Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Olsen-Ivie v. K-Mart

United States District Court, D. Utah, Central Division

June 1, 2018

TAMRA OLSEN-IVIE; SAMANTHA OLSEN; AND DAVID OLSEN, Plaintiffs,
v.
K-MART; SEARS HOLDING COMPANY; Does 1-4, Defendants.

          MEMORANDUM DECISION AND ORDER

          DEE BENSON UNITED STATES DISTRICT JUDGE.

         Before the Court is the defendants' motion for partial summary judgment seeking a ruling from the Court that the plaintiffs are limited by the Utah Medical Malpractice Act (“the Act”) from pursuing a combined total of noneconomic damages in excess of $450, 000. [Dkt. 17]. The motion has been fully briefed and the Court heard oral argument on February 6, 2018. At the hearing, the Plaintiffs were represented by Leonard McGee and Peter Mifflin. The defendants were represented by Rodney Parker and Nathan Skeen. Based on the parties' written and oral arguments and on the relevant facts and the law, the Court enters the following Memorandum Decision and Order.

         BACKGROUND

         The plaintiffs, Tamra Olsen-Ivie and her two adult children, Samantha and David Olsen, brought this action for damages incurred when Ms. Olsen-Ivie was allegedly dispensed the wrong medication by a K-Mart pharmacist in January 2015. The Complaint asserts that in July, 2015 Ms. Olsen-Ivie began suffering from back pain as a result of a slip and fall at a Costco store in Salt Lake County. She was treated at St. Mark's Hospital, where her physician prescribed flexeril to alleviate her pain. On January 8, 2015, Ms. Olsen-Ivie had the prescription filled at a K-Mart pharmacy. The pharmacist gave Ms. Olsen-Ivie a prescription bottle containing medication. Ms. Olsen-Ivie took the pills as noted on the bottle. The bottle, however, did not contain flexeril as prescribed, but rather dilaudid, a different medication. As a result of taking dilaudid, Ms. Olsen-Ivie allegedly suffered severe injuries, including an injury to her brain.

         Before filing this action, the plaintiffs obtained a certificate of compliance from the Utah Division of Occupational and Professional Licensing indicating compliance with the pre-litigation requirements of the Utah Medical Malpractice Act (“the Act”). Dkt. 17 Ex. B. In March, 2017, the plaintiffs filed their Complaint in Utah state court. Dkt. 2-1. The action was removed to this Court on April 5, 2017. Id.

         The Complaint asserts two causes of action. The first is brought by Ms. Olsen-Ivie alleging that the defendants breached the required standard of care in dispensing her medication. As a result of their negligence, she suffered general and special damages in an amount to be determined at trial. Dkt. 2-1. The second is brought by Samantha and David Olsen, Ms. Olson-Ivie's adult children, alleging loss of consortium due to the injuries sustained by their mother in an amount to be determined at trial. Id.

         In response to an interrogatory by the defendants directed at the amount of damages claimed to have been suffered as a result of this incident, the plaintiffs incorporated by reference a prior comprehensive demand for settlement which states that the plaintiffs intend to seek in excess of five million dollars in noneconomic damages. Dkt. 17 Ex. D, E. The plaintiffs do not dispute this. The defendants move the Court for summary judgment on the issue that the plaintiffs' claims fall within the Act and the plaintiffs therefore may not recover an award of noneconomic damages in excess of the Act's limit of $450, 000.

         The plaintiffs oppose the defendants' motion to the extent it calls for a limit on the combined potential recovery of all of the plaintiffs' noneconomic damages at $450, 000. They argue that the adult children's loss of consortium claims are based on common law and not subject to the Act's limitation on noneconomic damages.

         DISCUSSION

         Summary judgment is appropriate if the movant “shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

         1. The Utah Health Care Malpractice Act Applies to this Case.

         The Malpractice Act provides:

[I]n a malpractice action against a health care provider, an injured plaintiff may recover noneconomic losses to compensate for pain, suffering, and inconvenience. The amount of damages awarded for ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.