86 F. Supp. 3d 900
N.D. Ind.2015Background
- Dr. Ashok Kadambi (plaintiff) prescribed human growth hormone (HGH) for eight patient-plaintiffs; several mail-order pharmacies (defendants, including Accredo) refused to fill those prescriptions beginning in 2010.
- Defendants say refusals were based on concerns about potential federal criminal liability for improper distribution of HGH and on due-diligence research suggesting off-label/anti-aging associations.
- Amended Complaint asserts: Count I — breach of duty to honor prescription under Ind. Code § 25-26-13-16; Count II — defamation (common law) by Accredo; Count III — breach of a prior settlement agreement between Kadambi and Express Scripts.
- Defendants moved for judgment on the pleadings as to Count I and moved to dismiss Counts II and III under Indiana’s Anti-SLAPP Act and on qualified-privilege and privity grounds; the anti-SLAPP motion was treated as summary-judgment-type motion.
- Court held § 25-26-13-16 does not create a private right of action and granted judgment on the pleadings for Count I (patient-plaintiffs dismissed). Court denied anti-SLAPP dismissal because the statements were not shown to be speech on a public issue and found genuine fact disputes on qualified privilege, but dismissed Count III for lack of privity (without prejudice) and denied preliminary injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ind. Code § 25-26-13-16 creates a private right of action | Kadambi: statute implies a private cause of action and immunity language suggests civil liability exists | Defendants: statute is regulatory, benefits public, has administrative enforcement; no legislative intent to create private remedy | Court: No private right of action; Count I dismissed; patients dropped from suit |
| Whether defendants’ statements qualify for dismissal under Indiana Anti‑SLAPP Act | Kadambi: statements are not protected public‑issue speech | Defendants: statements concern pharmacy practice, a public interest, and were made in furtherance of free speech/petition rights | Court: Anti‑SLAPP defense fails — defendants did not show statements were on a matter of public interest or made in furtherance of free speech; motion denied on that ground |
| Whether alleged defamatory statements are protected by qualified privilege | Kadambi: defendants lacked good faith; investigation was inadequate and possibly blinded by prior litigation facts | Defendants: made statements in good faith based on investigation into prescribing practices and risk | Court: Genuine factual disputes about defendants’ good faith preclude summary judgment on privilege; claims survive for now |
| Whether non‑party defendants are liable for breach of the prior settlement agreement (privity) | Kadambi: settlement breach claim against defendants | Defendants: only parties to contract can be liable; Accredo was not a signatory | Court: Count III dismissed without prejudice for failure to state a claim (no privity) |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard for facial plausibility)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (Twombly plausibility standard)
- Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182 (Ind. 2011) (framework for inferring private causes of action and legislative‑intent analysis)
- Blanck v. Ind. Dep’t of Corr., 829 N.E.2d 505 (Ind. 2005) (distinguishing explicit and implied private rights of action)
- Roberts v. Sankey, 813 N.E.2d 1195 (Ind. Ct. App. 2004) (similar statutory placement in regulatory scheme and finding no private right of action)