Salier v. Walmart, Inc.
| Docket Number | Case No. 22-CV-0082 (PJS/ECW) |
| Decision Date | 19 August 2022 |
| Parties | William SALIER and Karla Salier, Plaintiffs, v. WALMART, INC., and Hy-Vee, Inc., Defendants. |
| Court | U.S. District Court — District of Minnesota |
Cameron L. Atkinson, PATTIS & SMITH, LLC; Marjorie J. Holsten, HOLSTEN LAW OFFICE, for plaintiffs.
Kristin K. Zinsmaster and Matthew J. Rubenstein, JONES DAY, for defendant Walmart, Inc.
Andrew B. Brantingham, Stephen P. Lucke, and Donna Reuter, DORSEY & WHITNEY LLP, for defendant Hy-Vee, Inc.
Plaintiffs William and Karla Salier brought this action against defendants Walmart, Inc. ("Walmart"), and Hy-Vee, Inc. ("Hy-Vee"). The Saliers have asserted various tort claims related to Walmart's and Hy-Vee's refusals to fill the Saliers' prescriptions for ivermectin and hydroxychloroquine, two drugs that the Saliers wanted to use to treat their COVID-19 infections, even though virtually every medical and governmental authority to address the issue has said that ivermectin and hydroxychloroquine should not be used to treat COVID-19.
This matter is before the Court on defendants' motions to dismiss. For the reasons that follow, the motions are granted.
William became severely ill with COVID-19 in October 2021. ECF No. 9 ¶¶ 8, 10. Unable to obtain monoclonal antibody treatments either in Minnesota (where the Saliers live) or in Iowa, the Saliers sought to treat William's infection with ivermectin. Id. ¶¶ 11-12, 4-5. After "significant persistence," the Saliers obtained a telehealth appointment with a controversial Missouri physician named Mollie James, who describes herself as "an activist for medical freedom, patients [sic] right to choose, and physicians [sic] right to practice medicine unencumbered." The James Clinic, Let Doctors Be Doctors, https://jamesclinic.com/about (last visited Aug. 19, 2022). Dr. James prescribed ivermectin for William and sent that prescription to a Walmart pharmacy in Minnesota. Id. ¶¶ 15-16. The Walmart pharmacist declined to fill the prescription, however, "stating that it was not appropriate to treat COVID-19 patients with [ivermectin]." Id. ¶ 17. Neither Karla nor Dr. James was able to convince the pharmacist to reconsider. Id. ¶¶ 18-19.
Eventually, Karla also contracted COVID-19, and Dr. James prescribed not only ivermectin but also hydroxychloroquine for her. Id. ¶ 20. The Walmart pharmacy again refused to fill the prescriptions, so the Saliers tried to get the prescriptions filled at a Hy-Vee pharmacy. Id. ¶¶ 20-21. The Hy-Vee pharmacy also declined, citing its "corporate policy to refuse Ivermectin and hydroxychloroquine prescriptions to treat COVID-19." Id. ¶ 21. Ultimately, the Saliers resorted to using veterinary ivermectin—"horse paste," as they call it, id. ¶ 22—after which the Saliers say they experienced "rapid and significant improvement." Id. ¶¶ 22-26.
The Saliers brought this action against Walmart and Hy-Vee, seeking to recover damages under three theories:
First, the Saliers allege that defendants violated what the Saliers characterize as their "common law right to self-determination." Id. ¶ 41. According to the Saliers, 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. (quoting Cornfeldt v. Tongen, 262 N.W.2d 684, 701 (Minn. 1977)). The Saliers allege that defendants' refusals to fill their prescriptions violated this right because defendants "had no reasonable medical or scientific basis for declining" to fill the prescriptions, "endangered" the Saliers' lives, "forced [the Saliers] to improvise a home remedy intended for horses," and "chose to replace [Dr. James's] reasoned judgment and [the Saliers'] own reasoned decisionmaking" with "baseless political conclusions" (in Walmart's case) and "a one-size-fits-all corporate policy based on political fearmongering" (in Hy-Vee's case). Id. ¶¶ 40-49, 74-83.
Second, the Saliers allege that defendants intentionally inflicted emotional distress. Specifically, the Saliers allege that defendants committed extreme and outrageous conduct by substituting their "political judgments" (Walmart) and "corporate policy" (Hy-Vee) "for Dr. James' reasoned and qualified judgment at the risk of" the Saliers' life and health. Id. ¶¶ 53, 60-61, 87, 93-94. The Saliers further allege that the Walmart pharmacist's "paternalist and rude lecture to Karla Salier about how she was endangering William Salier's health despite her efforts to inform [Walmart] of how ill William Salier was" constituted extreme and outrageous conduct. Id. ¶¶ 62, 54.
Finally, the Saliers allege that defendants tortiously interfered with contract by impeding Dr. James's performance of her obligation to "provide [the Saliers] medical treatment to the best of her knowledge, skills, ability, and experience." Id. ¶¶ 65, 70, 97, 102. The Saliers allege that defendants "intentionally procured the breach of that contract without justification by substituting" their "political and fear-driven conclusions" (Walmart) and "corporate policy" (Hy-Vee) "in place of Dr. James' knowledge, skills, ability, and experience" and by "denying Dr. James the ability to prescribe a legal medicine." Id. ¶¶ 67, 72, 99, 104. As a result, the Saliers "lost the informed aid of Dr. James' assistance to obtain life-saving medicine" and "were forced to devise a home remedy that could have endangered [their] health." Id. ¶¶ 68, 73, 100, 105.
Defendants have moved to dismiss the Saliers' claims under Fed. R. Civ. P. 12(b)(6). Defendants have also moved to dismiss the Saliers' claims under Minn. Stat. § 145.682, arguing that the Saliers failed to provide the expert-review affidavit required by that statute.
In reviewing a motion to dismiss under Rule 12(b)(6), the Court must accept as true all of the factual allegations in the complaint, Aten v. Scottsdale Ins. Co., 511 F.3d 818, 820 (8th Cir. 2008), and draw all reasonable inferences in the plaintiff's favor, Kelly v. City of Omaha, 813 F.3d 1070, 1075 (8th Cir. 2016), while disregarding legal conclusions couched as factual allegations, Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The complaint's factual allegations need not be detailed, but they "must be enough to raise a right to relief above the speculative level," and the complaint must "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
"[F]ederal courts sitting in diversity apply state substantive law and federal procedural law." Gasperini v. Ctr. for Humans., Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996). The parties agree that Minnesota substantive law applies to the Saliers' claims. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In interpreting Minnesota law, this Court is bound by decisions of the Minnesota Supreme Court. Hope v. Klabal, 457 F.3d 784, 790 (8th Cir. 2006). If the Minnesota Supreme Court has not ruled on an issue of state law, then this Court must "ascertain from all the available data what the state law is," Soto v. Shealey, 331 F. Supp. 3d 879, 885 (D. Minn. 2018) (quoting West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 85 L.Ed. 139 (1940)), and "apply what [the Court] find[s] to be the state law after giving 'proper regard' to relevant rulings of other courts of the [s]tate," id. () (quoting Comm'r v. Est. of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967)).
The Saliers first claim that Walmart and Hy-Vee violated what they characterize as their "common law right to self-determination." ECF No. 9 ¶ 41. At oral argument, the Saliers' attorney struggled mightily—and unsuccessfully—to define the contours of this "right." That is not surprising, given this right does not exist in Minnesota or anywhere else.
The Saliers' claim that Minnesota recognizes a right to self-determination is based on a single sentence of dicta that appears in a medical-malpractice case decided by the Minnesota Supreme Court almost 45 years ago:
Our 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.
Cornfeldt, 262 N.W.2d at 701-02 (citing Schloendorff v. Soc'y of N.Y. Hosp., 211 N.Y. 125, 105 N.E. 92, 93 (1914)). But the Minnesota Supreme Court made that statement in the context of informed consent—a doctrine ensuring that a patient's decisions about her health care are informed. Absolutely nothing 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.
The implications of recognizing the right asserted by the Saliers—not just the right to do whatever you want with your own body, but the right to force others to help you (so much for their right of self-determination)—would be mind-boggling, even if it were just limited to medical providers. If a pharmacist at Walmart is legally required to fill a prescription for ivermectin because the patient demands it, then is every doctor in Minnesota legally required to provide an abortion if a patient demands it? Is every nurse legally required to assist a patient in committing suicide? Is every pharmacist legally required to provide medical marijuana? When pressed with such questions at oral argument, the Saliers' attorney prevaricated.
It is one thing to say that a patient has the right to refuse medical treatment. It is quite another thing to say that a patient has the right to force a medical provider to provide a particular type of medical treatment against his or her professional judgment. As far as the Court knows, not a single state...
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