Case: 1:22-cv-00645 Document #: 1 Filed: 02/04/22 Page 1 of 13 PageID #:1
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`JAMES L. ORRINGTON, II and
`JAMES L. ORRINGTON, II D.D.S.,
`P.C.,
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`Plaintiffs,
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`v.
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`HUMANADENTAL INSURANCE
`COMPANY and HUMANA INC.,
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` Defendants.
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`COMPLAINT
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`Civil Action No. _____
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`JURY TRIAL DEMANDED
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`Plaintiffs James L. Orrington, II (“Dr. Orrington”), and James L. Orrington, II D.D.S., P.C.,
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`d/b/a Chatham Dental Care, (“Chatham Dental Care” or “CDC”),1 by and through their
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`undersigned counsel, hereby file this Complaint against HumanaDental Insurance Company
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`(“HDIC”) and Humana Inc.2 (collectively, “Defendants”). In support thereof, Orrington states as
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`follows:
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`PARTIES
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`1.
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`Plaintiff Dr. Orrington is an individual who is a United States citizen. Dr. Orrington
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`resides in Flossmoor, Illinois, a village located within Cook County, Illinois.
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`1 Dr. Orrington and Chatham Dental Care are referred to herein collectively at times as “Orrington”
`or “Plaintiffs.”
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` HDIC and Humana Inc. are referred to herein collectively at times as “Defendants” or “Humana.”
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`1
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`2.
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`Plaintiff Chatham Dental Care (legal name, James L. Orrington, II D.D.S., P.C.) is
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`a corporation organized and existing under the law of the State of Illinois with a principal place of
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`business located at 7931 South King Drive, Chicago, Illinois 60619.
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`3.
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`Upon information and belief, defendant HDIC is a corporation organized and
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`existing under the laws of the State of Wisconsin with a principal place of business located at 1100
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`Employers Boulevard, De Pere, Wisconsin 54115.
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`4.
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`Upon information and belief, defendant Humana Inc. is a corporation organized
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`and existing under the laws of the State of Delaware with a principal place of business located at
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`500 West Main Street Louisville, Kentucky 40202.
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`JURISDICTION AND VENUE
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`5.
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`6.
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`Personal jurisdiction exists in Illinois over each of HDIC and Humana.
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`HDIC and Humana each have sufficient minimum contacts with the State of Illinois
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`by virtue of the systematic, regular, and substantial business activities they carry out throughout
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`the State of Illinois.
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`7.
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`Upon information and belief, HDIC and Humana each regularly market their dental
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`insurance products and services to residents of Illinois and also regularly enter into contracts for
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`the providing of dental insurance to insureds residing in Illinois.
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`8.
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`This action arises out of dealings between Defendants and Chatham Dental Care,
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`an Illinois corporation with its principal place of business in Illinois, related to CDC’s treatment
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`of patients in Chicago, Illinois. Further, the action arises out of Defendants’ communications with
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`the Illinois Department of Professional and Financial Regulation (“IDPFR”), the pertinent division
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`of which, the Division of Professional Regulation, is located in Chicago, Illinois.
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`9.
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`Consistent with above, venue is proper in this Judicial District because “a
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`substantial part of the events or omissions giving rise to [Orrington’s] claim[s] occurred” in this
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`Judicial District. 28 U.S.C. § 1391(b).
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`CHOICE OF LAW
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`10.
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`In diversity cases, the forum state’s choice of law principles apply. See Casio, Inc.
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`v. S.M. & R. Co., 755 F.2d 528, 530-31 (7th Cir. 1985).
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`11.
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`This Complaint will allege violations of the torts of defamation, commercial
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`disparagement, abuse of process, and intentional infliction of emotional distress (asserted by Dr.
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`Orrington only) under Illinois law. This is because “[w]hen conducting a choice-of-law analysis
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`in tort cases, Illinois has adopted the approach found in the Restatement (Second) of Conflict of
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`Laws, which provides that the rights and liabilities for a particular issue should be governed by the
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`jurisdiction with the most significant relationship to the occurrence and the parties.” Barbara’s
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`Sales, Inc. v. Intel Corp., 227 Ill.2d 45, 61, 316 Ill.Dec. 522, 879 N.E. 2d 910 (2007).
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`12.
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`Here, Illinois has the most significant relationship to the occurrence and to the
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`Parties because it is Dr. Orrington and Chatham Dental Care who have sustained injury due to
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`Defendants’ tortious conduct; and Dr. Orrington and Chatham Dental Care both reside in Illinois.
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`Further, the tortious statements that are at issue were made to IDPFR, which is located in Illinois.
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`Raube v. Am. Airlines, Inc., 539 F. Supp. 2d 1028, 1033 (N.D. Ill. 2008) (under Illinois choice-of-
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`law principals, the state whose substantive laws are applicable in a tort action are generally those
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`where the injury has been sustained); see also Bd. of Forensic Document Examiners, Inc. v. Am.
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`Bar Assoc., 922 F.3d 827, 831 (7th Cir. 2019) (“In defamation cases, the plaintiff’s home state
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`often has the ‘most significant relationship’ because the location is where the plaintiff suffers the
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`most reputational harm.”).
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`FACTUAL ALLEGATIONS
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`13.
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`In August, 2019, Humana removed CDC from its network of approved dental
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`practices, purportedly for cause. Such removal was purportedly based upon alleged professional
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`infractions.
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`14. Mr. Ware has been a long-time patient of Orrington’s. Mr. Ware had developed
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`periodontal disease. Consistent with the prevailing standard of care, CDC performed a periodontal
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`protocol and removed several of Mr. Ware’s teeth. Orrington then proceeded to provide Mr. Ware
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`with a partial denture to replace the teeth that had been removed.
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`15. Mr. Ware was taking longer than expected to heal from this procedure. During a
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`telephone call between Orrington and Humana on June 10, 2019, Humana recommended to
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`Orrington that Mr. Ware have his remaining upper teeth removed so that a denture could be
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`inserted.
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`16. Mr. Ware did not wish to have additional teeth removed and did not want a full set
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`of dentures. Humana, however, was refusing to pay for the dental work that had taken place unless
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`Mr. Ware’s remaining teeth were pulled and a full set of dentures inserted.
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`17.
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`Orrington explained to Humana that such recommendations by a third-party payor
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`such as Humana are improper. Nonetheless, in light of the financial leverage improperly applied
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`by Humana, Mr. Ware agreed to having his remaining upper teeth pulled and an upper denture
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`inserted.
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`18.
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`Separately, in or around mid-2019, Orrington received a call from Humana wherein
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`Humana was critical of CDC’s scaling and root planning procedures. Orrington explained to
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`Humana the different patient demographics between patients located in the area where Orrington’s
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`practice is located and other, higher income, areas. Orrington also explained to Humana how these
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`differences impact patient treatment in the dental field. Generally, Orrington’s patients require
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`more comprehensive treatment because the food options available to them are more injurious to
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`the patients’ teeth.
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`19.
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`20.
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`On October 7, 2019, Humana rescinded the above-referenced termination.
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`On December 16, 2019, Humana communicated to Orrington that they were
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`terminating CDC from their network without cause. (See Ex. A).
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`21.
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`In 2020 (a specific date has not been provided to Orrington), Humana contacted
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`IDPFR, which organization constitutes a regulatory body within the State of Illinois that oversees
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`the practice of dentistry. Humana filed a complaint with IDPFR regarding certain aspects of CDC’s
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`practices. Humana has refused to provide Orrington with a copy of the complaint and Orrington
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`has not otherwise been able to obtain a copy of the complaint despite Orrington’s requests for a
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`copy of the complaint to Humana and IDPFR.
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`22.
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`On May 6, 2021, Orrington received a communication from IDPFR providing
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`notice that it would be holding a hearing on June 9, 2021, with respect to “allegations of
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`misconduct….” In this communication, IDPFR invited Orrington to retain counsel to represent
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`Orrington in connection with the proceedings if Orrington so chose.
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`23.
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`24.
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`25.
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`On June 9, 2021, the above-referenced hearing before IDPFR was held.
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`No further action has been taken by IDPFR to date.
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`Both the June 10, 2019, call between Orrington and Humana regarding Mr. Ware,
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`as well as the subsequent communication between the Parties regarding scaling and root planning
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`procedures, were acrimonious communications. The acrimonious nature of these conversations
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`resulted from the fact that Humana was attempting to direct Orrington’s performance of
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`professional duties (i.e., the rendering of dentistry services) and were threatening to withhold
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`payment for CDC’s services if their directives were not adhered to.
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`26.
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`It is clear to Orrington that Humana’s initial termination of Orrington from their
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`network that was later rescinded, Humana’s subsequent termination of Orrington without cause,
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`and Humana’s filing of a complaint with IDPFR constituted retaliatory actions motivated by
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`Humana’s desire to cause Orrington financial and reputational injury.
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`27.
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`Humana has not communicated to Orrington the grounds for Humana’s complaint
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`to IDPFR and refuses to provide Orrington with a copy of the complaint.
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`28.
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`Humana’s complaint to IDPFR regarding Orrington is necessarily factually
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`baseless because Orrington has at all times adhered to proper and ethical practices.
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`29.
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`Humana’s complaint to IDPFR regarding Orrington was necessarily factually
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`baseless because Orrington’s rendering of dentistry services has at all times including with respect
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`to the matters discussed herein been highly competent.
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`30.
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`Orrington’s treatment of Mr. Ware was highly competent and in accordance with
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`all applicable standards of care.
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`31. Mr. Ware has not expressed any dissatisfaction in the treatment that he received.
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`32.
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`Neither Mr. Ware, nor any other patient of Orrington, has alleged that Orrington
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`has engaged in misconduct.
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`33.
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`Humana’s complaint against Orrington filed with IDPFR was prompted by
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`retaliatory and malicious motivations because of at least the acrimonious communications between
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`Orrington and IDPFR discussed above.
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`34.
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`As a result of Humana’s complaint to IDPFR regarding Orrington, Orrington’s
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`professional liability insurance carrier, Medical Protective, has terminated Orrington’s insurance
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`coverage.
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`35.
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`As a result of Humana’s complaint to IDPFR regarding Orrington, the price quotes
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`that Orrington has received from alternative professional liability insurance carriers for premiums
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`for replacement insurance coverage have been thousands of dollars higher per year than the
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`premiums Orrington had been paying to Medical Protective.
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`36.
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`As a result of Humana’s complaint to IDPFR regarding Orrington, Orrington has
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`had to pay for an extension of the period during which Orrington may report claims under the
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`insurance policy that Orrington previously had with Medical Protective.
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`37.
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`As a result of Humana’s complaint to IDPFR regarding Orrington, Orrington has
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`had to pay to retain counsel to represent them in connection with defense of the IDPFR
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`proceedings. The legal expenses for such representation have accumulated substantially and
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`promise to continue to accumulate as the proceedings progress.
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`COUNT I: COMMON LAW DEFAMATION PER QUOD
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`38.
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`Orrington repeats and incorporates herein by reference each of the allegations set
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`forth above as if fully set forth here.
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`39.
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`Upon information and belief, Humana has made factually false statements to
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`IDPFR concerning alleged misconduct on the part of Orrington.
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`40.
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`Humana’s making of such false factual statements to IDPFR constituted publication
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`of such statements.
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`41.
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`Such publication of factually false statements by Humana to IDPFR was not
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`privileged.
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`42.
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`Humana failed to conduct a reasonable investigation into the matters that were the
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`subject of Humana’s complaint to IDPFR regarding Orrington.
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`43.
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`Humana’s unprivileged publishing to IDPFR of factually false statements
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`concerning Orrington’s practices constitutes actional defamation per se under Illinois law because
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`it accuses Orrington of lacking ability or integrity in the performance of Orrington’s professional
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`activities and otherwise prejudices Orrington in the conduct of Orrington’s business. Solaia Tech.,
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`LLC v. Specialty Pub. Co., 221 Ill. 2d 558, 580 (2006).
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`44.
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`Orrington has sustained substantial financial, reputational, and other injury as a
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`result of Humana’s defamatory statements. The financial injury sustained by Orrington as a result
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`of Defendants’ actions complained of herein exceeds $75,000.
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`45.
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`Orrington’s injuries include, inter alia, the substantially increased insurance
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`expenses and the legal fees discussed above.
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`46.
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`Orrington’s professional standing among members of the dental profession has
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`been significantly adversely affected by virtue of having had Humana’s allegations of misconduct
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`levelled against him.
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`WHEREFORE Orrington prays for judgment in their favor with respect to Count I and
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`for entry of an Order awarding Orrington actual and consequential damages, punitive damages,
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`and costs, as well as such further relief as the Court deems just, in an amount to be determined at
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`trial but greater than $75,000.
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`COUNT II: COMMON LAW DEFAMATION PER SE
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`47.
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`Orrington repeats and incorporates herein by reference each of the allegations set
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`forth above as if fully set forth here.
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`48.
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`Humana’s unprivileged publishing to IDPFR of factually false statements
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`concerning Orrington’s practices constitutes actional defamation per se under Illinois law because
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`it accuses Orrington of lacking ability or integrity in the performance of Orrington’s professional
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`activities and otherwise prejudices Orrington in the conduct of Orrington’s business. Solaia Tech.,
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`LLC v. Specialty Pub. Co., 221 Ill. 2d 558, 580 (2006).
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`WHEREFORE Orrington prays for judgment in their favor with respect to Count II and
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`for entry of an Order awarding Orrington actual and consequential damages, punitive damages,
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`and costs, as well as such further relief as the Court deems just, in an amount to be determined at
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`trial but greater than $75,000.
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`COUNT III: COMMON LAW COMMERCIAL DISPARAGEMENT
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`Orrington repeats and incorporates herein by reference each of the allegations set
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`49.
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`forth above as if fully set forth here.
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`50.
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`Humana’s statements discussed herein to IDPFR regarding Orrington constitute
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`false and demeaning statements.
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`51.
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`The attack on Dr. Orrington’s personal integrity and on Orrington’s professional
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`ethics inherent in Humana’s baseless filing of a complaint with IDPFR alleging misconduct is
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`highly intertwined with Orrington’s rendering of dentistry services and Dr. Orrington’s operation
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`of CDC. Allcare, Inc. v. Bork, 176 Ill.App.3d 993, 1000 (1st Dist. 1988) (discussing that, for certain
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`service industries, there may be overlap between defamation and commercial disparagement); see
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`also Freiburger v. Timmerman, No. 13 CV 8174, 2016 WL 4493448, at *15 (N.D. Ill. Aug. 26,
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`2016) (false statements indicating that plaintiffs’ “business practices were substandard, negligent
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`or harmful” may be actionable under commercial disparagement).
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`52.
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`Orrington has sustained financial and other injury of the nature identified above as
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`a result of Humana’s disparagement of Orrington to IDPFR. The financial injury sustained by
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`Orrington as a result of Defendants’ actions complained of herein exceeds $75,000.
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`WHEREFORE Orrington prays for judgment in their favor with respect to Count III and
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`for entry of an Order awarding Orrington actual and consequential damages, punitive damages,
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`and costs, as well as such further relief as the Court deems just, in an amount to be determined at
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`trial but greater than $75,000.
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`COUNT IV: COMMON LAW ABUSE OF PROCESS
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`Orrington repeats and incorporates herein by reference each of the allegations set
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`53.
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`forth above as if fully set forth here.
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`54.
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`In filing a baseless complaint against Orrington with IDPFR, Humana acted with
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`an ulterior motive and purpose. Humana’s filing of said complaint was undertaken for the purpose
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`of inflicting injury to Orrington’s professional reputation and to inflict financial injury to
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`Orrington.
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`55.
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`Humana knew that Orrington would be required to disclose the IDPFR matter to
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`Orrington’s professional liability insurance carrier. Humana knew that there was a high probability
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`that such disclosure might result in discontinuation of coverage and/or in Orrington having to pay
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`significantly higher insurance premiums.
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`56.
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`The filing of the complaint by Humana and the pendency of the case before IDPFR
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`has resulted in the termination of Orrington’s professional liability insurance coverage by
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`insurance carrier Medical Protective. Orrington has had to purchase an extension of the period of
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`reporting claims under the prior insurance policy that Medical Protective had provided. Orrington
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`has had to pay thousands of dollars for this extension period.
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`57.
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`Orrington is currently considering options for a new professional liability insurance
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`policy. The quotes that Orrington has received to date are substantially higher than the cost of the
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`premiums under Orrington’s prior policy with Medical Protective.
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`58.
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`Orrington is currently bearing the risk of not having professional liability insurance
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`coverage and, based on the quotes that Orrington has received to date, if and when Orrington is
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`able to obtain replacement insurance coverage, Orrington will have to pay substantially higher
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`premiums than were being paid under the prior policy with Medical Protective.
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`59.
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`Humana also knew that there was a high probability that having to defend the
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`proceedings would impose a financial burden on Orrington because Orrington would need to retain
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`counsel to help ensure that Orrington was adequately represented in connection with the
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`proceedings. Orrington has retained counsel to represent them in connection with the IDPFR
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`proceedings. Orrington has paid thousands of dollars for such representation and such costs will
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`continue to mount as the proceedings continue.
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`60.
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`Humana is using the proceedings before the IDPFR in a way that is not proper in
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`the usual course of such proceedings. Humana is attempting to use the IDPFR proceedings to
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`accomplish results that are beyond the purview of such proceedings. Humana is attempting to use
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`the IDPFR to cause financial and reputational harm to Orrington, and to inflict emotional distress
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`upon Dr. Orrington, by accusing Orrington, without adequate basis, of professional misconduct.
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`61.
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`Orrington has sustained substantial financial, reputational, and other injury as a
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`result of Humana’s abuse of the IDPFR proceedings.
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`WHEREFORE Orrington prays for judgment in their favor with respect to Count IV and
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`for entry of an Order awarding Orrington actual and consequential damages, punitive damages,
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`and costs, as well as such further relief as the Court deems just, in an amount to be determined at
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`trial but greater than $75,000.
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`COUNT V: COMMON LAW INTENTIONAL INFLICTION OF
`EMOTIONAL DISTRESS
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`62.
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`Orrington repeats and incorporates herein by reference each of the allegations set
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`forth above as if fully set forth here.
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`63.
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`Humana’s actions in filing a baseless complaint against Orrington with the IDPFR
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`alleging improprieties, failing to conduct a reasonable investigation into the matter prior to
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`contacting IDPFR, not raising the matter with Orrington in any way prior to filing said complaint,
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`and, since filing the complaint, refusing to provide Orrington with a copy of the complaint,
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`constitutes extreme and outrageous conduct intended to injure Orrington professionally and
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`financially.
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`64.
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`Humana intended that their conduct inflict severe emotional distress on Dr.
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`Orrington.
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`65.
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`Humana knew that there was a high probability that their conduct would inflict
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`severe emotional distress on Dr. Orrington.
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`66.
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`Humana’s conduct as complained of herein has caused Dr. Orrington severe
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`emotional distress. Dr. Orrington relies upon his dentistry practice to financially support himself
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`and his family. CDC is Dr. Orrington’s primary source of income for himself and his family.
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`Without adequate professional liability insurance coverage, Dr. Orrington will be effectively
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`prevented from practicing dentistry. The premium quotes that Dr. Orrington has received since
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`Medical Protective terminated their relationship with CDC are on the magnitude of ten times more
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`expensive than the premiums that CDC had been paying with Medical Protective.
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`WHEREFORE Orrington prays for judgment in their favor with respect to Count V and
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`for entry of an Order awarding Orrington actual and consequential damages, punitive damages,
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`and costs, as well as such further relief as the Court deems just, in an amount to be determined at
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`trial but greater than $75,000.
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`DEMAND FOR JURY TRIAL
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`Orrington hereby demands a jury trial on all issues triable as of right to a jury. Fed. R. Civ.
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`P. 38(b).
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`Date: February 4, 2022
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`Respectfully submitted,
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`/s/ Theodore J. Chiacchio
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`Theodore J. Chiacchio (Bar No. 6332547)
`CHIACCHIO LAW OFFICES
`307 North Michigan Avenue, Suite 2011
`Chicago, Illinois 60601
`Tel: (312) 815-2384
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`Counsel for Plaintiffs
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