Professional Negligence Law Reporter

A Pennsylvania appellate court held that a pharmacy was not liable for a fentanyl overdose where the decedent—a friend of the patient’s son—schemed with the son to obtain the drug from the pharmacy.

Cody Albert frequently ingested OxyContin and marijuana. While on Percocet after a hospitalization, he and a friend, Zachary Ross, devised a plan to obtain fentanyl from Sheeley’s Drug Store, the pharmacy that kept a fentanyl prescription for Ross’s mother, a cancer patient. Albert drove Ross to Sheeley’s and waited outside while Ross obtained the fentanyl from the pharmacy. Albert then went home, ingested the fentanyl, and fell asleep on the couch. Attempts to revive him were unsuccessful.

Albert’s father, individually and on behalf of his estate, filed suit against Sheeley’s Drug Store, Inc., alleging negligence, wrongful death, and a survival claim. The defendant moved for summary judgment, which the trial court granted under the in pari delicto doctrine, which applies when a plaintiff seeks redress but bears substantially equal or greater responsibility for an underlying illegality.

Affirming, the court said that here, Albert had a history of abusing drugs with Ross and had arranged to drive with him to Sheeley’s to obtain his mother’s fentanyl prescription. Thus, the court found, Albert had taken part in the scheme to obtain the fentanyl, a controlled substance, in violation of state law. Considering Albert’s wrongful conduct, the trial court had not erred in granting the defendant summary judgment on the basis of in pari delicto, the court concluded.

Citation: Albert v. Sheeley’s Drug Store, Inc., 2020 WL 3529425 (Pa. Super. Ct. June 30, 2020).