Judge Deirdre Hill, Case 21STCV19872 2022-08-18 Tentative Ruling

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Moving Parties: Defendant Lawrence D. Sher, M.D. dba Palos Verdes Medical Group (erroneously sued and served herein as Palos Verdes Medical Group)

On May 26, 2021, Plaintiffs Scott Wellen and Dean Wellen (“Plaintiffs”) filed a Complaint against Defendants Dr. Laurence Gorlick and the Palos Verdes Medical Group and Does 1 through 10 (collectively, “Defendants”) alleging causes of action for (1) Redress for Medical Malpractice and (2) Redress for Violations of the Drug Dealer Liability Act (Health and Safety Code § 11700, et seq.).

On February 14, 2022, Plaintiffs filed a First Amended Complaint against Defendants alleging causes of action for (1) Medical Malpractice and (2) Violations of the Drug Dealer Liability Act (Health and Safety Code § 11700, et seq.).

On March 11, 2022, Defendant Lawrence D. Sher, M.D. dba Palos Verdes Medical Group (erroneously sued and served herein as Palos Verdes Medical Group) filed a demurrer to the First Amended Complaint.

On May 13, 2022, Plaintiffs Scott Wellen and Dean Wellen filed an opposition to Defendants’ demurrer.

When considering demurrers, courts read the allegations liberally and in context. Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228. “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.

Defendant demur to the second cause of action in the First Amended Complaint on the grounds that they fail to state sufficient facts to constitute a cause of action.

In the First Amended Complaint (“FAC”), Plaintiffs Scott Wellen and his son Dean Wellen allege that Scott Wellen had been a patient of Defendants Dr. Laurence Gorlick and Palos Verdes Medical Group ("PVMC") for over a decade, and that Scott Wellen was overprescribed opiates, benzoids, and other controlled substances, resulting in harm to Mr. Wellen. (FAC ¶ 1.) It is alleged that Dean Wellen found his father on May 27, 2020 "unconscious and turning blue" at their home. (Id. ¶ 2.)

Defendant argues the basis for the cause of action is the claim that the Defendants’ conduct constituted the "habitual prescribing of illegal controlled substances throughout the time of their treatment of SCOTT WELLEN." (FAC ¶ 30.) The second cause of action does not state facts sufficient to constitute a cause of action for violation of the Drug Dealer Liability Act against the moving defendant. In short, and as will be discussed herein, the gravamen of the Plaintiffs' claim is that the defendants were negligent in overprescribing and mismanaging the Plaintiffs medication regimen. This is a basic claim for medical negligence and does not give rise to liability under the Drug Dealer Liability Act. Defendant argues that there is nothing in the Act that indicates that it is intended to apply to physicians prescribing medications to patients. Here, it is alleged that the Plaintiff was seen by Dr. Gorlick at PVMG for over a decade [d]ue to various physical 5 injuries." (FAC ¶ 1.) Thus, the prescriptions were issued in the "course of professional treatment, “and therefore, they were not illegal under section 11153.

In opposition, Plaintiffs argue that the Defendant ignore legislative history. Plaintiffs argue that United States Attorney Daniel Bent and the Model Drug Dealer Liability Act (“MDDLA”) expressly intended to extend “liability to a doctor writing illegitimate prescriptions outside the course and scope of a legal medical practice.” In tandem with Senator Calderon, Mr. Bent supported and aided in drafting and introduce SB 1754, and was clearly designed, much like the MDDLA to deter drug dealers, who were illegally profiting from fueling the cycle of drug addiction. Plaintiffs argue that the legislature did not intend to provide a MDDLA loophole for doctors who deal drugs. Nonetheless, the Defendant want this Court to conclude that physicians cannot be liable under the DDLA because of their license to issue prescriptions for controlled substances. Defendants cannot cite a single case which has, on the merits, found that a physician cannot be subjected to DDLA liability.

In reply, Plaintiffs allege that Plaintiffs’ exhibits submitted have not been authenticated and do not support Plaintiffs’ argument.

Health & Safety Code §11706(b) provides, as follows: “A person entitled to bring an action under this section may seek damages only from a person who manufactured, transported, imported into this state, sold, possessed with intent to sell, furnished, administered, or gave away the specified illegal controlled substance actually used by the individual user of an illegal controlled substance.”

Enacted in 1996, the DDLA created a civil remedy for damages to persons in a community injured as a result of the use of an illegal controlled substance. The statute was intended to serve several purposes: to enable plaintiffs to recover damages from those persons in the community who have joined the marketing of illegal controlled substances; to shift, to the extent possible, the cost of the damage caused by the existence of the market for illegal controlled substances; to establish the prospect of substantial monetary loss as a deterrent to those who have not yet entered into the distribution market for illegal controlled substances; and to establish an incentive for users of illegal controlled substances to identify and seek payment for their own treatment from those dealers who have sold illegal controlled substances to the user in the past. The statute created a cause of action against a person who knowingly participates in the marketing of illegal controlled substances, and it confers standing on a broad array of plaintiffs, including a parent, legal guardian, child, spouse, or sibling of the individual controlled substance user, an individual who was exposed to an illegal controlled substance in utero, and employers and other entities, as well as individual users under certain conditions.

In the First Amended Complaint, Plaintiffs allege that a record of the prescriptions which were submitted between September 2012 and December 2020 to Blue Shield for payment, or filled at Ralph’s Pharmacy, between September 2012 and May 26, 2020. (FAC ¶ 27.) From these records, it should readily appear that DR. GORLICK started prescribing Oxycodone and OxyContin, dangerous Schedule II controlled substances, in the Fall of 2012, along with benzoids, ranging from Klonopin to Xanax to Ativan (Alprazolam). (Id.) The prescription records further reveal that DR. LAWRENCE SHER who now purports to be PVMG rendered care to SCOTT WELLEN at various times between at least 2013 and 2017 and knew but chose to ignore what DR. GORLICK was doing in these regards. (Id.) SCOTT WELLEN is further informed and believes that once Blue Shield denied coverage for Methadone pills, DR. GORLICK caused SCOTT WELLEN to be enrolled in UNITED NETWORKS OF AMERICA and a Methadone program, which prevented pharmacists from seeing the outrageous number of pills that Defendants caused to be dispensed to SCOTT WELLEN, commencing in 2019 and up until May 26, 2020 when the quantity of pills had been lowered from 360 to only 300 as a one month supply. (Id. ¶ 28.) Plaintiffs have further been informed that in a Methadone treatment setting, a 40mg ablet is quite difficult to procure, thus necessitating that Defendants deviate from proper protocols by instructing SCOTT WELLEN, who suffered from a known opioid addiction according to Defendants records, to consume more than double if not three times that amount on a daily basis. (Id. ¶ 28.) In essence, Plaintiffs allege Defendants violated the DDLA by intentionally prescribing Scott unnecessary, addictive medication for Defendants’ personal financial gain. (Id. ¶ 38.)

Here, Plaintiffs allege what “illegal controlled substances” were provided or furnished to Scott for which Defendants. The DDLA defines “illegal controlled substance” as follows: “Specified illegal controlled substance” means cocaine, phencyclidine, heroin, or methamphetamine and any other illegal controlled substance the manufacture, cultivation, importation into this state, transportation, possession for sale, sale, furnishing, administering, or giving away of which is a violation of Section 11351, 11351.5, 11352, 11358, 11359, 11360, 11378.5, 11379.5, or 11383.” (Health & Saf. Code, § 11703, subd. (l).) In the First Amended Complaint, Plaintiffs have not asserted that Defendant provided Scott with cocaine, phencyclidine, heroin, or methamphetamine. With respect to substances specified in the complaint that were allegedly prescribed or furnished to Scott, including opiates, benzoids, ranging from Klonopin to Xanax to Ativan (Alprazolam), methadone, and hydromorphone. Plaintiffs have not set forth sufficient allegations that said substances, or any other substances prescribed to Scott, are within the definition of “specified illegal controlled substance.” Plaintiffs instead allege conclusory allegations that the listed substances are “controlled substances”. Without such allegations that the substances fall within the definition of “specified illegal controlled substance”, Defendant cannot be held liable under the DDLA.

On March 14, 2022, Defendant Dr. Laurence Gorlick filed a demurrer to the First Amended Complaint.

On May 13, 2022, Plaintiffs Scott Wellen and Dean Wellen filed an opposition to Defendants’ demurrer.

Defendant demur to the second cause of action in the First Amended Complaint on the grounds that they fail to state sufficient facts to constitute a cause of action.

Defendant argues the basis for the cause of action is the claim that the Defendants’ conduct constituted the "habitual prescribing of illegal controlled substances throughout the time of their treatment of SCOTT WELLEN." (FAC ¶ 30.) The second cause of action does not state facts sufficient to constitute a cause of action for violation of the Drug Dealer Liability Act against the moving defendant. In short, and as will be discussed herein, the gravamen of the Plaintiffs' claim is that the defendants were negligent in overprescribing and mismanaging the Plaintiffs medication regimen. This is a basic claim for medical negligence and does not give rise to liability under the Drug Dealer Liability Act. Defendant argues that there is nothing in the Act that indicates that it is intended to apply to physicians prescribing medications to patients. Here, it is alleged that the Plaintiff was seen by Dr. Gorlick at PVMG for over a decade " [d]ue to various physical 5 injuries." (FAC ¶ 1.) Thus, the prescriptions were issued in the "course of professional treatment, “and therefore, they were not illegal under section 11153.

In reply, Plaintiffs allege that Plaintiffs’ exhibits submitted have not been authenticated and do not support Plaintiffs’ argument.

Thus, as the complaint now stands, Plaintiffs have not proffered anything by way of case law or legislative history which demonstrates to the Court that Defendant’s conduct, as alleged in the complaint, falls within the intent and purpose of the DDLA. Plaintiff is granted 10 days leave to amend to state sufficient factual allegations of specified illegal controlled substance to state a cause of action under the DDLA