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Both sides argue over dismissing the Ballad Health federal lawsuit

Matthew Lane • Aug 1, 2019 at 8:30 PM

GREENEVILLE — Over the last two weeks a slew of motions and responses to motions and memorandums in support of both have been filed in the federal anti-trust lawsuit against Ballad Health.

One of the most noteworthy arguments to come out of recent court filings has been the claim by Ballad that the attorney for the plaintiffs — Francis X. Santore Jr. — has been acting in bad faith and has purposely attempted to delay the proceedings in order to drive up Ballad’s litigation costs.

Santore disputes this claim and says that any legal fees incurred by Ballad are the product of the company’s own machinations.

BACKGROUND INFORMATION

Earlier this year, a group of 10 local residents filed a lawsuit in U.S. District Court in Greeneville against Ballad, ETSU Physicians and all 11 members of Ballad’s board of directors.

The plaintiffs argue that three members of Ballad’s board of directors — David Golden, Scott Niswonger and Brian Noland — also serve as ETSU trustees/officers. The plaintiffs further claim this is a conflict of interest since Ballad competes with ETSU Physicians.

The lawsuit seeks an injunction preventing Noland, Niswonger and Golden from serving on two competing boards and an order compelling the reconstituting of the Ballad board of directors.

THE LATEST FILINGS

Right now the issue at hand is whether or not the lawsuit should be dismissed.

Ballad argues that when deficiencies in the original lawsuit were pointed out, Santore chose not to amend the complaint. Then, after Ballad filed its motion to dismiss the lawsuit, Santore filed a memorandum, which included hundreds of pages of exhibits and news articles, not mentioned in the original lawsuit.

Ballad’s attorneys argue this is an “end run” to amend the complaint and is an attempt to delay the proceedings to drive up the company’s litigation costs.

The latest court filings by Ballad also claim that Santore is acting in bad faith by, among other things, posting on social media that Ballad President and CEO Alan Levine “stutters ... like Porky Pig,” and dubbing him “Lying Levine.”

In response, Santore said that personal utterances by him, outside the courtroom, are not at issue and are outside the purview of this case.

And when it comes to the filings of a complaint and dealing with supposed deficiencies in said complaint, Santore said Ballad cannot have things “both ways.”

“They cannot, on the one hand, move to dismiss the original complaint because it is supposedly insufficiently plead and just a bare bones complaint,” Santore wrote in his memorandum. “And then, on the other hand, complain because the amended complaint sought to be filed in this case and containing the type of information they demanded is detailed to the nth degree.”

TIMELINE OF EVENTS

April 12 – Plaintiffs file a lawsuit against Ballad Health and ETSU Physicians, seeking to have Ballad’s board of directors reconstituted with new members who, in the view of the plaintiffs, do not have a conflict of interest, while declaring Ballad’s Certificate of Public Advantage (COPA) as inadequate when it comes to state supervision.

June 10 – Ballad files motion to dismiss the lawsuit, arguing that the plaintiffs did not have standing to bring the lawsuit in the first place, that they failed to allege a case or controversy and that Ballad has immunity under federal antitrust laws.

June 28 – Plaintiffs file a 34-page memorandum opposing Ballad’s motion to dismiss and likening Ballad to an “octopus” and a “bully of the seas.” The memorandum included more than 200 pages of new material.

July 3 - Judge Corker rules that the plaintiffs’ memorandum was too long, that the font size was too small, thus the filing did not comply with the rules of the court. Corker asked the plaintiffs to resubmit.

July 10 - ETSU Physicians files a motion to dismiss, arguing the plaintiffs have failed to state a claim and that they have not claimed a single injury as a result of the alleged interlock between Ballad and ETSU Physicians.

July 11 – Plaintiffs comply with Corker’s order and file a new memorandum opposing Ballad’s motion to dismiss, which again included more than 200 pages of new material.

July 18 – Ballad seeks to strike all of this new material and all references to news articles from this memorandum, arguing that this information was never in the original lawsuit and that some of the news articles were published two months after the lawsuit was filed.

July 25 – Ballad responds to the memorandum, claiming the attorney for the plaintiffs has been acting in bad faith and purposefully delaying the matter in order to drive up Ballad’s litigation costs.

July 29 – Plaintiffs file another memorandum opposing the motions to dismiss.

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