Haywood v. Novartis Pharmaceuticals Corporation
Filing
28
ORDER GRANTING 14 MOTION to Dismiss Plaintiff's Complaint by Defendant Novartis Pharmaceuticals Corp, however, the complaint is DISMISSED WITHOUT PREJUDICE, and the plaintiff, Michelle Haywood, is GRANTED thirty days from the date of this Order to amend her complaint should she so choose. Signed by Judge Rudy Lozano on 9/27/2016. (lhc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
MICHELLE HAYWOOD,
Plaintiff,
vs.
NOVARTIS PHARMACEUTICALS
CORP.,
Defendant.
)
)
)
)
)
)
)
)
)
)
No. 2:15-CV-373
OPINION AND ORDER
This matter is before the Court on the Defendant’s Motion to
Dismiss Plaintiff’s Complaint, filed by the defendant, Novartis
Pharmaceuticals Corporation, on November 2, 2015.
(DE #14.)
For
the reasons set forth below, the motion to dismiss is GRANTED.
However, the complaint is DISMISSED WITHOUT PREJUDICE, and the
plaintiff, Michelle Haywood, is GRANTED thirty days from the date
of this Order to amend her complaint should she so choose.
BACKGROUND
Plaintiff, Michelle Haywood (“Haywood”), filed her complaint
in state court on August 13, 2015.
(DE #4.)
The complaint
brings claims for negligence, negligent training and supervision,
and public disclosure of private facts; it also lists “punitive
damages” as a separate count.
(Id.)
The defendant, Novartis
Pharmaceuticals Corporation (“Novartis”), removed the matter to
this Court on the basis of diversity jurisdiction on September
28, 2015.
(DE #1.)
On November 2, 2015, Novartis filed the
instant motion to dismiss.
(DE #14.)
On November 14, 2015,
Haywood filed her response in opposition to that motion.
#16.)
Novartis filed its reply on December 1, 2015.
(DE
(DE #19.)
The motion is thus ripe for adjudication.
DISCUSSION
Facts
At
the
time
of
the
alleged
incident,
prescription medication provider to Haywood.
Novartis
was
a
(DE #1, p. 1.)
According to Haywood, on July 8, 2015, Novartis faxed protected
health
information
about
Haywood’s
disease,
medical providers to Haywood’s co-workers.
treatment,
(Id.)
and
The fax also
included personal information such as Haywood’s social security
number, date of birth, and Medicare number.
(Id. at 1-2.)
Prior
to that time, Haywood had explicitly told Novartis in writing not
to
disclose
her
facsimile.
information
(Id. at 2.)
to
her
place
of
employment
via
Haywood alleges that Novartis acted
negligently and/or with reckless indifference when it did so.
Count
One
alleges
that
Novartis
was
negligent
when
it
“breached its statutory and common law duties of confidentiality
and
privacy”
to
Haywood.
(Id.)
2
She
states
that,
“[a]s
a
provider
delegable
of
pharmaceutical
duty
to
confidentiality
of
its
services,
customers
their
personal information.”
[Novartis]
to
protect
Protected
Health
(Id.)
owes
the
a
privacy
Information
nonand
and
Count Two alleges that Novartis
was negligent in its training and supervision of its employees
with
regard
to
the
protection
of
customer
privacy
and
confidentiality, and Haywood also claims that Novartis breached
its duty to her in the supervision of its employees.
3.)
(Id. at 2-
Count Three alleges that, “[b]y publicizing [Haywood’s]
disease to her co-workers and supervisors, Novartis committed the
common law tort of Public Disclosure of Private Facts.”
(Id. at
3.)
on
Count
Four
requests
punitive
damages
based
the
aforementioned acts allegedly committed by Novartis because it
“acted
with
injuries.
reckless
indifference”
with
regard
to
Haywood’s
(Id. at 3-4.)
Analysis
As an initial matter, the Court notes that the parties
disagree as to which standard should be applied when evaluating
the complaint’s sufficiency.
Novartis argues that the Court
should apply Federal Rule of Civil Procedure 12(b)(6), while
Haywood argues that Indiana’s notice pleading requirements apply.
The Court agrees with Novartis.
The Federal Rules of Civil
Procedure “apply to a civil action after it is removed from a
3
state court.”
Fed.R.Civ.P. 81(c)(1).
The Supreme Court has
acknowledged as much, stating “once a case has been removed to
federal court, it is settled that federal rather than state law
governs the future course of proceedings, notwithstanding state
court orders issued prior to removal.”
Granny Goose Foods, Inc.
v. Bhd. of Teamsters and Auto Truck Drivers Loc. No. 70 of
Alameda Cnty., 415 U.S. 423, 437 (1974); see also Johnson v.
Hondo,
Inc.,
125
F.3d
408,
417
(7th
Cir.
1997)
(“it
is
rudimentary that pleading requirements in the federal courts are
governed by the federal rules and not by the practice of the
courts in the state in which the federal court happens to be
sitting”)
(internal
quotations
marks
and
citations
omitted).1
However, “when the federal standards are heightened over state
standards, it is appropriate for the court to order dismissal
with
the
opportunity
complaint altogether.”
to
replead
rather
than
to
dismiss
the
Stuhlmacher v. Home Depot U.S.A., Inc.,
No. 2:10-CV-467, 2011 WL 1792853, at *4 (N.D. Ind. May 11, 2011).
In evaluating a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), a court must accept all facts alleged
in the complaint as true and draw all reasonable inferences in
1
That said, although federal law supplies the standards to be considered in
determining whether the complaint states claims upon which relief may be
granted, Indiana law provides the choice of law rules. See Sheldon v.
Munford, Inc., 660 F.Supp. 130, 133 n. 1 (N.D. Ind. 1987). Where, as here,
the alleged injury occurred in Indiana, Indiana substantive law applies. See
Cox by Zick v. Nichols, 690 N.E.2d 750, 752 (Ind. Ct. App. 1998).
4
the light most favorable to the plaintiff.
272 F.3d 519, 520 (7th Cir. 2001).
Johnson v. Rivera,
A complaint is not required
to contain detailed factual allegations; however, the plaintiff
must allege facts that state a claim to relief that is plausible
on its face.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
It is
not enough that there might be some conceivable set of facts that
entitle the plaintiff to relief.
550
U.S.
544,
553-56
Bell Atlantic Corp. v. Twombly,
(2007).
The
plaintiff’s
obligation
“requires more than labels and conclusions. . . .”
Id. at 555.
The Supreme Court has provided that “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.”
Iqbal, 556 U.S. at 678.
When reviewing a motion to dismiss, “a court may consider,
in addition to the allegations set forth in the complaint itself,
documents that are attached to the complaint, documents that are
central
to
information
Williamson
the
that
v.
complaint
is
Curran,
and
properly
714
are
referred
subject
F.3d
432,
to
436
to
in
judicial
(7th
it,
and
notice.”
Cir.
2013).
However, “[w]hen a party presents materials that are not attached
to or referred to in the complaint, the court has discretion to
exclude the materials or to consider the materials and convert
the motion to dismiss to a motion for summary judgment.”
U.S. v.
Sullivan, No. 10-CR-821-1, 2016 WL 1626622, at *4 (N.D. Ill. Apr.
21, 2016) (citing Fed.R.Civ.P. 12(d)); see also Hecker v. Deere &
5
Co., 556 F.3d 575, 583 (7th Cir. 2009) (“district court acted
within
its
discretion
when
it
chose
not
to
convert
the
defendants’ motion under Rule 12(b)(6) to a motion for summary
judgment”).
Counts One and Two - Negligence and Negligent Training and
Supervision
Novartis argues that Counts One and Two fail as a matter of
law because Haywood has not properly alleged that Novartis owed
her a legal duty.
owed
her
“multiple
In response, Haywood asserts that Novartis
duties”
based
on
representations
on
its
website and in its marketing materials, based on a statutory duty
under
Indiana
Code
section
25-26-13-15(b),
and
based
on
the
Health Insurance Portability and Accountability Act (“HIPPA”).
In Indiana, “the tort of negligence is comprised of three
elements: (1) a duty on the part of defendant in relation to the
plaintiff; (2) the defendant’s breach of that duty; and (3) an
injury to the plaintiff resulting from that failure.”
Kolozsvari
v. Doe, 943 N.E.2d 823, 826-27 (Ind. Ct. App. 2011) (citing
Miller v. Griesel, 308 N.E.2d 701, 706 (Ind. 1974)).
“A duty to
exercise care arises as a matter of law out of some relation
existing between the parties, and it is the province of the court
to determine whether such a relation gives rise to such duty.”
Id.
at
827
(internal
quotation
6
marks
and
citation
omitted).
“Absent a duty, there can be no breach of duty and thus no
negligence
or
liability
based
upon
the
breach.”
Forster, 804 N.E.2d 736, 738 (Ind. 2004).
Peters
v.
In general, Indiana
courts consider three factors when determining whether a duty
exists:
“(1)
defendant;
the
(2)
relationship
the
reasonable
between
the
plaintiff
foreseeability
of
harm
and
to
the
person injured by the defendant’s conduct; and (3) public policy
concerns.”
2012).
Houser v. Kaufman, 972 N.E.2d 927, 938 (Ind. Ct. App.
This inquiry is case specific.
Id.
Furthermore, a claim
for negligent supervision and training must be analyzed pursuant
to
the
doctrine
of
respondeat
superior,
and
the
court
has
“observe[d] that for respondeat liability to attach, there must
also be underlying liability of the acting party.”
Walgreen Co.
v. Hinchy, 21 N.E.3d 99, 109 (Ind. Ct. App. 2014).
Here,
Haywood’s
“provider
of
delegable
duty
complaint
pharmaceutical
to
its
simply
services,”
customers.”
alleges
Novartis
In
order
that,
owes
to
a
as
a
“non-
bolster
its
argument that such an allegation is insufficient to establish the
existence of a duty, Novartis asks this Court to take judicial
notice
of
markets,
the
and
facts
sells
that
“Novartis
pharmaceuticals”
researches,
and
is
manufactures,
“prohibited
selling its prescription drugs directly to patients.”
from
See In re
Novartis Wage and Hour Litig., 611 F.3d 141, 144 (2d Cir. 2010),
abrogated by Christopher v. SmithKline Beecham Corp., 132 S. Ct.
7
2156
(2012).
The
Court
need
not
determine
whether
taking
judicial notice of such facts is proper because it is clear that
Haywood’s complaint is insufficient on its face.2
While Haywood
now argues that Novartis owed her a duty based on representations
communicated
via
its
website
and
marketing
materials,
allegations are wholly lacking in her complaint.
such
In determining
whether dismissal is appropriate under Rule 12(b)(6), the Court
declines to consider language from Novartis’ website because, as
it stands, such material is neither central to the complaint nor
referred
to
in
it.
See
Williamson,
714
F.3d
at
436.
Furthermore, Haywood may not amend her complaint through her
brief in opposition to Novartis’ motion to dismiss.
Agnew v.
Nat'l Collegiate Athletic Ass’n, 683 F.3d 328, 348 (7th Cir.
2012) (citing Thomason v. Nachtrieb, 888 F.2d 1202, 1205 (7th
Cir.
1989)).
The
Court
agrees
with
Novartis
that
without
additional factual assertions regarding the applicability of the
referenced
privacy
policies
to
the
allegedly
negligent
communications, Haywood’s claims in Counts One and Two are not
plausible because they consist of little more than threadbare
recitals of the required elements.
2
See Iqbal, 556 U.S. at 678.
See Ennenga v. Starns, 677 F.3d 766, 773-74 (7th Cir. 2012) (“A court may
take judicial notice of facts that are (1) not subject to reasonable dispute
and (2) either generally known within the territorial jurisdiction or capable
of accurate and ready determination through sources whose accuracy cannot be
questioned.”); see also Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th
Cir. 1994) (finding public court documents judicially noticeable).
8
The
same
rings
true
of
Haywood’s
arguments
negligence per se under the Indiana Code and/or HIPPA.
is
true
that
Indiana
courts
have
recognized
regarding
While it
negligence
for
statutory violations,3 Haywood’s complaint is silent regarding
the existence and/or applicability of any particular statute.
this Court has noted previously:
‘When a civil tort action is premised upon
violation of a duty imposed by statute, the
initial question to be determined by the
court is whether the statute in question
confers a private right of action.’
Right
Reason Publ’ns v. Silva, 691 N.E.2d 1347,
1352
(Ind.
Ct.
App.
1998)
(quotation
omitted); see also Dawson by Dawson v. Long,
546 N.E.2d 1265, 1268 (Ind. Ct. App. 1989)
(holding in order for the violation of a
statute or ordinance to be negligence per se,
the trier of fact must first determine
whether the statute is applicable). In this
case, it is impossible to determine if the
ordinance was designed or enacted to protect
the class of persons in which [the plaintiff]
is included against the risk of the type of
harm which in fact occurred, because she
fails to specify the regulation or ordinance
which
was
allegedly
violated.
Notice
pleading requirements suggest that [the
plaintiff] must plead the specific statute on
which she bases her claim for negligence per
se. See Bell Atlantic, 127 S.Ct. at 1964-65
(holding the complaint must describe a claim
in sufficient detail to give defendant fair
notice of what the claim is and the grounds
upon which it rests). Here, where [the
plaintiff] is bringing a claim based upon
specific
statutes,
regulations,
or
ordinances, it logically follows that she
must plead the statute(s) upon which the
claim is based.
As the Court found in
3
See Kho v. Pennington, 875 N.E.2d 208, 212 (Ind. 2007) (citing cases).
9
As
granting a motion to dismiss where the
complaint failed to identify a specific
statute that supported a claim of negligence
per se in Holler v. Cinemark USA, Inc., 185
F.Supp.2d
1242,
1244
(D.
Kan.
2002),
‘plaintiff’s generic complaint that defendant
violated
unspecified
‘local,
state
and
federal statutes, guidelines and regulations’
does not provide fair notice of his claim.’
Similarly, because [the plaintiff] has failed
to identify a specific statute, regulation,
or ordinance to support her claim of
negligence per se, [the defendants] do not
have fair notice of the claim, and it should
be dismissed pursuant to Federal Rule of
Civil Procedure 12(b)(6).
Chappey v. Ineos USA LLC, No. 2:08-CV-271, 2009 WL 790194, at *23 (N.D. Ind. Mar. 23, 2009).
Because Haywood’s complaint neither
identifies a statute nor alleges any facts regarding the breach
of a particular statute, any possible claims of negligence per se
under the Indiana Code and/or HIPPA are dismissed.
Count Three - Public Disclosure of Private Facts
Novartis argues that Haywood’s claim for public disclosure
of private facts fails as a matter of law because the tort is not
recognized in Indiana, and, even if it was, that she has not
properly
alleged
“publically
the
disclosed
disclosed.”
In
information
response,
was
Haywood
“private”
argues
or
that
“Indiana recognizes public disclosure of private facts as an
actionable tort, and it has been sufficiently pleaded in this
complaint under a notice standard.”
10
The term “invasion of privacy” encompasses “four distinct
inquiries: 1) intrusion upon seclusion, 2) appropriation of name
or
likeness,
3)
public
disclosure
false-light publicity.”
681, 684 (Ind. 1997).
of
private
facts,
and
4)
Doe v. Methodist Hospital, 690 N.E.2d
As to the public disclosure of private
facts, the Second Restatement provides that the tort “occurs when
a person gives ‘publicity’ to a matter that concerns the ‘private
life’ of another, a matter that would be ‘highly offensive’ to a
reasonable person and that is not of legitimate public concern.”
Id. at 692 (quoting Restatement (Second) of Torts § 652D).
As a
more general matter, however, a plurality of the Indiana Supreme
Court has expressed deep concern over the constitutionality of
the
tort
because
it
“serves
as
an
alternative
for
truthful
defamation,” which is forbidden by the Indiana Bill of Rights.
Doe, 690 N.E.2d at 687.
In a recent concurring opinion, the
Honorable Terry A. Crone described the history of the tort in
Indiana as follows:
In Doe v. Methodist Hospital, 690 N.E.2d 681,
682 (Ind. 1997), a plurality of our supreme
court ‘decline[d] to recognize’ the tort,
notwithstanding
the
insistence
of
two
justices that ‘[f]or almost half a century,
Indiana courts have clearly recognized the
common law tort of invasion of privacy,
including the unwarranted public disclosure
of private matters.’
Id. at 694 (Dickson,
J., joined by Sullivan, J., concurring in
result).
Four years later, in Felsher v.
University of Evansville, 755 N.E.2d 589, 593
(Ind. 2001), a unanimous supreme court
11
essentially characterized the Doe plurality’s
view as a majority holding: ‘Our discussion
of [the history of the privacy tort] and the
Second Restatement served as a prelude to our
decision not to recognize a branch of the
tort involving the public disclosure of
private
facts.’
More
recently,
in
Westminster Presbyterian Church of Muncie v.
Cheng, 992 N.E.2d 859, 868 (Ind. Ct. App.
2013), trans. denied (2014), another panel of
this Court cited Doe in stating that ‘public
disclosure of private facts is not a
recognized cause of action in Indiana,’ and
our supreme court denied transfer in that
case. In sum, since Felsher was decided in
2001, our state’s highest court has acted as
if public disclosure of private facts is not
a valid cause of action in Indiana, even
though a majority of the court has not so
held.
Although neither Doe nor Felsher is
binding precedent on this point, I am not
inclined to rock this particular boat.
Consequently, I would affirm summary judgment
in favor of the Trustees on Robbins’s
invasion of privacy claim on the basis that
they cannot be held vicariously liable for a
nonexistent tort.
Robbins v. Tr. of Ind. U., 45 N.E.3d 1, 13 (Ind. Ct. App. 2015)
(Crone, J., concurring in part and concurring in result in part
with separate opinion) (footnote omitted).
Putting aside questions of the availability of the tort in
general, the Court agrees with Novartis that, even if the tort
currently exists in Indiana, Haywood has not sufficiently stated
a claim.
her
For example, Haywood simply alleges that Novartis faxed
protected
supervisors.
anyone,
health
information
to
her
co-workers
and
She does not provide any detail as to who, if
actually
viewed
the
information.
12
Such
a
conclusory
allegation is insufficient with regard to the publicity element.
See, e.g., Brown v. Wabash Nat. Corp., 293 F. Supp. 2d 903, 905
(N.D. Ind. 2003) (the plaintiff’s allegations that the defendant
put his private information on a “shared network drive” did not
meet the threshold necessary to state a claim); see also J.H. v.
St. Vincent Hosp. and Health Care Ctr., Inc., 19 N.E.3d 811, 815
(Ind. Ct. App. 2014) (“a communication to a single person or to a
small group of persons is not actionable because the publicity
element requires communication to the public at large or to so
many persons that the matter is substantially certain to become
one of public knowledge”) (internal quotation marks and citations
omitted); Munsell v. Hambright, 776 N.E.2d 1272, 1282 (Ind. Ct.
App. 2002) (same, noting that the “[r]elease of information to
even two co-workers does not satisfy the publicity requirement”);
Dietz v. Finlay Fine Jewelry Corp., 754 N.E.2d 958, 966-67 (Ind.
Ct.
App.
2001)
(acknowledging
that
a
few
courts
outside
of
Indiana have adopted a “looser definition of publicity” when
facts are disclosed to a “particular public” with a special
relationship to the plaintiff, but finding that there was no
evidence that such a relationship existed with either of the
people who viewed the disclosed information).
Here, not only has
Haywood failed to allege any details regarding the extent of the
disclosure, but she has also failed to address the arguments
presented by Novartis with regard to the issue.
13
Failure to
respond to an argument results in waiver.
See e.g., Bonte v.
U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010).
Accordingly,
Count Three of the complaint is dismissed.
While
the
Court
has
determined
that
Haywood’s
current
complaint fails to state any claim, the procedural posture of
this
case
makes
opportunity
prejudice.
to
it
appropriate
replead
rather
to
than
order
dismissal
outright
with
dismissal
the
with
See Stuhlmacher, 2011 WL 1792853, at *4.
CONCLUSION
For the aforementioned reasons, the motion to dismiss filed
by the defendant, Novartis Pharmaceuticals Corporation (DE #14)
is
GRANTED.
However,
the
complaint
is
DISMISSED
WITHOUT
PREJUDICE, and the plaintiff, Michelle Haywood, is GRANTED thirty
days from the date of this Order to amend her complaint should
she so choose.
DATED: September 27, 2016
/s/ RUDY LOZANO, Judge
United States District Court
14
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