Summary
The United States District Court for the Western District of Missouri denied CVS Pharmacy, Inc. and Missouri CVS Pharmacy, LLC’s motion for summary judgment in a medical negligence action involving alleged erroneous dispensing of Duloxetine. The court held that the plaintiff’s refiled action was timely under Missouri’s savings statute, notwithstanding his failure to serve CVS or file the required healthcare provider affidavit in the original action.
Holdings
- The refiled action was timely because the original action was filed within the applicable limitations period, was voluntarily dismissed as a nonsuit, and the second action was filed within one year of that nonsuit.
- Failure to serve CVS within the 180-day period prescribed by section 516.105.2 did not prevent Plaintiff from invoking the savings statute.
- Failure to file the healthcare provider affidavit required by section 538.225 did not prevent the original action from being commenced for purposes of the savings statute.
Questions Presented
- Whether Plaintiff's December 30, 2024 medical negligence action was barred by Missouri's two-year statute of limitations.
- Whether failure to serve CVS within 180 days under Missouri Revised Statutes section 516.105.2 prevented Plaintiff from invoking Missouri's savings statute.
- Whether failure to file the healthcare provider affidavit required by Missouri Revised Statutes section 538.225 prevented the original action from qualifying as a commenced action for purposes of the savings statute.
Disposition
other
Cases Cited (12)
- Fed. Ins. Co. v. Great Am. Ins. Co., 893 F.3d 1098, 1102 (8th Cir. 2018)(followed)
- Woodsmith Pub. Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir. 1990)(followed)
- Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(followed)
- Morris v. City of Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 2008)(followed)
- C.H. v. Infertility Ctr. of Saint Louis, 681 S.W.3d 579, 584 n.6 (Mo. Ct. App. 2023)(followed)
- Zinke v. Orskog, 422 S.W.3d 422, 424 (Mo. Ct. App. 2013)(followed)
- Ostermueller v. Potter, 868 S.W.2d 110, 111 (Mo. banc 1993)(followed)
- Bailey v. Innovative Mgmt. & Inv., Inc., 890 S.W.2d 648, 652 (Mo. banc 1994)(followed)
- Korman v. Lefholz, 890 S.W.2d 771, 774 (Mo. Ct. App. 1995)(followed)
- Brick v. Koeppen, 672 S.W.3d 62, 64 n.4, 67 (Mo. Ct. App. 2023)(followed)
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Cited In (0)
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Court Document
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