Bonner v. Rite Aid Corp

1

ERNEST L. BONNER, JR., M.D., Plaintiff, v. RITE AID CORPORATION, and DOES 1 through 50, Defendants.

No. 2:19-cv-00674-MCE-JDP

United States District Court, E.D. California

May 23, 2023

MEMORANDUM AND ORDER

MORRISON C. ENGLAND, JR. SENIOR UNITED STATES DISTRICT JUDGE

On April 22, 2019, Plaintiff Ernest L. Bonner, Jr., M.D. (“Plaintiff”) initiated the present action against Defendant Thrifty Payless, Inc., doing business as Rite Aid (erroneously sued as Rite Aid Corporation) (“Defendant” or “Rite Aid”), pursuant to this Court's diversity jurisdiction under 28 U.S.C § 1332. Presently before the Court is Defendant's Motion for Summary Judgment or, alternatively, Adjudication of Issues, which has been fully briefed. ECF Nos. 66 (“Def.'s Mot.”), 69 (“Pl.'s Opp'n”), 71. For the reasons set forth below Defendant's Motion is GRANTED.^[1]

BACKGROUND

A. Factual Background^[2]

1. Defendant's Policies and Procedures

In March 2013, Defendant's Regulatory Compliance Department created a panel as part of an investigation/review program to ensure compliance with the U.S. Drug Enforcement Administration (“DEA”), title 21 of the Code of Federal Regulations, and the Federal Controlled Substances Act, “wherein pharmacies are required to monitor the dispensing of controlled substances, reduce the potential risk of abuse, and minimize dependence liability.” Hart Decl., ECF No. 66-4 ¶ 5. As such, the panel “reviews investigation files and determines whether any remedial measures need to be taken.” Id. In addition, Defendant also provides its own policies and guidelines to its employees regarding similar concerns. Id. ¶ 6. Among these policies are Defendant's “Procedures for Validation and Dispensing of High Alert Controlled Substances,” and “NexGen Automated Red Flag Documentation Process for High Alert Controlled Substances,” both of which require pharmacists to perform their due diligence in validating the legitimacy of prescriptions for controlled substances. See Exs. A-B, Hart Decl., ECF No. 66-4, at 8-22.

Defendant provides a six-step procedure for validating and dispensing controlled substances, and if a prescription cannot be filled, pharmacists are instructed to “relay this information to the patient” which “MUST be done in a respectful manner, [and the pharmacist must] never accuse the patient or make unnecessary comments.” See Hart Decl., ECF No. 66-4 ¶¶ 8-9 (alterations in original). If there is suspicious activity, Defendant's policies instruct pharmacists to fill out a “Service Now ticket,” in which “they enter their five (5) digit store number, where the issue occurred, and a description (i.e. prescriber name, prescriber address, prescriber DEA, and description of the suspicious activity).” Id. ¶ 10.

Defendant's investigation/review program consists of the following four steps:

A. Step 1: A “suspicious subscriber ticket” is submitted by a pharmacist at a Rite Aid location;

B. Step 2: The ticket, along with analytics (e.g. data received from a compilation of various pharmacies nationwide) is reviewed according to Rite Aid's policies;

C. Step 3: If there is evidence of possible suspicious activity, then clinical protocol will be initiated, and an investigation of the prescriber will proceed.

D. Step 4: The analytics and results from the investigation will then be reviewed by an investigation/review panel.

Id. ¶ 11. “If a decision is made to discontinue filling controlled substance prescriptions from a particular prescriber, the prescriber will be given written notice of the decision.” Id. ¶ 12. According to Defendant, such a decision is not permanent, and the “prescriber may contact Rite Aid and request that their case be revisited. Rite Aid will then continue to monitor the prescriber and may reinstate the prescriber as early as 6 months to 1 year.” Id. ¶ 13.

2. Defendant's Actions Toward Plaintiff

On January 22, 2019, a suspicious subscriber ticket was opened by one of Defendant's pharmacists at a Rite Aid store located in Sacramento, California. The subscriber ticket provided the following description:

Received a[] [prescription] written from [Plaintiff]. Prescriber notes state[] Walgreens does not accept this provider. Upon further investigation, the prescriber[']s phone number is listed under different patient profiles. [Phone numbers omitted] When we called the first number there was no answering machine or prompts. The person just answers it as “hello”. When asked to verify a[] [prescription] they said no one was in the office until Thursday. The patient wanted to ring [Plaintiff's] cell phone which we could not accept. Is this [doctor] acceptable to fill for? Unable to verify the [doctor's] info[.]

Ex. C, Hart Decl., ECF No. 66-4, at 24. This subscriber ticket was given to Janet Hart, Defendant's Director of the Government Affairs and Regulatory Affairs divisions, who then proceeded to review the analytics for Plaintiff. Hart Decl., ECF No. 66-4 ¶¶ 4-5, 15. According to Ms. Hart,

[t]he analytics for [Plaintiff] showed that his prescriptions from all pharmacies (e.g. Rite Aid, Walgreens, CVS) for noncontrolled substances had decreased from 45% in 2016 to 21% in 2019 (i.e. prescriptions for controlled substances increased from 55% to 79%) . . . Oxycodone (a semi-synthetic opioid drug prescribed for pain), in particular, comprised of 41.5% of his overall prescribed medications [between December 2018 and February 2019].

Id. ¶ 16; see also Ex. D, Hart Decl., ECF No. 66-4, at 26-27 (analytics for Plaintiff); but see Pl.'s Opp'n, at 11 (“Those charts confirm[] that Plaintiff['s] patient load had increased significantly by March, 2018. . . . Defendant's charts confirm a 35% reduction of the opiate Pain medication, a 49% reduction of Benzodiazepines (i.e. Alprazolam, Diazepam), and also 52% reduction of non-scheduled medication between March 2018 and February 2019.”). Based on a review of the analytics and the subscriber ticket, Defendant initiated clinic protocol and commenced an investigation of Plaintiff. Hart Decl., ECF No. 66-4 ¶ 16.

On March 29, 2019, the investigation/review panel, which Ms. Hart is a part of, reviewed a number of prescribers and unanimously decided to discontinue filling prescriptions for controlled substances written by thirteen prescribers, including Plaintiff. But see Pl.'s Statement of Disputed Facts, ECF No. 69-2, at 5 ¶ 17 (disputing on grounds that “there is no evidence provided as to whom the 13 prescribers were or whether there were 12 other prescriber[s] that were Black listed by Rite Aid.”). According to Ms. Hart, the decision to discontinue filling Plaintiff's prescriptions for controlled substances was based, in part, on Plaintiff's high and increased number of prescriptions for controlled substances, and that 41.5% of Plaintiff's overall prescriptions were for Oxycodone. See Hart Decl., ECF No. 66-4 ¶ 18.

On April 1, 2019, Defendant sent Plaintiff a letter which stated the following:

This is to notify you that our pharmacy locations will no longer fill prescriptions from your office for Schedule II, III, IV and V controlled substances effective April 15, 2019. Rite Aid has taken this action because of our concern about increased reports of controlled substance prescription drug abuse, especially Oxycodone. Rite Aid and our pharmacists have a responsibility to take appropriate steps to reduce the potential that drugs we dispense are not diverted or abused.

We regret any inconvenience that this action may cause. However, Rite Aid is committed to reducing the potential for diversion and abuse of controlled substances and finds it necessary to take this action at this time. If you have any questions regarding this matter, you may direct those questions to Janet Hart, Government Affairs at [contact information omitted.]

Ex. J, Hart Decl., ECF No. 66-4, at 52. Ms. Hart states in her declaration that to date, Plaintiff “has never made a request regarding his case reevaluation or revisitation.” Hart Decl., ECF No. 66-4 ¶ 22. However, Plaintiff states that he “was never informed that he could challenge[]” this decision or that this decision was not permanent. See Pl.'s Statement of Disputed Facts, ECF No. 69-2, at 7 ¶¶ 27-28.

3. Effect on Plaintiff's Patients

In response to Defendant's Special Interrogatories, Set One, Plaintiff identified, in part, four patients as witnesses and they were subsequently deposed. See Ex. G, Maxwell Decl., ECF No. 66-5, at 81-87. The Court will recount their deposition testimonies below.

a. Cecelia Burke

In 2019, Ms. Burke attempted to fill her Oxycodone prescription written by Plaintiff at one of Defendant's pharmacies in Castro Valley, California. See Ex. H, Burke Dep., ECF No. 66-5, at 91-92. However, Ms. Burke was told that Defendant “can't fill this prescription, and [she] said okay.” Id. at 92-93 (unable to remember who she spoke to). She could not recall any one at the pharmacy giving her a specific reason behind the refusal, only that the conversation was very brief and she did not ask any follow-up questions. Id. at 93. Ms. Burke was able to fill the prescription at another pharmacy. Id.

Additionally, Ms. Burke testified that she was no longer Plaintiff's patient but confirmed that Defendant's refusal to fill her prescription was not a reason behind her decision to leave Plaintiff. See id. at 94. When asked why she left, Ms. Burke stated: “You know, I'd really rather not get into that if that's possible. Um, having to wait hours and hours and hours and hours for an appointment became very frustrating to me.” Id. at 96-97.

b. Margaret Fenton

On April 12, 2019, Defendant filled Ms. Fenton's prescription for Buprenorphine, which was written by Plaintiff. See Ex. I, Fenton Dep., ECF No. 66-5, at 102. A few days later, on April 17,...