Rite Aid Corp. v. Levy-Gray

Ellen Levy-Gray (plaintiff) was diagnosed with Lyme disease and given a prescription for a drug, doxycycline (the drug), which she then filled at her local Rite Aid Pharmacy, operated by Rite Aid Corp. (Rite Aid) (defendant). Rite Aid supplied a pamphlet (the insert) with the drug containing information on the drug, including dosages and side effects. The insert cautioned that the information was not intended as medical advice and was not a substitute for advice from a medical professional. The insert further noted that the drug should be taken with food or milk if an upset stomach occurred. Levy-Gray started taking the drug with milk because she experienced an upset stomach. While taking the drug, Levy-Gray consumed a large quantity of dairy products. The drug did not alleviate any of Levy-Gray’s symptoms. Dr. Charles Haile diagnosed Levy-Gray with post-Lyme syndrome. Levy-Gray filed an action in state court against Rite Aid for negligence, product liability, failure to warn, negligent misrepresentation, and breach of express warranty. Levy-Gray argued that the statement in the insert created an express warranty that the drug could be safely taken with milk. At trial, Levy-Gray’s experts testified that the drug should not have been taken with dairy products, and that her post-Lyme disease had been caused by doing that. Rite Aid’s experts disputed that this was the cause. The jury found in favor of Levy-Gray for the breach-of-express-warranty claim. Rite Aid appealed to the court of special appeals, which upheld the jury’s verdict, agreeing with the jury’s conclusion that an express warranty was created by the statement in the insert. Rite Aid then filed a petition for writ of certiorari, arguing that, as a pharmacy, it could not be held liable for information provided with a drug, and that the instructions did not form a basis of the bargain, a requirement under the Uniform Commercial Code (UCC), because Levy-Gray was unaware of that information prior to her purchase.