Recently, in Flint v Target Corp, No 09-5153, 2010 WL 272361 (6th Cir Jan 21, 2010), the Sixth Circuit Court of Appeals took up a case arising out of the Western District of Kentucky where a Target pharmacy was granted summary judgment in a case in which a customer alleged that he had negligently been given defective medication which caused him to have an allergic reaction. The plaintiff reported the reaction to Target and they confirmed that they had filled the prescription as prescribed using a generic drug. The customer brought suit, pro se, against Target based on theories of negligence and products liability, claiming that the drug was defective, that the pharmacy did not meet its duty of care, and that the pharmacy was negligent in using a cheaper, generic drug.
Target moved for summary judgment on both of the plaintiff's theories. The court held that under Kentucky law, pharmacists owe their customers the duty of care used by ordinarily skillful and prudent pharmacists under similar circumstances—in this case, to dispense the correct medication in accordance with the prescribing physician's instructions. The court ruled that Target had complied with that duty. The court also held it was not negligent to fill a prescription with a cheaper, generic drug. In fact, it was authorized by Kentucky statutory law. KRS § 217.822. The court further held that Target had no duty to investigate and test prescriptions before they are sold to customers.
As for the plaintiff's products liability claims, the Court of Appeals found that pharmacists in Kentucky are protected by the "middleman statute." KRS § 411.340. The "middleman statute" protects pharmacists where (1) the manufacturer is identified and subject to the court's jurisdiction, and (2) the product sold by the retailer was unaltered from its original manufactured condition. The court held that the two exceptions to the middleman statute, breach of express warranty or potential knowledge of the product's defective condition, did not apply in this case.