Source: Law360, Bloomberg
On November 16, 2023, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit affirmed a lower court decision that dismissed misrepresentation claims brought against the Infectious Diseases Society of America (IDSA), the world’s leading professional society of physicians, scientists and public health experts who specialize in infectious diseases. Those claims and the underlying lawsuit, which also had raised antitrust and RICO claims, threatened to chill the continued development of evidence-based practice guidelines, which help promote patient health and safety.
With Pillsbury also prevailing in 2021 on summary judgment against the plaintiffs’ antitrust and RICO claims, which plaintiffs did not appeal, the Fifth Circuit decision marks a complete litigation victory and should end a long-running lawsuit challenging IDSA’s Lyme disease guidelines. As such, the case is a victory for doctors, scientists, and patients.
In November 2017, a group of plaintiffs sued IDSA, seven Lyme disease expert doctors who helped write IDSA’s 2006 Lyme disease guidelines, six national and regional health plans, and Blue Cross Blue Shield Association in the U.S. District Court for the Eastern District of Texas. The plaintiffs alleged that the health plans paid large consulting fees to the doctors as part of a conspiracy to write false Lyme disease guidelines to enable health insurance plans to deny treatment and coverage for so-called chronic Lyme disease. The plaintiffs brought claims against all defendants for alleged antitrust and RICO violations. (Late in the lawsuit, the plaintiffs added claims against IDSA only for common-law fraudulent and negligent misrepresentation.)
The plaintiffs’ claims had potentially damaging implications not only for IDSA and the health plans but also for all professional societies that issue practice guidelines. The plaintiffs sought to take to a jury assertions that their symptoms (often serious) were caused by ongoing Lyme disease infection and required long-term (and potentially dangerous) antibiotic treatment even though, as explained in IDSA’s guidelines, no sound scientific evidence supported their claims. The plaintiffs sought millions of dollars in actual and punitive damages for the costs of treatments their health plans would not cover; lost wages and career opportunities; and pain and suffering.
A trial before a Texas jury focused on IDSA’s Lyme disease guidelines likely would have chilled the development of evidence-based practice guidelines across all disciplines, regardless of the outcome. The lawsuit threatened to subject medical guidelines, written by experts in the field, to judicial review and liability based on scientifically inaccurate claims and disagreements with the studies cited in the guidelines.
Before completing discovery, the health plans and Blue Cross Blue Shield Association settled with the plaintiffs. IDSA and the doctors (also represented by Pillsbury) did not settle and eventually obtained a complete litigation victory, avoiding a trial.
In response to Pillsbury’s summary judgment motion on behalf of IDSA and the doctors, the plaintiffs dismissed their RICO claims, admitting that they did not have evidence to support those claims. However, the plaintiffs contended that they had sufficient evidence to take their antitrust and common-law misrepresentation claims against IDSA to trial, claiming primarily that they were entitled to go to trial to seek to prove a conspiracy between the professional society and the health insurance plans based solely on the IDSA’s public statements supporting evidence-based Lyme disease treatment and the fact that health insurance plans sometimes rely on professional guidelines when deciding whether to cover certain treatments.
The district court dismissed all of the plaintiffs’ claims against IDSA with prejudice. The court granted IDSA’s summary judgment motion against the plaintiffs’ antitrust claims, holding that the plaintiffs did not set forth “any affirmative evidence... to support their allegations of a conspiracy to deny the existence of chronic Lyme disease in exchange for payment,” which was the crux of the plaintiffs’ antitrust claims. The court noted that “instead, they offer merely speculation, conclusory assertions and attorney argument.”
In a separate opinion, the court granted IDSA’s motion to dismiss the plaintiffs’ new common-law misrepresentation claims with prejudice and without leave to amend, holding that “the statements in the IDSA Guidelines are not the type of statements that plaintiffs can recover for based on misrepresentation, as they are medical opinions, not factual representations. ... And where there is a legitimate difference of opinion on medical treatments among experts, there is no false representation of a material fact.”
In affirming the district court’s granting of the motion to dismiss the misrepresentation claims, the appellate court wrote “…we agree with the district court that the Guidelines ‘are medical opinions, not factual representations,’ and cannot form the basis for a claim of fraudulent or negligent misrepresentation.” The appellate court added that “[j]ust because Plaintiffs disagree with those opinions does not mean that IDSA is somehow liable because their doctors or insurance providers found the opinions persuasive.”
The Pillsbury team representing IDSA and the doctors was led by senior counsel Alvin Dunn, who focuses on antitrust law as a member of Pillsbury’s Litigation Group and Nonprofit Organizations practice. Litigation partner Casey Low, retired Litigation partner Jack McKay, and Litigation counsel Michael Warley all played valuable roles.