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Sample Affirmative Defenses for Health Care Provider Against False Claims Act Complaint

Posted by: on Wed, Mar 20, 2013

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AFFIRMATIVE DEFENSES TO ALL CAUSES OF ACTION

FIRST AFFIRMATIVE DEFENSE

            Plaintiff has failed to state a claim upon which relief can be granted.

SECOND AFFIRMATIVE DEFENSE

            By her own actions and omissions, Plaintiff is estopped from asserting any claims or recovering any damages against the Defendant in this case.

THIRD AFFIRMATIVE DEFENSE

            By her own actions and omissions, Plaintiff has waived any rights that he might otherwise have had against the Defendant in this case.

FOURTH AFFIRMATIVE DEFENSE

            Plaintiff has failed to mitigate her alleged damages.

FIFTH AFFIRMATIVE DEFENSE

            Plaintiff’s claims are barred by the doctrine of unclean hands.

SIXTH AFFIRMATIVE DEFENSE

            Plaintiff’s claims are barred by the doctrine of laches.

SEVENTH AFFIRMATIVE DEFENSE

            The occurrences referred to in Plaintiff’s Complaint and all damages, if any, resulting therefrom were caused by the acts or omissions by third parties over whom this answering Defendant had no control.

EIGHTH AFFIRMATIVE DEFENSE

            Plaintiff’s alleged losses, injuries, damage or detriment were directly and proximately caused and contributed to by Plaintiff’s own conduct, acts, omissions, activities, carelessness, recklessness, negligence, and/or intentional misconduct thereby completely or partially barring Plaintiff’s recovery herein.

NINTH AFFIRMATIVE DEFENSE

            The damages and injuries, if any, incurred by Plaintiff, are not attributable to any act, conduct or omission on the part of this answering Defendant.

TENTH AFFIRMATIVE DEFENSE

            Plaintiff’s claims should be reduced, modified and/or barred by the Doctrine of Unclean Hands.

ELEVENTH AFFIRMATIVE DEFENSE

Plaintiff’s claims are barred by failure or inadequacy of consideration.

TWELFTH AFFIRMATIVE DEFENSE

            Plaintiff’s claims are barred by the applicable statutes of fraud, statutes of repose, by laches, and by any and all other time-bar defenses or other similar defenses relating to the failure of the Plaintiff to timely pursue his claims.

THIRTEENTH AFFIRMATIVE DEFENSE

              Plaintiff’s claims are barred by the Plaintiff’s own tortuous conduct and are offset by the damages due and owing to Defendant by virtue of the Plaintiff’s own conduct and liability due and owing to Defendant.

FOURTEENTH AFFIRMATIVE DEFENSE

              Plaintiff’s claims are barred by a failure to satisfy a condition precedent.

FIFTEENTH AFFIRMATIVE DEFENSE

              Plaintiff has failed to comply with conditions precedent and/or other prerequisites to asserting a claim, and Plaintiff is therefore not entitled to any recovery.

SIXTEENTH AFFIRMATIVE DEFENSE

              Plaintiff’s alleged damages, if any (which are expressly denied), were caused or contributed to by Plaintiff’s own actions or omissions, thereby reducing the amount that Plaintiff may recover.

SEVENTEENTH AFFIRMATIVE DEFENSE

              Plaintiff has approved and ratified the alleged acts of Defendant of which Plaintiff now complains.

EIGHTEENTH AFFIRMATIVE DEFENSE

              The damages alleged by Plaintiff were caused by foreseen risks which Plaintiff had knowledge of and assumed.

NINETEENTH AFFIRMATIVE DEFENSE

              The Plaintiff is barred from obtaining relief against Defendant because Defendant’s conduct was at all times reasonable, proper, in good faith, and in compliance with applicable law.

TWENTIETH AFFIRMATIVE DEFENSE

              The Plaintiff’s claims are barred against this Defendant inasmuch as Plaintiff’s claims have been rendered moot or are not ripe for adjudication at this time.

TWENTY-FIRST AFFIRMATIVE DEFENSE

              Defendant’s conduct was not the proximate cause of the Plaintiff’s alleged injuries or damages, if any.

TWENTY-SECOND AFFIRMATIVE DEFENSE

              No act or omission of this Defendant was malicious, willful, wanton, reckless or made with intent to violate any statute or law.

TWENTY-THIRD AFFIRMATIVE DEFENSE

              The Plaintiff has failed to plead fraud with the adequate degree of specificity and particularity as required by applicable statutory and/or common law.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

              The Complaint is precluded by the Public Disclosure bar of the False Claims Act.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

              The Plaintiff’s claims are barred because this Defendant, at all times relevant hereto, complied with all applicable laws and regulations.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

              The damages, including, but not limited to special damages, alleged by Plaintiff, if any, which damages are specifically denied by this Defendant, were not foreseeable.

TWENTY-SEVENTH  AFFIRMATIVE DEFENSE

              The Plaintiff has failed to plead with specificity any factual allegations to establish the requisite statutory elements.  The Plaintiff has failed to set forth adequate or ultimate facts necessary to show or establish that the Plaintiff is entitled to Relief under the False Claims Act.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

              The Complaint is barred because this Defendant never knowingly presented a false or fraudulent claim for payment or approval.

TWENTY-NINTH AFFIRMATIVE DEFENSE

              The Complaint is barred because this Defendant never knowingly made, used or caused to be made or used, a false record or statement material to a false or fraudulent claim.

THIRTIETH AFFIRMATIVE DEFENSE

              Pursuant to NRCP 11, all possible affirmative defenses may not have been alleged herein insofar as insufficient facts were available after reasonable inquiry upon the filing of this Answer and, therefore Defendant reserves the right to amend its Answer to allege additional affirmative defenses if subsequent investigation so warrants.

THIRTY-FIRST AFFIRMATIVE DEFENSE

It has been necessary for this answering Defendant to retain the services of attorneys to defend this action and therefore this answering Defendant is entitled to a reasonable sum for attorneys’ fees together with the costs expended in this action.

THIRTY-SECOND AFFIRMATIVE DEFENSE

              These answering Defendants hereby incorporates by reference those affirmative defenses enumerated in Rule 8 of the Nevada Rules of Civil Procedure as fully set forth herein.  In the event further investigation or discovery reveals the applicability of any such defenses, this answering Defendant  reserves the right to seek leave of this Court to amend his answer to specifically assert the same.  Such defenses are herein incorporated by reference for the specific purpose of not waiving the same.

WHEREFORE, Defendant prays that:

1.         Plaintiff take nothing by way of their Complaint;

2.         Plaintiff ’s claims be dismissed with prejudice;

3.         Judgment be entered in favor of Defendant for reasonable costs and attorneys’ fees incurred herein; and

4.         Other and further relief be granted as the Court deems just and proper.

DATED this _____day of March, 2013.

ALBRIGHT, STODDARD, WARNICK & ALBRIGHT

____________________________________________

G. MARK ALBRIGHT, ESQ.

Nevada Bar No. 001394

801 South Rancho Drive, Suite D-4

Las Vegas, Nevada 89106

(702) 384-7111

Attorneys for Defendant

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on personal injury accidents. Call us at 702-384-7111.

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