Kevin is an partner in the Boston office of Morrison Mahoney. As a member of the firm’s Health Care Law and Appellate practice groups, Kevin brings over seven years of experience, including first, second, and co-chair jury and jury-waived trials and arbitrations. His practice is concentrated in the areas of consumer class actions/mass torts, regulatory compliance, drug and medical device liability, hospital and medical malpractice, long-term care liability, and other commercial and consumer healthcare-related litigation. He represents regional and national clients operating in the healthcare space that span over several aspects of health law.
In addition to his practice, Kevin is a member of the adjunct faculty at both Rutgers Law School and New England Law | Boston, where he teaches courses on advanced appellate brief writing and advocacy. He has also represented amici curiae on amicus briefs before the Massachusetts Supreme Judicial Court on issues of first impression in the Commonwealth of Massachusetts in both product liability and class action matters.
Regulatory Compliance and Government Investigations
Kevin has significant experience assisting both national and regionally based clients operating in the healthcare space navigate a wide variety of regulatory schema and post-incident investigations and civil enforcement and licensure proceedings by government agency regulators.
A substantial portion of this practice is devoted to helping healthcare providers avoid regulatory enforcement actions by incorporating compliant standard operating procedures, consumer contracts, commercial agreements, and policies into their operations. His experience in this field includes the following:
- Conducting preventative compliance reviews and regulatory advising, and drafting of consumer and commercial agreements and fee schedules, to maintain providers’ compliance with applicable state enabling statutes, consumer protection statutes, the Social Security Act, the Fair Debt Collection Practices Act and accompanying regulations (Regulation F), Consumer Financial Protection Bureau regulations on Electronic Fund Transfers (Regulation E), Title 42, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and other state and federal health and consumer regulatory schemes.
- Defending healthcare professionals in agency actions in government administrative proceedings.
- Representing clients during interface with consumers and agency investigators and facilitate compliance with incident investigations, requests for information, interviews, and requests for production of documents.
- Assisting providers with maintenance of registrations and/or licensure with state regulatory agencies pursuant to the requirements of enabling statutes that permit the establishment and operation of Assisted Living Residences (ALRs), Continuing Care Retirement Communities (CCRCs), as contracted service providers of organizations offering Programs of All-Inclusive Care for the Elderly (PACE).
- Enforcing protections available to healthcare providers falling under the auspices of the Centers for Medicare & Medicare Services’ Quality Assurance/ Performance Improvement (QAPI) Program regulations and the Affordable Care Act.
- Drafting and updating consumer and commercial arbitration agreements to maintain compliance with the Federal Arbitration Act, state arbitration statutes, and agency regulations applicable to consumer and patient arbitration agreements in the healthcare space.
Kevin has defended multiple state and federal collective actions by consumers against regional and national healthcare providers and is adept at identifying the viability of putative class claims on an ongoing basis, recognizing special issues related to the elements required for certification of putative classes, the assessment of individual damages, jurisdictional issues, and other facets of complex class litigation. This experience includes the following:
- Defended multiple national assisted living providers against allegations of illicit collection of upfront admission charges for preliminary administrative assessment and nursing examination.
- Defended charitable memory care provider against allegations of mishandling of residential deposits, successfully preventing court certification of putative class.
- Defeated class litigation of consumer claims alleging by putative class representative against operator of continuing care retirement communities under recent U.S. Supreme Court precedent disallowing class arbitration absent explicit contractual intent to permit arbitrations of claims on class-wide basis.
- Briefed arguments adopted by Massachusetts Supreme Judicial Court on behalf of amicus curiae against putative class claims by employees against home health aide agency in which SJC announced in unanimous decision that class counsel could not seek relief on behalf of absent class members because his relationship with them was too attenuated to vest in counsel an obligation or authority to act on behalf of the class.
Kevin has successfully litigated numerous civil appeals as a member of the firm’s appellate practice group, and brings his deep expertise in appellate practice, procedure, and brief writing to bear in every appeal he litigates.
- Defeated appeal and subsequent application for direct appellate review to Massachusetts Supreme Judicial Court (SJC) of Rule 12 dismissal of claims against regional healthcare provider by married patients alleging violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. §§ 1961-1968, Massachusetts Consumer Protection Act violations, civil conspiracy, defamation, intentional infliction of emotional distress, and state constitutional violations.
- Defeated appeal of Superior Court’s directed verdicts for nursing home’s parent company and managing agent lodged on theories of a joint venture and common control of nursing home’s care of individual patients. The Massachusetts Appeals Court affirmed the verdicts, agreeing with Kevin’s argument that evidence establishing merely that there was a corporate relationship between the nursing home and the defendants was insufficient alone to establish the existence of a joint venture.
- Defeated appeal of defense verdict reached in favor of Massachusetts nursing home that contested several evidentiary decisions by the trial court. The Massachusetts Appeals Court affirmed the jury’s defense verdict, agreeing with Kevin that the trial judge had properly (1) excluded portions of two of the patient’s experts’ testimonies, (2) redacted portions of a death certificate, and (3) declined to give jurors an instruction on the nursing home’s “consciousness of liability.”
- Briefed arguments adopted by the Massachusetts Supreme Judicial Court on behalf of the Massachusetts Defense Lawyers Association in class action appeal alleging violations of Massachusetts Wage Act, Minimum Fair Wage Law, and Overtime Law concerning interpretation of state rule of civil procedure governing maintenance of class actions.
- Briefed arguments on behalf of amicus curiae in product liability action pending before the SJC on issue of first impression under the Massachusetts Wrongful Death Statute, M.G.L. c. 229, § 2, testing whether the personal representative may bring an action under the statute within the three-year statute of limitation period even if the decedent had failed to bring a timely personal injury action based on the same injury.
Commercial Healthcare Litigation
Charitable and for-profit healthcare providers also rely on Kevin’s experience addressing commercial disputes with vendors, suppliers, agents, lessees, and other healthcare partners.
- Prosecuted claims on behalf of national assisted living provider against software-as-a-service (SaaS) provider for breaches of human resources and payroll software agreement following ransomware attack and data security breaches of vendor’s platforms.
- Defended charitable corporation operating rehabilitation center in commercial lease dispute with lessee operating a senior adult day care arising out of center’s exigent need for additional operating and patient-care space during COVID-19 pandemic.
- Defended national healthcare provider in overcharging dispute with vaccination administration vendor for services rendered to provider’s employees.
Hospital and Medical Malpractice
Hospitals, rehabilitation centers, nursing homes, physical therapy providers, and individual healthcare professionals also rely on Kevin’s deep experience in the law of medical malpractice.
- Secured summary judgment on wrongful death claims against nursing home administrator arising from Hoyer lift accident on theory that state and federal nursing home regulations imposed a duty upon administrator to individual patients.
Drugs and Medical Devices
Kevin also defends manufacturers, distributors, and wholesale retailers in consumer medical device and pharmaceutical product liability actions and has experience litigating the interplay between allegations of product defect and federal regulation of subject products by the U.S. Food and Drug Administration under the Medical Device Amendments of 1976 to the Federal Food, Drug, and Cosmetic Act.
He also has experience defending catastrophic losses involving allegations of improper pharmaceutical administration by healthcare providers.
Noteworthy Accomplishments, Honors & Awards