United States District Court, E.D. North Carolina, Western Division
MICHAEL A. SMALL, Administrator of the Estate of Bertha Autry Small, deceased, Plaintiff,
WELLDYNE, INC., a Florida Corporation; WELLDYNERX, INC., a Florida Corporation; EXACTUS PHARMACY SOLUTIONS, INC., a Delaware Corporation, and DOES 1 through 5, inclusive, Defendants.
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
cause comes before the Court on defendants' motions for
summary judgment and plaintiffs motion for partial summary
judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure. Also pending are several other motions,
including a motion for leave to file out of time by
plaintiff, motions to exclude testimony by the WellDyne
defendants, and a motion to strike an affidavit by the
WellDyne defendants. A hearing on these matters was held
before the undersigned on February 7, 2018, - at Raleigh,
North Carolina. For the reasons that follow, defendants are
entitled to summary judgment in their favor and the clerk is
directed to close this case.
filed this action on December 28, 2015, in Cumberland County,
North Carolina Superior Court. The matter was removed to this
Court on February 8, 2016, on the basis of its diversity
jurisdiction. 28 U.S.C. §§ 1332; 1441. On July 14,
2016, the Court denied a motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6) by defendant Exactus and on January 27,
2017, the Court granted plaintiffs motion to file an amended
November 22, 2017, plaintiff stipulated to the dismissal of
count III, wrongful death -breach of implied warranty of
fitness for a particular purpose and count VI, breach of the
implied warranty of fitness for a particular purpose causing
personal injury, against defendant Exactus. Accordingly, the
following claims remain for adjudication: wrongful death -
negligence against all defendants (count I); wrongful death -
negligence per se against all defendants (count II); wrongful
death - breach of the implied warranty of fitness for a
particular purpose against the WellDyne defendants (count
III); ordinary negligence causing personal injury against all
defendants (count IV); negligence per se causing personal
injury against all defendants (count V); and breach of the
implied warranty of fitness for a particular purpose causing
personal injury against the WellDyne defendants (count VI).
Michael Small is the son of Bertha Autry Small (Ms. Small)
and the administrator of her estate. The WellDyne defendants
provide pharmacy benefits, claims processing services, and
mail order pharmacy services. WellDyneRx operates nationwide
and provides mail order prescriptions for health plans and
other pharmacy benefit managers. In November 2013, Ms. Small
was receiving prescription medication through her pharmacy
benefit plan, Fresenius Medical Care Holding, Inc., which had
contracted with WellDyneRx to provide central filling and
home delivery services.
is also a mail order pharmacy. In January 2011, Exactus,
formerly known as WellCare Specialty Pharmacy, entered into
an agreement with WellDyneRx for the provision of certain
pharmacy services. On November 15, 2013, Exactus received a
prescription refill request for six medications for a patient
"S.D." who resides in California. Exactus submitted
S.D.'s refill order to WellDyneRx with instructions for
WellDyneRx to fill the order and ship it to S.D. in
California. At or about the same time that WellDyneRx was
processing S.D.'s prescription for Exactus, WellDyneRx
was processing a prescription for Renvela, a medication
related to kidney dialysis, for shipment to Ms. Small.
has admitted that it inadvertently shipped the six
medications intended for S.D. in California to Ms. Small in
Fayetteville, North Carolina. A photograph of the six pill
bottles shipped to Ms. Small and received on November 19,
2013, reveals that the label on each bottle of medication
lists S.D. as the patient/recipient, that the prescription
was filled by Exactus Pharmacy, and that the medication was
prescribed by Dr. Michael Popkin. [DE 100-7]. The shipping
label on the outside of the package received by Ms. Small was
addressed to Bertha Small in Fayetteville, North Carolina.
[DE 100-8]. The prescriptions shipped to Ms. Small in error
were Hydrochlorothiazide, Carvedilol, Lisinopril,
Simvastatin, Diclofenac, and Levothyroxine.
November 22, 2013, Ms. Small was taken by ambulance to Cape
Fear Valley Medical Center after she fell in her home and
fractured her left tibia and fibula. Ms. Small was discharged
from Cape Fear Valley Medical Center on December 23, 2013.
She remained at home until January 2, 2014, when she died.
Ms. Small's death certificate lists the immediate cause
of death as pneumonia, with the following conditions leading
to the cause of death: UTI, myocardial infection,
end stage renal disease. [DE 100-10]. End stage renal disease
is noted on the death certificate as the underlying cause, or
the disease or injury which initiated the events resulting in
in the record relating to the receipt of the improperly
mailed medications by Ms. Small includes the following. At
the time relevant to the claims in this case, Ms. Small's
adult daughter Shirley lived with her and Ms. Small was
receiving prescription medications related to her dialysis
through the mail; prior to delivery of her dialysis
medications, the Small household would receive an automated
telephone call advising of the delivery date. [DE 932-8]
Small, Shirley Dep. at 33-34. In November 2013, two packages
of prescription medication were delivered to Ms. Small. The
first, which consisted of Ms. Small's prescribed
medications, was attended with an automated telephone call as
was the usual course. Small, Shirley Dep. at 49-51. Ms.
Shirley Small retrieved the first package after it was
delivered and gave it to her mother. Her mother did not need
to put the pills in the pill sorter at that time because the
delivery had been made early, seemingly in light of the
holidays. Id. at 52. A second package of
prescription medications was delivered to Ms. Small on or
about November 19, 2013. No. confirmation telephone call
accompanied the second package, which was also retrieved by
Ms. Shirley Small. Id. at 53. Ms. Shirley Small took
the package to her mother's room and placed it on her
dresser, as she always did; Ms. Shirley Small did not see her
mother open the second package. Id. at 55-56. When
her mother opened the second package of prescription
medications the day after they arrived, Ms. Shirley Small
thought that the colors of the pills did not look like her
mother's normal pills, so she told her mother to set
those pills to the side and to take the normal pills until
she found out what the pills in the second shipment were for.
Id. at 61. When Ms. Small opened the pill bottles
from the second shipment and some of the pills popped out
onto the floor and were not returned to the pill bottles.
Id. at 62.
evidence is the affidavit of Michael David, the fiance of Ms.
Shirley Small who lived in the Small household. [DE 126-7].
Mr. David attests that two or three days before Ms.
Small's fall in November 2013, and on the same day as the
delivery of some medications, Ms. Small asked Mr. David to
bring her a package from the top of her dresser. He did so,
and observed Ms. Small take a number of pills out of the
bottles and consume those pills. He also observed Ms. Small
consume medications from the package on her dresser for the
next couple of days. Id. David Aff.¶¶8-12.
motion for summary judgment may not be granted unless there
are no genuine issues of material fact for trial and the
movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). The moving party bears the initial burden
of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). If that burden has been met, the non-moving party
must then come forward and establish the specific material
facts in dispute to survive summary judgment. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
588 (1986). In determining whether a genuine issue of
material fact exists for trial, a trial court views the
evidence and the inferences in the light most favorable to
the nonmoving party. Scott v. Harris, 550 U.S. 372,
378 (2007). However, "[t]he mere existence of a
scintilla of evidence" in support of the nonmoving
party's position is not sufficient to defeat a motion for
summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986). "A dispute is genuine if a
reasonable jury could return a verdict for the nonmoving
party. . . . and [a] fact is material if it might affect the
outcome of the suit under the governing law."
Libertarian Party of Virginia v. Judd, 718 F.3d 308,
313 (4th Cir. 2013) (internal quotations and citations
omitted). Speculative or conclusory allegations will not
suffice. Thompson v. Potomac Elec. Power Co., 312
F.3d 645, 649 (4th Cir. 2002).
outset, the Court grants plaintiffs motion for leave to file
manual exhibit [DE 136] and motion for leave to file his
responses to the motions for summary judgment one day out of
time. [DE 144].
North Carolina law applies to plaintiffs claims.
contends that Florida law applies to this case pursuant to
the WellDyneRx Pharmacy Agreement between Exactus and
WellDyneRx and the agreement between Fresenius and
WellDyneRx, which both contain Florida choice of law
provisions. Plaintiff contends that both agreements provide
that they "shall be governed by and construed in
accordance with the Law of the State of Florida without
regard to its choice-of-law principles, and further construed
without regard to any presumption or rules requiring
construction against the party causing this agreement to be
drafted." See, e.g., [DE 93-1 at 10 of 19].
Plaintiff, who is not a party to either ...