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Small v. WellDyne, Inc.

United States Court of Appeals, Fourth Circuit

June 12, 2019

MICHAEL A. SMALL, Administrator of the Estate of Bertha Autry Small, deceased, Plaintiff - Appellant,
v.
WELLDYNE, INC., a Florida Corporation; WELLDYNERX, INC., a Florida Corporation; EXACTUS PHARMACY SOLUTIONS, INC., a Delaware Corporation; DOES 1 THROUGH 5, inclusive, Defendants - Appellees.

          Argued: March 20, 2019

          Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, Chief District Judge. (5:16-cv-00062-BO)

         ARGUED:

          Marshall B. Pitts, Jr., LAW OFFICES OF MARSHALL B. PITTS, JR., P.C., Fayetteville, North Carolina; Willie D. Gilbert, II, LAW OFFICES OF WILLIE D. GILBERT, II, Wilson, North Carolina, for Appellant.

          Demetrius W. Berry, BROTHERTON FORD BERRY & WEAVER, PLLC, Greensboro, North Carolina; Barry Sidney Cobb, YATES, MCLAMB & WEYHER, LLP, Raleigh, North Carolina, for Appellees.

         ON BRIEF:

          Daniel J. Burke, BROTHERTON FORD BERRY & WEAVER, PLLC, Greensboro, North Carolina, for Appellees WellDyne, Inc. and WellDyneRx, Inc.

          Suzanne R. Walker, YATES, MCLAMB & WEYHER, LLP, Raleigh, North Carolina, for Appellee Exactus Pharmacy Solutions, Inc.

          Before WILKINSON, HARRIS, and QUATTLEBAUM, Circuit Judges.

          QUATTLEBAUM, CIRCUIT JUDGE:

         On November 19, 2013, Bertha Small ingested prescription medications that were sent to her by mistake. Ms. Small was accustomed to receiving medications in the mail. On the day she ingested the pills, Ms. Small received a package addressed to her home in North Carolina that contained six prescription medications. The package was similar in size and color to the packages containing the medications she normally received.

         WellDyneRx, Inc. and WellDyne, Inc. (collectively referred to as "WellDyne"), operate in the growing mail-order pharmacy industry by filling prescriptions for health care plans and other pharmacies.[1] Relevant to this case, WellDyne was under a contract with Exactus Pharmacy Solutions, Inc. ("Exactus") to fill and ship prescription medication to Exactus' customers. Exactus placed an order with WellDyne to fill and ship a package of prescription medication to an Exactus customer in California. However, WellDyne mistakenly shipped that package of prescription medication to Ms. Small. The package contained the pills Ms. Small ingested.

         Although the outside of the package contained Ms. Small's name and address, the label on each bottle listed the California patient's name, the California patient's prescribing doctor and the name of the medication. However, Ms. Small, elderly and barely literate, did not read the labels of the bottles before taking the pills.

         After ingesting the pills, Ms. Small began to experience confusion and hallucinations. A few days later, she fell and fractured her leg. She was admitted to the hospital for her leg, but stayed for almost a month. During that time, Ms. Small was treated for several other medical problems that arose during ...


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