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Bender v. Walgreen Eastern Co.

April 21, 2008

MICHAEL BENDER, PLAINTIFF-APPELLANT,
v.
WALGREEN EASTERN CO., INC.,*FN1 DEFENDANT-RESPONDENT, AND DR. STANLEY KNEP, DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2022-06.

The opinion of the court was delivered by: Grall, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued April 8, 2008

Before Judges Coburn, Fuentes and Grall.

Plaintiff Michael Bender did not comply with the affidavit of merit statute, N.J.S.A. 2A:53A-27. On that ground, the trial court dismissed a complaint in which Bender alleged that defendant Walgreen Eastern Co., Inc. (Walgreens) breached its duty of care by giving him "Prednisone" when he presented a prescription for "Primidone." Plaintiff appeals from that final order.*fn2 We hold that the breach of duty alleged -- filling a prescription with the wrong drug -- falls within the "common knowledge" exception to the affidavit of merit statute recognized by the Supreme Court in Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387 (2001). Accordingly, we reinstate that claim and remand for further proceedings.

Bender filed the complaint on May 5, 2006. On December 14, 2006, Walgreens moved to dismiss the complaint for failure to serve an affidavit of merit. Bender filed a response and cross-motion asserting that the affidavit of merit statute did not apply because Walgreens is not a "licensed person" and, in the alternative, requesting a sixty-day extension for filing. An order extending the time for filing for an additional sixty days was filed on January 19, 2007. That order does not address Bender's contention that an affidavit of merit was not required. On March 12, 2007, the parties, who had been conducting discovery, agreed to extend the original end date to June 17, 2007.

Walgreens filed a second motion to dismiss on April 5, 2007. Bender's attorney gave Walgreens an affidavit of merit on April 20, 2007. In response to Walgreens' second motion to dismiss, Bender's attorney submitted the untimely affidavit of merit but argued it was unnecessary in this "common knowledge" case.

Although the trial court concluded that Bender should have raised the "common knowledge" doctrine in response to Walgreens' first motion to dismiss, the court addressed the merits. In the opinion of the licensed pharmacist who prepared the affidavit of merit, Walgreens' delivery of a medication different than the medication actually prescribed was a "substantial departure" from acceptable professional standards. The expert pointed to additional "possible departures" involving failure to provide literature describing the medication delivered and failure to inquire of the doctor who prescribed an unusually high dosage of the medication Walgreens delivered. The trial court determined that expert testimony was required to establish each of the deviations recited by the expert and dismissed Bender's complaint for failure to provide a timely affidavit of merit.

An affidavit of merit is not required in a case where the "common knowledge" doctrine applies and obviates the need for expert testimony to establish a deviation from the professional's standard of care. Hubbard, supra, 168 N.J. at 390. "[T]he purpose of the [affidavit of merit] statute [is] to weed out frivolous lawsuits early in the litigation while, at the same time, ensuring that plaintiffs with meritorious claims will have their day in court." Id. at 395. To that end, "the statute requires plaintiffs to provide an expert opinion, given under oath, that a duty of care existed and that the defendant breached that duty." Id. at 394. In a "common knowledge" case, expert opinion is not required to establish the duty or its breach. Ibid. For that reason, expert opinion is not needed to "weed out" claims that lack probable merit. Id. at 395.

The "common knowledge" doctrine applies where "jurors' common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without the benefit of the specialized knowledge of experts." Id. at 394 (internal quotations omitted). "The doctrine . . . is appropriately invoked when the 'carelessness of the defendant is readily apparent to anyone of average intelligence and ordinary experience.'" Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 469-70 (1999) (quoting Rosenberg ex rel. Rosenberg v. Cahill, 99 N.J. 318, 325 (1985)). Our courts have utilized the doctrine in circumstances involving obvious errors: a dentist's extraction of the wrong tooth, Hubbard, supra, 168 N.J. at 396; the erroneous hookup of equipment that resulted in the pumping of gas, rather than the fluid that ought to have been used, into the patient's uterus, Chin, supra, 160 N.J. at 460, 471; and the use of caustic solution, rather than the soothing medication intended, to treat a patient's nose after surgery, Becker v. Eisenstodt, 60 N.J. Super. 240, 242-46 (App. Div. 1960).

We are unable to distinguish the error of substitution in this case -- a pharmacist's filling a prescription with a drug other than the one prescribed -- from the errors our courts have found sufficiently careless to be "readily apparent to anyone of average intelligence and ordinary experience." Chin, supra, 160 N.J. at 469-70 (internal quotations omitted). The deviation by a pharmacist who provides a drug different than the one prescribed is as clear as the deviation of a dentist who pulls the wrong tooth. In a different context, our Supreme Court has recognized the obvious nature of such a deviation. See In re Heller, 73 N.J. 292, 306 (1977) (listing instances of unprofessional conduct by pharmacists so "inherently wrong and obviously 'unprofessional'" as to permit punishment without a specific regulation).

Courts of other states, applying doctrines similar to the "common knowledge" doctrine formulated by our courts, have held that a jury does not need expert testimony to determine whether a pharmacist who fills a prescription with the wrong drug deviates from "acceptable professional" standards. In Sparks v. Kroger Co., 407 S.E.2d 105, 106 (Ga. Ct. App. 1991), the court recognized the claim that a pharmacist provided the wrong drug as one involving "clear and palpable negligence" that would not require expert testimony at trial. See id. at 107 (following prior precedent and, on that basis, holding that an affidavit of merit is required even in cases of clear and palpable negligence). In Walter v. Wal-Mart Stores, Inc., 748 A.2d 961, 972 (Me. 2000), the Court concluded that an allegation of negligence on the part of a pharmacist who filled a prescription with the wrong drug was within the "common knowledge" of jurors and did not require expert testimony.

We agree with the courts of Georgia and Maine. "It does not take an expert to know that filling a prescription with the wrong drug . . . is negligence." Ibid. The carelessness involved is "readily apparent to anyone of average intelligence and ordinary ...


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