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Friday, September 20, 2019

14th Court of Appeals dismisses Diamond Pharmacy wrongful death case

By Charmaine Little | Feb 7, 2018


HOUSTON – A pharmaceutical company has won the latest round of an ongoing battle with wrongful death beneficiaries after the 14th Court of Appeals reversed a judgment from the trial court based on a Jan. 30 opinion.

The appeals court ruled in favor of The Diamond Pharmacy and Dr. Michael V. Kelly after the company filed an appeal to challenge the trial court’s dismissal of their requests to refer the opposing parties, Richard Ford and Raquel Gonzales, to section 74.351 of the Texas Medical Liability Act. Kelly argued the lower court “abused its discretion by concluding that the plaintiffs’ expert reports complied with” the section in question, according to the opinion.

The current court stated that considering the expert reports do not fulfill the statutory requirements, it overturned the trial court’s decision to deny Kelly and the pharmacy its motion to dismiss.

The legal matters between the two parties started when the appellees, Ford and Gonzales’ daughter, Desiree Ford, was discovered dead four days after Kelly prescribed her a compounded cream that Diamond Pharmacy filled. The Harris County Institute of Forensic Sciences ruled her death an accident at the cause of ketamine and cyclobenzaprine, which were ingredients of the lotion.

The parents filed a lawsuit against Kelly a little more than a year later, in February 2016. They stated that negligence from both parties caused their daughter’s death. They completed their lawsuit with expert reports from Diane Ginsburg, R. Ph., and Michael Dominguez, M.D. under section 74.351. The defendants requested a dismissal and said the expert reports were “insufficient.”

The opinion states Ford and Gonzales requested a 30-day extension, which the trial court granted as it sustained the defendants’ objection to the validity of the expert reports. Ford and Gonzales presented an amended report, which was again argued to be insufficient. Diamond Pharmacy was later added as a defendant. The company argued against the amended report and the plaintiff’s requested a second 30-day extension.

The trial court sided with Ford and Gonzales and overruled Kelly’s objections and denied their request to toss out the trial. Still, the lower court failed to say that it was also “overruling the objections and denying the motion to dismiss” the case against Diamond Pharmacy.

Ford and Gonzales filed another amended expert report, which Diamond Pharmacy argued against under the notion it was untimely. The trial did not grant Diamond Pharmacy its motion to dismiss, causing Diamond Pharmacy and Kelly to file an appeal.

The appeals court stated the expert reports did not give details on the deceased’s prescription such as dosage or how much she used before her passing. It also stated the expert report doesn’t give a clear connection on Kelly and the pharmacy’s “actions and omissions” when Kelly prescribed the deceased the cream.

“The trial court abused its discretion by denying Kelly’s and the Diamond Pharmacy parties’ respective motions to dismiss.”

The appeals court reversed the trial court’s decision and dismissed Ford and Gonzales' claims with prejudice. The case was remanded to determine attorney's fees and costs.

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State of Texas 14th Court of Appeals