29 Sep Virginia: Medical Malpractice – A Lawyer’s Pharmacy
On August 3, 2016, in the pharmacy malpractice case of Holley v. CVS Caremark Corp., No.4:16-cv-00017, United States District Court for the Western District of Virginia, Danville Division, denied defendant CVS’ motion to dismiss plaintiff’s claim against it for intentional infliction of emotional distress. Id. at 1. The Federal court in Holley observed: “In Virginia, claims of intentional infliction of emotional distress require plaintiffs to establish the following elements: ‘the wrongdoer’s conduct is intentional or reckless; the conduct is outrageous and intolerable; the alleged wrongful conduct and emotional distress are causally connected; and, the distress is severe’.” Id. at 4.
Undertaking the requisite “fact-specific analysis” of CVS’ behavior, including CVS’ representative acting “cool and accusatory,” Holley held that “the totality of the circumstances shows a pattern of misconduct that plausibly went beyond the bounds of decency and rose to a degree of outrageousness.” Id. at 5. Also, under the more liberal Federal pleading standard, Holley held that plaintiff’s allegations of “ongoing fear and anxiety,” “physical inconvenience and other physical ramifications,” and being “rendered less capable of performing her normal daily routines” were “sufficiently specific and severe to state a plausible intentional infliction of emotion distress claim.” Id. at 7-9.