Small v. WellDyne, Inc.

• Decision Date: 12 June 2019
• Docket Number: No. 18-1638,18-1638
• Citation: 927 F.3d 169
• Parties: 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.
• Court: U.S. Court of Appeals — Fourth Circuit

927 F.3d 169

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.

No. 18-1638

United States Court of Appeals, Fourth Circuit.

Argued: March 20, 2019

Decided: June 12, 2019

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.

Affirmed in part, reversed in part, and remanded by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Wilkinson and Judge Harris joined.

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 her stay. She died on January 2, 2014, approximately ten days after being discharged.

I.

On behalf of Ms. Small’s estate, her son Michael Small (we refer to the plaintiff and the decedent interchangeably as "Ms. Small") sued WellDyne and Exactus asserting claims for negligence, negligence per se and breach of the implied warranty of fitness for a particular purpose against both defendants. Ms. Small also alleged Exactus was vicariously liable for the actions of WellDyne under agency and joint venture theories.

After the close of discovery and the filing of a series of motions by the parties, the district court granted summary judgment in favor of WellDyne and Exactus as to all counts. The district court first held that Ms. Small was contributorily negligent as a matter of law which completely barred her recovery in North Carolina. The district court reasoned Ms. Small acted unreasonably by neither reading the labels on the medications nor heeding the warnings of her adult daughter, Shirley. Alternatively, the district court held that the relationship between Ms. Small taking the medication and her death was too attenuated, and thus precluded a finding of proximate cause. Also, because it granted summary judgment to the defendants, the district court denied as moot WellDyne and Exactus’ motions to exclude the opinions of Ms. Small’s experts under Rule 702 of the Federal Rules of Evidence on proximate cause.²

Small timely appealed the district court’s order. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

II.

We begin with a de novo review of the district court’s decision to grant summary judgment in favor of Exactus and WellDyne on the issue of contributory negligence. See Variety Stores, Inc. v. Wal-Mart Stores, Inc. , 888 F.3d 651, 659 (4th Cir. 2018). Summary judgment is appropriate if the evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The judge is not to weigh the evidence, but rather to determine if there is a genuine issue of fact for trial. Anderson , 477 U.S. at 249, 106 S.Ct. 2505. All evidence should be viewed in the light most favorable to the non-moving party. Id. at 261, 106 S.Ct. 2505 n.2.

Utilizing this standard, we first look to the law of North Carolina on contributory negligence.³ Under North Carolina law, "if an issue of contributory negligence is raised as an affirmative defense, and proved, it completely bars plaintiff’s recovery for injuries resulting from defendant’s negligence." Sawyer v. Food Lion, Inc. , 144 N.C.App. 398, 549 S.E.2d 867, 869 (2001). A " ‘plaintiff is contributorily negligent when [s]he fails to exercise such care as an ordinarily prudent person would exercise under the circumstances in order to avoid injury.’ " Nicholson v. Am. Safety Util. Corp. , 346 N.C. 767, 488 S.E.2d 240, 244 (1997) (emphasis in original) (quoting Newton v. New Hanover Cty. Bd. of Edu. , 342 N.C. 554, 467 S.E.2d 58, 65 (1996) ). "[T]he existence of contributory negligence does not depend on plaintiff’s subjective appreciation of danger; rather, contributory negligence consists of conduct which fails to conform to an objective standard of behavior ...." Smith v. Fiber Controls Corp. , 300 N.C. 669, 268 S.E.2d 504, 507 (1980).

Summary judgment is rarely appropriate for issues of contributory negligence because "the standard used in contributory negligence cases, that of reasonable care, usually requires a jury determination." Sawyer , 549 S.E.2d at 869–70. Summary judgment is appropriate where the evidence is uncontroverted that the plaintiff failed to use ordinary or reasonable care and that failure was at least one of the proximate causes of the injury. Id . at 870. But in " ‘borderline cases,’ fairness and judicial economy suggest that courts should decide in favor of submitting issues to the jury."

Whisnant v. Herrera , 166 N.C.App. 719, 603 S.E.2d 847, 850 (2004) (quoting Radford v. Norris , 74 N.C.App. 87, 327 S.E.2d 620, 621 (1985) ).

WellDyne and Exactus argue that the evidence establishes, as a matter of law, Ms. Small failed to use ordinary care when she took the misdelivered medication without reading the labels on the medication. The defendants contend the misdelivered package arrived after Ms. Small had already received her normal medications package from WellDyne. They note the medications were delivered in an unusual way—without a phone call in advance. The pill bottles, the defendants point out, were labeled for Exactus’ customer in California, contained no identifying information as to Ms. Small or her doctors and the bottles in the second package were different in size and number to those Ms. Small normally received. Finally, according to defendants, there was no evidence that Ms. Small’s doctors had prescribed or discussed any new medications. Accordingly, WellDyne and Exactus argue that there is no genuine issue of material fact as to whether Ms. Small failed to use ordinary care and thus was contributorily negligent as a matter of law.

In response, Ms. Small argues that a reasonable jury could find that she acted reasonably under the circumstances of this case. Ms. Small was a barely literate, geriatric patient who received a familiar looking package of medications from a familiar pharmacy, addressed to her. Also, Ms. Small points out that she had been prescribed some of the misdelivered medications in the past and the pills appeared similar in size and shape to her regular medications. Finally, Ms. Small argues that the testimony from her experts, that she acted reasonably, created a genuine issue of material fact.

North Carolina courts have not addressed a case like this one where a plaintiff ingested misdelivered prescription medications without reading the label. Indeed, there is scarce caselaw nationwide addressing this situation. However, Champs Convenience Stores, Inc. v. United Chemical Co., Inc. , 329 N.C. 446, 406 S.E.2d 856 (1991) involves an analogous situation. There, a store employee called the defendant chemical company asking for a cleaning product to control the dust on the grocery store’s wood floors. Id . at 858. The defendant recommended a product and instructed the employee on how to use it. Id . Thirty minutes later, the defendant delivered a chemical product, but it was the wrong one. Id . The invoice listed the product recommended on the phone, but the label and instructions listed the actual chemical inside the container. Id . at 456. The employee admitted that if she had read the instructions, she would not have used the product. Id . But she neglected to read the instructions or the label and applied the misdelivered chemicals to the store floor. Id . at 858. The toxicity from the chemical rendered the groceries inedible, and the North Carolina Department of Agriculture issued an embargo for...