The Minnesota State Fair, the biggest in the country, is going on now.  If you are lucky enough to attend, you can check out the butter sculptures, eat cheese curds, gaze at seed portraits of Prince, wave hello to our law school classmate Senator Amy Klobuchar, eat cheese curds, ride the big slide (though you might want to avoid that if you’ve seen some recent, scary YouTube videos of slide misadventures), pet a baby goat, and eat cheese curds.  Minnesota does a great job of serving up goodies.  

We consider Salier v. Walmart, Inc., 2022 WL 3579752 (D. Minn. Aug. 19, 2022), to be a fine, legal goody from Minnesota.  Salier is the latest battle in the ivermectin wars.  If those wars involve an assault by the crazies against the medical establishment, then Salier is a victory for the medical establishment.  And good thing, too.   We might gripe some (okay – a lot) (okay okay – too much) about court decisions, but the last couple of years have shown the judiciary to be one of the few reliable shields against conspiracy-mongering know-nothingism.  

The plaintiffs in Salier sued pharmacies that refused to fill prescriptions for ivermectin and hydroxychloroquine written by an out-of-state, online “controversial” doctor.  We will not express our own opinion about such doctors, but we will mention that, as we write this, we are gazing at a pond.  On the pond there are a pair of ducks.  Occasionally they make a noise.  Can you guess what that noise is?  

The plaintiffs mustered three legal theories: violation of the “right to self determination,” intentional infliction of emotional distress, and tortious interference with contractual relations.  When we contemplate these theories, we find ourselves again looking at the ducks.  They have now waddled out of the pond and are perched on the lawn. It looks as if they are about to leave behind souvenirs.  Can you guess what those souvenirs are?

Let’s turn to the Minnesota court’s quick dispatch of the Salier complaint.

First, there is no broad right to self-determination in Minnesota or anywhere else. The plaintiffs relied upon cases involving a patient’s right to informed consent, but that is a far cry from compelling a particular medical treatment.  At this point, we have to pause and praise the quality of prose in the Salier opinion.  Clear writing rests upon clear thinking. The Salier judge is clearly a clear thinker.  He can also craft an artful turn of phrase.  He points out that the sweeping new right advocated by the plaintiffs could lead to bizarre results on a host of controversial issues, such as abortion and assisted suicide.  The court reasoned that the “implications of recognizing the right asserted by the Saliers – not just the right to do whatever you want with your own body, but the right to force others to help you (so much for their right of self-determination) – would be mind-boggling, even if it were just limited to medical providers.” (Emphasis in original.) No state has recognized such a broad right, and the Salier court wasn’t going to be the first.  The bottom line is that healthcare providers cannot be compelled to provide medical treatment against their professional judgment.  

Second, the claim of intentional infliction of emotional distress is a goner because the refusal to fill a prescription for a drug that almost all authorities say should not be used for this purpose cannot be outrageous.  Minnesota law is similar to that of most jurisdictions when it comes to the tort of intentional infliction of emotional distress.  You might remember from law school that this tort was controversial from the start.   There was much concern about opening up the proverbial litigation floodgates.  Early cases involved truly outlandish things, such as mishandling corpses.  To cabin this potentially endless tort, Minnesota and other states imposed a requirement that the defendant’s conduct must be “extreme and outrageous.”  The pharmacies here did nothing outrageous.  They followed the “overwhelming weight of medical authority.”  The result might have been different if the pharmacies refused to fill the prescriptions because of some animus or political beliefs or bizarre corporate policy, but none of that was even hinted at here.

Third, the tortious interference cause of action fails for lack of any breach, plus the tort cannot be based on mere refusal to deal.  The plaintiffs alleged that the pharmacy’s refusal to dispense the ivermectin interfered with the online doctor’s performance of her contract to treat the plaintiffs. But the plaintiffs conceded that the online doctor did not, in fact, breach her contract. Nothing pleaded in the complaint suggests that the pharmacies did anything to hinder the doctor’s part of the bargain.  Moreover, the defendant pharmacies “took no affirmative action but merely refused to deal with the Saliers.” The defendant pharmacies did not, for example, do anything to prevent the plaintiffs from procuring ivermectin elsewhere.  If Minnesota has 10,000 lakes, it probably has at least as many pharmacies.  There simply was no interference of the type required under Minnesota law to prop up this rickety cause of action.  

Finally, even if there was a speck of merit to the plaintiffs’ lawsuit, it would be dismissed because the plaintiff failed to provide the necessary expert-review affidavit as required by Minnesota malpractice statutes. You are probably familiar with similar statutes that are in place all around the country. They are usually invoked in med-mal cases against doctors or hospitals.  But pharmacists, too, can qualify as health care providers.  Each of the plaintiffs’ causes of action “requires evidence that defendants violated the standard of care applicable to pharmacists.”  Accordingly, this lawsuit required the filing of an expert affidavit.  There was no affidavit, so that is an independent reason to dismiss the case. Because the plaintiffs did not demonstrate any “excusable neglect” in failing to supply the expert affidavit, the court dismissed the case with prejudice.  

In some ways, that last ruling could be the most interesting aspect of the case. Not everyone thinks of pharmacies as health care providers. But the cause of action might treat them precisely as such. If there is a failure to comply with a statutory requirement of an expert affidavit against the pharmacy, that is obviously a big deal if you represent the pharmacy. But it could also be a big deal if you represent a codefendant. Plaintiffs have been known to include a local pharmacy in a product liability case to defeat federal diversity jurisdiction. The plaintiff’s noncompliance with the expert affidavit requirement can help you prove fraudulent joinder and get the case into federal court.

If the Salier lawsuit were at the State Fair, it would be hustled past the fun house and funnel cakes and would be planted in the dunk-tank.