[Cite as Estate of Mehrer v. Walgreens Specialty Pharmacy , 2023

- Ohio

- 2070.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Estate of Stephen A. Mehrer
, : No. 22AP

- 286

Plaintiff

- Appell ant , : (C .P.C. No. 19CV

- 7913 )

v. : (REGULAR CALENDAR)
Walgreens Specialty Pharmacy et al.
, :

Defendant s
- Appell ees

. :

D E C I S I O N

Rendered on June 22, 2023

On brief: Cooper & Elliott, LLC
, Rex H. Elliott
, Sean R. Alto
, and Chelsea C. Weaver for appellant

. Argued: Chelsea C. Weaver

.
On brief: Crabbe, Brown & James, LLP
, Robert C. Buchbinder
, and Christopher R. Green for appellees

. Argued: Christopher R. Green

.

APPEAL from Franklin County Court of Common Pleas

MENTEL, J. {¶ 1} Plaintiff

- appellant, Estate of Stephen A. Mehrer ( “ Estate ” ) , appeals from a n April 18 , 2022 decision and entry granting the motion for summary judgment of
defendants

- appellees, Walgreens Specialty Pharmacy (“Walgreens”)
, and Jyoti Navalurkar

. For the reas ons that follow, we reverse.
I. FACTS AND PROCEDURAL HISTORY {¶ 2} In October 2009, the decedent , St ephen A. Mehrer
, was a senior at Dublin Jerome High School

. The decedent injured his shoulder during a football game and required surgery to repair a torn rotator cuff

. On October 5, 2009, Walgreens dispensed toNo. 22AP

- 286 2

the decedent 50 tablets of H ydrocodone /APAP 7.5 mg/750 mg pursuant to a prescription written by Dr. Kenneth J. Weste rheide. 1 On or around November 17, 2009
, the decedent underwent surgery on his should er

. Also o n November 17, 2009, Walgreens dispensed 60 pills of H ydrocodone /APAP 5 mg/325 mg , pursuant to a prescription by Dr. Westerheide,

to the decedent

. 2 The next day, November 18, 2009, Walgreens dispenses 50 tablets of
O xy co done /APAP 5 m g /325 mg , a prescription written by Dr. Richard Fischer, to the
decedent

. Five days later, o n November 23, 2009, Walgreens dispensed an additional 50 tablets of O xycodone /APAP 5 mg/325 mg , pursuant to a prescription by Dr. W e sterheide,

to the decedent

. 3 On November 28, 2009, Walgreens dispensed 50 tablets of

H ydrocodone /APAP 7.5 mg/750 mg , written by Dr. Westerheide, to the decedent

. 4 {¶ 3} According to the parents of the decedent, Cara and Stephen E. Mehrer, their

son became addicted to drugs based on the initial opioid pills dispensed by Walgreens. T he
decedent entered rehabilitation on five occasions to treat his drug addiction. However,
d espite periods of sobriety, the de cedent overdosed on a combination of acetyl, fentanyl, and oxycodone on October 8, 2017

. {¶ 4} The Estate filed a n amended complaint against appellees on March 10,

2020

. 5 The Estate brought causes of action for negligence (Cou nt O ne) , wrongful death pursuant to R.C. 2151.01, et seq. (Count T wo) , and respondeat superior (Count T hree). The
Estate alleged that the appellees ’ over dispensing of medication to the decedent caused him to become addicted to opioids and ultimately over dose. Appellees filed an answer on
March 12, 2020 , and the parties engaged in discovery in this matter. {¶ 5} Relevant to the issues in this appeal, Mr. and Mrs. Mehrer testified at their deposition s that they were trying to stay ahead of the pain as the nurse recommended. Mrs.

1 The record shows that this was originally 50 tablets of Nucynta, a Schedule II drug, but was later changed to H ydrocodone. There is no dispute that Walgreens contacted the prescriber to change the type of medication

. 2 When asked how long this particular prescription was intended to last, Dr. Westerheide stated, “ I would hope that this would last [ the patient ] three or four weeks. ” (We sterheide ’s Dep. at 24.)

3 According to Dr. Westerheide, the decedent ’ s father called him and requested a refill of oxycod one stating,

“ not the other stuff . I t doesn ’ t work . [ T he decedent] has been out since last night. ” (Westerheide ’s Dep. at 33.)

4 Wagner testified during his deposition that pursuant to the Controlled Substances Act, the Drug Enforcement Administration pla ces drugs under different schedules based on their accepted medical application. Schedule II are drugs with some medically acceptable use but considered highly addictive, and Schedule III are considered addictive, but to have less potential for harm and ab use than Schedule II drugs. In 2009, Hydrocodone was a Schedule III substance and Oxycodone was a Schedule II substance

. 5 The initial complaint was filed on October 2, 2019.No. 22AP

- 286 3

Mehrer would give the decedent one or two pills every four or six hours based on the
decedent ’ s response. They were told that the decedent had undergone a very serious and painful surgery with a painful recovery. Both Dr. Westerheide and Dr. Fischer testified th at the prescriptions were reasonable and appropriate to treat the decedent ’ s pain following his shoulder surgery. Of note, both physicians have never been disciplined for

o verprescribing medication. {¶ 6} Ryan Wagner testified as the 30(B)(5) representative for Walgreens. According to Wagner, in 2009, Walgreen had a Pharmacy Code of Conduct as well as a Good Faith Practices and Fraudulent Prescription Policy for controlled prescriptions

. The
Good Faith Practice P olicy provided that the pharmacist must ensure that a prescription for a controlled substance is dispensed for a legitimate medical purpose. U nder the policy, a pharmacist:

must use the elements of good faith dispensing in conjunction

with state and federal controlled substance laws when filling all prescriptions. The pharmacist must ensure that a prescription for a controlled substance is dispe nsed for a legitimate medical purpose.
(Emphasis sic.) ( Wagner ’s Dep. , Ex. 3. ) The policy requires a pharmacist to call the prescriber and confirm or clarify the prescription if the pharmacist believe s they are unable to dispense a prescription in good f aith. “ This allowed pharmacists to basically deny filling or dispensing a prescription. ” (Wagner ’s Dep

. at 35.) A pharmacist must also exercise professional judgment regarding a patient ’ s continued need for controlled substances.
When the elements of good faith dispensing cannot be met, the pharmacist must contact the prescriber. 6 {¶ 7} Wagner also testified that there were safety blocks in place through Intercom Plus, Walgreen ’ s computer sy stem, and the pharmacists were able to see drug utilization

.

6 Walgreens ’ Good Faith Practices and Fraudulent Prescriptions procedure read in relevant part: Elements The elements of good faith dispensing that should alert a pharmacist to questionable circumstances are as follows:

• Numerous controlled substance prescriptions writ ten by the same prescriber or several different prescribers

• Numer ou s prescriptions submitted by the same person

• Increased frequency of prescriptions for the same controlled drug:

o [ B ] y one prescriberNo. 22AP

- 286 4

This allowed pharmacists to determine if there are multiple prescriptions or how early a patient is re filling a prescription. If one of the safety blocks was triggered, t he computer
system woul d provide a n alert on the monitor that reads
, “ [d] uplicate therapy

. ” (Wagner ’s Dep

. at 43). When that happen ed
, the pharmacist would determine if the prescription was being refilled too soon
, and they do so in “ [ c ] onsult ation with the patient, the caregiver, and
the prescriber. ” Id

. {¶ 8} Regarding the decedent ’ s prescription history, the computer system information has been purged and the data is no longer available. According to Wagner, Walgreen s ’ data retention policy is six years and does not have any drug utilization review
data prior to 2012

. Wagner testified , outside the first prescription, that there was no affirmative evidence that Walgreens did or did not contact the prescriber about the
decedent ’ s prescriptions

. Wagner also testified that Walgreens had polices in place that required patient consultation for new prescriptions. According to Wagner, a ll fi ve prescriptions were considered new prescriptions and required consultation. T hree of the

presc ri ptions at issue in this case noted that consultation was declined. Mr. and Mrs.
Mehrer do not recall whether or not they were offered consultation about the prescriptions

. {¶ 9} On February 15, 2021, appellees filed a motion for summary judgment arguing that the Estate ’ s survivorship claim was untimely, the claims were precluded by the learned intermediary doctrine, and that the Estate could not demonstrate the prescriptions
were the proximate cause of the injury or ultimate death of the decedent

. On April 5 , 2021 , the Estate filed a memorandum in opposition

. Relevant to the instant appeal, the Estate argued that there was a reasonabl e dispute of fact as to whether the five prescriptions were
the cause of the decedent ’ s death

. The Estate provided an affidavit by Dr. Corey Waller as support for its claims

. 7 A reply brief was filed on April 12, 2021.

o [ F ] or large numbers of patients

o [ F ] or quantities beyond t hose n or m ally prescribed

• Unusual dosages or instructions in conflict with approved labelling

• Unusual geographical distances between patient, pharmacist, and prescriber

• Consist ent prescriptions for habit

- forming drugs

• Lack of constant prescriber/patient relationship (Emphasis sic.) ( Wagner ’s Dep. , Ex

. 3. )

7 Dr. Waller ’ s affidavit provides in part:No. 22AP

- 286 5

{¶ 10} On April 18, 2022, the trial court granted appellees ’ motion for summary judgment in its entirety. First, the trial court found that the Estate ’ s claims for negligence and respondeat superior were precluded as the statute of limitations had expired. As for
the wrongful death claim, the trial court declined to address appellees ’ learned intermediary theory but instead focused its analysis on causation

. The trial court concluded
that the Estate could not demonstrate that Walgreens ’ action s were the pr oximate cause of
the decedent ’ s death finding Dr. Waller ’ s affidavit “ speculative, and based on assumptions,
not fa c ts in the record. ” ( Aug. 18, 2022 Decision & Entry at 28, 31

. ) {¶ 11} The Estate filed a timely appeal

. II. ASSIGNMENT OF ERROR {¶ 12} The Estate assign s the following as trial court error: The trial court erred in discarding Appellant

- Plaintiff ’ s expert opinion and granting Appellee

- Defendants ’ summary judgment motion based on lack of proximate cause. Appellant

Plaintiff ’ s expert opinion cre ates a genuine issue of material fact as to proximate cause, precluding summary judgment.
III. STANDARD OF REVIEW {¶ 13} In determining whether the trial court properly granted summary judgment, an appellate court must review the evidence according to Civ.R. 56 as well as applicable
case law. Grange Mut. Ins. Co. v. Patino , 10th Dist. No

. 19AP

- 278, 2020

- Ohio

- 466, ¶ 22.

It is the assertion by the defendants that there is no connection between the prescribed opioids after the decedent ’ s should er injury in 2009, his subsequent diagnosis of opioid use disorder, and untimely death in 2017. It is my opinion after review of the materials made available to me by the plaintiffs ’ attorney, and based upon a reasonable degree of medical certainty, that thi s assertion is false. The decedent had received a significant amount of opioids in a very short period of time without any indication of need in the medical record. Based on the record he received 210 tablets of hydrocodone and 50 tablets of oxycodone. Wit hout any indication of concern from the pharmacists, no flag in the system of concern, and no call noted to the prescribe r for clarification. It was further noted in the psychiatry note, after a 2012 admission, that the decedent ’ s opioid use disorder start ed with pills and progressed to heroin right after his surgery. This instigating event disproportionally impacted his limbic system, created by over 300 morphine milligram equivalents he received in less than 2 months. This was identifiable and knowable by the pharmacy, b ut wasn ’ t acted upon. Again, the assertion that the high

- density prescribing event that occurred through Walgreens was not responsible for his untimely death, i s like saying the scissors left in the belly after a surgery were not responsibl e for the death from a punctured bowel that occurs 8 years after surgery. If not for the initial significant exposure, the decedent would have had the potential to live up to his Division 1 Scholarship potential, rather than drop out of school, and proceed to a heroin use disorder. ( Waller ’s Aff. at ¶ 10. )No. 22AP

- 286 6

“ Summary judgment is proper when ‘ “ the moving party demonstrates that: (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made. ” ’ ” DN Reynoldsburg, LLC v. Maurices Inc.
, 10th Di st. No. 20AP

- 57 , 2022

- Ohio

- 949, ¶ 16, quoting 2454 Cleveland, LLC v. TWA, LLC , 10th Dist. No. 19AP

- 157, 2020

- Ohio

- 362, ¶ 8, quoting Capella III, LLC v. Wilcox
, 190 Ohio App .3d 133 , 2010

- Ohio

- 4746, ¶ 16 (10th Dist.)
, citing Gilbert v. Summit Cty ., 104 Ohio St.3d 660, 2004

- Ohio

- 7108, ¶ 6 ; see also Transtar Elec. v. A.E.M. Elec. Servs. Corp. , 140 Ohio St.3d 193, 2014

- Ohio

- 3095, ¶ 8. When considering a motion for summary judgment, a court must resolve all questions and construe the evidence in favor of the nonmoving party. Maxwell v. Lombardi
, 10th Dist. No. 21AP

- 556,

2022

- Ohio

- 1686, ¶ 16, citing 2454 Cleveland, LLC at ¶ 8, citing Pilz v. Ohio Dept. of Rehab.
& Corr. , 10th Dist. No. 04AP

- 240, 2004

- Ohio

- 4040, ¶ 8. {¶ 14} As set forth in Civ.R. 56(C), the moving party bears the initial burden of informing the trial court of the grounds for the motion and identifying those parts of the
record that establish the absence of a material fact. Maxwell at ¶ 16, citing Dresher v. Burt
, 75 Ohio St.3d 280, 293 (1996)

. However, t he moving party cannot meet this initial burden with a conclusory declaration that the nonmoving party has no evidence to support its case; the moving party must identify specific evidence, as listed in Civ.R. 56(C), affirmatively demonstrating that the nonmoving party has no evidence to support its claims. DN Reynoldsburg , LLC at ¶ 1 7 , citing Dresher at 293

. {¶ 15} Once the movi ng party satisfies this initial burden, summary judgment is appropriate if the nonmoving party does not respond, by affidavit or other evidence as otherwise identified in Civ.R. 56, with particular facts demonstrating that a genuine issue
exists in the cas e. Dresher at 293; Grange Mut. I ns. Co. at ¶ 24; Civ.R. 56(E). When the evidence offered supports contradictory inferences, the court reviewing a summary judgment motion may not weigh the evidence. DN Reynoldsburg , LLC at ¶ 17, citing Thyssen Krupp Elevator Corp. v. Constr. Plus, Inc ., 10th Dist. No. 09AP

- 788, 2010

- Ohio

1649, ¶ 20. {¶ 16} This court considers a trial c ourt ’ s grant of a motion for summary judgment
under a de novo standard of review. Maxwell at ¶ 17, citing DN Reynoldsburg , LLC at ¶ 16,No. 22AP

- 286 7

citing Capella III

, LLC at ¶ 16, citing Andersen v. Highland House Co. , 93 Ohio St.3d 547 548 ( 2001 )

. “ [D]e novo appellate review means that the court of appeals independently
reviews the record and affords no deference to the trial court ’ s decision. ” (Internal quotations and citations omitted.) Maxwell at ¶ 17

. IV. LEGAL ANALYSIS
A. The Estate ’ s Assignment of Er ror {¶ 17} In its sole assignment of error, the Estate argues that the trial court erred by granting appellees ’ motion for summary judgment

. Specifically, the Estate contends that
the trial court erroneously disregard ed the Estate ’ s expert opinion that established there was at least a dispute of material fact as to the proximate cause of the decedent ’ s death. {¶ 18} R.C. 2125.01(A)(1) sets forth a cause of action for wrongful death. To succeed in a wrongful death claim that is based under a theory of n egligence, a plaintiff must demonstrate, “ ‘ (1) the existence of a duty owing to plaintiff ’ s decedent
, i.e. , the duty to exercise ordinary care, (2) a breach of that duty, and (3) proximate causation between the breach of duty and the death. ’ ” ( E mphasis sic.) Amoako

- Okyere v. Church of the Messiah
United Methodist Church
, 10th Dist. No. 14AP

- 441, 2015

- Ohio

- 3841, ¶ 35, quoting Bennison v. Stillpass Transit Co.
, 5 Ohio St.2d 122 (1966), paragraph one of the syllabus. {¶ 19} Generally, the element of cau sation is an issue for the trier of fact. Reiger v. Giant Eagle, Inc. , 157 Ohio St.3d 512
, 2019

- Ohio

- 3745, ¶ 11, citing Renfroe v. Ashley , 167 Ohio St. 472, 475 (1958). Summary judgment on proximate cause should be reserved for
cases where the evidence is “ ‘ “ so meager and in con clusive that a finding of proximate cause would rest on speculation and conjecture[.] ” ’ ” ( Bracketing sic. ) Perez v. Crown Equip. Corp ., 3d Dist. No. 1

- 22

- 26, 2022

- Ohio

- 4761, ¶ 31, quoting Bailey v. War d , 3d Dist. No. 8

- 16

- 03, 2016

- Ohio

- 7173 , ¶ 45, quoting Schutt v. Rudolph

- Libbe Inc ., 6th Dist. No. WD

- 94

- 064 , 1995 Ohio App. LEXIS 1211 , * 18 ( Mar. 31, 1995) , citing Renfroe at syllabus

. However,
the plaintiff must present some evidence of causation before the question can be submitted to the jury

. Id

. The act is the proximate cause of the injury if the injury is the “ ‘ natural and probable consequence of the alleged negligent act. ’ ” Miller v. Ohio D ept. of Trans p

. , 10th Dist. No. 13AP

- 849, 2014

- Ohio

- 3738, ¶ 54, quoting Taylor v. Dept. of Rehab. & Corr ., 10th
Dist. No. 11AP

- 1156, 2012

- Ohio

- 4792, ¶ 22, citing Sutowski v. Eli Lilly & Co ., 82 Ohio St.3d

347, 351 (1998). “ ‘ To find that an injury was the natural and pr obable cause of an allegedNo. 22AP

- 286 8

negligent act, it must appear that the injury complained of could have been foreseen or reasonably anticipated from the act. ’ ” Miller at ¶ 54, quoting Taylor at ¶ 22 , citing Strother
v. Hutchinson , 67 Ohio St.2d 282, 287 (1981)

. {¶ 20} Civ.R. 56(C) provides a comprehensive list of evidentiary materials that t he trial court may consider when ruling on a motion for summary judgment. Buroker v. Pratt
Indus . 10th Dist. No. 19AP

- 383 , 2020

- Ohio

- 2845, ¶ 34

. Pursuant to Civ.R . 56 (E ) , an affidavit must be made based on personal knowledge and “ set forth such facts as would be
admissible in evidence. ” Further, the affidavit must “ show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. ” Id

. To comply with Civ.R. 56(E)
as well as Evid.R. 702 and 705, an expert ’ s affidavit must set for th the expert ’ s credentials
and facts that support their opinion

. Buroker at ¶ 3 5 , citing Beattie v. McCoy , 1st Dist. No.
C

- 170197 , 2018

- Ohio

- 2535, ¶ 26

. The expert affidavit may not provide conclusory
statements without supporting facts. Buroker at ¶ 35, citing Beattie at ¶ 26. {¶ 21} The Supreme Court of Ohio has found that courts should favor the admissibility of expert testimony if it is relevant and the criteria of Evid.R. 702 is satisfied. Terry v. Caputo , 115 Ohio St.3d 351, 2007

- Ohio

- 5023, ¶ 23. Evid. R. 702 requires: (A) that
the witness ’ testimony relates to the matter beyond the knowledge or experience possessed by lay persons ; (B) the witness is qualified as an expert by specialized knowledge, skill, experience, training, or education as to the subject matter of the testimony ; and (C) t he
witness ’ testimony is founded on reliable scientific, technical or other specialized
information. Evid.R. 702

. Evid.R. 703 through 705 address the limitations of an expert ’ s testimony. See Evid.R. 703 ( “ The facts or data in the particular case upon wh ich an expert bases an opinion or inference may be those perceived by the expert or admitted in evidence at the hearing ” ); Evid.R. 704 ( “ Testimony in the form of an opinion or inference otherwise admissible is not objectionable solely because it embraces a n ultimate issue to be decided by the trier of fact ” ); Evid.R. 705 ( “ The expert may testify in terms of opinion or inference and give the expert ’ s reasons therefor e after disclosure of the underlying facts or data. The disclosure may be in response to a hypothetical question or otherwise

. ” )

. {¶ 22} The parties have presented competing arguments as to causation. Appellees
contend that the decedent ’ s injuries, and subsequent death, were not the result of the prescriptions dispensed by Walgreens as the decedent used opioids after WalgreensNo. 22AP

- 286 9

dispensed its last prescription on November 28, 2009. Appellees also argue that the
decedent ’ s history of addiction treatment and a period of sobriety in 2015 disrupted the
causal chain in this case. Finally, app ellees argue that the decedent died from mixed drug toxicity of acetyl
, fentanyl
, and oxycodone , not from any of the prescriptions filled in the fall of 2009. Conversely, the Estate offered Dr. Waller ’ s expert affidavit to rebut Walgreens ’ proximate cause arguments

. The question becomes, construing the evidence in favor of the
Estate , whether the affidavit of the Estate ’ s expert, Dr. Waller, provides a sufficient basis to demonstrate that there is a reasonable dispute of material fact as t o the element of
causation. {¶ 23} As Dr. Waller ’ s affidavit attests, he is an addiction, pain, and emergency medicine specialist. Dr. Waller is board certified in emergency medicine and addiction medicine and holds a Master of Science in Biology with a neuro

- molecular focus. Dr. Waller is the Editor in Chief for the American Society of Addiction Medicine criteria, and he has authored a chapter in the American Society of Addiction Medicine ’ s Handbook on Pain
and Addiction titled, “ The Neuroscience of Pain and Addiction

. ” Dr. Waller has also served in various capacities within the American Society of Addiction Medicine, including as chair of the Legislative Advocacy Committee. In that role, Dr. Waller has testified before the United States Congress regarding o pioid addiction and treatment. {¶ 24} According to Dr. Waller, the “ defining aspect [] ” of Opioid U se Disorder is

“ behavior and not the current presence or absence of a drug. ” ( Waller’s Aff. at ¶ 6.)

“ [E]xposure to opioids , including Defendants ’ D rugs, leads to addiction and the resultant
behavioral impact of addiction is that the drugs cause fundamental changes to the brain

. ”
Id . at ¶ 7. T hese changes to the brain are progressi ve , and once developed, are persistent

even years after the drug use discontinuation. “ [This] is what makes addiction a long

- term chronic, and relapsing disease. ” Id

. Dr. Waller explained that addiction, “ [ l ] ike other
chronic diseases
, ” works in “ cycles of relapse and remission ” and a period of sobriety would not have changed the underlying event. Id

. at ¶ 5. {¶ 25} Regarding the case at hand, Dr. Waller attested that he reviewed the
decedent ’ s medical records and prescription history and found
, “ based upon reasonable degree of medic al certainty
, ” that Walgreens dispensing 260 opioids to the decedent in less
than two months created an “ instigating event ” that “ disproportionately impacted hisNo. 22AP

- 286 10

limbic system, ” which was “ created by the over 300 morphine milligram equivalents he
received in less than 2 months

. ” Id

. at ¶ 10. Dr. Waller concluded that there was a causal connection between the prescribed opioids in 2009
, the decedent ’ s diagnosis of opioid use
disorder
, and untimely death in 2017. Id

. Dr. Waller wrote “ [ i ] f not for the significant initial

exposure, ” the decedent would have lived up to his “ Division 1 Scholarship potential ” and not have become addicted to opioids. Id

. at ¶ 10. “ [T]he assertion that the high

- density prescribing event that occurred through Walgreens was n ot responsible for the untimely death, is like saying the scissors left in the belly after a surgery were not responsible for the death from a punctured bowel that occurs 8 years after surgery. ” Id

. at ¶ 10. Dr. Waller noted that the decedent was an adolescent at the time of the initial exposure making him

“ particularly vulnerable

. ” Id

. at ¶ 9

. Accordingly
, c onstruing the evidence in favor of the

Estate , Dr. Waller ’ s expert affidavit rebuts appellees ’ argume nts and provides sufficient
evidence that reasonable minds could find that the prescriptions were the proximate cause
of death to the decedent

. {¶ 26} Appellees cite three po rtions in Dr. Waller ’ s affidavit , which they contend are speculative and conclusory

. The first point of contention is Dr. Waller ’ s statement that the
decedent “ received a significant amount of opioids in a very short period of time without any indication of need in the medical record. ” ( Waller ’s Aff. at ¶ 10). Appellees contend this point is speculative as t he record shows that there was a need based on the father of the
decedent requesting a refill of oxycodone , t he decedent ’ s mother testifying that the
decedent underwent “ major surgery , ” and that D r. W esterheide testified that shoulder surgery can be very painful

. While the record shows that there was a general need for pain
relief after surgery , there is a reasonable dispute of fact whether opioids were necessary to manage the pain, and even if opioids were suitable in this case
, whether the amount of opioids dispensed during this period was appropriate. {¶ 27} The next point of dispute is Dr. Waller ’ s statement that Walgreens dispensed 260 opioids to t he decedent “ [ w ] ithout any indication of concern from pharmacists ” or “ flag in the system of concern

. ” (Waller ’s Aff. at ¶ 10). Appellee s contend that the claim that Walgreens lacked concern was not supported by the record. Appellee s cites Walgreens ’ policy that there should have been a flag in the system for the November 1 8, 2009 duplicate prescription. Walgreens also contends that the chang e of the prescription from a Sched uleNo. 22AP

- 286 11

II to a Schedule III prescription on Oct ober 5, 2009 , and Walgreens ’ policy of flagging a duplicate prescription indicated concern for the decedent

. {¶ 28} However, in deciding a motion for summary judgment, a court must construe
evidence in favor of the no nmoving party. See Sommai Ruksujjar v. Wilgus , 10th Dist. No. 09AP

- 93, 2009

- Ohio

- 5025, ¶ 9. Through this lens, we cannot outright dismiss Dr. Waller ’ s claim that Walgreens had no indication of concern

. There is nothing in the record to confirm why Walgreens changed the October 5 , 2009 prescription from a Schedule II to a
Schedule III substance. While Wagner believed the change was a reflection of Walgreens ’

concern for the decedent as it was a new therapy
, see Wagner ’s Dep. at 98

- 99 , it could also
have been , as Dr. Westerheide posited, that the prescribed medication was not available at
that time. ( Westerheide ’s Dep. at 20.) Moreover, there was no testimony provided that
demonstrat ed Walgreens ’ policy of flagging a duplicate prescription occurred even if it was designed to do so. Those records were purged consistent with Walgreens ’ record retention policy. This type of weighing of the evidence is reserved for the jury and is not appropriate
fo r summary judgment. At this stage, we must resolve doubts and construe evidence in favor of the nonmoving party. Leibreich v. A.J. Refrigeration, Inc. , 67 Ohio St.3d 266, 269 (1993). {¶ 29} The final point of contention involves Dr. Waller ’ s statement that there was

“ no call noted to the prescriber for clarification ” on the prescription s

. ( Waller ’s Aff. at ¶ 10). Upon review, t here is no evidence in the record that demonstrate s any calls were made to the prescribers after the October 5 , 2009 prescription

. Appellees claim that pharmacists
could have called but either failed to document it on the prescription or in the Intercom Plus system, which was later purged consistent with Walgreens ’ retention policy

. Again, at this stage, the record could infer both that someone did call or that no one called. However, credibility determinations are reserved for the trier of fact. Turner v. Turner , 67 Ohio St.3d

337 (1993), paragraph one of the syllabus

. Generally, the weight to give an infe rence is an
issue of fact. See Sommai Ruksujjar at ¶ 12. An inference will be disregarded as speculative only whe n reasonable minds cannot help but conclude that the inference is not supported by the greater weight of the evidence, even when evidence is construed most strongly in favor of the nonmoving party

. Id

. Even if the issue of proximate cause relied upon indirect, rather than direct, evidence of causation, it can still be enough to create a genuine issue ofNo. 22AP

- 286 12

material fact. Id . at ¶ 13. Additionally, a nonmoving party need not effectively eliminate all other possible causes to meet their summary judgment burden. Id . at ¶ 16 , citing Westinghouse Elec

. Corp. v. Dolly Madison Leasing & Furniture C or p. , 42 Ohio St.2d 122, 127 (1975). At th e very least, there is a dispute of fact that no calls were made by the physicians after the October 5 , 2009 prescription

. Appellees argue that summary judgment should also be granted based on Dr. Waller ’ s lack of discussion on the breach of a duty
elemen t

. We note that appellees failed to present the argument in their initial motion for summary judgment. Generally, arguments raised for the first time on appeal that could have been raised are waived or forfeited on appeal

. G & I IX 6840 Pontius LLC v. Franklin Cty

. , 10th Dist. No. 19AP

- 661, 2020

- Ohio

- 4660, ¶ 17. As the trial court never addressed the issue of breach in its decision, we decline to examine the issue for the first time. {¶ 30} App ellees have argued in the alternative that Walgreens did not hav e a duty in this case under the learned intermediary doctrine. “ Under the facts of this case, the learned intermediary doctrine stands for the proposition that pharmacists in Ohio do not have a generalized, affirmative duty or legal obligation to warn pat ients of potential adverse reactions, side effects, or dangers of prescription drugs for every prescription they fill absent some special circumstances. ” (Emphasis deleted .) (Appellees ’ Brief at 27.) However, the trial court declined to address this arg ument in its decision. Generally, appellate courts will not address an argument that was not first considered by the trial

court. Roush v. Butera
, 8 th Dist. No. 97463 , 201 2

- Ohio

- 2506 , ¶ 2 7

. As such, upon remand
the trial court is instructed to consider the remaining arguments, including the learned intermediary doctrine, asserted in appellees ’ motion for summary judgment. {¶ 31} It is easy to see how the trial court misconstrued the facts regardin g causation
in this case

. To be sure , the period between the dispensing of the drugs to the decedent ’ s overdose is significant. However, a ddiction is a “ long

- term, chronic, and relapsing disease ” that is complex to evaluate in this context. (Waller ’s Aff. at ¶ 7 .) Here, the goal of summary judgment is not to try issues of fact but to assess whether issues of fact exist. Thompson v. Eroglu , 7th Dist. No. 05 MA 40, 2006

- Ohio

- 7060, ¶ 10. Dr. Waller ’ s affidavit provides the requisite basis for this mat ter to return to the trial court for further review

. Whether the

Estate is ultimately meritorious in its claims is not for this court to decide at this stage in
the case

.No. 22AP

- 286 13

{¶ 32} The Estate ’ s sole assignment of error is sustained.
V. CONCLUSION {¶ 33} Having sustained the Estate ’ s sole assignment of error, we reverse the judgment of the Franklin County Court of Common Pleas

. The case is remanded t o the trial court to consider the other grounds in appellees ’ motion for summary judgment and , if

necessary , further proceedings consistent with this decision

. Judgment reversed ; cause remanded with instructions

.
BEATTY BLUNT , P

. J., and JAMISON , J., concur.

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