Sturgeon v. Pharmerica Corp., 2020 U.S. Dist. LEXIS 21935, 2020 WL 586978 (E.D. Pa. Feb. 5, 2020):

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B. Administrative Reports

Courts may also take judicial notice of “records and reports of administrative bodies.”⁶⁹ PharMerica requests judicial notice of three documents in this category. Two are administrative guidance manuals issued by CMS.⁷⁰ The third is a report on standard practices within the long-term care pharmacy industry, which appears to have been commissioned by CMS and prepared by a consultant, the Lewin Group.⁷¹

Relators argue that the Court should decline to take judicial notice of these reports because they are not authenticated.⁷² PharMerica responds that information found on government websites is considered authenticated, and that these three reports are reliable in that they are not subject to change at any time, like most websites, because they are either archived or contain a “change log that tracks all revisions.”⁷³

*6 PharMerica is correct that information found on government websites is widely considered both self-authenticating and subject to judicial notice.⁷⁴ Indeed, these CMS reports are not just information on a government website—they are published reports of a federal agency that happen to be available online.⁷⁵ The question remains, however, whether to take judicial notice of these reports only for their existence, or also for the truth of their contents. PharMerica cites these three reports in its briefs to support factual assertions about the business model of the long-term care pharmacy industry and the regulatory environment in which long-term care pharmacies operate, based on which it argues that pharmacy fraud is inherently implausible because the pharmacy industry is so closely regulated.

69 Golden, 293 F. Supp. 2d at 551; see Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1197 (3d Cir. 1993).

70 Doc. No. 77, Ex. I (U.S. Dep’t of Health & Human Servs., CMS, Pub. No. 100-07, State Operations Manual:

Appendix PP – Guidance to Surveyors for Long-Term Care Facilities (Rev. 173, Nov. 22, 2017)); id., Ex. J (U.S. Dep’t of Health & Human Servs., CMS, Pub. No. 100-07, State Operations Manual: Chapter 7 – Survey and Enforcement Process for Skilled Nursing Facilities and Nursing Facilities (Rev. 185, Nov. 16, 2018)).

71 id., Ex. K (The Lewin Group, CMS Review of Current Standards of Practice for Long-Term Care Pharmacy Services (Dec. 30, 2004)).

72 Relators’ Mem. Opp. Mot. for Judicial Notice [Doc. No. 58] at 4–6. Relators also objected that PharMerica had provided only hyperlinks to the reports online but had not attached copies of the documents. It is obviously problematic to take judicial notice of materials found online based only on hyperlinks. After all, one of the hyperlinks PharMerica provided in its Memorandum stopped working after PharMerica filed its Motion on July 22, 2019, and another hyperlink in its Reply Memorandum stopped working sometime after September 26, 2019. The Court assumes, of course, that both hyperlinks worked when PharMerica filed its briefs. The concern is not so much that the documents themselves might change, but that their location on the internet might change—as it apparently has here—leaving unclear to future readers what was in the record before the court. The best practice would be for a party seeking judicial notice to both attach copies as exhibits to the motion for judicial notice and hyperlink to the website where the material can be found. Since that was not done here, the Court ordered PharMerica to provide copies of the documents for which it sought judicial notice and PharMerica did so. Doc. No. 74; Doc. Nos. 77, 78.

73 PharMerica’s Reply Mem. Supp. Mot. for Judicial Notice [Doc. No. 61] at 1–2.

74 See Gregory P. Joseph, Judicial Notice of Internet Evidence, 82 U.S. Law Week No. 34, at 2 (Mar. 11, 2014) (collecting cases); see also United States v. Allergan, 746 F. App’x 101, 108 (3d Cir. 2018) (taking judicial notice of CMS administrative guidance); Spay, 913 F. Supp. 2d at 139–40 (same).

75 See In re Wellbutrin SR/Zyban Antitrust Litig., 281 F. Supp. 2d 751, 754 n.2 (E.D. Pa. 2003) (“The fact that an agency report is ‘published’ on the world wide web does not affect the Court’s ability to take judicial notice of the contents of that report.”).

It would be one thing to rely on the CMS manuals as showing what was publicly known at a given time in order to prove, for example, that the defendants were not on notice that certain conduct was fraudulent.⁷⁸ But PharMerica seeks to rely on them as substantive evidence that comprehensive regulations governing the pharmacy industry make pharmacy fraud categorically implausible. The Court declines to foreclose all proof on such a central question by looking outside the record at the motion-to-dismiss stage, so these materials will be judicially noticed only for their existence and not for their truth.

78 See Allergan, 746 F. App’x at 108

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