Gregory v. Wal-Mart Stores, Inc.
Filing
76
ORDER granting 41 Defendant's Motion for Partial Summary Judgment. Signed by Chief Judge Lisa G. Wood on 8/2/2013. (csr)
in the 11niteb Otatto Jttrtct Court
for the Soutbtrn Dttrttt ofeorgta
runtuick otbtoton
WILLIAM GREGORY,
Plaintiff,
VS.
WAL-MART STORES EAST, L.P.,
Defendant.
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CV 212-042
ORDER
Presently before the Court is Defendant's Motion for
Partial Summary Judgment. See Dkt. No. 41. Upon due
consideration, Defendant's motion is GRANTED.
I. FACTUAL
This action is predicated on Defendant's alleged misfilling
of Plaintiff's prescription. See Dkt. No. 1. The relevant
facts are taken principally from the parties' Statements of
Material Facts and responses thereto. See Dkt. Nos. 41-4, 48-1.
Where the parties offer conflicting accounts of the events in
question, this Court draws all inferences and presents all
evidence in the light most favorable to Plaintiff. See Hamilton
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V.
Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th
Cir. 2012) (citing Moton v. Cowart, 631 F.3d 1337, 1341 (11th
Cir. 2011)
Plaintiff asked Defendant to fill his prescription for
Citalopram. Dkt. Nos. 41-4 ¶ 2; 48-1 ¶ 2. Defendant's pharmacy
technician filled Plaintiff's prescription. Dkt. No. 41-4 ¶ 3.
Defendant's pharmacist visually verified the prescription vial's
contents. Id.
Plaintiff picked up his prescription medication. Dkt.
Nos. 41-4 ¶ 4; 48-1 ¶ 4. Plaintiff noticed that the
prescription bottle contained two (2) differently shaped
tablets. Dkt. Nos. 41-4 ¶ 12; 48-1 ¶ 12. Plaintiff began
taking the pills. Dkt. Nos. 41-4 ¶ 4; 48-1 ¶ 4. Thereafter,
Plaintiff was hospitalized on multiple occasions. Dkt. No. 48-1
¶ 6. After the hospitalizations and a criminal investigation,
it was discovered that Plaintiff's medication bottle contained
two (2) different types of pills: Citalopram and warfarin.
Dkt. Nos. 41-4 191 6-11, 13; 48-1 191 6-11, 13. The warfarin,
which was not prescribed and should not have been in the bottle,
caused Plaintiff's hospitalizations.
Defendant has a multi-step process aimed at ensuring that
pharmacy customers receive the correct medication. Dkt.
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Nos. 41-4 ¶ 15; 48-1 ¶ 15. Defendant also has detailed policies
and procedures which are intended to prevent or minimize errors
with respect to filing prescriptions. Dkt. Nos. 41-4 ¶ 16; 48-1
¶ 16. Defendant's pharmacy employees are supposed to follow
Defendant's multi-step process, policies, and procedures. Dkt.
Nos. 41-4 ¶ 15; 48-1 ¶ 15. If properly followed, the process,
policies, and procedures make it "very unlikely" that a customer
could receive a prescription with different medications in the
bottle. Dkt. Nos. 41-4 ¶ 20; 48-1 ¶ 20. Plaintiff's expert
witness was aware of "just a couple" of such instances during
his thirty (30) years of practice. Dkt. Nos. 41-4 ¶ 21; 48-1
¶ 21.
Plaintiff alleges that Defendant's employees failed to
follow the process, policies, and/or procedures when they filled
Plaintiff's prescription. See Dkt. No. 48-1 191 15, 18.
Plaintiff further alleges that this failure led to the
misfilling of his prescription bottle and caused his
hospitalizations and injuries.
II. PROCEDURAL BACKGROUND
Plaintiff asserts that Defendant's pharmacists and/or nonpharmacist employees negligently filled Plaintiff's
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prescription. See Dkt. No. 1. Plaintiff seeks compensatory and
punitive damages.' See Id.
Currently before the Court is Defendant's motion for
summary judgment on Plaintiff's claim for punitive damages. See
Dkt. No. 41. This motion is fully briefed. See Dkt. Nos. 48,
53.
III. Legal Standard
Summary judgment is appropriate "If the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R.
Clv. P. 56(a) . A fact is "material" if it "might affect the
outcome of the suit under the governing law." FindWhat Investor
Grp. v. FindWhat.com , 658 F.3d 1282, 1307 (11th Cir. 2011)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)) . A dispute over such a fact is "genuine" if the
"evidence is such that a reasonable jury could return a verdict
for the nonmoving party." Id. In making this determination,
the court is to view all of the evidence in the light most
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Plaintiff voluntarily withdrew his claim for attorney's fees. See Dkt.
No. 48, at 9.
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favorable to the nonmoving party and draw all reasonable
inferences in that party's favor. Johnson v. Booker T.
Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir.
2000)
The party seeking summary judgment bears the initial burden
of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) . To
satisfy this burden, the movant must show the court that there
is an absence of evidence to support the nonmoving party's case.
Id. at 325. If the moving party discharges this burden, the
burden shifts to the nonmovant to go beyond the pleadings and
present affirmative evidence to show that a genuine issue of
fact does exist. Anderson, 477 U.S. at 257.
IV. DISCUSSION
Plaintiff seeks punitive damages pursuant to O.C.G.A. § 5112-5.1. See Dkt. No. 1, at 6-7.
A. Legal Standard
Georgia law provides that:
Punitive damages may be awarded only in such
tort actions in which it is proven by clear
and convincing evidence that the defendant's
actions showed willful misconduct, malice,
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fraud, wantonness, oppression, or that
entire want of care which would raise the
presumption of conscious indifference to
consequences.
O.C.G.A. § 51-12-5.1(b). "Punitive damages cannot be imposed
without a finding of some form of culpable conduct."
COMCAST Corp. v. Warren, 650 S.E.2d 307, 311 (Ga. Ct. App.
2007). "Something more than [the] commission of a tort is
always required to impose punitive damages." Id. "Negligence,
even gross negligence, is inadequate to support a punitive
damage award." See Colonial Pipeline Co. v. Brown, 365 S.E.2d
827, 830 (Ga. 1988); Warren, 650 S.E.2d at 311. "There must be
aggravating circumstances or outrage, such as spite, malice, or
a fraudulent or evil motive on the part of the defendant, or
such a conscious and deliberate disregard of the interests of
others that the conduct may be called wilful or wanton."
Warren, 650 S.E.2d at 311 (citing Cullen v. Novak, 411 S.E.2d
331 (Ga. Ct. App. 1991). "In this sense, conscious indifference
to consequences means an intentional disregard of the rights of
another, knowingly or wilfully." Id. (citing Read v. Benedict,
406 S.E.2d 488 (Ga. Ct. App. 1991)).
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B. Application
The record lacks any clear and convincing evidence that
Defendant's alleged improper filling of Plaintiff's prescription
was intentional, malicious, willful, wanton, or made with
conscious or deliberate indifference to the consequences. The
record also lacks clear and convincing evidence that Defendant
acted with an entire want of care. To the contrary, the record
indicates that Defendant implemented processes, policies, and
procedures in an attempt to eliminate such errors and that those
processes, policies, and procedures were inadequate to stop the
allegedly misfilled prescription. With respect to the
particular employees who filled Plaintiff's prescription, the
record only suggests that they made an error or errors in
completing their tasks. The record does not demonstrate a clear
pattern of misfilling errors, much less a pattern of malicious,
willful, or wanton actions related to misfilling prescriptions.
At most, Defendant's actions in failing to prevent
Plaintiff's allegedly misfilled prescription demonstrate gross
negligence. See Mableton Parkway CVS, Inc. v. Salter, 615
S.E.2d 558, 564 (Ga. Ct. App. 2005) (overturning trial court's
denial of the defendant pharmacy's request for summary judgment
on the plaintiff's punitive claim where the pharmacist twice
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filled the plaintiff's prescription with a medication different
from the one that her doctor prescribed) . That is insufficient
to sustain a claim for punitive damages pursuant to O.C.G.A.
§ 51-12-5.1. See id.; Colonial Pipeline, 365 S.E.2d at 830.
Plaintiff asserts that Defendant had "a corporate policy of
acceptance of errors." Dkt. No. 48, at 1. In particular,
Plaintiff directs the Court to Defendant's policy to coach,
suspend, and train employees who commit errors when filling
prescriptions. See id. at 2-3. Plaintiff also directs the
Court to evidence that Defendant focuses on "speed" when filling
prescriptions. See id. at 3. Such policies do not demonstrate
intentional, malicious, willful, or wanton misconduct. Nor do
such policies demonstrate an entire want of care or deliberate
indifference to their consequences. By contrast, Defendant's
policies demonstrate an attempt to avoid the precise error that
allegedly occurred here. While the evidence does demonstrate
that Defendant emphasized speed when filling prescriptions, the
evidence also demonstrates that Defendant simultaneously
emphasized accuracy. See, e.g., Dkt. No. 46-11, at 30-31
(noting that "both accuracy and speed are required"). Thus,
even after construing the evidence in Plaintiff's favor, the
Court cannot say that there is any evidence supporting a theory
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that Defendant's policies showed willful misconduct, malice,
wantonness, or an entire want of care.
With respect to Plaintiff's misfilled prescription,
Plaintiff asserts that Defendant took only seventeen (17)
seconds to visually verify the contents of Plaintiff's
prescription bottle. Plaintiff further asserts that this was
less than the average time of thirty (30) seconds that is
typically consumed by a visual verification step. See Dkt. No.
48, at 5. Plaintiff maintains that this "warp-speed visual
verification" demonstrates "an entire want of care in verifying
the contents" of Plaintiff's prescription bottle. See id. at 6.
However, taking approximately half of the time of an average
visual verification does not demonstrate an entire want of care
by clear and convincing evidence. At most, the speed of the
verification step demonstrates that a jury may find that
Defendant's employee was negligent, possibly even grossly
negligent, when verifying the bottle's contents for seventeen
(17) seconds rather than thirty (30) seconds. There is no
evidence that the shortened visual verification step constituted
intentional misconduct, malice, willfulness, or wantonness. Nor
is there clear and convincing evidence that the employee acted
with an entire want of care when completing her task.
AO 72A
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Because there is no clear and convincing evidence that
Defendant's "actions showed willful misconduct, malice, fraud,
wantonness, oppression, or that entire want of care which would
raise the presumption of conscious indifference to
consequences," Defendant's motion for summary judgment on
Plaintiff's claim for punitive damages is GRANTED.
V. CONCLUSION
For the reasons stated above, Defendant's Motion for
Partial Summary Judgment is GRANTED.
Dkt. No. 41.
SO ORDERED, this 2nd day of August, 2013.
0 IL~
L SA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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