we'll be addressing the remaining claims breach of warranty partial summary judgment that carries liability issues and also our request for reassignment to a new judge if the court deems that this case is w of being remanded back to the district court as relates to as you already know where this case involves mr livio six medications to the small who we allege ingested a portion of those medications and and at that time they led to her personal injuries and ultimately to her death now we i want to dress where believe is the most significant issue coming out of this case the district court decided that if a company for medications in a package addressed to you and the medications inside that package are in prescription bottles that are not marked or a label for you and you in it virtually ingest those medications you negligent as a mad contributory negligence as a matter of law and we think that that portion of the decision has far reaching implications and will affect millions potentially millions of consumers at a time when we as a country are going in a different direction when it comes to prescription prescription drugs for trying to provide more protections to our consumers this case does just the opposite but isn't that somewhat of a  that testimony of mr michael says she ingested them but so i i get that issue but putting that aside it is is the holding necessarily that brawled isn't the holding given the context here when the when when the when the patient for lack of a better word when this malls receives on telephonic warnings and didn't receive it this time that here it could be when you don't even look at the label a contributory negligence well  several several reasons you are first of all the court although it talked about surely small it double down when it mentioned rules rosemary should ponder as being the primary care physician of ms small who indicated that she had been prescribed three of these medications previously and that it would not be she would be familiar with those in and that kind of thing but when you look at the record those are in two thousand tina i actually would back and looked at the pharmacy at the pharmacy records and when those read when those prescriptions were prescribed was three years and four years before this and she didn't say that interact with david or affidavit was a bit well my point being that when they talked about bottles were clearly marked if you look at the pill bottles themselves they had about seventeen different pieces of information on those bottles so we dispute that particular that regulated by the f d a how you how you label a prescription drug be regulated but to a geriatric patient who is seventy four years old and it is we believe that's a jury issue to say to determine whether she actually is reasonable for her to know what was going on as far as those in the case that an ordinary prudent person would it sure so under the same or similar circumstances right so is is that standard  general objective standard or is that something that's because your to your client's education level but now it's a general objective standard but we see we assert today you are that there were factors here that were ignored that reason that should have gone to a jury for instance you had three different doctors who indicated that when a person is a familiar with the pharmacy trusted pharmacy that they received mail or medications for for a number of years that it was certainly reasonable for them to believe that medications that was sent to them in a package addressed to them what the recently intended for them and you had not only our two experts you also had an expert from exactas pharmacy i sister who also say on the phone when the bell small family call this person to say you know we've got these pills here my our mom's in the hospital and they go through the litany of what was in the medications and they said  without considering other factors that may have been in play we believe is is an error for the court to assume that isn't there a case on this from north carolina that champs convenience store which i believe your colleague cited in their brief but the opinion they cited was subsequently overruled by the north carolina supreme court and anyway this is where the wrong chemical gets delivered to the store for cleaning and the label says it's a toxic chemical but the delivery suggests no no this is the thing you always use to clean your floors and so without looking at the label they clean the floors they can tell from smelling it this sure smells like poison but whatever the delivery guy told us it's the regular thing they clean the floor of the store's terribly damaged in the north carolina supreme court since that's a jury question whether they were entitled to rely on the delivery or whether they had to read the label that's a jury question right why isn't that pretty much on point here i think it i think it is on point we're arguing that the jury the jury should be allowed to hear these facts and evidence that were presented in this case and for instance when you have like i said even more so than that case because you're talking about a one time incident this is not a one time incident with small mismo was really receiving her medications in the mail for years in the same type packaging these great pop plastic mailing envelopes she dealt with well by the defendants for a number a significant period of time and so there was a history there and established history not just a one time incident where this is the first time i'm receiving this medication so let me double check everything and make sure it's a correct and as the form as our experts dictate it she didn't have a reasonable expectation by dick but the history that they had together that these packages these medications that were put in this mailing package delivered to her doorstep think it's a good issue is champs convenience really the only point they are they had discussions that same day so wasn't the reasonableness of not looking  label grader in a situation where say i got a problem call one in a couple hours later it comes compared to a situation where every other time when in the prescription meds there'd been a call in advance confirming the delivery was coming so that's one point now i see a second one which is it which is where there is back to the experts that you talk  about i'm not sure what fueled that scene and i'm not sure what well over a liability is it all associated with that is it relates to the standard now i realize i don't think there was a d and is a board certified jury geriatric farm pharmacist he's been doing this thing for forty years his opinions are directly related to what we have an issue here and then you have dr baker who also said on different boards and stuff that make determinations as far as pharmacies what they need to distribute what types of medications they distribute so i don't know how we could have found anybody else more on point as to this type of case and again back to your point about the pain ceiling thing you talk about the same day but again we're talking about a young woman a geriatric patient who has had an extended history of dealing with  the defendants in this case without incident also she has no prior history at all up abusing her medications or misapplying her medications in any way just so happens on this particular occasion they send her the wrong medications which she would never have expected or at least a reasonable jury could sermon that her conduct over the history of what they experienced together was reasonable we asking that this was a jury issue we believe it was a jury issue and that was not something sure he didn't miss and that was he should proximate cause with a district court found that there was insufficient evidence that mrs small actually consume medications i think that records replete with both direct evidence and circumstantial evidence that she consumed that medication when it was   medications you point that out in our brief second we believe that well done it was clearly was acting as exact agent in this particular matter and that as well done as exact as agent exact this  negligence that will that it was committed would have been a putin imputed to to exact this series of agency there was some question about whether there was sufficient evidence to establish an agency the district court did not find that there was any question that whil defendant is there a particular advantage of having exactness in the case you have a defendant do you claim to be directly involved in the wrongdoing and that someone appeal obviously but if we were there's a question of fact about that what does have an exact just do for your case other than having just an additional defendant well i think it helps jury understand the relationship between the parties and yes it does secondarily at a second engine case exacts not just for imputed libel for their own negligence in this particular case though i may have to rephrase what i said it's quite a bond there is actually a separate independent basis for liability against exact just a court found that exacts did not have a duty in this case to our client's mother mother because they did not have a prior relationship with her and that the orders to ship the medications from exactly the will diner is with the ship of medications to a different person but that they were missed delivered  any procedures or systems or mechanisms in place to time to discover or correct shipping yours and spent years that might occur and there's plenty of evidence in the record should we get back to the trial court to prove that lack of assistance mechanisms to detect and correct shipping so those are just a few of the basics for direct liability thank you present i don't have much time in fact i think i'm over my time if i could strike a couple more points your honor and then i of statements in exchange by the district court judge though that we felt betrayed a bit of bias in prejudging the facts in the case and we also believe there was there was an exchange during the summer hearing that was sort of uncalled for and exhibit some hostility that we still don't have  material fact i would respectfully request that this court of the lower court's decision the first issue i want to look at is that of contributory negligence in north carolina contributory negligence access the complete bar to a negligence claim or t is that the reasonable person we're talking about or is the reasonable person we were talking about just the overall population irrespective of your honor well i would contend that the standard here is a reasonable person it is not a subjective standard so in this case the appellants are trying to make the standard subjective just look at the seat and age with a not that the seat it was a literate and th seat it's past medical condition but this but the standard by case law is what a reasonable prudent person would do to exercise keir in the similar and same circumstances so in this case that helen has argued that you should ignore that the deceit it received a package that contained medications that were plainly labeled for you know the person that had enough in on each bottle of the medication and none of the medications elderly members of the population sometimes i mean i know doctors complain about this with all kinds of patients or sometimes people get confused  w which medications they should be taking and at what intervals they should be taking them and all of them a lot of patients are taking you know seven or eight different medications a day and so do you need to take that into account when you decide to use cases i believe the point that i believe you're making your honor is that's exactly the reason why ordinary person has a duty to look at the medication bottles before they c reasonably balut to see how i should be consuming this medication which seems to be a little bit nervous i can remember should rely on our own personal circumstances but i remember the terrible to think and i went to i couldn't stand the pain and i went to the pharmacy in the pharmacists handed me the bottle with one pill and said take this and i swear i did not look at that label i just chugged it down i mean am i not entitled when the pharmacist hands me the thing and says take this pill so two questions one that would that be contributory negligence and if not are these maybe distinguishable how broad is the principle you're asking for i think in the scenario you just raised rates to cherish that would be contributory negligence on your part so you  think so so you are sort of agreeing with your colleague this is the art of the rule you are arguing for is not context specific it is sufficient that any person who doesn't check the label before they take the pill no matter what the circumstances has been contributory drug but i think when you look at a case as in the watson case which is the unpublished decision when you're talking about a claim of wrong foot doubt and you determine whether or not the person's own negligence played a role in it it is reasonable and warranted in that case to decide on summary judgment standard whether that person was contributory negligence or do you think the employees in that in that champs convenience store had actually died then if they had died then it would have been him as a matter of law they really should have checked the label because man they died but because they didn't die it was a question for the jury were lying on the case law and brown vs power says in an action for wrongful death predicated the principle or you just announce i absolutely understand but it seems to beg the question we're talking about whether there was contributory negligence here as a matter of law i entirely agree that in a wrongful death case if there has been contributory negligence then you can't recover but so what do you do and this goes back to judge called obama's question with this champs convenience store case where the employees failed to look at the label which announced clearly this is a toxic chemical they could smell that it was off they knew that there was plenty of evidence that they were using the wrong chemical they didn't look at the label and the supreme court said well that's a jury question you are not i believe that the single factor from the champs case in this case if you're looking at the history here that the the protocol was that when the minutes you can't look at the history because you answered my question by saying none of the surrounding circumstances matter what you're arguing for is a per se rule that what ever the surrounding circumstances even if the pharmacist is telling you right now take this pill you're not allowed to rely on that and if that's right i would like to know how you can distinguish champ's convenience stores you and i think the best way to distinguish it is on the factual basis your honor and look at the facts that or at play in each case so are you retracting what you said to me if you're changing your mind on whether the surrounding circumstances matter you or not i think i what i'm trying to say is that you have to look at those facts that are not in dispute to determine whether or not contributory negligence should apply in a summary judgment ruling as is what i would try got this thing smells terrible and this minder stand in the champs case that was the first time that those individuals were using that particular chemical they knew it would have a ball in the somehow they knew it smelled wrong they had balled the store from somebody else and was relying on a prior history in this case way but it seems like you're making a good closing argument that maybe i don't know they're not all i'm not trying to make a closing argument the point that i'm trying to make is if you look at the facts that are not in dispute so it is not disputed that the medications arrive to miss bertha smalls home i not disputed that she consumed the medications if you look at the light most favorable to the atlanta not in party and under those circumstances that seems to be actual evidence of contributory negligence and there is not a genuine issue of material fact as to any of those issues that i just stated your honor cannot before you sit down that we we've had a lot of discussion that can trip or which is important but on the proximate calls ation on the district court ruled as a typically a jury question and they have expert testimony yeah that links the death to the medications now and i think there was a deliberate challenge to that opinion and i'm not sure it's about quite frankly how that would stand up to a deliberate challenge but given the order that we have is there not evidence in the record that would make proximate opinions were based upon assumptions speculation or conjecture because the alternative theory is looking at all the evidence in the case but they were based on this process of mccall's they were based on the absence of evidence that she ingested the drugs which you apparently which came in the form of a witness who was disclosed just not the posed or other was given testimony prior to the close of discovery small the amount whether it was the drugs or relate it to lowering the hypertension they all each expert for the plaintiff made an assumption that that was the case but there was no factual basis for them to make that assumption because they both daubert the district court said looking at the reports and i still think there's not enough to go to where jerry is right on you might have a downward motion pending if we were to send this case back i understand that but i guess i don't understand the basis for the district court's decision that if you look at the expert reports as well as the other evidence in the case there is not a jury question on causation i mean there is evidence in the case that she took the medicine there is the expert reports saying if she took this medicine would cause this outcome they also had inferred from circumstantial evidence that her symptoms were consistent with the medicine so there is additional evidence achieve taken it so why is that why is that not a jury question just tears as you pointed out there is the allegation that she took the medication but there is no factual evidence as to which medication she consumed how much of it she consumed and when they talked about her symptoms been consistent but one thing that dr thomas and talked about was immediately so if you look at the fact of the absence of what she took what she consume in the end that was on or about the number of my team two thousand and thirteen and the death took place six weeks later and the death certificate says a number of things which did not supposed to treat hypertension or had the effect of lowering blood pressure and so one of the assumptions made by doctors scientists and is that the small took one of each of those three medications which had to fit to lower her b pressure dent to make her to become fused into concerts of all the snowball theory but there's no evidence in the record she consume any of those three medications well except that her things happened to her that were very consistent with your blood pressure going way down i mean that you made it look it looks it looks to me like the district court read that was like well i don't that doesn't make a lot of sense to me i'm not terribly moved by this expert's opinion but that's not for the district court judge to decide it's up to the jury to decide whether that holds water or not john of the district court just looked at the facts of the case which were not in dispute there is no evidence of any medical record that the nonmoving party can point to show that that actually happened because that was using where did the blood pressure which led to the other sent so you don't get an undisputed in this case that she did not take those three pills that is an undisputed fact that we can i believe your honor that there is no evidence that she did take any of those three there's evidence that she took pills right yes your honor ok as evidence if you look at the facts in most favorable to the point of this michael david said he saw her take some medications but he also said i don't know what she took i don't know when she took it the day she took it there's no actual evidence that she took any of the three medications i wouldn't taking pills that could have been three of the six combined with symptoms that are consistent with taking any one of those three be maybe weak evidence but honor i understand the argument that you can look at circumstantial evidence but in this case there is actually no evidence of the symptoms they said that she would have experience there's no evidence that she suffered a dramatically low blood pressure at or about the time that this medication was deliberate or presumably taken between the what happened after that out you know seems to me a little bit vague but why isn't it of permissible in front's would it be a permissible in front of a jury to draw it once the medications entered the home that they would be ingested because they had been many times in the past somebody could say well these are my medications and just put them and i'm not you know i had we don't often grant judgment as a matter and it should have been because you have to be very careful with what you're sending people through the mail and and particularly when we know that seniors are consumer a disproportionate number of prescription drugs you have to be super careful treasure you're dealing with of of vulnerable section of our population you you want to bend over backwards to protect and make say and to just companies who produce and mail order these pills then we do deterring the thousand upon thousand people who consume them and what i'm saying is if you think company certainly their number one goal is to provide industry medication safely which is the reason why the hymn policies procedures procedures and protocols in place if you look at the i think it was the million of prescriptions that are prescribed the rate percent error was one percent or less your honor so they certainly understand the severity of what could happen if the medications are in the wrong hands but that does not dictate that an ordinary prudent person has a duty to take exercise reasonable care which would include looking at medications receipt to determine if they're for you what they are how they should be consumed and when they should be taking and you don't have to look at anything other than the plain label o appropriate as a matter of law and in this case you have an individual that took medications that were not prescribed to her time is over i do apologize thank you  they please the court my name is barry cobb and alone with my colleague suzanne walker i represent the appellee exactas pharmacy solutions excuse summary judgment was properly granted to exacts by the district court because exactas had no legal responsibility for any facts with regard to exact his relationship with weld are that well done provided what's called pick pack and ship services for exact exact us had customers around the country that it arranged for the shipping of prescriptions today and  delegated through this contract this policy agreement to well down the responsibility for gathering those medications from its inventory well don's inventory packaging that or putting filling prescriptions or similar along what you're saying on anything and you have evidence where there's evidence to support the instruction and so if we were to send this buck it wouldn't preclude you in any way from arguing what you've just argued to us and i'm sure district judge who is willing to rue for your favor in a matter of law would be a very least give you the instruction on contributory negligence that is supported by what you said yes sir your honor if i if i could talk about agency for a few minutes first and then i'll come back to the contributory negligence or argument if i could with regard to exactness and the contention that exactness was was the principal for well done and is therefore legally responsible for negligence our contention there is that exactness did not exercise sufficient control done that upon receipt of that accurate information well done since back a confirmation to exactness saying we are sending the medications you told us to send to your customer is in california ms small had no relationship of any kind with exactness the very first time exactness heard anything about ms a small was when her son called and said these medications have come to my mother i'm searching in the hospital would you would you not be arguing if miss small had been your customer i can see how that would affect your direct liability but how does that affect whether or not you have a principal  relationship with well done i don't understand the relevance and whether or not she's a customer to that argument it is your right i think your honor if i understand the question correctly the primary significance of her not being our customer and us having a relationship with her is that we did nothing wrong personally that would cause right to her but i thought you out you were arguing right now is that you don't have a principle agent relationship with well done is that not what you're doing step two of that is that once we have sent correct information to weld on we don't control anything that they do in the way that they pick back and ship and that would be true even as to your own customers that would be true even as to our own even if it is smalls was a customer here you would still be arguing we don't have a principle we can't be held we carry it's legal liability that is correct now the distinction that might be might be true in that case that's not present here is that if we sent information to well done and the contract specifically provides what the responsibilities of exactness and well done or in this process of gathering the information providing the information on having well done back and ship the medication to the customer well done pick back and ship this medication to the wrong customer we argue we have no direct liability and we argued that we didn't exercise sufficient control over will bounce back and ship functions to be responsible as a matter of agency for that negligence other and therefore we continue we shouldn't be held responsible agency here i do want to address one thing that mr gilbert talked about which is he said that there was an assumption of liability in the contract and  that's simply not true on page twenty four seventy seven volume of i think this is volumes two of the record is a prescription verification support agreement which is a subsequent and subsidiary or green that  not the primary pharmacy agreement under which these medications were shipped that does contain an assumption of liability provision that does not apply to the activity that was involved in this case  so we can see and we have no direct liability we continue to have no agency law we also contend that there was no joint venture that there's simply no evidence in the record of any sharing of profits between these two parties you're very sick you want us to slap an a direct relationship in the actual melee was between well done on the plane that's correct your honor they were the ones in charge of mailing that's correct your honor not only that but they gave us in to the extent there's an argument that we had a general responsibility to the public based on torah law well we carried out that responsibility by getting back a confirmation that said this is this these medications are going to the person you asked us to send  negligence at all here that's correct it doesn't rise or fall that's correct ok we believe we did what we were supposed to do and we believe that we're not legally responsible for anything that well done did not do that it was supposed to that's our position but with regard to the contributory negligence and i see my time is short so i will talk about this a lot but i do want to raise one distinction that i think is really important in this case unlike in the champ's case the  specific contributory negligence that the defendants talked about in this case is that these medications did not have missed small's name we're not talking about a difficult interpretation of instructions we're not talking about taking two pills when you should have taken one and following through that we're talking about these pills didn't have her name on them now if there's a moment from like you think you're using mr clean on the floor but if you look at the label it says poison because if if you that if there's anything that everybody ought to know about prescription medications you don't take them unless your doctor tells you to so you're saying there's a different rule that applies to prescriptions because you're ingesting something in your body is that the difference i think that makes a difference i think the other thing that makes a difference is that that were true i do believe that there are factual distinctions that make a difference i'm not sure that you can say that that unless you follow everything that's on the label one hundred percent of the time it's contributory negligence as a matter of one whose name wasn't on the actual bottle the customer in california ms s d her name was on the bottle on each one of these six bottles of medication her name her address her doctor's name all of that stuff was on those are all a completely different person yeah that's correct related to that this is just a narrow question and it may be something that the other side knows that the pictures that are part of the join up in the two sixty nine have the package have two pictures one that has the dress of ms smalls you know but of course it was sent  i'm not sure i know what you talked about going on right so so what i do know is that there's a label on the outside of the envelope that was directed to ms small right inside that there was a box and inside the box there were there were still bottle you then have melted bottles conversation between the exactness pharmacists and the small family on the phone this in all your file he asked him well what pills she take and they said they gave him the answer he said well she took those she's going to go into septic shock you go to her hospital records when she was admitted on november the twenty second primary diagnosis septic shock and so when you look at the other things that were related to her symptoms they are implying that you don't have to have you can't prove something by circumstantial that you can do it by direct evidence and circumstantial evidence to create a genuine issue of fact in this case clearly in this case we believe there is a plethora of circumstantial evidence as well as  direct evidence for michael david that she he saw a small injustice some medications now we talk about the symptoms that she exhibits promise circumstantial standpoint miss mol had never had any problems with hallucinations arriving and never having problems seeing that people had never had any problems with hypotension that was dr baker and dr simons mentioned that in their records this was something that was not ever part of history so how is it coincidental event right after these pills arise she starts to experience things that she had never experienced before in specifically the hypotension which when you want to drop your blood pressure that low holding that it's never going to an absolute holding that it's never contributory negligence as a matter of law if you take your prescription  very rarely as you know given as a rolling as a as a matter of law with those limited circumstance particularly as you're talking about such dangerous instrumentalities put into the stream of commerce i don't i can't think of a situation that would be appropriate to rule as a matter of law as some by ingesting medications that were sent to them in error and they inadvertently ingested those medication without considering the surrounding circumstances that have occurred so it is no limiting factor well i'm not saying i'm saying i can't think of anything right now but as a limiting factor when you i think that is always prudent in those situations to look at the surrounding circumstances that led to the ingestion of the medications that were not designated as the haitian or the particular disability of the patient enter into a determination well as far as facts and circumstances but i would also say that  in his smalls position in a wheelchair at her age infirm have checked the legal or not right that is an objective standard not subjective but it takes account of circumstances and i don't know the answer as to which approach north carolina applies  you well you are up to this point the cases that we've reviewed they still consider the reasonable person to be to take into factors age all those types of things in determining whether they have acted reasonably and not the cases said that it seems to me if that's the case you've got a different you've got an enormous number of standards that would potentially apply you've got a teenager standard you've got twenty year old standard you've got i mean i thought it was a reasonably prudent person and there were some exceptions if someone had disabilities and so if you're arguing the client is disabled i think that creates as i read the wall a different situation b don't think you're arguing that now no you're not we're arguing that the these standards is a reasonable person standard and then when you determine whether a person is acting rees when you consider all the factors that were in play at that particular time and also you surely was not necessarily credible even by her own testimony in her deposition she admits she has poor memory she admits that she has a learning disability challenges and she said all of these things and back to your question about the  no call before the drugs were to come there was a specific question about that from ms berry yes she did you ask your mom whether or not she had confirmed a phone call for delivery on that second package well we just thought it was a normal thing because it was normal my question was did you ask your mother know whether or not she confirmed no did you think anything differently because there had been a phone not been a phone call prior to confirm that you know i didn't think anything differently about th  prescription medication we have not and i'm not saying this is the first i'm not i'm not saying we're the most proficient legal researches in the business but we have been able to find a case that rules as a matter of law that a person is contributory negligence for ingesting medications from a package that words label to them and then he says coming out the other way i mean has this issue arisen not that i'm ok not that i'm aware of  are right apparently they're very i think most of the time we're behind the exception i think most of the time there's a mr libby medications there is a risk resolution prior to getting this far i think that's typically what happens because drug maker i can't imagine there would be situations where a company would not want to deal with the band perry with rather mr rector right but there are very few reported decisions on this you say yes yes you are like i said before i think for the reason we just