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Martinez v. Walgreen Co.

United States Court of Appeals, Fifth Circuit

August 16, 2019

ESTELLA MARTINEZ, Individually and as sole heirs of the estate of Claudia Martinez, Deceased; ROGELIO MARTINEZ, Individually and as sole heirs of the estate of Claudia Martinez, Deceased; JAMAL SAIH, Individually and as sole heirs of the estate of Claudia Martinez, Deceased; OLIVIA LONGORIA; ROGELIO LONGORIA, Plaintiffs - Appellants
WALGREEN COMPANY, Defendant-Appellee

          Appeal from the United States District Court for the Southern District of Texas

          Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.


         This case requires us to decide whether, under Texas law, a pharmacy owes a duty of care to third parties injured on the road by a customer who was negligently given someone else's prescription. Concluding that the Texas Supreme Court would not recognize this tort duty, we affirm the district court's grant of summary judgment to Walgreens.


         Two sets of plaintiffs, Claudia Martinez's next of kin and Olivia and Rogelio Longoria, allege that a Walgreens pharmacy negligently gave Elias Gamboa Mesa a medication prescribed for another patient rather than the one associated with his own prescription. Walgreens allegedly gave Gamboa glyburide metformin, a medication used to treat diabetes-but which can cause hypoglycemia, or low blood pressure, in non-diabetics. Symptoms include cognitive impairment, behavioral changes, and psychomotor abnormalities.

         The plaintiffs allege that ingesting the drug caused Gamboa to experience severe hypoglycemia and drive erratically on a road in McAllen, Texas. First, he rear-ended the Longorias' car. Then, failing to stop after the first collision, he crossed the center lane and crashed head-on into Martinez's car, fatally injuring her. Finally, Gamboa struck three other vehicles in an intersection before his own vehicle burst into flames. After Gamboa died from his injuries, an autopsy revealed that he had detectable amounts of glyburide metformin in his system at the time of the accident.

         Gamboa's son sued Walgreens in Texas state court and Walgreens removed to federal court. The Martinez plaintiffs and the Longorias moved to intervene; while the motion was pending, they filed this lawsuit in the same court. Gamboa's son and Walgreens ultimately settled, leaving only this lawsuit between the injured third parties and Walgreens.

         On Walgreens's motion for summary judgment, the district court made an Erie guess that under Texas law, a medical professional such as a pharmacist does not owe a duty of care to "unconnected" third parties like Martinez and the Longorias. It also rejected the plaintiffs' argument that Walgreens was liable under a theory of negligence per se. Concluding that the plaintiffs had no viable theory of liability, it granted Walgreens summary judgment. The plaintiffs now urge us to reverse the district court's determination that under Texas law, Walgreens did not owe them a duty of care-or, alternatively, to certify this issue to the Texas Supreme Court.


         We review the district court's grant of summary judgment de novo, "viewing the evidence in the light most favorable to the non-moving [parties] and drawing all reasonable inferences in the nonmovant[s'] favor."[1] "The movant prevails by showing 'that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'"[2]

         In a diversity case like this one, when no Texas Supreme Court case "precisely" resolves the legal issue, we "must make an Erie guess and determine as best we can what the Supreme Court of Texas would decide."[3] This requires us to use "the sources of law that the state's highest court would look to, including intermediate state appellate court decisions, the general rule on the issue, decisions from other jurisdictions, and general policy concerns."[4]Ultimately, however, "it is not for us to adopt innovative theories of recovery under state law" without strong reason to believe that those theories would be adopted if the Texas Supreme Court had the opportunity.[5]


         Texas law instructs that "[a] negligence cause of action has three elements: 1) a legal duty; 2) breach of that duty; and 3) damages proximately resulting from the breach."[6] The district court stopped its analysis at the first step, concluding that Walgreens owed no legal duty to the plaintiffs.

         The Texas Supreme Court has settled that "the existence of duty is a question of law for the court to decide from the facts surrounding the occurrence in question."[7] "When a duty has not been recognized in particular circumstances, the question is whether one should be."[8] We conclude that the district court did not err in declining to recognize a duty between Walgreens and the plaintiffs in this case.


         First, we consider whether the Texas Supreme Court has already spoken on the existence-or nonexistence-of a duty between a pharmacy and third parties injured as the result of an allegedly mis-filled prescription. Walgreens urges that this case can straightforwardly be resolved by caselaw holding that a healthcare provider owes no duty to third-party nonpatients for negligent treatment or misdiagnosis of patients. The Texas Supreme Court has repeatedly recognized that "[a]ny duty of reasonable care on [the part of the healthcare provider] to avoid such negligence originates solely through the relationship with, and flows only to, his patient."[9] It has also stated that "there is generally no relationship between [a] doctor and patient that would provide the type of control necessary to create a duty to third persons."[10]

         Walgreens's argument that this line of cases "definitively" resolves the issue goes a step too far. The Texas Supreme Court has not yet addressed whether a pharmacy's duty of care is limited to that pharmacy's own patients. Its negligent-treatment and negligent-misdiagnosis caselaw disfavors imposing a duty between healthcare providers and third parties due in part to well-founded concerns about interfering with medical professionals' judgment and discretion.[11] Although pharmacists are treated as healthcare providers under Texas law, [12] the filling of an existing prescription arguably does not require the same degree of judgment and discretion as an initial diagnosis or plan for treatment.[13] We therefore are not convinced that the Texas Supreme Court has already squarely decided this issue in favor of Walgreens, and cannot comfortably end our analysis here.


         Acknowledging that the Texas Supreme Court has also not spoken in their favor regarding this issue, the plaintiffs instead ask us to extrapolate a duty from other areas of Texas tort law.[14] They rely heavily on Gooden v. Tips, an intermediate appellate case holding that where a doctor had prescribed a patient Quaaludes without warning her about the risks of driving under their influence, the doctor owed a duty of care to a third party who was struck by the patient.[15] It is unlikely that Gooden reflects the Texas Supreme Court's view on a healthcare provider's duty to third parties to warn patients of the risk of prescribed medication. It was decided before the line of cases addressing healthcare providers' duties to third parties, and the Texas Supreme Court subsequently rejected a duty on the part of a doctor to warn an epileptic patient about the risk of driving.[16] A concurring opinion in that case faulted the majority for failing to make clearer that Gooden is not good law in light of the cases limiting health care professionals' duty to their own patients.[17]

         Regardless, to the extent that Gooden represents how the Texas Supreme Court would resolve the question of whether a health care professional has a duty to third parties to warn a patient of the risks of prescribed medication, Gooden's framework does not apply here. The plaintiffs do not contend that the medication given to Gamboa was unaccompanied by proper warnings and directions for its use. Nor do we think that the theory underlying Gooden maps neatly onto the facts of this case. As we will explain, foreseeability is paramount to the duty analysis, and there are relevant differences between failing to warn a patient of the risks of medication ...

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