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Plaintiff challenged a program under
which Merck paid CVS to mail letters to CVS customers
who had been prescribed certain medications. The letters
urged the patients to consult with their doctors about
the possibility of obtaining additional prescriptions
for related health conditions. Plaintiff brought suit,
alleging that the defendants committed violations of the
right to privacy, breached the duty of confidentiality,
misappropriated information, and violated G.L. c. 93A by
engaging in the mailing program.
On cross motions for summary judgment,
and beginning with the privacy claims, the court held
that plaintiff could not demonstrate that he had
suffered a substantial or serious interference with his
privacy. In so holding, the court acknowledged that a
different judge in the case had previously found the
privacy question to be an appropriate one for the jury.
However, Judge Gants “respectfully disagree[d],” and
stated that he would overrule a jury verdict on this
question in any event – for “no reasonable jury could
find in plaintiff’s favor based on this record.” Id.
at *4. Turning to the breach of duty of
confidentiality claims, the court found “that it would
constitute a breach of the duty that CVS owed to its
pharmacy customers to disclose their prescription
information without their consent.” Id. at *5.
But in the absence of evidence that CVS had disclosed
information about the specific medication prescribed to
plaintiff, the breach of confidentiality claims could
not stand: “disclosure of the mere fact that an
individual has been prescribed medication |
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is not the stuff of a cause of action.”
Id. at *6. Nor could plaintiff’s misappropriation
claim withstand a motion for summary judgment – for
there was “no evidence that CVS sought to take advantage
of Kelley’s reputation, prestige, or other value
association with him, for purposes of publicity” in
connection with the program. Id.
The court agreed with the plaintiff that
defendants violated Chapter 93A. Although the letter
sent to plaintiff did not contain false information, it
“did conceal that CVS received a net profit from Merck
for each Letter that it sent.” Id. at *7.
“Without such information, the patient, in view of the
pharmacist’s duty of care, reasonably may assume that
the advice was provided solely out of concern for the
health and best interest of the patient. With such
information, the patient reasonably may question whether
the advice was intended to serve the health and best
interest of the patient or the financial health and best
interest of the pharmacy. This information is so
important to the appropriate evaluation of the advice
that it is fundamentally unfair to the patient for the
pharmacy to deprive him of it.” Id. at *9. With
respect to damages, there was no evidence that plaintiff
suffered any loss of money or property or significant
emotional distress as a result of receiving the mailing.
The court therefore ordered damages in the form of
disgorgement of profits received by CVS in connection
with the mailing – in this case, the statutory minimum
of $25, plus reasonable attorney’s fees.
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