Joseph L. Fink III, BSPharm, JD
A pharmacists filed suit against the National Association Boards of Pharmacy on the grounds that his test scores were wrongfully invalidated.
Issue of the Case
Following the invalidation of scores from an administration of the pharmacy licensure examination, the individual seeking to use those scores for licensure filed suit against a number of parties involved in the preparation and administration of the test. Motions were made to dismiss the case or for partial judgment in favor of a defendant. Should the case be terminated or allowed to proceed?
Facts of the Case
A pharmacy graduate took the North American Pharmacy Licensure Examination 3 times. His scores were, in consecutive order, 27, 24, and 130, with each exam taken about 6 months apart. The brother-inlaw of the pharmacy graduate claimed to have heard from other family members that the test taker had another person take the examination for him the third time. He alerted the National Association of Boards of Pharmacy (NABP), author and sponsor of the examination.
NABP had a contract with the firm Prometric to administer the examination. To assure the integrity of the test administration process, Prometric had a policy of photographing test takers, collecting their fingerprints, and videotaping them. To facilitate their investigation, NABP requested those records from Prometric regarding the administration of the tests to the plaintiff in this matter.
Unfortunately, the fingerprints received by NABP were blurry and the videotapes of people and activities at the test administration sites were reused every 30 days. Prometric was able to provide photos of the test takers from all 3 test administrations, and it was concluded that the individual in the photo from the third test was not the person who took the test the first 2 times. Eventually, it was determined that Prometric had provided an incorrect photo, and there was photographic evidence that the third exam taker was the same as for the first 2 administrations. NABP informed the applicant that the third test score was invalid, because they could not verify that he was the person who completed that test. The board of pharmacy in the state where the individual had gained licensure based on the third test score started steps to revoke the license. At an administrative hearing, the representative of the state’s Office of the Attorney General recommended that the matter be dropped. Despite that board action, NABP informed the pharmacist that it was affirming its invalidation of the score because it could not verify that he had passed the examination “on his own merits.”
The pharmacist filed suit, citing 4 bases for the lawsuit— negligence, intentional infliction of emotional distress, breach of contract, and libel and defamation. A motion was made in the trial court by the defendants Prometric and Educational Testing Service (ETS), its parent company, to dismiss the claims during part of these events. NABP moved for partial judgment based on the paper filings with the court, and Thomson Reuters Corporation, parent company of Prometric before ETS, moved for dismissal of the lawsuit.
The Court’s Ruling
The motion to dismiss by Prometric and ETS was denied, as was the NABP’s motion for partial judgment. The motion by Thomson Reuters for dismissal of the claims against it was granted.
The Court’s Reasoning
With regard to the points at issue with Prometric and ETS, the trial court judge felt it was premature to grant the motion of these defendants to dismiss the claims. The pretrial process of discovery, whereby the parties take depositions of parties and witnesses under oath and examine potential evidence that may be used at trial, was in an early stage. The judge denied these defendants’ motion but “without prejudice,” meaning that these defendants had the option of making the motion again later in the proceedings. Citing the early stage of the proceedings, the judge also denied the motion made by NABP. For the last defendant, Thomson Reuters, the court ruled that because its only connection with the case was that it was a former owner of Prometric, dismissal of the claims against it was appropriate.
In the course of conducting a trial, including all the preliminary motions and activities designed to uncover exactly what is at issue in the case, there is a good deal of positioning by the parties. This set of court decisions arose relatively early in this case. It can reasonably be anticipated that this case will take more twists and turns before a final outcome is determined, either by a court decision or by an out-of-court settlement. The latter outcome is not at all uncommon in civil cases such as this. PT
Dr. Fink is professor of pharmacy law and policy at the University of Kentucky College of Pharmacy, Lexington.