(Reuters) – Here are some events of interest to the Health Law community this week. All times are local unless otherwise noted.
Tuesday, Oct. 12
5 p.m. – Attorneys who convinced a panel of the 8th U.S. Circuit Court of Appeals to revive the 5,800-member multidistrict litigation over 3M’s Bair Hugger post-surgical warming device in August face a deadline to respond to 3M’s petition for review by the full appeals court. The plaintiffs all suffered post-surgical infections, allegedly because the forced-air warmer transferred antibiotic-resistant bacteria into open surgical wounds. The MDL judge tossed the plaintiffs’ claims in 2019 after excluding testimony from key expert witnesses. The 8th Circuit panel reversed, saying the experts’ testimony had “weaknesses” but was not so unsound that it had to be excluded. 3M’s petition for en banc review has drawn amicus support from the Product Liability Advisory Council and the National Association of Manufacturers.
The case is Amador v. 3M Company et al., 8th U.S. Circuit Court of Appeals No. 19-2899. For Amador: Michael Sacchet of Ciresi & Conlin; Genevieve Zimmerman of Meshbesher & Spence. For 3M: Aaron D. Van Oort and Jeffrey Justman of Faegre & Drinker.
Wednesday, Oct. 13
1:30 p.m. – Chief U.S. District Judge Edmund Sargus in Columbus will hold a virtual hearing on preparations for the second bellwether trial in the multidistrict litigation over Becton, Dickinson and Co subsidiary C.R. Bard’s polypropylene hernia mesh products – currently the country’s third-largest MDL, with more than 14,000 pending actions. Bellwether plaintiff Antonio Milanesi alleges Bard’s Ventralex mesh buckled, twisted and otherwise failed over the course of a decade, causing abdominal pain and an infection that required removal of part of his small intestine. Sargus has given both sides until Oct. 15 to file motions to limit the evidence that can be used at the trial, which is scheduled to start on Jan. 10. The first bellwether trial, which centered on the company’s Ventralight ST mesh, ended in September with a defense verdict.The case is In re: Davol Inc/C.R. Bard Inc Polypropylene Hernia Mesh Products Liability Litigation, U.S. District Court, Southern District of Ohio No. 18-md-02846 (Milanesi v. C.R. Bard et al., 18-cv-01320). For Milanesi: David Butler of Taft Stettinius & Hollister. For Bard: Eric Alexander and Michael Brown of Reed Smith
Thursday, Oct. 14
9:30 a.m. – The 3rd U.S. Circuit Court of Appeals will hear a second appeal by LifeWatch Services in an antitrust lawsuit alleging that Blue Cross Blue Shield Association, Wellpoint, and four other BCBS plan administrators have colluded to deny coverage for its telemetry cardiac monitors – devices that allow healthcare providers to track an outpatient’s cardiac activity remotely. A federal judge in Philadelphia dismissed LifeWatch’s suit in 2016 for failure to state a claim; the 3rd Circuit revived it in 2018, but also raised the possibility that the McCarran-Ferguson Act shielded the insurers from liability. On remand, the judge found the law applied, leading to LifeWatch’s current appeal. The United States has intervened “in support of neither party,” based on its interest in “determining the proper scope of the McCarran-Ferguson Act’s antitrust exemption for the ‘business of insurance.’”
The case is LifeWatch Services v. Blue Cross Blue Shield Association, 3rd U.S. Circuit Court of Appeals No. 21-1142. For LifeWatch: Gary Elden and Ian Hansen of Shook, Hardy & Bacon. For BCBS: Cate Stetson and Alex Bowerman of Hogan Lovells. For the U.S.: Patrick Kuhlmann, U.S. Justice Department.
10:00 a.m. – The 2nd U.S. Circuit Court of Appeals will hear back-to-back challenges to COVID-19 vaccine mandates by New York state and New York City. First up: We the Patriots USA Inc. and three individuals argue that the statewide mandate for healthcare workers is unconstitutional because it does not provide for a religious exemption. (The 2nd Circuit enjoined the state’s mandate pending appeal.) In the second case, Rachel Maniscalco and other public-school employees argue that they should be able to opt out of the vaccine mandate through weekly testing, as “other municipality employees enjoy,” she says, while school employees are forced to take unpaid leave “for nearly a year.” The city’s mandate took effect on Oct. 1, after U.S. Supreme Court Justice Sonia Sotomayor denied Maniscalco’s emergency application for an injunction.
The cases are We the Patriots USA Inc. v. Hochul, 2nd U.S. Circuit No. 21-2179; and Maniscalco v. New York City Department of Education et al., No. 21-2343. For We the Patriots USA: Cameron Atkinson of Pattis & Smith. For Hochul: Steven Wu, New York State Attorney General’s Office. For Maniscalco et al: Mark Fonte and Louis Gelormino. For New York City: Susan Paulson and Devin Slack, New York City Law Department.
2 p.m. (ET) – The American Health Law Association presents “Compliance – Remember Me? Things You May Have Forgotten During COVID Times,” a 90-minute intermediate-level webinar. Peggy Kozal of Gordon Rees Scully Mansukhani and Joseph Zielinski of Dinsmore focus on policies, procedures, conduct, and other items that the U.S. Health and Human Services Department’s Office of Inspector General has flagged as important elements of compliance programs for senior living facilities and health care organizations. For details, visit https://bit.ly/2Yzr15J
Know of an event that could be included in Week Ahead in Health Law? Contact Brendan Pierson at brendan.pierson@thomsonreuters.com
