IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

MICHELLE HAYWOOD, )

)

Plaintiff, )

)

vs. ) No. 2:15-CV-373

)

NOVARTIS PHARMACEUTICALS )

CORP., )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court on the Defendant’s Motion to

Dismiss Plaintiff’s Complaint, filed by the defendant, Novartis

Pharmaceuticals Corporation, on November 2, 2015. (DE #14.) For

the reasons set forth below, the motion to dismiss is GRANTED. 

However, the complaint is DISMISSED WITHOUT PREJUDICE, and the

plaintiff, Michelle Haywood, is GRANTED thirty days from the date

of this Order to amend her complaint should she so choose.

BACKGROUND

Plaintiff, Michelle Haywood (“Haywood”), filed her complaint

in state court on August 13, 2015. (DE #4.) The complaint

brings claims for negligence, negligent training and supervision,

and public disclosure of private facts; it also lists “punitive

damages” as a separate count. (Id.) The defendant, Novartis
Pharmaceuticals Corporation (“Novartis”), removed the matter to

this Court on the basis of diversity jurisdiction on September

28, 2015. (DE #1.) On November 2, 2015, Novartis filed the

instant motion to dismiss. (DE #14.) On November 14, 2015,

Haywood filed her response in opposition to that motion. (DE

#16.) Novartis filed its reply on December 1, 2015. (DE #19.) 

The motion is thus ripe for adjudication. 

DISCUSSION

Facts

 At the time of the alleged incident, Novartis was a

prescription medication provider to Haywood. (DE #1, p. 1.) 

According to Haywood, on July 8, 2015, Novartis faxed protected

health information about Haywood’s disease, treatment, and

medical providers to Haywood’s co-workers. (Id.) The fax also

included personal information such as Haywood’s social security

number, date of birth, and Medicare number. (Id. at 1-2.) Prior

to that time, Haywood had explicitly told Novartis in writing not

to disclose her information to her place of employment via

facsimile. (Id. at 2.) Haywood alleges that Novartis acted

negligently and/or with reckless indifference when it did so. 

Count One alleges that Novartis was negligent when it

“breached its statutory and common law duties of confidentiality

and privacy” to Haywood. (Id.) She states that, “[a]s a

2
provider of pharmaceutical services, [Novartis] owes a nondelegable duty to its customers to protect the privacy and

confidentiality of their Protected Health Information and

personal information.” (Id.) Count Two alleges that Novartis

was negligent in its training and supervision of its employees

with regard to the protection of customer privacy and

confidentiality, and Haywood also claims that Novartis breached

its duty to her in the supervision of its employees. (Id. at 2-

3.) Count Three alleges that, “[b]y publicizing [Haywood’s]

disease to her co-workers and supervisors, Novartis committed the

common law tort of Public Disclosure of Private Facts.” (Id. at

3.) Count Four requests punitive damages based on the

aforementioned acts allegedly committed by Novartis because it

“acted with reckless indifference” with regard to Haywood’s

injuries. (Id. at 3-4.) 

Analysis

As an initial matter, the Court notes that the parties

disagree as to which standard should be applied when evaluating

the complaint’s sufficiency. Novartis argues that the Court

should apply Federal Rule of Civil Procedure 12(b)(6), while

Haywood argues that Indiana’s notice pleading requirements apply. 

The Court agrees with Novartis. The Federal Rules of Civil

Procedure “apply to a civil action after it is removed from a

3
state court.” Fed.R.Civ.P. 81(c)(1). The Supreme Court has

acknowledged as much, stating “once a case has been removed to

federal court, it is settled that federal rather than state law

governs the future course of proceedings, notwithstanding state

court orders issued prior to removal.” Granny Goose Foods, Inc.

v. Bhd. of Teamsters and Auto Truck Drivers Loc. No. 70 of

Alameda Cnty., 415 U.S. 423, 437 (1974); see also Johnson v.

Hondo, Inc., 125 F.3d 408, 417 (7th Cir. 1997) (“it is

rudimentary that pleading requirements in the federal courts are

governed by the federal rules and not by the practice of the

courts in the state in which the federal court happens to be

sitting”) (internal quotations marks and citations omitted).1

However, “when the federal standards are heightened over state

standards, it is appropriate for the court to order dismissal

with the opportunity to replead rather than to dismiss the

complaint altogether.” Stuhlmacher v. Home Depot U.S.A., Inc.,

No. 2:10-CV-467, 2011 WL 1792853, at *4 (N.D. Ind. May 11, 2011).

In evaluating a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6), a court must accept all facts alleged

in the complaint as true and draw all reasonable inferences in

1

 That said, although federal law supplies the standards to be considered in

determining whether the complaint states claims upon which relief may be

granted, Indiana law provides the choice of law rules. See Sheldon v.

Munford, Inc., 660 F.Supp. 130, 133 n. 1 (N.D. Ind. 1987). Where, as here,

the alleged injury occurred in Indiana, Indiana substantive law applies. See

Cox by Zick v. Nichols, 690 N.E.2d 750, 752 (Ind. Ct. App. 1998).

4
the light most favorable to the plaintiff. Johnson v. Rivera,

272 F.3d 519, 520 (7th Cir. 2001). A complaint is not required

to contain detailed factual allegations; however, the plaintiff

must allege facts that state a claim to relief that is plausible

on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is

not enough that there might be some conceivable set of facts that

entitle the plaintiff to relief. Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 553-56 (2007). The plaintiff’s obligation

“requires more than labels and conclusions. . . .” Id. at 555. 

The Supreme Court has provided that “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Iqbal, 556 U.S. at 678. 

When reviewing a motion to dismiss, “a court may consider,

in addition to the allegations set forth in the complaint itself,

documents that are attached to the complaint, documents that are

central to the complaint and are referred to in it, and

information that is properly subject to judicial notice.” 

Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013). 

However, “[w]hen a party presents materials that are not attached

to or referred to in the complaint, the court has discretion to

exclude the materials or to consider the materials and convert

the motion to dismiss to a motion for summary judgment.” U.S. v.

Sullivan, No. 10-CR-821-1, 2016 WL 1626622, at *4 (N.D. Ill. Apr.

21, 2016) (citing Fed.R.Civ.P. 12(d)); see also Hecker v. Deere &

5
Co., 556 F.3d 575, 583 (7th Cir. 2009) (“district court acted

within its discretion when it chose not to convert the

defendants’ motion under Rule 12(b)(6) to a motion for summary

judgment”).

Counts One and Two - Negligence and Negligent Training and

Supervision

Novartis argues that Counts One and Two fail as a matter of

law because Haywood has not properly alleged that Novartis owed

her a legal duty. In response, Haywood asserts that Novartis

owed her “multiple duties” based on representations on its

website and in its marketing materials, based on a statutory duty

under Indiana Code section 25-26-13-15(b), and based on the

Health Insurance Portability and Accountability Act (“HIPPA”). 

In Indiana, “the tort of negligence is comprised of three

elements: (1) a duty on the part of defendant in relation to the

plaintiff; (2) the defendant’s breach of that duty; and (3) an

injury to the plaintiff resulting from that failure.” Kolozsvari

v. Doe, 943 N.E.2d 823, 826-27 (Ind. Ct. App. 2011) (citing

Miller v. Griesel, 308 N.E.2d 701, 706 (Ind. 1974)). “A duty to

exercise care arises as a matter of law out of some relation

existing between the parties, and it is the province of the court

to determine whether such a relation gives rise to such duty.”

Id. at 827 (internal quotation marks and citation omitted). 

6
“Absent a duty, there can be no breach of duty and thus no

negligence or liability based upon the breach.” Peters v.

Forster, 804 N.E.2d 736, 738 (Ind. 2004). In general, Indiana

courts consider three factors when determining whether a duty

exists: “(1) the relationship between the plaintiff and

defendant; (2) the reasonable foreseeability of harm to the

person injured by the defendant’s conduct; and (3) public policy

concerns.” Houser v. Kaufman, 972 N.E.2d 927, 938 (Ind. Ct. App.

2012). This inquiry is case specific. Id. Furthermore, a claim

for negligent supervision and training must be analyzed pursuant

to the doctrine of respondeat superior, and the court has

“observe[d] that for respondeat liability to attach, there must

also be underlying liability of the acting party.” Walgreen Co.

v. Hinchy, 21 N.E.3d 99, 109 (Ind. Ct. App. 2014).

Here, Haywood’s complaint simply alleges that, as a

“provider of pharmaceutical services,” Novartis owes a “nondelegable duty to its customers.” In order to bolster its

argument that such an allegation is insufficient to establish the

existence of a duty, Novartis asks this Court to take judicial

notice of the facts that “Novartis researches, manufactures,

markets, and sells pharmaceuticals” and is “prohibited from

selling its prescription drugs directly to patients.” See In re

Novartis Wage and Hour Litig., 611 F.3d 141, 144 (2d Cir. 2010),

abrogated by Christopher v. SmithKline Beecham Corp., 132 S. Ct.

7
2156 (2012). The Court need not determine whether taking

judicial notice of such facts is proper because it is clear that

Haywood’s complaint is insufficient on its face.2

 While Haywood

now argues that Novartis owed her a duty based on representations

communicated via its website and marketing materials, such

allegations are wholly lacking in her complaint. In determining

whether dismissal is appropriate under Rule 12(b)(6), the Court

declines to consider language from Novartis’ website because, as

it stands, such material is neither central to the complaint nor

referred to in it. See Williamson, 714 F.3d at 436. 

Furthermore, Haywood may not amend her complaint through her

brief in opposition to Novartis’ motion to dismiss. Agnew v.

Nat'l Collegiate Athletic Ass’n, 683 F.3d 328, 348 (7th Cir.

2012) (citing Thomason v. Nachtrieb, 888 F.2d 1202, 1205 (7th

Cir. 1989)). The Court agrees with Novartis that without

additional factual assertions regarding the applicability of the

referenced privacy policies to the allegedly negligent

communications, Haywood’s claims in Counts One and Two are not

plausible because they consist of little more than threadbare

recitals of the required elements. See Iqbal, 556 U.S. at 678. 

2

 See Ennenga v. Starns, 677 F.3d 766, 773-74 (7th Cir. 2012) (“A court may

take judicial notice of facts that are (1) not subject to reasonable dispute

and (2) either generally known within the territorial jurisdiction or capable

of accurate and ready determination through sources whose accuracy cannot be

questioned.”); see also Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th

Cir. 1994) (finding public court documents judicially noticeable).

8
The same rings true of Haywood’s arguments regarding

negligence per se under the Indiana Code and/or HIPPA. While it

is true that Indiana courts have recognized negligence for

statutory violations,3 Haywood’s complaint is silent regarding

the existence and/or applicability of any particular statute. As

this Court has noted previously:

‘When a civil tort action is premised upon

violation of a duty imposed by statute, the

initial question to be determined by the

court is whether the statute in question

confers a private right of action.’ Right

Reason Publ’ns v. Silva, 691 N.E.2d 1347,

1352 (Ind. Ct. App. 1998) (quotation

omitted); see also Dawson by Dawson v. Long,

546 N.E.2d 1265, 1268 (Ind. Ct. App. 1989)

(holding in order for the violation of a

statute or ordinance to be negligence per se,

the trier of fact must first determine

whether the statute is applicable). In this

case, it is impossible to determine if the

ordinance was designed or enacted to protect

the class of persons in which [the plaintiff]

is included against the risk of the type of

harm which in fact occurred, because she

fails to specify the regulation or ordinance

which was allegedly violated. Notice

pleading requirements suggest that [the

plaintiff] must plead the specific statute on

which she bases her claim for negligence per

se. See Bell Atlantic, 127 S.Ct. at 1964-65

(holding the complaint must describe a claim

in sufficient detail to give defendant fair

notice of what the claim is and the grounds

upon which it rests). Here, where [the

plaintiff] is bringing a claim based upon

specific statutes, regulations, or

ordinances, it logically follows that she

must plead the statute(s) upon which the

claim is based. As the Court found in

3

 See Kho v. Pennington, 875 N.E.2d 208, 212 (Ind. 2007) (citing cases).

9
granting a motion to dismiss where the

complaint failed to identify a specific

statute that supported a claim of negligence

per se in Holler v. Cinemark USA, Inc., 185

F.Supp.2d 1242, 1244 (D. Kan. 2002),

‘plaintiff’s generic complaint that defendant

violated unspecified ‘local, state and

federal statutes, guidelines and regulations’

does not provide fair notice of his claim.’

Similarly, because [the plaintiff] has failed

to identify a specific statute, regulation,

or ordinance to support her claim of

negligence per se, [the defendants] do not

have fair notice of the claim, and it should

be dismissed pursuant to Federal Rule of

Civil Procedure 12(b)(6).

Chappey v. Ineos USA LLC, No. 2:08-CV-271, 2009 WL 790194, at *2-

3 (N.D. Ind. Mar. 23, 2009). Because Haywood’s complaint neither

identifies a statute nor alleges any facts regarding the breach

of a particular statute, any possible claims of negligence per se

under the Indiana Code and/or HIPPA are dismissed. 

Count Three - Public Disclosure of Private Facts

Novartis argues that Haywood’s claim for public disclosure

of private facts fails as a matter of law because the tort is not

recognized in Indiana, and, even if it was, that she has not

properly alleged the disclosed information was “private” or

“publically disclosed.” In response, Haywood argues that

“Indiana recognizes public disclosure of private facts as an

actionable tort, and it has been sufficiently pleaded in this

complaint under a notice standard.” 

10
The term “invasion of privacy” encompasses “four distinct

inquiries: 1) intrusion upon seclusion, 2) appropriation of name

or likeness, 3) public disclosure of private facts, and 4)

false-light publicity.” Doe v. Methodist Hospital, 690 N.E.2d

681, 684 (Ind. 1997). As to the public disclosure of private

facts, the Second Restatement provides that the tort “occurs when

a person gives ‘publicity’ to a matter that concerns the ‘private

life’ of another, a matter that would be ‘highly offensive’ to a

reasonable person and that is not of legitimate public concern.” 

Id. at 692 (quoting Restatement (Second) of Torts § 652D). As a

more general matter, however, a plurality of the Indiana Supreme

Court has expressed deep concern over the constitutionality of

the tort because it “serves as an alternative for truthful

defamation,” which is forbidden by the Indiana Bill of Rights. 

Doe, 690 N.E.2d at 687. In a recent concurring opinion, the

Honorable Terry A. Crone described the history of the tort in

Indiana as follows: 

In Doe v. Methodist Hospital, 690 N.E.2d 681,

682 (Ind. 1997), a plurality of our supreme

court ‘decline[d] to recognize’ the tort,

notwithstanding the insistence of two

justices that ‘[f]or almost half a century,

Indiana courts have clearly recognized the

common law tort of invasion of privacy,

including the unwarranted public disclosure

of private matters.’ Id. at 694 (Dickson,

J., joined by Sullivan, J., concurring in

result). Four years later, in Felsher v.

University of Evansville, 755 N.E.2d 589, 593

(Ind. 2001), a unanimous supreme court

11
essentially characterized the Doe plurality’s

view as a majority holding: ‘Our discussion

of [the history of the privacy tort] and the

Second Restatement served as a prelude to our

decision not to recognize a branch of the

tort involving the public disclosure of

private facts.’ More recently, in

Westminster Presbyterian Church of Muncie v.

Cheng, 992 N.E.2d 859, 868 (Ind. Ct. App.

2013), trans. denied (2014), another panel of

this Court cited Doe in stating that ‘public

disclosure of private facts is not a

recognized cause of action in Indiana,’ and

our supreme court denied transfer in that

case. In sum, since Felsher was decided in

2001, our state’s highest court has acted as

if public disclosure of private facts is not

a valid cause of action in Indiana, even

though a majority of the court has not so

held. Although neither Doe nor Felsher is

binding precedent on this point, I am not

inclined to rock this particular boat.

Consequently, I would affirm summary judgment

in favor of the Trustees on Robbins’s

invasion of privacy claim on the basis that

they cannot be held vicariously liable for a

nonexistent tort.

Robbins v. Tr. of Ind. U., 45 N.E.3d 1, 13 (Ind. Ct. App. 2015)

(Crone, J., concurring in part and concurring in result in part

with separate opinion) (footnote omitted).

Putting aside questions of the availability of the tort in

general, the Court agrees with Novartis that, even if the tort

currently exists in Indiana, Haywood has not sufficiently stated

a claim. For example, Haywood simply alleges that Novartis faxed

her protected health information to her co-workers and

supervisors. She does not provide any detail as to who, if

anyone, actually viewed the information. Such a conclusory

12
allegation is insufficient with regard to the publicity element. 

See, e.g., Brown v. Wabash Nat. Corp., 293 F. Supp. 2d 903, 905

(N.D. Ind. 2003) (the plaintiff’s allegations that the defendant

put his private information on a “shared network drive” did not

meet the threshold necessary to state a claim); see also J.H. v.

St. Vincent Hosp. and Health Care Ctr., Inc., 19 N.E.3d 811, 815

(Ind. Ct. App. 2014) (“a communication to a single person or to a

small group of persons is not actionable because the publicity

element requires communication to the public at large or to so

many persons that the matter is substantially certain to become

one of public knowledge”) (internal quotation marks and citations

omitted); Munsell v. Hambright, 776 N.E.2d 1272, 1282 (Ind. Ct.

App. 2002) (same, noting that the “[r]elease of information to

even two co-workers does not satisfy the publicity requirement”);

Dietz v. Finlay Fine Jewelry Corp., 754 N.E.2d 958, 966-67 (Ind.

Ct. App. 2001) (acknowledging that a few courts outside of

Indiana have adopted a “looser definition of publicity” when

facts are disclosed to a “particular public” with a special

relationship to the plaintiff, but finding that there was no

evidence that such a relationship existed with either of the

people who viewed the disclosed information). Here, not only has

Haywood failed to allege any details regarding the extent of the

disclosure, but she has also failed to address the arguments

presented by Novartis with regard to the issue. Failure to

13
respond to an argument results in waiver. See e.g., Bonte v.

U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010). Accordingly,

Count Three of the complaint is dismissed. 

While the Court has determined that Haywood’s current

complaint fails to state any claim, the procedural posture of

this case makes it appropriate to order dismissal with the

opportunity to replead rather than outright dismissal with

prejudice. See Stuhlmacher, 2011 WL 1792853, at *4.

 

CONCLUSION

For the aforementioned reasons, the motion to dismiss filed

by the defendant, Novartis Pharmaceuticals Corporation (DE #14)

is GRANTED. However, the complaint is DISMISSED WITHOUT

PREJUDICE, and the plaintiff, Michelle Haywood, is GRANTED thirty

days from the date of this Order to amend her complaint should

she so choose.

DATED: September 27, 2016 /s/ RUDY LOZANO, Judge

United States District Court

14