Goulmamine et al v. CVS Pharmacy, Inc.
Filing
20
MEMORANDUM OPINION. See Opinion for details. Signed by District Judge Robert E. Payne on 10/09/2015. (ccol, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
CLERK, US DISTRiCT COURT
Ri^iMOND, VA
REDOUANE GOULMAMINE, M.D., and
iyilDLOTHIAN REHABILITATION
ASSOCIATES,
LLC d/b/a/
The Petersburg Spine Center,
Plaintiff,
Civil Action No.
V.
CVS PHARMACY,
3:15cv370
INC.,
Defendant.
MEMORANDUM OPINION
This matter is before the Court on Defendant CVS Pharmacy,
Inc.'s MOTION TO DISMISS.
forth below,
(Docket No.
10).
For the
reasons
set
the motion will be granted in part and denied in
part.
BACKGROUND
Plaintiff
doctor
and
Redouane
the
Rehabilitation
Center."
(Compl.
Goulmamine,
sole
Associates,
SI 8,
member
PLLC
Docket No.
alleged in the Complaint.
M.D.
of
d/b/a
1).
is
a
licensed medical
Plaintiff
The
"Midlothian
Peterburg
Spine
The facts are set forth as
Beginning in late 2014 and continuing through early 2015,
pharmacy employees at several central Virginia locations of CVS
Pharmacy Inc.
CVS would
("CVS")
no
longer
began telling Goulmamine's patients that
fill
(Compl.
12-15,
(hereinafter
prescriptions
23) .
Goulmamine
"Goulmamine")
further
written
and
allege
The
that,
by
Goulmamine.
Spine
Center
during
these
nearly two-dozen conversations, CVS employees also made:
•
Factual
that
(and incorrect)
Goulmamine
was
statements
in
jail
relating to Goulmamine:
(Compl.
5
23(k)),
Goulmamine had overprescribed to a pregnant patient
5 23 (k)),
someone
in
prescriptions.
•
Factual
that
in
his
the
f
23(m)),
office
was
(Compl. SI 23(j),
DEA,
FBI,
to
or
producing
(g)-(i),
regulatory
bodies:
Board
or
had
(k),
(1),
of
revoked
statements
Medicine
his
was
license.
(q)).
Potentially misleading statements of fact:
allegations,
fraudulent
(p) ) .
the
Goulmamine
(Compl. 123(c),
and that Goulmamine
statements relating to Goulmamine's
relationship
investigating
•
(Compl.
(and incorrect)
standing
(Compl.
that one of Goulmamine's patients had died from
an overdose of Xanax
or
that
per Goulmamine's
CVS employees made several statements that "he
is being investigated" or "audited," or that he was "under
review."
(Compl.
5 23(e),
(n) ,
2
(o) ,
(q)).
These statements
leave
the
context,
identity
it is
of
the
investigator
reasonable that a
investigator to be a
ambiguous,
but
in
patient might believe the
regulatory or oversight body,
rather
than CVS.
•
Statements
of
opinion
regarding
Goulmamine's
prescription
practices: "he is filling too many prescriptions"
23(h))
(Compl.
5
and "he writes too much pain pills and it's against
the law." (Compl. 1 23(j)).
•
Statements
of
opinion
regarding Goulmamine
or Goulmamine's
relationship with his patients: "he is bad news,"
23(c),
(d)),
(Compl.
SI
variations on "you should find another doctor"
or "your doctor won't be in business much longer,"
(Compl.
1
(Compl.
23(f),
(q),
1 23(h),
•
(and
and "he may lose his license."
(q)).
Factual
(r)),
between
fill
truthful)
Goulmamine
Dr.
and
statements
CVS:
about
variations
Goulmamine's prescriptions."
the
on
relationship
"CVS
(Compl.
will
not
SI 23 (a)-(g),
(i)-(s). The Complaint also alleges that an employee stated
that
CVS
"had
problems
with
third
parties:
[Goulmamine]."
(Compl.
SI
23(j)) .
•
Statements
such
as
about
"you
shouldn't
be
taking
criticisms
these
of
patients,
pain pills,"
"you
are
probably
addict."
a
drug
addict,"
(Compl. 1123(b),
(i) ,
and
"you
are
just
a
drug
(s) ) .
Goulmamine states that he is, and was during the relevant time
frame,
in
bodies,
that he has never been investigated by such bodies,
that
he
good
has
prescriptions.
standing
never
had
(Compl.
with
a
all
patient
S[S[ 25-26).
regulatory
die
Center
have been
a
oversight
result
Dr.
substantially harmed.
and
of
Goulmamine states that,
a result of CVS's campaign of defamation.
Spine
as
and
his
"[a]s
Goulmamine and The
Dr.
Goulmamine
is
losing patients almost daily and he is also losing referrals."
(Compl.
g[ 27) .
In March 2015,
would
no
longer
CVS sent Goulmamine a letter stating that it
fill
his
prescriptions.
(Compl.
18-21).
Goulmamine alleges that
CVS
told
Dr.
Goulmamine
words
to
the
effect
that
(i)
he
"wrote too many pain pill"
prescriptions;
(ii)
some of his patients
were "red flags" a euphemism for drug
addicts - because they were "self pay"; and
(iii) because it [CVS] takes to heart drug
abuse and diversion," i t will no longer fill
his prescriptions.
(Compl.
5 19).
Goulmamine claims that he was "so offended at the
letter that he ripped it up and threw it away."
CVS
attached
an
exhibit
letter at Exhibit 1.
which
(Def.'s Br.,
CVS
Ex.
alleges
1,
is
(Compl.
the
5 21).
March
Docket No. 11).
2015
Goulmaraine's
defamation
Complaint
(Count
I);
presents
three
insulting words
claims
(Count
for
II);
relief:
and tortious
interference with contract/business expectancy (Count III).
DISCUSSION
CVS
facts
argues
that
entitling
Goulmamine
him
to
relief
has
in
correct as to Counts II and III,
failed
any
to
of
state
set
of
claims.
his
a
CVS
is
and incorrect as to Count I.
A. Legal Standard for a Motion to Dismiss
A
motion
challenges
the
to
dismiss
legal
Rule
and plain
of Civil
statement
of what the
...
McCleary-Evans
v.
780
Corp.
reasonable
a
P.
complaint.
F.3d 332,
8(a) (2)
claim
Civ.
338
(4th Cir.
"requires
showing
12(b)(6)
Jordan
that
the
v.
2006).
only a
in order to give the defendant
Maryland
Twombly,
When
the
of
R.
short
pleader
is
fair notice
claim is and the grounds upon which i t rests."
Admin.,
V.
458
Procedure
of
entitled to relief,
Fed.
sufficiency
Alternative Resources Corp.,
Federal
under
F.3d
582,
585
550 U.S.
deciding
a
inferences
Chevrolet,
Ltd.
v.
(4th Cir.
2009).
pleader's
description
(4th
544,
motion
in
Dep't
Cir.
555
to
of
of
2015)
dismiss,
favor
State
(citing
Highway
Bell
Atl.
(2007)).
of
Consumeraffairs.com,
However,
Transp.,
a
court
the
"draw[s]
plaintiff."
Inc.,
591
all
Nemet
F.3d 250,
253
while the court must
"will accept the
what
"any
happened"
5
and
conclusions
that
can
accept
the
be
reasonably
drawn
therefrom,"
facts,"
Charles
A.
Federal Practice and Procedure §
Dominion
*4
a
(E.D.
Va.
Sec.
Co.,
2014).
L.L.C.,
Wright
1357
No.
& Arthur
(3d ed.
Iqbal,
868
not
analytical
dismiss
to
662,
678-79,
"Twombly
approach
requires
mere
R.
Miller,
Chamblee v.
2014
WL 1415095,
Nor is the court required to accept as true
556 U.S.
(2009).
amount
"need
1998);
3:13CV820,
legal conclusion unsupported by factual
V.
court
conclusory allegations encompassing the legal effects of
pleaded
Old
the
and
for
courts
formulaic
129 S.
Iqbal
to
reject
Ct.
also
evaluating
allegations.
1937,
made
Rule
recitation
of
173 L.
clear
12(b)(6)
conclusory
the
Ashcroft
Ed.
that
the
motions
allegations
elements
of
a
2d
to
that
claim
and to conduct a context-specific analysis to determine whether
the
well-pleaded
factual
allegations
entitlement to relief." Wright & Miller,
In sum,
all
reasonable
plaintiff's
allegations
factual
favor,
inferences
Edwards
1999).
v.
...
as
from
true
Chamblee,
an
supra.
"after accepting
and
those
suggest
drawing
facts
in
all
the
i t appears certain that the plaintiff cannot
prove any set of facts
Cir.
supra;
a 12(b)(6) motion should be granted if,
well-pleaded
relief."
plausibly
in support of his claim entitling him to
City of Goldsboro,
178
F.
3d 231,
244
(4th
B.
Count I :
The
Defamation
parties
defenses to,
concur
with
the
elements
of,
and
relevant
defamation:
(1) publication; (2) of a statement that is actionable; and
(3) requisite intent. Jordan v. Kollman^ 612 S.E. 2d 203,
206 (Va. 2005). Defamation claims may be defeated by a
claim of privilege, which, in turn, may be overcome if the
plaintiff proves malice.
Great Coastal
Exp.,
Inc.
v.
Ellington, 334 S.E.
Andrews v.
at
*10
Smith,
Inc.
Va.
993
286 Va.
actionable,
993
F.
853
(Va.
Virginia Union Univ., No.
(E.D,
Ridder,
2d 846,
a
2d.
May
F.
16,
2d.
327,
1087,
337-339,
statement
at
matter of law.
1092.
Id.
2008);
1092
3:07CV447,
see
Whether
be
a
2008 WL 2096964,
also
Chapin
(4th Cir.
1993);
749 S.E.
must
1985).
2d 526,
false
and
statement
531
v.
Cashion v.
(2013).
defamatory.
is
CVS
is
a
however,
the question of whether a defendant
Cashion,
337.
alleges
statements,
that
and that
Goulmamine
the
(Def.'s Mem.
for
a
Failure
to
State
Goulmamine
demonstrate
replies
malice
that CVS may not
and
has
pled
remaining statements
qualified privilege.
11) .
Chapin,
actionable
has lost or abused a privilege is a question of fact.
at
To be
The existence of qualified privilege is also
a question of law;
286 Va.
Knight
Claim 6,
that
he
non-actionable
are protected by
in Support of Mtn.
9-12)
has
invalidate
("Def.'s
pled
any
Br."
sufficient
privilege
to Dismiss
Docket
facts
defense,
No.
to
and
raise the affirmative defense of privilege at
7
the 12(b)(6) stage.
6-7,
9-10)
1.
(Pl.'s Mem. in Opposition to Mtn. to Dismiss
("Pl.'s Reply," Docket No. 17).
Actionable
(i)
Statements
Goulmamine
Has
Pled
Several
Clearly
Actionable
Statements
"To
be
actionable,
defamatory." Jordan,
defamation
case,
a
the
statement
be
both
false
269 Va. at 575. At the 12(b)(6)
court
must
which the Complaint alleges
1092.
must
accept
to be
as
false
false.
stage in a
any
Chapin,
statements
993
F.
Because the Court presumes falsity at this stage,
actionability
question
whether
statements
the
in
deciding
a
referenced
motion
in
to
the
and
2d at
the key
dismiss
Complaint
is
are
defamatory.
Virginia
per se,
V.
recognizes
certain
statements
as
defamatory
including statements which impute to the plaintiff the
commission
trade,
law
of
a
criminal
offense,
impugn
his
fitness
for
or prejudice plaintiff in pursuit of his trade.
Hew
York
Times
Co.,
416
F.3d
320,
330
(4th
his
Hatfill
Cir.
2005).
Whether a statement is capable of having defamatory meaning is a
question of law.
Id.
"In determining whether or not the
criminal
popular
offense,
sense";
the words
an
express
must
be
construed
allegation
8
language does
of
in
the
criminal
impute a
plain and
activity
is
not necessary.
Id.
at 331.
Both murder and "a charge of aiding
and abetting in the possession of narcotics" are crimes of moral
turpitude
which
qualify
as
defamatory
per
se.
statements regarding Goulmamine causing overdoses,
their plain and popular sense,
Id.
CVS's
construed in
thus impugn to Goulmamine a crime
of moral turpitude.
With
regard
"implication
to
impugning
... that
unprofessional
the
conduct
fitness
plaintiff
...
for
is
for
one's
guilty
which
conduct
an
unethical
of
trade,
and
the
defendant
suggests ... that the plaintiff could and should be subjected to
disbarment
proceedings"
"impute[s]
conduct
Carwile
Richmond
592
v.
(1954).
is
tending
to
injure
Newspapers,
Stating that a
worthy of
losing his
controlled
substances
attorney has
defamatory
per
him
196 Va.
in
1,
se,
because
his
8,
it
profession."
82
S.E.
2d
588,
physician has committed misconduct
license to practice medicine or dispense
is
sufficiently similar to
committed conduct
suggesting an
worthy of disbarment,
such that
several CVS statements qualify as defamation per se.
Goulmamine has thus pled statements that are defamatory per
se,
and
that
he
claims
proper
inferences
stated
several
not
in
are
untrue.
favor
actionable
of
(Compl.
the
statements.
protected by qualified privilege,
9
5
25).
plaintiff,
If
then
these
Drawing
the
Goulmamine
has
statements
are
Goulmamine
has pled
actionable
statements
sufficient
to
state
a
claim
for
relief,
and thus to move past the 12(b)(6) stage.
(ii) Actionability of Statements of Truth or Opinion
CVS attacks a sub-set of the statements in the Complaint as
non-actionable,
are opinions.
First,
not
either because they are truthful or because they
(Def.'s Br.
9-12).
CVS properly asserts
constitute
defamation,
and
that
that
statements
whether
expression of opinion is a question of law.
336;
see also Jordan,
269 Va.
at 575-576
a
cannot
are
be
However,
generally
not
objectively
CVS
misses
actionable
characterized
two
caveats
to
opinion do
statement
Cashion,
is
an
286 Va.
at
("To be actionable,
statement must be both false and defamatory . . . .
opinion
of
because
as
the
true
the
[S]tatements of
such
statements
or
false.").
"opinions
cannot
be
defamatory" rule.
First,
"statements
[of
opinion]
may be
actionable
if
they
have a provably false connotation and are thus capable of being
proven true or false." E.g.,
Katti v.
WL
Nov.
3424253,
omitted).
made
it
at
*4
(E.D.
In Cashion,
with
Va.
22,
Moore,
2006)
No.
3:06CV471,
(internal
2006
citations
the insinuation that a patient "could have
better
resuscitation
[by
plaintiff
anesthesiologist]" was actionable because "[w]hether the quality
10
of
[plaintiff
contributed
anesthesiologist's]
to
the
patient's
treatment
death
is
an
capable of being proven true or false,
opinion
testimony."
Carwile,
196 Va.
Cashion,
at 8.
286 Va.
caused
or
of
allegation
even
fact
such as through expert
at
337;
see also,
e.g.,
"Opinions" about whether a professional
has met a professional standard of care may be defamatory when
such "opinions" could be proven true or false at trial.
Second,
a
statement
of
opinion may be
actionable
when
it
"reasonably can be construed as a statement of fact" because "it
is
'laden with factual
allegedly
false."
Andrews,
Richmond Newspapers,
32,
43 n.
content'
2007
WL
Inc. v. Lipscomb,
4143080
at
*8
are
(quoting
234 Va. 277, 362 S.E. 2d
8 (1987)). Bearing these two caveats to the "opinion
is not defamation" rule in mind,
statements
and the underlying facts
CVS
claims
are
it is clear that many of the
"opinions,"
(Def.'s
Br.
10),
are
actionable either because they may be proven false by an expert
witness or because they are laden with factual content and the
underlying facts are alleged to be false.
CVS also properly asserts that truth is a complete defense
to a defamation claim. Alexandria Gazette Corp.
154,
160,
that
any
93 S.E.
2d 274,
statement
that
279
(1956).
CVS
would
v. West,
198 Va.
CVS accordingly argues
not
fill
Goulmamine's
prescriptions is non-actionable, because it is factually correct
11
that CVS had chosen to stop filling Goulmamine's prescriptions.
(Def.'s
Br.
11-12).
CVS also
claims
that
any
statement that
Goulmamine was "under review" or "under investigation" is nonactionable, because it is factually correct that CVS did conduct
an investigation into Goulmamine's prescribing patterns.
Br.
{Def.'s
11-12).
However, Goulmamine is correct that, drawing all reasonable
inferences
in his
favor,
heard "CVS is not
Goulmamine
is
it
plausible that
a
patient who
filling Goulmamine's prescriptions anymore.
being
investigated"
would
believe
the
investigation was being performed by an entity other than CVS.
As
such,
it
is
plausible
that
a
listener would
infer
a
false
fact
(investigation by a regulatory agency)
rather than a true
fact
(investigation by CVS). This conclusion is bolstered by the
Fourth Circuit "general rule of interpretation ... that 'allegedly
defamatory words
meaning
...
are
courts
to be
applying
taken
in
their plain
and
natural
Virginia
defamation
law
should
consider not only the words themselves but also the inferences
fairly
attributable
to
them."
Hatfill,
416
F.
3d
at
331
(internal quotations omitted).
Goulmamine falters,
statement
"CVS
be actionable.
is
however,
in arguing that the truthful
investigating Goulmamine,"
in isolation,
can
First, Goulmamine argues that truthful statements
12
can be actionable when such statements are defamatory per se.
(Pl.'s Reply 17). However,
Goulmamine draws this conclusion from
a misreading of Baylor v.
Comprehensive Pain Mgmt.
Ctrs.,
2011
U.S. Dist. LEXIS 37699 (W.D. Va. Apr. 6, 2011). To the contrary,
Virginia law clearly states that an actionable statement must be
defamatory and untrue, even if that statement is defamatory per
se.
Baylor
v.
Comprehensive
Pain Mgmt.
Ctrs.,
7:09-CV-00472,
2011 WL 1327396, at *9; see also, e.g., Carwile, 198 Va. at 8.
Goulmamine also argues that CVS should not be able to rely
on the fact,
if true,
that CVS was conducting investigation,
because facts not included in a complaint may not be considered
on a motion to dismiss.
(Pl.'s Reply 16). Goulmamine is correct
that "materials outside the complaint may not be considered" in
deciding a motion under Rule 12(b)(6)
U.S.
Airways^
510
F.3d 442,
450
stage.
(4th Cir.
E.g.,
2007).
Bosiger v.
CVS does not
dispute this point of law. Instead, CVS argues that reference to
its
investigation
was
included
in
Goulmamine's
Complaint,
because the Complaint referred to the March 15 letter from CVS,
and the text of that March 15 letter
Exhibit
1)
states
the
Reply 9-10,
Docket No.
of
1
Exhibit
because
existence of an
(as provided by CVS as
investigation.
(Def.'s
18) . Goulmamine objects to introduction
it
"may
referenced in the Complaint,
indeed
be
the
letter
that
is
but it also may not." Goulmamine
13
therefore argues that,
because all reasonable factual inferences
must be drawn in a plaintiff's favor in deciding a Rule 12(b)(6)
motion, that any uncertainty over the letter's identity must be
resolved against CVS.
However,
for the purposes of evaluating
whether
"CVS
investigating
facts
the
to
statement
the
Complaint,
is
the
Court
finds
Goulmamine"
that
it
is
adds
not
unreasonable to accept that Exhibit 1 is the March 2015 letter
referred to in the Complaint. Exhibit 1 may be incorporated into
the
Complaint
by
reference,
and communications
which
consisted
entirely of the "CVS is investigating Goulmamine" are factual,
not misleading, and not actionable.
To
summarize
the
results
of
the
parties'
skirmishes:
truthful statements are not actionable, truthful but misleading
statements
are
actionable,
true
and
non-misleading
statements
are not actionable, and CVS may introduce Exhibit 1 to show that
it was conducting an investigation into Goulmamine.
fiii)
Conclusion on Actionable Statements
Goulmamine correctly states that, "[i]n determining whether
a statement is one of fact or opinion,
a court may not isolate
one portion of the statement at issue from another portion of
the statement
....
as
(Pl.'s
a
whole."
Rather,
Br.
a court must consider the statement
15)
(citing
14
Hyland v.
Raytheon Tech.
Servs.
Co.,
277
also Snyder v.
Va.
40,
48,
670
S.E.
2d
746,
751
(2009)).
Phelps, 580 F. 3d 206, 219 (4th Cir. 2009).
The conversations quoted in the Complaint at 51 23(a)
23(b)
are
not
statements
See
actionable,
that
CVS
because
would
no
they
consist
longer
fill
and f
solely
of
Goulmamine's
prescriptions.
Drawing
all
reasonable
inferences
all the other conversations quoted
(s) )
contain
at
least
one
in
Goulmamine's
favor,
(at 55 12-15 and SI5 23(c)-
statement
that
is
actionable
because
it is untrue and defamatory, because it is true but misleading,
or because it is an opinion that is actionable on the grounds
that
it
reciting
has
is
verifiably false or is based on
nearly
two-dozen
pled sufficient
defamatory
actionable
untrue facts.
conversations,
statements
to state
By
Goulmamine
a
claim for
defamation.
2.
Pharmacist-Patient Qualified Privilege
CVS
asserts,
and
Goulmamine
does
not
contest,
that
conversations between a pharmacist and patient are shielded by a
qualified privilege.
has
ever
applied
communications,
and
(Def.'s Br.
qualified
the
6). However, no Virginia court
privilege
parties'
to
current
pharmacist-patient
pleadings
have
not
presented an adequate basis for extending Virginia privilege law
to pharmacist-patient communications.
15
When confronted with uncertain state law,
a federal court
sitting in diversity jurisdiction must predict what course the
highest court in the state would take. Byelick v. Vivadelli, 79
F. Supp. 2d 610, 623 (E.D. Va. 1999). The federal court may base
its prediction on ^'canons of construction,
law,
treatises,
recent
pronouncements
policies by the state's highest court,
restatements of the
of
general
rules
or
well considered dicta,
and the state's trial court decisions." Wells v. Liddy^ 186 F.3d
505,
528
(4th
Cir.
1999).
Finally,
cases
from
other
jurisdictions can also provide guidance. See Warren Bros. Co. v.
Cardi Corp., 471 F.2d 1304, 1307-08 {1st Cir. 1973).
CVS properly states that Virginia Supreme Court's general
rule on qualified privilege set by the Supreme Court of Virginia
is
that:
"[c]ommmunications between persons
which the persons have an
privilege.
Va.
568,
Virginia
(Def.'s Br. 6)
572,
528
court
S.E.
has
on a
subject
in
interest or duty" enjoy qualified
(relying on Larimore v. Blaylock, 259
2d
ever
119,
121
applied
(2000)).
this
However,
general
rule
no
to
communications between a pharmacist and a patient. Instead, the
overwhelming majority of qualified privilege cases
founded on
the foregoing general principles deal with intra-organizational
immunity. E.g., Mann v. Heckler & Koch Def., Inc., 639 F. Supp.
2d
619,
636
(E.D.
Va.
2009);
Kuley v.
16
Fayez,
89 Va.
Cir.
238
(2014)
("The
Virginia
genesis
came
communications
of
the
largely
made
to
course of business].
qualified
from
a
a
privilege
series
business
of
associate
doctrine
cases
in
the
in
[about
ordinary
These cases established the privilege as a
common-law doctrine in the Commonwealth"). While pharmacists and
patients may have some form of common interest in the patient's
health,
that
interest
is
clearly
not
identical
to
the
intra-
corporate common interest that forms the predicate for Virginia
qualified privilege jurisprudence.
CVS argues
that
pharmacist-patient
licensed
privilege
relationship
'health
services'
qualified
should
because
professionals'
who
apply
to
the
"pharmacists
render
are
'professional
and owe a duty of reasonable care to their patients."
(Def.'s Br.
6). CVS implies that the duty to provide health care
substitutes
for
traditional
intra-corporate
duties
which
rise to qualified privilege in cases such as Mann.
gave
CVS relies
primarily on three sources of law to establish this duty: Va.
Code
§
nurses,
8.01-581.1
are
(stating
"health
that
physicians,
professionals"
services"). Lemons v. Abbott Labs.,
who
Inc.,
like
provide
doctors
and
"professional
50 Va. Cir. 339
(1999)
(stating that pharmacists owe duties of care to patients, though
not deciding what those duties entail),
337-38
(finding
that
qualified
17
and Cashion,
privilege
286 Va.
applied
at
to
communications
between
patient's cause of death).
of
these
sources
professionals
medical
However,
when read in context,
supports
actually
discussing
none
pharmacist-patient
a
qualified privilege. Cashion is merely a variation on the wellestablished
intra-organizational
theme;
it
does
not
stand
for
the principle that discussions of medical care between providers
and patients are always "[c] ommmunications between persons on a
subject in which the persons have an interest or duty." Cashion,
286 Va. at 337. Lemons recognized that pharmacists owe a duty of
reasonable
care
to patient-customers,
but did not
decide
what
that duty entails. Lemons, 50 Va. Cir. at 341 (leaving the scope
of
a
pharmacist's
duty
to
a
medical
malpractice
board's
determination) . As such, Lemons does not actually stand for the
proposition
that
pharmacists
counseling
patients.
have
Indeed,
an
the
"interest
Virginia
or
case
duty"
law
in
only
explicitly states one duty of care for pharmacists: the duty to
correctly fill
a
~,
prescription.
Health Plan of Mid-Atl.
States,
608
Nichols
v.
257 Va.
491,
K-Mart Corp.,
(1999);
Franklin v.
Inc.,
997 F.
Kaiser
Supp.
Found.
514 S.E.
2d 453,
2d
461
(W.D. Va. 2014).
Finally,
cases
in
CVS offers two Florida and Arizona federal court
which
the
qualified privilege.
courts
(Def.'s
found
Br.
18
that
6-7).
pharmacists
The
first,
enjoyed
a
DeBinder v.
Albertson's, Inc., No. 06-1804, 2008 U.S. Dist. LEXIS 24289 (D.
Ariz. Mar. 26, 2008), is inapplicable to the legal question at
hand.
DeBinder turned on a call between a pharmacist and a
nurse, wherein the nurse told the pharmacist that the plaintiff
was "calling in prescriptions all over town" using the name of
the nurse's supervising doctor.
DeBinder v.
Albertson's,
No. CV 06-1904-PCT-PGR, 2008 WL 828775, at *3.
not
a
pharmacist-patient
subsequently
found
that
communication.
the
Inc.,
First, this is
Second,
communications were
the
court
privileged
because they were made to prevent commission of a crime (fraud)
and because the nurse was acting to protect her employer's
reputation,
id. at *5-7, not because there was a penumbra of
qualified privilege for statements related to medical treatment.
Lefrock v. Walqreens, 77 F. Supp. 3d 1999 (M.D. Fla. 2015)
is factually similar to the instant case.
found that
pharmacists'
"false
statements
The district court
pertaining to
[a
doctor's]
medical reputation and ethics" were protected by
qualified
privilege,
because
the
pharmacists
were
"filling
prescriptions and giving general advice as they have a duty to
do." Id. at 1200. However, this duty to "give general advice"
originated in state cases holding, in essence, that pharmacists
may
be
liable
for
not
checking
the
reasonableness
of
prescriptions. Arrinqton v. Walqreen Co., 644 F. Supp. 2d 1230,
19
1232-33.
The Lefrock pharmacists made statements in the course
of fulfilling a state law duty;
that duty satisfied the "duty"
requirement of qualified privilege.
1200.
There
is
no
Virginia
Lefrock,
case
law
77
that
F.
Supp.
creates
3d at
a
duty
analogous to the "duty to give general advice" noted in Lefrock.
However,
read
into
requires
an analogous duty or interest could plausibly be
the Virginia Code.
pharmacists
to
The pharmacist
screen
new
licensing statute
prescriptions
other things, clinical abuse or misuse. Va. Code
However,
the
pharmacist's
duty
to
conduct
§
such
for,
among
54.1-3319(A).
a
review
is
distinct from his duty to communicate with patients, because the
statute
Those
addresses
patient
subsections
state
counseling
that
a
to
counsel
any
person
subsequent
pharmacist
counsel any person who presents a
offer"
in
"shall
new prescription"
who
presents
prescription). Va. Code§ 54.1-3319(8).
a
sections.
offer
to
(and "may
refill
of
a
If the offer to counsel
is accepted, the pharmacist "shall counsel the person presenting
the prescription to the extent the pharmacist deems appropriate
in
his
professional
judgment."
Va.
Code
§
54 .1-3319 (CJ.
The
statute lists several topics the counseling "may, but need not,
include"
and
neither
abuse
nor
misuse
is
part
of
that
statutory list. Id. While a pharmacist has an explicit statutory
duty under
§
54 .1-3319 (A)
to satisfy himself that no abuse or
20
misuse is occurring,
the pharmacist's statutory duty to counsel
under §54 .1-3319 (B) - (C)
does
not
explicitly state any duty to
discuss abuse or misuse. However, §54.l-3319(C)'s suggested list
of counseling topics is not exhaustive. Arguably, a pharmacist's
professional
judgment
might,
in
some
cases,
cover
counseling
patients about abuse, misuse, and a doctor's prescribing habits.
While
this
extension
is
plausible,
it
is
not
conclusively
supported either by existing case law or by CVS's briefing.
In sum, Virginia has not recognized any qualified privilege
for
pharmacist-patient
communications
in
the
past.
The
pharmacist's "duty to counsel" under Va. Code§ 54.1-3319(8)-(C)
might
create a duty to discuss
the professional competence of
the prescribing physician with a patient,
such that pharmacist-
patient
an
counseling
would
be
entitled
to
extension
of
the
existing common law qualified privilege. Given that there is no
settled state law on the issue of pharmacist-patient qualified
privilege,
however,
current briefing
the
Court
(Def.'s Br.
6-7)
is
not
satisfied
that
CVS's
sufficiently establishes that
CVS's alleged statements are sheltered by a qualified privilege.
CVS may raise the issue again in a motion for summary judgment
if supported by more authority than has been presented at this
stage.
21
3.
Consideration of Affirmative Defenses in Deciding
a Rule 12(b) (6) Motion
Goulmamine
correctly
cites
Jones
Praxair for the proposition that,
not
plead
facts
generally
to
affirmative
motion to dismiss.
549 U.S.
4 66
negate
199
2 007) ) .
Bock
generally,
affirmative
defenses
are
not
(Pl.'s Reply 6)
(2007);
(4th Cir.
an
v.
Goodman v.
a
and
Goodman
a petitioner need
defense,
ground
and
to
Inc.,
494
that
grant
(relying on Jones v.
Praxair,
v.
F.
a
Bock,
3d 458,
Goulmamine misses Goodman's exception to
the rule: a court may reach the merits of an affirmative defense
at the motion to dismiss stage when "all facts necessary to the
affirmative
defense
clearly
appear
on
the
face
of
the
case.
As
complaint." Goodman, 494 F. 3d at 466.
That exception,
however,
does
not
apply in this
discussed below, Goulmamine has raised facts that would allow a
jury to find that
the
qualified
privilege
support
face
of
immunity
protects
the
the
CVS acted with malice,
CVS's
affirmative
Complaint.
defense.
As
such,
statements,
defense
Hence,
fails.
22
do
potentially negating
even
the
facts
not
that
if
qualified
necessary
clearly appear
aspect
of
CVS's
on
to
the
motion
4.
Malice and Loss of Qualified Privilege
The parties do not dispute the established precept that a
speaker loses qualified privilege when the plaintiff proves
actual or coiranon law malice. (Pl.'s Reply 8). A "non-exhaustive"
list of ways to prove common law malice include a showing that:
(1)
the statements were made with knowledge that they were
(3)
the statements were motivated by personal spite or ill
(4)
(5)
false or with reckless disregard for their truth ...
will
...
the statements included "strong or violent language
disproportionate to the occasion ... or
the statements were not made in good faith.
Cashion, 286 Va. at 339. Any one of these ways to show malice,
if proved, defeats the privilege. Id. Goulmamine concentrates on
the first and fourth methods.
Goulmamine first argues that CVS employees made statements
that were malicious because they exhibited reckless disregard
for the truth. (Pl.'s Reply 9). Goulmamine asserts that failure
to verify, when verification would have been a "simple matter,"
rises to the level of "wanton and reckless disregard for the
rights of another."
(Pl.'s Reply 9-10)
(relying on A.B.C.
Needlecraft Co. v. Dun & Bradstreet, Inc., 245 F. 2d 775, 777
{2d.
Cir.
1957)).
Goulmamine argues that,
if CVS had called
Goulmamine directly or adequately investigated Goulmamine, then
CVS
would
know
that
the
statements
about
DEA/FBI/Board
Medicine investigations were false. (Pl.'s Reply 9-10).
23
of
CVS raises factual and legal defenses to the recklessness
allegation.
As a factual matter,
CVS argues that Exhibit 1
stated that CVS attempted to contact Goulmamine twice, such the
Complaint shows evidence of CVS's due diligence. (Def.'s Reply 5
n.3).
As a legal matter,
CVS first
rejects the notion that
A.B.C. Needlecraft imposes a duty of due diligence, stating that
under
Fourth
Circuit
precedent
"common
law
satisfied by a showing of mere negligence."
malice
is
(Def.'s Br.
not
5)
(relying on Poindexter v. Mercedes-Benz Credit Corp., 792 F.3d
406, 412 (4th Cir. 2015)). CVS asserts that the Complaint states
facts sufficient for negligence, at most.
(Def.'s Br. 5), That
view, however, off the mark. First, as a factual matter, CVS's
internal investigation of Goulmamine is not an investigation
into Goulmamine's relationship with regulatory bodies. Second,
making any statement about a doctor causing death-by-overdose
without knowing whether it was true is so damning to a medical
professional
truth.
^
Hatfill,
that
it constitutes
Cashion 286 Va. at
416 F.
Goulmamine
reckless disregard
337;
Carwile,
for
the
196 Va. at 8;
3d at 331.
also
asserts
that
the
statements
at
issue
included strong or violent
language disproportionate to the
occasion.
For this proposition,
(Pl.'s Reply 10).
Goulmamine
relies largely on Crawford & Co. v. Graves. 199 Va. 495, 100
24
S.E.
2d 714
found
(1957),
and
qualified
complained
of
unnecessarily
Crawford & Co.
goes
wherein the court held that malice will be
privilege
beyond
defamatory."
lost
what
the
Crawford
where
"the
occasion
& Co.,
communication
demands
199
Va.
and
at
is
498.^
stands for the proposition that ill-will is not
an absolute requirement when the communication goes "beyond the
scope" or is "disproportionate to" the interest or duty which
gives rise to qualified privilege. Id. at 499; see also Cashion,
286 Va. at 339. Instead, disproportionately disparaging remarks
may constitute malice, in place of an ill-will finding.
CVS responds by arguing that ill-will is always required to
prove
malice.
Express,
Inc.
However,
states
CVS's
that
own
citation
to
"[c]ommon-law malice
Great
is
some sinister or corrupt motive such as ... ill will
Coastal
defined
as
or what,
as a matter of law, is equivalent to malice." (Def.'s Reply 4)
(quoting Great Coastal, 230 Va. at 150 n.3). Again, Goulmaraine
I" Crawford & Co., an insurance adjuster told the victim of a
workplace
accident that the victim-employee should see an
orthopedist rather than a chiropodist. This, the court found,
was within the scope of what the occasion demanded. However, the
insurance adjuster continued on, implying that the chiropodist
was only competent to cure trivial ailments ("Dr. Graves is not
the type of doctor for this kind of work. He is a doctor for
ingrowing toenails, flat feet and falling arches."). Because the
insurance adjuster went "further than his interest or his duties
require[d]" and was "unnecessarily defamatory," the statement
fell outside the scope of the qualified privilege. Id. at 49899.
25
makes the better argument; Virginia case law under Crawford &
Co^ and Cashion shows that malice may be proved either by ill-
will or by the "malice equivalent" of going beyond the scope of
the duty or occasion.
Applying the first and fourth means of defeating qualified
privilege from Cashion (reckless disregard or "strong or violent
language disproportionate to the occasion") and bearing in mind
that ill-will is not required in all malice cases, there is a
triable issue of fact about whether CVS lost its qualified
privilege.^
Moreover, Goulmamine need not even prove malice if qualified
privilege does not apply. In the absence of qualified privilege,
compensatory damages in an action between two private plaintiffs
are available when the plaintiff proves
by
a preponderance of
the
evidence
that
the
publication was false, and that the defendant either
knew it to be false,
or believing it to be true,
lacked reasonable grounds for such belief,
or acted
negligently in failing to ascertain the facts on which
the publication was based ... The application of this
negligence standard is expressly limited, however, to
circumstances where the defamatory statement
substantial danger to reputation apparent.
makes
Gazette, Inc. v. Harris. 229 Va. 1, 13, 325 S.E. 2d 713, 725
(1985). The substantial danger of accusing a doctor of killing
patients
should have been apparent
to
a pharmacist,
since
accusing a person of a crime of moral turpitude or accusing a
malpractice constitute defamation per se.
See
Hatfill, supra.• CVS acknowledges that "at most. Plaintiffs ha^
alleged that CVS Pharmacy acted negligently." (Def.'s Br. 5).
The statements clearly posed a substantial danger and CVS has
conceded that the Complaint might state negligence, therefore,
Goulmamine has pled sufficient facts to take this case before a
jury if a qualified privilege does not exist.
26
5.
Conclusion
Defamation
and
requisite
privilege,
requires
intent.
publication,
an
Defamation may be
actionable
statement,
defeated by qualified
and qualified privilege may be defeated by a showing
of malice. Andrews, 2008 WL 2096964, at *10.
Neither party contests publication, and Goulmamine has pled
several
untrue
and
defamatory
statements,
such
that
CVS's
attempts to eliminate some statements as true or as mere opinion
are irrelevant. The Court finds that CVS has not,
at this time,
made a legal argument which adequately shows that Virginia's law
on
qualified
pharmacist
privilege
and
patient.
privilege
does
exist,
sufficient
facts
that
demonstrated
covers
reckless
communications
If
pharmacist-patient
Goulmamine
a
has
reasonable
jury
indifference
to
the
between
qualified
nevertheless
could
truth
a
stated
find
that
CVS
or
that
CVS
communicated outside the scope of its duty, thereby establishing
malice and defeating qualified privilege.
Because Goulmamine has pled all the elements of defamation,
and because CVS has not conclusively demonstrated that qualified
immunity should protect the communications at issue,
to Dismiss Count I
will be denied.
27
the Motion
CVS may raise the issue of
qualified
privilege
again
on
a
motion
for
summary
judgment,
following more extensive briefing. 3
C. Count II: Insulting Words
Virginia's insulting words statute states, in its entirety,
that
"[a] 11 words
shall
be
actionable
which
from
their
usual
construction and common acceptance are construed as insults and
tend to violence and breach of the peace." Va. Code§ 8.01-45.
The parties disagree over three main legal issues: whether
CVS
uttered
peace,
insults
whether
insulting
words
whether CVS may
which
Goulmamine
giving
tend to violence
was
rise
to
required
an
introduce Exhibit
to
and breach of the
state
insulting
1 as
verbatim
words
the March
claim,
2015
the
and
letter
referenced in the Complaint.
1.
3
Insults Tending to
Peace
Violence and To Breach of the
Moreover, the Court declines to act on CVS's suggestion that it
should convert CVS's motion to a motion under Rule 12(c).
(Def.'s Reply 5 n.4). As CVS notes, "[i]t is appropriate to
grant a motion under Rule 12 (c) 'where no genuine issues of
material fact remain and the case can be decided as a matter of
law.'" (Def.' s Reply 6 n. 4) (relying on Wells Fargo Equip. Fin.,
Inc. v. State Farm Fire & Cas. Co., 805 F. Supp. 2d 213, 216
(E. D. Va. 2011)) . Even incorporating the Answer and Exhibit 1,
there are still unresolved and material factual issues, clearly
reserved for the jury, about whether CVS acted with reckless
disregard for the truth or out of proportion to its interest or
duty. It would be inappropriate to grant a 12 (c) motion, and
thus pointless to convert this 12(b) (6) motion into a 12(c)
motion.
28
The parties disagree over two propositions of law:
insulting words must be uttered face
to face,
whether
and whether the
terms of CVS's communications are insulting.
(i)
CVS
Form of the Insulting Words
states
that
fighting words claim,
Thompson v.
Virginia
that §
at
*4
Circuit
(Def.' s
cannot
Br.
(W.D.
Court
Va.
at
confrontation
a
that
physical
No.
presents
reaction."
a
2,
1998))
Thompson
which Thompson
clear
in
and
a
WL
However,
to
danger
329237,
(Va.
state
face
of
at
a
*4
Cir. Ct.
both turned instead
"clear and
violent physical reaction." Thompson,
at *4; Hutchins,
the
neither case involved
on whether generic derogatory words could present a
WL 329237,
2000
and
relies
face
present
2000
confrontation that was not face-to-face;
present danger of a
a
words used in a verbal attack
Thompson,
(emphasis added).
of
5: 98CV00083,
(quoting Hutchins v. Cecil, 1998 WL 972093, at *4
Feb.
basis
relying primarily on
2000).
individual
a
the
CIV. A.
16,
opinion on
particular
form
12-13),
Mar.
8.01-45 "only penalize[s]
directed
violent
letter
Town of Front Royal,
329237,
WL
a
2000
1998 WL 972093, at *1. The "face to
face" language on which CVS relies is present in the case law,
but has never actually controlled the outcome of a case. 4
4
CVS also notes that its construction is consistent with the
insulting words statutes' history as an anti-dueling statute
29
The
written
cases
Goulmamine
communications
are more compelling.
Technical Products,
defendant
musters
satisfy
In Trail v.
Inc.,
697 F.
sent plaintiff a
Virginia statute. Trail,
expressly
rejected
the
the
for
the
statute,
proposition
(Pl.' s
Reply
stated
that
the
12),
General Dynamics Armament and
Supp.
2d 654
(W. D.
Va.
2010),
letter accusing her of violating a
697 F. Supp. 2d at 658. The Trail court
idea
that
the
insulting
words
involves a "face to face" requirement." Id. at 658-69.
Trail
that
"Virginia
Supreme
Court
has
statute
Instead,
repeatedly
held that false accusation of criminal conduct, even when stated
in writing,
may constitute insulting words under the statute."
Id.
(relying on Darnell v.
S. E.
at
2d
658
68,
concluding
70
( 1950)
that
the
Davis,
190 Va.
("reasonable men would be
words
(in
the
affidavit]
7 01,
707,
58
justified in
carried
an
imputation of crime .... This, we consider sufficient to sustain
a finding that the words were insulting and tended to violence
(Def.'s Br. 13) (relying on W.T. Grant Co. v. Owens, 149 Va.
906, 141 S.E. 860 (1928)), but this is incorrect. W.T. Grant Co.
states explicitly that no weight should be given to the fact
that the statute was once an anti-dueling statute. W. T. Grant
Co., 149 Va. at 913-16 (noting that, since the statute was
amended to excise the anti-dueling portion of the statute in
184 9, "no weight or importance has been attached to the purpose
for which it was originally enacted").
30
and breach of the peace.") ) . 5 CVS,
in
its
reply,
cites
three
decisions that do not speak directly to whether insulting words
may be written 6 and one case which actually supports the notion
that
insulting
words
may
be
written.
(Def.' s
Reply
12) .
The
plaintiff in Williams v. Garraghty, 249 Va. 224, 455 S.E. 2d 209
(1995) based an insulting words statute on a written memorandum;
the
trial
trial,
and
court
allowed
the
plaintiff
the
insulting
raised
no
words
error
claim
on
that
to
go
to
basis
on
only
in
appeal.
CVS's
proposed
face-to-face
dicta. On the other hand,
Court of Virginia
statements
court
may
be
requirement
appears
at least one decision of the Supreme
(Darnell) explicitly acknowledged that written
actionable
did not decide
the
as
case on
insulting
that
words,
basis.
though
that
Another Supreme
5
Darnell was not decided on the basis of whether written words
are
actionable
in
an
insulting
words
case:
the
court
acknowledged that the words were insulting and tended to
violence, but ultimately found for the defendant because the
affidavit was privileged as part of a judicial proceeding. Id.
at 709.
6
Allen & Rocks, Inc. v. Dowell, 252 Va. 439, 442, 477 S.E. 2d
741, 743 (1996) turned on the likelihood of violence, and,
although the words were spoken over the telephone, the court did
not discuss whether the medium of communication had any impact
on whether the communication rose to the level of insulting
words. Chaffin v. Lynch, 83 Va. 106 (1887) states that the
statute pertains to written and spoken words, though it goes on
to find that the words used in the instant case did not rise to
the level of inciting violence. Wright v. Cofield, 146 Va. 637,
640, 131 S.E. 787, 788 (Va. 1926) dealt with damages.
31
Court of Virginia decision
allowing
a
written
(Williams)
communication
to
did not assign error to
form
the
basis
of
an
insulting words claim. Finally, one Western District of Virginia
decision
(Trail)
explicitly and
necessarily held
suffices for an insulting words claim.
is
on
Goulmamine' s
communications
may
side:
serve
as
the
the
writing
The weight of authority
finds
Court
basis
that
of
that
written
an
insulting
words
claim, at least where the words are otherwise insulting and tend
to violence.
32
(ii) Language Which has a Tendency to Incite Violence
CVS states, and Goulmamine does not dispute,
that there is
a two-part test for whether a plaintiff has stated a claim under
the insulting words statute:
(1)
a plaintiff must plead words that
would be construed as insults and
breach
Hotung,
the peace. 7
of
85
Va.
Funding Corp.,
(Def.' s
Cir.
1988
241
WL
Br.
(2012);
619329,
at
(2)
14)
tend to violence and
(relying Mak Shun Ming
Givens
*2
v.
(Va.
Dominion
Cir.
Ct.
Mortgage
Sept.
1.
1988)).
Whether words are insulting and tend to incite violence is
determined
by
the
usual
construction
of
the
common acceptance in the community. Cook v.
185
Va.
516,
Williamsburg
39
S.E.
Found.,
Instruction No.
19
37, 030
2d
Va.
304
(1946);
Cir.
( 1988 Repl.
381
words
and
their
Patterson Drug Co.,
Sanderson
(1990);
v.
Va.
Colonial
Model
Jury
Ed.) . Whether the words are
"insulting" is a question of fact,
but a court may find as a
matter
jury
of
law
that
no
reasonable
could
find
the
words
insulting. 8
7
The "tend to violence and breach of the peace" language from
the statute is sometimes elaborated as "presents a clear and
present danger of a violent physical reaction." ~' Thompson,
2000 WL 329237, at *4.
8
"Whether or not the words used are insulting is a jury
question, depending on whether from 'their usual construction
and common acceptance' they may be 'construed as insults and
33
Statements that are defamatory per se are insulting per se;
thus,
defamatory
\\insulting"
per
se
requirement
\\ [AJ n action for
statements
of
the
Edmonds,
Carwile
person
157
namely,
F.
196
insulting words
at
for words actionable per se,
no publication is
Supp.
Va.
falsely
two-part
meet
the
test.
insulting words ... is treated precisely as an
action for slander or libel,
one exception,
necessarily
649,
1) .
conveying
651
(E.D.
Va.
Accordingly,
the
necessary.
charge
of
0' Neil
v.
(relying
on
uttered by
a
1958)
"[wJ ords
a
with
criminal
offense
involving moral turpitude are insulting and actionable under the
[insulting words] statute." Zayre of Va.,
47,
658.
50,
147 S.E.
2d 710,
See also Shupe v.
192 S.E. 2d 766, 767
713
Inc. v. Gowdy, 207 Va.
(1966); Trail,
Rose's Stores,
Inc.,
697 F.
Supp. 2d at
213 Va.
374,
376,
(1972) holding modified on other grounds by
tend to violence and breach of the peace.'" Sanderson, 19 Va.
Cir. at 381 (quoting Cook, 185 Va. at 521). However, two
Virginia circuit courts have held that a court may hold the
statements at issue "not actionable as a matter of law because
of the nature of the words themselves." Id. at 384 (noting
agreement with Smith v. Dameron, 12 Va. Cir. 105 (1987)). The
Fourth Circuit has held that a court may hold the statements at
issue not actionable as a matter of law where the statement was
not delivered in a manner that would tend to incite violence and
breach of the peace. Id. (noting Dweyer v. Smith, 867 F.2d 184,
196 (4th Cir.1989)). Although the "insulting" part of insulting
words is ultimately a jury issue, the court may decide as a
matter of law that no reasonable jury could find a set of words
insulting.
34
Fleming v. Moore,
221 Va.
884,
275 S.E.
2d 632
(1981)
(implying
that all types of defamation per se are insulting).
As
described
above,
Virginia
statements as defamatory per se.
impute
to
the
plaintiff
the
recognizes
several
types
of
This includes statements which
commission
of
a
criminal
offense
(including aiding and abetting possession of narcotics),
which
impugn
which
his
fitness
for
his
trade
(including
statements
suggest that plaintiff has engaged in sanctionable professional
misconduct),
or
which
prejudice
plaintiff
in
pursuit
of
his
trade. Carwile, 196 Va. at 8; Hatfill, 416 F. 3d at 330-31.
2.
CVS
exact
Federal Pleading Requirements for an Insulting Words
Claim
argues
language
that,
of
because
the March
claim must be dismissed.
2000 WL 329237,
at *4
Goulmamine
2015
(Def.' s
failed
letter,
Br.
12)
his
to
quote
the
insulting words
(relying on Thompson,
(\''the exact words charged to have been
used by the defendant must be alleged' in order to state a cause
of action for insulting words)). Thompson derives this principle
from a family of Virginia state court cases holding that '\ (t] o
state correctly a
insulting words,
good cause of
action
for
libel,
slander or
the exact words charged to have been used by
the defendant must be alleged."
~,
35
Land Bank of Baltimore v.
Birchfield, 173 Va. 200, 200, 3 S.E. 2d 405,
405
(1939); Long v.
Old Point Bank of Phoebus, 41 Va. Cir. 409 (1997).
Goulmamine,
in
response,
claims
that
the
"exact
words"
requirement is a state law requirement that is inapplicable in a
federal
proceeding,
and
govern his Complaint.
F.
3d at
complaint
32 9
in
(\\A
that
laxer
federal
(Pl.' s Reply 18)
defamation
federal
court,
standards
(relying on Hatfill,
complaint,
must
pleading
like
provide
'a
any
other
short
and
416
civil
plain
statement of the claim'")).
Goulmamine' s
reference
to the general
federal
pleading is defeated by more specific federal
pleading
First,
insulting
words
and
defamation
standard of
jurisprudence on
under
Goulmamine ignores that Thompson was a
Virginia
law.
federal district
court decision, deciding an insulting words claim, that required
plaintiff to plead exact words.
District
Virginia
of Virginia
state
law
2011)
LMB/TCB,
(\\The
Virginia
law
when
McGuire
and
2011
pleading
'requires
must be set out
courts
in the Eastern
regularly cite the pleading
they
WL
4007682,
standard
that
dismiss
~,
failure to plead exact words.
1:11CV528
Second,
for
the
defamation
McGuire v.
at
a
exact
standards
*5
cases
for
IBM Corp.,
No.
(E.D.
defamation
words
Va.
cases
involve
36
Sept.
claim
8,
under
spoken or written
in the declaration in haec verba' ") .
similar
of
defamation
Al though
rather
than
insulting
words,
the
insulting
statute
words
"has
been
interpreted by Virginia courts to be virtually co-extensive with
the common law action for defamation." Potomac Valve
&
Inc.
(4th
v.
1987)
to
Crawford
Fitting
Co.,
82 9
F. 2d
1280,
1284
Fitting
Cir.
(applying constitutional imitations on defamation actions
insulting
words
cases) ;
O'Neil,
15 7
F.
Supp.
at
651
("an
action for insulting words ... is treated precisely as an action
for
slander
exception,
or
libel,
namely,
for
words
actionable
per
no publication is necessary") .
se,
with
one
Thompson and
McGuire are persuasive authority and, relying on them, the Court
concludes that insulting words claims must state the insulting
language in haec verba in federal as well as state court.
3.
Introduction of CVS's Exhibit 1
CVS operates under the assumption that the letter provided
at Exhibit 1 is the same March 2015 letter to which Goulmamine
refers
in
the
Complaint
as
the basis
for
claim.
his
insulting words
(Def.'s Br. 12). However, Goulmamine
objects to the unilateral inclusion of its
purported March letter to Goulmamine
This letter may indeed be the letter that is
referenced in the Complaint, but it also may
not. As clearly alleged in the Complaint,
Goulmamine was so angry when he received the
letter, he ripped it up. Thus, he is unable
to say for certain at this stage that CVS is
correct in its analysis. In any event, this
dispute cannot be resolved at the Rule
12(b) (6) motion to dismiss stage.
37
(Pl.'s Reply 19).
While courts must draw all reasonable factual inferences in
a plaintiff's favor at the 12(b) (6) stage,
~,
3d
tolerate
at
244,
failures
a
court
is
not
required
to
Edwards, 178 F.
unreasonable
to ask one's client whether an exhibit is the letter
referenced
in
the
Complaint.
There
is
no
"may
or
may
not 11 :
Exhibit 1 either is the letter Goulmamine received in March, or
it is not.
4.
Application of Law to the Parties' Proffered Letters
Nevertheless,
even
if
Exhibit
1
is
not
the
March
2015
letter underlying Goulmamine's insulting words cause of action,
this Court finds that neither Exhibit 1 nor the Complaint states
words actionable under the insulting words statute.
(i)
Exhibit
insulting.
CVS's Exhibit 1
1
The
is
brief,
but
statements
that
letter suggests
the
Goulmamine' s
undermined CVS' s
' 1 compliance obligations.
1) .
reasonable
Drawing
favor,
this
turpitude,
all
could
be
factual
read
as
/1
(Def.' s
inferences
suggesting
are
a
plausibly
prescriptions
Br.
14;
Ex.
in Goulmamine' s
crime
of
moral
particularly since Hatfill noted that allegations of
aiding and abetting narcotics possession qualified as def amatory
per se.
Hatfill,
416
F. 3d at
331.
38
This may also plausibly be
read
as
suggesting
misconduct.
See,
plausibly
or a
Goulmamine
e.g.,
Carwile,
that
find
misconduct
that
these
has
196
cornrni t ted professional
Va.
at
A
imply
statements
crime of moral
8.
turpitude,
jury
could
professional
such that
they are
insulting per se.
However,
statute,
"insult"
and this
is
only
half
of
the
insulting
words
letter cannot satisfy the other half of the
test because it cannot be read as inciting violence or breach of
the
peace.
CVS
compellingly
points
out
that
its
"muted
and
respectful tone ... could never reasonably be construed to provoke
violence or a breach of the peace."
(Def.' s
Br.
14) .
CVS also
points out in its reply that "[p]laintiffs do not deny that the
alleged statements did not tend to violence or a breach of the
peace,
and thus,
point."
they must be determined to have conceded the
(Def.'s Reply 12).
Exhibit
1,
the basis of an insulting words claim,
therefore,
cannot form
because the letter does
not tend to violence or breach of the peace.
ii. Goulmamine's Complaint
The Complaint states four phrases in haec verba: "wrote too
many pain pill," "red flags" and "self pay," and "takes to heart
drug abuse and diversion." The statement that Goulmamine "wrote
too
many
pain
pill"
prescriptions
and
the
suggestion
that
Goulmamine facilitated drug abuse could be insulting language,
39
because
a
jury
could
find
that
they
imply
professional
misconduct, which is defamatory and insulting per se.
However,
under the
noted
above,
insult
insulting word statute:
sufficient
the
as
facts
words
have
such that a
a
"clear
a
alone
sufficient
juror could find that
present
violence." These four quotations,
not
plaintiff must also plead
reasonable
and
is
tendency
to
incite
devoid of any other context,
do not suggest that a reasonable juror could find that the words
have a clear and present tendency to incite violence.
5.
Looking
Complaint,
Conclusion
at
either
Goulmamine
has
CVS's
not
Exhibit
pled
or
1
words
Goulmamine' s
adequate
that
a
reasonable juror could find that the March 2015 letter tends to
violence or breach of the peace.
Because Goulmamine has failed to state a
relief may be granted,
claim upon which
the Motion to Dismiss Count
granted. Count II is dismissed without prejudice,
file
an
amended
complaint
within
21
days
if
II will be
with leave to
Goulmamine
can
present to this Court the text of an alternate March 2015 letter
which tends to incite violence or breach of the peace.
40
D. Count III: Tortious Interference
The
elements
of
interference
existence of a valid contract;
contract
( 3)
causing a
breach of that
from
contract.
(Def.' s
Br.
15)
(relying
S.E.
2d 589,
602
(Va.
2015)).
Bouffault,
772
are:
( 1)
the
( 2) defendant's knowledge of that
contract;
that
defendant's
with
intentional
contract;
interference
and
( 4)
inducing or
damages
resulting
on Schaecher v.
Interference with
contract is only an available cause of action when contracts are
for a set duration,
and is not available when the contracts are
terminable at will.
(Def.' s Br.
16)
(relying on Wright v.
Dee,
87 Va. Cir. 148, at *3 (2013)).
The
business
elements
of
expectancy
a
claim
are:
for
tortious
interference
of
existence
(1)
a
with
business
relationship or expectancy with a probability of future economic
benefit
to
relationship
plaintiff;
or
(2)
expectancy;
defendant's
(3)
a
knowledge
reasonable
of
the
certainty
that
plaintiff would have continued in the relationship or realized
the
expectancy
absent
defendant's
intentional
misconduct;
(4)
interference by improper methods; and (5) damages resulting from
that interference.
(Def.' s Br. 17)
41
(relying on BB&T Ins. Servs.,
Inc. v. Thomas Rutherford,
Inc.,
80 Va. Cir. 174, at *6 (2010);
Glass v. Glass, 228 Va. 39, 51, 321 S.E. 2d 69 (1984)) . 9
"Interference
are
not
with
terminable
Contract
at
is
will.
applied
to
contracts
Interference
with
that
Business
Expectancy is applied to contracts that are terminable at will,
to
prospective
prospective
business
economic
relationships
or
to
Wright,
advantage. "
87
some
Va.
type
Cir.
of
at
151
(relying on Lewis-Gale Med. Ctr., LLC v. Alldredge, 282 Va. 141,
149, 710 S.E. 2d 716, 720 (2011)).
First,
although
improper acts
damages
has
Goulmamine
{defamation)
has
(Compl.
pled
~~
(lost patients and referrals)
interference
12-15,
(Compl.
23)
~
through
and has pled
27),
Goulmamine
not pled the causation element necessary to both tortious
interference causes of action. Even when this lack of causation
was
challenged,
identify
any
(Def.'s
facts
Br.
connecting
16,
the
18),
Goulmamine
defamation
to
failed
the
loss
to
of
business.
(Pl.' s Reply 19-20) . Goulmamine correctly states that
he
not
need
"provide
specific
9
examples
of
patients
and
Although CVS argues that Goulmamine has failed to plead the
"improper act" element of tortious interference with business
expectancy {Def.'s Br. 18-19), this Court finds that Goulmamine
has pled facts sufficient to support a claim for defamation at
the instant stage, supra. Because defamation is an improper
method, Storey v. Patient First Corp., 207 F. Supp 2d 431, 447
{E.D. Va. 2002), the Court declines to dismiss on this ground.
42
referrals"
at the
12 (b) (6)
stage.
(Pl.
Reply 19).
However,
he
must plead facts that show that CVS's conduct was the cause of
the
loss
alleged
in
the
Complaint.
Even
accepting
all
well-
pleaded allegations as true, the absence of causation means that
Goulmamine' s
Complaint does not state a set of facts entitling
him to relief on either tortious interference cause of action.
Second,
Goulmamine has failed to plead the existence of a
contract not terminable at will.
Although the Complaint states
that "Plaintiffs have a valid contract ... as to Dr. Goulmamine' s
and
The
Spine
Goulmamine's
Center's
relationships
(Compl.
patients,"
conclusory statement,
between
I
en
4 0)
this
them
is
and
Dr.
merely
a
and does not contain facts sufficient to
show that these lost patients were not free to terminate their
contracts at will.
as
true,
the
Even accepting all well-pleaded allegations
absence
of
a
terminable
contract
means
that
Goulmamine' s Complaint does not state a set of facts entitling
him to relief the tortious interference with contract cause of
action.
For
prejudice
these
as
reasons,
regards
the
Count
III
Tortious
will
be
Interference
dismissed
with
with
Contract
Claim. Count III will be dismissed without prejudice as regards
the Tortious
Interference with Business Expectancy claim,
leave to file an amended complaint within 21 days.
43
with
CONCLUSION
For
the
reasons
set
forth
above,
Defendant's
MOTION
TO
DISMISS {Docket No. 10) will be denied as to Count I. It will be
granted as to Count II,
but Count II will be dismissed without
prejudice with leave for Plaintiff to file an amended complaint
within
21
days
if
Goulmamine
can
establish
that
the
torn-up
letter is not the same letter that CVS presented at Exhibit 1.
That
motion
will
be
granted
dismissed with prejudice as
as
to
to
the
Count
Tortious
III.
It
will
be
Interference with
Contract Claim. It will be dismissed without prejudice as to the
Tortious Interference with Business Expectancy Claim, with leave
to file an Amended Complaint stating causation and the nature of
the business expectancy within 21 days.
It is so ORDERED.
Isl
Robert E. Payne
Senior
United
Judge
Richmond, Virginia
Date: October ~' 2015
44
States
fl~
District
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