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A statewide class action has been certified for New York plaintiffs whose medical and prescription records were transferred from independent drug stores to the national chain CVS. Manhattan Supreme Court Justice Charles Edward Ramos last week said that common questions of law and fact were predominant in litigation over whether CVS wrongly acquired the plaintiffs’ records. The class action, Anonymous v. CVS Corp., 604804/99, will encompass the claims of persons who were customers of independent drug stores that sold medical and prescription information to the CVS chain from 1993 through 1999. The sales of information placed that customer data on the records of a chain with 4,000 stores and 97,000 employees. Last month, Justice Ramos preserved the plaintiffs’ core legal claim against CVS and the independent drug stores: that pharmacies may have a fiduciary duty to keep confidential their customers’ medical history and prescription records. Plaintiffs also have a cause of action for deceptive business practices, Ramos said. At the same time, he dismissed claims based on statutory protection of that information, holding that restrictions applying to doctors and hospitals did not apply equally to pharmacists and drug stores. Last week’s decision means that CVS’ File Buy program, under which it acquired customer records from perhaps several hundred New York state drug stores, will be examined on a classwide basis. Plaintiffs’ counsel Richard F. Lubarsky, of Levi Lubarsky & Feigenbaum, has said that “tens of thousands” of New Yorkers could have had medical information transferred without their knowledge from independent pharmacies to CVS, a national chain that does roughly 10 percent of its business in the state. Justice Ramos, however, estimated that “[t]he number of potential class members in the proposed class lies somewhere in the thousands if not hundreds of thousands.” Lawyers for CVS and an independent store that sold its customer files to the chain argued that the lead plaintiff, who was diagnosed with HIV in 1986 and AIDS three years later, had claims atypical of the rest of the proposed class. The Boston law firm Mintz, Levin, Cohn, Ferris, Glovsky and Popeo is representing CVS, with Michael S. Gardener as lead defense counsel. The independent drug store used by the lead plaintiff is represented by Suzanne Halbardier, of Barry, McTiernan & Moore in Manhattan. But Justice Ramos said the lead plaintiff’s claims, as well as all of the class members’ claims, stem from the File Buy program. The crucial question of whether the independent pharmacy owed a duty to its customer not to disclose medical and prescription records is one that can be answered in common for all claimants, Ramos said. “Here, whether the duty of confidentiality is a legal one depends not on the conduct of the individual customers but on the practices followed by the pharmacies,” Ramos said. “Plaintiff claims that confidentiality is an inherent part of the pharmacy-customer relationship. Defendants all seemingly operated under the same assumption that pharmacists owe their customers a duty to keep confidential medical and prescription information.” Similarly, the allegations of deceptive trade practices also raise common questions. “Whether defendants are liable for engaging in deceptive practices does not depend on individualized proof that each member lacked notice or somehow changed their behavior because of the lack of notice,” Ramos said, noting that the class is defined as those who learned that their information had been transferred without their knowledge. Also, “[i]ndividual determination will not be required to show [that] each member suffered an actual injury,” he reasoned. All customers did or did not suffer a similar loss, he said, adding that damages are unlikely to be widely different. The court emphasized that common questions dominate the case and can be more efficiently litigated on a classwide basis.

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