A federal jury in San Antonio has ruled that a local allergy testing and immunotherapy providers take nothing on $224 million worth of antitrust claims it had brought against a patient advocacy nonprofit group.
The eight-person jury ruled unanimously that the nonprofit, Allergy & Asthma Network/Mothers of Asthmatics (AANMA), and its founder, Tonya Winders, did not conspire with allergist trade associations to put the plaintiff, San Antonio-based United Allergy Services, out of business.
Advocacy group Academy of Allergy and Asthma in Primary Care (AAACP), which supports innovative care models of allergy and asthma care, also joined the lawsuit on the plaintiff side after it was filed in early 2014 against multiple defendants, including Phadia, a Swedish company that develops and manufactures blood test systems designed to detect allergies and autoimmune diseases.
Winders and her nonprofit became the “last man standing” on the defendant’s side, since all other defendants settled before trial.
“It was important to stand up for what was right; it verified her (Winders’) convictions of what they were doing,” Joshua Bennett, one of the defendants’ attorneys, said. “We were fighting for the right to speak out on behalf of asthma and allergy patients. This lawsuit was an outright affront on this right.”
During the three-week trial, lawyers for the defendants argued that their clients simply exercised their First Amendment rights.
In addition to Bennett, the defendants were represented by Leon Carter (who led the trial team), Linda Stahl, Courtney Barksdale Perez and Stacey Hernandez – all of Carter Arnett, a Dallas litigation boutique. David Prichard of the San Antonio firm Prichard Hawkins Young was also on the defense team.
Bennett said Winders and Allergy & Asthma Network were added to the lawsuit in 2015 after a couple articles Winders published in advance of an annual event the nonprofit sponsors in Washington called Allergy & Asthma Day Capitol Hill. According to its website, the event “brings members of Congress and their staffs face to face with patients, caregivers, advocates, healthcare professionals, industry leaders and researchers to discuss critical legislative and regulatory issues that involve asthma and allergy care.”
The articles discussed “the very concerns we proved at trial,” Bennett said, such as the idea that companies like United Allergy Services were “using patients to exploit insurance loopholes to get paid but not render appropriate care” to patients.
“The truth did not sit well with them, so they sued us,” Bennett said.
He said the plaintiffs also brought the suit against his client because she sent a letter in September 2013 to 100-plus chief medical officers that outlined her nonprofit’s concerns about certain allergy procedures in which medical providers would fraudulently code the wrong way to get more money.
In addition to clearing Winders/AANMA of the plaintiffs’ charges, the jury also answered a question it was not required to, ruling that Winders and her organization acted solely to petition the government and protect patients in accordance with their First Amendment rights.
In an email, Austin-based Pillsbury Winthrop partner Casey Low, who represented the plaintiffs, said his clients “remain committed to expanding access to care and protecting the rights of physicians and their patients to choose what is best for them.
“The overwhelming evidence now finally publicly available shows the unfortunate use of a nonprofit to further the interests of its pharmaceutical and other corporate donors, rather than advocating for patients,” he said. “We always knew it would be a risk that a jury would be reluctant to find against a nonprofit and an individual, but we pursued the case because it was the right thing to do. We plan to file motions with the court to invalidate the verdict, and, if necessary, appeal. We will also continue fighting for expanded access to badly needed allergy care.”