MICHAEL A. SMALL, Administrator of the Estate of Bertha Autry Small, deceased, Plaintiff - Appellant,
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
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)
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.
J. Burke, BROTHERTON FORD BERRY & WEAVER, PLLC,
Greensboro, North Carolina, for Appellees WellDyne, Inc. and
Suzanne R. Walker, YATES, MCLAMB & WEYHER, LLP, Raleigh,
North Carolina, for Appellee Exactus Pharmacy Solutions, Inc.
WILKINSON, HARRIS, and QUATTLEBAUM, Circuit Judges.
QUATTLEBAUM, CIRCUIT JUDGE:
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
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. 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.
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.
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