Pharmacy Liability – Pharmacy is not liable for damages under Drug Dealer Liability Act where it did not knowingly market drugs sold by its employee

Melody Wittemore et al., v. Owens Healthcare – Retail Pharmacy, Inc. etc. et al., 2010 DJDAR 9463 (June 22, 2010).

This action involved interpretation of the Drug Dealer Liability Act (the Act) which is found under Health and Safety Code sections 11700 et. seq.  The act authorizes the user of an illegal controlled substance to recover damages resulting from its use from those who knowingly market the substance.  It extends to substances for which a prescription is required.  The question in this case was whether a pharmacy can be held liable for the act or the conduct of an employee who furnishes stolen prescription drugs to the plaintiff. 

 In this matter, the plaintiff bought black market prescription pain medications from the defendant pharmacy’s employee to which she became addicted.  Plaintiff and her husband thereafter sued the employee and his employer pharmacy, from whom they allege the employee obtained the illegal controlled substance on the ground that the pharmacy failed a legal duty to the plaintiff’s to discover and report the substance had been stolen from them.  The trial court sustained the pharmacy’s demurrer ruling that the plaintiff’s could not bring a cause of action under the act.  The plaintiff’s appealed.  The appeals court affirmed the trial court’s ruling finding that the act extends liability only to a person “who knowingly participates in the marketing of illegal controlled substances within this state…” (see section 11704).  The appeals court found that the pharmacy did not knowingly market the illegal controlled substances to the plaintiff.

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