Brown v. CVS Pharmacy, L.L.C.

982 F. Supp. 2d 793, 2013 WL 5574486, 2013 U.S. Dist. LEXIS 146025
CourtDistrict Court, M.D. Tennessee
DecidedOctober 9, 2013
DocketCase No. 3:11-cv-0980
StatusPublished

This text of 982 F. Supp. 2d 793 (Brown v. CVS Pharmacy, L.L.C.) is published on Counsel Stack Legal Research, covering District Court, M.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. CVS Pharmacy, L.L.C., 982 F. Supp. 2d 793, 2013 WL 5574486, 2013 U.S. Dist. LEXIS 146025 (M.D. Tenn. 2013).

Opinion

[796]*796 MEMORANDUM

ALETA A. TRAUGER, District Judge.

Pending before the court are motions for summary judgment filed by defendants Walgreen Co. (“Walgreens”) (Docket No. 41), Wal-Mart Stores East, L.P. (“WalMart”) (Docket No. 43), K-Mart Corporation (Docket No. 44), and Tennessee CVS Pharmacy, L.L.C. (“CVS”) (Docket No. 46), to which the plaintiff, Dr. Joyce Brown, has filed Responses in opposition (Docket Nos. 53 (Walgreens), 55 (WalMart), 54 (K-Mart), and SdiCVS)).1 For the reasons stated herein, the motions will be granted and the plaintiffs claims will be dismissed with prejudice.

BACKGROUND2

I. Dr. Broum and the DEA Investigation at Issue

Dr. Joyce Brown is the sole proprietor of a medical practice known as the “Professional Medical Group.” Dr. Brown’s practice predominantly consists of “occupational medicine and, in particular, medical pain relief for the dedicated worker.” (Brown Dep. at 29:9-12.) She prescribes multiple types of narcotic pain medication to all of her patients. (Id. at 33:9-24.) These narcotics are “opioids,” including Lortab, Percocet, Endocet, Oxycodone, Tramadol, and Opana. (Id. at 149:14-16.)3 [797]*797Her patients generally pay out of pocket for her services.

Although it does not appear that Dr. Brown was ever charged with criminal conduct or the subject of professional discipline, her medicál practice was the subject of an investigation (or investigations) by the Town of Smyrna Police Department and the Drug Enforcement Agency as of early 2009, if not before.4 By February 2009 (and perhaps earlier), Dr. Brown began receiving reports from her patients that certain pharmacies were not filling prescriptions written by her. On August 9, 2009, the DEA raided Dr. Brown’s clinic and confiscated patient charts and other records. Officers from the Smyrna Police Department were present during the raid. The record contains no indication that any governmental entity ultimately charged Dr. Brown with a crime.

On October 9, 2009, Dr. Brown filed a lawsuit against four Smyrna police officers (the Nabours lawsuit), alleging claims related to (1) the investigation by the Smyrna Police Department into her prescribing practices; and (2) a minor traffic accident that occurred in February 2009. (Nabours Compl.; see also Nabors, 2011 WL 2443882, at *1.)5 On August 4, 2010, Dr. Brown also filed a separate lawsuit against DEA agent Michael Hale and unnamed “John Doe” officers, alleging that Hale and other DEA officers violated her state and federal rights during and after the August 6, 2009 raid. See Brown v. Hale, No. 3:10— 0736, 2012 WL 1815625, at *1 (M.D.Tenn. May 17, 2012) {“Hale”)-, see also Brown Docket No. 1, Verified Complaint. In her Verified Complaint, Dr. Brown asserted, in most relevant part, that the “Defendants have contacted local pharmacies in and around Plaintiffs medical clinic and discouraged those pharmacies from filling the prescriptions of Plaintiffs patients.” {Brown Verified Compl. ¶ 12.) She [798]*798averred that, as a consequence, “Multiple patients of Plaintiff have reported to her that local pharmacies have denied care to the patients and that the local pharmacies justified the denial of care on the basis that Plaintiff was being investigated by the DEA.” (Id. ¶ 13.)6

Here, Dr. Brown contends that, between early 2009 and early 2012 — both during and after the investigation of her medical practice — pharmacies owned and/or operated by the defendants refused to fill prescriptions written by her. She contends that, in some instances, the pharmacists told the patients that Dr. Brown was “under investigation” by the DEA or that, as a general matter, the pharmacy would not fill prescriptions written by her. Dr. Brown argues that, by refusing to fill prescriptions and by (at times) referencing the DEA investigation when doing so, the defendants are liable to her for intentional interference with business relations and invasion of privacy under Tennessee law.7

II. Evidence Concerning Denial of Filled Prescriptions

The record contains testimony from Dr. Brown and affidavits from several patients relating to the pharmacies’ refusals to fill prescriptions. The defendants also appear to have relied on the Complaint allegations and/or to have assumed their veracity.

As explained herein, Dr. Brown herself publicized the Smyrna/DEA investigation when she filed the Nabours lawsuit on October 2, 2009. For purposes of Dr. Brown’s claims, particularly her invasion of privacy claim, the distinction between statements made by pharmacists before she filed Nabours as opposed to statements made after she filed Nabours is potentially relevant to the court’s analysis. Therefore, where possible, the court has attempted to identify and delineate the timing of prescription denials and the associated statements, if any, by the pharmacists concerning the grounds for refusing to fill particular prescriptions.

A. Brown Affidavit

According to Dr. Brown’s affidavit, her patients informed her that the defendants’ pharmacies had refused to fill prescriptions in the following instances:

CVS: 16 refusals, 9 of which were reported to her before she filed Nab-ours.
• Wal-Mart: 14 refusals, 11 reported before Nabours;
Walgreens: 15 refusals, time period not specified.
K-Mart: 1 refusal, time period not specified.

[799]*799B. Patient Affidavits

Dr. Brown has filed supporting affidavits from her patients relating only to a handful of the reports referenced in her own affidavit.8 The patient affidavits, which the defendants have not rebutted, establish the following sequence of relevant events, set out by defendant:

CVS: (1) November 2009, CVS in Bellevue, Tennessee: Pharmacist refuses to fill prescription, telling patient that Dr. Brown was “under investigation”; (2) November 9, 2009, CVS in Nashville: Pharmacist refuses to fill a prescription for cholesterol medication written by Dr. Brown, stating that the DEA had told CVS not to fill Dr. Brown’s prescriptions; 9 and (3) June 2012, CVS in Smyrna: Pharmacist refuses to fill prescription, stating that CVS “did not fill [Dr. Brown’s] prescriptions” because CVS “had a problem with her.”
Walgreens: (1) October 2010, Walgreens at “Northfield and Memorial” (city not specified): pharmacist refuses to fill prescription, stating that Dr. Brown was “under investigation by the DEA”; (2) June 2012 Walgreens on “Murfreesboro Road” (locality not specified): pharmacist refuses to fill prescription, stating that it “would not fill Dr. Brown’s prescriptions” and “could refuse to fill any prescription”; and (3) June 2012, Walgreens in Nashville: pharmacist refuses to fill prescription, stating that pharmacy would no longer accept patient’s insurance.

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Cite This Page — Counsel Stack

Bluebook (online)
982 F. Supp. 2d 793, 2013 WL 5574486, 2013 U.S. Dist. LEXIS 146025, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-cvs-pharmacy-llc-tnmd-2013.