Moon v. Steelberg

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Dominique Moon, Surviving Spouse of Nicolas Moon, Deceased, on Behalf of all Wrongful Death Heirs, and Brian Bina, Administrator of the Estate of Nicholas Moon, Appellants, v. Elsie Steelberg, M.D., and Advocates for Behavioral Health, Defendants, and Walgreen Co., Appellee.

No. 125,343

Supreme Court of Kansas

May 19, 2023

NOT DESIGNATED FOR PUBLICATION

Appeal from Sedgwick District Court; Eric A. Commer, judge.

Christopher L. Schnieders, of Napoli Shkolnik PLLC, of Overland Park, and Kenneth Chesebro, pro hac vice, of New York, New York, for appellants.

Chris S. Cole and Anthony M. Singer, of Woodard, Hernandez, Roth & Day, LLC, of Wichita, for appellee.

Before Schroeder, P.J., Warner and Cline, JJ.

MEMORANDUM OPINION

Warner, J.

This is a wrongful-death lawsuit against Walgreen Co. ("Walgreens") arising from Nick Moon's prescription-drug-related death. The district court granted summary judgment for Walgreens on two grounds, and then Moon's widow and estate went to trial and obtained a judgment against the doctor who wrote Moon's prescriptions. Moon's widow and estate now appeal the decision to grant summary judgment for Walgreens.

But the plaintiffs appeal only one of the independent grounds on which the district court granted summary judgment. The failure to appeal the other-that Walgreens lacked a legal duty to intervene in Moon's treatment-disposes of the plaintiffs' claims because that ground alone suffices to uphold the district court's decision. And the plaintiffs acquiesced in the jury verdict by collecting on that judgment, which prevents them from seeking additional damages from Walgreens. We thus affirm the district court's judgment.

Factual and Procedural Background

In early 2016, there was a workplace shooting at the Excel plant in Hesston. The shooter killed three people and wounded others. Among the wounded was Moon, who worked at the plant.

Moon suffered serious physical and mental fallout from the shooting. He was shot through his right lower leg, shattering his tibia and fibula. These injuries led to multiple surgeries and chronic pain. He suffered from PTSD depression, anxiety, and sleep issues. Moon was also devastated about the death of one of the victims, who had been "like a sister" to him. He also exhibited behavioral changes like avoiding crowds and routine tasks, wearing a Kevlar vest in public, and becoming obsessed with guns.

Moon's treatment and death

Through a workers-compensation proceeding, Moon was referred to a psychiatrist-Dr. Elsie Steelberg. Dr. Steelberg had practiced medicine since 1960, spending 18 years as an anesthesiologist before shifting to psychiatry. At some point after the shooting, Moon also began therapy and substance-abuse treatment.

When Moon began seeing Dr. Steelberg, she prescribed him several medications to address his physical pain and mental-health issues. Most relevant here, his prescriptions included Norco (an opioid also known as hydrocodone) and Lorazepam (a benzodiazepine). While not an unusual combination, opioids and benzodiazepines-when taken together-can be dangerous and even life threatening.

As time went on, Moon's physical and mental-health issues continued. Dr. Steelberg increased Moon's Norco and Lorazepam dosages, and later prescribed another benzodiazepine. In September 2017-about a year and a half after the shooting-Dr. Steelberg transitioned Moon from Norco to oxycodone, a stronger opioid. In this period, Dr. Steelberg received two letters from Moon's insurance company noting that he was receiving an opioid amount exceeding the workers-compensation carrier's morphine-equivalent dose threshold. These letters served as notifications and were not intended to replace Dr. Steelberg's clinical judgment. Dr. Steelberg later wrote Moon's insurance company a letter expressing concern that he was not receiving his medications and confirming her prescription decisions.

Moon filled most of his prescriptions at a Walgreens in Newton. Besides one time when Moon went to fill his Lorazepam prescription a day early-which the pharmacist did after contacting Dr. Steelberg-there were no issues with his prescriptions at Walgreens and no signs that he was abusing his medication.

In late October 2017, Moon's wife relocated to Missouri with their son, while Moon remained in Newton. Then, in December of that same year, Moon was found dead at his Newton home. The cause of death was mixed drug toxicity. Police found an empty oxycodone bottle near Moon's body that he had filled about a week earlier. The bottle had contained 180 doses and was supposed to last for a month, suggesting that Moon ingested a month's worth of oxycodone in under a week. In the months before his death, Moon experienced problems in his personal life and had expressed suicidal thoughts. The coroner could not determine whether Moon's death was intentional.

Moon's heirs and estate file suit

Moon's widow and the administrator of his estate subsequently brought a lawsuit against several parties, seeking damages for Moon's death. The lawsuit named Dr. Steelberg, her practice group, Walgreens, Moon's other therapists and their employer, and Injured Workers Pharmacy (another pharmacy where Moon had filled some prescriptions) as defendants, alleging that the defendants negligently caused Moon's death. As the litigation progressed, multiple defendants settled or were dismissed, and ultimately only Dr. Steelberg, her practice group, and Walgreens remained.

The district court's final pretrial order crystalized the parties' claims and defenses. Moon's estate made 11 claims against Walgreens:

• Five claims about Walgreens' failure to contact Dr. Steelberg with concerns about Moon's prescriptions;

• Two claims about Walgreens' failure to communicate with Moon directly about the risks associated with his prescriptions;

• Three claims about the way Walgreens filled the prescriptions-that is, by using "incomplete and second hand information" about Moon's history, by inadequately considering the interactions of his medications, and by ignoring internal policies when filling specific prescriptions; • One claim about Walgreens' failure to offer or encourage Moon to keep Naloxone (an opioid antagonist that can be lifesaving during an overdose).

Summary judgment for Walgreens

Walgreens sought summary judgment on two independent grounds. First, Walgreens asserted that there was no evidence-absent rank speculation-of causation. That is, there was no evidence that Moon would be alive even if Walgreens had done what his estate claimed it should have done. Second, Walgreens asserted that Kansas law imposed no duty on its pharmacists to intervene in Moon's treatment or Dr. Steelberg's prescription decisions.

The district court heard arguments on Walgreens' motions and granted judgment in Walgreens' favor on both bases shortly before trial was set to begin. The court found that Walgreens had no duty to interfere with a doctor's treatment decisions and, even if there were, there was no evidence from which a jury could find Walgreens' inaction proximately caused Moon's death. This decision resolved all claims against Walgreens, so the court dismissed it from the case.

Though not part of the record on appeal, the parties agree that Moon asked the district court to allow an interlocutory appeal of its summary-judgment ruling. The court denied that request since the remaining parties had been preparing for the looming jury trial, finding the matter could be appealed with any other claims after the trial.

The jury verdict, satisfaction of judgment, and appeal

The plaintiffs' case against the remaining defendants-Dr. Steelberg and her practice group-proceeded to a jury trial. After hearing all the evidence, the jury found that the plaintiffs had suffered about $2.5 million in damages from Moon's death.

The verdict form asked the jury to apportion the fault, if any, for Moon's death between Dr. Steelberg, her practice group, and Moon himself. The jury found that each of the three actors was partially responsible-Dr. Steelberg was 40% at fault; the practice group contributed 15% of the fault; and Moon bore 45% of the responsibility. Accounting for proportional fault and other legal limitations, the district court entered judgment against Dr. Steelberg for $1,030,000 and against her practice group, Advocates for Behavioral Health, for $386,250.

After the trial and judgment against Dr. Steelberg, Moon's widow and estate appealed the district court's earlier grants of summary judgment for Walgreens. They did not appeal any aspect of the jury verdict or the trial judgment.

The day after the plaintiffs filed their notice of appeal, the plaintiffs, Dr. Steelberg, and her practice agreed to resolve the plaintiffs' claims and the jury's verdict through a $1 million payment to the plaintiffs and their counsel, with $700,000 paid immediately and $300,000 to be paid in one year. The district court approved this resolution in an order, stating the resolution did not "in any way impact plaintiffs' claims against Walgreen Co."

The plaintiffs acknowledge that, with this resolution, the final judgment against Dr. Steelberg and Advocates for Behavioral Health has been satisfied. They also acknowledge that they have not challenged any aspect of the jury verdict on appeal. But they challenge the district court's grant of summary judgment to Walgreens, asserting that their claims that Walgreens negligently and proximately caused Moon's death should be allowed to go to trial.

Discussion

The plaintiffs raised several claims against Walgreens in their petition, all alleging that Walgreens was negligent in its interactions with Moon. In each of these claims, the plaintiffs had the burden to...