United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE
JoAnn Franklin brings this action against Defendants
Wal-Mart, Inc., Wal-Mart Associates, Inc., and Wal-Mart
Stores East, LP (collectively, “Walmart”),
alleging claims of negligence and informed consent claims.
ECF No. 1-6. Pending before the Court is Defendants'
Partial Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6).
ECF No. 5. No. hearing is necessary. See D. Md.
Local R. 105.6. For the following reasons, Defendants'
Partial Motion to Dismiss is GRANTED.
and 2015, Franklin filled her prescriptions for lithium carb
at the Walmart pharmacy located at 1 Frankel Way,
Cockeysville, Maryland. ECF No. 1-6 ¶¶ 7, 9-10. On
March 24, 2015, Franklin's doctor prescribed her
hydrochlorothiazide and sent the order to the Walmart
pharmacy on Frankel Way. Id. ¶ 11.
Approximately four days later, the pharmacy filled the
prescription for hydrochlorothiazide. Id. ¶ 12.
alleges that when she picked up the hydrochlorothiazide, the
Walmart pharmacist failed to warn her of the dangers
associated with taking hydrochlorothiazide and lithium
together, such as lithium toxicity. Id. ¶ 13.
She also alleges that the pharmacist failed to confirm with
her primary care provider that it was appropriate for her to
be on the two medications at the same time. Id.
April 3, 2015, Franklin was admitted to St. Joseph Medical
Center with a diagnosis of lithium toxicity and
hydrochlorothiazide-induced pancreatitis. Id. ¶
16. After being placed on IV fluids and given anti-nausea
medication, she was discharged and instructed not to take
either medication. Id. ¶ 17. In the following
weeks, Franklin continued to suffer from the effects of
lithium toxicity and developed “a variety of severe and
life-threatening conditions.” Id. ¶¶
alleges that the pharmaceutical warnings for
hydrochlorothiazide include that it should not be taken in
combination with lithium due to the combination causing
increased lithium levels. Id. ¶ 20. She further
asserts that the warnings indicate that patients should be
closely monitored for toxicities if the two medications are
administered together. Id.
March 29, 2018, Franklin filed her initial Complaint in the
Circuit Court for Baltimore County, Maryland. ECF No. 1-2.
She filed her Amended Complaint on August 6, 2018. ECF No.
1-6. Defendants then removed the case to this Court, ECF No.
1, and moved to dismiss Count II (Informed Consent) of the
Amended Complaint, ECF No. 5.
STANDARD OF REVIEW
survive a Rule 12(b)(6) motion to dismiss, “a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. “Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.
(citing Twombly, 550 U.S. at 555 (“a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of a cause
of action's elements will not do.”)).
purpose of Rule 12(b)(6) “is to test the sufficiency of
a complaint and not to resolve contests surrounding the
facts, the merits of a claim, or the applicability of
defenses.” Presley v. City of Charlottesville,
464 F.3d 480, 483 (4th Cir. 2006) (citation and internal
quotation marks omitted). When deciding a motion to dismiss
under Rule 12(b)(6), a court “must accept as true all
of the factual allegations contained in the complaint,
” and must “draw all reasonable inferences [from
those facts] in favor of the plaintiff.” E.I. du
Pont de Nemours & Co. v. Kolon Indus., Inc., 637
F.3d 435, 440 (4th Cir. 2011) (citations and internal
quotation marks omitted). The Court need not, however, accept
unsupported legal allegations, see Revene v. Charles
County Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989),
legal conclusions couched as factual allegations, Papasan
v. Allain, 478 U.S. 265, 286 (1986), or conclusory
factual allegations devoid of any reference to actual events.
United Black Firefighters of Norfolk v. Hirst, 604
F.2d 844, 847 (4th Cir. 1979).
alleges that Walmart, through its pharmacist, failed to
obtain her informed consent to the use of hydrochlorothiazide
by not warning her of the risks associated with taking it and
lithium at the same time. ECF No. 1-6 ¶¶ 24(D), 27.
Defendants argue that Franklin's informed consent claim
fails as a matter of law because they did not have a
physician-patient relationship with Franklin and thus had no
duty to obtain informed consent. ECF No. 5-1 at 4. Franklin
responds that the informed consent doctrine applies not only
to physicians, but to pharmacists too. ECF No. 8-1 at 2-10.
Because the Maryland Pharmacy Act and relevant case law do
not support extending the informed consent doctrine to
pharmacists, Franklin's informed consent claim is
The Maryland Pharmacy Act Does Not Impose a Duty on