CONCLUSION

For the aforementioned reasons, the Court finds that
Oncology has successfully established that it is entitled to
recover the outstanding balances in the amount of $121,490.96
from OFIMA. The Court finds that Oncology has failed to
establish that it has a valid written contract with OFIMA.
Although Oncology has successfully established all of the
elements of its unjust enrichment claim against OFIMA,
ordinarily, the determination of the reasonable value of
Oncology’s equitable claim would be better left to a jury to
decide. However, Oncology has demonstrated that it is entitled
to recover a definitive sum under its account stated theory of

recovery.

IT IS THEREFORE ORDERED that Plaintiff’s Motion for Summary
Judgment be, and the same hereby is, GRANTED. Defendant OFIMA

will pay to Plaintiff Oncology the sum of $121,490.96.

May 12, 2003 ENTER: ~~
ARLANDER KEYS——__)
United States Magistrate Judge

19



merchandise is not necessarily its reasonable value, citing North
American Lighting, Inc. v. Hopkins Mfg. Corp., 37 F.3d 1253, 1259
(7th Cir. 1994). But OFIMA’s reliance on North American Lighting
is misplaced.

The parties in North American Lighting called on the court
to determine the reasonable value of the use of a defective
machine by the purchaser from the time the machine was delivered
to the purchaser, to the time the purchaser rejected and returned
the machine. Id. The plaintiff sold a machine used to test
automotive light bulbs during their manufacture to the defendant.
Id. at 1255. The machine, however, provided measurements that at
times differed by more than 100% from the known value, and
consequently was of only limited use to the purchaser. Id.

After possessing the machine for about two years, the purchaser
returned the machine to the seller, and the court held that this
effected a proper revocation of acceptance. Id. at 1258-59. The
seller, however, counterclaimed on a theory of quantum meruit for
the reasonable lease value of the machine during the time that
the buyer possessed and used the machine. Id. at 1259. The
court remanded the case to the district court for consideration
of the appropriate rental value in light of the actual rental
payments made by other customers and other pertinent factors.

Id. Thus, this case does not establish that the reasonable value

of merchandise is different from the invoice or list price, since

13



that it and OFIMA are related business entities. OFIMA and
Eyecare have each introduced affidavits that state that they have
no common ownership, no common business, no common employees, and
no common shareholders, directors, or officers (Jennetten Aff. at
{| 3; Burke Aff. at %@ 4.) Further, Sharon Burke, M.D., president
of Eyecare and signatory to the contract, is not an owner,

employee, or agent of OFIMA. {Id. at 7 6.)

STANDARD OF REVIEW

The Court will grant summary judgment only if the pleadings
and supporting documents 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.” FeEp. R. Civ. P. 56(c) (2003). A
genuine issue of material fact exists if the “evidence is such
that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The moving party initially bears the burden of showing
that the record contains no genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court
will “construe all facts in the light most favorable to the non-
moving party and draw all reasonable and justifiable inferences
in favor of that party.” Shank v. William R. Hague, Inc., 192

F.3d 675, 681 (7th Cir. 1999).



AO 450(Rev. 5/85)Judgment in a Civil Case

United States District Court

Northern District of Hlinois
Eastern Division

Oncology Therapeutics Network JUDGMENT IN A CIVIL CASE
v. Case Number: 01 C 2079
Olympia Fields

o Jury Verdict. This action came before the Court for a trial by jury. The issues have been
tried and the jury rendered its verdict.

oO Decision by Court. This action came to trial or hearing before the Court. The issues
have been tried or heard and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that Plaintiff's Motion for Summary
Judgment against defendant Olympia Fields Internal Medicine Associates , S.C. d/b/a Horizon
Healthcare Associates, S.C. is granted. Judgment is entered in the amount of $121,490.96.

Michael W. Dobbins, Glerk of Court

Date: 5/12/2003 4A —J

Alicia Castillo, Deputy Clerk



at *4 (N.D. Ill. Sept. 25, 1995). Thus, unlike a quasi-
contractual theory based on the facts and circumstances of the
case, recovery by account stated seeks to enforce the intent of
the parties in the absence of an express contract’. This is an
implied in fact contract that seeks to enforce the intent of the
parties.

An account stated claim “is merely a form of proving damages
for the breach of a promise to pay on a contract.” Dreyer Med.
Clinic, S.C. v. Corral, 591 N.E.2d 111, 114 (I11. App. 2d Dist.
1992). Additionally, an account stated only determines the
amount of the debt, and does not itself create liability. Sexton
v. Brach, 464 N.E.2d 284, 286 (Ill. App. 3 Dist. 1984). “Assent
to an account stated may be shown by payment or part payment of
the balance,” as shown in a written statement. In re Marriage of

Angiuli, 480 N.E.2d 513, 518 (Ill. App. 2 Dist. 1985).

7 “[A}lthough there appears to be no Illinois decision in (sic)

point, it is generally well settled that an account stated may
include claims of indebtedness otherwise barred by the Statute of
Frauds.” Canadian Ace Brewing v. Swiftsure Beer Serv. Co., 149
N.E.2d 442, 450(111. App. 1958). However, Judge Shadur has
indicated that the Statute of Frauds may prevent a party from
prevailing on an account stated claim. MHR Corp. v. Robin, 687
F, supp. 1257 (N.D. Ill. 1988). The MHR Corp. case is readily
distinguishable from the instant case, however. In MHR, a seller
sought to enforce a potential purchaser’s alleged promise to buy
art. Id. at 1258. In support of its account stated claim, MHR
presented only an invoice it had sent to the purchaser. Id.
Conversely, in the instant case, OFIMA acknowledges ordering and
receiving the goods, made payments on the debt, and attempted to
establish a payment plan for the remainder of the debt. In
addition, Oncology successfully established the elements of
unjust enrichment, which the MHR seller was not able to do.

17



not introduced any evidence of a privity relationship between
OFIMA and Eyecare.

Instead, Oncology has introduced a statement made by Laura
Bennett, Financial Services Manager for Oncology, that “I was
informed that [OFIMA] had assumed all of the obligations of
Eyecare.” (Bennett Aff. Dec. 11, 2002 at 71 7.) Since this
statement is offered as an attempt to prove that OFIMA did, in
fact, assume Eyecare’s obligations, it is inadmissible hearsay
and may not be used to support Oncology’s position. FED. R. Evip.
801. If Oncology had direct, admissible evidence indicating that
OFIMA did assume Eyecare’s obligations, it was obligated to
produce this evidence in support of its motion for summary
judgment. Caisse Nationale de credit Agricole v. CBI Industries,
Inc. 90 F.3d 1264, 1270 (7%* Cir. 1996) (parties must “wheel out
all [of their] artillery ” at the summary judgment stage.)

Oncology attempts to rely upon indirect evidence to
establish the necessary privity between OFIMA and Eyecare. Ms.
Bennett’s affidavit states that OFIMA “made payments against the
outstanding balance under Eyecare’s accounts and ordered more
goods under that account.” (Bennett Aff. Dec. 11, 2002 at 9 7.)
However, Byecare has submitted an affidavit, uncontested by
Oncology, demonstrating that, although it had a purchase
agreement with Oncology, Eyecare never actually purchased

merchandise from Oncology and, therefore, had no outstanding


In a summary judgment proceeding, the Court will disregard
all facts not properly supported by the record. Brasic v.
Heinemann’s Inc., 121 F.3d 281, 284 (7th Cir. 1997). Once
properly supported, “all material facts set forth in the
statement required of the moving party will be deemed admitted
unless controverted by the statement of the opposing party.”
Loc. R. 56.1(b) (3) (B). Similarly, all material facts properly
supported in the opposing party’s Rule 56.1(b) (3) (B) statement
“will be deemed admitted unless controverted by the (reply)
statement of the moving party.” Loc. R. 56.1(a). Failing to
support one’s statement with a citation to the record is
equivalent to an admission of the other party’s factual
assertions. Garrison v. Burke, 165 F.3d 565, 567 (7th Cir.

1999).

Finally, to succeed on a motion for summary judgment, the
plaintiff must present admissible evidence to support the claim.
Haywood v. Lucent Technologies, Inc., 323 F.3d 524, 533 (7th Cir.
2003). “[H]earsay evidence is inadmissible in summary judgment
proceedings to the same extent that it is inadmissible ina
trial.” Eisenstadt v. Centel Corp., 113 F.3d 738 (7th Cir.

1997).



To survive summary judgment, the non-moving party must
present evidence that creates more than a “metaphysical doubt as
to the material facts.” Matsushita Elec. Indus., Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). Additionally, "mere
conclusory” allegations are inadequate. Nowak v. St. Rita High
School, 142 F.3d 999, 1002 (7th Cir. 1998). The non-moving party
will not survive summary judgment if it cannot present sufficient
evidence to support each element of its case on which it will

bear the burden of proof at trial. Celotex, 477 U.S. at 322.

Under Local Rule 56.1, the party moving for summary judgment
must submit a statement of material facts, written in short
numbered paragraphs with citations to admissible evidence. Smith
v. Lamz, 321 F.3d 680, 682 (7th Cir. 2003). The opposing party
must respond to each paragraph by either admitting or denying the
allegations and specifically citing to supporting materials
showing that there is a genuine factual dispute. Loc. R.
56.1(b) (3) (A). The opposing party may file a statement of
additional facts that would defeat summary judgment, using the
same form of numbered paragraphs with supporting citations. Loc.
R. 56.1(b) (3) (B). Finally, the moving party may file a reply to
any additional facts submitted by the opposing party. Loc. R.

56.1(a).


The invoices at issue in this case are dated between March
1, 2000 and May 11, 2000. Neither party has introduced any
evidence that OFIMA objected to these invoices prior to the
filing of this lawsuit. The fact that OFIMA did not object to
these invoices for a period exceeding a year is sufficient
evidence that OFIMA assented to the amount stated. In addition,
the fact that OFIMA has begun to make payments on the account
balance further demonstrates OFIMA’s intent to assume liability.
Consequently, OFIMA has implied its consent to purchase the
merchandise at the price stated in the invoices.

Therefore, OFIMA has implied its consent to purchase the
merchandise listed on the invoices for the stated prices, as well
as the finance charges, which totals $144,163.14. However, this
sum must be reduced by the payments previously made by OFIMA, in
the amount of $15,842.54. OFIMA has also introduced evidence of
credit memos issued by Oncology to offset the balance by an
additional $6,829.64. Although Oncology denies that OFIMA is
entitled to these credits, it has failed to present evidence
rebutting OFIMA’s submission of the credit memos. Thus, OFIMA
remains liable to Oncology for a total of $121,490.96. Summary

judgment is granted in favor of Oncology in this amount.



both “a sufficiently concrete expression of the essential terms
of the agreement” and a manifestation of intent to be bound by
that agreement. Ocean Atlantic Development Corp. v. Aurora
Christian Schools, Inc., 322 F.3d 983, 995 (7th Cir. 2003). Such
an agreement must be premised on the mutual assent of both
parties to the terms of the contract, or in other words, the
parties must have had “a meeting of the minds.” Academy Chicago
Publishers v. Cheever, 578 N.E.2d 981, 984 (Ill. 1991). The
obligations of a contract cannot be enforced against an entity
that is not a party to the contract. Fararo v. Sink, LLC, NO. 01
C 6956-57, 2002 WL 31687671, at *6 (N.D. Ill. Nov. 27, 2002).
Furthermore, in Illinois, contracts for the sale of goods in
excess of $500 must be in writing. 810 InL. Comp. Star. § 5/2-201
(West 2003); Cloud Corp. v. Hasbro, Inc., 314 F.3d 289 (7th Cir.
2002) (discussing the Illinois Statute of Frauds.)

In the case at bar, Oncology has not introduced any
admissible evidence to support the existence of a contract with
OFIMA that governs the sale of the merchandise at issue. Rather,
Oncology has introduced evidence of a contract that it entered
into with Eyecare. This contract was entered into by Sharon
Burke, president of Eyecare, and listed Eyecare’s business
address. This contract does not, however, contain any reference
to OFIMA, does not name any employees or owners of OFIMA, and

does not list OFIMA’s business address. Further, Oncology has


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Jud Sitting Judge if Other
noe Magistrate Judge Arlander Keys than Assigned Judge
CASE NUMBER 01 C 2079 DATE 5/12/2003
CASE Oncology Therapeutics Network vs. Olympia Fields Internal Medicine Associates et al.
TITLE :

of the motion being presented.]

[in the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

OFRCP4(m) OLocal Rule 41.1 COFRCP4I(a\(1) C1 FRCP41(a)(2).

(ld [For further detail see order attached to the original minute order.]

MOTION:

DOCKET ENTRY:

qd) oO Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due___.

(3) oO Answer brief to motion due___. Reply to answer brief due.

(C3) ao Ruling/Hearingon set fort

(5) Oo Status hearing[held/continued to] [set for/re-set for]on__—ssetfor___— at

(6) oO Pretrial conference[held/continued to] [set for/re-set for}on__——setfor_— sat.
(7) im) Trial{set for/re-set for]on___— at.

(8) Oo (Bench/Jury trial] [Hearing] held/continued to____at

(9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

cao) «= [Other docket entry] Memorandum Opinion and Order entered. Plaintiffs Motion for Summary
Judgment [#16] against Defendant Olympia Fields Internal Medicine Associates, S.C. d/b/a Horizon
Healthcare Associates, S.C., is granted. Judgment is entered in the amount of $121,490.96.

No notices required, advised in open court.
3

No notices required. mumber of notices.

/ | Notices mailed by judge’s staff.

Notified counsel by telephone. MAY 1 3 7003

te

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

$f12/2003

By SE deeag tees date mailed notice
courtroom , .

FI/ deputy’s a
initials —_—
Date/time received in

central Clerk’s Office mailing deputy initials



generally synonymous causes of action®. See Johnson v.
Gudmundsson, 35 F.3d 1104, 1114 n.7 (7th Cir. 1994). A quasi-
contractual claim is established where the defendant has unjustly
retained a benefit conferred by the plaintiff contrary to
“fundamental principles of justice, equity, and good conscience.”
HPI Health Care Serv., Inc. v. Mt. Vernon Hosp., 545 N.E.2d 672,
678 (Ill. 1989). Quasi-contractual recovery is independent of
any agreement between the parties or the intentions of the
parties, but rather is based on the surrounding facts and
circumstances. Century 21 Castles By King, Ltd. v. First Nat.
Bank of Western Springs, 524 N.E.2d 1222, 1225 (Ill. App. 2 Dist.
1988). “In fact, the intention of the parties is entirely
disregarded.” Village of Bloomingdale v. CDG Enterprises, Inc.,
752 N.E.2d 1090, 1102 (Ili. 2001).

Recovery on an unjust enrichment cause of action requires
that the plaintiff demonstrate that (1) it performed services,
(2) the benefit of these services was conferred upon the
defendant, and (3) it is unjust for the defendant to retain the

benefit without compensating the plaintiff. First Nat’l Bank of

5Recovery on a quantum meruit claim requires proof that (1) the
plaintiff performed a service of benefit to the defendant, (2)
the service was performed non-gratuitously, (3) the defendant
accepted the service, and (4) there was no contract that
prescribed the payment for the service. Owen Wagener & Co. Vv.
U.S. Bank, 697 N.E.2d 902, 908 (I11. 1998). However, because
quantum meruit focuses upon the provision of services, not goods,
the Court’s discussion will reference only unjust enrichment.

ll



balance for OFIMA to assume. Oncology does not attempt to
dispute this. Under these circumstances, Ms. Bennett’s affidavit
merely raises an inference that Oncology improperly attributed
OFIMA’s purchase orders to Eyecare’s accounts.

Because there is no evidentiary support for Oncology’s claim
that OFIMA assumed liability for Eyecare’s contracts generally,
or the Eyecare/Oncology account specifically,‘ the Court denies
Plaintiff’s Motion for Summary Judgment on Count I of its First
Amended Complaint.

2. Quasi-Contractual Theories

A quasi-contractual relationship may be implied in the
absence of an express contract between the parties under the
theories of unjust enrichment and quantum meruit. Ahn v. Midway

Mfg. Co., 965 F. Supp. 1134, 1140 (N.D. Ill. 1997). These are

‘The Court notes that each of the invoices at issue list the
customer’s name as OFIMA, give OFIMA’s address as the billing
address, and state “Customer No. 002346.” The credit agreement
between Eyecare and Oncology also has the number “002346”
handwritten across the top. The fact that the same number is
used on each of these documents is consistent with Ms. Bennett’s
statement that OFIMA ordered merchandise under Eyecare’s account.
However, there has not been any evidence submitted to show that
OFIMA intended to be bound by the terms of the contract entered
into by Eyecare, or even that OFIMA was aware of the contract
entered into by Eyecare. Therefore, while this evidence
indicates that a mistake may have been made on Oncology’s part,
it is simply not sufficient to hold OFIMA to the terms of Eyecare
and Oncology’s contract.


DISCUSSION

Oncology raises several alternate theories of liability
against OFIMA. First, Oncology asserts that OFIMA is in breach
of contract, and that, under the terms of this contract, Oncology
is entitled to interest charges and collection fees in addition
to the amount owed for merchandise. Next, and alternatively,
Oncology contends that it is entitled to recover under quasi-
contractual or implied~-in-law theories of recovery; specifically,
under theories of unjust enrichment and quantum meruit. Oncology
further requests that the Court permit Oncology to recover under
the theory of account stated, because the parties mutually
assented to the terms of the sales represented by the invoices.
Neither party disputes that OFIMA ordered and received the
merchandise from Oncology, and that, therefore, OFIMA is liable
to Oncology. Instead, the parties dispute the amount of this
liability’.
1. Breach of Contract

To recover under a breach of contract theory, Oncology must
first demonstrate the existence of a valid, enforceable contract.
Kellers Systems, Inc. v. Transport Int’l Pool, Inc., 172 F. Supp.

2a 992, 997 (N.D. Ill. 2001). An enforceable contract requires

> The substantive law of Illinois applies to this case, because
the case was brought in a federal district court in Illinois
pursuant to this Court’s diversity jurisdiction. ECHO, Inc. v.
Whitson, Co., Inc., 52 F.3d 702, 707 (7th Cir. 1995).


received invoices from Oncology for the merchandise and the
finance charges. (OFIMA Answer at 5, 6.) Further, OFIMA has
paid $15,842.54 towards the merchandise balance. Also, OFIMA has
introduced rebate vouchers for $6,829.64, which OFIMA states were
issued by Oncology toward the outstanding merchandise balance.
The evidence also indicates that Oncology and OFIMA attempted to
resolve this dispute by agreeing to a payment plan, which,

apparently, was unsuccessful.

Nevertheless, the evidence clearly demonstrates that OFIMA
has never entered into a written contract with Oncology. (Reply
to Statement of Add’l Uncontested Facts at 2; Jennetten Aff. at 1
4.) Oncology admits as much, but bases its contract claim upon
the contract it has with Eyecare. Eyecare entered into a written
credit contract with Oncology in March 1995. (Am. Compl. Ex. 1.
This contract stipulated that Eyecare would incur a finance
charge on invoices that were more than seventy-five days past due
at a rate of twelve percent per annum, and that, in the event of
default by Eyecare, Oncology would be entitled to reasonable
attorney’s fees and collection costs. (Id.) This agreement
listed Eyecare’s address as “2555 W. Lincoln Hwy.,” and was

signed by Eyecare’s president, Sharon Burke. (Id.)

Eyecare concedes that it entered into a contract with

Oncology, but denies ordering any goods from Oncology and denies


there was no list or invoice price established for the rental
value of the machine.

OFIMA claims that the reasonable value of the drugs it
received is lower than its list price, because the amount that
OFIMA is reimbursed for those drugs by insurance companies and
patient co-payments may be less than the list price of that drug.
OFIMA asserts that Oncology charged $78.50 for a unit of Anzemet
in January and February 2000, but that OFIMA only received $13.26
in total reimbursement from insurance companies and patient co-
payments. (Jennetten Aff. at § 12.) Further, OFIMA asserts that
“the amount that OFIMA recovered from [a] managed care program
for certain drugs sold by [Oncology] to OFIMA was less than the
price for the drug stated on the invoices.” (Id. at 7 13.)

Neither of these assertions is relevant to the determination
of the reasonable value of the merchandise at issue. None of the
submitted invoices list charges for a product named Anzemet, nor
do they contain any merchandise for a unit price of $78.50. The
invoices at issue are dated March 1, 2000, and later, such that
the amount charged by Oncology for different drugs in January and
February 2000 is not relevant to this dispute. Further, the
reasonable value of the merchandise must be considered with
respect to OFIMA, not a third party unrelated to the litigation.
The reasonable value to an insurance company or managed care

program would only be relevant if that company or program were

14


Telephone, Inc., No. 92 C 6131, 1994 WL 11663, at *2 (N.D. Ill.
Jan. 5, 1994) (prohibiting plaintiff from recovering under
multiple theories, noting that “the theories of breach of
contract, unjust enrichment, and account stated ‘are merely
different bases for a single recovery.’”) (quoting Ind. Harbor
Belt RR Co. v. American Cyanamid Co., 860 F.2d 1441, 1445 (7*
Cir. 1988)).

3. Account Stated

“An account stated is an agreement between parties who have
previously conducted monetary transactions that the account
representing the transactions between them is true, and that the
balance is accurate, together with a promise to pay such
balance.” Toth v. Mansell, 566 N.E.2d 730, 734 (Ill. App. 1
Dist. 1990). The parties’ agreement must be a manifestation of
their mutual assent. Protestant Hospital Builders Club, Inc. v.
Goedde, 424 N.E.2d 1302, 1306 (Ill. App. 5 Dist. 1981).

An account stated claim may arise where one party renders a
statement of the account to the other, and the receiving party
does not object to the statement within a reasonable period of
time. Allied Wire Products, Inc. v. Marketing Techniques, Inc.,
424 N.E.2d 1288, 1296-97 (Ill. App. 1 Dist. 1981). By retaining
the statement without objection, the debtor and creditor are
deemed to have had a meeting of the minds as to the amount owed.

Eastman Kodak Co v. [-KxX-Ray, Ltd, No. 94 C 3281, 1995 WL 571460,

16



Illinois, at 2605 West Lincoln Highway in Olympia Fields.
(OFIMA’s Resp. at 2.) Eyecare is an ophthalmology medical
practice with its principal place of business in Illinois,
located at 2555 West Lincoln Highway in Olympia Fields.

(Oncology’s Statement of Facts at 2.)

Oncology claims that OFIMA and Eyecare failed to pay for
pharmaceuticals ordered by and delivered to OFIMA. Oncology
presents twenty-three invoices for merchandise that it has
shipped, but for which it has not received payment in full, as
well as seven invoices for finance charges related to the unpaid
invoices.’ (Mot. Sum. J. Ex. 2.) Each of these invoices states
that the customer is “Olympia Fields Internal Med.,” and lists
the customer’s address as “2605 W. Lincoln Hwy. #130” in Olympia
Fields, Illinois. (Id.) The invoices for merchandise total
$135,401.95, and the invoices for finance charges total

$9,765.85.? (Id.)

OFIMA acknowledges that it ordered merchandise from

Oncology, that it accepted merchandise from Oncology, and that it

1 Oncology states that there are thirty-one invoices at issue.
(Bennett Aff. at 9 3). However, the Court finds only thirty
invoices in the parties’ submissions. (Mot. Sum. J. Ex. 2.)

?Plaintiff has submitted its invoices in such a way that the last
digit(s) on many of the amounts due are not legible. As such, the
final award could be off by an amount that would not exceed
$0.900.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ONCOLOGY THERAPEUTICS NETWORK
JOINT VENTURE, L.P.,

Plaintiff,

v. Case No. 01 C 2079
OLYMPIA FIELDS INTERNAL MEDICINE
ASSOCIATES, S.C. (INC.) d/b/a HORIZON
HEALTHCARE ASSOCIATES, S.C. and
OLYMPIA FIELDS EYECARE, LTD.,

Magistrate Judge
Arlander Keys” "+

weve vevevvevevwvwve es

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff, Oncology Therapeutics Network Joint Ventpare?” LP.

(“Oncology”), moves this Court for Summary Judgment” pursuant to
Rule 56(c) of the Federal Rules of Civil Procedure. Defendant
Olympia Fields Eyecare, Ltd. (“Eyecare”) has filed a Motion to
Dismiss, which the Court will address in a separate order. For

the reasons set forth below, the Court grants Plaintiff’s Motion
for Summary Judgment against defendant Olympia Fields Internal

Medicine Associates, S.C. d/b/a Horizon Healthcare Associates,

S.C. (“OFIMA”), under the theory of account stated.

FACTS
Oncology is a Delaware limited partnership, based in
California, that manufactures and sells pharmaceuticals used in
the treatment of cancer. (Plaintiff’s Memo at 1.) OFIMA is a

general medical practice with its principal place of business in 0)



Springfield v. Malpractice Research, Inc., 688 N.E.2d 1179, 1185
(Ill. 1997). Under quasi-contractual theories of recovery, the
plaintiff is entitled to recover an amount that is “‘just.’”
Midcoast Aviation, Inc. v. General Elec. Credit Corp., 907 F.2a
732, 745 (7th Cir. 1990). This is the lower of either the amount
that the defendant was unjustly enriched by, or the economic cost
to the plaintiff of providing the benefit to the defendant. Id.
Oncology has established all of the elements of its unjust
enrichment claim against OFIMA. OFIMA does not contest that
Oncology conferred a benefit on OPIMA by shipping merchandise to
OFIMA, and that OFIMA has not compensated Oncology for this
benefit. It would certainly be unjust for OFIMA not to
compensate Oncology for this merchandise. OFIMA recognizes that
it owes a debt to Oncology, and has, in fact, made payments on
these invoices to Oncology. Additionally, OFIMA does not allege
that the merchandise was shipped gratuitously by Oncology, and
neither party has introduced sufficient evidence to demonstrate
that there is a valid contract that governs the shipment of this
merchandise. Thus, the only actual dispute is the “just” or
“reasonable” amount of recovery to which Oncology is entitled.
Oncology insists, of course, that its list price for the
merchandise ordered and received by OFIMA is the ideal starting
point for determining the reasonable value of the goods in

question. OFIMA counters that the list or invoice price of

12


itself a defendant in an unjust enrichment action. The amount
that a health care provider recovers from an insurance company or
patient could be influenced by numerous factors unrelated to this
dispute and consequently has no bearing on the outcome.

Finally, OFIMA asserts that the determination of the
reasonable value in a quasi-contractual claim is purely a
question of fact, thereby rendering such a claim inappropriate
for decision on summary judgment, citing Ellis v. Photo America
Corp., 447 N.E.2d 852, 857 (Ill. App. 1 Dist. 1983). Although the
Court disagrees that the Ellis case is directly on point, the
Court agrees that determining “just” compensation under the
equitable doctrine of unjust enrichment frequently requires
consideration of numerous factual issues not presently before the
Court®. The Court need not resolve this dilemna, however,
because Oncology’s recovery can be readily determined under its

account stated theory of recovery. Shintom America, Inc. v. Car

° Oncology insists that the reasonable value of its recovery is
the invoice price of the merchandise ordered and received by
OPIMA. However, the just or reasonable value for recovery under
unjust enrichment is evaluated without reference to the intent of
the parties. It is determined according to the facts and
circumstances of the case as necessary to effect a just
compensation. The reasonable value may be the amount of the
benefit conferred upon OFIMA, or it may be the economic cost to
Oncology to produce the merchandise. Determination of these
amounts may require evaluation, for instance, of the usual and
customary charges, or market price, for this merchandise. The
determination would also possibly require determination of
Oncology’s costs to manufacture the merchandise. The guidelines
for recovery under Oncology’s account stated claim are much more
clear cut.