Opinion
No. CV 02-0815169 S
April 5, 2005
MEMORANDUM OF DECISION ON MOTION TO STRIKE (#157)
The court heard argument at short calendar on February 28, 2005 concerning the defendant CVS Pharmacy, Inc.'s (CVS) motion to strike the first, fifth, and sixth counts of the plaintiff's (Russo) second amended complaint (#148). After considering the parties' arguments, the court issues this memorandum of decision. For the reasons set forth below, the motion to strike is granted.
I BACKGROUND
The second amended complaint, dated April 21, 2003 (complaint), alleges three counts against CVS. The first count is premised on invasion of privacy, based on CVS' release of pharmacy records concerning Russo, including prescription records, to requesting law enforcement personnel. In the fifth count, Russo incorporates the allegations of the first count and alleges that the same conduct amounts to the negligent infliction of emotional distress.
In the sixth count, Russo incorporates the same allegations and alleges the intentional infliction of emotional distress.
In the complaint, first count, Russo alleges that, at all material times, he was a City of Hartford, Connecticut Police Department detective. He asserts that, on various dates between October 1997 and April 1998, another Hartford Police detective or an investigator for the United States Department of Justice Drug Enforcement Administration (the officers), entered various CVS locations, in South Windsor, Hartford, and Wethersfield, Connecticut, and were given Russo's patient profiles and prescriptions by pharmacists who were on duty. See complaint, first count, ¶¶ 5-14. He alleges also that no "valid warrant or other legitimate legal process" was presented by the officers. See complaint, first count, ¶¶ 5-14.
Russo claims that he had a privacy interest in the records which CVS "distributed to law enforcement personnel." See complaint, first count, ¶ 15. He also states that he did not consent to the disclosures and that they constituted "a meaningful, purposeful, unseemly and unbecoming intrusion" into his privacy. See complaint, first count, ¶ 17. In addition, he alleges that CVS knew of its violations and deprivations of his right to privacy and that CVS "should have realized that such violations would be offensive to persons of ordinary sensibilities." See complaint, first count, ¶ 18. He claims that, due to CVS' conduct, he was subjected to ridicule, embarrassment, vexation and humiliation. In counts five and six, he also claims to have suffered severe emotional distress.
In its motion to strike, CVS contends that, in light of our Connecticut Supreme Court's decision in State v. Russo, 259 Conn. 436, 790 A.2d 1132, cert. denied, 537 U.S. 879, 123 S.Ct. 79, 154 L.Ed.2d 134 (2002), a criminal case, concerning the release of the same records, CVS' decision to release the records was authorized by law. In response, Russo asserts that a pharmacist is not required to comply with such a request by law enforcement officials and that, since prescription records may contain information of a private nature, a person may reasonably expect that such information will not be disseminated publicly. See Russo's memorandum of law, p. 5. As discussed above, the complaint does not allege that public dissemination occurred; rather, it alleges only that the records were provided to the officers.
II STANDARD OF REVIEW
The standard of review on a motion to strike is well established. "We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically . . ." (Citations omitted and internal quotation marks omitted.) Commissioner of Labor v. C.J.M Services, Inc., 268 Conn. 283, 292-93, 842 A.2d 1124 (2004).
III DISCUSSION A Invasion Of Privacy
"Connecticut first recognized the tort of invasion of privacy in Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107 (1982). In recognizing this right, the court noted that the law of privacy had not developed as a single tort, but rather as a complex of four distinct kinds of invasion of four different interests of the plaintiff which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff to be left alone." (Internal quotation marks omitted.) O'Brien v. Perry, Superior Court, judicial district of Hartford, Docket No. CV 98-0584503 (February 19, 1999, Fineberg, J.) ( 24 Conn. L. Rptr. 203).
"Our Supreme Court has described the four types of invasion of privacy: (1) appropriation, for the defendant's benefit or advantage, of the plaintiff's name or likeness; (2) intrusion upon the plaintiff's physical solitude or seclusion; (3) publicity, of a highly objectionable kind, given to private information about the plaintiff even though it is true and no action would lie for defamation; and (4) publicity which places the plaintiff in a false light in the public eye." (Internal quotation marks omitted.) Honan v. Dimyan, 52 Conn.App. 123, 132, 726 A.2d 613, cert. denied, 249 Conn. 909, 733 A.2d 227 (1999), quoting Venturi v. Savitt, Inc., 191 Conn. 588, 591 n. 1, 468 A.2d 933 (1983). "An unreasonable intrusion occurs when one `intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns [in a manner which is] highly offensive to a reasonable person.'" (Emphasis added.) Blair v. LaFrance, Superior Court, judicial district of Waterbury, Docket No. CV98-0149622 (September 27, 2000, Rogers, J.), quoting Restatement (Second) Torts § 652B (1977).
Connecticut's statutory scheme concerning the release of pharmacy records is clear. General Statute § 21a-265 provides in pertinent part that "[p]rescriptions, orders and records . . . shall be open for inspection only to federal, state, county and municipal officers, whose duty it is to enforce the laws of this state or of the United States relating to controlled substances, and to third party payors having a formal agreement or contract to audit such prescriptions, orders and records in connection with claims submitted to such payors . . ." General Statute § 21a-265 further provides that "[n]o such officer or third party payor having knowledge by virtue of his office of any such prescription, order or record . . . shall divulge such knowledge, except in connection with a civil action or criminal prosecution in court or before a licensing or registration board or officer, to which action, prosecution or proceeding the person to whom such prescriptions, orders or records relate is a party."
Our Supreme Court's discussion of § 21a-265 is instructive. "By its plain language, § 21a-265 affirmatively authorizes federal, state and local law enforcement personnel to review prescription records . . ." State v. Russo, supra, 259 Conn. 448-49. "[C]onstruing the language of § 21a-265 according to its plain and ordinary meaning, as we must, we find it apparent that the legislature intended for both criminal law enforcement officials and regulatory personnel to have access to prescription records in connection with the lawful discharge of their duties." (Footnote omitted.) Id., 450.
Our Supreme Court noted also that "General Statutes § 21a-250(a) provides in relevant part that a prescription must be `retained on file by the proprietor of the pharmacy in which it is filled for a period of three years, so as to be readily accessible for inspection by any public officer or employee engaged in the enforcement of . . . chapter (420b of the General Statutes] . . .' (Emphasis added [by the Supreme Court]). Because chapter 420b of the General Statutes includes, inter alia, this state's criminal drug laws, it is evident that a central purpose of the record retention requirement of § 21a-250(a) is to ensure that prescriptions will be `accessible for inspection' by law enforcement officials responsible for enforcing those laws." (Footnotes omitted.) Id., 451-52.
Concerning confidentiality of the records, the Court explained General Statute § 20-626, "which mandates the confidentiality of pharmacy records, [and which] contains seven separate exceptions to the general rule. One such exception authorizes pharmacists to `provide pharmacy records or information to . . . any governmental agency with statutory authority to review or obtain such information . . .' General Statutes § 20-626(b)(5). When § 20-626(b)(5) is read in conjunction with § 21a-265, it is apparent that this exception is applicable to law enforcement officials charged with enforcing the criminal laws relating to controlled substances. Moreover, General Statutes § 20-626(b)(6) authorizes pharmacists to provide prescription records to `any individual, the state or federal government or any agency thereof or court pursuant to a subpoena . . .'" (Footnote omitted.) State v. Russo, supra, 259 Conn. 452-53. In addition, the Court stated that " § 21a-265 does not require a pharmacist to comply with a request by law enforcement officials to review prescription records in the pharmacist's possession." (Emphasis in original; footnote omitted.) Id., 456. Rather, in the event of non-compliance with such a request, law enforcement personnel would be required to seek court approval to obtain the records. See id., n. 27.
"Our statutory scheme . . . safeguards the privacy interests of persons who obtain prescriptions for controlled substances by restricting access to those records to a limited class of persons; see General Statutes §§ 20-626(b) and 21a-265; including public officials responsible for the enforcement of the federal and state drug laws. General Statutes § 21a-265. [Connecticut's] regime . . . prohibit[s] the dissemination of such information to the general public. See General Statutes § 20-626; cf. Whalen v. Roe, 429 U.S. [589,] 600 [,97 S.Ct. 869, 51 L.Ed.2d 64 (1977)]. As the Second Circuit Court of Appeals recently has observed, `[t]he degree of intrusion stemming from public exposure of the details of a person's life is exponentially greater than [that stemming from] disclosure to government officials.'" (Footnote omitted.) State v. Russo, supra, 259 Conn. 464. While "[a]n individual using prescription drugs has a right to expect that [prescription records] will customarily remain private . . . [s]uch a right is not absolute, however. See Whalen v. Roe, [ supra,] 429 U.S. at 602 (while individuals have a legitimate expectation of privacy in their prescription purchases of controlled substances, such right must be weighed against the state's interest in monitoring the use of dangerously addictive drugs)." Doe v. Southeastern Pennsylvania Transportation Authority, 72 F.3d 1133, 1138 (3d Cir. 1995), cert. denied, 519 U.S. 808, 117 S.Ct. 51, 136 L.Ed. 15 (1996).
Concerning an individual's expectation of privacy in the context of his prescription information and records, our Supreme Court stated in State v. Russo, supra, "because the pharmaceutical industry is pervasively regulated, prescription information and records are legitimately subject to regular scrutiny by federal and state inspectors and, consequently, the expectation of privacy that the public has in that information or those records, in contrast to other types of information that are not subject to such intensive review and regulation, necessarily is reduced drastically . . . Indeed, the fact that § 21a-265 expressly authorizes law enforcement officials to obtain records of prescriptions for controlled substances without a warrant reflects a considered public policy judgment that, in and of itself, serves to diminish a person's expectation of privacy in such records." (Citations omitted and footnote omitted.) Id., 259 Conn. 466.
"In other words, a person does not have an objectively reasonable expectation that records of his or her prescriptions for controlled substances will not be disclosed to law enforcement personnel, subject to safeguards against further dissemination of those records, upon an appropriate request for those records by such personnel." (Emphasis in original) Id., 467.
These statements by our Supreme Court are controlling. As a matter of law, since Russo had no objectively reasonable expectation that his pharmacy records would not be disclosed by CVS to the officers, he has no legally sufficient claim for invasion of privacy as a result of CVS' voluntary provisions of the records in response to the requests. That CVS had the option not to comply with those requests is immaterial.
Russo's contention in his memorandum, page 5, that a person may expect that his prescription records will not be publicly disseminated is not germaine to the issues here. As noted above, his claim for invasion of privacy does not allege that public dissemination occurred. The cited contention in his memorandum amounts to "arguing facts in opposition to the motion that have not been sufficiently pled in the [complaint] and are not necessarily implied in the [complaint]. `The court cannot consider such extraneous material on a motion to strike.' Connecticut State Oil Co., Inc. v. Carbone, 36 Conn.Sup. 181, 183 [,415 A.2d 771,] (Super.Ct. 1979)." Lee v. Perez, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV90 0108394 2 (June 20, 1991, Karazin, J.).
Our Supreme Court has looked to the Restatement of Torts to explain the tort of invasion of privacy. See Perkins v. Freedom of Information Commission, 228 Conn. 158, 172, 635 A.2d 783 (1993). Restatement (Second) Torts, § 652D (1977), Comment a, discusses the meaning of publicity in this context. "Publicity. The form of invasion of the right of privacy covered in this Section depends upon publicity given to the private life of the individual. `Publicity,' as it is used in this Section, differs from `publication,' as that term is used in § 577 in connection with liability for defamation. `Publication' in that sense, is a word of art, which includes any communication by the defendant to a third person. `Publicity,' on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication, which may be oral, written or by any other means. It is one of a communication that reaches, or is sure to reach, the public." Restatement (Second) Torts, § 652D, Comment a, p. 384.
"A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
B Negligent Infliction of Emotional Distress
As noted, in the fifth count, Russo incorporates the allegations of the first count and claims that CVS' conduct amounted to the negligent infliction of emotional distress. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Ward v. Greene, 267 Conn. 539, 565, 839 A.2d 1259 (2004). "The existence of a duty of care is a prerequisite to a finding of negligence." Gomes v. Commercial Union Insurance Co., 258 Conn. 603, 614, 783 A.2d 462 (2001). "The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Mendillo v. Board of Education, 246 Conn. 456, 483, 717 A.2d 1177 (1998).
In addition, our Supreme Court has listed the particular elements of a cause of action for the negligent infliction of emotional distress. "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Insurance Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).
"[T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Internal quotation marks omitted.) Gomes v. Commercial Union Insurance Co., supra, 258 Conn. 616. "The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results . . ." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 633, 749 A.2d 630 (2000).
Here, the court concludes that, under the second prong of the above-cited test, CVS had no duty to Russo to refuse the officers' lawful requests for the pharmacy records. As stated above, in State v. Russo, supra, 259 Conn. 467, the Supreme Court found that a person has no " objectively reasonable expectation that records of his or her prescriptions for controlled substances will not be disclosed to law enforcement personnel, subject to safeguards against further dissemination of those records . . ." (Emphasis in original.)
It would contravene public policy to hold CVS liable for the negligent infliction of emotional distress where our Supreme Court has held that the officers' request for the pharmacy records, in the absence of a warrant, was lawful. Our Supreme Court, in State v. Russo, supra, has found that the law permitted just what Russo complains of here: the provision of the records by CVS to law enforcement personnel in response to their lawful request. Placing a pharmacist in the position where compliance with such a request exposes him or her to a negligent infliction claim would undermine Connecticut's statutory scheme. CVS' responsibility should not extend to any emotional distress which may have been caused by its compliance with the officers' lawful requests.
Since the court has found that no duty existed, on the basis of the second, public policy prong of the test for determining the existence of a duty, it need not perform an analysis under the first, forseeability prong of that test. See Gomes v. Commercial Union Insurance Co., supra, 258 Conn. 618 n. 11.
Since a negligence claim may not be maintained in the absence of a duty, the motion to strike the fifth count is granted.
C Intentional Infliction Of Emotional Distress
As noted, in the sixth count, Russo also incorporates the allegations of the first count, and claims that CVS' conduct supports a claim for the intentional infliction of emotional distress. The four required elements of such a claim are: "(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! 1 Restatement (Second), Torts § 46, comment (d), p. 73 (1965). Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; footnote omitted; and internal quotation marks omitted.) Carrol v. Allstate Insurance Co., supra, 262 Conn. 443.
"Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury." Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).
As discussed above, the conduct alleged here involved CVS' compliance with lawful requests from the officers. As a matter of law, such conduct was far from extreme and outrageous. Thus, the sixth count is legally insufficient to state a claim for the intentional infliction of emotional distress.
CONCLUSION
For the foregoing reasons, CVS's motion to strike the first, fifth, and sixth counts of the second amended complaint is granted. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT