1

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

June 22, 2016 Session

ACCREDO HEALTH GROUP INC. v. GLAXOSMITHKLINE LLC F/K/A 

SMITHKLINE BEECHAM CORPORATION D/B/A GLAXOSMITHKLINE

Appeal from the Circuit Court for Shelby County

No. CT00448712 Rhynette N. Hurd, Judge

___________________________________

No. W2015-01970-COA-R9-CV – Filed August 3, 2016

___________________________________

The plaintiff purchaser of pharmaceuticals brought suit against the defendant 

manufacturer of the pharmaceutical for failure to provide discounted pricing based on the 

parties‘ contract. The defendant filed a motion for partial summary judgment based on 

the issue of contract interpretation. The trial court granted the defendant‘s motion. The 

plaintiff requested permission for this interlocutory appeal challenging the trial court‘s 

interpretation of the parties‘ contract. Discerning no error, we affirm.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed 

in Part, Reversed in Part, and Remanded

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which KENNY 

ARMSTRONG, J., and WILLIAM B. ACREE, SP. J., joined.

Justin L. Jones and Jennifer Ziegenhorn, Memphis, Tennessee, and Melissa Z. Baris and 

Thomas M. Dee, St. Louis, Missouri, for the appellant, Accredo Health Group, Inc.

Glen G. Reid, Jr., and Amber D. Floyd, Memphis, Tennessee, and Lorenzo E. Gasparetti, 

Raymond A. Cardozo, and Monica M. Ortiz, Los Angeles, California, for the appellee, 

GlaxoSmithKline, LLC f/k/a SmithKline Beecham Corp. d/b/a GlaxoSmithKline.

OPINION

BACKGROUND
2

Plaintiff/Appellant Accredo Health Group, Inc. (―Accredo‖) dispenses1specialty 

pharmaceuticals to patients and is licensed in Tennessee as a home health care entity.

Defendant/Appellee GlaxoSmithKline, LLC (―GSK‖) manufactures Arixtra, a specialty 

pharmaceutical. Accredo is a member of a Group Purchasing Organization (―GPO‖)2.

Buyers of pharmaceutical products, such as Accredo, often join GPOs, which then in turn 

negotiate for certain discounts on pharmaceuticals for the buyers. GSK entered into a 

Pharmacy Supplier Agreement with Accredo‘s GPO, pursuant to which the GPO‘s 

member companies were entitled to discounted prices on various pharmaceuticals, 

including Arixtra. 

The Parties’ Agreement

Pharmacy Supplier Agreement

The parties‘ agreement encompasses multiple documents executed over the course 

of several years. To begin, in 2003, GSK and the GPO entered into a Pharmacy Supplier 

Agreement, which was subsequently renewed in 2007.3The Pharmacy Supplier 

Agreement details the relationship between the parties, including other GPOs, GSK, and 

Accredo, as a member of the GPO. The Pharmacy Supplier Agreement provides that 

Accredo is a third party beneficiary, which the parties do not dispute. 

Declaration Forms

A GPO member‘s (here, Accredo‘s) ability to receive discounted pricing is based, 

in part, on the manufacturer‘s approval. Approval of a member‘s eligibility stems from its 

completion of a relevant Declaration Form. To initiate the individual approval process, 

Accredo submitted Declaration Forms to GSK.

 

1 The parties dispute the method by which Accredo dispensed Arixtra. GSK asserts that Accredo is a mail 

order pharmacy while Accredo contends that it provides home health care to its patients and also operates 

a ―specialty pharmacy.‖

2The agreement at issue involves multiple GPOs acting on behalf of Accredo as agents. However, they are 

owned by a single entity. In addition, at least one has changed its name since the execution of the 

agreement at issue. To avoid confusion, and because the specific name of the GPO at issue in this case is 

not relevant, we simply refer to these organizations collectively as ―the GPO.‖

3 There is little substantive difference between the 2003 and 2007 versions.
3

In 2006, Accredo submitted a Declaration Form (―2006 Declaration Form‖) to 

GSK designating its business type as ―Home Health Care/Home Infusion.‖

4

 In 2010, 

Accredo executed a similar Declaration Form (―2010 Declaration Form‖). Again, 

Accredo indicated that its business type was ―Home Health Care/Home Infusion.‖ 

However, unlike the 2006 Declaration Form, the 2010 Declaration Form included an 

asterisk next to the business type designation which directed to a handwritten note at the 

bottom of the page. The handwritten notes provides: ―All purchases of GSK products 

under this agreement will be exclusively for use by our patients under the designated 

class of trade, and will not be used for dispensing within the retail class of trade.‖ Both 

the 2006 and 2010 Declaration Forms indicate that Accredo: 

agree[d] that any [GSK] product purchased under any 

agreement shall be for its  ̳Own Use,‘ as defined by the 

United States Supreme Court [in] Abbott Laboratories v. 

Portland Retail Druggist Association, Inc., 425 U.S. 1 

(1976) and Jefferson County Pharmaceutical Association, 

Inc. v. Abbott Laboratories, Inc., 102 S.Ct. 1011 (1983).

The 2010 Declaration additionally included a parenthetical after the citation to the 

Jefferson County case, which stated, ―(eg resale to Facility‘s patients only).‖

The Alternate Care Contract

In April 2005, the Pharmacy Supplier Agreement was amended by the addition of 

another document, the Alternate Care Contract.5The Alternate Care Contract indicates 

that its purpose is to alter one of the original documents attached as an exhibit to the 

Pharmacy Supplier Agreement.6The Alternate Care Contract defines ―Participating 

Facilities‖ as

hospitals or other health care entities which meet the 

eligibility requirements set forth in Eligibility Exhibit B, 

Tables 1 through 4 and have entered into an agreement with 

[the GPO] through which each such institution designates 

 

4 The parties dispute whether GSK approved Accredo‘s 2006 Declaration Form. However, in this appeal, 

we are charged only with interpreting the language of the parties‘ agreements, including the Declaration 

Form, not deciding whether it was binding.

5 The Alternative Care Contract was actually executed in February 2005, but indicated it would not be 

effective until that April. 

6 The parties do not dispute the validity of the Alternate Care Contract‘s effect on the Pharmacy Supplier 

Agreement. The amended provisions are substantially similar to the original. For purposes of this appeal, 

however, the amended version is the operative version.
4

[the GPO] as its agent for negotiating pharmaceutical 

purchases and each of which has been found eligible by GSK 

pursuant [to] this Agreement.

The Alternate Care Contract continues to a section titled ―Participating Facility 

Eligibility,‖ which provides:

Eligible Members shall include Non-Acute (Alternate Care) 

trade classes that are in good standing with GSK currently 

identifying [the GPO] as their primary group affiliation. The 

Eligible Members of Alternate Care include:

. . .

Home Health Care

. . .

In addition to the eligible trade classes, the Alternate Care Contract provides that 

eligibility is based on several additional requirements stating in a subsequent section 

titled ―Eligibility.‖ This section provides:

GSK will determine the eligibility of the Participating Facility

utilizing the following requirements. GSK may determine that 

a Participating Facility shall no longer be eligible as a 

Participating Facility under this Agreement if any of the 

following requirements for eligibility are no longer met.

i) Must have an in-house/in-patient pharmacy, which 

dispenses to Participating Facility‘s patients only; 

ii) Must employ a staff pharmacist, which may include 

physician dispensing unit; 

iii) Must have dispensations limited to prescriptions by 

physicians employed by or on the professional staff of the 

Participating Facility; [and]

iv) Must report all discounts received pursuant to this 

Agreement as may be required under 42 CFR § 1001.952 (h) . 

. . .

Procedural History

After executing the 2006 Declaration Form,7 Accredo began purchasing Arixtra 

from GSK8on or about January 1, 2007, until May 16, 2010. According to Accredo, GSK 

 

7 Whether GSK ever received or approved Accredo‘s 2006 Declaration Form remains a disputed issue not 

within the scope of this appeal.

8 The record indicates that Accredo purchased the drug from a wholesale supplier who had an agreement 

with GSK to provide the discount to certain approved buyers. Thus, while the details of this arrangement 

are not relevant to appeal, we note that this third party was involved in the buying and selling of the drug.
5

did not provide the discounted pricing during this time period. Still, in 2010, Accredo 

executed the 2010 Declaration Form, and from May 17, 2010 to June 28, 2012, Accredo 

received discounted pricing on its purchases of Arixtra. On June 28, 2012, GSK 

terminated Accredo‘s participation under the Agreement. 

Accredo filed this lawsuit against GSK alleging several causes of action, including 

breach of contract, promissory estoppel, and unjust enrichment. Accredo‘s allegations 

stemmed from GSK‘s alleged failure to provide the discount pricing under the Agreement 

from January 1, 2007, until May 17, 2010, and after June 28, 2012. GSK filed a 

counterclaim for breach of contract, intentional misrepresentation, unjust enrichment, and 

promissory estoppel. GSK sought to recover the total amount of discounts that GSK 

granted Accredo under the Agreement between May 17, 2010, and June 28, 2012. 

On January 26, 2015, GSK filed a motion for partial summary judgment asking 

the trial court to interpret the parties‘ contract and find that Accredo was not entitled to 

any discount under the parties‘ agreement. GSK argued that the term ―Own Use‖ was 

limited to the use of Arixtra by Accredo in the delivery of ―home health care‖ to its 

patients. GSK argued that ―home health care‖ meant that Accredo was only entitled to 

discounts when it administered the drug during the provision of health services in its 

patients‘ homes.

On February 18, 2015, Accredo filed its own motion for summary judgment on its 

breach of contract claim. Accredo also requested that the trial court examine and interpret 

the parties‘ agreement ―based solely on its four corners.‖ Accredo subsequently filed a 

motion for discovery to respond to the motion for summary judgment but its request was 

denied by the trial court via written order entered April 13, 2015.

On January 7, 2015, the trial court purportedly entered an order granting GSK‘s 

motion for partial summary judgment and determining the meaning of ―Own Use‖ and 

―Home Health Care‖ under the parties‘ agreement.

9

The trial court found that the terms 

―Own Use‖ and ―Home Health Care‖ were not ambiguous. Regarding ―Own Use,‖ the 

trial court found that ―if Accredo had no connection to the patient, other than selling the 

patient Arixtra and helping the patient manage the drug providing no care unrelated to 

administering the drug, the drug is not for Accredo‘s own use.‖ For this contention, the 

trial court relied upon the test articulated in Abbott Laboratories. It appears that the trial 

court found that some of Accredo‘s patients, at some point, were no longer receiving care 

other than that related to the administration of Arixtra. Thus, Accredo was not using 

Arixtra for its ―Own Use.‖ With respect to ―Home Health Care,‖ the trial court held that 

simply managing the dispensation of Arixtra in a patient‘s home did not qualify as 

―Home Health Care.‖ It is important to note that the trial court‘s ruling only expounded 

 

9 The trial court did not rule upon Accredo‘s motion for summary judgment at this point.
6

upon the definitions of the two terms and not whether Accredo‘s conduct fell within 

either of the proffered definitions. 

The trial court subsequently granted Accredo‘s motion for permission to file an 

interlocutory appeal and stayed the lawsuit, by order entered September 29, 2015. On 

November 2, 2015, this Court granted Accredo‘s application for interlocutory appeal.

ISSUE10

This interlocutory appeal is limited to one issue, as stated in Accredo‘s petition for 

interlocutory appeal: ―Did the trial court err in interpreting the meaning of the terms 

―home health care‖ and ―own use,‖ as used in the parties‘ contract document and as 

defined by the United States Supreme Court in Abbott Labs, as a matter of law?‖

STANDARD OF REVIEW

Summary judgment is appropriate where: (1) there is no genuine issue with regard 

to the material facts relevant to the claim or defense contained in the motion and (2) the 

moving party is entitled to judgment as a matter of law on the undisputed facts. Tenn. R. 

Civ. P. 56.04. In cases where the moving party does not bear the burden of proof at trial, 

the movant may obtain summary judgment if it:

(1) Submits affirmative evidence that negates an essential 

element of the nonmoving party‘s claim; or

(2) Demonstrates to the court that the nonmoving party‘s 

evidence is insufficient to establish an essential element of the 

nonmoving party‘s claim.

Tenn. Code Ann. § 20-16-101 (applying to cases filed after July 1, 2011); see also Rye v. 

Women's Care Ctr. of Memphis, MPLLC, --- S.W.3d ---, 2015 WL 6457768, at *22 

 

10 In a typical interlocutory appeal, the issue is defined by the trial court and then possibly redefined by 

the appellate court. In this case, however, neither the trial court nor this Court defined the issue 

constituting the parameters for this interlocutory appeal. As such, we are constrained to review the issue 

decided by the trial court and designated as an issue in Accredo‘s Rule 9 Application. Mallicoat v. 

Poynter, 722 S.W.2d 681, 682 (Tenn. Ct. App. 1986), perm. app. denied (Tenn. Dec. 29, 1986) (―The 

jurisdiction of [the Court of Appeals] is appellate only . . . .‖); In re Adoption of E.N.R., 42 S.W.3d 26, 

30–31 (Tenn. 2001) (declining to decide issue where record provided no indication that the trial court had 

disposed of the issue). 

To this end, aspects of Accredo‘s argument concern whether its conduct fell within the scope of 

the language in the agreement. We decline to entertain this issue as it was neither raised in Accredo‘s 

Rule 9 application for interlocutory appeal nor ruled upon by the trial court. Forbess v. Forbess, 370 

S.W.3d 347, 356 (Tenn. Ct. App.2011) (holding that party waived an issue by his failure to designate it as 

an issue in his statement of the issues).
7

(Tenn. Oct. 26, 2015) (judicially adopting a summary judgment parallel to the statutory 

version contained in Tenn. Code Ann. § 20-16-101). When the moving party has made a 

properly supported motion, the ―burden of production then shifts to the nonmoving party 

to show that a genuine issue of material fact exists.‖ Id. at 5; see Robinson v. Omer, 952 

S.W.2d 423, 426 (Tenn. 1997); Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). The 

nonmoving party may not simply rest upon the pleadings but must offer proof by 

affidavits or other discovery materials to show that there is a genuine issue for trial. Tenn. 

R. Civ. P. 56.06. If the nonmoving party ―does not so respond, summary judgment, if 

appropriate, shall be entered.‖ Tenn. R. Civ. P. 56.06.

On appeal, this Court reviews a trial court‘s grant of summary judgment de novo

with no presumption of correctness. See City of Tullahoma v. Bedford Cnty., 938 

S.W.2d 408, 412 (Tenn. 1997). In reviewing the trial court‘s decision, we must view all 

of the evidence in the light most favorable to the nonmoving party and resolve all factual 

inferences in the nonmoving party‘s favor. Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 

1999); Muhlheim v. Knox. Cnty. Bd. of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the 

undisputed facts support only one conclusion, then the court‘s summary judgment will be 

upheld because the moving party was entitled to judgment as a matter of law. See White 

v. Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150, 

153 (Tenn. 1995).

RECORD ON APPEAL

As an initial matter, this Court must address several deficiencies in the parties‘ 

preparation of the record on appeal. To begin, although the order appealed is attached to a 

later pleading filed by GSK, the technical record omits an individual entry of the trial 

court‘s order granting partial summary judgment to GSK. However, even more glaringly, 

the trial court‘s order does not indicate that it was ever entered by the trial court because 

it lacks a file stamp.11

 

11 Rule 58 explains that entry of a judgment or an order of final disposition is effective when marked on 

the face by the clerk as filed for entry, so long as it contains one of the following: 

(1) the signatures of the judge and all parties or counsel, or

(2) the signatures of the judge and one party or counsel with a certificate 

of counsel that a copy of the proposed order has been served on all other 

parties or counsel, or

(3) the signature of the judge and a certificate of the clerk that a copy has 

been served on all other parties or counsel.

Following entry of judgment the clerk shall make appropriate docket 

notations and shall copy the judgment on the minutes, but failure to do so 

will not affect validity of the entry of judgment. When requested by 

counsel or pro se parties, the clerk shall forthwith mail or deliver a copy 
8

Accredo filed its designation of the record on appeal on November 12, 2015. In its 

designation, Accredo properly designated the trial court‘s order granting partial summary 

judgment to be included in the record on appeal. The trial court clerk is not required to 

notify the parties before transmitting the record to this Court. However, Tennessee Rule 

of Appellate Procedure 24(e) provides a mechanism by which the parties can seek to 

correct any errors in the record, which neither party in this case sought to utilize. It is 

troublesome to this Court that neither of the parties in this case, despite being represented 

by sophisticated counsel, raised the fact that the order appealed was never actually filed 

in the trial record as a concern, as each parties‘ brief references the order at issue.

Additionally, the record in this case consists of over thirty volumes of technical 

record spanning well over 3,000 pages. However, having thoroughly reviewed the record, 

we note that the parties failed to cull the record to omit needless or repetitive documents. 

The myriad documents comprising the parties‘ agreement at issue appear several times 

throughout the technical record. For example, the 2006 Declaration Form appears at least 

five times, the 2010 Declaration Form appears at least eight times, and the Pharmacy 

Supplier Agreement appears at least eight times. Such repetition is unnecessary. In 

addition, a copy of GSK‘s ―factbook‖ unnecessarily appears at least three times. The 

record also includes documents irrelevant to the issue at bar, such as certain discovery, 

scheduling order documents, and various notices. Indeed, the record includes filings 

subsequent to the appealed order in this case that have no bearing on this appeal.

The Court also recognizes that Rule 28 of the Tennessee Rule of Appellate 

Procedure permits the parties to assemble appendices that ―shall contain: (1) any relevant 

portions of the pleadings, charge, findings or opinion; (2) the judgment, order or decision 

in question; and (3) any other parts of the record as the appellant deems essential for the 

judges to read in order to determine the issues presented.‖ Accredo filed with its brief an 

850 page appendix in accordance with Rule 28. Accredo‘s brief includes citations 

primarily to this appendix and not to the record. Indeed, the fact that Accredo relies 

primarily on documents within the appendix demonstrates that it has deemed only these 

documents relevant to the issue on appeal. We are troubled by the fact that the parties 

clearly view only approximately one-third of the documents contained in the record as 

pertinent to the issues on appeal, yet ask this Court to painstakingly review all of the

documents to dispose of this appeal. In fact, when questioned by this Court at oral 

argument about the vastness of the record, the parties assured this Court that the entire 

 

of the entered judgment to all parties or counsel. If the clerk fails to 

forthwith mail or deliver, a party prejudiced by that failure may seek 

relief under Rule 60.

However, by its nature, Rule 9 of the Tennessee Rules of Appellate Procedure, which governs 

interlocutory appeals, does not require a final order. Still, parties should endeavor to ensure that the 

judgment appealed from, even in an interlocutory appeal, is still marked as filed for entry by the clerk.
9

record was necessary for review. While this Court recognizes that attorneys are risk 

averse by nature and may, in good faith, deem superfluous documents to be relevant, the 

vast difference in the size of Accredo‘s appendix and the record demonstrates the record 

clearly includes entirely more documents than the parties had deemed relevant. That is, 

the parties12 have moved past the point of being risk averse, and instead, have provided 

this Court with an unnecessarily burdensome record. This Court cannot condone such 

practice.

In the interest of judicial economy, this Court exercises its discretion to consider 

the merits of this appeal despite the foregoing deficiencies. Tenn. R. App. P. 2. However, 

we caution litigants to consider the implications of their decisions when creating the 

record on appeal, as we may not be so forgiving in the future.

DISCUSSION13

The salient issue in this case concerns the proper interpretation of the contract 

between the parties, specifically the meaning of the terms ―own use‖ and ―home health 

care.‖ When a contract is not ambiguous, its interpretation is a question of law that is 

appropriate for summary judgment. Bourland, Heflin, Alvarez, Minor & Matthews, PLC 

v. Heaton, 393 S.W.3d 671, 674 (Tenn. Ct. App. 2012) (―Questions of contract 

interpretation are generally considered to be questions of law, and thus are especially 

well-suited for resolution by summary judgment.‖) (citing Ross Prods. Div. Abbott Labs. 

v. State, No. M2006-01113-COA-R3-CV, 2007 WL 4322016, at *2 (Tenn. Ct. App. Dec. 

5, 2007), perm. app. denied (Tenn. Apr. 28, 2008)). When parties reduce their agreement 

to writing, the law favors enforcing these agreements as written. Bob Pearsall Motors, 

521 S.W.2d at 580. Stated another way, the court, when interpreting a contract, ―does not 

attempt to ascertain the parties‘ state of mind at the time the contract was executed, but 

rather their intentions as actually embodied and expressed in the contract as written.‖ 

Union Planters Nat’l Bank v. Amer. Home Assur. Co., 865 S.W.2d 907, 912 (Tenn. Ct. 

 

12 This Court uses the plural form to admonish the role Appellees played in the failure to properly 

designate the appellate record as well. The Tennessee Rules of Appellate Procedure governing the 

preparation of the appellate record assign duties to both the appellant and appellee.

13 In the argument section of its brief to this Court, Accredo argues that the Declaration Forms are not 

part-and-parcel of the parties‘ overarching agreement. We decline to entertain this concern because it was 

not raised by Accredo as an issue in its petition for interlocutory appeal, and thus, was not the issue 

approved for appeal by this Court. Indeed, Accredo‘s statement of the issues in its Rule 9 application 

specifically requested that this Court interpret the meaning of the phrase ―own use,‖ a term that appears 

only in the Declaration Forms. Therefore, Accredo has waived any argument that the Declaration Forms 

are not an integrated part of the parties‘ agreement because it specifically asked this Court to review the 

Declaration Form when it requested an interpretation of the term ―own use.‖ 

Based on the foregoing, this Court refers to the multiple documents making up the parties‘ 

agreement as a singular ―agreement‖ or ―contract.‖ See Real Estate Mgmt. v. Giles, 293 S.W.2d 596, 599

(Tenn. 1956) (holding that when an agreement consists of multiple documents, the court shall construe 

them with reference to others).
10

App. 1993). The language used in a contract must be taken and understood in its plain, 

ordinary, and popular sense. Ballard v. North Am. Life & Cas. Co., 667 S.W.2d 79 

(Tenn. Ct. App. 1983); Bob Pearsall Motors, Inc. v. Regal Chrysler–Plymouth, Inc., 

521 S.W.2d 578 (Tenn. 1978). 

Where a contract is unambiguous, the court may not look beyond the four corners 

of the contract to ascertain the parties‘ intention. Rogers v. First Tenn. Bank Nat’l 

Ass’n, 738 S.W.2d 635, 637 (Tenn. Ct. App. 1987); Bokor v. Holder, 722 S.W.3d 676, 

679 (Tenn. Ct. App. 1986). Each provision must be construed in light of the entire 

agreement, and the language in each provision must be given its natural and ordinary 

meaning. Buettner v. Buettner, 183 S.W.3d 354, 359 (Tenn. Ct. App. 2005). 

Here, in addition to arguing that the trial court‘s interpretation is erroneous, 

Accredo argues that the trial court erred in failing to consider parol evidence. It is well 

settled in Tennessee that where the terms of an agreement are unambiguous, the parol 

evidence rule bars extraneous evidence used ―to alter, vary, or qualify the plain meaning 

of an unambiguous written contract.‖ Staubach Retail Servs.-Se., LLC v. H.G. Hill 

Realty Co., 160 S.W.3d 521, 525 (Tenn. 2005) (quoting GRW Enters., Inc. v. Davis, 797 

S.W.2d 606, 610 (Tenn. Ct. App. 1990)). ―The parol evidence rule serves to secure the 

integrity of contracts and to guard against fraud by a party who agrees to the 

unambiguous terms of a written agreement and then seeks to disavow those terms 

through extrinsic evidence.‖ Textron Fin. Corp. v. Powell, No. M2001-02588-COA-R3-

CV, 2002 WL 31249913, at *3–*4 (Tenn. Ct. App. 2002) (citing 32A C.J.S. Evidence § 

1132, § 1159 (1996); see Tidwell v. Morgan Bldg. Sys., Inc., 840 S.W.2d 373, 376 

(Tenn. Ct. App. 1992)). However, where a contract is ambiguous—that is, susceptible to 

more than one reasonable interpretation—the parties‘ intent cannot be determined by a 

literal interpretation of the language. See Planters Gin Co. v. Fed. Compress & 

Warehouse Co., 78 S.W.2d 885, 890 (Tenn. 2002). Accordingly, several exceptions to 

the parol evidence rule exist where a party may present evidence to show fraud, 

misrepresentation, mistake, and incapacity. See Textron Fin. Corp. v. Powell, No. 

M2001-02588-COA-R3-CV, 2002 WL 31249913, at *3–*4 (Tenn. Ct. App. 2002); Patty 

v. Peery, No. 198, 1991 WL 83329, at *3 (Tenn. Ct. App. May 22, 1991).14 As stated 

above, the parties‘ arguments center on the meanings of two terms that appear in the 

agreement. We analyze each term in turn.

We first consider the meaning of the term ―own use‖ as used in the parties‘ 

contract. The term ―own use‖ appears in the Declaration Forms allegedly executed and 

submitted by Accredo to GSK in an attempt to procure discounted pricing for its purchase 

 

14 The trial court noted that aspects of this case present a choice of law issue. Still, the trial court found 

that ―regardless of the choice of law, we had as options, Tennessee, Texas or Delaware, the contract 

principles are the same.‖ The trial court then indicated it would ―not now‖ be making a choice of law 

determination. Neither party challenges on appeal the trial court‘s decision to proceed in this manner. For 

purposes of this appeal, we apply the principles of Tennessee contract law.
11

of Arixtra. As stated above, both the 2006 and 2010 Declaration Forms indicate that 

Accredo agreed that the pharmaceuticals purchased pursuant to any agreement would be 

for Accredo‘s ―own use‖ as defined in Abbott Laboratories v. Portland Retail Druggist 

Association, Inc., 425 U.S. 1 (1976) and Jefferson County Pharmaceutical Association, 

Inc. v. Abbott Laboratories, Inc., 102 S.Ct. 1011 (1983). The 2010 Declaration also 

included a parenthetical stating ―(eg resale to Facility‘s patients only)‖ after the Jefferson 

County citation.

Accredo argues that the trial court misapplied Abbott Laboratories decision to the 

case-at-bar and imposed additional requirements upon the interpretation of ―own use‖ 

that do not appear in the parties‘ agreement. Specifically, Accredo claims that the trial 

court‘s rendition of ―own use‖ would require Accredo to ―deliver an in-home healthcare 

service to each patient in addition to managing the dispensation of Arixtra[] to its patients 

in their homes.‖ From what this Court can discern of Accredo‘s argument, it appears to 

be premised on their assertion that it satisfied the requirement of ―own use.‖ Again, the 

issue on appeal does not concern whether Accredo met this requirement but instead the 

scope of the requirement. The former issue is open to future litigation. In addition, 

Accredo asserts that the trial court‘s holding amounts to a prohibition on any entity that 

has an intended institutional operation of dispensing drugs from meeting the ―own use‖ 

requirement.

Relying upon Abbott Labs, the trial court interpreted the meaning of ―own use‖ as 

follows:

[T]he first step is to determine whether the facility uses the drug. 

Then – if so, then the question is whether the use is part of and 

promotes the facility‘s intended operation. . . . Now, interestingly the 

Abbott Labs Court does contemplate that suppliers will require its 

customers to certify the circumstances under which they dispense the 

suppliers‘ products. The Court says, suppliers have the responsibility 

to identify its customers with regard to eligibility and to routinely 

obtain a representation from its customers as to the use of the 

products purchased.

The trial court continued on to explain how Declaration Forms serve this purpose. 

According to the trial court, Accredo would meet the definition of ―own use‖ if it 

dispensed Arixtra as part of and to promote its function as a home health care entity. 

Thus, the term ―own use‖ is constrained by whatever designation the buyer chose in order 

to be eligible for the discount. 

The trial court explained its ruling further, providing that if Accredo had no 

connection to the patient, other than selling the drug to him or her, and not providing any 

form of care ―unrelated to administering the drug,‖ Accredo would not meet the 
12

requirement of ―own use.‖ On the other hand, the trial court‘s ruling provides that, ―Only 

if Accredo provides healthcare services in the first instance and related to those []services 

dispenses Arixtra as part of and to promote those healthcare services is the dispensing of 

Arixtra for Accredo‘s use.‖ In sum, the trial court found that ―own use‖ required Accredo 

to use the drug within its intended institutional operation ―and not just sell the drug.‖

The parties‘ dispute over the trial court‘s ruling centers around the application of 

the decision in Abbott Laboratories v. Portland Retail Druggists Association, Inc., 425 

U.S. 1 (1976) (hereinafter ―Abbott Labs‖), which provides the definition of ―own use‖ 

pursuant to the parties‘ agreement. The Abbott Labs case was an antitrust action brought 

against several manufacturers of pharmaceutical products by a non-profit corporation and 

assignee of over sixty commercial pharmacies. The petitioners alleged a violation of the 

Robinson-Patman Act, which makes price discrimination between certain purchasers 

unlawful where ―the effect . . . may be substantially to lessen competition.‖ 15 U.S.C. § 

13a. The hospital claimed that the challenged sales of certain pharmaceuticals were 

exempt under the Non-Profit Institutions Act, which excludes from the application of the 

Robinson-Patman Act non-profit hospitals‘ ―purchases of their supplies for their own 

use.‖ Id. at § 13c.15 The issue before the Supreme Court specifically concerned whether a 

non-profit hospital‘s use of a pharmaceutical fell within the purview of its ―own use‖ as 

defined within the Non-Profit Institutions Act (―NPIA‖). Abbott Labs, 425 U.S. at 4. 

Although neither the Robinson-Patman Act nor the NPIA is applicable to the case-at-bar, 

the Supreme Court‘s definition of ―own use‖ as defined in Abbott Labs is.

The Supreme Court described the definition as ―a limited one.‖ Id. at 14. It 

explained that the non-profit hospital‘s status as a non-profit hospital ―does not mean that 

all its purchases are exempt from Robinson-Patman‖; instead, only ―purchases of their 

supplies for their own use‖ would be exempt. According to the Court, ―own use‖ is ―what 

reasonably may be regarded as use [b]y the hospital in the sense that such use is a part of 

and promotes the hospital‘s intended institutional operation in the care of persons who 

are its patients.‖ Id. 

The Court offered examples of ten varying situations to illustrate whether conduct 

amounted to ―own use‖. Id. at 10. To begin, the Court noted that the parties agreed that 

―[d]ispensation to the bed-occupying inpatient and to the patient at the hospital‘s 

emergency facility‖ constituted dispensation that is part of the institution‘s function and 

for its ―own use.‖ Id. at 14. In addition, dispensation in the form of a take-home 

prescription is dispensation for the hospital‘s own use because the hospital‘s contact with 

 

15 Section 13c provides:

Nothing in the Act approved June 19, 1936, known as the RobinsonPatman Antidiscrimination Act, shall apply to purchases of their supplies 

for their own use by schools, colleges, universities, public libraries, 

churches, hospitals, and charitable institutions not operated for profit.
13

the patient, in the form of supervision and participation, is ―continuous and real, and are 

distinct parts of the transition from hospital care to home care.‖ Id. at 15. Thus, a 

continuation of or supplement to treatment that began in the hospital‘s facility, even if 

now outside the facility, is for the hospital‘s ―own use.‖ 

Conversely, the Supreme Court also provided examples of dispensation that were 

not for the hospital‘s ―own use.‖ To this end, a refill of a product for the hospital‘s former 

patient ―is on the other side of the line that divides that which is in the hospital‘s  ̳own 

use‘ from that which is not.‖ Id. at 15. The Court noted that, while it may be advisable for 

the patient to continue use of a drug ―some time after initial prescription,‖ outside of the 

scope of the take-home prescription referenced above, it is still not for the hospital‘s own 

use simply because it originated ―under hospital auspices.‖ Id. at 15–16. At this point, the 

Court explained, the connection to the hospital has become too attenuated for any refill to 

promote its intended institutional operation as a hospital in the care of its patients. See id.; 

id. at 14.16

The final category discussed by the Court includes dispensation for ―walk-in 

buyers.‖ See id. at 17. Walk-in buyers, as explained by the Court, maintain no present 

connection with the hospital other than as a place that fills the buyer‘s prescription. 

Although recognizing that a modern-day hospital is a different institution than when the 

NPIA was enacted in 1938, the Court opined that to hold otherwise ―would make the 

commercially advantaged hospital pharmacy just another community drug store open to 

all comers for prescription services and devastatingly positioned with respect to 

competing commercial pharmacies.‖ Id. at 17–18. In sum, dispensations for walk-in 

buyers are not for the hospital‘s ―own use‖ as contemplated by the NPIA. 

The above categories and examples given by the Supreme Court demonstrate that 

―own use‖ must be related to the hospital‘s intended institutional function as determined 

by the exemption it sought. In Abbott Labs, the hospital‘s exemption from the antitrust 

statute at issue resulted from its status as a non-profit hospital. Id. at 14. Thus, whether 

the non-profit hospital was entitled to the discount required it to use the product as ―part 

of and [to] promote‖ the function that entitled it the discount in the first instance—i.e. its 

status as a non-profit hospital. See id. at 14. It follows then that any dispensation 

occurring outside of the scope of the hospital‘s function as a hospital, such as simply 

selling the product without more, was not for the hospital‘s ―own use.‖

The parties‘ agreement also references their intention to utilize the case Jefferson 

County Pharmaceutical Association v. Abbott Laboratories, 460 U.S. 150 (1983) and its 

definition of ―own use.‖ In Jefferson County, the Supreme Court considered whether the 

 

16 We omit the next categories considered by the Court discussing dispensations to the hospital‘s 

employees, students, physicians, and the physician‘s dependents because it is not material to our analysis 

of this appeal. See id. at 16–17.
14

resale of pharmaceuticals by a public university medical system (―University‖) was 

exempt from the Robinson-Patman Act where the University was competing with private 

retail pharmacies. See id. at 151. The Supreme Court determined that this was not an 

exempt activity under the Robinson-Patman Act because the resale was not for the 

University‘s ―own use.‖ That is, again, in deciding the ―own use‖ inquiry, the Supreme 

Court had to first determine the activity that qualified the entity for the discounted pricing 

in the first instance. Here, the entity relied on the exemption in 15 U.S.C. § 13c for 

―universities . . . not operated for profit.‖ Id. at 153. Thus, the University‘s resale of 

pharmaceuticals to third parties, without more, were ―not exempt from the proscriptions 

of the Robinson-Patman Act.‖ Id. at 171. Still, the Court acknowledged that certain 

purchases of pharmaceuticals ―for consumption in traditional governmental functions‖

would be exempt. Accordingly, the Court again employed a ―linedrawing analysis,‖ see 

Abbott Labs, 425 U.S. at 10, and ultimately concluded that the University was not 

entitled to discounted pricing on pharmaceuticals it simply intended to resell, as that use 

did not qualify as ―own use‖ under the exemption. Jefferson County, 460 U.S.at 171.

In both Abbott Labs and Jefferson County, the Supreme Court did not devote 

much discussion to what constituted the entities‘ intended institutional operations. 

However, it is instructive that the Court analyzed what constituted ―own use‖ by first 

looking at the function that exempted the entity from the Robinson-Patman Act in order 

to procure discounted pricing. In Abbott Labs, the hospital‘s status as a non-profit 

hospital entitled it to obtain discount pricing, and thus, became its intended institutional 

operation for purposes of determining what dispensations were for its ―own use.‖ In 

Jefferson County, certain purchases of pharmaceuticals by the public University were 

not exempt where not used for its intended institutional operation as a public not-forprofit university. The Supreme Court‘s promulgation of the varying categories in Abbott 

Labs demonstrates its emphasis on the relationship between ―own use‖ and the status that 

qualified the health care entity to receive the exemption. Although a statutory exemption 

is not at issue in this case, the parties clearly intended that the ―own use‖ term would be 

interpreted in accordance with the interpretation offered by the Supreme Court in Abbott 

Labs and Jefferson County. As such, we superimpose the Abbott Labs framework on to 

the issue of discounted pricing, rather than statutory exemptions. Considering the issue in 

this light, it is clear that Accredo‘s intended institutional function must stem from 

whatever type of entity it cited to obtain discount pricing, much the same way that the 

hospital in Abbott Lab’s intended institutional function stemmed from the type of entity it 

claimed entitled it to a statutory exemption.

Using the categories set forth in Abbott Labs as guidance, our analysis must first 

gauge what constitutes Accredo‘s intended institutional operation and determine which 

dispensations are part of or promote that function. Like in Abbott Labs and Jefferson 

County, we must consider what status—that is, what intended institutional operation—

entitled Accredo to discount pricing in the first instance. Both parties appear to treat this 
15

inquiry as a threshold consideration. The parties‘ arguments, however, diverge where 

they conclude what constitutes Accredo‘s intended institutional operation. 

Accredo asserts that its intended institutional operation is as a specialty pharmacy 

―to manage the dispensation of specialty pharmaceuticals to patients suffering from 

chronic, complex diseases, for administration in the patients‘ home.‖17 Accredo‘s

proposed institutional operation seeks to define ―own use‖ as including dispensations 

from its specialty pharmacy.18 Where Accredo‘s argument falls short, however, is its 

omission of any discussion of why its intended institutional operation would not be 

―home health care,‖ as it indicated as its business type on both the 2006 and 2010 

Declaration Forms.19 GSK argues that Accredo‘s intended institutional operation is what 

it contractually specified in the parties‘ agreement in order to obtain discount pricing.

Based on the line of reasoning employed by the Supreme Court in Abbott Labs

and Jefferson County, which the parties agreed to be bound by, we agree with GSK. 

Accredo self-declared its status as a ―home health care‖ entity, which began the process 

for them to obtain the discounted pricing in the first place. We are unpersuaded by 

Accredo‘s argument that its intended institutional operation was that of a ―specialty 

pharmacy.‖ The parties‘ agreement does not contemplate discount pricing for specialty 

pharmacies. Indeed, in the Alternate Care Contract, a specialty pharmacy or the 

―managing of dispensations . . .‖ is not listed as one of the types of trade classes that are 

eligible for the discounted pricing. Accordingly, Accredo‘s intended institutional 

operation for purposes of this agreement was a ―home health care‖ entity, and its ―own 

use‖ of Arixtra was limited by this.

We next must determine the meaning of the term ―home health care‖ as used in 

the parties‘ agreement, specifically in both of the Declaration Forms. The term ―home 

health care‖ is not expressly defined in the parties‘ agreement. As stated above, when 

possible, courts should attempt to construe language in a contract in accordance with its 

plain and ordinary meaning. Ballard v. North Am. Life & Cas. Co., 667 S.W.2d 79 

(Tenn. Ct. App. 1983); Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 

S.W.2d 578 (Tenn. 1978). This Court‘s research has revealed no dictionary that includes 

 

17 Again, Accredo contends in its brief that there is ―no dispute that Accredo dispensed all Arixtra[] to its 

patients in their homes.‖ We note that Accredo‘s contention is outside the scope of review for this appeal. 

We offer no opinion as to what Accredo did or did not do concerning the dispensation of Arixtra. Instead, 

we are charged only with providing an interpretation of ―own use.‖ 

18 Accredo‘s argument includes citations to various federal cases all purporting to interpret and apply the 

Supreme Court‘s opinion. We find these comparisons unavailing. If the parties wished to define ―own 

use‖ as defined by all federal caselaw, they should not have limited the definition to the ones promulgated 

in Abbott Labs and Jefferson County.

19 Accredo also indicated that it was licensed as a home health agency, not a specialty pharmacy, in 

Tennessee and other states.
16

the full phrase ―home health care.‖ However, the individual terms ―home‖ and ―health 

care‖ both appear in the dictionary. 

The term ―home‖ means ―the place where a person (or family) lives‖ or ―one‘s 

dwelling place.‖ Webster’s New World College Dictionary 695 (5th ed. 2014). ―Health 

care‖ is defined as ―the prevention or treatment of illness or injury, esp[ecially] on a 

comprehensive, ongoing basis.‖ Id. at 669. Similar to the terms at issue, several similar 

terms illuminate the appropriate meaning of ―home health care.‖ The term ―home care‖ 

means ―a health service provided in the patient‘s place of residence for the purpose of 

promoting, maintaining, or restoring health or minimizing the effects of illness and 

disability.‖ Mosby’s Dictionary of Medicine, Nursing & Health Professions 851 (9th ed. 

2013). Similarly, a ―home health agency‖ is ―an organization that provides health care in 

the home.‖ Id. Based on the foregoing definitions, the plain and ordinary meaning of 

―home health care‖ would include the provision of health services to prevent or treat 

illness or injury provided in the place where the patient lives or dwells. 

Based on the foregoing, we hold that the parties‘ agreement entitles Accredo to 

discounted pricing on its purchases of Arixtra that were used for its ―own use‖ as a 

―home health care‖ entity. That is, it is entitled to discounted pricing on Arixtra that is 

dispensed as part of and promoting its provision of health services to prevent or treat 

illness or injury provided in the place where the patient lives or dwells. However, per the 

plain language of the parties‘ agreement, the resale of Arixtra is not enough. The 

agreement requires Accredo to provide some service in the patients‘ home. The filling of 

an Arixtra prescription and its shipment to the patient‘s home is insufficient to meet this 

definition, even if it also includes a telephonic communication with the patient seeking to 

provide expertise regarding the drug. Instead, Accredo‘s participation with the Arixtra 

patient must be ―continuous and real.‖ Abbott Labs, 425 U.S. at 15. Although the 

provision of Arixtra may be ―well indicated for the particular patient,‖ it is no longer for 

Accredo‘s ―own use‖ when the connection between the refill and Accredo‘s intended 

institutional operation as a home health care entity becomes too attenuated. Accredo must 

provide some sort of service in the home to make the dispensation of Arixtra for its ―own 

use.‖ Such service must be more than what a patient would typically receive from a 

brick-and-mortar retail pharmacy or mail-order pharmacy encompassing simply 

dispensing the medication and providing consultation if needed. 

As stated by the trial court, ―if home health care meant having a drug delivered to 

a patient‘s home where the patient administers it herself, perhaps, even after consultation 

with her pharmacist about proper use, retail pharmacies could be deemed as providing 

home health care.‖20 To this end, as Accredo agreed to on the Declaration Form, the 

 

20 Indeed, Tennessee law defines the ―practice of pharmacy‖ as:
17

simple, straightforward retail sale of Arixtra, without more, is not for its ―own use.‖ 

Accordingly, we agree with the trial court‘s ruling interpreting the parties‘ agreement and 

affirm its grant of partial summary judgment in favor of GSK.

We do not hold, however, that such service must be unrelated to the provision or 

administration of Arixtra, but the contract clearly requires some sort of ―home health 

care‖ in order to be eligible for discounted pricing. Inasmuch as the trial court‘s order, 

however, requires a service unrelated to the administration of Arixtra, we reverse the 

order because such is not required by the plain language of the agreement. Accordingly, 

as an example, we note that if a representative of Accredo went to the patient‘s house, 

administered or provided support in the home pertaining to Arixtra, such would suffice 

under the agreement even though such service would be related to the dispensation or 

administration of the drug.

Thus, the trial court‘s ruling interpreting the language of the parties‘ agreement is 

hereby affirmed in part and reversed in part.

 

(39)(A) ―Practice of pharmacy‖ means a patient-oriented health service 

profession in which pharmacists interact and consult with patients and 

other health care professionals to enhance patients‘ wellness, prevent 

illness, and optimize outcomes. The practice involves:

(i) Interpretation, evaluation and implementation of 

medical orders and prescription orders;

(ii) Responsibility for compounding and dispensing 

prescription orders, including radioactive substances;

(iii) Participation in drug, dietary supplement and device 

selection, storage, distribution and administration;

(iv) Drug evaluation, utilization or regimen review;

(v) Maintenance of patient profiles and other pharmacy 

records;

(vi) Provision of patient education and counseling;

(vii) Provision of patient care services and activities 

pursuant to a collaborative pharmacy practice 

agreement;

(viii) Drug or drug-related research; and

(ix) Those professional acts, professional decisions or 

professional services necessary to maintain all areas of a 

patient‘s pharmacist-provided care[.]

The conduct suggested by Accredo that constitutes ―own use‖—such as telephonic consultation with the 

patient or dispensing Arixtra to the patient‘s home (i.e. delivering Arixtra to the patient‘s home)—does 

little to remove itself from the practice of pharmacy and into the realm of home health care. Without 

rendering an opinion as to whether Accredo‘s conduct actually satisfied the requirements of the contract, 

we point out that consultation and delivery of the drug to the patient is something already entailed in the 

typical practice of pharmacy according to Tennessee law. As an example, the use of the drug cannot 

somehow shift into ―home health care‖ when the only difference is that the Arixtra is delivered to the 

patient‘s home instead of at a physical storefront location.
18

Remaining Issues

Accredo argues that the trial court erred when it decided GSK‘s motion for partial 

summary judgment based solely on the four corners of the parties‘ agreement without 

considering extrinsic evidence.21 Because we have determined that the meanings of ―own 

use‖ and ―home health care‖ as used in the parties‘ agreement are unambiguous, this 

issue is pretermitted.

Accredo also argues that the trial court erred when it did not grant Accredo‘s 

request for additional discovery before ruling on GSK‘s motion for partial summary 

judgment. This issue was not designated as an issue in Accredo‘s petition requesting its 

Rule 9 interlocutory appeal, and therefore, was not approved for review. Thus, this issue 

is waived for purposes of this interlocutory appeal.

CONCLUSION

The judgment of the Shelby County Circuit Court is affirmed in part and reversed 

in part. This cause is remanded to the trial court for all further proceedings as are 

necessary and are consistent with this Opinion. Costs of this appeal are taxed to 

Appellant Accredo Health Group, Inc., and its surety.

_________________________________

J. STEVEN STAFFORD, JUDGE

 

21 Notably, subsequent to GSK‘s filing of its motion for partial summary judgment, Accredo filed a 

motion for summary judgment on the issue of contract interpretation alleging that the contract could be 

interpreted solely by looking within its four corners.