United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Express Scripts,
Inc.'s Motion to Compel (ECF No. 30), Defendant Express
Scripts, Inc.'s Motion to Deem its Requests for Admission
Admitted (ECF No. 33), and Plaintiff Primary Care's
Motion for Protective Order (ECF No. 46).
Verified Complaint and Jury Demand (ECF No. 1, hereinafter
"Complaint"), Plaintiff Primary Care Pharmacy, LLC
("Primary Care") seeks damages because Defendant
Express Scripts, Inc. ("Express Scripts")
"improperly recoup[ed] from Primary Care $520, 042.83
attributable to diabetic testing strips and diabetic testing
supplies, which Primary Care had purchased and distributed to
Express Scripts' members and beneficiaries."
Scripts is a Pharmacy Benefit Manager ("PBM"). PBMs
are third-party contractors that administer the prescription
drug benefit plans of insurance carriers and Medicare Part D
plan sponsors. (Complaint, ¶¶12, 15). PBMs contract
with a network of retail, mail order, and specialty
pharmacies, such as Primary Care, to provide and dispense
covered prescription services to members. (Complaint,
¶17). Primary Care entered into a contract with Express
Scripts, which consisted of a Pharmacy Provider Agreement
("Agreement") and a Network Provider Manual
Scripts conducted an audit of Primary Care beginning on March
23, 2016 to validate that Primary Care purchased the products
for which it had billed Express Scripts. (Complaint,
¶21). Primary Care provided Express Scripts with
numerous invoices pertaining to Primary Care's purchase
of various products, including documentation related to
diabetic testing strips and diabetic testing supplies.
(Complaint, ¶22). Express Scripts also requested numbers
and proof of product origination for billed OneTouch and
Freestyle products, two brands of diabetic testing strips and
testing supplies. (Complaint, ¶23). Express Scripts
claimed to have identified purchase shortages for multiple
drugs, which resulted in a discrepancy of $520, 042.83.
(Complaint, ¶24). Express Scripts then
"recouped" this amount from Primary Care, but
Express Scripts' members and beneficiaries allegedly
retained the corresponding diabetic strips and testing
supplies. (Id.) Primary Care learned that Express
Scripts would not accept the purchases made by Primary Care
from wholesalers where Primary Care did not provide
pedigree information to validate its purchases.
(Complaint, ¶25). Primary Care asserts that Express
Scripts' full recoupment of $520, 042.83 was not
warranted based on Primary Care's ability to provide
documentation to validate its purchases of diabetic testing
strips and testing supplies from several wholesalers in
compliance with the contracts that governed the parties'
Care brings this case for Breach of Contract (Count One),
Unjust Enrichment (Count Two), and Breach of the Implied
Covenant of Good Faith and Fair Dealing (Count Three).
2, 2017, Express Scripts filed its First Amended Answer and
Affirmative Defenses to Plaintiffs' Complaint and
Counterclaim. (ECF No. 21). In its Counterclaim, Express
Scripts seeks to recover amounts owed to Express Scripts by
Primary Care as a result of Primary Care's
"contractual breaches and unjust enrichment." (ECF
No. 21 at 11, ¶1). Express Scripts seeks
"reimbursement for claims paid to Primary Care that were
subsequently reversed by Primary Care and for amount Express
Scripts, Inc. is entitled to recover due to discrepancies
identified in a field audit." (ECF No. 21 at 11,
¶2) Express Scripts brings claims for Breach of Contract
(Count I) and Unjust Enrichment (Count II). Express Scripts
claims that "Primary Care breached the Agreement by
submitting invalid claims to Express Scripts, Inc. which
Express Scripts, Inc. paid, and by not refunding the amounts
paid by Express Scripts, Inc. after Primary Care reversed the
invalid claims." (ECF No. 21 at 21, ¶59).
of the Federal Rules of Civil Procedure governs motions to
compel discovery. See Fed. R. Civ. P. 37 (a)(1)
("On notice to other parties and all affected persons, a
party may move for an order compelling disclosure or
discovery."). Likewise, Rule 26 governs the scope of
discovery in federal matters:
Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties'
relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within
this scope of discovery need not be admissible in evidence to
party may move for an order protecting disclosure or
discovery, which is granted only upon a showing of good
cause." Heller v. HRB Tax Grp., Inc., 287
F.R.D. 483, 485 (E.D. Mo. 2012) (citing Fed.R.Civ.P. 26(c)).
The party moving for the protective order has the burden to
demonstrate good cause for issuance of the order.
Miscellaneous Docket Matter No. 1 v. Miscellaneous Docket
Matter No. 2,197 F.3d 922, 926 (8th Cir. 1999).
"Because of liberal discovery and the potential for
abuse, the federal rules' confer[ ] broad discretion on
the [district] court to decide when a protective order is
appropriate and what degree of protection is
required.'" Id. at 925 (quoting Seattle