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Preview: LexisNexis® Mealey's™ Managed Care Liability Legal News

LexisNexis® Mealey's™ Managed Care Liability Legal News

Headline Managed Care Liability Legal News from LexisNexis®


High Court Denies Certiorari In Suit Over Involving Antitrust, ERISA Claims
WASHINGTON, D.C. - The U.S. Supreme Court on Feb. 23 declined to grant certiorari, which left standing an agreement reached in In re Managed Care Litigation that bars several physicians and physician groups from bringing claims against WellPoint Inc. in In re WellPoint, Inc. Out-of-Network "UCR" Rates Litigation under the Racketeer Influenced and Corrupt Organizations Act and the Sherman Act but not from bringing certain claims under the Employee Retirement Income Security Act (Medical Association of Georgia, et al. v. Wellpoint Inc., No. 14-554, U.S. Sup.; See 7/9/14, Page 20).

Federal Judge Declines To Dismiss Antitrust Claims In Surgery Center Dispute
DENVER - A Colorado federal judge on Feb. 20 declined to dismiss antitrust claims in a suit alleging that health insurers conspired with hospitals to drive multiple ambulatory surgical centers out of business (Arapahoe Surgery Center, et al. v. CIGNA Healthcare Inc., et al., No. 13-3422, D. Colo.; 2015 U.S. Dist. LEXIS 20488).

Maine Federal Judge: Federal Law Preempts Part Of State's Prescription Drug Act
BANGOR, Maine - In granting the plaintiffs' motion for judgment on the pleadings, a Maine federal judge on Feb. 23 held that the federal Food, Drug and Cosmetics Act (FDCA) preempts certain amendments to the Maine Pharmacy Act (MPA) (Charles Ouellette, et al. v. Janet Mills, et al., No. 13-347, D. Maine; 2015 U.S. Dist. LEXIS 21137; See 8/6/14, Page 10).

Colorado Federal Judge Declines To Dismiss Health Care Breach Of Contract Suit
DENVER - A federal judge in Colorado on Feb. 25 declined to dismiss a suit in which the plaintiff accused his health insurance company of breach of contract for allegedly wrongfully informing him that the effective date of his coverage was later than it really was, causing the plaintiff to receive treatment for pancreatic cancer later than necessary (Kent Wilson v. Humana Health Plan Inc., No. 14-3259, D. Colo.; 2015 U.S. Dist. LEXIS 22672).

Louisiana Appeals Court Affirms Class Action Status In Breach Of Contract Suit
LAKE CHARLES, La. - A Louisiana appeals court on Feb. 11 affirmed that a trial court properly granted class action status in a case in which a doctor is accusing a preferred provider organization of breaching its statutory duties for failing to properly notify health care providers of discounts applied to medical bills (Kerry Thibodeaux, M.D. v. American Lifecare Inc., No. CA 14-931, La. App., 3rd Cir.; 2015 La. App. LEXIS 258).

New York Federal Judge Leaves Breach Claim In Health Care Billing Dispute
BROOKLYN, N.Y. - A New York federal judge on Feb. 4 declined to dismiss a breach of contract claim but did dismiss claims for negligence and breach of fiduciary duty in a dispute between a home health care company and its billing management company over the preparation and submission of claims (Excellent Home Care Services v. FGA Inc., No. 13-5390, E.D. N.Y.; 2015 U.S. Dist. LEXIS 13351).

California Federal Judge: Fraud Claim Continues In Reimbursement Case
LOS ANGELES - A California federal judge on Feb. 9 allowed a fraud claim to continue in a health care reimbursement suit, but dismissed three other claims (Mountain View Surgical Center v. CIGNA Health Corp., No. 13-8083, C.D. Calif.; 2015 U.S. Dist. LEXIS 15320).

Divided Illinois Appeals Court Reverses Class Action Status In Subrogation Suit
CHICAGO - A divided Illinois appeals court on Feb. 27 reversed and vacated the judgment of a trial court granting the plaintiff's motion for summary judgment and class certification in a health care subrogation dispute, saying the plaintiff had no right to rely on the common fund doctrine to support her claims (Nelli Stefanski v. The City of Chicago, No. 1-13-2844, Ill. App., 1st Dist. 6th Div.; 2015 Ill. App. LEXIS 133).

Judge Denies Defendants' Motion To Dismiss Insurers' Fraudulent Billing Lawsuit
MINNEAPOLIS - A federal judge in Minnesota on Feb. 13 denied a motion filed by a number of chiropractic centers and their owners, seeking dismissal of a lawsuit brought by numerous insurance companies claiming that the defendants submitted fraudulent bills under Minnesota's No-Fault Automobile Insurance Act, finding that the insurers sufficiently pleaded claims under the Racketeer Influenced and Corrupt Organizations Act and Minnesota's Corporate Practice of Medicine Doctrine (CPMD) (Liberty Mutual Fire Insurance Company, et al. v. Acute Care Chiropractic Clinic P.A., et al., No. 14-cv-2651, D. Minn.; 2015 U.S. Dist. LEXIS 17933).

High Court Denies Certiorari In Medicare Reimbursement Dispute
WASHINGTON, D.C. - The U.S. Supreme Court on Feb. 23 denied certiorari, leaving stand a Third Circuit U.S. Court of Appeals decision holding that the Medicare as a Secondary Payer Act (MSP Act) authorizes the government to seek reimbursement from a settlement a plaintiff receives from a tortfeasor because the funds came from a "primary plan" and that the plaintiff cannot invoke a New Jersey state law to avoid her reimbursement obligations (Cecelia A. Taransky v. Secretary of the U.S. Department of Health and Human Services, et al., No. 14-758, U.S. Sup.; See 8/6/14, Page 17).

Dispute Over Termination Of Medicare Coverage Remanded To Appeals Council
NEW YORK - A New York federal magistrate judge on Feb. 11 remanded to the Medicare Appeals Council (MAC) a dispute over the termination of Medicare coverage for the plaintiff's home-health services, saying the MAC applied the wrong regulations in reviewing an administrative law judge's decision (Sonia Berman v. Kathleen Sebelius, No. 13-4513, S.D. N.Y.; 2015 U.S. Dist. LEXIS 16723).

Kentucky Appeals Court: Insurer Breached Contract In Terminating Agreement
STANTON, Ky. - In an unpublished opinion, the Kentucky Court of Appeals on Feb. 6 affirmed that a managed care company that had contracted with the Commonwealth of Kentucky breached its contract to provide Medicaid services to state residents by terminating the contract early (Kentucky Spirit Health Plan Inc. v. Commonwealth of Kentucky, et al., Nos. 2014-CA-1050-MR, 2013-CA-1201-MR, Ky. App.; 2015 Ky. App. Unpub. LEXIS 85).

Washington Federal Judge: Supplier Not Entitled To Medicare Reimbursement
TACOMA, Wash. - Upon remand by the Ninth Circuit U.S. Court of Appeals, a Washington federal judge on Feb. 13 determined that the supplier of a piece of durable medical equipment used to treat osteoarthritis of the knee was not entitled to the benefits of any of Medicare's "limited liability" provisions (International Rehabilitative Sciences Inc. v. Sylvia M. Burwell, No. 08-5442, W.D. Wash.; 2015 U.S. Dist. LEXIS 18122; See 8/15/12, Page 21).

New Jersey Federal Judge Dismisses Health Care Reimbursement Suit
NEWARK, N.J. - A federal judge in New Jersey on Feb. 27 dismissed a health care reimbursement suit, saying that the plaintiff failed to follow administrative procedures for the Medicaid-related claims and that federal law preempted the common-law claims related to the Medicare-based claims (MHS LLC, D/B/A Meadowlands Hospital Medical Center v. Healthfirst Inc., et al., No. 13-6036, D. N.J.; 2015 U.S. Dist. LEXIS 23699).

Indiana Federal Judge Grants Plaintiff Summary Judgment In Medicaid Dispute
FORT WAYNE, Ind. - An Indiana federal judge on March 2 granted summary judgment in favor of a nursing facility in its suit against another nursing facility for breach of contract for the defendant's failure to pay for the transfer of Medicaid certification rights that the defendant had sought so it could increase the number of comprehensive care beds it could obtain reimbursement for by Medicaid (Lutheran Homes Inc. v. Lock Realty Corporation IX, No. 14-102, N.D. Ind.; 2015 U.S. Dist. LEXIS 24588).

Ambulance Company Manager Sentenced To 78 Months Over Fraudulent Billing Scheme
LOS ANGELES - The general manager of a California ambulance company was sentenced to 78 months in prison and ordered to pay $1.3 million in restitution by a federal judge in California on Feb. 9 for his role in a $5.5 million scheme to defraud Medicare (United States of America v. Wesley H. Kingsbury, 12-cr-903, C.D. Calif.).

New York Nursing Chain Pays $3.5 Million To Resolve Inflated Medicare Claims
BOSTON - A New York operator of skilled nursing facilities has entered into an agreement with the United States to pay $3.5 million to resolve allegations concerning inflated Medicare claims for rehabilitation therapy, according to a March 2 news release issued by the U.S. Attorney Carmen M. Ortiz for the District of Massachusetts.

Class Action Lawsuit Accuses Anthem Of Failing To Secure Private Data
LOS ANGELES - A California resident on Feb. 9 filed a class action lawsuit in federal court accusing Anthem Inc. of violating, among other things, the state's unfair competition law (UCL) in failing to safeguard personal information contained on the defendant's information technology (IT) systems after a massive breach of the company's systems (John Doe v. Anthem Inc., et al., No. 15-934, C.D. Calif.).

Class Action Lawsuit Accuses Insurer Of Failing To Secure Health Data
SAN FRANCISCO - A California man who has health insurance issued through Anthem Inc. on Feb. 10 filed a class action lawsuit against the insurer in federal court, alleging that the defendant's failure to properly secure its data led to a massive breach that has the potential to financially cripple members covered by Anthem health plans (Fazi Zand v. Anthem Inc., et al., No. 15-638, N.D. Calif.).

Plaintiffs Seek Review Of Remand Decision In Unfair Trade Practices Suit
WASHINGTON, D.C. - Plaintiffs filed a petition for writ of certiorari on Jan. 15, asking the U.S. Supreme Court to resolve a split among the circuit courts over the plaintiff's burden in seeking remand under the Class Action Fairness Act's (CAFA) "local controversy" and "home state" exceptions and to reverse the denial of remand in their proposed class action health insurance unfair trade practices suit (Bob Myrick, et al. v. WellPoint Inc., et al., No. 14-859, U.S. Sup.; See 9/17/14, Page 12).

Objectors Ask 3rd Circuit To Toss Reimbursement Class Settlement
NEW YORK - Objectors to a class action settlement over wrongful reimbursements for out-of-network health care services filed a brief on Jan. 5, asking the Third Circuit U.S. Court of Appeals to reverse approval of the settlement (Cathleen McDonough, et al. v. Horizon Blue Cross Blue Shield of New Jersey, No. 14-3558, 2nd Cir.; See 7/23/14, Page 8).

Federal Judge Dismisses 1 Claim From Health Care Reimbursement Suit
TAMPA, Fla. - A Florida federal judge on Jan. 12 partially dismissed a complaint alleging that a health insurance company wrongfully declined to reimburse two health care providers for services, dismissing a fraud claim and granting the plaintiff leave to amend the complaint to assert claims under the Employee Retirement Income Security Act, but otherwise denied the motion (Tran Chiropractic Wellness Center Inc., et al. v. Aetna Inc., et al., No. 14-47, M.D. Fla.; 2015 U.S. Dist. LEXIS 3124).

Missouri Federal Judge Denies Preliminary Injunction In Provider Termination Suit
ST. LOUIS - A Missouri federal judge on Jan. 20 denied a request by a specialty pharmacy for a temporary restraining order and preliminary injunction to halt a pharmacy benefit management company from terminating its provider network, saying that the plaintiff failed to establish that it was likely to suffer irreparable harm in the absence of injunctive relief (Sorkin's Rx v. Express Scripts, et al., No. 15-114, E.D. Mo.; 2015 U.S. Dist. LEXIS 6002).

2nd Circuit Reverses Dismissal Of Due Process Claim In Medicare Dispute
NEW YORK - The Second Circuit U.S. Court of Appeals on Jan. 22 reversed the dismissal of a due process claim in a class action Medicare payment dispute, saying the lower court erred in concluding that the plaintiffs lacked a property interest in being treated as "inpatients." The court affirmed the dismissal of a claim brought under the Medicare Act (Lee Barrows, et al. v. Sylvia Matthews Burwell, secretary of Health and Human Services, No. 13-4179, 2nd Cir.; 2015 U.S. App. LEXIS 986).

Florida Federal Judge Vacates Jury Verdict In Medicare False Claims Case
OCALA, Fla. - A Florida federal judge on Jan. 28 vacated a jury verdict in favor of the plaintiff in a Medicare false claims case, saying that the plaintiff failed to present sufficient evidence to the jury that defendant's alleged violation of Florida's licensing laws with respect to the diagnostic procedures performed was a condition of payment (United States of America and State of Florida, ex rel. Charles Ortolano v. Amin Radiology, No. 10-583, M.D. Fla.; 2015 U.S. Dist. LEXIS 9724).

Indiana Federal Judge Declines To Dismiss Medicare False Claims Case
INDIANAPOLIS - An Indianapolis federal judge on Jan. 9 declined to dismiss a qui tam action alleging that a pharmacy chain violated the False Claims Act (FCA) by misrepresenting its usual and customary drug prices on standardized forms and overcharged Medicare Part D and Medicaid programs in Indiana and Illinois for generic drugs sold at retail (Jane Doe v. Houchens Industries Inc., No. 13-196, S.D. Ind.; 2015 U.S. Dist. LEXIS 2403).

Medicare Suit Dismissed For Failure To Exhaust Administrative Remedies
AKRON, Ohio - An Ohio federal judge on Jan. 26 dismissed a Medicare reimbursement dispute, finding that the plaintiffs failed to exhaust administrative remedies as required under the Medicare Act (Ohio State Chiropractic Association, et al. v. Humana Health Plan Inc., No. 14-2313, N.D. Ohio; 2015 U.S. Dist. LEXIS 8764).

Tennessee Federal Judge Dismisses Medicare False Claims Act Case
NASHVILLE, Tenn. - A Tennessee federal judge on Jan. 23 dismissed a Medicare False Claims Act case, saying the plaintiff failed to plead the claims with the specificity required (Kathleen McFeeters v. Northwest Hospital, et al., No. 13-467, M.D. Tenn.; 2015 U.S. Dist. LEXIS 8523).

Pharmacy Employee Sentenced To 13 Months For Scheme To Defraud Benefits Programs
BALTIMORE - A pharmacy employee was sentenced by a federal judge in Maryland on Jan. 15 to 13 months in prison and ordered to pay $102,066.25 in restitution for his role in a scheme to defraud Medicare, Medicaid and the Federal Employees Health Benefits Program by submitting false prescriptions for refills, the U.S. Attorney's Office for the District of Maryland announced (United States of America v. Jigar Patel, No. 13-cr-00374, D. Md.).

Michigan Doctor Sentenced To 15 Months For Role In Health Care Fraud
DETROIT - A doctor was sentenced to 15 months in prison and ordered to pay $1.3 million in restitution by a federal judge in Michigan on Jan. 14 for her role in a $2.1 million home health care fraud scheme, the U.S. Department of Justice announced (United States of America v. Paula Williamson, No. 13-cr-20347, E.D. Mich.).

California Appeals Court Reverses Dismissal Of Uninsured Patient's UCL Claim
LOS ANGELES - A California appeals court on Dec. 15 reversed the dismissal of a class action complaint accusing a hospital of charging more for services provided to uninsured individuals, saying the plaintiff did have standing to assert his claims, including one alleging that the defendant violated the state's unfair competition law (UCL) (Tony Sarun v. Dignity Health, No. B251767, Calif. App., 2nd Dist., Div. 7; 2014 Cal. App. LEXIS 1192).

1st Circuit Approves Class Certification In Nexium Pay-For-Delay Lawsuit
BOSTON - The presence of a few uninjured members in a class does not prevent certification, the First Circuit U.S. Court of Appeals ruled Jan. 21, affirming the certification of the class of indirect purchasers of Nexium in a pay-for-delay lawsuit over the heartburn drug (In re Nexium Antitrust Litigation, Astrazeneca AB, et al. v. United Food and Commercial Workers Unions and Employers Midwest Health Benefits Fund, et al., Nos. 14-1521 & 14-1522, 1st Cir.; 2015 U.S. App. LEXIS 968).

Health Care Provider Sues In Texas Federal Court For Wrongful Reimbursement
HOUSTON - A health care provider on Feb. 2 sued an insurance company in a Texas federal court for allegedly failing to properly reimburse the provider for services provided to the defendant's insureds (Grand Parkway Surgery Center v. Health Care Service Corp., et al., No. 15-297, S.D. Texas).

Physical Injury Not Needed For Medical-Monitoring Claim, Nevada High Court Rules
CARSON CITY, Nev. - Members of a health maintenance organization who seek medical monitoring for potential exposure to blood-borne diseases may maintain negligence claims against the HMO, the Nevada Supreme Court ruled Dec. 31, finding in a case of first impression under Nevada law that "a plaintiff may state a cause of action for negligence with medical monitoring as the remedy without asserting that he or she has suffered a present physical injury" (Susan Sadler, et al. v. PacifiCare of Nevada Inc., No. 62111, Nev. Sup.; 2014 Nev. LEXIS 133).

Tennessee Supreme Court: Payment By Health Insurer Extinguishes Hospital's Liens
JACKSON, Tenn. - The Tennessee Supreme Court on Dec. 19 affirmed that neither the Tennessee Hospital Lien Act (HLA) nor a hospital's contracts with patients' insurance companies authorize a hospital to maintain a lien after a patient's insurance company has paid a bill in full at rates agreed upon by the hospital and insurer (Diane West, et al. v. Shelby County Healthcare Corp., No. W2012-44-SC-R11-CV, Tenn. Sup.; 2014 Tenn. LEXIS 1033).

Louisiana Federal Judge Says Medicare Insurer Has Private Right Of Action
NEW ORLEANS - A federal judge in Louisiana on Dec. 16 dismissed a plaintiff's claim seeking a declaration that her Medicare Advantage health care plan was not entitled to subrogation and partially granted the defendant's motion for summary judgment on its counterclaim, finding that the insurer has a private right of action under the Medicare Secondary Payer Statute to seek reimbursement of funds it paid for the plaintiff's medical care following an automobile accident caused by a third party (Aimie Collins v. Wellcare Healthcare Plans Inc., No. 13-6759, E.D. La.; 2014 U.S. Dist. LEXIS 174420).

Connecticut Federal Judge Dismisses Medicare Case; Plaintiffs Have No Standing
NEW HAVEN, Conn. - A federal judge in Connecticut on Dec. 8 dismissed a class action lawsuit over the denial of Medicare benefits, holding that Medicare patients do not have standing to sue if Medicare denies a health care claim, but then Medicaid ends up paying the claim (Carolyn Hull v. Sylvia Burwell, No. 14-801, D. Conn.; 2014 U.S. Dist. LEXIS 169538).

Preliminary Injunction Halts Recoupment Of Medicaid Funds To Pediatric Hospitals
WASHINGTON, D.C. - A federal judge in the District of Columbia on Dec. 29 granted a preliminary injunction to enjoin the U.S. Department of Health and Human Services (HHS) from recouping any federal disproportionate-share hospital (DSH) funds provided to two pediatric teaching and research hospitals based on a state's noncompliance with a new Medicaid funding rule (Texas Children's Hospital, et al. v. Sylvia Burwell, secretary, United States Department of Health and Human Services, et al., No. 14-2060, D. D.C.; 2014 U.S. Dist. LEXIS 177644).

Claims Over Fraudulent Billing Of Medicare Claims For Hospice Benefits Continue
BIRMINGHAM, Ala. - A federal judge in Alabama on Dec. 4 declined to dismiss False Claims Act (FCA) claims brought against the operator of 60 hospice facilities for allegedly submitting fraudulent claims to Medicare for people who were not eligible to receive hospice benefits, saying genuine issues of material fact exist (United States of America v. AseraCare Inc., et al., No. 12-245, N.D. Ala.; 2014 U.S. Dist. LEXIS 167970).

7th Circuit Affirms Dismissal Of Medicare False Billing Claims
CHICAGO - A panel of the Seventh Circuit U.S. Court of Appeals on Dec. 2 affirmed the dismissal of a plaintiff's False Claims Act (FCA) claims in a Medicare and Medicaid fraudulent billing suit but reversed the lower court's decision reversing a retaliation claim (United States, et al., ex rel. Yury Grenadyor v. Ukrainian Village Pharmacy Inc., et al., No. 13-3383, 7th Cir.; U.S. App. LEXIS 22734; See 11/20/13, Page 39).

Florida Federal Judge Dismisses Medicare Suit Over Denial Of Payment
MIAMI - A Florida federal judge on Dec. 10 dismissed with prejudice a case accusing a Medicare Advantage organization of improperly declining to pay for benefits, saying the plaintiff was required to exhaust administrative remedies before bringing suit (Associates Rehabilitation Recovery Inc. v. Humana Medical Plan Inc., No. 14-21677, S.D. Fla.; 2014 U.S. Dist. LEXIS 179005; 2014 U.S. Dist. LEXIS 179005).

Decision Reverses Injunction Enjoining Termination Of Provider Agreement
BATON ROUGE, La. - In a Dec. 29 unpublished opinion, a Louisiana appeals court reversed a summary judgment opinion granting a permanent injunction to halt the termination of a health care clinic's Medicaid provider agreement, saying the plaintiff failed to meet its required prima facie showing of irreparable harm (Midtown Medical v. The Department of Health & Hospitals, et al., Nos. 2014 CA 0530 c/w 2014 CA 0531 c/w 2014 CA 0532, La. App., 1st Cir.; 2014 La. App. Unpub. LEXIS 792).

Avandia MDL Judge Denies Class For Medicare Advantage Organizations
PHILADELPHIA - A federal judge overseeing the Avandia multidistrict litigation on Nov. 24 denied certifying a class of Medicare Advantage Organizations (MAOs) with claims against GlaxoSmithKline LLC (GSK) for personal injuries allegedly caused by its diabetes drug Avandia (In Re: Avandia Marketing, Sales Practices and Products Liability Litigation, MDL Docket No. 1871, No. 07-md-1871, Humana Medical Plan, Inc., et al. v. GlaxoSmithKline, LLC, et al., No. 10-6733, E.D. Pa.; 2014 U.S. Dist. LEXIS 164510).

3rd Circuit Affirms Sentence Given To Doctor Who Violated Medicare, Medicaid
PHILADELPHIA - A panel of the Third Circuit U.S. Court of Appeals on Dec. 31 affirmed the sentence given to a radiologist who pleaded guilty to illegally paying physicians to refer their patients to his facility so he could obtain more reimbursement from Medicare and Medicaid (United States of America v. Ashokkumar Babaria, No. 14-2694, 3rd Cir.; 2014 U.S. App. LEXIS 24656).

Petition Denied; Law Prohibiting Use Of Abortion- Inducing Drugs Enjoined
WASHINGTON, D.C. - In denying a petition for writ of certiorari, the U.S. Supreme Court on Dec. 15 left standing a Ninth Circuit U.S. Court of Appeals decision reversing a lower court's decision denying Planned Parenthood of Arizona's motion for a preliminary injunction and remanding the case with instructions for the district court to issue the injunction in a case seeking to enjoin enforcement of an Arizona law prohibiting the use of certain drugs to induce abortions (Planned Parenthood of Arizona Inc., et al. v. William Humble, director of the Arizona Department of Health Services, No. 14-284, U.S. Sup.; See 6/18/14, Page 31).

8th Circuit Affirms Employer Summary Judgment In COBRA Dispute
ST. LOUIS - A panel of the Eighth Circuit U.S. Court of Appeals on Dec. 15 affirmed a lower court decision granting summary judgment in favor of an employer in a violation of a Consolidated Omnibus Budget Reconciliation Act (COBRA) dispute, agreeing that the benefit of the plaintiffs receiving free health care for an extended period outweighed their claimed damages for lack of COBRA notification (Bonnie Cole v. Trinity Health Corp., No. 14-1408, 8th Cir.; 2014 U.S. App. LEXIS 23483; See 2/5/14, Page 24).

Virginia Federal Judge Holds Notification Of COBRA Benefits Proper
DANVILLE, Va. - A federal judge in Virginia on Dec. 11 granted summary judgment in favor of the City of Danville, Va., in a dispute over the alleged violation of Consolidated Omnibus Budget Reconciliation Act (COBRA) benefits, holding that the city complied with COBRA by informing the plaintiff of his right to elect continuation of health insurance benefits under COBRA once his time under the Family Medical Leave Act (FMLA) was up and the plaintiff was unable to return to work (Barry S. Neal v. City of Danville, Virginia, No. 14-2, W.D. Va.; 2014 U.S. Dist. LEXIS 171264).