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Holley v. CVS Caremark Corp.

United States District Court, W.D. Virginia, Danville Division

August 3, 2016

SADIE MAE HOLLEY, by and through her Mother and Next Friend, Sara B. Holley, et al., Plaintiffs


          Elizabeth K. Dillon United States District Judge

         Sara B. Holley (Mrs. Holley) brings two claims against CVS Caremark Corporation and its subsidiaries (collectively, CVS) stemming from an allegedly mislabeled prescription: the first on behalf of her daughter, Sadie Holley (Sadie), for negligence; and the second on her own behalf for intentional infliction of emotional distress. CVS now moves to dismiss the second claim under Federal Rule of Civil Procedure 12(b)(6), arguing that Mrs. Holley fails to state a claim upon which relief can be granted. For the following reasons, the court will deny CVS’s motion to dismiss.

         I. BACKGROUND

On December 31, 2013, Sadie, then five years old, underwent a routine tonsillectomy and adenoidectomy.[*](Compl. ¶ 10, Dkt. No. 1-1.) To help manage her pain, Sadie’s physician provided an “unambiguous, clearly typed, and easily understood” prescription for 2.5 ml Roxicet 5-325 mg/5 ml solution every four to six hours as needed. (Id. ¶¶ 11-12.)

         Roxicet contains a mixture of the opioid oxycodone and acetaminophen, and is classified as a Schedule II controlled substance. (Id. ¶ 13.) As such, federal and state regulations require pharmacies to carefully inspect and “double-count” the drug, and to provide medication counseling before dispensing. (Id. ¶ 14.)

         CVS has implemented a series of safeguards to meet these standards, including a computerized “high-dose safety alert warning system, ” which requires an override before filling a prescription flagged with an alert. (Id. ¶¶ 7-8.) Nonetheless, on January 1, 2014, CVS mislabeled Sadie’s prescription with directions to take 2.5 to 3 teaspoons instead of milliliters, a measurement five times greater than prescribed. (Id. ¶¶ 20, 23.) The pharmacy also failed to provide medication counseling or a measuring device to either Sadie’s grandparents, who dropped off the prescription, or her parents, who picked it up later that day. (Id. ¶¶ 17, 19.)

         Following the instructions provided by CVS, Mrs. Holley administered five 2.5-teaspoon doses of Roxicet to Sadie every four to six hours. (Id. ¶ 22.) Approximately one hour after administering the last dose on January 2, Mrs. Holley heard Sadie make an “alarming ‘moaning’ noise.” (Id. ¶ 25.) Sadie had become unresponsive, and her eyes had “rolled back.” (Id.)

         By the time Mrs. Holley and her husband drove Sadie to the emergency room, Sadie had turned blue, her oxygen saturation had dropped dangerously low, and her pH level indicated “life-threatening acidosis.” (Id. ¶ 27.) Additionally, her Glasgow coma score was three, and she had defecated on herself. (Id.) Because of the severity of Sadie’s condition, emergency-room staff intubated Sadie before airlifting her to Duke University Medical Center. (Id.)

         During her recovery, Sadie became afraid of the shots necessary to her treatment. (Id. ¶ 29.) She would tell Mrs. Holley that she “knew she was dying, ” and that she “would rather die and go to heaven than take that medicine.” (Id.) Since her hospitalization, Sadie has made a reasonable recovery; however, Mrs. Holley remains fearful that Sadie could develop additional symptoms in the future. (Id. ¶ 30.)

         Mrs. Holley asserts that witnessing Sadie’s rapid decline and emergency treatment, coupled with the knowledge that she herself administered the medication, has led to “ongoing genuine hurt and mental anguish, . . . resulting in difficulty sleeping, ongoing fear for her daughter’s well-being, anxiety, and depression.” (Id. ¶ 29.) She also alleges that the emergency-room doctors’ shocked reactions and the “cool and accusatory” attitude expressed by CVS corporate management exacerbated these symptoms. (Id. ¶¶ 28, 31.) As a result, Mrs. Holley claims that CVS intentionally or recklessly acted in an outrageous and intolerable manner, which caused her severe emotional distress with physical inconvenience and other physical ramifications. (Id. ¶¶ 37, 39, 40.)

         CVS now moves to dismiss this claim under Rule 12(b)(6), contending that Mrs. Holley has failed to state a claim for intentional infliction of emotional distress. (Defs.’ Mot. 5, Dkt. No. 9.) Specifically, CVS argues that its actions did not rise to the level of “outrageousness” required for intentional infliction of emotional distress in Virginia, and that Mrs. Holley’s emotional distress was not severe. (Id. at 4-5.)


         A. Standard of Review

         A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of a plaintiff’s complaint to determine whether it has properly stated a claim. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). With regard to intentional infliction of emotional distress, the Supreme Court of Virginia has held that “a plaintiff must allege all facts necessary to establish a cause of action.” Jordan v. Shands, 500 S.E.2d 215, 219 (Va. 1998). “But unlike in Virginia, . . . a complaint in federal court need only provide ‘a short and plain statement of the [intentional infliction of emotional distress] claim showing that the pleader is entitled to relief’ under federal pleading rules.” Vaile v. Willick, No. 6:07-cv-00011, 2008 U.S. Dist. LEXIS 5111, at *12 (W.D. Va. Jan. 24, 2008) (quoting Fed.R.Civ.P. 8(a)(2)). Federal pleading rules require facial plausibility, a standard met by pleading “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When determining whether the plaintiff has met this standard, “a judge must accept as true all of the factual allegations contained in the complaint, ” Ericks ...

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