Archives: Litigation

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Don’t miss Emerging Issues in Healthcare Law

Emerging Issues in Healthcare Law is coming to the Big Easy. The American Bar Association’s 18th annual conference is slated for New Orleans March 8-11. Husch Blackwell is a platinum sponsor of this event featuring the most emergent topics facing the healthcare bar. As the industry faces changes and continues to grow under healthcare reform … Continue Reading

Challenge to the doubling of the white collar salary exemption under FLSA

As most are aware, on May 18, 2016, the U.S. Department of Labor (DOL) released its much anticipated final rule, drastically increasing the salary requirements to qualify as an exempt executive, administrative or professional employee. The DOL estimates that the final rule will extend overtime protections to 4.2 million workers in the first year of … Continue Reading

Calls and text messages from healthcare organizations: New developments under the TCPA’s ’emergency purpose’ exception

The Telephone Consumer Protection Act (TCPA), which imposes a penalty of $500-$1,500 per violation for pre-recorded or auto-dialed calls to cell phones, contains two statutory exceptions to liability: where the recipient of the call provided his or her prior express consent to be called, or where the call was placed for an “emergency purpose.” 47 … Continue Reading

Fifth Circuit decision finds new exception to at-will employment: employee gun rights

Recently, Husch Blackwell partners Stephen Cockerham and Kevin Koronka presented a webinar to Texas employers concerning the impact legislation concerning gun rights may have on employers. The Fifth Circuit Court of Appeals, the federal appellate court with jurisdiction over Texas federal district courts, recently released a decision concerning employee gun rights of which employers, particularly … Continue Reading

Out-of-network still in business

The out-of-network (OON) business model faces challenges as the result of changes to health and benefit plan OON coverage, but a ruling by Judge Hoyt of the U.S. District Court for the Southern District of Texas suggests that health plans should be careful in refusing payment based on perceived OON high charges, questions about OON … Continue Reading

How the Supreme Court will limit False Claims Act liability for implied certification

In some courts in the United States today, a government contractor or a healthcare provider seeking reimbursement from a federal program can violate the False Claims Act even when its work is satisfactory and its invoices are correct. Under the theory of “implied certification,” a minor instance of non-compliance with one of the thousands of … Continue Reading

Court strips importation and sale of ‘gray market’ glucose test strips in U.S.

Abbott Labs recently obtained a preliminary injunction prohibiting numerous pharmacies, wholesalers, and other distributors from importing or otherwise using in the U.S. Abbott’s FreeStyle® blood glucose test strips that are intended for sale internationally. Chief Judge Amon of the Eastern District of New York found that Abbott is likely to succeed on the merits of … Continue Reading

No Purple Communications exception applied to healthcare providers

In an Aug. 27, 2015, decision, a majority of the Board found that the Purple Communications standard, with respect to an employer’s email system, would apply without exception to healthcare providers and, in particular, for acute care hospitals. Contrary to the cogent arguments put forth by member Johnson in his dissent, the majority found there should … Continue Reading

Husch Blackwell No. 7 among Modern Healthcare’s largest healthcare law firms; No. 5 on AHLA’s list

National healthcare publication Modern Healthcare yesterday announced Husch Blackwell LLP is the seventh-largest healthcare law firm in the U.S. according to its 2015 rankings, up from No. 12 last year. Utilizing differing measurement techniques, American Health Lawyers Association also ranked healthcare practices, placing Husch Blackwell as fifth-largest in the country in its 2015 list, released … Continue Reading

Missouri tort reform reformed again: medical malpractice damage caps reinstated

On May 7, 2015, Governor Jay Nixon signed Senate Bill 239 into law and reinstated damage caps for Missouri medical malpractice cases. While Missouri law previously limited damages in wrongful death actions, healthcare providers faced limitless verdicts in all other medical malpractice lawsuits. Not anymore. Under the new law, plaintiffs cannot recover more than $400,000 … Continue Reading

UPDATE: FTC victory creates challenge for physician acquisitions

The U.S. Court of Appeals for the 9th Circuit affirmed a lower court’s findings Feb. 10, 2015, that the acquisition by St. Luke’s Health System (“St. Luke’s”) of Saltzer Medical Group (“Saltzer”), a physician group consisting mostly of primary care physicians, violated Section 7 of the Clayton Act. This is the first case in which … Continue Reading

Barko v. Halliburton: The next (and final?) chapter

Despite getting a rare Writ of Mandamus from the D.C. Circuit Court of Appeals establishing that its internal investigations were covered by the attorney-client privilege, Kellogg Brown & Root must still turn them over. As predicted in our earlier posts on Barko v. Halliburton, Judge James Gwin has ruled that KBR waived the attorney-client privilege that … Continue Reading

The Written Description Requirement

Case law regarding written description is in a state of flux so it is beneficial for the patent practitioner to understand some key Federal Circuit decisions involving the written description requirement. One might ask why a separate written description of the invention is needed in the specification when the claims are there to define the … Continue Reading

Tenn. federal court OKs extrapolation to establish liability in False Claims Act case

The U.S. District Court for the Eastern District of Tennessee answered what it acknowledged was a novel question: whether statistical sampling and extrapolation are appropriate to establish liability under the False Claims Act (FCA). The court found the government could extrapolate from a sample of patient records to prove FCA liability. While the court’s decision … Continue Reading

Husch Blackwell more than doubles its presence on Benchmark Litigation’s 2015 List; 8 healthcare attorneys recognized

Husch Blackwell received significant recognition as a top litigation firm in the 2015 edition of Benchmark Litigation’s annual nationwide rankings. The list includes 8 healthcare attorneys from the firm’s Illinois and Missouri offices. Husch Blackwell had 22 attorneys total named on the list. Husch Blackwell’s Litigation practice received the commendable “Recommended” ranking in Missouri and Nebraska, and the firm … Continue Reading

Cutting dietary supplement red tape

Dietary supplements represent a huge sector of the consumer market and changes in both intellectual property law and the regulations governing the market entry and advertising of these products is changing. The new America Invents Act allows anyone to challenge the validity of patents under the inter partes review (IPR) process. In a Sept. 9 … Continue Reading

Hospital incident report not privileged, court says

The Kentucky Supreme Court issued an opinion Aug. 21, 2014, (Tibbs v. Bunnell, Ky., No. 2012-SC-000603-MR)  in which it held that the incident report developed by the University of Kentucky Hospital (“hospital”), through the hospital’s Patient Safety Evaluation System (“PSES”), following the death of a patient, was not protected as patient safety work product (“PSWP”) … Continue Reading

Courts issue conflicting rulings on ACA subsidies

The Patient Protection and Affordable Care Act (ACA) has always faced tremendous challenges due to the sheer magnitude of both the changes it authorized and the people it will impact. Now two different Federal Circuit Courts of Appeal have made the law’s implementation even more difficult by issuing conflicting rulings on the same day.… Continue Reading

Barko v. Halliburton—How the D.C. Circuit’s decision reaffirms the attorney-client privilege in internal investigations

The attorney-client privilege applies with equal force to internal investigations today as it did 30 years ago thanks to the D.C. Circuit’s recent decision in In re: Kellogg Brown & Root, Inc., No. 14-5055 (D.C. Cir. June 27, 2014). The appeals court decision vacates the March 6, 2014, district court decision in the same case. At the district court, … Continue Reading

The business case for inter partes review of patents by generic pharma

Several parts of the America Invents Act (the “AIA”) became law on Sept. 16, 2012, sparking some of the most meaningful changes to patent law seen in decades. One hot provision in the new law is the ability for one to challenge a patent’s validity in a new inter partes review (“IPR”) process. This legal … Continue Reading

So You Want to be a Plaintiff’s Healthcare Liability Attorney?: The Risks of Non-Compliant HIPAA Medical Authorizations in Tennessee Pre-Suit Notices

The author wishes to thank Andrew M. Hodgson for his assistance in preparing this post. Andrew is an Associate in the Firm’s Chattanooga office.  As I approach the quarter century mark of my practice as a tort, healthcare and commercial litigator, predominately on the defense side, I reflect on some of the land mines that … Continue Reading

Pfizer Appeal Targets Fraudulent Drug Marketing Claims Brought Under Civil RICO Statute

Pfizer, Inc. recently petitioned the Supreme Court, seeking review of three companion decisions from the First Circuit Court of Appeals.  These decisions found against Pfizer and in favor of multiple third-party payors (TPPs)—the Kaiser Foundation Health Plan, Inc. (an HMO), Aetna, Inc. (a health insurer), and a putative class of employer health plans—on civil Racketeer … Continue Reading

Federal Appeals Court Rejects Whistleblower's Medical Device Defect Claim

On August 20, the Fifth Circuit Court of Appeals rejected a whistleblower claim by a former employee of Cardinal Health, Inc., affirming dismissal of the former employee’s complaint, which alleged that Cardinal Health sold hospitals run by the U.S. Department of Veterans Affairs defective medical equipment, in violation of the False Claims Act (FCA). Before her … Continue Reading