The Sixth Circuit recently followed a line of precedent (and other more recent decisions from the Sixth Circuit) and reversed a 2017 Northern District of Ohio decision finding certain collective bargaining agreements vested plaintiffs with lifetime healthcare benefits, reports Seyfarth Shaw in its ERISA & Employee Benefits Litigation Blog.

The court found that the CBAs covering the retirees lacked clear, affirmative language that Whirlpool had an obligation to fund their health benefits after the expiration of the agreements’ general durational clause.

The court ruled that “either a CBA says clearly and affirmatively — that is unambiguously — that its general durational clause doesn’t control the termination of healthcare benefits, or the clause controls.”

Read the article.

A new Trump administration rule for family-planning grants could trigger a national public health crisis, the American Medical Association and Planned Parenthood said in a lawsuit Tuesday challenging the rule, reports the Associated Press.

In addition to the AMA/Planned Parenthood lawsuit, the rule is being challenged in a lawsuit filed Monday by California officials and another filed Tuesday by officials in 20 other mostly Democratic controlled states.

The Department of Health and Human Services rule would prohibit family planning clinics funded by the federal Title X program from making abortion referrals — a provision that critics denounce as a “gag rule.”

“Pregnancies that are unintended, and thus riskier, will increase. The number of abortions will also increase. And there will be fewer tests for sexually transmitted infections and cancer screens — putting patients and their partners at great health risk,” the lawsuit said.

Read the AP article.

Michael Best announced that Victoria Lovato has joined the firm’s Litigation Practice Group as senior counsel in Denver. Lovato will focus her practice representing business, health care, and legal professionals in administrative and general litigation matters, specifically those involving licensing, regulatory, and disciplinary action.

“The Denver market is a growing epicenter for healthcare and wellness companies and organizations, and will remain a sector focus for our firm well into the future,” said Sarah Ehrhardt, Co-Managing Partner of Michael Best’s Denver Office. “We’re excited to have Victoria’s subject-matter expertise on our bench of talented litigators to help us navigate client’s concerns doing business here.”

Prior to joining Michael Best, Lovato was a Director at S&D Law, a position she held since January 2007. She also worked as general counsel to the Colorado Medical Board through the Colorado Attorney General’s Office earlier in her career.

Outside her practice, Lovato participates in several professional organizations, including as a Commissioner on the Denver Latino Commission and a member of the Colorado Bar Association’s Ethics Committee. She also serves on the Board of Directors for Goodwill Industries, and as a member of the Colorado, Denver, Colorado Hispanic and Colorado Women’s Bar Associations. In 2005, she served as President of the Colorado Hispanic Bar Association.

Lovato received her J.D., cum laude, from the Arizona State University College of Law, where she was Managing Editor of the Arizona State Law Journal, and earned her B.A. in Mathematics from Colorado College.

For the second time in as many weeks, Chief Justice John G. Roberts Jr. has sided with liberal Supreme Court justices to disagree with how lower courts have interpreted Supreme Court precedent, reports The Washington Post.

“On Tuesday, Roberts was pointed in saying the Texas Court of Criminal Appeals has ‘misapplied’ a 2017 ruling that instructed that court to reconsider its analysis of whether death-row inmate Bobby James Moore was intellectually disabled, and thus ineligible for execution.” writes the Post‘s Robert Barnes.

And less than two weeks ago Roberts joined in blocking a Louisiana law that tightened restrictions on abortion providers.

Read the Post article.

Thousands of lawsuits against pharmaceutical companies, prescription drug distributors and pharmacy retailers for their role in causing the opioid epidemic are based on the legal strategy honed 20 years ago in epic litigation against the tobacco industry, said Fears Nachawati Law Firm trial lawyer Jonathan Novak in a special appearance on the Lawyer 2 Lawyer podcast.

Trial lawyers are demanding that manufacturers and companies along the prescription drug supply chain pay sweeping economic penalties for damages caused by opioid drugs. Attorneys for those harmed by opioids are working to force the companies to pay to stop the scourge of opioid addiction going forward, a course similar to the tobacco litigation in the 1990s, said Novak, who is a former lawyer for the Drug Enforcement Administration with experience investigating abuses by pharmaceutical companies.

“What we’re looking to do is similar to what was done in the tobacco litigation,” Novak said in an appearance on the Legal Talk Network’s Lawyer 2 Lawyer podcast. “We want to hold these parties responsible, and then we want them to pay to fix the problem that they deliberately caused.

“Because of the nature of what these companies did – the ignoring of federal law and state law, the malicious, heartless, thoughtless way these companies pushed opioids, which they knew were addictive – we need to hold them accountable,” he said. “In my work at DEA, one thing I found every single time is that these companies do not have any interest in altruism. They are not going to do what’s right. We need to make them do that.”

Bloomberg Law reports that Generic drug distributor P&L Development LLC’s general counsel and an outside firm may continue to represent P&L in its breach-of-contract and fraud suit against Bionpharma Inc., a federal court in North Carolina ruled.

Bionpharma wanted to disqualify Charles Cain, P&L’s general counsel. P&L is suing Bion for breach of supply agreements that Cain approved when he was general counsel at a defunct predecessor of Bion’s, explains Bloomberg’s Martina Barash.

But any confidential information about the predecessor’s capabilities that Cain acquired during the agreements’ drafting wouldn’t help P&L in this suit, the court said.

Read the Bloomberg Law article.

It was just a year ago when Brian Wallach, then an assistant U.S. attorney, received confirmation of a diagnosis of ALS.

Above the Law introduces the story:

“Just three months later, Wallach returned to Skadden Arps, the firm where he started his career, and he was welcomed back by the firm with open arms, despite his diagnosis. Although the average life expectancy for ALS is about two to five years, Wallach is doing more than simply tending to his own medical ailments. He and his wife, Sandra Abrevaya, recently launched I Am ALS, and they hope to raise $100 million of new funding to find a cure within three years.”

Read the Above the Law article.

The National Safety Council’s recently released report on preventable injury and fatality statistics, reveals that accidental opioid overdoses have overtaken car accidents as a leading cause of deaths among Americans, according to a post on the website of Androvett Legal Media & Marketing.

“For the first time since the early 1960s, the life expectancy of Americans is consistently decreasing. Irrespective of all the advances in medicine that have occurred since the early 1960s, Americans are actually living shorter lives than they did only 10 years ago. The primary reason for this decline is the opioid epidemic, which was created in substantial part by the irresponsible marketing and distribution of these drugs by major drug companies,” notes Dallas attorney Jeffrey Simon of Simon Greenstone Panatier, P.C.

Simon Greenstone and co-counsel collectively represent more than 50 counties in Texas as well as other states in opioid litigation, seeking to recover economic damages caused by the reckless and negligent spread of highly addictive opioid drugs in communities across the U.S.

“The fact that the risk of death from accidental overdose of opioid drugs now exceeds the death risk from motor vehicle crashes, fire, drowning or even gun assault is another grim testament to the fact that corporate misconduct can, and has, destroyed many innocent lives. On behalf of our clients, we will hold those companies accountable for the harm they’ve done.”

Healthcare lawyers Wendi Campbell Rogaliner and Scott Schardt have joined Bradley Arant Boult Cummings LLP’s newly opened Dallas office in the firm’s Healthcare Practice Group.

Both lawyers join Bradley from the Rogaliner Law Firm, a boutique health law firm Rogaliner founded 15 years ago.

“Wendi and Scott are top-notch attorneys who will strengthen our new Dallas office and expand the reach of our national healthcare practice,” said Jonathan M. Skeeters, Bradley’s Chairman of the Board and Managing Partner. “We know firsthand of their excellent work, and we are thrilled to welcome them to the firm, bringing us to over 50 attorneys who are licensed in Texas.”

In a release, the firm said Rogaliner and Schardt focus their practices on a variety of regulatory and transactional matters for healthcare providers, with a particular emphasis on hospital and health system operations.

“Wendi and Scott are highly respected in the health law bar and will be a tremendous resource for our clients,” added Travis Lloyd, chair of the firm’s Healthcare Practice Group. “Their addition deepens our bench, broadens our experience base, and bolsters our core strengths.”

Rogaliner has represented hospitals, physicians, and other healthcare providers for more than 20 years. She has experience in healthcare facility operations, and she is routinely called on to advise on transactions, contract negotiations, licensure and enrollment matters, clinical trial issues, and the intricacies of the Stark Law, Anti-Kickback Statute, Health Insurance Portability and Accountability Act (HIPAA), and Emergency Medical Treatment and Labor Act (EMTALA).

Rogaliner earned her law degree with honors from Southern Methodist University Dedman School of Law. Prior to owning and managing the Rogaliner Law Firm, she served as in-house counsel for a publicly held hospital system.

“After working in the healthcare industry for more than two decades, I can tell you that Bradley’s lawyers are among the most accomplished and well-respected in the industry. When I learned that they would be opening a Dallas office, I jumped at the opportunity to become part of their team. I’m proud and honored to join their ranks, and partnering with Dick Sayles and the lawyers that have joined him from the former Sayles Werbner team is the opportunity of a lifetime. I could not be more excited about expanding the scope of expertise Scott and I can offer to our clients from the Bradley platform, and we are both proud to be part of the founding lawyers of this Dallas office of Bradley,” said Rogaliner.

Schardt focuses his practice on regulatory matters applicable to hospitals and healthcare providers, including Stark Law and Anti-Kickback Statute compliance, Medicare provider enrollment and reimbursement, HIPAA and other compliance matters. He has represented healthcare providers in mergers and acquisitions, joint ventures and other transactions.

Schardt received his law degree from the University of Tulsa College of Law. He currently serves as chair of the Dallas Bar Association’s Health Law Section.

“Reforms in healthcare and an ever-changing business environment have created unique obstacles for healthcare providers and suppliers,” said Schardt. “I look forward to serving as a strategic advisor to Bradley’s healthcare clients.”

“The addition of Wendi and Scott to our new Dallas office immediately adds to the services we can provide to our clients in Texas and beyond,” said Richard A. “Dick” Sayles, managing partner of Bradley’s Dallas office. “We’re excited to have these talented lawyers joining our team and expect this is a sign of more exciting news to come from Bradley’s Dallas office.”

While a $4.7 billion jury verdict in a talc case against Johnson & Johnson in July was eye-popping — the sixth-largest ever in a product-defect case — J&J may pay far less, or nothing, reports Bloomberg. No verdict of that size has survived appeal.

“Indeed, of the 25 largest U.S. jury awards, 23 were reversed, drastically cut or against defendants with few or no assets who couldn’t pay, according to data compiled by Bloomberg. The remaining two, including the one against J&J, are being appealed. Most such revisions are by judges overruling angry jurors or enforcing court-imposed limits on punitive damages,” writes Bloomberg’s Margaret Cronin Fisk.

But even if the award is cut or reversed, a large verdict can draw other cases.

Read the Bloomberg article.

Janna King has joined FisherBroyles, LLP as a partner in the firm’s Houston office and Health & Pharmacy Law practice group.

“We are thrilled to welcome Janna to FisherBroyles in our Houston office,” said FisherBroyles’ General Counsel and Managing Partner of Litigation Joel M. Ferdinand. “Our healthcare clients will benefit greatly from Janna’s deep experience, both with Big Law and in-house, representing healthcare companies and institutions with a full range of corporate matters and transactions.”

King said, “I look forward to this new adventure with FisherBroyles in Houston. Through its efficient and cost-effective Law Firm 2.0 model, FisherBroyles offers great value and a high level of service to clients with diverse and complex legal challenges in the healthcare arena.”

In a release, the firm said King represents health care industry clients, including hospitals and health systems, outpatient rehabilitation, ambulatory surgery centers, physician practice groups, individual physicians, and home health agencies. Previously serving as general counsel for several multi-state, multi-site health care companies, she has been involved in health care transactions including asset purchase, stock purchase, merger, joint venture and management services transactions. In addition, she has served as general counsel for several private equity portfolio companies and as corporate secretary for multiple boards. King’s experience also includes payor relations, credentialing, managed care contracting and billing/reimbursement matters, and development and implementation of compliance programs, plans and policies, and health care audit and risk management programs.

Most recently, King served as general counsel and chief compliance officer for Professional PT (Professional Physical Therapy) clinics headquartered in New York.

She received her J.D. from the University of Memphis and her Bachelor of Science from Mid-America University.

Trial lawyers with Jordan, Lynch & Cancienne PLLC scored big defense wins recently for two separate clients, securing a quick summary judgment for The Dow Chemical Company in Texas and prevailing in a jury trial for Union Carbide Corporation in New Orleans.

In the Texas case, MMR Constructors Inc. tried to claim an additional $17 million from Dow after it had already paid MMR for work on its plant in Freeport, Texas. That case ended with a summary judgment for the defense.

And in the New Orleans case, jurors heard three weeks of testimony related to the death of an oil field worker who died of mesothelioma. The jury found Union Carbide and Montello were not responsible.

Read details of the cases.

Given U.S. District Judge Reed O’Connor’s previous decisions halting Obama administration policies, few legal observers were surprised when the conservative judge issued a ruling that declared the Affordable Care Act unconstitutional because of a recent change in federal tax law, reports The Dallas Morning News.

Reporter Kevin Krause quotes Josh Blackman, a law professor at South Texas College of Law in Houston: “Without question, Judge O’Connor has had a fairly high-profile docket, in that he gets a lot of these hot-button issues.”

The Texas attorney general has filed such cases in the Fort Worth and Wichita divisions of the Northern District of Texas because Paxton knows “with a high degree of certainty” they will wind up in O’Connor’s court, Blackman said.

“He has become a go-to judge for Republicans over certain heated national social issues such as health care and transgender rights,” Krause writes.

Read the Morning News article.

A long-term care facility can execute contracts with many different vendors including food product and service vendors, laundry and linen providers, IT companies, and others, points out a post from Poyner Spruill.

“Whether working for a single-site operator or a multi-facility system, a thorough review of all contracts and a careful consideration of the ‘what-ifs’ are crucial steps,” write the article’s authors, Christopher S. Dwight and Iain M. Stauffer.

They discuss eight key tips to help with the process, including defining the contract, contract intake, the review process, determining who has authority to sign the contract, the length of the term, termination provisions, dispute resolution and venue, and maintaining the executed copy of the agreement.

Read the article.

Image by Montgomery County Planning Commission

The Oklahoman reports that jurors wanted to send a message to health insurer Aetna after hearing how the company’s overworked doctors denied an Oklahoma cancer patient’s claim for coverage for proton beam therapy.

Reporter Nolan Clay writes that jurors awarded $25.5 million to the patient’s estate and to her husband, a retired Oklahoma City firefighter, in the bad-faith case against the company.

The patient, Orrana Cunningham, died in 2015 from a viral outbreak after getting treatment for the tumor in her head and returning home. She was 54.

Read the Oklahoman article.

The Broward Health board fired its general counsel Lynn Barrett as the Florida taxpayer-supported health system continues to struggle after a series of state and federal investigations related to alleged overspending, kickbacks and open-government law violations, reports Modern Healthcare.

“Broward Health doctors alleged during Wednesday’s board meeting that Barrett helped cultivate a hostile culture at the South Florida health system, which led to a ‘mass exodus’ of doctors that crippled the organization,” explains reporter Alex Kacik.

Barrett’s dismissal comes amid a controversy over an independent review process led by law firm Baker Donelson concerning a $69.5 million healthcare fraud settlement agreement reached in 2015.

Read the Modern Healthcare article.

An El Paso neurosurgeon is the subject of a lawsuit filed last week, accused of unlawfully conspiring with a local attorney to solicit legal representation for a dying truck wreck victim, according to a release from Androvett Legal Media & Marketing.

The lawsuit, filed by El Paso resident Karla Triana, claims that while her mother was undergoing emergency surgery at Del Sol Medical Center, Dr. Bratislav Velimirovic handed her a lawyer’s business card and urged her to contact the attorney. Triana’s mother died as a result of her injuries.

Triana subsequently received a call and text message on her personal cell phone from an employee in the office of the attorney, Victor J. Bieganowski, indicating that he sought to represent her in a civil claim against the trucking company.

“It’s clear that the doctor and the attorney are breaking the law by working together to solicit legal representation of accident victims and their families,” says attorney Tom Carse of Dallas. Carse handles cases involving charges of unlawful representation, known as barratry, against other attorneys, according to the release.

“It’s logical to think this was not an isolated incident, and that there may be more instances of this conspiracy still to be uncovered.”

The release states that Bieganowski was convicted in 2000 on federal charges for his role in a massive medical and legal fraud, and received a 30-month prison sentence and a fine of $375,000. He was disbarred, but subsequently regained his law license. The fraud charges involved claims against union officials for funneling the cases of injured workers to Bieganowski’s legal practice and the medical practice of his brother, Dr. Arthur Bieganowski.

Dr. Velimirovic is a partner in Neurosurgical Specialists of El Paso. According to the clinic’s website he is a “board-certified neurosurgeon who utilizes advanced techniques to perform minimally invasive spine surgery, cranial surgery and interventional radiologic procedures.”

MedCity News reports that one of the nation’s largest dialysis providers will pay $270 million to settle a whistleblower’s allegation that it helped Medicare Advantage insurance plans cheat the government for several years.

Fred Schulte explains:

The settlement by HealthCare Partners Holdings LLC, part of giant dialysis company DaVita Inc., is believed to be the largest to date involving allegations that some Medicare Advantage plans exaggerate how sick their patients are to inflate government payments. DaVita, which is headquartered in El Segundo, Calif., did not admit fault.

Read the MedCity News article.

Bloomberg Law reports that a plaintiff in a bellwether products liability case involving the chemotherapy drug Taxotere was sanctioned for withholding information about her medical history.

Plaintiffs in the case claim Sanofi-Aventis U.S. LLC failed to warn patients that Taxotere could cause permanent hair loss.

Reporter Michael Greene explains: “Dr. Kelly Gahan, a bellwether plaintiff in the multidistrict litigation, used evasive discovery tactics to avoid revealing information about medical treatment she had received, Judge Jane Triche Milazzo, of the U.S. District Court for the Eastern District of Louisiana, said.”

Gahan did not reveal all the physicians who provided treatments to her over an eight-year period and whether she used any over the-the-counter medications. Now she must pay Sanofi expenses and attorneys’ fees incurred in obtaining the records.

Read the Bloomberg Law article.

During the latest National Health Care Fraud Takedown, investigators targeted Houston and Dallas to identify and charge more than 40 people with a range of fraud allegations.

How is a region designated as a health care strike force area? Former federal prosecutor and Houston trial attorney Ashlee McFarlane of Gerger Khalil & Hennessy explains in a post on the website of Androvett Legal Media & Marketing.

“Dallas is a health care strike force city, meaning the Department of Justice and federal agencies have identified Dallas (like Houston) as a hot bed for health care fraud, based on data analysis and reviewing payments of claims submitted to federal health care benefit programs like Medicare,” says McFarlane.

“Kickbacks are the foundation of almost every health care fraud case. “As a former prosecutor, I can tell you—kickbacks are the first thing agents and prosecutors look for in building an investigation.

“There’s no way to know the number of kickbacks being paid in a city. You have to start investigating a case. However, when there are providers who are outliers in the billing data, federal agents often look to see if kickback payments are used to induce referrals.”

Dallas and Houston are among 10 locations nationwide with Medicare Fraud Strike Force operations. According to the Department of Justice, a Medicare Fraud Strike Force consists of a partnership between the DOJ and Department of Health and Human Services to prevent fraud and enforce anti-fraud laws.