Greeneville attorney Francis X. Santore Jr., who represents the plaintiffs, confirmed the filing of the appeal to the Times News on Friday.
“The late Hall of Fame catcher Yogi Berra once famously said, ‘It ain’t over til it’s over,’ ” Santore said in an email.
“The fight that these brave clients of mine, who are standing alone against the largest medical monopoly in the United States, an octopus that has shut down hospitals and clinics, raised prices for necessary medical services, sued poor people for money when they have naught but a spoonful of gruel in their bowl, and, most shockingly, paid off local and state leaders — some of whom now seek to run for Congress — to do its bidding, is not over ... by a long shot,” Santore continued. “We will continue to utilize all legal means necessary through our courts, and pray for redress therein.”
Last year, the group of 10 local residents filed a lawsuit in U.S. District Court in Greeneville against Ballad, ETSU Physicians and all 11 members of Ballad’s board of directors.
The plaintiffs include Christine and David Bearden, Teri Cook, Carolyn Gibbons, Elmer and Ladonna Greer, Mark Hutchins, Kevin Mitchell, Jamie Pierson and Crystal Regan. Defendants include ETSU Physicians, Ballad Health and its board of directors: Barbara Allen, Julie Bennett, David Golden, David Lester, Alan Levine, David May, Scott Niswonger, Brian Noland, Gary Peacock, Doug Springer and Keith Wilson.
The plaintiffs pointed out in their lawsuit that three members of the board — Golden, Niswonger and Noland — also serve as ETSU trustees/officers and as such claimed this was a conflict of interest since Ballad competes with ETSU Physicians.
The lawsuit sought an injunction preventing Golden, Niswonger and Noland from serving on two competing boards and an order compelling the reconstituting of the Ballad board of directors.
In December, U.S. District Judge Curtis Collier issued his ruling dismissing the lawsuit without prejudice. Collier ruled the plaintiffs did not provide any factual allegations of any potential injury.
Collier wrote in a memorandum that the plaintiffs did not allege any facts to demonstrate a concrete, particularized injury, saying the lawsuit fails to state the nature of an alleged injury beyond asserting a violation of (federal law).
“It is insufficient to claim injury based solely on the existence of a statutory violation,” Collier wrote. “There must be an allegation of harm as a result of the violation.”
MOTIONS AND RESPONSES
Last summer, the plaintiffs and the defendants filed a number of motions and responses to motions and memorandums in support of both.
In its motion to dismiss, Ballad argued that the plaintiffs did not have standing to bring the lawsuit in the first place, that they failed to allege a case or controversy and that Ballad has immunity under the federal antitrust laws.
In response, the plaintiffs filed a 34-page memorandum opposing the motion and likening Ballad to an “octopus” and a “bully of the seas.” The memorandum included more than 200 pages of new material.
In addition to granting Ballad’s motion to dismiss, Collier also denied the plaintiff’s latest motion to amend the complaint.
“(The) proposed amended complaint still fails to adequately allege ... standing. While plaintiffs do provide more specific facts regarding the alleged injury, the complaint lacks any factual allegations that the injury is particularized to the plaintiffs,” Collier wrote.