Jerome WANT, Plaintiff, v. EXPRESS SCRIPTS, INC., Defendant.
Civil Action No. 11-1699(CKK)
United States District Court, District of Columbia.
May 31, 2012.
COLLEEN KOLLAR-KOTELLY, District Judge.
As noted above, the parties agree that the APA and APAPO are both exempt from the coverage of the CPPA. Defs.’ MTD at 25-26; Plfs.’ Opp. at 25. The Court concurs in that view. Plaintiffs’ claims are clearly based on “membership in such organization [and] membership services,” not “the purchase or sale of consumers goods or services in the ordinary course of business.” Hence, because the CPPA applies to plaintiffs’ claims, those claims must be dismissed.
C. Jury Trial
Defendants have asked the Court to strike plaintiffs’ request for a jury trial because plaintiffs raise only equitable claims. Defs.’ MTD at 31-33. The Court has now dismissed plaintiffs’ claims, so this issue is moot. If plaintiffs’ reformulated claims raise the issue anew, the Court will address the issue at the appropriate time.
IV. Conclusion
For the reasons explained above, [16] defendants’ motion to dismiss will be granted. A separate Order accompanies this opinion.
John D. McGavin, Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C., Fairfax, VA, for Defendant.
MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY, District Judge.
In this civil action filed pro se, plaintiff, a resident of Hagerstown, Maryland, sues defendant Express Scripts, Inc., a District of Columbia business, for $2 million, “plus $1B in punitive damages.” Compl. at 2.
BACKGROUND
Defendant is “a pharmacy benefit manager [that] does not dispense medication,” but “contracts with various retail pharmacies [that do] dispense medication.” Amended Mem. in Supp. of Mot. to Dismiss [Dkt. # 11] at 6, n. 2. The gist of plaintiff‘s 10-count complaint is that defendant “has repeatedly and knowingly failed to properly process orders [] for [his] medication ...” and, as a result, his “health and well being” are “threaten[ed].” Compl. at 1. Plaintiff lists his causes of action as follows: Malpractice (Count One), Negligence (Count Two), Lack of Good Faith (Count 3), Failure to Perform (Count 4), Misrepresentation & Fraud (Count 5), Malfeasance (Count 6), Breach of Contract (Count 7), Violation of the Health Information Privacy Administration Act (HIPPA)1 (Count 8), Violation of Federal anti-discrimination laws (Count 9), and Wreckless [sic] Endangerment (Count 10). Id. at 1-2.
The complaint‘s factual allegations are bare, but plaintiff has added facts in three separate responses to the pending motion to dismiss. In his first response, plaintiff alleges “at least two occasions where the defendant failed to accept or process the necessary request for medications.” Response to Def.‘s Mot. to Dismiss [Dkt. # 14] at 1. On July 26, 2011, defendant allegedly failed to process “a refill form and script for medications” sent from plaintiff‘s doctor‘s office, and on November 21, 2011, plaintiff allegedly called defendant “no less than fourteen (14) times to request that the defendant fax his physician the necessary refill forms with fax number for returning the forms to obtain medications.” Id. at 1-2. Plaintiff “was able to connect with a representative twice [who] said they would fax the forms ‘within five minutes,‘” but his “physician‘s office has confirmed that it [had] not received any forms” as of November 22, 2011. Id. at 2.
In an “addendum” to the foregoing response, plaintiff alleges that “[o]n or about November 8,” his doctor “sent properly executed renewal forms to [defendant] to renew the medication Lyrica [that] is badly required by the plaintiff for the treatment of neuropathic pain.” Addendum to Previous Response to Def.‘s Mot. to Dismiss (“Pl.‘s Addendum“) [Dkt. # 15] at 1. But after plaintiff and his doctor‘s office called defendant on December 14, 2011, a total of 12 times, defendant could not locate the order. Id. Allegedly, “[p]laintiff made an additional seven (7) calls on December 15 to speak with a supervisor” but was able to speak only with various customer service representatives. Id. Eventually, plaintiff spoke with a supervisor who denied plaintiff‘s request to call his doctor‘s office and “demanded that the physician‘s office call her.” Id. at 2. Allegedly, plaintiff‘s doctor‘s office attempted to reach the supervisor but to no avail. Plaintiff alleges that “[l]ower level employees [of defendant] noted to both the plaintiff and the physician‘s office that plaintiff‘s registration had expired on Dec. 9, 2011,” and that defendant sent “other medications to plaintiff‘s cardiologist” on December 9, 2011, but not Lyrica. Id. Mean
In his third response to the motion to dismiss filed on May 21, 2012, plaintiff attached a letter dated January 5, 2012, informing him that he has “been accepted into the Pfizer Connection to Care program” and that his prescription for Lyrica had been shipped to his home. Am. Compl. & Response to Am. Mem. of Defendant (“Am. Resp.“) [Dkt. # 18].2 Plaintiff asserts that the letter is a contract between Pfizer Pharmaceuticals and himself “for the medications” that also binds defendant. Id. at 2.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides that a party may challenge the sufficiency of a complaint on the grounds it “fail[s] to state a claim upon which relief can be granted.”
DISCUSSION
Defendant argues correctly that as to Counts 1, 2, 5, 7, and 9 of the complaint, plaintiff has not stated sufficient facts to establish his respective claims of malpractice, negligence, fraud, breach of contract, and discrimination. See Def.‘s Mem. at 6-9, 11-15;
As for the discrimination claim, plaintiff has neither identified the “federal antidiscrimination laws” defendant‘s female employees violated when they allegedly “acted in a discriminatory manner against the Plaintiff based on gender and age,” Compl. at 2, nor stated any facts that would support a claim under either Title VII of the Civil Rights Act of 1964,
As for the predominant claims of malpractice and negligence, plaintiff has not stated facts establishing the requisite relationship upon which such claims are predicated. Under Maryland law, “[t]o state a [negligence] claim, the plaintiff must allege facts demonstrating (1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant‘s breach of the duty.” Horridge v. St. Mary‘s County Dep‘t of Soc. Services, 382 Md. 170, 854 A.2d 1232, 1238 (2004) (citations and internal quotation marks omitted). A similar duty is required to prove a malpractice claim. See State v. Copes, 175 Md.App. 351, 927 A.2d 426, 437 (Md.2007) (“In the context of medical malpractice, the elements translate into a duty of care owed by the health care provider to the patient; a breach of the applicable standard of care; proximate causation of a medical injury; and damages.“) (citations omitted). A legal duty is determined by “the nature of the harm likely to result from a failure to exercise due care, and the relationship that exists between the parties.” Horridge, 854 A.2d at 1239.
Plaintiff‘s alleged facts fail to show any special relationship between defendant and himself. Furthermore, the alleged facts fail to show that plaintiff sustained any injury, actual or otherwise, from defendant‘s alleged misconduct. Plaintiff‘s representation, stated for the first time in his response to the motion to dismiss, that he “will show at a later time where the defendant‘s negligence caused him to have to undergo heart surgery” strains credulity since he admits that he “badly required” Lyrica “for the treatment of neuropathic pain,” Pl.‘s Addendum at 1, not heart disease. See http://lyrica.com (“LYRICA is indicated to treat fibromyalgia, diabetic nerve pain, and pain after shingles.“). Besides, plaintiff‘s claims and purported injury are the type of “naked assertion[s]” that
Finally, defendant argues correctly that Count 3 labeled “Lack of Good Faith“, Count 4 labeled “Failure to Perform“, Count 6 labeled “Malfeasance“, and Count 10 labeled “Wreckless Endangerment” are not viable causes of action, see Def.‘s Am. Mem. at 9-11, 13, 16, and that Count 8 fails because the HIPPA does not authorize an individual to bring a private cause of action for violations of the Act. Id. at 14; see
CONCLUSION
For the foregoing reasons, the Court will grant defendant‘s motion to dismiss this action under