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Rite Aid Corporation v. Ellen R. Levy-Gray, No. 61, September Term, 2005.
UNIFORM COMMERCIAL CODE – EXPRESS WARRANTIES
Petitioner sought rev iew of an adverse jur y verdict for bre ach of ex press wa rranty based on a package insert that it generated and provided with a prescription pharmaceutical, doxycycline, directing the respondent to “take with food or milk if upset stomach occurs.” The Court of Appea ls held, as a threshold matter, that pharmaceuticals may be the subject of an express warranty under the Uniform C ommerc ial Code. Moreover, based on the facts of the case sub judice, the Court determined that the language at issue constituted an affirmation of fact regarding the prescription drug and that the timing of the affirmation did not preclude it from being considered an express war rant y. The Court of Appeals also concluded that, based on the facts of the case at bar, the jury reasonab ly could have inferred that the respondent relied on the accuracy of Petitioner’s affirmation Bell, C.J.
RakerWilnerCathellHarrellBattagliaGreene, In the case sub judice, a jury returned a verdict against Rite Aid Corporation, the petitioner, for breach of express warranty based on a package insert that it generated and provided with a prescription pharm aceutical, doxycycline, directing the respondent, Ellen Lev y-Gra y, to “take with food or milk if upset stomach occurs.” Because, based on the facts of the instant case, we determine that the jury reasonably could infer that the language “take with food or milk if upset stomach occurs” constitutes an express warranty under Maryland Code (1975, 20 02 Rep l. Vol.), Section 2-313 of the Commercial Law Article, we affirm the judgment of the Court of Special Appeals.
Background
On October 25, 2000, Dr. Ronald Geckler, the head of Infectious Diseases at Mercy Medical Cen ter, d iagn osed Ms. Lev y-Gray with Lyme disease and gave her a prescription for doxycycline, a drug that is part of the group of Tetracycline-based drugs.1 Dr. Geckler informed Ms. Lev y-Gray that wh ile taking doxycycline she could not continue nursing her son, but provided no other instructio ns as to h ow sh e shou ld take th e doxycyc line. Ms. Lev y- Gray filled her prescription at the Rite Aid Ph armacy #4465, located a t 12224 Tullamo re Road, in Timonium, Maryland, which she stated she chose because of prior dealings with that store as well as the fact that Rite Aid was a national chain of pharmacies. Rite Aid obtained the doxycycline at issue from Watson Laboratories, Inc. of Corona, California (Watson), which is not a party to this action. Watson shipped the doxycycline in bottles containing 500 Tetracycline is “a yellow crystalline broad-spe ctrum antib iotic C H N O produced by streptomyces or synthetically.” M erriam-W ebster’s Co llegiate Dictionary, 1219 (10th ed.
1999).
capsules and included an eight-page pamphlet which the manufacturer had submitted to the United States Food and Drug Administration (FDA) and which had been approved by that agency as “labeling” f or that prescr iption drug. T he pamp hlet from W atson prov ided in If gastric irritation occurs, it is recommended that doxycyclinebe given with food or milk.
The doxycycline received by Ms. Levy-Gray was accompanied by an instruction and information pamp hlet, kno wn as a “patie nt pack age ins ert” (PP I), entitled “Rite A dvice.” The “Rite Advice” pamphlet was drafted for Rite Aid by First Data Bank Corporation, which is not a party to the case sub judice. The cover page of the pamphlet informed readers: “Inside is everything you need to know about your prescription. It c overs eve rything in writing from dosage to side effects. If you have any questions, just ask your pharm acist.” The inside of the pam phlet stated, in p art: IMPORTANT NOTE: THE FOLLOWING INFORMATION ISINTENDED TO SUPPLEMENT, NOT SUBSTITUTE FOR,THE EXPERTISE AND JUDGMENT OF YOUR PHYSICIAN,P H A R M A C I S T O R O T H E R H E A L T H C A R EPRO FESS IONA L. IT SHOULD NOT BE CONSTRUED TO INDICATE THATUSE OF THE DRUG IS SAFE, APPROPRIATE, OREFFECTIVE FOR YOU.
CONSULT YOUR HEALTHCARE PROFESSIONALBEFORE USING THIS DRUG.
HOW TO TAKE T HIS MEDICA TION: Take each dose witha full glass of water (4 oz. or 120 ml) or more. Do not lie down for at least 1 hour after taking this drug. Take with food or milkif stomach upset occurs unless your doctor directs youotherwise. Avoid taking antacids, containing magnesium,aluminum or calcium , sucralfate, iron preparation s or vitamin(zinc) products within 2-3 hours of taking this medication.
These products b ind with the medication preventing itsabsorp tion . . . . The information in this leaflet may be used as an educationalaid. This information does not cover all possible uses, actions,precautions, side effects, or interactions of this medicin e. Thisinformation is not intended as medical advice for individualproble ms[.] Ms. Levy-Gray took the first dose of doxycycline on O ctober 26 with w ater.
According to M s. Le vy-G ray’s t estim ony, th e fol low ing d ay she started taking the medication with milk because she had experienced an upset stomach. While continuing to take the drug, Ms. Levy-Gray also consumed a large quantity of dairy products including eight to ten glasses of milk per day, macaroni and cheese, grilled cheese sandwiches, yogurt, ice cream, and cottage cheese, as she testified, in an effort to maintain her breast milk to resume nursing her son after her treatment ended. Dur ing t his ti me, a ccor ding to M s. Le vy-G ray’s t estim ony, she exp erience d no alle viation o f her sym ptoms from L yme dise ase. Upon advice from her brother, a urological oncologist, Ms. Levy-Gray stopped taking the doxycyline with da iry produ cts. Althoug h Ms. L evy-Gray’s symp toms imp roved w ithin two or three days of discontinuing consumption of dairy products in conjunction with the doxycycline, she did not fully recover and was referred by Dr. Christine Lafferman, her internist, to Dr. Charles A. Haile, the Chief of Medical Staff and Chief of the Division of Infectious Diseases at Greater Baltimore Medical Center, who is board certified in internal medicine and infec tious disease s. Ms. Lev y-Gray met w ith Dr. Haile on December 28, 2000.
When a second six-week course of doxycycline failed to ameliorate Ms. Le vy-Gray’s symptoms, Dr. Haile diagnosed her w ith post-Lyme syndrome, w hich is a chro nic autoimmune response in which patients experience symptoms that mimic Lyme disease withou t an activ e bacte rial infec tion. On November 2, 2001, M s. Levy-Gray filed a complaint in the Circuit Court for Baltimore County against Rite Aid seeking relief based on the theories of negligence, product liabi lity, failure to warn, negligent misrepresentation, and breach of express warranty. Her husband asserted a claim for loss of consortium.2 Ms. Levy-Gray alleged that her consumption of milk and other various dairy products while taking the doxycycline, consistent with the information provided by Rite Aid, reduced the absorption of the drug and prevented it from operating as effectively as possible, thereby proximately causing her post- On De cember 1 0, 2001, R ite Aid filed a motion to dismiss the complaint fo r failure to state a claim u pon wh ich relief cou ld be grante d becaus e the stateme nts contained in the “Rite Advice” pamphlet did not constitute an express warranty and the fact that the particular Rite Aid store involved in the case was not a proper party to the suit. The court granted the Ms. Lev y-Gray’s husba nd is not a p arty to the proce edings be fore this Co urt.
motion with respect to the Rite Aid store and denied the motion regarding the express warranty issue on F ebruary 25, 20 02. Rite A id thereafter filed a motion for sum mary judgment arguing that it could not be held liab le under negligence, strict liability or breach of express warranty under the facts of the case sub judice. On January 10, 2003, the trial judge denied the motion. Ms. Levy-Gray subsequently filed an amended complaint, which increased the ad damnum clause for c ompens atory damag es to $2,500,000 and adde d a claim On May 20, 2003, the trial in the Circuit Court of Baltimore County before Judge John F. Fader II commenced and lasted seven days, wherein the jury heard copious testimony from expert witnesses called by both parties. Rite Aid’s experts testified that the absorption of doxycycline might have been reduced by up to twenty percent when taken with milk or other dairy products, but that the reduction w as clinically insignificant because the recommended dosage provided more of the drug than was necessary to treat the infection. Conversely, Ms.
Lev y-Gra y’s experts testified that doxycycline should not hav e been taken w ith dairy products and that M s. Levy-Gray’s consumption of milk with her medication caused her At the close of evidence, Judge Fader permitted the case to go to the jury on the theories of negligence and breach of express warranty and dismissed the remainder of the claims. The court presented the jury with the following instructions: An individual o r an entity may only be sued for n egligence ifthat individual or entity had a duty to another person which the defendant breach ed. That duty may be imposed by statute:automob ile negligence case, follow the rules of the road; or bycase law, or b y volunte ering to assum e a duty. I t is thePlaintiffs’ contention in this case that Rite Aid had a duty to herbecause it assumed that duty by giving prescription adv ice toher. One who volunteers to assist or aid another must exercisethe same degree of case a reasonable person would exerciseunder t he sam e or sim ilar circu mstanc es. Rite Aid gav e her that p amp hlet. The law says that a volunteerwho assumes a duty has a responsibility to use reasonable carein fulfilling that d uty. Negligen ce is wha t she alleges, sayingthat they had a duty because they volunteered, they breached thatduty. Rite Aid s ays we did n ot breach th at duty. The co nflict inthe evid ence is f or you to r esolve . Negligence is doing something that a person using re asonable care would not do or not doing something that a person usingreasonab le care w ould do . Reasonable care means that caution,attention, or skill a reasonable person would use under similarcircumstances.
Thus the first questio n alleging n egligence. D o you find infavo r of R ite A id, do you f ind i n fav or of Elle n R. L evy-G ray.
There is also a caus e of actio n for express warranty, again,focusing on the Rite Aid advice. That is the contract type ofaction. An exp ress warra nty is a representation about a productby the seller to a buyer when the buyer relies upon therepresentation in purchasing the product. Any statement of factmade by the seller to the buyer about the product is an expresswarranty that the product conforms to the statement or promisemade. The promise or statement may be oral or in writing. No particular words are necessary to create an express warranty, noris it necessary that the seller use formal w ords such as warran tyor guarantee or that the seller have a specific intention to makea warr anty. The attorneys are go ing to talk to you about that R ite Aid RiteAdvice pamphlet. The Plaintiffs are going to say and argue toyou that this constituted an express warranty. The Defendantsare going to refer to the same paper and argu e to you that it didnot. You will see the pamphlet, the warranty, and listen to thedifferences of opinion, factual and expert witnesses and then we ask you to answer this second question alleging breach ofwar rant y: Do you find in favo r of Rite Aid Co rporation or infavo r of E llen R . Lev y-Gra y.
The jury found in favor of Rite Aid on the negligence claim and found in favor of Ms.
Levy-Gray with respect to the breach of express warranty claim in the amount of $250,000.
After the Circuit Court denied Rite Aid’s post-judgment motions including a motion for judgment n.o.v., Rite Aid filed a notice of appeal with the Court of Special Appeals seeking review of the jury’s determination that it was liable for breach of express warranty, and Ms.
Levy-Gray filed a cross-appeal premised upon her assertion that the trial court erred in failing to give the jury an instruction on Rite Aid’s failure to warn her about the contraindication of doxycyclin e and c alcium contain ing pro ducts. In a published opinion, the Court of Special Appeals determined that Ms. Levy-Gray established reliance on the information contained in the “Rite Advice” pamphlet due to her course of dealing with the pharm acy and her continued confidence in Rite Aid to provide facts conce rning h er presc ription th at were not fur nished by her ph ysician. Rite Aid Corporation v. Levy-Gray, 162 Md. App. 673, 691-92, 876 A.2d 115, 126 (2005). M oreover, the Court o f Special A ppeals held that the s tatement in the “Rite Advice” pamphlet stating that doxycycline should be taken with food or milk in the event of upset stomach is a representation that a charac teristic of dox ycycline is that it is compatible with food or milk.
The intermediate appellate court concluded that the issue of whether the general disclaimer accompanying the information in the “R ite Advice” pam phlet took doxycycline’s compatib ility with dairy out o f the barga in was a qu estion of fa ct for the jury to decide. The Court of Specia l Appeals also held that M s. Levy-Gray did not have to be aware of the express warranty at the time of her purchase from R ite Aid for the warranty to be effective.
Thus, the court determined that Rite A id expressly warranted that doxycycline could be taken with milk with out a lterin g the drug ’s ef fica cy. Based on its analysis of the issues presented by Rite Aid, th e Court of Special A ppeals con cluded tha t it did not have to address the question ra ised by Ms. L evy-Gray in her cross-appe al.3 On July 18, 2005 , Rite Aid f iled a petition f or writ of c ertiorari with th is Court a nd presented the following questions for our review: 1. Whether a pharmacy can be held liable on a theory of expresswarranty for information and advice furnished with aprescription drug.
2. Whether instructions on how to u se a produ ct, delivered tothe customer after the pro duct is paid for, which the custom er isunaware of prior to the sale and which makes no promise of theproduct’s performance, fulfills the requirements for an expresswarranty under Section 2-313 of Maryland’s Commercial LawArticle that the statement be “an affirmation of fact or promisemade by the seller that rela tes to the goods” and that theaffirm ation be “part of the bas is of the bargain .” On September 8, 2005, we granted the petition and issu ed the w rit. Rite Aid Corporation v. Levy-Gray, 388 Md. 673, 882 A.2d 286 (2005). We con clude that u nder the fa cts present in the case at bar, Rite Aid may be held liable for breach of express warranty. Moreover, we Ms. Lev y-Gray did not f ile a cross-pe tition for writ o f certiorari w ith this Cour t.
determine that, under the circumstances of the case sub judice, the jury reasonably could infer that the instruction “take with food or milk if upset stomach occurs” in the “Rite Advice” pamphlet constitutes an express warranty under Maryland Cod e (1975, 2002 R epl. Vol.), Section 2-313 of the Commercial Law Article. Therefore, we affirm the judgment of the Discussion
Rite Aid argues that the statements contained in the “Rite Advice” pamphlet cannot be part of the basis of the bargain because the decision to purchase the doxycycline was based solely on the advice o f Ms. Le vy-Gray’s presc ribing physician and that it is protected from liability due to the “learned intermediary” doctrine, which governs th e relationship between physicians, patients, and pharmacists. Rite Aid also contends that the statements about doxycycline contained in the “Rite Advice” pamphlet were not part of the basis of the bargain be cause M s. Levy-Gra y did not receive them and was not a ware of their existence until after the sale was complete d. Rite Aid asserts that the a dvice to take doxycycline with milk if the stomach is upset unless otherwise directed by a physician is not an affirmation about the drug that can give rise to an express warranty because it was not a statement that use w ith milk w as inva riably app ropriate for all co nsume rs. Con vers ely, Ms. Lev y-Gray conte nds that the statem ents contain ed in the “R ite Advice” pamphlet were part of the basis of the bargain because of her previous course of dealing with Rite Aid and her reliance on the inform ation that she received f rom Rite Aid.
Ms. Levy-Gray also argues that the advice to “[t]ake with food or milk if stomach upset occurs unless your docto r directs you othe rwise” is an affirmation that doxycycline is compatib le with milk and can give rise to an express warranty. She asserts that Rite Aid not only warranted that doxycycline w as comp atible with milk, but also expressly warranted the completeness and correctness of its information and advice contained in the “Rite Advice” Can Rite A id Be Held L iable for Breach of Express W arranty
The threshold issu e that we m ust address is Rite Aid ’s argument that the sale of pharmac euticals is qualitatively different from the sale of other goods, such that pharmacies cannot be held liab le for breach of express warranties under the Uniform Commercial Code.
Although courts in our sister jurisdictions consistently have declined to impose the Un iform Commercial Code implied warranties of fitness4 and merc hantability5 because they have Maryland Code (1975, 2002 Repl. Vol.), Section 2-315 of the Commercial Law Article describes an implied warranty of fitness for a particular purpose as arising: (1) Where the seller at the time of contrac ting has reas on toknow any particular purpose for which the goods are requiredand that the buyer is relying on the se ller’s skill or judg ment toselect and furnish suitable goods, there is unless excluded ormodified under the next section an implied warranty that thegoods shall be fit for such purpose.
Maryland Code (1975, 2002 Repl. Vol.), Section 2-314 of the Commercial Law Article described an implied warranty of merchantability as: (1) Unless excluded or modified (§ 2-316), a warranty that thegoods shall be merchantable is implied in a contract fo r theirsale if the seller is a merchant with respect to goods of that kind.
determined that the prescribing of medication is an aspect of the delivery of medical services, see Ellsroth v. Johnson & Johnson, 700 F. Supp. 151 (S.D.N.Y. 198 8); Coyle v. Richardson- Merrill, Inc., 584 A.2d 138 3 (Pa. 1991); Murphy v. E.R. Squibb & Sons, Inc., 710 P.2d 247 (Cal. 1985), R ite Aid has f ailed to produce a single case that stands for the proposition that pharmac euticals may not be the subject of an express warranty. “What differentiates [a] promise implied by law[, i.e., an im plied warra nty,] . . . and an exp ress warra nty is that the ‘standard of performance is set by the defendants’ prom ises, rather than imposed by law.’” Coca-C ola Bottling Co. of Cape Cod v. Weston & Sampson Engrs., Inc., 695 N.E.2d 688, Under this section the serving for value of food or drink to beconsumed either on the premises or elsewhere is a sale.
Notwithstanding any other provisions of this title.
(a) In §§ 2-314 through 2-318 of this title, “seller” includes themanufacturer, distributor, deal, wholesaler or other middlemanor the retailer; and (b) Any previous requirement of privity is abolished as betweenthe buyer and the seller in any action broug ht by the buyer.
(2) Goods to be merchantable must be at lease such as(a) Pass without objection in the trade under the contractdescription; and (b) In the case of fungible goods, are of fair average qualitywithin the description; and (c) Are fit for th e ordinary purpose for w hich such good s areused; and(d) Run, within the variation permitted by the agreement, ofeven kind, quality and quantity within each unit and am ong allunits involved; and(e) Are adequately contained, packaged, and labeled as theagreement may require; and (f) Confo rm to the promises or affirmations of fact made on thecon taine r or la bel if any.
694 (Mass. App. 1998) quoting Anthony’s Pier Four, Inc. v. Crandall Dry Dock Engrs., Inc., 489 N.E.2d 1 72, 175 (M ass. 1986); see also Housing Authority of Portland v . Ash Nat’l, 584 P.2d 776, 778 (Or. App. 1978) (stating that an implied warranty “is a ‘curious hybrid’ between tort and contract law” and differs from express warranties based on contract); Md.
Code (1975, 2002 Repl. Vol.), § 2-313, official cmt. 1 (“‘Express warranties rest on ‘dickered’ aspects of the individual bargain, an d go so cle arly to the essenc e of that ba rgain that words o f disclaim er in a form are repugnant to the basic dickered terms. ‘Implied’ warranties rest so clearly on a common factual situation or set of conditions that no particular language or action is necessary to evidence them and they will arise in such a situation unless A prescription drug satisfies the definition o f “goods ” as explica ted in Maryland Code (1975, 2002 Repl. Vol.), Section 2-105 of the Commercial Law Article, which provides in (1) ‘Goods’ means all things (including specially manufacturedgoods) which are movable at the time of identification to thecontract for sale other than the money in which the price is to bepaid, investment securities (Title 8) and things in action.
Prescription drugs are “ movable at the time of identification to the contra ct for sale.” Moreover, there is no reasonable basis upon which to distinguish between prescription drugs and other goods under the Uniform Comm ercial Code with respect to express warranties.
Thus, because drugs are goods subject to sale, they may potentially be the subject of an express warra nty. See, e.g., Batiste v. American Home Prods. Corp., 231 S.E.2d 269 (N.C.
1977) (holding that a drug manufacturer’s sale of drugs to a plaintiff w ould fall within the purview of the UC C). There fore, in light of the ab solute lack o f authority for distinguishing between prescription drugs and other goods for express warranty purposes, we conclude that we are not precluded as a matter of law from affirming the jury’s verdict against Rite Aid on the b asis o f bre ach o f exp ress war rant y.
Rite Aid, nevertheless, primarily relies on Basko v. Sterling Drug, Inc., 416 F.2d 417 (2d Cir. 1969), in which the United S tates Court o f Appe als for the S econd C ircuit upheld the trial court’s refu sal to subm it a breach of express warranty claim to the jury because the plaintiff did not adduce evidence that the defendant “represent[ed] either (1) that its drugs were free from all harmful side effects or (2) that its drugs were absolutely harmless.” Id. at 428. See also In re Meridia Prods. Liability Litigation, 328 F . Supp .2d 791 , 818 (N.D.
Ohio 2004) (gra nting sum mary judgm ent in favor of defendants because the general statement that product is “safe and effective” does not give rise to an express wa rranty); Rohrbough v. Wyeth Labs., Inc., 719 F. Supp. 470, 477-78 (N.D.W.V. 1989) (granting summary judgment in favor of defe ndant and holding that statement that side effects are “exceed ingly rare” is not an express w arranty); Whittington v. Eli Lilly and Co., 333 F. Supp.
98 (S.D.W.V. 1971) (granting manufacturer’s motion for summary judgment and finding no express warranty as to the absolute effectiveness of the d rug); Butler v. The Travelers Ins. Co., 202 So.2d 354, 356 (La. 1967) (upholding trial court’s rendering of summary judgment on behalf of manufa cturer and d eclining to find breach of express warranty where there was no representation that the tetanus vaccine would absolutely prevent tetanus). These cases involved a determination based on the idiosyncratic facts of each case and do not support the proposition that there can never be an express warranty with respect to prescription drugs.
The Statem ent at Issue Co nstituted An E xpress W arranty
Maryland Code (1975, 2002 Repl. Vol.), Section 2-313 of the Commercial Law Article governs “express warranties by affirmation, promise, description, [or] sample,” and (1) Express warranties by the seller are created as follows:(a) Any affirmation of fact or promise made by the seller to thebuyer whic h relates to the goods an d becom es part of the basisof the bargain creates an e xpress w arranty that the go ods shallconform to the affirmation or promise.
(b) Any description of the goods which is made part of the basisof the bargain creates an e xpress w arranty that the go ods shallconform to the description.
(2) It is not necessary to the creation of an express warranty thatthe seller use formal words such as “warrant” or “guarantee” orthat he have a specific in tention to make a warranty, but anaffirmation merely of the value of the goods or a statementpurporting to be merely the seller’s opinion or commendation ofthe g ood s doe s not crea te a w arra nty.
Official Comment 3 to Section 2-313 further elaborates: 3. The present section deals with affirmations of fact by theseller, descriptions of the goods or exhibitions of samples,exactly as any other part of a negotiation which ends in acontract is dealt with. No spec ific intention to make a w arrantyis necessary if any of these factors is made part of the basis ofthe bargain. In actual practice affirmations of fact made by the seller about the goods during a bargain are regarded as part ofthe descriptio n of those goods; hence no particular reliance onsuch statements need be show n in order to weave them into thefabric of the agreement. Rather, any fact which is to take suchaffirmations, once made, out of the agreement requires clearaffirmative proof. Th e issue norm ally is one of fa ct.
Moreover, Official Comment 7 also elucidates the law governing the case sub judice: 7. The prec ise time when words of description or affirmationare made or s amples are shown is not materia l. The solequestion is whethe r the langua ge or sam ples or mo dels are fairlyto be regarded as part of the contract. If language is used afterthe closing of the deal (as when the b uyer when taking deliveryasks and receives an additional assurance), the warrantybecomes a modification, and need not be supported byconsideration if it is otherwise reason able and in order.
In the case sub judice, Ms. Levy-Gray alleges that the language “take [doxycycline] with food or milk if stomach upset occurs unless your doctor directs you otherwise” constitutes an affirm ative stateme nt by Rite Aid that the doxycycline is compatible with the simultaneous consum ption of m ilk or other da iry products, w hich cons titutes an express war rant y. Con vers ely, Rite Aid asserts that the information at issue cannot be considered an express warranty because it is derived from the FDA-approved language developed by the manufacturer of the doxycycline and was presented with the statement that “it should not be construed to indicate that use of the drug is safe, appropriate, or effective for you.” The similarity betwee n Rite Aid’s advice and that of Watson does not preclude Rite Aid’s statement from constituting a warranty on its part. The language was Rite Aid’s, and it was in no way attributed to Watson. Ms. Levy-Gray would necessarily assume that the advice was entirely that of Rite Aid. The jury reasonably could infe r that Rite A id represented to Ms. Levy-Gray that the doxycycline was compatible with milk consumption.
Moreover, we decline to hold that a general disclaimer would preclude any express warranty in this case as a matter of law, because a reasonable consumer could conclude that the general statement did not negate the effect of the more specific assertion as to the administration of the doxycycline when the entire document is read as a whole. From the language of the “Rite Advice” pamphlet, the jury could reasonably infer from the evidence introduced that the phrase “take with food or milk if upset stomach occurs,” although not guaranteeing effectiveness, affirmed that milk would not adversely impact the efficacy of the drug. The issue of fact concerning the interplay between the general disclaimer and the administration instruction was properly before the jury and we must give deference “to the inferences a fact-finder may draw.” State v. Sm ith, 374 Md. 527, 534, 823 A.2d 664, 668 An affirmation of fact must become “part of the basis of the bargain” for the statement to be considered an express warranty. The term “ba rgain” is not defined in the U niform Commercial Code, but is itself used in the definition of “agreement” in Maryland Code (1975, 2002 Repl. V ol.), Section 1-201 (3) of the Commercial Law Article, which provides ‘Agreem ent’ means the bargain of the parties in fact as fo und intheir language or by implication from other circumstancesincluding course of dealing or usage of trade or course ofperformance as provided in Titles 1 through 10 of this article.
Rite Aid argu es that for an affirmation to becom e “part of the basis of the bargain,” the affirmation must be a negotiated term of the agreement, or the consumer must at least have been aware of its existence prior to the consummation of the deal. Based on the circumstances surrounding most purchases in modern commercial dealing, we disagree.
Official Comment 7 to Section 2-313 provides, “[t]he precise time when words of description or affirmation are made or samples are shown is not material. The sole question is whether the language . . . [is] fairly to be regarded as part of the contract.” Md. Code (1975, 2002 Repl. Vol.), § 2-313 official cmt. 7 o f the C omm ercial L aw A rticle. The clear implication of Official Comment 7 is that express warranties may be formed prior to the completion of the sale or even after the sale has b een cons ummate d. What is p aramoun t is the relationship between the sale of the goods and the affirm ations made by the seller.
Various com men tarie s on t he U nifo rm C omm ercia l Code h ave s imila rly recognized the reality that warran ties are often given at the time of the sale such that the buyer does not become aware of their terms until after the sale is finished: As it is commo n know ledge that se llers will deliver writ tenwarranties after the contract has been made, some courts arerecognizing that later statem ents found in these w ritings are partof the basis of the bargain.
3 Lary La wrenc e, Anderson on the Uniform Commercial Code, § 2-313:66 at 60 (3d ed.
2002); see also James J. W hite & Ro bert S. S umm ers, Uniform Commercial Code, § 9-5 at We agree with the analysis explicated in Murphy v. Mallard Coach Co., 582 N.Y.S.2d 528 (N.Y. App. Div. 1992), in which the court rejected an argument identical to that [W]e believe that while the warranty was technically handedover after plaintiffs paid the purchase price, the fact that it wasgiven to plaintiffs at t he time they took delivery of the motorhome renders it suf ficiently proximate in time so as to fairly besaid to be part of the basis of the bargain (compare, UCC 2-313,comment 7; 1 White and S ummers, Un iform Commercial Code,§ 9-5 at 448-455 [3d ed.]; cf., Marine Midland Bank v. C arroll,98 A.D.2d 516, 471 N.Y.S.2d 409). To accept themanufacturer’s argument that in order to be part of the basis ofthe barg ain th e wa rran ty must actually be handed over duringthe negotiation process so as to be said to be an actual procuringcause of the contract, is to ignore the practical realities of consumer transactions wh erein the w arranty card ge nerallycomes with the go ods, packe d in the box of boxed items orhanded over after purchase of larger, non-boxed goods and,acco rdin gly, is not availab le to be read by the consu mer untilafter the item is actually purchased and brought home. Indeed,such interpretation would, in effect, render almost all consumerwar rant ies a n ab solu te nu llity.
This position also was adopted by the United States District Court for the Southern District of Indiana in In re Bridgestone/Firestone, Inc. Tires Prods. Liability Litigation, 205 F.R.D. 503 (S .D. Ind . 2001) , rev. on other grounds, 288 F.3d 1012 (7 th Cir. 2002).
Specifically, the court noted, in basing its conclusion on Official Comment 7 to Section 2- The official comments to U.C.C. § 2-313 support this holding.
Official Comment 7 provides:The precise time when w ords of description or aff irmation aremade or samples are shown is not material. The sole question is whether the language or samples or models are fairly to beregarded a s part of the c ontract.
A buyer certainly cannot prove that she relied upon anaffirmation made after the closing of the deal in decidingwhether to consummate the deal; however, the U.C.C. clearlycontemplates that such post-sale affirmations can be enforced aswarranties, as long as they are ‘fairly to be regarded as part ofthe contract.’ Id. at 527 (citations omitted). Moreover, the court determined that the interpretation urged by the defendants in In re Bridgestone/Firestone, and by Rite Aid b efore this C ourt, “‘would, in effect, render almost all consumer warranties an absolute nullity,’ inasmuch a s it is common practice for warranty booklets to be provided to consumers inside the sealed box in which a p roduct is pa ckaged, o r, in the case of vehicles, in the glove box of a new car upon delivery.” Id. at 527 n .31 (citat ion om itted). This view was the basis for the S uperior Court of P ennsylvania’s reversal of the entry of summary judgme nt in favor of the seller in an action for breach of w arranty for a used truck in Weiss v. Keystone Mack Sales, Inc., 456 A.2d 1009 (Pa. Super. 1983). The trial court’s grant of summary judgment was premised upon a warranty-exclusion clause, which was prominently displayed on the purchase order, and provided: THIS TRUCK SOLD ‘AS IS,’ ‘WHERE IS.’ NOWARRANTY OR GUARANTEE IS OFFERED OR IMPLIED.
Id. at 1010. In the buyer’s answer to the seller’s interrogatories, however, he alleged that the salesman had orally advised him that the truck was the “best-running truck that Keystone Mack had purchased from [its supplier], and . . . that . . . [it] was in excellent condition.” Id. The buyer also introduced into evidence a handwritten note on a repair order that he received following the vehicle’s purchase stating: “30 day warranty 50/50 on the 250 Cummins engine. If a problem develops have the truck brought back to us. We certify that the engine is in excellent running condition.” Id. Addressing the seller’s conduct in attempting to make repairs after the truc k’s Also, the lower c ourt confin ed its view o f the case to thepurchase order. The record suggests, howev er, that the eve ntson which ap pellant’s claim is based did not end w ith the signingof the purchase order. As we have discussed, when appellantcomplained that the engine was emitting smoke, appelleeundertook to repair it, and gave appellant a ‘30 day warranty50/50' on the engine, and ‘certif[ied]’ that the engine was ‘inexcellent running condition.’ Then, when it was discovered thatthe engine had in fact a c racked blo ck, appellee replaced it,taking some sixty-seven days to do so. It is by no means clear – and the lower court did not consider – whether appellee’sconduct subsequent to the execution of the purchase orderresulted in a new co ntractual or w arranty obligation c oming intobeing, either as a proper modification of the purchase ord er, oras an obligation created later than and distinct from the purchaseorder.
Id. at 1012. Thus, the court recognized that express warranties may arise after the contract In Bigelow v. Agway, 506 F.2d 551 (2d Cir. 1974), the Un ited States Court of App eals for the Second Circuit considered the issue of whe ther warra nties made after a sale is completed may bec ome a basis of the barg ain. In Bigelow, a farmer sued the manufacturer and distributor of a chemica l used to treat hay before baling. Although the record before the court reflected that most farmers would not bale hay that had a moisture level higher than twenty to twenty-five percent, two months after the sale and use of the chemical, the defendant’s salesman guaranteed that hay treated with the chemical was safe to bale even if it contained a moisture level of th irty-tw o to t hirty- fou r per cent . The farm er ba led th e hay, and the level of moisture contributed to a fire that destroyed his entire crop. The Second Circuit, rejecting the defendant’s argument that the salesman’s representation after the sale was not part of the basis of the bargain, noted: Although defenda nts might co nceivably contend that since [thesalesman’s] representation postdated the delivery of the[chemic al] . . . and therefo re could no t be the ‘basis of thebargain’ as required for recove ry . . ., it is undisputed th at the[salesman’s] visit . . . was to pro mote the sa le of the pro duct.
Thus they might constitute an actionable modification of thewarra nty. Id. at 555 n.6. See also Downie v. Abex, 741 F.2d 1235, 12 40 (10th Cir. 1984) (noting that “a rational jury could have found that GM’s post-sale rep resentations a bout the saf ety of ball- screw assemblies with yolk deflectors were designed to promote future sales . . . [because] GM sent Abex brochures discussing the sa fety features for distribution to Abex ’s customers.”); Glyptal Inc. v. Engelhard Corp., 801 F .Supp . 887, 89 5 (D. M ass. 1992) (holding that a telephone conversation in which the defendant’s service representative made affirmations concernin g the com parable qu ality of substituted goods tha t occurred p ost-sale could constitute an express w arranty); Phillips Petrole um C o. v. Bucyrus-Erie Co., 388 N.W.2d 584, 590 (Wis. 1986) (concluding that incorporation into approval drawings, after sale, of specification of grade of steel, created express warranty by modification of original contract); Jones v . Abriani, 350 N.E.2d 635, 644-45 (Ind. App. 1976) (determining that promises made to buyers of mobile home after contract of purchase was signed, inclu ding promise that all defects would be repaired, amounted to ex press warranty); Winsto n Indu s., Inc. v. Stuyvesant Ins. Co., Inc., 317 S o.2d 49 3, 496- 97 (A la. App. 1975) (holding that express warranty exis ted despite fact that buyer did not receive copy fo the man ufacturer’s warranty with the sale and h ad no know ledge of its terms).
Rite Aid attem pts to distingu ish these cas es by arguin g that the warranties were expressly labeled as such and th at the warranties were actually remedial promises under Official C ommen t 11 to Sectio n 2-313, w hich prov ides in pertine nt part: A promise about the quality or performance characteristics ofthe goods creates an express warranty if the other elements of awarranty are present whereas a promise by which the sellercommits itself to take remedial action upon the happening of aspecified event is a remedial promise. The distinction hasmean ing in th e conte xt of the statute o f limitatio ns. The concept of remedial promise is dealt with in a sep aratesubsection to make c lear that it is a con cept separate and apartfrom express w arranty and th at the elements of an expresswarranty, such as basis of the bargain, are not applicable.
3 Lary Lawrence, Anderson on the Uniform Commercial Code, § 2-313:339 (3d ed. Supp.
We are not persuaded by Rite Aid’s argument. Under the plain language of Maryland Code (1975, 2002 Repl. V ol.), Section 2-313 (2) of the Commercial Law Article, “[i]t is not necessary to the creation of an express warranty that the seller use formal language such as ‘warrant’ or ‘guarantee’ or that he have a specif ic intentio n to ma ke a w arranty.” Thus, the fact that the assertions contained in the “Rite Advice” pamphlet did not include language expressly indicating that the information listed therein w as a warranty does not preclude a finding that it gav e rise to a n expre ss warr anty. Furthermore, Rite Aid’s reliance on Official C ommen t 11 to Section 2-313 of the Uniform Commercial Code, as enunciated in Anderson On The Uniform Commercial Code, is misplaced. The Maryland General Assembly has not adopted Official Com ment 11 as part of the Official Comment that accompanies the Uniform Commercial Code in the Commercial Law Article, nor has the Legislature enacted any statute that recognizes “remedial promises” as distinct from express warranties. Moreover, the cases at issue analyze the terms of the written warranties in terms of express warranties, not “remedial promises.” Thus, th e Rite Aid also relies on the “learned intermediary” doctrine, which applies to the tripartite relationship between the drug manufacturer, the prescribing physician, and the patient, as suppor ting the prop osition that ph armacists cannot be held liable for the breach of express w arranty becau se the patien t is presume d to have relied upon the advice rendered As stated by the Restatement (Third) of Torts, “the traditional rules [are] that drug and medical-device manufacturers are liable only when their products contain manufacturing defects or are sold without adequate instructions and warnings to prescribing and other health-care providers.” Restatemen t (Third) Torts: Products Liability § 6, “Liability of Commercial Seller Or Distributor For Harm Caused By Defective Prescription Drugs And Medical Devices ,” cmt. a. This principle is further explicated in comment b, which provides The obligation of a manufacturer to warn about risks attendantto the use of drugs and m edical devic es that may be sold onlypursuant to a health-care provider’s prescription traditionally hasrequired warnings directed to health-care provide rs and not topatients. The ration ale suppo rting this ‘learne d int erm edia ry’rule is that only health-care professionals are in a position tounderstand the significance of the risks involved and to assessthe relative advantages and disadvantages of a given form ofprescription-based therapy. T he duty then devolves on thehealth-care provider to supply to the patient such information asis deemed appropriate under the circumstances so that thepatie nt ca n ma de an info rme d ch oice as to ther apy.
The “learned intermediary” do ctrine has be en extend ed to prov ide a defen se to pharmacies and pha rma cists by the courts o f other j urisdictio ns. See In re Diet Drugs (Phentermine, Fenfluram ine, Dexfenfluramine) Products Liability Litigation, 220 F. Supp .2d 414, 423 (E.D . Pa. 2002); Moore v. Memorial Hospital of Gulfport, 825 So.2d 658, 666 (Miss. 200 2); Morgan v. Wal-Mart Stores, Inc., 30 S.W.3d 455, 469 (Tex. Ct. App. 2000); Griffith v. Blatt, 973 P.2d 385, 390 (Or. App . 1999); Johnson v. Walgreen Co., 675 So.2d 1036, 1037 (Fla. Dist. Ct. Ap p. 1996); Walker v. Jack Eckerd Corp., 434 S.E.2d 63, 67 (Ga.
App. 1993); Fakhouri v. K Mart Corp., 618 N.E.2d 518, 521 (Ill. App. 1993); Mazur v. Merck & Co., 964 F.2d 1348, 13 56 (3d C ir. 1992); Nichols v. Central Merch., Inc., 817 P.2d 1131, 1133 (K an. App . 1991); Ferguson v. Williams, 399 S.E.2d 389, 393 (N.C. App. 1991); Laws v. Johnson, 799 S.W.2d 249 (Tenn. App. 1990); McKee v. American H ome Prods. Corp., 782 P.2d 1045, 10 50 (Wa sh. 1989); Adkins v. Mong, 425 N.W.2d 151, 152 (Mich.
App. 1988); Ingram v. Hook’s Drugs, Inc., 476 N.E.2d 881 (Ind. App. 1985); Kinney v. Hutchinson, 449 S o.2d 69 6, 698 ( La. Ct. A pp. 198 4). In support of its position, Rite Aid also relies upon the analys is articulated in In re Rezulin Prods. Liability Litigation, 133 F. Supp.2d 272 (S.D .N.Y. 2001). Rezulin was a prescription diabetes medication, the use of which gave rise to hundreds of lawsuits against its manufa cturer. Sixteen of those ac tions were consolidate d in the Un ited States District Court for the Southern District of New York for pretrial proceedings by the Judicial Panel on Multidistrict Litigation. One of the many issues presented in In re Rezu lin was whether the pharmacies that had filled the plain tiffs’ prescrip tions for R ezulin had been frau dulently joined as defend ants in an ef fort to preserve f ederal dive rsity jurisdiction. The determination of whether the pharm acies were fraudulen tly joined turned on whe ther the plaintif fs could state a “legally sufficient and factually arguable claim for relief” agains t the pha rmacie s. Id. at 279. Among the various claims asserted against the pharmacies was breach of express war rant y. After examining the law of each of the states involved, the court determined that a pharmac y was not lia ble to the patient for failure to warn because those states either applied, or were e xpected to adopt in the future, to pharmacies the defense derived from the “learned intermediary” doctrine. Thus, the court concluded that, because patients rely on their physicians when purchasing a prescription drug, and not on pharmacists, a cause of action based on the breach of an express warranty did not lie. The court explained: Patients who purchase prescription drugs from pharmacists donot negotiate or bargain with the pharmacists about thesuitability of the prod uct. Even ass uming a p harmacist w ere tomake a representation about the safety of a particular drug, therepresentation would not form ‘part of the basis of the bargain’as required by the [Uniform Commercial Code] because thepatient purchase s the drug o n the basis of discu ssions with hisor her physician. U nlike the bu yer-seller relationsh ip in normalsales transactions, the relationship between the patient and the pharmacist is a function of a re gulatory system requiring thatcertain drugs be sold solely by prescrip tion of a physician . It isthrough the pharmacy that the patient purchase s the drug, b ut inonly this sense does the pharmacy function as a ‘seller.’ Theonly representations regarding the in trinsic properties of thedrug that form the basis of the buyer’s purchase are those of thephysician. It is precisely for this reason that the learnedintermediary doctrine focuses on communications between the manufacturer and physician s, rather than p atients or pharmacies;it is the physicians who make the ultimate decision on whetherto prescribe the drug.
As the Court of Special Appeals aptly noted, neither In re Rezu lin nor Salisbury v. Purdue Pharma, L.P., 166 F. Supp.2d 546 (E.D.Ky. 2001), upon which Rite Aid also relies, involve a “pa tient pack age i nser t” pr epar ed b y, or on behalf of, the pharmacy and distributed We adopted a form of the “learned intermediary” doctrine in People’s Serv. Drug Stores, Inc. v. Som erville, 161 Md. 662, 158 A. 12 (1932). In that case, the plaintiff filed an action sounding in negligence against a pharmacy that had filled a prescription for capsules, which each contained one-fou rth grain of strychnine along w ith other ingredients. The theory of the plaintiff’s case was that the pharmacists should not have filled the prescription because the strychnine content was excessive. In reversing a judgment in favor of the plaintiff, we [I]t does not f ollow, bec ause a ph ysician in a given case isliable, that the druggist who filled the prescription is also liable.
It would be a dangerous principle to establish that a druggistcannot safely fill a prescrip tion merely bec ause it is out o f theordi nary. If that were done, many patients might die from beingdenied unusual remedies in extreme cases. Of course this doesnot mean that pharmacists can safely fill prescriptions calling fordoses that are obviously fatal; or that where the doses prescribed appear to be unusual the prescription can be safely filled withoutinquiry of the physician to make sure there has been no error.
There is no eviden ce that this pre caution w as not taken in thepresent case; but, even if it was not, that would be immaterialhere, because the result of such inquiry would h ave been toconfirm the prescriptio n, as the physicia n who w rote it testifiedthat it was his unusual prescription in such cases.
Id. at 666-67, 158 A. at 13-14. Although we adopted the “learned intermediary” doctrine in People’s Serv. Drug Stores with respe ct to the ordin ary pharmac ist-patient relation ship wherein the pharmacist merely fills the prescription as ordered by the physician, we decline to extend the doctrine to those cases in which the pharmacy is disseminating information concerning the properties and efficacy of a prescription drug. To extend the defense to the facts of the instant case to insulate the pharmacy from the consequences of its affirmative decision to distribute information and instructions contained that provide direction to the patients in a patient pa ckage inse rt is without leg al justification. There fore, we d ecline to hold as a matter of law that the “learned intermediary” doctrine precludes a pharmacy from being held liable for breach of e xpress warranty whe n it provides a packag e insert that could provid e the ba sis for su ch a w arranty. We cannot ag ree with Rite Aid’s proposition that Ms. Levy-Gray relied solely on the expertise of Dr. G eckler, her p rescribing p hysician, to desc ribe the app ropriate ma nner in which to take doxycycline as a matter of law. Dr. Geckler testified that he relied on Rite A id to provide the necessary information to Ms. Levy-Gray. Based on Dr. Geckler’s testimony that he did not provide Ms. Levy-Gray with guidance as to the administration of the doxycycline, the jury reasonably could have inferred that Ms. Levy-Gray similarly relied on the informatio n furnishe d by Rite Aid with respect to doxycycline’s characteristics and how it should be taken. M oreover, the jury further could have inferred from the evidence presented at trial that the language contained in the “Rite Advice” pamphlet encouraged Ms.
Levy-Gray to rely on the information contained therein based upon its assertion on the cover that “[i]nside is everything that you need to know about your prescription;” thus, the statement “take with food or milk if upset stomach occurs” had the effect of warranting that for the duration of Ms. Levy-Gray’s doxycycline treatment the doxycycline will not be adversely affected by her consumption of milk. Based on the facts of the case sub judice, the jury reasonably could have inferred that Ms. Levy-Gray relied on the veracity of Rite Aid’s affirm ation ea ch time she too k the do se of d oxycycline with m ilk. Conclusion
We determine that under the facts of the case at bar, pharmacies may be held liable for breach of express warranty under the Unifo rm Co mmer cial Co de. Furthermore, because we conclude that a jury reasonably could infer that Ms. Levy-Gray relied on the instruction “take with food or m ilk if upset stom ach occu rs” as an af firmation th at doxycycline is compatib le with dairy such that it became part of the basis of the bargain, and that therefore, the statement constituted an express warran ty under Maryland Cod e (1975, 2002 R epl. Vol.), Section 2-313 of the Commercial Law Article, we affirm the judgment of the Court of JUDGMENT OF THE COURT OF SPECIAL
APPEALS AFFIRMED. COSTS IN THIS
COURT AND IN THE COURT OF SPECIAL
A P P E A L S T O B E P A I D BY T H E
PETITIONER.
Circuit Co urt for Baltim ore Cou ntyCase # 03-C-01-011591 After searching th is record in va in to locate a le gally cognizab le express w arranty in Rite Aid’s instructions to M s. Levy-Gray for takin g do xycycline, “[t]ake each dose with a full glass of water . . . [or] [t]ake with food or milk if stomach upset occurs unless your doctor directs yo u other wise,” I respec tfully disse nt. Sections 2-313(1)(a) and (b) of the Commercial Law Article provide:1 (1) Express warranties by the seller are created as follows: (a) Any affirmation of fact or p romise m ade by the seller tothe buyer which relates to the goods and becomes part of thebasis of the bargain creates an express warranty that the goodsshall conform to the affirmation or promise.
(b) A ny description of the goods which is made part of thebasis of the bargain creates an express warranty that the goodsshall conform to the description.
Md. Code (1975, 2002 R epl. Vol.), Comme rcial Law Article § 2-3 15(1).2 To create an exp ress war rant y, the seller must affirm a fact, make a promise, or provide a d escription to the buyer tha t relates to the goo ds. That fact, promise, or description must be “part of the basis of the bargain” between the buyer and seller. § 2-313 (1)(a) and (b ); see also Official Comment 1 (“Express warranties rest on ‘dickered’ aspects of the individual bargain, and go so clearly to the essence of that bargain that words o f disclaime r in a form a re repugn ant to the basic dicke red terms.”); 2 (“[T]his section is limited in its sco pe and dire ct purpose to warranties made by the seller to the buyer as part of a contra ct for sale . . . .”); 3 (“N o specific Section 2-313(1)(c) is not relevant to this case.
Unless otherwise p rovided, all references are to sections of the Commercial Law intention to make a warranty is necessary if any [affirmations of fac t by the seller, descriptions of goods or exhibition of samples] is made part of the basis of the bargain.”); 7 (“The sole question is whether the language or sam ples or models are fairly to be regarded as part of the c ontract.”) of § 2-313; Shreve v. Sears, 166 F. Supp. 2d 378, 420-21 (D. Md.
2001) (holding that the instruction for how to switch off a snow thrower provided in the Owner’s Manual did not constitute an express warranty because it was not an affirmation regarding the good th at became a basis of the bargain, statin g that it was “ more sen sible” to regard the buyer’s exp ectation that th e good w ould wo rk properly as p art of an im plied warranty of merch antability); In Re Rezulin, 133 F. Supp. 2d 272, 291-92 (S.D. N.Y. 2001) (refusing to hold pharmacies liable for breach of an express warranty because any representation made by the pharm acy would not form part of the basis of the bargain because patients do not purchase prescription medications based on representations from the pha rma cy, but rather, based on advice from the prescribing physician). The purpose behind providing liability for breach of an express warranty is to ensure that the buyer gets what the seller promised regarding th e goods th at induced (or would have indu ced) the bu yer to purchase the goo ds. See § 2-313 (defining e xpress w arranty); § 2-71 4 (providin g buyer with damages for breach of warra nty); Official C ommen t 4 to § 2-31 3 (stating that “ the who le purpose of the law of warranty is to determine what it is that the seller has in essence agreed The pharmaceutical instruction for the modality of ingesting doxycycline if upset stomach occurred did not constitute an express warranty because the instructions were not part of the basis of the bargain and may not be said fairly to be part of the contract of sale.
This Court has not analyzed before the “basis of the bargain” requirement of § 2-313(1)(a) and (b). The Majority’s interpretation of § 2-313(1) d isposes of this statutory requirement all together by its ef fective ho lding that an express w arranty existed in the instructions contained in an enclosed pamphlet of drug information read by the purchaser after the purchase of the drug , but which would not have been a factor in the decision to buy even had she read it before the sale. The medication instruction, regardless of whether Ms. Levy-Gray knew of it bef ore the p urchas e, could not have been part of the basis of the bargain between Rite Aid and her be cause it was neither a dick ered term nor part of the c ontr act. M s. Le vy- Gray purchase d doxycycline b ecause he r doctor adv ised her to p urchase it.3 Thus, even assuming the instruction was a rep resentation to Ms. Levy-Gray that the intended operative medicinal effectiveness of tak ing doxycycline was com patible with concurren t milk consumption at some level at the time of ingestion of the pill, as the Majority opinion Ms. Levy-Gray’s prescribing physician testified that had Ms. Levy-Gray asked him, he would have given the same advice to take the doxycycline with food or milk if upsetstomach occurred w hen taking it with water only. Of even greater factual significance is theabsence of any discussion between Ms. Levy-Gray an d the Rite A id pharmacist regarding herintended additional consumption of atypical amounts of dairy products during the on-goingperiod of time she was taking the medication, over and above a mere glass of milk with eachpill.
characterizes it, the statement was not a representation that became part of the basis of the bargain as required by § 2-31 3(1).
A pharmacy should not be subject to liability, at least under a breach of express warranty theory, regarding statements abo ut prescription drugs it dispenses o n a doctor’s order. As the United States District Court for the Sou thern District of New York aptly noted in its well-r easone d decis ion, In Re Re zulin, pharmacies do not play the role of re tail merchant when se lling prescriptio n drugs to patients. In Re Re zulin, 133 F. Supp. 2d at 291- 92 (“Patients who purchase prescription d rugs from pharmac ists do not ne gotiate or bargain with the pharmacist about the suitability of the product.”). Every state appellate court that has considered whether to hold pharmacies liable under a brea ch of w arranty theory with respect to the operative properties of prescription drugs also has declined to do so. Id. (citing Coyle v. Richardson-Merrell, Inc., 584 A.2d 1383, 1387 (Pa. 1991) (refusing to find pharmac ists strictly liable for dispensing defective drugs because “it is not the pharmacist on whom the public ‘is forced to rely’ to obtain the products they need”); Presto v. Sandoz Pharm aceuticals Corp., 487 S.E.2d 70, 75 (Ga. A pp. 199 7), cert. denied, (“because the patient is legally deemed to rely on the physician and not the package labeling for [a] warning, [plaintiffs] cannot show they were ‘relying on the seller’s skill or judgment to select or furnish suitable goods,’ as required to prove an implied warranty of fitness for a particular purpose”); Madripokis v. Merrell-Dow Pharmaceuticals, Inc., 523 A.2d 374, 376-77 (Pa.
Super. 1987) (drugg ist does n ot warr ant that p rescriptio n drug s are fit f or “ord inary uses ,” as use of drug is a decision made by ph ysician); Bichler v. Willing, 397 N.Y.S.2d 57, 58-59 (1st Dept. 1977) (warranties not implied in sale of prescription drugs, as patient places confidence in doctor’s sk ill, not the pharm acist’s skill); McLeod v. W.S. Merrell Co., 174 So.2d 736, 739 (Fla. 1965) (a transaction involving a prescription drug “is not one out of which a warranty, even under m ost modern standards, w ould be im plied”); Batiste v. American Home Products, Corp., 231 S.E.2d 269, 276 (N.C. App. 1977) , cert. denied, 233 S.E.2d 921 (N.C. 1977) (a pharmacy is not liable under general warranty principles for injury arising out of a prescription drug because a patient do es not rely on the druggist’s sk ill, but instead on his or her physician’s skill and advice).4 Instead, prescription drug sales are attributable to the advice of the patient’s physician . Id. Hence, the purchase of prescription drugs is fundamentally different from the purchase of other consumer goods. Because patients generally do n ot base their d ecision to pu rchase a pr escription medication on the The Majority opinion disregards In re Rezu lin, and by implication other cases holding simi larly, by distinguishing the present case on the basis that the description of how to takethe drug was contained in a pamphlet predicated written material edited from otherinformation provided by the drug manufacturer, while in the cases cited above the descriptionrelating to the prescription medication was not contained in material attributed to thepha rma cy. Majority slip op. at 27. This “distinction” of fact is irrelevant to p roper analysisunder warranty law, although it may be relevant to analysis under a negligence theory. Nomatter the original source of the information, the statement provided by Rite Aid to Ms.
Levy-Gray must be analyzed in the first instance to determine whether the statementconstituted an express warranty under § 2-313. The cases cited above recognize theproposition that patients typically do not rely on statements provided by pharmacies whendeciding to purchase the drug from the p harmacy. Ind eed, that w as the case w ith Ms. Lev y-Gra y. Patients do rely, however, on instructions for use when taking the medicationpurchased, but a breac h of duty there at best presents a question of negligence in tort if theinstructio ns are in accura te, but no t a claim of brea ch of w arranty in c ontract. instructions for its consu mption or u se or any info rmation contained in the informational pamphlet accompanying the prescription drug, such information is not part of the basis of the barg ain, a nd, th eref ore, n o ex pres s wa rran ty is cr eate d the reby.
The more appropriate theory of liability under which p harmacie s may be held accounta ble for the instru ctions f or use o f a pres cription medic ation is n egligen ce. See Restatement (Third) of Torts: Products Liability § 6(e)(2) (1998) (providing that a reta il seller of a prescription drug is subject to liability for harm caused by the drug if “at or before the time of sale or other distribution of the drug [ ] the retail seller or other distributor fails to exercise reasonable care and such failure causes harm to perso ns”).5 The purpose of the theory of liability for breach of an express warranty is not served by applying it to a pharmacy because a pharmacy does not make representations that induce patients to purchase a particular prescription drug. If a pharmacy breaches a duty to the buyer to provide the drug indicated on the prescriptio n or supplie s inaccurate instructions, the n it may be he ld liable in negligence. In Ms. Levy-Gray’s case, she failed to convince the jury that Rite Aid was negligent, an issue not preserved for appeal (although she effectively may have convinced the Majority that Rite Aid w as negligent).
Even under a n egligence th eory of recov ery, Comm ent h and Illu stration 4 to Restatement (Third) of Torts: Prod. Liab. § 6 notes that courts have limited the tort liabilityof intermediary parties, including pharmacies, by holding “that they should be permitted torely on the special expertise of manufacturers, prescribing and treating health-care providers,and go vernm ental reg ulatory ag encies.” The Majority opinion cites, as authorities found persuasive by it for its interpretation of § 2-313(1) that “basis of the bargain” does not require the buyer to be aware of the alleged warranty representation during the negotiation of the bargain, a multitude of cases regarding consumer goods like mo tor hom es (e.g. Murphy v. Mallard Coach Co., 582 N .Y.S.2 d 528 (N.Y. App. Div. 1992) ) and ha y-baling c hemic als (e.g. Bigelow v. Agway, 506 F.2d 551 (2d Cir. 1974)), none of w hich require a prescription by a physician (or a nything remo tely analogous) in order to purchase. Majority slip op. at 18-22. These cases are not persuasive authority here beca use we a re dealing w ith the purchase of a prescription medication from a pharmacy, which is a fundamentally different sale of goods. Unlike the buyer of a motor home, for example, who relies upon the affirmations of fact and descriptions by the motor home retailer when making the purchase, a buyer of prescription drugs does not rely upon representations of the pharm acy w hen deci ding to pu rcha se th e dru g pre scrib ed b y a physician. In addition, th e instructions for taking the medication (which, even when followed, may not work as intende d for each patient’s partic ular conditio n and diet) indicating to take it with food or m ilk if upset stomach occu rs is quite different from a warranty policy or card that a m obile home is fr ee of def ects and w hich prom ises to repair The Majority opinion also relies on Official Comment 7 to § 2-313, which states: The precise time when words of description or affirmation aremade or sample s are show is not materia l. The sole q uestion iswhether the language or samples or models are fairly to beregarded as part of the contract. If language is used after the closing of the deal (as when the buyer when taking delivery asksand receives an additional assurance), the warranty becomes amodification, and need not be sup ported by con sideration if it isotherwise reasonable and in order (Section 2-209 ). (Empha sisadded).
Majority slip op. at 17-1 8. Applying th is reasoning , I conclude that it would not be fair to regard the instructions for use of a prescription medication as “part of the contract” because it is not the kind of affirmation of fact or description as to the prescription medication that would be a factor in a patient’s decision to purchase the m edication from the ph armacy. If the patient reads the instructions for use provided by the pharmacy, while standing at the pharmacy counter, and decides that he or she is in doubt and may no longer wish to purchase the medication , the patient m ore prope rly would need to return to the prescribing physician to discuss any concerns and possibly obtain a new prescription more suited to his or her Of equal significance to a lack of an express warranty in this case, the record does not support the Majority opinion’s conclusion that a reasonable jury could infer that the supposed “express warranty,” tha t the intended operative e ffects of d oxycycline we re compa tible with milk consumption, was breached. Ms. Levy-Gray took the medication, as directed, twice daily: once in the morning and once in the even ing. The in struction stated , in pertinent pa rt, that if stomach upset occurred when using solely water to ingest the pill, then doxycycline may be taken w ith milk. A re asonable in terpretation, ind eed the on ly reasonable construction, of this advice is that you may take eac h pill accomp anied by a vo lume of m ilk equivalent to that you would have taken with wat er, bu t for the s tom ach u pset . Ms . Lev y- Gray, however, consumed an additional, atypical number of dairy servings over the course of each day w hile on the medication: 8-10 glasses of milk per day, plus one or more of the following dairy products: macaroni with cheese, grilled cheese sandwiches, yogurt, ice cream, and/or cottage cheese . Her consumption amou nted to ma ny more serv ings of m ilk and dairy products than reasonably necessary for taking dox ycycline twice da ily with food or milk as the supposed warranty indicated. The instruction-for-use “warranty” recognized by the Majority did not imply or represent tha t doxycycline w ould still be as e ffective if the patient consumed 9 to 15 servings of dair y products per day. Thus, even if an express warranty was crea ted as the M ajority posits, a reasonable jury could not find that it was Acc ordi ngly, I would reverse the judgment of the Court of Special Appea ls and remand the case to th at court with directions to reverse the judgment of the Circuit Court for Baltimore County and direct it to enter judgment in favor of Rite Aid Corporation.
Judge Raker ha s authorized me to state that she joins in Part A of the reaso ning in this dissent and dissents on that basis alone.

Source: http://www.courts.state.md.us/opinions/coa/2006/61a05.pdf