Lahey’s Motion To Dismiss ‘Under Advisement’

February 5, 2018

The Motion to Dismiss filed by Lahey Clinic has been heard by Judge Indira Talwani in Massachusetts District Court, and has been “taken under advisement,” with the Court due to make a ruling.

In February 2017, the Bermuda Government filed a lawsuit in Massachusetts alleging that Lahey conspired with Dr Ewart Brown, with payments to Dr Brown “disguised as consulting fees,” in return for which Dr Brown “ensured that Lahey received preferential treatment when bidding on healthcare contracts issued by the Bermudian Government.”

Dr Brown previously denied the allegations, calling them a “litany of lies,” while Trevor Moniz, who was Attorney-General when the lawsuit was filed, said “Government believes it has substantial claims against Lahey”.

In April 2017, Lahey Clinic filed a Motion to Dismiss, and the Bermuda Government subsequently filed in opposition to the Motion.

In May 2017, Dr Brown and ten current or former MPs sought leave to file an Amici Curiae brief in a Massachusetts Court in support of Lahey’s motion to dismiss, and in the same month the Bermuda Government filed in opposition to the leave to file the Amici Curiae brief.

The brief [PDF] was signed by Alex Scott, Wayne Furbert, Kim Swan, Michael Scott, Zane DeSilva, Kim Wilson, Mark Pettingill, the late Shawn Crockwell, Walter Roban, David Burt, and Dr. Ewart Brown.

Amicus Curiae is Latin for “friend of the court,” and is a non-party who argues or presents information in support of or against one of the parties to the lawsuit.

On January 8, 2018, Lahey filed [PDF] a “notice of additional authority issued after briefing on Lahey’s Motion to Dismiss,” and on January 22, 2018, the Bermuda Government filed [PDF] a “Supplemental Response in Opposition” to Lahey’s motion, saying their Motion to Dismiss should be denied.

The January 8, 2018 filing from Lahey said the Plaintiff’s alleged injury consists of “a financial injury in the form of plaintiff’s payments to Bermuda insurers for the increased costs of allegedly unnecessary medical scans and alleged payments of millions of dollars on contracts tainted by bribes.”

“The alleged financial injury occurred in Bermuda where plaintiff claims that as an ‘end-payor’ it paid more to Bermuda insurance companies than it should have due to the increased cost of allegedly unnecessary scans,” Lahey stated, adding that, “the plaintiff has failed to allege a domestic injury, as required under civil RICO. For this reason, as well as the others previously briefed, this complaint should be dismissed.”

The January 22, 2018 filing from the Bermuda Government in response to Lahey’s filing alleges that, “For nearly two decades, Lahey, acting from its Burlington, Massachusetts-based headquarters, orchestrated a complex scheme that resulted in Bermuda’s payment of tens of millions of dollars for services begotten by Lahey’s bribery and corruption of the highest levels of Bermuda’s government.

“Eight months after briefing on its Motion to Dismiss closed, Lahey has attempted to introduce a new argument that it never raised in its extensive initial briefing, namely, that Bermuda’s Complaint does not allege a ‘domestic’ injury to its business or property. Lahey’s new argument fares no better than the other ones it has raised because Bermuda’s Complaint alleges numerous ‘domestic’ injuries to its business and property in the US.”

On January 31, 2018, the “Motion for Leave to File Amicus Curiae Brief” was listed in court filings as “denied,” while Lahey’s Motion to Dismiss is listed as “under advisement”.

“Under advisement” is defined as the time after the Court has heard the arguments made by the counsel but before it renders its decision, meaning the matter has not yet been decided.

Since the lawsuit was filed, Bermuda has changed governing parties, with the PLP defeating the OBA in last summer’s General Election, and Kathy Lynn Simmons has replaced Trevor Moniz as the Attorney-General.

When asked about the case in January 2018, Attorney-General Kathy Simmons said, “As Attorney-General, I am particularly mindful of what is in the best interests of Bermuda. My actions and words are guided by that one singular focus.

“In accordance with professional protocol, the Attorney-General’s Chambers will not comment on any active matter that is before the Courts.

The Attorney-General added “however, where it is appropriate and in the public interest, upon conclusion of any matter,” including the Lahey case, ”details of the actions taken will be provided.”

click here Bermuda Govt's lawsuit against Lahey

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