                                                                                                           ACCEPTED
                                                                                                      03-14-00765-CV
                                                                                                             4730228
                                                                                            THIRD COURT OF APPEALS
                                                                                                       AUSTIN, TEXAS
                                                                                                  4/1/2015 2:36:17 PM
                                                                                                    JEFFREY D. KYLE
                                                                                                               CLERK
                                           NO. 03–14–00765–CV
                                       IN THE COURT OF APPEALS
                                                                         FILED IN
                                   FOR THE THIRD DISTRICT OF TEXAS 3rd COURT OF APPEALS
                                               AT AUSTIN               AUSTIN, TEXAS
                                                                             4/1/2015 2:36:17 PM
                                                                               JEFFREY D. KYLE
                                         NANCY JO RODRIGUEZ,                         Clerk

                                                          APPELLANT,
                                                     V.
        THE WALGREEN COMPANY AND SARA ELIZABETH MCGUIRE,
                                                          APPELLEES.

                                   On Appeal from the 419th District Court
                                          Travis County, Texas


                                     REPLY BRIEF OF APPELLEES


                                                   JUDITH R. BLAKEWAY
                                                   State Bar No. 02434400
                                                   judith.blakeway@strasburger.com
                                                   CYNTHIA DAY GRIMES
                                                   State Bar No. 11436600
                                                   Cynthia.Grimes@strasburger.com
                                                   STRASBURGER & PRICE, LLP
                                                   2301 Broadway
                                                   San Antonio, Texas 78215
                                                   (210) 250-6003 Telephone
                                                   (210) 258-2706 Facsimile

                                                   ATTORNEYS FOR APPELLEES




1795069.1/SPSA/87282/0138/040115
                                                   Table of Contents

Table of Contents ...................................................................................................... ii

Table of Authorities ................................................................................................. iii

Argument.................................................................................................................... 1

          I.         Mr. Hardy’s opinion is speculative and conclusory. ............................. 1

          II.        Mr. Hardy’s report fails to distinguish between multiple
                     defendants. ............................................................................................. 2

          III.       Dr. Breall’s report does not cure the deficiencies in Mr. Hardy’s
                     report...................................................................................................... 2
          IV.        Mr. Hardy is not qualified as a practicing pharmacist. ......................... 4

Conclusion ................................................................................................................. 5

Certificate of Service ................................................................................................. 6
Certificate of Compliance .......................................................................................... 6




                                                                 ii
1795069.1/SPSA/87282/0138/040115
                                      Table of Authorities

                                                                                              Page(s)
STATUTES
TEX. CIV. PRAC. & REM. CODE § 74.402(a)(2) ........................................................... 4

TEX. CIV. PRAC. & REM. CODE § 74.402(b)(1) ........................................................... 4




                                                  iii
1795069.1/SPSA/87282/0138/040115
                                     Argument

I.        Mr. Hardy’s opinion is speculative and conclusory.
          When confronted with the undisputable problem that there is nothing in

Mr. Hardy’s report establishing that Walgreen or McGuire were ever informed of

Dr. Kessler’s advice to stop Pradaxa, Ms. Rodriguez abandons her argument that

Walgreen continued to dispense Pradaxa after the prescribing physician indicated it

should be discontinued. Instead, she now argues that Walgreen and McGuire were

at fault because they failed to verify with the prescribing physician that the

prescription for Pradaxa should be continued. Reply Brief at 8. This,

Ms. Rodriguez says, fixes the problem that there is nothing in Mr. Hardy’s report

indicating that Walgreen and McGuire were ever aware that Dr. Kessler

recommended that Pradaxa be discontinued. Reply Brief at 8–9.

          But this new theory does nothing to cure the speculative nature of

Mr. Hardy’s report. Instead of relying on the assumption that Walgreen and

McGuire were aware of Dr. Kessler’s advice to discontinue Pradaxa, the report

now instead relies upon the unstated assumptions that Dr. Goswami––the

prescribing physician––knew of Dr. Kessler’s advice when the prescription was

refilled and would have told Walgreen not to refill it. Yet, there is nothing in

Mr. Hardy’s report that even remotely supports the speculation that had Walgreen

or McGuire contacted Dr. Goswami at the time of the initial prescription on



1795069.1/SPSA/87282/0138/040115
February 14, 2012 or when the prescription was refilled on March 16, 2013,

Dr. Goswami was aware of Dr. Kessler’s recommendation or would have

communicated it to Walgreen or McGuire. His report is simply silent on these

critical facts. Otherwise put, the report now relies on the speculation that

Goswami––rather than Walgreen or McGuire––knew of Dr. Kessler’s advice and

the further conjecture that had Walgreen called him or his office, that advice would

have been accurately conveyed to Walgreen before Walgreen filled the

prescription. There are simply no facts in the report supporting those assumptions.

II.       Mr. Hardy’s report fails to distinguish between multiple defendants.
          To counter Mr. Hardy’s admitted failure to distinguish between Walgreen

and McGuire’s negligence, Plaintiff asserts that because Walgreen was vicariously

liable for McGuire, there is no need to distinguish between their conduct. But

Plaintiff never pleaded that Walgreen was vicariously liable for McGuire under

respondeat superior or any other theory and in fact asserted claims against

Walgreen for its own direct negligence. C.R. 7. So the vicarious liability theory

fails to save the deficient report.

III.      Dr. Breall’s report does not cure the deficiencies in Mr. Hardy’s report.
          Ms. Rodriguez contends that Dr. Breall’s report fixes the flaws in

Mr. Hardy’s report. There is absolutely nothing in the report, however, that

supports that notion. Like Mr. Hardy’s, Dr. Breall’s report says nothing about to



1795069.1/SPSA/87282/0138/040115           2
whom Dr. Kessler’s advice to stop Pradaxa was communicated, whether the

prescription that was used by Ms. Rodriguez predated the advice, or any other

circumstances under which Ms. Rodriguez continued to refill her prescription.

Dr. Breall simply does not provide facts to establish the causal link between

Walgreen’s alleged breach and Ms. Rodriguez’s injuries.

          Far from supporting Ms. Rodriguez’s theory that if Walgreen had contacted

the prescribing physician––Dr. Goswami––he would have told Walgreen to

discontinue Pradaxa, Dr. Breall’s report in fact suggests just the opposite. His

report indicates that Dr. Goswami did not know Dr. Kessler advised stopping

Pradaxa, (“This request to stop the medication was not appreciated by a primary

cardiologist, Dr. Vivek Goswami,” C.R. 44), and therefore, would not have

communicated that advice to anyone. Dr. Breall’s report further exonerates the

pharmacists by suggesting that the doctor’s office did authorize the refills:

“Ms. Rodriguez appeared to be obtaining refills for this medication authorized by

nurses and staff of the same heart group who recommended discontinuing this

medication (Austin Heart).” C.R. 44. If anything, Dr. Breall’s report supports an

inference that if Walgreen or McGuire had contacted Dr. Goswami or the nurses or

staff of his group, they would have continued to authorize refills. In any event,

there is nothing in his report that would support the opposite conclusion.




1795069.1/SPSA/87282/0138/040115          3
IV.       Mr. Hardy is not qualified as a practicing pharmacist.
          In response to Walgreen’s argument that he is not “practicing healthcare in a

field of practice that involves the same type of care or treatment as that delivered

by the defendant health care provider . . . at the time the claim arose,” TEX. CIV.

PRAC. & REM. CODE §74.402(b)(1), Mr. Hardy responds that he is qualified as a

pharmacy consultant and a licensed pharmacist. TEX. CIV. PRAC. & REM. CODE

§74.402(a)(2). But his curriculum vitae reveals that his experience has not been in

filling prescriptions but rather in information technology:            “Experience in

implementation and management of healthcare information technologies;” “Design

and support expert on Medication Use tools in electronic health records”;

“Responsible for direction and management of technology–related pharmacy

services”; “Operational information systems clinical content manager”; “Strategic

representative for healthcare automation customers”; “Command technology

leader”; “Automated Medication System upgrade implementation”. C.R. 13–14.

          Accordingly, there is no showing that he is qualified by training or

experience to opine on Walgreen or McGuire’s conduct in dispensing medication

for a retail pharmacy chain or at the time the claim arose was practicing health care

in the same type of care or treatment as the defendants. For this additional reason,

the trial court did not abuse its discretion in finding that Mr. Hardy’s report did not

satisfy the statutory requirements.



1795069.1/SPSA/87282/0138/040115            4
                                     Conclusion

          The trial court was correct in dismissing the claims against Walgreen and

McGuire. Its order should be affirmed.

                                        Respectfully submitted,

                                         /s/ Judith R. Blakeway
                                        JUDITH R. BLAKEWAY
                                        State Bar No. 02434400
                                        judith.blakeway@strasburger.com
                                        CYNTHIA DAY GRIMES
                                        State Bar No. 11436600
                                        Cynthia.Grimes@strasburger.com
                                        STRASBURGER & PRICE, LLP
                                        2301 Broadway
                                        San Antonio, Texas 78215
                                        (210) 250-6003 Telephone
                                        (210) 258-2706 Facsimile

                                        ATTORNEYS FOR APPELLEES
                                        THE WALGREEN COMPANY AND
                                        SARA ELIZABETH MCGUIRE




1795069.1/SPSA/87282/0138/040115          5
                                    CERTIFICATE OF SERVICE

          Pursuant to E-Filing Standing Order, I certify that on April 1, 2015, I

electronically filed the foregoing with the Clerk of Court using the

EFile.TXCourts.gov electronic filing system which will send notification of such

filing to the following:

     Lannie Todd Kelly
     State Bar No. 24035049
     THE CARLSON LAW FIRM, P.C.
     11606 N. IH–35
     Austin, TX 78753
     Telephone: (512) 346–5688
     Facsimile: (512) 719–4362
     tkelly@carlsonattorneys.com
            Attorneys for Appellant Nancy Jo Rodriguez

                                                   /s/ Judith R. Blakeway
                                                   JUDITH R. BLAKEWAY



                                   CERTIFICATE OF COMPLIANCE

          In accordance with Tex. R. App. P. 9.4(i)(1), I hereby certify that this Reply

Brief of Appellees contains no more than 925 words.


                                                   /s/ Judith R. Blakeway
                                                   JUDITH R. BLAKEWAY




1795069.1/SPSA/87282/0138/040115               6
