     Case: 18-40636   Document: 00515079849     Page: 1   Date Filed: 08/16/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                   Fifth Circuit

                                                                      FILED
                                                                  August 16, 2019
                                 No. 18-40636
                                                                   Lyle W. Cayce
                                                                        Clerk
ESTELLA MARTINEZ, Individually and as sole heirs of the estate of Claudia
Martinez, Deceased; ROGELIO MARTINEZ, Individually and as sole heirs of
the estate of Claudia Martinez, Deceased; JAMAL SAIH, Individually and as
sole heirs of the estate of Claudia Martinez, Deceased; OLIVIA LONGORIA;
ROGELIO LONGORIA,

             Plaintiffs - Appellants

v.

WALGREEN COMPANY,

             Defendant - Appellee




                Appeal from the United States District Court
                     for the Southern District of Texas


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      This case requires us to decide whether, under Texas law, a pharmacy
owes a duty of care to third parties injured on the road by a customer who was
negligently given someone else’s prescription. Concluding that the Texas
Supreme Court would not recognize this tort duty, we affirm the district court’s
grant of summary judgment to Walgreens.
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                                       I
      Two sets of plaintiffs, Claudia Martinez’s next of kin and Olivia and
Rogelio Longoria, allege that a Walgreens pharmacy negligently gave Elias
Gamboa Mesa a medication prescribed for another patient rather than the one
associated with his own prescription. Walgreens allegedly gave Gamboa
glyburide metformin, a medication used to treat diabetes—but which can cause
hypoglycemia, or low blood pressure, in non-diabetics. Symptoms include
cognitive impairment, behavioral changes, and psychomotor abnormalities.
      The plaintiffs allege that ingesting the drug caused Gamboa to
experience severe hypoglycemia and drive erratically on a road in McAllen,
Texas. First, he rear-ended the Longorias’ car. Then, failing to stop after the
first collision, he crossed the center lane and crashed head-on into Martinez’s
car, fatally injuring her. Finally, Gamboa struck three other vehicles in an
intersection before his own vehicle burst into flames. After Gamboa died from
his injuries, an autopsy revealed that he had detectable amounts of glyburide
metformin in his system at the time of the accident.
      Gamboa’s son sued Walgreens in Texas state court and Walgreens
removed to federal court. The Martinez plaintiffs and the Longorias moved to
intervene; while the motion was pending, they filed this lawsuit in the same
court. Gamboa’s son and Walgreens ultimately settled, leaving only this
lawsuit between the injured third parties and Walgreens.
      On Walgreens’s motion for summary judgment, the district court made
an Erie guess that under Texas law, a medical professional such as a
pharmacist does not owe a duty of care to “unconnected” third parties like
Martinez and the Longorias. It also rejected the plaintiffs’ argument that
Walgreens was liable under a theory of negligence per se. Concluding that the
plaintiffs had no viable theory of liability, it granted Walgreens summary
judgment. The plaintiffs now urge us to reverse the district court’s
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determination that under Texas law, Walgreens did not owe them a duty of
care—or, alternatively, to certify this issue to the Texas Supreme Court.
                                              II
       We review the district court’s grant of summary judgment de novo,
“viewing the evidence in the light most favorable to the non-moving [parties]
and drawing all reasonable inferences in the nonmovant[s’] favor.” 1 “The
movant prevails by showing ‘that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.’” 2
       In a diversity case like this one, when no Texas Supreme Court case
“precisely” resolves the legal issue, we “must make an Erie guess and
determine as best we can what the Supreme Court of Texas would decide.” 3
This requires us to use “the sources of law that the state’s highest court would
look to, including intermediate state appellate court decisions, the general rule
on the issue, decisions from other jurisdictions, and general policy concerns.” 4
Ultimately, however, “it is not for us to adopt innovative theories of recovery
under state law” without strong reason to believe that those theories would be
adopted if the Texas Supreme Court had the opportunity. 5
                                             III
       Texas law instructs that “[a] negligence cause of action has three
elements: 1) a legal duty; 2) breach of that duty; and 3) damages proximately
resulting from the breach.” 6 The district court stopped its analysis at the first
step, concluding that Walgreens owed no legal duty to the plaintiffs.



       1 E.g., Wease v. Ocwen Loan Serv., L.L.C., 915 F.3d 987, 992 (5th Cir. 2019).
       2 Id. (quoting Fed. R. Civ. P. 56(a)).
       3 Hays v. HCA Holdings, Inc., 838 F.3d 605, 611 (5th Cir. 2016) (quoting Harris Cty.

v. MERSCORP Inc., 791 F.3d 545, 551 (5th Cir. 2015)).
       4 Id. (internal quotation marks and citation omitted).
       5 Meador v. Apple, Inc., 911 F.3d 260, 264 (5th Cir. 2018) (quoting Mayo v. Hyatt Corp.,

898 F.2d 47, 49 (5th Cir. 1990)).
       6 Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998).

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       The Texas Supreme Court has settled that “the existence of duty is a
question of law for the court to decide from the facts surrounding the
occurrence in question.” 7 “When a duty has not been recognized in particular
circumstances, the question is whether one should be.” 8 We conclude that the
district court did not err in declining to recognize a duty between Walgreens
and the plaintiffs in this case.
                                              A
       First, we consider whether the Texas Supreme Court has already spoken
on the existence—or nonexistence—of a duty between a pharmacy and third
parties injured as the result of an allegedly mis-filled prescription. Walgreens
urges that this case can straightforwardly be resolved by caselaw holding that
a healthcare provider owes no duty to third-party nonpatients for negligent
treatment or misdiagnosis of patients. The Texas Supreme Court has
repeatedly recognized that “[a]ny duty of reasonable care on [the part of the
healthcare provider] to avoid such negligence originates solely through the
relationship with, and flows only to, his patient.” 9 It has also stated that “there
is generally no relationship between [a] doctor and patient that would provide
the type of control necessary to create a duty to third persons.” 10



       7  Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 503 (Tex. 2017) (quoting Greater
Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)).
        8 Id.
        9 Van Horn, 970 S.W.2d at 545 (holding that a treating physician did not owe a duty

to hospital employees who were killed or injured when trying to subdue a violent patient);
see also Thapar v. Zezulka, 994 S.W.2d 635, 636–38 (Tex. 1999) (holding that a psychiatrist
owed no duty to a third party for negligent misdiagnosis or treatment even where the patient
had previously told the psychiatrist that he “[felt] like killing” the third party); Krishnan v.
Sepulveda, 916 S.W.2d 478, 482 (Tex. 1995) (holding that a doctor owed no duty to a woman’s
husband when it allegedly provided her with negligent prenatal care that caused her to
miscarry); Bird v. W.C.W., 868 S.W.2d 767 (Tex.. 1994) (holding that a psychologist had no
duty to a third party not to negligently misdiagnose a child’s condition as stemming from the
third party’s abuse).
        10 Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 35–36 (Tex. 2002) (emphasis added).

In Peavy, however, the Texas Supreme Court held that a medical provider did potentially
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       Walgreens’s argument that this line of cases “definitively” resolves the
issue goes a step too far. The Texas Supreme Court has not yet addressed
whether a pharmacy’s duty of care is limited to that pharmacy’s own patients.
Its   negligent-treatment         and    negligent-misdiagnosis          caselaw     disfavors
imposing a duty between healthcare providers and third parties due in part to
well-founded concerns about interfering with medical professionals’ judgment
and discretion. 11 Although pharmacists are treated as healthcare providers
under Texas law, 12 the filling of an existing prescription arguably does not
require the same degree of judgment and discretion as an initial diagnosis or
plan for treatment. 13 We therefore are not convinced that the Texas Supreme
Court has already squarely decided this issue in favor of Walgreens, and
cannot comfortably end our analysis here.
                                               B
       Acknowledging that the Texas Supreme Court has also not spoken in
their favor regarding this issue, the plaintiffs instead ask us to extrapolate a




have a duty of care to third parties when it allegedly failed to control a patient who was under
an unusually high degree of court-mandated supervision. See id.
        11 The seminal case on the duty of a health-care professional to third parties, W.C.W.

v. Bird, emphasized the need for mental health professionals to be “allowed to exercise their
professional judgment in diagnosing sexual abuse of a child without the judicial imposition
of a countervailing duty to third parties.” 868 S.W.2d at 769.
        12 See Tex. Civ. Prac. & Rem. § 74.001(a)(12)(A).
        13 Walgreens cites an unpublished intermediate appellate decision, Davis v. Eckerd

Holdings II, Inc., extending the Texas Supreme Court’s negligent-treatment and negligent-
misdiagnosis caselaw to pharmacists. No. 05-96-01413-CV, 1999 WL 605590 (Tex. App—
Dallas, 1999, no pet.). That case addressed whether a pharmacist owed a tort duty to the
parents of an infant who suffered a drug overdose after having been given syrup that was
one thousand times more powerful than the prescribed medication. See id. at *1. The Court
of Appeals concluded that because pharmacists qualify as healthcare providers under Texas
law, the Texas Supreme Court’s negligent-treatment and negligent-misdiagnosis cases were
“instructive” in concluding that the pharmacist owed the parents no duty of care separate
from a duty to their infant child. Id. at *3. Standing alone, Davis does not allow us to conclude
either that the Texas Supreme Court has definitively established that pharmacies owe no
tort duties to third parties or that it would do so if given the opportunity.
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duty from other areas of Texas tort law. 14 They rely heavily on Gooden v. Tips,
an intermediate appellate case holding that where a doctor had prescribed a
patient Quaaludes without warning her about the risks of driving under their
influence, the doctor owed a duty of care to a third party who was struck by the
patient. 15 It is unlikely that Gooden reflects the Texas Supreme Court’s view
on a healthcare provider’s duty to third parties to warn patients of the risk of
prescribed medication. It was decided before the line of cases addressing
healthcare providers’ duties to third parties, and the Texas Supreme Court
subsequently rejected a duty on the part of a doctor to warn an epileptic patient
about the risk of driving. 16 A concurring opinion in that case faulted the
majority for failing to make clearer that Gooden is not good law in light of the
cases limiting health care professionals’ duty to their own patients. 17
       Regardless, to the extent that Gooden represents how the Texas
Supreme Court would resolve the question of whether a health care
professional has a duty to third parties to warn a patient of the risks of
prescribed medication, Gooden’s framework does not apply here. The plaintiffs



       14  The plaintiffs also argue that Walgreens has liability under the Texas Wrongful
Death Act, Tex. Civ. Prac. & Rem. Code § 71.002 et seq., and that the district court’s decision
denied them their right to open courts under the Texas Constitution, Tex. Const. Art. I, § 13.
These arguments fail because they are predicated on the assumption that Walgreens owed
the plaintiffs—in the case of the Wrongful Death Act, only Martinez—a duty of care. They
cannot support liability absent an accompanying duty. See Tex. Civ. Prac. & Rem. Code §
71.003(a) (providing a cause of action under the Wrongful Death Act “only if the individual
injured would have been entitled to bring an action for the injury if the individual had lived”);
Burlington N. & Santa Fe Ry. Co. v. Poole Chem. Co., 419 F.3d 355, 360 (5th Cir. 2005)
(explaining that the “open courts” provision does not create new rights, but rather protects
the ability to pursue remedies “for such wrongs as are recognized by the law of the land”
(citation omitted)).
        15 651 S.W.2d 364, 365–72 (Tex. App.—Tyler, 1983, no writ); see also Flynn v. Hous.

Emergicare, Inc., 869 S.W.2d 403, 405–06 (Tex. App.—Houston [1st Dist.] 1993, writ denied)
(distinguishing Gooden as a case where a doctor had a duty to third parties because the doctor
gave the patient the medication that caused her impairment).
        16 See Praesel v. Johnson, 967 S.W.2d 391, 398 (Tex. 1998).
        17 See id. at 399 (Enoch, J., concurring).

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do not contend that the medication given to Gamboa was unaccompanied by
proper warnings and directions for its use. Nor do we think that the theory
underlying Gooden maps neatly onto the facts of this case. As we will explain,
foreseeability is paramount to the duty analysis, and there are relevant
differences between failing to warn a patient of the risks of medication that the
healthcare professional knows the patient will take, on the one hand, and
giving a patient a bottle of prescription medication intended for someone else,
on the other.
      Taking a different tack, the plaintiffs also argue that tort liability here
is simply an analogue of “dram shop” liability under Texas law. El Chico Corp.
v. Poole held that an alcoholic beverage licensee had a duty of care to third
parties not to serve alcohol to a customer the licensee knew or should have
known was intoxicated and who later injured others by driving under the
influence. 18 The Texas Supreme Court reasoned that because “[t]he risk and
likelihood of injury from serving alcohol to an intoxicated person whom the
licensee knows will probably drive a car is . . . readily foreseen,” a duty of care
owed by licensees to third parties is “merely the application of the general duty
to exercise reasonable care to avoid foreseeable injury to others.” 19 The
plaintiffs argue that where a pharmacy gives a customer a medication with the
potential to cause side effects similar to intoxication, it should bear a similar
duty to injured third parties.
      The analogy to dram-shop liability fails for two reasons. First, one week
after El Chico was decided, the Texas legislature enacted the Dram Shop Act
to supplant judicially created liability with a statutory remedy, limiting




      18   732 S.W.2d 306 (Tex. 1987).
      19   Id. at 311.
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liability for alcoholic beverage providers in the process. 20 The legislature’s
response strongly suggests that creating liability between providers of
potentially dangerous substances and injured third parties involves delicate
policy determinations. Unsurprisingly, “Texas courts have not expanded the
duty in El Chico to cover the sale of other potentially harmful products.” 21
Second, and relatedly, this case presents different public policy considerations
from where a licensee provides alcohol to an already intoxicated person: the
social value of pharmacy work is higher than the social value of dram shops,
and the foreseeability of the harm that occurred in this case pales in
comparison to the foreseeable harm caused by serving alcohol to intoxicated
bar patrons who will then drive. It does not follow that because the Texas
Supreme Court recognized a duty of care between a licensee and third parties
foreseeably injured by drunk driving—in a move promptly superseded by
statute—it would recognize a duty between pharmacies and third parties
injured as the result of mis-filled prescriptions.
                                             C
       This brings us to the core of the duty analysis under Texas law. When
the Texas Supreme Court has neither established nor foreclosed the possibility
of a tort duty in “particular circumstances,” Texas courts ask whether such a
duty “should be” recognized. 22 This involves “social, economic, and political
questions and their application to the facts at hand,” and involves weighing
“the risk, foreseeability, and likelihood of injury against the social utility of the




       20 See Tex. Alco. Bev. Code §§ 2.02–03 (granting a statutory cause of action against
alcoholic beverage providers and making it the exclusive remedy); Graff v. Beard, 858 S.W.2d
918, 919–20 (Tex. 1993) (explaining that “[t]he statutory duty established by the legislature
also placed a less onerous burden on commercial providers and a correspondingly higher
burden of proof on injured parties than the common-law duty created by the court”).
       21 Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 179–80 (5th Cir. 2018).
       22 Pagayon, 536 S.W.3d at 503.

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actor’s conduct, the magnitude of the burden of guarding against the injury,
and the consequences of placing the burden on the defendant,” along with
considering “whether one party would generally have superior knowledge of
the risk or a right to control the actor who caused the harm.” 23
          We have little difficulty concluding that the Texas Supreme Court would
not impose a tort duty between pharmacies and third parties of the type the
plaintiffs here advocate. The Texas Supreme Court has “described
foreseeability as the ‘foremost and dominant consideration’ in the duty
analysis,” 24 and we agree with Walgreens that the harm caused to Martinez
and the Longorias was not a foreseeable consequence of Walgreens’s alleged
conduct. Most importantly, it was not sufficiently foreseeable that a pharmacy
customer would take the medication in a bottle intended for someone else,
notwithstanding that the label listed someone else’s name and a different
medication. 25 To be sure, the foreseeability inquiry does not require Walgreens
to have foreseen the precise harm to third parties that in fact resulted from
giving Gamboa someone else’s prescription. 26 But where Texas courts have




          23   Id. (quoting Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 182 (Tex.
2004)).
          E.g., Peavy, 89 S.W.3d at 36.
          24

          It is also unclear that it was foreseeable that a customer who took someone else’s
          25

prescription drug would experience the type of reaction that would impair his cognitive and
motor skills while driving. The plaintiffs’ own summary judgment evidence indicates that
glyburide metformin does not necessarily cause hypoglycemia in non-diabetics, and that
Gamboa’s age and impaired kidney function made him more susceptible to the condition as
a result of taking the medication. This distinguishes this case from, for example, Gooden,
where the drug was likely to impair the ability to safely drive in anyone who took it. See
Gooden, 651 S.W.2d at 369–70.
       26 See Austin v. Kroger, 864 F.3d 326, 333 (5th Cir. 2017) (per curiam) (“Texas courts

have consistently held that foreseeability turns on the existence of general danger, not
awareness of the exact sequence of events that produced the harm.” (internal quotation
marks omitted)).
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found the risk of harm to a third party to have been foreseeable, the possibility
of harm was significantly less attenuated. 27
       Foreseeability aside, the Texas legislature has shown itself to be both
willing and able to undertake the public policy balancing inherent in extensive
regulation of pharmacies’ treatment of prescription drugs. For example, Texas
law allows pharmacies to dispense dangerous drugs—including any drug that
requires a prescription, such as glyburide metformin—only to those with valid
prescriptions. 28 It sets forth extensive labeling requirements, including that
the label be easily readable and include the name of the patient and the drug’s
brand name or generic name. 29 Further, it imposes criminal liability on
pharmacists who dispense dangerous drugs without prescriptions or fail to
comply with labeling requirements, 30 and imposes civil penalties on those who
unlawfully engage in the practice of pharmacy. 31 That is, the legislature has
detailed other protections against the risk, and a tort duty to third parties
would be in tension with this extensive regulatory scheme. 32 This bolsters our


       27  See Peavy, 89 S.W.3d at 36–39 (rejecting summary judgment due to genuine issues
of material fact over whether it was foreseeable to a care facility for the mentally disabled
that a resident with an extensive history of violence would pose a threat to strangers when
allowed outside the facility); Bird, 868 S.W.2d at 769 (recognizing the foreseeable harm to a
parent who was accused of sexual abuse due to allegedly negligent mental health treatment
provided to the child, though ultimately concluding that the mental health professional still
did not owe a duty of care to the parent); El Chico, 732 S.W.2d at 313–14 (emphasizing the
foreseeability of harm specifically where an alcoholic beverage purveyor sold alcohol to a
customer who was already intoxicated and who the purveyor knew or should have known was
likely to drive after leaving the establishment); Gooden, 651 S.W.2d at 368 (recognizing a
foreseeable risk of harm where a doctor prescribed a patient Quaaludes and could have
expected that she would take those drugs before driving without a warning to the contrary).
        28 See Tex. Health & Safety Code § 483.021(a); Tex. Occ. Code §§ 562.056, 562.112.
        29 See Tex. Occ. Code § 562.006.
        30 See Tex. Health & Safety Code § 483.042.
        31 See Tex. Occ. Code § 566.101.
        32 See Ritchie v. Rupe, 443 S.W.3d 856, 891 (Tex. 2014) (declining to create a new cause

of action, in part because the legislature had already created a “detailed and extensive”
statutory scheme, “reflecting legislative policy judgments about when the government should
step in to impose rights and obligations on the parties and when the parties should be free to
dictate their own rights and obligations vis-à-vis each other”).
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conclusion that the Texas Supreme Court would not recognize a duty of care
owed by Walgreens to the plaintiffs in this case.
       The plaintiffs suggest that this degree of legislative involvement actually
cuts in their favor, in particular the statutory prohibitions on distributing
prescription drugs to someone without a prescription. They disclaim reliance
on statute to create tort liability where none would otherwise exist, arguing
solely that statutory prohibitions help to more clearly define the standard of
care Walgreens owed. But their reliance on statute begs the question of
whether Walgreens owed a preexisting duty of care to the plaintiffs as non-
patient third parties.
       To the extent that Texas courts are willing to infer a new tort duty from
legislation—a rare, but not unheard-of, phenomenon 33—we disagree that the
statutory prohibitions the plaintiffs cite point to a duty here. The Texas
Supreme Court has settled that “[t]he threshold questions in every negligence
per se case are whether the plaintiff belongs to the class that the statute was
intended to protect and whether the plaintiff’s injury is of a type that the
statute was designed to prevent.” 34 We do not doubt that legislative regulation
of pharmacies was intended to protect “the public health, safety, and
welfare.” 35 The plaintiffs argue that as members of the public, they are
therefore within the class of persons that the legislature aimed to protect by
prohibiting the distribution of a prescription drug to someone without a
prescription for that drug. Nothing suggests, however, that this statutory




       33  See Perry v. S.N., 973 S.W.2d 301, 305–08 (Tex. 1998) (observing that the Texas
Supreme Court has “created a new duty by applying negligence per se on only one occasion”);
see also Allen, 907 F.3d at 180 (after declining to recognize a common-law duty under Texas
law, observing that “[t]ellingly, Texas courts rarely imply a civil tort duty from a criminal
statute”).
        34 Perry, 973 S.W.2d at 305.
        35 See Tex. Occ. Code § 551.002.

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prohibition intended to prevent the type of harm that the plaintiffs
experienced—rather than preventing harm to the members of the public who
ingest potentially dangerous prescription drugs and suffer harm as a result. 36
We therefore cannot infer from Walgreens’s alleged violation of its statutory
obligations that its tort duty of care extends to the third-party plaintiffs in this
case.
                                            ***
        In sum, looking to the factors the Texas Supreme Court would consider—
in particular, the foreseeability of the harm, the presence of other protections,
and the danger of interference with the legislature’s balancing of public
policies—we conclude that the Texas Supreme Court would not recognize a
duty between a pharmacy and third parties injured as a result of a customer
taking the incorrect prescription. Mindful that we should not “lightly abdicate
our mandate to decide issues of state law when sitting in diversity,” we decline
to exercise our discretion to certify this issue to the Texas Supreme Court. 37
                                             IV
        We affirm the district court’s grant of summary judgment to Walgreens.




        36For example, this case is unlike Praesel v. Johnson, which considered whether a
doctor’s violation of reporting requirements to the Texas Department of Public Safety
generated a duty of care between the doctor and a third party who was injured when the
patient had a seizure while driving. Praesel, 967 S.W.2d at 394–96. There, although the Texas
Supreme Court ultimately did not recognize a duty based on this statutory requirement, it
observed that the “general public” was plainly within the class of persons protected by such
a requirement. See id. at 395.
       37 In re Deepwater Horizon, 807 F.3d 689, 698 (5th Cir. 2015) (quoting Jefferson v.

Lead Indus. Ass’n, Inc., 106 F.3d 1245, 1248 (5th Cir. 1997)); see also Patterson v. Mobile Oil
Corp., 335 F.3d 476, 487 (5th Cir. 2003) (“As a general rule, we do not use certification as a
panacea for resolution of those complex or difficult state law questions which have not been
answered by the highest court of the state.” (internal quotation marks omitted)).
                                             12
