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The New Jersey Appellate Division has just reinstated a father's lawsuit against four pharmacies over his daughter's fatal overdose.

On November 29, 2017, Deanna D. Shamy died as a result of acute intoxication from Oxycodone, a prescription pain medication, and Alprazolam, a prescription anti-anxiety medication commonly known as Xanax. Cachexia, a wasting disorder resulting in extreme weight loss, contributed to her death.

The medications on which Deanna overdosed were prescribed to her by Eddie Gamao, who was then a physician licensed to practice medicine in New Jersey.

Evidence gathered at the scene of Deanna's death included multiple rolled-up dollar bills and straws covered with a white powdery substance. Police also found hundreds of prescription bottles for medications prescribed for Deanna by Gamao, as well as approximately 200 Fentanyl patches that Gamao prescribed for her.

Two years later, on November 27, 2019, her father George, filed a complaint in New Jersey Superior Court in Middlesex County, naming as defendants four retail pharmacies: Stelton Pharmacy, Devine Pharmacy, Walgreens, and CVS.

George alleged that the four pharmacies filled prescriptions obtained by Deanna from Gamao that they knew or should have known were negligently, carelessly and/or recklessly prescribed, given their amount and frequency. 

George alleged the pharmacies' acts departed from the standard of care for pharmacies, and constituted malpractice, which subjected Deanna to physical, mental, and emotional pain, suffering, and, ultimately, her death. 

George sought compensatory damages from the pharmacies under a theory of malpractice and strict liability for the illegal marketing and distribution of CDS under the New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1. He also sought punitive damages, attorney's fees, interest, and costs of suit.

The Superior Court previously dismissed the entire complaint.

However, Appellate Division Judges Haas, DeAlmeida and Mitterhoff have just now reinstated the lawsuit, writing:

George alleges that the pharmacies engaged in professional malpractice by not noticing that the amount and frequency of Gamao's prescriptions for Deanna for addictive medications and CDS was outside reasonable practices and refusing to fill those prescriptions. We agree that George's professional malpractice claims are sufficiently distinct from product liability and failure to warn claims to preclude application of the learned intermediary doctrine to bar their consideration.

George's claims are not predicated on Deanna's use of a defective product, the inherent characteristics of the medications and CDS dispensed to Deanna, or a failure to warn her about the side effects of a product. He seeks damages arising from the pharmacies' alleged malpractice, which, he contends, exacerbated the risk of harm from Deanna's preexisting drug addiction, and ultimately resulted in her suffering and death. 

Thus, it was error to preclude consideration of George's claims under the learned intermediary doctrine.

Because the trial court applied the learned intermediary doctrine to bar George's claims, it did not define the contours of the standard of care the pharmacy owned Deanna and, accordingly, whether genuine issues of material fact exist with respect to whether they deviated from that standard.

The Appellate Division has therefore remanded the matter back to the Superior Court to properly review and make the appropriate determination.

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