Judge Denies Dismissal of Case Alleging Sales Tactics Resulted in Misdiagnoses

On November 2, in the Northern District of West Virginia, Judge Thomas S. Kleeh published an order and associated memorandum denying a motion to dismiss. The motion, by the defendants, Amerisourcebergen Corporation, U.S. Bioservices Corporation, I.g.G. of America Inc. (I.g.G.) and IHS Acquisition XXX Inc. (IHS), requested the court to dismiss allegations of negligence, personal injury, civil conspiracy, fraudulent concealment, unjust enrichment/disgorgement, breach of confidentiality/violation of privacy and punitive damages brought by the plaintiff, Frances G. Post.

Post alleged that in 2019, Felix Brizuela, a doctor of osteopathic medicine and board-certified neurologist in Morgantown, West Virginia, directed her and other putative class members to purchase immunoglobulin (IVIG), “an intravenously administered blood product prepared by pooling immunoglobulins from the plasma of thousands of human donors,” from the defendants in Morgantown, the court explained. The plaintiff alleged that Brizuela, among other physicians, was targeted by an executive account manager and director of sales at I.g.G. to promote sales of IVIG to increase defendants’ profits through convincing him to “misdiagnose patients and wrongfully disclose sensitive, private and protected medical information”. The putative class includes all individuals who were prescribed IVIG by Brizuela between April 3, 2012, and March 19, 2015.

The memorandum laid out how the plaintiff contended that the defendants knew that “(1) once a person is prescribed IVIG, the person will likely take IVIG infusions for the remainder of his/her natural life; (2) IVIG is expensive for the purchaser and lucrative for Defendants; and (3) Defendants devised an internal practice which enabled them to secretly under-report and under-pay bonus commissions on IVIG sales to bolster corporate profits,” thus they greatly incentivized selling IVIG, especially to new purchasers. The plaintiff also contended that the defendants progressively increased the already-high cost of IVIG over 12 months of purchasing it, beginning at $8,758.29 and ending at $10,450.44.

The payments to Brizuela, the plaintiff alleged, began in April 2012 and continued until March 2015. According to data from the Centers for Medicare and Medicaid services (CMS), Brizuela rose to one of the highest-volume prescribers in the U.S. of IVIG, and over the payment period, the defendants obtained about 65 “new-book IVIG transaction accounts” connected to Brizuela, as well as additional referrals from him.

The plaintiff alleged that none of the putative class members nor she had CIPD, which warrants sale and prescription of IVIG and that the defendants knew “the health, safety and wellbeing of Plaintiff and putative class members were at risk,” the court explained. IVIG’s methods of infusion are “associated with risk of infection, injury, disease and death,” the plaintiff alleged, and side effects include extreme flu-like symptoms, headaches, blood pressure changes and increased heart rate. The defendants’ payments to Brizuela violate the defendants’ own policies to protect the health, safety and wellbeing of those purchasing IVIG, the plaintiff alleged.

The defendants asked the court to dismiss all the allegations by the plaintiff — negligence, personal injury, civil conspiracy, fraudulent concealment, unjust enrichment/disgorgement, breach of confidentiality/violation of privacy and punitive damages. Among the allegations is negligence; the defendants claimed “there exists no common law duty of care as between Plaintiff and Defendants, and that Plaintiff’s negligence claims are barred by the economic loss rule,” that “one cannot negligently aid and abet the tortious acts of another” and that “even if Defendants were negligent, the alleged acts of Felix Brizuela, D.O., were an intervening and superseding cause that breaks the chain of liability.” The judge denied the dismissal of these allegations, stating that the plaintiff’s amended complaint “contains sufficient facts to support a negligence claim.” Regarding the economic loss rule, the judge stated that the plaintiff alleged more than just an economic loss, thus invalidating the invocation of the rule.

Also among the allegations is fraudulent concealment; the defendants claimed they had no responsibility to disclose the payments they were making to Brizuela. Fraudulent concealment involves both the concealment of facts and having the duty to disclose said facts, along with “an intention to mislead or defraud,” the judge explained. The judge denied the dismissal of this allegation by concluding that the allegation states “specific acts by Defendants,” rendering the claim plausible. All other allegations — personal injury, civil conspiracy, unjust enrichment/disgorgement, breach of confidentiality/violation of privacy and punitive damages — were similarly denied dismissal by the court.

The plaintiff is represented by Tiano O’Dell, PLLC.