jay Grossman’s Physician Employment Agreement (the “Agreement”) strictly reserved the setting of
20 fees, billings, and collections to Vivra Specialty Partners of Arizona, P.C. See page 17, at ¶ 11.4 and ¶
11.5 of the “Agreement”.
21
8.73. A longstanding, ongoing conspiracy to conceal fraud exists from which Plaintiffs have suffered injury
22 to Plaintiffs’ business and property prior to May 23, 2006.
8.74. Plaintiffs continue to suffer ongoing injury to Plaintiffs’ business and property by reason of this
23
ongoing conspiracy to conceal fraud.
24 8.75. The conspiracy to conceal fraud, the “Vivra” association-in-fact enterprise, the pattern of racketeering
activity, and the predicate acts, are still ongoing to the present day, and Plaintiffs continue to suffer
25
direct injury to Plaintiffs’ business and property by reason of the conspiracy, the racketeering
10 8.80. Because Defendants took affirmative steps to conceal the existence of the conspiracy, Robert
Davidson did not then [prior to February 20, 2001] know of the existence of the conspiracy much less
11 know the identity of the co-conspirators or the extent of the conspiracy. Plaintiffs allege direct injury
12 to their business and property by reason of obstruction of justice under color of the PDUFA in the
case at bar. See paragraphs 8.64 - 8.67 and paragraphs 8.81 - 8.89, to this Amended Complaint.
13
8.81. Robert Davidson did not obtain heavily redacted copies of the FDA Albany, NY EIR of 4/29-5/2 &
14 8/96 (Thomas B. Edwards, M.D.) and FDA Albany, NY EIR of 10/22-12/23/97 (Thomas B. Edwards,
M.D.) until on or about November 13, 2003, despite having originally requested these reports through
15
FOI on or about 12/20/2000.
16 8.82. Paragraph 2, Page 1 of the FDA Tucson, AZ EIR of 5/5-6/28/99 states “This inspection report was
delayed due to a PDUFA report.” This delay was willful and directly targeted at the Plaintiffs. See ¶
17
8.84 to this Amended Complaint. As applied to the Plaintiffs, the PDUFA is repugnant to the U.S.
18 Constitution under the Equal Protection clause of the Fifth Amendment.
8.83. The PDUFA [Prescription Drug User Fee Act] status of at least one of the index clinical research
19
studies inspected by the FDA at the “Vivra” Tucson, AZ facility in 1999, was a very substantial cause
20 of injury to Plaintiffs.
8.84. By delaying the publication of the FDA Tucson, AZ EIR of 5/5-6/28/99, the PDUFA II substantially
21
delayed the time at which Plaintiffs could begin to seek a legal remedy against Defendants. This
22 “delay” was intentional and directly targeted at the Plaintiffs. This “delay” inured greatly to the
benefit of Defendants, Big Pharma corporations [including Sepracor Inc], the “Vivra” enterprise, and
23
the FDA [employees acting in their official capacity], while inuring greatly to the detriment of
24 Plaintiffs. Application of the PDUFA to the Plaintiffs was motivated by invidiously discriminatory
animus. Application of the PDUFA to the Plaintiffs was intended to conceal the fraudulent clinical
25
research of Jay Grossman, Thomas B. Edwards, Albany Medical College, and Sepracor Inc, in
10 8.88. Paragraph 1, Page 1, of the FDA EIR Tucson facility on 7/6-10/2000, a redacted copy of which was
obtained through FOI by Plaintiffs, states, “This was a High Priority CDER User Fee NDA Pre-
11 Approval Study-Oriented Clinical Investigator Data Validation Inspection assigned by HFD-46 to
12 audit…under CP 7348.811. Review of the records found no deviations and no FD-483 was issued.”
8.89. The FDA Tucson AZ EIRs of 5/5-6/28/99 and 7/6-10/2000 made no findings that in any way deterred
13
Big Pharma corporations (including Sepracor Inc) from proceeding under the PDUFA II [now under
14 the PDUFA III] to gain expedited FDA “review” and market approval of their products. See
paragraphs 8.94 - 8.104 to this Amended Complaint.
15
8.90. According to the U.S. Department of Justice, on December 2, 2004, “Gambro Healthcare will pay
16 more than $350 million in criminal fines and civil penalties to settle allegations of healthcare fraud in
the Medicare, Medicaid and TRICARE programs…” “Gambro Healthcare will also pay in excess of
17
$310 million to resolve civil liabilities stemming from alleged kickbacks paid to physicians, false
18 statements made to procure payment for unnecessary tests and services, and payments made to
Gambro Supply.” “The settlement also requires Gambro to allocate an additional $15 million to
19
resolve potential liability for the conduct resolved under the federal agreement pursuant to a
20 preliminary understanding reached with representatives of various state Medicaid programs.”
[boldface, italics, and underline are added for emphasis].
21
8.91. According to the Texas Attorney General’s Office, on or about September 22, 2005, “Texas Attorney
22 General Greg Abbott [today] announced the recovery of $1.86 million for the Texas Medicaid
program following a multi-state investigation of Gambro Healthcare Inc and its subsidiary, Gambro
23
Supply Corp.” “The total recovery [$1.86 million for the Texas Medicaid program] reflects the
24 amount defrauded from the program, which comprises the state’s partnership with the federal
government for managing this program.” “The states were wrongly billed for these medically
25
unnecessary tests. The total nationwide restitution to Medicaid, with penalties and interest, is $37.5
10 Anti-Kickback Statute, 42 U.S.C. Section 1320a-7b(b), and applicable State anti-kickback statutes
and/or regulations, if any, (c ) Gambro Healthcare Inc submitted false claims to the State’s Medicaid
11 program for reimbursement, because Gambro Healthcare Inc certified on cost reports submitted to
12 Medicare fiscal intermediaries that services identified or summarized in each cost report were not
provided or procured through the payment directly or indirectly of a kickback or billed in violation of
13
law, and that Gambro Healthcare Inc submitted such claims for reimbursement to the State’s
14 Medicaid program despite and notwithstanding Gambro Healthcare Inc’s knowledge that the claims
were false, (d) Gambro Healthcare Inc knowingly and willfully offered to pay and/or paid to its Joint
15
Ventures in the form of distributions of income from the Joint Ventures, reduction or elimination of
16 losses incurred by the Joint Ventures, and the accumulation of equity interest in the Joint Ventures, (e)
the illegal remuneration paid by Gambro Healthcare Inc was intended to induce the Joint Venture
17
Partners to refer their ESRD patients to dialysis clinics owned by the Joint Ventures in which Gambro
18 Healthcare Inc had a significant financial interest, and (f) Gambro Healthcare Inc submitted such
claims for reimbursement to the State’s Medicaid program despite and notwithstanding Gambro
19
Healthcare Inc’s knowledge that the claims were false because the Joint Ventures forfeited their right
20 to bill the State’s Medicaid program for such services by paying remuneration intended to induce
referrals in violation of the Anti-Kickback Statute, 42 U.S.C. Section 1320a-7b(b), and applicable
21
State anti-kickback statutes and/or regulations, if any, and the Joint Ventures were required to and did
22 certify on cost reports submitted to Medicare fiscal intermediaries that services identified or
summarized in each of the cost reports were not provided or procured through the payment directly or
23
indirectly of a kickback or billed in violation of law.
24 8.93. Davita Inc, Vivra Holdings Inc, Gambro Healthcare Inc, and DVA Renal Healthcare, have recklessly
tolerated, commanded, and ratified, the willful misconduct of Jay Grossman, Kent J. Thiry, Joseph C.
25
Mello, Charles W. Ott, and others acting in concert, in the hiring, retention, and “lulling”
12 Albany, NY to Tucson, AZ in the early 1990’s, and to facilitate the relocation of Thomas B. Edwards,
M.D. from Albany, NY to Pittsfield, MA in the late 1990’s, in order to obstruct justice, conceal
13
clinical research fraud and violence of Jay Grossman, M.D., and Thomas B. Edwards, M.D., and
14 provide ongoing personal and corporate financial gain for the enterprise.
8.97. Thomas B. Edwards, M.D., Albany Medical College, Anthony P. Tartaglia, and Sepracor Inc, are
15
collaterally estopped from denying the specific allegations of clinical research fraud found on Page 1,
16 Paragraph 2, of the Agreement with Respect to Use of Investigational New Drugs, signed by Thomas
B. Edwards, M.D. on January 22, 1998. This research fraud included allegation of failure to
17
“personally conduct or supervise the clinical investigation”, use of falsified “chest x-ray radiology
18 reports, which were used to qualify subjects” and falsified “EKG tracings” in Albany, NY, between
October 22 and December 23, 1997, for research that was conducted by Dr. Thomas B. Edwards. Dr
19
Edwards did not contest the above allegations. The falsified “EKG tracings” in Albany NY, between
20 October 22 and December 23, 1997, for research that was conducted by Dr Thomas B. Edwards, is
related (same motive, similar method, and similar victims) to the use of falsified EKG tracings in
21
Tucson, AZ for research that was conducted by Dr Jay Grossman, and posed a very real threat of
22 repetition (open-ended continuity). A “study buddy” is typically a former specialty practice patient
who is enrolled serially by Jay Grossman [or Thomas B. Edwards] in one clinical research study
23
after another. Between studies they became specialty practice patients again. Cross-over was
24 commonplace. See ¶ 8.44-8.51.
8.98. By information and belief, Thomas B. Edwards and Jay Grossman are both thought to have been
25
involved in clinical research studies in support of NDA # 20-837, levoalbuterol HCl inhalational
10 and/or altered in order to qualify patients who would otherwise have been excluded from the study. 2
original subject records which reported the administration of Biaxin, an exclusion criteria, had been
11 removed from a clinic file, and a different clinical record which did not show the biaxin usage, had
12 been substituted; for four study subjects, the chest x-ray radiology reports used to qualify them for the
study, were not supported by x-ray films; chest x-ray radiology reports used to qualify three other
13
patients had date alterations which were not supported by x-ray films; EKG tracings for 8 of the 23
14 study subjects had unauthorized alterations; and test article accountability appears to have been
manipulated. Deficiencies regarding EKG records and test article accountability were also found for
15
two other studies.” By information and belief, 215 Washington Ave Extension is the physical address
16 of the Division of Allergy and Asthma at Albany Medical Center. See the affidavit and Exhibits to
this Amended Complaint.
17
8.100. Page 1, titled Summary of Findings for the 10/22-12/23/97 FDA Establishment Inspection Report,
18 states, “The inspection revealed source document fabrication and alteration to qualify patients for
study Zopen participation; clinic file record substitution for one patient to continue study Zopen
19
participation; source EKG record alterations; inadequate drug accountability; and protocol
20 violations.”
8.101. Albany Medical College (“AMC”), Anthony P. Tartaglia (“Tartaglia”), Jay Grossman, Thomas B.
21
Edwards (“Edwards”), Sepracor Inc (“Sepracor”) and others presently unknown to Plaintiffs, agreed
22 to obstruct justice, by the commission of overt acts to conceal the fraudulent clinical research and
insurance frauds of Jay Grossman, Thomas B. Edwards, Albany Medical College, and Sepracor
23
Inc, in support of the NDA # 20-837 for Xopenex Inhalation Solution, that gained FDA approval
24 on 3/25/99 (review was posted on 6/20/01). A “study buddy” is typically a former specialty practice
patient who is enrolled serially by Jay Grossman in one clinical research study after another.
25
Between studies they became specialty practice patients again. Cross-over was commonplace.
10 (Count Four), and ongoing Constitutional tort (Count Seven). See ¶ 8.44-8.46. See also the Affidavit
and Exhibits to this Amended Complaint.
11 8.103. Jay Grossman, acting in concert with others presently unknown to Plaintiffs, employed a scheme or
12 artifice to defraud Robert M. Davidson, which made use of the U.S. mail to accomplish the fraud,
when he ran the classified advertisement in the July 15, 1998, edition of the Tucson Citizen, classified
13
section, entitled “Physician, Pharmaceutical Research”, in which he [they] sought to hire a key,
14 highly-qualified individual, with Davidsons’ credentials, for employment with “Vivra” in Tucson, AZ.
Plaintiffs detrimentally-relied upon the representations of legitimate employment found in the
15
advertisement. Plaintiffs sustained direct by reason of injury to their business and property due to this
16 fraudulent hiring inducement. This fraudulent hiring inducement was related (similar method, motive,
and victims) to the fraudulent hiring, retention, and “lulling” inducements of Kent J. Thiry and Joseph
17
C. Mello, which also made use of the U.S. mail to accomplish the fraud, which were directly targeted
18 at Robert M. Davidson. These fraudulent hiring, retention, and “lulling” inducements posed a definite
threat of repetition (open-ended continuity). Jay Grossman, Kent J. Thiry, and Joseph C. Mello,
19
intended the consequences of their fraudulent acts. The consequences of their fraudulent acts were
20 readily foreseeable. These fraudulent acts (and omissions) were intended to provide personal and
corporate financial gain for the enterprise.
21
8.104. By information and belief, Timothy G. Wighton (former Vice President, Clinical Research, for
22 “Vivra”) can be placed in Albany, NY (10 Madison Place, Albany, NY) during the same time that Jay
Grossman and Eudice Grossman lived in Albany, NY. By information and belief, Gayle F. Petrillo
23
(former Practice Manager for “Vivra”) can be placed in New York (10 Biscayne Drive, Latham, NY)
24 during the same time that Jay Grossman and Eudice Grossman lived in Albany, NY. By information
and belief, Petrillo’s sister (Lisa M. Petrillo) lived in Albany, NY (178 Brevator Street, Albany, NY
25
12206). Timothy G. Wighton actually lived in Albany, NY (10 Madison Place, Albany, NY) and was
10 Sepracor Inc, and Defendant Albany Medical College, as persons within the meaning of 18 U.S.C.A. Section
1961(3), and as persons employed by or associated with said “Vivra” enterprise, agreed with each other to
11 conduct or participate in the violation of the substantive RICO statute, specifically 18 U.S.C.A. Section
12 1962(b) and 18 U.S.C.A. Section 1962(c), in violation of 18 U.S.C.A. Section 1962(d). These Defendants
agreed with each other to conceal fraud by means of bribery, provision of stock ownership, stock options, mail
13
fraud, wire fraud, Travel Act violations, Hobbs Act violations, and obstructions of justice. See ¶ 8.5, 8.66,
14 8.67, 6, 8.14, 8.28, 8.70, 8.18, 8.20, 8.93, 8.41-8.44, 8.29, 8.67, 8.79, 8.94–8.104 of this Amended Complaint.
11. Through the commission of two or more of the enumerated predicate acts that constitute a pattern of
15
racketeering activity, Defendants directly or indirectly participated in the conduct of said “Vivra” enterprise the
16 activities of which affect interstate commerce.
12. Plaintiffs (Robert M. Davidson, M.D. and Vanessa E. Komar R.N., husband and wife), were jointly injured
17
in their business and property by reason of such conduct by Defendants that was violative of the substantive
18 RICO statute. Defendants are jointly and severally liable to Plaintiffs.
13. These acts of racketeering, occurring within ten years of one another, constitute a pattern of racketeering
19
activity within the meaning of 18 U.S.C.A. Section 1961(5).
20 14. Plaintiffs were jointly injured in their business or property by reason of these violations of 18 U.S.C.A.
Section 1962, in that, as a direct and proximate result of Defendant’s complained of acts, Plaintiffs jointly
21
suffered actual damages to Plaintiffs’ business and property in excess of $5,000,000.00, including and not
22 limited to: damage to Plaintiffs’ professional reputations through association with “Vivra’s” fraudulent
Medicare, Medicaid, and clinical research practices. By reason of the fraudulent representations to Davidson in
23
the ZERO TOLERANCE POLICY MEMO and Employees Handbook as to legitimacy and freedom from
24 violence of its operations, Davidson would not have accepted and continued employment with Vivra in
Tucson, AZ, Plaintiffs would not have been delayed and hindered in their business and occupations, would not
25
have lost a great deal of time from it, would not have been deprived of gains and profits which they would
10 AR, and the letter of February 23, 2005, from Micole Matyas of National City Mortgage to Robert Davidson
and Vanessa Komar, Re: Inquiry for Lot Land Refinance. See the federal PACER docket filings for Plaintiffs’
11 Chapter 7 Bankruptcy filing, on October 5, 2005, in the U.S. Bankruptcy Court, Eastern District of Texas,
12 Tyler Division, (05-62258). See the true and correct copies of Plaintiffs’ checks for payment of attorney’s fees
and costs to attorney Michael Markley, attorney Michael J. Meehan, attorney Kenneth Haber, and the law firm
13
Quarles Brady Streich & Lang. See the statement of fees paid by Plaintiffs to Westlaw. Defendants’ tortuous
14 conduct was a “substantial factor in the sequence of responsible causation.” The fraudulent representations
as to legitimacy and freedom from violence of its operations found in the ZERO TOLERANCE POLICY
15
MEMO and the December 12, 1995 revision of the Employees Handbook as to legitimacy and freedom from
16 violence of Vivra’s operations were targeted directly at Robert M. Davidson, on or about September 1, 1998.
See the FEDEX Airbill from September 3, 1998, from Aaron Risen of Vivra Physicians Services, 1941 Bishop
17
Ln, Ste. 501, Louisville, KY 40218, addressed to Robert Davidson, M.D. at 2427 East 1st Street, Tucson, AZ
18 85719. See the letter of August 21, 1998, from Maylene R. Nafrada of Vivra Specialty Partners, 1850 Gateway
Drive, Suite 500, San Mateo, CA 94404, addressed to Robert Davidson, M.D. at 2427 East 1st Street, Tucson,
19
AZ 85719, sent VIA FEDERAL EXPRESS. See the letter of August 14, 1998, from Maylene R. Nafrada of
20 Vivra Specialty Partners, 1850 Gateway Drive, Suite 500, San Mateo, CA 94404, addressed to Robert
Davidson, M.D. at 2427 East 1st Street, Tucson, AZ 85719, Sent VIA FEDERAL EXPRESS. See the
21
Employee Receipt & Acknowledgement Form signed by Robert M. Davidson on September 1, 1998. See the
22 “To New Employees” letter of Kent J. Thiry of Vivra at 1850 Gateway Drive, Suite 500, San Mateo, CA
94404, included in the October 1998 revision of the Vivra Employee Handbook. See the “To New Employees”
23
letter of Joseph C. Mello of Vivra Asthma & Allergy, 150 South Pine Island Road, Suite 520, Plantation, FL
24 33324, included in the October 1998 revision of the Vivra Employee Handbook. See the “Welcome to Vivra”
letter of Kent J. Thiry, President and Chief Executive Officer, included in the December 12, 1995 revision of
25
10 C. Mello, Michael J. Meehan, Bruce R. Heurlin, Vivra Holding Inc, Gambro Healthcare Inc, Albany Medical
College, and Sepracor Inc, acting by agreement (to conceal fraud and/or to obstruct justice) and in concert with
11 each other and with others, made or caused to be made misrepresentations or omissions (including fraudulent
12 hiring and retention inducements) with fraudulent intent or scienter. These fraudulent hiring and retention
inducements were directed at Robert M. Davidson, M.D. The misrepresentations or omissions were material
13
to Plaintiffs’ decision for Robert M. Davidson, M.D. to accept or continue employment at the 698 E. Wetmore
14 Road, Tucson, AZ clinical research facility, from on or about September 1,1998, until on or about May 11,
1999. Plaintiffs reasonably relied on the misrepresentations or omissions. Plaintiffs jointly suffered injury as a
15
result of Plaintiffs’ reliance on the misrepresentations or omissions. Plaintiffs detrimentally relied on
16 “Vivra’s” misrepresentations or omissions as to legitimacy and freedom from violence of its operations, and
damage to Plaintiffs’ professional reputations was foreseeable result of various racketeering acts of wire
17
and mail fraud. “Vivra” fraudulently induced Robert M. Davidson, M.D. to accept and continue
18 employment via mail and wire fraud, thereby damaging Plaintiffs’ reputations through association with
“Vivra’s” fraudulent Medicare, Medicaid, and clinical research practices. Plaintiffs allege a combination of
19
two or more persons acting with a common purpose to do an unlawful act or do a lawful act in an unlawful
20 means or for an unlawful purpose; an overt act done in pursuant of the common purpose; and actual legal
damage. Plaintiffs incorporate here by reference ¶s 8.94-8.104, and ¶s 14, 54, 58-62, 69, 86, 87, of this
21
Amended Complaint.
22 18. Albany Medical College, Anthony P. Tartaglia, M.D., then the Dean of Albany Medical College, Sepracor
Inc, and others, had an ethical, moral, and legal duty to report Jay Grossman’s misconduct in Albany, NY to
23
appropriate state and/or federal regulators. By information and belief, Jay Grossman, M.D., and Thomas B.
24 Edwards, M.D., are thought to have been employees of Albany Medical College Allergy Division in
conducting certain clinical research studies in support of New Drug Applications by Big Pharma corporations
25
(including Sepracor Inc) in Albany, NY. See the Affidavit and Exhibits to this Amended Complaint.
10 the relocation of Joanne C. Wray’s (formerly known as Joanne C. Siegel) “research” practice from Fresno, CA
to Tucson, AZ.
11 20. Because Plaintiffs were jointly injured by Defendants’ violations, detailed above, and because the intent
12 was knowing, or willing, or reckless, or malicious, or with improper motive (personal and/or corporate
financial gain), Plaintiffs seek actual damages (including damages for personal injury and economic injury),
13
punitive damages, interest, court costs and attorney fees from Defendants, and any other relief as this Court
14 may deem appropriate. Defendants are jointly and severally liable to Plaintiffs.
21. Defendants made representations or omissions (including fraudulent hiring and retention inducements) to
15
Plaintiffs; the representations or omissions were material; the representations or omissions were false; when
16 Defendants made the representations or omissions, they knew the representations or omissions were false, or
made them recklessly, as positive assertions, and without knowledge of their truth; Defendants made the
17
representations or omissions with the intent that Plaintiffs act on them; Plaintiffs relied on the representations
18 or omissions; and the representations caused Plaintiffs injury. Defendants’ fraudulent misrepresentations or
omissions consisted of nondisclosure of material facts when there was a duty to do so. Defendants had a duty
19
to speak and deliberately remained silent. There was a special relationship that required disclosure. There was
20 a fiduciary relationship between Plaintiff (Robert M. Davidson, M.D.) and Defendants, that required
Defendants to disclose material facts. Defendants made representations or omissions to Plaintiffs knowing that
21
they were false. Defendants intended for Plaintiffs to rely on the representations or omissions. Defendants
22 desired to cause the consequences of their acts or omissions. Plaintiffs actually relied upon the representations
or omissions, that is, plaintiffs knew of the representations or omissions and acted upon them. Plaintiffs
23
believed the false representations or omissions when they acted on them. Plaintiffs did not have a duty to use
24 due diligence to discover whether the representations or omissions were fraudulent. Plaintiffs changed their
position for the worse. The representations and omissions caused injury. Plaintiffs (Robert M. Davidson and
25
Vanessa E. Komar, husband and wife) jointly seek both direct and consequential damages. The frauds
10 capable of repetition, yet evade review) that does not require a review of a final state court decision in a
particular case. The declaratory relief requested by this Count (Count Five) is supplemental to the coercive
11 relief prayed for in Counts One, Two, Three, Four, and Seven.
12 24. The Plaintiffs to this Count (Count Five) are Robert M. Davidson and Vanessa E. Komar (collectively “the
Davidsons”), husband and wife. The Defendants to this Count (Count Five) are Defendant Jay Grossman,
13
Defendant Eudice Grossman, Defendant Gayle F. Petrillo, Defendant Charles W. Ott, Defendant Joanne C.
14 Wray, Defendant Anthony P. Tartaglia, Defendant Kent J. Thiry, Defendant Joseph C. Mello, Defendant
Michael J. Meehan, Defendant Bruce R. Heurlin, Defendant Vivra Holdings Inc, Defendant Gambro
15
Healthcare Inc, Defendant DVA Renal Healthcare Inc, Defendant Davita Inc, Defendant Albany Medical
16 College, and Defendant Sepracor Inc.
25. As applied to the Plaintiffs, the Prescription Drug User Fee Act is repugnant to the U.S. Constitution under
17
the Equal Protection Clause of the Fifth Amendment.
18 26. Plaintiffs incorporate here by reference paragraphs 8.64 - 8.67, paragraphs 8.80 - 8.89, and paragraphs 8.94
- 8.104, to this Amended Complaint.
19
27. Plaintiffs’ federal Constitutional injury can be fairly traced to the challenged action and is likely to be
20 redressed by a favorable decision by this Court. Plaintiffs’ have suffered injury in fact. Defendants conduct,
acting by agreement, and in concert with others to be determined at trial, caused Plaintiffs’ injury.
21
28. Plaintiffs have Article III standing to make this motion for declaratory relief. Plaintiffs were adversely
22 affected by application of the PDUFA to Plaintiffs. Plaintiffs have suffered palpable economic injury to their
business and property by reason of an invidiously discriminatory application of the PDUFA to the Plaintiffs.
23
The PDUFA has the effect of encouraging physicians acting as either principal investigators or
24 subinvestigators in clinical research studies, to violate the Oath of Hippocrates by not “blowing the whistle”
whenever the PDUFA is applied (selectively enforced) to conceal clinical research fraud and obstruct justice, in
25
order to gain expedited FDA review and market approval for the FDA’s Big Pharma corporate clients. Clinical
10 29. Paragraph 2, Page 1 of the FDA Tucson, AZ EIR of 5/5-6/28/99 states “This inspection report was delayed
due to a PDUFA report.” This delay was willful and directly targeted at the Plaintiffs. As applied to the
11 Plaintiffs, the PDUFA is repugnant to the U.S. Constitution under the Equal Protection clause of the Fifth
12 Amendment.
30. By delaying the publication of the FDA Tucson, AZ EIR of 5/5-6/28/99, the PDUFA II substantially
13
delayed the time at which Plaintiffs could begin to seek a legal remedy against Defendants. This “delay” was
14 intentional and directly targeted at the Plaintiffs. This “delay” inured greatly to the benefit of Defendants, Big
Pharma corporations [including Sepracor Inc], the “Vivra” enterprise [including Sepracor Inc], and the FDA
15
[employees acting in their official capacity], while inuring greatly to the detriment of Plaintiffs.
16 31. Application of the PDUFA to the Plaintiffs was motivated by invidiously discriminatory animus.
Application of the PDUFA to the Plaintiffs was intended to conceal the fraudulent clinical research of Jay
17
Grossman, Thomas B. Edwards, Albany Medical College, and Sepracor Inc, in support of the NDA # 20-
18 837 for Xopenex Inhalation Solution, that gained FDA approval on 3/25/99 (review was posted on 6/20/01).
32. “Expedited” market approvals of New Drug Applications by the FDA took place during this “delay” and
19
during the pendency of the ostensibly ongoing criminal investigation of Jay Grossman’s conduct by the
20 Criminal Division of the FDA. The FDA approval of the NDA # 20-837 for Xopenex Inhalational Solution,
was based in part upon fraudulent (seriously flawed) clinical research by Thomas B. Edwards in Albany, NY at
21
Albany Medical College.
22 33. There is a recurring pattern of expedited market “approvals” of New Drug Applications by the FDA, while
both routine and “for cause” investigations of clinical research establishments are selectively “delayed”
23
[intentionally “stone-walled”] under color of PDUFA I, II, III, and soon the PDUFA IV.
24 34. The Principal Investigator [Jay Grossman] was terminated for cause on July 30, 1999, by Vivra Inc, yet the
FDA report on 7/10/2000 states, “Review of the records found no deviations…”
25
6
COUNT SIX
7 MOTION FOR DECLARATORY RELIEF UNDER 28 U.S.C. SECTION 2201 AND SECTION 2202
37. Plaintiffs repeat here paragraphs 1-36 to this Amended Complaint, and incorporate here by reference the
8
allegations found in paragraphs 43 - 90 below.
9 38. This Court has jurisdiction over a general constitutional challenge to Arizona Rules of Civil Procedure
10 Rule 5.1 that does not require a review of a final state court decision in a particular case. The declaratory relief
requested by this Count (Count Six) is supplemental to the coercive relief prayed for in Counts One, Two,
11 Three, Four, and Seven.
12 39. The Plaintiffs to this Count (Count Six) are Robert M. Davidson and Vanessa E. Komar (collectively “the
Davidsons”), husband and wife. The Defendants to this Count (Count Six) are Defendant Jay Grossman,
13
Defendant Eudice Grossman, Defendant Bruce R. Heurlin (counsel of record for Jay Grossman and Eudice
14 Grossman in the Arizona state court proceedings), and Defendant Michael J. Meehan (former retained counsel
of record for Robert M. Davidson and Vanessa E. Komar in the Arizona state court proceedings).
15
40. Arizona Rule of Civil Procedure 5.1 is repugnant to the U.S. Constitution. There is no ongoing Arizona
16 state court proceeding. Division II Arizona Court of Appeals has affirmed the final judgments of the Arizona
trial court. The Arizona Supreme denied Petition for Review. The U.S. Supreme Court has denied certiorari.
17
41. Plaintiffs allege an ongoing actual case or controversy.
18 42. Plaintiffs’ federal Constitutional injury in the State Action can be fairly traced to the challenged action and
is likely to be redressed by a favorable decision. Plaintiffs are suffering continuing present adverse effects
19
(continuous constitutional tort and continuous jeopardy) by reason of decisions in the State Action.
20 43. Arizona Rules of Civil Procedure 5.1 is flagrantly and patently violative of express constitutional
provisions. Arizona Rules of Civil Procedure Rule 5.1 is facially unconstitutional. Arizona Rules of Civil
21
Procedure Rule 5.1 is unconstitutional as applied to the Davidsons in the Arizona state court proceedings.
22 44. The relief Plaintiffs seek by this Count (Count Six) is a holding by this Court that Arizona Rules of Civil
Procedure, Rule 5.1 is repugnant to the U.S. Constitution and therefore held by this Court to be
23
unconstitutional.
24
25
10 proceedings.
50. Plaintiffs have suffered actual injury as a result of the illegal conduct of Jay Grossman, Eudice Grossman,
11 Bruce R. Heurlin (“BRH”), Michael J. Meehan (“MJM”), and Jane L. Eikleberry (“JLE”, the Arizona trial
12 court judge) in the Arizona state court proceedings (“the State Action”). Plaintiffs were the specifically-
targeted victims of this illegal conduct.
13
51. Jay Grossman, Eudice Grossman, Quarles Brady Streich & Lang (MJM’s new law firm, “QBSL”), BRH,
14 MJM, and JLE, were willful participants in joint activity with the State of Arizona or its agents.
52. Jay Grossman, Eudice Grossman, QBSL, BRH, and MJM, conspired with Arizona trial court judge JLE to
15
deprive Plaintiffs of Constitutional rights under color of Arizona Rule of Civil Procedure 5.1 and there was
16 State Action.
53. The State Actors (Jay Grossman, Eudice Grossman, QBSL, BRH, MJM, and JLE) deprived Plaintiffs of
17
federally-protected rights under color of Arizona Rule of Civil Procedure 5.1.
18 54. Jay Grossman, Eudice Grossman, QBSL, BRH, MJM, and JLE, agreed with each other to conceal fraud by
knowingly committing overt acts in furtherance of this objective for personal, political, and corporate financial
19
gain. By reason of this corrupt conspiracy, Davidsons suffered direct injury to their business and property.
20 55. Jay Grossman, Eudice Grossman, QBSL, BRH, MJM, and JLE, were State Actors in the Arizona state
court proceedings. Plaintiffs allege the state involvement necessary to transform the private acts of Jay
21
Grossman, Eudice Grossman, QBSL, BRH, MJM, and JLE, into State Action covered by 42 U.S.C. Section
22 1983 and Section 1985.
56. After MJM changed law firms (he joined the law firm of Quarles Brady Streich Lang (“QBSL”) during his
23
representation of the Davidsons in State court proceedings), he stated in writing in a letter of January 15, 2001,
24 from MJM to the Davidsons, “I do not expect this [his change in law firm] to affect or impair in any way my
ability to continue effective representation for you.”.
25
10 characterizing their clients’ objectives as being unprofessional, imprudent, unethical, and repugnant. This
intentional misrepresentation inflicted irreparable harm upon the Davidsons once the motion was filed. By
11 information and belief, MJM and QBSL knew the substance and content of the Prosecution Memorandum,
12 prior to filing their Motion to Withdraw as counsel of record. Yet, QBSL and MJM agreed with each other to
continue to refuse to bring Arizona fraud, Arizona RICO, and federal RICO actions, on behalf of their then
13
clients, the Davidsons, despite repeated requests by the Davidsons to bring such actions. Davidsons did not
14 realize at the time that the object of the aforementioned repeated refusals to bring fraud and racketeering
actions on behalf of their clients, and the object of their Motion to Withdraw, was not solely to permanently
15
deprive the Davidsons of a legal remedy for the injuries wrought upon them by the Grossmans and others
16 acting in concert, and avoid their contractual and professional responsibility to the Davidsons, just four months
before the scheduled trial date, but was also intended to conceal the racketeering conspiracy which had been
17
ongoing for nearly two decades, in both New York and Arizona, and facilitate MJM’s candidacy for
18 anticipated vacancies in the Arizona Supreme Court and Division II Arizona Court of Appeals.
60. Davidsons allege extrinsic fraud in the procurement of final judgement in the Arizona court proceedings.
19
61. Davidsons allege a corrupt conspiracy in the Arizona State court proceedings (“the State Action”) between
20 MJM, BRH, Jay Grossman, Eudice Grossman, and JLE to deprive Davidsons of Constitutionally-protected
fundamental rights in property (their retained legal counsel in civil lawsuit) and liberty (a bargained-for benefit
21
of entering into a retainer agreement with MJM).
22 62. JLE was a joint participant in the corrupt conspiracy to defraud the whistle blower (Davidson) and deprive
Davidsons of constitutional rights. JLE had actual knowledge that there was not “good cause appearing
23
therefore” upon which to base the Order of January 11, 2002. So too did certain named Division II Judges and
24 Arizona Supreme Court justices have personal, extrajudicially acquired knowledge of disputed evidentiary
facts concerning Davidsons’ attorney (MJM). These judges had actual knowledge that MJM’s and QBSL’s
25
Motion to Withdraw was in no way motivated by “good cause”. To the contrary, the trial judge and named
10 67. Arizona Rules of Civil Procedure 5.1 is flagrantly and patently violative of express constitutional
provisions. Davidsons were denied federal constitutional rights by State Action under color of Ariz. R. Civ. P.
11 Rule 5.1(A)(2)(B) and (C ) in the State court proceeding.
12 68. A civil litigant has a Constitutional right to retain hired counsel. There is a Constitutionally-guaranteed
right to retain hired counsel in civil matters under the due process clause of Fourteenth Amendment. Subject to
13
certain limitations, right to counsel expressly guaranteed by the Sixth Amendment in criminal cases, is no less
14 fundamental in civil cases and springs from both statutory authority and from the constitutional right to due
process of law.
15
69. Davidsons were deprived of the presently-enjoyed benefit of retained counsel in an ongoing civil
16 proceeding without procedural due process. The process that was due is, at minimum, a hearing. There was no
such hearing afforded the Davidsons. The opposing legal counsel (MJM, QBSL, and BRH) simply agreed
17
between themselves and with the Court (JLE) under color of Ariz. R. Civ. P., rule 5.1, and there was State
18 Action.
70. To say that there is generally no constitutional right to retained counsel in civil cases is a statement of such
19
broad scope and sweep that it would undermine many, if not all, of the basic foundations upon which our legal
20 system rests.
71. Ariz. R. Civ. P., rule 5.1 (A)(2)(B) and (C ), subrogates client’s rights to those of their attorney’s based
21
upon a conclusive presumption of the trial judge. It creates a constitutionally-impermissible unequal
22 classification of clients and attorneys. It provides none of the citizens of the State of Arizona with
constitutionally-guaranteed protections of presently-enjoyed property and liberty interests in their retained
23
legal counsel.
24 72. Every Arizona citizen is vulnerable to the same federal constitutional deprivation, because clause (ii) of
Ariz. R. Civ. P. Rule 5.1(A)(2)(C ) is written as a disjunctive condition, that is it reads, [in pertinent part], “…,
25
or (ii) unless the court is satisfied for good cause shown that the attorney should be permitted to withdraw.”
10 and also the action was taken with intent to discriminate, so as to permanently deny their clients a legal remedy
for the crimes alleged in the federal court proceedings and avoid their contractual and professional
11 responsibility to their clients, just 4 months before the scheduled trial date.
12 77. MJM’s and QBSL’s conduct, under color of Ariz. R. Civ. P. Rule 5.1, was intentionally harmful to
Davidsons, or otherwise deliberately inconsistent with their obligations to Davidsons, so as to be a voluntary
13
excursion outside the scope of their duties. Liability attaches to MJM, QBSL, JLE, and BRH, under 42 U.S.C.
14 Section 1983 and 1985, since the acts complained of were done outside the scope of their duty.
78. Coerced dismissal of Davidsons’ retained legal counsel by fiat of the trial court under color of Arizona
15
Rule of Civil Procedure 5.1 may be viewed a punitive sanction.
16 79. The Arizona trial court judge JLE actually refused to litigate Davidsons’ Amended Answer to First
Amended Complaint and Counterclaims, filed on or about February 26, 2004, in the Arizona state court
17
proceedings. Davidsons aggressively pursued all available means to secure state-court decision of federal
18 issues presented to the state court, including interlocutory appeal to Division II from the State trial court’s
Order of January 1, 2002, which coerced the dismissal of Davidsons’ retained counsel of record, by fiat of the
19
trial court just 4 months before the scheduled trial date, under color of Ariz. R. Civ. P. Rule 5.1.
20 80. The Arizona state court remedy for redressing the wrong was woefully inadequate, both in form and in
substance.
21
81. Plaintiffs have suffered an intentional deprivation of property and liberty without Due Process.
22 82. There was a meeting of the minds concerning unconstitutional conduct, and an express agreement between
the purported conspirators (Jay Grossman, Eudice Grossman, BRH, JLE, QBSL, and MJM).
23
83. A genuine actual issue of concerted activity toward an unlawful objective is alleged.
24 84. Substantial direct injury to Plaintiffs’ business and property occurred by reason of the State Action and
“final judgments” in the Arizona state court proceeding.
25
10 property, additional injury (injury which is additional to the injury to Plaintiffs alleged in Counts One, Two,
Three, Four, and Seven of the Amended Complaint) for which the Defendants in the Case at bar are jointly and
11 severally liable toPlaintiffs. See Issues # 1, #2, and #3, of Davidsons’ Petition for Writ of Certiorari (U.S.
12 Supreme Court Docket # 06-398, certiorari denied on November 6, 2006). See Davidsons’ Supplemental Brief
and Davidsons’ Petition for Rehearing (U.S.Supreme Court Docket # 04-1687). See signed Court order of May
13
5, 2006, for distribution of surplus funds to applicants Jay and Eudice Grossman, in the sum of $226,469.90,
14 from the nonjudicial foreclosure sale of Davidsons’ real property, in Tucson, AZ. See file-stamped copy of the
Order of May 5, 2006, signed by Judge John Davis. See the Application for Turnover Order and the
15
Application for the Appointment of a receiver for Davidsons’ medical practice (Dominion Health Services,
16 P.A., a Texas Professional Association) with the clerk of the 188th District Court in Gregg County, Texas,
Cause No. 2005-93-A. See the Notice of Constable Sale (personal property), signed on July 24, 2006, by
17
Constable Bill Echart, Gregg County Texas, that states, “The above property is levied on as the property of
18 Robert Michael Davidson and Vanessa Komar Davidson”. See the Arizona Corporation Commission corporate
inquiry on 12/19/2006, re: Tranquility Ventures LLC. See the recent Pima County Assessor’s Office download
19
for the entity, Tranquility Ventures LLC.
20 88. Davidsons seek coercive relief (compensatory and punitive damages) in this Count (Count Seven) which is
supplemental to the coercive relief sought in Counts One, Two, Three, and Four, to this Amended Complaint.
21
See the Prayer for Relief below.
22 TOLLING THE STATUTE OF LIMITATIONS
89. Plaintiffs filed their initial RICO action in Arizona on February 19, 2003. The statute of limitations is
23
tolled, for all of the counts to this Amended Complaint, under the doctrine of fraudulent concealment, the
24 doctrine of continuing tort, the doctrine of concerted action (conspiracy), the doctrine of equitable tolling, the
doctrine of regulatory estoppel, and the doctrine of constitutional regulatory estoppel. Plaintiffs incorporate
25
here by reference ¶ 8.78 - ¶ 8.85.
12 4. For such other and further relief as the Court may deem appropriate pursuant to 18 U.S.C.A. Section
1964, 28 U.S.C.A. Section 2202, 42 U.S.C.A. Section 1983, and 42 U.S.C.A. Section 1985.
13
5. For such other and further relief as the Court may deem proper and just in the premises.
14 6. For trial by jury on all issues so triable.
15
RESPECTFULLY SUBMITTED, this 16th Day of April, 2007, by
16
____________________________ and ____________________________
17
ROBERT MICHAEL DAVIDSON VANESSA ELAINE KOMAR
18 Representing themselves, Pro Se.
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