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Galloway v. Rand Pharmacy, Inc.

United States District Court, N.D. Illinois, Eastern Division

October 27, 2014

DAVID GALLOWAY, JENNY GALLOWAY, and DAVID GALLOWAY as Administrator of the Estate of CHRISTI GALLOWAY, Deceased, Plaintiffs,
v.
RAND PHARMACY, INC., f/k/a, ROOTS PHARMACY SOLUTIONS, INC.; KYLE ROOTSAERT; BETA PROPERTY ENTERPRISES, INC., d/b/a KRESGE-LEBAR PHARMACY; RUDY BYRON; ELIAS KARKALAS, UPPER MERION FAMILY PRACTICE, P.C.; and EUROMEDONLINE LIMITED, Defendants.

MEMORANDUM OPINION AND ORDER

EDMOND E. CHANG, District Judge.

This case arises out of the tragic death of a Georgia woman, Christi Galloway, from an overdose of prescription medication in May 2009. After her death, Galloway's estate and parents sued the online prescription drug service, pharmacies, pharmacists, and doctors through which she obtained the allegedly fatal medication, Carisoprodol.[1] Defendants now move for summary judgment on the remaining claims in the action, which allege professional malpractice in violation of Georgia law. For the reasons explained below, that motion is denied except as to Defendant Kyle Rootsaert, for whom the motion is granted.

I. Background

A. Relevant Facts

Christi Galloway died on May 18, 2009, at the age of 30. R. 193, DSOF ¶ 22; R. 5, Am. Compl. Count 1 ¶ 9.[2] The cause of death, according to the Cobb County Medical examiner was multiple drug toxicity. DSOF ¶ 23. Galloway's autopsy revealed several substances in her blood: Hydrocodone, Alprazolam, Meprobamate, and Carisoprodol. Id. ¶ 24. The crucial issue in this negligence action is the role of the last of these medications-and how she obtained and used it-in Galloway's death.

In order to obtain the Carisoprodol, which is also known by its trade name, Soma, Galloway had completed a questionnaire on a website operated by Defendant Euromedonline Limited, a marketing and referral service providing online ordering for prescription drugs. Id. ¶ 13; Am. Compl. Count 3 ¶ 2. On the basis of Galloway's online questionnaire, she received three separate prescriptions for, and shipments of, Carisoprodol. DSOF ¶¶ 12-13. Two of these originated with Defendant Beta Property Enterprises, a pharmacy located in Stroudsburg, Pennsylvania. Id. ¶ 14; Am. Compl. Count 4 ¶ 1. Beta Property sent two 150-tablet shipments, 350 milligrams per tablet, to Galloway, one on March 3 and the other on April 6, 2009. DSOF ¶¶ 15-16. These shipments were made to fill prescriptions authorized by Defendants Elias Karkalas, M.D., and Upper Merion Family Practice, P.C. DSOF ¶ 14; Am. Compl. Count 4 ¶ 2. The third shipment was sent to Galloway by Defendant Rand Pharmacy (which is owned by Defendant Kyle Rootsaert), which operated a pharmacy facility in Des Plaines, Illinois. DSOF ¶ 17; Am. Compl. Count 1 ¶ 1. This shipment was sent on April 24, 2009, and consisted of 90 350-mg Carisoprodol tablets. DSOF ¶ 18. The prescription for that order was authorized by Defendant Rudy Byron, M.D. Id. Neither Karkalas nor Byron examined Galloway in person before issuing their prescriptions. R. 203, PSOF ¶ 2.

In addition to these orders linked to Defendants, Galloway was prescribed Carisoprodol three other times in the six weeks or so before her death. Specifically, on April 14, 2009, Dr. Atauallah Arain issued her a prescription for 90 350-mg tablets. DSOF ¶ 19. On April 2 and May 13, 2009, Dr. Anthony Cabot authorized prescriptions for 30 tablets as well, to be taken once a day; the dosage of each of these particular tablets is not specified by the parties nor reflected in the record. Id. ¶¶ 20-21.

Galloway's body was discovered in the kitchen of her Atlanta apartment on May 18. R. 202-6, Medical Examiner's Report at 1. In the living room and kitchen, investigators found numerous empty prescription bottles for a range of muscle relaxants, pain medications, and anti-anxiety medications. Id. There were 18 medication bottles on the kitchen counter, including three empty bottles of Carisoprodol. Id. at 2; DSOF ¶ 26. Two Carisoprodol bottles were linked to Karkalas/Upper Merion and Beta Property, and the other bottle was linked to one of Cabot's prescriptions. Id. Two more prescription bottles were found in a living-room drawer, one of which was for Carisoprodola an was issued May 13 (which was the second of Cabot's prescriptions), and had 19 of 30 pills remaining. Medical Examiner's Report at 2; DSOF ¶ 26. A final Carisoprodol bottle, issued by Dr. Byron and Rand, was later found by Galloway's father as he was cleaning out the apartment ten days after her death; that bottle too was empty (it is not clear where in the apartment the bottle was found). DSOF ¶ 28; R. 202-15; David Galloway Aff. ¶¶ 1-3.

The medical examiner did not give an opinion about whether Carisoprodol contributed to Galloway's death, DSOF ¶ 25, and the parties contest this question.Def.'s Resp. PSOF ¶ 6. They also dispute which of the various prescriptions was the source of the Carisoprodol found in Galloway's body at the time of her death. See DSOF ¶ 36; Def.'s Resp. PSOF ¶¶ 8, 19, 24.

Add to the list of disputes whether Galloway had been taking the Carisoprodol at the prescribed intervals. Def.'s Resp. PSOF ¶ 7. Cabot, Galloway's orthopedic surgeon, had suspected that Galloway was drug-seeking before her death, and so Cabot eventually denied Galloway's request for even more pain medication for taking too much and not as prescribed. DSOF ¶ 29. If Galloway had followed the instructions accompanying Karkalas' March 3 and April 6 prescriptions (one tablet to be taken four to six times per day), the pills from the first would have been consumed by April 11 and the second before the date of her death. Id. ¶¶ 15-16, 34-35.

B. Procedural History

Galloway's estate and her parents filed suit in March 2011, asserting Georgia common-law wrongful death claims and alleging that Defendants had also violated Georgia's Racketeer Influenced and Corrupt Organizations (RICO) Act. R. 1, Compl. Euromedonline did not appear to defend the action, but the other Defendants moved to dismiss Plaintiffs' Amended Complaint. R. 35, 39, 61, 76, 81, Mots. Dismiss. This Court granted the motion only as to the RICO claims, holding that Plaintiffs had pled necessary facts to survive dismissal on claims that Defendants negligently prescribed and distributed medication to Galloway. R. 90-1, Order dated March 30, 2012 at 9-10. With discovery now completed, the Court considers whether these same claims survive a summary-judgment challenge.

II. Legal Standard

Summary judgment must be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating summary judgment motions, courts must view the facts and draw reasonable inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). The Court may not weigh conflicting evidence or make credibility determinations, Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011), and must consider only competent evidence of a type otherwise admissible at trial, Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). The party seeking summary judgment has the initial burden of showing that there is no genuine dispute and that they are entitled to judgment as a matter of law. Carmichael v. Village of Palatine, 605 F.3d 451, 460 (7th Cir. ...


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