A judge has dismissed much of a 2011 fraud lawsuit against Eastern Kentucky disability attorney Eric C. Conn, largely because the whistleblowers who filed it did not provide evidence that any specific Conn client improperly won disability benefits.
U.S. District Judge Amal Thapar on Monday dismissed six counts and part of a seventh in a False Claims Act suit filed by Jennifer Griffith and Sarah Carver, who worked in the Huntington, W.Va., office of the Social Security Administration. Thapar also dismissed as defendants three doctors whom Conn paid to provide the necessary medical records showing that his clients were disabled.
Griffith and Carver face a "fundamental problem: they have not adequately alleged that any claim was false or fraudulent," Thapar wrote.
But the suit can proceed with counts alleging that Conn conspired with Social Security Administrative Law Judge David Daugherty to collect legal fees to which he was not entitled and that he failed to disclose on various forms that he resigned from his practice before the U.S. Court of Appeals for Veterans Claims during an investigation into allegations of professional misconduct, Thapar ruled.
The women's suit — which was unsealed and made public in early 2013 — alleged that Conn conspired with Daugherty to improperly assign thousands of Conn's cases to Daugherty's courtroom, where Daugherty awarded disability benefits to undeserving clients based on falsified medical records.
Along with a 2011 story in the Wall Street Journal, the case began a national controversy about Conn's Floyd County law practice that led to televised U.S. Senate hearings and continues today. Conn faces seven lawsuits in Kentucky and West Virginia filed by former clients whose disability benefits briefly were terminated this year by the Social Security Administration amid fraud concerns. Conn has not been charged with any crime.
Conn was pleased this week by Thapar's ruling, said one of his attorneys, Kent Wicker. What remains is a relatively weak case, Wicker said.
"The plaintiffs, after four years of litigation, have not been able to show that any benefits were paid to any person who did not deserve them," Wicker said. "We shouldn't have to defend ourselves against a hypothetical."
Conn is moving to dismiss the other suits, filed by his former clients, on the grounds that U.S. Rep. Hal Rogers, R-Somerset, was able to get their government checks restored, Wicker said.
"As of now, nobody has been harmed, nobody has lost benefits, so there is no injury," Wicker said.
Mark Wohlander, who represents the whistleblowers, said his clients are comfortable with Thapar's decision.
"We think we're gonna go forward with what's left. We think there's enough still here to move forward and begin discovery," Wohlander said.
During the discovery process, when both sides must share information with each other, it's likely that Griffith and Carver will be able to find the specific example of fraud that the judge said was necessary, Wohlander said.
"I would suspect that once we get into discovery — we have a list of 500 people whose benefits were terminated based on what Eric Conn did to them, who have come out and asked for help keeping their benefits," he said. "I think we're gonna be able to build a case with them, and then we can file an amended complaint."
Under the federal False Claims Act, whistleblowers can collect a portion of the money recovered from cases in which the federal government is defrauded if they provided original and relevant information that helps make the case.