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United States v. City Pharmacy, LLC

United States District Court, N.D. West Virginia, Martinsburg

April 19, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
CITY PHARMACY, LLC, CITY PHARMACY OF CHARLES TOWN, INC., DAVID M. WASANYI, AMY WASANYI, and ROGER LEWIS, Defendants.

          ORDER ON DEFENDANT DAVID M. WASANYI'S MOTION TO DISMISS AND MOTION TO STRIKE EXPERT TESTIMONY AND GRANTING IN PART AND DENYING IN PART GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT

          JOHN PRESTON BAILEY, UNITED STATES DISTRICT JUDGE

         This matter now comes before the Court for consideration of defendant David M. Wasanyi's (“Wasanyi”) Motion to Dismiss [Doc. 58], filed on September 22, 2016. The Government filed a Response in Opposition to Wasanyi's Motion to Dismiss on September 29, 2016 [Doc. 60]. The Government then filed a Motion for Summary Judgment [Doc. 68] on December 29, 2016. As to defendant Amy Wasanyi (now “Amy Louise”[1] and hereinafter referred to as “Amy Louise” or “Louise”), this Court entered an Agreed Order Extending Time for Defendant Amy Wasanyi to File a Response to Plaintiff's Motion for Summary Judgment [Doc. 81] on January 19, 2017. Amy Louise then filed her Response in Opposition [Doc. 85] on February 2, 2017, to which the Government filed a Reply [Doc. 88] on February 7, 2017. Defendant Roger Lewis (“Lewis”) filed a Response in Opposition to the Motion for Summary Judgment [Doc. 94] on February 17, 2017, to which the Government filed a Reply [Doc. 95] on February 22, 2017. Finally, defendant Wasanyi then filed a Motion to Strike Expert Testimony [Doc. 96] on February 28, 2017, to which the Government filed a Response [Doc. 98] on March 10, 2017. For the following reasons, defendant Wasanyi's Motion to Dismiss and Motion to Strike are DENIED. The Government's Motion for Summary Judgment is GRANTED as to defendant David M. Wasanyi, and DENIED AS MOOT as to defendants Roger Lewis and Amy Louise.[2] Finally, defendant Wasanyi's Motion for Extension of Time to File Voir Dire, Jury Instructions, and Verdict Form is GRANTED.

         I. Background

         On February 29, 2016, the Government filed a complaint against the above-named defendants, alleging violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 801-971 (“the CSA”), and seeking civil penalties for the same [Doc. 1]. Specifically, the United States alleges violations of 21 U.S.C. § 842(a)(1), 21 U.S.C. § 829, 21 C.F.R. § 1306.04, 21 C.F.R. § 1306.05 and 21 C.F.R. § 1306.11 [Id.]. The Government claims that the individual defendants utilized City Pharmacy, LLC (“CP”), and City Pharmacy of Charles Town, Inc. (“CPCT”), to fill illegitimate prescriptions for controlled substances, including those which were: (1) written by medical providers located in distant states; (2) presented by individuals who traveled from distant locations; (3) paid for using cash; (4) altered by scratching out the medical provider's fill date, increasing the number of units being prescribed or changing the strength, nature or type of controlled substance; and (5) lacking the full name or address of the patient for whom the prescription was written [Id.].

         Defendant CP is a West Virginia limited liability company, with its principal place of business located in Martinsburg, West Virginia [Doc. 1 at ¶ 2]. Defendant CPCT is a West Virginia corporation, with its principal place of business in Charles Town, West Virginia [Id. at ¶ 3]. CP and CPCT were both registered by the U.S. Drug Enforcement Administration (“DEA”), and both companies were engaged in the business of operating a retail pharmacy [Id. at ¶¶ 4-7]. During the time of the events alleged in the Complaint, Amy and David Wasanyi were married although, again, the former Amy Wasanyi has since divorced David Wasanyi and changed her name to Amy Louise [Doc. 85 at 1]. Roger Lewis is the father of Amy Louise and former father-in-law of Wasanyi [Doc. 1 at ¶ 16]. Finally, Wasanyi was a pharmacist, licensed by the West Virginia Board of Pharmacy, and was the primary pharmacist at both CP and CPCT [Id. at ¶¶ 9-11].

         In this action, the Government alleges that from 2010 into 2015, CP and CPCT filled 1, 181 invalid prescriptions for Schedule II and Schedule III controlled substances, written by 45 physicians located in Florida, Georgia, Tennessee and Virginia for patients in Alabama, Florida, Georgia, Kentucky, Maryland, Ohio, Tennessee and Virginia [Doc. 71-1[3] at ¶ 8]. Most of the prescriptions (957) were written for allegedly fraudulent patients who were residents of Kentucky and Ohio [Id. at ¶ 9]. Additionally, the Government alleges that all of the purportedly fraudulent patients traveled great distances to have the prescriptions filled at CP or CPCT [Id. at ¶ 10]. In support of these allegations, the Government attached copies of the prescriptions at issue and a spreadsheet summarizing the prescriptions which, in turn, purportedly demonstrate that the vast majority of the prescriptions were written by a provider who was not located in the same state as the patient [Id. at pages 4-13].

         As to defendant Wasanyi, the Government alleges that in his capacity as a pharmacist, Wasanyi filled the majority of the aforementioned 1, 181 illegitimate prescriptions until his arrest in April of 2014 [Doc. 71-1 at ¶ 11]. At that time, Wasanyi was arrested and indicted by the State of West Virginia for improper delivery of controlled substances, and ultimately he faced charges in two separate Berkeley County cases and one Jefferson County case [Id. at ¶ 12]. In April of 2016, Wasanyi was convicted in the Circuit Court of Berkeley County (Case No. 15-F-17) of two counts of improper delivery of diazepam and one count of improper delivery of buprenorphine [Id. at ¶ 13]. Then, in October of 2016, Wasanyi was convicted in the Circuit Court of Berkeley County (Case No. 16-F-54) on 13 counts of improper delivery of a controlled substance [Id. at ¶ 14]. The charges in Case No. 16-F-54 involved 13 prescriptions presented by two women from Kentucky and written by a Georgia provider and are, in turn, allegedly similar to the 1, 181 prescriptions at issue in this Federal civil action [Id.]. Finally, in February of 2016, Wasanyi was indicted in Jefferson County Circuit Court (Case No. 16-F-123) for his alleged role in a conspiracy to obtain controlled substances by fraud; these charges are pending [Id. at ¶ 15]. This action followed those related state-court matters.

         II. Standard of Review

         Fed. R. Civ. P. 56 provides that summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The party seeking summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “The burden then shifts to the nonmoving party to come forward with facts sufficient to create a triable issue of fact.” Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991), cert. denied, 502 U.S. 1095 (1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).

         However, as the United States Supreme Court noted in Anderson, “Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Id. at 256. “The inquiry performed is the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250; see also Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979) (Summary judgment “should be granted only in those cases where it is perfectly clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law.”) (citing Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950)). In reviewing the supported underlying facts, all inferences must be viewed in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Additionally, the party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. at 586. That is, once the movant has met its burden to show absence of material fact, the party opposing summary judgment must then come forward with affidavits or other evidence demonstrating there is indeed a genuine issue for trial. Fed.R.Civ.P. 56(c); Celotex Corp., 477 U.S. at 323-25; Anderson, 477 U.S. at 248. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249 (citations omitted).

         III. Discussion

         In assessing the instant Motion for Summary Judgment, this Court is satisfied that the questions before it are not factual, but rather legal, in nature. As such, this Court will decide whether the Government has asserted and proven a cognizable claim for a civil penalty as to defendant Wasanyi. See United States v. Butterbaugh, 2015 WL 4660096 at *2 (W.D. Wash. Aug. 5, 2015). This Court will also rule on defendant Wasanyi's other pending motions.

         A. Defendant David Wasanyi is liable for violations of 21 U.S.C. § 842(a)(1).

         In deciding the disposition of Wasanyi's Motion to Dismiss [Doc. 58] and the Government's Motion for Summary Judgment [Doc. 68] as to Wasanyi, this Court is cognizant of the applicable federal regulations that applied to Wasanyi's conduct as a pharmacist during the time that he worked in that capacity at CP and CPCT. 21 U.S.C. § 842(a)(1) makes it unlawful for any person to “distribute or dispense a controlled substance in violation of [21 U.S.C. §] 829.” In turn, 21 U.S.C. § 829 sets forth the rules and regulations regarding the issuance and filling of ...


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