United States District Court, W.D. Virginia, Danville Division
SADIE MAE HOLLEY, by and through her Mother and Next Friend, Sara B. Holley, et al., Plaintiffs
CVS CAREMARK CORPORATION, et al., Defendants.
Elizabeth K. Dillon United States District Judge
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.
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.
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. ¶
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.)
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.”
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.)
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.)
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,
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.)
Standard of Review
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 ...