935 F.3d 396
5th Cir.2019Background
- Walgreens allegedly dispensed glyburide-metformin intended for another patient to Elias Gamboa Mesa; he later drove erratically, causing a fatal multi-vehicle crash in McAllen, Texas, and post-mortem testing found glyburide-metformin in his system.
- Martinez’s next of kin and Olivia and Rogelio Longoria sued Walgreens as third-party victims of Gamboa’s driving; Walgreens moved for summary judgment in federal court after removal.
- The district court granted summary judgment for Walgreens, concluding (as an Erie guess) that under Texas law a pharmacy does not owe a negligence duty to unconnected third parties; negligence per se was also rejected.
- Plaintiffs appealed, urging the Fifth Circuit to recognize a tort duty (or to certify the question to the Texas Supreme Court).
- The Fifth Circuit reviewed de novo, applied Texas duty-analysis factors (foreseeability, social utility, regulatory scheme, etc.), and considered analogous Texas authorities and policy concerns.
- The Fifth Circuit affirmed: it held the Texas Supreme Court would not recognize the asserted duty, emphasizing lack of foreseeability that a customer would take another person’s labeled prescription and the presence of an extensive statutory/regulatory scheme governing pharmacies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a pharmacy owes a tort duty to third parties injured by a customer given another person’s prescription | Walgreens negligently dispensed another patient’s prescription and thus should owe a duty to injured third parties | Texas healthcare-provider jurisprudence limits duty to the provider’s patient; no duty to unconnected third parties | No duty; Texas Supreme Court would not recognize such a duty |
| Whether statutory violations (dispensing without a valid prescription / labeling failures) establish negligence per se or create a duty to third parties | Statutory prohibitions define the standard of care and show Walgreens owed the public (including plaintiffs) a duty | Statute regulates pharmacy conduct but does not indicate legislature intended to protect remote third parties from this kind of harm | Statutory scheme does not support inferring a tort duty to these third parties; negligence per se not established here |
| Whether dram-shop or Gooden analogies require imposing a duty (liability for serving intoxicants or failing to warn of impairment) | Pharmacy liability is analogous to dram-shop or Gooden because dispensing an impairing drug foreseeably risks third-party injury | El Chico was superseded/limited by statute; dram-shop not extended to other products; Gooden is distinguishable and undermined by later Texas decisions | Analogies fail; policy and foreseeability distinguish this case from dram-shop and Gooden scenarios |
| Whether to certify the unsettled duty question to the Texas Supreme Court | Plaintiffs urged certification | Walgreens opposed; Fifth Circuit cautious to certify when it can make an Erie guess | Court declined to certify and resolved question, concluding Texas Supreme Court would not adopt the new duty |
Key Cases Cited
- Van Horn v. Chambers, 970 S.W.2d 542 (Tex. 1998) (sets negligence elements and limits duty to healthcare provider’s patient relationship)
- Bird v. W.C.W., 868 S.W.2d 767 (Tex. 1994) (psychologist owed no duty to third party for negligent misdiagnosis/treatment)
- Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30 (Tex. 2002) (foreseeability is dominant in duty analysis and discusses limits on third‑party duties)
- El Chico Corp. v. Poole, 732 S.W.2d 306 (Tex. 1987) (recognized duty for servicers of alcohol to foreseeable third parties; later superseded by statute)
- Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499 (Tex. 2017) (describes how Texas courts decide whether to recognize new duties and factors to consider)