Wednesday, January 22, 2014

Three of four Humana cases dismissed; Texas case proceeding

The Cariten v. Mid-Century case, about which we wrote here and here, was quietly dismissed by the plaintiff in November 2013. The Missouri and Kansas cases were likewise dismissed by Humana at the same time.  The attorneys in the case are not responding to inquiries about the dismissal. This likely means that Humana has determined that it was not likely to win the case on the merits before the court in Tennessee. Recall that an order had been sought to combine the other three cases under multi-district litigation (MDL) rules with the Cariten case in the Eastern District of Tennessee. These dismissals end that strategy by the Farmers companies. 

The case pending in the Western District of Texas, under the name Humana Insurance Company v. Farmers Texas County Mutual Insurance Company, remains pending and is the subject of a Motion to Dismiss, filed in December 2013 by the defendants. Briefing is to be completed by the end of January. When a decision will be made is unknown.

The likely explanation: Humana perceived that the MDL request would be granted, and knew that the controlling law in the Sixth Circuit, under the Care Choices case, does not support its claim that a Medicare Advantage plan has the same rights as ordinary Medicare under the Medicare Secondary Payer law. Its strategy in these four filings is a form of forum shopping, and it no doubt believes that the Federal court in Texas court is the most likely to rule in its favor. 

It appears that Care Choices will remain good law in the Sixth Circuit (which includes Michigan) for some time to come.