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Allen v. The Kroger Company

United States District Court, M.D. Georgia, Macon Division

December 21, 2018




         The Kroger Company, Defendant in this action and hereinafter referred to as “Kroger, ” moves the Court to dismiss Plaintiff's complaint for failure to state a claim. [Doc. 2]. For the following reasons, Kroger's motion is GRANTED IN PART.


         Plaintiff Patricia Faye Allen brought this action after her daughter's death from an alleged adverse reaction between two prescription medications. See generally [Doc. 1');">1');">1');">1-1');">1');">1');">1]. She alleges that on March 23, 201');">1');">1');">16, one of Kroger's pharmacies in Macon, Georgia filled a prescription for amitriptyline for her daughter, Tracy Faye Edge. [Id. at ¶ 7]. On April 1');">1');">1');">11');">1');">1');">1, 201');">1');">1');">16, the same pharmacy filled Ms. Edge's prescription for morphine, which was prescribed by two doctors working for non-party Navicent Health, Inc. [Id. at ¶¶ 4-6]. Ms. Edge died on April 20, 201');">1');">1');">16, six days after filling her morphine prescription, from the alleged fatal interaction between the morphine and amitriptyline she was prescribed. [Id. at ¶¶ 3, 9].

         Plaintiff alleges that Kroger knew or should have known that morphine and amitriptyline are fatal when mixed and had a duty to, but failed to, do the following: (1');">1');">1');">1) warn Plaintiff of the adverse effects of mixing the two medications [id. at ¶¶ 1');">1');">1');">15, 1');">1');">1');">17]; (2) refuse to dispense the morphine after dispensing the amitriptyline [id. at ¶¶ 1');">1');">1');">18, 20, 25, 35]; (3) monitor Plaintiff's prescription drug history [id. at ¶ 1');">1');">1');">19]; (4) disclose material facts about the prescriptions [id. at ¶ 24]; (5) create and follow guidelines to ensure prescriptions do not have adverse reactions to each other [id. at ¶¶ 33, 34]; and (6) call Ms. Edge's doctor to inquire about the appropriateness of prescribing morphine and amitriptyline simultaneously [id. at ¶¶ 36, 37]. Plaintiff alleges that the “duty to warn and [to] compare prescription profiles” arises under the Omnibus Budget Reconciliation Act of 1');">1');">1');">1990 (“OBRA ‘90”), 42 U.S.C. § 1');">1');">1');">1396r-8(g).

         Kroger now moves to dismiss Plaintiff's complaint for failure to state a claim, arguing that it had no statutory or common-law duty to monitor Ms. Edge's prescriptions or prevent her from combining adverse medications. [Doc. 2-1');">1');">1');">1]. The Court partially agrees and finds as follows.


         A. Standard of Review

         When ruling on a 1');">1');">1');">12(b)(6) motion, the Court must accept the facts set forth in the complaint as true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007). A complaint survives a motion to dismiss only if the plaintiff alleges sufficient factual matter to state a claim for relief that is plausible on its face, and she must state more than “unadorned, the-defendant-unlawfully-harmed-me accusations.” McCullough v. Finley, 1');">1');">1');">1324');">907 F.3d 1');">1');">1');">1324, 1');">1');">1');">1333 (1');">1');">1');">11');">1');">1');">1th Cir. 201');">1');">1');">18) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)). She must also “plead more than labels and conclusions or a formulaic recitation of the elements of a cause of action, ” id., such that the factual allegations contained in the complaint are “enough to raise a right to relief above the speculative level, ” Twombly, 550 U.S. at 555.

         When assessing a motion to dismiss for failure to state a claim, the Court employs a two-step framework. McCullough, 907 F.3d at 1');">1');">1');">1333. First, the Court identifies and disregards allegations that are “no more than mere conclusions, ” since “[c]onclusory allegations are not entitled to the assumption of truth.” Id. (quoting Iqbal, 556 U.S. at 679). Second, the Court “assume[s] any remaining factual allegations are true and determine[s] whether those factual allegations ‘plausibly give rise to an entitlement to relief.'” Id. (quoting Iqbal, 556 U.S. at 679).

         B. Kroger's Duty Under OBRA ‘90

         First, Plaintiff alleges that Kroger had a “duty to warn and compare prescription profiles” under the Omnibus Budget Reconciliation Act of 1');">1');">1');">1990 (“OBRA ‘90”). [Doc. 1');">1');">1');">1-1');">1');">1');">1, ¶ 1');">1');">1');">16]. That duty allegedly carries with it Kroger's obligation to provide “(1');">1');">1');">1) patient counseling, (2) medication adherence, and (3) side effect management.” [Id.]. Plaintiff filed a similar lawsuit before the undersigned earlier this year against multiple defendants, including Kroger, Ms. Edge's prescribing physicians, and several pharmaceutical manufacturers based on the same operative facts as alleged in this complaint. See Allen v. Endo Pharm., Inc., No. 5:1');">1');">1');">18-cv-001');">1');">1');">132-TES (M.D. Ga. Apr. 1');">1');">1');">19, 201');">1');">1');">18), ECF No. 1');">1');">1');">1. In that case, Plaintiff moved to amend the complaint to allege, as she does in this case, that the defendants had a duty to warn and compare prescription profiles under OBRA ‘90. Id. at ECF No. 57-2, ¶¶ 1');">1');">1');">19, 21');">1');">1');">1, 39. The Court denied her motion to amend as futile, finding that

Plaintiff's OBRA claim could not survive a motion to dismiss because Plaintiff cannot state a claim against the Defendants under that statute. The section of OBRA Plaintiff relies on did not require the Defendants to review the deceased's drug profile as Plaintiff asserts. 42 U.S.C. § 1');">1');">1');">1396r-8(g). Rather, OBRA mandated that the individual states adopt expanded standards of pharmaceutical care for Medicaid recipients as a condition on the receipt of federal Medicaid funds. The drug profile review that Plaintiff refers to was part of the guidance to states, not private actors, on how to comply with OBRA's mandate. Id. Thus, although Defendants could have conceivably violated a state law that enacted the OBRA mandate, the Defendants, at least as private actors, could not have violated OBRA itself.

Allen, ECF No. 74, p. 1');">1');">1');">14 (emphasis in original). The Court also found that OBRA ‘90 does not create a private right of action through which Plaintiff could assert her claims. Id. at pp. 1');">1');">1');">14-1');">1');">1');">15. Thus, in this case (as in the previous case), Kroger owed no duty to “warn and compare prescription profiles” under OBRA '90. Given the Court's previous ruling that private actors cannot violate OBRA '90, Plaintiff's claims arising under that statute are patently frivolous and dismissed with prejudice. See Kalpak v. EMC Mortg. Corp., No. 3:1');">1');">1');">11');">1');">1');">1-cv-49 (CAR), 201');">1');">1');">11');">1');">1');">1 WL 271');">1');">1');">11');">1');">1');">11');">1');">1');">182, at *2 n.3 (M.D. Ga. July 1');">1');">1');">13, 201');">1');">1');">11');">1');">1');">1).

         C. Kroger's Duty Under Georgia Statute and Common Law

         Kroger also argues that it owed Ms. Edge no duty whatsoever under Georgia law to review her drug profile, warn of adverse effects, or refrain from filling her prescriptions because “[t]hose duties rest with the prescribing physician.” [Doc. 2-1');">1');">1');">1, p. ...

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