              Case: 14-12450    Date Filed: 12/22/2014    Page: 1 of 6


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-12450
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 2:14-cv-00068-JES-DNF



GAIL KASTEROWICZ,

                                                           Plaintiff-Appellant,

                                     versus

WALGREEN CO.,

                                                           Defendant-Appellee.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                               (December 22, 2014)

Before JORDAN, JILL PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

      In this appeal, we must determine the statute of limitations applicable to

claims of negligence and breach of warranty under Florida law. Because we agree
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with the district court’s conclusion that the two-year limitations period applies, we

affirm the district court’s order granting Walgreen Company’s (Walgreen) motion

to dismiss.

                                        I.

      In February 2010, following surgery on her knee, Gail Kasterowicz filled a

prescription for Ciprofloxacin at her local pharmacy. Although the doctor

prescribed a 500 mg dose twice a day, the pharmacist labeled the bottle with

instructions to take two 500 mg tablets four times a day. Kasterowicz followed the

pharmacist’s instructions, became ill as a result, and was hospitalized. In July

2010, Kasterowicz learned that her illness was the result of a Ciprofloxacin

overdose. On February 21, 2014, Kasterowicz filed an amended complaint against

Walgreen, alleging breach of warranty and negligence by the pharmacist.

      Walgreen moved to dismiss the amended complaint as untimely under

Florida’s two-year statute of limitations applicable to professional malpractice

claims, Fla. Stat. § 95.11(4)(a). Kasterowicz responded that the applicable statute

of limitations was four years because her claim involved a breach of warranty. The

district court granted the motion to dismiss, relying on Sheils v. Jack Eckerd Corp.,

560 So.2d 361 (Fla. Dist. Ct. App. 1990), and finding that the two-year statute of

limitations applied. This is Kasterowicz’s appeal.

                                       II.


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      We review de novo the district court’s grant of a motion to dismiss. Spain v.

Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1187 (11th Cir. 2004). In a

diversity action such as this, we apply the state’s substantive law. Sierminski v.

Transouth Fin. Corp., 216 F.3d 945, 950 (11th Cir. 2000). We review the district

court’s interpretation of state law in a diversity case de novo. Jones v. United

Space Alliance, L.L.C., 494 F.3d 1306, 1309 (11th Cir. 2007).

      Under Florida law, the statute of limitations is two years for claims of

professional negligence, “whether founded on contract or tort.” Fla. Stat.

§ 95.11(4)(a). For claims of product liability, the statute of limitations is four

years. Id. § 95.11(3).

      In Sheils v. Jack Eckerd Corp., the Florida Court of Appeals addressed the

timeliness of a complaint alleging that a pharmacist mislabeled a prescription

bottle with an incorrect dosage. 560 So.2d at 363. In that case, the plaintiffs

alleged strict liability, negligence, and breach of warranty. Id. at 362. Although

the plaintiffs argued that the four-year statute of limitations for products liability

applied, the court found the complaint untimely because the statute of limitations

for professional malpractice claims was two years. Id. As the court explained,

“[i]t is not disputed in this case that but for the alleged negligence of appellee’s

pharmacist there would have been no error in the prescribed dosage and appellants

would have no cause of action under any theory.” Id. The court found that,


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“where there are two conflicting statutes of limitations, . . . or where there is a

substantial question which of the two statutes should be applied, the issue is often

resolved on the basis of whether the jurisdiction in question favors a strict or

liberal construction of such statutes.” Id. at 363. Because Florida favored a more

liberal view, the shorter limitations period applied. Id. The court further noted

another general principle of statutory construction — where a general law conflicts

with a more specific provision, the more specific provision controls. Id. Thus, a

specific statute addressing professional negligence would control rather than a

more general statute addressing products liability. Id.

      In the instant case, the district court found, based on Sheil, that the two-year

limitations period applied. We agree. Sheil is directly on point, and we have

found no cases that would lead us to question whether the Florida Supreme Court

would reach a different conclusion as to the applicable statute of limitations. See

McMahan v. Toto, 311 F.3d 1077, 1080 (11th Cir. 2002) (“[A]bsent a decision

from the state supreme court on an issue of state law, we are bound to follow

decisions of the state’s intermediate appellate courts unless there is some

persuasive indication that the highest court of the state would decide the issue

differently.”). Moreover, the statutory language supports this interpretation: Under

Florida law, a claim of professional malpractice, “whether founded on contract or

tort,” is subject to the two-year statute of limitations. Fla. Stat. § 95.11(4)(a)


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(emphasis added). Thus, claims of breach of warranty arising out of the alleged

negligence of a pharmacist in filling a prescription must be brought within two

years. Id.

         Finally, contrary to Kasterowicz’s argument, the district court did not

consider the breach of warranty and negligence counts as a single claim, and

nothing in the district court’s opinion limits a plaintiff’s ability to bring both types

of actions against a pharmacist. See, e.g., McLeod v. W.S. Merrell Co., Div. of

Richardson-Merrell, Inc., 174 So.2d 736, 739 (Fla. 1965) (recognizing that a

pharmacist who fills a prescription warrants that he has used due care in doing so);

see also Fontanez v. Parenteral Therapy Assocs., Inc., 974 So.2d 1101, 1104-05

(Fla. Dist. Ct. App. 2007) (citing McLeod and explaining that courts recognize that

a plaintiff may bring a breach-of-warranty claim in addition to a negligence claim

against a pharmacist). Kasterowicz’s reliance on Fontanez is misplaced; that case

addressed only whether a plaintiff could bring a breach-of-warranty claim, but did

not discuss the applicable statute of limitations.

         Accordingly, because Florida law has expressly held that a two-year statute

of limitations applies to claims of professional malpractice such as those raised

here, the district court properly dismissed Kasterowicz’s complaint as untimely. 1



1
  We see no reason to certify this question to the Florida Supreme Court, as Kasterowicz requests. “Substantial
doubt about a question of state law upon which a particular case turns should be resolved by certifying the question
to the state supreme court.” Jones v. Dillard’s, Inc., 331 F.3d 1259, 1268 (11th Cir. 2003). There is no unsettled

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         AFFIRMED.




question of law here, and no conflict among the state courts of appeals. In fact, there is no case law to suggest that
the state supreme court would reach a different conclusion than that reached in Sheils.

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