Back to the mat? HCA antitrust case attorneys aren’t done with Mission-monopoly argument

ASHEVILLE - New filings in the first Western North Carolina antitrust lawsuit leveled against HCA Healthcare, Mission Health and Mission Hospital show attorneys representing six plaintiffs aren’t done arguing that the system holds monopoly power locally.

Special Superior Court Judge for Complex Business Case Mark Davis is giving both plaintiffs and defendants more time in the case to allow what will likely be a more nuanced argument about monopoly power. Davis on Oct. 7 allowed plaintiff’s attorneys until Nov. 6 to file a new, updated complaint in the case.

That’s because of Judge Davis’ big decision Sept. 19 partially granting and partially denying HCA’s motion to dismiss the original complaint, an 87-page document asserting two main points: HCA is perpetrating restraint of trade in Western North Carolina, effectively interfering with what could be a competitive market, and that it has a monopoly.

Though the lawsuit – named Davis v HCA Healthcare; “Davis” being one of the six plaintiffs — is currently being litigated in Raleigh’s Business Court, it started in Buncombe County Superior Court where, providing a number of factors fall into place, it could return some day.

Previously:In big win for plaintiffs, NC Business Court judge won't fully dismiss antitrust lawsuit

Related:Judge in 1st antitrust lawsuit v. HCA, Mission says decision is likely in 'next few weeks'

Judge Davis agreed that restraint of trade was happening and allowed that part of the lawsuit to move forward, which attorneys, plaintiffs, and even Attorney General Josh Stein and Treasurer Dale Folwell lauded: both elected officials have filed friend of the court briefs in the lawsuit, Stein as AG and Folwell as an individual.

But the judge agreed to HCA’s argument that the hospital system, America's largest, doesn’t hold monopoly power in both Asheville and several outlying markets, including  Yancey, Madison, Buncombe, Mitchell, Transylvania, McDowell and Macon counties, each where plaintiffs’ attorneys argue the Mission Health network controls between nearly 75%-90% of the health care market.

A slight caveat allows attorneys to keep fighting for the monopoly claim, however.

Judge Davis granted HCA’s argument to dismiss the monopoly claims, but he didn’t do so with prejudice, which means, when attached to a court’s decision, the matter is final and parties cannot file the same claim again in that court.

Plaintiffs’ attorneys are taking advantage of this.

Oct. 5 Motion to Extend Time in Davis v HCA by Andrew Jones on Scribd

“Plaintiffs intend to file an amended Class Action Complaint (the “Amended Class Action Complaint”) in the hopes of re-alleging in whole or part their monopolization claims that were dismissed without prejudice,” an Oct. 5 motion from firms Wallace & Graham and Fairmark Partners LLP law firms stated. “In the interests of efficiency, the Parties agree that Defendants need not answer the Class Action Complaint or any amended complaint thereto until after any ruling on any future motion to dismiss the Amended Class Action Complaint.”

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Now HCA will have until 20 days after the new complaint — which will not deal with restraint of trade and instead will focus on the monopoly argument — to file a response.

Plaintiffs’ attorneys have framed Davis' decision to let the case move forward on the restraint of trade argument as a win.

“We are delighted that the Court has allowed the restraint of trade claim to proceed, and we look forward to continuing to seek justice for the citizens of Western North Carolina,” Mona Lisa Wallace of Wallace & Graham said in an Oct. 5 statement following the judge’s opinion.

Mission also praised Davis' denial of the monopoly claims that day.

"We appreciate the court’s thoughtful consideration of the issues raised in our filing, and we are pleased with the court’s decision to dismiss a substantial portion of the claims," Lindell said. "We continue to believe the allegations are wholly without merit, and we will vigorously defend ourselves through the legal process."

Even after Davis’ Sept. 19 opinion, the back-and-forth in Raleigh could go on for years before the case returns to Buncombe County.

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Its course has substantial bearing on decisions made in another case, Brevard v. HCA Healthcare.

That class-action lawsuit began in June and only had one plaintiff, the city of Brevard, which is advocating for its employees. It now has four plaintiffs, including Buncombe County, the city of Asheville and Madison County.

Andrew Jones is an investigative reporter for the Asheville Citizen Times, part of the USA TODAY Network. Reach him at @arjonesreports on Facebook and Twitter, 828-226-6203 or arjones@citizentimes.com. Please help support this type of journalism with a subscription to the Citizen Times.

This article originally appeared on Asheville Citizen Times: HCA antitrust case: Lawyers to double down on monopoly argument