in Re Tommy Keener, Relator

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-13-00291-CV

IN RE TOMMY KEENER, RELATOR

ORIGINAL PROCEEDING

September 30, 2013

ON PETITION FOR WRIT OF MANDAMUS
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Pending before the court is the petition of Tommy Keener (relator) for writ of

mandamus. We deny it.

The dispute involves an alleged mistake in the filling of Keener’s prescription by

United Supermarket LLC. The mistake, which purportedly occurred in 2011, involved

the substitution, by a United pharmacist, of an oral medication for an ophthalmic one.

After initiating suit, Keener served United with the following discovery requests:

[1] Identify each person who has made, or threatened to make, a
claim, against United or it's pharmacy employees for pharmaceutical
errors or negligence from 2005 to the present, and identify the United
employee(s) involved, United location, and the state, county and cause
number of any suit filed.
 [2] In the 6 years prior to the INCIDENT IN QUESTION, has
UNITED or the employees of UNITED in its pharmacies throughout the
UNITED system incorrectly filled a prescription? IDENTIFY the name of
the store, the prescription involved, whether the customer was injured, any
incident report, what was done to prevent the error from reoccurring and
IDENTIFY any DOCUMENTS which reflect same.

United objected to the requests. The grounds for objection included such things as 1)

the information being outside the scope of discovery, 2) the information being irrelevant,

3) the requests being overly broad in time and scope, 4) the requests being unduly

burdensome and intended for the sole purpose of harassment, and 5) the requests

being nothing more than a fishing expedition. Upon hearing the matter, the trial court

ultimately ordered United to provide the following:

A. any evidence regarding mis-filled prescriptions at the UNITED store in
question for the last four years, not limited to only the medicine
involved in this case (time frames run from the time of the first alleged
mis-filled prescription on 4/15/2011),

B. any evidence regarding mis-filled prescriptions for the last four years
(time frames run from the time of the first alleged mis-filled
prescription on 4/15/201I), not limited to only the medicine involved in
this case, regardless of the store they were assigned to at the time of
any mis-filling, that were connected to any of the following individuals
employed by UNITED: Shelley Ward, Michael Jordan, Troy Burke,
Carolina Calderon, Lisa Robles, Sharon Dimmick, and Crockett
Tidwell,

C. The total number of mis-filled prescriptions caused by the same type of
error alleged in this case for the last two years (time frames run from
the time of the first alleged mis-filled prescription on 4/15/2011) in all
UNITED stores located in Lubbock County, not limited to only the
medicine involved in this case.

The discovery ordered by the court was deemed insufficient by Keener. Instead, he

asks us to “enter an order allowing Keener to discover the details of other

pharmaceutical errors in the entire United Supermarkets, LLC. system for the six years

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prior to suit.” We are obligated to enter such an order because, to prove gross

negligence and thereby recover punitive damages, Keener has:

. . . to show that United had prior wrongfully filled prescriptions and
that it was part of a system, scheme, or plan of indifference. But before we
can do that, we have to discover the evidence of those previously
wrongfully filled prescriptions. [Here] a pharmacy technician, with the
assistance of a supervising pharmacist, was allowed to manually
deactivate an existing prescription that had been prescribed to Keener for
his eye and created a new prescription (with a drug which was not
designed to be administered in the eye) without contacting the prescribing
doctor for his approval. [Precedent] allows us to discover if United
pharmacies have done this in other situations as part of a “system,
scheme or plan of indifference” which United took no action to avoid.

Mandamus does not issue simply upon the request of a party. Rather, the relator

is obligated to prove that the trial court’s decision evinced a clear abuse of discretion or

violation of some duty imposed by law and that he lacks a clear and adequate legal

remedy. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding); see

In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding).

Furthermore, an abuse of discretion arises when the decision rendered is "so arbitrary

and unreasonable [that] it amounts to a clear and prejudicial error of law or it clearly fails

to correctly analyze or apply the law." In re Olshan Found. Repair Co., 328 S.W.3d 883,

888 (Tex. 2010) (orig. proceeding); Walker, 827 S.W.2d at 839.

This is not a situation where the trial court sustained in toto the objections

asserted by United. Rather it granted them in part but nonetheless ordered the

production of information. Thus, the trial court implicitly found some or all of those

objections legitimate. Because the order does not specify the particular ground or

grounds it found to be meritorious, Keener was obligated to show why none justified the

decision. He does not do that. None of the objections uttered by United are addressed

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or shown to be invalid. Instead, Keener simply concludes that he is entitled to

everything he seeks to prove the “system, scheme or plan of indifference” of which he

accused United. Why the achievement of that goal is either thwarted or hampered via

disclosure of only that matter encompassed in the trial court’s order goes unmentioned.

Thus, we cannot say that Keener carried the burden imposed on him by Walker and

Prudential Insurance.

Nor did Keener address the second prerequisite to obtaining relief, that is, the

absence of an adequate legal remedy. That too is fatal.

The petition for a writ of mandamus is denied.

Brian Quinn
Chief Justice

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