                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 10a0037n.06

                                              No. 09-5153
                                                                                             FILED
                            UNITED STATES COURT OF APPEALS                                Jan 21, 2010
                                 FOR THE SIXTH CIRCUIT                             LEONARD GREEN, Clerk



EDWARD H. FLINT,                                      )
                                                      )
        Plaintiff–Appellant                           )
                                                      )
v.                                                    ) ON APPEAL FROM THE UNITED
                                                      ) STATES DISTRICT COURT FOR THE
TARGET CORPORATION,                                   ) WESTERN DISTRICT OF KENTUCKY
                                                      )
        Defendant–Appellee.                           )
                                                      )


Before: MERRITT, MOORE, and GIBBONS, Circuit Judges.

        JULIA SMITH GIBBONS, Circuit Judge. Edward H. Flint appeals the district court’s

grant of summary judgment for defendant Target Corporation (“Target”). Flint sued Target pro se

on theories of negligence and product liability for the adverse physiological reactions he suffered

allegedly as a result of taking prescription medication dispensed by his local Target pharmacy. The

district court held that no genuine issue of material fact existed that could allow Flint to establish that

Target breached the duty it owed him as a pharmacist and granted summary judgment on his

negligence claim. Further, the district court found that Kentucky’s “middleman” statute, Ky. Rev.

Stat. Ann. § 411.340, applied to Target to shield it from liability on Flint’s product liability claim.

For the reasons that follow, we AFFIRM the judgment of the district court.

        In November 2006, Flint’s surgeon issued him a prescription for Pyridium (generic name:

phenazopyridine). Flint filled the prescription and refilled it twice at the same Target pharmacy,
which provided him a generic form of the drug each time. The company that manufactured the pills

dispensed in the second refill, Contract Pharmacal for Breckenridge Pharmaceutical, was not the

same company that had manufactured the pills in the first two fills. Each prescription fill was

accompanied by a patient information sheet, which listed various contraindications, side effects, and

possible indicia of an allergic or negative physiological reaction. Flint experienced no adverse

effects from the first two fills, but shortly after taking pills from the third fill, Flint experienced what

he believed to be an allergic reaction—itchy hives and bumps inside his mouth, a numb tongue, and

a loss of taste. When Flint reported the reaction to the Target pharmacy, the pharmacy manager

determined that there had been no error in the filling of the prescription, referred Flint to Target’s

national customer service, and gave Flint a refund, the names and numbers of the manufacturers of

the pills, and a list of the inactive ingredients in the pills dispensed in the third fill.

        Flint attempted to resolve his concerns directly with Target’s customer service department,

but when Target did not help Flint to his liking, he filed the present suit on October 10, 2007. The

suit was originally filed in Jefferson Circuit Court, but was promptly removed to federal court on

October 30. Target moved for summary judgment on August 14, 2008, and the district court granted

the motion on January 13, 2009. Flint v. Target Corp., No. 3:07CV-00600-R, 2009 WL 87469

(W.D. Ky. Jan. 13, 2009). Flint timely appealed.

        We review de novo a district court’s grant of summary judgment. Williams v. Mehra, 186

F.3d 685, 689 (6th Cir. 1999) (en banc). Summary judgment is proper “if the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as

to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.


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56(c). The Court must review all the evidence, facts, and inferences in the light most favorable to

the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

In order to defeat a summary judgment motion, the nonmoving party “must show sufficient evidence

to create a genuine issue of material fact.” Prebilich-Holland v. Gaylord Entm’t Co., 297 F.3d 438,

442 (6th Cir. 2002). Entry of summary judgment is appropriate “against a party who fails to make

a showing sufficient to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986).

          Flint argues that the district court erred in granting Target summary judgment. We find the

district court’s reasoning and conclusions to be correct. On Flint’s negligence claim, 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. See Ohio County Drug Co. v. Howard,

256 S.W. 705, 707 (Ky. 1923). As the district court found, all evidence presented indicates Target

complied with that standard. Flint, 2009 WL 87469, at *3. Flint claims that the drugs he was given

were not FDA-approved, but these statements are no more than bare allegations and do not suffice

to defeat summary judgment. He also contends that Target breached its duty to him in the third fill

by substituting a cheaper generic drug for another generic, but Target’s actions are actually

authorized by Kentucky statute. See Ky. Rev. Stat. Ann. § 217.822. Flint further claims that Target

had the duty to investigate and test any prescription medications it sold before dispensing them to




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customers, but there is no law to support this assertion. Summary judgment on Flint’s negligence

claim based on the element of breach was appropriate.

        On Flint’s product liability claims, the district court found that pharmacists in Kentucky are

protected by the state’s “middleman statute.”1 Kentucky law provides that retailers are not liable in

product liability actions if: “(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.” Salisbury v. Purdue Pharma, L.P., 166 F. Supp. 2d 546, 551 (E.D. Ky.

2001). Exceptions to middleman protection exist if: “(1) . . . the . . . retailer breached an express

warranty, or (2) . . . the . . . retailer knew or should have known at the time of distribution or sale that

the product was in a defective condition and unreasonably dangerous.” Id. The district court found

that the two conditions were satisfied and neither exception existed, Flint, 2009 WL 87469, at *3–4,

and we agree. Flint raises no arguments on appeal that contradict any of these conclusions, aside

from an unsupported allegation that the middleman statute is unconstitutional.




        1
            Ky. Rev. Stat. Ann. § 411.340 provides:

        In any product liability action, if the manufacturer is identified and subject to the
        jurisdiction of the court, a wholesaler, distributor, or retailer who distributes or sells
        a product, upon his showing by a preponderance of the evidence that said product
        was sold by him in its original manufactured condition or package, or in the same
        condition such product was in when received by said wholesaler, distributor or
        retailer, shall not be liable to the plaintiff for damages arising solely from the
        distribution or sale of such product, unless such wholesaler, distributor or retailer,
        breached an express warranty or knew or should have known at the time of
        distribution or sale of such product that the product was in a defective condition,
        unreasonably dangerous to the user or consumer.

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       Flint also argues that the district court should have ruled on various nondispositive motions

before granting summary judgment, including motions to compel discovery and to subpoena various

witnesses for depositions. The district court, however, found that “[n]one of the discovery sought

in the remanded motions would have materially affected this Court’s determination” on summary

judgment. Id. at *5. We agree, and affirm the district court on this ground as well.

       Finally, Flint argues that the district court erred by not allowing him to amend his complaint.

We review a district court’s denial of a plaintiff’s motion for leave to amend his complaint for abuse

of discretion. Evans v. Pearson Enters., Inc., 434 F.3d 839, 853 (6th Cir. 2006). However, “[w]hen

the district court refuses the plaintiff’s request for leave to amend her complaint on grounds of

futility, this court reviews de novo because the decision is based on a legal conclusion.” Id. (citing

Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 569 (6th Cir. 2003)). Flint filed separate motions for

leave to amend in the district court. In the first motion, filed June 16, 2008, Flint sought to add

greater detail to his complaint to supplement his claims against Target. In its summary judgment

opinion, the district court held: “That motion has not been granted and, although it contains

additional narrative, the tendered Amended Complaint does not contain additional causes of action,

nor would it change the Court’s substantive analysis.” Flint, 2009 WL 87469, at *2 n.3. Because

this is a holding that the amendment would have been futile, we review de novo. Upon examining

the proposed amendments, however, we agree with the district court that the added details Flint

provides would not help him establish a genuine issue of material fact on the issues that entitle

Target to summary judgment.




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       Flint’s motion for leave to amend his complaint, filed August 28, 2008, sought to add two

additional defendants, Breckenridge Pharmaceutical and Contract Pharmacal. The district court did

not rule on this motion in its summary judgment decision. However, the district court docket reveals

that all non-dispositive motions were referred to a magistrate judge on May 20, 2008, who, on

September 30, 2008, ordered that “all pending non-dispositive motions are hereby administratively

remanded without prejudice to the parties’ right to request that they be returned to the court’s active

docket within 15 days after entry of any order denying Target’s request for summary judgment.”

Flint had been advised that, in order to have any of his remaining motions decided, he needed to take

action before the district court, which he never did. He did not appeal the magistrate’s order, nor did

he include the order, this motion to amend, or any other motions in his notice of appeal.2 Therefore,

we find that Flint has not properly preserved this argument or any other argument pertaining to

undecided motions for appeal.

       For the reasons set forth above, we AFFIRM the district court’s grant of summary judgment.




       2
         Furthermore, any further consideration of the August 28 motion to amend would be futile,
as the one-year limitations period that applies to product liability and negligence claims in Kentucky
had run before the motion was filed. See Ky. Rev. Stat. Ann. § 413.140.

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