Ricky Shelton (14784)

DEWSNUP KING OLSEN WOREL HAVAS MORTENSEN

36 South State Street, Suite 2400
Salt Lake City, Utah 84111
Telephone: (801) 533-0400
rshelton@dkowlaw.com
Attorney for Plaintiffs

THIRD JUDICIAL DISTRICT COURT

SALT LAKE COUNTY, STATE OF UTAH

DIANA DUNN and MARIA DUNN,

Plaintiffs;
Complaint
v.
Tier 3
SELECT PHARMACY, LLC; BEL AIRE
ASSISTED LIVING; BRIGHTON HOME
HEALTH, LLC; DEREK ROYLANCE;
KELTON PECK; BREASHA MORRIS; Case No. _________________
SCOTT VALGARDSON; UNIVERSITY
OF UTAH COLLEGE OF PHARMACY; Judge ____________________
MCKELLAN BINKELY; WILLIAM
BARAGER; and REVERE HEALTH;

Defendants.

COMES NOW BEFORE THE COURT Plaintiffs Diana and Maria Dunn, bringing this

Complaint against Defendants and praying for relief.

Parties, Jurisdiction, Venue, and Tier

1. Gloria Dunn died at the age of 75 on August 27, 2018, in Utah County, Utah.

2. Diana Dunn and Maria Dunn are the personal representatives of Gloria’s heirs and

estate. They bring this case on their behalf pursuant to Utah Code Ann. § 78B-3-106 and § 78B-

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3-107.

3. Defendant Select Pharmacy, LLC is a Utah limited liability company with its

principal place of business in Salt Lake County, Utah.

4. Defendant Bel Aire Assisted Living is a DBA of Bel Aire Senior Living, LLC, a

Utah limited liability company with its principal place of business in Utah County, Utah.

5. Defendant Brighton Home Health, LLC is a Utah limited liability company with

its principal place of business in Salt Lake County, Utah.

6. Defendant Derek Roylance is a pharmacist who resides in Salt Lake County,

Utah.

7. Defendant Kelton Peck is a pharmacy student working at Select Pharmacy and

residing in Salt Lake County.

8. Defendant Breasha Morris is a pharmacy technician working at Select Pharmacy

and residing in Salt Lake County.

9. Defendant Scott Valgardson is a registered nurse working at Bel Aire Assisted

Living and residing in Utah County.

10. Defendant University of Utah College of Pharmacy is part of the University of

Utah institution with its principal place of business in Salt Lake County, Utah.

11. Defendant McKellan Binkley is a physician residing in Utah County, Utah.

12. Defendant William Barager is a physician residing in Utah County, Utah.

13. Defendant Revere Health is a Utah corporation with its principal place of business

in Utah County, Utah.

14. This Court has subject-matter jurisdiction pursuant to Utah Code Ann. § 78A-5-

102.

15. This Court has personal jurisdiction over Defendants pursuant to Utah Code Ann.

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§ 78B-3-205.

16. Venue is proper in this Court under Utah Code Ann. § 78B-3-307 because at least

one of the Defendants resides in Salt Lake County.

17. This a Tier 3 case under Utah Rule of Civil Procedure 26(c)(3).

18. Plaintiffs have completed the pre-litigation requirements of the Utah Health Care

Malpractice Act, Utah Code Ann. § 78B-3-401 et seq., and the Division of Occupational and

Professional Licensing has issued a Certificate of Compliance against Defendants.

Background

19. In May 2018, Gloria became a resident at Bel Aire.

20. In exchange for money, Bel Aire Assisted Living undertook the responsibility to

administer Gloria’s medications to her.

21. On July 26, 2018, a healthcare provider gave Gloria a prescription for

Metolazone, a common diuretic that helps the body rid itself of excess fluid.

22. That same day, Gloria gave the prescription to Bel Aire Assisted Living, and it

sent the prescription to Select Pharmacy.

23. Employees and agents of Select Pharmacy, however, mistakenly sent back

Methotrexate instead of Metolazone.

24. Methotrexate is a dangerous drug designed to eradicate cancer cells.

25. Employees and agents of Bel Aire Assisted Living then administered

Methotrexate (that was clearly labeled as Methotrexate) to Gloria over and over again, despite

knowing that she did not have any cancer.

26. The wrongly administered Methotrexate caused severe and painful damage to

Gloria for several weeks.

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 27. During this time, Gloria sought help from Dr. Binkley, Dr. Barager, and Brighton

Home Health. Yet, despite having a responsibility to verify her medication, they did not realize

that Bel Aire Assisted Living was not supposed to be administering Methotrexate to Gloria.

28. After several weeks of suffering, Gloria died from the wrongly administered

Methotrexate.

First Cause of Action

Wrongful Death and Negligence—All Defendants
29. All the preceding paragraphs are incorporated.

30. All the Defendants as well as their employees and agents discussed below were

negligent in caring for Gloria. These negligent acts were a breach of the standard of care and

include the following:

− giving Gloria the wrong medication;

− not verifying Gloria’s medication;

− not realizing Gloria’s deteriorating health was due to the fact she was being
wrongfully administered Methotrexate;

− failing to implement and follow the proper safeguards for Methotrexate;

− failing to disclose to Gloria that she was being administered Methorexate and
the dangerous effects of that drug;

− failing to obtain Gloria informed consent for being administered

Methotrexate;

− failing to properly communicate Gloria’s condition and consumption of

Methotrexate to other healthcare providers;

− failing to refer Gloria to appropriate healthcare providers who had the

necessary expertise to help her;

− failing to properly supervise agents and employees; and

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 − failing to properly train agents and employees.

31. As a result of these negligent acts, Gloria died.

Second Cause of Action

Gross Negligence—All Defendants
32. All the preceding paragraphs are incorporated.

33. The Defendants’ negligent acts were an egregious breach of their legal duties to
Gloria.

34. The Defendants’ negligent acts were a failure to observe even slight care.

Third Cause of Action

Res Ipsa Loquitur— All Defendants
35. All the preceding paragraphs are incorporated.

36. Gloria’s death is the kind of injury that would not have happened in the ordinary

course of events if due care had been observed.

37. Gloria’s own actions were not responsible for her death.

38. The cause of her death was under the exclusive control of all the Defendants.

Fourth Cause of Action

Survival Claim—All Defendants
39. All the preceding paragraphs are incorporated.

40. The Defendants’ tortious acts caused Gloria to endure severe pain and suffering

for several weeks before she died.

41. The Defendants are liable for these damages.

Fifth Cause of Action

Vicarious Liability—Select Pharamcy, Bel Aire Assisted Living, U of U College of
Pharmacy, Brighton Home Health, and Revere Health
42. All the preceding paragraphs are incorporated.

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 43. At all relevant times, Roylance, Peck, and Morris were acting as employees

and/or agents of Select Pharmacy in responding to Gloria’s prescription.

44. Roylance’s, Peck’s, and Morris’s actions were within the scope of their

employment and/or agency under Select Health.

45. Roylance’s, Peck’s, and Morris’s actions manifested apparent authority from

Select Health, and they were ostensible agents of Select Health.

46. In the alternative, Peck was acting an employee and/or agent of the University of

Utah College of Pharmacy.

47. At all relevant times, Valgardson and unidentified others were acting as

employees and/or agents of Bel Aire Assisted Living in administering and verifying Gloria’s

prescription.

48. Valgardson’s and others’ actions were within the scope of their employment

and/or agency under Bel Aire Assisted Living.

49. Valgardson’s and others’ actions manifested apparent authority from Bel Aire

Assisted Living, and they were ostensible agents of Bel Aire Assisted Living.

50. At all relevant times, Dr. Barager was acting as an employee and/or agent of

Revere Health in providing healthcare to Gloria.

51. Dr. Barager’s actions were within the scope of his employment and/or agency

under Revere Health, including actual and ostensible agency and apparent authority.

52. At all relevant times, unidentified others were acting as employees and/or agents

of Brighton Home Health in providing healthcare to Gloria.

53. The actions of these others were within the scope of their employment and/or

agency under Brighton Home Health.

54. Select Health, Bel Aire Assisted Living, University of Utah College of Pharmacy,

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Revere Health, and Brighton Home Health are vicariously liable for the tortious acts and

omissions of these employees and agents.

Sixth Cause of Action

Strict Product Liability—Select Pharamcy
55. All the preceding paragraphs are incorporated.

56. Methotrexate is a drug that is dangerous to an extent that would not be

contemplated by the ordinary person.

57. Select Pharmacy is a retailer of Methotrexate and is in the business of selling such

a product.

58. Select Pharmacy sold the Methotrexate that killed Gloria.

59. The Methotrexate had an inadequate warning.

60. Select Pharmacy is strictly liable for the damage Methotrexate did to Gloria.

Jury Demand

Pursuant to Utah Rule of Civil Procedure 38, Plaintiffs demand a trial by jury for all

issues so triable.
Prayer for Relief

The Dunn family prays for judgment against Defendants for all damages the law affords

and all damages the jury determines is fair and just for the wrongful death of their beloved

mother. This includes noneconomic damages and economic damages.

Preventing this type of tragedy from happening to anyone else is what’s most important

to the Dunn family in filing this case.

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Dated this 7th day of August, 2019.

DEWSNUP KING OLSEN WOREL

HAVAS MORTENSEN

/s/ Ricky Shelton __________

Ricky Shelton
Attorney for Plaintiffs

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