Duke Health System Moves to Dismiss Pixel Privacy Class Action

Even “accepting as true” plaintiff Afrika Williams’ allegations that Duke University Health System (DUHS) violated her privacy rights by installing Facebook’s Pixel tracking tool on the login page of its patient portal, this “does not support any of her causes of action,” said DUHS in U.S. District Court for Middle North Carolina in a memorandum of support Tuesday (docket 1:22-cv-00727) of its motion to dismiss the complaint with prejudice.

Williams and co-plaintiff Kim Naugle agreed last month with co-defendant Meta to move to sever the Sept. 1 class action from U.S. District Court for Middle North Carolina and transfer the case to Northern California, where similar complaints are consolidated and pending (see 2210240002). Meta’s answer to the North Carolina class action is due Dec. 8.

The only specific allegations Williams makes are that she is a DUHS patient who used the DukeMyChart patient portal while the Facebook Pixel was present, “which caused the fact that she signed into the patient portal to be transmitted to Facebook, from which Facebook could determine that she is a DUHS patient,” said the DUHS memorandum. “Williams does not plead the nature of any substantive communications she had on the patient portal or what, if any, medical information or conditions were transmitted to Facebook, or how she was possibly harmed,” it said.

The plaintiffs lack standing because they fail to “plausibly allege” an injury that’s “fairly traceable to the defendant’s conduct” and that’s likely “to be redressed by a favorable decision from the court,” said DUHS. Though a court “must accept as true the facts alleged” in the complaint, “it should not accept the legal conclusions drawn from the facts,” it said. A court “need not accept unwarranted inferences, unreasonable conclusions, or arguments,” and a complaint “must contain sufficient factual allegations to state a facially plausible claim for relief,” it said.

Naugle “does not allege any dealings with DUHS, let alone dealings that caused her injury,” said the memorandum. She alleges she is a patient of co-defendant WakeMed Health and Hospitals, and that she was injured by WakeMed, it said. “Since she does not allege any injury caused by DUHS, she does not have standing to assert claims against DUHS.”

Williams alleges she is a DUHS patient, “but she fails to allege any specific injury caused by DUHS,” said the memorandum. She relies instead on “generic and unsupported allegations” that she and members of the potential class suffered disclosure of protected health information and loss of time and money spent on mitigation efforts, it said: “These vague allegations are deficient on their face.”