Bryant v. Express Scripts Inc.

CONNIE BRYANT v. EXPRESS SCRIPTS INC

CASE NO. 3:20-CV-01343

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DIVISION

March 15, 2021

JUDGE TERRY A. DOUGHTY

MAG. JUDGE KAYLA D. MCCLUSKY

REPORT AND RECOMMENDATION

Before the court is a motion to dismiss for failure to state a claim by Defendant Express Scripts, Inc. [doc. # 6]. The motion is opposed. [doc. # 12]. For the following reasons, it is recommended that the motion to dismiss be GRANTED IN PART and DENIED IN PART as premature. It is further recommended that Plaintiff be given an opportunity to amend her complaint to state her claims under the Employee Retirement Income Security Act of 1974, 29 U.S.C. §1001, et seq. ("ERISA").

Background

Plaintiff Connie Bryant ("Plaintiff") alleges that Defendant Express Scripts, a Pharmacy Benefits Manager ("PBM"),¹ denied her claim for prescription drugs to which she was allegedlyentitled, and that the denial of her prescription caused her to be injured. [doc. # 1-3, p. 1]. Specifically, Plaintiff claims that Defendant did not authorize or approve the prescription of the anticoagulant Xarelto that a physician's assistant wrote her after she underwent knee replacement surgery on September 18, 2019. [doc. # 1-3, p. 1]. As a result, Plaintiff was allegedly placed on an alternative therapy of four aspirin per day for two weeks by a physician's assistant until the prior authorization could be completed. [doc. # 1-3, p. 2]. However, the prior authorization was apparently rejected by Defendant, and Plaintiff continued to take four aspirin per day as a substitute for Xarelto for far longer than two weeks. [doc. # 1-3, p. 2].

On November 11, 2019, Plaintiff experienced acute respiratory distress and chest pain, and she went to St. Francis Medical Center where it was discovered that she had a popliteal thrombus in her left leg and a pulmonary emboli in the lower lobe of her right lung. [doc. # 1-3, p. 2]. She was discharged with another prescription of Xarelto, but, again, Defendant allegedly refused to approve the prescription. [doc. # 1-3, p. 2]. Finally, with help from a physician's assistant, Plaintiff was able to get Xarelto approved by Defendant on December 9, 2019. [doc. # 1-3, p. 2]. She received her first dose of Xarelto on December 19, 2019, three months after she was initially prescribed it. [doc. # 1-3, p. 2].

On September 18, 2020, Plaintiff filed suit in the Fourth Judicial District Court for Ouachita Parish, State of Louisiana. [doc. # 1-3]. Plaintiff claims that Defendant's failure to timely and properly approve her prescription caused her injury by causing a thrombus in her left leg and pulmonary emboli in her lungs. [doc. # 1-3, p. 3]. She is seeking damages for (1) past and future medical expenses, (2) past and future physical pain and suffering, (3) past and future emotional suffering and mental anguish, and (4) loss of enjoyment of life. [doc. # 1-3, p.3].

On October 15, 2020, Defendant removed this case to federal court based on federal question jurisdiction, arguing that Section 502(a) of ERISA completely preempts Plaintiff's state law claims because her claims concern benefit determinations under an ERISA plan. [doc. # 1]. Further, Defendant asserts in the alternative that this Court has diversity jurisdiction because the Plaintiff and Defendant are citizens of different states, and the amount in controversy exceeds $75,000. [doc. # 1, p. 5-6].

Plaintiff admits that her health benefit plan is the UAW Retiree Medical Benefits Trust and does not dispute that this plan is an ERISA plan. [doc. # 12, p. 7]. Further, the law is well settled that the UAW Retiree Medical Benefits Trust plan is governed by ERISA [doc. # 6-1, p. 5].

Defendant filed a motion to dismiss for failure to state a claim on October 22, 2021, alleging that Plaintiff's state law claims for damages associated with being denied prescription drug benefits are preempted by ERISA. [doc. # 6]. Plaintiff filed an opposition on November 13, 2021. [doc. # 12]. Defendant filed a reply on November 20, 2020. [doc. # 14]. Accordingly, this motion is ripe.

Law and Analysis

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief" FED. R. CIV. P. 8(a)(2). In considering a Rule 12(b)(6) motion to dismiss, a court must "accept[] all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff." Ford v. Freemen, 388 F. Supp. 3d 692, 698 (N.D. Tex. 2019)(quoting In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)). In reviewing a Rule 12(b)(6) motion, courts are ordinarily"limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint." Id. (quoting Ironshore Europe DAC v. Schiff Hardin, L.L.P., 912 F.3d 759, 763 (5th Cir. 2019)).

To survive a motion to dismiss, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Although "[t]he plausibility standard is not akin to a 'probability requirement,'" the standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Id.

1. Complete Preemption of State Law Claims

Complete preemption under ERISA is a jurisdictional issue and is an exception to the well-pleaded complaint rule. Ford, 388 F. Supp. 3d at 699 (citing Aetna Health Inc. v. Davila, 542 U.S. 200, 207-08 (2004)); see also Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987).² Thus, the Court may resolve the matter "based on (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaintsupplemented by undisputed facts plus the court's resolution of disputed facts." Enable Mississippi River Transmission, L.L.C. v. Nadel & Gussman, L.L.C., 844 F.3d 495, 497 (5th Cir. 2016) (citations and internal quotation marks omitted).

Complete preemption under ERISA stems from § 502(a), which sets forth a comprehensive civil enforcement scheme. Davila, 542 U.S. at 208; 29 U.S.C. § 1132(a). Under that scheme, "any state-law cause of action that duplicates, supplements, or supplants" this scheme conflicts with the congressional intent to make ERISA an exclusive remedy, "and is therefore pre-empted." Davila, 542 U.S. at 209; 29 U.S.C. § 1132. In Aetna Health Inc. v. Davila, the United States Supreme Court set out a two-prong test to determine if an individual's cause of action is completely preempted by ERISA: (1) "if an individual, at some point in time, could have brought his claim under ERISA § 502(a)(1)(B)," and (2) "there is no other independent legal duty that is implicated by a defendant's actions," then the cause of action is completely preempted. 542 U.S. at 210.

The framework articulated in Davila was based on ERISA's comprehensive civil-enforcement scheme set forth in ERISA § 502(a), and subsequent courts have considered whether an individual could bring an ERISA claim under the various other civil-enforcement provisions found in ERISA § 502(a), not just § 502(a)(1)(B). Ford, 388 F. Supp. 3d at 699-700; see also Innova Hosp. San Antonio, L.P. v. Humana Ins. Co., 25 F. Supp. 3d 951, 957-58 (W.D. Tex. 2014) (stating that Davila's first prong requires determining whether a plaintiff could have brought the claim under § 502(a) generally); Noetzel v. Haw. Med. Serv. Assoc., 183 F. Supp. 3d 1094, 1105-07 (D. Haw. 2016) (analyzing the first prong of Davila by considering whether the plaintiff could have brought claims under ERISA § 502(a)(1)(B) or § 502(a)(3)).

In this case, Plaintiff contends that she has presented only state law claims against Defendant. However, Defendant contends that Plaintiff is a beneficiary of an employee benefit plan covered by ERISA and that Plaintiff's claims are preempted by ERISA. Plaintiff made no attempt to address the UAW Retiree Medical Benefits Trust plan's attributes or to show that this plan is not governed by ERISA.

As a threshold matter, Plaintiff's plan must be an ERISA plan for ERISA preemption to apply. See McNeil v. Time Ins. Co., 205 F.3d 179, 189 (5th Cir. 2000). ERISA defines an employee benefit plan as "any plan, fund, or program . . . established or maintained by an employer . . . for the purpose of providing for its participants or their beneficiaries . . . medical, surgical, or hospital care or benefits." 29 U.S.C. §1002(1). A plan qualifies as an ERISA plan if it (1) exists, (2) does not fall within the safe-harbor exclusion, and (3) was established or maintained by an employer for the purpose of benefiting the plan participants. McNeil, 205 F.3d at 189 (citing Meredith v. Time Ins. Co., 980 F.2d 352, 355 (5th Cir. 1993)).

Here, this plan clearly exists, and Plaintiff has admitted she is a beneficiary of it. See [doc. #s 12, p. 3-7; 14, p. 4]. Further, Defendant cites several cases holding that the UAW Retiree Medical Benefits Trust plan is an ERISA plan; that is, that this plan does not fall within the safe harbor exclusion and was established or maintained by an employer for the purpose of benefitting the plan participants. See, e.g., W.A. Griffin, M.D. v. Cmte. of the UAW Retiree Medical Benefits Trust, No. 16-12002, 2016 WL 6777854, at *1 (E.D. Mich. Nov. 16, 2016) ("The UAW Trust is an 'employee welfare benefit plan' as defined by ERISA § 3(1)"); Fiat North America, LLC v. UAW Retiree Medical Benefits Trust, No. 7903VCP, 2013 WL 3963684, at *1 (Del. Chanc. July 30, 2013) (recognizing that ERISA governs...