PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-1638

MICHAEL A. SMALL, Administrator of the Estate of Bertha Autry Small, 

deceased,

 Plaintiff - Appellant,

v.

WELLDYNE, INC., a Florida Corporation; WELLDYNERX, INC., a Florida 

Corporation; EXACTUS PHARMACY SOLUTIONS, INC., a Delaware 

Corporation; DOES 1 THROUGH 5, inclusive,

 Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of North Carolina, at 

Raleigh. Terrence W. Boyle, Chief District Judge. (5:16-cv-00062-BO)

Argued: March 20, 2019 Decided: June 12, 2019

Before WILKINSON, HARRIS, and QUATTLEBAUM, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge 

Quattlebaum wrote the opinion, in which Judge Wilkinson and Judge Harris joined. 

ARGUED: Marshall B. Pitts, Jr., LAW OFFICES OF MARSHALL B. PITTS, JR., 

P.C., Fayetteville, North Carolina; Willie D. Gilbert, II, LAW OFFICES OF WILLIE D. 

GILBERT, II, Wilson, North Carolina, for Appellant. Demetrius W. Berry, 

BROTHERTON FORD BERRY & WEAVER, PLLC, Greensboro, North Carolina; 

Barry Sidney Cobb, YATES, MCLAMB & WEYHER, LLP, Raleigh, North Carolina, 
2

for Appellees. ON BRIEF: Daniel J. Burke, BROTHERTON FORD BERRY & 

WEAVER, PLLC, Greensboro, North Carolina, for Appellees WellDyne, Inc. and 

WellDyneRx, Inc. Suzanne R. Walker, YATES, MCLAMB & WEYHER, LLP, Raleigh, 

North Carolina, for Appellee Exactus Pharmacy Solutions, Inc.
3

QUATTLEBAUM, Circuit Judge: 

On November 19, 2013, Bertha Small ingested prescription medications that were 

sent to her by mistake. Ms. Small was accustomed to receiving medications in the mail. 

On the day she ingested the pills, Ms. Small received a package addressed to her home in 

North Carolina that contained six prescription medications. The package was similar in 

size and color to the packages containing the medications she normally received.

WellDyneRx, Inc. and WellDyne, Inc. (collectively referred to as “WellDyne”), 

operate in the growing mail-order pharmacy industry by filling prescriptions for health 

care plans and other pharmacies.

1 Relevant to this case, WellDyne was under a contract 

with Exactus Pharmacy Solutions, Inc. (“Exactus”) to fill and ship prescription 

medication to Exactus’ customers. Exactus placed an order with WellDyne to fill and 

ship a package of prescription medication to an Exactus customer in California. However, 

WellDyne mistakenly shipped that package of prescription medication to Ms. Small. The 

package contained the pills Ms. Small ingested.

Although the outside of the package contained Ms. Small’s name and address, the 

label on each bottle listed the California patient’s name, the California patient’s 

 1 The mail-order pharmacy industry began to develop in earnest in the 1980s. 

More recently, the industry has grown significantly. Online retailers have moved into the 

pharmacy business and many traditional brick and mortar pharmacy businesses now 

provide online delivery services. This trend is consistent with the multiple ways the 

Information Age is transforming our economy and giving rise to new legal disputes and 

issues. See, e.g., Milo & Gabby LLC v. Amazon.com, Inc., 693 F. App’x 879, 886–88 

(Fed. Cir. 2017) (addressing whether Amazon was a seller under copyright laws when the 

product in question was sold by a third party on Amazon’s website and fulfilled by 

Amazon).
4

prescribing doctor and the name of the medication. However, Ms. Small, elderly and 

barely literate, did not read the labels of the bottles before taking the pills.

After ingesting the pills, Ms. Small began to experience confusion and 

hallucinations. A few days later, she fell and fractured her leg. She was admitted to the 

hospital for her leg, but stayed for almost a month. During that time, Ms. Small was 

treated for several other medical problems that arose during her stay. She died on January 

2, 2014, approximately ten days after being discharged.

I.

On behalf of Ms. Small’s estate, her son Michael Small (we refer to the plaintiff 

and the decedent interchangeably as “Ms. Small”) sued WellDyne and Exactus asserting 

claims for negligence, negligence per se and breach of the implied warranty of fitness for 

a particular purpose against both defendants. Ms. Small also alleged Exactus was 

vicariously liable for the actions of WellDyne under agency and joint venture theories. 

After the close of discovery and the filing of a series of motions by the parties, the 

district court granted summary judgment in favor of WellDyne and Exactus as to all 

counts. The district court first held that Ms. Small was contributorily negligent as a 

matter of law which completely barred her recovery in North Carolina. The district court 

reasoned Ms. Small acted unreasonably by neither reading the labels on the medications 

nor heeding the warnings of her adult daughter, Shirley. Alternatively, the district court 

held that the relationship between Ms. Small taking the medication and her death was too 

attenuated, and thus precluded a finding of proximate cause. Also, because it granted 

summary judgment to the defendants, the district court denied as moot WellDyne and 
5

Exactus’ motions to exclude the opinions of Ms. Small’s experts under Rule 702 of the 

Federal Rules of Evidence on proximate cause.

2

Small timely appealed the district court’s order. We have jurisdiction over this 

appeal pursuant to 28 U.S.C. § 1291.

II.

We begin with a de novo review of the district court’s decision to grant summary 

judgment in favor of Exactus and WellDyne on the issue of contributory negligence. See 

Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018).

Summary judgment is appropriate if the evidence shows that there is no genuine issue as 

to any material fact and that the moving party is entitled to judgment as a matter of law. 

Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The 

judge is not to weigh the evidence, but rather to determine if there is a genuine issue of 

fact for trial. Anderson, 477 U.S. at 249. All evidence should be viewed in the light most 

favorable to the non-moving party. Id. at 261 n.2. 

 2 As an alternative ground for granting summary judgment in favor of Exactus, the 

district court found that Exactus could not be held directly or vicariously liable for 

WellDyne’s actions in shipping the wrong medication to Ms. Small. The district court 

granted summary judgment in favor of WellDyne on Ms. Small’s claim for the breach of 

the implied warranty of fitness for a particular purpose. Ms. Small had previously 

stipulated to the dismissal of this claim as to Exactus. The district court denied Ms. 

Small’s motion for partial summary judgment that Exactus was liable for WellDyne’s 

actions. The district court also found Ms. Small’s claim that WellDyne breached its duty 

to Ms. Small was moot because of the court’s contributory negligence and proximate 

cause holdings.
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Utilizing this standard, we first look to the law of North Carolina on contributory 

negligence.3 Under North Carolina law, “if an issue of contributory negligence is raised 

as an affirmative defense, and proved, it completely bars plaintiff’s recovery for injuries 

resulting from defendant’s negligence.” Sawyer v. Food Lion, Inc., 549 S.E.2d 867, 869 

(N.C. Ct. App. 2001). A “‘plaintiff is contributorily negligent when [s]he fails to exercise 

such care as an ordinarily prudent person would exercise under the circumstances in 

order to avoid injury.’” Nicholson v. Am. Safety Util. Corp., 488 S.E.2d 240, 244 (N.C. 

1997) (emphasis in original) (quoting Newton v. New Hanover Cty. Bd. of Edu., 467 

S.E.2d 58, 65 (N.C. 1996)). “[T]he existence of contributory negligence does not depend 

on plaintiff’s subjective appreciation of danger; rather, contributory negligence consists 

of conduct which fails to conform to an objective standard of behavior . . . .” Smith v. 

Fiber Controls Corp., 268 S.E.2d 504, 507 (N.C. 1980).

Summary judgment is rarely appropriate for issues of contributory negligence

because “the standard used in contributory negligence cases, that of reasonable care, 

usually requires a jury determination.” Sawyer, 549 S.E.2d at 86970. Summary judgment 

is appropriate where the evidence is uncontroverted that the plaintiff failed to use 

ordinary or reasonable care and that failure was at least one of the proximate causes of 

 3 Federal jurisdiction for this case is based on diversity of citizenship of the 

parties. See 28 U.S.C. § 1332. Thus, we apply the forum state’s substantive laws, 

including its choice of law rules. Francis v. Allstate Ins. Co., 709 F.3d 362, 369 (4th Cir. 

2013). Under North Carolina law, tort claims are governed by the law of the state where 

the injury occurred, or where the tort was committed. Boudreau v. Baughman, 368 S.E.2d 

849, 854 (N.C. 1988). It is undisputed that Ms. Small’s injures occurred in North 

Carolina, and thus North Carolina negligence law applies.
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the injury. Id. at 870. But in “‘borderline cases,’ fairness and judicial economy suggest 

that courts should decide in favor of submitting issues to the jury.” Whisnant v. Herrera, 

603 S.E.2d 847, 850 (N.C. Ct. App. 2004) (quoting Radford v. Norris, 327 S.E.2d 620, 

621 (N.C. Ct. App. 1985)). 

WellDyne and Exactus argue that the evidence establishes, as a matter of law, Ms. 

Small failed to use ordinary care when she took the misdelivered medication without 

reading the labels on the medication. The defendants contend the misdelivered package 

arrived after Ms. Small had already received her normal medications package from 

WellDyne. They note the medications were delivered in an unusual way—without a 

phone call in advance. The pill bottles, the defendants point out, were labeled for 

Exactus’ customer in California, contained no identifying information as to Ms. Small or 

her doctors and the bottles in the second package were different in size and number to 

those Ms. Small normally received. Finally, according to defendants, there was no 

evidence that Ms. Small’s doctors had prescribed or discussed any new medications.

Accordingly, WellDyne and Exactus argue that there is no genuine issue of material fact 

as to whether Ms. Small failed to use ordinary care and thus was contributorily negligent 

as a matter of law. 

In response, Ms. Small argues that a reasonable jury could find that she acted 

reasonably under the circumstances of this case. Ms. Small was a barely literate, geriatric 

patient who received a familiar looking package of medications from a familiar 

pharmacy, addressed to her. Also, Ms. Small points out that she had been prescribed 

some of the misdelivered medications in the past and the pills appeared similar in size 
8

and shape to her regular medications. Finally, Ms. Small argues that the testimony from 

her experts, that she acted reasonably, created a genuine issue of material fact. 

North Carolina courts have not addressed a case like this one where a plaintiff 

ingested misdelivered prescription medications without reading the label. Indeed, there is 

scarce caselaw nationwide addressing this situation. However, Champs Convenience 

Stores, Inc. v. United Chemical Co., Inc., 406 S.E.2d 856 (N.C. 1991) involves an 

analogous situation. There, a store employee called the defendant chemical company 

asking for a cleaning product to control the dust on the grocery store’s wood floors. Id. at 

858. The defendant recommended a product and instructed the employee on how to use 

it. Id. Thirty minutes later, the defendant delivered a chemical product, but it was the 

wrong one. Id. The invoice listed the product recommended on the phone, but the label

and instructions listed the actual chemical inside the container. Id. at 456. The employee 

admitted that if she had read the instructions, she would not have used the product. Id. 

But she neglected to read the instructions or the label and applied the misdelivered 

chemicals to the store floor. Id. at 858. The toxicity from the chemical rendered the 

groceries inedible, and the North Carolina Department of Agriculture issued an embargo 

for contents of the store, causing the store to close. Id. at 859. The store remained closed 

until it was sold approximately one year later. Id. When the store owner sued the 

chemical product seller seeking to recover its losses, the seller claimed the store was 

contributorily negligent in using the chemicals without reading the labels or the 

instructions. Id. Ultimately, the North Carolina Supreme Court held that “the evidence 

was insufficient to require the court to find contributory negligence as a matter of law.” 
9

Id. at 862. The court, relying on the defendant’s delivery of the wrong product and the 

invoice listing the correct product, concluded contributory negligence was proper for the 

jury to decide. Id. at 862. In light of the similarities of Champs to our case, we, sitting in 

diversity, cannot say that as a matter of law that Ms. Small was contributorily negligent

for failing to read the labels on the medications.

4

We also note that part of the district court’s reasoning for finding that Ms. Small

was contributorily negligent was its factual finding that Ms. Small took the medications 

after being instructed not to by her adult daughter Shirley. But Shirley testified that she 

warned Ms. Small not to take the medicine the day after the package arrived. On the other 

hand, Michael David, Shirley’s fiancé who lived at Ms. Small’s residence, testified by 

affidavit that he saw Ms. Small take the misdelivered medications the same day the 

medications were delivered. Viewing the evidence in the light most favorable to Ms. 

Small, the non-moving party, a jury could reasonably conclude that Ms. Small ingested 

the misdelivered medications before being warned by her daughter Shirley.

For the reasons set forth above, we reverse the district court on the issue of 

contributory negligence.

III.

Having considered the issue of contributory negligence, we now conduct a de 

novo review of whether Ms. Small presented sufficient evidence to create a genuine 

 4 Sitting in diversity, our task is to identify the substantive law of North Carolina, 

not decide what it should be. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 497 

(1941).
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dispute of material fact that taking the misdelivered medications was the cause of her 

injuries and also her death. Under North Carolina law, “‘[p]roximate cause is a cause 

which in natural and continuous sequence, unbroken by any new and independent cause, 

produced the plaintiff’s injuries, and without which the injuries would not have 

occurred.’” Webb v. Wake Forest Univ. Baptist Med. Ctr., 756 S.E.2d 741, 744 (N.C. Ct. 

App. 2014) (quoting Lord v. Beerman, 664 S.E.2d 331, 334 (N.C. Ct. App. 2008)). “Only 

when the facts are all admitted and only one inference may be drawn from them will the 

court declare whether an act was the proximate cause of an injury or not.” Adams v. 

Mills, 322 S.E.2d 164, 172 (N.C. 1984). “[B]ecause that is rarely the case, what is the 

proximate cause of an injury is ordinarily a question for the jury.” Id.

Ms. Small offered the testimony of Dr. Baker, Dr. Simonson and Dr. Chaponda5

on this issue of the proximate cause of Ms. Small’s death. These proffered experts 

described a chain of events beginning with the ingestion of the medications and ending in 

Ms. Small’s death. First, they testified that Ms. Small took one or more doses of 

misdelivered low blood pressure medication. This medication, the experts stated, caused

her to experience low blood pressure, which caused her to become confused, and 

subsequently led to her fall three days after taking the medications. They noted that Ms. 

Small suffered multiple leg fractures from the fall requiring her hospitalization. Ms.

 5 Before the district court, WellDyne moved to strike the affidavit of Dr. 

Chaponda for failing to comply with the discovery rules. The district court held the 

motion was moot in light of its order granting summary judgment. Because we reverse 

summary judgment as to WellDyne, we leave this issue for the district court to address on 

remand. 
11

Small’s experts testified that Ms. Small, while in the hospital, developed elevated white 

blood cell count, sepsis and pneumonia. These conditions, according to those experts, 

combined with her end stage renal disease, age and general underlying chronic condition, 

to produce elevated stress to her heart and ultimately cause Ms. Small to suffer a heart 

attack. The death certificate describes the cause of Ms. Small’s death as urinary tract 

infection, myocardial infarction and end stage renal disease, and does not mention the 

medications or the fall. Nevertheless, the experts opine the medications to be the cause of 

her death. Dr. Baker compared the series of events leading to Ms. Small’s injuries and 

ultimate death to a cascade or domino effect. Dr. Simonson compared the series of events 

to a snowball effect.

The district court held that “even considering the opinions of Drs. Baker and 

Simonson, the relationship between cause and effect is too attenuated such that plaintiff 

cannot demonstrate proximate cause.” Small v. WellDyne, Inc., No. 5:16-CV-62-BO, 

2018 WL 2107607, at *7 (E.D.N.C. May 7, 2018). The district court stated that “Ms. 

Small’s death on January 2, 2014, from end stage renal failure, myocardial infarction, 

urinary tract infection, and pneumonia was too far removed from her alleged 

consumption of some amount of mis-delivered [sic] medication having hypotensive 

effects between November 19 and November 22, 2013.” Id.

The district court’s assessment of the opinions of Ms. Small’s experts may be 

correct. However, at this stage of the case and without first evaluating the admissibility of 

the expert testimony, the court’s assessment results from improperly weighing the 

evidence. Ms. Small’s expert testimony, if admissible, is evidence from which a jury 
12

could conclude that Ms. Small’s ingestion of the misdelivered pills was the proximate 

cause of her death. In light of that testimony, the district court erred in determining there 

was no genuine issue of material fact. Therefore, we reverse the district court on the issue 

of proximate cause.

IV.

Our reversal of the district court’s order on the issues of contributory negligence 

and proximate cause, however, does not mean that the issue of summary judgment is 

closed. As described above, the evidence offered by Ms. Small to prove proximate cause 

is primarily expert opinion testimony. Without it, there is no other evidence that would 

create a genuine issue of material fact on causation.

WellDyne moved to exclude the testimony of Ms. Small’s experts on causation

below. The district court determined that motion was moot in light of its rulings on 

contributory negligence and proximate cause. While understandable at the time, we have 

reversed those rulings of the district court. Therefore, it is now appropriate for the district 

court to conduct an analysis on Ms. Small’s proffered expert testimony pursuant to Rule 

702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 

509 U.S. 579 (1993) and its progeny.

“[E]xpert witnesses have the potential to be ‘both powerful and quite 

misleading.’” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999) 

(quoting Daubert, 509 U.S. at 592). Given that potential, it is critical for district courts to 

diligently assess the admissibility of expert testimony. Under Rule 702, the trial judge has 
13

a special gatekeeping obligation to make sure an opinion offered by an expert is 

admissible. Nease v. Ford Motor Co., 848 F.3d 219, 230 (4th Cir. 2017).

We need not lay out the manner in which the Daubert analyses should be 

conducted. The law on that topic is well settled. But on the most basic level, to be 

admissible, an expert testimony must be of “scientific, technical or other specialized 

knowledge.” Fed. R. Evid. 702(a). It must not be based on “belief or speculation, and 

inferences must be derived using scientific or other valid methods.” Oglesby v. General 

Motors Corp., 190 F.3d 244 (4th Cir. 1999). And it is not enough for an expert to rely on 

his subjective belief. Daubert, 509 U.S. at 590. Without testing, supporting literature in 

the pertinent field, peer reviewed publications or some basis to assess the level of 

reliability, expert opinion testimony can easily, but improperly, devolve into nothing 

more than proclaiming an opinion is true “because I say so.” Thus, without drawing a 

conclusion or suggesting an outcome of the analysis to be conducted, this case is 

remanded to the district court so it can determine whether the expert opinions that Ms. 

Small’s taking some of the misdirected medications was the cause of her injuries and

death satisfy the Daubert standards for expert testimony.6

 6 In addition to the rulings described above, we affirm the district court on the 

issues of the direct and vicarious liability of Exactus and the liability of WellDyne on the 

issue of breach of implied warranty of fitness for a particular purpose for the reasons set 

forth by the district court. Also, because it is no longer moot, we remand the issue of 

whether WellDyne breached its duty of care as a matter of law to the district court for 

consideration. Finally, we deny Ms. Small’s motion for transfer of the case to another 

district court judge as Ms. Small has not met the burden required for such a transfer. See

United States v. Guglielmi, 929 F.2d 1001, 1007 (4th Cir. 1992), superseded by statute on 

(Continued)
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V.

In conclusion, we reverse the district court insofar as it granted summary judgment 

on the basis of contributory negligence and causation and we remand for the district 

judge to conduct a Daubert analysis of the expert opinions proffered by Ms. Small. We 

affirm the district court’s order granting summary judgment to Exactus. We also affirm 

the district court’s order granting summary judgment to WellDyne as to Ms. Small’s 

claim for the implied warranty of a particular purpose. We remand to the district court 

Ms. Small’s motion for partial summary judgment as to WellDyne. Last, we decline to 

assign the case to a different district judge.

 AFFIRMED IN PART, REVERSED IN PART AND REMANDED

 

other grounds, Protect Act of 2003, Pub. L. No. 108-21, 117 Stat. 650, as recognized in

United States v. Pridgen, 64 F.3d 147, 150 n.3 (4th Cir. 1995).