[00:00:01] Speaker 03: We'll next hear Scalby Walgreens, number 255053, counsel. [00:00:08] Speaker 03: You may proceed. [00:00:11] Speaker 04: Your Honors, and may it please the Court, Jason McVicker on behalf of Jackie and Eric Scholl and JJS, a minor child. [00:00:19] Speaker 04: I intend to reserve three minutes for rebuttal, and I am going to refer collectively to our appellees as Walgreens. [00:00:28] Speaker 04: I want to start with a short recitation of the facts because JJS is a minor child who was adopted from China with a wide array of really serious health problems. [00:00:39] Speaker 04: Those include developmental delay, those include deafness, and of particular importance today is diagnosis of vaginal agenesis. [00:00:50] Speaker 04: Put simply, her body cannot naturally clear menstrual fluid or tissue, resulting in an extremely painful internal buildup. [00:01:00] Speaker 04: And in Walgreen's brief, they say, well, she didn't die. [00:01:04] Speaker 04: That does not change the horrifying and painful nature of the injuries that she suffered as a result of Walgreen's failure to timely dispense this medication. [00:01:16] Speaker 04: Now, as you know, the family ultimately chose to manage vaginal agenesis using Lupron depot shots to suspend JJS's menstrual cycle. [00:01:26] Speaker 04: This prescription, for a variety of reasons, had to be filled by a specialty pharmacy. [00:01:32] Speaker 04: And what this case ultimately comes down to is what duty does a pharmacist owe a patient? [00:01:39] Speaker 04: Now, Walgreens, in its brief, sort of takes issue with the word patient. [00:01:43] Speaker 04: But as the court can see from the motion for summary judgment, [00:01:46] Speaker 04: to which was attached a patient assessment report and consolidated patient notes, it had no difficulty admitting that JJS was a patient below. [00:01:55] Speaker 04: I would also direct the court's attention to Walgreen's corporate representative's testimony. [00:02:02] Speaker 04: Catherine Sorencioni, who testified that she is both a pharmacist and an attorney, admitted in her deposition that JJS was a patient. [00:02:12] Speaker 04: She also, I think importantly, [00:02:14] Speaker 04: admitted in her deposition at page 38, that time is of the essence when filling these prescriptions. [00:02:20] Speaker 03: That can be found. [00:02:21] Speaker 03: Could I just ask you, as I understand it, the duty question is presented essentially in two parts. [00:02:33] Speaker 03: One is whether Walgreens owes a duty to fill prescriptions under Oklahoma law. [00:02:41] Speaker 03: And the other is more of an as applied [00:02:44] Speaker 03: kind of duty. [00:02:45] Speaker 03: That is, did Walgreens assume a duty based on what happened here to the plaintiff through its actions? [00:02:55] Speaker 03: I follow. [00:02:56] Speaker 03: Does that work so far? [00:02:57] Speaker 03: Yes. [00:02:58] Speaker 03: OK. [00:02:58] Speaker 03: So when you start referring to the record and these documents and deposition and so forth, which of those two are you talking about? [00:03:07] Speaker 04: I think there's analytic overlap here. [00:03:09] Speaker 04: because the district court departed from the arguments that Walgreens made. [00:03:14] Speaker 04: And so I think we need to talk about all of them together. [00:03:17] Speaker 03: Well, that's fine. [00:03:19] Speaker 03: But it would also be helpful at some point to maybe pull out, because you are making two separate arguments. [00:03:26] Speaker 03: Certainly, Your Honor. [00:03:27] Speaker 03: Yeah, OK. [00:03:30] Speaker 04: The common law issue here, I think, is probably the simpler of the two issues. [00:03:37] Speaker 04: Under Oklahoma law, [00:03:38] Speaker 04: And again, we are talking about what the district court did in this case. [00:03:43] Speaker 04: Walgreens argues in its motion for summary judgment at pages 16 through 19. [00:03:49] Speaker 04: We satisfied our duty. [00:03:51] Speaker 04: We terminated our duty by following our internal policies and procedures. [00:03:55] Speaker 04: And then we did not reassume a duty, which I think is a pretty important admission there, until later. [00:04:03] Speaker 04: That is the argument that Walgreens makes in its motion. [00:04:06] Speaker 04: The district court took a third path by finding that there was no duty at all. [00:04:11] Speaker 04: And I want to start with the common law duty because I think it is clear error in this case. [00:04:17] Speaker 04: The Oklahoma Supreme Court in Wofford versus Eastern State Hospital declared that you have a common law duty anytime it is foreseeable that your failure to satisfy your professional obligations could harm somebody. [00:04:32] Speaker 04: And if the question is simply, was it foreseeable that the failure to timely fill this prescription would injure JJS? [00:04:38] Speaker 04: The answer is clearly yes. [00:04:41] Speaker 04: Wofford is important for two other reasons. [00:04:43] Speaker 02: When did the duty arise that you're describing? [00:04:46] Speaker 02: What moment? [00:04:47] Speaker 04: When they accepted JJS's prescription as a patient. [00:04:51] Speaker 04: And I would direct the court to the patient assessment report and the consolidated patient notes attached to Walgreens [00:04:59] Speaker 04: motion for summary judgment. [00:05:01] Speaker 04: Is that June 1 or 2? [00:05:02] Speaker 02: Yes. [00:05:04] Speaker 02: Why isn't it a conditional duty? [00:05:07] Speaker 02: If you get the pre-authorization, then we'll do XYZ. [00:05:10] Speaker 02: But if you don't, good luck. [00:05:12] Speaker 02: It sounds like you don't want to use Walgreens anymore. [00:05:16] Speaker 04: Well, I think that's a hypothetical question, Your Honor, because the fact is Walgreens did receive the pre-authorization number. [00:05:22] Speaker 04: I would also note, Your Honor, that in addition to the mere fact that there is a pharmacist-patient relationship, [00:05:29] Speaker 04: Walgreens represents to patients in general and to the Scholls in particular that they are going to do all of the work for this. [00:05:37] Speaker 04: This is a representation they make to all of their patients and a representation they made to Ms. [00:05:42] Speaker 04: Scholl. [00:05:43] Speaker 02: So was there any limit, any time limit in getting the pre-authorization if it had gone on for three months? [00:05:50] Speaker 02: I think that would be negligent. [00:05:53] Speaker 02: On whose behalf? [00:05:54] Speaker 04: Certainly on Walgreens. [00:05:57] Speaker 02: OK. [00:05:58] Speaker 02: Do you think Walgreens could secure the pre-authorization and had a duty to do that? [00:06:02] Speaker 02: Yes. [00:06:03] Speaker 03: I thought the doctor had to get it. [00:06:06] Speaker 04: Well, again, that's not what Walgreens tells patients. [00:06:09] Speaker 03: Well, but isn't that what Walgreens told Dr. Hildebrand? [00:06:14] Speaker 04: It is. [00:06:14] Speaker 03: Well, then isn't that where the responsibility was for pre-authorization? [00:06:20] Speaker 04: I think you could make an argument that there is a form of ghost tortfeasor liability or comparative negligence there, but it does not negate the pharmacy's own duties. [00:06:31] Speaker 04: Again, Wofford, I think, governs here, because Wofford makes the important holding. [00:06:37] Speaker 04: Is Wofford a pharmacy case? [00:06:39] Speaker 04: No, Your Honor, it's a psychiatry case. [00:06:41] Speaker 04: What does it have to do with pharmacies? [00:06:44] Speaker 04: Two things. [00:06:45] Speaker 04: First, it says, as a matter of Oklahoma Supreme Court precedent, [00:06:48] Speaker 04: that there is no rational basis for insulating any particular professional calling from liability for negligence occurring in its performance. [00:06:57] Speaker 04: It also explicitly rejects the district court's conclusion. [00:07:01] Speaker 03: Where is the discussion of duty, though? [00:07:03] Speaker 03: I mean, you don't get to negligence without a duty. [00:07:05] Speaker 03: Where's the duty in that? [00:07:07] Speaker 04: In Wofford? [00:07:09] Speaker 03: In the statement that you just quoted. [00:07:12] Speaker 04: The question in Wofford was whether or not a psychiatrist owed a duty of care in discharging a psychiatry patient who could be a danger to others, similar to the terrible. [00:07:24] Speaker 03: It seems like a far cry from a pharmacy getting a request for a prescription and needing pre-authorization. [00:07:33] Speaker 03: I disagree, Your Honor, because there's no factual distinction between those two scenarios. [00:07:39] Speaker 03: Is that what you're telling us? [00:07:40] Speaker 04: I think you can form factual distinctions, certainly. [00:07:43] Speaker 04: But what the Supreme Court says is two things here that are relevant in Wofford. [00:07:49] Speaker 04: The first is there's no rational basis to just say pharmacists don't have a duty. [00:07:54] Speaker 04: That is not a holding that the Oklahoma Supreme Court has ever made. [00:07:58] Speaker 04: Separately, Wofford. [00:08:00] Speaker 03: Well, on the first issue you raise, that was the holding of the district court that under the Pharmacy Act [00:08:10] Speaker 03: in the pharmacy board regulations, there is not an express duty to fill. [00:08:15] Speaker 03: So we're back to that issue. [00:08:16] Speaker 03: Unless you want to revise that statement. [00:08:21] Speaker 04: No, Your Honor. [00:08:21] Speaker 03: I think we're still on that issue. [00:08:23] Speaker 03: On what issue? [00:08:24] Speaker 03: On this issue of duty. [00:08:25] Speaker 03: I thought we were on a common law issue. [00:08:27] Speaker 03: Isn't that what you wanted to talk about with Wofford? [00:08:30] Speaker 04: Yes, Your Honor. [00:08:31] Speaker 03: OK. [00:08:31] Speaker 03: The statement you just made sounded a lot more a general statement about Oklahoma law on the duty to fill prescriptions by pharmacies. [00:08:39] Speaker 03: And this is my problem with your arguments. [00:08:41] Speaker 03: You seem to toggle between the two. [00:08:43] Speaker 03: And you've got to give us an analytical distinction to understand what you're saying. [00:08:48] Speaker 04: Wofford answers this question. [00:08:50] Speaker 04: Is it foreseeable that the pharmacy's failure to fill this prescription could injure JJS? [00:08:57] Speaker 03: Wofford also explicitly rejects the district court's- Based on a case that has to do with a psychiatrist-patient relationship? [00:09:06] Speaker 04: Yes. [00:09:07] Speaker 04: Here we are presented with a case where there is a pharmacist-patient relationship. [00:09:13] Speaker 03: And Wofford recognizes- That's the same as a doctor-patient relationship? [00:09:17] Speaker 04: No. [00:09:18] Speaker 03: But Wofford recognizes that these- Well, if it's not the same as a doctor-patient relationship, why does Wofford control? [00:09:26] Speaker 04: Wofford says that regardless of the distinctions, because Wofford deals with this- Regardless of the distinctions? [00:09:34] Speaker 03: You need a case that's on point. [00:09:36] Speaker 03: You don't have an on-point case. [00:09:39] Speaker 03: Give us a pharmacy case. [00:09:41] Speaker 03: Do you have one? [00:09:42] Speaker 04: No, Your Honor. [00:09:43] Speaker 03: All right. [00:09:45] Speaker 04: Well, that's not accurate. [00:09:46] Speaker 04: I think Cavalli addresses this from the Fifth Circuit. [00:09:50] Speaker 03: OK. [00:09:52] Speaker 03: All right. [00:09:52] Speaker 03: You have an applicable state law case that talks about pharmacy duty. [00:09:58] Speaker 04: No, Your Honor, but I think that you are drawing the question at a level of abstraction that is not consistent with Oklahoma law. [00:10:04] Speaker 03: No, I'm drawing the question at a specific to pharmacies. [00:10:09] Speaker 03: It's not abstract at all. [00:10:11] Speaker 04: Under Oklahoma law, you owe duty as a professional any time it is foreseeable that your negligence could harm your client, your patient. [00:10:20] Speaker 01: Regardless of the profession. [00:10:22] Speaker 04: That's an abstract statement. [00:10:23] Speaker 01: Is that your position? [00:10:25] Speaker 01: Yes, Your Honor. [00:10:26] Speaker 01: all of these cases that you are relying on that don't deal with pharmacists, it's your position that they're still relevant because there's a general professional duty recognized in Oklahoma. [00:10:36] Speaker 01: Is that your position? [00:10:37] Speaker 04: Exactly. [00:10:38] Speaker 04: And this court interpreting Oklahoma law agreed in the Guy versus Forest Oil Company. [00:10:44] Speaker 04: This is a general negligence principle. [00:10:46] Speaker 04: This is a common law duty. [00:10:48] Speaker 01: That applies regardless of the profession. [00:10:50] Speaker 04: That is correct. [00:10:53] Speaker 01: Go ahead. [00:10:53] Speaker 04: I didn't mean to interrupt. [00:10:54] Speaker 01: No, no, you go ahead. [00:10:55] Speaker 04: I would also note that the authorities that the District Court and Walgreens rely on are non-precedential opinions of the Oklahoma Court of Civil Appeals, one of which is not a negligence case and does not purport to address tort duties. [00:11:11] Speaker 01: So let me, I want to redirect you. [00:11:14] Speaker 01: As Judge Matheson pointed out, we have these two buckets, the duty under Oklahoma law and the course of conduct. [00:11:20] Speaker 01: Let's assume that we disagree with the argument that there's a general professional duty in Oklahoma that would apply here in favor of your position. [00:11:28] Speaker 01: And what's left then is there has to be some duty from Walgreens' course of conduct. [00:11:34] Speaker 01: Yes, Your Honor. [00:11:36] Speaker 01: Focusing just on that, that then requires us to look at what the evidence was at summary judgment, right? [00:11:43] Speaker 04: I agree. [00:11:43] Speaker 01: OK. [00:11:44] Speaker 01: So what exactly is the evidence that we should be looking at here [00:11:50] Speaker 01: that Walgreens promised anything, made a contract, took on a special relationship before July 13th? [00:12:00] Speaker 04: I would direct the court to several places. [00:12:03] Speaker 04: I think the most salient testimony can be found in Ms. [00:12:07] Speaker 04: Scholl's deposition at Appendix Volume 3. [00:12:11] Speaker 04: In the passages, it's [00:12:14] Speaker 04: The deposition pages are 174 through 176, and that's at the appendix 148. [00:12:20] Speaker 04: I would also direct the court to Walgreen's corporate representative's deposition testimony, where she admitted there was a duty to timely fill a prescription. [00:12:34] Speaker 04: At deposition page 43, [00:12:36] Speaker 04: Appendix Volume 3, page 69. [00:12:38] Speaker 04: I would also direct the Court's attention to the promises made to patients that Walgreens attached to its own motion and Appendix Volume 4, page 41. [00:12:50] Speaker 03: Additionally, Your Honor, one of the complaints that we have about the breach of contract are- Can I just ask you, of all the sites that you just gave us, what's the answer to Judge Rossman's question about what happened here, the course of conduct? [00:13:04] Speaker 03: Could you elaborate on any of those? [00:13:06] Speaker 04: Walgreens told this patient that they would fill the prescription when they got the pre-authorization number. [00:13:15] Speaker 04: They got the pre-authorization number in June. [00:13:18] Speaker 04: They didn't fill the prescription. [00:13:21] Speaker 04: I would also note here that this court's review is de novo. [00:13:26] Speaker 04: And applying common sense to these facts, look at that patient chronology that Walgreens attached to its own motion. [00:13:36] Speaker 04: When Jackie Scholl called the pharmacy and said, here is the pre-authorization number, they told her they would fill it. [00:13:44] Speaker 04: Now, the district court, Sue Asfanti, declares that, well, we don't know what happened in that call. [00:13:50] Speaker 04: Wait. [00:13:50] Speaker 03: Is that on June 16? [00:13:53] Speaker 03: Isn't that when they got the pre-authorization? [00:13:55] Speaker 04: In June. [00:13:56] Speaker 04: Yes, Your Honor. [00:13:57] Speaker 04: June 16. [00:13:58] Speaker 04: I believe that's accurate. [00:14:00] Speaker 03: OK. [00:14:01] Speaker 03: I think it is. [00:14:01] Speaker 03: But if we're off a day, it doesn't matter. [00:14:05] Speaker 03: What is the evidence that when they got the pre-authorization number, and I thought Dr. Hildebrand communicated it too, didn't he? [00:14:15] Speaker 04: That is correct, Your Honor. [00:14:16] Speaker 04: Separate phone calls, but same day. [00:14:18] Speaker 03: OK, two phone calls. [00:14:21] Speaker 03: What is the evidence at that point that Walgreen said, OK, we're going to fill the prescription? [00:14:28] Speaker 03: What does the record tell us there? [00:14:30] Speaker 04: This ties into two issues. [00:14:32] Speaker 04: And one is, from the record, [00:14:34] Speaker 04: Again, common sense. [00:14:36] Speaker 04: What was this family supposed to do? [00:14:38] Speaker 03: Well, no, you just said that they said they were going to fill the prescription. [00:14:42] Speaker 03: Is there anything in the record that supports that on June 16? [00:14:48] Speaker 03: Yes, Your Honor. [00:14:49] Speaker 03: Because they'd already closed the file. [00:14:52] Speaker 04: Well, yes, they did. [00:14:54] Speaker 04: Here's the thing. [00:14:56] Speaker 03: I just want to know, what's your evidence? [00:14:59] Speaker 04: The record reflects that the file closure was not communicated to my client. [00:15:04] Speaker 04: When my client communicated with Walgreens, they told her that they would fill this prescription. [00:15:09] Speaker 03: Okay, what's your evidence of that? [00:15:11] Speaker 03: That's what I'm getting at. [00:15:12] Speaker 03: Yes, your honor. [00:15:12] Speaker 03: Can you pin that down? [00:15:13] Speaker 03: I'm trying to answer. [00:15:14] Speaker 03: I'd love to hear an answer. [00:15:17] Speaker 04: When you look at those patient notes, there is no rational explanation for the gap between June and July, except the fact that my client was led to believe by Walgreens that the prescription was going to be filled. [00:15:31] Speaker 02: Is there a record and a page site, and here's what it says on that page? [00:15:35] Speaker 02: That's the question. [00:15:37] Speaker 02: And if you don't know the answer, then say you don't know the answer. [00:15:40] Speaker 04: Your Honor, this is leading into my second complaint about the district court's suicide decision. [00:15:45] Speaker 03: All right, you're over time, and you can keep going for a little bit. [00:15:48] Speaker 03: I appreciate that, Your Honor. [00:15:49] Speaker 03: Let's get to the point. [00:15:51] Speaker 04: One of the arguments that we have raised on appeal is that if this argument that we had to enter into a separate [00:15:57] Speaker 04: contract with Walgreens after the pre-authorization had been provided, an argument that Walgreens did not raise, that the district court raised to Esponti. [00:16:08] Speaker 04: We would have submitted an affidavit from Ms. [00:16:11] Speaker 04: Scholl. [00:16:13] Speaker 04: This is something that Walgreens didn't raise. [00:16:15] Speaker 04: It wasn't part of their motion. [00:16:17] Speaker 04: And it was so unimportant to Walgreens that they didn't ask about it in her deposition. [00:16:21] Speaker 01: So just to clarify, is your answer then, to the questions point us to a record site, that there is no evidence and that's because you were not on notice that you needed to develop this evidence? [00:16:35] Speaker 04: That is correct, Your Honor. [00:16:36] Speaker 01: So there is no evidence, and so this connect, just so that I understand, that this connects to your allegation of error on the Sue Espante ruling. [00:16:48] Speaker 01: Is that right? [00:16:49] Speaker 04: That is exactly correct. [00:16:51] Speaker 04: Absent that I am relying purely on circumstantial evidence that is in the record But I'm not going to tell you that circumstantial evidence is not different than direct evidence. [00:17:02] Speaker 03: That's a fair point Thank you counsel explanation, I think we got where we were hoping thank you. [00:17:11] Speaker 03: Thank you all right May it please the court good morning. [00:17:18] Speaker 00: My name is James Gulch, but on behalf of [00:17:21] Speaker 00: Alliance RX, with me at council table is my partner, Stacy Alexgen, who leads our representation of Walgreens in this and other matters. [00:17:31] Speaker 00: If I may, before addressing points of disagreement with the presentation you just heard, I'd like to offer a framework that will provide some structure to the discussion. [00:17:42] Speaker 00: It's along the lines of the questions that have already been asked. [00:17:45] Speaker 00: It'll take me about a minute to set up. [00:17:47] Speaker 00: The key concepts running through today's discussion of duty [00:17:51] Speaker 00: are first the source of the duty, whether it's pre-existing or assumed, very different things. [00:17:58] Speaker 00: And second, the scope or nature of the duty. [00:18:03] Speaker 00: Is it a duty to timely fill a prescription or a duty to fill the prescription period? [00:18:10] Speaker 00: The source of the duty matters because whether there's a pre-existing duty is a legal question. [00:18:18] Speaker 00: Whereas whether the duty was assumed requires evidence of assumption. [00:18:22] Speaker 00: That was already discussed. [00:18:24] Speaker 00: So what plaintiff needs to show to establish the duty differs based on whether we're talking about one or the other. [00:18:32] Speaker 00: The scope of the duty matters because on the legal side, we don't reach a duty of timeliness if there's no duty to fill the prescription at all. [00:18:42] Speaker 00: And on the assumption side, [00:18:45] Speaker 00: It defines what the plaintiff needs to show Alliance RX assumed. [00:18:51] Speaker 00: Did it assume a duty to fill the prescription, or did it more specifically assume a duty to do so within a particular time? [00:18:58] Speaker 00: Putting those two concepts together gives you four quadrants for your analysis. [00:19:05] Speaker 00: Pre-existing duty to fill, pre-existing duty to fill timely. [00:19:09] Speaker 00: assumed duty to fill, assumed duty to fill timely. [00:19:13] Speaker 00: Keeping in mind which of those four quadrants we're in is really important to clarity of analysis. [00:19:19] Speaker 00: And if we lose sight of it, the analysis becomes very jumbled. [00:19:22] Speaker 01: In fact... Was Walgreens' litigation strategy in proceeding on summary judgment to essentially assume Walgreens owed a duty from June 2nd until June 16th due to your corporate policies? [00:19:36] Speaker 01: Was that part of your litigation position? [00:19:38] Speaker 00: Our litigation position was a contingent argument that any duty we assumed, if any, was discharged or terminated by mid-June and not reassumed until July. [00:19:51] Speaker 00: That is not an admission that Walgreens assumed a duty at any time. [00:19:55] Speaker 02: What needed to be said was, we've about had it. [00:20:01] Speaker 02: We keep trying to get this pre-existing approval, and we're not getting it. [00:20:07] Speaker 02: We're tired of running around our office. [00:20:09] Speaker 02: We've got 10,000 other prescriptions. [00:20:11] Speaker 02: So you're on hold. [00:20:13] Speaker 02: We're just putting your file on ice. [00:20:15] Speaker 02: Go somewhere else or come and hand us a pre-authorization or we're not doing anything. [00:20:23] Speaker 02: Why didn't it have to tell the Shoals that? [00:20:26] Speaker 02: Because if it had told them that, things might have turned out differently. [00:20:30] Speaker 00: So as a factual matter, the evidence shows Walgreens did leave a message saying that. [00:20:36] Speaker 00: There's a dispute in the record over whether Mrs. Scholl received it. [00:20:39] Speaker 00: As a legal matter, why didn't they have to do that? [00:20:42] Speaker 00: Goes back to the question of, what is the legal duty here? [00:20:46] Speaker 00: Is there a legal duty to fill the prescription? [00:20:48] Speaker 02: They lured them in a little bit, and realizing that's somewhat charge language, lured them in a little bit with, if you get us a pre-authorization, we'll fill your prescription. [00:20:59] Speaker 02: That's the only thing holding us back. [00:21:02] Speaker 02: Nice financial incentive to fill that prescription. [00:21:05] Speaker 02: These drugs cost a lot of money. [00:21:07] Speaker 02: And so if you're the consumer in that instance, you assume that they've told you, if you get the pre-authorization, we'll fill the prescription. [00:21:18] Speaker 02: And they got it. [00:21:19] Speaker 02: And they had no reason to think, so now they're not going to fill the prescription. [00:21:24] Speaker 00: I respectfully disagree with the framing that's based on, they told her if you get the pre-authorization, we'll fill the prescription. [00:21:32] Speaker 00: What they told her was, we can't fill the prescription without the pre-authorization. [00:21:38] Speaker 00: That's a very different thing. [00:21:40] Speaker 00: It's not a promise to do anything. [00:21:42] Speaker 00: And when asked for anything in the record showing Walgreens Alliance RX affirmatively saying, we'll do this, the concession was, it's not there. [00:21:52] Speaker 00: There's nothing in the record ever showing them doing that. [00:21:55] Speaker 00: Saying. [00:21:55] Speaker 03: Well, isn't there at least a reasonable inference, though, [00:22:02] Speaker 03: If Walgreens is saying, look, the doctor's got to get the pre-authorization, why can't one infer from that that, well, what that says is when the doctor gets it, we'll fill it? [00:22:20] Speaker 00: That is not inappropriately, because- Well, why not? [00:22:24] Speaker 03: I mean, we're at summary judgment, right? [00:22:26] Speaker 00: Yeah. [00:22:26] Speaker 03: You're the moving party. [00:22:28] Speaker 03: Inference is for the non-moving party. [00:22:31] Speaker 00: Right. [00:22:32] Speaker 03: Why isn't it a reasonable inference? [00:22:33] Speaker 00: Because to assume a duty, we need something showing an affirmative representation by Alliance Rx that it will do something. [00:22:42] Speaker 00: And keeping in mind the quadrants, not just fill the prescription, because it did fill the prescription. [00:22:48] Speaker 00: So ultimately, if it assumed a duty to fill the prescription based on this theory, it met that duty. [00:22:54] Speaker 03: All right. [00:22:54] Speaker 03: Then let me just ask you this. [00:22:55] Speaker 03: And I'm not sure which quadrant I'm in. [00:23:00] Speaker 03: Didn't Dr. Hildebrand and the Shoals give Walgreens the pre-authorization number on June 16th? [00:23:11] Speaker 00: Yes, sir. [00:23:11] Speaker 03: OK. [00:23:12] Speaker 03: And why didn't that trigger the duty to fill the prescription? [00:23:18] Speaker 00: Well, the question there is, trigger what duty? [00:23:22] Speaker 00: Trigger a duty to fill the prescription? [00:23:24] Speaker 03: Yeah, the duty to fill the prescription. [00:23:25] Speaker 00: Because the only way we get there is either a pre-existing duty under [00:23:29] Speaker 00: Oklahoma law, which doesn't exist, or some assumption by Walgreens. [00:23:37] Speaker 03: You're saying that simply receiving the information is not enough. [00:23:43] Speaker 00: It is not enough. [00:23:44] Speaker 00: Because to assume a duty, there needs to be some response to that information. [00:23:49] Speaker 03: They didn't just receive the information. [00:23:53] Speaker 03: There had been previous back and forth communications that, look, this is what we need if we're going to fill [00:23:59] Speaker 03: the prescription. [00:24:00] Speaker 03: And I'm kind of back to, we get to this point, and if we're drawing reasonable inferences from a course of conduct over that June 1 to June 16 period of time, why wouldn't Dr. Hildebrandt and the Scholz have a reasonable foreseeable expectation that the prescription is going to get filled? [00:24:27] Speaker 00: So the course of conduct that we're talking about is really only conversations, discussions back and forth between mostly Alliance RX and the medical provider, a couple with Mrs. Scholl, where the only thing Alliance RX said in any of those conversations was we cannot proceed without this information. [00:24:46] Speaker 00: We cannot proceed without this information. [00:24:50] Speaker 00: That is not a representation that they will do anything. [00:24:53] Speaker 00: It is not an assumption of any obligation. [00:24:55] Speaker 00: It is saying no, no, [00:24:57] Speaker 00: No. [00:24:58] Speaker 00: In fact, at one point, the record shows Mrs. Scholl offered to pay. [00:25:02] Speaker 00: Alliance RX said, we won't let you do that. [00:25:04] Speaker 00: No again. [00:25:05] Speaker 00: At every point in this discussion. [00:25:07] Speaker 01: Well, why isn't it a fair inference that you weren't going to do anything until you had what you needed to proceed? [00:25:13] Speaker 01: And once you had the authorization, you'd proceed. [00:25:17] Speaker 01: That seems to be an entirely fair inference for a customer to draw. [00:25:21] Speaker 00: The first part is true. [00:25:23] Speaker 00: The first part is fair. [00:25:24] Speaker 00: We're not going to proceed without this. [00:25:26] Speaker 00: The second part is not a reasonable inference. [00:25:31] Speaker 01: What in your view would have made, what kind of evidence would have made that a reasonable inference? [00:25:35] Speaker 00: That second part. [00:25:36] Speaker 00: If in response to any of those requests, Walgreens had said, as soon as we get that prior auth, we'll be right on it. [00:25:46] Speaker 00: We'll fill the prescription promptly. [00:25:49] Speaker 00: Or we'll fill it within a particular time. [00:25:51] Speaker 00: And again, keep in mind, Walgreens alliance did fill the prescription. [00:25:56] Speaker 00: So what we're talking here ultimately is not about assumption of a duty to fill it, which they satisfied, but to do so timely. [00:26:02] Speaker 00: And so you would actually have to show a representation specific to how quickly we'll do that. [00:26:08] Speaker 01: That's not there. [00:26:09] Speaker 01: So it seems that you agree that when you filled it in July 13th that you actually filled the prescription that you had a duty to do that then. [00:26:21] Speaker 01: What was the source of the duty then? [00:26:24] Speaker 00: The assumption [00:26:25] Speaker 00: of that duty in response to the prior Roth that came in July. [00:26:29] Speaker 00: Because the record does show that when the prior Roth came in July, Alliance RX said, we will act on this and fill the prescription. [00:26:38] Speaker 02: That's the piece that was missing back in June. [00:26:40] Speaker 02: Doesn't this all kind of defy reality? [00:26:43] Speaker 02: You're presenting this as though [00:26:45] Speaker 02: It's an open question, and sometimes Walgreens will fill one if they get the pre-existing, and sometimes they won't. [00:26:53] Speaker 02: And you take your chances. [00:26:54] Speaker 02: If you roll with Walgreens, if you want some better representation, go to Walmart or somewhere. [00:27:01] Speaker 02: But my guess is that 99% of the time when they say, get us a pre-authorization, they fill a prescription, unless there's a problem that develops. [00:27:11] Speaker 02: And there aren't any things like that in this record that I'm aware of. [00:27:14] Speaker 02: aware of. [00:27:15] Speaker 02: So you're cutting this awfully thin as far as what a consumer would understand. [00:27:22] Speaker 00: So a couple of points in response to that. [00:27:24] Speaker 00: First of all, I think it's important to keep in mind we're not talking about a retail pharmacy here where you go into the app on your phone and you see that a prescription has been received at Walgreens and they say we'll have it for you by tomorrow. [00:27:36] Speaker 00: We're talking about a specialty pharmacy that's dealing primarily with medical providers and insurers [00:27:42] Speaker 00: And so that framework on a level of practical reality doesn't quite translate here. [00:27:48] Speaker 00: That's important to keep in mind. [00:27:51] Speaker 00: The second point I would make in response is it's their claim that Alliance RX assumed a duty to fill this prescription within a particular time. [00:28:02] Speaker 00: That was the way they framed it today. [00:28:05] Speaker 00: That was the way it was framed in their appellate briefs. [00:28:08] Speaker 00: That was the way it was framed below. [00:28:10] Speaker 00: And to show that as an evidentiary matter, you need some representation from Alliance RX. [00:28:17] Speaker 00: Not only that it would fill the prescription, which may be a fair inference from this course of conduct, but a specific representation as to how quickly that will happen. [00:28:27] Speaker 00: What do you mean by a particular moment in time? [00:28:31] Speaker 02: Any framing of timeliness. [00:28:33] Speaker 02: Well, they're not saying it had to be done in four days. [00:28:36] Speaker 02: to the hour. [00:28:37] Speaker 02: They're saying it had to be done when your condition was met. [00:28:42] Speaker 02: We need pre-authorization. [00:28:44] Speaker 00: So it's not actually clear at all what they mean by a duty of timeliness here because they never say. [00:28:50] Speaker 00: So they leave this court to fashion a standard of timeliness if that's the direction you want to go. [00:28:56] Speaker 00: Any representation regarding prompt filling of the prescription, quick turnaround [00:29:05] Speaker 00: a particular number of days, any of that would check the box in our analysis. [00:29:10] Speaker 00: But it's not there. [00:29:11] Speaker 01: I think what you're asking us to think about is that the plaintiffs presented a specific kind of duty, a duty to timely fill. [00:29:23] Speaker 01: And the evidence that we're looking for in terms of a course of conduct to support that duty has to be a course of conduct with respect to timeliness. [00:29:32] Speaker 01: Is that your position? [00:29:32] Speaker 00: That's exactly right. [00:29:33] Speaker 00: Yes, Your Honor. [00:29:35] Speaker 00: And it's important to emphasize that timeliness piece, because if we're just talking about an assumption of a duty to fill the prescription, and you want to say that's a fair inference from what happened here, again, Alliance RX did that. [00:29:48] Speaker 00: It did fill the prescription. [00:29:50] Speaker 00: There's no dispute that that assumed a duty, if it was assumed, was satisfied. [00:29:53] Speaker 03: Counsel, didn't you also say that they did fill the prescription, but it was because they got prompted again on July 13 [00:30:02] Speaker 03: by Dr. Hildebrandt and the Schultz, but they were prompted in a really, I don't know if it's any meaningful different way, when after the course of about two weeks, they finally get the pre-authorization on June 16. [00:30:23] Speaker 03: And I'm wondering about this timeliness argument. [00:30:28] Speaker 03: Walgreens is at least on notice that this is a drug the doctor thinks is needed. [00:30:33] Speaker 03: I mean, why wouldn't they need it on a timely basis? [00:30:36] Speaker 00: So I think it's important there to keep a focus on the provider's role in all of this. [00:30:45] Speaker 00: Walgreens Alliance RX only knows what it's told by the medical provider. [00:30:51] Speaker 00: And certainly, we know from the medical providers and from the family's side of the case [00:30:58] Speaker 00: that this was a time-sensitive situation, that it was a set of factors unique to this individual and her condition. [00:31:05] Speaker 00: The question is how much of that did Alliance RX know and how much of the responsibility was on the provider to emphasize the urgency of this situation to Alliance RX because it was the provider's responsibility to get the prior authorization. [00:31:20] Speaker 03: Are there certain drugs, maybe this one, where it's inherently [00:31:26] Speaker 03: a time-sensitive situation, just by virtue of what the drug is. [00:31:32] Speaker 00: Yes, potentially. [00:31:33] Speaker 00: And again, if in response to that, Walgreens Alliance RX had said, based on that, we're giving you this assurance that we'll do this within a certain time, there would be a duty there. [00:31:46] Speaker 03: That just never happened. [00:31:47] Speaker 03: I want to throw in one other question about this. [00:31:53] Speaker 03: rather than characterize it in terms of reasonable inferences, is there anything in the Oklahoma law, case law, that sheds any light on this question of having to make this sort of affirmative representation that we're going to fill the prescription? [00:32:12] Speaker 03: I mean, we heard from counsel they've got this Waffle case, but I wonder if you've got any cases that would help us. [00:32:19] Speaker 00: Sure. [00:32:20] Speaker 00: So most of our focus has been on Oklahoma law and pre-existing duty. [00:32:25] Speaker 03: In fact, we're on to some assuming the duty. [00:32:27] Speaker 00: Yes. [00:32:28] Speaker 00: And we don't. [00:32:28] Speaker 03: Quadrant two or three, whatever that is. [00:32:30] Speaker 00: We don't disagree with the basic premise of Oklahoma law that a duty can be assumed by words or conduct. [00:32:37] Speaker 00: We just don't have that here as a factual matter. [00:32:40] Speaker 03: Do you have a case, though, that would tell us that this isn't the kind of situation to recognize an assumed duty? [00:32:50] Speaker 00: Yes, if you'll give me just a moment, I am over my time. [00:32:53] Speaker 00: I apologize. [00:32:55] Speaker 03: Now it's my fault. [00:32:59] Speaker 00: I'm asking you. [00:33:02] Speaker 00: So I think the best case that I could point you to is the Harwood v. Ardog group on pages 40 and 41 of our response brief. [00:33:15] Speaker 00: That is a case that I think provides a good contrast to what happened here, where an Oklahoma appellate court found that there an employer had assumed a duty to provide a safe sidewalk, even though the employer didn't own that sidewalk, because of specific representations that the employer had made to its employees about what it would do to keep that sidewalk safe. [00:33:40] Speaker 00: That's the kind of evidence that's missing here. [00:33:43] Speaker 03: Thank you, counsel, and thanks to both of you. [00:33:45] Speaker 03: Appreciate the arguments this morning. [00:33:48] Speaker 03: The case will be submitted and counsel are excused.