No good deed goes unpunished. One of our very first cases was a pro bono case for the Red Cross following a Northern California earthquake. The Red Cross gave a local homeowner money to repair her home. It was a gift. No strings attached. Please, take our money and fix your house. Live long and prosper. Well, the homeowner used a contractor who promised to hire the homeowner’s kids, and when the work was lousy (predictably), what did the homeowner do? She sued the Red Cross.
We won on a motion to dismiss, but the charitable organization defendant in Hagerman v. Pfizer, Inc., No. 3:20-05108, 2021 WL 2383718 (W.D. Mo. June 10, 2021), was not so lucky. The Hagerman plaintiff was bitten by a dog on her middle finger, and after a couple months of treatment, the plaintiff’s doctor concluded that she probably had a bone infection (osteomyelitis). Id. The doctor therefore recommended an antibacterial drug, for which peripheral neuropathy is a known complication. Id.
It is a pretty unremarkable story so far, but here is the rub. The plaintiff had no medical insurance, so the doctor’s office contacted the drug manufacturer’s “RSVP” program to get the drug for free. We don’t know much about the “RSVP” program, but we see commercials on TV where they say “if you can’t afford your medication, [fill in the company] can help.” That is what the plaintiff received here—a free 28-day supply, with a later extension of up to 12 months. Id. When the plaintiff later experienced symptoms of peripheral neuropathy, she sued the drug manufacturer for strict liability-failure to warn and negligence. Id.
She also sued the manufacturer-affiliated foundation that runs the RSVP program—which neither made nor sold the drug and, like our former pro bono client the Red Cross, arranged for the plaintiff to receive something from someone else for free.
We have no doubt that the RSVP program will get out of this case at some point (and so too should the manufacturer if the evidence shows that peripheral neuropathy is a known complication). But for the time being, the plaintiff’s boilerplate allegations carried the day, and the Missouri-based federal court denied both defendants’ motions to dismiss. Id.
On strict liability-failure to warn, the RSVP program argued, obviously, that it is a charitable foundation that did not make, did not sell, and did not distribute the drug. Id. The plaintiff’s complaint, however, said otherwise, making “such questions . . . better reserved for summary judgment after a factual record has been established.” Id. The court also rejected the argument that charitable organizations cannot be strictly liability because they lack profit motives. Id. We understand these rulings, but they seem so unnecessary. There must have been something in the complaint or available through judicial notice established that the foundation did not make the product. It is not like the plaintiff was lacking for a defendant—she named the manufacturer in this civil action, and she also filed “a previous lawsuit” presumably against her doctor. Instead, the foundation is stuck developing a “factual record,” which means discovery.
On negligence, the RSVP program owed this plaintiff no duty. (That is the basis on which we got the Red Cross off the hook in our post-earthquake pro bono case.) The district court, however, again treated the program the same as the manufacturer and cited a duty to warn doctors of drug risks. Id. The court also credited the plaintiff’s “allegations and arguments . . . that the defendants through their actions, assumed a duty.” Id. The court did not further describe those “allegations and arguments,” but we suspect it is some version of a duty based on negligent undertaking. In the end, the court acknowledged that “[w]hile the additional negligence claims asserted by Plaintiff may be foreclosed for lack of duty, the Court believes such determination is better suited at summary judgment.” Id.
Again, we expect that these defendants will return with a strong summary judgment motion, but in the meantime, we will chalk this up to one of Bexis’ oldest aphorisms: “Nothing good ever comes out of Missouri.” At least Missouri has fewer earthquakes.