Pennsylvania State Capitol building in Harrisburg. Pennsylvania State Capitol building in Harrisburg. Photo: Shutterstock

During its upcoming argument session in Harrisburg, the Pennsylvania Supreme Court is set to wade into a number of contentious topics including whether the statute of limitations should bar thousands of Risperdal lawsuits in Philadelphia and whether consent decrees between health insurer Highmark and health care network UPMC should be extended indefinitely until litigation between the two feuding companies is resolved.

The three-day argument session is set to begin Tuesday, and the justices are expected to hear arguments in 16 cases.

Insurance Litigation

The justices are scheduled to hear arguments in two closely watched disputes involving insurance litigation. The cases were also both referred to the justices for consideration from the U.S. Court of Appeals for the Third Circuit.

The second case the justices are set to hear during the session is Barnard v. Travelers Home and Marine Insurance, which deals with whether increasing an underinsured motorist policy limits constitutes a “purchase” requiring the insured to be offered a new stacking waiver.

In February 2018, U.S. District Judge Gerald McHugh of the Eastern District of Pennsylvania determined that the increase does mandate a new stacking waiver, but noted that no other court has a case that was “on point.” Ultimately, he said the case hinged on the definition of “purchase” in the context of stacked coverage, and said the governing statute, Section 1738 of the Pennsylvania Motor Vehicle Financial Responsibility Law, used the plain meaning of the word.

The second insurance litigation dispute the justices are set to hear comes in the consolidated cases Sayles v. Allstate Insurance and Scott v. Travelers Commercial Insurance. The justices are scheduled to hear the case Wednesday, and arguments are set to focus on whether an insurer can mandate that claimants undergo an unlimited number of medical exams by a doctor of the carrier’s choosing before they can receive benefits.

The justices specifically agreed to hear argument on, “Whether, under Pennsylvania law, a contractual provision in a motor vehicle insurance policy that requires an insured to submit to an independent medical examination by a physician selected by the insurer, when and as often as the insurer may reasonably require, as a condition precedent to the payment of first-party medical benefits under that policy, conflicts with the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. Section 1796(a), and is therefore void as against public policy.”

The question of whether insurers can mandate claimants to attend as many independent medical examinations as the carrier wants has been percolating through state courts in recent years, and insurance attorneys have expressed a need for clarity.

Risperdal

Two men who started taking the antipsychotic drug Risperdal in the 1990s are set to argue before the justices Thursday that they had no way of suspecting the drug was linked to their growth of excessive breast tissue until their mothers saw TV commercials discussing the link more than a decade later. The arguments are part of an effort by the plaintiffs to expand the statute of limitations for bringing lawsuits against the maker of the drug.

According to attorneys involved in the Risperdal litigation, the issues raised in the cases Saksek v. Janssen and Winter v. Janssen affect more than 40 percent of the roughly 7,000-strong Risperdal docket, which has seen dramatic growth over the past few years.

The plaintiffs, both of whom sued drugmaker Janssen Pharmaceuticals in 2014 after their mothers saw a TV commercial linking Risperdal to excess growth of breast tissue, asked the justices to remand the cases back to the Philadelphia Court of Common Pleas for further proceedings.

Both of the cases had been dismissed on summary judgment after Philadelphia Court of Common Pleas Judge Arnold New, who oversees the city’s Complex Litigation Center, determined that, based on the medical literature, newspaper articles and attorney advertisements, their claims began to run no later than August 2009. The Superior Court affirmed that ruling, and further determined that their claims began to accrue even earlier, saying the plaintiffs should have known about their injuries by the time that Janssen decided to change Risperdal’s label in 2006.

UPMC

With a June 30 deadline fast approaching, the Pennsylvania Supreme Court is set to wade into the bitter fight between Highmark and UPMC about whether the consent decrees that have been in place while the two giant health care companies hash out a lingering coverage dispute can be expended. The issue comes before the justices on a request by the sate and Highmark.

The dispute centers on the companies’ inability to reach an agreement regarding UPMC’s continued treatment of Highmark insureds. From 2002 until 2012, the companies operated in accordance with a 10-year provider agreement under which UPMC agreed to treat and bill patients with Highmark insurance according to negotiated rates. But in 2011, ahead of the termination date of that agreement, UPMC announced it would not renew or renegotiate the pact, citing Highmark’s planned affiliation with West Penn Allegheny Health System, which ultimately was approved, creating an entity in direct competition with UPMC.

Following the intervention of the Attorney General’s Office, the state insurance commissioner and the secretary of health, UPMC and Highmark entered into separate but nearly identical consent decrees that allowed for Highmark subscribers to continue receiving in-network treatment from UPMC until June 30, 2019, court documents said.

The issue now before the state Supreme Court is whether the courts have the power to modify, at the request of the state, the end date of those consent decrees.

Closely Watched Cases

In US Airways v. Workers’ Compensation Appeal Board (Bockelman), the Supreme Court has agreed to consider whether a flight attendant was acting in the scope of her employment when she was injured on a settle bus, and in Commonwealth v. Davis the justices agreed to consider whether the Fifth Amendment privilege against self-incrimination protects a man from having to tell law enforcement officials a password to his encrypted computer that he had memorized.

Both those cases are scheduled to be argued Tuesday.