11/29/2018 2:22 PM 18CV54567 IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH. Case No. COMPLAINT PARTIES

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1 // : PM CV 1 IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH 1 ELISE CARTER and NICK CARTER, Plaintiffs, v. WAL-MART STORES, INC., Defendant. Plaintiffs allege: Case No. PARTIES 1. COMPLAINT Damages and attorney fees pursuant to ORS.00 (negligence and negligence per se) CLAIMS ARE SUBJECT TO MANDATORY ARBITRATION Amount in Controversy: $,000 Fee Authority: ORS.0(1)(a) Plaintiff Elise Carter and Nick Carter (collectively Plaintiffs ) were, and are now, citizens of the United States and residents of Clackamas County, State of Oregon.. Defendant Wal-Mart Stores, Inc. ( Defendant ) is an owner and operator of pharmacies and retail stores incorporated under the laws of the State of Delaware. At all material times herein, Defendant conducted regular, sustained business activity in Multnomah County, State of Oregon. FACTS COMMON TO ALL CLAIMS. On or around November,, Plaintiffs veterinarian diagnosed Plaintiffs Labrador Retriever, Bailey, with diabetes. Page 1 COMPLAINT Portland, Oregon - Phone: 0--00; Fax: 0--00

2 1. Plaintiffs veterinarian called in a prescription for Novalin N insulin to a pharmacy owned and operated by Defendant at the Wal-Mart Supercenter located in Wood Village, Oregon. Plaintiffs went to the pharmacy to purchase the insulin and were given a vial of Novolin R insulin.. After Plaintiffs administered the insulin consistent with their veterinarian s instruction, Bailey began losing weight, experienced lethargy, and showing signs of difficulty breathing.. On or around December 1,, Plaintiffs returned to their veterinarian, who was unable to identify the cause of Bailey s deteriorating health.. On or around January,, Plaintiffs returned to Defendant s pharmacy for more insulin. Plaintiffs then discovered that they were given Novolin N insulin instead of Novolin R insulin.. Plaintiffs contacted their veterinarian, who confirmed that Plaintiffs were initially sold incorrect insulin. The veterinarian explained that Novolin R substantially interfered with Bailey s insulin regulation and was extremely disruptive to his health.. On or around January,, the veterinarian diagnosed Bailey with advanced diabetic ketoacidosis. Plaintiff s hospitalized Bailey and he died on February,.. As a result of Bailey receiving incorrect insulin, Plaintiffs incurred economic damages in the amount of $,000, including but not limited to additional treatment and hospitalization costs for Bailey, lost wages in connection with his treatment, travel costs to and from treatment facilities, and replacement costs for a comparable family pet with vaccinations and training. Page COMPLAINT Portland, Oregon - Phone: 0--00; Fax: 0--00

3 1. On or around July,, Plaintiffs attorney sent a letter to Defendant demanding payment pursuant to ORS.00 and providing information reasonably available to Plaintiffs to support the nature and scope of their claimed damages. Defendant acknowledged receipt of the demand but did not tender any amount to Plaintiffs as compensation for their damages. 1. As of the filing of this action, Defendant has not tendered any amount to Plaintiffs as compensation for their damages. FIRST CLAIM FOR RELIEF (Negligence) Plaintiffs reallege and incorporate paragraphs 1 through 1 above... All actions by Defendant s agents and employees as alleged herein were carried out with actual or apparent authority from Defendant.. Defendant had a continuing duty to operate its pharmacy with reasonable care and to avoid unreasonably creating a foreseeable risk of harm to its customers and their property. Defendant breached its duty to Plaintiffs in one or more of the following ways:. a) In failing to ensure that Plaintiffs purchased an insulin that conformed to the prescription order relayed to Defendants by Plaintiffs veterinarian; b) In directing or assisting Plaintiffs to purchase an incorrect type of insulin; c) In giving Plaintiffs an incorrect type of insulin; d) In failing to distinguish for Plaintiffs between over-the-counter insulin and insulin filled in accordance with a prescription order; Page COMPLAINT Portland, Oregon - Phone: 0--00; Fax: 0--00

4 1 e) In failing to recognize that Plaintiffs were sold an incorrect type of insulin; f) In failing to alert Plaintiffs that the type of insulin sold to them had not been verified as correct by a pharmacist or other licensed practitioner; and g) In failing to promptly remedy Plaintiffs purchase of Novolin R once Defendant knew or reasonably should have known that Plaintiffs were sold an incorrect type of insulin.. Defendant s breach of its duty above was a substantial factor in causing, contributing to, or exacerbating Plaintiffs damages as alleged herein.. Plaintiffs are entitled under Oregon common law to recover compensatory damages in the amount of $,000, subject to amendment at and before trial to conform to available evidence.. Pursuant to ORS.00, Plaintiffs are entitled to an award of reasonable attorney fees and costs incurred in filing and litigating this action. SECOND CLAIM FOR RELIEF (Negligence Per Se) Plaintiffs reallege and incorporate paragraphs 1 through 1 above... All actions by Defendant s agents and employees as alleged herein were carried out with actual or apparent authority from Defendant. Defendant violated OAR Chapter in one or more of the following ways:. a) In failing to fill a prescription for Plaintiffs that confirmed to the prescription order relayed to Defendants by Plaintiffs veterinarian; b) In dispensing and selling a drug not consistent with the parameters of the formulary and Page COMPLAINT Portland, Oregon - Phone: 0--00; Fax: 0--00

5 1 protocol compendia or other state and federal regulations; c) In dispensing and selling an over-the-counter drug as a fulfillment of a prescription order; d) In failing to recognize and communicate to Plaintiffs that the assistance or direction given about their purchase of insulin exceeded the agent s knowledge and experience; e) In failing to recognize and communicate to Plaintiffs that the assistance or direction given about their purchase of insulin exceeded the agent s prescriptive authority; and f) In failing to implement and update appropriate policies for the sale of over-the-counter drugs.. In committing the violations above, Defendant was negligent as a matter of law and is liable on that basis.. Plaintiffs, as customers of Defendant s pharmacy, were members of the class intended to be protected by OAR Chapter. The harms suffered by Plaintiffs were of a kind the rules were intended to prevent.. Defendant s per se negligence above was a substantial factor in causing, contributing to, or exacerbating Plaintiffs damages as alleged herein.. Plaintiffs are entitled under Oregon common law to recover compensatory damages in the amount of $,000, subject to amendment at and before trial to conform to available evidence.. Pursuant to ORS.00, Plaintiffs are entitled to an award of reasonable attorney fees and costs incurred in filing and litigating this action. /// Page COMPLAINT Portland, Oregon - Phone: 0--00; Fax: 0--00

6 1 REQUEST FOR JURY TRIAL Plaintiffs request a jury trial on all triable claims and issues alleged herein.. PRAYER. WHEREFORE, Plaintiffs pray that judgment be entered against Defendant as follows: a) A finding that Defendant was negligent; b) A finding that Defendant was negligent per se; c) An award to Plaintiffs of compensatory damages in the amount of $,000, subject to amendment at and before trial to conform to available evidence; d) Pursuant to ORS.00, an award to Plaintiffs of reasonable attorney fees and costs incurred in litigate this action; and e) Pursuant to ORS.0, an award to Plaintiffs of interest at nine percent per annum on all amounts due, accruing from the date they became due. f) All other and further relief in favor of Plaintiffs that this Court deems just and equitable. DATED this th day of November,. BENNETT, HARTMAN, MORRIS & KAPLAN, LLP Richard B. Myers, OSB No. s/richard Myers Of Attorneys for Plaintiffs Page COMPLAINT Portland, Oregon - Phone: 0--00; Fax: 0--00