Louisiana Health Service & Indemnity Company et al v. Center for Restorative Breast Surgery LLC et al, No. 2:2017cv04171 - Document 23 (E.D. La. 2017)
Court Description: ORDER AND REASONS granting in part and denying in part 8 Motion for Preliminary and Permanent Injunctive Relief, as stated herein. Signed by Judge Susie Morgan on 5/23/2017. (tsf)
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Louisiana Health Service & Indemnity Company et al v. Center for Restorati...reast Surgery LLC et al Doc. 23 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A LOU ISIAN A H EALTH SERVICE & IN D EMN ITY COMPAN Y, ET AL., Plain tiffs CIVIL ACTION VERSU S N O. 17-4 171 CEN TER FOR RESTORATIVE BREAST SU RGERY, LLC, ET AL., D e fe n d an ts SECTION : “E” ( 5) ORD ER AN D REAS ON S Before the Court is a m otion for prelim inary and perm anent injunctive relief filed by Louisiana Health Service & Indem nity Com pany d/ b/ a Blue Cross and Blue Shield of Louisiana and HMO Louisiana, Inc. (“Blue Cross Louisiana”). 1 The m otion is opposed. 2 For the following reasons, the m otion is GRAN TED IN PART and D EN IED IN PART. BACKGROU N D This Court’s lengthy history with this m atter began when, on April 6, 20 10 , the Center for Restorative Breast Surgery, L.L.C. and St. Charles Surgical Hospital, filed suit in the Civil District Court for the Parish of Orleans, State of Louisiana. Blue Cross Louisiana rem oved the case to this Court on April 12, 20 11 (“Blue Cross I”). 3 The m em bers of the Center for Restorative Breast Surgery, L.L.C. (“Center”) are surgeons who perform post-m astectom y breast reconstruction m edical services. 4 The St. Charles Surgical Hospital (“Hospital”) is a specialty surgical center where the physicians affiliated with the Center perform the surgeries. 5 The Center and the Hospital are out-of- 1 R. Doc. 8. R. Doc. 13. 3 Center For Restorative Breast Surgery , L.L.C. et al v . Blue Cross Blue Shield of Louisiana et al., Civil Action Num ber 11-80 6, R. Doc. 1. 4 Blue Cross I, R. Doc. 30 8 at ¶ 83. 5 Id. at ¶ 91. The Court will refer to the Center and the Hospital collectively as “the Blue Cross I Plaintiffs.” 2 1 Dockets.Justia.com network healthcare providers with respect to all Blue Cross I defendants. The Blue Cross I Plaintiffs provided services to patients covered under insurance policies issued or adm in istered by various Blue Cross defendants. 6 Final judgm ent was en tered in Blue Cross I on March 31, 20 17, 7 and the Blue Cross I Plaintiffs filed an appeal on April 21, 20 17. 8 On February 3, 20 17, the Blue Cross I Plaintiffs filed suit in the Civil District Court for the Parish of Orleans, State of Louisiana, against Blue Cross Louisiana (“Blue Cross II”). 9 The Blue Cross I Plaintiffs m ake claim s in Blue Cross II on four counts: (1) breach of contract; (2) detrim ental reliance; (3) negligent m isrepresentation; and (4) fraud. On April 28 , 20 17, Blue Cross Louisiana filed suit in this Court against the Blue Cross I Plaintiffs under the All Writs Act 10 and the Anti-Injunction Act. 11 Blue Cross Louisiana seeks an injunction against the litigation filed by the Blue Cross I Plaintiffs in Blue Cross II. LAW AN D AN ALYSIS I. Ju ris d ictio n Ancillary jurisdiction attaches to Blue Cross Louisiana’s action for injunctive relief if this Court had jurisdiction over Blue Cross I. 12 “[A] federal district court can exercise ancillary jurisdiction over a second action in order to secure or preserve the fruits and 6 Id. at ¶ 92; R. Doc. 458-1 at 9. Blue Cross I, R. Doc. 731. 8 Blue Cross I, R. Doc. 746. 9 St. Charles Surgical Hospital, LLC, et al. v. Louisiana Health Service & Indem nity Com pan y d/ b/ a Blue Cross and Blue Shield of Louisiana, Civil District Court for the Parish of New Orleans, State of Louisiana, Docket No. 20 17-0 10 95. 10 28 U.S.C. § 1651. 11 28 U.S.C. § 2283; R. Doc. 1. 12 Regions Bank of Louisiana v. Rivet, 224 F.3d 483, 493 (5th Cir. 20 0 0 ) (“[J ]urisdiction is based on the original case . . . . It is not necessary for the district court to have jurisdiction over the second suit as an original action.”). 7 2 advantages of a judgm ent or decree rendered by that court in a prior action.”13 In Blue Cross I, this Court had federal question subject m atter jurisdiction over the Blue Cross I Plaintiffs’ claim s arisin g under ERISA, and supplem ental jurisdiction over the Blue Cross I Plaintiffs’ state-law claim s. Accordingly, the Court had jurisdiction over the original federal proceeding, and has ancillary jurisdiction over the instant action. II. Th e Re litiga tio n Exce p tio n o f th e An ti-In ju n ctio n Act Under the Anti-Injunction Act, “[a] court of the United States m ay not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgm ents.”14 The exceptions are to be interpreted narrowly and are “not to be enlarged by loose statutory construction.”15 Further, “[a]ny doubts as to the propriety of a federal injunction again st state court proceedings should be resolved in favor of perm itting the state courts to proceed in an orderly fashion to finally determ ine the controversy.”16 Blue Cross Louisiana argues the last of the three exceptions—the “relitigation exception”—applies in this case, contending the doctrines of res judicata and collateral estoppel apply. The relitigation exception perm its an injunction to prevent state litigation of a claim or issue “that was previously presented to and decided by the federal court.”17 The exception is “founded in the well-recognized concepts of res judicata and collateral estoppel,” but is “strict and narrow,” requiring that “the claim s or issues which the federal injunction insulates from litigation in state proceedings actually have been decided by the 13 Roy al Ins. Co. v . Quinn– L Capital Corp., 960 F.2d 1286, 1292 (5th Cir. 1992) (noting that jurisdiction exists “even where the federal district court would not have jurisdiction over the second action if it had been brought as an original suit”). 14 28 U.S.C. § 2283. 15 Chick Kam Choo v. Exxon Corp., 486 U.S. 140 , 146 (198 8) (citations om itted). 16 Zurich Am . Ins. Co. v. Superior Court for State of California, 326 F.3d 816, 824 (7th Cir. 20 0 2). 17 Chick Kam Choo, 48 6 U.S. at 147. 3 federal court.”18 A federal district court is perm itted, but not m andated, to enjoin duplicative state court proceedings. 19 The Fifth Circuit em ploys a four-part test to determ ine whether the relitigation exception is applicable when urged on the basis of res judicata or collateral estoppel: 20 (1) The parties in the later action m ust be identical to (or at least in privity with) the parties in a prior action; (2) The judgm ent in the prior action m ust have been ren dered by a court of com petent jurisdiction; (3) The prior action m ust have concluded with a final judgm ent on the m erits; an d (4) The sam e claim or cause of action m ust be involved in both suits. 21 At issue in this m atter is the fourth prong—whether both suits involve the sam e claim s or causes of action. 22 The relitigation exception requires that the claim s or issues the federal injunction seeks to insulate from litigation in state proceedings “actually have been decided by the federal court.”23 The Fifth Circuit em ploys a “transactional test,” “asking whether the two claim s are based on the sam e nucleus of operative fact.”24 “In 18 Id. Id. at 151. 20 Courts are beginn in g to address the broad “res judicata” phrase as referring to both claim preclusion and issue preclusion. See 18A CHARLES A. W RIGHT & ARTHUR D. M ILLER, F EDERAL P RACTICE AND P ROCEDURE § 440 2 (3d ed. 20 12); see also St. Paul Mercury Ins. Co. v. W illiam son, 224 F.3d 425, 436 (5th Cir. 20 0 0 ) (“The rules of res judicata encom pass two separate but linked preclusive doctrines: (1) true res judicata or claim preclusion and (2) collateral estoppel or issue preclusion.”). 21 N .Y. Life Ins. Co. v. Gillispie, 20 3 F.3d 384, 387 (5th Cir. 20 0 0 ). 22 The Blue Cross I Plaintiffs do not dispute that all the parties in Blue Cross II are parties in Blue Cross I, that this Court had jurisdiction to issue its judgm ent in Blue Cross I, or that Blue Cross I ended with a final judgm ent on the m erits. See Blue Cross I, R. Doc. 731. Although the Blue Cross I Plaintiffs have filed a notice of appeal, the Court’s judgm ent rem ains final for the purposes of res judicata. Com er v. Murphy Oil USA, Inc., 718 F.3d 460 , 467 (5th Cir. 20 13) (citing 18A CHARLES A. W RIGHT & ARTHUR D. M ILLER, F EDERAL P RACTICE AND P ROCEDURE § 4427 (2d ed. 20 12) (“[R]es judicata ordinarily attaches to a final lower-court judgm ent even though an appeal has been taken and rem ains undecided.”)). 23 Chick Kam Choo, 486 U.S. at 148. 24 Blanchard 1986, LTD v. Park Plantation, LLC, 553 F.3d 40 5, 40 8 n.12 (5th Cir. 20 0 8) (citin g Gillispie, 20 3 F.3d at 387; Assurance Co. of Am . v . Kirkland, 312 F.3d 186, 189 n.8 (5th Cir. 20 0 2)); Vines v . Univ. of La. at Monroe, 398 F.3d 70 0 , 70 9 (5th Cir. 20 0 5). 19 4 evaluating the res judicata effect of a prior claim on a subsequent one, the transactional test does not inquire whether the sam e evidence has been presented in support of the two claim s, but rather asks w hether the sam e key facts are at issue in both of them . 25 The Fifth Circuit has held that the preclusive effect of the transactional test “potentially extends beyond claim s actually litigated to claim s that could have been litigated.”26 In this case, however, the issue of whether the claim s for breach of oral contract, detrim ental reliance, negligent m isrepresentation, and fraud m ade in Blue Cross II were actually litigated or could have been litigated in Blue Cross I is irrelevant. 27 Three out of four of these claim s were actually decided in Blue Cross I, and the fourth, fraud, was voluntarily dism issed. 28 “In determ ining which issues have been actually litigated, the federal court is free to go beyond the judgm ent and m ay exam ine the pleadings and the eviden ce in the prior action. If a question of fact is put in issue by the pleadings, is subm itted to the jury or other trier of facts for its determ ination, and is determ ined, then that question of fact has been actually litigated.”29 As explained below, the Blue Cross I Plaintiffs’ claim s in Blue Cross II for breach of contract, detrim ental reliance, and n egligent m isrepresentation have been actually decided by this Court in Blue Cross I. As a result, the fourth prong of 25 Gillispie, 20 3 F.3d at 387 (em phasis in original). Blanchard, 553 F.3d at 40 8 n.12 (em phasis added). 27 On Novem ber 12, 20 14, the Court allowed the Blue Cross I Plaintiffs to file their Fifth Am ended Com plaint. The Court stated “After the fifth am ended com plaint has been filed, the only n ew claim ants who m ay be added to the com plaint are on es whose claim s do not raise n ew causes of action and whose claim s are against Defendants currently nam ed or added in the fifth am ended com plaint.” R. Doc. 30 4. The Court did not preclude the Blue Cross I Plaintiffs from seekin g additional dam ages for services provided to patients based on existing causes of action, such as breach of oral contract, detrim ental reliance, n egligent m isrepresentation, or fraud. In Blue Cross II, the Blue Cross I Plaintiffs seek dam ages acts that occurred “from April 12, 20 11 to through the present,” based on the sam e causes of action decided in Blue Cross I. 28 The Blue Cross I Plaintiffs’ assertion that Blue Cross II “excludes any claim s an d causes of action that were presented and actually decided in [Blue Cross I]” does not resolve the issues presented to this Court. 29 St. Paul Mercury Ins. Co. v. W illiam son, 224 F.3d 425, 448 (5th Cir. 20 0 0 ) (citing Santopadre v. Pelican Hom estead & Sav. Ass’n, 937 F.2d 268 , 273 (5th Cir. 1991)). 26 5 the Fifth Circuit’s four-part test is satisfied, and the relitigation exception is applicable to these three claim s or causes of action. The Court must now determ ine the appropriate scope of injunctive relief. III. Th e Blu e Cr o s s I Plain tiffs ’ Cla im s in B lu e Cr o s s II The Blue Cross I Plaintiffs filed a petition in Blue Cross II, alleging Blue Cross Louisiana failed to “pay [the Blue Cross I] Plaintiffs an appropriate am ount of m oney for m edical services provided by [the Blue Cross I] Plaintiffs, which Defendants agreed to pay.”30 The Blue Cross I Plaintiffs further allege “Defendants required that [the Blue Cross I] Plaintiffs verify Defendants’ agreem ent or offer to pay, and the percentage of the bill Defendants would pay by referring to Defen dants’ web portal, iLinkBlue.”31 The Blue Cross I Plaintiffs allege their claim s arise out of the statem ents m ade on verification telephone calls m ade to Blue Cross Louisiana and representations m ade on Blue Cross Louisiana’s web portal, iLinkBlue. 32 The Blue Cross I Plaintiffs’ claim s in Blue Cross II consist of four counts: (1) breach of contract; (2) detrim ental reliance; (3) negligent m isrepresentation; and (4) fraud. 33 a. Breach of Contract In Blue Cross II, the Blue Cross I Plaintiffs allege contracts were form ed between them and Blue Cross Louisiana. 34 The Blue Cross I Plaintiffs allege these contracts were form ed when “Defendants com m unicate[d] to [the Blue Cross I] Plaintiffs the percentage 30 See R. Doc. 8-5 at 1, ¶ 1. at 3, ¶ 18. 32 See, e.g., id. at 6, ¶¶ 38(C), 38(E), 38(J ). 33 R. Doc. 8-5. The Court is aware the Blue Cross I Plain tiffs have filed a m otion for leave to file their first am ended petition in Blue Cross II. The am ended petition, however, does nothing to m aterially change the argum ents presented to this Court for the purposes of Blue Cross Louisiana’s request for injunctive relief. As a result, the Court will reference the Blue Cross I Plaintiffs’ original petition. R. Doc. 8 -5. 34 R. Doc. 8 -5 at 5, ¶ 38 (“On ce an offer is m ade, consent to a contract need not be expressed in words, but m ay be im plied by actions of the parties, as it was here each and every tim e from April 12, 20 11 through the present.”). 31 Id. 6 of [the Blue Cross I] Plaintiffs’ m edical bill Defendants agree[d] to pay for services rendered to Defendants’ custom ers over the telephone, and then through iLinkBlue.”35 The Blue Cross I Plaintiffs further allege “Defendants wrote to [the Blue Cross I] Plaintiffs, expressly in structing [the Blue Cross I] Plaintiffs to refer to the iLin kBlue web portal for any inform ation [the Blue Cross I] Plaintiffs sought from Defendants relating to m onetary paym ents”36 and “[the Blue Cross I] Plaintiffs verified Defen dants’ offer and term s through telephone calls, and thereafter, through viewing the offers on Defendants’ iLinkBlue website.”37 In Blue Cross I, the Fifth Am ended Com plaint alleged “[t]hrough [] verifications and pre-authorization of the procedures, the respective Defen dants and [the Blue Cross I] Plaintiffs entered into bilateral onerous com m utative oral contracts whereby [the Blue Cross I] Plaintiffs would provide their agreed upon covered and pre-authorized services at a predeterm ined rate that reflect the benefits provided by their subscribers’ respective plans.”38 The Blue Cross I Plaintiffs further alleged “[s]aid oral contracts created through the verification of ben efits process were m ade directly with the respective Blue Cross Defendants, creating an indepen dent legal duty on the part of said Defendants to ten der the represented percen tage to the Center and Hospital, based on the representation.”39 The Court granted sum m ary judgm ent in Blue Cross I with respect to the Blue Cross I Plaintiffs’ breach of oral contract claim , finding the Blue Cross I Plaintiffs failed to introduce evidence of corroborating circum stances sufficient to establish an oral 35 Id. at ¶ 38 (C). Id. at ¶ 38 (D). 37 Id. at ¶ 38 (E). 38 Blue Cross I, R. Doc. 30 8 at ¶ 224 (em phasis added). 39 Id. at ¶ 225. 36 7 contract worth over $ 50 0 . 40 The Court has actually decided that the Blue Cross I Plaintiffs m ay not recover for breach of oral contract worth over $ 50 0 based on the verification of benefits process. It is unclear whether the Blue Cross I Plaintiffs’ allegations in Blue Cross II relate to oral contracts, written contracts, or both. 41 To the extent the Blue Cross I Plaintiffs seek to recover for breach of oral contract worth over $ 50 0 based on the verification of benefits process, such a cause of action has been actually decided by this Court. To the extent the Blue Cross I Plaintiffs m ake a claim for breach of oral contract in Blue Cross II, that claim arises out of the sam e nucleus of operative fact as their claim in Blue Cross I. As a result, the Blue Cross I Plaintiffs are enjoin ed from pursuing any claim in Blue Cross II relating to an oral contract worth over $ 50 0 between them and Blue Cross Louisiana based on the verification of benefits process. b. Detrim ental Reliance In Blue Cross II, the Blue Cross I Plaintiffs allege “Defendants com m unicated to [the Blue Cross I] Plaintiffs via telephone and iLinkBlue web portal that Defendants agreed or offered to pay for . . . m edical services” and “[the Blue Cross I] Plaintiffs reasonably relied, to their detrim ent, on representations and statem ents m ade by Defendants as to the existence and extent of Defendants’ offer or agreem ent to pay for 40 Blue Cross I, R. Doc. 566. Louisiana Civil Code article 1846 requires that, when the plaintiff alleges the existence of an oral contract of which “the price or value is in excess of five hundred dollars, the contract m ust be proved by at least one witn ess and other corroborating circum stances.” LA. CIV. CODE art. 1846; see also Suire v. Lafay ette City -Par. Consol. Gov’t, 20 0 4-1459 (La. 4/ 12/ 0 5), 90 7 So. 2d 37, 58. The other corroboration m ust com e from a source other than the plaintiff, and it m ay not result from the plaintiff’s own actions. Id.; Kilpatrick v. Kilpatrick, 27,241 (La. App. 2 Cir. 8/ 23/ 95), 660 So. 2d 182, 185, w rit denied, 95-2579 (La. 12/ 15/ 95), 664 So. 2d 444. The Blue Cross I Plaintiffs do not dispute that the value of the alleged oral contracts exceeded $ 50 0 . Blue Cross I, R. Doc. 566 at 27. 41 The Plaintiff’s petition in Blue Cross II states “Plaintiffs relied upon , and were entitled to rely upon , to their detrim ent, Defendan ts’ web portal and other statem ents m ade by Defen dants, w hether oral or otherw ise, regarding Defen dants’ agreem ent or offer to pay . . . .” R. Doc. 8-5 at 3, ¶ 23. 8 [the Blue Cross I] Plaintiffs’ provision of m edical services to Defen dants’ custom ers.”42 In the Fifth Am ended Com plaint in Blue Cross I, the Blue Cross I Plaintiffs allege they “contacted the respective Defendant and with that Defendant’s authorization received a representation that the proposed services were covered and preauthorized and that in exchange for said services, reim bursem ent . . . would be forthcom ing.”43 The Blue Cross I Plaintiffs allege they detrim entally relied on these representations because they “based their decisions to provide [] services on Defen dants’ representations of paym ent.”44 The Court granted sum m ary judgm ent in Blue Cross I on the Blue Cross I Plaintiffs’ detrim ental reliance claim . 45 The Court found there was no representation—and therefore could be no detrim ental reliance—for those patients for whom the Blue Cross I Plaintiffs did not attem pt to verify the eligibility and benefits by a telephone verification call or visiting the iLinkBlue web portal. 46 Sim ilarly, the Court found Blue Cross Louisiana m ade no prom ise to pay a certain am ount for services rendered by the Blue Cross I Plaintiffs on iLinkBlue, as the verification page contains n o claim -specific paym ent inform ation, and as a result there was no representation and there could be no detrim ental reliance. 47 With respect to any patient for whom the Blue Cross I Plaintiffs m ade a verification telephon e call to Blue Cross Louisiana, the Court found the Blue Cross I Plaintiffs could not have reasonably relied upon the representations m ade in the calls because disclaim ers saying there was “no guarantee of paym ent” were played at the beginning of each call, and the 42 R. Doc. 8-5 at 8 , ¶ 42. Blue Cross I, R. Doc. 30 8 at 28 , ¶ 210 . 44 Id. at ¶ 215. 45 Blue Cross I, R. Doc. 585. 46 Id. at 20 . 47 Id. at 21. 43 9 Blue Cross I Plaintiffs did not request further assurance or clarification about the am ount of the allowable charge. 48 Because the Court has actually decided that the Blue Cross I Plaintiffs cannot recover under this theory, and the Blue Cross I Plaintiffs’ claim s in Blue Cross II arise from the sam e nucleus of operative fact as their claim s in Blue Cross I, the Blue Cross I Plaintiffs are enjoined from pursuing any claim s under the theory of detrim ental reliance for which: (1) there was no attem pt to verify the patient’s eligibility and benefits through a verification telephone call or visit to the iLinkBlue website; (2) there was an attem pt to verify the patient’s eligibility and benefits through iLinkBlue, but the verification page did not provide the am ount the insurer will pay for a specific procedure; or (3) there was an attem pt to verify the patient’s eligibility and benefits through a verification telephone call, but a disclaim er stating there was “no guarantee of paym ent” was played at the beginning of the call, and the Blue Cross I Plaintiffs did not request further assurance or clarification about the am ount of the allowable charge. c. Negligent Misrepresentation In Blue Cross II, the Blue Cross I Plaintiffs allege Blue Cross Louisiana has “a legal duty to supply correct inform ation regarding the existence and extent to which Defendants have agreed or offered to pay to the Blue Cross I Plaintiffs for the provision of m edical services.”49 The Blue Cross I Plaintiffs further allege in Blue Cross II they “relied, to their detrim ent, on representation s and statem ents m ade by Defen dants as to the existen ce and extent of paym ent by Defendants for [the Blue Cross I] Plaintiffs’ provision of m edical services to Defendants’ custom ers.”50 The Blue Cross I Plaintiffs allege these representations were m ade on Blue Cross Louisiana’s web portal, iLinkBlue, 48 49 50 Id. at 22. R. Doc. 8-5 at 10 , ¶ 62. Id. at ¶ 61. 10 or, presum ably, through verification telephone calls. 51 In the Fifth Am ended Com plaint in Blue Cross I, the Blue Cross I Plaintiffs alleged “Defendants breached [their] duty to [the Blue Cross I] Plaintiffs directly by providing m isleading inform ation about the benefits to be paid after authorizing the procedure to be perform ed.”52 In their oppositions to the m otions for sum m ary judgm ent, the Blue Cross I Plaintiffs m ade clear that the alleged m isrepresentations occurred on the verification telephone calls and the iLinkBlue coverage sum m aries. 53 In an order issued on Septem ber 19, 20 16, the Court granted sum m ary judgm ent in Blue Cross I on the Blue Cross I Plaintiffs’ negligent m isrepresentation claim to the extent the Blue Cross I Plaintiffs m ade no attem pt to verify a patient’s coverage an d benefits. 54 The Court also granted sum m ary judgm ent to the extent the Blue Cross I Plaintiffs verified eligibility through iLinkBlue, finding the coverage sum m aries on iLinkBlue did not state the allowable am ount or any other procedure-specific inform ation, and therefore no representation with respect to the allowable am ount was m ade. 55 On March 31, 20 17, the Court granted sum m ary judgm ent on the Blue Cross I Plaintiffs’ negligent m isrepresentation claim to the extent a verification telephone call was 51 Id. at ¶ 18 (“Defendants required that Plaintiffs verify Defendants’ agreem ent or offer to pay, and the percentage of the bill Defen dants would pay be referrin g to Defendants’ web portal, iLin kBlue.”); id. at ¶ 19 (“Defendants’ statem ents regardin g what Defendants agreed or offered to pay an d percentage of paym ent as stated on the web portal or otherwise, constitute affirm ative representations regarding paym ent . . . .”); id. at ¶ 20 (“With iLin kBlue . . . Defendants com m unicated to Plaintiffs before Plaintiffs provided m edical services . . . .”); id. at ¶ 23 (“Plaintiffs relied upon , and were entitled to rely upon, to their detrim ent, Defendants’ web portal and other statem ents m ade by Defendants, whether oral or otherwise, regardin g Defendants’ agreem ent or offer to pay . . . .”). 52 Blue Cross I, R. Doc. 30 8 at 62, ¶ 236. 53 See R. Docs. 567, 716, 729. 54 Blue Cross I, R. Doc. 585 at 25. 55 Id. at 25– 26. 11 m ade with respect to dam ages for the rem aining patients, 56 because any representations m ade on the verification telephone calls were not the cause-in-fact of the Blue Cross I Plaintiffs’ treatm ent or billing decisions. 57 Further, the Court found any representations m ade on the verification telephone calls were not the legal cause of the Blue Cross I Plaintiffs’ harm because Blue Cross Louisiana was not asked for the allowable am ount and could not have foreseen that its not givin g the Blue Cross I Plaintiffs the allowable am ount would cause the Blue Cross I Plaintiffs harm with respect to their billing an d treatm ent decisions. 58 Because the Court has actually decided that the Blue Cross I Plaintiffs cannot recover under a theory of negligent m isrepresentation, and the Blue Cross I Plaintiffs’ claim s in Blue Cross II arise from the sam e nucleus of operative fact as their claim s in Blue Cross I, the Blue Cross I Plaintiffs are enjoined from pursuing any claim s under the theory of negligent m isrepresentation if: (1) there was no attem pt to verify the patient’s eligibility and ben efits through a verification telephone call or iLinkBlue; (2) there was an attem pt to verify the patient’s eligibility and benefits through iLinkBlue, but the coverage sum m aries did not state the allowable am ount or any other procedure-specific inform ation; or (3) there was an attem pt to verify the patient’s eligibility and benefits through a verification telephone call, and the Blue Cross I Plaintiffs did not ask Blue Cross Louisiana for the allowable am ount. 56 Blue Cross I, R. Doc. 730 . The Court held a jury trial on the Blue Cross I Plaintiffs’ negligent m isrepresentation cause of action with respect to dam ages relating to seven “bellwether” patients who were treated by the Blue Cross I Plaintiffs. The jury found in favor of the defendants. See Blue Cross I, R. Doc. 70 1. The testim ony presented at trial, however, applied to the Blue Cross I Plaintiffs’ n egligent m isrepresentation cause of action in its entirety, and was not specific to the seven bellwether patients. The Court relied on this testim ony in its ruling on the Defendants’ m otion for sum m ary judgm ent. 57 Blue Cross I, R. Doc. 730 . 58 Id. at 19. The Court further found that providin g the allowable am ount was not within the scope of the Defendants’ duty, and therefore, not providin g the allowable am ount could n ot be a breach of the Defendants’ duty. Id. 12 d. Fraud In Blue Cross II, the Blue Cross I Plaintiffs allege “Defendants m ade representations to [the Blue Cross I] Plaintiffs by inviting [them ] to verify the term s of Defendants’ offer or agreem ent to pay through viewing Defendants’ web portal, iLinkBlue, and by providing inform ation on Defendants’ iLinkBlue web portal, and m aking statem ents orally and otherwise to [the Blue Cross I] Plaintiffs,” Plaintiff relied upon these representations, and “Defendants intended to deceive [the Blue Cross I] Plaintiffs with Defendants’ m isrepresentations.”59 In the Fifth Am ended Com plaint in Blue Cross I, the Blue Cross I Plaintiffs alleged Blue Cross Louisiana’s representations “m ade by telephone or through com puter generated inform ation” were “fraudulent because the allowed am ount that was actually used to calculate the paym ents was not that which com plied with the definitions included in the Plan and were known by Defendants to be m isleading.”60 The Blue Cross I Plaintiffs voluntarily dism issed with prejudice their fraud claim in Blue Cross I on October 22, 20 15. 61 Voluntary dism issals with prejudice ordinarily are “deem ed a final adjudication on the m erits for res judicata purposes on the claim s asserted or which could have been asserted in the suit.”62 “To have a preclusive effect on specific issues or facts, however, a voluntary dism issal also m ust be accom panied by specific findings sufficient for a subsequent court to conclude that certain m atters are 59 R. Doc. 8-5, at 9, ¶¶ 49– 51. Blue Cross I, R. Doc. 30 8 at 64, ¶¶ 246– 47. 61 Blue Cross I, R. Docs. 449, 450 (“After a thorough review of the law, facts, an d record related to the allegation, the Blue Cross I Plaintiffs believe that it is in the best interest of fairn ess and judicial econom y to dism iss with prejudice Count VIII of the Fifth Am en ded Com plaint.”). 62 Motrade v. Rizozaan, Inc., No. 95-6545, 1998 WL 10 8 13, at *5 (S.D.N.Y. Mar. 11, 1998) (quotin g Israel v. Carpenter, 120 F.3d 361, 365 (2d Cir. 1997)). 60 13 actually decided.”63 The Court did not issue findings when it granted the Blue Cross I Plaintiffs’ m otion to voluntarily dism iss the Plaintiff’s fraud claim . 64 As a result, the Blue Cross I Plaintiffs’ voluntary dism issal of their fraud claim has no preclusive effect, and the Court will not enjoin the Blue Cross I Plaintiffs from pursuing a fraud claim in Blue Cross II. The Court has closely tailored its injunctive relief to apply only to those issues decided in its rulings on Blue Cross Louisiana’s m otions for sum m ary judgm ent in Blue Cross I. 65 This injunction does not prevent the Blue Cross I Plaintiffs from pursuing in state court any claim s that m ay exist against Blue Cross Louisiana that fall outside of the issues decided by this Court. CON CLU SION IT IS ORD ERED that Blue Cross Louisiana’s m otion for prelim inary and perm anent injunctive relief pursuant to 28 U.S.C. § 2283 with respect to the Blue Cross I Plaintiffs’ claim s for breach of oral contract, detrim ental reliance, negligent m isrepresentation, an d fraud is GRAN TED IN PART and D EN IED IN PART. IT IS FU RTH ER ORD ERED that the Center for Restorative Breast Surgery, L.L.C. and St. Charles Surgical Hospital are enjoined from m aking claim s related to the provision of m edical services to patients insured by Anthem Blue Cross and Blue Shield of Ohio, Anthem Blue Cross and Blue Shield of Virginia, Anthem BlueCross BlueShield of 63 Id. (citing Schenk v. Mine Mgm t. Co., 1997 WL 3140 0 , *7 (N.D.N.Y. J an . 23, 1997) (“Dism issals with prejudice unaccom panied by findin gs have no preclusive effect.”)); see also Rose v. Bourn e, 172 F. Supp. 536 (S.D.N.Y. 1959) (“[W]ithout findings, the actual or potential determ ination of the issues in the dism issed suit will not be effective by way of collateral estoppel on the decision of other causes of action.”). 64 See Blue Cross I, R. Doc. 450 . The order on the Blue Cross I Plaintiffs’ m otion stated “Considering the above and foregoin g m otion , it is hereby ordered that the Blue Cross I Plaintiffs’ Ex Parte Motion to Dism iss Count VIII of the Fifth Am ended Com plaint with prejudice is hereby granted.” Id. 65 See Liberty Mut. Ins. Co. v . Gunderson, 387 Fed. App’x 480 , 487 (5th Cir. 20 10 ) (upholdin g the grant of injunctive relief under the relitigation exception because “the district court closely tailored its in junctive relief to apply only to those issues decided in the partial sum m ary judgm ent”). 14 California, Anthem BlueCross BlueShield of Colorado, Anthem BlueCross BlueShield of Connecticut, Anthem BlueCross BlueShield of Kentucky, Anthem BlueCross BlueShield of Maine, Anthem BlueCross BlueShield of Mississippi, Anthem BlueCross BlueShield of Nevada, Anthem BlueCross BlueShield of Wisconsin, Anthem Health Plans of Maine, Inc., Anthem Health Plans of Virginia, Inc., Anthem Health Plans, Inc., Anthem Plans of Maine, Inc., BCBSM, Inc., Blue Cross & Blue Shield of Illinois, Blue Cross & Blue Shield of Mississippi, Blue Cross and Blue Shield of Alabam a, Blue Cross and Blue Shield of Florida, Blue Cross and Blue Shield of Nebraska, Inc., Blue Cross an d Blue Shield of North Carolina, Blue Cross and Blue Shield of Oklahom a, Blue Cross and Blue Shield of Tennessee, Blue Cross and Blue Shield of Texas, Blue Cross Blue Shield CareFirst, Blue Cross Blue Shield Federal, Blue Cross Blue Shield Hawaii Medical Service Association, Blue Cross Blue Shield of Connecticut, Blue Cross Blue Shield of Hawaii, Blue Cross Blue Shield of Idaho, Blue Cross Blue Shield of Illinois, Blue Cross Blue Shield of Kentucky, Blue Cross Blue Shield of Massachusetts, Blue Cross Blue Shield of New York, Blue Cross of California, BlueCross BlueShield of Arkansas, BlueCross BlueShield of California, BlueCross BlueShield of California Directors Guild of Am erica, BlueCross BlueShield of Colorado, BlueCross BlueShield of Delaware, BlueCross BlueShield of Georgia, BlueCross BlueShield of Hawaii, BlueCross BlueShield of Idaho, BlueCross BlueShield of Indiana, BlueCross BlueShield of Iowa, BlueCross BlueShield of Kentucky, BlueCross BlueShield of Louisiana Office of Group Benefits, BlueCross BlueShield of Maine, BlueCross BlueShield of Maryland, BlueCross BlueShield of Massachusetts, BlueCross BlueShield of Michigan, BlueCross BlueShield of Minnesota, BlueCross BlueShield of Missouri, BlueCross BlueShield of Montana, BlueCross BlueShield of New J ersey, BlueCross BlueShield of New Mexico, BlueCross BlueShield of New York, BlueCross BlueShield of 15 Rochester, New York, BlueCross BlueShield of Western New York, BlueCross BlueShield of North Carolina, BlueCross BlueShield of Ohio, BlueCross BlueShield of Oregon , BlueCross BlueShield of Pennsylvania, BlueCross BlueShield of Rhode Island, BlueCross BlueShield of South Carolina, BlueCross BlueShield of Tennessee, BlueCross BlueShield of Utah, BlueCross BlueShield of Verm ont, BlueCross BlueShield of Virginia, BlueCross BlueShield of West Virginia, BlueCross BlueShield of Mountain West Virginia, BlueCross BlueShield of Washin gton, CareFirst BlueCross BlueShield of Maryland, Com m unity Insurance Com pany, Em pire BlueCross BlueShield of New York, Federal BlueCross BlueShield, HighMark Blue Shield, Highm ark BlueCross BlueShield of Pennsylvania, Highm ark BlueCross BlueShield of West Virginia, Highm ark Inc, Horizon BlueCross BlueShield of New J ersey, Keystone Health Plan East BlueCross BlueShield of Pennsylvania, Louisiana Health Service & Indem nity Com pany, Prem era Blue Cross, Prem era BlueCross BlueShield of Washington, Regence Blue Shield, Regence BlueCross BlueShield of Oregon, Regence BlueCross BlueShield of Utah, Regence BlueCross BlueShield of Washington, Wellm ark BlueCross BlueShield of Iowa, or Wellm ark, Inc. for the following claim s: 1. Any claim for breach of oral contract the value of which exceeds $ 50 0 in which they allege an oral contract existed by virtue of telecom m unication and/ or accessing the iLinkBlue web portal; 2. Any claim under the theory of detrim ental reliance for which: (1) there was no attem pt to verify the patient’s eligibility and benefits through a verification telephone call or iLin kBlue; (2) there was an attem pt to verify the patient’s eligibility and ben efits through iLinkBlue, but the verification page did not provide the am ount the insurer will pay for a specific procedure; or (3) there was an attem pt to verify the patient’s eligibility and ben efits through a verification telephone call, but a disclaim er stating there was “no guarantee of paym ent” was played at the beginning of the call, and the Blue Cross I Plaintiffs did not request further assurance or clarification about the am ount of the allowable charge; an d 3. Any claim under the theory of negligent m isrepresentation for which: (1) there was 16 no attem pt to verify the patient’s eligibility and benefits through a verification telephone call or iLin kBlue; (2) there was an attem pt to verify the patient’s eligibility and benefits through iLinkBlue but the coverage sum m aries did not state the allowable am ount or any other procedure-specific inform ation; or (3) there was an attem pt to verify the patient’s eligibility and benefits through a verification telephone call, but the Blue Cross I Plaintiffs did not ask Blue Cross Louisiana for the allowable am ount. IT IS FU RTH ER ORD ERED that Blue Cross Louisiana’s m otion for prelim inary and perm anent injunctive relief pursuant to 28 U.S.C. § 2283 with respect to the Blue Cross I Plaintiffs’ fraud claim is D EN IED . N e w Orle an s , Lo u is ian a, th is 2 3 rd d ay o f May, 2 0 17. _______________________ ________ SU SIE MORGAN U N ITED S TATES D ISTRICT JU D GE 17
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