KLRW Successfully Defends Pharmacy and Pharmacist in Suit Involving Ivermectin

Four lawyers from Kinney Lisovicz Reilly & Wolff PC recognized in the 2022 edition of The Best Lawyers in America®
October 27, 2021

KLRW successfully defended a pharmacy and its pharmacist whom the plaintiff sued to compel the pharmacy to fill a prescription for Ivermectin. The Law Division granted KLRW’s motion to dismiss the plaintiff’s complaint with prejudice for failure to state a cause of action and denied the plaintiff’s cross-motion for leave to amend the complaint.

When the plaintiff presented a prescription for Ivermectin, the pharmacist sought to call the prescriber to obtain the medical diagnostic code for the medication. The pharmacist was unable to contact the prescriber and asked the plaintiff to do so. The plaintiff refused and filed suit. The plaintiff sought a declaratory judgment that the pharmacy discriminated against him due to “media hysteria” concerning the use of Ivermectin to prevent or treat COVID-19. The plaintiff also asserted violations of the Consumer Fraud Act, arguing that the pharmacy and pharmacists made misrepresentations regarding the need for a diagnostic code for the prescription. After the motion to dismiss was filed, plaintiff disclosed that he had filled the prescription at another pharmacy and sought leave to amend his complaint to seek a declaration that the defendants were required to fill future prescriptions with no questions asked.

KLRW successfully argued that the complaint did not state a valid claim. First, the court ruled that the plaintiff could not sue for a declaration that future prescriptions must be filled, because such a ruling would be a purely advisory opinion. Second, the court ruled that pharmacists and pharmacies are learned professionals and are therefore not subject to the Consumer Fraud Act. Last, the Court agreed that in light of the learned-professional exception to the Consumer Fraud Act, granting plaintiff leave to amend the complaint would be futile. The Court therefore dismissed the plaintiff’s complaint with prejudice.