Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/1/2015 2:36:17 PM JEFFREY D. KYLE Clerk NO. 03–14–00765–CV THIRD COURT OF APPEALS 4/1/2015 2:36:17 PM JEFFREY D. KYLE 03-14-00765-CV AUSTIN, TEXAS *1 ACCEPTED [4730228] CLERK IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN
NANCY JO RODRIGUEZ, APPELLANT, V.
THE WALGREEN COMPANY AND SARA ELIZABETH MCGUIRE, APPELLEES.
On Appeal from the 419th District Court Travis County, Texas REPLY BRIEF OF APPELLEES JUDITH R. BLAKEWAY State Bar No. 02434400 judith.blakeway@strasburger.com CYNTHIA DAY GRIMES State Bar No. 11436600 Cynthia.Grimes@strasburger.com STRASBURGER & PRICE, LLP 2301 Broadway San Antonio, Texas 78215 (210) 250-6003 Telephone (210) 258-2706 Facsimile ATTORNEYS FOR APPELLEES 1795069.1/SPSA/87282/0138/040115
Table of Contents
Table of Contents ...................................................................................................... ii
Table of Authorities ................................................................................................. iii
Argument.................................................................................................................... 1
I. Mr. Hardy’s opinion is speculative and conclusory. ............................. 1 II. Mr. Hardy’s report fails to distinguish between multiple defendants. ............................................................................................. 2 III. Dr. Breall’s report does not cure the deficiencies in Mr. Hardy’s report...................................................................................................... 2 IV. Mr. Hardy is not qualified as a practicing pharmacist. ......................... 4
Conclusion ................................................................................................................. 5
Certificate of Service ................................................................................................. 6
Certificate of Compliance .......................................................................................... 6 ii
1795069.1/SPSA/87282/0138/040115 *3 Table of Authorities Page(s) STATUTES
T EX . C IV . P RAC . & R EM . C ODE § 74.402(a)(2) ........................................................... 4
T EX . C IV . P RAC . & R EM . C ODE § 74.402(b)(1) ........................................................... 4 iii
1795069.1/SPSA/87282/0138/040115
Argument
I. Mr. Hardy’s opinion is speculative and conclusory.
When confronted with the undisputable problem that there is nothing in Mr. Hardy’s report establishing that Walgreen or McGuire were ever informed of
Dr. Kessler’s advice to stop Pradaxa, Ms. Rodriguez abandons her argument that
Walgreen continued to dispense Pradaxa after the prescribing physician indicated it
should be discontinued. Instead, she now argues that Walgreen and McGuire were
at fault because they failed to verify with the prescribing physician that the
prescription for Pradaxa should be continued. Reply Brief at 8. This,
Ms. Rodriguez says, fixes the problem that there is nothing in Mr. Hardy’s report
indicating that Walgreen and McGuire were ever aware that Dr. Kessler
recommended that Pradaxa be discontinued. Reply Brief at 8–9.
But this new theory does nothing to cure the speculative nature of Mr. Hardy’s report. Instead of relying on the assumption that Walgreen and
McGuire were aware of Dr. Kessler’s advice to discontinue Pradaxa, the report
now instead relies upon the unstated assumptions that Dr. Goswami––the
prescribing physician––knew of Dr. Kessler’s advice when the prescription was
refilled and would have told Walgreen not to refill it. Yet, there is nothing in
Mr. Hardy’s report that even remotely supports the speculation that had Walgreen
or McGuire contacted Dr. Goswami at the time of the initial prescription on
1795069.1/SPSA/87282/0138/040115
February 14, 2012 or when the prescription was refilled on March 16, 2013,
Dr. Goswami was aware of Dr. Kessler’s recommendation or would have
communicated it to Walgreen or McGuire. His report is simply silent on these
critical facts. Otherwise put, the report now relies on the speculation that
Goswami––rather than Walgreen or McGuire––knew of Dr. Kessler’s advice and
the further conjecture that had Walgreen called him or his office, that advice would
have been accurately conveyed to Walgreen before Walgreen filled the
prescription. There are simply no facts in the report supporting those assumptions.
II. Mr. Hardy’s report fails to distinguish between multiple defendants.
To counter Mr. Hardy’s admitted failure to distinguish between Walgreen and McGuire’s negligence, Plaintiff asserts that because Walgreen was vicariously
liable for McGuire, there is no need to distinguish between their conduct. But
Plaintiff never pleaded that Walgreen was vicariously liable for McGuire under
respondeat superior or any other theory and in fact asserted claims against
Walgreen for its own direct negligence. C.R. 7. So the vicarious liability theory
fails to save the deficient report.
III. Dr. Breall’s report does not cure the deficiencies in Mr. Hardy’s report.
Ms. Rodriguez contends that Dr. Breall’s report fixes the flaws in Mr. Hardy’s report. There is absolutely nothing in the report, however, that
supports that notion. Like Mr. Hardy’s, Dr. Breall’s report says nothing about to
whom Dr. Kessler’s advice to stop Pradaxa was communicated, whether the
prescription that was used by Ms. Rodriguez predated the advice, or any other
circumstances under which Ms. Rodriguez continued to refill her prescription.
Dr. Breall simply does not provide facts to establish the causal link between
Walgreen’s alleged breach and Ms. Rodriguez’s injuries.
Far from supporting Ms. Rodriguez’s theory that if Walgreen had contacted the prescribing physician––Dr. Goswami––he would have told Walgreen to
discontinue Pradaxa, Dr. Breall’s report in fact suggests just the opposite. His
report indicates that Dr. Goswami did not know Dr. Kessler advised stopping
Pradaxa, (“This request to stop the medication was not appreciated by a primary
cardiologist, Dr. Vivek Goswami,” C.R. 44), and therefore, would not have
communicated that advice to anyone. Dr. Breall’s report further exonerates the
pharmacists by suggesting that the doctor’s office did authorize the refills:
“Ms. Rodriguez appeared to be obtaining refills for this medication authorized by
nurses and staff of the same heart group who recommended discontinuing this
medication (Austin Heart).” C.R. 44. If anything, Dr. Breall’s report supports an
inference that if Walgreen or McGuire had contacted Dr. Goswami or the nurses or
staff of his group, they would have continued to authorize refills. In any event,
there is nothing in his report that would support the opposite conclusion.
IV. Mr. Hardy is not qualified as a practicing pharmacist.
In response to Walgreen’s argument that he is not “practicing healthcare in a field of practice that involves the same type of care or treatment as that delivered
by the defendant health care provider . . . at the time the claim arose,” T EX . C IV .
P RAC . & R EM . C ODE §74.402(b)(1), Mr. Hardy responds that he is qualified as a
pharmacy consultant and a licensed pharmacist. T EX . C IV . P RAC . & R EM . C ODE
§74.402(a)(2). But his curriculum vitae reveals that his experience has not been in
filling prescriptions but rather in information technology: “Experience in
implementation and management of healthcare information technologies;” “Design
and support expert on Medication Use tools in electronic health records”;
“Responsible for direction and management of technology–related pharmacy
services”; “Operational information systems clinical content manager”; “Strategic
representative for healthcare automation customers”; “Command technology
leader”; “Automated Medication System upgrade implementation”. C.R. 13–14.
Accordingly, there is no showing that he is qualified by training or experience to opine on Walgreen or McGuire’s conduct in dispensing medication
for a retail pharmacy chain or at the time the claim arose was practicing health care
in the same type of care or treatment as the defendants. For this additional reason,
the trial court did not abuse its discretion in finding that Mr. Hardy’s report did not
satisfy the statutory requirements.
Conclusion The trial court was correct in dismissing the claims against Walgreen and McGuire. Its order should be affirmed.
Respectfully submitted, /s/ Judith R. Blakeway JUDITH R. BLAKEWAY State Bar No. 02434400 judith.blakeway@strasburger.com CYNTHIA DAY GRIMES State Bar No. 11436600 Cynthia.Grimes@strasburger.com S TRASBURGER & P RICE , LLP 2301 Broadway San Antonio, Texas 78215 (210) 250-6003 Telephone (210) 258-2706 Facsimile ATTORNEYS FOR APPELLEES THE WALGREEN COMPANY AND SARA ELIZABETH MCGUIRE *9 CERTIFICATE OF SERVICE Pursuant to E-Filing Standing Order, I certify that on April 1, 2015, I electronically filed the foregoing with the Clerk of Court using the
EFile.TXCourts.gov electronic filing system which will send notification of such
filing to the following:
Lannie Todd Kelly
State Bar No. 24035049
T HE C ARLSON L AW F IRM , P.C.
11606 N. IH–35
Austin, TX 78753
Telephone: (512) 346–5688
Facsimile: (512) 719–4362
tkelly@carlsonattorneys.com
Attorneys for Appellant Nancy Jo Rodriguez /s/ Judith R. Blakeway JUDITH R. BLAKEWAY CERTIFICATE OF COMPLIANCE In accordance with Tex. R. App. P. 9.4(i)(1), I hereby certify that this Reply Brief of Appellees contains no more than 925 words.
/s/ Judith R. Blakeway JUDITH R. BLAKEWAY