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Scott Simon, An Incompetent, By His Guardian Ad Litem, Daniel P. Mecca, and Arnold Simon, Individually v. Harding Pharmacy

October 17, 2012

SCOTT SIMON, AN INCOMPETENT, BY HIS GUARDIAN AD LITEM, DANIEL P. MECCA, AND ARNOLD SIMON, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
HARDING PHARMACY, INC., T/A M&C DRUG, INC., MYRON LESH, JAMES CORDIROLI, MARC MALAJIAN, RICHARD G. MALAJIAN, BONNIE E. MALAJIAN, DONNIE NUCKEL, ALAN ROTHBERG, VINCE MANELLA, ERNIE DEFIORE, ANDREA KASS-DEFIORE, MISHA KANG, TED KRAUS, TERRY SANDERS, MICHAEL TRISCHETTA, ERICA PISCITELLI, JASON ELIYA, AND KALEIGH SOSEBEE, DEFENDANTS, AND KINRAY INCORPORATED, DEFENDANT-RESPONDENT, AND M&C DRUG, INC. T/A HARDING PHARMACY; MYRON LESH AND JAMES CORDIROLI, THIRD-PARTY PLAINTIFFS,
v.
ARNOLD SIMON, DONALD NUCKEL; LINDA NUCKEL; DONNIE NUCKEL; SARA ENTWISTLE; KALEIGH SOSEBEE; ERICA PISCITELLI; MIA MARTINEZ; MICHAEL TRISCHETTA; JASON ELIYA; KINRAY INCORPORATED; PKT FASHIONS, LLC; RAMIRO VENCES; QUINCY MUTUAL AND FIRE INS. CO., THIRD-PARTY DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5205-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 11, 2012

Before Judges Reisner, Yannotti and Hoffman.

Plaintiffs Scott Simon and Arnold Simon appeal from an August 12, 2011 order granting summary judgment in favor of defendant Kinray, Inc. (Kinray).*fn1 We affirm.

I

We begin by summarizing the most pertinent undisputed facts. Since 1996, Harding Pharmacy (Harding) purchased prescription drugs, including controlled dangerous substances (CDS) such as Xanax, from Kinray, a large-scale drug wholesaler and distributor. One of Harding's owners, Myron Lesh, hired Marc Malajian as a clerk in the pharmacy despite knowing that Malajian had prior drug addiction issues. Harding, while required by state and federal statutes and regulations to secure CDS from diversion, was lax in implementing those requirements.

For example, the pharmacy's secure cabinet, intended for storage of Schedule II CDS, was not kept locked, and customers often walked behind the pharmacy counter where CDS were also stored. A later audit of Harding by the Federal Drug Enforcement Agency (DEA) noted at least ninety-two regulatory violations. However, none of those violations involved any alleged wrongdoing by Kinray.

Sometime in early 2007, the DEA advised Lesh that Malajian was suspected of stealing CDS from the pharmacy. However, even after receiving this information, Lesh did not change Malajian's duties or limit his access to CDS within the pharmacy. Lesh testified at his deposition that the DEA asked him not to reassign Malajian, in order to allow the agency to continue its investigation and possibly catch him in the act of theft. Harding failed to notify Kinray about the DEA's investigation.

On September 22, 2007, Malajian stole a partially-full, open bottle of Xanax from a shelf in the pharmacy department. Later that evening, Malajian went to a party at his friend Scott Simon's house. There, Malajian gave seventeen-year-old Scott*fn2 the stolen Xanax, even though he observed that Scott seemed "messed up" and despite knowing Scott's reputation for getting "a little crazy [with drugs] at times." The party, which was attended by dozens of teenagers, was loud, and an adult on the premises told Scott to shut the party down.*fn3 Instead of complying, Scott arranged to move the party to another teenager's house; that teen's parents were not at home, and the unsupervised revelry continued into the early hours of September 23, 2007.

The next morning, Malajian found Scott lying unresponsive, with shallow breathing and blue-tinged skin. Instead of calling an ambulance, Malajian called a friend, who, unable to resuscitate Scott, drove him to the hospital. Scott was eventually revived, but suffered catastrophic injuries that left him in a coma.

Plaintiffs filed suit against Kinray, Harding, Harding's owners, Malajian, and numerous other parties. Plaintiffs settled or otherwise resolved their claims against all of the defendants except Kinray.

Kinray filed a summary judgment motion, which Judge Rachelle L. Harz granted, stating her reasons in a written opinion filed on August 16, 2011. Citing Piscitelli v. Classic Residence by Hyatt, 408 N.J. Super. 83 (App. Div. 2009), Judge Harz concluded that Kinray owed no common law duty to Scott, a third party with whom it had no special relationship. She also reasoned that state and federal statutes did not impose upon Kinray a legal duty that plaintiffs could enforce in a tort ...


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