
• Parents of a 10-year-old boy who witnessed a killer whale's fatal attack on a trainer sue Sea World Orlando for infliction of emotional distress. "Without question, it was reasonably foreseeable and in fact predictable that an attack such as this one by a killer whale with the tendencies of Tilikum was inevitable." Connell v. Sea World
• Denver judge dismisses Oklahoma City bomber Terry Nichols's civil rights claims against prison officials for denying him a high-fiber diet. Nichols v. Federal Bureau of Prisons
• Illinois teenager with cerebral palsy sues the Special Olympics for refusing to let her play basketball with the help of a service dog. Youngwith v. Special Olympics
• Montana judge sets aside a government decision removing protections for the northern Rocky Mountain gray wolf. The Endangered Species Act "was not intended to sow the dragon's teeth of strife or to plant the seeds of future conflicts that have given rise to this case." Defenders of Wildlife v. Salazar
• San Francisco judge dismisses a cereal consumer's false advertising suit. "[T]here is nothing in the packaging or marketing of Cap’n Crunch that would in any way deceive a reasonable consumer into believing that the cereal contains or derives nutritional value from real fruit." Werbel v. PepsiCo
• Iowa judge says a sheriff denied the applications of a father and son for concealed weapons permits in retaliation for their political activism. "This is a great reminder that the First Amendment protects the sole individual who may be a gadfly, kook, weirdo, nut job, whacko, and spook, with the same force of protection as folks with more majoritarian and popular views." Dorr v. Weber
• 5th Circuit rules that a school district violated the religious freedom of a Native American boy by requiring him to wear his long hair in a bun on top of his head or in a braid tucked into his shirt. The boy "has a sincere religious belief in wearing his hair uncut and in plain view." A.A. v. Needville Ind. Sch. Dist.
• 11th Circuit denies a challenge to an ordinance restricting handouts of food to the homeless in Orlando parks. "[W]e are unpersuaded that the conduct of simply feeding people ... is expressive for First Amendment purposes." First Vagabonds Church v. City of Orlando

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No Drug Dealer Liability for Pharmacy in Overdose |
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The South Dakota Supreme Court has ruled that a pharmacy is not liable under a theory of illegal drug dealing for the death of a man who overdosed on prescription morphine he had picked up for a disabled friend.
Shane Feistner used some of the morphine sulphate prescribed for his friend and, after also consuming a potentially toxic amount of a prescription tranquilizer, died of asphyxiation in July 2004. The guardian of his two children, Jeanna Schafer, sued Shopko Stores and the pharmacist at the store in Mitchell, S.D., where he filled the two prescriptions.
South Dakota's Drug Dealer Liability Act (DDLA) provides those harmed by the use of illegal drugs with a civil remedy against “Any person who knowingly participates in the illegal drug market.”
But the Supreme Court upheld a Davison County judge who summarily dismissed the case, finding that Shopko was protected by another law which allows a pharmacist to dispense a prescription drug order “to a patient or a patient’s agent[.]”
“Shopko met the requirements of the law,” the opinion concluded. “To interpret and apply the law as Schafer urges would make Shopko liable for a legal act. Such an interpretation is strained and would cause an absurd result.”
The case is the second this fall in which a novel attempt to impose liability on a pharmacy for a prescription drug overdose has failed. A Florida appeals court held in October that the family of a college freshman who died after ingesting Oxycontin could not sue the store where the painkiller was stolen.
Feistner filled two morphine prescriptions for Tully Knigge, who suffers from disabilities and chronic pain and is often unable to go to the drugstore himself. Knigge allowed his friend to crush and snort some of the morphine pills before and after delivering them to him.
The DDLA was intended to "establish a cause of action against drug dealers for damages." But Schafer argued that the law applied to Shopko because the pharmacist dispensed the morphine to someone other than its “ultimate user.”
South Dakota defines "ultimate user" as “a person who lawfully possesses a controlled drug or substance for personal use or for the use of a member of that person’s household” and a criminal statute provides that
No person other than a practitioner who is not a pharmacist, may dispense a controlled drug or substance included in Schedule II to an ultimate user without the written prescription of a practitioner who is not a pharmacist.
Justice Judith Meierhenry, writing for the Supreme Court, said Schafer had misconstrued the statute since it “expressly does not apply to pharmacists under these circumstances. The statute allows a licensed practitioner of the medical profession, who is not a pharmacist, to dispense drugs without a prescription to the ultimate user.”
“On the other hand, the law specifically allows pharmacists to dispense drugs with a prescription to a patient’s agent,” she noted, and “no provision of the DDLA provides, as Schafer argues, that a pharmacist may only legally dispense a controlled drug to an 'ultimate user' and not an agent.”
By Matthew Heller 11/12/07
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McCourt v. McCourt Date: 8/30/10 Court: L.A. Superior Hearing: Dodgers divorce trial
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