Defendant's Attorney: Kristin Z. Zinsmaster and Matthew J. Rubenstein for Walmart

Andrew B. Barantingham, Donna Reuter and Stephen P Lucke for Hy-Vee, Inc.

Description: Minneapolis, Minnesota civil litigation lawyers represented Plaintiffs, who sued Defendants on breach of contract theories.



Plaintiffs William and Karla Salier brought this action against defendants Walmart, Inc. (“Walmart”), and Hy-Vee, Inc. (“Hy-Vee”). The Saliers have asserted various tort claims related to Walmart's and Hy-Vee's refusals to fill the Saliers' prescriptions for ivermectin and hydroxychloroquine, two drugs that the Saliers wanted to use to treat their COVID-19 infections, even though virtually every medical and governmental authority to address the issue has said that ivermectin and hydroxychloroquine should not be used to treat COVID-19.

William became severely ill with COVID-19 in October 2021. ECF No. 9 ¶¶ 8, 10. Unable to obtain monoclonal antibody treatments either in Minnesota (where the Saliers live) or in Iowa, the Saliers sought to treat William's infection with ivermectin. Id. ¶¶ 11-12, 4-5. After “significant persistence,” the Saliers obtained a telehealth appointment with a controversial Missouri physician named Mollie James, who describes herself as “an activist for medical freedom, patients [sic] right to choose, and physicians [sic] right to practice medicine unencumbered.” The James Clinic, Let Doctors Be Doctors, https://jamesclinic.com/about (last visited Aug. 19, 2022). Dr. James prescribed ivermectin for William and sent that prescription to a Walmart pharmacy in Minnesota. Id. ¶¶ 15-16. The Walmart pharmacist declined to fill the prescription, however, “stating that it was not appropriate to treat COVID-19 patients with [ivermectin].” Id. ¶ 17. Neither Karla nor Dr. James was able to convince the pharmacist to reconsider. Id. ¶¶ 18-19.

Eventually, Karla also contracted COVID-19, and Dr. James prescribed not only ivermectin but also hydroxychloroquine for her. Id. ¶ 20. The Walmart pharmacy again refused to fill the prescriptions, so the Saliers tried to get the prescriptions filled at a Hy-Vee pharmacy. Id. ¶¶ 20-21. The Hy-Vee pharmacy also declined, citing its “corporate policy to refuse Ivermectin and hydroxychloroquine prescriptions to treat COVID-19.”

Id. ¶ 21. Ultimately, the Saliers resorted to using veterinary ivermectin-”horse paste,” as they call it, Id. ¶ 22-after which the Saliers say they experienced “rapid and significant improvement.” Id. ¶¶ 22-26.

The Saliers brought this action against Walmart and Hy-Vee, seeking to recover damages under three theories:

First, the Saliers allege that defendants violated what the Saliers characterize as their “common law right to self-determination.” Id. ¶ 41. According to the Saliers, a “corollary of this right” is “the common law right of ‘every adult of sound mind to determine what shall be done with his own body.'” Id. (quoting Cornfeldt v. Tongen, 262 N.W.2d 684, 701 (Minn. 1977)). The Saliers allege that defendants' refusals to fill their prescriptions violated this right because defendants “had no reasonable medical or scientific basis for declining” to fill the prescriptions, “endangered” the Saliers' lives, “forced [the Saliers] to improvise a home remedy intended for horses,” and “chose to replace [Dr. James's] reasoned judgment and [the Saliers'] own reasoned decisionmaking” with “baseless political conclusions” (in Walmart's case) and “a one-size-fits-all corporate policy based on political fearmongering” (in Hy-Vee's case). Id. ¶¶ 40-49, 74-83.

Second, the Saliers allege that defendants intentionally inflicted emotional distress. Specifically, the Saliers allege that defendants committed extreme and outrageous conduct by substituting their “political judgments” (Walmart) and “corporate policy” (Hy-Vee) “for Dr. James' reasoned and qualified judgment at the risk of” the Saliers' life and health. Id. ¶¶ 53, 60-61, 87, 93-94. The Saliers further allege that the Walmart pharmacist's “paternalist and rude lecture to Karla Salier about how she was endangering William Salier's health despite her efforts to inform [Walmart] of how ill William Salier was” constituted extreme and outrageous conduct. Id. ¶¶ 62, 54.

Finally, the Saliers allege that defendants tortiously interfered with contract by impeding Dr. James's performance of her obligation to “provide [the Saliers] medical treatment to the best of her knowledge, skills, ability, and experience.” Id. ¶¶ 65, 70, 97, 102. The Saliers allege that defendants “intentionally procured the breach of that contract without justification by substituting” their “political and fear-driven conclusions” (Walmart) and “corporate policy” (Hy-Vee) “in place of Dr. James' knowledge, skills, ability, and experience” and by “denying Dr. James the ability to prescribe a legal medicine.” Id. ¶¶ 67, 72, 99, 104. As a result, the Saliers “lost the informed aid of Dr. James' assistance to obtain life-saving medicine” and “were forced to devise a home remedy that could have endangered [their] health.” Id. ¶¶ 68, 73, 100, 105.

Defendants have moved to dismiss the Saliers' claims under Fed.R.Civ.P. 12(b)(6). Defendants have also moved to dismiss the Saliers' claims under Minn. Stat. § 145.682, arguing that the Saliers failed to provide the expert-review affidavit required by that statute.

Outcome: Motion to dismiss granted.

Plaintiff's Experts:

Defendant's Experts:

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