Post v. Amerisourcebergen Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

FRANCES G. POST,

Plaintiff,

v. CIVIL NO. 1:19-CV-73

(KLEEH)

AMERISOURCEBERGEN CORPORATION,

US BIOSERVICES CORPORATION,

I.G.G. OF AMERICA, INC., and

IHS ACQUISITION XXX, INC.,

Defendants.

MEMORANDUM OPINION AND ORDER

DENYING MOTION FOR CLASS CERTIFICATION [ECF NO. 135]

Pending before the Court is a motion for class certification

[ECF No. 135]. For the reasons discussed herein, the Court DENIES

the motion.

I. BACKGROUND AND PROCEDURAL HISTORY

On April 8, 2019, Plaintiff Frances G. Post (“Plaintiff”)

filed her original complaint in this case. Plaintiff believes she

was wrongfully proscribed immunoglobulin (“IVIG”) by Dr. Felix

Brizuela (“Brizuela”). She alleges that the

Defendants — Amerisourcebergen Corporation, U.S. Bioservices

Corporation, I.g.G. of America, Inc., and IHS Acquisition XXX,

Inc. (together, “Defendants”) — unlawfully made payments to

Brizuela to induce him to misdiagnose her and other putative class

members, which would and did result in Brizuela’s referral of them

MEMORANDUM OPINION AND ORDER

DENYING MOTION FOR CLASS CERTIFICATION [ECF NO. 135]

to Defendants for IVIG therapy. In the Second Amended Complaint,

Plaintiff brings the following causes of action:

•

Count One: Negligence;

•

Count Two: Personal Injury;

•

Count Three: Civil Conspiracy;

•

Count Four: Fraudulent Concealment;

•

Count Five: Unjust Enrichment/Disgorgement;

•

Count Six: Breach of Confidentiality and

Violation of Privacy; and

• Count Seven: Medical Negligence.1

II. DISCUSSION

Plaintiff wants to be the class representative for all persons

who were prescribed IVIG by Brizuela between April 3, 2012, and

March 19, 2015, and were directed to Defendants for purchase of

IVIG. She requests that class certification be granted for Counts

One, Three, Four, Five, and Six, along with punitive damages.

Plaintiff’s counsel wish to serve as counsel for the certified

class.

Plaintiff will seek the return of every payment made from

every source from all Brizuela referrals where the referral was

1 In February 2019, two months prior to filing this action,

Plaintiff filed an individual action against Brizuela in the

Circuit Court of Monongalia County, West Virginia, Civil Action

No. 19-C-36.

MEMORANDUM OPINION AND ORDER

DENYING MOTION FOR CLASS CERTIFICATION [ECF NO. 135]

initiated between April 3, 2012, and March 9, 2015; all medical

bills associated with administration of IVIG; interest; harm to

class members’ interest in privacy resulting from the invasion;

costs associated with future protection of privacy interests;

compensatory relief for invasion of privacy by intrusion and other

privacy rights violations; damages stemming from Defendants’

negligence; and punitive damages.

Under Rule 23(a) of the Federal Rules of Civil Procedure,

One or more members of a class may sue or be

sued as representative parties on behalf of

all members only if:

(1) the class is so numerous that joinder of

all members is impracticable;

(2) there are questions of law or fact common

to the class;

(3) the claims or defenses of the

representative parties are typical of the

claims or defenses of the class; and

(4) the representative parties will fairly

and adequately protect the interests of the

class.

The plaintiff carries the burden of showing compliance with

Rule 23. EQT Prod’n Co. v. Adairu, 764 F.3d 347, 357 (4th Cir.

2014). Rule 23(b)(3) provides that a class may be certified if

“the court finds that the questions of law or fact common to class

members predominate over any questions affecting only individual

members, and that a class action is superior to other available

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DENYING MOTION FOR CLASS CERTIFICATION [ECF NO. 135]

methods for fairly and efficiently adjudicating the controversy.”

These elements are referred to as the “predominance” and

“superiority” requirements. In their response to Plaintiff’s

motion, Defendants challenge the elements of typicality and

adequacy, and they argue that Rule 23(b)(3) is not satisfied. For

the reasons that follow, the Court agrees with Defendants.

A. Plaintiff has failed to prove typicality under Rule

23(a)(3) and adequacy under 23(a)(4).

Rule 23(a)(3) requires that “the claims or defenses of the

representative parties are typical of the claims or defenses of

the class.” To satisfy the typicality requirement, “a class

representative must be a part of the class and possess the same

interest and suffer the same injury as the class members.”

Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 (4th Cir. 2001)

(citation omitted). A plaintiff must show “(1) that their

interests are squarely aligned with the interests of the class

members and (2) that their claims arise from the same events and

are premised on the same legal theories as the claims of the class

members.” Baxley v. Jividen, 338 F.R.D. 80, 88 (S.D.W. Va. 2020)

(Chambers, J.). “[T]he fact that the named plaintiffs have the

same general complaint against the defendant does not render their

claims typical.” Waters v. Electrolux Home Prods., Inc., No.

5:13CV151, 2016 WL 3926431, at *5 (N.D.W. Va. July 18, 2016)

MEMORANDUM OPINION AND ORDER

DENYING MOTION FOR CLASS CERTIFICATION [ECF NO. 135]

(Stamp, J.).

Related to typicality is the requirement that “the

representative parties will fairly and adequately represent the

class.” See Fed. R. Civ. P. 23(a)(4). “This determination

requires a two-pronged inquiry: (1) the named plaintiffs must not

have interests antagonistic to those of the class; and (2) the

plaintiffs’ attorneys must be qualified, experienced and generally

able to conduct the litigation.” In re Serzone Prods. Liab.

Litig., 231 F.R.D. 221, 238 (S.D.W. Va. Sept. 2, 2005). “The

adequacy inquiry under Rule 23(a)(4) serves [in part] to uncover

conflicts of interest between named parties and the class they

seek to represent.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591,

625 (1997) (citation omitted). For a conflict of interest to

defeat the adequacy requirement, “that conflict must be

fundamental.” Gunnells v. Healthplan Servs., 348 F.3d 417, 430

(4th Cir. 2003) (citation and internal quotations omitted).

When a class representative’s claim is subject to a unique

defense, it is more likely that the class representative is

atypical under Rule 23(a)(3) and inadequate under Rule 23(a)(4).

See Beck v. Maximus, Inc., 457 F.3d 291, 296 (3d Cir. 2006)

(finding presence of unique defense relevant to both the typicality

and adequacy requirements); Harris v. Sand Canyon Corp., 274 F.R.D.

556, 568 (D.S.C. 2010) (finding plaintiffs “would inadequately

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DENYING MOTION FOR CLASS CERTIFICATION [ECF NO. 135]

fill the role of class representatives because their action

involves a host of legal and factual issues unique to them that

are likely to distract from their representation of the class and

risk putting the claims of the other class members in jeopardy”).

Here, with respect to typicality, Plaintiff argues that

typicality is satisfied because she has suffered the same class of

injuries as all other Brizuela referrals; she was referred to

Defendants by Brizuela while he was receiving prohibited payments

from Defendants; and Defendants immediately accessed Plaintiff’s

private health, financial, and insurance information on the day

Brizuela faxed a referral form to them.

With respect to adequacy, Plaintiff argues that adequacy is

satisfied because her counsel has information, knowledge, and

experience with chronic inflammatory demyelinating polyneuropathy

(“CIDP”) (the medical diagnosis that applies to the class members),

along with the IVIG prescription and infusion process; her counsel

has experience litigating class actions, mass torts, medical

records privacy, and other complex litigation; and Plaintiff has

incentive to protect the interest of all class members because her

claims and the class members’ claims stem from the same bad

conduct.

In response, Defendants argue that Plaintiff is atypical and

inadequate because Plaintiff’s claims are subject to a unique

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DENYING MOTION FOR CLASS CERTIFICATION [ECF NO. 135]

defense; Plaintiff has abandoned any claims and/or relief related

to personal injury and related claims; and Plaintiff was a Medicare

beneficiary, but a significant number of individuals in the

proposed class were not. With respect to adequacy only, Defendants

argue that Plaintiff’s counsel submitted an affidavit to defeat

Defendants’ motion for partial summary judgment, so he has made

himself a witness and cannot represent the class.

The Court finds Defendants’ arguments persuasive. First,

because the Court has already found that Plaintiff’s invasion of

privacy and breach of confidentiality claim (Count Six) is barred

by the statute of limitation, Plaintiff is atypical and inadequate.

See ECF No. 150. The statute of limitation issue is prejudicial to

and “put[s] the claims of the other class members in jeopardy.”

See Harris, 274 F.R.D. at 568. Class members are bound by this

result — Count Six is now extinguished for them. See In re MI

Windows and Doors, Inc., Prods. Liab. Litig., 860 F.3d 218, 223

(4th Cir. 2017) (a judgment entered in a class action is binding

on class members); Deiter v. Microsoft Corp., 436 F.3d 461, 466

(4th Cir. 2006) (“The essence of the typicality requirement is

captured by the notion that ‘as goes the claim of the named

plaintiff, so go the claims of the class.’”).

Second, Plaintiff is atypical and inadequate because she has

abandoned any claims and/or relief related to personal injury and

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DENYING MOTION FOR CLASS CERTIFICATION [ECF NO. 135]

related damages. The Second Amended Complaint alleges that she

and putative class members suffered “physical and financial harm,

injuries and damages” as a result of misdiagnosis and unnecessary

IVIG treatment. Despite these allegations, Plaintiff’s motion for

class certification does not seek certification for Count Two

(personal injury) or Count Seven (medical negligence).

Plaintiff’s decision to abandon these grounds for relief presents

a conflict of interest and renders her an inadequate class

representative. As Defendants point out, this conflict is even

more apparent given that Plaintiff filed an individual lawsuit

against Brizuela in state court, alleging in that case that she

suffered physical and financial harm. She entered into a

settlement agreement in that case. Thus, Plaintiff has already

recovered for any alleged physical injury, and the putative class

members would be deprived of the same opportunity.

Third, the Court finds that Plaintiff is atypical when it

considers her unjust enrichment claim. Plaintiff’s unjust

enrichment theory is that Plaintiff and class members are entitled

to a refund of monies paid for IVIG treatment because they were

“prohibited referrals.” This is a reference to the Stark Law,

which applies only to Medicare beneficiaries. While Plaintiff was

a Medicare beneficiary, a significant number of putative class

members were not. For these reasons, typicality and adequacy are

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DENYING MOTION FOR CLASS CERTIFICATION [ECF NO. 135]

not satisfied, and Plaintiff’s motion to certify the class fails.

B. Plaintiff has failed to show that questions of law or

fact common to class members predominate over any

questions affecting only individual members.

Rule 23(b)(3) requires that “questions of law or fact common

to class members predominate over any questions affecting only

individual class members.” While related, the commonality

requirement of Rule 23(a)(3) and predominance requirement of Rule

23(b)(3) are separate inquiries. See Brown v. Nucor Corp., 785

F.3d 895, 918 n.22 (4th Cir. 2015) (citation omitted). As compared

to commonality, “the predominance criterion is far more

demanding.” Amchem, 521 U.S. at 623–24 (citation omitted). “[T]he

mere fact that the defendants engaged in uniform conduct is not,

by itself, sufficient to satisfy Rule 23(b)(3)’s more demanding

predominance requirement. The predominance inquiry focuses on

only on the existence of common questions, but also on how those

questions relate to the controversy at the heart of the

litigation.” Adair, 764 F.3d at 366 (citation omitted). Because

the predominance requirement is more demanding than the

commonality requirement, it has been recognized that commonality

is “subsumed under, or superseded by, the more stringent Rule

23(b)(3) requirement that questions common to the class

predominance over other questions.” Lienhart, 255 F.3d at 146 n.4

(citation omitted).

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DENYING MOTION FOR CLASS CERTIFICATION [ECF NO. 135]

“The predominance inquiry focuses on whether liability issues

are subject to class-wide proof or require individualized and fact-

intensive determinations.” Kay Co., LLC v. EQT Prod’n Co., No.

1:13-CV-151, 2017 WL 10436074, at *10 (N.D.W. Va. Sept. 6, 2017)

(Bailey, J.). “Considering whether ‘questions of law or fact

common to class members predominate’ begins, of course, with the

elements of the underlying cause of action.” Erica P. John Fund,

Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011). Rule 23

requirements are “inextricably linked with the elements of a

particular claim.” Krakauer v. Dish Network, L.L.C., 925 F.3d

643, 655 (4th Cir. 2019). “Where . . . the issue of liability

turns on something peculiar to the individual plaintiffs, such as

the plaintiffs’ responses or states of mind, then common questions

have been held not to predominate.” Ruffin v. Entm’t of the

Eastern Panhandle, No. 3:11-cv-19, 2012 WL 5472165, at *10 (N.D.W.

Va. Nov. 9, 2012) (Groh, J.).

Defendants point out that Plaintiff’s motion to certify the

class does not address the elements of each cause of action or

whether those elements are capable of being established through

common, class-wide proof. For the reasons that follow, the Court

finds that individual issues predominate for Plaintiff’s

negligence claim (Count One), fraudulent concealment claim (Count

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DENYING MOTION FOR CLASS CERTIFICATION [ECF NO. 135]

Four), and unjust enrichment claim (Count Five).2

1. Individual issues predominate for Plaintiff’s

negligence claim (Count One).

“In a negligence suit, a plaintiff is required to show four

basic elements: duty, breach, causation, and damages.” Hersh v.

E-T Enters., Ltd. P’Ship, 752 S.E.2d 336, 341 (W. Va. 2013)

(superseded by statute on other grounds). Negligence claims

generally require damages from property loss or personal injury.

See E. Steel Constructors, Inc. v. City of Salem, 549 S.E.2d 266,

271–72 (W. Va. 2001). The Court agrees with Defendants that

whether their alleged negligence caused class members to suffer

bodily injury due to unnecessary medical treatment requires proof

through individualized medical evidence.

Plaintiff’s personal medical experience is specific to her.

It is not common, class-wide proof to establish whether other

individuals had CIDP or benefitted from IVIG. For the same reason,

courts have previously rejected class certification in cases

involving the appropriateness of medical treatment. See, e.g.,

Dobson v. Hartford Fin. Servs. Grp., Inc., 342 F. App’x 706, 709

(2d Cir. 2009) (factual basis for each claim “may be as

2 Plaintiff did not move to certify a class for Counts Two or

Seven; the Court has already dismissed Count Six; and, as

Defendants point out, Count Three (Civil Conspiracy) is not a

stand-alone cause of action.

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DENYING MOTION FOR CLASS CERTIFICATION [ECF NO. 135]

particularized as each individual’s medical history” and “[s]uch

an inquiry is ill-suited for disposition via a class action because

there is insufficient commonality”); In re Yasmin and Yaz

(Drospirenon) Marketing, 275 F.R.D. 270, 276–77 (S.D. Ill. 2011)

(denying class certification where establishing causation would

require “an examination of each class member’s medical history”);

Lewallen v. Medtronic USA, Inc., No. C 01-20395 RMW, 2002 WL

31300899, at *4 (N.D. Cal. Aug. 28, 2002) (“What each doctor told

each patient, the risks assumed by each patient, and the

anticipated course of treatment for each patient are all highly

individualized inquiries.”).

Due to the highly individualized inquiries at issue, the Court

agrees with Defendants that the negligence claim is inappropriate

for class treatment.

2. Individual issues predominate for Plaintiff’s

fraudulent concealment claim (Count Four).

Under West Virginia law,

The essential elements in an action for fraud

are: (1) that the act claimed to be fraudulent

was the act of the defendant or induced by

him; (2) that it was material and false; that

plaintiff relied upon it and was justified

under the circumstances in relying upon it;

and (3) that he was damaged because he relied

upon it.

Syl. Pt. 1, Lengyel v. Lint, 280 S.E.2d 66 (W. Va. 1981) (citation

and internal quotation marks omitted). “Fraudulent concealment

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DENYING MOTION FOR CLASS CERTIFICATION [ECF NO. 135]

involves the concealment of facts by one with knowledge or the

means of knowledge, and a duty to disclose, coupled with an

intention to mislead or defraud.” Trafalgar House Constr., Inc.

v. ZMM, Inc., 567 S.E.2d 294, 300 (W. Va. 2002) (citation omitted).

“It must be remembered that, at its core, fraudulent concealment

is a form of fraud.” Michael v. Consolidation Coal Co., No.

1:14CV212, 2017 WL 1197828, at *13 (N.D.W. Va. Mar. 31, 2017)

(Keeley, J.).

“Fraudulent concealment involves the concealment of facts by

one with knowledge or the means of knowledge, and a duty to

disclose, coupled with an intention to mislead or defraud.”

Trafalgar House Constr., Inc. v. ZMM, Inc., 567 S.E.2d 294, 300

(W. Va. 2002) (citation omitted). Importantly, the reliance

element of fraud requires a plaintiff to prove that he actually,

subjectively relied upon the fraudulent act and then that such

reliance was justified and reasonable. See Syl. Pt. 1, Lengyel, 280

S.E.2d 66; JPMorgan Chase Bank, N.A. v. Orca Assets G.P., L.L.C.,

546 S.W.3d 648, 653 (Tex. 2018) (a plaintiff “must show that it

actually relied on the defendant’s representation and, also, that

such reliance was justifiable”).

Because reliance is an individualized determination, it is

well recognized that claims for common law fraud are not amenable

to class certification. As the Fourth Circuit has stated,

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DENYING MOTION FOR CLASS CERTIFICATION [ECF NO. 135]

“individual inquiries into reliance typically preclude a finding

that common issues of fact predominate.” Gariety v. Grant

Thornton, LLP, 368 F.3d 356, 370 (4th Cir. 2004).

Here, Plaintiff alleges in the Second Amended Complaint that

she and class members “would not have purchased IVIG from

Defendants” had the payments to Brizuela been disclosed, but she

identifies no common evidence or method by which this can be proven

on a class-wide basis. Whether a putative class member would have

proceeded with IVIG if the payments to Brizuela had been disclosed

is an inherently individualized inquiry. See Brown v. Regents of

Univ. of Cal., 198 Cal. Rptr. 916, 920 (Cal. Ct. App. 1983)

(denying class certification of fraud claim regarding decision to

pursue medical treatment because “[w]hether a particular class

member relied on the representation, for example, will require

close scrutiny of what was said between a class member and his

physician” and “[a] class member’s particular medical condition

and method of treatment must be examined in order to determine

proximate cause”). Decisions involving medical treatment involve

a number of factors, all of which are specific to the individual.

These could include the patient’s communications and interactions

with Brizuela, the severity and duration of their physical

symptoms, and their history of other treatments. For these

reasons, the Court agrees with Defendants that the fraudulent

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concealment claim is inappropriate for class treatment.

3. Individual issues predominate for Plaintiff’s

unjust enrichment claim (Count Five).

i. Unjust enrichment depends upon the medical

necessity of the IVIG for each putative class

member.

Under West Virginia, an unjust enrichment claim includes the

following elements: “(1) a benefit conferred upon the defendant;

(2) an appreciation or knowledge by the defendant of such a

benefit; and (3) the defendant’s acceptance of the benefit under

such circumstances as to make it inequitable for the defendant to

retain the benefit without payment of its value.” Span Constr. &

Eng’g, Inc. v. Uwharrie Builders, LLC, No. 3:18-CV-178, 2019 WL

1574233, at *2 (N.D.W. Va. Jan. 30, 2019) (Groh, J.). Assuming

unjust enrichment is a vehicle for a plaintiff to recover amounts

paid for unnecessary medical treatment, courts recognize that

adjudication of such claims is highly individualized and class

treatment is not appropriate. Simply put, whether the defendant

was unjustly enriched by retaining the payment for the medical

treatment is dependent upon whether each individual received a

benefit from the treatment. See, e.g., Brown v. Kerkhoff, 279

F.R.D. 479, 494 (S.D. Iowa 2012) (“[U]njust enrichment requires an

individualized determination of how much each patient has been

damaged, which in the present case is premised upon the medical

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DENYING MOTION FOR CLASS CERTIFICATION [ECF NO. 135]

necessity and any associated benefits of the care given.”); In re

Baycol Prods. Litig., 265 F.R.D. 453, 457-58 (D. Minn. 2008)

(denying class certification of unjust enrichment because whether

any individual benefitted from Baycol would require consideration

of each individual’s particular medical history). Just as with

Plaintiff’s negligence claim, there is no common method or evidence

to adjudicate the unjust enrichment claim on a class-wide basis

because it is dependent upon the necessity and appropriateness of

each class member’s diagnosis and treatment.

ii. There is no standing to recover amounts paid

by Medicare on the grounds that there was a

“prohibited referral” under the Stark Law.

Plaintiff’s motion suggests that her theory of unjust

enrichment is no longer tied to the medical appropriateness of the

CIDP diagnosis and necessity of IVIG treatment. Instead,

Plaintiff’s theory is that, even if the IVIG treatment was

medically necessary and appropriate, Defendants must refund money

collected because the referrals from Brizuela were “prohibited

referrals” and the amounts paid were, therefore, “overpayments.”

The Court agrees with Defendants that Plaintiff’s theory of unjust

enrichment is an impermissible invocation of the Stark Law, and

even if it is not, Plaintiff has not shown that she can recover

for the alleged prohibited referrals under any other theory.

Because the purpose of the Stark Law is to protect the

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DENYING MOTION FOR CLASS CERTIFICATION [ECF NO. 135]

government, there is no private cause of action for violations of

it, and private parties may only enforce it on behalf of the United

States through the qui tam provisions of the False Claims Act

(“FCA”). See United States ex rel. Drakeford v. Tuomey Healthcare

Sys., Inc., 675 F.3d 394, 396 (4th Cir. 2012). Specifically, if

an entity has received payment from Medicare pursuant to a

prohibited referral, this constitutes what is referred to as an

“overpayment” that is required to be returned to Medicare. See 42

U.S.C. § 1320a-7k(d)(1); 42 C.F.R. § 401.305(a). If an overpayment

is not returned, the statute and regulation provide that is to be

enforced through the FCA. See 42 U.S.C. § 1320a-7k(d)(3); 42

C.F.R. § 401.305(e) (same). An FCA action can only be brought in

the name of the United States. See 31 U.S.C. § 3730(b)(1); United

States ex rel. Milam v. Univ. of Texas M.D. Anderson Cancer Ctr.,

961 F.2d 46, 48 (4th Cir. 1992).

The problems with Plaintiff’s theory are two-fold. First, if

a patient was not a Medicare beneficiary, the Stark Law does not

apply. Therefore, the Brizuela referral was not “prohibited” and

did not result in an “overpayment.” Second, Plaintiff has no

standing to recover amounts that were paid by Medicare and are

recoverable by Medicare under the Stark Law.

In Defendants’ motion to dismiss, they challenged Plaintiff’s

reliance upon violations of the Stark Law when there is clearly no

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private cause of action under that statute. See ECF No. 15-2 at

3-5. In her Response, Plaintiff claimed she was not relying upon

the Stark Law, but was asserting claims for tortious conduct

causing personal injuries and damages:

The Stark Act and Anti-Kickback statute supply

the government a method for taking action to

redress the financial harm caused to it

through illegal Medicare and Medicaid charges.

Those statutes do not prohibit a person from

asserting state-based claims caused by

tortious conduct which cause personal injuries

and damages.

ECF No. 19 at 11. The Court relied upon these allegations and

arguments of personal injuries and damages in denying the motion:

Here, Plaintiff does not allege violations of

the FCA or causes of action under the Stark

Act or Anti-Kickback Law as grounds for

recovery. Rather, she brings a common law

negligence claim and claim for personal

injuries related to Defendants’ conduct in

providing wrongful . . . encouragement to

Felix Brizuela, D.O. to diagnose CIDP and

increase Defendants’ new-book IVIG

transactions . . . .

ECF No. 43 at 12-13.

Plaintiff’s claims no longer appear to be based upon common

law negligence for personal injuries. Instead, the motion for

class certification makes clear that the basis for Plaintiff’s

unjust enrichment claim is that there was a “prohibited referral”

and an “overpayment,” which is an improper attempt to enforce the

Stark Law.

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DENYING MOTION FOR CLASS CERTIFICATION [ECF NO. 135]

In Plaintiff’s Reply, she argues that Defendants violated W.

Va. C.S.R. § 15-1-19.12, which was promulgated pursuant to the

Pharmacy Practice Act, W. Va. Code § 30-5-3. That regulation

provides, “No pharmacist or pharmacy shall enter into or engage in

any agreement or arrangement with any practitioner which may tend

to exploit the patient, nor shall he or she enter into an agreement

of any kind where in any way a patient’s free choice of pharmacist

or pharmacy is limited in any manner.” Plaintiff argues that under

section 55-7-9 of the West Virginia Code she may recover because

“[a]ny person injured by the violation of any statute may recover

from the offender such damages as he may sustain by reason of the

violation.” Plaintiff also asserts in her Reply that Defendants

were engaged in “marketing” under 45 C.F.R. § 164.508(a)(4).

First, even if the “marketing” provision of HIPAA were

applicable, it would still require individualized inquiries as to

each member of the class. Further, the Court agrees with

Defendants that Plaintiff has no private cause of action for an

alleged violation of W. Va. C.S.R. § 15-1-19.12. In determining

whether negligence may be asserted based upon violation of a

statute, the Court applies the following test:

(1) the plaintiff must be a member of the class

for whose benefit the statute was enacted; (2)

consideration must be given to legislative

intent, express or implied, to determine

whether a private cause of action was

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intended; (3) an analysis must be made of

whether a private cause of action is

consistent with the underlying purposes of the

legislative scheme; and (4) such private cause

of action must not intrude into an area

delegated exclusively to the federal

government.

Syl. Pt. 1, Hurley v. Allied Chem. Corp., 262 S.E.2d 757 (W. Va.

1980). W. Va. C.S.R. § 15-1-19.12 is a Board of Pharmacy rule of

professional conduct, and there is no indication that it was

intended to create a private right of action. The regulations

state that a violation of the rules subjects a pharmacist to

disciplinary action by the Board of Pharmacy. See W. Va. C.S.R.

§ 15-1-19.14.2 (2011). Further, the Medical Professional

Liability Act provides the “exclusive remedy” for actions against

health care providers. Manor Care, Inc. v. Douglas, 763 S.E.2d

73, 87 (W. Va. 2014).

For all of these reasons, the Court agrees with Defendants

that the unjust enrichment claim is inappropriate for class

treatment.

III. CONCLUSION

Plaintiff has failed to satisfy the requirements of Rules

23(a)(3), 23(a)(4), and 23(b)(3) of the Federal Rules of Civil

Procedure. For the reasons discussed above, the Court DENIES the

motion for class certification [ECF No. 135]. The parties are

DIRECTED to submit, on or before September 15, 2023, a joint

POST V. AMERISOURCEBERGEN ET AL. 1:19-CV-73

MEMORANDUM OPINION AND ORDER

DENYING MOTION FOR CLASS CERTIFICATION [ECF NO. 135]

proposed schedule to govern the case moving forward.

It is so ORDERED.

The Clerk is DIRECTED to transmit copies of this Memorandum

Opinion and Order to counsel of record.

DATED: August 29, 2023

THOMAS S. KLEEH, CHIEF JUDGE

NORTHERN DISTRICT OF WEST VIRGINIA

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