facts underlying the claims CARD submitted. See 31 U.S.C. §3731(b)(2); e.g.

United States ex rel. Purcell v. MWI Corp., 254 F. Supp. 2d 69, 78 (D.D.C. 2003).

The district court did not err at the summary judgment stage by concluding that the

earliest alleged false claim was not barred by the statute of limitations.

2. CARD also challenges several jury instructions. We review de novo

whether the jury instructions correctly state the law. Peralta v. Dillard, 744 F.3d

1076, 1082 (9th Cir. 2014) (en banc). “Jury instructions must be supported by the

evidence, fairly and adequately cover the issues presented, correctly state the law,

and not be misleading.” Id. An instruction error requires reversal “unless the error

is more probably than not harmless.” Clem v. Lomeli, 566 F.3d 1177, 1182 (9th

Cir. 2009) (quoting Dang v. Cross, 422 F.3d 800, 811 (9th Cir. 2005)).

a. CARD’s appeal involves 112 claims for which CARD submitted

Medicare eligibility forms certifying that the patients had been diagnosed with an

asbestos-related disease, even though no CARD doctor had made that diagnosis.2

2 Although CARD challenges only 112 claims, BNSF presented evidence of more than 1,000 claims of fraud to the jury. The jury found CARD liable for 337 claims, and the verdict form did not specify which claims comprised the verdict. But there are 333 claims for which there was no radiologist read identifying a possible asbestos-related disease. The governing statute, 42 U.S.C. § 1395rr-1, requires radiographic support. Id. § 1395rr-1(e)(2)(B)(i)(I). There are two claims for diagnoses signed by a nurse but no physician, and several other claims submitted for CARD staff members without radiographic support. CARD does not challenge these sets of claims. “Because we cannot determine one way or another” whether the jury’s verdict rested in part on the 112 claims CARD challenges, “we cannot

3 For each of these claims, CARD relied on radiological reads from an outside “B-

Reader.”

CARD argues on appeal that the Affordable Care Act, 42 U.S.C. § 1395rr-

1(e)(2)(B)(i), permitted it to submit these forms based solely on the positive “B-

Read,” and therefore challenges the district court’s definition of “diagnosis” in

Instruction F-24. There is no dispute, however, that the statute requires a

diagnosis by someone.3 42 U.S.C. § 1395rr-1(e)(2)(A)(i) (“An individual

described in this paragraph is any individual who . . . is diagnosed with 1 or more

conditions described in subparagraph (B)[.]”). But CARD conceded before trial

that “B-Readers do not diagnose,” and that “an abnormality detected by a B-reader

is not considered a diagnosis of asbestos related disease.”4 Given the statutory

requirement for a diagnosis and CARD’s stipulations, any error in the F-24

say that the verdict would have been the same” without the district court’s alleged errors. Clem, 566 F.3d at 1183. 3 CARD’s briefing in part argued that the text of the statute was ambiguous and required Chevron deference to agency interpretations. We no longer recognize Chevron deference after Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2254 (2024). But even if we were to give agency interpretations persuasive effect, Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), CARD’s argument fails for the reasons stated herein. We thus deny as moot CARD’s Motion for Judicial Notice of a purported agency interpretation, Dkt. No. 35. 4 The evidence at trial also showed that CARD sent letters to many of the “B-read only” patients for whom it filed Medicare claims stating that they “had no diagnosis of asbestos related disease.”

4 instruction was harmless.5 See Clem, 566 F.3d at 1183.

b. Instruction F-23 read, in part, “Certification of a person as eligible for

Medicare coverage . . . who does not satisfy these requirements is a false claim.”

CARD contends this instruction compelled the jury to find CARD liable for false

statements without finding scienter. But CARD did not make this objection at

trial.6 Fed. R. Civ. P. 51(c)(1). Thus, we review only for plain error. Fed. R. Civ.

P. 51(d)(2); Skidmore v. Led Zeppelin, 952 F.3d 1051, 1065 (9th Cir. 2020) (en

banc). We find none. Instruction F-23 pertained to the falsity element of the FCA,

not the scienter element. Jury instructions are reviewed “as a whole.” Led

Zeppelin, 952 F.3d at 1065. The district court properly instructed the jury that

CARD was liable only if BNSF could prove each of the required elements of the

FCA, including scienter, and the court separately instructed the jury on scienter.

c. CARD also argues that Instruction F-20 erroneously stated the law and

precluded the jury from considering CARD’s contention that it lacked scienter

when it submitted the “B-Read only” claims because it thought it was following

5 Nothing in this memorandum should be construed to deny Medicare eligibility or benefits to the patients listed in BNSF’s claims against CARD. We consider eligibility only through the lens of the FCA, and do not reach whether these patients are, in fact, Medicare eligible. 6 CARD’s sole objection to Instruction No. F-23 was that the last sentence should be omitted because “these are the requirements, but the summary is not one of the requirements of the diagnosis.”

5 agency directives. Instruction F-20 stated: “In evaluating a defendant’s

knowledge, you may consider that parties who seek public funds are expected to

know the law and may not rely on the conduct of Government agents contrary to

law.” This instruction accurately recites the law. Heckler v. Cmty. Health Servs.

of Crawford Cnty., Inc., 467 U.S. 51, 63 (1984) (“Protection of the public fisc

requires that those who seek public funds act with scrupulous regard for the

requirements of law . . . . [T]hose who deal with the Government are expected to

know the law and may not rely on the conduct of Government agents contrary to

law.”). Instruction F-20 also states the “good faith” rule central to CARD’s

defense: “A defendant who relies on a good faith interpretation of a regulation is

not subject to liability under the Act, even if that interpretation is objectively

unreasonable.” Instructions F-18 and F-19 further detail the scienter element.

Viewing the jury instructions “as a whole,” Led Zeppelin, 952 F.3d at 1065, the

instructions accurately explained the scienter element and the jury was free to

make its own determination of whether CARD’s “B-Read only” practice was

“honestly held.” See Winter ex rel. United States v. Gardens Reg’l Hosp. and Med.

Ctr., Inc., 953 F.3d 1108, 1117–18 (9th Cir. 2020).

3. The district court did not err by excluding testimony of Senator Baucus

pursuant to Evidence Rule 403 because it carried a high risk of unfairly prejudicing

the jury. District courts have “wide discretion” to determine the admissibility of

6 evidence, and “[t]his is particularly true with respect to Rule 403 since it requires

an on-the-spot balancing of probative value and prejudice[.]” Sprint/United Mgmt.

Co. v. Mendelsohn, 552 U.S. 379, 384 (2008). The district court also reasoned that

it was the court’s role to instruct the jury on the controlling law, which was the

subject of the proposed testimony. Moreover, CARD was able to present

alternative evidence of its subjective beliefs and purported “good faith

interpretations” of the ACA.

AFFIRMED.

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