Kay F. Fritz v. CVS Corporation d/b/a CVS Pharmacy, Inc.

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

September 17, 2013 Session

KAY F. FRITZ v. CVS CORPORATION D/B/A CVS PHARMACY, INC.

Appeal from the Circuit Court for Hamilton County

No. 02C285 W. Jeffrey Hollingsworth, Judge

No. E2012-01775-COA-R3-CV-FILED-SEPTEMBER 24, 2013

Kay F. Fritz (“Plaintiff”) sued CVS Corporation d/b/a CVS Pharmacy, Inc. (“Defendant”)

alleging that Defendant had improperly filled a prescription for Plaintiff causing Plaintiff

damages. Defendant filed a motion for involuntary dismissal or in the alternative for

summary judgment. After a hearing, the Trial Court granted Defendant summary judgment

after finding that Plaintiff was unable to prove an essential element of her claim, i.e.,

causation. Plaintiff appeals to this Court. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;

Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which JOHN W. M CC LARTY

and T HOMAS R. F RIERSON, II, JJ., joined.

Kay F. Fritz, Chattanooga, Tennessee, Pro se appellant.

G. Michael Luhowiak, Daniel M. Stefaniuk, and William J. Rieder, Chattanooga, Tennessee,

for the appellee, CVS Corporation d/b/a CVS Pharmacy, Inc.

OPINION

Background

This is the second time this case has been before this Court. By way of

background, Plaintiff filed suit in 2002 alleging, in pertinent part, that she had taken a

prescription to Defendant to be filled and that Defendant had “negligently and carelessly

prepared” the prescription with the “wrong medicine,” and that Plaintiff had suffered

damages as a result of ingesting this “wrong medicine.” The case was before this Court

previously when Plaintiff appealed the Trial Court’s involuntary dismissal of her case after

finding during a pre-trial conference held the day before trial was scheduled that “Plaintiff

was not prepared to present evidence at trial,” and that “going ahead with trial as scheduled

… would have been unfair to Plaintiff [who was proceeding pro se] ….” Fritz v. CVS Corp.,

No. E2008-01256-COA-R3-CV, 2009 Tenn. App. LEXIS 634 (Tenn. Ct. App. Sept. 23,

2009), no appl. perm. appeal filed (“Fritz I”). In Fritz I, we vacated the involuntary

dismissal and remanded the case to the Trial Court.

Upon remand, Defendant filed a motion for summary judgment. After a

hearing, the Trial Court entered an order on September 13, 2011 denying the motion for

summary judgment after finding and holding that Defendant had failed to prove that Plaintiff

was unable to prove an essential element of her claim at trial because the case had not been

set for trial and no scheduling order had been entered establishing deadlines for designating

experts. Defendant then filed a motion to enter a scheduling order and to set the case for

trial.

On December 16, 2011, the Trial Court entered a Scheduling Order, which

provided, in pertinent part, that Plaintiff was required to identify expert witnesses and any

treating physicians she intended to call to testify at trial on or before December 31, 2011.

The Scheduling Order set trial to begin May 16, 2012.

In February of 2012, Defendant filed a motion for involuntary dismissal

alleging, in pertinent part, that Plaintiff had failed to disclose any expert witnesses or any

treating physicians she intended to call to testify at trial, and, therefore, Plaintiff was unable

to establish at trial that her injuries were caused by Defendant. Plaintiff subsequently filed

several motions alleging, among other things, that she had not been served with the

scheduling order and seeking a modification of the scheduling order and a continuance.

After a hearing, the Trial Court entered a new Scheduling Order on April 16, 2012 requiring

Plaintiff to identify any expert witnesses and any treating physicians she intended to call to

testify at trial on or before June 1, 2012. The April 16, 2012 Scheduling Order set trial to

begin on September 19, 2012.

On June 13, 2012, Defendant filed a motion for involuntary dismissal or in the

alternative for summary judgment alleging, in pertinent part, that Plaintiff had failed to

identify any expert witnesses or any treating physicians she intended to call to testify at trial

and, therefore, Plaintiff was unable to establish at trial an essential element of her claim. The

Trial Court granted Defendant’s motion for summary judgment by order entered July 17,

2012 after finding and holding:

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Due to the unusual circumstances of this case, it is necessary to set out

a brief procedural history. This lawsuit was originally filed in 2002. It is

based on the Plaintiff’s allegations that the Defendant improperly filled a

prescription which caused her damage.

This case has been to the Court of Appeals on one occasion and was

remanded back to this Court for trial. After the remand, the Defendant filed

a motion for summary judgment which this Court denied, holding that the

Defendant had not established that the Defendant [sic] could not prove

causation at trial. (See order of September 13, 2011) After that order, the

Defendant filed a motion for a scheduling order and to set the case for trial.

There was no response from Plaintiff and a scheduling order setting deadlines

for designation of expert witnesses and discovery was entered on December

16, 2011.

On March 14, 2012, the Plaintiff sent a letter to the Clerk of Court,

indicating the motion for scheduling order and to set was mailed to the wrong

address and that she had not received notice of these motions. She filed a

motion to set aside or modify the scheduling order entered on December 16,

2011.

Both parties appeared for hearing on the Plaintiff’s motion and the

Court granted that motion to set aside the scheduling order and issued a new

scheduling order. The Plaintiff was in court when the dates for the new

scheduling order were discussed and was provided a copy of the scheduling

order which was entered on April 16, 2012. In addition, a copy of the new

scheduling order was sent to the Plaintiff at the address she gave to the Clerk

of Court in her letter of March 14, 2012.

The scheduling order issued on April 16, 2012 provides that the

Plaintiff identify all expert witnesses and treating physicians that she intended

to call at trial on or before June 1, 2012 with summaries of each of these

witness’s opinions.

On June 13, 2012 the Defendant filed this motion contending that the

Plaintiff had not identified any experts or treating physicians in accordance

with the scheduling order. As such, the Defendant contends the Plaintiff

cannot prove causation at trial because she will not be able to produce the

expert testimony necessary on that issue. The Plaintiff has neither responded

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to the motion nor appeared in court when the motion was set for hearing on

June 25, 2012 and rescheduled to June 16, 2012 [sic].

In her lawsuit, the Plaintiff alleges that a pharmacist at one of the

Defendant’s stores put the wrong medication in her prescription bottle and the

ingestion of that medication caused her damage. With those allegations, this

case would appear to fall under the Medical Malpractice Act which requires

expert testimony. In any case, however, the issue of causation would require

expert medical proof.

The Plaintiff has failed to comply with the scheduling order issued on

April 16, 2012. She did not identify her expert witnesses or treating physicians

by June 1, 2012 as required by that order. As a result of that failure, Plaintiff

will not be able to offer expert testimony at the trial which is scheduled for

September 19, 2012. Therefore, this Court finds that the Defendant has

established that the Plaintiff cannot prove the essential element of causation

at trial. As a result of that fact, the burden of proof has shifted to the Plaintiff

to produce evidence raising a question of fact on that issue. The Plaintiff has

failed to do so.

Therefore, it is Ordered that summary judgment be Granted to the

Defendant on all of the Plaintiff’s claims and that all of the Plaintiff’s claims

against the Defendant be Dismissed with prejudice.

Plaintiff filed a motion styled as a “Motion to Set Aside Dismissal,” which the Trial Court

treated as a motion to alter or amend and denied by order entered November 21, 2012.

Plaintiff appeals the Trial Court’s July 17, 2012 order to this Court.

Discussion

Although not stated exactly as such, Plaintiff raises one issue on appeal:

whether the Trial Court erred in granting summary judgment to Defendant after finding that

Plaintiff could not prove at trial the essential element of causation.

Before we address Plaintiff’s issue, we note that Defendant filed a motion

requesting that this Court dismiss Plaintiff’s appeal for Plaintiff’s alleged failure to comply

with Tenn. R. App. P. 27. We have reviewed Plaintiff’s brief, and we agree with

Defendant that Plaintiff’s brief does not strictly comply with Tenn. R. App. P. 27.

Furthermore, Plaintiff’s brief is far from being a model of clarity. The deficiencies in

Plaintiff’s brief, however, do not hinder or prevent our review of the issue obviously raised

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by Plaintiff. Therefore, in the exercise of our discretion, we deny Defendant’s motion to

dismiss the appeal, and we will address the issue raised by Plaintiff. See Paehler v. Union

Planters Nat’l Bank, Inc., 971 S.W.2d 393, 397 (Tenn. Ct. App. 1997) (recognizing that

this Court has the discretion to suspend or relax some of the rules of appellate procedure for

good cause in order to afford parties a hearing on the merits).

Our Supreme Court reiterated the standard of review in summary judgment

cases as follows:

The scope of review of a grant of summary judgment is well

established. Because our inquiry involves a question of law, no presumption

of correctness attaches to the judgment, and our task is to review the record to

determine whether the requirements of Rule 56 of the Tennessee Rules of Civil

Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.

1997); Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991).

A summary judgment may be granted only when there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter

of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.

1993). The party seeking the summary judgment has the ultimate burden of

persuasion “that there are no disputed, material facts creating a genuine issue

for trial . . . and that he is entitled to judgment as a matter of law.” Id. at 215.

If that motion is properly supported, the burden to establish a genuine issue of

material fact shifts to the non-moving party. In order to shift the burden, the

movant must either affirmatively negate an essential element of the

nonmovant’s claim or demonstrate that the nonmoving party cannot establish

an essential element of his case. Id. at 215 n.5; Hannan v. Alltel Publ’g Co.,

270 S.W.3d 1, 8-9 (Tenn. 2008). “[C]onclusory assertion[s]” are not sufficient

to shift the burden to the non-moving party. Byrd, 847 S.W.2d at 215; see also

Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our state does not

apply the federal standard for summary judgment. The standard established

in McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998),

sets out, in the words of one authority, “a reasonable, predictable summary

judgment jurisprudence for our state.” Judy M. Cornett, The Legacy of Byrd

v. Hall: Gossiping About Summary Judgment in Tennessee, 69 Tenn. L. Rev.

175, 220 (2001).

Courts must view the evidence and all reasonable inferences therefrom

in the light most favorable to the non-moving party. Robinson v. Omer, 952

S.W.2d 423, 426 (Tenn. 1997). A grant of summary judgment is appropriate

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only when the facts and the reasonable inferences from those facts would

permit a reasonable person to reach only one conclusion. Staples v. CBL &

Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). In making that assessment, this

Court must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11.

Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).

The Trial Court found that Plaintiff’s claims appeared to sound in medical

malpractice, which would fall within the purview of Tenn. Code Ann. § 29-26-115. We,

however, need not determine whether Plaintiff’s claim is one of medical malpractice under

the statute or just one for negligence. We note, as did the Trial Court, that whether Plaintiff’s

claims sound in medical malpractice or in general negligence, she would be required to prove

by expert medical testimony the essential element of causation in order to prevail at trial. See

Shipley v. Williams, 350 S.W.3d 527, 537 (Tenn. 2011) (setting forth the required elements

of proof of a medical malpractice claim and stating: “[E]xpert testimony must be provided

by a plaintiff to establish the elements of his or her medical negligence case, subject to the

‘common knowledge’ exception that is not applicable here.” (citations omitted)); Morrison

v. Allen, 338 S.W.3d 417, 437 (Tenn. 2011) (setting forth the required elements of proof of

a negligence claim).

Defendant filed a properly supported motion for summary judgment showing

that Plaintiff had failed to identify, as required by the Scheduling Order, any expert witnesses

or any treating physicians whom she intended to call to testify at trial and, as such, that

Plaintiff was unable to prove at trial the essential element of causation. Since Defendant

affirmatively negated an essential element of Plaintiff’s claim, the burden shifted to Plaintiff

to establish a genuine issue of material fact for trial. Plaintiff failed to do this.

In Fritz I, this Court observed that:

Pro se litigants are entitled to fair and equal treatment. See Childs v.

Duckworth, 705 F.2d 915, 922 (7th Cir. 1983). Pro se litigants are not,

however, entitled to shift the burden of litigating their case to the courts. See

Dozier v. Ford Motor Co., 702 F.2d 1189, 1194 (D.C. Cir. 1983). Pro se

litigants are not excused from complying with the same substantive and

procedural requirements that other represented parties must adhere to. See

Irvin v. City of Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988).

Fritz I, 2009 Tenn. App. LEXIS 634, at **11-12 (quoting Whitaker v. Whirlpool Corp., 32

S.W.3d 222, 227 (Tenn. Ct. App. 2000)).

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The record on appeal reveals that Plaintiff failed to disclose any expert

witnesses or any treating physicians whom she intended to call to testify at trial within the

deadlines imposed by the Trial Court’s Scheduling Order, despite being given numerous

opportunities by the Trial Court to do so. It is clear from the record that the Trial Court bent

over backwards, so to speak, to give Plaintiff the opportunity to comply with the Scheduling

Order.

We note that the record contains a document entitled “Plaintiff’s Rule 26

Disclosure of Jose R. Justiniano-Ayala, MD Attached to Designation of Contents of Record

on Appeal and Medical Affidavit Filed 9-12-11 of Order of Dismissal,” which states, in

pertinent part that “plaintiff expects to call Jose R. Justiniano MD as a Rule 26 expert in this

Lawsuit.” This disclosure was filed on September 4, 2012, almost two months after the Trial

Court dismissed Plaintiff’s suit, after the Trial Court had given Plaintiff several opportunities

to comply with the deadlines in the Scheduling Order, and after the notice of this appeal was

filed. The filing of this purported disclosure is simply too little, too late. Furthermore, as

best as we can tell from the record now before us, this purported disclosure identifies a

treating physician, but still does not identify any expert witnesses let alone any medical

expert’s opinion on causation. To continue to give Plaintiff even more opportunities to

comply with the Scheduling Order after the Trial Court has dismissed the case and an appeal

taken would work an injustice upon Defendant.

Defendant filed a properly supported motion for summary judgment negating

an essential element of Plaintiff’s claim, causation. This shifted the burden to Plaintiff, and

Plaintiff failed to carry her burden. There are no genuine issues of material fact, and

Defendant was entitled to summary judgment as a matter of law. As such, we find no error

in the Trial Court’s grant of summary judgment to Defendant dismissing all of Plaintiff’s

claims.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the

Trial Court for collection of the costs below. The costs on appeal are assessed against the

appellant, Kay F. Fritz.

_________________________________

D. MICHAEL SWINEY, JUDGE

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