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News Items

  • On November 14, 2008, Jonathan Allan Klein and Annmarie Liermann successfully obtained summary judgment on behalf of Rite Aid in the case of Hunter v. Rite Aid in San Bernardino County Superior Court. In that motion, we successfully convinced the court that Plaintiff had not demonstrated any triable issue of fact on the remaining theories of wrongful termination, failure to accommodate, or on the claim for overtime wages. In particular, Plaintiff conceded that his job performance prior to his workplace injury was deficient, but argued that his post-injury performance was affected by his limitations. Yet, undisputed facts demonstrated that most of the post-injury work problems were unrelated to physical limitations. Furthermore, summary judgment was granted on the failure to accommodate cause of action, because Plaintiff admitted failed to participate in the interactive process. Finally, since Plaintiff had not reported his alleged overtime, as required, during his employment, he could not later prevail on a claim for failure to pay overtime.
  • On September 15, 2008, on behalf of Rite Aid, Jonathan Klein and David Foster were successful in obtaining dismissal of a plaintiff's wrongful termination lawsuit. In the case, Gomarooni v. Rite Aid, plaintiff alleged he was wrongfully terminated for failing to join UFCW Location 135, as required by the parties' collective bargaining agreement. Rite Aid moved, pursuant to F.R.C.P. Section 12(b)(6), for dismissal, arguing that the case was preempted by the Labor Management Relations Act ("LMRA"). Judge James V. Selna of the U.S. District Court, Central Division, agreed. A copy of the opinion is attached here.
  • On September 10, 2008, Jonathan Allan Klein and Anne F. Marchant obtained a dismissal of Rite Aid in an action alleging products liability, breach of warranty, and negligence with respect to the pharmacy's dispensing of Strattera® to the Plaintiff's 15 year-old son. Plaintiff alleged his son committed suicide after an increase in the prescription dose, and alleged Rite Aid, along with the drug's manufacturer, should have warned of the dangerous effects of the drug, including suicide ideation. Plaintiff agreed to dismiss Rite Aid prior to Rite Aid's filing of a motion to dismiss.
  • On August 19, 2008, the Court of Appeal, Fourth Appellate District, Division One, affirmed summary judgment for Rite Aid in the Lipkowitz v. Rite Aid case. In the unpublished opinion, the Court held that the trial court properly denied plaintiff's attempt to enforce and illegal and unenforceable agreement to work more hours as a pharmacist than permitted under California law. See attached opinion.
  • On January 17, 2008, Jonathan Allan Klein won a defense verdict in a wrongful death pharmacy malpractice case venued in U.S. District Court for the District of Montana (Missoula division.) In the case, plaintiffs contended that Safeway pharmacy negligently filled three prescriptions, for Clozapine, Accupril and Hydrochlrothiazide, despite a lack of published interactions or contraindications between the drugs. Mr. Klein introduced evidence from a retail standard of care expert, as well as from a psychiatric pharmacist, that the pharmacy was not negligent, and complied with the standard of care, because there were no contraindications or drug interactions published in the package inserts, nor found in the published literature. The jury returned a unanimous 7-0 decision in only 75 minutes.
  • Jonathan Allan Klein and Annmarie Liermann have recently spearheaded a group of concerned lawyers, insurance executives and corporate risk managers in attempting to address problems with Medicare’s lien rights and difficulties in resolving cases involving Medicare payments. This group prepared a detailed white paper on the issues, and is currently seeking people interested in lobbying, negotiating or educating people on Medicare’s Secondary Payer rights. Contact Jonathan with questions or interest.
  • Successfully won motion for summary judgment in Lipcowitz v. Rite Aid employment matter in San Diego County Superior Court. Trial court agreed that plaintiff sought to enforce illegal and unenforceable agreement to work more than hours permitted as pharmacist under California law. See attached Order.
  • In Hull v. Safeway, Court of Appeals affirmed Order granting demurrer on Safeway's behalf, holding that plaintiff who admitted he did not ingest medication could not sue for damages for inability to read information on OTC box of cold medication. See attached Order.
  • In Armstrong v. Rite Aid, et al., the U.S. District Court granted Rite Aid's motion to dismiss on grounds plaintiff who admitted to taking photographs of his own marijuana plants to local drug store for developing could not assert causes of action related to violation of rights to privacy when store employees gave photographs to the police. See attached Order.
  • On behalf of Safeway, Jonathan Allan Klein and Annmarie Liermann recently obtained an Order sustaining a Demurrer filed on Safeway's behalf in a Trazodone case filed in Alameda County, California. The Court agreed with our arguments, in their entirety, that California pharmacies do not have a general duty to warn of the side effects of prescriptions (absent a special contraindication, or failure to follow the instructions on the prescription). The Court agreed with our analysis of out-of-state authority, and the application of the learned intermediary doctrine, in declining to establish a new duty of care on behalf of pharmacies and pharmacists. To counsel's knowledge, this is the first decision in California explicitly holding that pharmacies are protected by the learned intermediary doctrine while sustaining a demurrer to a duty to warn claim. A copy of the Order is attached.
  • Jonathan Allan Klein was selected as a Northern California "Super Lawyers" by San Francisco magazine in each of its 2005-2008 editions. "Super Lawyers" is an annual listing of outstanding lawyers who have attained a high degree of peer recognition and professional achievement.
  • Jonathan Allan Klein spoke at the 16th Annual Fall Meeting of the American Society for Pharmacy Law ("ASPL") held in conjunction with the National Association of Chain Drug Stores ("NACDS"). Mr. Klein's presentation was "pharmacy malpractice litigation", and reviewed issues including the evolving duties to warn, liability for dispensing counterfeits, strict liability, and an update on recent malpractice cases. Mr. Klein also included a discussion of the use of expert and percipient pharmacist witnesses in pharmacy cases. Go to www.aspl.org for further details. A copy of Mr. Klein's presentation is attached here.
  • Jonathan Allan Klein was selected one of America's Best Lawyers in 2005 by SkyRadio -- heard nationwide on American, Delta, United, US Airways, America West and Northwest Airlines. In an interview heard on those airlines, Mr. Klein discusses recent trends in pharmacy and pharmacist liability for the sale of prescription drugs.
  • Jonathan Allan Klein acting as coordinating counsel for all pharmacy retailers in the California Baycol proceedings, secured dismissal of all pharmacies on the grounds that plaintiffs could not allege products liability or negligence causes of action for mere dispensing of prescriptions in California (In Re: Baycol Litigation). Similarly, Mr. Klein won summary judgment in favor of a national drug chain in a case arising out of prescription for Trazadone anti-depressant. Plaintiff contended that pharmacy failed to warn; trial court agreed that pharmacy had no duty to warn under circumstances of particular case. Successfully represented pharmacy on appeal before Third District Court of Appeals (Hooper v. Rite Aid.)