                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                       No. 10-13549                MARCH 2, 2011
                                                                     JOHN LEY
                                   Non-Argument Calendar               CLERK
                                 ________________________

                          D.C. Docket No. 6:09-cv-01300-GAP-KRS

NELLIE DARLENE ARRINGTON,
as Personal Representative for the Estate of
Ella Suvilla Church, Deceased,

lllllllllllllllllllll                                              Plaintiff - Appellant,

                                           versus

WALGREEN CO.,
an Illinois corporation,

lllllllllllllllllllll                                             Defendant - Appellee.

                                ________________________

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

                                       (March 2, 2011)

Before PRYOR, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:
      Nellie Darlene Arrington (“Arrington”) appeals the district court’s grant of

summary judgment in favor of Walgreen Co. (“Walgreen”). Acting as personal

representative of her mother’s estate, Arrington brought this suit alleging that

Walgreen committed professional malpractice by filling a prescription for

medicine to which Arrington’s mother was allergic. The district court granted

summary judgment for Walgreen after concluding that Arrington’s action was

barred by Florida’s two-year statute of limitations governing professional

negligence claims. Fla. Stat. § 95.11(4). We agree and affirm.

      We review de novo a district court’s grant of summary judgment, applying

the same legal standards as those employed by the district court. Miccosukee

Tribe of Indians v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009). Summary

judgment is appropriate when “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

“A genuine issue of material fact exists only if sufficient evidence is presented

favoring the nonmoving party for a jury to return a verdict for that party.” Farley

v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999) (quotation

marks omitted). “In making this assessment, we review all facts and inferences

reasonably drawn from the facts in the light most favorable to the nonmoving

party.” Id.

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      The facts in the light most favorable to Arrington are as follows. In

February 2006, Walgreen dispensed to Arrington’s mother a sulfa-based medicine

to which she was allergic. Walgreen was aware of Arrington’s mother’s allergy to

sulfa-based medicine, but nonetheless filled the medication, which Arrington then

picked up from the Walgreen pharmacy. Shortly after taking the medication,

Arrington’s mother suffered an allergic reaction that required, inter alia, her to be

admitted at Tampa General Hospital. While at Tampa General, Arrington learned

that her mother had been prescribed and dispensed a medicine to which she was

allergic, and furthermore learned that this medicine caused her mother’s injuries.

      Arrington met with a lawyer some time in 2006, and thereafter commenced

an unrelated suit against the doctors who prescribed the contraindicated

medication. Arrington settled that suit on December 1, 2008. About the time that

Arrington settled her suit against the prescribing doctors, she learned that these

doctors never authorized Walgreen to dispense the contraindicated medicine.

This was the first time that Arrington had actual knowledge that Walgreen may

have engaged in professional negligence.

      Arrington filed this suit on June 11, 2009, more than two years after she

became aware that the contraindicated medicine caused her mother’s injuries, but

less than two years after she had actual knowledge that Walgreen’s negligence

                                          3
may have contributed to those injuries. Thus, Arrington’s suit is timely only if the

statute of limitations did not begin until the day she had actual knowledge of

Walgreen’s alleged negligence.

       Florida law provides that an action seeking to recover damages caused by

professional malpractice must be brought within two years. Fla. Stat. § 95.11(4).

This “period of limitations shall run from the time the cause of action is

discovered or should have been discovered with the exercise of due diligence.”

Fla. Stat. § 95.11(4)(a). Construing near identical language in the context of

medical malpractice,1 the Florida Supreme Court has explained:

       knowledge of the injury as referred to in the rule as triggering the statute
       of limitations means not only knowledge of the injury but also
       knowledge that there is a reasonable possibility that the injury was
       caused by medical malpractice. The nature of the injury, standing alone,
       may be such that it communicates the possibility of medical negligence,
       in which event the statute of limitations will immediately begin to run
       upon discovery of the injury itself. On the other hand, if the injury is
       such that it is likely to have occurred from natural causes, the statute
       will not begin to run until such time as there is reason to believe that
       medical malpractice may possibly have occurred.




       1
         Medical malpractice claims are governed under Fla. Stat. § 95.11(4)(b), which similarly
provides that causes of action must be brought “2 years from the time the incident giving rise to
the action occurred or within 2 years from the time the incident is discovered, or should have
been discovered with the exercise of due diligence.” On account of this similarity, we agree with
Walgreen that Florida’s interpretation of section 95.11(4)(b) informs our interpretation of section
95.11(4)(a).

                                                 4
Tanner v. Hartog, 618 So. 2d 177, 181–82 (Fla. 1993) (footnote omitted).

Furthermore, as the Florida Court of Appeals has explained, “[a] plaintiff who

lacks actual knowledge of negligence is deemed to have constructive notice of the

contents of medical records that disclose a possibly negligent act.” Menendez v.

Public Health Trust, 566 So. 2d 279, 281 (Fla. 3d DCA 1990) (collecting cases).

      In light of these holdings, we agree with the district court that Arrington’s

action is barred by Florida’s two-year statute of limitations. Arrington does not

dispute that the prescription was improper or whether she knew that the

prescription caused her mother’s injury. Indeed, the only information Arrington

did not know was whether Walgreen engaged in any negligent conduct in

dispensing the medication. But Arrington was aware that some negligence likely

occurred, and in fact met with an attorney and ultimately brought timely

malpractice claims against other potential tortfeasors. See Doe v. Hillsborough

Cnty. Hosp., 816 So. 2d 262, 265 (Fla. 2d DCA 2002) (collecting cases) (statute of

limitations commenced when plaintiff became aware of “some physical injury or

medical condition or event [that] had placed [her] in a posture where [she] could

reasonably have been expected to consider the need to examine [the defendant’s]

records.”). Under these circumstances, she thus had “reason to believe that




                                          5
[professional] malpractice may possibly have occurred,” and accordingly the

statute of limitations commenced at that time. Tanner, 618 So. 2d at 182.

      There is no dispute that Arrington knew of the cause of her mother’s

injuries, suspected those injuries were proximately caused by negligence, and even

commenced her first lawsuit more than two years prior to commencing this suit

against Walgreen. As a result, the district court correctly concluded that no

genuine issue of material fact existed as to whether the Florida statute of

limitations barred her professional malpractice action.

      AFFIRMED.




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