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Kelly v. Echols

September 2, 2008


The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge


This case stems from the dual suicide of a mother, Leisa Kelly ("Leisa") and son, Ryan Kelly ("Ryan"), after they obtained an anti-depressant, Elavil, from the internet. Plaintiff Candy Kelly is the mother of Leisa and grandmother of Ryan. Plaintiff alleges a California state law claim for wrongful death based on negligent provision of Elavil to Leisa and Ryan. Defendants EZRX, L.L.C. ("EZRX"), Frank Hernandez, and Amada Hernandez move for summary judgment. For the reasons that follow, the motion will be granted.


Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Thrifty Oil Co. v. Bank of America Nat'l Trust & Savings Assn, 322 F.3d 1039, 1046 (9th Cir. 2002). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun, 509 F.3d at 984. Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008); Soremekun, 509 F.3d at 984; Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102-03 (9th Cir. 2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire & Marine, 210 F.3d at 1103. The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008).

The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Juell v. Forest Pharms., Inc., 456 F.Supp.2d 1141, 1149 (E.D. Cal. 2006); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a "motion for summary judgment may not be defeated . . . by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). Additionally, the court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. See Nissan Fire & Marine, 210 F.3d at 1103.


EZRX was originally organized as a limited liability company in the State of Florida on April 23, 2003. DUMF No. 4.*fn1 EZRX conducted its principal place of business in New Jersey, where it was registered as a pharmacy with the Department of Health on September 3, 2003. DUMF No. 5. EZRX also possessed a Federal DEA Number as a pharmacy as of September 23, 2003.*fn2 DUMF No. 6.

On or about January 22, 2004, a prescription for Elavil was requested and ordered over the internet in the name of Leisa Kelly. DUMF No. 9. As part of the ordering process, a questionnaire was filled out by one purporting to be Leisa Kelly. See Craig Declaration Exhibit 8. Under the section of the questionnaire that asks about the condition for which the medication is being ordered, "severe depression" is entered. See id. It is not clear whether Leisa or Ryan ordered the Elavil, but the computer belonged to Ryan and the credit card belonged to Leisa. See DUMF Nos. 44-46, 88, 98-100. A prescription in the name of Leisa Kelly for 90 tablets of 150 mgs. of Elavil was electronically routed to EZRX and filled on January 26, 2004, following the transmission of a prescription by Dr. Everett Echols. DUMF No. 10; see also DUMF No. 37, 86. Echols worked for the website RX Medical and would review questionnaires that were filled out by those who accessed the website. See Echols Transcript at 90, 92.*fn3 Echols had no physical contact and no pre-existing physician-patient relationship with those who accessed the website. See id. Once Echols reviewed and approved a questionnaire, a prescription would be sent to a pharmacy who worked with RX medical. See id. The pharmacy would then fill the prescription. See id. The pharmacy in this case was EZRX. See DUMF No. 10. While working for RX Medical, Echols reviewed approximately 244,000 questionnaires and reviewed between 200 and 1,000 questionnaires per day.*fn4 See Echols Transcript at 94, 110. In this case, the prescription for Elavil was filled only for use by Leisa. DUMF No. 52, 106. Leisa and Ryan committed suicide on January 30/31, 2004, by ingesting toxic amounts of Elavil. DUMF No. 11.

It appears that both Leisa and Ryan each deliberately and knowingly overdosed with approximately forty-five times the recommended daily dose, i.e. each took forty-five pills at one time. See DUMF Nos. 54, 108. Had Leisa (and Ryan) taken the Elavil as prescribed, it would not have had significant deleterious effects on her (his) health other than the side effects typically experienced with its use. See DUMF Nos. 53, 107. To a reasonable degree of medical probability, Leisa and Ryan knowingly and purposefully ingested a toxic amount of Elavil for the purpose of committing suicide. See DUMF Nos. 55, 109. The suicides of Leisa and Ryan were voluntary planned acts that were performed with full control of their actions and with full understanding and realization of the physical character, nature, quality, risk, and consequences of suicide. See DUMF Nos. 48, 102. To a reasonable degree of medical probability, there is no evidence suggesting that, in committing suicide, Leisa and Ryan were acting under the influence of an insane, uncontrollable, or irresistible impulse.*fn5 See DUMF Nos. 50, 104.

Leisa and Ryan were contemplating suicide prior to ordering and receiving the Elavil. See DUMF No. 38, 87; see also DUMF No. 39. Leisa and Ryan planned their dual suicides by researching methods of suicide, and ultimately decided to order Elavil over the internet. DUMF No. 56, 110. Prior to the order of Elavil, Ryan visited a website which listed methods of suicide, including toxic ingestion of amitriptyline (the key component of Elavil).*fn6 See DUMF Nos. 12, 95. The act of visiting such a website before receiving the Elavil is more than coincidental and reflects conscious planning and not coercion or impulse. See DUMF No. 96. The method of committing suicide by toxic ingestion of Elavil evidences significant planning. See DUMF Nos. 43, 89, 97. Their plan to commit suicide occurred before the Elavil was ordered and received. See DUMF Nos. 57, 58, 87, 111, 112. The act of ordering Elavil over the internet requires research and planning and involved multiple, voluntary, intervening actions and behaviors. DUMF No. 40. Also, both Leisa and Ryan wrote suicide notes before they commenced their successful suicides. See DUMF Nos. 41, 90, 92-94. Leaving a suicide note represents planning and a consideration of events to occur after one commits the act of suicide; not the actions of impulse, accident or coercion. DUMF No. 42, 91.

To a reasonable degree of medical probability, the Elavil did not create pre-morbid conditions in, or cause or contribute to the intent to commit suicide of, Leisa and Ryan, i.e. Elavil did not cause Leisa and Ryan to commit suicide. See DUMF Nos. 59-61, 113-115. To a reasonable degree of medical probability, other risk factors caused Leisa and Ryan to commit suicide, including psychotic symptoms, drug abuse and dependence, social isolation, self-esteem issues, familial relationships, financial dependence, debilitating anxiety, and separation issues. See DUMF Nos. 62, 116. Of special note, Leisa made persistent and desperate attempts to prevent Ryan from leaving her and attending his senior year of high school, and later college, in the Bay area; the threats to this profound dependence appear to have been the central dynamic theme leading them both to dual suicide. See DUMF Nos. 64, 65, 118.

With respect to Leisa Kelly, Leisa suffered from a longstanding and significant psychiatric disorder as evidenced by: (1) diagnosis and treatment for three years for chronic, relapsing schizophrenia marked by losing touch with reality, hallucinations, paranoia, and mood instability; (2) diagnosis and treatment for three years for depression; (3) an established history of methamphetamine, marijuana, and alcohol abuse; (4) claimed allegations of sexual abuse; (5) confirmed recurring suicidal ideation with at least one known prior suicide attempt in 2000; (6) she reported receiving a diagnosis of dissociative identity disease; and (7) signs of low self-esteem and isolationism. See DUMF No. 13;*fn7 see also DUMF Nos. 17, 20, 24, 25, 29-36.*fn8 These manifestations of Leisa's psychiatric disturbance, on an individual basis, are all factors associated with an increased risk of suicide, and, on a collective basis, demonstrate a significant risk of suicide. DUMF Nos. 14,*fn9 27, 28, Although Leisa committed suicide at age 46, she began exhibiting symptoms associated with a psychotic disorder in her teens and early twenties. DUMF No. 16. Further, Leisa had a long history of chronic depression from as early as 1975 to the time of her suicide in 2004. See DUMF No. 18; see also DUMF No. 19. After her attempted suicide in November 2000, Leisa exhibited chronic suicidal ideation up to the time of her completed suicide. DUMF No. 26; see also DUMF No. 47. However, when treated by Dr. Haspel, Leisa had gone "long periods" with relative stability. See Haspel Depo. at 46:3-5.

Similarly, Ryan suffered from longstanding, significant, psychiatric dysfunction, as evidenced by the following: (1) he was diagnosed and treated for nearly two years for major depression; (2) he was diagnosed and partially treated for bipolar disorder type II; (3) he had an established history of methamphetamine, dextromethorphan, marijuana, and alcohol abuse;*fn10 (4) he demonstrated confirmed severe self-sabotaging behavior; (5) he had confirmed recurring or sporadic (although apparently not chronic) suicidal ideation and at least one known prior suicide attempt in November 2001 (through overdosing on antidepressants); and (6) he displayed considerable negative self-esteem and isolationism. See DUMF Nos. 67, 80; Haspel Depo. at 32:4-8; see also DUMF Nos. 69-72, 76-78, 82. These manifestations of Ryan's psychiatric dysfunction on an individual basis are factors associated with an increased risk of suicide and, on a collective basis, demonstrate a significant risk of suicide. See DUMF Nos. 68, 71, 79, 81, 83. Ryan's November 2001 suicide attempt and episodic suicidal ideation thereafter demonstrate that he considered suicide on numerous occasions more than two years before his successful suicide in January 2004. See DUMF No. 84; see also DUMF No. 101. Despite access to psychiatric and therapeutic support*fn11 : (1) no notable progress had been made in helping Ryan separate and individuate from Leisa; (2) Ryan was inconsistent with therapy and his overall situation worsened; (3) he dropped out of school and became more isolated; (4) he increased alcohol use; and (5) he became increasingly distressed as the time approached for him to leave Leisa and go to college in the Bay area. See DUMF Nos. 64, 117, 119-121, 123.

Separately, Plaintiff admits that Ryan had a biological father, but she also has admitted that she does not know the father's identity. See DUMF Nos. 126-127. Leisa provided a fabricated name on Ryan's birth certificate. See DUMF No. 128.


Defendants' Argument

Defendants argue that Plaintiff, as the grandmother of Ryan, is not a first level heir under the laws of intestate succession. Parents have priority over more distant relations, such as grandparents, under intestate succession. Plaintiff must establish that she has standing under the wrongful death statute. Thus, she must show that Ryan's biological father predeceased Ryan. However, Plaintiff admits that Ryan has a biological father, but does not know who he is. Further, the name on Ryan's birth certificate was fabricated. Since Plaintiff cannot identify Ryan's father, she cannot show that Ryan's father predeceased Ryan or that she is Ryan's heir.

Plaintiff's Opposition

Plaintiff argues that she never knew the name of Ryan's father, but the relationship was "so meaningful" that not even the father's real name was on the birth certificate. A parent can only inherit as an heir from an illegitimate child if certain criteria are fulfilled, as per Probate Code § 6452. Neither of those criteria have been met. Ryan never met his father and did not know his father's name.*fn12 Since the requirements of Probate Code § 6452 could not be met by Ryan's father, Ryan's father could not be an heir. Plaintiff is Ryan's heir and has standing.

Legal Standard

In California, the cause of action for wrongful death is "a pure creature of the statute" and "'exists only so far and in favor of such person as the legislative power may declare.'" Justus v. Atchison, 19 Cal.3d 564, 575 (1977); Rosales v. Battle, 113 Cal.App.4th 1178, 1182 (2003); Chavez v. Carpenter, 91 Cal.App.4th 1433, 1438-1440 (2001); Fraizer v. Velkura, 91 Cal.App.4th 942, 945 (2001). Standing to sue is governed by California Code of Civil Procedure § 377.60, and the category of persons eligible to bring wrongful death actions is strictly construed. Cal. Code Civ. Pro. § 377.60; Steed v. Imperial Airlines, 12 Cal.3d ...

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