Salier v. Walmart, Inc.

• Docket Number: 22-2960
• Decision Date: 07 August 2023
• Parties: William Salier; Karla Salier Plaintiffs - Appellants v. Walmart, Inc.; Hy-Vee, Inc. Defendants - Appellees
• Court: U.S. Court of Appeals — Eighth Circuit

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William Salier; Karla Salier Plaintiffs - Appellants v. Walmart, Inc.; Hy-Vee, Inc. Defendants - Appellees

No. 22-2960

United States Court of Appeals, Eighth Circuit

August 7, 2023

Submitted: June 15, 2023

Appeal from United States District Court for the District of Minnesota

Before LOKEN, ERICKSON, and KOBES, Circuit Judges.

LOKEN CIRCUIT JUDGE

As the COVID-19 pandemic swept the nation, those infected with the virus, which in many cases proved fatal, searched for new pharmaceutical treatments. A few physicians began prescribing the "off-label" use of ivermectin, an anti-parasitic agent that is FDA-approved for treating intestinal conditions caused by parasitic worms, and hydroxychloroquine, which is FDA-approved to treat several autoimmune conditions and to treat or prevent malaria.^[1] In this case, a Missouri physician prescribed ivermectin and hydroxychloroquine to Minnesota residents William and Karla Salier to treat their severe COVID-19 infections. Pharmacists at Walmart and Hy-Vee stores in Albert Lea, Minnesota refused to fill the prescriptions.

The Saliers acquired and consumed a more concentrated veterinary formulation of ivermectin, commonly known as "horse paste." Their COVID-19 symptoms improved, and they resumed normal activities in one week and fully recovered in two weeks. The Saliers then filed this diversity action against Walmart and Hy-Vee (collectively, Defendants) seeking compensatory and punitive damages for alleged violations of the Saliers' common law right of "self-determination" and for the intentional infliction of severe emotional distress. After hearing extensive argument, the district court^[2] granted Defendants' motions to dismiss all claims with prejudice. Salier v. Walmart, Inc., 622 F.Supp.3d 772 (D. Minn. 2022). Applying Minnesota law, the court denied the Saliers' request to certify the self-determination issues to the Supreme Court of Minnesota and dismissed the self-determination claims as not recognized by Minnesota common law, consistent with the rulings of every court to consider similar claims around the country.^[3] Id. at 778-79 &n.2. It dismissed the intentional infliction of emotional distress claim for failure to plausibly allege the requisite extreme and outrageous conduct by Defendants. Id. at 780. The Saliers appeal these rulings. We affirm.

I. The "Self-Determination" Claims

In October 2021, William Salier became seriously ill with COVID-19. An Iowa clinic denied his request for an ivermectin prescription to treat the virus. Ivermectin tablets are approved by the U.S. Food and Drug Administration ("FDA") as safe and effective to treat some human conditions but are not approved to treat COVID-19.^[4] William obtained a prescription for ivermectin from Dr. Mollie James, a Missouri physician, who sent the prescription to a Walmart pharmacy in Albert Lea. The pharmacist refused to fill the prescription, telling Karla ivermectin is not an appropriate treatment for COVID-19. When Karla protested, the pharmacist "rudely lectured" Karla -- and later Dr. James -- about the dangers of treating COVID-19 with ivermectin. Karla then contracted COVID-19. Dr. James prescribed ivermectin and hydroxychloroquine^[5] and sent the prescriptions to the same Walmart pharmacy. The pharmacist again refused to fill the prescriptions. Dr. James then sent William and Karla's prescriptions to a Hy-Vee pharmacy in Albert Lea. The Hy-Vee pharmacist refused to fill them, explaining that Hy-Vee's "corporate policy" barred its pharmacists from dispensing ivermectin and hydroxychloroquine to treat COVID-19.

The Saliers then purchased and consumed a veterinary formulation of ivermectin used to treat horses and other large animals. They quickly recovered from COVID-19 and commenced this diversity action in federal court. Their primary claim is that Defendants' refusal to fill their prescriptions violated their "common-law right to self-determination." The operative paragraphs of their self-determination claims against Walmart in Counts One and Two of their Amended Complaint allege:

Under Minnesota law, every person enjoys a common law right to self-determination. Cornfeldt v. Tongen, 262 N.W.2d 684 (Minn. 1977). A corollary of this right is the common law right of "every adult of sound mind to determine what shall be done with his own body." Id. at 701.

Defendant Walmart, Inc. had no reasonable medical or scientific basis for declining to fill William Salier's prescription for Ivermectin for the sole reason that his doctor had prescribed it to treat COVID-19.

Defendant Walmart, Inc.'s refusal to fill William Salier's prescription endangered his life and forced him to improvise with a version intended for horses, not humans, to save his own life.

Defendant Walmart, Inc. violated William Salier's right to selfdetermination by declining to provide him the safe and effective treatment -- Ivermectin -- that his doctor prescribed simply because it chose to replace his doctor's reasoned judgment and [William's] own reasoned decisionmaking with baseless political conclusions.

The operative paragraphs of their self-determination claims against Hy-Vee in Counts Seven and Eight are worded identically except Count Eight includes refusing to fill Karla's hydroxychloroquine prescription, and the allegation in the fourth paragraph that Walmart based its refusal to fill the prescriptions on "baseless political conclusions" is replaced with the allegation that Hy-Vee based its refusal on "a one-size-fits-all corporate policy based on political fearmongering."

Defendants promptly moved to dismiss these claims, alleging that "Minnesota law does not recognize a cause of action based on violation of an asserted 'right to self-determination.'" The right discussed in the Cornfeldt case cited by Plaintiffs, Defendants argued, "is limited to the right to refuse medical treatment, and to be sufficiently informed to give meaningful consent to treatment." Minnesota common law does not recognize a right "to compel an unwilling healthcare provider to participate in a plan of care that is contrary to its judgment, policy, and/or public health agency guidance." By statute and by administrative rules, "Minnesota law enables pharmacists to exercise independent judgment" in filling prescriptions.

In opposing Defendants' motions to dismiss, the Saliers conceded that Cornfeldt "specifically" recognized only "a tort of negligent non-disclosure" but noted that "no Minnesota appellate court has dealt with its broader statement that 'every adult of sound mind' has a right 'to determine what shall be done with his own body.' [Cornfeldt, 262 N.W.2d at 701]." Therefore, Plaintiffs asserted, this is an open question of Minnesota common law. The Saliers urged the district court either to rule that "[r]eceiving proper medical treatment belongs in the hands of informed patients and reasonable doctors who have assessed their patients' individual conditions . . . not pharmacists acting based on corporate and political motivations," or to certify this question to the Supreme Court of Minnesota.

The district court dismissed these claims, refusing to recognize "the sweeping new right" of medical self-determination asserted by the Saliers. Salier, 622 F.Supp.3d at 778.

"[N]othing in Cornfeldt or any other case suggests that, under Minnesota law, a health-care provider has a legal obligation to provide any and all treatments or medications demanded by a patient," especially when -- as here -- the treatment requested is against the provider's professional judgment. Id. at 777-78. The court emphasized that no other States have recognized such a right and it would have disastrous policy implications. Id. at 778. For the same reasons, the district court denied the Saliers' request to certify the issue to the Supreme Court of Minnesota, "confident[ly]" concluding that "[t]his is not a close question [of Minnesota law]." Id. at 778 &n.2.

On appeal, the Saliers argue the district court erred by refusing to recognize their asserted Minnesota "common-law right to self-determination." They maintain this right exists and allowed them to compel Walmart and Hy-Vee pharmacists to fill their prescriptions for ivermectin and hydroxychloroquine, which the Saliers allege are "safe and effective treatment[s]" for COVID-19. Acknowledging this is an issue of first impression under Minnesota law, they rely on a single sentence in Cornfeldt --"[o]ur society is morally and legally committed to the principle of self-determination, a corollary of which is the right of every adult of sound mind to determine what shall be done with his own body." 262 N.W.2d at 701. In Cornfeldt, the Supreme Court of Minnesota held that a claim that a physician violated the well-recognized tort of medical malpractice may be based upon the physician's negligent non-disclosure of information the patient needs to exercise his or her well-recognized right to refuse treatment. Id. at 699. Though no Minnesota appellate court has cited this dicta in the 46 years since Cornfeldt was decided, the Saliers contend this language "cannot be passed off as mere obiter dictum." It recognizes an established principle, "selfdetermination," that "easily extends" beyond the negligent nondisclosure of treatment risks and embraces the "medication corollary" the Saliers assert in this case. We disagree that this is an expansive controlling principle of Minnesota common law.

First as the district court recognized, we are a federal court sitting in diversity considering an issue of first impression that the Supreme Court of Minnesota has not addressed. Our task is to predict, to the best of our ability, how that Court would rule. See, e.g., Kingman v. Dillard's Inc., 643 F.3d 607, 615 (8th Cir. 2011). ...