Burton v. Express Scripts, Inc.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE

         This putative class action is before the Court on Defendants' motion (ECF. No. 17) to dismiss Plaintiff's amended complaint. The Court heard oral argument on February 28, 2018. For the reasons set forth below, the motion will be granted.

         BACKGROUND

         Plaintiff filed this putative class action in state court on July 10, 2017. Plaintiff asserted a variety of state-law claims against Express Scripts, Inc. (“ESI”), arising out of ESI's alleged practice of imposing a $75 non-refundable “processing fee” on requests for copies of prescription records maintained by ESI, allegedly in violation of a Missouri statute. Plaintiff sought to represent a class of:

(1) All consumer customers or requestors of [ESI] living in the United States who, during the five (5) years preceding the filing of this lawsuit, were charged a “processing fee” when requesting medical records, and who paid [ESI] a “processing fee” for provision of medical or pharmaceutical records; and

(2) All consumer customers or requestors of [ESI] living in the United States who, during the five (5) years preceding the filing of this lawsuit, were charged more than $21.36, subject to yearly adjustment applicable on the date of the request for provision of medical or pharmaceutical records.

ECF No. 4 at ¶ 36. Plaintiff sought compensatory and punitive damages, an injunction, and attorneys' fees.

         ESI removed the action to this Court on August 21, 2017, asserting the Court's jurisdiction under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d).^[1] In its notice of removal (ECF No. 1), ESI alleged that, as defined in the complaint, the proposed nationwide class action would consist of more than 100 members and would involve minimal diversity in that at least one member of the purported class would be diverse from ESI. ESI further alleged that it had received approximately 35, 972 records requests nationwide over the last five years, amounting to compensatory damages of at least $2, 697, 900. According to ESI, Plaintiff's request for injunctive relief would involve an additional $1, 443, 900 in lost fees over the next two year period, and in combination with Plaintiff's requests for punitive damages and attorneys' fees, would put the amount in controversy over CAFA's $5 million threshold.

         On August 28, 2017, ESI moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that it was not subject to the Missouri statute at issue, and that in any event, Plaintiff failed to state a claim. Before the Court ruled on the motion to dismiss, Plaintiff filed a motion for leave to amend the complaint, which ESI did not oppose and which the Court granted. Plaintiff's amended complaint asserted the same claims based on the same conduct, sought to represent the same classes, and sought the same relief as his original complaint. However, Plaintiff added the following entities as Defendants, in addition to ESI: Express Scripts Pharmacy (“ESP”), Express Scripts Holding Company (“ESHP”), and Express Scripts Specialty Distribution Services, Inc. (“ESSD”) (collectively, the “ESI Affiliates”).

         According to the amended complaint, on March 15, 2016, Plaintiff made a written request to Defendants for his minor son's prescription records from December 10, 2009 to date. Defendants responded on March 25, 2016, stating that they were unable to process the request because the $75 processing fee had not been paid. The notice stated:

To cover our costs of processing your request, Express Scripts charges a non-refundable processing fee of $75.00. NOTE: THIS IS NOT A COPYING FEE; IT IS A DATA PROCESSING FEE. Please submit the $75.00 fee in the form of a check or money order payable to: Express Scripts, Inc., Attn: Records, 8931 Springdale Ave, St. Louis, MO 63134, 866-254-2323 (fax).

ECF No. 14 at ¶ 27. Plaintiff thereafter paid the $75 fee through his authorized representative. However, Plaintiff alleges that this payment was made without full knowledge of all material facts surrounding the demand for payment because neither Plaintiff nor his authorized representative knew that the $75 fee was not permitted by Missouri law, as described below. Moreover, Plaintiff alleges that he had no reasonable alternative means to obtain the records without paying the allegedly unlawful $75 fee.

         Plaintiff alleges that the $75 processing fee is unlawful under Mo. Rev. Stat. § 191.227, which limits the fees that providers may charge for the provision of medical records. The statute provides, in relevant part:

1. All physicians, chiropractors, hospitals, dentists, and other duly licensed practitioners in this state, herein called “providers”, shall, upon written request of a patient, or guardian or legally authorized representative of a patient, furnish a copy of his or her record of that patient's health history and treatment rendered to the person submitting a written request . . . . [S]uch record shall be furnished within a reasonable time of the receipt of the request therefor and upon payment of a fee as provided in this section.

2. Health care providers may condition the furnishing of the patient's health care records to the patient, the patient's authorized representative or any other person or entity authorized by law to obtain or reproduce such records upon payment of a fee for:

(1) (a) Search and retrieval, in an amount not more than twenty-four dollars and eighty-five cents plus copying in the amount of fifty-seven cents per page for the cost of supplies and labor plus, if the health care provider has contracted for off-site records storage and management, any additional labor costs of outside storage retrieval, not to exceed twenty-three dollars and twenty-six cents, as adjusted annually pursuant to subsection 5 of this section; or

(b) The records shall be furnished electronically upon payment of the search, retrieval, and copying fees set under this section at the time of the request or one hundred eight dollars and eighty-eight cents total, whichever is less, if such person [requests ...