Update: Court date may be imminent in Nichole Medical vs. TriCenturion
The last we visited Dominic Rotella of Nichole Medical Equipment & Supply, his attorney had just filed a 31-page brief with the U.S. Court of Appeals for the Third District, and he was waiting for the Department of Justice (DOJ) to submit a response brief.
At issue, if you'll recall from my story in August: Rotella, who fought an audit and won, is suing TriCenturion, the CMS contractor that conducted the audit, for $10 million in damages. His lawsuit was dismissed by the U.S. district court for the eastern district of Pennsylvania, which argued that TriCenturion, as a government agency, has “official immunity” from the claims, but he appealed.
Well, the DOJ submitted a response brief on Dec. 7, asking the appeals court to affirm the district court's decision.
Two days later, however, the appeals court sent an request to Rotella's attorney, asking him whether he's available for oral argument in Philadelphia on a dozen dates in March of 2012. What this means, according to Rotella: The court is moving forward with his case and denying the DOJ's request.
"That a court is willing to hear what we have to say is a major hurdle that we've overcome," he told me today.
Now the ball's back in Rotella's court. His attorney must file a response brief to the DOJ's response brief by Dec. 21. His lawyer must also get back to the court about his availability by Dec. 16.