Opinion
Civil Action No. 03-CV-6457.
September 28, 2004
ORDER
NOW, this 28th day of September, 2004, upon consideration of Defendants' Motion for Summary Judgment on Plaintiff's Punitive Damages Claim filed August 30, 2004; upon consideration of Plaintiff's Motion in Opposition to Defendants' Motion for Summary Judgment on Punitive Damages filed September 16, 2004; upon consideration of Defendants' Motion for Leave to File a Reply Memorandum in Support of Defendants' Motion for Summary Judgment as to Plaintiff's Punitive Damages Claim Defendants' Motion to Strike Plaintiff's Expert Witnesses filed September 21, 2004; upon consideration of the Reply Brief in Support of Defendants' Motion for Summary Judgment on Plaintiff's Punitive Damages Claim Defendant's Motion to Strike Plaintiff's Expert Witnesses, which reply brief was filed as Exhibit 1 to defendants' motion for leave to file a reply brief on September 21, 2004,
IT IS ORDERED that defendants' motion for leave to file a reply brief is granted.
IT IS FURTHER ORDERED that Plaintiff's Motion in Opposition to Defendants' Motion for Summary Judgment on Punitive Damages is stricken. IT IS FURTHER ORDERED that defendants' motion for summary judgment is granted. IT IS FURTHER ORDERED that summary judgment is granted in favor of defendants and against plaintiff on plaintiff's claims for punitive damages in Counts I, II, III, IV and V.
Plaintiff filed her response to defendants' motion for summary judgment on September 16, 2004. By Order filed September 15, 2004, the undersigned granted plaintiff a one-day extension of time in which to respond to defendants' motion from September 14, 2004 to September 15, 2004. Hence, plaintiff's response is untimely. Accordingly, the response could be stricken because it violates our September 15, 2004 Order and Rule 7.1(c) of the Rules of Civil Procedure for the United States District Court for the Eastern District of Pennsylvania. Nevertheless, we will not strike plaintiff's response for being one day late.
However, there is a more substantial reason which compels us to strike plaintiff's response. Plaintiff's response also violates the undersigned's Order dated February 11, 2004. In that Order, the undersigned directed, pursuant to Rule 83(b) of the Federal Rules of Civil Procedure, that any response to a motion for summary judgment shall include a concise statement of the factual allegations in dispute "with specific citations to the record". Plaintiff's citations to the foot-high record are not specific. Rather, the response makes general reference to exhibits, some of which are hundreds of pages long. It is not the obligation of the court to scour the extensive record, as plaintiff was directed to do, in the hope of finding where in the record plaintiff's alleged disputed facts may be located. Accordingly, plaintiff's response is stricken because it violates our February 11, 2004 Order.
Having stricken plaintiff's response, we nevertheless do not grant defendants' motion for summary judgment as unopposed. Rather, as indicated in footnote 2 below, we conducted an inquiry into the record before the court and decided the motion on the merits.
The within civil action was initiated by a notice of removal from the Court of Common Pleas of Northampton County, Pennsylvania, filed November 26, 2003. See 28 U.S.C. §§ 1441, 1446. In her Complaint, plaintiff avers five counts. In Count I plaintiff asserts negligence on the part of Express Scripts, Inc. Count II is a claim for negligence through vicarious liability against Express Scripts, Inc. In Count III plaintiff avers negligence on the part of ESI Mail Pharmacy Service, Inc. Count IV is a claim for negligence through vicarious liability against ESI Mail Pharmacy Service, Inc. In Count V plaintiff avers negligence on the part of the John or Jane Doe defendants. In each count plaintiff seeks punitive damages.
The matter is before the court on diversity of citizenship jurisdiction. See 28 U.S.C. § 1332. There is no dispute that the facts and circumstances giving rise to plaintiff's causes of action occurred in Pennsylvania. Moreover, there is no dispute that plaintiff is a citizen of Pennsylvania or that defendants have subjected themselves to the laws of the Commonwealth of Pennsylvania. Accordingly, we apply Pennsylvania law to the issues presented herein.
In Pennsylvania, punitive damages are a rarely used and strictly controlled remedy to deter and punish extreme and egregious behavior. Martin v. Johns-Manville Corporation, 508 Pa. 154, 169, 494 A.2d 1088, 1096 (1985); Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984); Restatement (Second) of Torts § 908 (1979). "[They] may not be awarded for misconduct which constitutes ordinary negligence such as inadvertence, mistake and errors of judgment." Martin, 508 Pa. at 170, 494 A.2d at 1097. Rather, a plaintiff must demonstrate that a defendant acted with a bad motive or with reckless indifference to the rights of another to justify the submission of punitive damages to a jury.Id., 508 Pa. at 171-172, 494 A.2d at 1097-1098.
We conclude that plaintiff is not entitled to punitive damages herein. There is no evidence of record that defendants have acted with either a bad motive or reckless indifference. Rather, in the light most favorable to plaintiff, the defendants may be liable for simple negligence.
The record reveals that plaintiff received her prescription from defendants during 2002. That year, defendants had an accuracy rate of 99.9780%. Of the .022% in error, 16.2% were the result of the wrong product being used to fill the prescription. This rate is similar to defendants performance in 2001, in which the accuracy rate was 99.9869% (of the .0131% in error, 26.2% was the result of the wrong product being delivered). The record further indicates, according to a National Observational Study of Prescription Dispensing Accuracy and Safety in 50 Pharmacies, that the national dispensing accuracy rate was 98.3%. This study had a 95% confidence interval at a plus or minus .4% margin of error. Elizabeth Allan Flynn, Kenneth N. Barker, and Brian J. Carnahan, National Observational Study of Prescription Dispensing Accuracy and Safety in 50 Pharmacies, J Am Pharm Assoc 43(2), 191-200 (2003). Thus, defendants' accuracy rate greatly exceeded the national average.
This is not to say that there may not be flaws in defendants' system for dispensing prescription drugs. Rather, there is sufficient evidence to submit the question of defendants' negligence to a jury. However, the circumstances do not support the finding that defendants intentionally failed to act when they had a duty to do, knowing not only that their conduct created an unreasonable risk to plaintiff, but also that the risk was substantially greater than that created by mere negligence.Martin, 508 Pa. at 171 n. 11, 494 A.2d at 1097. Accordingly, we conclude that, under these circumstances, there is no evidence to support a finding of defendants' reckless indifference to the rights of plaintiff.
Moreover, there is no allegation in the Complaint or elsewhere in the record that defendants acted with a bad motive when they filled plaintiff's prescription. Accordingly, we conclude that there is no evidence to support a finding of defendants' bad motive to harm plaintiff when they filled plaintiff's prescription.
For the foregoing reasons, we conclude that there is no record evidence to support plaintiff's claims for punitive damages in each count of the Complaint, nor has plaintiff specifically identified any such evidence. Accordingly, we grant summary judgment in favor of defendants and against plaintiff on plaintiff's claims for punitive damages.