Small v. Welldyne, Inc., et al.

Filing 43

ORDER denying 23 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Terrence W. Boyle on 7/13/2016. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:16-CV-62-BO
MICHAEL A. SMALL, Administrator of )
the Estate of Bertha Autry Small, deceased, )
)
Plaintiff,
)
)
~

)

ORDER

)
WELLDYNE, INC., a Florida Corporation; )
WELLDYNERX, INC., a Florida
)
)
Corporation; U.S. SPECIALTY CARE,
LLC, a Florida Limited Liability Company; )
WELLDYNE HOLDING COPORATION, )
)
a Delaware Corporation; EXACTUS
PHARMACY SOLUTIONS, INC., a
)
Delaware Corporation, and DOES 1 through)
5, inclusive,
)
)
Defendants. )

This cause comes before the Court on defendant Exactus Pharmacy Solutions' motion to
dismiss pursuant to Rule 12(b)(6) ofthe Federal Rules of Civil Procedure. A hearing was held
on the motion before the undersigned on July 7, 2016, at Elizabeth City, North Carolina. For the
reasons discussed below, the motion to dismiss is denied.
BACKGROUND
Plaintiff as administrator of his late mother's estate filed this action in Cumberland
County Superior Court alleging claims arising out of the grossly negligent sale, processing,
handling, and delivery of prescription drugs by defendants. Defendant Exactus Pharmacy
Solutions (Exactus) removed the action to this Court on the basis of its diversity jurisdiction. 28
U.S.C. §§ 1441; 1332. In his complaint, plaintiff alleges that his mother suffered from several

medical conditions and received prescriptions which were delivered to her by mail. Plaintiff
alleges that on November 19, 2013, plaintiffs mother, Ms. Small, received a package from
WellDyne containing six prescriptions which had been filled by Exactus. The medications she
received in this shipment had not been prescribed to Ms. Small, but she did not realize this and
took the medications over a period of several days. Due to the medications Ms. Small's blood
pressure dropped and she suffered a fall during which she broke her left leg. Ms. Small was
hospitalized and had altered mental status and recurrent infections. Her broken leg was
determined to be inoperable due to Ms. Small's condition and she was discharged on December
23, 2013. She died at home on January 2, 2014, as a result of infections and other complications.
Plaintiff has alleged claims for wrongful death based on negligence, negligence per se,
and breach of the implied warranty of fitness for a particular purpose, as well as claims for
ordinary negligence, negligence per se, and breach of the implied warranty of fitness for a
particular purpose. Exactus has moved to dismiss plaintiffs claims against it for failure to state
a claim upon which relief could be granted. Fed. R. Civ. P. 12(b)(6). Specifically, Exactus
argues that plaintiffs claims arise out of medical malpractice not ordinary negligence and that
plaintiff has failed to plead a proper malpractice claim. Exactus further argues that plaintiff has
failed to plead sufficient facts to support a claim for negligence under the doctrine of res ipsa
loquitor, and that plaintiffs claim for breach of implied warranty of fitness for a particular
purpose should be dismissed because Exactus is not a merchant of goods.
DISCUSSION
Rule 8 of the Federal Rules of Civil Procedure "requires only a short and plain statement
of the claim showing that the pleader is entitled to relief' and which provides "the defendant fair
notice of what the claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S.

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89, 93 (2007) (internal quotations, alterations, and citations omitted). A Rule 12(b)(6) motion
tests the legal sufficiency of the complaint. Papasan v. Allain, 478 U.S. 265, 283 (1986).
When acting on a motion to dismiss under Rule 12(b)(6), "the court should accept as true all
well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff."

My/an Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). A complaint must allege enough
facts to state a claim for relief that is facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). Facial plausibility means that the facts pled "allow[] the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged," and mere recitals of
the elements of a cause of action supported by conclusory statements do not suffice. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). A complaint must be dismissed if the factual allegations do not
nudge the plaintiffs claims "across the line from conceivable to plausible." Twombly, 550 U.S.
at 570.
The Court has reviewed plaintiffs complaint in light of the applicable standard and holds
that plaintiff has stated plausible claims for relief and that dismissal is not warranted at this time.
First, plaintiff has sufficiently alleged claims for ordinary negligence. Plaintiff has alleged that
Exactus is a full-service pharmacy that filled prescriptions for six medications which were
ultimately shipped to Ms. Small. Plaintiffs allegations in support of his wrongful death claim
concern improper packaging and shipping, failure to timely discover or correct errors, failure to
adequately warn the decedent, and failure to adequately train, supervise, and monitor their agents
and employees. Such actions may properly be considered under an ordinary negligence
standard. See, e.g. Deal v. Frye Reg/. Med Ctr., Inc., 202 N.C. App. 584 (2010) (unpublished)
(discussing distinction between ordinary negligence and medical malpractice).

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.As to plaintiffs claims against Exactus which may be found to sound in professional and
not ordinary negligence, plaintiff has complied with North Carolina's Rule 9G), which requires
physician review as a condition for filing a medical malpractice action. N.C. Gen. Stat.§ IA-1,
Rule 9G); see also Thigpen v. Ngo, 355 N.C. 198, 204 (2002). Plaintiffhas also sufficiently
stated a claim for medical malpractice, as he has identified the standard of care which Exactus
has allegedly breached and the ways in which that standard was breached. Plaintiffs complaint
specifically references Rule 702 ofthe North Carolina Rules of Evidence, which incorporates by
reference the applicable standard of care for medical malpractice actions as defined in North
Carolina General Statute§ 90-21.12. See also N.C. Gen. Stat.§ 8C-702. Plaintiffhas further
alleged, inter alia, that defendants failed to verify and ensure that the medications prescribed to
Ms. Small were those being delivered to Ms. Small, that they failed to comply with federal
requirements regarding the storage, packaging, and delivery of prescription medications, and that
they failed to comply with the Rules of the North Carolina Board of Pharmacy.
Plaintiff has also sufficiently placed Exactus on notice that the allegations alternatively
support a finding of negligence based on the doctrine res ipsa loquitur. See Diehl v. Koffer, 140
N.C. App. 375, 378 (N.C. App. 2000) (under res ipsa doctrine a plaintiff must be able to show
without expert testimony that the injury was not of the type which would occur without
negligence). Finally, because "North Carolina does permit a proper plaintiff to bring ordinary
negligence claims, in addition to medical malpractice claims, against a health care provider,"

Iodice v. United States, 289 F.3d 270, 276 (4th Cir. 2002), plaintiff may proceed under both
theories at this time.
A claim for breach of the implied warranty of fitness for a particular purpose is governed
by North Carolina General Statute § 25-2-315, which requires that

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where a seller at the time of contracting has reason to know any particular purpose
for which the goods are required and that the buyer is relying on the seller's skill
or judgment to select or furnish suitable goods, there is unless excluded or
modified under the next section [G.S. 25-2-316] an implied warranty that the
goods shall be fit for such purpose.
Although generally "to establish a breach of warranty, there must be evidence sufficient to show
that a defect existed at the time ofthe sale," Bailey v. LeBeau, 79 N.C. App. 345,350 (1986),
where a "pharmacist did more than simply fill the prescription as ordered by the doctor," even in
the absence of evidence that the medication provided was itself defective, a claim for breach of
warranty may be stated. Ferguson v. Williams, 92 N.C. App. 336, 341 (N.C. App. 1988). The
Court thus declines to dismiss plaintiffs breach of implied warranty of fitness claim at this time.
At bottom, plaintiffs complaint contains allegations which nudge plaintiffs claims
across the line from conceivable to plausible and plaintiff has provided Exactus with fair notice
of this claims against it. Dismissal in this posture is therefore unwarranted.
CONCLUSION
Accordingly, for the reasons discussed above, defendant Exactus' motion to dismiss [DE
23] is DENIED.

SO ORDERED, this

il day of~2016.

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T=N~W.-;OYLE

UNITED STATES DISTRICT JUDGE

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