Wrongful Death Case Is Tied to Additive Effects of Multiple Drugs

Pharmacy Times, December 2021, Volume 87, Issue 12

Trial court judge places limits on testimony of widow’s pharmacy expert witness and dismisses lawsuit.

Issue of The Case

A patient who allegedly had consumed a mixture of 3 prescription medications met his demise, and the judge dismissed the widow’s lawsuit against the chain pharmacy. Was that the correct decision, and what was the proper role of the widow’s expert witness pharmacist?

Facts of The Case

A worker at a factory in a Midwestern state had completed his usual night shift and returned home at 7:30 am. He met his wife in the driveway and they spoke for about an hour. At that time, the wife noticed nothing unusual about his communication or conduct. She left for her place of employment, and her husband entered the house. He died at approximately 3 pm while sleeping. The cause of death was identified as alprazolam, fentanyl, and oxycodone intoxication.

Prior to his death, a pharmacist at a national pharmacy chain had dispensed fentanyl patches to him pursuant to a prescription issued by his treating physician. The widow filed a wrongful death lawsuit against both the pharmacy chain and the prescriber.

The crux of the argument advanced regarding the pharmacy chain was that the pharmacist employed by the chain responsible for the transaction “violated the standard of care to be expected of a reasonably competent pharmacist under the circumstances by filling the prescription knowing that [the husband] worked in a high-heat environment and that he had succumbed to an increased level of fentanyl due to heat exposure at work.”

The surviving spouse had lined up a pharmacist to testify as an expert witness about how a high-temperature working environment could potentiate the effects of the fentanyl. The trial court judge limited the testimony and prevented the witness from testifying that the patient had “succumbed to an increased level of fentanyl due to heat exposure.”

An expert witness is typically brought in during a trial to explain the issues at hand in an understandable fashion to allow the jurors to make an informed decision. Usually, the expert witness is asked to indicate whether another pharmacist with similar education, experience, and skill who is operating under similar circumstances would reasonably reach the same conclusion or take the same action as the actual pharmacist under review did. Either side, or both, can proffer an expert witness, but the judge must deem the individual’s background acceptable for him or her to participate.

The attorney for the pharmacy chain made a motion to dismiss the lawsuit by asking for a summary judgment. A summary judgment motion asks the trial court judge to decide and declare that there is no genuine dispute regarding any material fact at issue in the lawsuit and that the party making the motion is entitled to judgment. The trial court judge granted the motion and dismissed the lawsuit. The surviving spouse filed an appeal with the relevant state court of appeals, arguing that the decision of the trial court judge was erroneous.

The Ruling

The court of appeals judges agreed with the trial court and upheld the dismissal of the lawsuit.

The Court's Reasoning

The appellate court judges pointed out that the plaintiff/spouse presented no evidence regarding her husband’s working conditions on the day of his death. Despite that, the plaintiff had presented during pretrial proceedings the deposition of the pharmacy expert witness that contained his expert opinions regarding the relationship between the fatality and working conditions.

The attorney for the surviving spouse did not challenge the trial court’s decision to limit the testimony of the expert witness when the appeal was filed. The appellate judges pointed out that the trial court had “prohibited him from testifying that [the husband] had succumbed to an increased level of fentanyl due to heat exposure.”

Further, the trial court additionally specified that the proffered expert witness “could not discuss the factual circumstances surrounding his use of the patch while at work” because he did not know specific details regarding the deceased husband’s job.

When the trial court judge was considering the motion for dismissal made by the defendant pharmacy chain, the plaintiff/spouse submitted 2 affidavits from the proposed pharmacy expert supporting her position that the summary judgment should not be granted and the case should not be dismissed. The trial court judge did not accept the 2 additional submissions by the pharmacist expert witness in support of the position of the plaintiff/spouse, and that decision by the presiding officer in the court below was not challenged on appeal.

The appellate judges concluded that though the widow “argues that the record contains substantial evidence that creates a genuine issue of material fact as to the pharmacy’s liability,” they did not concur.

The judges stated that “we have thoroughly examined the record, and we conclude that there are no admissible facts to support [the widow’s] claim that the cause of death was tied to a duty [the chain pharmacy] had breached by filling [the husband’s] prescription for fentanyl patches.”

They affirmed the trial court’s “grant of summary judgment for the [pharmacy chain].”

Joseph L. Fink III, JD, DSC (HON), BSPharm, is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Professor of Leadership at the University of Kentucky College of Pharmacy in Lexington.