Opinion
No. CV-04-400033-S
March 31, 2005
MEMORANDUM OF DECISION ON MOTIONS TO STRIKE
This matter came before the court on February 14, 2005 on four motions to strike filed separately by three of the eight defendants. Each motion to strike sets forth the same grounds and arguments. Therefore, the court will address all four motions in this memorandum of decision. For the reasons stated below, each motion to strike is granted.
FACTS
On July 6, 2004, the plaintiff, Eldaige T. Plante, filed a three-count complaint against Amor Lomibiao, M.D. (Lomibiao), Rite Aid Corporation (Rite Aid) and Ivery Dudley, Inc. (Ivery Dudley). This action arises out of injuries and losses allegedly sustained as a result of the plaintiff's addiction to prescription medications. Counts one, two and three allege negligence against Lomibiao, Rite Aid and Ivery Dudley, respectively, due to their failure to exercise the degree of care ordinarily exercised by physicians and pharmacists when prescribing narcotic medications.
On November 5, 2004, Ivery Dudley filed an apportionment complaint against Richard S. Childs, Jr., M.D. (Childs), Litchfield Acute Care Services, LLC (Litchfield Acute Care) and Charlotte Hungerford Hospital alleging negligence for their failure to exercise the appropriate degree of care ordinarily exercised by physicians. Also on November 5, 2004, Lomibiao filed an apportionment complaint against CVS Pharmacy, Inc. (CVS) and Stop and Shop Supermarket Company, LLC (Stop Shop) alleging that CVS and Stop Shop were negligent in that they failed to exercise the appropriate degree of care ordinarily exercised by pharmacists. On January 5, 2005, the plaintiff amended his complaint to include counts of negligence against each of the apportionment defendants. The amended complaint alleges eight counts of negligence, one count against each of the following defendants: Lomibiao, Rite Aid, Ivery Dudley, Childs, Litchfield Acute Care, Charlotte Hungerford Hospital, CVS and Stop Shop.
On December 27, 2004, CVS filed a motion to strike the first count of Lomibiao's apportionment complaint, accompanied by a memorandum of law in support. On January 19, 2005, Lomibiao filed a memorandum in opposition. On January 21, 2005, Ivery Dudley filed a motion to strike count three of the plaintiff's amended complaint, accompanied by a memorandum of law in support. Also on January 21, 2005, CVS filed a motion to strike count seven of the plaintiff's amended complaint, accompanied by a memorandum of law in support. On January 26, 2005, Ivery Dudley filed a supplemental brief in support of its motion to strike count three of the plaintiff's amended complaint. On January 28, 2005, Rite Aid filed a motion to strike count two of the plaintiff's amended complaint, accompanied by a memorandum of law in support. On February 9, 2005, the plaintiff filed a memorandum in opposition to the motions to strike counts two, three and seven of his amended complaint. On February 10, 2005, CVS submitted a reply brief regarding its motion to strike the first count of the apportionment complaint. On February 14, 2005, Ivery Dudley submitted a second supplemental brief in support of its motion to strike count three of the plaintiff's amended complaint.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "For the purpose of ruling upon a motion to strike, the facts alleged in the complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003). "[G]rounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . ." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).
CVS, Ivery Dudley and Rite Aid argue in their respective motions to strike that the counts against them are legally insufficient because they did not owe a duty to the plaintiff. They state that the only duty they have as pharmacists is to fill valid prescriptions as prescribed by a physician. They contend that they do not have a duty to warn a customer or notify a customer's physician of the dangers of a prescribed drug. The learned intermediary doctrine, they argue, shields them from liability.
In response, the plaintiff and defendant/apportionment plaintiff Lomibiao contend that CVS, Ivery Dudley and Rite Aid are confusing the existence of a duty with the applicable standard of care. The plaintiff and Lomibiao state that someone in the same position as the defendants, knowing what they knew or should have known, would anticipate the harm that was suffered was a likely result. They also state that public policy favors holding pharmacists legally responsible for deviating from that standard of care. They contend that the reliance the defendants place on the learned intermediary doctrine is misplaced because that doctrine applies to drug manufacturers in strict liability cases, not to pharmacists in negligence actions. The plaintiff and Lomibiao also argue that the defendants are bound by statutes and regulations governing pharmacists on both the state and federal level.
CVS and Ivery Dudley separately submitted supplemental briefs in response to the arguments set forth by the plaintiff and Lomibiao. CVS argued that duty and scope are inextricably linked and that Connecticut courts have applied the learned intermediary doctrine to pharmacists. In addition, CVS contends that the statutes cited by the plaintiff and Lomibiao are narrow in scope and do not apply in this case. Ivery Dudley argue that the complaint sets forth a claim for common-law negligence and states no statutory grounds. As such, Ivery Dudley contend, it is inappropriate to consider the statutes cited by the plaintiff and Lomibiao in a motion to strike.
"The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand . . . If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." (Citation omitted; internal quotation marks omitted.) Ward v. Greene, 267 Conn. 539, 565-66, 839 A.2d 1259 (2004). "[T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." Gould v. Mellick Sexton, 263 Conn. 140, 153, 819 A.2d 216 (2003).
The defendants state that the learned intermediary doctrine shields them from liability. "The learned intermediary doctrine provides that adequate warnings to prescribing physicians obviate the need for manufacturers of prescription products to warn ultimate customers directly." (Internal quotation marks omitted.) Vitanza v. Upjohn Co., 257 Conn. 365, 376, 778 A.2d 829 (2001). "The learned intermediary doctrine stands for the proposition that, as a matter of law, the prescribing physician of a prescription drug is the person best able to take or recommend precautions against the harm." Id., 384.
There is no appellate authority directly on point regarding whether a pharmacist owes a duty to customers or whether the learned intermediary doctrine applies to pharmacists. Two recent Superior Court decisions, however, have dealt with these issues. In Nobles v. Astrazeneca Pharmaceuticals, 48 Conn.Sup. 134, 832 A.2d 1241 (2003) ( 35 Conn. L. Rptr. 284), the plaintiff brought a negligence action against Astrazeneca and Long Hill Road CVS, Inc. (Long Hill) for injuries allegedly sustained while using a prescribed drug. Long Hill moved for summary judgment arguing that a pharmacy owes no duty to a customer and that the pharmacy was protected by the learned intermediary doctrine. In granting Long Hill's motion, the court held that a "pharmacy does not owe a duty to warn a patient of the side effects associated with a drug prescribed by a treating physician . . . The treating physician is in a better position to warn such patient." (Citations omitted.) Id., 137.
Astrazeneca also moved for summary judgment. That motion was denied by the court. At a later proceeding, the court's decision regarding Astrazeneca's motion for summary judgment only was vacated. See Nobles v. Astrazeneca Pharmaceuticals, Superior Court, judicial district of New London, Docket No. CV 01 0559311 (September 10, 2003, Hurley, J.T.R.) ( 35 Conn. L. Rptr. 496).
In Deed v. Walgreen Co., Superior Court, judicial district of Hartford, Docket No. CV 03 0823651 (November 15, 2004, Lavine, J.) ( 38 Conn. L. Rptr. 311), the decedent died after taking drugs prescribed by her physician. The complaint alleged that Walgreen was negligent in failing to warn the decedent of the dangers of the prescribed medications when she filled her prescriptions at their pharmacy. In ruling on Walgreen's motion to strike, the court held that, absent special circumstances, "there is no logical reason why the learned intermediary doctrine should not be extended to pharmacies and pharmacists . . ." Id. The court also stated that "[t]o impose a general duty on pharmacies and pharmacists to investigate and evaluate all medications prescribed by a physician would be to create a redundant, time-consuming and costly burden outside the scope of their normal duties. Pharmacists are, for the most part, in the business of dispensing medications prescribed by physicians; they are not in the business of undertaking independent evaluation of the needs and proclivities of their patients." Id.
The court in Deed also concluded that "to free pharmacists from any duty under all circumstances would be unwise" and that "a duty may be assumed when (1) a pharmacy or pharmacist has specific knowledge of potential harm to specific persons in particular cases; or (2) the pharmacy or pharmacist makes a representation that they will engage in a process of evaluation of the possible effects caused by the administration of a drug or combination of drugs; or (3) there is something patently and unambiguously wrong with the prescription itself, e.g., it is or should be plain that the medication prescribed provides a fatal dose to the patient." Id. These narrow circumstances would give rise to a situation where a pharmacist owed a duty to his customer.
This court adopts the reasoning followed in Nobles and Deed and finds that the learned intermediary doctrine does extend to pharmacists and that, absent special circumstances, a pharmacist owes no duty to warn his customer of the potential dangers of a prescribed medication. In the present case, the plaintiff and Lomibiao allege in their respective complaints that Rite Aid, Ivery Dudley and CVS failed to warn the plaintiff of the dangers posed by taking the narcotic medications prescribed by his physicians, thus causing the plaintiff's addiction to the prescribed narcotics. The plaintiff and Lomibiao do not allege any of the special circumstances outlined above in spelling out their negligence claims. They do not contend that the pharmacists had specific knowledge of the potential harm to the plaintiff or that the pharmacists agreed to evaluate the possible side effects of the prescribed drugs. Finally, they do not allege that the prescriptions were patently and unambiguously harmful to the plaintiff.
The plaintiff and Lomibiao stated in their respective memoranda in opposition that pharmacists are duty bound by several statutes and regulations, both state and federal. As noted above, "grounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . ." (Internal quotation marks omitted.) Gazo v. Stamford, supra, 255 Conn. 259 (2001). The plaintiff's amended complaint and Lomibiao's apportionment complaint state claims grounded in common-law negligence and do not allege any statutory or regulatory violations. The court, therefore, will not entertain arguments based on grounds that were not specified in the complaint.
CONCLUSION
The motions to strike are granted. A pharmacy is under no duty to warn a customer of the potential dangers of a prescribed drug absent special circumstances. There are no special circumstances alleged in the plaintiff's amended complaint or Lomibiao's apportionment complaint. Also, the plaintiff and Lomibiao have set forth claims for common-law negligence and have included no statutory grounds in their respective complaints. As such, the court will not address the merits of the arguments regarding statutory authority. The motions to strike count one of the apportionment complaint and counts two, three and seven of the plaintiff's amended complaint are granted.
Brunetti, J.