United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE
matter is before the Court on Primary Care's Motion for
Summary Judgment (ECF No. 83) and Defendant Express Scripts,
Inc.'s Motion for Partial Summary Judgment (ECF No. 85).
These matters are fully briefed and ready for disposition.
Scripts is a pharmacy benefit manager ("PBM") that
contracts with third-party payors and health plan
administrators-such as insurers, HMOs, and employers-to
facilitate the delivery of prescription drugs to members of
health plans and their beneficiaries. Express Scripts
maintains a network of retail pharmacies that agree to fill
prescriptions for health plan members in accordance with the
provisions set forth in Express Scripts' retail pharmacy
contracts. Primary Care Pharmacy, LLC ("Primary
Care") was a member of this retail network beginning in
December 2014. Primary Care and Express Scripts'
relationship was governed by an agreement consisting of a
Provider Agreement and a Provider Manual (collectively, the
"Contract"). Under the Contract, Primary Care would
purchase pharmaceutical supplies and then bill Express
Scripts for the supplies Primary Care purchased and provided
to members of Express Scripts' client health plans.
Scripts determined through purchase verification that it paid
Primary Care a total amount of $520, 042.83 (the "Total
Discrepancy Amount") for claims that Primary Care's
supplier data did not substantiate. For the majority of the
Total Discrepancy Amount ($328, 035.66), Primary Care's
suppliers provided no supporting documentation. For the
remaining portion ($192, 007.17), Express Scripts found that
Primary Care did not have sufficient records, and the records
provided by Primary Care's suppliers suggested that
Primary Care made purchases from gray market suppliers who
were not authorized by the manufacturer to distribute the
product. Express Scripts claims Primary Care was unable to
provide basic origination information and lot numbers
(hereinafter, "pedigree information")
substantiating these product purchases when Express Scripts
11, 2016, Express Scripts requested pedigree information for
certain purchases to ensure the products could be traced back
to their manufacturers. Express Scripts received no response
to this letter. On May 26, 2016, Express Scripts sent a
letter explaining the Total Discrepancy Amount, affording
Primary Care the opportunity to contest it, and notifying
Primary Care that Express Scripts would recoup the
discrepancy amount pursuant to its rights under the Contract
if Primary Care did not dispute the amount. On June 29, 2016,
Primary Care responded through counsel that Express Scripts
should have credited the materials received from the
allegedly authorized suppliers for the minority portion of
the Total Discrepancy Amount and attaching various documents.
On July 15 and July 18, 2016, Express Scripts replied to
Primary Care's letter, stated that the Total Discrepancy
Amount stood, and recouped the amount. Express Scripts
exercised its right to terminate the Contract, effective
August 12, 2016.
Care brought this action seeking payment from Express Scripts
for an amount it alleges is due under the Contract with
Express Scripts. Primary Care brought claims for Breach of
Contract (Count One), Unjust Enrichment (Count Two), Breach
of the Implied Covenant of Good Faith and Fair Dealing (Count
Three). (Complaint, ECF No. 1).
Scripts filed a Counterclaim, seeking to recover amounts
"due to discrepancies identified in a field audit."
(ECF No. 21, Counterclaim, ¶2). Express Scripts brought
claims for Breach of Contract (Count I) and Unjust Enrichment
(Count II). (ECF No. 21, Counterclaim).
Standard of Review
Court may grant a motion for summary judgment if "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter
of law." Fed.R.Civ.P. 56(c); Celotex Corp. v.
Citrate, 477 U.S. 317, 322 (1986); Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). The
substantive law determines which facts are critical and which
are irrelevant. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Only disputes over facts that might
affect the outcome will properly preclude summary judgment.
Id. Summary judgment is not proper if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party. Id.
moving party always bears the burden of informing the Court
of the basis of its motion. Celotex Corp., 477 U.S.
at 323. Once the moving party discharges this burden, the
nonmoving party must set forth specific facts demonstrating
that there is a dispute as to a genuine issue of material
fact, not the "mere existence of some alleged factual
dispute." Fed.R.Civ.P. 56(e); Anderson, 477
U.S. at 248. The nonmoving party may not rest upon mere
allegations or denials of his pleading. Id.
passing on a motion for summary judgment, the Court must view
the facts in the light most favorable to the nonmoving party,
and all justifiable inferences are to be drawn in his favor.
Celotex Corp., 477 U.S. at 331. The Court's
function is not to weigh the evidence but to determine
whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. '"Credibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions,
not those of a judge.'" Torgerson, 643 F.3d
at 1042 (quoting Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000)).
Primary Care's Motion for Summary Judgment (ECF No. 83)
and Defendant Express Scripts, Inc.'s Motion for ...