Case 2:22-cv-10613-BAF-KGA ECF No. 1, PageID.1 Filed 03/22/22 Page 1 of 30
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`Case No. ____________
`
`KEVIN T. LAVERY, M.D.,
`
`Plaintiff,
`
`v.
`
`PURSUANT HEALTH, INC.,
`
`Defendant.
`
`Bruce A. Inosencio, Jr., P54705
`Kristina M. Fisk, P64634
`Inosencio & Fisk, PLLC
`Attorneys for Plaintiff
`740 West Michigan Avenue
`Jackson, Michigan 49201
`Telephone: (517) 796-1444
`Email: bruce@inosencio.com
`kfisk@inosencio.com
`
`
`
`
`
`COMPLAINT
`
`NOW COMES the Plaintiff, Kevin T. Lavery, M.D., by and through his attorneys,
`
`Inosencio Fisk, and for his Complaint against the Defendant, Pursuant Health, Inc., a
`
`Delaware corporation (“Pursuant Health”), states as follows:
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`Case No. ____________
`
`KEVIN T. LAVERY, M.D.,
`
`Plaintiff,
`
`v.
`
`PURSUANT HEALTH, INC.,
`
`Defendant.
`
`Bruce A. Inosencio, Jr., P54705
`Kristina M. Fisk, P64634
`Inosencio & Fisk, PLLC
`Attorneys for Plaintiff
`740 West Michigan Avenue
`Jackson, Michigan 49201
`Telephone: (517) 796-1444
`Email: bruce@inosencio.com
`kfisk@inosencio.com
`
`
`
`
`
`COMPLAINT
`
`NOW COMES the Plaintiff, Kevin T. Lavery, M.D., by and through his attorneys,
`
`Inosencio Fisk, and for his Complaint against the Defendant, Pursuant Health, Inc., a
`
`Delaware corporation (“Pursuant Health”), states as follows:
`
`
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`Case 2:22-cv-10613-BAF-KGA ECF No. 1, PageID.2 Filed 03/22/22 Page 2 of 30
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`1.
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`The Plaintiff, Kevin T. Lavery, M.D. (“Dr. Lavery”) is a resident of the State
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`of Michigan whose place of residence is located within Jackson County, Michigan.
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`2.
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`Dr. Lavery is a renowned ophthalmologist, physician, and leader in the
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`medical field of vision and eyesight.
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`3.
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`Dr. Lavery is board-certified by the American Board of Ophthalmology, is
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`a member of the American Academy of Ophthalmology, and an inventor of a medical
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`screening apparatus and method used in the field of human vision and eyesight.
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`4.
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`Dr. Lavery has authored clinical studies and scholarly papers, and he also
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`has performed tens of thousands of surgeries that have helped people afflicted with eye
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`trauma and vision disorders such as glaucoma and diabetic retinopathy.
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`5.
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`As the inventor of a medical screening apparatus and method used in the
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`field of human vision and eyesight, Dr. Lavery filed a Patent Application in 2001 (“the
`
`Application”). A copy of the Application is attached hereto, and made part hereof, as
`
`Exhibit 1.
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`6.
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`Dr. Lavery obtained a patent on his invention, U.S. Patent No. 6,594,607
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`(“the Patent”) in 2001. A copy of the Patent is attached hereto, and made part hereof, as
`
`Exhibit 2.
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`7.
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`The Defendant, Pursuant Health, Inc., (“Pursuant Health”) is a
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`corporation duly organized under the laws of the State of Delaware.
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`2
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`Case 2:22-cv-10613-BAF-KGA ECF No. 1, PageID.3 Filed 03/22/22 Page 3 of 30
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`8.
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`Dr. Lavery brings this action against Pursuant Health to protect his legal
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`rights regarding valuable intellectual property consisting of the Patent and all
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`proprietary information, trade secrets, and other intellectual property rights held by Dr.
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`Lavery attendant to the Patent (collectively referred to hereafter as “the Intellectual
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`Property”).
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`9.
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`Pursuant Health has misappropriated and illegally profited from its use of
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`the Intellectual Property.
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`10.
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`Dr. Lavery seeks substantial compensatory and punitive damages, as well
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`as comprehensive declaratory and injunctive relief, to remedy gross misconduct
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`committed by Pursuant Health with respect to the failure of Pursuant Health to pay Dr.
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`Lavery a perpetual intellectual property royalty (“the Perpetual Intellectual Property
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`Royalty”) owed to him for Pursuant Health’s use of the Intellectual Property.
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`11.
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`On October 11, 2007, Dr. Lavery entered into an Amended and Restated
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`Operating Agreement (“Operating Agreement”) with SoloHealth, LLC, a Delaware
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`limited liability company (“SoloHealth”).
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`12.
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`At the time Dr. Lavery entered into the Operating Agreement with
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`SoloHealth, he became a Member of SoloHealth.
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`13.
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`The only other Member of SoloHealth when Dr. Lavery joined the
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`company was Bart Foster (“Foster”).
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`3
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`14.
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`At the time Dr. Lavery entered into the Operating Agreement with
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`SoloHealth, he also entered into a Contribution Agreement (“the Contribution
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`Agreement”) with SoloHealth. A copy of the Contribution Agreement (without its
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`Exhibit A and Exhibit C included) is attached hereto, and made part hereof, as Exhibit 3.
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`15.
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`As part of the Contribution Agreement, Dr. Lavery agreed to contribute
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`certain intellectual property to SoloHealth. Exhibit 3.
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`16.
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`The intellectual property Dr. Lavery contributed to SoloHealth pursuant
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`to the Contribution Agreement included “U.S. Patent No. 6,594,607” and “[a]ll
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`proprietary information, trade secrets, and other intellectual property rights held by
`
`Lavery and attendant to the Patent”. Exhibit 3.
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`17.
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`As part of the Contribution Agreement, SoloHealth agreed to contribute
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`capital and business expertise, and seek funding from other investors, to establish and
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`fund its activities. To implement their plan, Dr. Lavery and Foster, the sole member of
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`SoloHealth, agreed to amend and restate the Operating Agreement of SoloHealth.
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`18.
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`At the outset of the business relationship between Dr. Lavery and Foster,
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`they combined their various talents, skills, and resources to develop and market Dr.
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`Lavery’s medical screening apparatus and method (“the Invention”) to prospective
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`customers.
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`19.
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`One of the most important results of the business relationship between Dr.
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`Lavery and Foster was SoloHealth’s commercial exploitation of the Invention.
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`4
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`20.
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`The Invention was eventually marketed by SoloHealth under the name
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`“EyeSite”.
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`21.
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`SoloHealth intended to use the Invention to provide access to health and
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`wellness kiosks for consumers in existing retail locations throughout North America.
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`22.
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`The health and wellness kiosk developed in conjunction with the
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`Invention and the Intellectual Property continues to be manufactured by Pursuant
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`Health. The kiosk is based on highly secret, proprietary information that Dr. Lavery
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`developed and which is a valuable trade secret.
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`23.
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`The Invention was patented in the United States by Dr. Lavery under
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`Patent No. 6,594,607. Exhibit 2.
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`24.
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`Pursuant Health’s products include a self-service vision testing kiosk as
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`well as a self-service health and wellness kiosk for testing blood pressure, body mass
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`index, and vision.
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`25.
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`Between the end of 2009 and the end of 2010, SoloHealth managed to
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`grow its revenues by a multiple of five (5).
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`26.
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`By the end of March 2010, SoloHealth launched EyeSite® in nine (9) metro
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`markets nationwide.
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`27.
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`Between April 2010 and June 2010, SoloHealth was awarded a $1,200,000
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`grant by the National Institutes of Health.
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`5
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`28.
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`In 2010 Q4, SoloHealth was awarded as the top “Emerging Business” by
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`TechAmerica.
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`29.
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`In 2011, SoloHealth raised in excess of $13,000,000, launched its
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`SoloHealth Station, tripled its number of employees, and developed strategic
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`partnerships with Verizon, Intel, Proctor & Gamble, and Coinstar/Redbox.
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`30.
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`By the end of 2012, SoloHealth deployed 1,300 SoloHealth Stations
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`nationwide and those were deployed in all 50 states.
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`31.
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`Also in 2012, SoloHealth added three more strategic partners (Dell,
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`WellPoint, and NCR), it increased its number of employees to 36, and at least 1,500,000
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`users were using a SoloHealth kiosk each month.
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`32.
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`By this Complaint, Dr. Lavery now seeks the intervention of this Court to
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`secure unpaid perpetual royalties associated with the Intellectual Property, declare his
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`legitimate ownership of the Perpetual Intellectual Property Royalty, and ensure he is not
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`put at risk for future unpaid royalties related to the Intellectual Property.
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`33.
`
`Based on the circumstances summarized above and the additional
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`averments set forth below, this Court should (a) declare that Dr. Lavery continues to be
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`entitled to his Perpetual Intellectual Property Royalty, (b) enjoin Pursuant Health from
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`infringing on Dr. Lavery’s Intellectual Property and his rights related to same, and (c)
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`hold Pursuant Health liable in damages for breach of contract and unjust enrichment.
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`The Court should also order Pursuant Health to disgorge to Dr. Lavery all profits that
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`6
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`Case 2:22-cv-10613-BAF-KGA ECF No. 1, PageID.7 Filed 03/22/22 Page 7 of 30
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`Pursuant Heath has unjustly gained from its unlawful conduct by failing to pay Dr.
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`Lavery his Perpetual Intellectual Property Royalty.
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`PARTIES
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`34.
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`Dr. Lavery is a citizen of the United States who maintains his residence
`
`and domicile in Michigan.
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`35.
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`Pursuant Health, Inc., is a corporation organized and incorporated under
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`the laws of the State of Delaware, and, according to the Georgia Secretary of State,
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`Corporations Division, its principal place of business is located at 825 Progress Center
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`Avenue, Suite A, Lawrenceville, Georgia 30043. Pursuant Health, therefore, is a citizen
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`of Delaware and Georgia.
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`JURISDICTION AND VENUE
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`36.
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`The sole Plaintiff in this action is a citizen of Michigan, and the Defendant
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`is a citizen of Delaware and Georgia. Accordingly, there is complete diversity between
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`the parties, and this action is between citizens of different states.
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`37.
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`As alleged herein, the amount in controversy between the parties
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`substantially exceeds $75,000.00, exclusive of interest and costs.
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`38.
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`By virtue of the foregoing facts, this Court has jurisdiction over the subject
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`matter of this action under 28 U.S.C. §1332(a)(1).
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`39.
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`Venue is properly laid in this judicial district under 28 U.S.C. §1391
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`because the Defendant is subject to personal jurisdiction in Michigan.
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`7
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`Case 2:22-cv-10613-BAF-KGA ECF No. 1, PageID.8 Filed 03/22/22 Page 8 of 30
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`FACTS COMMON TO ALL COUNTS
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`A.
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`Dr. Lavery’s groundbreaking work inventing a retinal scan kiosk.
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`40.
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`This case involves intellectual property, contractual rights, trade secrets,
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`and expertise provided by Dr. Lavery related to the invention, development,
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`manufacture, sale, and distribution of a retinal scan kiosk.
`
`41.
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`The retinal scan kiosk includes a housing containing a user interface, an
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`automatic medical test apparatus, and a transmitting means for communicating the
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`output of the medical test apparatus to a remote site for analysis.
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`42.
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`The user interface is a video display capable of receiving user data and it
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`is also capable of displaying the medical test output.
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`43.
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`The retinal scan kiosk also includes a control means, in the housing, for
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`controlling the user interface, activation of the medical test apparatus, and operation of
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`the transmitting means.
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`44.
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`The retinal scan kiosk, when fully functional, will include a digital retinal
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`camera which will be used to conduct a medical screening test on a user or patient.
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`45.
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`The primary advantage of the retinal scan kiosk is the quick and easy
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`taking of a medical screening test on a user or patient. This procedure causes users to
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`more readily have the medical screening test performed so as to detect any diseases
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`(such as diabetic retinopathy) at an earlier stage. Usage of the retinal scan kiosk was, in
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`part, an effort to increase the percentage of patients who are obtaining yearly eye exams
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`8
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`Case 2:22-cv-10613-BAF-KGA ECF No. 1, PageID.9 Filed 03/22/22 Page 9 of 30
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`to detect diabetes effects, glaucoma, and other eye problems in an earliest possible
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`stage.
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`46.
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`The kiosk includes a touchscreen which provides instructions to the user,
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`and it accepts inputs by means of the user touching selected portions of the touchscreen
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`on which appear input selections, including a keyboard display to enable a user to enter
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`user demographics, such as name, address, phone number, age, weight, gender, and
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`other information pertinent to a retinal exam.
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`47.
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`After the user inputs their demographic information into the unit via the
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`touchscreen or other input interface, the user will sit in the chair attached to the kiosk
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`and activate the apparatus. The retinal camera, when fully operational, will then auto-
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`focus the lens to the proper focal length and will take a digital retinal image of one of
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`the user’s eyes. The user will then shift his or her relative position and will repeat this
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`process to enable the retinal camera to take a digital retinal image of the user’s other
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`eye.
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`B.
`
`Origins of Dr. Lavery’s Business Relationship with SoloHealth for the
`Marketing and Development of Retinal Screening Kiosks.
`
`48.
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`Beginning in February 2001, Dr. Lavery applied for a United States patent
`
`for a medical screening apparatus and method he invented to conduct a medical
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`screening test using a retinal screening apparatus which uses a digital retinal camera in
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`a medical kiosk (the “Application”). Exhibit 1.
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`9
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`49.
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`On February 14, 2001, the Application was filed, and United States Patent
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`No. 6,594,607, dated July 15, 2003, was issued for the Invention. Exhibit 2.
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`50.
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`Although the retinal scan kiosk came to be manufactured, marketed, and
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`sold through a somewhat complex corporate structure and set of supply and licensing
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`agreements, all relevant parties to these transactions repeatedly have acknowledged
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`over the years that the Patent and the Intellectual Property was developed by Dr.
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`Lavery.
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`51.
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` SoloHealth, pursuant to Section 1.2(a) of the Contribution Agreement,
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`agreed to pay Dr. Lavery “a perpetual royalty (the “Royalty”), on a quarterly basis, of
`
`one percent (1%) (the “Royalty Percentage”) of [SoloHealth’s] Net Domestic Sales of
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`Products for the prior quarter.” Exhibit 3.
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`52.
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`There is no provision in the Contribution Agreement — in Section 1.2 or
`
`otherwise — which provides for the termination of the one percent (1%) Royalty
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`Percentage at the end of the Term. Exhibit 3.
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`53.
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`Pursuant to Section 1.2(a) of the Contribution Agreement, Dr. Lavery and
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`SoloHealth also agreed, “that at the time that [SoloHealth] first receives Net Domestic
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`Sales from Retinal Camera Products, the Royalty Percentage shall be increased to three
`
`percent (3%) for the remainder of the Term.” Exhibit 3.
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`54.
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`Lavery and SoloHealth further agreed, in Section 1.2(a) of the
`
`Contribution Agreement, “no Royalty shall be payable pursuant to Section 1.2 or
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`10
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`Section 1.3 [of the Contribution Agreement] prior to the first anniversary of the Launch
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`Date (and no Royalty shall accrue for any Net Domestic Sales of Products made prior to
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`the first anniversary of the LaunchDate).” Exhibit 3.
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`55.
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`Pursuant to Section 1.2(c) of the Contribution Agreement, “‘Launch Date’
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`shall mean the date on which the Company first sells a Product (including the date on
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`which the Company first leases or receives usage fees from a Product or recognizes
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`revenue from sale of advertising or marketing associated with a Product), but not
`
`including any beta-testing, pilot project, or the like.” Exhibit 3.
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`56.
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`Pursuant to Section 1.2(d) of the Contribution Agreement, “‘Net Domestic
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`Sales’ shall mean the net revenues recognized by the Company for sales of the Products
`
`(including revenues from leasing or usage fees or revenues from sale of advertising or
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`marketing associated therewith), in North America, as recognized and reported on the
`
`Company’s financial statements in accordance with Generally Accepted Accounting
`
`Principles.” Exhibit 3.
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`57.
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`Pursuant to Section 1.2(e) of the Contribution Agreement, “‘Products’ shall
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`mean vision screening kiosks and any derivative or complementary applications.”
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`Exhibit 3.
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`58.
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`Pursuant to Section 1.2(f) of the Contribution Agreement, “‘Retinal
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`Camera Products’ shall mean Products that incorporate a retinal camera.” Exhibit 3.
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`11
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`59.
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`Pursuant to Section 1.2(g) of the Contribution Agreement, “‘Term’ shall
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`mean the period from the Effective Date until the earlier of (i) the termination of this
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`Agreement by mutual agreement of the parties, (ii) reversion of the Intellectual Property
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`to Lavery under Section 4.1(a) and (iii) the expiration of the Patent.” Exhibit 3.
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`60.
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`Pursuant to the Contribution Agreement, as set forth in its initial
`
`paragraph, the Effective Date of the Contribution Agreement was October 11, 2007.
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`Exhibit 3.
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`61.
`
`The Contribution Agreement has not been terminated by mutual
`
`agreement of the parties.
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`62.
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`The Intellectual Property has not reverted to Dr. Lavery under Section
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`4.1(a) of the Contribution Agreement.
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`63.
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`Pursuant Health claims the Patent expired, and the Contribution
`
`Agreement terminated, on May 23, 2021.
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`64.
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`The Perpetual Intellectual Property Royalty was specifically included in
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`the Contribution Agreement, by counsel for SoloHealth, at the request of Dr. Lavery. A
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`copy of the email from Dr. Lavery’s counsel, Tom Spillane, to SoloHealth’s counsel,
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`Brian Gordon, dated October 4, 2007 (sent at 9:41 a.m.) — which reflects Dr. Lavery’s
`
`insistence on a “Royalty Percentage” as “1% on all Products without a termination date
`
`beginning 1 year after Launch date” — is attached hereto and made part hereof as
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`Exhibit 4. (Emphasis added).
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`12
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`65. When the word “perpetual” was inserted into the Contribution
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`Agreement for the first time on Saturday, October 6, 2007, it was inserted by Brian
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`Gordon, of DLA Piper (counsel for SoloHealth), just two days after Tom Spillane,
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`counsel for Dr. Lavery, requested a royalty percentage of 1% on all Products without a
`
`termination date. Exhibit 4. A copy of the draft of the Contribution Agreement
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`prepared on October 6, 2007, and its accompanying document comparison done by
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`Workshare Professional at 2:23:04 p.m. on October 6, 2007, is attached hereto and made
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`part hereof as Exhibit 5. The draft of the Contribution Agreement attached as Exhibit 5
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`was labeled “DV_Comparison_#4362547v6_BALT1_-Lavery Contribution Agmt-
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`#4362547v7_BALT1_-Lavery Contribution Agmt.doc”.
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`66. When the word “perpetual” was inserted into the Contribution
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`Agreement for the first time on October 6, 2007 (Exhibit 5), it was inserted by counsel
`
`for SoloHealth with the consent and agreement of Bart Foster, the only other member of
`
`SoloHealth. A copy of the email from SoloHealth’s counsel, Brian Gordon, to Dr.
`
`Lavery’s counsel, Tom Spillane, sent at 2:41 p.m. on October 6, 2007 — which reflects
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`SoloHealth’s consent to Dr. Lavery’s insistence on a perpetual royalty for the intellectual
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`property — is attached hereto and made part hereof as Exhibit 6.
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`C.
`
`Agreement to Manufacture, Promote, Market, and Sell Products Under the
`Patent as a Retinal Scan Kiosk.
`
`67.
`
`In order to pursue the development, marketing, and sale of products
`
`based on the Patent in the form of a retinal scan kiosk, SoloHealth formally
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`acknowledged Dr. Lavery’s ownership of, and proprietary rights in, the Invention, the
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`Patent, and the Intellectual Property.
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`68.
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`The purpose of the Contribution Agreement was to enable Dr. Lavery to
`
`contribute certain Intellectual Property to SoloHealth so SoloHealth could develop and
`
`distribute products under the Patent in the form of a retinal scan kiosk. In exchange, (a)
`
`Dr. Lavery received a Ten percent (10%) interest in SoloHealth, LLC, (b) Dr. Lavery
`
`became a member of SoloHealth, LLC, pursuant to an Amended Operating Agreement
`
`attached to the Contribution Agreement as Exhibit A, (c) SoloHealth agreed to pay Dr.
`
`Lavery a perpetual royalty (“the Royalty”), on a quarterly basis, of One percent (1%)
`
`(“the Royalty Percentage”) of SoloHealth’s Net Domestic Sales of Products for the prior
`
`quarter, and (d) Dr. Lavery became the Chief Medical Officer of SoloHealth pursuant to
`
`the Consulting Agreement attached to the Contribution Agreement as Exhibit C.
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`Exhibit 3.
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`69.
`
`The Contribution Agreement, under which Dr. Lavery and SoloHealth
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`expressly acknowledged that Dr. Lavery would be “contributing certain Intellectual
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`Property” to SoloHealth, also provided that Dr. Lavery “will receive an equity interest
`
`in the company [SoloHealth] and a right to a royalty on the Company’s net sales
`
`associated with the Intellectual Property.” Exhibit 3.
`
`70.
`
`The Contribution Agreement, in Recital A, provides, “Lavery, in exchange
`
`for contributing certain Intellectual Property to the Company [SoloHealth] (the
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`14
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`“Contribution”), will receive an equity interest in the Company and a right to a royalty
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`on the Company’s net sales associated with the Intellectual Property, as further set forth
`
`in this Agreement.” Exhibit 3.
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`71.
`
`The Contribution Agreement obligated SoloHealth to pay Dr. Lavery, as
`
`additional consideration for the Contribution, a perpetual royalty (the “Perpetual
`
`Royalty”) equal to one percent (1%) of the Company’s Net Domestic Sales of Products.
`
`Exhibit 3.
`
`72.
`
`The Perpetual Royalty included in the Contribution Agreement was
`
`provided as consideration to Dr. Lavery not only in exchange for his contribution of the
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`Patent, but also in exchange for his contribution of all proprietary information, trade
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`secrets, and other intellectual property rights attendant to the Patent. Exhibit 3.
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`73.
`
`The Contribution Agreement does not state that the Perpetual Royalty of
`
`one percent (1%) is limited in duration. Exhibit 3.
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`74.
`
`The Contribution Agreement does not state that the Perpetual Royalty
`
`expires at the end of the Term (as the word “Term” is defined in Section 1.2(g) of the
`
`Contribution Agreement). Exhibit 3.
`
`75.
`
`The Contribution Agreement, in Section 1.2(a), does provide for an
`
`increase in the Royalty Percentage — from one percent (1%) to three percent (3%) for the
`
`remainder of the Term — at the time that the Company first received Net Domestic
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`Sales from Retinal Camera Products. Exhibit 3.
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`15
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`76.
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`The Contribution Agreement does not provide for a reduction of the
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`Perpetual Royalty to zero percent; rather, it only limits the increase from one percent
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`(1%) to three percent (3%) for the remainder of the Term. Exhibit 3.
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`77.
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`Dr. Lavery and SoloHealth, when they agreed to include the Perpetual
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`Royalty in the Contribution Agreement, knew that the royalty involved the Patent,
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`trade secrets, and other Intellectual Property.
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`78.
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`Because the Perpetual Royalty contemplated in the Contribution
`
`Agreement is increased during the usage of the Patent, and is subject to a reduction at
`
`the expiration of the Patent, a post-patent-expiration royalty of one percent (1%), is
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`legally permissible and was agreed to by Dr. Lavery and SoloHealth.
`
`79.
`
`Even though the Perpetual Intellectual Property Royalty is closely related
`
`to the Patent, the Perpetual Royalty is permissible after expiration of the patent because
`
`it is tied to non-patent rights.
`
`D.
`
`A New Initiative: The Creation of Pursuant Health
`
`80.
`
`On the Pursuant Health website, accessed on March 21, 2022, Pursuant
`
`Health explains its beginnings and its evolution into its current status as a nationwide
`
`provider of health screening kiosks:
`
`a.
`
`“Founded in 2007 as SoloHealth, our Company started with a
`
`mission to empower consumers with free and accessible healthcare.
`
`We began by launching our original product: a self-service vision
`
`16
`
`
`
`Case 2:22-cv-10613-BAF-KGA ECF No. 1, PageID.17 Filed 03/22/22 Page 17 of 30
`
`screening kiosk called EyeSite. After witnessing the success and
`
`impact of a self-service kiosk in the retail setting, we wanted to do
`
`more.”
`
`b.
`
`“In 2010, we received a $1.2M grant from the National Institutes of
`
`Health (NIH) to develop a more comprehensive health kiosk and
`
`went on to introduce the new and improved Pursuant Health kiosk
`
`in 2011. This FDA-Cleared Class II Medical Device was released
`
`with the ability to perform visual acuity screenings as well as
`
`biometric screenings (weight, Body Mass Index (BMI), blood
`
`pressure and pulse) and various health assessments.”
`
`c.
`
`“As millions of individuals used our kiosk each month, we again
`
`saw an opportunity to do more. In 2015, we decided to focus on one
`
`of the biggest challenges facing American adults: chronic condition
`
`management. During this time, we changed our name from
`
`SoloHealth to Pursuant Health and announced new clinical
`
`partnerships with Cleveland Clinic Wellness and the American
`
`Diabetes Association. With guidance from our clinical partners, we
`
`created the first NCQA-Certified Visual Health Age Assessment
`
`(“vHRA”).”
`
`17
`
`
`
`Case 2:22-cv-10613-BAF-KGA ECF No. 1, PageID.18 Filed 03/22/22 Page 18 of 30
`
`d.
`
`“We entered the managed care space in 2016 by introducing our
`
`population health platform as a solution for health plans to engage
`
`members, capture data and close gaps in care. After the launch of
`
`our first Medicaid Health Risk Assessment (HRA) program, we
`
`went on to contract with several of the leading national Medicaid
`
`and Medicare plans. To support these programs, our population
`
`health platform expanded to include multiple engagement
`
`mechanisms, data collection channels and incentive management
`
`capabilities.”
`
`e.
`
`“Today, the Pursuant Health kiosk is in over 4,600 retail locations
`
`throughout the country and has performed over 275 million health
`
`screenings. After completing a full rollout to Walmart stores in
`
`February 2019, we continue to grow our footprint and create more
`
`innovative technologies that will help more people get free and
`
`accessible healthcare.”
`
`81.
`
`Pursuant Health has installed a Pursuant Health kiosk in every Walmart
`
`in the United States except for those locations situated in the State of Massachusetts.
`
`82.
`
`Pursuant Health has installed a Pursuant Health kiosk in each of the 94
`
`Walmart stores located in the State of Michigan, including 49 Walmart stores located in
`
`the following cities situated within the Eastern District of Michigan:
`
`18
`
`
`
`Case 2:22-cv-10613-BAF-KGA ECF No. 1, PageID.19 Filed 03/22/22 Page 19 of 30
`
`a.
`
`Alpena County — Alpena (Walmart Supercenter #2358), 1180 M 32
`
`West, Alpena, Michigan 49707;
`
`b.
`
`Bay County — Bay City (Walmart Supercenter #1752), 3921 Wilder
`
`Road, Bay City, Michigan 48706;
`
`c.
`
`Cheboygan County — Cheboygan (Walmart Supercenter #2100),
`
`1150 South Main Street, Cheboygan, Michigan 49721;
`
`d.
`
`Genesee County — Burton (Walmart Supercenter #2273), 5323 East
`
`Court Street North, Burton, Michigan 48509;
`
`e.
`
`Genesee County — Clio (Walmart Supercenter #4243), 11493 North
`
`Linden Road, Clio, Michigan 48420;
`
`f.
`
`Genesee County — Fenton (Walmart Supercenter #2693), 3700
`
`Owen Road, Fenton, Michigan 48430;
`
`g.
`
`Genesee County — Flint (Walmart Supercenter #1928), 4313
`
`Corunna Road, Flint, Michigan 48532;
`
`h.
`
`Genesee County — Grand Blanc (Walmart Supercenter #3726), 6170
`
`South Saginaw Road, Grand Blanc, Michigan 48439;
`
`i.
`
`Gratiot County — Alma (Walmart Supercenter #1422), 7700 North
`
`Alger Road, Alma, Michigan 48801;
`
`j.
`
`Huron County — Bad Axe (Walmart Supercenter #1592), 901 North
`
`Van Dyke Road, Bad Axe, Michigan 48413;
`
`19
`
`
`
`Case 2:22-cv-10613-BAF-KGA ECF No. 1, PageID.20 Filed 03/22/22 Page 20 of 30
`
`k.
`
`Iosco County — Tawas City (Walmart Supercenter #5376), 621 East
`
`Lake Street, Tawas City, Michigan 48763;
`
`l.
`
`Isabella County — Mount Pleasant (Walmart Supercenter #1428),
`
`4730 Encore Boulevard, Mount Pleasant, Michigan 48858;
`
`m.
`
`Jackson County — Jackson (Walmart Supercenter #5160), 1700 West
`
`Michigan Avenue, Jackson, Michigan 49202;
`
`n.
`
`Lapeer County — Lapeer (Walmart Supercenter #1987), 555 East
`
`Genesee Street, Lapeer, Michigan 48446;
`
`o.
`
`Lenawee County — Adrian (Walmart Supercenter #1836), 1601 East
`
`US Highway 223, Adrian, Michigan 49221;
`
`p.
`
`Livingston County — Fowlerville (Walmart Supercenter #4540), 970
`
`Gehringer Drive, Fowlerville, Michigan 48836;
`
`q.
`
`Livingston County — Howell (Walmart Supercenter #1754), 3850
`
`East Grand River Avenue, Howell, Michigan 48843;
`
`r.
`
`Macomb County — Chesterfield (Walmart Supercenter #2692),
`
`45400 Marketplace Boulevard, Chesterfield, Michigan 48051;
`
`s.
`
`Macomb County — Clinton Township (Walmart Supercenter
`
`#4660), 18400 Hall Road, Clinton Township, Michigan 48038;
`
`t.
`
`Macomb County — Roseville (Walmart Supercenter #2959), 28804
`
`Gratiot Avenue, Roseville, Michigan 48066;
`
`20
`
`
`
`Case 2:22-cv-10613-BAF-KGA ECF No. 1, PageID.21 Filed 03/22/22 Page 21 of 30
`
`u.
`
`Macomb County — Sterling Heights #1 (Walmart Supercenter
`
`#2558), 44575 Mound Road, Sterling Heights, Michigan 48314;
`
`v.
`
`Macomb County — Sterling Heights #2 (Walmart Supercenter
`
`#2559), 33201 Van Dyke Avenue, Sterling Heights, Michigan 48312;
`
`w.
`
`Macomb County — Warren (Walmart Supercenter #4424), 29176
`
`Van Dyke Avenue, Warren, Michigan 48093;
`
`x.
`
`Midland County — Midland (Walmart Supercenter #2619), 910 Joe
`
`Mann Boulevard, Midland, Michigan 48642;
`
`y.
`
`Monroe County — Monroe (Walmart Supercenter #1790), 2150
`
`North Telegraph Road, Monroe, Michigan 48162;
`
`z.
`
`Oakland County — Commerce (Walmart Supercenter #2618), 3301
`
`North Pontiac Trail, Commerce, Michigan 48390;
`
`aa.
`
`Oakland County — New Hudson (Walmart Supercenter #5048),
`
`30729 Lyon Center Drive, East, New Hudson, Michigan 48165;
`
`bb.
`
`Oakland County — Novi (Walmart Supercenter #5893), 26090
`
`Ingersol Drive, Novi, Michigan 48375;
`
`cc.
`
`Oakland County — Rochester Hills (Walmart Supercenter #2354),
`
`2500 South Adams Road, Rochester Hills, Michigan 48309;
`
`dd. Oakland County — Troy (Walmart Supercenter #2873), 2001 West
`
`Maple Road, Troy, Michigan 48084;
`
`21
`
`
`
`Case 2:22-cv-10613-BAF-KGA ECF No. 1, PageID.22 Filed 03/22/22 Page 22 of 30
`
`ee.
`
`Oakland County —White Lake (Walmart Supercenter #2700), 9190
`
`Highland Road, White Lake, Michigan 48386;
`
`ff.
`
`Ogemaw County — West Branch (Walmart Supercenter #5159),
`
`2750 Cook Road, West Branch, Michigan 48661;
`
`gg.
`
`Otsego County — Gaylord (Walmart Supercenter #1542), 950
`
`Edelweiss Parkway, Gaylord, Michigan 49735;
`
`hh.
`
`Roscommon — Houghton Lake (Walmart Supercenter #2014), 2129
`
`West Houghton Lake Drive, Houghton Lake, Michigan 48629;
`
`ii.
`
`Saginaw — Saginaw #1 (Walmart Supercenter #2644), 5825
`
`Brockway Road, Saginaw, Michigan 48638;
`
`jj.
`
`Saginaw — Saginaw #2 (Walmart Supercenter #5097), 5650 Bay
`
`Road, Saginaw, Michigan 48604;
`
`kk.
`
`St. Clair — Fort Gratiot (Walmart Supercenter #1611), 4845 24th
`
`Avenue, Fort Gratiot, Michigan 48059;
`
`ll.
`
`Shiawassee — Owosso (Walmart Supercenter #1733), 1621 East M
`
`21, Owosso, Michigan 48867;
`
`mm. Tuscola — Caro (Walmart Supercenter #1798), 1121 East Caro Road,
`
`Caro, Michigan 48723;
`
`nn. Washtenaw — Saline (Walmart Supercenter #5472), 7000 East
`
`Michigan Avenue, Saline, Michigan 48176;
`
`22
`
`
`
`Case 2:22-cv-10613-BAF-KGA ECF No. 1, PageID.23 Filed 03/22/22 Page 23 of 30
`
`oo. Wayne — Belleville (Walmart Supercenter #2872), 10562 Belleville
`
`Road, Van Buren Township, Michigan 48111;
`
`pp. Wayne — Canton #1 (Walmart Supercenter #3476), 39500 Ford
`
`Road, Canton, Michigan 48187;
`
`qq. Wayne — Canton #2 (Walmart Supercenter #5761), 45555 Michigan
`
`Ave., Canton, Michigan 48188;
`
`rr.
`
`Wayne — Dearborn (Walmart Supercenter #4383), 5851 Mercury
`
`Drive, Dearborn, Michigan 48126;
`
`ss. Wayne — Livonia #1 (Walmart Supercenter #2631), 29555
`
`Plymouth Road, Livonia, Michigan 48150;
`
`tt.
`
`Wayne — Livonia #2 (Walmart Supercenter #5844), 29574 7 Mile
`
`Road, Livonia, Michigan 48152;
`
`uu. Wayne — Southgate (Walmart Supercenter #5842), 14900 Dix
`
`Toledo Road, Southgate, Michigan 48195;
`
`vv. Wayne — Taylor (Walmart Supercenter #2912), 7555 Telegraph
`
`Road, Taylor, Michigan 48180; and
`
`ww. Wayne — Woodhaven (Walmart Supercenter #3336), 23800 Allen
`
`Road, Woodhaven, Michigan 48183.
`
`23
`
`
`
`Case 2:22-cv-10613-BAF-KGA ECF No. 1, PageID.24 Filed 03/22/22 Page 24 of 30
`
`83.
`
`According to information obtained from the Pursuant Health website on
`
`March 21, 2022, Pursuant Health has installed its health screening kiosk in 4,618
`
`retailers across the United States.
`
`COUNT I
`
`DECLARATORY JUDGMENT PURSUANT TO 28 U.S.C. § 2201
`
`84.
`
`Dr. Lavery adopts by reference each and every one of the foregoing factual
`
`allegations as if alleged in full in Count I, except as they may be inconsistent with the
`
`specific allegations contained in Count I.
`
`85.
`
`Pursuant Health is contesting and denying Dr. Lavery’s righ
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