Rendon v. Walgreens

• Decision Date: 24 October 2015
• Docket Number: CIVIL ACTION NO. 3:14–CV–4225–B
• Parties: Robert E. Rendon, Plaintiff, v. Walgreens, Defendant.
• Court: U.S. District Court — Northern District of Texas

144 F.Supp.3d 894

Robert E. Rendon, Plaintiff,

v.Walgreens, Defendant.

CIVIL ACTION NO. 3:14–CV–4225–B

United States District Court, N.D. Texas, Dallas Division.

Signed October 24, 2015

Paul D. Rich, Dallas, TX, for Plaintiff.

Michael S. Rumac, Mark A. Goodman, Fox Rothschild LLP, Dallas, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

JANE J. BOYLE

, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Walgreens's Motion to Dismiss with Prejudice and Motion for Attorneys' Fees and Costs (Doc. 12), filed on September 10, 2015. For the reasons that follow, the Court GRANTS the Motion.

I.BACKGROUND

This case arises out of injuries that Plaintiff Robert Rendon suffered in 2012, allegedly as the result of ingesting medicine dispensed by a pharmacist working for Defendant Walgreens. Doc. 1, Ex. 2, Pl.'s Pet. ¶¶ 10–13. Rendon asserts that he presented the pharmacist with a prescription from his doctor, but the pharmacist filled the prescription with the wrong medicine. Id. ¶¶ 10–11. As a result of ingesting this medicine, Rendon suffered a fall, causing him “numerous physical injuries to his entire body, from which he continues to suffer mental and emotional distress.” Id. ¶ 13. Rendon originally filed this action in the 101st Judicial District Court of Dallas County, Texas, on October 16, 2014, asserting claims for violations of the Texas Deceptive Trade Practices Act, strict tort liability, negligence, and negligent misrepresentation. Id. ¶¶ 15–24. Walgreens removed the case to this Court on December 1, 2014. Doc. 1, Notice of Removal. On September 10, 2015, Walgreens filed the instant Motion, to which Rendon responded on October 9, 2015. Doc. 16, Pl.'s Resp. Walgreens replied on October 14, 2015, Doc. 17, and on October 22, 2015 the Court held a hearing on the Motion at which counsel for both parties were present. The Court is now ready to issue its decision.

II.LEGAL STANDARD

In a case that has been removed from state court, the proper pleading standard to apply when deciding a motion to dismiss is that of the state from whose court the case has been removed. Craig Penfold Props., Inc. v. Travelers Cas. Ins. Co., No. 3:14–CV–0326, 2015 WL 356885, at *2 (N.D.Tex. Jan. 28, 2015)

; see also

De La Hoya v. Coldwell Banker Mex., Inc., 125 Fed.Appx. 533, 537 (5th Cir.2005) (applying the Texas pleading standard on a motion to dismiss claims in a case removed from Texas state court); Sutton v. Airsep Corp., No. 3:11–CV–2669, 2012 WL 253959, at *3 (N.D.Tex. Jan. 27, 2012) (applying state pleading standard on motion to remand because “state court plaintiffs should not be required to anticipate removal to federal court”). In a case removed from a Texas state court, the Court applies the Texas pleading standard. Traditionally, Texas courts have applied a pleading standard that is more liberal than the federal pleading standard, upholding a petition as long as it provides “fair notice of the claim involved.” Tex.R. Civ. P. 45(b). In March 2013, however, the Texas Supreme Court adopted Rule 91a of the Texas Rules of Civil Procedure, which provides in pertinent part:

[A] party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. A cause of action has no basis in the law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.

Tex.R. Civ. P. 91a

. Though not identical to the Rule 12(b)(6) standard, the Texas Courts of Appeals have interpreted Rule 91a as essentially calling for a Rule 12(b)(6)-type analysis and have relied on the Rule 12(b)(6) case law in applying Rule 91a. See

Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex.App.–Houston [14th Dist.] 2014, pet. filed);

GoDaddy.com, LLC v. Toups , 429 S.W.3d 752, 754 (Tex.App.–Beaumont 2014, pet. denied). Accordingly, this Court will do the same.

Rule 12(b)(6) authorizes a court to dismiss a plaintiff's complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6)

. In considering a Rule 12(b)(6) motion to dismiss, “[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007) (quoting Martin K. Eby Constr.

Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.2004) ). The Court will “not look beyond the face of the pleadings to determine whether relief should be granted based on the alleged facts.” Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir.1999), cert. denied, 530 U.S. 1229, 120 S.Ct. 2659, 147 L.Ed.2d 274 (2000). To survive a motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. When well-pleaded facts fail to achieve this plausibility standard, “the complaint has alleged—but it has not shown—that the pleader is entitled to relief.”

Id. at 679, 129 S.Ct. 1937

(internal quotation marks and alterations omitted).

III.ANALYSIS

In its Motion, Walgreens presents a two-step formula for dismissing Rendon's claims: first, that the conduct forming the basis for Rendon's claims is a health care liability claim (“HCLC”) under the Texas Medical Liability Act (TMLA), Tex. Civ. Prac. & Rem. Code §§ 74.001

, 74.307, and therefore Rendon can sue Walgreens only for professional negligence and gross negligence; and second, that Rendon's negligence causes of action must be dismissed for failing to comply with the TMLA's requirement to provide an expert report supporting the viability of his claims. Doc. 12, Def.'s Mot. to Dismiss 9–17. Rendon argues that, because he filed his Original Petition prior to the Texas Supreme Court's decision finding that the TMLA applies to claims against pharmacies, the Court should not apply that decision retroactively. Doc. 16, Pl.'s Resp. 2–3, 5. Alternatively, Rendon requests a 120–day extension to file an expert report, should the Court find that one is required in this case. Id . at 4–5.

A. Rendon's Non–Negligence Claims

1. The Conduct Forming the Basis for Rendon's Claims is an HCLC

The Court's first task is to determine whether the TMLA limits Rendon's claims. The Texas Supreme Court has stated that “if the gravamen or essence of a cause of action is a health care liability claim, then allowing the claim to be split or spliced into a multitude of other causes of action with differing standards of care, damages, and procedures would contravene the Legislature's explicit requirements.” Yamada v. Friend , 335 S.W.3d 192, 197 (Tex.2010)

. Indeed, that court has gone even further, finding that

[C]laims premised on facts that could support claims against a physician or health care provider for departures from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care are HCLCs, regardless of whether the plaintiff alleges the defendant is liable for breach of any of those standards.

Loaisiga v. Cerda , 379 S.W.3d 248, 255–56 (Tex.2012)

. If it were otherwise, “then the TMLA and its procedures and limitations w[ould] effectively be negated.” Yamada , 335 S.W.3d at 197. In deciding whether a plaintiff's claim is in fact an HCLC, a court is to “examine the underlying nature of the claim, and not simply the plaintiff's pleadings.” Groomes v. USH of Timberlawn, Inc. , 170 S.W.3d 802, 805 (Tex.App.–Dallas 2005, no pet.) ; see also

Yamada , 335 S.W.3d at 196 (“Whether a claim is a health care liability claim depends on the underlying nature of the claim being made.”). Therefore, if the facts supporting Rendon's claim qualify as an HCLC, then he is limited to asserting professional negligence and gross negligence claims against Walgreens.

The TMLA defines an HCLC as

a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract.

Tex. Civ. Prac. & Rem. Code § 74.001(a)(13)

. The elements of such a claim are (1) a physician or health care provider must be a defendant; (2) the claim or claims at issue must concern treatment, lack of treatment, or a departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care; and (3) the defendant's act or omission complained of must proximately cause the injury to the claimant. Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753, 758 (Tex.2014).

The term “health care provider” includes pharmacists. Tex. Civ. Prac. & Rem. Code § 74.001(12)(A)(iv)

. Rendon, however, has sued a pharmacy. That distinction is immaterial, though, because claims against both pharmacists and pharmacies are subject to the TMLA “with respect to 'those activities limited to the dispensing of prescription medicines which result in health care liability claims.' ” Randol Mill Pharmacy v. Miller, 465 S.W.3d 612, 619 (Tex.2015) (quoting Tex. Civ. Prac. & Rem. Code § 74.001(22) ). The only action Walgreens is alleged to have taken—through its...