Guttman Buschner LLP

Staff

By

Judge Nancy Gertner (Ret.)

Judge GertnerJudge Nancy Gertner (Ret.)
Of Counsel
(202) 800-3001
ngertner@gbblegal.com

Judical Appointment
U.S. District Court Judge for the District of Massachusetts (1994 – 2011)

Education
Yale Law School
Barnard College

Admissions
United States District Court, MA
Commonwealth of Massachusetts
United States Supreme Court

Practice Areas
Employment Discrimination
Civil Rights

Honors & Awards
Thurgood Marshall Award, 2008
Margaret Brent Women Lawyers of Achievement Award, 2014
The Lelia J. Robinson Award, 2012
Arabella Babb Mansfield Award, 2012
Hennessey Award for Judicial Excellence
The Morton A. Brody Distinguished Judicial Service Award
Honorary Degree, Doctor of Laws, Brandeis University

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Whistleblower lawyers to Grassley: Make Barr commit to False Claims cases

A coalition of academics, public interest groups and lawyers who represent whistleblowers sent a letter Thursday to outgoing U.S. Senate Judiciary Committee Chairman Chuck Grassley, calling on the Iowa Republican to protect one of his own signature pieces of legislation, the False Claims Act, when Attorney General nominee William Barr comes before the Senate later this month in confirmation hearings.

As I reported Wednesday, Barr has previously called the FCA, which offers a bounty to private whistleblowers who file fraud suits on behalf of the U.S. government, an unconstitutional “abomination.” As the head of the Justice Department’s Office of Legal Counsel in 1989 – three years after Senator Grassley and others in Congress overhauled the FCA to spark prosecution of fraud against the U.S., Barr wrote an opinion highlighting what he considered to be constitutional violations in the law’s whistleblower provisions. The U.S. Supreme Court rejected some constitutional challenges to the FCA in a unanimous ruling in 2000, but Barr said in 2001 that he still considered the law unconstitutional.

Read the full article here.

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Optimizing regulatory compliance enforcement in a global economy

With regional offices of the Securities and Exchange Commission, the Environmental Protection Agency, and the Equal Employment Opportunity Commission, Atlanta is not just a center of international trade, it is also a center for compliance enforcement.

With the growth of multinational corporations whose businesses are not defined by geographic boundaries, government agencies and their regional offices that enforce compliance must leverage limited resources to maintain a watchful eye and enforce the laws. Today, this may mean collection of evidence abroad.

The notion of leveraging resources to enforce compliance is not new. In the 1960s and 1970s when our nation passed sweeping legislation proscribing discrimination and protecting the environment, citizens suit provisions were bolted into these laws so that average taxpayers could initiate litigation where government regulators failed to take action. And of course, at a state level, a myriad of consumer protection statutes now provides citizens with the right to seek enforcement of substantive law.

Consistent with our tradition of citizen involvement in compliance enforcement, the United States has laws that, under limited circumstances, allow whistleblowers to take action even where they have not been personally aggrieved.

Federal and State False Claims Acts allow citizens to bring suit in the name of the government where they have information that the government has sustained economic injury through fraudulent or other types of wrongful conduct.

Under the Dodd Frank Amendments to Federal Securities laws, citizens can now report claims of securities fraud to the Securities and Exchange Commission.

The IRS has regulations allowing whistleblowers to bring information about tax cheats to the attention of that agency.

Under the FCA, Dodd Frank and the IRS provisions, whistleblowers are incentivized and thus compensated for their efforts with a bounty where their information or litigation leads to government recovery.

Under the False Claims Act alone, the government has recovered billions of dollars, but more importantly FCA litigation has surfaced information about the honesty of the drug industry, the quality of care provided at nursing homes, the safety of public transportation systems, and the integrity of products integral to our nation’s defense.

In an era where consumer products are manufactured abroad and shipped into domestic ports of entry like Atlanta, and drug trials necessary to secure FDA approval are often conducted abroad with little immediate supervision from the Food and Drug Administration, whistleblowers have become a mainstay of compliance enforcement. They bring forward original information or analysis, technical expertise, and through knowledge of language and culture, the ability to report wrongdoing that would otherwise go undetected.

Yet, at the same time whistleblowers add value, there is a need to ensure that whistleblowers do not flood the agencies and the courts with claims that are not properly documented and pegged to a cognizable legal violation.

Last year, for example, the SEC received thousands of whistleblower complaints but secured relief on less than 10. While many of these complaints may lack merit, some may be falling by the wayside because of a lack of understanding on the part of the whistleblower of what the SEC needs, and failures in communications and investigation by all concerned about the strengths and weakness of these cases.

There is a need to create a better relationship between whistleblowers, their counsel, and government regulators, to the common end that serious harm to the U.S. consumers can be exposed and deterred.

Earlier this month, Emory University School of Law convened a conference of whistleblower counsel and senior government regulators as part of a first step in helping these groups focus the relationship to better enforce compliance in a global economy. This was the first of what may be many dialogues that the Law School’s Center for Advocacy and Dispute Resolution hopes to convene with these parties.

How should claims be investigated before they are brought to government regulator attention? What types of claims are of interest to the government and important for establishing compliance precedent? How can government make better use of whistleblowers and their counsel? These types of issues were vetted by conference panelists.

As little as a decade ago, such a conference would be unprecedented. Yet, the world has changed markedly. Our regulatory bodies must monitor relationships across the globe while electronic communication has exponentially expanded the sea of information from which proof of wrongdoing must be culled.

In this new era, leveraging the resources of whistleblowers is consistent with a legal tradition that for more than a century has depended on the role of average citizens in enforcing the law.

By Paul Zwier and Reuben Guttman

Also, available on line at AJC.com

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Class Action Settlement Calls for Testing of Almost 20,000 South Carolina Prison Inmates for Hepatitis C

COLUMBIA, S.C., Dec. 21, 2018 /PRNewswire/ — A proposed partial settlement of a civil rights class action lawsuit has received preliminary approval from a Federal Court here in South Carolina; it will provide Hepatitis C testing to all current and future inmates incarcerated in the South Carolina Department of Corrections (SCDC).

According to the terms of a proposed agreement in Russell Geissler et al. v. Bryan P. Stirling et al., almost 20,000 current inmates will be tested along with future inmates of the SCDC.

The United States District Court for the District of South Carolina has set a fairness hearing on the settlement for February 12, 2019 at 11:00 AM in the United States District Court for the District of South Carolina in Columbia. That hearing has been scheduled by United States Senior District Court Judge, Margaret Seymour.

The settlement does not waive personal injury claims and the litigation will go forward with regard to claims for the treatment of Hepatitis C. The partial settlement was the result of significant fact discovery including document production and depositions.

The class is represented by Christopher Bryant of Yarborough Applegate LLC located in Charleston, SC and Reuben Guttman of Guttman, Buschner, PLLC in Washington, D.C., Traci Buschner, Caroline Poplin MD/JD, and Paul Zwier of Guttman, Buschner, PLLC also worked on the litigation.

Counsel representing the class praised opposing counsel for working toward this partial resolution marking an inroad toward addressing a public health crisis.

National statistics show that nearly 17 percent of nation’s inmate population has Hepatitis C, a bloodborne pathogen which can lead to death. Prior to the litigation, the SCDC had failed to test inmates for the disease, leaving them without the full awareness necessary to prevent its transmission.

The litigation will continue as plaintiffs press for the treatment of those who already have the disease. Today, several medications exist to treat and cure the condition.

“This is a terrific result, but we still have our work cut out for us to complete the litigation. This is not just a prison health issue; it’s a public health issue,” said Christopher Bryant, counsel for the class.

“This is a win for all citizens of the State of South Carolina and elsewhere. Treating inmates in prisons before they re-enter society is the type of prevention that will save lives and and save precious healthcare dollars,” said class counsel, Reuben Guttman.

Guttman, Buschner, PLLC is a nationally recognized boutique complex litigation law firm; in the healthcare area alone it has represented whistleblowers under the False Claims Act in cases which have returned over $5.5 billion to government treasuries. More information about the firm and its members can be found at gbblegal.com.

Yarborough Applegate LLC is a plaintiff’s law firm primarily focused on catastrophic personal injury, including traumatic brain injuries, dram shop/drunk driving cases, trucking cases, and wrongful death. More information on the firm, representative results, and its members can be found at yarboroughapplegate.com.

Also available on line here.

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Lawsuit could force SC to spend tens of millions to treat inmates for Hepatitis C

By John Monk, The State
Greenville News

COLUMBIA — A lawsuit that could require the S.C. Department of Corrections to spend tens of millions of dollars to treat possibly thousands of prison inmates with Hepatitis C, a potentially fatal liver disease, was filed Tuesday in federal court.

The lawsuit was filed by inmate Russell Geissler, 34, of Greenville, who is serving a roughly 10-year sentence for charges including armed robbery. It claims that up to 6,000 of the state’s inmates may have Hepatitis C, a liver infection especially prevalent among prison inmates..

The lawsuit alleges a violation of the Eighth Amendment to the U.S. Constitution, which bars cruel and unusual punishment. It seeks class-action status and asks a federal judge to order immediate testing of the prison system’s approximately 19,000 inmates. S.C. prisons do not now systematically test inmates for Hepatitis C, the lawsuit says.

A similar federal suit was brought against the Florida prison system. In that case, a federal judge last fall ordered that state’s prison system to diagnose and treat the most infected inmates.

The judge in that case found that Florida had “a long and sordid history of failing to treat Hepatitis C-infected inmates.” Not treating them amounted to a violation of the Eighth Amendment, showing “deliberate indifference” to inmates’ serious medical needs.

Last week, the state of Massachusetts tentatively settled another similar federal lawsuit, agreeing to begin testing and treating its prison inmates. Similar class-action lawsuits are pending in a dozen other states.

Prison inmates have a constitutional right to appropriate and timely medical treatment. Inmates have no other access to medical care other than what the state allows or provides.

There is effective treatment for Hepatitis C. New drugs to treat it began to come on the market in 2013, and treatment nearly always is successful, according to medical authorities. If the infection is untreated, it can lead to liver cancer, liver failure or other severe ailments.

The biggest barrier to treatment is cost of the anti-viral treatment drugs — which can cost from $25,000 to $50,000 for each prisoner. However, Hepatitis C progresses in stages, and not everyone who has the infection needs to be treated at once.

Hepatitis C is spread by exposure to blood or blood products. The most common ways to contract the disease are through intravenous drug use, but people also can be affected through tattooing or blood transfusions. Persons affected with Hepatitis C can suffer weakness, pain, liver cancer and bleeding from any part in the body.

Prison officials were not immediately available to comment on the suit. However, the S.C. Department of Corrections is aware of the dangers of Hepatitis C.

“We have begun to treat Hepatitis C inmates with a new drug regimen that has over a 95 per cent cure rate,” prisons director Bryan Stirling wrote in his department’s annual report last fall.

Last fiscal year, the department treated four inmates with the new drugs, Stirling said.

But that isn’t anywhere near what is needed, the lawsuit says.

The S.C. prison system’s program “will serve only 16 inmates, despite the fact that the number of infected inmates likely numbers in the thousands,” the lawsuit said.

The prison system now has a partnership with the S.C. Department of Environmental Control and the University of South Carolina Infectious Disease Program, Stirling wrote. Two doctors are on contract to work with various infectious diseases, including Hepatitis C, he wrote.

Geissler, an inmate since 2011, was diagnosed as having Hepatitis C in January 2014 after having his blood tested for an unrelated health issue. The prison system repeatedly has denied his requests for treatment, and he has exhausted “all available administrative remedies,” his lawsuit says.

Christopher Bryant, the Charleston lawyer who brought the lawsuit on Geissler’s behalf, said Tuesday the prison system’s position is that Geissler and other inmates with Hepatitis C are “not yet sick enough for treatment. This is contrary to accepted medical standard of care and unacceptable in a civilized society.”

Inmates with untreated Hepatitis C are being released when they finish their sentences, Bryant said. Outside prison, they may spread the disease. If they are tested, treated and taught about prevention inside prison, that benefits the public as a whole, Bryant said.

“Treat and educate in the prisons,” Bryant said. “It will help to slow the spread outside prisons.”

Bryant acknowledged some people may not be sympathetic to giving expensive treatment to inmates.

But inmates deserve medical treatment, he said. “If someone breaks their arm in prison, we don’t say, ‘Hey, don’t get a cast’.”

Also, he said, Geissler is not asking for an unproven experimental drug. The drugs in use to treat Hepatitis C have a nearly 100 percent cure rate, he said.

Bryant is working with lawyers in the Harpootlian law firm of Columbia, which has experience in class-action litigation, and the Guttman Buschner law firm in Washington, D.C., experienced in medical and class-action issues, in the lawsuit.