Court Denies CVS’s Motion To Escape Discrimination Lawsuit Brought By HIV-Positive “John Doe” Plaintiffs

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San Francisco, CA – Late Friday a federal court in San Francisco allowed a case brought by HIV-positive “John Doe” plaintiffs against CVS to proceed, denying CVS’s third motion to dismiss the case. The John Doe plaintiffs are represented by attorneys from the non-profit Consumer Watchdog and Whatley Kallas, LLP.
CVS’s program limits people living with HIV to obtaining their life-saving medications only by mail-order—cutting off access to pharmacists and other critical benefits and services essential for people living with HIV—while continuing to make the same benefits and services available to other enrollees.  
The lawsuit seeks a nation-wide injunction to bar CVS from continuing to implement the mail-order plan in its current form for HIV medications, along with damages for the named plaintiffs and all similarly situated enrolled in prescription drug plans administered by CVS. A full copy of the operative complaint can be found here.
This ruling comes less than a year after CVS had sought to dismiss the case contending that the plaintiffs had not adequately alleged CVS receives “federal financial assistance,” a requirement to sue for disability discrimination under health programs subject to the Affordable Care Act. 
“We’re thrilled for our clients and the family members of our clients that have passed away that the Court will allow the case to continue so that we can continue the fight to vindicate the rights of people living with HIV to be free from disability-based discrimination in healthcare,” said Consumer Watchdog staff attorney Daniel L. Sternberg.
Download the Order denying CVS’s Motion to Dismiss.
CVS’s latest motion had sought to dismiss the case as moot, contending that Plaintiffs no longer had standing to seek an order from the court preventing CVS from continuing to implement the mail-order plan in its current form. Tragically, three of the “John Doe” plaintiffs in the case died while the case was pending. CVS also argued that the remaining plaintiffs were barred from amending their complaint to clarify allegations of intentional discrimination, in order for Plaintiffs to seek monetary damages.
But as the Court noted in Friday’s Order:
“The viability of Plaintiffs’ deliberate indifference claim at this juncture turns on whether Defendants were on notice of the need for [a reasonable] accommodation in order to afford meaningful access” to the prescription drug benefit administered by CVS. “Plaintiffs have demonstrated that amendment would not be futile” and “the Court [grants] Plaintiffs’ motion to amend the complaint in order to clarify their allegations of deliberate indifference discrimination in support of monetary damages.” 
In November 2021 CVS abruptly dismissed its appeal to the Supreme Court of a unanimous decision by the Ninth Circuit Court of Appeals in favor of the plaintiffs.
Read more about the Supreme Court case here.
CVS, one of the largest healthcare companies in the world, owns pharmacies throughout the U.S., but also operates as a pharmacy benefit manager, which coordinates pharmacy benefits for people like the John Does who are enrolled in employer-provided health plans. 
If you are prescribed medications to treat or prevent HIV and are enrolled in a healthcare plan where your pharmacy benefits are coordinated CVS specialty, or are interested in more information about this lawsuit, please contact Consumer Watchdog here and let us know about your experience.
Most other major health insurance companies in the U.S. now allow members to opt out of mail-order-only delivery of HIV medications because of numerous settlements achieved by attorneys for Consumer Watchdog and Whatley Kallas, LLP.
The CVS case is John Doe One, et al. v. CVS, et al., No.: 3:18-cv-01031 and is pending in federal district court in San Francisco before United States District Judge Edward M. Chen.

          Whatley Kallas, LLP attorneys have earned a national reputation—based on trust, respect, demonstrated commitment and tangible results—in connection with their representation of healthcare providers and members of the organized medicine community. Visit Whatley Kallas, LLP on the web here:

Jerry Flanagan
Jerry Flanagan
Jerry Flanagan is Consumer Watchdog's Litigation Director. Flanagan leads Consumer Watchdog’s litigation efforts in the areas of health insurance coverage and access to treatments. He has over 20 years experience working in public interest and health care policy, legislation and litigation.

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