McKee v. Wal-Mart Stores, Inc., 2006 CA 1672.

• Court: Court of Appeal of Louisiana (US)
• Citation: 964 So.2d 1008
• Docket Number: No. 2006 CA 1672.,2006 CA 1672.
• Parties: Debra McKEE, Individually and as Natural Tutrix of Her Minor Child, Breanna Denise Ellis v. WAL-MART STORES, INC. and Amy Guidry Gleason.
• Decision Date: 08 June 2007

964 So.2d 1008 Debra McKEE, Individually and as Natural Tutrix of Her Minor Child, Breanna Denise Ellis
v.
WAL-MART STORES, INC. and Amy Guidry Gleason. No. 2006 CA 1672. Court of Appeal of Louisiana, First Circuit. June 8, 2007. Rehearing Denied July 9, 2007.

[964 So.2d 1009]

Donald W. Price, Baton Rouge, Allen J. Myles, Plaquemine, Counsel for Plaintiffs/Appellants Debra McKee, etc.

F. Scott Kaiser, Gregory T. Stevens, Baton Rouge, Counsel for Defendants/Appellees Wal-Mart Stores, Inc. and Amy G. Gleason.

Before: PETTIGREW, DOWNING and HUGHES, JJ.

DOWNING, J.

Debra McKee¹ appeals a summary judgment granted in favor of Wal-Mart² dismissing her claim for damages allegedly arising from a Wal-Mart pharmacist's failure to counsel regarding medicine prescribed for her daughter. For the following reasons, we affirm.

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FACTS AND PROCEDURAL HISTORY

Ms. McKee took her child to see her pediatrician on November 10, 2003 due to sinus, allergy and related complaints. Initially, the pediatrician told Ms. McKee that he would give her daughter an antibiotic called Omnicef. He counseled Ms. McKee on the proper administration of Omnicef and gave her an instruction sheet concerning this drug. However, apparently when he realized he did not have samples, he wrote a prescription for another antibiotic called Septra DS. He did not advise Ms. McKee of the change.

Ms. McKee took the prescription to the Wal-Mart store in Zachary, Louisiana, where the pharmacist filled the prescription as written. Wal-Mart has stipulated in brief, for purposes of the motions at issue only, that it did have a duty to counsel regarding the prescription, that it breached the duty by failing to properly counsel, that had the Wal-Mart pharmacist counseled, the pharmacist would have called the pediatrician to see what he intended to prescribe, that they dispensed generic Septra DS to the child, and that the child suffered certain damages.³ (R. p. 603)

After a hearing on Wal-Mart's motion for summary judgment, the trial court entered judgment in its favor, finding that no genuine issues of fact existed and that Ms. McKee had failed to prove Wal-Mart was negligent. Ms. McKee filed a motion for new trial, which the trial court denied after a hearing.

Ms. McKee now appeals, asserting three assignments of error, as follows:

1. The trial court erred in finding that there were no genuine issues of material fact and that the defendants were entitled to judgment as a matter of law on the issue of the defendants' negligence.

2. The trial court erred in finding that there were no genuine issues of material fact and that the defendants were entitled to judgment as a matter of law on the issue of causation.

3. The trial court erred in denying the motion for new trial due to its failure to find that its ruling on the motion for summary judgment was contradictory to the law and the evidence.

DISCUSSION Standard of Review

In determining whether summary judgment is appropriate, appellate courts conduct a de novo review of the evidence, employing the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Osborne v. JAG Const. Services, Inc., 04-0437, p. 4 (La.App. 1 Cir. 2/16/05), 906 So.2d 601, 603, writ denied, 05-0739 (La.5/6/05), 901 So.2d 1101. Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B.

If the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate

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all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966 C(2).

Analysis

Here, Ms. McKee claims that Wal-Mart is liable for negligence in that it failed to counsel her pursuant to a statutory duty, which resulted in damages to her daughter. Generally, proof of liability for negligence includes five elements:

(1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element);

(2) proof that the defendant's conduct failed to conform to the appropriate standard (the breach element);

(3) proof that the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element);

(4) proof that the defendant's substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and

(5) proof of actual damages (the damages element).

See Detraz v. Lee, 05-1263, p. 8 (La.1/17/07), 950 So.2d 557, 562. Wal-Mart has stipulated to the first, second, and fifth element for the purposes of these motions. Accordingly, we limit our review of the trial court's judgment to the third and fourth elements: whether there exist questions of fact regarding whether Wal-Mart's substandard conduct was a cause-in-fact of Ms. McKee's daughter's injuries and whether the substandard conduct was a legal cause of her injuries. And because of our disposition of the fourth, legal cause, element, we pretermit discussion of the cause-in-fact element.

LEGAL CAUSATION

In Perkins v. Entergy Corp., 98-2081, p. 31 (La.App. 1 Cir. 12/28/99), 756 So.2d 388, 410, this court explained that a determination of "cause" in a legal causation analysis demands inquiry into "whether a legal standard of care exists and requires delving into policies for and against extending the asserted legal standard of care to protect the particular plaintiff against the particular harm. (Citations omitted.)" The determination of legal cause is a purely legal question. Id. "The ease of association of the injury with the rule of conduct that is urged, however, is the proper inquiry." Id. "[L]egal cause can be evaluated on the basis of foreseeability and ease of association." Id. "[T]he extent of protection owed a particular plaintiff is determined on a case-to-case basis to avoid making a defendant an insurer of all persons against all harms." Id.

1. Pertinent legal standard

The duty Wal-Mart allegedly breached is the duty of its pharmacist to counsel Ms. McKee regarding a prescription it dispensed for her daughter. The parameters of this duty are set forth in La. Admin. Code 46:LIII:1115.⁴ A copy is attached to this opinion as Appendix A.⁵

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2. Foreseeability

No evidence in the record filed in connection with the motion for summary judgment suggests that it was dangerous or improper for Wal-Mart to dispense Septra DS to Ms. McKee's child. At worst, Ms. McKee's medical expert states that such prescription was "not a prudent choice." Other evidence asserted that the prescription for generic Septra DS was appropriate, though perhaps not the first choice for treatment. And no evidence suggests that the side effects suffered from the prescription are common or expected. Rather, the only evidence presented in this regard is that the child's reaction was...