Church Ekklasia Sozo, Inc. v. CVS Health Corporation

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:20-cv-382-MOC-DSC

CHURCH EKKLASIA SOZO, INC., )

et al., )

)

Plaintiffs, )

)

vs. )

)

CVS HEALTH CORPORATION, et al., ) ORDER

)

)

Defendants. )

___________________________________ )

THIS MATTER comes before the Court on Motion to Dismiss, filed by Defendants

CVS Health Corporation and CVS Pharmacy, Inc. (Doc. No. 17).

I. BACKGROUND

Plaintiffs filed this action on Complaint on July 14, 2020, bringing numerous claims

against Defendants CVS Health Corporation and CVS Pharmacy, Inc. after pharmacists at a CVS

retail store refused to fill prescriptions for Suboxone. Plaintiffs filed a First Amended Complaint

(FAC) on November 5, 2020. (Doc. No. 12). Plaintiffs in this action include Church Ekklasia

Sozo, Inc., Henry Emery, Jeffrey Bishop, Jane Doe, and John Goodyear.

As amended, Plaintiffs’ FAC asserts the following eleven claims: (1) failure to

accommodate in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., (2)

disability discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq.,

(3) discrimination in violation of the Affordable Care Act, 42 U.S.C. § 18116 et seq., (4)

discrimination through association in violation of the Americans with Disabilities Act, 42 U.S.C.

§ 12101 et seq., (5) false advertising in violation of the Lanham Act, 15 U.S.C. § 1125(a), (6)

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tortious interference with contract, (7) tortious interference with prospective economic

advantage, (8) defamation (per se and per quod), (9) unfair and deceptive trade practices, in

violation of N.C. GEN. STAT. § 75-1.1 et seq., and (10) breach of legal duty. On December 7,

2020, Defendants moved to dismiss the FAC. Plaintiffs have filed a response, Defendants have

filed a reply, and this Court held a hearing on the motion to dismiss on February 24, 2021. Thus,

this matter is ripe for disposition.

The following facts are taken from Plaintiffs’ FAC and are assumed true for purposes of

this motion:

Plaintiff Henry Emery is a medical doctor residing in North Carolina. (Compl. ¶ 2).

Plaintiff Jeffrey Bishop is a doctor of osteopathic medicine based in West Palm Beach, Florida.

(Id. ¶ 3). Plaintiff John Woodyear is a medical doctor who practices in Troy, North Carolina. (Id.

¶ 4). Emery and Bishop each practice medicine and prescribe controlled substances, through

Plaintiff Church Ekklasia Sozo (“CES,” and together with Emery, Bishop, and Woodyear, the

“CES Plaintiffs”), while Woodyear serves as CES’s medical director. (Id. ¶¶ 50–54).

CES runs a drug rehabilitation program for patients with opioid dependency. (Id. ¶ 38).

CES patients enroll for the program online and must sign certain online forms and view online

videos before starting the program. (Id. ¶ 44). The entire program is conducted online. CES’s

physicians do not meet personally with their patients; they consult with patients remotely

through telemedicine. (Id. ¶¶ 41–48). In their practice, CES’s physicians prescribe Suboxone,

among other medications. (Id. ¶ 40). Suboxone is a Schedule III controlled substance due to its

potential for abuse and physiological dependence.

Plaintiffs allege that on July 19, 2019, Plaintiff Doe (“Doe”) attempted to fill a

prescription for Suboxone written for her by Emery at a CVS Pharmacy store in Rutherfordton,

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North Carolina. (Id. ¶ 63). There, a CVS pharmacist declined to fill the prescription, stating she

did not recognize the prescribing doctor, she believed CES’s program was an “internet thing,”

and she believed the patient had not met personally with the prescribing doctor. (Id. ¶¶ 64–65).

Plaintiffs allege further that unidentified CVS pharmacists at additional, unidentified

locations have declined to fill prescriptions for other, unidentified CES patients. (Id. ¶ 80).

Plaintiffs specify only one other instance where a CVS pharmacist declined to fill a prescription

written by a CES physician. Plaintiffs allege that on or about July 3, 2020, an unnamed patient

unsuccessfully attempted to fill a prescription for Suboxone written by Plaintiff Bishop at a CVS

Pharmacy in Lithonia, Georgia. (Id. ¶¶ 83–84). Plaintiffs do not attribute any alleged statements

to CVS Pharmacy employees made during the interaction.

II. STANDARDS OF REVIEW

Here, Defendant CVS Health has moved to dismiss for lack of personal jurisdiction under

Rule 12(b)(2) of the Federal Rules of Civil Procedure. Furthermore, both Defendants have

moved for dismissal for failure to state a claim under Rule 12(b)(6).

Rule 12(b)(2) provides for dismissal for “lack of personal jurisdiction.” FED. R. CIV. P.

12(b)(2). Under Rule 12(b)(2), the defendant is required to affirmatively raise a personal

jurisdiction challenge, but the plaintiff bears the burden of demonstrating personal jurisdiction at

every stage. Grayson v. Anderson, 816 F.3d 262, 267 (4th Cir. 2016) (citing Combs v. Bakker,

886 F.2d 673, 676 (4th Cir. 1989)). “[W]hen the court addresses the personal jurisdiction

question by reviewing only the parties' motion papers, affidavits attached to the motion,

supporting legal memoranda, and the allegations in the complaint, a plaintiff need only make a

prima facie showing of personal jurisdiction to survive the jurisdictional challenge.” Grayson,

816 F.3d at 268 (citing Combs, 886 F.2d at 676). Although the court may consider affidavits

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submitted by both parties, factual disputes and all reasonable inferences must be made in favor of

the party asserting jurisdiction. White v. Aetna Life Ins. Co., No. 3:20-CV-204-MOC-DSC, 2021

WL 467210, at *2 (W.D.N.C. Feb. 9, 2021).

Federal Rule of Civil Procedure 12(b)(6) provides that a motion may be dismissed for

failure to state a claim upon which relief can be granted. A motion to dismiss pursuant to Rule

12(b)(6) tests the sufficiency of the complaint without resolving contests of fact or the merits of a

claim. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992), cert. denied, 510

U.S. 828 (1993). Thus, the Rule 12(b)(6) inquiry is limited to determining if the allegations

constitute “a short and plain statement of the claim showing the pleader is entitled to relief”

pursuant to Federal Rule of Civil Procedure 8(a)(2). To survive a defendant’s motion to dismiss,

factual allegations in the complaint must be sufficient to “raise a right to relief above a

speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, a complaint will

survive if it contains “enough facts to state a claim to relief that is plausible on its face.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

For the purposes of a Rule 12(b)(6) analysis, a claim has facial plausibility “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. (quoting Twombly, 550 U.S. at 556). The

Court must draw all reasonable factual inferences in favor of the plaintiff. Priority Auto Grp.,

Inc. v. Ford Motor Co., 757 F.3d 137, 139 (4th Cir. 2014). In a Rule 12(b)(6) analysis, the Court

must separate facts from legal conclusions, as mere conclusions are not entitled to a presumption

of truth. Iqbal, 556 U.S. at 678. Importantly, “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id. However, well-pleaded

factual allegations are entitled to a presumption of truth, and the court should determine whether

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the allegations plausibly give rise to an entitlement to relief. Id. at 679.

III. DISCUSSION

A. CVS Health’s Rule 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction

As an initial matter, Defendant CVS Health contends that Plaintiffs lack personal

jurisdiction over it. For the following reasons, the Court agrees.

There are two types of personal jurisdiction that can be established: general jurisdiction

or specific jurisdiction. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414

nn. 8 & 9 (1984). A court may exercise general personal jurisdiction over a defendant when that

defendant is essentially “at home” in the forum. See Daimler AG v. Bauman, 571 U.S. 117, 127

(2014). For a corporate (or other entity) defendant, “at home” will usually mean their domicile

and their principal place of business. See id. at 137. When general personal jurisdiction does not

apply, a court may still exercise specific personal jurisdiction if the plaintiff makes a sufficient

showing: (1) the defendant purposefully availed themselves of the forum and the benefits and

protections of its laws, (2) the plaintiff's claim arises from the purposefully availing conduct, and

(3) the exercise of jurisdiction would be constitutionally reasonable. See Consulting Eng'rs Corp.

v. Geometric Ltd., 561 F.3d 273, 278 (4th Cir. 2009). Finally, to exercise personal jurisdiction

over a non-resident defendant, a court must determine that (1) the exercise of jurisdiction is

authorized under the state's long-arm statute, pursuant to Federal Rule of Civil Procedure

4(k)(1)(A); and (2) the exercise of jurisdiction conforms to the Fourteenth Amendment's due

process requirements. Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396

(4th Cir. 2003).

CVS Health asserts that this Court cannot assert either general or specific jurisdiction

over it in this Court. CVS Health asserts that it is a holding company, with no operations other

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than those related to its status as a holding company; it does not provide pharmacy services or

dispense medications; it does not provide or offer any product or service or place into the stream

of commerce any product or service whatsoever; and it is not authorized to transact business in

North Carolina, nor does it have a registered agent in North Carolina. (Moffatt Decl. ¶¶ 4, 5, 7;

see also https://www.sosnc.gov/search/index (last visited December 7, 2020)).

In their response to the motion to dismiss, Plaintiffs concede that this Court lacks general

jurisdiction over CVS Health. Thus, for CVS Health to remain a party to this litigation, Plaintiffs

must show that the Court’s exercise of specific personal jurisdiction complies with North

Carolina’s long-arm statute and comports with Due Process. Plaintiffs contend that specific

jurisdiction may be asserted against CVS Health under N.C. GEN. STAT. § 1-75.4(5)(a), which

permits the exercise of jurisdiction in an action that “[a]rises out of a promise, made anywhere to

the plaintiff or to some third party for the plaintiff’s benefit, by the defendant to perform services

within this State or to pay for services to be performed in this State by the plaintiff.” Subsection

(5)(a), however, does not apply here, as Plaintiffs do not allege that CVS Health made any

promise to any Plaintiff to perform or pay for any services to be performed in North Carolina.

Plaintiffs rest their assertion of jurisdiction over CVS Health based on its purported support of

the “Guardian Angel” program. But “Guardian Angel” is an Aetna program, not CVS Health.

See https://cvshealth.com/news-and-insights/press-releases/guardian-angel-opioids-program-

reaching-members-at-critical-time (last

accessed January 29, 2021).1 Even if it were connected to CVS Health, however, any support of

1 Plaintiffs rely on a press release found on the website http://www.cvshealth.com in arguing

that CVS Health purposefully availed itself of the forum state of North Carolina. See (FAC at ¶

105; Pl. Br. Opp. at 8). The cvshealth.com website provides marketing and customer resources

information for several subsidiaries of CVS Health and is therefore not limited to information

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this program does not permit the exercise of personal jurisdiction in this case under North

Carolina’s long-arm statute. Plaintiffs have not alleged any “promise” CVS Health allegedly

made to the Guardian Angel program (or anyone associated with that program) for Plaintiffs’

benefit. See N.C. GEN. STAT. § 1-75.4(5)(a). Plaintiffs likewise have not alleged any such

promise that CVS Health would perform services in North Carolina or pay Plaintiffs for their

services in North Carolina. Moreover, Plaintiffs’ brief in opposition does not identify any such

promise to which N.C. GEN. STAT. § 1-75.4(5)(a) applies. Thus, N.C. GEN. STAT. § 1-75.4(5)(a)

does not empower this Court to exercise specific personal jurisdiction over CVS Health in this

litigation.

Finally, even if Plaintiffs’ allegations regarding CVS Health’s conduct somehow satisfied

N.C. GEN. STAT. § 1-75.4(5)(a), the exercise of specific personal jurisdiction over CVS Health in

this case would not comport with the Fourteenth Amendment’s Due Process Clause. The Court’s

specific personal jurisdiction inquiry focuses on the connection between a defendant’s activities

in the forum state and whether a plaintiff’s claims arise out of those contacts. ALS Scan, Inc. v.

Digital Serv. Consultants, Inc., 293 F.3d 707, 713 (4th Cir. 2002). Here, Plaintiffs’ claims

against CVS Health bear no relationship to CVS Health’s alleged support of the Guardian Angel

program. Plaintiffs’ claims arise out of the refusal of certain CVS Pharmacy employees to fill

certain prescriptions for Suboxone. By Plaintiffs’ own allegations, that decision had nothing to

do with the Guardian Angel program. Given the lack of dealings between CVS Health and

relating to CVS Health, the holding company. Indeed, as the website further reflects, Aetna, not

CVS, provides financial support to the Guardian Angel program. See

https://cvshealth.com/news-and-insights/press-releases/guardian-angel-opioids-programreaching-

members-at-critical-time (last accessed January 29, 2021). Regardless, the Guardian Angel

program does not relate to the factual basis for Plaintiffs’ claims.

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Plaintiffs, much less any “significant dealing,” this Court does not have specific personal

jurisdiction over CVS Health.

In sum, this Court is satisfied that it lacks personal jurisdiction over CVS Health. This

Court therefore dismisses Plaintiffs’ claims against CVS Health for lack of jurisdiction. Accord

Tashjian v. CVS Pharm., Inc., No. CV 19-11164-TSH, 2020 WL 1931859, at *4 (D. Mass. Mar.

13, 2020) (recommending dismissal of CVS Health), adopted by 2020 WL 2048456 (4th Cir.

202 ; Corcoran v. CVS Health Corp., 169 F. Supp. 3d 970, 979–84 (N.D. Cal. 2016) (detailing

factual evidence that CVS Health is a holding company without operations and dismissing

complaint against CVS Health for lack of jurisdiction as a result); Callum v. CVS Health Corp.,

137 F. Supp. 3d 817, 835–37 (D.S.C. 2015) (same).

B. Defendants’ Rule 12(b)(6) Motion to Dismiss for Failure to State A Claim

Next, Defendants assert that all of Plaintiffs’ claims are subject to dismissal for failure to

state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following

reasons, the Court agrees.

1. Plaintiffs’ Claims Under the Title III of the ADA

Plaintiffs assert two claims against CVS under the ADA: (1) Plaintiff Doe’s failure to

accommodate claim for CVS’s alleged refusal to fill her prescription and (2) the CES Plaintiffs’

claim for discrimination through association. For the following reasons, Plaintiffs fail to state a

cognizable ADA claim under either theory.

a. Plaintiff Doe’s ADA failure to accommodate claim for CVS’s alleged refusal to

fill her prescription

The ADA invokes “the sweep of congressional authority, including the power to enforce

the fourteenth amendment and to regulate commerce” and was designed “to provide a clear and

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comprehensive national mandate for the elimination of discrimination against individuals with

disabilities.” 42 U.S.C. § 12101(b)(1), (b)(4). The ADA forbids discrimination against persons

with disabilities in three major areas of public life: (1) in employment pursuant to Title I of the

statute, Id. at § 12111-12117; (2) by a public entity pursuant to Title II of the statute, Id. at §

12131-12165; and (3) in public accommodations and services provided by a private entity

pursuant to Title III of the statute, Id. at § 12181-12189.

The ADA defines “disability” to mean “a physical or mental impairment that

substantially limits one or more major life activities of” an individual. Id. at § 12102(1)(A). Also,

an individual may be considered to have a disability if the individual is regarded as “having an

… impairment.” Id. at § 12102(1)(C). An “impairment” exists if the individual “has been

subjected to an action prohibited under [the ADA] because of an actual or perceived physical or

mental impairment whether or not the impairment limits or is perceived to limit a major life

activity.” Id. at § 12102(3)(A). While the ADA expressly excludes an individual “who is

currently engaging in the illegal use of drugs” from the term “individual with a disability,” Id. at

§ 12210(a), a person “participating in a supervised rehabilitation program and is no longer

engaging in such use” may not be excluded from the term “individual with a disability.” Id. at §

12210(b)(2).

Under Title III of the ADA, “Public Accommodations” include, inter alia, “a bakery,

grocery store, clothing store, hardware store, shopping center, or other sales or rental

establishment,” Id. at § 12181(7)(E), and no such Public Accommodation may “subject an

individual or class of individuals on the basis of a disability … to a denial of the opportunity …

[to] benefit from the goods [or] services … of [a private] entity.” Id. at § 12182(B)(1)(a)(i). Such

discrimination under Title III of the ADA may be by “the imposition or application of eligibility

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criteria that screen out or tend to screen out an individual with a disability” and prevents the

individual with the disability from “fully and equally enjoying any goods [or] services … being

offered” or “a failure to make reasonable modifications in policies, practices, or procedures when

such modifications are necessary to afford such goods [or] services … to individuals with

disabilities.” Id. at § 12182(B)(2)(a)(i) & (ii).

In determining whether an impairment substantially limits an individual in a major life

activity, the Fourth Circuit construes the statutory text “broadly in favor of expansive coverage,”

J.D. by Doherty v. Colonial Williamsburg Found., 925 F.3d 663, 670 (4th Cir. 2019), which is

consistent with the purpose of the ADA Amendments Act of 2008 (“ADAAA”) that was passed

to “reinstat[e] a broad scope of protection to be available under the ADA.” Summers v. Altarum

Inst., Corp., 740 F.3d 325, 329 (4th Cir. 2014) (quoting Pub. L. No. 110–325, § 2(b)(1), 122 Stat.

3553). Additionally, the ADA provides that it is discriminatory to exclude or otherwise deny

equal goods, services, facilities, privileges, advantages, accommodations, or other opportunities

to an individual or entity because of the known disability of an individual with whom the

individual or entity is known to have a relationship or association with. 42 U.S.C. §

12182(b)(1)(E).

First, Plaintiffs’ ADA claims fail because they seek to require CVS to fill all

prescriptions for controlled substances presented to its pharmacists, regardless of the

pharmacist’s professional judgment. (Compl., ¶¶ 87-88 and ¶¶ 104–105). North Carolina law,

however, confers on pharmacists a right to refuse to fill prescriptions in the exercise of their

professional judgment. See 21 N.C. Admin. Code 46.1801(a) (pharmacist “shall have a right to

refuse to fill or refill a prescription order if doing so would be contrary to his or her professional

judgment”); see also U.S. DEA Pharmacist’s Manual, EO-DEA 154, 42 (2020) (“A pharmacist is

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required to exercise sound professional judgment, and to adhere to professional standards, when

making a determination about the legitimacy of a controlled substances prescription … The law

does not require a pharmacist to dispense a prescription of doubtful, questionable, or suspicious

medical legitimacy.”). Indeed, federal and state authority identify circumstances when a

pharmacist must refuse to fill a prescription. N.C. Admin. Code § 46.1801(b) (“A pharmacist . . .

shall not fill or refill a prescription order if, in the exercise of professional judgment, there is or

reasonably may be a question regarding the order’s accuracy, validity, authenticity, or safety for

the patient.”); 21 C.F.R. § 1306.04(a) (pharmacists have a “corresponding responsibility” for the

proper dispensing of controlled substances and may not knowingly fill a prescription not issued

in the usual course of professional treatment).

The ADA does not contradict this law. Nothing in the ADA compels CVS pharmacists to

fill prescriptions for controlled substances when it conflicts with their professional judgment and

corresponding responsibility. Plaintiffs’ interpretation of the ADA would not only read into the

statute an obligation that is unsupported by the text, but would also effectively preempt North

Carolina’s pharmacist law, in violation of the canon of statutory construction disfavoring

preemption. See, e.g., Altria Group, Inc. v. Good, 555 U.S. 70, 77–78 (2008). Furthermore,

courts have held that a challenge to a reasoned medical judgment with which a patient disagrees

is not cognizable under the ADA. See, e.g., Kiman v. New Hampshire Dep’t of Corr., 451 F.3d

274, 285 (1st Cir. 2006) (challenge to a “reasoned medical judgment with which the patient

disagreed” is not cognizable under ADA); Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144

(10th Cir. 2005) (“[P]urely medical decisions . . . do not ordinarily fall within the scope of the

ADA”); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (ADA does not address insufficient

treatment).

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Additionally, Plaintiff Doe lacks standing to assert an ADA claim against Defendant

CVS. To demonstrate standing, a plaintiff must show: (1) an “injury in fact” that is concrete and

particularized and actual or imminent; (2) a causal connection between the injury and the

conduct complained of; and (3) that the injury likely will be redressed by a favorable decision.

Nat’l Alliance for Accessibility, Inc. v. NCP Western Blvd. LLC, No. 5:11-CV-357-FL, 2012

WL 3834931, at *2 (E.D.N.C. Sept. 4, 2012). Title III of the ADA, under which Doe brings her

claim, provides only for injunctive relief. 42 U.S.C. § 12188; Basta v. Novant Health Inc., No.

3:19-CV-00064-RJCDSC, 2019 WL 3310098, at *3 (W.D.N.C. July 23, 2019). When a plaintiff

seeks injunctive relief, the “injury in fact” element requires more than an allegation of

defendant’s prior wrongful conduct. Nat’l Alliance for Accessibility, Inc., 2012 WL 3834931, at

*2. A plaintiff must show a “substantial likelihood of future harm. In other words, to establish

standing to pursue injunctive relief . . .. under the ADA, [plaintiff must] demonstrate a real and

immediate threat of repeated injury in the future.” Id. (internal quotations and citations omitted)

(emphasis in original). Thus, to have standing to assert her ADA claim, Doe “must allege that

[s]he intends to return to the facility where the alleged injury occurred.” Basta, 2019 WL

3310098 at *3.

Doe does not allege any such thing. Doe describes her injury as an “economic injury” and

focuses her allegations on CVS’s alleged refusal to fill her prescription in the past. (Compl. ¶¶

83–97). None of Doe’s allegations reference future harm, much less a real and immediate threat

of repeated future injury. Nor does Doe allege that she intends to return to CVS. In fact, Doe

admits that she found “another supplier of the prescriptive medication she needed[.]” (Id. ¶ 97).

Since Doe does not allege a substantial likelihood of future harm, she fails to establish

jurisdictional standing, and dismissal of her ADA claim is required.

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Moreover, Doe cannot maintain an ADA claim because she does not allege CVS singled

her out for unique treatment. The ADA was enacted “to assure equality of opportunity,” 42

U.S.C. § 12101(a)(7), and therefore provides that “[n]o individual shall be discriminated against

on the basis of disability in the full and equal enjoyment of the goods, services, facilities,

privileges, advantages, or accommodations of any place of public accommodation.” Id. §

12182(a). As the purpose of the ADA is to combat discrimination based on disability, “there is

no discrimination under the [ADA] where disabled individuals are given the same opportunity as

everyone else.” Doe One v. CVS Pharm., Inc., 348 F. Supp. 3d 967, 987 (N.D. Cal. 2018)

(rejecting plaintiffs’ argument that would expand the ADA when CVS’ restrictions applied

equally to all consumers).

Plaintiffs do not allege any facts indicating CVS singled out Doe for disparate treatment.

In fact, Plaintiffs’ allegations expressly refute any discriminatory motive or action by CVS.

Plaintiffs allege that the CVS pharmacist made various statements explaining why she declined

to fill Doe’s prescription for a controlled substance. (Compl. ¶ 49). None of the stated reasons

relate to Doe’s purported status as a disabled individual. See, e.g., Zelaya Sorto v. Doe, No. 5:18-

CT-3242-FL, 2020 WL 5709249, at *6 (E.D.N.C. Sept. 24, 2020) (dismissing ADA claim where

challenged activity was not discriminatory); Knowles v. Lewis, No. 5:11-CT-3113-FL, 2014 WL

1117966, at *12 (E.D.N.C. Mar. 20, 2014) (same). Thus, the Court dismisses Plaintiff Doe’s

ADA failure to accommodate claim.

b. CES Plaintiffs’ ADA Claim for Discrimination by Association

The CES Plaintiffs’ ADA claim for discrimination by association likewise fails as a

matter of law. Under the ADA, it is “discriminatory to exclude or otherwise deny equal goods,

services, facilities, privileges, advantages, accommodations, or other opportunities to an

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individual or entity because of the known disability of an individual with whom the individual or

entity is known to have a relationship or association.” 42 U.S.C. § 12182(b)(1)(E). To bring a

claim for discrimination by association, a plaintiff must allege a specific association with a

disabled individual. Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 215–16 (4th Cir.

2002). Additionally, this association liability only applies when the defendant discriminates

against the plaintiff (here, the CES Plaintiffs) because of his relationship or association with a

disabled person (here, Doe). Fonner v. Fairfax Cty., Va., 415 F.3d 325, 333 (4th Cir. 2005).

The Fourth Circuit’s opinion in Freilich precludes the CES Plaintiffs’ claim. In Freilich, a

doctor alleged that she was threatened and intimidated by the defendant hospital and denied

equal use of facilities and other opportunities because of her association with patients with

disabilities. 313 F.3d at 216. The Fourth Circuit affirmed the district court’s dismissal of the

doctor’s claim, holding that such generalized references to association are not sufficient to state a

claim for associational discrimination under the ADA. Id. (reasoning that “[e]very hospital

employee can allege at least a loose association with disabled patients” and that “[t]o allow Dr.

Freilich to proceed on such a basis would arm every hospital employee with a potential ADA

complaint”).

Similarly, the CES Plaintiffs’ allegations are insufficient to state a claim for

discrimination by association. They only generically refer to having “an association with

Plaintiff Doe and all other patients participating in and being treated by” the CES Plaintiffs.

(Compl. ¶ 103). The CES Plaintiffs have, at most, precisely the type of “loose association” with

a disabled patient that the Freilich court found was insufficient. The CES Plaintiffs’ associational

discrimination claim also fails because their own allegations refute any suggestion that CVS

discriminated against the CES Plaintiffs due to their association with Doe. Specifically, Plaintiffs

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allege that the CVS pharmacist explained she was declining to fill Doe’s prescription for

Suboxone, not because of the CES Plaintiffs’ association with Doe, but because she did not

recognize the prescribing doctor and she had concerns about the CES practice. (Compl. ¶¶ 47–

49). These allegations simply do not support a discrimination by association claim.2 Thus, this

claim is dismissed.

2. Plaintiffs’ Claims under Section 504 of the Rehabilitation Act of 1973

Section 504 of the Rehabilitation Act of 1973 proscribes any qualified individual with a

disability from being excluded from participation in, denied the benefits of, or subjected to

discrimination under any program or activity receiving Federal financial assistance. 29 U.S.C. §

794(a). Under the Rehabilitation Act of 1973, a program or activity is defined to include the

operations of an entire corporation that is principally engaged in the business of providing health

care to which Federal financial assistance is provided. Id. at § 794(b)(3)(A) & (B). Drawing from

section 12102 of title 42, a disability is defined in the same way as in the ADA. Id. at § 705(20).

Furthermore, as in the ADA, a person “participating in a supervised rehabilitation program and is

no longer engaging in” the illegal use of drugs may not be excluded from the term “individual

with a disability” under the Rehabilitation Act of 1973. Id. at § 705(20)(C)(ii)(II).

To establish a prima facie case under the Rehabilitation Act, a plaintiff must show that:

(1) she has a disability; (2) she was “otherwise qualified” for the benefit in question; and (3) that

she has been denied the benefit due to discrimination “solely on the basis” of her disability. 29

2 As Defendant CVS notes, indeed, since CVS routinely fills prescriptions for patients who

suffer various forms of disability, accepting the CES Plaintiffs’ theory of associational

discrimination would render CVS potentially liable for every time it declines to fill a

prescription, which is precisely what 21 C.F.R. § 1306.04(a) and 21 N.C. Admin. Code

46.1801(a) forbid.

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U.S.C. § 794(a). The purpose of the Rehabilitation Act is to provide “disabled persons legal

rights regarding access to programs and activities enjoyed by all, not a general federal cause of

action for challenging the medical treatment of their underlying disabilities.” Mathis v. GEO

Grp. Inc., No. 2:08-CT-21-D, 2009 WL 10736631, at *14 (E.D.N.C. Nov. 9, 2009) (dismissing

plaintiff’s claim under the Rehabilitation Act for denial of physical therapy) (internal quotations

and citation omitted). Accordingly, plaintiffs may not prevail for a claim under the Rehabilitation

Act for inadequate medical care. Id. (citing Fitzgerald v. Corrs. Corp. of Am., 403 F.3d 1134,

1144 (10th Cir. 2005) and Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996)).

Here, Plaintiff Doe’s claim under the Rehabilitation Act fails for two independent

reasons. First, Doe does not allege any facts indicating that she is “otherwise qualified” for the

benefit at issue. Doe alleges that she is an “individual with a disability” within the meaning of

the Rehabilitation Act on account of her opioid dependency. (Compl. ¶ 129). She then alleges

that she was denied the benefit of receiving prescription opioid medication (specifically,

Suboxone) on account of her disability. (Id. ¶¶ 132–33). The problem with Doe’s claim is that

she was only able to receive Suboxone due to her alleged disability (i.e., her opioid dependency).

See (Compl. ¶¶ 57–61). That is, Doe was not “otherwise qualified” to receive Suboxone,

independent from her alleged opioid dependency disability.

Courts under these circumstances have rejected Rehabilitation Act claims identical to

Plaintiff Doe’s theory. See, e.g., Cushing v. Moore, 970 F.2d 1103, 1108–09 (2d Cir. 1992)

(affirming dismissal of claim brought by outpatients at rehabilitation clinic who brought claims

for violation of the Rehabilitation Act premised on termination of methadone treatment, holding

that plaintiffs could not demonstrate that they were “otherwise qualified” and explaining the

“[R]ehabilitation Act does not create a cause of action based on a handicap that is directly related

16

to providing the very services at issue”); Mascetti v. Zozulin, No. 3:09-cv-963(PCD), 2010 WL

1644572, at *3 (D. Conn. Apr. 20, 2010) (dismissing Rehabilitation Act claim brought against

defendant pharmacy for alleged refusal to dispense pain medication to plaintiff, finding that

plaintiff was not “otherwise qualified” and holding “Section 504 does not apply if an individual

only qualifies for a benefit or service because of her disability”); see also Mathis, 2009 WL

10736631, at *14 (dismissing plaintiff’s claim under the Rehabilitation Act for denial of physical

therapy and explaining that a plaintiff “may not receive relief under the Rehabilitation Act for

inadequate medical care”).

Doe’s Rehabilitation Act claim fails for a second reason. That is, she admits she was not

denied a benefit “solely on the basis” of her disability. See Halpern v. Wake Forest Univ. Health

Scis., 669 F.3d 454, 461 (4th Cir. 2012). “Claims under the ADA’s Title II and the Rehabilitation

Act can be combined for analytical purposes because the analysis is substantially the same.”

Smith v. North Carolina Dep’t of Safety, No. 1:18CV914, 2019 WL 3798457, at *2 (M.D.N.C.

Aug. 13, 2019). The two statutes, however, differ “with respect to the third element, causation.

To succeed on a claim under the Rehabilitation Act, the plaintiff must establish that he was

excluded ‘solely by reason of’ his disability; the ADA requires only that the disability was a

“motivating cause” of the exclusion.” Halpern, 669 F.3d at 461–62 (citing Baird ex rel. Baird v.

Rose, 192 F.3d 462, 468–69 (4th Cir. 1999)). As discussed above, Doe cannot meet the ADA’s

causation threshold, let alone the more exacting standard of the Rehabilitation Act. Plaintiffs’

allegations expressly refute any discriminatory motive or action by CVS by identifying the stated

reasons why an unidentified CVS employee allegedly refused to fill Doe’s prescription for

Suboxone, and none of those reasons relate to Doe’s alleged disability status. See (Compl. ¶ 65).

Accordingly, Plaintiff Doe’s Rehabilitation Act claim is dismissed.

17

3. Plaintiff’s Claim under Section 1557 of the Patient Protection and Affordable

Care Act (“ACA”)

Section 1557 of the ACA was established to prevent healthcare discrimination by any

health program, healthcare entity, or activity that receives federal funding pursuant to 29 U.S.C.

§ 794. 42 U.S.C. § 18116(a). The ACA makes it illegal to discriminate against individuals based

on, among other things, their disability. Section 1557 expressly extends its discrimination

prohibition to entities that receive federal financial assistance in the form of credits, subsidies, or

contracts of insurance, or any program or activity administered by an executive agency,

including federal health programs like Medicaid, Medicare, and Children’s Health Insurance

Program (“CHiP”). Id.

In the legislation identifying grants to states for medical assistance programs, a “Retail

Community Pharmacy” is defined an independent pharmacy, a chain pharmacy, a supermarket

pharmacy, or a mass merchandiser pharmacy that is licensed as a pharmacy by the State and that

dispenses medications to the general public at retail prices. 42 U.S.C. § 1396r–8(k)(10). Through

the effectuation of Title VI of the Civil Rights Act of 1965, programs receiving federal assistance

through the Department of Health and Human Services are expressly forbidden from providing

“any service, financial aid, or other benefit to an individual which is different, or is provided in a

different manner, from that provided to others under the program.” 45 C.F.R. § 80.3(a)(ii).

“Section 1557 does not create new bases of prohibited discrimination, but rather

incorporates the grounds of four longstanding federal nondiscrimination statutes: Title VI, Title

IX, the ADA, and Section 504. 42 U.S.C. § 18116(a). The implementing Rule claims to merely

‘clarif[y] and codif[y] existing nondiscrimination requirements’ incorporated in Section 1557.”

Franciscan Alliance, Inc. v. Burwell, 227 F. Supp. 3d 660, 671 (N.D. Tex. 2016) (emphasis in

18

original) (quoting 81 Fed. Reg. at 31376). Accordingly, where, as here, a plaintiff’s

Rehabilitation Act claim fails, her claim arising under the ACA must fail as a matter of law as

well. Basta, 2019 WL 3310098, at *6 (stating that because plaintiff did not state a claim under

the Rehabilitation Act, “it is not necessary to determine the applicability of the ACA”); Hawkins

v. Cohen, 327 F.R.D. 64, 75–76 (E.D.N.C. 2018). Thus, Plaintiffs’ ACA claim is dismissed.

4. Plaintiffs’ Claim Alleging a Violation under Section 43(a) of the Lanham Act

Section 43(a) of the Lanham Act proscribes “on or in connection with any goods

or services” used in commerce any “false or misleading description of fact, or false or misleading

representation of fact, which … in commercial advertising or promotion, misrepresents the

nature, characteristics, qualities … of his or her … goods, services, or commercial activities.” 15

U.S.C. § 1125(a)(1). In the event such person does violate this provision, they “shall be liable in

a civil action by any person who believes that he or she is or is likely to be damaged by such

act.” Id. Courts construe “false or misleading” to include a representation that is “literally false”

or that is “literally true but nevertheless misleading.” In re GNC Corp., 789 F.3d 505, 514 (4th

Cir. 2015).

Evidence of actual consumer confusion provides the necessary showing that a

representation is misleading. Additionally, any representation must be material—i.e., a material

misleading representation is one that is likely to influence a purchasing decision. Verisign, Inc. v.

XYZ.com LLC, 848 F.3d 292, 298 (4th Cir. 2017). Such a misleading statement must have

actually deceived, and such actual deception caused the person being deceived to have been or

likely to be injured as a result of the misleading representation. Id.

To state an actionable claim under Section 43(a), Plaintiffs must establish each of the

following five elements:

19

(1) the defendant made a false or misleading description of fact or representation

of fact in a commercial advertisement about his own or another’s product; (2) the

misrepresentation is material, in that it is likely to influence the purchasing

decision; (3) the misrepresentation actually deceives or has the tendency to

deceive a substantial segment of its audience; (4) the defendant placed the false or

misleading statement in interstate commerce; and (5) the plaintiff has been or is

likely to be injured as a result of the misrepresentation, either by direct diversion

of sales or by a lessening of goodwill associated with its products.

Verisign, 848 F.3d at 298–99 (quoting Design Res., Inc. v. Leather Indus. of Am., 789 F.3d 495,

501 (4th Cir. 2015)).

The Supreme Court has established a two-part test to determine whether a plaintiff has

statutory standing to pursue a claim under Section 43(a) of the Lanham Act. See Lexmark Int’l,

Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014). First, the plaintiff must “fall within

the zone of interests protected by the law invoked.” Id. at 129 (quoting Allen v. Wright, 468 U.S.

737, 751 (1984)). For purposes of a plaintiff pursuing a false advertising claim under the Lanham

Act, the “plaintiff must allege an injury to a commercial interest in reputation or sales.” Id. at

131–32. Second, the plaintiff must allege injuries that were proximately caused by violations of

the subject statute. Id. at 132. A plaintiff asserting a claim for false advertising under Section

43(a) thus “must show economic or reputational injury flowing directly from the deception

wrought by the defendant’s advertising,” which “occurs when deception of consumers causes

them to withhold trade from the plaintiff.” Id. at 133.

Here, Plaintiff Doe lacks statutory standing to pursue a claim under the Lanham Act, as

she has not alleged any “injury to a commercial interest in reputation or sales.” Id. at 131–32.

Consumers such as Doe do not fall within the zone of interests protected by Section 43(a) and

therefore cannot pursue a false advertising claim under the Lanham Act. Id. at 132 (“A consumer

who is hoodwinked into purchasing a disappointing product may well have an injury-in-fact

20

cognizable under Article III, but he cannot invoke the protection of the Lanham Act”); Made in

the USA Found. v. Phillips Foods, Inc., 365 F.3d 278, 281 (4th Cir. 2004) (same).

The CES Plaintiffs likewise lack statutory standing, as their allegations cannot support

any finding that they suffered an injury proximately caused by an alleged violation of the

Lanham Act. Plaintiffs’ FAC does not allege that the CES Plaintiffs lost a single patient or

otherwise suffered a single dollar in economic harm, let alone any allegations connecting any

such damage to statements attributed to CVS. Absent such allegations, Plaintiffs’ Lanham Act

claim fails as a matter of law. See, e.g., Wall & Assocs. Inc. v. Better Bus. Bureau of Cent. Va.,

Inc., 685 F. App’x 277, 279 (4th Cir. 2017). Thus, the Lanham Act claim must be dismissed for

this reason alone.

In any event, even if Plaintiffs had statutory standing to pursue their Lanham Act claim

against CVS, Plaintiffs fail to state a claim for a violation of the Lanham Act. First, Plaintiffs

have not alleged any false or misleading statement by CVS or its physicians forming the basis of

their Lanham Act claims. Instead, Plaintiffs base their Lanham Act claim on two press releases

published to the CVSHealth.com website concerning CVS’s collaboration with the “Guardian

Angel” social work program launched by Aetna. See (Compl. ¶¶ 105–10). As detailed in the

press releases relied on by Plaintiffs, CVS’s collaboration in the Guardian Angel program helps

individuals with opioid dependency located in certain communities in North Carolina, New

Orleans, and Tampa access social services to obtain assistance with transportation, food

assistance and meal delivery, adult day care, employment services, and housing support, among

other services. See (Pl. Exs. A & B). Citing these press releases, Plaintiffs assert that “Defendant

CVS Health recognizes that opioid overdose victims must be subjected to treatment” and that

“opioid use disorders must be addressed through treatment centers.” (Compl. ¶¶ 105–06).

21

Plaintiffs do not identify any statements in the press releases that they believe are false or

misleading, let alone allege any facts demonstrating the falsity of any such statement. Plaintiffs

seem to suggest that CVS’s participation in the Guardian Angel program is somehow

inconsistent with the decision not to fill a prescription for Suboxone written by the CES

Plaintiffs. The press releases, however, do not promise that CVS would fill every prescription for

Suboxone (or any other controlled substance) presented to its pharmacists, regardless of the

circumstances. In sum, because Plaintiffs have not identified any purportedly false or misleading

statement by CVS, their Lanham Act claim fails.

Plaintiffs’ Lanham Act claim also fails because they have not identified any false or

misleading statement that was material. To qualify as a “material” misrepresentation giving rise

to a Lanham Act claim, Plaintiffs must show that the statement at issue would affect a

consumer’s purchasing decision. See, e.g., Design Res., Inc., 789 F.3d at 501; PBM Prods., LLC

v. Mead Johnson & Co., 639 F.3d 111, 120 (4th Cir. 2011). Plaintiffs have not alleged any

statements by CVS that would be material to a consumer in deciding whether to receive

treatment from CES or its affiliated physicians.

Finally, Plaintiffs have not alleged any facts demonstrating that they injured as a result of

the purported misrepresentations on which they base their Lanham Act claims. Accordingly,

Plaintiffs’ Lanham Act claim must fail on this basis as well.

In sum, Plaintiffs lack standing to bring a Lanham Act violation claim, and they also fail

to state a claim for a violation of the Lanham Act. Thus, this claim is dismissed.

5. Plaintiffs’ Claims for Tortious Interference with Contact and Tortious

Interference with A Prospective Economic Relationship

To state an actionable claim for tortious interference with contract, Plaintiffs must plead

22

(1) a valid contract between the plaintiff and a third person which confers upon the plaintiff a

contractual right against a third person; (2) the defendant knows of the contract; (3) the

defendant intentionally induces the third person not to perform the contract; (4) and in doing so

acts without justification; (5) resulting in actual damage to the plaintiff. Braswell v. Haywood

Reg’l Med. Ctr., 352 F. Supp. 2d 639, 652 (W.D.N.C. 2005). Similarly, to plead an actionable

claim for tortious interference with prospective economic advantage, Plaintiffs must plead (1) the

existence of a business relationship between Plaintiffs and a third party; (2) CVS interfered with

that relationship; (3) by maliciously inducing the third party not to enter into a contract with

Plaintiffs; (4) that the third party would have entered into but for CVS’s conduct; and (5) CVS’s

conduct was not a legitimate exercise of its rights. Beverage Sys. of the Carolinas, LLC v.

Associated Beverage Repair, LLC, 368 N.C. 693, 701 (2016).

Plaintiffs allege that CVS committed tortious interference in two ways: (1) by refusing to

fill controlled substances prescriptions and (2) through making allegedly defamatory statements.

(Compl. ¶¶ 181–83, 187–88). First, as a matter of law, CVS’s refusal to fill prescriptions cannot

be the basis of Plaintiffs’ interference claims. As noted, North Carolina law is clear that a

pharmacist “shall have the right to refuse to fill or refill a prescription order if doing so would be

contrary to his or her professional judgment.” 21 N.C. Admin. Code § 46.1801(a). Federal law

likewise provides that a pharmacist has a “corresponding responsibility” not to knowingly fill

prescriptions issued outside the usual course of professional treatment. 21 C.F.R. § 1306.04(a).

To prevail on their tortious interference claims, Plaintiffs must plead and prove that CVS

acted “without justification” and that CVS pharmacists’ exercise of their professional judgment

“was not a legitimate exercise of its rights.” Braswell, 352 F. Supp. 2d at 652. A person acts

“without justification” only “if he has no sufficient lawful reason for his conduct.” MLC Auto.,

23

LLC v. Town of S. Pines, 207 N.C. App. 555, 571 (2010) (citation omitted). To satisfy this

element, Plaintiffs must show that CVS was “acting not in the legitimate exercise of [his] own

right, but with a design to injure the plaintiff or gain some advantage at his expense.” Id.

(internal quotation and citation omitted). Plaintiffs have not even attempted to satisfy these

requirements.

Second, Plaintiffs have wholly failed to allege the facts necessary to support a claim for

tortious interference with contract, whether based on the alleged refusal to fill Plaintiffs’

prescriptions or on CVS’s alleged defamatory remarks. Specifically, Plaintiffs fail to allege that

any actual or specific contracts existed between themselves and any actual or specific patients or

that CVS knew such contracts existed. At most, Plaintiffs allege that certain unnamed

“registrants” to CES’s online platform entered into a narcotics agreement and an informed

consent agreement as part of their participation in the online treatment. (Compl. ¶ 44). But

Plaintiffs do not provide any specifics. They do not allege whether any of the unnamed

contracted with Plaintiffs, whether each Plaintiff was a party to such contracts, whether these

contracts were at-will or for specified durations, or what services or goods were to be provided

pursuant to these contracts. Plaintiffs also do not attach copies of any such contracts to the

Complaint. See Williams v. Popular Mortg. Servs., Inc., No. 4:10-CV-0020-F, 2011 WL

2678817, at *4–5 (E.D.N.C. June 30, 2011) (dismissing plaintiffs’ claim for tortious interference

with contract where plaintiffs did not attach a copy of the purported contract to their complaint);

see also Krawiec v. Manly, 370 N.C. 602, 606–08 (2018) (tortious interference claim fails where

no allegation defendant was aware of contract). Plaintiffs’ Complaint also does not allege that

any contract was breached, nor does it allege that CVS intended to induce such a breach.

Bowman v. Reid, No. 5:14CV179-RLV, 2015 WL 4508648, at *6 (W.D.N.C. July 24, 2015),

24

aff’d, 646 Fed. App’x 318 (4th Cir. 2016) (dismissing tortious interference claim where contract

did not allege a contract with third party that defendants had induced to breach). Plaintiffs do not

allege, for example, that any patient whose prescription was not filled, or any recipient of the

allegedly defamatory statements, terminated his or her contract with Plaintiffs.3 Nor do Plaintiffs

allege sufficient facts to establish that terminating a contract under these circumstances would

constitute breach of a contract with Plaintiffs. Without these essential allegations, Plaintiffs’

tortious interference with contract claim fails. See Phelps Staffing, LLC v. C.T. Phelps, Inc., 226

N.C. App. 506, 512 (2013). Thus, this claim is dismissed.

For similar reasons, Plaintiffs have also failed to sufficiently allege a claim for tortious

interference with a prospective economic relationship. Plaintiffs have not adequately alleged (1)

the existence of any relationship; (2) that CVS was aware of such relationship; (3) CVS’s

intentional interference with that relationship; or (4) the absence of justification for CVS’s

alleged actions. Each of these failures independently mandates dismissal of Plaintiffs’ tortious

interference with prospective economic relationship claim. Moreover, to state a claim for tortious

interference with a prospective economic relationship, Plaintiffs must show that CVS’s actions

caused a third party not to enter into a contract with Plaintiffs, which that party would have

entered into but for CVS’s conduct. Beverage Sys., 368 N.C. at 701. Plaintiffs do not identify a

single potential patient that Plaintiffs lost due to CVS’s conduct. Plaintiffs’ claim for tortious

interference with a prospective economic relationship is therefore dismissed.

6. Plaintiffs’ Claim for Unfair and Deceptive Trade Practices

3 For this same reason, Plaintiffs also fail to satisfy the requisite damages element for their

tortious interference claim.

25

The North Carolina UDTPA provides that “[u]nfair methods of competition in or

affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are

declared unlawful.” N.C. GEN. STAT. § 75.1-1(a). To state a claim under the UDTPA, Plaintiffs

must plead: (1) CVS committed an unfair or deceptive act; (2) this act was in or affecting

commerce; and (3) the act proximately caused Plaintiffs’ injury. Radchyshyn v. Allstate Indem.

Co., No. 1:14-cv-00169 MR-DLH, 2014 WL 4406994, at *3 (W.D.N.C. Sept. 8, 2014).

Plaintiffs allege that CVS violated the UDTPA through the following actions: refusing to

fill prescriptions (Compl. ¶¶ 209-214); telling patients that Plaintiff CES’s drug rehabilitation

program, conducted through telemedicine, is not a valid treatment program (Compl. ¶ 213); and

making purportedly defamatory statements about Plaintiff Dr. Emery (Compl. ¶ 214). Plaintiffs

fails to state a UDTPA claim against Defendant for several reasons. First, pharmacists are

learned professionals whose services are exempted from the UDTPA. Each allegation in CES’s

and Emery’s UDTPA claim is premised on actions by a CVS pharmacist. (See Compl., ¶¶ 207–

14). However, because the UDPTA does not include “professional services rendered by a

member of a learned profession,” it does not extend to actions by a CVS pharmacist. See N.C.

GEN. STAT. § 75-1.1(b). The “learned profession” exclusion applies if: (1) the person or entity

performing the alleged act is a member of a learned profession; and (2) the conduct in question is

a rendering of professional services. Wheeless v. Maria Parham Med. Ctr., Inc., 237 N.C. App.

584, 589 (2014). The CVS pharmacist satisfies the first prong of this test because she is a

licensed health care professional. North Carolina courts have “long held that members of health

care professions fall within the learned profession exemption to [the UDPTA], and this exception

for medical professionals has been broadly interpreted.” Sykes v. Health Network Solutions,

Inc., 372 N.C. 326, 334 (2019) (internal quotations omitted) (licensed chiropractors are members

26

of a learned profession).

The CVS pharmacist also satisfies the second prong of the learned profession test

because each of Plaintiffs’ allegations—refusing to fill prescriptions, discussing the drug

rehabilitation program, and speaking with customers about Dr. Emery—is conduct connected to

the pharmacist’s provision of medical services. See Wheeless, 237 N.C. App. at 589 (where the

plaintiff doctor complained that his colleagues had corresponded with the medical board about

his professional conduct, affirming dismissal and stating that the North Carolina courts have

“made clear that unfair and deceptive acts committed by medical professionals are not included

within the prohibition of [the UDPTA]”).

Next, Plaintiffs fail to state a claim for violation of the UDTPA because Plaintiffs do not

allege any unfair or deceptive acts within the meaning of the UDPTA. The UDTPA declares as

“unlawful” all “[u]nfair methods of competition in or affecting commerce” or “unfair or

deceptive acts or practices in or affecting commerce.” N.C. GEN. STAT. § 75-1.1(a). To show that

CVS’s conduct violates the UDTPA, Plaintiffs must show that it “offends established public

policy”; is “immoral, unethical, oppressive, unscrupulous, or substantially injurious to

consumers”; or has a tendency to deceive. See Champion Pro Consulting Grp., LLC v. Impact

Sports Football, LLC, 116 F. Supp. 3d 644, 652 (M.D.N.C. 2015). The UDTPA is intended “to

provide a civil means to maintain ethical standards of dealings between persons engaged in

business and the consuming public within this State, and it applies to dealings between buyers

and sellers at all levels of commerce.” In re Brokers, Inc., 396 B.R. 146, 160 (Bankr. M.D.N.C.

2008) (quoting Bhatti v. Buckland, 328 N.C. 240, 245 (1991)). “[T]he fundamental purpose of

[the UDTPA] is to protect the consuming public.” Id. at 162.

Here, CES and Dr. Emery cannot assert a claim under the UDTPA because CES and

27

Emery have no business dealings with CVS. North Carolina courts have recognized repeatedly

that an established business relationship between the parties is a critical factor in applying the

UDTPA. Champion, 116 F. Supp. 3d at 661 (UDTPA does not apply because no business

relationship existed between parties); Pleasant Valley Promenade v. Lechmere, Inc., 120 N.C.

App. 650, 658 (1995) (same). This is so because the UDTPA is intended “to maintain ethical

standards of dealings between persons engaged in business . . . .” In re Brokers, Inc., 396 B.R. at

160. Plaintiffs have not alleged the type of business relationship between CVS on the one hand,

and CES and Dr. Emery on the other, that the UDTPA was designed to protect. Moreover,

Plaintiffs have also not alleged any activity by CVS that is deceptive, or otherwise “immoral,

unethical, oppressive, unscrupulous, or substantially injurious to consumers.” Champion, 116 F.

Supp. 3d at 652. In sum, Plaintiffs have failed to state a cognizable UDTPA claim. Thus, this

claim is dismissed.

7. Plaintiffs’ Defamation Claims

To recover for defamation, Plaintiffs must allege that CVS “caused injury to [Plaintiffs]

by making false, defamatory statements of or concerning [Plaintiffs], which were published to a

third person.” Craven v. COPE, 188 N.C. App. 814, 816 (2008). To constitute defamation, the

alleged statement must be “injurious to the reputation of the plaintiffs.” Tyson v. L’Eggs Prods.,

Inc., 84 N.C. App. 1, 12 (1987). Likewise, “expressions of opinion not asserting provable facts

are protected speech” and cannot give rise to a claim for defamation. Squitieri v. Piedmont

Airlines, Inc., No. 3:17CV441, 2018 WL 934829, at *4 (W.D.N.C. Feb. 16, 2018) (“statements

that cannot be proven as verifiably true or false are non-actionable opinion”).

North Carolina retains two distinct defamation torts: the tort of libel encompasses written

publications that include purportedly defamatory statements, while slander refers to oral

28

statements. Esancy v. Quinn, No. 5:05cv26, 2006 WL 322607, at *3 (W.D.N.C. Feb. 10, 2006).

Plaintiffs’ allegations are limited to alleged oral remarks, so their claims are properly viewed as

asserting slander. Plaintiffs assert causes of action for slander per se and slander per quod.

Slander per se is a false oral communication that amounts to (1) an accusation that the plaintiff

committed a crime involving moral turpitude, (2) an allegation that impeaches the plaintiff in his

trade, business, or profession, or (3) an imputation that the plaintiff has a loathsome disease.

Barker v. Kimberly-Clark Corp., 136 N.C. App. 455, 459 (2000). In either case, a prima facie

presumption of malice and a conclusive presumption of damage arises, obviating the need for the

plaintiff to plead and prove special damages. Id. at 460.

When the defamatory character of the words does not appear on their face, but only in

connection with extrinsic, explanatory facts, they are only actionable as slander per quod.

Badame v. Lampke, 242 N.C. 755, 757 (1955). In this latter scenario, Plaintiffs must plead and

prove special damage. Id. For the following reasons, Plaintiffs do not state a cognizable claim

against Defendant for either per se or per quod defamation.

First, Plaintiffs have not pled their claims for defamation with the necessary details to

allow CVS to adequately defend against Plaintiffs’ allegations. While Plaintiffs are not required

to set forth the allegedly defamatory statement in their Complaint verbatim, “the words attributed

to [CVS] must be alleged ‘substantially’ in haec verba, or with sufficient particularity to enable

the court to determine whether the statement was defamatory.” Mbadiwe v. Union Mem’l Reg’l

Med. Ctr., Inc., No. 3:05CV49-MU, 2005 WL 3186949, at *4 (W.D.N.C. Nov. 28, 2005); see

also Bowman, 2015 WL 4508648, at *7 (same). Specifically, Plaintiffs must identify the time

and place of each alleged defamatory statement to comply with their pleading obligations.

Orndorff v. Raley, No. 3:17-CV-00618-GCM, 2018 WL 5284040, at *3 (W.D.N.C. Oct. 24,

29

2018) (dismissing defamation claims for lack of specificity); Bowman, 2015 WL 4508648, at *6

(same); Mbadiwe, 2005 WL 3186949, at *4 (same). In support of their defamation claim,

Plaintiffs allege the following:

Various statements made by Defendant CVS Health’s and Defendant CVS

Pharmacy’s agents, servants, employees and/or representatives over the

course of dealing with Plaintiff Church Ekklasia Sozo’s, Dr. Emery’s and/or

Dr. Bishop’s patients are false, and upon information and belief, include, to

wit:

a. Doctor is under investigation by the FDA, DEA, medical board or

any other government or organizational body;

b. Doctor’s medical license has been revoked or restricted by an

oversight or regulatory body;

c. Doctor is a drug dealer;

d. Doctor is writing too many prescriptions;

e. Supervised Drug Rehabilitation Program is not a legitimate

treatment program; and

f. Supervised Drug Rehabilitation Program cannot be a telemedicine

program.

(Compl. ¶ 101).

These allegations fall far short of the detail required to survive dismissal. Plaintiffs do not

identify the speaker of any alleged statement, the recipient of any alleged statement, the alleged

person about whom each statement was made, when the statement was made, where it was made,

or any other details providing context for the alleged statements.4 Accord Orndorff, 2018 WL

5284040, at *3 (dismissing the plaintiffs’ defamation claims, explaining that the “fragmented

quotes” set forth in the complaint failed “to allege who made each statement, “to provide any

context for each statement,” and therefore did not “allege sufficient facts to make the claim for

4 As Defendant notes, Plaintiffs’ failure to provide this detail is particularly critical in light of

North Carolina’s one-year statute of limitations for defamation. See N.C. GEN. STAT. § 1-54.

Thus, to the extent any of the alleged statements upon which Plaintiffs rely occurred on or before

July 13, 2019, they are barred by the statute of limitations.

30

defamation anything more than mere speculation on the part of the Court”); see also Bowman,

2015 WL 4508648, at *7 (dismissing defamation claim where plaintiffs alleged that defendants

made defamatory statements to plaintiffs’ “friends, acquaintances, and business associates

throughout North Carolina,” reasoning that “[t]hese are generalized claims that could mean just

about anybody” and that there was “no indication in the Plaintiffs’ Complaint as to where this

alleged defamation occurred, and only a vague indication as to the content of the defamation”);

Esancy, 2006 WL 322607, at *5 (dismissing defamation claims where plaintiff “does not allege

the specific individuals to whom the alleged defamatory statements were made, nor does he

allege the time or place of the defamatory communications”).

Beyond the allegations in Paragraph 101 discussed above, the only other purported

defamatory statements alleged in the Complaint are set forth in Paragraph 65. Specifically,

Plaintiffs allege that on July 19, 2019, when a CVS pharmacist at the Rutherfordton CVS

Pharmacy location declined to fill the prescription for Suboxone written by Dr. Emery, the

pharmacist explained that she was declining to fill the prescription because (1) “she did not

recognize the doctor who prescribed the Suboxone,” (2) “the program for prescribing the

Suboxone was an ‘internet thing,’” and (3) Doe did not “go[] in to see a doctor or have any

consultation with a doctor prior to receiving this prescription.” (Compl. ¶ 65).

Defendant contends that these statements cannot support a cause of action for

defamation, as they are all true. The Court agrees that, according to the pleadings, these

statements are true. The first alleged statement—that the unnamed pharmacist “did not recognize

the doctor who prescribed the Suboxone”—was presumably true (and Plaintiffs have not alleged

facts indicating otherwise). Even if false, this alleged statement would not injure Dr. Emery’s

reputation. Tyson, 84 N.C. App. at 12 (defamation fails where statement is “not of such nature

31

that the court can presume as a matter of law that it is injurious to the reputation of the

plaintiffs”).

Defendant further contends that the second alleged statement—that Doe received her

prescription through a program that was an “internet thing”—is also true. Indeed, Plaintiffs’ own

allegations confirm the truth of this alleged statement. Plaintiffs’ Complaint details that CES

patients register for the program online, watch videos online, and attend meetings online.

(Compl. ¶¶ 44–49). Moreover, even if false, the statement would not cause any injury to Dr.

Emery’s reputation certainly cannot support a claim for defamation per se. See Jackson v.

Mecklenburg Cnty., No. 3:07-cv-218, 2008 WL 2982468, at *5 (W.D.N.C. July 30, 2008) (to

qualify as defamation per se, the statement must be injurious to the plaintiff’s reputation even

when “stripped of all insinuations, innuendo, colloquium and explanatory circumstances”)

(citation omitted).

Finally, the third alleged statement—that the patient did not “go[] in to see a doctor” in

person to obtain the prescription—was likewise true. Plaintiffs’ own allegation again confirm the

truth of this alleged statement. Plaintiffs acknowledge that CES conducts telemedicine, which

does not include in-person meetings between physician and patient. (Compl. ¶¶ 38–50). Patients

sign up for the program online and conduct all meetings online. (Id. ¶¶ 44–48). Indeed, patients

need not even meet with physicians through livestream video: “If a patient is unable to attend the

live meeting . . . the meetings are recorded and available to watch online, which the patient must

do if he or she misses the live, online meeting.” (Id. ¶ 48). Thus, Defendant contends that, rather

than allege facts demonstrating the falsity of the purportedly defamatory statements at issue,

Plaintiffs’ Complaint confirms that the statements alleged in Paragraph 65 are true. Thus,

Plaintiffs have not alleged a claim for defamation based on these statements.

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Defendant CVS contends, and the Court agrees, that even if Plaintiffs had adequately

pled the elements of their defamation claims, and even if the alleged statements attributed to

CVS were false and defamatory, Plaintiffs’ defamation claims still fail because a qualified

privilege protects the alleged statements. North Carolina law is clear that “when an otherwise

defamatory communication is made in furtherance of a political, judicial, social, or personal

duty, the declarant is entitled to a qualified privilege unless actual malice is shown.” Kling v.

Harris Teeter Inc., 338 F. Supp. 2d 667, 673 (W.D.N.C. 2002); see also Dobson v. Harris, 352

N.C. 77, 86 (2000). Once a defendant establishes that the communication at issue is subject to a

qualified privilege, the burden shifts to plaintiffs to show that the privilege was abused. Harris v.

Procter & Gamble Mfg. Co., 102 N.C. App. 329, 332 (1991).

In North Carolina, both statutory and common law mandate that pharmacists owe a duty

of care to patients and the public. State statute recognizes that: “The General Assembly of North

Carolina finds that mandatory licensure of all who engage in the practice of pharmacy is

necessary to [e]nsure minimum standards of competency and to protect the public from those

who might otherwise present a danger to the public health, safety and welfare.” N.C. GEN. STAT.

§ 90-85.2. Additionally, North Carolina courts have recognized that pharmacists owe a “duty to

act with due, ordinary, care and diligence in compounding and selling drugs.” Batiste v. Am.

Home Prods. Corp., 32 N.C. App. 1, 8 (1977); see also Ferguson v. Williams, 92 N.C. App. 336,

339–40 (1988). For these reasons, courts have recognized that a qualified privilege applies to

statements made by a pharmacy or pharmacist to a patient regarding their prescribing doctor, his

or her qualifications, the prescriptions involved, or other such issues. See, e.g., Lefrock v.

Walgreens Co., 77 F. Supp. 3d 1199, 1201–02 (M.D. Fla. 2015) (qualified privilege found to

attach as a matter of law where statements “were made by a Walgreens’ pharmacist to pharmacy

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customers at the time the customers attempted to fill prescriptions, and the apparent purpose of

the statements was to inform the customers about the physician who wrote the prescription”); see

also DeBinder v. Albertson’s, Inc., 2008 WL 828775, at **3, 8 (D. Ariz. Mar. 26, 2008)

(applying qualified privilege to communication between pharmacist-technician and physician’s

office manager regarding problems physician’s office had with fraudulent prescriptions and

plaintiff patient’s pattern of “calling in prescriptions all over town”).

Although North Carolina courts have not addressed the matter directly, they have

recognized that a qualified privilege exists as to statements made by medical professionals

relating to the treatment of patients. See Brodkin v. Novant Health, Inc., 264 N.C. App. 6, 15

(2019). Such statements are protected because ensuring that a physician’s patients “receive the

appropriate medical treatment is unquestionably an important interest for all parties” to the

physician-patient relationship. Id. This same rationale applies with full force to the statements

alleged in Plaintiffs’ Complaint. CVS plainly shares a relationship, legal duty, and common

interest with its customers.

Specifically, both CVS and its customers share an interest in issues related to the

customers’ care and treatment, including their prescriptions (particularly for controlled

substances), the associated prescriber (such as Dr. Emery), and the prescriber’s prescribing

practices—including whether the prescriber personally met with his patients to ensure that

controlled substances were not subject to abuse. Therefore, both CVS and its customers shared a

common interest in the physician who prescribed controlled substances, and any statements CVS

made are subject to qualified privilege as a matter of law. See Brodkin, 264 N.C. App. 6, 14–15

(explaining that qualified privilege applied to protect “a good faith disagreement with a fellow

cancer doctor about the appropriate course of treatment during a meeting designed to encourage

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honest debate”); LeFrock, 77 F. Supp. 3d at 1201 (allegedly defamatory statements by

pharmacist to patient were protected by qualified privilege because the “apparent purpose of the

statements was to inform the customers about the physician who wrote the prescription”).

Because a qualified privilege attached to the alleged defamatory remarks, Plaintiffs must

overcome the privilege at the motion to dismiss stage by pleading facts demonstrating an abuse

of the privilege. A plaintiff can show that a qualified privilege was abused by pleading and

proving that the defendant excessively published the purportedly defamatory statement or acted

with actual malice in making the alleged statement. Alpar v. Weyerhaeuser Co., 20 N.C. App.

340, 346 (1974). Plaintiffs have not sufficiently alleged either of these potential abuses.

First, nothing in the Complaint indicates there was excessive publication of the alleged

defamatory remarks. Indeed, the Complaint does not even suggest how many times the remarks

were made, to how many persons, and in what fashion, or whether anyone outside of the alleged

recipients (who were attempting to fill the specific prescriptions involved) heard the remarks.

Instead, at most, the purported defamatory statements are alleged to have been made directly and

only to the person for whom such statements were entirely appropriate—the patient presenting

the prescription for a controlled substance. (See Compl. ¶ 65).

Second, Plaintiffs have not pled any facts in the Complaint that could support a finding

that any alleged speaker acted with malice. Plaintiffs make the conclusory allegation that the

alleged statements “were made with actual malice—i.e., with knowledge that they were false or

in reckless disregard of the truth.” (Compl. ¶ 193). But conclusory allegations of malice are

insufficient under Rule 8 and Iqbal. See Mayfield v. Nat’l Ass’n for Stock Car Auto Racing, Inc.,

674 F.3d 369, 378 (4th Cir. 2012) (rejecting allegation that defendants’ alleged statements “were

known by them to be false at the time they were made, were malicious or were made with

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reckless disregard as to their veracity” as “precisely the sort of allegations that Twombly and

Iqbal rejected”). The Complaint lacks any alleged facts supporting a finding of actual malice.

In sum, Plaintiffs fail to state a claim for defamation and, even if Plaintiffs did state a

claim for defamation, Defendant is protected by qualified privilege. This claim is therefore

dismissed.

8. Plaintiffs’ Claim for Breach of Legal Duty

In Plaintiffs’ final claim, Plaintiffs (specifically, Plaintiff Doe) allege that Defendant

CVS breached a duty of care to Doe by declining to fill a prescription for a controlled substance

written by Dr. Emery. As discussed above, North Carolina law imposes a general duty of care

upon pharmacists “to act with due, ordinary, care and diligence in compounding and selling

drugs.” Batiste, 32 N.C. App. at 8. This duty generally requires the pharmacist not to add to the

drug as prescribed or provide the patient a different drug than was provided. Ferguson, 92 N.C.

App. at 340.

Plaintiffs do not allege any such conduct by CVS. Instead, they assert that CVS had a

duty to fill every prescription written by CES, regardless of the pharmacist’s judgment. (Compl.,

¶ 174). Both federal and North Carolina expressly refute that contention. See 21 C.F.R. §

1306.04(a); N.C. Admin. Code § 46.1801(a). Plaintiffs’ theory would effectively strip

pharmacists of their ability to exercise professional judgment. For this reason, Plaintiffs fail to

state a claim for breach of a legal duty under North Carolina law, and this claim is dismissed.

IV. CONCLUSION

Plaintiffs seek to impose liability on CVS for the decision made by an unidentified CVS

pharmacist who allegedly declined to fill a prescription for a controlled substance. The Court has

carefully analyzed each of Plaintiffs’ separate claims and has found that Plaintiffs fail to state

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any cognizable claims against Defendant based on its pharmacists’ refusal to fill a prescription

for Suboxone ordered by the Plaintiff doctors. In the end, Plaintiffs’ alleged claims all fail for the

same reason. That is, North Carolina law makes clear that pharmacists have the right to decline

to fill prescriptions for controlled substances in the exercise of their professional judgment. See

21 N.C. Admin. Code 46.1801(a) (pharmacist “shall have the right to refuse fill or refill a

prescription order if doing so would be contrary to his or her professional judgment’’).

For the reasons stated herein, Defendants’ motion to dismiss is granted and this action is

dismissed with prejudice.

IT IS, THEREFORE, ORDERED that:

1. Defendants’ Motion to Dismiss, (Doc. No. 17), is GRANTED and this action is

dismissed with prejudice.

2. The Clerk is respectfully instructed to terminate this action.

September 27, 2021

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Max O. Cogburn i yg

United States District Judge Tie ga

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