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Rite Aid Corp. v. Levy-Gray6/3/2005
Murphy, C.J., Kenney, Rodowsky, Lawrence F. (retired, specially assigned), JJ.
The principal issue here is whether, under the circumstances of this case, the appellant and cross-appellee, Rite Aid Corporation (Rite Aid), made an express warranty when it sold the prescription drug, doxycycline, to the appellee and cross-appellant, Ellen R. Levy-Gray (Ms. Levy-Gray or Plaintiff). A jury in the Circuit Court for Baltimore County, finding the elements of an action for breach of express warranty, entered a verdict in favor of Plaintiff for $250,000.
Ms. Levy-Gray awoke on October 6, 2000, experiencing severe pain in her back, and with a fever. When these symptoms persisted for a full week, she sought treatment from her internist, Dr. Christine Bell-Lafferman (Dr. Lafferman). Blood samples taken during the visit were tested, and, on October 25, 2000, Dr. Lafferman contacted Ms. Levy-Gray to inform her that her blood had tested positive for Lyme disease. Dr. Lafferman referred Ms. Levy-Gray to Dr. Ronald W. Geckler (Dr. Geckler), an infectious diseases specialist, who saw Ms. Levy-Gray that day. Dr. Geckler confirmed the Lyme disease diagnosis and prescribed doxycycline, an antibiotic in the tetracyline family. Ms. Levy-Gray was breast feeding her baby at the time, and Dr. Geckler advised her to discontinue breast feeding while she was on the medication.
Dr. Geckler prescribed a 100 mg dosage twice a day, generally to be taken twelve hours apart. He did not provide Ms. Levy-Gray with any other specific information on how to take doxycycline. At trial he acknowledged that he relied on pharmacies to provide patients with pharmaceutical information " ore so than I used to, I guess because I know that the pharmacies typically give out pretty broad information sheets at the time of the prescriptions. Probably years ago I would have maybe taken more time going through that. But ... I do assume to some extent that the pharmacy will provide that information." Dr. Geckler is not a party to this action.
Plaintiff filled her doxycycline prescription at Rite Aid Pharmacy #4465, located off Padonia Road in Timonium. The doxycycline purchased by her from Rite Aid was purchased by Rite Aid from a non-party to this action, Watson Laboratories, Inc. of Corona, California (Watson), for whom the doxycycline, in turn, was manufactured by Halsey Drug Co., Inc. of Rockford, Illinois , also not a party to this action. Watson shipped the doxycycline in bottles containing 500 capsules, each of 100 mg strength. Included with the package from Watson was an eight-page pamphlet which the manufacturer had submitted to the Food and Drug Administration (FDA) and which had been approved by that agency as "labeling" for that prescription drug.
The labeling contains a chemical description of doxycycline, its "clinical pharmacology," its "indications and usage," "contraindications," "warnings," "precautions," and "adverse reactions." It further contains sections headed, "overdosage," "dosage and administration," "how supplied," and "animal pharmacology and animal toxicology." This manufacturer's insert was not intended to be, and was not, delivered to Plaintiff. It was intended for prescribing physicians and made available to them by publication in, inter alia, the Physicians' Desk Reference.
Along with her prescription, Ms. Levy-Gray received from Rite Aid a "patient package insert" (PPI), i.e., a pamphlet, entitled "Rite ADVICE." The "Rite ADVICE" PPI was prepared and customized for Rite Aid by a non-party to this action, First Databank-The Hearst Corporation. The cover page of the pamphlet informed readers: "Inside is everything you need to know about your prescription. It cover
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