United States District Court, W.D. Pennsylvania
JOSEPH OLSAVSKY, individually and on behalf of all others similarly situated, Plaintiff,
EXPRESS SCRIPTS, INC., Defendant.
MEMORANDUM OPINION AND ORDER ON DEFENDANT'S
MOTION TO DISMISS FIRST AMENDED COMPLAINT
Patricia L. Dodge United States Magistrate Judge
Joseph Olsavsky, individually and on behalf of all others
similarly situated, commenced this action on September 25,
2018 in which he asserted claims for breach of contract and
unjust enrichment against Defendant, Express Scripts, Inc.
("ESI"). Plaintiff alleges that ESI charges
exorbitant and arbitrary fees when law firms, acting as
authorized agents on behalf of injured parties, submit
requests to ESI for pharmacy records.
ESI filed a motion to dismiss the original Complaint,
Plaintiff filed a First Amended Complaint (ECF No. 15)
("Amended Complaint"). ESI now moves to dismiss the
Amended Complaint (ECF No. 24). ESI's motion has been
fully briefed by the parties and is ripe for
to the Amended Complaint, ESI offers pharmacy benefit
management services through a network of retail pharmacies,
and also provides home-delivery pharmacy services to
patients. (Am. Compl. ¶¶ 22, 23.) Plaintiff alleges
that on April 20, 2018, he requested his pharmacy records
from ESI through his authorized law firm agent. (Am. Compl.
¶ 22.) Plaintiff initiated this process by signing an
ESI document titled "Authorization to Use and Disclose
Health Information" requesting "Prescription Claims
Information/Prescription History (PBM records). (Am. Compl.
¶42.) Plaintiff alleges that, despite ESI's
claim that it provides records at no charge if directly
requested by the customer, "nowhere on its invoices or
forms, or on its customer prescription cards, does it advise
customers of this option." (Id. ¶ 47.) The
form that Plaintiff signed includes the following language:
Prescription Claims Information is readily available
for the previous ten years. Patients wanting
prescription claim information sent to the address on file
should call the number on the back of the prescription
(Id. Ex. 1 at 2) (emphasis in original.) Whatever
ESI's intent or actual practice may be, this section of
the form does not specifically state that customers may
obtain their records without charge by calling the number on
their prescription card. Directly underneath this language,
the form states: "Please return completed form along
with a check or money order for the nonrefundable processing
fee of $90.00" to ESI. (Am. Compl. ¶ 44 & Ex.
paid the processing fee of $90.00 and received six pages of
medical records. (Am. Compl. ¶¶ 22-23.) The six
pages of records received by Plaintiff through his agent
reflect a mix of both retail pharmacy prescriptions and
prescriptions directly filled by ESI. (Am. Compl. ¶ 24.)
Plaintiff asserts that the cost of his medical records was,
or will be, deducted from a settlement of his claims in a
products liability lawsuit, which will come directly out of
his net recovery. (Am. Compl. ¶¶
Plaintiff, through his agent, paid the fee to ESI, he
contends that the payment was not voluntary because ESI did
not offer to waive or discount the fee if certain conditions
were met. (Am. Compl. ¶ 30.). Further, Plaintiff notes
that, among other things, the $90.00 charge was in excess of
the cost of the handling, cost of copies and actual shipping.
(Am. Compl. ¶22.)
Amended Complaint asserts that many third-party requests
result in only two or three pages of records, and lawyers
making third-party requests have no option but to pay the fee
if they wish to further prosecute or investigate their
clients' legal claims. (Am. Compl. ¶ 29.) According
to the Amended Complaint, ESI charged all requestors the same
non-refundable fee, regardless of various state law
requirements related to fees that companies may charge for
record requests. (Am. Compl. ¶ 28.) Other health
providers in Pennsylvania, as well as national pharmacy
chains that operate in Pennsylvania, routinely charge a fee
based on applicable state laws or a reasonable fee of $1.00
per page or less. (Am. Compl. ¶ 37.)
about April 1, 2018, ESI increased its third-party processing
fee from $75.00 to $90.00, regardless of how many pages of
records are provided. (Am. Compl. ¶ 29.) In raising the
non-refundable fee to $90.00, ESI did not provide any
explanation for how or why the cost increased, or whether it
was reasonable. (Id.)
recently, according to Plaintiff, ESI claimed that its fee is
for "processing" and not for shipping. (Am. Compl.
¶ 26.) At some point in recent months, however, ESI
changed the language in its authorization and removed the
word "processing." (Id.) Plaintiff asserts
that this is further evidence that ESI is aware of the
unreasonable nature of its charges. (Id.) The
Amended Complaint claims that no accounting is done by ESI to
keep track of overhead costs for the processing of such
records. (Am. Compl. ¶ 27.)
to Plaintiff, the execution and submission of the
authorization form and his non-refundable payment of the
$90.00 fee for "processing" created a contract
between Plaintiff and ESI and is a "classic contract of
adhesion." (Id. ¶¶ 42, 46, 49.)
Plaintiff represents that his sole contract claim is that ESI
breached its express and implied contracts with Plaintiff and
members of the class. (Am. Compl. ¶¶ 26-27.)
Plaintiff also claims that ESI was unjustly enriched by
charging exorbitant and unreasonable fees that bear no
relationship to the cost of the requested records. (Am.
Compl. ¶¶ 32-34.)
proposes to represent a class defined as follows:
All individual citizens of the State [sic] of Pennsylvania
who were charged excessive and unreasonable fees of either
$75.00 or $90.00 for a copy of their health information
and/or records from Express Scripts, following a request by a
third-party law firm or records company on their behalf, from
Jan. 1, 2008 to present.
(Am. Compl. ¶ ll.) Plaintiff estimates that the class
includes more than one thousand third-party requests from
2008 to the present. (Am. Compl. ¶ 12.)
Motion to Dismiss, ESI contends that neither the breach of
contract claim nor the unjust enrichment claim state a claim
upon which relief may be granted. ESI's arguments will be
United States Supreme Court has held that a complaint must
include factual allegations that "state a claim to
relief that is plausible on its face." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
"[W]ithout some factual allegation in the complaint, a
claimant cannot satisfy the requirement that he or she
provide not only 'fair notice' but also the
'grounds' on which the claim rests."
Phillips v. County of Allegheny, 515 F.3d
224, 232 (3d Cir. 2008). In determining whether a plaintiff
has met this standard, a court must reject legal conclusions
unsupported by factual allegations, "[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements;" "labels and
conclusions;" and '"naked assertion[s]'
devoid of further factual enhancement.'"
Iqbal, 556 U.S. at 678 (citations omitted). Mere
"possibilities" of misconduct are insufficient.
Id. at 679. The United States Court of Appeals for
the Third Circuit has summarized the inquiry as follows:
To determine the sufficiency of a complaint, a court must
take three steps. First, the court must "tak[e] note of
the elements a plaintiff must plead to state a claim."
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
1947, 173 L.Ed.2d 868 (2009). Second, the court should
identify allegations that, "because they are no more
than conclusions, are not entitled to the assumption of
truth." Id. at 1950. Third, "whe[n] there
are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give
rise to an entitlement for relief." Id. This
means that our inquiry is normally broken into three parts:
(1) identifying the elements of the claim, (2) reviewing the
complaint to strike conclusory allegations, and then (3)
looking at the well-pleaded components of the complaint and
evaluating whether all of the elements identified in part one
of the inquiry are sufficiently alleged.
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).