Judge Orders GSK to Give Plaintiff List to Insurer

[Guest guest]

Judge Orders GSK to Give Plaintiff List to Insurer

Philadelphia Court Tackles Issue of First Impression in Avandia, Paxil Litigation

http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202498238197

A health insurance carrier is entitled to names and information identifying its insureds who have sued a pharmaceutical manufacturer, a Philadelphia judge has ruled on an issue of first impression.

Health insurer UnitedHealth Group plans to assert subrogation claims against drugmaker GlaxoKline by stepping into the shoes of its insureds who took GSK's Paxil and Avandia drugs and suing GSK over the alleged injuries its insureds experienced by taking those drugs, the June 16 opinion said.

Drugmaker GlaxoKline has moved to remove the case of UnitedHealth Group Inc. v. GlaxoKline to the U.S. District Court for the Eastern District of Pennsylvania.

In an e-mailed statement, GSK said it removed the case to federal court June 15, Philadelphia Common Pleas Court Judge Mark I. Bernstein's opinion was issued after the case was removed and the case is not pending in federal court. The Common Pleas Court docket indicates that GSK filed the notice of removal June 16, Bernstein rendered his opinion the same day and the opinion was docketed June 17.

UnitedHealth was seeking pre-complaint discovery from GSK of plaintiffs who have either sued GSK for alleged Avandia- and Paxil-related injuries, who have settled with GSK or who have entered into an agreement with GSK that has tolled their claims, Bernstein said.

Bernstein said that UnitedHealth cannot assert subrogation claims against GSK without identifying the insureds on whose behalf it would assert those claims.

Confidentiality provisions in settlement agreements or tolling agreements can't prevent disclosure of basic identifying information essential to a complaint, Bernstein concluded.

"Defendants, as the alleged tortfeasors, are not justified in withholding an insured's identity from its insurer that wants to sue on his or her behalf, even if defendants and the insured have signed a confidentiality agreement," Bernstein said.

Because subrogation aims to ensure that the actual party who caused harm pays for a victim's injuries, allowing confidentiality provisions in tolling or settlement agreements to bar the release of information essential to subrogation complaints would allow an alleged tortfeasor to shift the cost of a victim's injuries, Bernstein said.

During oral argument in front of Bernstein in May, plaintiffs attorney Gerald Lawrence, of Lowey Dannenberg Cohen & Hart in West Conshohocken, Pa., said that in order to comply with the pleading requirements in subrogation claims, UnitedHealth must establish the identities of its insureds who have been alleged victims of GSK's conduct.

When asked by Bernstein why the insureds didn't have an obligation to cooperate with UnitedHealth, Lawrence said the risk was "oftentimes, it's been our experience that they do not, but there's a 40 percent turnover every year on commercial plans." Besides 50 to 75 insureds identified by UnitedHealth as very likely to have sued GSK, the vast majority of insureds can't be identified "other than to send a letter to all the millions of people who are in our system," Lawrence said.

Defense attorneys Vale and H. Zucker, of Pepper Hamilton in Philadelphia, argued before Bernstein that UnitedHealth could identify which of its insureds received treatment for injuries resulting from Avandia or Paxil.

"I don't believe any insurer has ever been allowed to come in this sort of situation ... where they are trying to get the information without having made any reasonable effort on their own part," Vale argued.

But Bernstein said in his opinion that "an insured may have taken Avandia or Paxil prior to enrollment in one of plaintiff's health plans and then suffered the drug's ill effects after enrollment, leaving plaintiff without a way to connect the drugs to its insured's treatment. Likewise, plaintiff could not necessarily connect the treatment of an insured child with defendant's drugs because it was the mother, not the child, who ingested the drugs."

Under Pennsylvania Rule of Civil Procedure 4003.8, a plaintiff may obtain pre-complaint discovery if the information is material and necessary to the filing of the complaint and if the discovery would not cause "'unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party,'" Bernstein said.

The complaint can't be filed without the pre-complaint discovery, Bernstein said, while complying with UnitedHealth's discovery request would not be "particularly" burdensome to GSK.

However, Bernstein said UnitedHealth is not entitled to identifying information of plaintiffs it has never insured in order to pursue a class action on behalf of similarly situated health plans. Plaintiffs who are not insured by UnitedHealth have not voluntarily given their information to UnitedHealth and would have no way of knowing that their personal information was being released, Bernstein said.

Last week, U.S. District Court Judge M. Rufe dismissed all claims brought by insurers acting as "Medicare Advantage Organizations" that demanded reimbursements from the settlements paid out in the federal multidistrict litigation over diabetes drug Avandia.

Rufe concluded that Humana Medical Plan Inc., seeking to represent a class of MAOs whose enrollees received treatment for Avandia-related injuries and are involved in litigation with GSK, does not have a private cause of action under the Medicare Advantage Act and instead must pursue contract claims in state court against the individual plaintiffs.

Lawrence said his firm is pleased with Bernstein's decision. GSK did not respond immediately to a request for comment.

( Copies of the nine-page opinion in UnitedHealth Group Inc. v. GlaxoKline, PICS No. 11-1188, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m. ) •

[Guest guest]

Judge Orders GSK to Give Plaintiff List to Insurer

Philadelphia Court Tackles Issue of First Impression in Avandia, Paxil Litigation

http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202498238197

A health insurance carrier is entitled to names and information identifying its insureds who have sued a pharmaceutical manufacturer, a Philadelphia judge has ruled on an issue of first impression.

Health insurer UnitedHealth Group plans to assert subrogation claims against drugmaker GlaxoKline by stepping into the shoes of its insureds who took GSK's Paxil and Avandia drugs and suing GSK over the alleged injuries its insureds experienced by taking those drugs, the June 16 opinion said.

Drugmaker GlaxoKline has moved to remove the case of UnitedHealth Group Inc. v. GlaxoKline to the U.S. District Court for the Eastern District of Pennsylvania.

In an e-mailed statement, GSK said it removed the case to federal court June 15, Philadelphia Common Pleas Court Judge Mark I. Bernstein's opinion was issued after the case was removed and the case is not pending in federal court. The Common Pleas Court docket indicates that GSK filed the notice of removal June 16, Bernstein rendered his opinion the same day and the opinion was docketed June 17.

UnitedHealth was seeking pre-complaint discovery from GSK of plaintiffs who have either sued GSK for alleged Avandia- and Paxil-related injuries, who have settled with GSK or who have entered into an agreement with GSK that has tolled their claims, Bernstein said.

Bernstein said that UnitedHealth cannot assert subrogation claims against GSK without identifying the insureds on whose behalf it would assert those claims.

Confidentiality provisions in settlement agreements or tolling agreements can't prevent disclosure of basic identifying information essential to a complaint, Bernstein concluded.

"Defendants, as the alleged tortfeasors, are not justified in withholding an insured's identity from its insurer that wants to sue on his or her behalf, even if defendants and the insured have signed a confidentiality agreement," Bernstein said.

Because subrogation aims to ensure that the actual party who caused harm pays for a victim's injuries, allowing confidentiality provisions in tolling or settlement agreements to bar the release of information essential to subrogation complaints would allow an alleged tortfeasor to shift the cost of a victim's injuries, Bernstein said.

During oral argument in front of Bernstein in May, plaintiffs attorney Gerald Lawrence, of Lowey Dannenberg Cohen & Hart in West Conshohocken, Pa., said that in order to comply with the pleading requirements in subrogation claims, UnitedHealth must establish the identities of its insureds who have been alleged victims of GSK's conduct.

When asked by Bernstein why the insureds didn't have an obligation to cooperate with UnitedHealth, Lawrence said the risk was "oftentimes, it's been our experience that they do not, but there's a 40 percent turnover every year on commercial plans." Besides 50 to 75 insureds identified by UnitedHealth as very likely to have sued GSK, the vast majority of insureds can't be identified "other than to send a letter to all the millions of people who are in our system," Lawrence said.

Defense attorneys Vale and H. Zucker, of Pepper Hamilton in Philadelphia, argued before Bernstein that UnitedHealth could identify which of its insureds received treatment for injuries resulting from Avandia or Paxil.

"I don't believe any insurer has ever been allowed to come in this sort of situation ... where they are trying to get the information without having made any reasonable effort on their own part," Vale argued.

But Bernstein said in his opinion that "an insured may have taken Avandia or Paxil prior to enrollment in one of plaintiff's health plans and then suffered the drug's ill effects after enrollment, leaving plaintiff without a way to connect the drugs to its insured's treatment. Likewise, plaintiff could not necessarily connect the treatment of an insured child with defendant's drugs because it was the mother, not the child, who ingested the drugs."

Under Pennsylvania Rule of Civil Procedure 4003.8, a plaintiff may obtain pre-complaint discovery if the information is material and necessary to the filing of the complaint and if the discovery would not cause "'unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party,'" Bernstein said.

The complaint can't be filed without the pre-complaint discovery, Bernstein said, while complying with UnitedHealth's discovery request would not be "particularly" burdensome to GSK.

However, Bernstein said UnitedHealth is not entitled to identifying information of plaintiffs it has never insured in order to pursue a class action on behalf of similarly situated health plans. Plaintiffs who are not insured by UnitedHealth have not voluntarily given their information to UnitedHealth and would have no way of knowing that their personal information was being released, Bernstein said.

Last week, U.S. District Court Judge M. Rufe dismissed all claims brought by insurers acting as "Medicare Advantage Organizations" that demanded reimbursements from the settlements paid out in the federal multidistrict litigation over diabetes drug Avandia.

Rufe concluded that Humana Medical Plan Inc., seeking to represent a class of MAOs whose enrollees received treatment for Avandia-related injuries and are involved in litigation with GSK, does not have a private cause of action under the Medicare Advantage Act and instead must pursue contract claims in state court against the individual plaintiffs.

Lawrence said his firm is pleased with Bernstein's decision. GSK did not respond immediately to a request for comment.

( Copies of the nine-page opinion in UnitedHealth Group Inc. v. GlaxoKline, PICS No. 11-1188, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m. ) •

[Guest guest]

Judge Orders GSK to Give Plaintiff List to Insurer

Philadelphia Court Tackles Issue of First Impression in Avandia, Paxil Litigation

http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202498238197

A health insurance carrier is entitled to names and information identifying its insureds who have sued a pharmaceutical manufacturer, a Philadelphia judge has ruled on an issue of first impression.

Health insurer UnitedHealth Group plans to assert subrogation claims against drugmaker GlaxoKline by stepping into the shoes of its insureds who took GSK's Paxil and Avandia drugs and suing GSK over the alleged injuries its insureds experienced by taking those drugs, the June 16 opinion said.

Drugmaker GlaxoKline has moved to remove the case of UnitedHealth Group Inc. v. GlaxoKline to the U.S. District Court for the Eastern District of Pennsylvania.

In an e-mailed statement, GSK said it removed the case to federal court June 15, Philadelphia Common Pleas Court Judge Mark I. Bernstein's opinion was issued after the case was removed and the case is not pending in federal court. The Common Pleas Court docket indicates that GSK filed the notice of removal June 16, Bernstein rendered his opinion the same day and the opinion was docketed June 17.

UnitedHealth was seeking pre-complaint discovery from GSK of plaintiffs who have either sued GSK for alleged Avandia- and Paxil-related injuries, who have settled with GSK or who have entered into an agreement with GSK that has tolled their claims, Bernstein said.

Bernstein said that UnitedHealth cannot assert subrogation claims against GSK without identifying the insureds on whose behalf it would assert those claims.

Confidentiality provisions in settlement agreements or tolling agreements can't prevent disclosure of basic identifying information essential to a complaint, Bernstein concluded.

"Defendants, as the alleged tortfeasors, are not justified in withholding an insured's identity from its insurer that wants to sue on his or her behalf, even if defendants and the insured have signed a confidentiality agreement," Bernstein said.

Because subrogation aims to ensure that the actual party who caused harm pays for a victim's injuries, allowing confidentiality provisions in tolling or settlement agreements to bar the release of information essential to subrogation complaints would allow an alleged tortfeasor to shift the cost of a victim's injuries, Bernstein said.

During oral argument in front of Bernstein in May, plaintiffs attorney Gerald Lawrence, of Lowey Dannenberg Cohen & Hart in West Conshohocken, Pa., said that in order to comply with the pleading requirements in subrogation claims, UnitedHealth must establish the identities of its insureds who have been alleged victims of GSK's conduct.

When asked by Bernstein why the insureds didn't have an obligation to cooperate with UnitedHealth, Lawrence said the risk was "oftentimes, it's been our experience that they do not, but there's a 40 percent turnover every year on commercial plans." Besides 50 to 75 insureds identified by UnitedHealth as very likely to have sued GSK, the vast majority of insureds can't be identified "other than to send a letter to all the millions of people who are in our system," Lawrence said.

Defense attorneys Vale and H. Zucker, of Pepper Hamilton in Philadelphia, argued before Bernstein that UnitedHealth could identify which of its insureds received treatment for injuries resulting from Avandia or Paxil.

"I don't believe any insurer has ever been allowed to come in this sort of situation ... where they are trying to get the information without having made any reasonable effort on their own part," Vale argued.

But Bernstein said in his opinion that "an insured may have taken Avandia or Paxil prior to enrollment in one of plaintiff's health plans and then suffered the drug's ill effects after enrollment, leaving plaintiff without a way to connect the drugs to its insured's treatment. Likewise, plaintiff could not necessarily connect the treatment of an insured child with defendant's drugs because it was the mother, not the child, who ingested the drugs."

Under Pennsylvania Rule of Civil Procedure 4003.8, a plaintiff may obtain pre-complaint discovery if the information is material and necessary to the filing of the complaint and if the discovery would not cause "'unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party,'" Bernstein said.

The complaint can't be filed without the pre-complaint discovery, Bernstein said, while complying with UnitedHealth's discovery request would not be "particularly" burdensome to GSK.

However, Bernstein said UnitedHealth is not entitled to identifying information of plaintiffs it has never insured in order to pursue a class action on behalf of similarly situated health plans. Plaintiffs who are not insured by UnitedHealth have not voluntarily given their information to UnitedHealth and would have no way of knowing that their personal information was being released, Bernstein said.

Last week, U.S. District Court Judge M. Rufe dismissed all claims brought by insurers acting as "Medicare Advantage Organizations" that demanded reimbursements from the settlements paid out in the federal multidistrict litigation over diabetes drug Avandia.

Rufe concluded that Humana Medical Plan Inc., seeking to represent a class of MAOs whose enrollees received treatment for Avandia-related injuries and are involved in litigation with GSK, does not have a private cause of action under the Medicare Advantage Act and instead must pursue contract claims in state court against the individual plaintiffs.

Lawrence said his firm is pleased with Bernstein's decision. GSK did not respond immediately to a request for comment.

( Copies of the nine-page opinion in UnitedHealth Group Inc. v. GlaxoKline, PICS No. 11-1188, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m. ) •

[Guest guest]

Judge Orders GSK to Give Plaintiff List to Insurer

Philadelphia Court Tackles Issue of First Impression in Avandia, Paxil Litigation

http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202498238197

A health insurance carrier is entitled to names and information identifying its insureds who have sued a pharmaceutical manufacturer, a Philadelphia judge has ruled on an issue of first impression.

Health insurer UnitedHealth Group plans to assert subrogation claims against drugmaker GlaxoKline by stepping into the shoes of its insureds who took GSK's Paxil and Avandia drugs and suing GSK over the alleged injuries its insureds experienced by taking those drugs, the June 16 opinion said.

Drugmaker GlaxoKline has moved to remove the case of UnitedHealth Group Inc. v. GlaxoKline to the U.S. District Court for the Eastern District of Pennsylvania.

In an e-mailed statement, GSK said it removed the case to federal court June 15, Philadelphia Common Pleas Court Judge Mark I. Bernstein's opinion was issued after the case was removed and the case is not pending in federal court. The Common Pleas Court docket indicates that GSK filed the notice of removal June 16, Bernstein rendered his opinion the same day and the opinion was docketed June 17.

UnitedHealth was seeking pre-complaint discovery from GSK of plaintiffs who have either sued GSK for alleged Avandia- and Paxil-related injuries, who have settled with GSK or who have entered into an agreement with GSK that has tolled their claims, Bernstein said.

Bernstein said that UnitedHealth cannot assert subrogation claims against GSK without identifying the insureds on whose behalf it would assert those claims.

Confidentiality provisions in settlement agreements or tolling agreements can't prevent disclosure of basic identifying information essential to a complaint, Bernstein concluded.

"Defendants, as the alleged tortfeasors, are not justified in withholding an insured's identity from its insurer that wants to sue on his or her behalf, even if defendants and the insured have signed a confidentiality agreement," Bernstein said.

Because subrogation aims to ensure that the actual party who caused harm pays for a victim's injuries, allowing confidentiality provisions in tolling or settlement agreements to bar the release of information essential to subrogation complaints would allow an alleged tortfeasor to shift the cost of a victim's injuries, Bernstein said.

During oral argument in front of Bernstein in May, plaintiffs attorney Gerald Lawrence, of Lowey Dannenberg Cohen & Hart in West Conshohocken, Pa., said that in order to comply with the pleading requirements in subrogation claims, UnitedHealth must establish the identities of its insureds who have been alleged victims of GSK's conduct.

When asked by Bernstein why the insureds didn't have an obligation to cooperate with UnitedHealth, Lawrence said the risk was "oftentimes, it's been our experience that they do not, but there's a 40 percent turnover every year on commercial plans." Besides 50 to 75 insureds identified by UnitedHealth as very likely to have sued GSK, the vast majority of insureds can't be identified "other than to send a letter to all the millions of people who are in our system," Lawrence said.

Defense attorneys Vale and H. Zucker, of Pepper Hamilton in Philadelphia, argued before Bernstein that UnitedHealth could identify which of its insureds received treatment for injuries resulting from Avandia or Paxil.

"I don't believe any insurer has ever been allowed to come in this sort of situation ... where they are trying to get the information without having made any reasonable effort on their own part," Vale argued.

But Bernstein said in his opinion that "an insured may have taken Avandia or Paxil prior to enrollment in one of plaintiff's health plans and then suffered the drug's ill effects after enrollment, leaving plaintiff without a way to connect the drugs to its insured's treatment. Likewise, plaintiff could not necessarily connect the treatment of an insured child with defendant's drugs because it was the mother, not the child, who ingested the drugs."

Under Pennsylvania Rule of Civil Procedure 4003.8, a plaintiff may obtain pre-complaint discovery if the information is material and necessary to the filing of the complaint and if the discovery would not cause "'unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party,'" Bernstein said.

The complaint can't be filed without the pre-complaint discovery, Bernstein said, while complying with UnitedHealth's discovery request would not be "particularly" burdensome to GSK.

However, Bernstein said UnitedHealth is not entitled to identifying information of plaintiffs it has never insured in order to pursue a class action on behalf of similarly situated health plans. Plaintiffs who are not insured by UnitedHealth have not voluntarily given their information to UnitedHealth and would have no way of knowing that their personal information was being released, Bernstein said.

Last week, U.S. District Court Judge M. Rufe dismissed all claims brought by insurers acting as "Medicare Advantage Organizations" that demanded reimbursements from the settlements paid out in the federal multidistrict litigation over diabetes drug Avandia.

Rufe concluded that Humana Medical Plan Inc., seeking to represent a class of MAOs whose enrollees received treatment for Avandia-related injuries and are involved in litigation with GSK, does not have a private cause of action under the Medicare Advantage Act and instead must pursue contract claims in state court against the individual plaintiffs.

Lawrence said his firm is pleased with Bernstein's decision. GSK did not respond immediately to a request for comment.

( Copies of the nine-page opinion in UnitedHealth Group Inc. v. GlaxoKline, PICS No. 11-1188, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m. ) •