NOLAN v. LABORATORY CORPORATION OF AMERICA HOLDINGS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

NATHANIEL J. NOLAN and HELENA )

WITTENBERG, individually and )

on behalf of all others )

similarly situated, )

)

Plaintiffs, )

)

v. ) 1:21cv979

)

LABORATORY CORPORATION OF )

AMERICA HOLDINGS, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge.

This is a putative class action involving claims of unfair

and deceptive conduct under Nevada and Florida law related to the

billing practices of Defendant Laboratory Corporation of America

Holdings (“Labcorp,” sometimes referred to the parties as

“LabCorp”).1 Before the court is Labcorp’s motion to dismiss all

claims pursuant to Federal Rule of Civil Procedure 12(b)(6).

(Docs. 10, 11.) Plaintiffs filed a response in opposition (Doc.

13), and Defendant replied (Doc. 15). On November 8, 2022, the

court heard oral argument. For the reasons set forth below, the

motion to dismiss for failure to state a claim will be granted,

1 Plaintiffs allege this case is related to a separate putative class

action against Labcorp, Anderson v. Laboratory Corp. of Am. Holdings,

No. 1:17-cv-193 (M.D.N.C.).

and the complaint will be dismissed.

I. BACKGROUND

The allegations of the complaint, viewed in the light most

favorable to Plaintiffs as the non-moving parties, show the

following:

LabCorp provides laboratory testing services to millions of

healthcare recipients internationally. (Doc. 1 ¶ 27.) It has

more than 100 million patient encounters annually and “typically

processes clinical lab tests on more than 3 million patient

specimens per week.” (Id. ¶ 12.) “Labcorp Diagnostics,” one of

Labcorp’s two major business segments, is an independent clinical

laboratory business that provides the services that are the subject

of Plaintiffs’ complaint. (Id. ¶ 28-29.) Labcorp Diagnostics

offers an array of frequently requested and specialty testing

through a network of primary and specialty laboratories. (Id.)

Its customers are managed care organizations, biopharmaceutical

companies, governmental agencies, physicians and other healthcare

providers, hospitals, employers, patients, and consumers.

(Id. ¶ 31.)

Labcorp routinely performs lab testing services prior to

processing billing information and determining the ultimate amount

due. (Id. ¶¶ 21, 48.) It later determines the price and the

paying party’s information upon receiving (i) a medical diagnosis

code and test code for each lab test prescribed by a physician,

and (ii) the patient’s insurance information (for insured

patients). (Id.) If the service is covered by a patient’s health

insurance plan, Labcorp bills the third-party payer the “health

plan allowed” rate.2 (Id. ¶¶ 21-22, 48, 55.) If the service is

not covered by the patient’s health insurance plan, Labcorp bills

the patient directly at the “patient list price” (hereinafter “list

price”). (Id. ¶¶ 21-22.) These rates vary greatly, but the list

price tends to be much higher than the health plan allowed rate.

(Id.) Accordingly, if a patient’s insurer denies coverage for

certain lab testing services, the patient will generally owe

Labcorp the much higher list price. (Id. ¶¶ 4-5, 9-10.)

Typically, a patient will authorize his or her physician to

order lab testing without inquiring as to what lab will perform

the work. In this situation, the patient’s healthcare provider

will generally collect the specimen necessary for testing, e.g.,

perform a blood-draw, and then send that specimen to a Labcorp

location for testing. (Id. ¶ 21.) In some instances, however, a

patient will go directly to a Labcorp “patient service center” or

other Labcorp facility to have the lab-testing services performed.

2 Even though Labcorp bills the third-party payer, e.g., the patient’s

insurer, the patient is usually responsible for paying all or part of

the health plan allowed rate directly to Labcorp because the cost of the

lab testing services frequently does not exhaust the patient’s health

insurance deductible. (Doc. 1 ¶ 69.) Thus, the health plan allowed

rate generally corresponds to what the patient owes out-of-pocket (at

least when the pertinent lab testing services are covered by the

patient’s health insurance plan). (Id. ¶¶ 21-22, 48, 69.)

(Id. ¶¶ 29, 66, 100-101.) Before it will perform any lab testing

services, however, Labcorp asks its patients to review and sign a

document - the Patient Acknowledgement of Estimated Financial

Responsibility form (the “Patient Acknowledgement”) (Id. ¶¶ 1, 3-

4, 7; Doc. 1-1; Doc. 1-2; Doc. 1-3.)

The Patient Acknowledgment - which forms the basis of

Plaintiffs’ complaint - is a “common form used throughout Labcorp’s

operations and is signed by thousands, if not millions” of patients

a year. (Id. ¶ 12.) It provides insured patients with an estimate

of the total amount due for the lab-testing services, assuming

those services are covered by their health insurance plan. Put

differently, the Patient Acknowledgment gives patients an estimate

of what they will owe out-of-pocket, reflecting the estimated

deductible, coinsurance, and copay amounts if the lab-testing

services provided are covered by their health insurance plan. (Id.

¶¶ 1, 3, 73, 112; Doc. 1-1, Doc. 1-2, Doc. 1-3.) The Patient

Acknowledgment refers to this cost estimate as the “health plan

allowed rate.” (Id.) It also sets out the “Estimated Amount Paid

by Health Plan.” (Id.) The form has a block on page two entitled,

“YOUR ESTIMATED RESPONSIBILITY” with a dollar amount provided.

(Id.) What the Patient Acknowledgement does not provide is the

(generally more expensive) list price - the amount a patient would

owe in the event the services are not covered by her health

insurance. (Id. ¶ 74; Doc 1-1, Doc. 1-2, Doc. 1-3.)

The second page of the Patient Acknowledgment includes

further information about the estimate’s conditional nature. In

full, it reads:

You are being provided with this Acknowledgment of

Estimated Financial Responsibility. This estimate

assumes all services will be covered. Your physician

has requested the above service(s) and some services may

be considered investigational, require prior

authorization, are excluded or otherwise not covered by

your health plan. Additionally, your physician may have

requested laboratory services that will automatically

trigger additional testing procedures based on certain

clinical indications or your physcian may determine it

necessary to order additional testing procedures based

on the sample collected today. LabCorp will bill you

for any additional testing. Your health plan may not

pay for these services and you will be personally

responsible for payment for these services. This

acknowledgment is based on the health plan information

provided at the time of service. In the event that your

information changes, your acknowledgment of financial

responsibility still applies.

By signing below, you acknowledge: I want the laboratory

test(s) listed above to be performed. My health plan

will be billed for the applicable charges. As outlined

above, I understand that my health plan may not pay for

this test(s) at 100%. The amount I may have to pay may

be different than the estimated amount. I agree to be

personally and fully responsible for charges from

today’s services that are not covered by my health plan.

(Doc. 1-1 at 2 (bold added); Doc. 1-2 at 2 (bold added); Doc. 1-3

at 2 (bold added).) Thus, by signing the Patient Acknowledgment,

the patient agrees that her “health plan may not pay for this

test(s) at 100%” and that the amount the patient “may have to pay

may be different than the estimated amount.”

Plaintiffs Nathaniel Nolan and Helena Wittenberg complain

that that the Patient Acknowledgement is materially misleading and

deceptive under their respective state’s law because it discloses

the health plan allowed rate without also disclosing the patient’s

list price – the amount due in the event the test is not covered

by insurance.

A. Plaintiff Nolan

On September 11, 2018, Plaintiff Nolan visited a Labcorp

facility in Reno, Nevada, to have several lab tests performed.

(Doc. 1 ¶¶ 64-66.) Before Labcorp would administer the tests,

however, a Labcorp representative required Nolan to sign the

Patient Acknowledgment, which included an estimate of the health

plan allowed rate that Nolan would owe assuming each test was

covered by his insurance. (Id. ¶ 67; Doc. 1-1 at 1.) Nolan signed

and dated the Patient Acknowledgment, thereby agreeing “to be

personally and fully responsible for charges” for those lab-

testing services not covered by his health plan. (Doc. 1 ¶ 73,

Doc. 1-1 at 2.) One of the tests was a Vitamin D, 25-hydroxy test,

which the health plan allowed rate estimated would cost him $18.93.

(Doc. 1 ¶ 4, 68; Doc. 1-1 at 1.) The Patient Acknowledgement did

not include the list price of the Vitamin D (or any other) test,

“or that the list price is many multiples of the disclosed

negotiated rate.” (Doc. 1 ¶ 74.)

Two weeks later, Labcorp sent Nolan a bill, which charged him

$292 for the Vitamin D test. (Id. ¶¶ 5, 75-79.) Unable to

understand the discrepancy between the bill ($292) and the Patient

Acknowledgement ($18.93), Nolan requested and received an

Explanation of Benefits (“EOB”) from Highmark Blue Shield, his

insurer. (Id. ¶ 77.) Highmark explained that although Nolan’s

insurance plan covered each of the other tests, it did not cover

the Vitamin D test. (Id. ¶ 78.) Accordingly, the EOB stated that

Nolan would be responsible for paying Labcorp the Vitamin D list

price of $292 (in addition to the health plan allowed rate for

each of the other tests Nolan was administered, because Nolan had

not met his copay or deductible). (Id.) Nolan was “shocked”

because he assumed, based on the Patient Acknowledgment, that

Labcorp was willing to perform the test for the “Health Plan

Allowed Rate” of $18.93. (Id. ¶ 79.) Nolan has since refused to

pay the list price for the test “absent an appropriate settlement

of his claim.” (Id. ¶ 5.)

B. Plaintiff Wittenberg

Plaintiff Wittenberg’s experience is similar. On April 16,

2018, Wittenberg went to a Labcorp patient service center in Lake

Mary, Florida, where she was administered two different sets of

clinical laboratory tests. (Id. ¶¶ 7-8, 100.) Wittenberg signed

a Patient Acknowledgement for each set of tests. (Doc. 1 ¶¶ 7,

101, 106, 109; Doc. 1-2 at 2; Doc. 1-3 at 2.) The total estimated

responsibility, based on the “Health Plan Allowed Rate” for the

first set of tests provided a cost estimate of $44.60 (Doc. 1 ¶¶ 7,

101, 106; Doc. 1-2 at 1) and $65.27 for the second set (id. ¶¶ 9,

101, 109, Doc. 1-3 at 1); the totals for both estimates reflected

that the full expense was within the applicable deductible.

Subsequently, Wittenberg received an EOB from her insurer.

(Doc. 1 ¶ 116.) It stated that because Labcorp was out of network

with her insurance plan, she might be held responsible for “any

charges in excess of the maximum amount.” (Id.) Shortly

thereafter, Wittenberg received two invoices from Labcorp, each

corresponding to the set of lab tests she received in April. (Id.

¶¶ 117, 119.) The invoices revealed that, because her insurance

was out of network with Labcorp, none of the tests she received

was covered; as a result, Labcorp charged her the list price rather

than the health plan allowed rate for each test. (Id. ¶¶ 9, 116-

122.) The first invoice showed that Wittenberg owed Labcorp a

total of $335 for the first set of tests, as opposed to the $44.60

estimate disclosed on the Patient Acknowledgment. (Id. ¶¶ 8-9,

117-18.) The second invoice showed that she owed a total of $650

for the second set of tests, as opposed to the $65.27 Patient

Acknowledgement estimate. (Id. ¶¶ 8-9, 119-120.) Wittenberg has

since paid Labcorp only the health plan allowed rate stated on the

Patient Acknowledgment, plus “$140 towards the [outstanding] cost

of each bill.” (Id. ¶ 10.) She has otherwise refused to pay the

patient list prices “absent an appropriate settlement of her

claim.” (Id.)

On December 29, 2021, Plaintiffs Nolan and Wittenberg filed

the present putative class action. In Count I, Nolan alleges that

Labcorp has engaged in unfair or deceptive trade practices by

improperly billing for lab testing services in violation of the

Nevada Deceptive Trade Practices Act (“NDTPA”), Nev. Rev. Stat.

§ 598.0903 et seq. (Id. ¶¶ 153-59.) In Count II, Wittenberg

alleges that Labcorp has engaged in “unfair methods of competition,

unconscionable acts or practices, and unfair or deceptive acts or

practices” in violation of the Florida Deceptive and Unfair Trade

Practices Act (“FDUTPA”), Fla. Stat. Ann. § 501.201, et seq. (Id.

¶¶ 160-66.) Nolan, a resident of Nevada, and Wittenberg, a

resident of Florida, seek to certify a class of all persons

residing in each state who signed a Patient Acknowledgment

disclosing the “Estimated Charges” for lab services but were billed

a patient list price that exceeded the disclosed health plan

allowed rate for those services. (Id. ¶¶ 142, 153-59, 160-66.)

Labcorp now moves to dismiss the complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6), largely on the basis that there

“is nothing misleading, false, deceptive, or unfair” about the

Patient Acknowledgment because, by its explicit terms, it merely

provides an estimate “assuming that all services will be covered

by the patient’s health plan.” (Doc. 11 at 1-2.) Plaintiffs argue

in response that Labcorp’s use of the Patient Acknowledgment is

deceptive because Labcorp knows that its patients might owe higher

list prices but “makes a conscious decision not to disclose them.”

(Doc. 13 at 10).

II. ANALYSIS

A. Standard of Review

Federal Rule of Civil Procedure 8(a)(2) provides that a

complaint must contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P.

(8)(a)(2). Under Federal Rule of Civil Procedure 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when

the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the

misconduct alleged.” Id.

A motion to dismiss under Rule 12(b)(6) is meant only to

“test[] the sufficiency of a complaint” and not to “resolve

contests surrounding the facts, the merits of a claim, or the

applicability of defenses.” Republican Party of N.C. v. Martin,

980 F.2d 943, 952 (4th Cir. 1992). Thus, in considering a Rule

12(b)(6) motion, a court “must accept as true all of the factual

allegations contained in the complaint,” Erickson v. Pardus, 551

U.S. 89, 94 (2007) (per curiam), and all reasonable inferences

must be drawn in the plaintiff’s favor. Ibarra v. United States,

120 F.3d 472, 474 (4th Cir. 1997).

“Rule 12(b)(6) protects against meritless litigation by

requiring sufficient factual allegation ‘to raise a right to relief

above the speculative level’ so as to ‘nudge[] the[] claims across

the line from conceivable to plausible.’” Sauers v. Winston-

Salem/Forsyth Cty. Bd. Of Educ., 179 F. Supp. 3d 544, 550 (M.D.N.C.

2016) (alterations in original) (quoting Twombly, 550 U.S. at 555).

“[T]he complaint must ‘state[] a plausible claim for relief’ that

‘permit[s] the court to infer more than the mere possibility of

misconduct’ based upon ‘its judicial experience and common

sense.’” Coleman v. Md. Ct. App., 626 F.3d 187, 190 (4th Cir.

2010) (alterations in original) (quoting Iqbal, 556 U.S. at 679).

As such, mere legal conclusions are not accepted as true, and

“[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal,

556 U.S. at 678.

In ruling on a Rule 12(b)(6) motion, “a court evaluates the

complaint in its entirety, as well as documents attached or

incorporated into the complaint.” E.I. du Pont de Nemours & Co.

v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). The

court may also consider documents “attached to the motion to

dismiss, so long as they are integral to the complaint and

authentic.” Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180

(4th Cir. 2009). Generally, a “court cannot go beyond these

documents” without “convert[ing] the motion into one for summary

judgment,” an action from which courts should refrain “where the

parties have not had an opportunity for reasonable discovery.”

E.I. du Pont, 637 F.3d at 448.

B. Nevada Deceptive Trade Practices Act Claim

In Count I of the complaint, Plaintiff Nolan alleges that

Labcorp has violated the NDTPA. (Doc. 1. ¶¶ 153-59.) The NDTPA

authorizes an action “by any person who is a victim of consumer

fraud.” Nev. Rev. Stat. § 41.600(1). To state a claim, a plaintiff

must establish: (1) “an act of consumer fraud by the defendant,”

(2) causation, and (3) damages. Bertsch v. Discover Financial

Services, No. 2:18-cv-00290-GMN, 2020 WL 1170212, at *5 (D. Nev.

Mar. 11, 2020); Switch, Ltd. v. Uptime Inst., LLC, 426 F. Supp. 3d

636, 643 (D. Nev. 2019); Picus v. Wal-Mart Stores, Inc., 256 F.R.D.

651, 657–58 (D. Nev. 2009) (noting Nevada Supreme Court has not

specified the elements of a NDTPA claim and predicting how the

court would rule). As used in § 41.600, actionable “consumer

fraud” includes any “deceptive trade practice as defined in NRS

598.0915 to NRS 598.0925, inclusive.” Nev. Rev. Stat.

§ 41.600(2)(e); see Bertsch, 2020 WL 1170212, at *5 (D. Nev. Mar.

11, 2020).

Section 598 defines a deceptive trade practice to include:

(1) “mak[ing] false or misleading statements of fact concerning

the price of goods or services for sale or lease, or the reasons

for, existence of or amounts of price reductions” pursuant to Nev.

Rev. Stat. § 598.0915(13); (2) “knowingly mak[ing] any other false

representation in a transaction” pursuant to Nev. Rev. Stat.

§ 598.0915(15); and (3) “knowingly . . . fail[ing] to disclose a

material fact in connection with the sale or lease of goods or

services” pursuant to Nev. Rev. Stat. § 598.0923(1)(b). It is

also a deceptive trade practice when, “in the course of his or her

business”, a person “knowingly . . . [u]ses coercion, duress, or

intimidation in a transaction” pursuant to § 598.0923(1)(d), or

“knowingly . . . [u]ses an unconscionable practice in a

transaction” pursuant to § 598.0923(1)(e). Finally, the elements

of an NDTPA claim must be pleaded with particularity pursuant to

Federal Rule of Civil Procedure 9(b). Switch, 426 F. Supp. 3d at

643; see also Horner v. Mortgage Elec. Registration Sys., 711 F.

App'x 817, 818 (9th Cir. 2017). In his complaint, Nolan alleges

that Labcorp’s use of the Patient Acknowledgment and subsequent

debt collection efforts violate § 41.600 and provisions in § 598

of the NDTPA. (Doc. 1 ¶ 153-59.)

Labcorp argues that under any of these provisions Nolan’s

claims fail as a matter of law. First, it argues that Nolan cannot

state a claim under the NDTPA because “nothing in the Patient

Acknowledgment is false or misleading,” nor “is a reasonable

consumer likely to be detrimentally misled by anything it says.”

(Doc. 11 at 12-14.) Second, it argues that Nolan has failed to

“allege[] facts establishing causation” because the alleged injury

was caused by his own “apparent assumption that . . . the amount

[he] would owe would be limited to” the amount provided on the

Patient Acknowledgment. (Id. at 16-17.) And third, it argues

that Nolan’s allegations “do not meet the heightened particularity

required by Rule 9(b).” (Id. at 17.)

1. Claims Pursuant to §§ 598.0915(13) and (15)

First, Nolan contends that Labcorp’s Patient Acknowledgment

form affirmatively misleads consumers pursuant §§ 598.0915(13) and

(15). “For a plaintiff to recover based on consumer fraud under

the Deceptive Trade Practices Act, a plaintiff must . . . allege

that they reasonably relied on the alleged misrepresentation where

it is an affirmative misrepresentation rather than a failure to

disclose.” Sylver v. Exec. Jet Mgmt., Inc., No. 2:10-CV-01028,

2011 WL 9329, at *3 (D. Nev. Jan. 3, 2011) (citing Picus, 256

F.R.D. at 657–58); Heath v. Tristar Prod., Inc., No. 2:17-CV-2869-

GMN-BNW, 2019 WL 4738004, at *10 (D. Nev. Sept. 27, 2019) (“To

support a claim under the NDTPA, Plaintiff must prove that she

reasonably relied on misrepresentations or false statements made

by Defendant.”)

Here, as Labcorp correctly points out, the Patient

Acknowledgement “discloses to Plaintiffs exactly what it says it

discloses: the estimated out-of-pocket charges a patient will

incur for testing if that service is covered by the patient’s

insurance.” (Doc. 11 at 13 (emphasis in original).) Put

differently, the Patient Acknowledgment explicitly states that the

“health plan allowed rate” provides only an estimate based on the

assumption that insurance will cover the lab tests. By definition,

the “health plan allowed rate” indicates it is the most the insurer

allows the provider to charge for each enumerated test if there is

coverage. Accordingly, the average consumer who claims to have

insurance should understand as much, and Nolan could not have

reasonably relied on the Patient Acknowledgment as anything other

than an estimate of his costs if there were insurance coverage.

See Sylver, 2011 WL 9329, at *3 (dismissing NDTPA claim because

plaintiffs could not have reasonably relied on a quote to receive

a Gulfstream when the contract expressly stated that type of

chartered aircraft could change); Docena v. Navy Fed. Credit Union,

No. 3:15-CV-00184-LRH-WGC, 2016 WL 53826, at *4 (D. Nev. Jan. 4,

2016) (citation omitted) (dismissing NDTPA claim because “a

reasonable consumer would have been put on notice simply by doing

sufficient reading”); accord Freeman v. Time, Inc., 68 F.3d 285,

289 (9th Cir. 1995)(affirming dismissal of unfair competition

claim under California law because the allegedly misleading letter

clearly and inconspicuously stated the conditions plaintiff must

meet in order to qualify for the prize money).

That Nolan might not have personally read or understood the

disclosure - which he signed - is immaterial. “[A] consumer cannot

decline to read clear and easily understandable terms that are

provided on the same [page] in close proximity to the location

where the consumer indicates his agreement to those terms and then

claim that the [document], which the consumer has failed to read,

is deceptive.” Bott v. VistaPrint USA, Inc., 392 F. App'x 327,

327–28 (5th Cir. 2010) (citation omitted); Hager v. Vertrue, Inc.,

No. CIV.A. 09-11245-GAO, 2011 WL 4501046, at *6 (D. Mass. Sept.

28, 2011) (dismissing unfair competition claim under Massachusetts

law because the plaintiff, “[h]aving failed to read the materials

the defendants provided (even fairly casually),” could “not now

show the necessary connection between the allegedly deceptive

materials and her mistaken enrollment such that the defendants

would be responsible for the asserted harm.”) In Nevada, “[i]t

has long been the common law rule that signing a document

authenticates and adopts the words it contains, even if there was

a lack of subjective understanding of the words or their legal

effect.” In re Schwalb, 347 B.R. 726, 743 (Bankr. D. Nev. 2006)

(citing Campanelli v. Conservas Altamira, S.A., 477 P.2d 870, 872

(Nev. 1970)). “In essence, people are presumed to be bound by

what they sign.” Id.

Nolan also contends that by stating that a patient’s costs

“may be different,” the Patient Acknowledgment affirmatively

“misrepresents the truth in two ways.”3 (Doc. 13 at 16.) First,

Nolan argues that this statement is affirmatively misleading

because “it misrepresents the price change as being less than

certain by using the term ‘may’ instead of ‘will,’” (id.) even

though Labcorp knows that the price will be “many times higher

than the amount quoted for covered services” in the event of non-

coverage. (Doc. 13 at 16-17.) Second, Nolan argues that the

phrase “may be different than the estimated amount” misrepresents

“that the change may be higher or lower than” the health plan

allowed rate, when Labcorp knows that the amount to be charged

will be higher without insurance coverage. (Id.)

Neither of these arguments is persuasive. As Labcorp

correctly states in its reply, “[t]he sentence at issue asks

patients to acknowledge their understanding that, for a number of

stated reasons, the ultimate amount they may owe may not be the

same as – and thus ‘different’ than - the estimated insurance-

related charges.” (Doc. 15 at 4.) In other words, this sentence

simply acknowledges the “uncertainty inherent in the estimate

provided.” (Id. at 3.)

Moreover, the phrase “may be different” must be read in the

context of the Patient Acknowledgement as a whole in evaluating

whether a reasonable consumer is likely to be deceived. See

3 In relevant part, the specific sentence reads: “The amount I may have

to pay may be different than the estimated amount.” (Doc. 1-1 at 2.)

Freeman, 68 F.3d at 290 (evaluating allegedly deceptive statements

under reasonable person standard and noting that “[a]ny ambiguity

that [plaintiff] would read into any particular statement is

dispelled by the promotion as a whole”); Davis v. G.N. Mortg.

Corp., 396 F.3d 869, 884 (7th Cir. 2005) (citations omitted) (under

Illinois Consumer Fraud Act, the “allegedly deceptive act must be

looked upon in light of the totality of the information made

available to the plaintiff.”) Viewed holistically, the Patient

Acknowledgement purports to be nothing other than a conditional

estimate. Page one unambiguously states: “This estimate assumes

all services will be covered,” meaning that it is the estimate of

patient costs assuming all tests are covered by the patient’s

insurer. (See, e.g., Doc. 1-1 at 1.) This disclosure is repeated

on page two under the heading: “ACKNOWLEDGEMENT OF ESTIMATED

FINANCIAL RESPONSIBILITY.” (Id. at 2.) Page one, moreover, makes

clear that the “Health Plan Allowed Rate” is the rate the insurer

is permitted to charge, and thus the patient may owe out-of-pocket,

if the services are covered. (Id. at 1.) Thus, the “Estimated

Responsibility” noted on page two is merely the total of the

estimates provided on page one, less any deductible or co-insurance

allowance, if the insurer covers the tests. (Id.) For Nolan to

have assumed that he would be charged the “Health Plan Allowed

Rate” even if the charges were not covered by his insurance is not

a reasonable assumption based on a fair reading of the form.

Similarly, there is no reasonable basis for any inference

that the patient would ever owe anything less than the Estimated

Responsibility amount if his health insurance did not cover each

test. The form explains why certain services might not be covered

by health insurance: because, for instance, they “may be considered

investigational, require prior authorization, [or] are excluded or

otherwise not covered by your health plan.” (Id.) Additionally,

the final sentence reads, “I agree to be personally and fully

responsible for the charges from today’s services that are not

covered by my health plan.” (Id.) Thus, the totality of the

information available on the form dispels any basis for Nolan’s

claim that the form has a tendency to deceive. Accordingly,

Nolan’s allegations based on §§ 598.0915(13) and (15) fail to state

a claim on which relief may be granted.

2. Claim Pursuant to § 598.0923(1)(b)

Next, Nolan alleges that Labcorp’s “fail[ure] to disclose to

patients the patient list price that patients would be required to

pay if insurance denies coverage” (Doc. 1 ¶ 156) violates

§ 598.0923(1)(b), which makes it a deceptive trade practice to

“knowingly . . . fail[] to disclose a material fact in connection

with the sale or lease of goods or services.” In its reply brief,

Labcorp argues that because Nolan failed to allege this specific

provision of the NDTPA in the complaint (and instead merely alleges

a general violation of Chapter 598), he should be precluded from

relying on that section now. (See Doc. 15 at 5.)

Labcorp is correct that the complaint does not specifically

allege a violation of § 598.0923(1)(b). And to be sure, a

complaint may not be amended by a brief in opposition to a motion

to dismiss. See S. Walk at Broadlands Homeowner's Ass'n, Inc. v.

OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013).

This rule stems from the requirement that the “complaint . . .

give the defendant fair notice of what the claim is and the grounds

upon which it rests.” E.I. du Pont, 637 F.3d at 440. Here,

although Nolan does not specify § 598.0923(1)(b) in the complaint,

he does allege “violations of 598.0903, et seq.” (See Doc. 1 at

41.) Moreover, the complaint clearly alleges Labcorp’s “fail[ure]

to disclose to patients the patient list price” alongside the

health plan allowed rate as the primary theory of liability. (See

Doc. 1 ¶ 156; see also id. ¶¶ 3, 128.) Furthermore, the “failure

to disclose” allegations of the complaint track the text of

§ 598.0923(1)(b) itself, which makes it a deceptive trade practice

to “knowingly . . . fail to disclose” certain material facts. That

Labcorp acknowledged (and fully briefed) this self-described

“deception-by-omission theory” (Doc. 11 at 14-15), further belies

any argument that it lacked fair notice of the claim and the

grounds upon which it rested. E.I. du Pont, 637 F.3d at 440; see

also (Doc. 11 at 2) (Labcorp characterizing Nolan’s “claim” as

resting on the fact that the Patient Acknowledgment “does not

disclose the specific amount a patient might pay if their test is

not covered by his or her health plan.”) Accordingly, the

allegations were sufficient to give Labcorp notice of the provision

of the law it allegedly violated, § 598.0923(1)(b).4

Turning to the claim itself, this federal court sitting in

diversity and applying Nevada law is obliged to apply the

jurisprudence of Nevada’s highest court, the Supreme Court of

Nevada. See Private Mortg. Inv. Servs., Inc. v. Hotel & Club

Assocs., Inc., 296 F.3d 308, 312 (4th Cir. 2002). When that court

has not spoken directly on an issue, this court must “predict how

that court would rule if presented with the issue.” Id. The

decisions of the Nevada Court of Appeals are the “next best

indicia” of what Nevada’s law is, though its decisions “may be

disregarded if the federal court is convinced by other persuasive

data that the highest court of the state would decide otherwise.”

Id. (quoting Liberty Mut. Ins. Co. v. Triangle Indus., Inc., 957

F.2d 1153, 1156 (4th Cir. 1992)). In predicting how the highest

court of a state would address an issue, however, this court

4 Alternatively, because this alleged deficiency is easily correctible

by amendment, the parties have briefed the issue, and to conserve

judicial and party resources, the court would reach the same conclusion

and exercise its discretion to determine whether the complaint states a

claim under § 598.0923(1)(b). See Poindexter v. Stuteville, No. CIV-

12-0031-F, 2012 WL 13035041, at *4 (W.D. Okla. May 10, 2012) (electing

to address whether the allegations stated a claim under § 1962(c) despite

complaint’s failure to specify which subsection of § 1962 defendant

allegedly violated because the issue was fully briefed and deciding it

would conserve resources).

“should not create or expand a [s]tate's public policy.” Time

Warner Entm't-Advance/Newhouse P'ship v. Carteret-Craven Elec.

Membership Corp., 506 F.3d 304, 314 (4th Cir. 2007) (alteration

and quotation omitted). Moreover, “absent a strong countervailing

federal interest,” a federal court should not interject itself

into a controversy to render what may be an “uncertain and

ephemeral interpretation of state law.” Id.; see Burris Chem.,

Inc. v. USX Corp., 10 F.3d 243, 247 (4th Cir. 1993) (noting that

federal courts adjudicating issues of state law “rule upon state

law as it exists and do not surmise or suggest its expansion”).

Here, the parties have not identified a case to support a

duty to disclose price to a customer under Nevada law. Labcorp

cites Mallory v. McCarthy & Holthus, LLP, No. 2:14-CV-00396-KJD,

2015 WL 2185413, at *3 (D. Nev. May 11, 2015), which dismissed

NDTPA claims because plaintiff did “not identify how Defendant is

bound, under Nevada law, to disclose the information” allegedly

omitted. However, those claims were brought under § 598.0915(15),

which addresses affirmative representations. A similar result

appears in MST Management, LLC v. Chicago Doughnut Franchise Co.,

LLC, 584 F. Supp. 3d 923, 933 (D. Nev. 2022), which dismissed NDTPA

claims based on “alleged omissions” on the grounds that the

plaintiff failed to identify or argue the existence of a duty to

disclose under “the DTPA, other state law, or the contracts between

the parties,” but permitted plaintiffs’ affirmative

misrepresentation claims to proceed. While not apparent in the

court’s opinion, the parties’ briefs indicate that the plaintiffs’

claims were brought pursuant to §§ 598.0915(5), (7), and (15),

which all address affirmative representations. These cases are

therefore not on point.

Nolan relies heavily on Poole v. Nevada Auto Dealership

Investments, LLC, 449 P.3d 479 (Nev. App. 2019). In Poole, the

plaintiff purchased a certified pre-owned truck from the

defendant-dealer. Id. at 481. Before purchasing the truck, the

plaintiff asked about the truck's accident history and was told it

had been in a “minor” accident. Id. He was also told that the

defendant “would not sell the truck were the collision

significant.” Id. Two years later, when attempting to refinance

the truck loan, the plaintiff learned that the truck had in fact

been in a major accident resulting in significant damage, thereby

“significantly” affecting the value of the truck. Id. at 481-82.

The plaintiff sued for “failing to disclose a material fact” under

§ 598.0923(2) of the NDTPA, the substantively identical

predecessor to § 598.0923(1)(b). On appeal, the Nevada Court of

Appeals held that the plaintiff had presented sufficient evidence

to create a factual dispute and reversed the lower court’s grant

of summary judgment. Id. at 490-91.

While the court of appeals analyzed Poole’s claim under the

rubric of nondisclosure, see id. at 488 (characterizing

defendant’s failure as not disclosing “the extent of the damage”

to the car), plaintiff’s claim clearly rested on the defendant’s

prior affirmative misrepresentation. As the Nevada Court of

Appeals recounted, plaintiff’s evidence (viewed in the light most

favorable to him at the summary judgment stage) established that

the defendant auto-dealer affirmatively misled the plaintiff about

the truck’s condition when its employee lied to him: when asked

about the car’s previous collision, the salesperson “assured

[Poole] that the collision was only minor,” when in fact that

salesperson knew that the prior collision “had damaged the truck’s

frame and significantly reduced its value.” Id. at 481. Poole is

therefore distinguishable, as its holding relied on an affirmative

misrepresentation.

The court’s own analysis reveals one federal case

interpreting Nevada law that denied a motion to dismiss a claim

under § 598.0923(1)(b) where the defendant argued that the statute

requires an affirmative duty to disclose. In Smallman v. MGM

Resorts International, No. 220CV00376GMNEJY, 2022 WL 16636958, at

*12 (D. Nev. Nov. 2, 2022), plaintiffs brought a claim under

§ 598.0923(1)(b) against the defendant hotel alleging a failure to

disclose its allegedly deficient data security practices and

likelihood of being a frequent target of sophisticated

cyberattacks. The federal court distinguished another Nevada

district court decision, Soffer v. Five Mile Capital Partners,

LLC, No. 12-CV-1407, 2013 WL 638832, at *10 (D. Nev. Feb. 19,

2013), cited by the defendant, which observed that, under Nevada

law, common law fraud by omission requires an affirmative duty to

disclose. Id.5 The Smallman court also noted the Nevada Supreme

Court’s general statement that “[s]tatutory offenses that sound in

fraud are separate and distinct from common law fraud.” Id.

(quoting Leigh-Pink v. Rio Properties, LLC, 512 P.3d 322, 328 (Nev.

2022)).6 Based on these two observations, the Smallman court

concluded that the defendant “has not shown that fraud by omission

5 See, e.g., Dow Chem. Co. v. Mahlum, 970 P.2d 98, 110 (Nev. 1998) (common

law fraud requires duty to disclose), abrogated on other grounds by GES,

Inc., v. Corbitt, 21 P.3d 11 (Nev. 2001). Nevada’s common law on duty

to disclose in omission cases is consistent with the law of other

jurisdictions. See, e.g., Chiarella v. United States, 445 U.S. 222, 228

(1980) (noting that at common law, fraud doctrine did not impose a duty

to disclose in the absence of a fiduciary or other similar relation of

trust and confidence); Eller v. EquiTrust Life Ins. Co., 778 F.3d 1089,

1092 (9th Cir. 2015) (noting “the settled premise that a seller generally

has no duty to disclose internal pricing policies or its method for

valuing what it sells”); Langford v. Rite Aid of Alabama, Inc., 231 F.3d

1308, 1313–14 (11th Cir. 2000) (rejecting claim that federal law obliges

retailers to disclose pricing structure to consumers); Bonilla v. Volvo

Car Corp., 150 F.3d 62, 71 (1st Cir. 1998) (also finding that federal

law imposes no obligation on retailers to disclose their pricing

structure to consumers, and rejecting fraud claim based on contention

that car buyers would not have paid for accessories had they known the

seller’s mark-up was so high and the accessories so minor).

6 Leigh-Pink involved a damages question, not a duty to disclose. The

Nevada Supreme Court went on to state that “statutes should be

interpreted consistently with the common law,” and noted that its

interpretation of Nev. Rev. Stat. § 41.600(3) in that case had the

“salutary purpose of coupling the statutory consumer fraud understanding

of damages with this court’s determination of damages at common law.”

512 P.3d at 328 (quoting in part Samantar v. Yousuf, 560 U.S. 305, 320

(2010)). The Leigh-Pink court concluded that while the NDTPA should be

construed liberally to accord with its remedial purposes, “such a liberal

construction must be faithful to the first principles of statutory

interpretation” requiring application of the plain language of the

statute “in accord with the term’s definition at common law.” Id.

under NRS § 598.0923(1)(b) requires an affirmative duty to

disclose.” Id.

Other states with similar, but perhaps not identical,

statutes differ as to whether a duty to disclose is required for

a statutory omission claim. For example, Arizona courts are split

on whether a duty to disclose is required. Compare Tavilla v.

Cephalon, Inc., 870 F. Supp. 2d 759, 776 (D. Ariz. 2012) (citations

omitted) (“Generally stated, claims under the [Arizona Consumer

Fraud Act], like common law fraud claims, can be based on . .

. omission of material facts,” but “[t]o the extent that

‘omission’ suggests that mere silence as to material facts may be

actionable without a duty to disclose, the Arizona Court of Appeals

has rejected this interpretation.”) and Loomis v. U.S. Bank Home

Mortg., 912 F. Supp. 2d 848, 857 (D. Ariz. 2012) (same); with

Cheatham v. ADT Corp., 161 F. Supp. 3d 815, 830 (D. Ariz. 2016)

(arguing that Loomis “misapprehended Arizona law” and ignored the

Arizona Supreme Court’s decision in State ex rel. Horne v.

AutoZone, Inc., 275 P.3d 1278, 1281 (Ariz. 2012)).7 Michigan

7 Ariz. Rev. Stat. Ann. § 44-1522 provides:

The act, use or employment by any person of any deception,

deceptive or unfair act or practice, fraud, false pretense,

false promise, misrepresentation, or concealment, suppression

or omission of any material fact with intent that others rely

on such concealment, suppression or omission, in connection

with the sale or advertisement of any merchandise whether or

not any person has in fact been misled, deceived or damaged

thereby, is declared to be an unlawful practice.

courts appear to require a duty to disclose. See, e.g., Hendricks

v. DSW Shoe Warehouse Inc., 444 F. Supp. 2d 775, 782 (W.D. Mich.

2006) (interpreting the Michigan Consumer Protection Act, which

proscribes “[f]ailing to reveal a material fact, the omission of

which tends to mislead or deceive the consumer,” and concluding

that Michigan courts would not recognize a claim under this

provision for an omission “in the absence of a duty of

disclosure”).8 Kansas courts similarly appear to require a duty

to disclose. See, e.g., Williamson v. Amrani, 152 P.3d 60, 73

(Kan. 2007) (concluding that in order for failure to disclose a

material fact to constitute a deceptive act under the Kansas

Consumer Protection Act,9 “there must be a duty to disclose the

fact”), superseded by statute on other grounds, Kan. Stat. Ann.

§ 50-635(b), as recognized in Kelly v. VinZant, 197 P.3d 803, 811

(Kan. 2008); Nieberding v. Barrette Outdoor Living, Inc., 302

F.R.D. 600, 614 (D. Kan. 2014) (“To make a willful omission claim

under § 50-626(b)(3)” the “[p]laintiff also must show that

defendants had a duty to disclose the material fact.”). New

8 The Michigan Consumer Protection Act, Mich. Comp. Laws Ann. § 445.903,

defines unfair or deceptive acts to include “[f]ailing to reveal a

material fact, the omission of which tends to mislead or deceive the

consumer, and which fact could not be known by the consumer.”

9 Kan. Stat. Ann. § 50–626(b)(3) defines deceptive acts and practices to

include “the willful failure to state a material fact, or the willful

concealment, suppression or omission of a material fact.”

Mexico, by contrast, may not require an independent duty to

disclose. See, e.g., Smoot v. Physicians Life Ins. Co., 87 P.3d

545, 549 (N.M. Ct. App. 2003) (holding that N.M. Stat. Ann. § 57-

12-2(D)(14) “imposes a duty to disclose material facts reasonably

necessary to prevent any statements from being misleading”).10

Based on the limited authority provided, it is not clear how

the Nevada Supreme Court would interpret the duty to disclose in

the present case, where an accurate estimated price was in fact

disclosed based on a representation and assumption that the

patient/customer had insurance coverage. Even assuming

§ 598.0923(1)(b) imposes a duty to disclose of some form, however,

this federal court sitting in the Middle District of North Carolina

declines to presume that the Nevada Supreme Court would extend the

statute to the claim in this case. Time Warner Ent.-

Advance/Newhouse P'ship, 506 F.3d at 314 (noting federal court

sitting in diversity should not “elbow its way” into a controversy

that might create or expand a state’s public policy); see Bauer v.

Charter Sch. USA, Inc., No. 5:21-CV-492-FL, 2022 WL 2721339, at *3

(E.D.N.C. July 13, 2022) (same). Nolan’s claim is predicated on

his representations to Labcorp that he had insurance for his

testing and the identity of his insurer. The Patient

10 N.M. Stat. Ann. § 57-12-2(D)(14) includes within its definition of

unfair trade practices “failing to state a material fact if doing so

deceives or intends to deceive.”

Acknowledgement is a response to that request, and thus discloses

the estimated prices he may be charged should his representations

be correct and should the tests be covered by his insurance -

contingencies that are disclosed in the Patient Acknowledgement.

Nolan does not allege that the estimated prices are misleading if

the tests are in fact covered by his insurance; put differently,

there is no allegation that Labcorp failed to disclose the proper

price based on Nolan’s representations. Nowhere does Labcorp

represent that the tests will in fact be covered, nor does Nolan

represent that Labcorp knows that the test will not be covered.

Other prices could apply depending on, among other factors, how

much the insurance company later deems covered and what insurance

benefits the patient has purchased (including whether the service

is in-network). To hold that under these circumstances - where a

customer/patient represents he has insurance - a provider must

disclose the possible list price would, by implication, subject

the provider to liability for not disclosing all other possible

prices and impose a heavy burden on service providers that it would

seem the law has heretofore not contemplated.11 Accordingly,

11 It is well-established, for instance, that in the context of providing

for health care services “precision concerning price is close to

impossible.” Allen v. Clarian Health Partners, Inc., 980 N.E.2d 306,

310 (Ind. 2012); see Nygaard v. Sioux Valley Hosps. & Health Sys., 731

N.W.2d 184, 193 (N.D. 2007) (noting that “in a hospital setting, it is

not possible to know at the outset what the cost of the treatment will

be”); Shelton v. Duke Univ. Health Sys., Inc., 633 S.E.2d 113, 116 (N.C.

Ct. App. 2006) (“Inherent in providing medical care and treatment is the

Nolan’s reliance on § 598.0923(1)(b) is unavailing.

3. Claims Pursuant to §§ 598.0923(1)(d) and (e)

Nolan next claims that Labcorp’s debt collection practices

were coercive in violation of Nev. Rev. Stat. § 598.0923(1)(d).

He concedes that it is not “inherently coercive” to report unpaid

debts to credit bureaus or collection agencies. (Doc. 13 at 18.)

He argues, however, that Labcorp’s practice of using “non-physical

threats to compel compliance with its wrongful demand that he pay

its inflated PLP for the Vitamin D test” violated the statute.

(Id.) Labcorp responds that Nolan has failed to plead a claim

under § 598.0923(1)(d) in the complaint and raised this claim for

the first time in his response brief. (Doc. 15 at 9-12.) Labcorp

also argues that it cannot be coercive or wrongful to seek

collection of the list price. (Id. at 12.)

The statute provides that a person engages in a deceptive

trade practice when “in the course of his or her business he or

element of the unforeseen.”). For this reason, courts have routinely

rejected the argument that healthcare contracts that fail to specify

price upfront are unenforceable. See DiCarlo v. St. Mary Hosp., 530

F.3d 255, 264 (3d Cir. 2008)(“Besides handing the patient an inches-high

stack of papers detailing the hospital's charges for each and every

conceivable service, which he or she could not possibly read and

understand before agreeing to treatment, the form contract [explaining

that the price term is “all charges”] employed by [defendant] is the

only way to communicate to a patient the nature of his or her financial

obligations to the hospital.”); Allen, 908 N.E.2d at 309-311 (collecting

cases); Pitell v. King Cnty. Pub. Hosp. Dist. No. 2, 423 P.3d 900, 902

(Wash. Ct. App. 2018) (collecting cases); Mark A. Hall and Carl E.

Schneider, Patients as Consumers: Courts, Contracts, and the New Medical

Marketplace, 106 Mich. L. Rev. 643, 674 (2008) (explaining that “courts

have generally tolerated low levels of specificity in medical

contracts”).

she knowingly . . . [u]ses coercion, duress or intimidation in a

transaction.” Nev. Rev. Stat. § 598.0923(1)(d). It is true that

while the complaint contained allegations referencing Labcorp’s

collection efforts, Nolan’s articulation of this claim arose for

the first time in his response brief; Count I of the complaint

contains no reference to any specific alleged statutory violation.

As one federal district court in Nevada has explained, “[m]erely

alleging a general violation of Chapter 598 is insufficient to

give the defendants notice of the prohibited conduct they engaged

in or the provisions they allegedly violated.” Laforge v. Richland

Holdings, Inc., No. 2:17-CV-00782, 2018 WL 525298, at *8 (D. Nev.

Jan. 23, 2018) (noting that “Chapter 598 contains ten sections,

each defining a separate set of deceptive practices,” and “[e]ach

of those sections further enumerates categories of conduct, some

identifying as many as 16 sub-categories of prohibited acts”); see

Austin v. Allied Collection Servs., Inc., No. 221CV01593CDSNJK,

2023 WL 375988, at *5 (D. Nev. Jan. 23, 2023) (“But plaintiff is

required to, at the very least, cite which specific subsections of

the [NDTPA] she accuses the defendants of violating, to place the

defendants on notice.”) Nolan’s claim was therefore not properly

pleaded.

Nolan also raises an unconscionability claim pursuant to

§ 598.0923(1)(e). The court finds that this pleading was

defective. In his response brief, Nolan attempts to supplement

the allegations of the complaint by claiming that Labcorp’s

“actions after October 21, 2021, constitute the use of ‘an

unconscionable practice in a transaction.’” (Doc. 13 at 19

(quoting Nev. Rev. Stat. 598.0923(1)(e)). The complaint, however,

does not include any allegation involving conduct after October

2021. This is unsurprising, as that section of the statute was

not added by amendment until October 1, 2021, and therefore Labcorp

could not have violated it as to Nolan’s September 2018 interaction

with Labcorp. See Nev. Rev. Stat. Ann. § 598.0923 (West 2021)

(effective date October 1, 2021). Nolan argues, nevertheless and

in conclusory fashion, that the Patient Acknowledgement is

“unconscionable” because it facilitates Labcorp’s practice of

charging patients for tests at prices that grossly exceed their

market value. (Id.) A “proffered argument is not a pleaded

factual allegation.” Mack v. E. Carolina Univ., No. 4:21-CV-

00108-M, 2022 WL 945595, at *6 (E.D.N.C. Mar. 29, 2022). For these

reasons, the court will not consider Nolan’s contention that

Labcorp has violated § 598.0923(1)(e) as to him. See Car Carriers,

Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984) (“[I]t

is axiomatic that the complaint may not be amended by the briefs

in opposition to a motion to dismiss”). Accordingly, to the extent

Nolan contends he has such a claim, it will be dismissed without

prejudice.

4. Conclusion

In sum, Nolan’s complaint does not contain factual

allegations to support a plausible claim that Labcorp engaged in

a deceptive trade practice under the NDTPA. Accordingly, Count I

will be dismissed for failure to state a claim upon which relief

can be granted, except for Nolan’s argued claims based on

§§ 598.0923(1)(d) and (e), which will be dismissed without

prejudice.

C. Florida Deceptive and Unfair Trade Practices Act Claim

Pursuant to the FDUTPA, “[u]nfair methods of competition,

unconscionable acts or practices, and unfair or deceptive acts or

practices in the conduct of any trade or commerce are ...

unlawful.” Fla. Stat. § 501.204(1). The three elements of a

consumer claim under the FDUTPA are: “(1) a deceptive act or unfair

practice; (2) causation; and (3) actual damages.” Marrache v.

Bacardi U.S.A., Inc., 17 F.4th 1084, 1097–98 (11th Cir. 2021); see

also City First Mortg. Corp. v. Barton, 988 So. 2d 82, 86 (Fla.

Dist. Ct. App. 2008).

A deceptive act “occurs if there is a representation,

omission, or practice that is likely to mislead the consumer acting

reasonably in the circumstances, to the consumer's detriment.”

PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So.2d 773, 777 (Fla.

2003) (citation and internal quotation marks omitted). “An

objective test is used to determine whether an act is deceptive

under FDUTPA, and ‘the plaintiff must show that the alleged

practice was likely to deceive a consumer acting reasonably in the

same circumstances.’” Marrache, 17 F.4th at 1098 (quoting

Carriuolo v. Gen. Motors Co., 823 F.3d 977, 985–86 (11th Cir.

2016)). To establish an unfair practice, “the plaintiff must show

that it is ‘one that offends established public policy and one

that is immoral, unethical, oppressive, unscrupulous or

substantially injurious to consumers.’” Marrache, 17 F.4th at

1098 (quoting PNR, 842 So. 2d at 777). Whether the alleged facts

constitute a deceptive or unfair act is a question of law for the

court. See PNR, 842 So. 2d at 777 n.2 (stating that the relevant

question is whether plaintiff pleaded conduct that is “unfair or

deceptive as judged by controlling case law”); Casey v. Fla.

Coastal Sch. of L., Inc., No. 3:14-CV-1229-J-39PDB, 2015 WL

10096084, at *6 (M.D. Fla. Aug. 11, 2015), report and

recommendation adopted, No. 3:14-CV-01229, 2015 WL 10818746 (M.D.

Fla. Sept. 29, 2015) (“Whether an alleged act or practice is

deceptive or unfair may be decided as a matter of law”); Zambrano

v. Indian Creek Holding, LLC, No. 09-20453-CIV, 2009 WL 2365842,

at *1 (S.D. Fla. July 30, 2009) (same).12

12 Though neither party discusses them in their briefing, a few cases

contain language to the effect that whether an act is unfair or deceptive

is “generally” a question of fact. See, e.g., Gov't Emps. Ins. Co. v.

Glassco Inc., No. 8:19-CV-1950-KKM-JSS, 2021 WL 4391717, at *16 (M.D.

Fla. Sept. 24, 2021) (citing Suris v. Gilmore Liquidating, Inc., 651 So.

2d 1282, 1283 (Fla. Dist. Ct. App. 1995)); Siever v. BWGaskets, Inc.,

Plaintiff Wittenberg alleges that Labcorp’s use of the

Patient Acknowledgment is both deceptive and unfair. (Doc. 1

¶¶ 162-63.) In support of these claims, she argues that despite

its plain language, the Patient Acknowledgment is nonetheless

deceptive and unfair under the FDUTPA because Labcorp “knows and

fails to disclose that the amount it bills patients if insurance

does not cover the test is many multiples [more] than the disclosed

amount.” (Doc. 1 ¶ 3, 163; Doc. 13 at 25-26.) In other words,

Wittenberg’s theory is one of deception by omission: that Labcorp’s

failure to disclose the patient list price in conjunction with the

health plan allowed rate constituted a deceptive act or unfair

practice under Florida law.13 (Doc. 1 ¶¶ 114-15, 163; Doc. 13 at

18.)

It is unclear whether Wittenberg must establish an

independent duty to disclose on a FDUTPA claim based on an omission

669 F. Supp. 2d 1286, 1293 (M.D. Fla. 2009)) (same). A close reading

of Suris, on which these cases rely, clarifies this inference. In Suris,

the court reversed a directed verdict for the auto-dealer defendant

because the conduct alleged, if believed by a jury, could constitute a

FDUTPA claim. In other words, the court found that there was a factual

question as to whether the alleged conduct occurred, not whether the

conduct constituted an unfair and deceptive practice. Moreover, any

inference that the question of whether conduct falls under the FDUTPA

is a question of fact is dispelled by the Florida Supreme Court’s

observation that the FDUTPA “only reaches conduct that is unfair or

deceptive as judged by controlling case law.” PNR, 842 So. 2d at 777

n.2.

13 As noted, deception under the FDUTPA may be accomplished through

omissions “rather than outright false statements.” See Millennium

Commc'ns & Fulfillment, Inc. v. Office of Attorney Gen., Dep't of Legal

Affairs, State of Fla., 761 So.2d 1256, 1264 (Fla. Dist. Ct. App. 2000).

affirmatively used to mislead. See Virgilio v. Ryland Group, Inc.,

680 F.3d 1329, 1337-38 (11th Cir. 2012) (declining to decide

“whether or not a duty to disclose is an element of a FDUTPA claim”

based on an omission); Coffey v. WCW & Air, Inc., No. 3:17-CV-90-

MCR-CJK, 2018 WL 4154256, at *4 (N.D. Fla. Aug. 30, 2018) (noting

that it is undecided whether a duty to disclose is an element of

a FDUTPA claim based on an omission); compare Morris v. ADT Sec.

Servs., 580 F. Supp. 2d 1305, 1310 (S.D. Fla. 2008) (holding that

“a duty to disclose is not an element of FDUTPA”); with Parziale

v. HP, Inc., 445 F. Supp. 3d 435, 444 (N.D. Cal. 2020) (holding

the opposite).

However, even assuming a duty to disclose is not an element

of an FDUTPA claim based on an omission, Wittenberg has failed to

plausibly allege that the Patient Acknowledgment - taken as a whole

- “was likely to deceive a consumer acting reasonably in the same

circumstances.” Carriuolo, 823 F.3d at 983–84 (quoting State,

Office of the Att'y Gen. v. Commerce Comm. Leasing, LLC, 946 So.2d

1253, 1258 (Fla. Dist. Ct. App. 2007)). As noted in connection

with Nolan’s claim, by its terms the Patient Acknowledgement

provides an estimate of the rate charged “assum[ing] all services

will be covered” by the patient’s insurer. (Doc. 1-2 at 2.) There

are no assurances that health insurance will cover the tests, and

there are no assurances the estimate will be the ultimate amount

for which the patient is financially responsible. (Id.) To the

contrary, the Patient Acknowledgment explains that “the amount

[you] may have to pay may be different than the estimated amount.”

(Doc. 1-1 at 2; Doc. 1-2 at 2; Doc. 1-3 at 2), and it details why

certain services might not be covered by health insurance - they

“may be considered investigational, require prior authorization,

are excluded or otherwise not covered by your health plan.” (Id.)

By signing the Patient Acknowledgment, moreover, each patient

agrees “to be personally and fully responsible for charges from

today’s services that are not covered by your health plan.” (Id.)

This qualifying language is neither hidden nor unreadable; rather,

it appears immediately above the signature line that Wittenberg

was required to sign before she submitted to her lab tests. (Id.)

In light of these provisions, no reasonable consumer would

believe that the Patient Acknowledgement provided anything other

than a price estimate based on the assumption, presented by

Wittenberg, that she had health insurance, and that her health

insurance would cover each test. See Zlotnick v. Premier Sales

Grp., Inc., 480 F.3d 1281, 1285 (11th Cir. 2007) (holding that the

plaintiff failed to properly allege the elements of a FDUTPA claim

where the “express terms of the reservation agreement” undermined

the claim that the agreement was deceptive); Piescik v. CVS

Pharmacy, Inc., 576 F. Supp. 3d 1125, 1133 (S.D. Fla. 2021)

(dismissing FDUTPA claim for “fail[ing] to plead a deceptive act”

because a “reasonable consumer would not be expected to ignore”

the “accurate information” disclosed on the label); St. Francis

Holdings, LLC v. Pawnee Leasing Corp., No. 8:20-CV-1101-T-02, 2020

WL 6287684, at *6 (M.D. Fla. Oct. 27, 2020)(holding that the

defendant’s actions did “not amount to a deceptive or unfair trade

practice [pursuant to FDUTPA] because the terms of the agreement

were clear and Plaintiffs . . . voluntarily agreed to them”).

It is true that the Patient Acknowledgment does not disclose

the patient list price, or that the patient list price would likely

be higher than the health plan allowed rate. But the explicit

disclaimer that the amount due “may be different than the estimated

amount,” along with the admonition that the patient would be

“personally and fully responsible for charges from today’s

services that are not covered by your health plan,” is more than

sufficient to counter any potential misconception about the health

plan allowed rate disclosed on page one of the Patient

Acknowledgment. See Zlotnick, 480 F.3d at 1284 (holding that the

relevant standard “requires a showing of probable, not possible,

deception.”) For Wittenberg to now claim the Patient

Acknowledgement led her astray is unavailing, and she cannot

“reasonably claim that such clear and unambiguous statements were

deceiving.” Beale v. Biomet, Inc., 492 F. Supp. 2d 1360, 1374

(S.D. Fla. 2007). Accordingly, Wittenberg has not alleged

sufficient facts showing that Labcorp’s Patient Acknowledgement is

“likely to cause injury to a reasonable relying consumer,”

Zlotnick, 480 F.3d at 1284 (quoting Millennium Commc'ns &

Fulfillment, Inc. v. Office of the Att'y Gen., 761 So.2d 1256,

1263 (Fla. Dist. Ct. App. 2000)), and therefore has not plausibly

alleged the existence of a “deceptive act” under the FDUTPA.

Wittenberg’s contrary arguments are unconvincing.

Wittenberg primarily relies on State Farm Mut. Auto. Ins. Co. v.

At Home Auto Glass LLC, No. 8:21-CV-239-TPB-AEP, 2021 WL 6118102,

*1 (M.D. Fla. Dec. 27, 2021), which she contends establishes that

“[a]n allegation of ‘charging inflated prices not disclosed to the

customer’ is sufficient to state a claim under the Florida Act.”

(Doc. 13 at 17, 20 (quoting State Farm, 2021 WL 6118102 at *5).)

This reading of State Farm, however, is out of context. There,

unlike here, the defendant’s alleged practice of charging

customer’s undisclosed amounts resulted from a deliberate and

“orchestrated scheme” of affirmative acts which included

“falsifying information [in] its application to register as a

repair shop, concealing information about its business operations,

failing to provide customers with written estimates,

misrepresenting the nature of the repair charges and the hours

spent on repairs, and falsely telling the customer that the repairs

would be free or at no cost to them.” State Farm, 2021 WL 6118102

at *1, *6. Suffice it to say that no such allegations are made

here.

Wittenberg’s citation to Department of Legal Affairs v.

Father & Son Moving & Storage, Incorporated, 643 So.2d 22 (Fla.

Dist. Ct. App. 1994), is similarly unpersuasive. There, the

Florida District Court of Appeals simply held that a whether a

defendant violated a “specific rule or regulation is not necessary

to the determination of what constitutes an unfair or deceptive

practice” under the FDUTPA. (Id. at 24.) The court remanded the

case to the trial court to determine whether the defendant’s

actions could nevertheless constitute an unfair and deceptive

trade practice in the absence of an “administrative rule or

regulation specifying that the conduct of [the defendant] was

prohibited.” (Id. at 26.) In other words, the case merely

establishes that a plaintiff need not prove that a defendant

violated a statute or rule to state a claim under the FDUTPA.

Thus, contrary to Plaintiff’s assertions, Father & Son Moving fails

to establish that “Labcorp’s actions are similar to those that

have previously been held sufficient to state a claim under the

Florida Act.” (Doc. 13 at 17.)

Wittenberg has also failed to allege sufficient facts showing

that Labcorp’s use of the Patient Acknowledgment constitutes an

“unfair practice.” See PNR, 842 So. 2d 773, 777 (Fla. 2003)

(stating that under the FDUTPA, an unfair practice is “one that

offends established public policy and one that is immoral,

unethical, oppressive, unscrupulous or substantially injurious to

consumers.”) Nowhere does Wittenberg explain how the Patient

Acknowledgment violates established public policy. See Warren

Tech., Inc. v. UL LLC, No. 1:18-CV-21019-UU, 2018 WL 10550930, at

*11 (S.D. Fla. Oct. 31, 2018), aff'd, 962 F.3d 1324 (11th Cir.

2020) (dismissing FDUTPA claim where plaintiffs failed to explain

how defendant had violated established public policy). Nor has

Wittenberg alleged facts showing that Labcorp violated her rights

in an immoral, deceitful, or unscrupulous way. See Casa Dimitri

Corp. v. Invicta Watch Co. of Am., Inc., 270 F. Supp. 3d 1340,

1353 (S.D. Fla. 2017) (dismissing FDUTPA claim on this ground).

As with Nolan’s claim, Wittenberg’s claim is predicated on her

representations to Labcorp that she has insurance for her testing

and the name of the insurer. The Patient Acknowledgement

accurately discloses the estimated prices she may be charged should

her representations be correct and if the tests are covered by her

insurance. Wittenberg does not allege that the estimated prices

are incorrect if the tests are in fact covered by his insurance.

In this respect, Labcorp disclosed the proper price based on the

representations made by Wittenberg. Thus, Wittenberg has also

failed to plausibly allege the existence of an “unfair practice.”

For these reasons, Wittenberg has failed to state a claim

under the FDUTPA. Count II will therefore be dismissed with

prejudice.

III. CONCLUSION

For the reasons set forth above,

IT IS ORDERED that Defendant’s motion to dismiss (Doc. 10) is

GRANTED and that all claims are DISMISSED WITH PREJUDICE except

for those by Plaintiff Nolan based on alleged violations of Nev.

Rev. Stat. §§ 598.0923(1)(d) and (e), which are DISMISSED WITHOUT

PREJUDICE.

/s/ Thomas D. Schroeder

United States District Judge

February 13, 2023