Faser v. Sears

This appeal involves a claim by Frederick M. Faser and his father for damages allegedly caused by a prescription drug known as Cleocin. Jurisdiction is based on diversity of citizenship of the parties. 28 U.S.C. § 1332. In February of 1973, Frederick M. Faser was given a prescription for Cleocin, an antibiotic, by his physician, Dr. Leonard Fishman, for treatment of acne. The prescription was then filled at a pharmacy operated by Sears, Roebuck, & Co. in Atlanta. Frederick obtained numerous refills at the same pharmacy through September 7, 1974. Soon thereafter, Frederick began to experience severe stomach problems which doctors eventually diagnosed as colitis. On January 17, 1977, over two years after Frederick's last purchase from the Sears pharmacy, the appellants filed a civil action in the Superior Court of Fulton County, Georgia, against Sears, Dr. Fishman, and the Upjohn Company, the manufacturer of Cleocin, claiming that Cleocin caused Frederick's illness. On September 10, 1979, appellants voluntarily dismissed the civil action in state court without prejudice. Two months later on November 13, 1979, the appellants filed this action in federal district court against Sears claiming that the Sears pharmacy lacked the necessary physician authorization to issue Frederick's last six refills of Cleocin. Sears denied appellants' allegations and filed a third party complaint against Dr. Fishman, who denied any liability and filed a fourth party complaint against Upjohn. After discovery, Sears filed a motion for summary judgment claiming that the applicable statute of limitations barred appellants' claim. Dr. Fishman and Upjohn also filed motions for summary judgment. Appellants then filed a motion for leave to amend their complaint in order to add Dr. Fishman and Upjohn as original defendants. On March 20, 1981, the district judge denied appellants' motion to amend the complaint, granted Sears' motion for summary judgment, and denied the motions for summary judgment by Dr. Fishman and Upjohn since their motions were rendered moot when Sears' motion was granted.