Patricia Copening was hammered on painkillers when she ran down and killed Gregory Sanchez who was fixing a flat tire on the side of the road. Thirteen Las Vegas pharmacies filled 4500 prescriptions for hydrocodone and SOMA for Copening during a 12 month period. The 13 pharmacies had received letters from Nevada’s Prescription Controlled Substance Abuse Prevention Task Force flagging Copening’s prescription filling activities.
Sanchez’s family filed suit asserting that after receiving the notices, in place of taking steps to protect the public, the pharmacies instead kept right on blithely filling Copening’s prescriptions.
The pharmacies said they owed no statutory duty to take action after receiving the Task Force letters. The district court agreed, analogizing to Nevada’s dram shop cases where the legislature imposes no duty on bartenders who keep on serving drunken customers. The Sanchezes appealed.
No to the Questions Presented.
Well in response to the 2 issues presented, the Nevada Supreme Court gave the pharmacies an early Christmas gift ruling in their favor when on December 24th, they said “No” to both of the following questions:
(1) Whether a pharmacy owes a duty of care to unidentified third parties who were injured by a pharmacy customer who was driving while under the influence of controlled prescription drugs and;
(2) Whether Nevada’s pharmacy statutes and regulations create a statutory duty allowing third parties to maintain a negligence per se claim against the pharmacies.
“I was just over-served.”
I’ve been following this case because hope springs eternal in a plaintiff lawyer’s heart. And while I’d hoped for the best for the Sanchezes, I wasn’t surprised by the ruling.
For one thing, Nevada is one of the last holdouts to enact a dram shop liability law or as singer Glen Campbell famously said after his 2004 arrest. “I wasn’t really that drunk. I was just over-served.” See Glen Campbell’s Unique DWI Excuse.
Well just like Glen Campbell couldn’t blame the bartender for his DWI, in Nevada, you can’t blame a Nevada drinking establishment for your subsequent negligence once you leave the bartender’s liquid embrace.
Think what that would do to the all the hospitality, gaming and tavern owners in Nevada! “What happens in Vegas, stays in Vegas,” after all. You can’t say the state legislature didn’t know what it was doing in Nevada. Conversely, most other states have some version of a dram shop liability statute holding a drinking establishment liable if the blotto patron they’ve been pouring booze into drives off, runs over, and kills a third party.
The meaning is plain.
It’s no stretch to say Coperning was “over-served” by the 13 pharmacies. The Task Force said as much. And even though the plaintiffs gamely tried analogizing dram shop liability in the Sanchez case, the Supreme Court chose not to go there. Why? Because it said it didn’t have to. The Nevada Supreme Court expressly said the district court had no reason to invoke Nevada dram shop cases.
Instead, the Supreme Court based its reasoning on its plain meaning interpretation of the relevant Nevada statute at the time of the motor vehicle accident. That version of the statue inexplicably and nonsensically did not require pharmacies to do anything with the Task Force notices of continuous prescription refills by a patient. 
The Supreme Court said, “Further, nothing in NRS 453.1545 requires pharmacies to take action to protect the general public after receiving a Task Force letter. Thus, based on the statute’s plain language, it is evident that the Legislature did not intend to create a policy that requires pharmacies to protect third parties from a pharmacy customer’s actions.” See Sanchez v. Wal-Mart Stores.
In Nevada, if a 13th tavern on a Baker’s Dozen pub crawl receives notice that the inveterate pub crawler is soused, the 13th bar owner need not do a thing with that information either — other than to serve him up another barley pop. And by the same logic, after your 4,500th stupefying prescription painkiller refill, it’s O.K. for the pharmacist to draw up another order of painkillers as it’s belly up, belly up to the bar, boys!
Dissenters take notice of notice.
Fortunately, to their credit, the dissenting Nevada Supreme Court justices did make note that the Task Force letters should have meant something, if nothing else, but to prompt the pharmacies to take action based on “inquiry notice that continuing to fill Copening’s prescriptions…could result in harm to herself or others.” As Dr. Phil likes to say, “Why, that ought to be the first page of the “Duh” manual.”
Besides ignoring the obvious problem of what to do about the Task Force notices, the Supreme Court also disregarded the problem of foreseeability. In fairness, they felt they didn’t have to address it since they argued there wasn’t a special relationship between the pharmacies and any third parties to establish a duty of care. Therefore, the Court decided not to talk about the 800 lb. gorilla of foreseeability.
Parenthetically, there’s no pharmacy strict liability ever – – – even for dangerous drugs.
Now to take a parenthetical digression, ever since law school when I first read the strict liability case involving abnormally dangerous activities, Rylands v. Fletcher  LR 3 HL 330, the concept of strict liability has baffled me in its illogically consistent application over time. Not for lack of trying but the plaintiffs’ bar has been unsuccessful over the years in trying to impose any type of tort theory of strict liability on pharmacies.
Where courts cut off the chain of liability too often seems not so much a question of the dangers involved but of the burdens a court believes are likely to be placed on society. For example, the same year as Rylands, in Losee v. Buchanan, 5I N. Y. 476, the court based its reasoning on the greater good, to wit, that to promote economic development, some rights have to be sacrificed.
And a few years after Rylands, still other courts began assessing the societal threats posed by Rylands. In Brown v. Collins, 53 N.H. 442, 448 (1873) that court repudiated strict liability theory because it would serve as “an obstacle in the way of progress and improvement.”
Costs on society?
Admittedly, Rylands is an old case. But it is the seminal case on strict liability and still holds sway albeit within its fettered limitations. It’s no stretch, then, that in an era of over-priced prescription drugs and runaway healthcare costs, imposing a third party liability burden on pharmacies in Nevada could exponentially raise consumer costs in the state.
But it being the 21st century, you won’t be seeing such nineteenth century pro-economic development arguments in any opinion. After all, society and its laws have a justifiably more pronounced consumer bent since the nineteenth century.
Still it’s hard to abandon completely the notion that to subsidize industry and weigh the adverse effects on society, matters aren’t going to be weighed in a vacuum. For example, I doubt that the legislature’s going to enact a dram shop law anytime soon in Nevada, especially in the middle of a recession.
Finally, there was no question the pharmacies were concerned about the Sanchez suit. And so it was with predictable relief, that Christmas came early for them. See Case Spurs Pharmacies‘ Fears of Lawsuits Over Drug Abuse – WSJ.com.
 A 2006 Nevada Pharmacy Board revision to the applicable regulation arguably imposes a conditional duty running to third parties. See NAC 639.753.