Pharmacist Liability: Should you Use Foam Boards During an Appellate Argument?

SANCHEZ VS. WAL-MART STORES. On March 2nd, 2009 I used several foam boards to argue a case in front of the Nevada Supreme Court.

The top board explained that for 40 years in 8 Nevada Supreme Court Cases the Court has held that bartenders are not liable to persons injured by drunk customers. The Court's previous analysis was that injuries were not proximately caused by serving drinks. The customer's drinking and driving was a superseding, intervening cause of the injuries. Greg Sanchez was killed by a woman who was a prescription narcotics abuser. Seven Las Vegas pharmacies continued to dispense narcotics to the abuser AFTER notice from a Nevada State Task Force that she had been taking 4500 pain killers over the last few years.

The pharmacies took the position that pharmacists are just like bartenders. They dispense the drugs just like a bartender dispenses drinks. Bartenders are immune from lawsuits thus pharmacists should also be immune for dispensing narcotics to a customer who drives and kills someone.

What I tried to do is use the above foam boards during the Nevada Supreme Court argument to retain bartender immunity while opening the way for pharmacists to be held liable. Basically, I showed that this is not a causation issue. It is a duty issue. Foam boards allowed me to discuss the elephant in the room as part of my opening remarks. The elephant was attached to the main board by velcro. I ripped the elephant off to begin the discussion that pharmacists are not like bartenders. I explained that the previous line of cases from Hamm to Snyder were improperly decided on proximate cause grounds because drinking and driving was not unforeseeable. I went on to explain that this was a duty issue.

As shown in the lower board, I moved the Hamm through Snyder small board up so it was under duty instead of under proximate cause. This allowed me to argue that the Court could determine that there is no bartender's duty to injured persons, thus keeping bartenders immune from liability, while opening the door to show that pharmacists, who have received written notice from the Task Force that the customer is a potential abuser and are regulated by 10-15 statutes and regulations, have a duty to injured 3rd parties. I was able to argue this appeal visually and with no notes because the information was on the foam boards--it was a foam board powerpoint!

This was an issue of first impression in the country. Should the pharmacies bear some responsibility for the death of Greg Sanchez when the pharmacies have actual knowledge that their customer is a prescription abuser? The burden/duty is minimal -- call the abuser's doctor to verify the narcotics prescription or just not fill it.

Use of foam board powerpoints allowed me to create a visual that helped me explain my argument.