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`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
`CLARKSBURG
`
`FRANCES G. POST, individually and
`on behalf of all others similarly
`situation,
`
`Plaintiff,
`
`v.
`
`
`
`AMERISOURCEBERGEN CORPORATION,
`a Delaware corporation, US
`BIOSERVICES CORPORATION, a
`Delaware corporation, Ig.G. OF
`AMERICA, INC., a Maryland corporation,
`and IHS ACQUISITION XXX, INC., a Delaware
`Corporation,
`
`
`Defendants.
`
`
`
`
`
`
`
`
`Civ. Action No. 1:19-CV-73
` (Judge Kleeh)
`
`MEMORANDUM ORDER DENYING DEFENDANTS’
`MOTION TO DISMISS [DKT. NO. 15]
`
`
`On March 30, 2020, this Court issued an Order [Dkt. No. 36]
`denying in part and granting in part Defendants’ Motion to Dismiss
`[Dkt. No. 15] further noting that a memorandum opinion would
`follow. For the reasons discussed herein, that Order is AMENDED
`to the extent that the motion to dismiss [Dkt. No. 15] is DENIED
`as to Counts I, II, III, IV, V, and VI, and DENIED AS MOOT as to
`Count VII. The Court further DENIES the motion to dismiss based
`on The Medical Professional Liability Act (“MPLA”).
`PROCEDURAL HISTORY
`On April 18, 2019, the Plaintiff filed a Complaint against
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`Defendants AmerisourceBergen Corporation (“AmerisourceBergen”),
`US Bioservices Corporation (“US Bioservices”), I.g.G. of America,
`Inc. (“I.g.G.”), and IHS Acquisition XXX, Inc. (“IHS”)
`(collectively, “Defendants”) [Dkt. No. 1]. An Amended Complaint
`was filed on May 8, 2019 [Dkt. No. 9]. Defendants filed a Motion
`to Dismiss on July 15, 2019 [Dkt. No. 15], to which Plaintiff
`responded on August 7, 2019 [Dkt. No. 19]. Defendants filed a
`reply on August 20, 2019 [Dkt. No. 20] which makes the matter ripe
`for consideration.
`
`FACTUAL BACKGROUND
`I.
`
`Plaintiff, Frances G. Post (“Post” or “Plaintiff”), alleges
`seven claims in this matter: Count I, Negligence; Count II,
`Personal Injury; Count III, Civil Conspiracy; Count IV, Fraudulent
`Concealment; Count V, Unjust Enrichment/Disgorgement; Count VI,
`Breach of Confidentiality and Violation of Privacy; and Count VII,
`Punitive Damages [Dkt. No. 9]. Post is a resident of Morgantown,
`West Virginia and alleges that she, and putative class members,
`are individuals who were directed by Felix Brizuela, D.O.
`(“Brizuela”) to purchase immunogloblin (“IVIG”) from Defendants in
`Morgantown, West Virginia1 [Id. at 2]. IVIG is an intravenously
`
`
`1 For purposes of the Motion to Dismiss, the Court accepts as true
`the facts alleged in the Amended Complaint. See Anderson v. Sara
`Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007) (quoting Erickson v.
`Pardus, 551 U.S. 89, 94 (2007)).
`
`
`
`
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`administered blood product prepared by pooling immunoglobulins
`from the plasma of thousands of human donors [Id. at 5]. Plaintiff
`alleges that I.g.G. employed an Executive Account Manager and
`Director of Sales to target Felix Brizuela, D.O., among other
`physicians, to achieve an increase in sales of IVIG and to increase
`the profits of AmerisourceBergen, US Bioservices, I.g.G, and IHS
`Acquisition2 [Id. at 5-6]. Plaintiff asserts that Defendants made
`
`
`2 Felix Brizuela, D.O. is a Doctor of Osteopathic Medicine and a
`board-certified neurologist with a neurology practice in
`Morgantown, West Virginia [Dkt. No. 19 at 2, n.1]. A federal grand
`jury indicted Brizuela on 21 counts of distributing controlled
`substances outside the bounds of professional medical practice, in
`violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C); one count of
`conspiracy to distribute controlled substances outside the bounds
`of professional medical practice, in violation of 21 U.S.C. §§
`841(a)(1), (b)(1)(E)(i), (b)(1)(E)(iii); and 16 counts of illegal
`remuneration in violation of the federal anti-kickback statute, in
`violation of 42 U.S.C. §§ 1320a-7b(b)(1)(B) [N.D. W.Va. Criminal
`Action No: 1:18-cr-00001, Dkt. No. 1]. The anti-kickback charges
`related to a financial arrangement involving Brizuela, Southwest
`Laboratories, LLC (“Southwest”), and Medspan Laboratory, Inc.
`(“Medspan”) [Id.]. In January 2019, Brizuela was tried and
`convicted of certain felony offenses related to services he
`provided at a pain management and/or suboxone clinic and opioid
`prescribing practices in his private practice [Dkt. No. 19 at 2,
`n.1]. On June 19, 2020, the United States Court of Appeals for
`the Fourth Circuit reversed the conviction and remanded the case
`for a new trial. United States v. Felix Brizuela, Jr., No. 19-
`4656, --- F.3d ---, 2020 WL 3393440 (4th Cir. 2020). The reversal
`of Brizuela’s conviction was based on his contention that, under
`United States v. Kennedy, 32 F.3d 876 (4th Cir. 1994) and Federal
`Rule of Evidence 404(b), the district court improperly admitted
`the testimony of patients whose treatment was not the basis for
`any of the charges in the indictment. Brizuela, 2020 WL 339440,
`at *2. The Fourth Circuit determined that the government did not
`establish that the error was harmless and vacated the conviction.
`Id. at *3. On remand, Brizuela pled guilty to Count 2 of the
`Indictment, distribution of controlled substances outside the
`bounds of professional medical practice in violation of 21 U.S.C.
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`payments to Felix Brizuela, D.O. to induce him to misdiagnose
`patients and wrongfully disclose sensitive, private, and protected
`medical information of Plaintiff and other putative class members
`for the purpose of increasing new-book sales of IVIG, which
`increased Defendants’ profits [Id. at 5].
`For the period relevant to the allegations in the Amended
`Complaint, Felix Brizuela, D.O. and Felix Brizuela, D.O., PLLC
`operated a neurology office located at 1271 Suncrest Towne Centre,
`Morgantown, West Virginia [Dkt. No. 9 at 5]. Plaintiff contends
`Defendants greatly incentivized the aggressive sale of IVIG,
`especially to new purchasers, because Defendants knew: (1) once a
`person is prescribed IVIG, the person will likely take IVIG
`infusions for the remainder of his/her natural life; (2) IVIG is
`expensive for the purchaser and lucrative for Defendants; and (3)
`Defendants devised an internal practice which enabled them to
`secretly under report and under pay bonus commissions on IVIG sales
`to bolster corporate profits [Id. at 6]. Plaintiff asserts that
`Defendants charged high rates for the IVIG product and increased
`prices as the customer continued to purchase IVIG [Id.].
`Plaintiff claims to have received infusions every two weeks
`at an initial charge of $8,758.29 for each infusion [Dkt. No. 9 at
`
`
`§§ 841(a)(1) and 841(b)(1)(C) [N.D. W.Va. Criminal Action No: 1:18-
`cr-1-1, Dkt. No. 494]. Brizuela was sentenced on October 1, 2020,
`and the government dismissed the remaining charges in the
`Indictment [Id., Dkt. No. 495].
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`6]. The cost to Plaintiff was then raised to $9,126.28 and
`$10,450.44, respectively, for each infusion over a period of
`approximately twelve (12) months [Id.]. Plaintiff contends that
`Defendants so aggressively incentivized bonus commissions to its
`sales executives to book IVIG transactions that some sales
`executives earned an IVIG quarterly bonus in excess of $900,000.00,
`and that sales executives received a higher bonus commission
`percentage for the first six months of every new-book IVIG
`transaction [Id.].
`Plaintiff alleges that on April 3, 2012, Defendants began
`making payments to Felix Brizuela, D.O., that were unlawful,
`wrongful, violated Defendants’ written policies, violated ethical
`standards, and placed the health, safety, and wellbeing of
`Plaintiff and putative class members at risk [Dkt. No. 9 at 7].
`The payments made by Defendants to Brizuela continued until March
`19, 2015 [Id.]. Plaintiff claims that Brizuela performed no
`services for Defendants to earn the payments made to him other
`than increasing the number of new-book IVIG transactions [Id.].
`While Defendants paid Felix Brizuela, D.O. to obtain new-book IVIG
`transactions, Brizuela became one of the highest volume IVIG
`prescribing practitioners in the United States as measured by data
`from the Centers for Medicare and Medicaid Services (“CMS”) [Id.].
`During the approximate 26-month period Defendants made payments to
`Felix Brizuela, D.O., Defendants obtained approximately 65 new-
`
`
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`book IVIG transaction accounts through Brizuela [Id.]. Defendants
`also obtained numerous additional new referrals from Brizuela
`during that same period for whom Defendants attempted to obtain
`pre-authorization payment approval [Id.].
`Plaintiff alleges that neither she, nor the putative class
`members, had CIPD, the medical condition diagnosed to trigger the
`sale of IVIG [Dkt. No. 9 at 7]. Plaintiff asserts that Defendants
`knew Felix Brizuela, D.O. was making CIDP diagnoses to trigger the
`sale of IVIG at an incident rate exponentially higher than any
`rate published in peer review studies, higher than any other
`prescribers, and that Brizuela’s documentation in the possession
`of Defendants did not support new-book IVIG transactions [Id.].
`It is further alleged that Defendants knew the health, safety, and
`wellbeing of Plaintiff and punitive class members were at risk
`because Defendants were making improper payments to obtain new-
`book IVIG transactions through Brizuela [Id. at 8].
`According to the Amended Complaint, IVIG is infused slowly
`over a course of hours, and it requires surgical PICC line
`placement and placement for infusion or IV administration for each
`infusion [Dkt. No. 9 at 8]. Both methods of infusion are
`associated with risk of infection, injury, disease, and death
`[Id.]. Side effect rates for IVIG are high and include extreme
`fatigue, malaise, fever, nausea vomiting, all described as flu-
`like symptoms, headaches, blood pressure changes, and tachycardia
`
`
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`[Id.]. Plaintiff asserts the infusions prevent people from
`carrying out functions of daily living and work on the days of
`their infusion, and for some days, thereafter [Id.]. Plaintiff
`further claims that IVIG is associated with acute renal failure,
`thromboembolic events, aseptic meningitis, neutropenia, and skin
`reactions, among other risks [Id.]. All IVIG patients require
`administration and monitoring associated with the infusions [Id.].
`The allegations state that Felix Brizuela, D.O. performed no
`services on behalf of Defendants to legitimately earn ten (10)
`payments made to Brizuela by and on behalf of Defendants [Dkt. No.
`9 at 8]. Plaintiff contends that Defendants admit the payments to
`Brizuela violate their own policies, and that those policies were
`put in place, in part, to protect the health, safety, and wellbeing
`of IVIG purchasers, including Plaintiff and the other putative
`class members [Id.]. Plaintiff alleges that Defendants made the
`improper payments to Brizuela and violated their own policies to
`increase new-book IVIG transactions, increase paid and underpaid
`sales commissions, and increase corporate profits [Id. at 8-9].
`Plaintiff further contends that the Defendants’ wrongful actions
`were concealed from Plaintiff and putative class members, and that
`Plaintiff became aware of the wrongful payments in April 2019 [Id.
`at 9].
`Plaintiff’s Amended Complaint is brought individually and on
`behalf of the putative class members she seeks to represent [Dkt.
`
`
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`No. 9 at 9]. Plaintiff defines the proposed class as follows:
`All persons who were prescribed immunoglobulin (IVIG) by
`Felix Brizuela, D.O. between April 3, 2012 and March 19,
`2015 and were directed to Defendants AmerisourceBergen
`Corporation, US Bioservices Corporation, Ig.G. of
`America, Inc., and IHS Acquisition XXX, Inc. for
`purchase of IVIG.
`
`[Id. at 9].
`
`II. STANDARD OF REVIEW
`
`Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
`
`a defendant to move for dismissal upon the ground that a complaint
`does not “state a claim upon which relief can be granted.” In
`ruling on a motion to dismiss, a court “must accept as true all of
`the factual allegations contained in the complaint.” Anderson v.
`Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007) (quoting Erickson
`v. Pardus, 551 U.S. 89, 94 (2007)). A court is “not bound to
`accept as true a legal conclusion couched as a factual allegation.”
`Papasan v. Allain, 478 U.S. 265, 286 (1986). A court also
`liberally construes “the complaint, including all reasonable
`inferences therefrom, … in Plaintiff’s favor.” Estate of Williams-
`Moore v. All. One Receivables Mgmt., Inc., 335 F. Supp. 2d 636,
`646 (M.D.N.C. 2004) (citations omitted).
`
`A motion to dismiss under Rule 12(6)(b) tests the “legal
`sufficiency of a complaint.” Francis v. Giacomelli, 588 F.3d 186,
`192 (4th Cir. 2009). A court should dismiss a complaint if it
`does not contain “enough facts to state a claim to relief that is
`
`
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`plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.
`544, 570 (2007). Plausibility exists “when the plaintiff pleads
`factual content that allows the court to draw the reasonable
`inference that the defendant is liable for the misconduct alleged.”
`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To withstand a motion
`to dismiss under Federal Rule of Civil Procedure 12(b)(6), a
`complaint must plead enough facts “to state a claim to relief that
`is plausible on its face.” Wikimedia Found. v. Nat’l Sec. Agency,
`857 F.3d 193, 208 (4th Cir. 2017) (quoting Ashcroft, 556 U.S. at
`678 (2009)). The factual allegations “must be enough to raise a
`right to relief above a speculative level.” Twombly, 550 U.S. at
`545. The facts must constitute more than “a formulaic recitation
`of the elements of a cause of action.” Id. at 555. A motion to
`dismiss “does not resolve contests surrounding the facts, the
`merits of a claim, or the applicability of defenses.” Republican
`Party of N.C. v. Martin, 980 F.2d 942, 952 (4th Cir. 1992).
`III. DISCUSSION
`
`Defendants ask the Court to dismiss all claims in the Amended
`Complaint. The Court will discuss each in turn.
`A. Negligence and Personal Injury
`Defendant requests dismissal of Plaintiff’s Negligence and
`
`Personal Injury claims at Counts I and II of the Amended Complaint3
`
`
`3 Defendants note that Count I of the Amended Complaint is titled
`“Negligence,” while Count II is titled “Personal Injury.”
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`[Dkt. No. 15]. Defendants argue that Plaintiff fails to state a
`claim because Plaintiff relies on statutory violations, under the
`Stark Act, 42 U.S.C. § 1395nn, and the Anti-Kickback law, 42 U.S.C.
`§ 1320a-7b, for which no private right of action exists [Dkt. No.
`15-2 at 3]. The Stark Act prohibits a physician who has a financial
`relationship with an entity from making a referral to that entity
`for the furnishing of certain services for which payment may be
`made by the federal government under the Medicare program. See 42
`U.S.C. § 1395nn. The Anti-Kickback law is a criminal statute that
`prohibits the knowing and willful solicitation and/or receipt of
`remuneration in return for referring a patient for the furnishing
`of an item or service for which payment may be made in whole or in
`part under a federal health care program. See 42 U.S.C. § 1320a-
`7b. Defendants argue that rights under the Anti-Kickback statute
`are only enforceable through the qui tam provisions of the False
`Claims Act [Dkt. No. 15-2 at 4].
`
`In the alternative, Defendants argue that there exists no
`common law duty of care as between Plaintiff and Defendants, and
`that Plaintiff’s negligence claims are barred by the economic loss
`rule [Dkt. No. 15-2 at 6-9]. Defendants also submit that
`
`
`Defendants argue that personal injury is a form of injury or
`category of damages recoverable in a negligence action, and not an
`independent cause of action. Defendants address Count II as part
`of their argument to dismiss the negligence claim in Count I [Dkt.
`No. 15-2 at 2, n.2], and the Court will address both counts
`together.
`
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`Plaintiff’s negligence claims must fail because one cannot
`negligently aid and abet the tortious acts of another [Id. at 9-
`11]. They further contend that even if Defendants were negligent,
`the alleged acts of Felix Brizuela, D.O., were an intervening and
`superseding cause that breaks the chain of liability [Id. at 12].
`
`Plaintiff responded to Defendants’ motion to dismiss by first
`noting that Plaintiff has not alleged causes of action under either
`the Stark Act or Anti-Kickback Law [Dkt. No. 19 at 11]. Plaintiff
`asserts that the statutes do not prohibit a person from asserting
`state tort claims based on conduct that results in personal
`injuries and damages where the conduct may also violate federal
`regulatory standards or criminal statutes [Id.]. Plaintiff
`contends that Defendants owed a duty of care to prevent the likely
`foreseeable injuries to Plaintiff and putative class members, and
`that Plaintiff has alleged detailed and specific examples of
`wrongful conduct by Defendants which created a likely,
`foreseeable, and unreasonable risk of harm to Plaintiff and
`potential class members [Id. at 6-8]. Plaintiff argues that West
`Virginia law recognizes a cause of action of tortious concert of
`action and that Defendants can, in fact, be held liable for the
`tortious concert of action asserted against them [Id. at 9].
`Finally, Plaintiff contends that Defendants’ conduct was a
`substantial factor in causing Plaintiff’s alleged injuries and
`that they are not relieved from liability by the acts of Felix
`
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`Brizuela, D.O. [Id. at 13].
`
`The Court agrees that Plaintiff has not alleged violations of
`the Stark Act or the Anti-Kickback Law in the Amended Complaint.
`While civil suits are not uncommon under the Anti-Kickback Law,
`they primarily take the form of a qui tam action under the False
`Claims Act (“FCA”)4. Defendants fail to provide the Court with
`precedential authority establishing that conduct which may violate
`the Stark Act and the Anti-Kickback Law can never be the basis for
`a lawsuit under a different statute or legal theory.
`
`Here, Plaintiff does not allege violations of the FCA or
`causes of action under the Stark Act5 or Anti-Kickback Law as
`grounds for recovery. Rather, she brings a common law negligence
`claim and claim for personal injuries related to Defendants’
`conduct in providing wrongful, substantial assistance, and
`encouragement to Felix Brizuela, D.O. to diagnose CIDP and increase
`
`
`4 One example of such a suit that came to the Court’s attention in
`researching this issue involves one of the Defendants in this
`matter. US Bioservices entered into a stipulation and order of
`settlement and dismissal in the United States District Court for
`the Southern District of New York in an Anti-Kickback and FCA case
`arising
`from
`a
`remuneration
`arrangement with
`Novartis
`Pharmaceutical Corporation (“Novartis”) [United States of America
`v. U.S. Bioservices Corp., No. 1:17-cv-6353-CM, Dkt. No. 5].
` The Stark Act gives no one the right to sue and never appears in
`court alone. It always travels as a companion of another statute
`that creates a cause of action, typically, the False Claims Act.
`See United States ex rel. Bookwalter v. UPMC, 946 F.3d 162, 169
`(3rd Cir. 2019). A Medicare claim that violates the Stark Act is
`a false claim under the FCA. Id. (citation omitted).
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`Defendants’ new-book IVIG transactions at an increased profit to
`Defendants. Plaintiff alleged that Defendants paid Brizuela from
`April 3, 2012 to March 19, 2015, in exchange for increasing
`Defendants’ number of new-book IVIG transactions. Given the
`allegations, dismissal of Counts I and II because the Stark Act
`and Anti-Kickback Law prohibit any and all private claims is not
`warranted. See Braun v. Promise Regional Medical Center-
`Huntchinson, Civ. A. 11-2180, 2011 WL 6304119 (U.S.D.K. Dec. 16,
`2011) (finding that the Stark Act does not limit the authority of
`a court to grant relief for unjust enrichment and it is not
`presumed that the common law is changed by the passage of a statute
`which gives no indication that it proposes such a change); State
`ex rel. Van Nguyen v. Berger, 483 S.E.2d 71 (W. Va. 1996)
`(explaining that common law is not to be construed as altered or
`changed by statute, unless legislative intent to do so be plainly
`manifested).
`
`The Court also cannot find that Plaintiff failed to
`sufficiently plead a claim for negligence based on lack of duty by
`Defendants. “In order to establish a prima facie case of
`negligence in West Virginia, it must be shown that the defendant
`has been guilty of some act or omission in violation of a duty
`owed to the plaintiff. No action for negligence will lie without
`a duty broken.” Syl. Pt. 1, Parsley v. General Motors Acceptance
`Corporation, 280 S.E.2d 703 (W. Va. 1981). A duty exists when a
`
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`person “engages in affirmative conduct, and thereafter realizes or
`should realize that such conduct has created an unreasonable risk
`of harm to another.” Robertson v. LeMaster, 301 S.E.2d 563, 567
`(W. Va. 1983) (citing Restatement (Second) of Torts § 321 (1965)).
`Under these circumstances, a duty exists to exercise reasonable
`care to prevent the threatened harm. Id. “The obligation to
`refrain from particular conduct is owed only to those who are
`foreseeably endangered by the conduct and only with respect to
`those risks or hazards whose likelihood made the conduct
`unreasonably dangerous.” Id. at 568 (citation omitted).
`
`Foreseeability is the “ultimate test” of whether a duty of
`care exists. Syl. Pt. 8., Aikens v. Debow, 541 S.E.2d 576 (W. Va.
`2000). This asks whether an ordinary man in the defendant’s
`position, considering what he knew or should have known, would
`have anticipated the general harm suffered would likely occur.
`Id. at 581. While foreseeability is necessary to establish a duty
`of care, the court can also consider “the core issue of the scope
`of the legal system’s protection, including the likelihood of
`injury, the magnitude of burden of guarding against it, and the
`consequences of placing that burden on defendant.” Bilmar Ltd.
`P’ship v. Prima Mktg., LLC, Civ. A. No. 2:13-1439, 2013 WL 6195722,
`at *4 (S.D. W. Va. Nov. 27, 2013) (citations omitted). When a
`case involves a physical injury, a special relationship analysis
`
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`is not required to find a duty of care. Bragg v. United States,
`741 S.E.2d 90, 99 (W. Va. 2013).
`
`The Amended Complaint contains sufficient facts to support a
`negligence claim. Plaintiff alleged affirmative conduct by
`Defendants in making payments to Felix Brizuela, D.O. to increase
`IVIG transactions, and in concealing from patients information
`regarding the payments and the increased number of CIPD diagnoses
`in the geographic location. Plaintiff asserts that harm was
`foreseeable because each Defendant sold IVIG in the supply chain
`knowing there was a substantial likelihood the sales were improper
`due to the illegal payment scenario under which the sales were
`procured. Plaintiff claims that Defendants failed to guard against
`foreseeable conduct of corrupt salespeople, corrupt managers, and
`others within the corporate structure. Further, Plaintiff
`contends that neither she nor putative class members had CIDP
`during the period in which the Defendants made the payments and
`when Brizuela made their diagnoses. Plaintiff raised policy
`considerations in the Amended Complaint by stating that there is
`immense social value to the interests threatened by Defendants’
`behavior, namely the health, safety, and welfare of the Plaintiff.
`After a period of discovery, it may be that Plaintiff cannot prove
`the negligence and personal injury claims as a matter of law. At
`this stage, the allegations are sufficient to establish a plausible
`claim for negligence and corresponding personal injury.
`
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` Defendants’ argument regarding the economic loss rule is
`
`also misplaced because Plaintiff alleged more than a financial
`loss. Negligence claims generally require damages from property
`loss or personal injury. See E. Steel Constructors, Inc. v. City
`of Salem, 549 S.E.2d 266, 272 (W. Va. 2001). In West Virginia,
`an individual who sustains purely economic loss from an
`interruption in commerce caused by another’s negligence
`may not recover damages in the absence of physical harm
`to that individual’s person or property, a contractual
`relationship with the alleged tortfeasor, or some other
`special relationship.
`
`Aikens, 541 S.E.2d at 589. Here, Plaintiff has alleged the side
`effects, risks, and symptoms associated with IVIG treatment,
`including fatigue, malaise, fever, nausea, vomiting, headaches,
`blood pressure changes, tachycardia, acute renal failure,
`thromboembolic events, aseptic meningitis, neutropenia, and skin
`reactions. Plaintiff seeks damages for pain and suffering among
`other losses.
`
`Plaintiff further alleged that a special relationship existed
`between the parties because there was foreseeable risk that
`individuals would be misdiagnosed with CIDP and referred for IVIG
`therapy because of the wrongful payments to Brizuela. Defendants
`cite Henry v. Synchrony Bank, No. CV 3:16-5999, 2016 WL 6871269
`(S.D. W. Va. Nov. 21, 2016) in support of the argument that
`Plaintiff may not recover economic losses in the absence of
`personal injury or property damage. However, the Court in Henry
`
`
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`did not dismiss at the 12(b)(6) stage, finding that it was unclear
`whether Plaintiff could establish a special relationship with
`Defendant to maintain the action and that the complaint stated a
`plausible claim for recovery. Henry, 2016 WL 6871269, at *4.
`Similarly, Plaintiff’s claim should not be dismissed based on the
`economic loss rule.
`
`Defendants’ argument in the alternative, that Plaintiff’s
`negligence claim must fail because Defendants cannot “negligently”
`aid or abet the tortious conduct of another, is also unpersuasive.
`West Virginia law recognizes a cause of action and liability for
`“concert of action.” Price v. Halstead, 355 S.E.2d 380 (W. Va.
`1987); Courtney v. Courtney, 413 S.E.2d 418 (W. Va. 1991). Courts
`interpreting West Virginia law have applied this “concert of
`action” theory to support a variety of actions including holding
`a third party liable for inducing a physician to breach the
`fiduciary relationship by disclosing confidential information,
`Morris v. Consolidation Coal Co., 446 S.E.2d 648, 657 (W. Va.
`1994), and holding an individual liable for assisting and
`encouraging a battery by another on a third party, Barth v.
`Performance Trucking Co., Inc., 424 S.E.2d 602 (W. Va. 1992).
`Similarly, this Court has recognized that the West Virginia Human
`Rights Act provides for a cause of action against individuals who
`aid or abet an unlawful discriminatory act. See Larry v. Marion
`County Coal Company, 302 F.Supp.3d 763,776-777 (N.D. W. Va. 2018)
`
`
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`(citing Holsten v. Norandex, Inc., 461 S.E.2d 473 (W. Va. 1995)).
` In this case, Plaintiff alleges a concert of action by
`Defendants to provide wrongful, substantial assistance and
`encouragement to Felix Brizuela, D.O., which Defendants
`foreseeably knew would cause harm. Construing the Amended
`Complaint in the light most favorable to the Plaintiff, as it must,
`the Court finds that Plaintiff has alleged Defendants knew of each
`other’s tortious conduct and provided substantial assistance or
`encouragement of such conduct for which Defendants may be liable.
`
`The Court further disagrees with Defendants that dismissal is
`appropriate because the acts of Felix Brizuela, D.O. in
`intentionally misdiagnosing Plaintiff and punitive class members
`with CIDP and referring them for IVIG therapy were an intervening
`and superseding cause that render Brizuela solely liable for
`damages. A tortfeasor whose negligence is a “substantial factor
`in bringing about injuries is not relieved from liability by the
`intervening acts of third persons if those acts were reasonably
`foreseeable by the original tortfeasor at the time of his negligent
`conduct.” See Syl. Pt. 13, Anderson v. Moulder, 394 S.E.2d 61 (W.
`Va. 1990); Syl. Pt. 15, Marcus v. Staubs, 736 S.E.2d 360 (W. Va.
`2012).
`
`Plaintiff alleges that Defendants engaged in wrongful conduct
`to induce the new-book sales of IVIG and continued their wrongful
`conduct after Brizuela’s record number of false diagnosis of CIDP.
`
`
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`Plaintiff further contends that after the diagnosis, Defendants
`wrongfully obtained Plaintiff’s private health information without
`consent and authorization. As pled, Defendants would not be
`relieved from liability because Brizuela’s wrongful conduct was
`foreseeable from Defendants’ affirmative conduct. Based on the
`allegations of the Amended Complaint, Counts I and II are not
`appropriate for dismissal at this stage.
`B. Civil Conspiracy
`Defendants assert that Count III of the Amended Complaint, a
`
`claim for civil conspiracy, must fail because it is not a stand-
`alone cause of action and because affiliated companies like
`Defendants cannot conspire as a matter of law6 [Dkt. No. 15-2 at
`13-14]. Plaintiff counters that West Virginia law recognizes a
`cause of action for civil conspiracy, regardless of whether the
`claim requires an underlying tort or harm resulting from the
`conspiracy [Dkt. No. 19 at 14]. See Dunn v. Rockwell, 689 S.E.2d
`255 (W. Va. 2009); Doe-1 v. Corp. of President of the Church of
`Jesus Christ of Latter-day Saints, 801 S.E.2d 443 (W. Va. 2017).
`
`
`6 Defendants cite Sherman Antitrust Act cases in support of the
`contention that affiliated companies under the same parent cannot
`conspire as a matter of law [Dkt. No. 15-2 at 14]. See Copperweld
`Corp. v. Independence Tube Corp., 467 U.S. 752, 777 (1984); and
`Advanced Health-Care Serv., Inc. v. Radford Community Hosp., 910
`F.2d 139, 146 (4th Cir. 1990). Defendants also cite a West Virginia
`case in support of their argument; however, it also involves
`antitrust, unfair trade practices, and consumer protection claims.
`See Princeton Ins. Agency, Inc. v. Erie Ins. Co., 690 S.E.2d 587
`(W. Va. 2009).
`
`
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`Plaintiff also responds that the Sherman Antitrust Act cases cited
`by Defendants do not support the argument that related businesses
`cannot commit civil conspiracy [Dkt. No. 17-18]. Plaintiff
`contends that the cases narrowly apply the provisions of the
`Sherman Act anti-trust law and the manner in which one can satisfy
`the restraint on trade provision of that Act [Id. at 18].
`
`A civil conspiracy requires (1) “a combination of two or more
`persons by concerted action” to (2) “accomplish an unlawful purpose
`or to accomplish some purpose, not itself unlawful, by unlawful
`means.” Dunn, 689 S.E.2d at 268. “A civil conspiracy is … a legal
`doctrine under which liability for a tort may be imposed on people