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Whittemore v. Owens Healthcare - Retail Pharmacy

June 22, 2010


APPEAL from a judgment of the Superior Court of Shasta County, Bradley L. Boeckman, Judge. Affirmed. (Super. Ct. No. 163129).

The opinion of the court was delivered by: Blease, J.


This action involves the Drug Dealer Liability Act (the Act). (Health & Saf. Code, §§ 11700 et seq.)*fn2 It authorizes a user of an illegal controlled substance (and specified others) to recover damages resulting from its use from those who knowingly market the substance. It extends to substances for which a prescription is required. (§§ 11703, subd. l, 11352.) The question tendered is whether a pharmacy is liable under the Act for the conduct of an employee who furnished stolen prescription drugs to the plaintiff.

For more than a year, plaintiff Melody Whittemore bought black market prescription pain medications, including OxyContin, from defendant Steven Correa, an employee of defendants, and she became addicted. The pain medications were Schedule II controlled substances that may be dispensed legally only by prescription. (Health & Saf. Code, §§ 11055, 11352.)

Thereafter, Melody*fn3 and her husband Kennith L. Whittemore sued Correa and his employers, defendants Owens Healthcare-Retail Pharmacy and Omnicare, Inc. (the pharmacies), from whom they allege Correa obtained the illegal controlled substances, on the ground that the pharmacies failed a legal duty to plaintiffs to discover and report that the substances had been stolen from them.

The trial court sustained the pharmacies' demurrer without leave to amend, ruling that the doctrine of unclean hands barred plaintiffs from maintaining causes of action "[b]ased on plaintiff's own illegal conduct in buying and taking medications for which she had no prescription and which she was aware were stolen . . . ."

Plaintiffs appeal from the ensuing judgment of dismissal. They assert that they should be permitted leave to amend their complaint to allege that the Act creates a statutory exception to the doctrine of unclean hands.

We agree that the doctrine of unclean hands does not preclude recovery in circumstances covered by the Act because the very purpose of the Act is to permit recovery of damages in specified circumstances by the user and others damaged by the use of the drugs. (§§ 11706, 11705.) However, the Act extends liability only to a person "who knowingly participates in the marketing of illegal controlled substances within this state . . . ." (§ 11704.)

We shall affirm the judgment for the reason that the pharmacies did not knowingly market the controlled substances to Melody.


In reviewing a judgment of dismissal entered after the sustaining of a demurrer, we accept as true the factual allegations of the complaint. (Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238.) The operative (first amended) complaint alleges the following.

Melody was treated by a doctor in or about September 2005 for a severe infection. After she left her doctor's care, Melody "did not know how she was going to be able to obtain the necessary pain medication." She was approached by a woman who "informed her that the pain medication could be obtained for her for $1.00 per pill"; Steven Correa soon began providing Melody with pain medication. Melody purchased various pain medications from Correa, including Norco, OxyContin and Hydrocodone, and she asserts that all of these medications "came from Defendant/OWENS and/or Defendant/OMNICARE[,]" by whom Correa was employed.*fn4

Between September 2005 and March 2007, Melody paid Correa over $330,000 in cash for pain pills. She became physically and emotionally addicted to them. Her husband discovered her distress, and she was hospitalized. Sometime thereafter, Melody cooperated with drug enforcement officers to expose and arrest Correa.

After plaintiffs learned that the pharmacy defendants are required by law to monitor medications in their possession and to report missing medication to the Drug Enforcement Agency, they brought this action against Correa and Owens Healthcare-Retail Pharmacy, Inc., Omnicare, Inc., seeking damages based on various theories including negligence. They alleged the pharmacy defendants failed to properly monitor and account for controlled medications in their possession, and failed to report to the federal drug enforcement agency that certain medications had been lost, missing or stolen, and, in so doing, "were instrumental in providing [Melody] with assorted pain medication," and acted in "reckless disregard for Plaintiff's welfare."

Plaintiffs also alleged Kennith Whittemore suffered severe emotional distress by virtue of his having seen the effects the drugs had on his wife, and sought damages on legal theories of unfair business practices, loss of consortium, intentional infliction of emotional distress, and battery because Melody's addiction rendered her unable to consent to ingesting the pain medication. Among the damages plaintiffs sought to recover were ...

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