Grey v. Walgreen Co., 96846.

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: MELODY J. STEWART
• Citation: 2011 -Ohio- 6167,967 N.E.2d 1249,197 Ohio App.3d 418
• Parties: GREY, Appellant, v. WALGREEN COMPANY, Appellee.
• Docket Number: No. 96846.,96846.
• Decision Date: 01 December 2011

197 Ohio App.3d 418
967 N.E.2d 1249
2011 -Ohio- 6167

GREY, Appellant,
v.
WALGREEN COMPANY, Appellee.

No. 96846.

Court of Appeals of Ohio,
Eighth District, Cuyahoga County.

Decided Dec. 1, 2011.

[967 N.E.2d 1251]

Seaman Garson, L.L.C., James A. DeRoche, Stuart I. Garson, David L. Meyerson, and David H. Krause, Cleveland; and Dworken & Bernstein Co., L.P.A., Patrick J. Perotti, and Nicole T. Fiorelli, Painesville, for appellant.

Ulmer & Berne L.L.P., Marvin L. Karp, Michael N. Ungar, David D. Yeagley, and Ashley A. Weaver, Cleveland, for appellee.

MELODY J. STEWART, Presiding Judge.

[Ohio App.3d 420]{¶ 1} Plaintiff-appellant, Evelyn Grey, appeals from a Civ.R. 12(B)(6) dismissal of her class-action complaint for damages against defendant-appellee, Walgreen Company. Grey alleged that Walgreen's pharmacy engaged in a practice of charging workers' compensation claimants for prescription drugs in amounts that exceeded the express terms and conditions of regulations and guidelines established by the Ohio Bureau of Workers' Compensation. She alleged that Walgreen's practice violated R.C. 4121.44(K), which states: “No health care provider, whether certified or not, shall charge, assess, or otherwise attempt to collect from an employee, employer, a managed care organization, or the bureau any amount for covered services or supplies that is in excess of the allowed amount paid by a managed care organization, the bureau, or a qualified health plan.” Walgreen, citing Patterson v. Rite Aid Corp. Headquarters (N.D.Ohio E.D.2010), 752 F.Supp.2d 811, sought dismissal of the complaint on grounds that R.C. 4121.44(K) does not provide for a private cause of action. The court agreed, and relying on Patterson for the conclusion that Grey could not maintain a private action for any alleged overbilling by Walgreen, dismissed the entire complaint.

I

{¶ 2} Grey first argues that the court erred as a matter of law by finding that she had no private right of action under R.C. 4121.44(K).

A

{¶ 3} We employ a de novo standard of review for motions to dismiss filed pursuant to Civ.R. 12(B)(6), Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, 551 N.E.2d 981, and accept all factual allegations of the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Byrd v. Faber (1991), 57 Ohio St.3d 56, 565 N.E.2d 584. A motion to dismiss for failure to state a claim upon which relief can be granted can be granted only when it appears beyond doubt from the complaint that the plaintiff can prove no set of facts entitling her to relief. LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323, 2007-Ohio-3608, 872 N.E.2d 254, ¶ 14.

{¶ 4} Grey's complaint alleged that the bureau has an outpatient pharmacy-benefit program that covers drugs used to treat conditions related to an injured worker's occupational injury or disease. Under this program, pharmacies are required to submit drug bills directly to the bureau's pharmacy-benefits manager for all claims, including bills for new claims that have not yet been allowed by the bureau. In situations

[967 N.E.2d 1252]

where a worker presents a prescription before a claim has been allowed (or even filed), a pharmacy may either (1) accept an assignment of [Ohio App.3d 421]the claim, fill the prescription, and seek reimbursement from the bureau at a later date or (2) fill the prescription and charge the injured worker the scheduled amount established by the bureau, at which point the worker will be reimbursed by the bureau if the claim is later allowed.

{¶ 5} Grey alleged that she suffered a workplace injury and received medical treatment although she had yet to file a claim for workers' compensation. Her treating physician gave her a prescription for medicine, which she took to a Walgreen pharmacy. Walgreen charged her the full retail price for the prescription. Grey alleged that the bureau later allowed her claim for a workplace injury and that the bureau reimbursed Grey only for the scheduled amount of her prescription—an amount that was less than that charged by Walgreen.

B

{¶ 6} When determining whether, in the absence of explicit language, a statute grants a private right of action, Ohio courts have used the test set forth in Cort v. Ash (1975), 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26:

{¶ 7} “ ‘First, is the plaintiff “one of the class for whose especial benefit the statute was enacted,” * * *—that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? * * * Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?’ ” Strack v. Westfield Cos. (1986), 33 Ohio App.3d 336, 337, 515 N.E.2d 1005, quoting Cort at 78, 95 S.Ct. 2080.

{¶ 8} There is ample authority for the proposition that the Cort test is no longer valid. The United States Supreme Court has gradually focused on the single factor of whether there was a legislative intent to grant a private right of action. See Stabile, The Role of Congressional Intent in Determining the Existence of Implied Private Rights of Action (1996), 71 Notre Dame L.R. 861, 868–869. For example, in Transamerica Mtge. Advisors, Inc. (TAMA) v. Lewis (1979), 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146, the Supreme Court stated that its analysis of whether a private right of action existed under the Investment Advisers Act of 1940, Title 15, Section 80b–1 et seq., U.S.Code, was “basically a matter of statutory construction.” Id. at 15, 100 S.Ct. 242, 62 L.Ed.2d 146. It found no evidence in the legislative history of the act to suggest any intent by Congress to create a private cause of action. Id. at 18, 100 S.Ct. 242, 62 L.Ed.2d 146. And in Touche Ross & Co. v. Redington (1979), 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82, the Supreme Court established that congressional intent is the exclusive factor used in the determination, declaring that the task of courts is “limited solely to determining whether Congress intended to create the private right of action.” Id. at 568, 99 S.Ct. 2479, 61 L.Ed.2d 82.

[Ohio App.3d 422]{¶ 9} Most recently, in Alexander v. Sandoval (2001), 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517, the Supreme Court appeared to put to rest any question concerning the continuing validity of the Cort factors by reaffirming its focus on legislative intent, stating that “[h]aving sworn off the habit of venturing beyond Congress's intent, we will not accept respondents' invitation to have one last drink.”

[967 N.E.2d 1253]

Id. at 287, 121 S.Ct. 1511, 149 L.Ed.2d 517. The Supreme Court elaborated:

{¶ 10} “Like...