Wimm v. Jack Eckerd Corp.

• Decision Date: 04 October 1993
• Docket Number: No. 92-1181,92-1181
• Citation: 3 F.3d 137
• Parties: Sabrina K. WIMM, Individually and as Representative of the Estate of Arron Paul Speer, deceased, and Paul Speer, Plaintiffs-Appellants, v. JACK ECKERD CORP., et al., Defendants, Jack Eckerd Corp. and Eckerd Drugs of Texas, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 137

3 F.3d 137

27 Fed.R.Serv.3d 278

Sabrina K. WIMM, Individually and as Representative of the Estate of Arron Paul Speer, deceased, and Paul Speer, Plaintiffs-Appellants, v. JACK ECKERD CORP., et al., Defendants Jack Eckerd Corp. and Eckerd Drugs of Texas, Defendants-Appellees.

No. 92-1181.

United States Court of Appeals Fifth Circuit.

Oct. 4, 1993.

Carl David Adams, Dallas, TX, for plaintiffs-appellants.

Lea Francis Courington, Scott W. MacLaren, Gwinn & Roby, Dallas, TX, for defendants-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, SMITH, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

This case arises out of the death of Arron Speer, the eleven-year-old son of the plaintiffs, Sabrina K. Wimm and Paul Speer ("Wimm and Speer" or "plaintiffs"). Arron Speer died after receiving several doses of a codeine-based prescription cough syrup provided by the defendants, Jack Eckerd Corporation and Eckerd Drugs of Texas (collectively referred to as "Eckerd"). The plaintiffs brought suit to recover damages for Arron's death. They now appeal the district court's denial of their motion for leave to file an amended complaint. They also appeal the district court's order granting summary judgment in favor of Eckerd. We affirm both decisions of the district court.

I

Arron Speer was a normally healthy, active child until he awoke one morning with severe shortness of breath. Arron felt very weak and could not speak above a whisper. Sabrina Wimm, Arron's mother, promptly took Arron to a physician, who diagnosed him as having the flu and prescribed a codeine-based cough syrup.

Wimm went to an Eckerd drug store to fill the prescription for the cough syrup. The physician had prescribed a dosage of two teaspoons every four hours. However, according to Wimm the label attached to the cough syrup bottle by the pharmacist indicated that the proper dosage was two tablespoons every four hours.

Wimm gave Arron two tablespoons of the cough syrup around 3:30 p.m., and again at 7:30 p.m. When Arron went to bed at 10:00 p.m., Wimm left the cough syrup with him and told him that he could take one teaspoonful during the night if he needed it. When she went to Arron's room to check on him the next morning, he was dead. It appeared that he had taken one dose of cough syrup during the night.

It was later determined that Arron had suffered from viral croup, and that the condition caused the airways in Arron's lungs to become blocked with mucus. Dr. Linda Norton, a forensic pathologist, testified that Arron died from a lack of oxygen, resulting from airway obstruction caused by the viral croup. Dr. Norton also testified that a codeine-based cough syrup is not an appropriate drug to prescribe for a child suffering from shortness of breath, because codeine depresses the breathing function and sedates the patient, making him or her less sensitive to air hunger. Dr. Norton concluded that the codeine ingested by Arron had contributed to his death, although the codeine was taken in an appropriate, therapeutic amount. Dr. Marc Krouse, from the Tarrant County medical examiner's office, testified that airway obstruction resulting from the croup was a cause of Arron's death, but ingestion of codeine was not.

Wimm and Speer filed suit against Eckerd in Texas state court. ¹ Thereafter the case was removed to federal court and transferred to the district court for the Northern District of Texas. The plaintiffs' first amended complaint alleged that: (1) Eckerd negligently failed to warn Sabrina Wimm that it was dangerous to administer codeine to a child suffering from shortness of breath; and (2) the cough syrup sold to Wimm was unreasonably dangerous because it was not accompanied by an appropriate warning.

Before any formal discovery had taken place, ² and nine months before the district court's deadline for amendments to the pleadings, Eckerd moved for summary judgment on the claims raised in the first amended complaint. Wimm and Speer filed a response to the motion for summary judgment, and a motion for leave to file a second amended complaint. In their motion and second amended complaint, the plaintiffs sought to add two new matters. First, the plaintiffs alleged that Eckerd negligently mislabeled the bottle of cough syrup--indicating a dosage of two tablespoons rather than two teaspoons every four hours--and thereby caused Arron Speer's death by instructing his mother to give him an excessive dose of cough syrup. ³ Second, Wimm and Speer brought a claim under the Texas Deceptive Trade Practices and Consumer Protection Act ("DTPA"), Tex.Bus. & Com.Code Ann. Secs. 17.41-17.63 (Vernon 1987), alleging that Eckerd, through an extensive advertising campaign, had falsely represented to the public that it would act as a safety net by warning its customers of the dangers of medications erroneously prescribed by their physicians. ⁴ The district court denied Wimm and Speer's motion for leave to file a second amended complaint and granted Eckerd's motion for summary judgment. Wimm and Speer appeal both of the district court's rulings.

II

A

The plaintiffs argue that the district court erred by denying their motion for leave to file a second amended complaint. Under Federal Rule of Civil Procedure 15(a), pleadings may be amended once as a matter of course before a responsive pleading is served, and thereafter by leave of court. See Fed.R.Civ.P. 15(a). The rule provides that such leave "shall be freely given when justice so requires." Id. "However, it is by no means automatic." Addington v. Farmer's Elevator Mut. Ins. Co., 650 F.2d 663, 666 (5th Cir.) (citing Layfield v. Bill Heard Chevrolet Co., 607 F.2d 1097, 1099 (5th Cir.1979), cert. denied, 446 U.S. 939, 100 S.Ct. 2161, 64 L.Ed.2d 793 (1980)), cert. denied, 454 U.S. 1098, 102 S.Ct. 672, 70 L.Ed.2d 640 (1981). In deciding whether to grant leave to file an amended pleading, the district court may consider such factors as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of amendment. SeeFoman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Overseas Inns S.A. P.A. v. United States, 911 F.2d 1146, 1150 (5th Cir.1990); Addington, 650 F.2d at 666; Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539, 546 (5th Cir.1980), cert. denied, 454 U.S. 927, 102 S.Ct. 427, 70 L.Ed.2d 236 (1981). Whether leave to amend should be granted is entrusted to the sound discretion of the district court, and that court's ruling is reversible only for an abuse of discretion. Overseas, 911 F.2d at 1150; Addington, 650 F.2d at 666; Pan-Islamic, 632 F.2d at 546. "[I]f the district court lacks a 'substantial reason' to deny leave, its discretion 'is not broad enough to permit denial.' " Jamieson v. Shaw, 772 F.2d 1205, 1208 (5th Cir.1985).

The district court denied Wimm and Speer's motion for leave to amend because it found that the motion was filed in bad faith and with dilatory motive. The district court stated:

The motion is obviously interposed by plaintiffs in an attempt to avoid summary judgment. The record reflects that plaintiffs have had ample opportunity to investigate their claims and to seek leave to amend their complaint. Moreover, it appears that the amendment sought would be futile as the amount of cough syrup given to decedent has been thoroughly investigated and the determination made that decedent did not receive a toxic dose of the cough syrup. Having considered the record, the court is seriously concerned about plaintiffs' apparent bad faith and dilatory motive in seeking leave to amend their complaint at this time.

Record on Appeal, vol. 3, at 661-62. Because the record supports the district court's finding that the plaintiffs' motion was filed in bad faith and with dilatory motive, we affirm on that ground. ⁵

The plaintiffs knew of the facts underlying their mislabeling claim before this action commenced. A few months after Arron Speer's death, Sabrina Wimm executed an affidavit which stated that she "gave Arron two tablespoons of the cough syrup, according to the medicine bottle." Wimm referred to that statement in a later affidavit:

I want to confirm once more what I stated in my June 1989 Affidavit. Specifically, although Dr. Kenneth Adams ... gave my son a prescription calling for two tea spoons of medicine every four hours, the label on the bottle that was given to me by the Eckerd's Drug Store called for two table spoons of the syrup, and following the instructions on the bottle, that is the dosage that I gave to Arron.

This action was filed roughly twenty months after Wimm first stated that the label on the medicine bottle called for a dose of two tablespoons. It was not until nine months later, after Eckerd filed its motion for summary judgment, that Wimm and Speer first asserted their claim for mislabeling.

The facts of the DTPA claim were also known to the plaintiffs long before they first asserted that claim. Sabrina Wimm alleges that she has "for very many years, been a customer of Eckerd's drug Stores," and that she expected to be warned about the dangers of prescription drugs because of Eckerd's representations to her "over the years." Because Wimm alleges that she relied on Eckerd's representations when she purchased the cough syrup from an Eckerd drug store, her claim is clearly premised on representations which were made before purchasing the cough syrup and long before this action was filed. However, those representations were not made the subject of a claim in this case until approximately thirty-three months after Arron's death and nine months after this action was commenced.

In Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594 (5th Cir.1981), we commented that circumstances similar to these might give rise to an inference of bad...