Ng v. PDX Inc.

ADDITIONAL CASES In Re: Sears Holdings Corporation, Debtor OPINION & ORDER Brian Coke Ng (“Appellant”) appeals from the April 9, 2020 Order of the Bankruptcy Court (the “Order”) for the Southern District of New York (the “Bankruptcy Court”), which dismissed his Complaint against PDX, Inc. (“PDX”) and National Health Information Network, Inc. (“NHIN”; together with PDX, “Appellees”). (Order Granting Mot. of Appellees To Dismiss Adversary Proceeding Compl. Pursuant to Fed. R. Bankr. P. 7012 (“Order”) (Bankr. Dkt. No. 50).)¹ For the reasons that follow, the Order is affirmed. I. Background The following facts are taken from Plaintiff’s Complaint, (Compl. (Bankr. Dkt. No. 1)), and moving papers, (Appellants’ Opening Br. (“Appellant’s Mem.”) (Dkt. No. 4); Appellants’ Reply Br. and Mem. of Law (“Appellant’s Reply”) (Dkt. No. 7)).² They are assumed to be true for purposes of adjudicating the instant appeal. PDX sells pharmacy management software. (Compl. 16.) Appellees through a series of contracts provide pharmacy software, data, and reporting to Kmart, a subsidiary of the debtor in the bankruptcy action that underlies the instant adversarial proceeding. (Id.

10, 16-17; see also id. Exs. 3, 4.)³ Appellant was a pharmacy customer of Kmart beginning as early as May 15, 2010. (Id. 30.) Appellant alleges that PDX’s software is “defective” and has “created medical record documents with misleading, altered[,] and false information.” (Id. 4.) Appellant points to two examples of such false information. The first relates to altered drug information sheets. In 2010 Appellant four times purchased the drug Sertraline HC and one time purchased the drug Bupropn HCL from a Kmart pharmacy. (Id. 31.) Appellant received a medical information sheet for each of those drugs. (Id. 32.) This information sheet consisted of two brief paragraphs, and warned of the risks associated with these two drugs, including mixing them with alcohol, driving or operating machinery after use, and using them while pregnant or breast feeding. (Id.) In August 2018, Appellant purchased the same drugs from Kmart. (Id.