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Brian P. Dunphy

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[email protected]

+1.617.348.1810

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Brian is a member of the Health Care Enforcement Defense Group, and he defends clients facing government investigations and whistleblower complaints regarding alleged violations of the federal False Claims Act and similar state laws — often related to purported overpayments or kickbacks. Brian also handles commercial health care litigation involving business disputes, and he defends national product liability cases for pharmaceutical and biotech companies.

Brian advises and counsels health care providers, biotechnology and life sciences companies, clinical laboratories, and pharmaceutical and medical device manufacturers. He represents them in litigation and government investigations. He is also a member of the firm’s Health Care Enforcement Defense Group and is a frequent author on health care fraud and abuse issues.

Brian focuses his practice on defending companies against government investigations of alleged violations of the False Claims Act (FCA) and the Anti-Kickback Statute (AKS), conducting internal investigations, and litigating qui tam FCA cases in federal courts around the country.  Brian also defends pharmaceutical and biotech companies in national product liability cases and represents biotechnology, life sciences, and technology companies in complex business disputes. 

Brian has spent nearly a decade advising a non-profit organization dedicated to advancing the study, treatment, and prevention of the effects of concussions and other brain trauma in athletes and other at-risk groups. He is a member of the firm's Sports & Entertainment Practice.

Brian is also committed to pro bono work. He is a member of the team that manages the Massachusetts Civil Appeals Clinic. He successfully represented a client from the Democratic Republic of the Congo who was granted political asylum, and he obtained a residential educational placement for a disabled student.

Brian is a member of the Board of Directors of the Volunteers Lawyers Project and he is a committee member of the United Way's "BoSTEM" Leadership Breakfast to benefit STEM education in the Boston Public Schools.

Before attending law school, Brian was a project manager at Accenture, a management and technology consulting firm. He continues to utilize his project management skills working with his clients to manage matters effectively and to deliver timely results.

Education

  • Boston College (JD)
  • Boston College (BA)

Experience

  • Obtained summary judgment in nine related cases against a publicly traded biotechnology company and a pharmaceutical company in multi-jurisdictional product liability disputes involving an FDA-approved pharmaceutical drug
  • Secured a dismissal of a False Claims Act suit brought by an ex-employee whistleblower who accused the company of knowingly overcharging Medicaid for the cost of pharmaceuticals.
  • Obtained a defense verdict as trial counsel after a week-long federal court jury trial. Azco Biotech, Inc. v. Intelligent Bio-Systems, Inc., 12-cv-2599-BEN, U.S. Dist. Ct. (S.D. Cal.). Plaintiff, a former distributor of our client’s next-generation DNA sequencing machines, filed an 18-count, $100 million complaint against our client. Following extensive discovery, we persuaded the court to narrow the case to a single breach of contract claim. The jury returned a unanimous verdict in our client’s favor
  • Achieved victory in an arbitration for an international life sciences company initiated by one of the company’s suppliers. After an evidentiary hearing, a panel of arbitrators rejected the supplier’s claims and entered judgment for our client on its counterclaim, including recovery of our client’s attorneys’ fees and costs
  • Represent a life sciences company before the International Court of Arbitration of the International Chamber of Commerce in a breach of contract dispute involving the manufacture of diagnostic assays
  • Conducted an internal investigation of a health care provider and prepared a self-disclosure to the U.S. Department of Health and Human Services, Office of Inspector General (OIG)
  • Defended numerous clients in government investigations resulting from qui tam FCA complaints, and in FCA litigations, in jurisdictions around the country
  • Obtained summary judgment in ten out of ten related cases against our clients, a publicly traded biotechnology company and a pharmaceutical company, in multi-jurisdictional product liability disputes involving an FDA-approved drug
  • Obtained dismissal of a whistleblower’s state and federal FCA claims against a Pharmacy Benefit Manager in federal court, and the Third Circuit Court of Appeals upheld the district court’s decision in our client’s favor
  • Directed an internal investigation to address employee claims of a potential FCA violation
  • Obtained a defense verdict as trial counsel after a week-long federal court jury trial. Azco Biotech, Inc. v. Intelligent Bio-Systems, Inc., 12-cv-2599-BEN, U.S. Dist. Ct. (S.D. Cal.). Plaintiff, a former distributor of our client’s next-generation DNA sequencing machines, filed an 18-count, $100 million complaint against our client
  • Achieved victory in an arbitration for an international life sciences company initiated by one of the company’s suppliers. After an evidentiary hearing, a panel of arbitrators rejected the supplier’s claims and entered judgment for our client on its counterclaim, including recovery of our client’s attorneys’ fees and costs
  • Represented a life sciences company before the International Court of Arbitration of the International Chamber of Commerce in a breach of contract dispute involving the manufacture of diagnostic assays
  • Successfully defended a physician before an Administrative Law Judge against an action by the Massachusetts Board of Registration in Medicine to revoke or suspend the physician’s license
  • Conducted an internal investigation of a health care provider and prepared a self-disclosure to the U.S. Department of Health and Human Services, Office of Inspector General (OIG)
  • Successfully opposed the OIG’s proposed exclusions of a physician from federal health care programs

Recognition & Awards

  • Included on the Massachusetts Super Lawyers Rising Star: Health Care list (2014 – 2017)
  • Greater Boston Chamber of Commerce, Boston Future Leaders Program 
  • Boston Bar Association Public Interest Leadership Program 

Involvement

  • Board of Directors, Volunteer Lawyers Project of the Boston Bar Association
  • Board of Directors, Concussion Legacy Foundation
  • Committee Member, United Way BoSTEM Leadership Breakfast
  • Member, Boston Bar Association
  • Member, Massachusetts Bar Association
  • Member, American Bar Association
  • Member, American Health Lawyers Association

Recent Insights

News & Press

Events

Viewpoints

Viewpoint General

FCA Defendant Abandons Petition Before the Supreme Court

May 22, 2019 | | By Samantha Kingsbury, Brian Dunphy

This latest installment in our ongoing coverage of the Polukoff False Claims Act (FCA) qui tam case might be one of our last posts about the case. Last week, Intermountain Health Care, Inc. and IHC Health Services, Inc. d/b/a Intermountain Medical Center (Intermountain), one of the hospital defendants in this matter, which had previously filed a Petition for a Writ of Certiorari with the U.S. Supreme Court on issues relevant to this case (as we reported in February), filed an Unopposed Motion to Dismiss before the high court.
Viewpoint General

FCA Relator and U.S. Weigh in on Defendants' Argument that the FCA is Unconstitutional

May 9, 2019 | Blog | By Samantha Kingsbury, Brian Dunphy

As part of our ongoing discussion of the Polukoff False Claims Act (FCA) qui tam case (involving allegations that certain heart procedures performed by a cardiologist, and billed for by two hospital defendants, were not medically necessary), we reported in February that some defendants filed a petition for a writ of certiorari with the United States Supreme Court. 
Viewpoint General
The Supreme Court denied a petition for certiorari last Monday in U.S. ex rel. Prather v. Brookdale Senior Living Communities, Inc., No. 17-5826 (6th Cir. June 11, 2018), again declining to revisit or clarify the False Claims Act's “materiality” standard set forth in its 2016 decision in Universal Health Services v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016). 

In Prather, the relator alleged that defendant Brookdale Senior Living Communities, Inc. (Brookdale), a home health provider, submitted bills for medical services that were “untimely” signed and certified by physicians in violation of Medicare regulations.  When submitting Medicare claims, Brookdale purportedly did not obtain the required physician certifications attesting that the medical services provided by Brookdale were necessary until months after establishing a patient’s plan of care.  Because Medicare regulations under 42 C.F.R. § 424.22(a)(2) require physician certifications “at the time the plan of care is established or as soon thereafter as possible,” the relator alleged that Brookdale’s untimely certifications rendered the claims false under the implied false certification theory.  The district court dismissed the complaint on materiality grounds, holding that the noncompliance was insubstantial and that the relator failed to allege that the government had ever denied a claim based on a violation of the timing requirement under the Medicare regulations.
Viewpoint General

Health Care Enforcement Year in Review and 2019 Outlook: Civil Litigation Developments and Settlements

January 11, 2019 | Blog | By Brian Dunphy, Laurence Freedman, Karen Lovitch

As in years past, the False Claims Act (FCA) remained a powerful health care enforcement tool in 2018, and FCA investigations and litigation persisted, fueled mainly by hundreds of lawsuits filed annually by relators, including 645 new qui tam actions initiated in FY 2018.
Viewpoint General
Last year, as we previously discussed, there were two significant Department of Justice (DOJ) policy developments that are applicable to False Claims Act (FCA) litigation: (1) the “Granston Memo” (issued by DOJ Civil Fraud Director Michael Granston), which set forth direction for DOJ’s exercise of its authority to dismiss declined qui tam FCA cases; and (2) the “Brand Memo” (issued by Associate Attorney General Rachel Brand), which instructed DOJ’s FCA litigators not to use any sub-regulatory guidance to create legal obligations. 
The Tenth Circuit Court of Appeals has issued a significant decision, finding that a physician’s medical judgment about the medical necessity of heart procedures can be “false or fraudulent” under the federal False Claims Act (FCA). 
Like prior years, 2017 saw large government recoveries and a high volume of False Claims Act (“FCA”) cases, which remain the government’s primary health care enforcement tool.
The President has released a “budget blueprint” for fiscal year 2018. Although there are many aspects of the budget blueprint to digest, several budget items signal that government health care fraud enforcement remains a priority under the new administration.
In a closely watched False Claims Act (“FCA”) case, the Fourth Circuit Court of Appeals decided that the Department of Justice (“DOJ”) has an unreviewable right to object to a proposed settlement agreement between a relator and a defendant when the Government has declined to intervene in the case.

News & Press

Brian Dunphy a Member in the Boston Mintz office authored the second article in a four-part series discussing some of 2017’s most important False Claims Act (FCA)-related court decisions.
Brian Dunphy, a Health Law and Litigation Member in the Mintz Boston office, was featured in a Massachusetts Lawyers Weekly article about his appointment to the Boston Bar Association’s Volunteer Lawyers Project’s Board of Directors.
Mintz has elevated five attorneys to Members of the firm. “These attorneys consistently demonstrate excellence in the delivery of legal services to the firm’s clients,” said Bob Bodian, Managing Member.
This is the fourth and final installment of a series from Mintz’s Health Law team recapping key government policies, regulations and enforcement actions from 2016 and discussing their potential impacts on 2017.
Fifty-three Mintz attorneys have been named Massachusetts Super Lawyers for 2016 and thirty-one have been named Massachusetts Rising Stars. The findings will be published in the November 2016 issue of Boston Magazine and in a stand-alone magazine, New England Super Lawyers. 
Mintz Members Brian Dunphy and Larry Freedman authored this BNA’s Medicare Report article discussing the long-awaited final Medicare Overpayment Rule from the Centers for Medicare & Medicaid Services.
Mintz Member Brian Dunphy is quoted in this Inside CMS article on the Center for Medicare and Medicaid Service's (CMS) final rules requiring healthcare providers and suppliers to report and return overpayments by a certain date.
Brian Dunphy, a Health Law and Litigation attorney, is quoted in this Becker’s Hospital Review piece on the Center for Medicare and Medicaid Services’ final rule.

Events