Patterson, et al v. Walgreen Company, et al

Filing 3

ORDER TO SHOW CAUSE as to Walgreen Company. Show Cause Response due by 5/6/2013,. Signed by Judge Xavier Rodriguez. (rf)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
POLLY PATTERSON and ROBERT L.
PATTERSON,
Plaintiffs,
v.
WALGREEN COMPANY and L.R.R.,
R.Ph.,
Defendants.

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Civil Action No. SA-13-CV-338-XR

SHOW CAUSE ORDER
On this date, the Court considered Defendant Walgreen’s Notice of Removal and its
jurisdiction over this removed case.
Plaintiffs Polly and Robert Patterson filed their Original Petition in state court on March 26,
2013, against Walgreens and its pharmacist, L.R.R. Plaintiffs sue L.R.R. for negligence, alleging that
L.R.R. incorrectly filled Robert’s prescription, causing him injury. Plaintiffs allege that the pharmacist
violated the duty of care exercised by pharmacists in the same or similar circumstances and owed to
Robert. Plaintiffs allege that Walgreens is liable under the doctrine of respondeat superior.
After being served, Defendant Walgreens removed the case to this Court on April 25, 2013,
on the basis of diversity jurisdiction. Walgreens contends that this Court has diversity jurisdiction
because L.R.R., a non-diverse Texas defendant, is improperly joined. Walgreens asserts that there
is no reasonable basis for Plaintiffs’ claim against L.R.R. because L.R.R. was, “at the time of the
incident complained of, an employee of Walgreens and is sued in the course and scope of
employment.” Walgreens asserts categorically that “[a]n employee sued regarding a matter within

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the course and scope of her employment must be disregarded for purposes of diversity jurisdiction.”
Walgreens relies on Leitch v. Hornsby, 935 S.W.2d 114 (Tex. 1996), and its progeny, in which
the Texas Supreme Court held that individual liability of a corporate officer or agent arises “only
when the officer or agent owes an independent duty of reasonable care to the injured party apart from
the employer’s duty.” In 2005, the Texas Supreme Court expanded the application of Leitch to a
premises liability case. It discussed the proper application of Leitch:
The defendants are correct that a negligence finding against an individual does not
automatically result in individual liability when the individual was acting as the agent
or employee of a corporation. Corporations can, of course, only act through
individuals. We explained in Leitch v. Hornsby when individual liability will be
imposed and when it will not. “[I]ndividual liability arises only when the officer or
agent owes an independent duty of reasonable care to the injured party apart from the
employer’s duty.” We gave as an example an agent whose negligence caused an
automobile collision while the agent was driving in the course and scope of
employment. An agent, in his individual capacity, owes a duty to the public to drive
with reasonable care. Therefore, the individual is liable for his or her own negligence,
and the employer is also vicariously liable. The situation in Leitch, however, was
different. The corporate agents were not individually liable even though the jury had
found them and their employer negligent. In that case, the plaintiff Hornsby was
injured when he lifted a sixty-pound reel of cable. There was evidence that his
employer, through its officers and employees, had declined to provide Hornsby a
lifting belt or dolly. We held that the actions or inactions of the individuals were
actions or inactions “within their capacities as officers” of Hornsby’s corporate
employer and that the individuals “had no individual duty as corporate officers to
provide Hornsby with a safe workplace.” The individuals were not liable for their
negligence because they “did not breach any separate duty” to Hornsby. Only their
corporate employer was liable for their negligence.
Tri v. J.T.T., 162 S.W.3d 552, 562-63 (Tex. 2005). The Court held that the existence of a duty is a
question of law for the Court, but it could not determine from the record whether the individual
defendant in Tri owed an independent duty of care. Thus, the mere fact that the plaintiff sued an
employee for actions taken in the course of their employment was not dispositive of the duty question.
See Bell v. Wal-Mart No. 2978, Civ. A. No. 4:11-CV-576, 2011 WL 5022815, at *3 (N.D. Tex. Oct.
18, 2011) (“The holding of Tri, however, did not definitively establish that in every instance
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employees owe no independent duty of care while acting within the scope of their employment.”).
After Tri, courts have applied Leitch to premises liability cases, finding that store managers
and employees did not owe an independent duty of care to patrons who were injured on store
property. See, e.g., Kopczynski v. Wal-Mart Stores Texas, L.P., No. H-10-4507, 2011 WL 902237
(S.D. Tex. March 14, 2011); Gaston v. Wal-Mart Stores Texas, LLC, No. H-09-4094, 2010 WL
1426876 (S.D. Tex. April 8, 2010); Gonzalez v. Wal-Mart Stores, Civ. A. No. 10-CV-120, 2010 WL
1417748 (W.D. Tex. March 31, 2010).
However, the existence of an independent duty in non-premises cases where the employee
personally provides the service alleged to have been negligently performed has not been clarified.
For example, in Carrion v. Ethicon Endo-Surgery, Inc., No. C-11-19, 2011 WL 649596 (S.D. Tex.
Feb. 11, 2011), the plaintiffs sued the manufacturer of a vascular stapler and its employee, alleging
that the employee was negligent in selling, marketing, and inspecting the medical stapler. The Court
concluded that, reviewing all factual allegations in the pleadings in the light most favorable to the
plaintiff and resolving all ambiguities in favor of the plaintiff, there was “no way to conclude at this
juncture that [the employee] did not breach an independent duty of care in the course of marketing,
selling, or inspecting the stapler” or that he did not direct or participate in tortious acts for which he
may be found personally liable. Id. at *4. “Simply put,” the court stated, Leitch does not mean that
an employee’s status as an agent of his employer “necessarily shields him from personal liability for
his own tortious conduct.” Id. The court noted that the plaintiffs alleged that the employee personally
marketed the stapler, and inspected it himself but failed to warn the hospital or surgeon that it was
unsafe for use in a vascular closure, and “[t]hese allegations at least raise the possibility that [the
employee] breached an independent duty of care to the decedent.” Id.
In Alexander v. Lincare, Inc., Civ. A. No. 3:07-CV-1137-D, 2007 WL 4178592 (N.D. Tex.

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Nov. 27, 2007), the plaintiff sued both a medical equipment technician and her employer corporation
for negligence. The district court concluded that nothing in Leitch suggests that the Texas Supreme
Court intended to alter the general rule that a company employee is personally liable for tortious
conduct in which she participates during the course and scope of her employment, provided she owes
a legal duty to the plaintiff. The court then listed “a number of post-Leitch Texas cases that involve
claims of negligence against therapists and nurses, in their individual capacities, for acts committed
within the scope of their employment.” However, the court noted that these decisions appeared to
assume the existence of an independent duty of care rather than expressly considering the issue. “At
the very least,” the court concluded, “these cases show that Lincare cannot meet its heavy burden of
establishing that there is no reasonable basis for the court to predict that Alexander might be able to
recover under Texas law against [the employee] individually for her negligent acts committed within
the scope of her employment.”
Other courts have also concluded that the existence of an independent duty is a fact question
when the individual employee is directly involved in the service that gives rise to the alleged
negligence. Thus, in Garrison v. The Sherwin-Williams Co., No. 4:10cv128, 2010 WL 2573973 (E.D.
Tex. June 1, 2010), recommendation adopted by 2010 WL 2573963, the court stated, “If the corporate
employee is only indirectly involved in the alleged negligence, then the Court will not impose an
individual duty on the employee, however if the involvement is directly related to the alleged
negligence, a question of fact exists as to whether the corporate employee owes an individual duty
to a plaintiff.” Similarly, in Guzman v. Cordero, 481 F. Supp. 2d 787 (W.D. Tex. 2007), the district
court found the possibility of an independent duty because the individual employee was personally
involved in providing services to the plaintiff. The court reasoned,
Unlike the individual defendants in Leitch, Cordero was directly and personally
involved in conduct that allegedly caused Plaintiff’s injuries because Cordero actually
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performed the services in question. And, it is well-settled in Texas that an individual
undertaking to provide services to another, either gratuitously or for compensation,
owes a duty of reasonable care. See Torrington Co. v. Stutzman, 46 S.W.3d 829,
837-38 (Tex. 2000). While the corporate officers in Leitch owed no duty to furnish a
safe workplace to their employees independent from the duty owed by the corporate
employer, this Court cannot say with certainty the same is true regarding an employee
who was directly engaged in providing a service to a customer.
Id. at 790.
At least one Texas court has held that, “in filling and refilling prescriptions, pharmacists are
required to exercise the high degree of care that a very prudent and cautious person would exercise
under the same or similar circumstances in that business.” Morgan v. Wal-Mart Stores, Inc., 30
S.W.3d 455, 461 (Tex. App.–Austin 2000, pet. denied). The Third Court of Appeals held “that
pharmacists owe purchasers of prescription medication ‘the highest practicable degree of prudence,
thoughtfulness and vigilance and the most exact and reliable safeguards consistent with the reasonable
conduct of the business in order that human life may not constantly be exposed to the danger flowing
from the substitution of deadly poisons for harmless medicines’” and that “[a] pharmacist who
inaccurately fills a prescription is therefore liable to the customer for resulting harm.” Id.
Accordingly, Walgreens’ Notice of Removal fails to satisfy its burden of demonstrating that
Plaintiffs cannot establish a claim against L.R.R. Walgreens must do more than simply assert that
L.R.R. was acting within the course and scope of employment. Walgreens is therefore directed to
show cause in writing, no later than May 6, 2013, why this case should not be remanded.
SIGNED this 30th day of April, 2013.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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