United States District Court, E.D. Missouri, Eastern Division
ERICK BURTON, individually and on behalf of all others similarly situated Plaintiffs,
EXPRESS SCRIPTS, INC., et al., Defendants.
MEMORANDUM AND ORDER
G. FLEISSIG, UNITED STATES DISTRICT JUDGE
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
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.
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). 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.
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”).
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.
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 ...