North Shore Pharmacy v. Breslin Associates, Civil Action No. 02-11760-NG.

• Decision Date: 15 May 2007
• Docket Number: Civil Action No. 02-11760-NG.
• Citation: 491 F.Supp.2d 111
• Parties: NORTH SHORE PHARMACY SERVICES, INC., et al., Plaintiffs, v. BRESLIN ASSOCIATES CONSULTING LLC, Defendant.
• Court: U.S. District Court — District of Massachusetts

491 F.Supp.2d 111

NORTH SHORE PHARMACY SERVICES, INC., et al., Plaintiffs, v. BRESLIN ASSOCIATES CONSULTING LLC, Defendant.

Civil Action No. 02-11760-NG.

United States District Court, D. Massachusetts.

May 15, 2007.

COPYRIGHT MATERIAL OMITTED

Martin E. Levin, Stern, Shapiro, Weissberg & Garin, Boston, MA, John E. Schreiber, James M. Smith, Dewey Ballantine, LLP, New York, NY, for Plaintiffs.

Orlee Goldfeld, Arthur Rene Hollyer, Butzel Long PC, New York, NY, Patrick J. Markey, O'Shea, Getz & Kosakowski, P.C., Springfield, MA, for Defendant.

ORDER

GERTNER, District Judge.

Order entered denying 107 Motion for Summary Judgment; adopting Report and Recommendations re 133 Omnicare Parties' Motion for Summary Judgment: After careful review of Omnicare's objections to Magistrate Judge Dein's Report, I nevertheless adopt the Report and its conclusions. As Magistrate Dein's Report suggests, this case is replete with material, contested issues of fact, regardless of the legal issue for which Omnicare seeks certification. Likewise, I agree with the Report that there is no basis for such certification on this record.

REPORT AND RECOMMENDATION ON THE OMNICARE PARTIES' MOTION FOR SUMMARY JUDGMENT

DEIN, United States Magistrate Judge.

I. INTRODUCTION

Plaintiffs North Shore Pharmacy Services, Inc. ("North Shore") and Value Pharmacy, Inc. ("Value") are institutional pharmacies that are wholly-owned subsidiaries of Omnicare, Inc. ("Omnicare"). In 2002, North Shore and Value initiated this action against Breslin Associates Consulting LLC ("BAC"), claiming that BAC had committed various torts in connection with an audit of their pricing and billing practices which BAC had performed for an association of long term care facilities. BAC asserted counterclaims alleging that the pharmacies were liable to it for certain tortious conduct in connection with the audit, and that the lawsuit against BAC had been brought for illegitimate purposes and constituted an abuse of process. BAC also added Omnicare as an additional counterclaim defendant.

On June 4, 2003, Curtis Breslin, the chief executive officer and principal employee of BAC, committed suicide. Thereafter, the counterclaims were supplemented to name as counterclaim plaintiffs Mr. Breslin and his spouse, Linda Breslin, individually, as executrix of her husband's estate and as guardian of the Breslins' minor daughter, Carly Breslin. The individual counterclaim plaintiffs also asserted claims against North Shore, Value and Omnicare (collectively, the "Omnicare Parties") that were premised upon the theory that the counterclaim defendants' allegedly tortious conduct substantially contributed to Mr. Breslin's suicide and the resulting harm to his family.

Presently before the court is the Omnicare Parties' Motion for Summary Judgment (Docket No. 107) by which the Omnicare Parties are seeking summary judgment on all of the counterclaims asserted against them,¹ The Omnicare Parties have also requested that in the event their motion is denied, the court certify to the Massachusetts Supreme Judicial Court ("SJC") the question whether a claim for wrongful death by suicide is recognized under Massachusetts law and, if so, the elements necessary to prove such a claim.

For the reasons detailed below, this court finds that there are genuine issues of material fact precluding summary judgment for the Omnicare Parties on any of the counterclaims. Therefore, this court recommends to the District Judge to whom this case is assigned that the Omnicare Parties' Motion for Summary Judgment (Docket No. 107) be DENIED. Moreover, since the factual record needs to be developed at trial, and the same evidence would be relevant regardless whether the claim for wrongful death by suicide remains in the case, this court recommends that the District Judge deny the Omnicare Parties' request for certification to the SJC.

II. STATEMENT OF FACTS²

The facts, viewed in the light most favorable to the counterclaim plaintiffs, are as follows:

The Parties

Omnicare is a corporation that is organized under the laws of Delaware and has a principal place of business in Covington, Kentucky. (Omnicare Ex. B ¶ 2). Omnicare is engaged, inter alia, in the institutional pharmacy business, and provides pharmaceutical supplies and services to nursing homes and other long term care facilities. (OF ¶ 1). Primarily through its wholly-owned subsidiaries, Omnicare serves over 746,000 residents in long-term care facilities in 45 states, making it the nation's largest provider of professional pharmacy services. (BF ¶ 1). North Shore and Value are Massachusetts-based institutional pharmacies and are wholly-owned subsidiaries of Omnicare. (OF ¶ 2).

BAC was a limited liability sole proprietorship that was organized under the laws of Connecticut and was run by Curtis S. Breslin from Mr. Breslin's home in Branford, Connecticut. (OF ¶ 3; BF ¶ 3). BAC was a health care consulting firm, and Mr. Breslin served as BAC's chief executive officer and principal employee up until June 4, 2003, when he committed suicide. (BF ¶ 3; OF ¶ 4). Mr. Breslin was neither a trained pharmacist nor a certified public accountant. (OF ¶ 4). Nevertheless, he held a Masters Degree in Public Health (Hospital and Health Service Administration) from Yale University, had been involved in the health care field in Connecticut for more than 20 years, had supervised the health care group in an accounting firm and had several major health care projects to his credit, including projects for the State of Connecticut, which Mr. Breslin had completed at the request of at least three different Governors. (BF ¶ 4). Mr. Breslin also had a reputation as an honest, responsible and competent consultant in the field of health care administration, which constituted a valuable asset to BAC's and Mr. Breslin's business. (Id.). Furthermore, due to his contacts in the health care field, Mr. Breslin was able to consult with knowledgeable pharmacists as needed. (Id.).

Linda Breslin had been Curtis Breslin's wife for more than ten years at the time of Mr. Breslin's death. (OF ¶ 5; BF ¶ 5). She is the guardian of their minor daughter, Carly Breslin, and is the executrix of Mr. Breslin's estate. (OF ¶ 5). BAC and the individual counterclaim plaintiffs shall be referred to collectively as "Breslin."

The CALTC Audit

The parties first encountered each other in connection with an audit that BAC performed for the Connecticut Alliance for Long Term Care ("CALTC"). CALTC is an association of 12 organizations that control approximately 30 nursing homes and other long-term care facilities located in Connecticut. (OF ¶ 6; BF ¶ 6). Michael O'Brien, the President and Chief Executive Officer of CALTC, had known Mr. Breslin for more than 12 years. (BF ¶ 6). According to Mr. O'Brien, in 2000 personnel at several of CALTC's member facilities expressed concern regarding "the accuracy of their invoices and pricing that they were getting on their pharmaceuticals" and "whether they were being billed in accordance [with] the terms of the contract and the negotiated fees for the medications" and other services. (Breslin Ex. 8 at 17). Consequently, in 2001, Mr. O'Brien hired BAC to perform an audit of institutional pharmacy billings to certain of CALTC's member facilities. (BF ¶ 6). Omnicare's wholly-owned subsidiary in Connecticut was the entity that supplied the pharmaceuticals and services that were the subject of the audit. (Id.).

BAC's audit procedure involved calculating, pursuant to CALTC's contract with Omnicare's subsidiary, the prices of the thousands of pharmaceuticals delivered within a one month period, and comparing those calculations with the prices actually charged by the supplier on its invoices for that period to insure that CALTC was not being overcharged. (Id.). This was the first time such an audit process had been conducted at CALTC. (Id.).

In June 2001, BAC issued an audit report to CALTC. (OF ¶ 7). Therein, BAC set forth what it had concluded were overcharges by Omnicare's Connecticut affiliate. (OF ¶ 7; BF ¶ 7). Omnicare disputed both the methodology and results of BAC's audit. (OF ¶ 8). Nevertheless, Omnicare admitted to certain billing errors, and repeatedly declined to explain to CALTC why BAC's work was inaccurate, despite being given opportunities to do so. (BF ¶¶ 7-8; Breslin Ex. 8 at 35, 44-45).

Omnicare did not react favorably to Mr. Breslin and his company. During a meeting between Mr. Breslin, CALTC personnel and Omnicare representatives regarding BAC's audit, Jeffrey Stamps, Omnicare's Regional Vice President for the Eastern Region, became agitated and requested a "time out" in order to meet with Mr. O'Brien alone. (BF ¶¶ 2; 9A; Breslin Ex. 8 at 41). Mr. O'Brien described his meeting with Mr. Stamps as follows:

Mr. Stamps was very agitated, very angry, was very angry and hostile towards Mr. Breslin. He felt that his professional integrity had been challenged by this analysis, that Omnicare as an organization had been challenged, their integrity had been challenged. He did not agree with the methodology and the findings of this study. At the same time, he wanted to reach some type of agreement or settlement, because the value of the business of CALTC was very important to Omnicare of Connecticut and Omnicare nationally. But, quite frankly, he was very angry towards Curt Breslin.

(BF ¶ 9A; Breslin Ex. 8 at 41-42).

Omnicare also accused Mr. Breslin of misappropriating its trade secrets in connection with the CALTC audit, and threatened to sue him. However, no such lawsuit was ever brought. (BF ¶ 9C & n. 5; Breslin Ex. 44). Nevertheless, Mr. Stamps continued to express anger at Mr. Breslin and the results of BAC's audit in e-mails to colleagues at Omnicare. For example, on January 7, 2002, Mr. Stamps stated in an e-mail relating to the CALTC audit that "THIS IS VERY GOOD NEWS ... AND WILL MAKE [CURT BRESLIN] LOOK LIKE THE OPPORTUNIST THAT HE IS. This really...