On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-053-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 7, 2011 - Before Judges Parrillo and Yannotti.
Plaintiff Ronn Sorr appeals from the Law Division's dismissal with prejudice of his complaint against defendant Novartis Pharmaceuticals Corporation, Inc. (Novartis) pursuant to Rule 4:6-2(e). Plaintiff's complaint seeks to hold Novartis liable for the actions of its former employee, Thomas Nanna (Nanna), and requests reimbursement for the fines, costs, and other sanctions imposed upon plaintiff by the Board of Pharmacy (Board) following an administrative license revocation proceeding. For the following reasons, we affirm the dismissal of plaintiff's complaint.
By way of background, in 2005, the New Jersey Attorney General filed a four-count complaint seeking the suspension or revocation of the license of plaintiff, a registered pharmacist who operated the Trenton Avenue Pharmacy in Atlantic City. The administrative complaint charged plaintiff with various statutory and regulatory violations stemming from his failure to verify the validity of prescriptions, notify patients who receive contraindicated prescriptions, maintain complete patient records, and counsel patients on their prescriptions. These allegations arose from plaintiff's participation in a voucher program in which individuals could obtain free samples of drugs manufactured by Novartis as a way of being introduced to the company's line of pharmaceutical products.
According to the record before the Administrative Law Judge (ALJ), the voucher program required that a physician diagnose a patient and prescribe medication on a form called the New Jersey Prescription Blank (NJPB). A voucher for payment was attached to the back of the NJPB for each drug that was prescribed. After filling and dispensing the medication, the pharmacist would submit the voucher to the company for reimbursement and dispensing fees. From June 2002 to September 2002, Nanna, Novartis's sales representative who serviced the Atlantic City area, delivered to plaintiff bundles of NJPBs bearing Novartis vouchers. Plaintiff filled 965 prescriptions for the voucher program, including the 104 NJPBs that formed the basis for the Attorney General's complaint. The 104 NJPBs were for certain prescription drugs; however, the patients identified in these 104 NJPBs neither delivered their prescriptions to plaintiff nor picked up the drug samples at plaintiff's pharmacy. Instead, plaintiff either provided the drugs to Nanna or mailed them to a physician whose name did not appear as the prescribing licensee. By doing so, plaintiff collected $90,000 in reimbursement from Novartis.
Plaintiff denied the allegations in the complaint and claimed that he was "duped" into filling fraudulent prescriptions by Nanna's misrepresentations:
The medications that I dispensed were in very small amounts designed to be starter samples. None of the medications were controlled substances. I believed that Nanna was simply trying to encourage the various doctors to utilize the medications as part of his job as a sales representative for Novartis. I knew Novartis to be a highly reputable pharmaceutical company and I trusted that [its] representatives were not engaged in any improper behavior.
At the close of hearings, the ALJ found that there was no genuine issue of fact and granted the Attorney General's motion for summary decision in part,*fn1 concluding that plaintiff had engaged in dishonesty, fraud, deception, or misrepresentation "by accepting bundled prescriptions delivered by a sales representative, filling those prescriptions without question, dispensing medications in bulk to an unknown end user, and then collecting $90,000 in reimbursement." The ALJ also found that plaintiff's actions constituted gross negligence and evidenced a lack of professional judgment. The ALJ also granted summary judgment on certain other charges, finding that plaintiff failed to record complete patient information in the patient profile system and failed to counsel the patients for whom the medication was prescribed.
The Board adopted the ALJ's initial decision, expressly rejecting plaintiff's claim that he had been "duped" by Nanna into filling fraudulent prescriptions. The Board concluded that plaintiff "knew or should have known" that the NJPBs were fake based on their clearly questionable nature and surrounding circumstances, yet willfully "turn[ed] a blind eye" to conduct plaintiff knew was wrong and in violation of his professional and ethical responsibilities.
By doing so, [plaintiff] put drugs into the stream of commerce that he knew or should have known were not going to a valid patient and that unaccounted for, may be used by unauthorized individuals for consumption or sold through unlawful channels to an unsuspecting member of the public. [Plaintiff's] continued failure to comply with the standard of care has put patients and the general public at real and potential risk.
Consequently, the Board suspended plaintiff's license to practice pharmacy in New Jersey for five years,*fn2 imposed a civil penalty in the amount of $10,000, and required that he pay attorney's fees and investigative costs in the amount of $99,639.75.
On appeal, we affirmed the Board's final decision, reasoning:
The material facts concerning the circumstances under which [plaintiff] filled the 104 prescriptions were not disputed. The undisputed facts provided ample support for the ALJ's and the Board's finding that [plaintiff] filled the prescriptions under circumstances that should have alerted him to the fact that the prescriptions were not valid. . . . [Moreover, plaintiff] gave the medications to Nanna or mailed them to Dr. Vasoya. [Plaintiff] never counseled any of the purported patients. He had no idea who was receiving the medications. [In the Matter of the Suspension or Revocation of License ...