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Small v. Welldyne Inc

United States District Court, E.D. North Carolina, Western Division

May 5, 2018

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.



         This 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.


         Procedural History

         Plaintiff 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 complaint.

         On 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).

         Factual Background

         Plaintiff 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.

         Exactus 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.

         WellDyneRx 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.

         On 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, [1] and 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 death. Id.

         Evidence 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.

         Also in 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.


         A 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).

         At the 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].

         I. North Carolina law applies to plaintiffs claims.

         Plaintiff 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 ...

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