and not callen texas accidentally mistakenly negligently gave eighty five year old loveliest gumbo a bottle of anti diabetic pills that were prescribed for another customer mr denbeaux was not a diabetic he had no prescription for the pills at walgreens gave us these pills impaired his driving causing him to drive like he was drunk he crashed his car he killed himself he killed forty two year old cloudy  on collision and he injured mr mit mr or mrs long gaudio mr gamboa sons down the bottle of pills in their father's apartment after his death toxicology was positive for this anti diabetic medication the pills that wal body that were consistent with the drug having been unjust and positive for the drug itself you run in k and that's part of the record on appeal and that's also dr davis report which is in your record  the drug is a dangerous drug by definition if requires a curse crichton dispensing a dangerous drug without a prescription this happened in this case is illegal under the texas drug statures mr gamboa sons sued walgreens for the wrongful death of their father  that case settled walgreens tells this court and its brief that they made a mistake they accidentally gave mr gamble with the wrong they further tell the court that the claims by mr gamble with sons were legitimate legitimate is h customers of walgreens so the issue for the court is whether this duty that walgreens has to its customer which extends out to the customer stanley also extends out the third persons who really extent of the customer's family when they're suing on behalf customer that's correct i don't see this distinction i mean it just seems so routine that that that didn't separate suit i'm not sure what how you're getting support for your theory from the well it didn't used to be retained there were times of baby in the one nine hundred ninety s when even family members couldn't sue negligent medical providers but the law has evolved and now you see many many family members of people that are injured as a result of medical errors suing negligent medical providers and i think the fact that the sons claims are legitimate actually shows that perhaps these cases from the one nine hundred ninety s were moot but the issue here is whether the duty extends outward and i suggest that either on an eerie gasp by this court or a sort of five question to the texas supreme court the answer should be yes there is a duty for a very simple and sound reason texas law has long held up a duty can of rice if you cause or contribute to the impairment of a person that results in death or injury to thor parsons that has been the law for decades it may even go back to the nineteenth century and it as the basis of dram shop actions in this case mr gamble was impairment was involuntary no jury would find that he was not in voluntarily impaired waterings illegally dispensed a dangerous is that the jurisdiction recognized a this duty of pharmacies to non customers excuse me as any jurisdiction recognize the duty you're asking for in this case  pharmacies to non customers your honor as far as i know this issue is never come up right and doesn't that it is highly unusual of course a very tragic incident but it's it's so unusual doesn't that affect the foreseeability analysis unlike dram shops where i mean all that you know all the time people are getting drunk at bars and going off and hurting people on the roads here this is almost an unprecedented situation doesn't that affect the duty analysis writer it's certainly foreseeable to the pharmacy that an elderly gentleman such as mr gamboa who is a spanish speaking gentleman would simply assume that the pills that his pharmacy had given him for were for him he had about the name actually the name on the bottle is someone else's name that's it's terrible case but but he was he literate in spanish your honor i don't know how literate the gentleman was i know he still works part time he was active in mr rich he assume that the pills that his pharmacy gave him or for him and that is exactly why the texan he had been taking them for two weeks right the prescription predated the accident by a couple of weeks at least all green says that he picked the pills up i don't know how many pills are still in the bottle there were sixty pills in the original prescription i don't know i know that the other plaintiffs affirmed still has possession of the bottle we didn't get far enough in discovery to really count the number of pills but your honor this is not a with respect to the foreseeability it's certainly foreseeable that he would he would take the pills they gave him and that's why the pharmacy regulations require that a pharmacist before dispensing a drug ensure that the right pills are being given to the white patient that's exactly why that's in the law and if they lose their fame screw up like this they certainly can your honor and i don't know whether the texas pharmacy board ever took any action or not i just don't know but i mean that that is a remedy apart from creating a tort c but i do want to discuss one of the cases that i think walgreens will discuss and that's the thousand hard decision of the supreme court and i want to put a spin on it that maybe you haven't heard before that there is the case where the psychiatry a stales to warn a patient's family that the patient threatened to kill a stepfather which he did apparently a month after he was released from the hospital the patient's mother who was also the step father's wife sued the psychiatry no the lady didn't have any evidence that the psychiatry caused or contributed to her son's mental illness she didn't have any evidence that the psychologist had any control over her son so therefore there was no duty there the supreme court held that the psychiatry had no duty to warn the family because he was precluded from doing it by the medical confidentiality statute issue in the case we think that that case was correctly decided on the facts let me change the facts just a little bit how about a doctor thout car the psychometrist gay freddy lilly his patient cocaine illegally that exacerbated this paranoia exacerbated his delusions and then he killed the stepfather when he was on the cocaine that the doctor gave him without change the result in the case it would have to why he c impairment and we think that the duty to the public by walgreens in this case can be summarized in those three or four why don't i don't really you know when you get beyond the customer relationship this this becomes very very dicey from basically you're asking for a social insurance because suppose amazon is delivering a package to somebody and some person in amazon negligently fails to include the warning instructions and such and person opens the package and then electrocute some selfs because warrant warning instruction wasn't there and you know they it and they have the person the person who received  to the third person who dies i mean where where is the limit of liability for negligent act by a provider of goods or services where you run around the products liability context the liability extends outward to whoever the user of the product s and there is even a provision in the medical liability act that it doesn't apply to prod a bit products liability claims that are based on a mishandled product and it's hard for me to understand how dispensing a dangerous drug with not a prescription is any different than  mis handling a dangerous product of course this case was bought as it's my point isn't right and it's it's a fact intensive issue and i don't think there is any kind of a bright line that would really instruct anybody except exactly where the line is what's your best authority in texas law two cases your honor one is the flynn case that's out of the east and that's one of the intermediate court decisions that cited by the texas supreme court upholding there was the doctor dr gerber had no duty to the public because he did not get his patient the cocaine that imperative is driving no cocaine no duty and in this case walgreens gave mr gamboa the dangerous drug that impaired is driving any injured and killed third person it's the other case that has been cited about forty times around the country that's the good and the tips case out of these texas that's one side four times by the texas supreme court once by this court and even sided by the district court in this case this is the east texas doctor who prescribes ludes for his patient but does not warn her that they could impair her driving so she crashes her car and the doctor is then sued by the injured motorist the court found that the doctor owed that motorist a duty because he had the affirmative act of prescribe ing the pills but not warning now and we're in this case we're not saying that that was green stale to warn mr gumbo if they don't want to know what not to take the pills that they had illegally given him you know the case is more egregious thing good in the tips because a failure to warn may be negligence maybe but it's not illegal but these people did was illegal dispensing a dangerous drug without a prescription is illegal and the statute that prohibits that conduct protects the public interest has been there's definitely liability to the customer the of the texas supreme court would do today this is precisely why your honor because this is a question of public policy a historically this court has sort of five questions to the texas supreme court and the texas supreme court has accepted those questions and this is a great case for them because it's a very interesting issue it's an opportunity for the texas supreme court to perhaps clarify this area of law it's a great record i don't think the texas supreme court will ever see a better record than this one now ancient legal principle that if you cause or contribute to the impairment of a person and that person injures or kills third persons there is a duty thought why would dram shop laws passed by positive law your honor the texas supreme court had created the common law dram shop duty the week before the texas legislature passed the dram shop back the draft shock that nearly caught a fly's the holding that in fact the dram shop is liable to the public before that there was no common law a lot of the bars had no liability under the case law because they had no relationship with the person that was injured so that my point right now the dram shop law codified the texas supreme court's holding it it's just indistinguishable how can a public someone with with serious mental health problems who receives medication and he goes to the pharmacy and like this they give him the wrong medication and it exacerbates his mental health problems and in theirs it results in tragedy like a mass shooting under your theory basically every victim would be able to sue the pharmacy right if the pharmacy correctly filled a valid prescription the pharmacy has immunity under the warning or needle you know if they gave him the wrong the same thing here they instead of giving him his medicine for bipolar disorder they give you someone's anti diet diabetic medication right and if the lack of his psychiatric medicine causes a terrible shooting your third be all the victims would be able to see and maybe that's right that he that is the implication of your it is these are going to be very unusual cases where third person to reflect that most of the plaintiffs are going to be the patient the patient's family highly unusual to have the request if it's highly unusual is why doesn't that go into the forsee ability analysis it what it's perceivable to them that he would be impaired by a medication that's known to cause hypoglycemia these behavioral changes similar negligent but excuse me sir but there are mistakes on both sides to this mistake on the part of the pharmacy and there's mistake on mr campbell as for not reading the label prescription that he got he obviously if he took if he took the medicine that means he was attempting to comply with the prescription and everything but the name on the label your honor the issue of his comparative responsibility is that he would be an issue for the jury to decide and i think it's highly unlikely that a jury is going to put any comparative responsibility on this elderly gentleman who simply took the pill that i mean is it miss prescribed you could miss cell aspirin to somebody who turned out to be very allergic to aspirin and went over and and you know couldn't breathe and their heart stopped while they were driving in the car and they did exactly the same thing in a case like that your honor that would probably not be any liability lineup well because this is a prescription drug that is a dangerous drug by definition it can only be given to somebody who needs the drug there where you got the illegality and prescribing the pharmacist wouldn't be liable if the pharmacist what you're saying is under texas law the pharmacist would not be liable if the pharmacist gave the aspirin up to somebody who is dangerously allergic and said well just take a small amount or something because the negligence under texas law doesn't extend to third people third parties right i don't know what the limits of the store other than to say that in a case like this where they illegally dispense the drug that has known side effects including hypoglycemia and they have behavioral changes where they cause the problem they cause his impairment and voluntarily there would have to be a duty to third persons that he killed or injured by thomas oh ok thank you  time and time again the texas supreme court has been given many opportunities to impose duties from health care providers and pharmacists to third parties that are not their customers or patients and they've been very reluctant to do so let me ask you a question you remove this case to federal court didn't you correct what why why would this court a sit in and diversity and the parties were diverse so i know you have the right to move removed but but was walking so worried about the outcome in the state courts i mean because you're going to come to us and say there is absolutely no law that justifies says we can't go there and reread it which is really a cheap victory for walgreens if it occurs whereas if you went through say court to get the definitive ruling that you say the is inevitable well your honor i wasn't involved in the decision because i wasn't a council of the time but i can say typically if there is complete diversity and most situations our clients take the opportunity to review to remove to federal court for whatever reason never do it excuse me have made the same arguments on jan o b and directed verdict and we would have eventually end up in in the texas supreme court and i think that's where we end up i don't think this court needs to go there i think this court has ample authority and direction from our texas supreme court to it and affirm the district court's ruling i think the texas supreme court has spoken on this issue and they are reluctant to impose their due to third party duties on their parties regardless particularly in this cont asked if there was any other jurisdiction that has imposed a duty on a pharmacist in these kind of scenarios i have read extensive law review articles and statement sections m jurisdictions are currently across the united states very reluctant to impose duties on farms pharmacies for particular reasons of public policy opening the floodgates to learn in the media or doctor and in fact we cite a case in our brief where nevada also it was a pharmaceutical situation and in that case nevada has a special kind of reporting statute and they say if there are people who go to many situation that happened here the letter went out the patient was still given the medication and the patient then got in an accident and there nevada refused to extend even in that situation a duty to the pharmacy and i think think the taper case makes the very distinguished meant that this panel was making between failure to warn and negligent treatment cases and that case there were two different scenarios there was a scenario where there the theory was are does is a duty that flowed from a psychiatry just talk to warn and they said no because of the confidentiality statute but prior to that there was was there a duty to this third party the mother  ties policies and procedures in place to check names and addresses there is legislation as are you know your honor to follow to make sure that you check the name the address and then the bottle is properly label lot of that the only facts in front of this court are do you do the analysis all we know is that he received he got in the accident the autopsy showed this medication and then his children found the bottle of medication and his apartment after the accident and it appeared that there was maybe four or five pills missing and i think that all of those issues which council also has argued i'm not sure if he paid cash or used a credit card i'm trying to get up the question of what i actually happened factually here in terms of dedication and you're not doing anything about what actually happened here you talk about the regulatory regime as i think he was identified all of these issues would be flushed out in discovery given the regulations that could result in the loss of a license and the fact that there is a duty to customers you make all these policy public policy arguments that a duty would inhibit pharmacies i mean how does that really add to the strong incentive pharmacies already have to make sure medicine gets to the right people  think right here where you're going to dispute that you know all of those underlying facts i mean as to day how he got the medicine or how he got the wrong medicine or what he did and i'm talking to your legal issue on duty you say that if we if we had said there is a duty to the plaintiffs in this case right we expand the texas law that way or read texas law that way then it would create this real big burden on the pharmacies that might inhibit people from wanting to sell prescription drugs but it seems like there's already such strong reasons there's state regulation there is the duty to customers so why would this add to the burden on pharmacies or cause them to change their practices i think giving liability a third or giving a tort right to third parties would would inhibit the social utility of pharmacies that they'd be reluctant to give out drugs but there's already such strong incentives in regulation  pharmacies i mean not just in this scenario but you know in a and a missile situation where the dallas court of appeals has already addressed that it doesn't work and that there would be no there's no duty to the parents of the child that got the wrong medication and i think that it could expand by doing that it could expand to beyond the cost of it for other health care providers and doctors which is why there is so much legislation you know regulating medical malpractise and including all of the caps and i think the legislation brings me to a point with these all these statutes would say you shouldn't dispense drugs with out  prescription and whether this is negligence for say i think that this court has already held versus wal mart which was address the el cheapo situation because they're trying to extend this kind of situation to the dram shop which doesn't work in this court has said that the texas supreme court has already been reluctant to take go further to the sale of other harmful products and i think it all comes down to expanding the duty for the cost of the health care system which are all the public policy reasons against imposing and getting that's you know duty to these pharmacists and i also think  that intermediate courts have addressed these statutes to intermediate courts and in texas austin dallas and amarillo and dallas in the eckerd case they address these statutes and they said the pharmacy rules  the admin rules do not create negligence per se and the drennan versus community health case they address specifically the scott shoot out of dispensing with dispensing drugs without a prescription and they said that was not not negligence per se and i think that as this court recognized texas is very very reluctant to impose a duty through these statutes and i think that i think it would show the whole pharmacy of litigation or pharmaceutical dispensing i think they are there is already regulation in place and we believe that there is ample authority under all of the texas supreme court authorities not to extend or expand duty here yars if anyone has any further questions i think i'm going to get back to my time just we don't thank you the basis for their duty to mr gambell to his family to the public including your repellents can be summarized and for words they caused his impairment they caused his impairment and if you look through all the texas laws going back to the nineteenth century you will see that that basis of liability has been employed and cases that are at least peripherally similar to this one they caused his impairment it's undisputed that they caused his impairment the ens dispensed forty five hundred code on pills to a woman who crashed her car killed a man the prescriptions were all valid incredible and that was the basis that there was no liability plus the nevada statute to a little bit different social utility argument is there so no social utility in illegally dispensing dangerous drugs they're saying that yes but the pharmacy industry has social utility the argument doesn't work the trucking industry has social utility we need trucks to move things around does that mean you can't sue the negligent truck driver who killed your family know the pharmacy industry his social utility she can't sue the negligent pharmacy that kills your wife kills your daughter cloudy i'm out of tina's know if there was any social utility in dispensing dangerous drugs certainly not going to bankrupt down and remember also that the texas constitution does not give them any kind of immunity remember the constitution had to be amended in two thousand and three to authorize them legislator legislature to count the damages and med now if the voters wanted to amend the constitution to give them immunity they would have done it they didn't do it they didn't do it in two thousand and three they're not going to do it today the legislature hasn't given them immunity they certainly haven't given them the immunity the medical liability statute in the texas supreme court has given them immunity and it can't because it has to walk that constitutional what's the difference between the full power case and this case in terms of i mean again you tried to distinguish it  they said they've said according to the power they've said numerous times the doctors who misdiagnose are not liable for third party consequent you're on it are you saying and i'm trying to say from par i still can't hear what you're saying look hawr i call it th a p a r r r of course i'm sorry yeah that was the case that we discussed but remember your honor that the doctor in that case  cause or contribute to the patient's mental illness but according to my hypothetical what if you'd given him call how do we know because a feed given the patient packs soul or something the patient might have been sedated and not inclined to kill as a stepfather perhaps that's right and that's why the case is correctly decided on it's facts the got the doctor didn't do anything but if a doctor if the doctor you know the doctor might have consequences in terms of his license absolutely wrong well that's quote illegal in the same way you say this is illegal that's right your honor there would be consequences on the doctor but that wouldn't affect the tort liability i would urge sort of the cation of the case obviously there's a huge disagreement over what texas public policy is with respect to liability to third persons by pharmacies if we go to the texas supreme court i will make this suggestion to them that cloudy amount of tina's was alone in her car when she was killed how about it instead of cloudy it was a family of people the mother the father of three kids in the back and the sole survivor of that horror is one of the kids it's a little girl is the supreme court of texas going to tell that child who has lost her whole family as a result of this pharmacy or that she can't sue them because she wasn't their customer are they going to tell her that never they would say instead that there is a limited duty in a case like this based on these very very intent on the one hand you said it's limited on the other hand in response to a couple of hypotheticals so you say i don't know where this goes it's limited so it says you know it's the beginning of unlimited liability well your honor it's certainly limited to these very unusual facts in this case including the undisputable fact that they caused his impairment lesser spur of the questions in the court good day thank you thank you so that it very interesting case