IN THE FLORIDA SUPREME COURT

S. Ct. Case No.: CASE NO.: 3D05-2253

GARRETT DENT,

Petitioner/Plaintiff, vs.

DENNIS PHARMACY, INC.,

Respondent/Defendant. ______/

PETITONER’S JURISDICTIONAL BRIEF

Respectfully submitted,

David S. Wieder, Esq. Fla. Bar No.:153129 David S. Wieder, P.A. Hermelee & Geffin, LLC Counsel for Garrett Dent 25 S.E. 2nd Ave., Suite 1135 Miami, Florida 33131 Telephone: (305) 373-5444 Facsimile: (305) 373-0039

&

David Hagen, Esq. Fla. Bar No.: 158143 49 E. Flagler St., PH104 Miami, Florida 33131 Telephone:(305) 373-4200 Facsimile: (305) 403-4900 TABLE OF CONTENTS

TABLE OF CONTENTS ii

TABLE OF AUTHORITIES iii

OTHER AUTHORITIES iv

STATEMENT OF THE CASE AND FACTS 1

STATEMENT OF JURISDICTION 2

SUMMARY OF THE ARGUMENT 3

ARGUMENT 4

THE DISTRICT COURTS ARE IN DIRECT CONFLICT REGARDING WHETHER A PHARMACIST HAS A DUTY TO WARN CUSTOMERS OF DANGERS ASSOCIATED WITH A PRESCRIPTION DRUG. 4

THE DISTRICT COURTS ARE IN DIRECT CONFLICT REGARDING WHETHER RELIANCE IS A NECESSARY ELEMENT OF A VOLUNTARY UNDERTAKING CAUSE OF ACTION. 7

THE DISTRICT COURTS ARE IN DIRECT CONFLICT REGARDING WHETHER AN UNIDENTIFIED THIRD PARTY CAN FALL WITHIN A REASONABLE AND FORESEEABLE ZONE OF RISK. 8

THE THIRD DISTRICT COURT EXPRESSLY DECLARED VALID FLA. STAT. §465.003 AND FLA. ADMIN. CODE R. 64B16-27.820. 10

CONCLUSION 10

CERTIFICATE OF TYPE SIZE AND STYLE 11

CERTIFICATE OF SERVICE 12

ii TABLE OF AUTHORITIES

Arab Termite and Pest Control v. Jenkins, 409 So. 2d 1039 (Fla. 1982). 2

Cheeks v. Dorsey, 846 So. 2d 1169 (Fla. 4th DCA 2003). 9

Clay Electric v. Johnson, 873 So. 2d 1182 (Fla., 2003)______8

Estate of Sharp v. Omnicare, Inc., 903 So. 2d 275 (Fla. 5th DCA 2005). 5, 6

Johnson v. Walgreen Co., 675 So. 2d 1036 (Fla. 1st DCA 1996). 5, 10

Powers v. Thobani, 903 So. 2d 275 (Fla. 4th DCA 2005). 6

Pysz v. Henry’s Drug Store, 457 So. 2d 561 (Fla. 4th DCA 1984). 4, 5

Rosen v. Florida Insurance, 802 So. 2d 291 (Fla. 2001). 2

Sanderson v. Eckerd Corporation, 780 So. 2d 930 (Fla. 5th DCA 2001). 7

Your Druggist, Inc. v. Thobani, 2006 Fla. LEXIS 389 (Fla. 2006). 6

Vest v. Travelers Insurance, 753 So. 2d 1270 (Fla. 2000). 2

OTHER AUTHORITIES

Florida Constitution Art. V. 2, 10

Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv). 3, 10

Florida Administrative Code R. 64B16-27.820. 2, 3, 4, 10

iii Florida Statute §465.003. 2, 3, 4, 5, 10

iv STATEMENT OF THE CASE AND FACTS

Petitioner, GARRETT DENT, appeals the Third District Court’s decision affirming the dismissal with prejudice of Count III of Petitioner’s Amended

Complaint (“Complaint”). (App. 1-2). The Complaint alleged negligence against

Respondent, DENNIS PHARMACY, INC. (“Pharmacy”), for providing a negligent warning to a customer regarding the dangers associated with a particular narcotic. (App. 2). Petitioner’s negligence suit is premised on the voluntary undertaking doctrine. (App. 2).

The Complaint alleges that the Pharmacy provided a negligent warning to its customer. (App. 2), also alleging that the warning was negligent because it encouraged risky behavior: driving while under the influence of a narcotic, despite the fact that driving under the prescribed narcotic should not have been be encouraged. (App. 2). The Complaint also contends that the customer, subsequent to receiving the negligent warning, caused an accident while under the influence of the narcotic. (App. 2). The petitioner was tragically injured during the accident.

(App. 2).

The Third District issued its opinion on March 29, 2006. (App. 1). The court’s opinion regarding the voluntary undertaking doctrine affirmed the trial court’s decision for three reasons: Firstly, the court held that a Pharmacy is legally obligated to provide a warning to its customers regarding a prescribed medication’s

1 side effects and thus, the pharmacy is not liable pursuant to the voluntary undertaking doctrine because the pharmacy did not act voluntarily. (App. 4-5).

According to the Third District, the Florida Statutes and the Florida Administrative

Code required the Pharmacy to warn its customers regarding dangers associated with a prescription drug.

Secondly, the court held that the complaint was deficient for failing to allege that the Pharmacy’s customer relied upon the negligent warning when deciding to drive. (App. 5). Finally, the court held that extending the Pharmacy’s duty of care to include Petitioner, an unidentified third party, was too generous an extension of the duty. (App. 5).

STATEMENT OF JURISDICTION

This Court has discretionary jurisdiction to review a district court’s decision which expressly and directly conflicts with a decision of another district court on the same issue of law. Fla. Const. Art. V. Decisional conflict may be created by a conflict in decisions by the district courts, through legal principles appearing on the face of the decision. See Rosen v. Florida Insurance, 802 So. 2d 291 (Fla. 2001);

Vest v. Travelers Insurance, 753 So. 2d 1270 (Fla. 2000); Arab Termite and Pest

Control v. Jenkins, 409 So. 2d 1039 (Fla. 1982).

This court, furthermore, has discretionary jurisdiction to review a district court’s opinion that expressly declares valid a Florida Statute. Fla. Const. Art. V.

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SUMMARY OF THE ARGUMENT

Petitioner seeks this Court’s discretionary jurisdiction pursuant to Fla. R. of

App. P. 9.030(a)(2)(A)(iv). Specifically, Petitioner contends that the Third District

Court’s opinion in the present case is in conflict with several opinions from the

First, Fourth, and Fifth District Courts of Appeal. Firstly, the district courts are in direct conflict regarding whether a pharmacist has a duty to warn customers of dangers associated with a prescription. Secondly, the district courts are in direct conflict regarding whether reliance is a necessary element of a voluntary undertaking cause of action. Thirdly, the district courts are in direct conflict regarding whether an unidentified third party can fall within a reasonable and foreseeable zone of risk.

Also, Petitioner seeks this Court’s discretionary jurisdiction pursuant to Fla.

R. of App. P. 9.030(a)(2)(A)(i). The Third District’s opinion expressly declares valid Fla. Stat. §465.003 and Fla. Admin. Code R. 64B16-27.820.

3 ARGUMENT

A. THE DISTRICT COURTS ARE IN DIRECT CONFLICT

REGARDING WHETHER A PHARMACIST HAS A DUTY TO

WARN CUSTOMERS OF DANGERS ASSOCIATED WITH A

PRESCRIPTION.

In the present case, the Third District’s decision held that a pharmacist can- not be liable pursuant to the voluntary undertaking doctrine because “the pharmacy undertook no voluntary duty.” (App. 4). The court relied on Fla. Admin. Code R.

64B16-27.820(1)(d), (e) (2006) and Fla. Stat. § 465.003(6) as authority for the proposition that a pharmacist is required by law to consult with its customer. (App.

4-5). The opinion expressly states that the “Third Amended Complaint alleges only that the pharmacy gave the required consultation. It does not allege any voluntary undertaking above what was required of it.” (App. 5).

The Third District’s conclusion that a pharmacy is legally required to give warning is in direct conflict with the Fourth District’s decision in Pysz v. Henry’s

Drug Store, 457 So. 2d 561 (Fla. 4th DCA 1984). Specifically, the Court, in Pysz, refused to extend a pharmacist’s duty of care to include a duty to warn a customer of the dangerous propensities of a drug prescribed by a licensed physician. Id. at

562. The Court refused to extend such a duty despite acknowledging that a pharmacist may have greater knowledge of a drug’s propensity than a physician.

4 Id. at 562. Thus, the Fourth District Court’s conclusion that a pharmacist has no duty to warn a customer is in direct conflict with the Third District’s conclusion that a pharmacist is legally required to give warning regarding medication.

The Third District’s conclusion is also in direct conflict with the First

District’s decision in Johnson v. Walgreen Co., 675 So. 2d 1036 (Fla. 1st DCA

1996) and with the Fifth District’s decision in Estate of Sharp v. Omnicare, Inc.,

903 So. 2d 275 (Fla. 5th DCA 2005). In Johnson, the First District held that a pharmacist is not liable for failing to warn a customer regarding potential adverse drug interactions that could have been caused by a combination of prescribed medications. Johnson, 675 So. 2d at 1037 (Fla. 1st DCA). The court expressly determined that under Florida law, a pharmacist has no duty to warn a patient regarding adverse drug interactions. Id. at 1037.

Johnson further evinces the extent of the conflict between the First District decision in that case and the Third District’s decision in the present case. In

Johnson, the court’s decision analyzes the same provision of Fla. Stat. §465.003 that was relied upon by the Third District in the present case. Id. at 1038 Unlike the Third District, the First District refused to interpret the language as imposing a legal obligation on a pharmacist. The First District came to this result despite also acknowledging that “a pharmacist may be in the best position to identify potential danger.” Id. at 1038.

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In Estate of Sharp, the Fifth District explained that “the Florida Supreme

Court has sharply limited the duties that a pharmacist owes to his or her customers.

The high court has chosen not to make a pharmacist liable for duties that are ordinarily owed by a physician or caretaker to the patient. It is the physician who has the duty to know the drug that he is prescribing and to properly monitor the patient.” Estate of Sharp, 903 at 275 (Fla. 5th DCA 2005). Thus, the Fifth

District’s conclusion that a pharmacist has no duty to warn is in direct conflict with the Third District’s conclusion in the present case that a pharmacist is legally required to provide a patient with a warning.

Moreover, the Fourth District, in Powers v. Thobani, 903 So. 2d 275 (Fla. 4th

DCA 2005), recently distinguished a set of facts from its decision in Pysz. The

Fourth District Court certified, to this Court, the very conflict which Petitioner is asserting. Id. at 280. On or about March 3, 2006, this Court accepted jurisdiction of the Powers case. Your Druggist, Inc. v. Thobani, 2006 Fla. LEXIS 389 (Fla.

2006).

We respectfully ask this Court exercise its jurisdiction because there is a direct conflict between the district courts of appeal regarding whether a pharmacist has a duty to warn customers of dangers associated with a prescription.

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B. THE DISTRICT COURTS ARE IN DIRECT CONFLICT

REGARDING WHETHER RELIANCE IS A NECESSARY

ELEMENT OF A VOLUNTARY UNDERTAKING CAUSE OF

ACTION.

In the present case, the Third District’s decision held that the Third

Amended Complaint failed to allege that the Pharmacy’s customer relied upon the

Pharmacy’s warning. (App. 5). The court cited the Fifth District’s decision in

Sanderson v. Eckerd Corporation, 780 So. 2d 930 (Fla. 5th DCA 2001) as authority for the proposition that the Complaint was defective for failing to allege reliance by the customer on the pharmacy’s warning. (App. 5).

The Third District’s decision in the present case is in direct conflict with the

Fifth District’s decision in Sanderson. In Sanderson, the court explained the voluntary undertaking doctrine and that explanation shows that reliance is not a necessary element. Id. at 932. According to the Fifth District, a person is liable for failing to exercise reasonable care if “(a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” Id. at 932. Thus, Fifth District and Third District are in conflict because the Fifth District does not require a

7 plaintiff to plead reliance to adequately assert a cause of action pursuant to the voluntary undertaking doctrine.

A plaintiff need not plead reliance where subsection (a) or (b) are present because one need allege only one prong of the subsections (a, b, or c) to assert the cause of action. Petitioner, at the Third District Court, explained that the theory of liability was pursuant to subsection (a) and not (c). See also Clay Electric

Cooperative, Inc. v. Johnson, 873 So.2d 1182 (Fla., 2003).

This Court should exercise its jurisdiction because there is a direct conflict between the district courts of appeal regarding whether reliance is a necessary element of a voluntary undertaking cause of action.

C. THE DISTRICT COURTS ARE IN DIRECT CONFLICT

REGARDING WHETHER AN UNIDENTIFIED THIRD PARTY CAN

FALL WITHIN A REASONABLE AND FORESEEABLE ZONE OF

RISK.

The Third District begins its analysis by analyzing negligence on a general level. (App. 3). As apart of that analysis, the court emphasizes that extending liability to unidentified third parties creates a zone of risk impossible to define.

(App. 3-4). However, later in the opinion, the court concedes that the undertaking of a voluntary “act forseeably broadens the zone of risk to include unidentified third parties.” (App. 4).

8 Although the Third District’s negligence analysis claims a person’s duty of care would be impossible to define if the zone of risk were extended to include unidentified members of the driving public, such a conclusion is in direct conflict with the Fourth District’s opinion in Cheeks v. Dorsey, 846 So. 2d 1169 (Fla. 4th

DCA 2003).

In Cheeks, the Fourth District reversed an order granting summary judgment because the court held that there were issues of fact regarding whether a methadone clinic could be liable to non-identified members of the driving public when the clinic negligently administered methadone to a patient. Id. at 1173-1174.

The court held that the clinic may be liable if it were shown that the “doctor either acted in bad faith or beyond the scope of his practice in administering the methadone.” Id. at 1173. The Third District’s conclusion, that holding the pharmacy liable for injuries sustained by unidentified third parties creates a zone of risk that is too broad, is in direct conflict with the Fourth District’s opinion in

Cheeks because the Fourth District concluded that a doctor may be liable for injuries sustained by an unidentified third party.

This Court should exercise its jurisdiction because there is a direct conflict between the district courts of appeal regarding whether an unidentified third party can fall within a reasonable and foreseeable zone of risk.

9 D. THE THIRD DISTRICT COURT EXPRESSLY DECLARED VALID

FLA. STAT. §465.003 AND FLA. ADMIN. CODE R. 64B16-27.820.

As previously explained, the Third District, in the present case, relied upon

Fla. Stat. §465.003 and Fla. Admin. Code R. 64B16-27.820 when concluding that a pharmacy is under a legal obligation to provide a warning to its customers. The court then swept aside petitioner’s voluntary undertaking cause of action explaining that the cause of action cannot be alleged against the pharmacy because it had a legal obligation to provide a warning. This also represents an additional conflict with Johnson v. Walgreens, supra. As the pharmaceutical regulatory statute does not create an independent cause of action. Thus, the Third District’s opinion in the present case expressly declares valid Fla. Stat. §465.003 and Fla.

Admin. Code R. 64B16-27.820 and, therefore, this court should exercise its jurisdiction to resolve the issue.

CONCLUSION

Based on the foregoing, Petitioner respectfully seeks this Court’s jurisdiction pursuant to Fla. Const. Art. V. and Fla. R. App. P. 9.030 and requests that this

Court (1) accept jurisdiction, (2) establish a briefing schedule on the merits; and

(3) quash the decision of the Third District Court of Appeal in the present case.

10 CERTIFICATE OF TYPE SIZE AND STYLE

I hereby certify that the size and style of type used in this brief is 14 pt.

Times New Roman.

By: David S. Wieder, Esq. Fla. Bar No.:153129 Hermelee & Geffin, LLC Counsel for Garrett Dent 25 S.E. 2nd Ave., Suite 1135 Miami, Florida 33131 Telephone: (305) 373-5444 Facsimile: (305) 373-0039

&

David Hagen, Esq. Fla. Bar No.: 158143 49 E. Flagler St., PH104 Miami, Florida 33131 Telephone:(305) 373-4200 Facsimile: (305) 403-4900

11 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was served via U.S. Mail and Facsimile this ____ day of May, 2006 to ROBERT S.

HORWITZ, ESQ., Schwartz & Horwitz, P.A., 3301 NW Boca Raton Boulevard,

Suite 200, Boca Raton, Florida 33431.

By: David S. Wieder, Esq. Fla. Bar No.:153129 Hermelee & Geffin, LLC Counsel for Garrett Dent 25 S.E. 2nd Ave., Suite 1135 Miami, Florida 33131 Telephone: (305) 373-5444 Facsimile: (305) 373-0039

&

David Hagen, Esq. Fla. Bar No.: 158143 49 E. Flagler St., PH104 Miami, Florida 33131 Telephone:(305) 373-4200 Facsimile: (305) 403-4900

12