UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SURESHKUMAR DAKSHINAMOORTHY,

Plaintiff,

v.

NATIONAL ASSOCIATION OF BOARDS OF

PHARMACY and CARMEN CATIZONE,

Defendants. /

Case No. 09-11129

Honorable John Corbett O’Meara

MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

This matter came before the court on defendants National Association of Boards of Pharmacy

and Carmen Catizone's October 20, 2010 motion for summary judgment. Plaintiff Suresh

Dakshinamoorthy filed a response December 3, 2010; and Defendants filed a reply December 16,

2010. Oral argument was heard January 5, 2011.

BACKGROUND FACTS

This lawsuit arises out of a decision by defendant National Association of Boards of Pharmacy

("NABP") to invalidate Plaintiff’s test score on the North American Pharmacist Licensure

Examination (“NAPLEX”). Plaintiff had taken the test twice before. On the June 20, 2006 test, he

scored 27. On the December 22, 2006 test, he scored 24. The third time he took the test, on June

12, 2007, he scored a nearly perfect 130. A passing score is 75 out of a possible 150.

Based on information it received from Plaintiff’s brother-in-law, who claimed to have heard

from other family members that Plaintiff had had another person take pharmacy related exams for

him, defendant NABP initiated an investigation. Defendant Prometric, the exam administrator who

is no longer party to this suit, takes pictures of persons sitting for each NAPLEX test, takes their

fingerprints, and video tapes the testing itself. Therefore, NABP asked Prometric for these materials

as part of its investigation.

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The fingerprints were blurry, and the videotapes were stored for only 30 days before being

taped over. However, Prometric provided NABP with pictures of Plaintiff from the three exams.

The picture from the third exam did not match the first two. Ultimately, however, it was determined

that Prometric gave NABP the wrong picture; and, in fact, there was a picture of Plaintiff that

matched the first two.

Following its investigation, NABP informed Plaintiff on March 14, 2008, that it could not

verify that he was the person who sat for the June 12, 2007 exam and invalidated his score. On

March 20, 2008, the Michigan Board of Pharmacy’s Disciplinary Subcommittee filed an

administrative complaint to determine whether disciplinary action should be taken against Plaintiff.

At an administrative hearing on April 15, 2008, the Department of Attorney General recommended

that the administrative complaint be dismissed on the grounds that the invalidation turned out to be

based upon mere speculation and conjecture. The administrative complaint was dismissed June 27,

2008. The State of Michigan had reinstated Plaintiff's license April 15, 2008.

In spite of the dismissal, NABP sent another letter to Plaintiff July 15, 2008, acknowledging

the Board’s reinstatement of his pharmacist license but also stating, “NABP still cannot verify the

Mr. Dakshinamoorthy passed the June 12, 2007 NAPLEX on his own merits. Accordingly, NABP

affirms its invalidation of the score.” Defendants' Ex. 6.

Plaintiff filed suit in Macomb County, and the action was removed by Defendants on the basis

of diversity of citizenship. Plaintiff is seeking $2.1 million in damages. Plaintiff alleges that

NABP’s decision to invalidate his test score was improper and that the March 14 and July 15 letters

were defamatory. The complaint alleges four causes of action against all the defendants: Count I,

negligence; Count II, intentional infliction of emotional distress; Count III, breach of contract; and

Count IV, libel and defamation. The only remaining defendants are NABP and Carmen Catizone,

as the other defendants have been dismissed either by the court or by stipulation of the parties.

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LAW AND ANALYSIS

Defendants argue that they are entitled to summary judgment on all claims based on civil

immunity under Michigan law. Pursuant to Section 333.16244 of Michigan Compiled Laws, the

statute provides immunity from civil or criminal liability to “a person . . . acting in good faith who

makes a report; assists in originating, investigating, or preparing a report; or assists a board or task

force, a disciplinary subcommittee, a hearings examiner, the committee, or the department in

carrying out its duties under this article . . . .” Any person acting in that manner “is immune from

civil or criminal liability including, but not limited to, liability in a civil action for damages . . . .”

Under the statute, a person whose acts are covered by this provision “is presumed to have acted in

good faith.” Section 333.16244 applies to Article 15 of Michigan’s Compiled Laws which covers

health professionals, including pharmacists.

In this case all of NABP and Catizone’s actions that form the basis of Plaintiff’s complaint

were done pursuant to the contract between the Michigan Board of Pharmacy and NABP to provide

for licensure testing for pharmacists in the State of Michigan. Thus, the state has extended immunity

to any party taking actions with regard to a pharmacist’s licensing. On this basis alone, Defendants

are entitled to summary judgment.

Even if the Michigan statute were found not to be dispositive, Defendants would be entitled

to summary judgment on Plainitff's claim for intentional infliction of emotional distress. In order

to establish such a claim, a plaintiff must prove; 1) extreme and outrageous conduct; 2) intent or

recklessness; 3) causation; and 4) severe emotional distress. Haley v. Allstate Ins. Co., 686 N.W.2d

273, 276 (Mich. Ct. App. 2004).

In this case there is no evidence that the conduct complained of is “so outrageous in character,

and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious and utterly intolerable in a civilized community.” Id. at 276.

Defendants would also be entitled to summary judgment on Plaintiff's breach of contract claim

as a third-party beneficiary based on the contract between NABP and the State of Michigan.

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Plaintiff alleges that he is a third-party beneficiary to the contract between NABP and the State of

Michigan and is therefore entitled to damages as a result of NABP’s alleged breach. Michigan law

draws a distinction between intended third-party beneficiaries who may sue for breach and incidental

third-party beneficiaries who may not. Brunsell v. City of Zeeland, 651 N.W.2d 388, 390 (Mich.

2002) (discussing Mich. Comp. Laws Ann. § 600.1405).

Simply stated, section 1405 does not empower just any person who benefits from a

contract to enforce it. Rather, it states that a person is a third-party beneficiary of a

contract only when the promisor undertakes an obligation ‘directly’ to or for the

person. This language indicates the Legislature’s intent to assure that contracting

parties are clearly aware that the scope of their contractual undertakings

encompasses a third party, directly referred to in the contract, before the third party

is able to enforce the contract.

[A] third party beneficiary may be a member of a class, but the class must be

sufficiently described. This follows ineluctable from subsection 1405(1)’s

requirement that an obligation be undertaken directly for a person to confer thirdparty beneficiary status . . . . The rationale would appear to be that a contracting

party can only be held to have knowingly undertaken an obligation directly for the

benefit of a class of persons if the class is reasonably identified. Further, in

undertaking this analysis, an objective standard is to be used to determine from the

contract itself whether the promisor undertook ‘to give or to do or to refrain from

doing something directly to or for’ the putative third-party beneficiary.’

Id. at 390-91.

In this case, Plaintiff is merely an incidental beneficiary to the Board contract, as the contract

was primarily for the benefit of the NABP and the Michigan Board, as well as the people of the State

of Michigan, to ensure that state-licensed pharmacists have some level of competence.

Finally, Defendants would also be entitled to summary judgment on Plaintiff's defamation

claim. In order to establish a prima facie case of defamation, a plaintiff must show the following:

“(1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged communication

to a third party; (3) fault amounting to at least negligence on the part of the publisher; (4) either

actionability of the statement irrespective of special harm or the existence of special harm caused

by publication.” Dadd v. Mount Hope Church, 780 N.W.2d 763, 765-66 (Mich. 2010).

Plaintiff cannot meet his burden in this case because the statements made by NABP and

Catizone were not false when they were made; the statements were privileged; and Plaintiff cannot

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establish that they were published with actual malice. The statements made in the letters are not

false. Defendants’ Ex. 5, March 14, 2008 letter; Ex. 6, July 15, 2008 letter. Although it is true that

in the second letter defendant NABP could have stated that the initial photograph identification was

incorrect, that is an omission, not a false, published statement.

ORDER

It is hereby ORDERED that Defendants' October 20, 2010 motion for summary judgment is

GRANTED.

It is further ORDERED that Defendants' December 16, 2010 motion to strike is DENIED AS

MOOT.

s/John Corbett O'Meara 

United States District Judge

Date: April 13, 2011

I hereby certify that a copy of the foregoing document was served upon counsel of record on

this date, April 13, 2011, using the ECF system.

s/William Barkholz 

Case Manager

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