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. 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, health plans, Medicare Advantage plans, and pharmaceutical and medical device manufacturers. He represents them in government investigations, in litigation, and at trial. He is a member of the firm’s Health Care Enforcement Defense Group and is a frequent author on health care fraud and abuse issues.
In particular, Brian defends companies against government investigations of alleged violations of the False Claims Act (FCA) and the Anti-Kickback Statute (AKS). He conducts internal investigations and litigates 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 is committed to pro bono work. He is a member of the team that manages the Massachusetts Civil Appeals Clinic. He obtained political asylum for a client who was tortured in the Democratic Republic of the Congo, and he obtained a residential educational placement for a disabled student. Brian has spent more than 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.
Brian is also deeply involved in the Boston community as a member of the Boards of Directors of the Concussion Legacy Foundation and the Volunteers Lawyers Project. Brian serves as 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, where he provided project management and consulting services. Brian developed project plans and budgets, managed teams to meet project milestones, and worked with client executives to ensure projects met business objectives. He continues to utilize his project management skills working with his clients to manage matters effectively and to deliver timely results.
- Boston College (JD)
- Boston College (BA)
- Defended numerous clients, including laboratories, health plans, and Medicare Advantage plans, in government FCA investigations and FCA litigation in jurisdictions around the country
- 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
- 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
- Represented a health insurance company in an FCA lawsuit in federal court where relator alleged an industry wide drug-pricing scheme. The court dismissed the case
- Defended companies against FCA retaliation claims before litigation, in litigation, and at trial
- 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
- 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
- Volunteer Lawyers Project: 2019 Denis Maguire Award
- Included on the Massachusetts Super Lawyers Rising Star Health Care list
- Greater Boston Chamber of Commerce, Boston Future Leaders Program
- Boston Bar Association Public Interest Leadership Program
- Board of Directors, Volunteer Lawyers Project of the Boston Bar Association
- Board of Directors, Concussion Legacy Foundation
- Committee Member, United Way BoSTEM Leadership Breakfast
- Alumni Board Member, Boston College Law School
- Member, Boston Bar Association
- Member, Massachusetts Bar Association
- Member, American Bar Association
- Member, American Health Lawyers Association
News & Press
November 18, 2019 | Blog | By Brian Dunphy, Rachel Yount
Eleventh Circuit Rules in AseraCare Case that Disagreements in Clinical Judgment, Without Objective Falsity, Do Not Prove Fraud Under the FCA
September 11, 2019 | Blog | By Samantha Kingsbury, Laurence Freedman, Brian Dunphy
July 10, 2019 | Blog | By Jane Haviland
May 22, 2019 | | By Samantha Kingsbury, Brian Dunphy
May 9, 2019 | Blog | By Samantha Kingsbury, Brian Dunphy
Third Time’s Not the Charm: Supreme Court Again Declines to Weigh in on Escobar’s “Materiality” Standard
March 25, 2019 | Blog | By Brian Dunphy, Nicole Henry
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.