Attorneys for Ballad Health renewed their call for a judge to dismiss a federal lawsuit concerning the composition of its board of directors and filed a new motion to strike the plaintiff’s amended opposition.
Ballad previously filed a motion asking the court to dismiss a civil complaint by 10 East Tennessee residents who contend that two board members shouldn’t also simultaneously serve on the board of East Tennessee State University.
In response, plaintiff attorneys filed a lengthy response, some of which has been amended. Last week, Ballad filed its latest motion along with 18 pages of supporting documentation asking U.S. District Judge Curtis Collier to strike this response.
“Although plaintiff’s new opposition complies with the court’s page limit and font size requirements, it does not correct any of the issues that led defendants to move to strike plaintiff’s original response,” according to the motion.
The motion contends that the plaintiffs submitted 17 unauthenticated exhibits totaling 200 pages of material that isn’t mentioned in the initial complaint.
“Plaintiffs use of the new exhibits and materials and plaintiff’s need to rely on these exhibits and materials underscores that their opposition is wholly improper and that the portions of its opposition outside the pleadings should be stricken,” the latest motion states.
The original complaint contends that David Golden and Scott Niswonger should not be allowed to simultaneously serve on the boards of both Ballad Health and East Tennessee State University and challenges why ETSU President Brian Noland also serves on the Ballad board.
It asserts that Ballad and the ETSU physicians group are competitors in the health care marketplace and this arrangement could work to do away with the college’s medical providers program. The lawsuit also asks the court to declare that the state-issued Certificate of Public Advantage governing Ballad Health operations fails to satisfy federal anti-trust immunity regulations.
In its response, Ballad attorneys call on the court to dismiss the other eight Ballad board members from the action, writing “plaintiffs do not have a case against them because they do not sit on multiple boards and have not engaged in any actionable conduct.”
The attorneys also assert that ETSU isn’t a corporation but a public institution and the federal guideline for interlocking directors “applies only to directors who serve on the boards of two corporations,” meaning the action against Golden and Nicewonger should be dismissed.
The response reiterates previous points that the plaintiffs have failed to articulate any harm they’ve suffered, failed to define the market the complaint refers to and that Ballad is “immune” to the lawsuit because the “COPA Act not only meets but exceeds” the standards because the state is actively involved in supervising the merged health system.