Arrington v. Walgreen

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 2, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-13549
Non-Argument Calendar
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D.C. Docket No. 6:09-cv-01300-GAP-KRS
NELLIE DARLENE ARRINGTON,
as Personal Representative for the Estate of
Ella Suvilla Church, Deceased,
lllllllllllllllllllll Plaintiff - Appellant,
versus
WALGREEN CO.,
an Illinois corporation,
lllllllllllllllllllll Defendant - Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(March 2, 2011)
Before PRYOR, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:

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Nellie Darlene Arrington (“Arrington”) appeals the district court’s grant of
summary judgment in favor of Walgreen Co. (“Walgreen”). Acting as personal
representative of her mother’s estate, Arrington brought this suit alleging that
Walgreen committed professional malpractice by filling a prescription for
medicine to which Arrington’s mother was allergic. The district court granted
summary judgment for Walgreen after concluding that Arrington’s action was
barred by Florida’s two-year statute of limitations governing professional
negligence claims. Fla. Stat. § 95.11(4). We agree and affirm.
We review de novo a district court’s grant of summary judgment, applying
the same legal standards as those employed by the district court. Miccosukee
Tribe of Indians v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009). Summary
judgment is appropriate when “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 only if sufficient evidence is presented
favoring the nonmoving party for a jury to return a verdict for that party.” Farley
v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999) (quotation
marks omitted). “In making this assessment, we review all facts and inferences
reasonably drawn from the facts in the light most favorable to the nonmoving
party.” Id.
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The facts in the light most favorable to Arrington are as follows. In
February 2006, Walgreen dispensed to Arrington’s mother a sulfa-based medicine
to which she was allergic. Walgreen was aware of Arrington’s mother’s allergy to
sulfa-based medicine, but nonetheless filled the medication, which Arrington then
picked up from the Walgreen pharmacy. Shortly after taking the medication,
Arrington’s mother suffered an allergic reaction that required, inter alia, her to be
admitted at Tampa General Hospital. While at Tampa General, Arrington learned
that her mother had been prescribed and dispensed a medicine to which she was
allergic, and furthermore learned that this medicine caused her mother’s injuries.
Arrington met with a lawyer some time in 2006, and thereafter commenced
an unrelated suit against the doctors who prescribed the contraindicated
medication. Arrington settled that suit on December 1, 2008. About the time that
Arrington settled her suit against the prescribing doctors, she learned that these
doctors never authorized Walgreen to dispense the contraindicated medicine.
This was the first time that Arrington had actual knowledge that Walgreen may
have engaged in professional negligence.
Arrington filed this suit on June 11, 2009, more than two years after she
became aware that the contraindicated medicine caused her mother’s injuries, but
less than two years after she had actual knowledge that Walgreen’s negligence
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may have contributed to those injuries. Thus, Arrington’s suit is timely only if the
statute of limitations did not begin until the day she had actual knowledge of
Walgreen’s alleged negligence.
Florida law provides that an action seeking to recover damages caused by
professional malpractice must be brought within two years. Fla. Stat. § 95.11(4).
This “period of limitations shall run from the time the cause of action is
discovered or should have been discovered with the exercise of due diligence.”
Fla. Stat. § 95.11(4)(a). Construing near identical language in the context of
medical malpractice, the Florida Supreme Court has explained:1
knowledge of the injury as referred to in the rule as triggering the statute
of limitations means not only knowledge of the injury but also
knowledge that there is a reasonable possibility that the injury was
caused by medical malpractice. The nature of the injury, standing alone,
may be such that it communicates the possibility of medical negligence,
in which event the statute of limitations will immediately begin to run
upon discovery of the injury itself. On the other hand, if the injury is
such that it is likely to have occurred from natural causes, the statute
will not begin to run until such time as there is reason to believe that
medical malpractice may possibly have occurred.
Medical malpractice claims are governed under Fla. Stat. § 95.11(4)(b), which similarly1
provides that causes of action must be brought “2 years from the time the incident giving rise to
the action occurred or within 2 years from the time the incident is discovered, or should have
been discovered with the exercise of due diligence.” On account of this similarity, we agree with
Walgreen that Florida’s interpretation of section 95.11(4)(b) informs our interpretation of section
95.11(4)(a).
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Tanner v. Hartog, 618 So. 2d 177, 181–82 (Fla. 1993) (footnote omitted).
Furthermore, as the Florida Court of Appeals has explained, “[a] plaintiff who
lacks actual knowledge of negligence is deemed to have constructive notice of the
contents of medical records that disclose a possibly negligent act.” Menendez v.
Public Health Trust, 566 So. 2d 279, 281 (Fla. 3d DCA 1990) (collecting cases).
In light of these holdings, we agree with the district court that Arrington’s
action is barred by Florida’s two-year statute of limitations. Arrington does not
dispute that the prescription was improper or whether she knew that the
prescription caused her mother’s injury. Indeed, the only information Arrington
did not know was whether Walgreen engaged in any negligent conduct in
dispensing the medication. But Arrington was aware that some negligence likely
occurred, and in fact met with an attorney and ultimately brought timely
malpractice claims against other potential tortfeasors. See Doe v. Hillsborough
Cnty. Hosp., 816 So. 2d 262, 265 (Fla. 2d DCA 2002) (collecting cases) (statute of
limitations commenced when plaintiff became aware of “some physical injury or
medical condition or event [that] had placed [her] in a posture where [she] could
reasonably have been expected to consider the need to examine [the defendant’s]
records.”). Under these circumstances, she thus had “reason to believe that
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[professional] malpractice may possibly have occurred,” and accordingly the
statute of limitations commenced at that time. Tanner, 618 So. 2d at 182.
There is no dispute that Arrington knew of the cause of her mother’s
injuries, suspected those injuries were proximately caused by negligence, and even
commenced her first lawsuit more than two years prior to commencing this suit
against Walgreen. As a result, the district court correctly concluded that no
genuine issue of material fact existed as to whether the Florida statute of
limitations barred her professional malpractice action.
AFFIRMED.
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