Stuart Gerson Quoted in “5 Health Cases Attys Should Know as High Court Term Starts”

Law360

Stuart M. Gerson, Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm’s Washington, DC, and New York offices, was quoted in Law360, in “5 Health Cases Attys Should Know as High Court Term Starts,” by Jeff Overley. (Read the full version – subscription required.)

Following is an excerpt:

The U.S. Supreme Court’s new term, already set for a seismic showdown over the Affordable Care Act’s future, might also see the justices tackle lesser-noticed but potentially transformative health care cases involving abortion rights, deference to regulators and False Claims Act litigation alleging medically unnecessary services.

Much has been written about the ACA case, which threatens to upend vast swaths of the American health care system. Law360 has also extensively covered a separate legal fight that will be argued Tuesday and could prove crucial to keeping mom-and-pop pharmacies from being gobbled up by giant national chains.

But there are plenty of pending petitions for certiorari — all with realistic shots at being granted — that will be deserving of in-depth analysis as well, should the justices accept them for review.

Here, Law360 looks at five especially intriguing health care and life sciences petitions that attorneys should get to know.

FCA ‘Objective Falsehood’ Standard in Spotlight

A petition filed Sept. 16 by Care Alternatives, an end-of-life care provider that does business as Ascend Hospice, seeks review of a Third Circuit opinion in March that rejected the need for an “objective falsehood” to establish FCA liability involving allegedly bogus diagnoses of terminal illness.

Stuart Gerson, an Epstein Becker Green member, told Law360 that the petition “raises one of the most vexing questions” on the FCA litigation landscape: whether treatment decisions can be deemed fraudulent if medical experts have reasonable disagreements about those decisions. …

Drugmakers Challenge FCA Do-Overs

A petition lodged in early September by drugmakers Bristol Myers Squibb Co. and Sanofi-Aventis US LLC argues that there is “an important and growing disagreement” among the courts on whether a whistleblower’s loss in a False Claims Act case means the government can’t pursue the same allegations.

According to the petition, the Seventh and Ninth circuits say that such losses prevent the government from bringing a copycat case, while the Fifth and Eleventh circuits say the opposite. At issue in the Bristol Myers and Sanofi matter is a New Mexico Court of Appeals decision siding with the latter two circuits, allowing New Mexico to proceed with allegations of unlawful drug marketing even though a whistleblower lost a suit with the same facts.

That decision should be reversed because it authorizes “a second bite at the apple in every False Claims Act” whistleblower suit that the government doesn’t join, the drugmakers wrote, lamenting that the government could treat whistleblower cases as “dress rehearsals.”

“Bedrock principles of federal res judicata, or ‘claim preclusion,’ do not allow such gamesmanship,” the companies told the high court.

In its decision, the New Mexico Court of Appeals found that government suits “should not be precluded by certain actions of a private party, even when that party acts as a qui tam relator.”

The court further said that barring a duplicative suit “could operate adverse to the public interest,” raising the prospect that a whistleblower might have “thoughtlessly omitted” important allegations or simply been “incompetent.”

Epstein Becker’s Gerson told Law360 that “there is a particularly good chance of acceptance” of the case by the Supreme Court and ultimately a ruling in favor of the drugmakers.