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Health Civil Procedure

Read need-to-know updates, commentary, and analysis on Health issues written by leading professionals.

Supreme Court Holds Federal Arbitration Act Preemption Applies To Contract Formation Rules

by Carlton Fields on

Last week, the U.S. Supreme Court rejected the Kentucky Supreme Court’s use of a clear-statement rule to require that powers of attorney specifically authorize a representative to enter into an arbitration agreement, finding...more

Supreme Court Emphatically Defends Arbitration Agreements from State Interference

by Littler on

On May 15, 2017, the U.S. Supreme Court reiterated the principle that the Federal Arbitration Act (FAA) requires states to treat arbitration agreements just as they treat other types of contracts. In Kindred Nursing Centers...more

Dispute Between Brothers Demonstrates Need to Plan for Long-Term Care

A recent New Jersey appeals court case demonstrates how important it is for families to come up with a long-term care plan before an emergency strikes. The case involves two brothers who got into a fight over whether to place...more

Some Cardiac Monitoring Patents Beat Alice Challenge, While Others Fail to Survive

In the time since Alice changed the landscape of patent eligibility for certain types of inventions, the Federal Circuit has begun pumping out opinions interpreting this landmark Supreme Court case. The expanding body of law...more

No Pre-Emption Exemption - The U.S. Supreme Court and the Kentucky Supreme Court are not kindred spirits with respect to state law...

The U.S. Supreme Court and the Kentucky Supreme Court are not kindred spirits with respect to state law restrictions on arbitration agreements....more

Summary Judgment for Concentric Medical on Design Defect and Warnings Claims Related to Fracture of Merci Retriever Device

by Reed Smith on

When last we wrote, we were about to embark on a journey to Budapest and Vienna to visit the Drug and Device Law Rock Climber. We mentioned that we were thrilled to hold tickets to see the Lipizzaner stallions perform at the...more

U.S. Supreme Court Reaffirms FAA Preemption Over Discriminatory State Laws

by Ballard Spahr LLP on

Emphasizing that the Federal Arbitration Act (FAA) preempts state laws that "single out arbitration agreements for disfavored treatment," the U.S. Supreme Court has overturned the Kentucky Supreme Court's refusal to enforce...more

No Ifs, Ands Or Butts – Preemption Gutts, Rebutts, and Shutts Down Utts

by Reed Smith on

Late last year we happily blogged about Utts v. Bristol-Myers Squibb Co., ___ F. Supp.3d ___, 2016 WL 7429449 (S.D.N.Y. Dec. 23, 2016), chiefly because it held that design defect claims against a branded prescription drug...more

Why the Tail Policy Didn’t Cover the Doctor’s Tail

by Faegre Baker Daniels on

Dr. Steven Svabek may have set a record for the number of reasons why his tail policy didn’t cover the medical malpractice claims against him. According to a memorandum decision issued last week by the Indiana Court of...more

Supreme Court Rejects State Rule That Subjects Arbitration Agreements to Higher Standards

by BakerHostetler on

Some wondered why the U.S. Supreme Court granted certiorari in Kindred Nursing Centers L.P. v. Clark, No. 16-32, and after oral argument on February 22, 2017, many felt they knew the outcome. Indeed, Justice Stephen Breyer...more

Supreme Court Applies FAA Preemption to Contract Formation

The Supreme Court held that the Federal Arbitration Act preempts state law governing contract formation where a state rule discriminates against arbitration, a holding with broad implications for state-court decisions that...more

FCA Deeper Dive: Escobar and Its Aftermath – Part I

by Bass, Berry & Sims PLC on

The FCA continues to be the federal government’s primary civil enforcement tool for investigating allegations that healthcare providers or government contractors defrauded the federal government. In the coming weeks, we are...more

Supreme Court Reinforces the Primacy of the Federal Arbitration Act, Even Over a “Divine God-Given Right”

by Benesch on

Kentucky law speaks of the right to jury trial in theological terms. The Kentucky Constitution provides that “[t]he ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such...more

N.D. Alabama Issues Mixed Bag of Branded Preemption Rulings

by Reed Smith on

We like bright lines in the law. They streamline arguments for lawyers and, more important, they make it easier for non-lawyers to conduct their affairs with some degree of predictability. Rear-end a car and you’re liable,...more

Mealtime Waiver Decision is Good News for California Healthcare Employers Hungry for Clarity

by Nossaman LLP on

In a rare move, the California Court of Appeal reversed itself and validated a California hospital’s policy of allowing healthcare workers to waive an otherwise mandatory second meal period on shifts longer than 12 hours. In...more

Supreme Court Decides Kindred Nursing Centers, L.P. v. Clark

by Faegre Baker Daniels on

On May 15, 2017, the Supreme Court of the United States decided Kindred Nursing Centers, L.P. v. Clark, No. 16-32, holding that state courts may not single out arbitration agreements for “disfavored...more

SCOTUS Reverses KY Nursing Home Arbitration Decision; Refuses To Prioritize Right To Jury Trial

Just as I predicted, SCOTUS reversed the Kentucky Supreme Court’s decision in Kindred this morning. The interesting piece, though, is that the seven member majority went out of its way to cut off some of the “on trend”...more

Discovery – Requestor Pays, Part of the Way, Anyway

by Reed Smith on

One of the issues that the federal Civil Rules Committee’s discovery subcommittee considered, but that eventually fell by the wayside, on the way to the 2015 discovery rules amendments, were proposals to convert to a...more

Fourth Circuit Excludes FDA Evidence in Transvaginal Mesh Products Liability Case

by Sands Anderson PC on

In the Southern District of West Virginia, Johnson & Johnson and its subsidiary, Ethicon, Inc., were sued for defective design and failure to warn for their transvaginal mesh TVT-O, in addition to a loss of consortium claim....more

District Court Rules Online Auction for Medical Supplies Violates Anti-Kickback Statute

by Jones Day on

On March 6, 2017, the U.S. District Court for the District of Connecticut held that an arrangement between a company operating an online portal for purchases of medical equipment and a supplier of medical products violates...more

Mealtime Waiver Decision is Good News for California Healthcare Employers Hungry for Clarity

by Nossaman LLP on

In a rare move, the California Court of Appeal reversed itself and validated a California hospital’s policy of allowing healthcare workers to waive an otherwise mandatory second meal period on shifts longer than 12 hours. In...more

Lack of Specificity May Kill Parallel State Law Product Claims, But Not Fraud Claim

by Cozen O'Connor on

A Michigan district court judge determined last week that product liability claims against an FDA approved medical device manufacturer were preempted by federal law, but allowed the plaintiff’s claim of fraud against the...more

U.S. District Court Holds that a State University Is Immune from False Claims Act Liability Despite Intervention by United States

by King & Spalding on

On April 11, 2017, the U.S. District Court for the District of Oregon granted Oregon Health and Sciences University’s (OHSU) motion to dismiss a qui tam False Claim Act (FCA) suit, holding that (1) OHSU is an “arm of the...more

Another Accutane Verdict Vacated in New Jersey

by Reed Smith on

No one can be all that happy with how the Accutane mass tort proceeding has played out in New Jersey. We have no involvement in that proceeding, but we have monitored it from afar, and it has been extraordinarily contentious....more

Anything Goes: Indiana Supreme Court Holds Malpractice Claimants Not Limited to Theories Presented to Medical Review Panel

by Reminger Co., LPA on

Indiana’s Medical Malpractice Act requires that before claimants may bring a malpractice action against qualified healthcare providers in court, their claims must be reviewed by a medical review panel (“panel”). The panel...more

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