Post v. AmerisourceBergen Corp.
| Decision Date | 02 November 2020 |
| Docket Number | Civ. Action No. 1:19-CV-73 |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | FRANCES G. POST, individually and on behalf of all others similarly situation, Plaintiff, v. AMERISOURCEBERGEN CORPORATION, a Delaware corporation, US BIOSERVICES CORPORATION, a Delaware corporation, Ig.G. OF AMERICA, INC., a Maryland corporation, and IHS ACQUISITION XXX, INC., a Delaware Corporation, Defendants. |
(Judge Kleeh)
MEMORANDUM ORDER DENYING DEFENDANTS' MOTION TO DISMISS [DKT. NO. 15]
On March 30, 2020, this Court issued an Order [Dkt. No. 36] denying in part and granting in part Defendants' Motion to Dismiss [Dkt. No. 15] further noting that a memorandum opinion would follow. For the reasons discussed herein, that Order is AMENDED to the extent that the motion to dismiss [Dkt. No. 15] is DENIED as to Counts I, II, III, IV, V, and VI, and DENIED AS MOOT as to Count VII. The Court further DENIES the motion to dismiss based on The Medical Professional Liability Act ("MPLA").
On April 18, 2019, the Plaintiff filed a Complaint against Defendants AmerisourceBergen Corporation ("AmerisourceBergen"), US Bioservices Corporation ("US Bioservices"), I.g.G. of America, Inc. ("I.g.G."), and IHS Acquisition XXX, Inc. ("IHS") (collectively, "Defendants") [Dkt. No. 1]. An Amended Complaint was filed on May 8, 2019 [Dkt. No. 9]. Defendants filed a Motion to Dismiss on July 15, 2019 [Dkt. No. 15], to which Plaintiff responded on August 7, 2019 [Dkt. No. 19]. Defendants filed a reply on August 20, 2019 [Dkt. No. 20] which makes the matter ripe for consideration.
Plaintiff, Frances G. Post ("Post" or "Plaintiff"), alleges seven claims in this matter: Count I, Negligence; Count II, Personal Injury; Count III, Civil Conspiracy; Count IV, Fraudulent Concealment; Count V, Unjust Enrichment/Disgorgement; Count VI, Breach of Confidentiality and Violation of Privacy; and Count VII, Punitive Damages [Dkt. No. 9]. Post is a resident of Morgantown, West Virginia and alleges that she, and putative class members, are individuals who were directed by Felix Brizuela, D.O. ("Brizuela") to purchase immunogloblin ("IVIG") from Defendants in Morgantown, West Virginia1 [Id. at 2]. IVIG is an intravenouslyadministered blood product prepared by pooling immunoglobulins from the plasma of thousands of human donors [Id. at 5]. Plaintiff alleges that I.g.G. employed an Executive Account Manager and Director of Sales to target Felix Brizuela, D.O., among other physicians, to achieve an increase in sales of IVIG and to increase the profits of AmerisourceBergen, US Bioservices, I.g.G, and IHS Acquisition2 [Id. at 5-6]. Plaintiff asserts that Defendants madepayments to Felix Brizuela, D.O. to induce him to misdiagnose patients and wrongfully disclose sensitive, private, and protected medical information of Plaintiff and other putative class members for the purpose of increasing new-book sales of IVIG, which increased Defendants' profits [Id. at 5].
For the period relevant to the allegations in the Amended Complaint, Felix Brizuela, D.O. and Felix Brizuela, D.O., PLLC operated a neurology office located at 1271 Suncrest Towne Centre, Morgantown, West Virginia [Dkt. No. 9 at 5]. Plaintiff contends Defendants greatly incentivized the aggressive sale of IVIG, especially to new purchasers, because Defendants knew: (1) once a person is prescribed IVIG, the person will likely take IVIG infusions for the remainder of his/her natural life; (2) IVIG is expensive for the purchaser and lucrative for Defendants; and (3) Defendants devised an internal practice which enabled them to secretly under report and under pay bonus commissions on IVIG sales to bolster corporate profits [Id. at 6]. Plaintiff asserts that Defendants charged high rates for the IVIG product and increased prices as the customer continued to purchase IVIG [Id.].
Plaintiff claims to have received infusions every two weeks at an initial charge of $8,758.29 for each infusion [Dkt. No. 9 at6]. The cost to Plaintiff was then raised to $9,126.28 and $10,450.44, respectively, for each infusion over a period of approximately twelve (12) months [Id.]. Plaintiff contends that Defendants so aggressively incentivized bonus commissions to its sales executives to book IVIG transactions that some sales executives earned an IVIG quarterly bonus in excess of $900,000.00, and that sales executives received a higher bonus commission percentage for the first six months of every new-book IVIG transaction [Id.].
Plaintiff alleges that on April 3, 2012, Defendants began making payments to Felix Brizuela, D.O., that were unlawful, wrongful, violated Defendants' written policies, violated ethical standards, and placed the health, safety, and wellbeing of Plaintiff and putative class members at risk [Dkt. No. 9 at 7]. The payments made by Defendants to Brizuela continued until March 19, 2015 [Id.]. Plaintiff claims that Brizuela performed no services for Defendants to earn the payments made to him other than increasing the number of new-book IVIG transactions [Id.]. While Defendants paid Felix Brizuela, D.O. to obtain new-book IVIG transactions, Brizuela became one of the highest volume IVIG prescribing practitioners in the United States as measured by data from the Centers for Medicare and Medicaid Services ("CMS") [Id.]. During the approximate 26-month period Defendants made payments to Felix Brizuela, D.O., Defendants obtained approximately 65 new-book IVIG transaction accounts through Brizuela [Id.]. Defendants also obtained numerous additional new referrals from Brizuela during that same period for whom Defendants attempted to obtain pre-authorization payment approval [Id.].
Plaintiff alleges that neither she, nor the putative class members, had CIPD, the medical condition diagnosed to trigger the sale of IVIG [Dkt. No. 9 at 7]. Plaintiff asserts that Defendants knew Felix Brizuela, D.O. was making CIDP diagnoses to trigger the sale of IVIG at an incident rate exponentially higher than any rate published in peer review studies, higher than any other prescribers, and that Brizuela's documentation in the possession of Defendants did not support new-book IVIG transactions [Id.]. It is further alleged that Defendants knew the health, safety, and wellbeing of Plaintiff and punitive class members were at risk because Defendants were making improper payments to obtain new-book IVIG transactions through Brizuela [Id. at 8].
According to the Amended Complaint, IVIG is infused slowly over a course of hours, and it requires surgical PICC line placement and placement for infusion or IV administration for each infusion [Dkt. No. 9 at 8]. Both methods of infusion are associated with risk of infection, injury, disease, and death [Id.]. Side effect rates for IVIG are high and include extreme fatigue, malaise, fever, nausea vomiting, all described as flu-like symptoms, headaches, blood pressure changes, and tachycardia[Id.]. Plaintiff asserts the infusions prevent people from carrying out functions of daily living and work on the days of their infusion, and for some days, thereafter [Id.]. Plaintiff further claims that IVIG is associated with acute renal failure, thromboembolic events, aseptic meningitis, neutropenia, and skin reactions, among other risks [Id.]. All IVIG patients require administration and monitoring associated with the infusions [Id.].
The allegations state that Felix Brizuela, D.O. performed no services on behalf of Defendants to legitimately earn ten (10) payments made to Brizuela by and on behalf of Defendants [Dkt. No. 9 at 8]. Plaintiff contends that Defendants admit the payments to Brizuela violate their own policies, and that those policies were put in place, in part, to protect the health, safety, and wellbeing of IVIG purchasers, including Plaintiff and the other putative class members [Id.]. Plaintiff alleges that Defendants made the improper payments to Brizuela and violated their own policies to increase new-book IVIG transactions, increase paid and underpaid sales commissions, and increase corporate profits [Id. at 8-9]. Plaintiff further contends that the Defendants' wrongful actions were concealed from Plaintiff and putative class members, and that Plaintiff became aware of the wrongful payments in April 2019 [Id. at 9].
Plaintiff's Amended Complaint is brought individually and on behalf of the putative class members she seeks to represent [Dkt.No. 9 at 9]. Plaintiff defines the proposed class as follows:
All persons who were prescribed immunoglobulin (IVIG) by Felix Brizuela, D.O. between April 3, 2012 and March 19, 2015 and were directed to Defendants AmerisourceBergen Corporation, US Bioservices Corporation, Ig.G. of America, Inc., and IHS Acquisition XXX, Inc. for purchase of IVIG.
[Id. at 9].
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move for dismissal upon the ground that a complaint does not "state a claim upon which relief can be granted." In ruling on a motion to dismiss, a court "must accept as true all of the factual allegations contained in the complaint." Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). A court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986). A court also liberally construes "the complaint, including all reasonable inferences therefrom, ... in Plaintiff's favor." Estate of Williams-Moore v. All. One Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646 (M.D.N.C. 2004) (citations omitted).
A motion to dismiss under Rule 12(6)(b) tests the "legal sufficiency of a complaint." Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). A court should dismiss a complaint if it does not contain "enough facts to state a claim to relief that isplausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)...
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