Infection Control Consultation v. Smithkline Beecham Corporation

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:09-cv-00059-RWT Copies to all parties and the district court/agency. [998765723]. Mailed to: Wiliam Thrush, Jr.. [10-1869]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-1869

INFECTION CONTROL CONSULTATION SERVICES, INCORPORATED,
Plaintiff – Appellant,
v.
SMITHKLINE BEECHAM CORPORATION, d/b/a GlaxoSmithKline,
Defendant – Appellee,
and
MARY C. GOSWEILER,
Defendant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:09cv-00059-RWT)

Argued:

December 8, 2011

Decided:

January 17, 2012

Before GREGORY and SHEDD, Circuit Judges, and Richard M. GERGEL,
United States District Judge for the District of South Carolina,
sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Nicholas Hantzes, HANTZES & REITER, McLean, Virginia,
for Appellant.
Michael Evan Blumenfeld, MILES & STOCKBRIDGE,
PC, Baltimore, Maryland, for Appellee.
ON BRIEF: Michael A.

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Brown,
Todd
M.
Reinecker,
Timothy
M.
Hurley,
STOCKBRIDGE, PC, Baltimore, Maryland, for Appellee.

MILES

Unpublished opinions are not binding precedent in this circuit.

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&

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PER CURIAM:
Infection

Control

Consultation

Services,

Inc.

(“ICCSI”)

appeals the district court’s grant of summary judgment in favor
of Smithkline Beecham Corporation, d/b/a GlaxoSmithKline (“GSK”)
on ICCSI’s claims under Maryland law for tortious interference,
unfair competition, and breach of contract.

For the following

reasons, we affirm.

I.
In 2005, the Substance Abuse and Mental Health Services
Administration (“SAMHSA”) issued a Request for Proposal (“RFP”)
for

a

pilot

program

(the

Project)

aimed

at

distributing

and

tracking a hepatitis vaccine, Twinrix, to nationwide treatment
centers.
Maryland

SAMHSA eventually awarded the contract to ICCSI, a
corporation

certified

as

a

minority

under § 8(a) of the Small Business Act.

small

business

GSK, a multinational

pharmaceutical company, is the sole manufacturer of Twinrix. 1
The

Project

ran

through

October

11,

2006,

successfully shipping all 43,950 doses of vaccine.

with

ICCSI

SAMHSA then

obtained funding for a new program to continue the goals of the
1

Prior to submitting the RFP, SAMHSA investigated the
possibility of GSK operating the program. GSK informed SAMHSA,
however, that, while it was willing to provide the vaccine for
the program, it did not provide the tracking and other services
SAMHSA envisioned under the program.

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Project.

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This second program was classified as an “Indefinite

Delivery/Indefinite Quantity” (“IDIQ”) program, and the eventual
RFP for the program was limited to IDIQ-approved contractors. 2
It is undisputed that ICCSI was not an IDIQ contractor and never
applied to be an IDIQ contractor.

SAMHSA ultimately awarded the

contract for the second program to DB Consulting Group, Inc., a
minority-owned IDIQ contractor.
In

response,

Maryland
common

state

law

ICCSI

court

unfair

filed

alleging

this
claims

competition,

action
(as

against

relevant

intentional

economic opportunity, and breach of contract.

GSK

here)

interference

in
for
with

ICCSI also stated

a claim for breach of contract against Mary Gosweiler, a former
ICCSI employee.

ICCSI dismissed the claim against Gosweiler

with prejudice, creating complete diversity of citizenship, and
GSK

promptly

discovery,

removed

GSK

moved

the

case

to

for

summary

federal

court.

Following

judgment,

and

district

the

court granted that motion from the bench.

II.
On appeal, ICCSI argues that the district court erred in
granting summary judgment in favor of GSK on its claims.

2

We

Approximately 90% of all SAMHSA’s programs are submitted
to IDIQ contractors.

4

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review the district court’s grant of summary judgment to GSK de
novo, “viewing the facts in the light most favorable to, and
drawing all reasonable inferences in favor of” ICCSI.

EEOC v.

Central Wholesalers, Inc., 573 F.3d 167, 174 (4th Cir. 2009)
(internal
appropriate

quotation
“if

‘the

marks

omitted).

pleadings,

the

Summary
discovery

judgment

and

is

disclosure

materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.’”
Civ. P. 56(c)).

Id. (quoting Fed. R.

We review each of ICCSI’s arguments in turn.
A.

ICCSI first contests the district court’s grant of summary
judgment on its tortious interference claim. 3

To state a claim

for tortious interference with a prospective business advantage
under
willful

Maryland

lawful

acts

law,

that

business,

a

are:
done

plaintiff

must

show

calculated

to

damage

with

unlawful

cause actual damage and loss.

purpose

intentional
the
and

and

plaintiff’s
malice,

and

Natural Design, Inc., v. Rouse

Co., 485 A.2d 663, 675 (Md. 1984).
3

The district court concluded

ICCSI also alleged a claim for tortious interference with
an existing business relationship.
Because GSK did not induce
SAMHSA to breach an existing contract with ICCSI, the district
court correctly granted summary judgment on this claim.
See
Blondell v. Littlepage, 968 A.2d 678, 696 (Md. Ct. Spec. App.
2009) (noting claim requires proof of an existing contract and a
breach of that contract).

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that ICCSI failed to show that any improper actions caused ICCSI
damages, and we agree.

Simply put, ICCSI was not qualified to

bid on the second contract and never even applied to bid for it. 4
It was ICCSI’s own actions—not any allegedly improper acts by
GSK—that

caused

its

failure

to

gain

a

prospective

business

advantage.
In

order

to

avoid

this

conclusion,

ICCSI

contends

that

SAMSHA’s decision to use the IDIQ contracting process for the
second program resulted from pressure from GSK.

Again, however,

even assuming GSK engaged in improper acts aimed to harm ICCSI,
GSK put forth deposition testimony from Susan Pearlman, SAMHSA’s
Director

of

Director

of

Contract

Management,

Pharmacologic

and

Therapies,

Robert
that

Lubran,
the

SAMHSA’s

decision

to

proceed with an IDIQ RFP was made independently of anything done
or said by GSK. 5
In

sum,

the

district

court

correctly

granted

summary

judgment on this claim because ICCSI failed to show that GSK
prevented it from gaining the contract for the second program.
4

ICCSI asserts that it was promised the follow-on contract
assuming the Project was completely successfully. It put forth
no evidence supporting this claim, however, and the district
court correctly rejected it.
5

ICCSI attacked the credibility of these two witnesses but
has failed to provide any evidence beyond speculation to rebut
their testimony. Moreover, there was nothing unique or unusual
about using the IDIQ process for the second program.

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Instead, the undisputed evidence is that ICCSI never even bid
(or was eligible to bid) on that contract and that SAMHSA was
not influenced by GSK when it made the decision to proceed with
an IDIQ RFP. 6
B.
ICCSI
granting

also

summary

According
contract

to

alleges
judgment

ICCSI,

between

that

it

on

was

SAMHSA

and

the
its

the
GSK

district
breach

of

third-party
to

court

erred

contract
beneficiary

purchase

in

claim.
of

Twinrix.

a

The

district court granted summary judgment to GSK on this claim
after concluding that any alleged contract violated the statute
of frauds and that ICCSI failed to show that GSK and SAMHSA ever
entered into a contract or a contract intended to benefit a
third-party.
GSK offers its vaccines at several different price points
depending

on

Maine,

SAMHSA

a

the

status
contract

of

the

purchaser.

specialist

working

In

2005,

on

the

Andrew

Project,

contacted GSK to discuss pricing and supply options for Twinrix.
A GSK employee, Robert Turner, emailed Maine on May 9, 2005, to
confirm
purchase

that

SAMHSA,

Twinrix

at

as
the

a

federal

Federal

6

agency,

Supply

was

Schedule

eligible
price.

to
The

This conclusion that ICCSI failed to show causation also
forecloses its unfair competition claim and summary judgment on
that claim was thus appropriate.

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email specified that, if SAMHSA purchased the vaccine through an
outside company or contractor, the price might vary depending on
“the contract the organization is able to access.”

(J.A. 164).

The following month, SAMHSA officially requested a quote from
GSK

for

the

nationwide.

supply

and

distribution

of

Twinrix

to

60

sites

On June 30, 2005, GSK informed SAMHSA that it could

supply Twinrix at the Federal Supply Schedule price, but that
GSK

was

unable

Project.

This

to

perform

the

information

other

ultimately

tasks
led

required
SAMHSA

to

for

the

hire

a

primary contractor (ICCSI) for the Project.
Based on these interactions, ICCSI alleges that GSK entered
into a contract to sell Twinrix at the Federal Supply Schedule
price to whomever eventually operated the program for SAMHSA and
that GSK breached this contract by eventually selling Twinrix to
ICCSI at a higher price.

The difficulty with this allegation is

that both SAMHSA and GSK denied that they had a contractual
relationship, and we agree that the parties’ exchanges do not
form a contract for an indefinite quantity of Twinrix at the
Federal Supply Schedule price.

ICCS has also failed to produce

any additional record evidence in support of its argument that
SAMHSA and GSK entered into such an agreement.

Maine and Turner

both gave deposition testimony that no contract existed between
GSK and SAMHSA, testimony that was affirmed by SAMHSA’s chief
contracting officer, Pearlman.
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Accordingly, because ICCSI failed to show that a contract
existed between GSK and SAMHSA, the district court correctly
granted summary judgment on this clam. 7

III.
For the foregoing reasons, we affirm the district court’s
grants of summary judgment to GSK.
AFFIRMED

7

Because we conclude that no contract existed between
SAMHSA and GSK, we do not reach the district court’s alternate
rationales for granting summary judgment on this claim—that any
contract violated the statute of frauds and that any contract
did not clearly benefit a third-party.

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