Estella Martinez v. Walgreen Company

Case: 18-40636 Document: 00515079849 Page: 1 Date Filed: 08/16/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

August 16, 2019

No. 18-40636

Lyle W. Cayce

Clerk

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

v.

WALGREEN COMPANY,

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas

Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

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.

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I

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

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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.

II

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

III

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.

1 E.g., Wease v. Ocwen Loan Serv., L.L.C., 915 F.3d 987, 992 (5th Cir. 2019).

2 Id. (quoting Fed. R. Civ. P. 56(a)).

3 Hays v. HCA Holdings, Inc., 838 F.3d 605, 611 (5th Cir. 2016) (quoting Harris Cty.

v. MERSCORP Inc., 791 F.3d 545, 551 (5th Cir. 2015)).

4 Id. (internal quotation marks and citation omitted).

5 Meador v. Apple, Inc., 911 F.3d 260, 264 (5th Cir. 2018) (quoting Mayo v. Hyatt Corp.,

898 F.2d 47, 49 (5th Cir. 1990)).

6 Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998).

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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.

A

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

7 Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 503 (Tex. 2017) (quoting Greater

Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)).

8 Id.

9 Van Horn, 970 S.W.2d at 545 (holding that a treating physician did not owe a duty

to hospital employees who were killed or injured when trying to subdue a violent patient);

see also Thapar v. Zezulka, 994 S.W.2d 635, 636–38 (Tex. 1999) (holding that a psychiatrist

owed no duty to a third party for negligent misdiagnosis or treatment even where the patient

had previously told the psychiatrist that he “[felt] like killing” the third party); Krishnan v.

Sepulveda, 916 S.W.2d 478, 482 (Tex. 1995) (holding that a doctor owed no duty to a woman’s

husband when it allegedly provided her with negligent prenatal care that caused her to

miscarry); Bird v. W.C.W., 868 S.W.2d 767 (Tex.. 1994) (holding that a psychologist had no

duty to a third party not to negligently misdiagnose a child’s condition as stemming from the

third party’s abuse).

10 Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 35–36 (Tex. 2002) (emphasis added).

In Peavy, however, the Texas Supreme Court held that a medical provider did potentially

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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.

B

Acknowledging that the Texas Supreme Court has also not spoken in

their favor regarding this issue, the plaintiffs instead ask us to extrapolate a

have a duty of care to third parties when it allegedly failed to control a patient who was under

an unusually high degree of court-mandated supervision. See id.

11 The seminal case on the duty of a health-care professional to third parties, W.C.W.

v. Bird, emphasized the need for mental health professionals to be “allowed to exercise their

professional judgment in diagnosing sexual abuse of a child without the judicial imposition

of a countervailing duty to third parties.” 868 S.W.2d at 769.

12 See Tex. Civ. Prac. & Rem. § 74.001(a)(12)(A).

13 Walgreens cites an unpublished intermediate appellate decision, Davis v. Eckerd

Holdings II, Inc., extending the Texas Supreme Court’s negligent-treatment and negligent-

misdiagnosis caselaw to pharmacists. No. 05-96-01413-CV, 1999 WL 605590 (Tex. App—

Dallas, 1999, no pet.). That case addressed whether a pharmacist owed a tort duty to the

parents of an infant who suffered a drug overdose after having been given syrup that was

one thousand times more powerful than the prescribed medication. See id. at *1. The Court

of Appeals concluded that because pharmacists qualify as healthcare providers under Texas

law, the Texas Supreme Court’s negligent-treatment and negligent-misdiagnosis cases were

“instructive” in concluding that the pharmacist owed the parents no duty of care separate

from a duty to their infant child. Id. at *3. Standing alone, Davis does not allow us to conclude

either that the Texas Supreme Court has definitively established that pharmacies owe no

tort duties to third parties or that it would do so if given the opportunity.

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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

14 The plaintiffs also argue that Walgreens has liability under the Texas Wrongful

Death Act, Tex. Civ. Prac. & Rem. Code § 71.002 et seq., and that the district court’s decision

denied them their right to open courts under the Texas Constitution, Tex. Const. Art. I, § 13.

These arguments fail because they are predicated on the assumption that Walgreens owed

the plaintiffs—in the case of the Wrongful Death Act, only Martinez—a duty of care. They

cannot support liability absent an accompanying duty. See Tex. Civ. Prac. & Rem. Code §

71.003(a) (providing a cause of action under the Wrongful Death Act “only if the individual

injured would have been entitled to bring an action for the injury if the individual had lived”);

Burlington N. & Santa Fe Ry. Co. v. Poole Chem. Co., 419 F.3d 355, 360 (5th Cir. 2005)

(explaining that the “open courts” provision does not create new rights, but rather protects

the ability to pursue remedies “for such wrongs as are recognized by the law of the land”

(citation omitted)).

15 651 S.W.2d 364, 365–72 (Tex. App.—Tyler, 1983, no writ); see also Flynn v. Hous.

Emergicare, Inc., 869 S.W.2d 403, 405–06 (Tex. App.—Houston [1st Dist.] 1993, writ denied)

(distinguishing Gooden as a case where a doctor had a duty to third parties because the doctor

gave the patient the medication that caused her impairment).

16 See Praesel v. Johnson, 967 S.W.2d 391, 398 (Tex. 1998).

17 See id. at 399 (Enoch, J., concurring).

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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 that the

healthcare professional knows the patient will take, on the one hand, and

giving a patient a bottle of prescription medication intended for someone else,

on the other.

Taking a different tack, the plaintiffs also argue that tort liability here

is simply an analogue of “dram shop” liability under Texas law. El Chico Corp.

v. Poole held that an alcoholic beverage licensee had a duty of care to third

parties not to serve alcohol to a customer the licensee knew or should have

known was intoxicated and who later injured others by driving under the

influence. 18 The Texas Supreme Court reasoned that because “[t]he risk and

likelihood of injury from serving alcohol to an intoxicated person whom the

licensee knows will probably drive a car is . . . readily foreseen,” a duty of care

owed by licensees to third parties is “merely the application of the general duty

to exercise reasonable care to avoid foreseeable injury to others.” 19 The

plaintiffs argue that where a pharmacy gives a customer a medication with the

potential to cause side effects similar to intoxication, it should bear a similar

duty to injured third parties.

The analogy to dram-shop liability fails for two reasons. First, one week

after El Chico was decided, the Texas legislature enacted the Dram Shop Act

to supplant judicially created liability with a statutory remedy, limiting

18 732 S.W.2d 306 (Tex. 1987).

19 Id. at 311.

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liability for alcoholic beverage providers in the process. 20 The legislature’s

response strongly suggests that creating liability between providers of

potentially dangerous substances and injured third parties involves delicate

policy determinations. Unsurprisingly, “Texas courts have not expanded the

duty in El Chico to cover the sale of other potentially harmful products.” 21

Second, and relatedly, this case presents different public policy considerations

from where a licensee provides alcohol to an already intoxicated person: the

social value of pharmacy work is higher than the social value of dram shops,

and the foreseeability of the harm that occurred in this case pales in

comparison to the foreseeable harm caused by serving alcohol to intoxicated

bar patrons who will then drive. It does not follow that because the Texas

Supreme Court recognized a duty of care between a licensee and third parties

foreseeably injured by drunk driving—in a move promptly superseded by

statute—it would recognize a duty between pharmacies and third parties

injured as the result of mis-filled prescriptions.

C

This brings us to the core of the duty analysis under Texas law. When

the Texas Supreme Court has neither established nor foreclosed the possibility

of a tort duty in “particular circumstances,” Texas courts ask whether such a

duty “should be” recognized. 22 This involves “social, economic, and political

questions and their application to the facts at hand,” and involves weighing

“the risk, foreseeability, and likelihood of injury against the social utility of the

20 See Tex. Alco. Bev. Code §§ 2.02–03 (granting a statutory cause of action against

alcoholic beverage providers and making it the exclusive remedy); Graff v. Beard, 858 S.W.2d

918, 919–20 (Tex. 1993) (explaining that “[t]he statutory duty established by the legislature

also placed a less onerous burden on commercial providers and a correspondingly higher

burden of proof on injured parties than the common-law duty created by the court”).

21 Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 179–80 (5th Cir. 2018).

22 Pagayon, 536 S.W.3d at 503.

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actor’s conduct, the magnitude of the burden of guarding against the injury,

and the consequences of placing the burden on the defendant,” along with

considering “whether one party would generally have superior knowledge of

the risk or a right to control the actor who caused the harm.” 23

We have little difficulty concluding that the Texas Supreme Court would

not impose a tort duty between pharmacies and third parties of the type the

plaintiffs here advocate. The Texas Supreme Court has “described

foreseeability as the ‘foremost and dominant consideration’ in the duty

analysis,” 24 and we agree with Walgreens that the harm caused to Martinez

and the Longorias was not a foreseeable consequence of Walgreens’s alleged

conduct. Most importantly, it was not sufficiently foreseeable that a pharmacy

customer would take the medication in a bottle intended for someone else,

notwithstanding that the label listed someone else’s name and a different

medication. 25 To be sure, the foreseeability inquiry does not require Walgreens

to have foreseen the precise harm to third parties that in fact resulted from

giving Gamboa someone else’s prescription. 26 But where Texas courts have

23 Id. (quoting Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 182 (Tex.

2004)).

E.g., Peavy, 89 S.W.3d at 36.

24

It is also unclear that it was foreseeable that a customer who took someone else’s

25

prescription drug would experience the type of reaction that would impair his cognitive and

motor skills while driving. The plaintiffs’ own summary judgment evidence indicates that

glyburide metformin does not necessarily cause hypoglycemia in non-diabetics, and that

Gamboa’s age and impaired kidney function made him more susceptible to the condition as

a result of taking the medication. This distinguishes this case from, for example, Gooden,

where the drug was likely to impair the ability to safely drive in anyone who took it. See

Gooden, 651 S.W.2d at 369–70.

26 See Austin v. Kroger, 864 F.3d 326, 333 (5th Cir. 2017) (per curiam) (“Texas courts

have consistently held that foreseeability turns on the existence of general danger, not

awareness of the exact sequence of events that produced the harm.” (internal quotation

marks omitted)).

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found the risk of harm to a third party to have been foreseeable, the possibility

of harm was significantly less attenuated. 27

Foreseeability aside, the Texas legislature has shown itself to be both

willing and able to undertake the public policy balancing inherent in extensive

regulation of pharmacies’ treatment of prescription drugs. For example, Texas

law allows pharmacies to dispense dangerous drugs—including any drug that

requires a prescription, such as glyburide metformin—only to those with valid

prescriptions. 28 It sets forth extensive labeling requirements, including that

the label be easily readable and include the name of the patient and the drug’s

brand name or generic name. 29 Further, it imposes criminal liability on

pharmacists who dispense dangerous drugs without prescriptions or fail to

comply with labeling requirements, 30 and imposes civil penalties on those who

unlawfully engage in the practice of pharmacy. 31 That is, the legislature has

detailed other protections against the risk, and a tort duty to third parties

would be in tension with this extensive regulatory scheme. 32 This bolsters our

27 See Peavy, 89 S.W.3d at 36–39 (rejecting summary judgment due to genuine issues

of material fact over whether it was foreseeable to a care facility for the mentally disabled

that a resident with an extensive history of violence would pose a threat to strangers when

allowed outside the facility); Bird, 868 S.W.2d at 769 (recognizing the foreseeable harm to a

parent who was accused of sexual abuse due to allegedly negligent mental health treatment

provided to the child, though ultimately concluding that the mental health professional still

did not owe a duty of care to the parent); El Chico, 732 S.W.2d at 313–14 (emphasizing the

foreseeability of harm specifically where an alcoholic beverage purveyor sold alcohol to a

customer who was already intoxicated and who the purveyor knew or should have known was

likely to drive after leaving the establishment); Gooden, 651 S.W.2d at 368 (recognizing a

foreseeable risk of harm where a doctor prescribed a patient Quaaludes and could have

expected that she would take those drugs before driving without a warning to the contrary).

28 See Tex. Health & Safety Code § 483.021(a); Tex. Occ. Code §§ 562.056, 562.112.

29 See Tex. Occ. Code § 562.006.

30 See Tex. Health & Safety Code § 483.042.

31 See Tex. Occ. Code § 566.101.

32 See Ritchie v. Rupe, 443 S.W.3d 856, 891 (Tex. 2014) (declining to create a new cause

of action, in part because the legislature had already created a “detailed and extensive”

statutory scheme, “reflecting legislative policy judgments about when the government should

step in to impose rights and obligations on the parties and when the parties should be free to

dictate their own rights and obligations vis-à-vis each other”).

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conclusion that the Texas Supreme Court would not recognize a duty of care

owed by Walgreens to the plaintiffs in this case.

The plaintiffs suggest that this degree of legislative involvement actually

cuts in their favor, in particular the statutory prohibitions on distributing

prescription drugs to someone without a prescription. They disclaim reliance

on statute to create tort liability where none would otherwise exist, arguing

solely that statutory prohibitions help to more clearly define the standard of

care Walgreens owed. But their reliance on statute begs the question of

whether Walgreens owed a preexisting duty of care to the plaintiffs as non-

patient third parties.

To the extent that Texas courts are willing to infer a new tort duty from

legislation—a rare, but not unheard-of, phenomenon 33—we disagree that the

statutory prohibitions the plaintiffs cite point to a duty here. The Texas

Supreme Court has settled that “[t]he threshold questions in every negligence

per se case are whether the plaintiff belongs to the class that the statute was

intended to protect and whether the plaintiff’s injury is of a type that the

statute was designed to prevent.” 34 We do not doubt that legislative regulation

of pharmacies was intended to protect “the public health, safety, and

welfare.” 35 The plaintiffs argue that as members of the public, they are

therefore within the class of persons that the legislature aimed to protect by

prohibiting the distribution of a prescription drug to someone without a

prescription for that drug. Nothing suggests, however, that this statutory

33 See Perry v. S.N., 973 S.W.2d 301, 305–08 (Tex. 1998) (observing that the Texas

Supreme Court has “created a new duty by applying negligence per se on only one occasion”);

see also Allen, 907 F.3d at 180 (after declining to recognize a common-law duty under Texas

law, observing that “[t]ellingly, Texas courts rarely imply a civil tort duty from a criminal

statute”).

34 Perry, 973 S.W.2d at 305.

35 See Tex. Occ. Code § 551.002.

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prohibition intended to prevent the type of harm that the plaintiffs

experienced—rather than preventing harm to the members of the public who

ingest potentially dangerous prescription drugs and suffer harm as a result. 36

We therefore cannot infer from Walgreens’s alleged violation of its statutory

obligations that its tort duty of care extends to the third-party plaintiffs in this

case.

***

In sum, looking to the factors the Texas Supreme Court would consider—

in particular, the foreseeability of the harm, the presence of other protections,

and the danger of interference with the legislature’s balancing of public

policies—we conclude that the Texas Supreme Court would not recognize a

duty between a pharmacy and third parties injured as a result of a customer

taking the incorrect prescription. Mindful that we should not “lightly abdicate

our mandate to decide issues of state law when sitting in diversity,” we decline

to exercise our discretion to certify this issue to the Texas Supreme Court. 37

IV

We affirm the district court’s grant of summary judgment to Walgreens.

36For example, this case is unlike Praesel v. Johnson, which considered whether a

doctor’s violation of reporting requirements to the Texas Department of Public Safety

generated a duty of care between the doctor and a third party who was injured when the

patient had a seizure while driving. Praesel, 967 S.W.2d at 394–96. There, although the Texas

Supreme Court ultimately did not recognize a duty based on this statutory requirement, it

observed that the “general public” was plainly within the class of persons protected by such

a requirement. See id. at 395.

37 In re Deepwater Horizon, 807 F.3d 689, 698 (5th Cir. 2015) (quoting Jefferson v.

Lead Indus. Ass’n, Inc., 106 F.3d 1245, 1248 (5th Cir. 1997)); see also Patterson v. Mobile Oil

Corp., 335 F.3d 476, 487 (5th Cir. 2003) (“As a general rule, we do not use certification as a

panacea for resolution of those complex or difficult state law questions which have not been

answered by the highest court of the state.” (internal quotation marks omitted)).

12