Herkenhoff v. Supervalu Stores, Inc. d/b/a Shop 'n Save et al

Filing 90

MEMORANDUM AND ORDER re: 49 MOTION to Dismiss Party Supervalu Pharmacies, Inc. d/b/a Shop 'n Save Pharmacies, Inc. filed by Defendant Supervalu Pharmacies, Inc., 51 MOTION to Dismiss Party Supervalu Inc. f/k/a Super valu Stores, Inc. filed by Defendant Supervalu Stores, Inc., 65 MOTION to Dismiss :Plaintiff's Third Amended Complaint filed by Defendant Supervalu Stores, Inc., 63 MOTION to Dismiss :Plaintiff's Third Amende d Complaint filed by Defendant Supervalu Pharmacies, Inc., 69 MOTION to Dismiss :Fourth Amended Complaint filed by Defendant Supervalu Pharmacies, Inc., Defendant Supervalu Stores, Inc., 59 MOTION for Sanctions filed by Defendant Shop 'N Save Warehouse Foods Inc., Defendant Supervalu Pharmacies, Inc., Defendant Supervalu Stores, Inc. IT IS HEREBY ORDERED that the defendants' motion to dismiss (#69) is GRANTED in part and DENIED in part. IT IS FUR THER ORDERED that defendant Supervalue Stores, Inc. is DISMISSED. IT IS FURTHER ORDERED that Count II is DISMISSED and plaintiff's claims for failure to supervise, improper labeling, and attorneys' fees are DISMISSED. IT IS FURTHER ORDERED that the defendants' motion for sanctions (#59) is GRANTED in part and DENIED in part; defendants may file a motion seeking reasonable monetary sanctions are set forth in this memorandum. IT IS FINALLY ORDERED that the remaining motions to dismiss earlier versions of the complaint (#49, #51, #63, #65) are DENIED as moot. Signed by District Judge Stephen N. Limbaugh, Jr on 1/12/15. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KATHERINE HERKENHOFF,
Plaintiff,
v.
SUPERVALU STORES, INC. d/b/a
SHOP ‘N SAVE , et al.
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 4:13CV1974 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on defendants’ motion to dismiss the plaintiff’s
Fourth Amended Complaint (#69). Plaintiff alleges that the defendant pharmacy filled
her prescription with a blood pressure medicine instead of her anti-seizure medicine and
that she suffered injuries as a result. Plaintiff was required to amend her pleadings before
May 15, 2014. She requested leave to file her Third Amended Complaint on June 27,
2014. (#41, #42.) Leave was granted for Plaintiff to file her Third Amended Complaint
on August 8, 2014. (#62.) The Court also ordered that the defendants advise whether
they intended their then-pending motion to dismiss applied to the Third Amended
Complaint or file a new motion. Defendants filed their Motions to Dismiss and
supporting Memoranda on August 11, 2014. Plaintiff was ordered to respond to said
Motions by August 18, 2014. Instead, on August 19, 2014, plaintiff filed a Fourth
Amended Complaint without requesting or obtaining leave of court and without consent
of the defendants.
1

The Fourth Amended Complaint includes two counts. Count I is for negligence
against all defendants. Count II is for wanton and willful misconduct. Defendants have
moved to dismiss again (#69). The defendants have also moved for sanctions based on
alleged discovery violations (#59). The motions have been fully briefed and are now ripe
for disposition.
I.

Motion to Dismiss (#69)
The motion to dismiss contains several distinct arguments for dismissal.
A.

Failure to Seek Leave of Court for Amendment

First, defendants point out that plaintiff filed her Fourth Amended Complaint
without leave of Court. Federal Rule of Civil Procedure 15(a)(2) states that a party may
only amend pleadings with the other party’s consent or the Court’s leave. Here, plaintiff
explains that she filed the petition in response to the Court’s August 8, 2014 Order, which
stated that
that defendants shall have seven days from the date of this order either to
file new Motions to Dismiss in light of the Third Amended Complaint, or to
advise the Court and plaintiff that they wish to stand on the arguments
made in the Motions to Dismiss (#49, #51) as they apply to the Third
Amended Complaint. The plaintiff shall have seven days thereafter in
which to file memoranda responding to the Motions to Dismiss and Motion
for Sanctions.
(#62 at 9.) Rather than file a memorandum opposing the motion to dismiss, plaintiff
apparently responded by filing an amended complaint. Plaintiff states that she now
requests leave to file the amended complaint. The Court will allow the amendment and
address the motion to dismiss on the merits. The Court is being extremely lenient with

2

plaintiff, particularly in light of plaintiff’s record in this case; plaintiff is cautioned that
further deadlines must be adhered to.
B.

Rule 12(b)(6) Motion

The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to
test the legal sufficiency of a complaint so as to eliminate those actions “which are fatally
flawed in their legal premises and designed to fail, thereby sparing litigants the burden of
unnecessary pretrial and trial activity.” Young v. City of St. Charles, 244 F.3d 623, 627
(8th Cir. 2001) (quoting Neitzke v. Williams, 490 U.S. 319, 326-27 (1989)). Although a
complaint challenged by a Rule 12(b)(6) motion does not need detailed factual
allegations, a petitioner must still provide the grounds for relief, and neither “labels and
conclusions” nor “a formulaic recitation of the elements of a cause of action” will suffice.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).
“To survive a motion to dismiss, a claim must be facially plausible, meaning that the
‘factual content . . . allows the court to draw the reasonable inference that the respondent
is liable for the misconduct alleged.’” Cole v. Homier Dist. Co., Inc., 599 F.3d 856, 861
(8th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court must
“accept the allegations contained in the complaint as true and draw all reasonable
inferences in favor of the nonmoving party.” Id. (quoting Coons v. Mineta, 410 F.3d
1036, 1039 (8th Cir. 2005)). With these principles in mind, the Court turns to the
discussion.

3

1.

Corporate Defendant

Plaintiff has sued two corporate entities --- Supervalu Stores, Inc., and its
subsidiary, Supervalu Pharmacies, Inc. Defendants contend that Supervalu Stores should
be dismissed because plaintiff has pleaded no facts against Supervalu Stores other than
the fact that it is Supervalu Pharmacies, Inc.’s parent company. Under Missouri law,
“two separate corporations act as distinct legal entities, even if one partly or wholly owns
stock in the other.” Ritter v. BJC Barnes Jewish Christian Health Sys., 987 S.W.2d 377,
384 (Mo. App. E.D. 1999). A parent corporation is thus ordinarily not liable for the
tortious acts of its subsidiary. Id. The exception to that rule exists when “there is
evidence to support a finding which would pierce the corporate veil.” Id.
Two factors must be met to pierce the corporate veil and disregard corporate
forms. First, the corporation must be controlled or influenced by another corporation;
second, “there must be evidence that the ‘corporate cloak was used as a subterfuge to
defeat public convenience, to justify a wrong, or to perpetuate a fraud.’” Id. (quoting
Thomas Berkeley Consulting Eng’r, Inc. v. Zerman, 911 S.W.2d 692, 695–696 (Mo.App.
E.D.1995)).
Plaintiff sets forth no such facts here. Instead, the allegations focus solely on the
dispensing of allegedly improper medication by the pharmacists, who were employed by
Supervalu Pharmacies. Because there are no facts alleged against Supervalu Stores, no
claim is stated against defendant Supervalu Stores, and claims against Supervalu Stores
will be dismissed.

4

2.

Affidavit of Merit

Defendants contend that the complaint should be dismissed because plaintiff has
failed to file affidavits regarding medical causation pursuant to § 538.225 RSMo.
Plaintiff responds that the affidavits were filed on December 23, 2013 (#12) in
connection with plaintiff’s motion for reconsideration. Further, plaintiff refiled the
affidavits when they filed their response memorandum (#74, #75). Defendants did not
take up this matter in their reply memorandum, and the Court presumes that the
defendants are satisfied with the affidavits as filed and plaintiff’s compliance with §
538.225 RSMo.
3.

Punitive Damages

Plaintiff’s Count II is for “Willful and Wanton Misconduct.” Defendants seek
dismissal of Count II because it is not permissible to plead an independent cause of action
for punitive damages. Indeed, Missouri law does not recognize an independent cause of
action for punitive damages; punitive damages must be sought in conjunction with a
claim for actual damages. Sports Capital Holdings (St. Louis), LLC v. Schindler Elevator
Corp. & Kone, No. 4:12CV1108 SNLJ, 2014 WL 1400159, at *8 (E.D. Mo. Apr. 10,
2014) (citing Misischia v. St. John's Mercy Med. Ctr., 30 S.W.3d 848, 866 (Mo. App.
E.D. 2000)). Plaintiff concedes that Count II seeks punitive damages, but she argues that
because Count II specifically incorporates all the preceding paragraphs of the Complaint -- including Count I’s claim for actual damages --- that her punitive damages claim are
brought in conjunction with the claim for actual damages.
In Count II, plaintiff has simply added a phrase “intentionally or with reckless
5

disregard …” to each of the individual claims of negligence in order to allege a basis for
punitive damages. However, to “state a claim for punitive damages against a health care
provider, a plaintiff’s petition must allege facts indicating the defendant willfully,
wantonly, or maliciously injured the plaintiff by its tortious act.” Dibrill v. Normandy
Associates, Inc., 383 S.W.3d 77, 91 (Mo. App. E.D. 2012). Here, no “facts” are alleged,
but rather plaintiff simply repeats her allegations of negligence and adds that conclusory
language regarding intent or reckless disregard. In the absence of factual allegations
showing willful, wonton, or malicious behavior, this Court will dismiss Count II and will
not permit plaintiff to amend her complaint for a fifth time.
4.

Direct Action Against Corporation

Plaintiff’s complaint alleges primarily that Supervalu Pharmacies is liable to her
due to the actions of its agents, pharmacists Fred Tichy and Lindsay Reel. The
complaint also alleges that defendants failed to monitor and supervise the pharmacists to
ensure the proper medication was being provided. (#68 at ¶ 23(c).) However, defendants
assert that such a claim for “institutional negligence” against a pharmacy is not
cognizable because the corporation does not have the authority to dictate, alter, or affect
the professional discretion and judgment of the pharmacist or to interfere with the
pharmacist’s relationship with the patient. See, e.g., Downey v. Mitchell, 835 S.W.2d
554, 556 (Mo. App. E.D. 1992) (“hospital and its employees are not required to interfere
with the physician-patient relationship”). Indeed, “negligent supervision implicates the
duty of a master to control conduct of a servant.” Gibson v. Brewer, 952 S.W.2d 239,
247 (Mo. banc 1997). Further, defendants contrast plaintiff’s allegations here --- which
6

defendants say speak only to the actions by professional pharmacists --- with allegations
going to the actions by others in the corporation, such as failing to hire a qualified or
competent employee. Cf. LeBlanc v. Research Belton Hosp., 278 S.W.3d 201, 207 (Mo.
App. W.D. 2008) (holding that the plaintiff had “sufficiently pleaded a claim of corporate
negligence … [against a hospital], specifically negligent credentialing.”).
Indeed, plaintiff appears to misunderstand the defendants’ arguments.
Corporations themselves are artificial beings; they can act only through their agents. See
Fowler v. Park Corp., 673 S.W.2d 749, 754 (Mo. banc 1984). Plaintiff’s insistence that
there can be “direct liability” against the corporation appears to miss the point (although,
at the same time, plaintiff recognizes that the corporation acts only through its agents
(#81 at 2)). In any event, even if there were a cognizable claim against a pharmacy for
failure to supervise its pharmacists, the plaintiff has not alleged facts specific enough to
be actionable. Plaintiff alleges only that the defendants “fail[ed] to monitor and supervise
the pharmacists.” (#68 at ¶ 23(c).) Those bare allegations are the mere “labels and
conclusions” prohibited by Twombly, 550 U.S. at 555, and any claim against the
corporation for failure to supervise is insufficient on its face.
5.

Improper Labeling and Attorneys’ Fees

Plaintiff concedes that her clam for improper labeling should be dismissed.
Plaintiff also agrees to withdraw her claim for attorneys’ fees.
II.

Motion for Sanctions (#59)
Federal Rule of Civil Procedure 37 and this Court’s inherent authority permit it to

sanction parties for conduct which abuses the judicial process. See Chambers v. NASCO,
7

Inc., 501 U.S. 32, 43 (1991). Defendants seek sanctions against plaintiff because,
defendants say, plaintiff willfully obstructed discovery in this matter by withholding facts
regarding her past medical history.
Plaintiff claims she sought treatment not only for the broken coccyx (that occurred
when the allegedly wrong-supplied medication caused her to fall), but also for back and
knee problems following the falls complained of. The two complained-of falls occurred
on April 29 and May 15, 2012. Defendants served interrogatories on plaintiff that asked
her to disclose all hospitals where she was examined or treated for the ten years before
the events described in the complaint. Plaintiff disclosed her treatment by a Dr. Curylo at
Mercy Hospital following the 2012 falls, but she did not disclose any medical facilities
where she was seen for back problems prior to the alleged falls. Plaintiff’s interrogatory
responses also reflect that she had no pre-existing injury or medical condition related to
her tailbone. Similarly, plaintiff did not disclose any information concerning pre-existing
knee problems. At her deposition, plaintiff testified that she never had any pain in her
lower back or knees before the falls complained of, and she said she never saw any health
care provider for low back pain or knee pain before the 2012 falls.
Defendants state that plaintiffs’ medical records tell a different story. Indeed, the
medical records show that plaintiff was treated by Dr. Curylo in 2010 for back pain.
When confronted with that information at her deposition, plaintiff said she did not
remember seeing Dr. Curylo for back pain in 2010 --- she remembered seeing him only
once, in 2012. Plaintiff’s records also show she was treated for knee pain in 2010;
plaintiff remembers the injections, which according to the records occurred in 2010, but
8

she appears to believe those treatments occurred after the 2012 falls. Plaintiff was
adamant in her deposition that she had no memory of back or knee problems before the
falls. However, her medical documentation between 2009 and 2011 shows she made
numerous complaints to medical care providers regarding back and knee pain before the
2012 falls.
Plaintiff responds in her opposition brief that her medical history is long and
complicated and that she is a “simple” woman who merely forgot those incidents and
refused to testify that she remembered something she did not remember. Plaintiff’s
deposition shows she is a woman with myriad health problems --- including several
significant psychological problems. However, plaintiff’s counsel has not offered
evidence why those mental health issues would cause plaintiff to deny being treated
multiple times for back and knee pain for years. Plaintiff points out that the fact that Dr.
Curylo had seen plaintiff previously for “chronic” back and knee pain was included in
Dr. Curylo’s records regarding the 2012 visit resulting from the falls. In that case,
however, plaintiff’s counsel should have discovered plaintiff’s previous treatment history
on his own.
Plaintiff’s failure to explain these discrepancies do not --- at this point --- rise to
the level of sanction of dismissal. The Court would, however, entertain monetary
sanctions limited to the extra effort expended by defense counsel as a result of the clearly
inaccurate discovery responses that plaintiff provided in answers to interrogatories and
deposition questions. The answers defendants were given by plaintiff were inconsistent
with medical records provided by plaintiff’s medical care providers. Had defendants not
9

sought out those other medical records, they might not have learned about her extensive
prior medical history going to her back and knee pain (it is not clear to the Court when
the 2012 medical records, which hinted at such a history, were provided). In light of
these troubling discrepancies and the resulting extra effort required on the part of defense
counsel, defendants may file a motion setting forth what monetary sanctions to which
they believe they are entitled.
*

*

*

*

Accordingly,
IT IS HEREBY ORDERED that the defendants’ motion to dismiss (#69) is
GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that defendant Supervalue Stores, Inc. is
DISMISSED.
IT IS FURTHER ORDERED that Count II is DISMISSED and plaintiff’s
claims for failure to supervise, improper labeling, and attorneys’ fees are DISMISSED.
IT IS FURTHER ORDERED that the defendants’ motion for sanctions (#59) is
GRANTED in part and DENIED in part; defendants may file a motion seeking
reasonable monetary sanctions are set forth in this memorandum.
IT IS FINALLY ORDERED that the remaining motions to dismiss earlier
versions of the complaint (#49, #51, #63, #65) are DENIED as moot.
Dated this 12th day of January, 2015.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

10