Client Services / Health / Health Care Litigation

Health Care Litigation

McDermott Will & Emery’s Health Care Litigation Group provides a unique combination of skills, experience and resources to resolve complex disputes that arise in the health and life sciences industries.  Our health litigation services include administrative, civil and criminal investigations and proceedings, alternative dispute resolution and compliance and risk management.  Our Health Care Litigation Group teams seasoned Trial Department lawyers, who have extensive health litigation experience, with other McDermott lawyers who focus on the substantive legal areas implicated by the matter in dispute.  The group also draws on the talents of a McDermott Advisory Board of outside business, scientific and academic leaders in the health and life science fields, as well as other top advisors with relevant experience.

Our health care litigation clients include Fortune 500, middle-market and growth-oriented health insurance, pharmaceutical, biotechnology, medical device, health information technology, food and agricultural, health care service and management companies, health systems, academic medical centers, research institutions and provider groups, as well as the financial institutions, investment banks and venture capital companies that finance these businesses.

More than 20 litigators in our Health Care Litigation Group are former U.S. federal or state prosecutors who have served in the U.S. Attorneys Office, or the U.S. Department of Justice, or as a state attorney general or assistant attorney general.  Other lawyers in our Health Litigation Group have advanced scientific or health-related degrees and industry experience as molecular biologists, biochemists, chemical engineers, pharmaceutical research scientists, electrical engineers, doctors, nurses, hospital administrators, public health doctorates, coding experts and regulatory managers.  We practice before virtually all federal and state agencies that regulate health-related matters.

We also draw on the extensive resources of our Health Law Department, which is ranked the No. 1 health law practice in the United States in the most recent ranking by The American Lawyer, to understand, in depth, the substantive legal requirements that frame our clients’ disputes.  The depth of our legal resources allows us to assess the merits of a case accurately and rapidly.  It also equips us to find creative approaches and solutions to complex legal problems and to best assist our clients in identifying and evaluating dispute resolution options.

Health Science in the Courtroom
As disputes in the health care industry have increasingly focused on new technologies, the presentation or exclusion of scientific and technical evidence has become key to the outcome of these disputes.  Our health and litigation lawyers have substantial experience in dealing with scientific and technical experts and presenting expert testimony in judicial and administrative proceedings.  We have established a U.S.-wide reputation for our work in Daubert challenges to the admissibility of scientific evidence and have developed an outstanding network of internal and external experts with whom we work on a regular basis.

Class Action Defense
Our Health Litigation Group has defended class actions in U.S. federal and state courts throughout the United States.  We frequently practice before the Multidistrict Litigation Panel as lead defense counsel and have obtained favorable decisions on important issues of first impression regarding class action practice and procedure.  We have also successfully defeated class certification or obtained class decertification in a number of health litigation cases.

Health Advisory Boards
McDermott develops advisory boards comprised of health industry thought leaders to focus on important emerging health industry trends and developments in health business, science and technology.  The experience of the members of our advisory boards is available to assist our clients in health litigation matters, where appropriate.

Health Care Litigation Experience
The following are some representative areas in which our Health Litigation Group has experience:

Fraud & Abuse/White Collar
The white collar criminal defense lawyers in our Health Care Litigation Group are all former federal or state prosecutors.  They represent health clients in federal and state Anti-kickback Law, False Claims Act and Civil Monetary Penalty audits, investigations and proceedings, as well as in qui tam (whistleblower) suits.  They also assist providers and suppliers in defending against carrier, intermediary and private health plan audits and exclusion proceedings and in assessing whether and how to make voluntary self-disclosures.  Our group has negotiated, implemented and monitored some of the seminal health industry settlements and corporate integrity agreements, representing clients such as Quorum Health Group, Inc., Tenet Health Care Corporation and Fresenius Medical Care, the world’s largest kidney dialysis provider.

Pharmaceutical Marketing and Pricing
Our Health Care Litigation Group represents pharmaceutical and biotechnology companies, pharmacy benefit managers, pharmaceutical wholesalers and pharmacies, in governmental investigations and proceedings challenging their marketing and pricing practices or their compliance with U.S. Food and Drug Administration, Drug Enforcement Administration, Federal Trade Commission and state licensure requirements.  We have defended U.S. pharmaceutical companies in the Prescription Access Litigation against class action claims of violating the Prescription Drug Marketing Act, Medicaid “best price” and Average Wholesale Price (AWP) requirements.  Other cases we have handled involved allegations of improper marketing of off-label uses, marketing the “spread,” encouraging the resale of free drug samples, and paying various forms of disguised kickbacks.  Our Firm has served as lead U.S. defense counsel in federal and state class actions involving these issues.

Payer Disputes
Our Health Care Litigation Group has extensive experience with payer-provider disputes, consumer-provider disputes and government investigations of health plans.  On the payer side, for example, we are currently serving as lead defense counsel for more than 60 Blue Cross/Blue Shield plans in Thomas v. Blue Cross and Blue Shield Association, et al., a multidistrict class action case brought by providers claiming that they were not properly paid for their services.  We also represent health plans in disputes regarding coverage decisions, provider credentialing, ERISA preemption and administration of benefits.  On the provider side, we have handled numerous provider disputes with the Medicare, Medicaid, TriCare and FEHBP programs and with Medicare carriers and intermediaries.  We have been involved in successful judicial challenges to federal and state reimbursement regulations and policies, and we regularly practice before the Provider Reimbursement Review Board (PRRB) and the Medicare Geographic Classification Review Board (MGCRB).

Tax Exemption Disputes
Our Health Care Litigation Group includes the most preeminent cohort of exempt organization lawyers in the United States.  We represent nonprofit health care organizations in tax controversies with the IRS, and with state and local tax authorities, as well as in U.S. Tax Court and appellate proceedings.  Recent tax exemption cases include the Redlands Surgical Services and Intermountain Healthcare cases.

Medical Products Liability
We represent pharmaceutical and medical products companies in all phases of health products liability cases, including managing complex multidistrict class actions.  For example, our group has successfully defended more than 800 class action suits across the United States on behalf of Fen-Phen manufacturers.  We also served as U.S. counsel for a major seed producer in the StarLink class action litigation arising from leakage of genetically modified corn into the food chain.

Intellectual Property
Our Health Care Litigation Group includes intellectual property litigators, who are among the world’s premiere lawyers involved in “bet-the-company” patent, copyright and trademark cases in the health and life sciences fields.  Our IP litigators have particular strength in biotechnology, genomics, bioinformatics, medicinal chemistry and chemical, mechanical and electrical engineering.  Recent cases include a victory for Medtronic, overturning a $271 million jury award to Cordis Corporation for alleged infringement of its balloon expandable stent patents, and obtaining an infringement verdict on behalf of the Burnham Institute and Integra LifeSciences, protecting their biomedical research tool patents.

Health Care Antitrust
Our health care antitrust experience includes DOJ, FTC, state and competitor challenges to mergers, acquisitions and affiliations among hospitals, health plans, and provider groups; alleged price-fixing and boycotts by Independent Physician Associations, Physician Hospital Organizations and networks of providers; challenges to provider joint ventures, exclusive medical service agreements, economic credentialing and provider decredentialing decisions; and restraint of trade allegations against pharmaceutical companies involving “settlement” agreements with generic manufacturers, and sales/distribution arrangements.  Our Health Care Litigation Group includes authors of the reference book Antitrust and Health Care:  Meeting the Challenge (American Health Lawyers Association).  We are currently serving as lead counsel in Jung v. Association of American Medical Colleges, a civil antitrust class action brought by residents challenging the national resident matching program. 

Health Care Bankruptcy
We represent troubled health care and life sciences companies in evaluating bankruptcy strategies and options.  We also represent institutions that acquire the assets of bankrupt health care companies through bankruptcy court proceedings.  Our representation of major insurers of tax exempt bonds provides us with regular experience with health care turn around, workout and bankruptcy matters.  For example, we represented MBIA in the AHERF (Allegheny Health, Education and Research Foundation) Chapter 11 proceedings.

Alternative Dispute Resolution
We have long been an active proponent of alternative dispute resolution techniques and are a founding member of the CPR Institute for Dispute Resolution.  Our lawyers are familiar with the entire range of alternative dispute resolution options, including neutral evaluation, mediation and arbitration.  We have also conducted various forms of court-annexed ADR, including summary jury trials.

McDermott Will & Emery is a leading international law Firm of more than 1000 lawyers with offices worldwide.  We have U.S. offices with health litigators in Boston, Chicago, Los Angeles, Miami, New York, Orange County, San Diego, Silicon Valley and Washington, D.C.  Our litigators are licensed to practice in most states.  With our broad geographic presence we are able to address many of our clients’ health litigation needs on a U.S.-wide basis, and, where desired, avoid or minimize the need to manage a myriad of local law firms.

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