Simmons v. CVS Mississippi Pharmacy, LLC et al

Filing 48

ORDER granting in part and denying in part 7 Motion to Dismiss. Signed by District Judge Debra M. Brown on 9/14/2020. (tab)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
SHALOLA SIMMONS, individually
and on behalf of the statutory wrongful
death beneficiaries of Jeffrey Dale
Simmons, deceased

PLAINTIFF

V.

NO. 4:19-CV-148-DMB-JMV

MISSISSIPPI CVS PHARMACY,
L.L.C., et al.

DEFENDANTS
ORDER

Before the Court is Mississippi CVS Pharmacy, L.L.C.’s motion to dismiss Shalola
Simmons’ complaint. Doc. #7. For the reasons explained below, the motion will be granted in
part and denied in part.
I
Procedural History
On October 1, 2019, Shalola Simmons, individually and on behalf of the statutory wrongful
death beneficiaries of Jeffrey Dale Simmons, filed a complaint in the United States District Court
for the Northern District of Mississippi against CVS Mississippi Pharmacy, LLC, and Grady L.
Saxton, alleging that the defendants’ failure to correctly fill a prescription for carvedilol caused
Jeffrey’s death. Doc. #1. On December 30, 2019, 1 the defendants filed a motion to dismiss. Doc.
#7. The defendants filed an answer the same day which stated that “Mississippi CVS Pharmacy,
LLC, [is] incorrectly named as CVS Mississippi Pharmacy, LLC.” Doc. #9 at 1. Simmons
responded to the motion to dismiss on January 16, 2020, 2 Doc. #14; the defendants did not reply.

1
2

Simmons served CVS on December 9, 2019, Doc. #5 at 2, and Saxton on December 17, 2019, Doc. #6 at 2.

Because the Court denied Simmons’ request for an extension to file her response, Doc. #16, the January 16 response
is untimely. In the interest of efficiency, however, the Court has considered its arguments.

At the direction of United States Magistrate Judge Jane M. Virden and with the parties’
consent,3 Simmons filed an amended complaint on February 13, 2020, against Mississippi CVS
Pharmacy, L.L.C. (“CVS”), and Saxton. Doc. #22. The defendants answered the amended
complaint on February 28, 2020. Doc. #30. On August 5, 2020, the parties filed a joint stipulation
dismissing Saxton with prejudice. Doc. #47.
II
Standard of Review
To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face. 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. Moreover, a complaint will not be dismissed merely because
it contains an imperfect statement of the legal theory supporting the claim asserted.
Balle v. Nueces Cnty., Tex., 952 F.3d 552, 556 (5th Cir. 2017) (cleaned up). When a motion to
dismiss is filed before an amended complaint but the amended complaint fails to cure the alleged
defects, a court may consider the motion to dismiss with respect to the amended complaint. See
Dalfrey v. Boss Hoss Cycles, Inc., 456 F. App’x 329, 331 n.1 (5th Cir. 2011).
Here, the motion to dismiss was filed before the amended complaint but the amended
complaint asserts the same claims alleged in the original complaint. The amended complaint
merely cured deficiencies in the original complaint’s jurisdictional allegations, and replaced all
references to “CVS Mississippi Pharmacy, LLC” with the correct entity name of “Mississippi CVS
Pharmacy, L.L.C.” Under these circumstances, the Court will address the merits of the motion to
dismiss.
III
Factual Allegations
On July 14, 2017, Jeffrey Dale Simmons had a prescription filled at the CVS pharmacy
3

See Doc. #40.
2

store in Southaven, Mississippi. Doc. #22 at 1. The prescription, written by Dr. William Booker,
was for carvedilol4 6.25 mg tablets. Id. at 1–2. Saxton, a pharmacist at the store, “incorrectly
filled [Jeffrey’s] prescription with carvedilol 25 mg” instead of the prescribed 6.25 mg dosage. Id.
at 1–2. Jeffrey died on August 25, 2017, as a result of the incorrect prescription. Id. at 6, 7.
Neither CVS nor Saxton informed Jeffrey of the error before his death, and did not inform his
family of the error until fifteen days after his death.5 Id. at 6.
IV
Analysis
Simmons asserts claims under the Mississippi Product Liability Act (“MPLA”), a wrongful
death claim, entitlement to punitive damages, “survival claims of the decedent,” and “pharmacy
negligence” claims. Doc. #22 at 7–9. CVS contends that “[t]his is a medical negligence case,”
“not a products liability case,” and asks the Court to dismiss the complaint because Simmons
“failed to obtain the required expert consultation.” Doc. #7 at 1, 2. CVS also asks the Court to
dismiss Simmons’ MPLA claims because Simmons “has not sued Defendants for the sale of a
defective product or alleged that the subject medication is an inherently dangerous drug.” Id.
A. Statutory Compliance
CVS argues that “Simmons was required to adhere to Miss. Code Ann. § 11-1-58 prior to
filing her Complaint” and that her failure to comply with the statute means “dismissal of her
Complaint is required.” Doc. #8 at 3.
Mississippi Code § 11-1-586 provides:

4

Carvedilol is approved by the United States Food and Drug Administration and is used for the treatment of
hypertension. Doc. #22 at 6.
5

The medical records attached to the amended complaint, however, include an October 11, 2017, entry indicating that
the pharmacy called the doctor’s office on October 9, 2017, to inform the office that the prescription had been filled
incorrectly. Doc. #22-4 at PageID #115.
6

The parties’ arguments assume Mississippi Code § 11-1-58 applies in federal diversity actions like this case. See
Doc. #8 at 2; Doc. #15 at 3. Under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), “federal courts sitting in diversity
3

In any action against a licensed physician, health care provider or health care
practitioner for injuries or wrongful death arising out of the course of medical,
surgical or other professional services where expert testimony is otherwise required
by law, the complaint shall be accompanied by a certificate executed by the attorney
for the plaintiff declaring that:
(a) The attorney has reviewed the facts of the case and has consulted with
at least one (1) expert qualified pursuant to the Mississippi Rules of Civil
Procedure and the Mississippi Rules of Evidence who is qualified to give
expert testimony as to standard of care or negligence and who the attorney
reasonably believes is knowledgeable in the relevant issues involved in the
particular action, and that the attorney has concluded on the basis of such
review and consultation that there is a reasonable basis for the
commencement of such action.
Miss. Code. Ann. § 11-1-58(a). In analyzing the statute, the Mississippi Supreme Court has held
that “a complaint, otherwise properly filed, may not be dismissed and need not be amended, simply
because the plaintiff failed to attach a certificate or waiver.” Wimley v. Reid, 991 So. 2d 135, 138
(Miss. 2008). A certificate filed after the complaint can satisfy the statute if the plaintiff’s attorney
consulted with an expert prior to filing the complaint. Id. at 139.
While Simmons did not file a certificate with the original complaint or prior to the motion
to dismiss, she filed a certificate on January 16, 2020. Doc. #13. The certificate indicates that
Simmons’ attorney “consulted with a licensed, practicing cardiologist physician who is qualified
as an expert … prior to the filing of this civil action.” Id. at 1 (emphasis added). Thus, Simmons
complied with the consultation requirement before filing the complaint such that dismissal for
failure to comply with the statute is not warranted.7

apply state substantive law and federal procedural law.” Gasperini v. Ctr. For Humanities, Inc., 518 U.S. 415, 427
(1996). Based on its express language, § 11-1-58 deals with “substantive, pre-suit requirements.” It seems likely the
statute’s pre-suit requirements would be deemed substantive. See Woods v. Holy Cross Hosp., 591 F.2d 1164, 1168
(5th Cir. 1979) (pre-suit mediation requirement substantive for Erie analysis). The parties also assume that a pharmacy
would be considered a “health care provider” under the statute. However, given that the Court ultimately concludes
that the certificate requirement has been satisfied, neither question need be resolved.
7

CVS relies on Forest Hill Nursing Center & Long Term Care Mgmt., LLC v. Brister, 992 So. 2d 1179 (Miss. 2008),
to support its position. Doc. #8 at 4. However, in Forest Hill, dismissal of the complaint was proper because the
plaintiff’s attorney admitted to not consulting with an expert prior to commencing the lawsuit. 992 So. 2d at 1189
4

B. Product Liability Claims
CVS argues that Simmons “pleads no claim for relief under the Product Liability Act”
because “[t]his matter is governed by Mississippi’s medical negligence statutory scheme … and
does not fall under Mississippi’s Product Liability Act.” Doc. #8 at 6. CVS contends, without
citation to Mississippi case law,8 that “the Mississippi Supreme Court has conclusively established
that claims against both pharmacies and pharmacists concerning alleged prescription mis-fills are
medical negligence claims.” Id. at 5. Simmons responds that her “implied-warranty claims”
should be allowed to proceed because they “are not duplicative of already-pleaded manufacturing
defect products liability claims.” Doc. #15 at 6.
Simmons’ argument is somewhat unclear but seems to be based on the assumption that it
is proper to assert an implied warranty claim so long as the claim is not duplicative of a parallel
products liability count. This is, as a general matter, true. See Young v. Bristol-Myers Squibb Co.,
No. 4:16-cv-108, 2017 WL 706320, at *4 (N.D. Miss. Feb. 22, 2017). However, just because
Simmons is allowed to plead an implied warranty claim, it does not mean that she has adequately
pled such a claim so as to survive a motion to dismiss.
The elements of an implied-warranty claim are:
(1) That a “merchant” sold “goods,” and he was a merchant with respect to “goods
of the kind” involved in the transaction, (2) which were not merchantable at the
time of the sale, and (3) injuries and damages to the plaintiff or his property, (4)
caused proximately and in fact by the defective nature of the goods, and (5) notice
to the seller of the injury.
McGinty v. Grand Casinos of Miss., Inc.-Biloxi, 245 So. 3d 444, 449 (Miss. 2018). Thus, to
succeed on an implied warranty claim, Simmons must have alleged that carvedilol was defective

(“[I]t is not necessary to remand this case pursuant to Wimley, because the plaintiff's attorney in today’s case admits
that he did not consult an expert prior to commencing this lawsuit.”).
8

The only citation is to a Texas Supreme Court case.
5

or “not merchantable.” By failing to include any such allegations here, Simmons has failed to state
an implied warranty claim.
V
Conclusion
CVS’ motion to dismiss [7] is GRANTED in Part and DENIED in Part. The motion is
GRANTED to the extent it seeks dismissal of the MPLA claims. The motion is DENIED in all
other respects.
SO ORDERED, this 14th day of September, 2020.
/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE

6