Scholl v. Walgreens Specialty Pharmacy

majority opinion

Appellate Case: 25-5053 Document: 45-1 Date Filed: 08/06/2026 Page: 1

FILED

United States Court of Appeals

PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS August 6, 2026

Christopher M. Wolpert

FOR THE TENTH CIRCUIT

Clerk of Court

ERIC F. SCHOLL, individually and

as parent and next friend of J.J.S., a

minor child; JACQUELINE R.

SCHOLL, individually and as parent

and next friend of J.J.S., a minor

child; J.J.S., a minor child,

Plaintiffs - Appellants,

v. No. 25-5053

WALGREENS SPECIALTY

PHARMACY, LLC, d/b/a Alliance Rx

Walgreens Prime; WALGREENS

SPECIALTY PHARMACY

HOLDINGS, LLC, a foreign

company,

Defendants - Appellees.

Appeal from the United States District Court

for the Northern District of Oklahoma

(D.C. No. 4:21-CV-00363-JDR-MTS)

Jason A. McVicker (Andrew C. Jayne and Bryan J. Seaton with him on the briefs), of Jayne Peters McVicker Burke Askew & Parker, Tulsa, Oklahoma, for Plaintiffs-Appellants.

James E. Goldschmidt of Quarles & Brady LLP, Milwaukee, Wisconsin (Nathan J. Oesch and Ellen E. Anderson of Quarles & Brady LLP, Milwaukee, Wisconsin; Stacy A. Alexejun of Quarles & Brady LLP, Madison, Wisconsin, with him on the brief), for Defendants-Appellees.

Appellate Case: 25-5053 Document: 45-1 Date Filed: 08/06/2026 Page: 2

Before MATHESON, PHILLIPS, and ROSSMAN, Circuit Judges.

ROSSMAN, Circuit Judge.

Plaintiffs-Appellants Eric and Jacqueline Scholl and their minor

daughter J.J.S. (the Scholls) sued Walgreens Specialty Pharmacy, LLC and

Walgreens Specialty Pharmacy Holdings, LLC for negligence under

Oklahoma law after Walgreens did not timely fill a prescription for J.J.S.,

and she then fell ill. The district court granted Walgreens’ motion for

summary judgment, concluding Walgreens had no duty to fill the

prescription under the circumstances here. The Scholls appeal. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

In May 2020, Eric and Jacqueline Scholl’s then-12-year-old daughter

J.J.S. was diagnosed with vaginal agenesis, a rare congenital condition in

which the body cannot expel menstrual material. Her symptoms included

debilitating abdominal pain. J.J.S.’s physician, Dr. Catherine Hildebrand,

1 The facts in this opinion come from our de novo review of the appellate record. See Est. of Beauford v. Mesa County, 35 F.4th 1248, 1257 n.2 (10th Cir. 2022) (reviewing the record de novo after the district court granted summary judgment to defendants).

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presented the Scholls with several treatment options, including a complete

hysterectomy; surgery to remove soft tissue in the vaginal canal; and

injections of a drug called Lupron Depot, a hormone that prevents

ovulation. Faced with only “bad choices,” the Scholls chose the Lupron

Depot injections. RIII.15.

On June 1, 2020, Dr. Hildebrand sent a referral form to AbbVie, the

manufacturer of Lupron Depot, asking whether J.J.S.’s insurance would

cover the prescription. AbbVie responded the next day recommending Dr.

Hildebrand obtain “prior authorization” 2 from J.J.S.’s health insurer, Blue

Cross and Blue Shield of Oklahoma (BCBS). AbbVie informed Dr.

Hildebrand that the medication could be filled at AllianceRx, a “specialty

pharmac[y]” owned by Walgreens. 3 RI.106, 176. AbbVie also noted the

“approximate turn-around time is 7–14 days after initiation with the

insurance company.” RI.106. On June 2, AbbVie forwarded prescription

information to Walgreens. The next day, Walgreens told Dr. Hildebrand’s

office that it had received the prescription.

2“Prior authorization,” also known as “preauthorization,” is an insurance term for “pre-determin[ing] whether a drug is covered under the medical benefits portion of an insured’s plan.” RI.63; see RIII.10.

3 Specialty pharmacies dispense “medications that you cannot get at

a local Walgreens,” such as prescriptions “that have to be administered by a doctor rather than a patient” or that must be “handled” or “stored in a particular way.” RIII.34.

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Between June 3 and 11, Walgreens investigated whether the

prescription for Lupron Depot would be covered by BCBS without prior

authorization. On June 11, Walgreens determined BCBS indeed had to

preauthorize the drug before they could dispense it, and only the

prescribing physician—Dr. Hildebrand, not the pharmacy—could obtain

that approval from the insurer. That same day, Walgreens faxed Dr.

Hildebrand’s office the paperwork she would need to send to BCBS for its

preauthorization.

On June 15, frustrated by the lack of progress with getting the

prescription filled, Ms. Scholl called Walgreens. A Walgreens employee told

her the pharmacy could not fill J.J.S.’s prescription until it received

preauthorization from BCBS. Ms. Scholl explained the urgent need for the

medication and asked whether she could bypass the insurance delays by

paying for the drug out of pocket. The employee said out-of-pocket payments

were forbidden. Walgreens then twice called Dr. Hildebrand’s office,

emphasizing the prescription could not be filled until BCBS preauthorized

it.

The next day, June 16 at 10:48 a.m., a Walgreens employee spoke with

Dr. Hildebrand’s office a third time and learned Dr. Hildebrand still had

not filed the preauthorization request with BCBS. In response, Walgreens

put J.J.S.’s prescription “on hold” and internally designated the

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prescription as “no go.” 4 RI.144, 172, 181. That afternoon, Walgreens closed

the prescription file. But almost immediately thereafter, Dr. Hildebrand

finally received the preauthorization from BCBS. Later that same day, Dr.

Hildebrand’s office and Ms. Scholl provided the preapproval information to

Walgreens. 5 The record contains no evidence about what, if anything,

Walgreens told the Scholls or Dr. Hildebrand upon receiving BCBS’s

preauthorization.

For nearly a month-long period—between June 17 and July 12, 2020—

neither the Scholls nor Dr. Hildebrand called Walgreens to check on the

status of the prescription, and Walgreens did not independently update the

Scholls or Dr. Hildebrand. 6 Walgreens’ file for J.J.S.’s prescription

4 According to the deposition testimony of Walgreens’ corporate representative, the “no go” status indicated “there was a reason that we could not proceed with the prescription . . . . So it doesn’t mean we won’t fill the prescription, it means until a [preauthorization from the insurer] is obtained, we’re going to put it on hold.” RIII.83.

5 Walgreens disputes that it received the preauthorization

information on June 16. The district court resolved this dispute “in favor of the Scholls and assume[d] that the information was communicated to Walgreens at approximately 12:53 p.m. on June 16, 2020.” RV.6–7. We make the same assumption. Est. of Beauford, 35 F.4th at 1261 (recognizing that, at summary judgment, we “construe the facts in the light most favorable to the nonmovant and to draw all reasonable inferences in [their] favor”).

6The record shows no communications during this time among

Walgreens, the Scholls, Dr. Hildebrand, and BCBS that bear on this appeal.

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remained closed. And J.J.S. continued to suffer. On July 8, she was

hospitalized with extreme abdominal pain and underwent surgery. She was

released from the hospital a few days later.

On July 13, Dr. Hildebrand’s office called Walgreens and said J.J.S.

needed Lupron Depot urgently. Walgreens responded that the prescription

file had been closed since June 16 because the preauthorization was never

submitted. Dr. Hildebrand’s office replied the preauthorization information

had in fact been submitted to Walgreens and J.J.S. needed the medication

“ASAP.” RI.182. Walgreens said it “would verify the Prior Authorization

and initiate the order.” RI.67. That same day, Walgreens created a new “fill

request” for the Lupron Depot prescription. RI.182.

On July 15, J.J.S. was hospitalized again due to abdominal pain and

vomiting. The next day, July 16, Dr. Hildebrand’s office called Walgreens

and reiterated J.J.S. was in the hospital and needed Lupron Depot

immediately. Walgreens elevated the prescription request to “stat” priority.

RI.182.

The Lupron Depot prescription was delivered to Dr. Hildebrand’s

office on July 21 and administered to J.J.S. that day.

In July 2021, the Scholls filed a lawsuit in Oklahoma state court,

alleging one count of negligence against Walgreens. They claimed

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Walgreens had “promised . . . to deliver a Lupron Depot shot to J.J.S.’s

physician on a timely basis to prevent J.J.S. from menstruating in July of

2020.” RI.17. Because of this “promise,” the Scholls alleged, Walgreens had

a legal duty to “timely deliver the Lupron Depot shot,” and Walgreens

breached that duty by not filling the prescription. RI.17. Walgreens

removed the case to federal district court, invoking diversity jurisdiction

under 28 U.S.C. § 1332.

After discovery closed in August 2023, Walgreens filed a motion for

summary judgment. Walgreens contended Oklahoma substantive law

applied to the negligence claim. See RI.69–70 (citing Erie R.R. Co. v.

Tompkins, 304 U.S. 64 (1938)). Walgreens recognized it owed a duty to fill

J.J.S.’s prescription beginning July 13—the date the company said it took

“affirmative action to assume the duty to fill J.J.S.’s Lupron Depot

prescription[.]” RI.78. Walgreens argued a pharmacist’s duties in Oklahoma

are “clearly defined and limited under the Pharmacy Act[,]” OKLA. STAT. tit.

59, § 353 et seq. RI.70 (quoting Pharmcare Okla., Inc. v. State Health Care

Auth., 152 P.3d 267, 273 (Okla. Civ. App. 2006)). That statute, Walgreens

said, creates “no express duty for a pharmacy to fill a prescription within a

certain amount of time.” RI.70 (first citing Pharmcare, 152 P.3d at 273; and

then citing OKLA. ADMIN. CODE §§ 535:10-9-2 & 535:15-3-2).

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Still, Walgreens acknowledged that, under Oklahoma law, “an

affirmative act” or a voluntary undertaking can give rise to a duty. RI.71

(citing Harwood v. Ardagh Grp., 522 P.3d 473, 481 (Okla. 2022)). Walgreens

then pointed to its corporate “policies and procedures [for] attempting to

obtain prior authorization” and maintained, to the extent those policies

created “any duty” to fill the Lupron Depot prescription, it did not breach

that duty. RI.79–80. Notably, Walgreens insisted that for most of the period

discussed by the complaint—specifically, from June 16 (when Walgreens

closed J.J.S.’s prescription file until July 13 (when Walgreens re-opened the

prescription file and began to fill the prescription)—it owed no duty to fill

J.J.S.’s prescription. See RI.77–78 (Walgreens arguing no duty existed

because it did not “affirmatively act to fill the prescription” over that

period). 7

7 Walgreens also argued it was entitled to summary judgment on the

basis of causation. The district court did not rule on causation, and the Scholls do not develop any appellate arguments related to causation. We therefore do not consider the causation element here.

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Party Positions at the District Court on Walgreens’ Duty to Fill

J.J.S.’s Prescription 8

June 2, 2020 June 16, 2020 July 13, 2020 July 21, 2020

Walgreens said Walgreens denied Walgreens said

“any duty” was not owing any duty “any duty” was not

breached breached

The Scholls argued Walgreens owed a duty over the entire period.

The Scholls opposed summary judgment. They agreed Oklahoma

substantive law applied but insisted Walgreens was “comprehensively

wrong” about the legal duties of pharmacists under state law. RIII.22

8 It is unclear when, precisely, the Scholls believe Walgreens’ duty to

fill the prescription began. In their complaint, the Scholls suggest Walgreens promised to fill the prescription as early as the June 15 call between Ms. Scholl and Walgreens. However, in their summary judgment opposition, the Scholls suggest Walgreens’ negligence began as early as June 2, 2020. In any event, we see no difference between these dates that would bear on the disposition of this appeal, and we assume the Scholls alleged Walgreens owed a duty as early as June 2.

The parties agree Walgreens owed a duty to fill the prescription after July 13, 2020. The district court noted the Scholls “have not pointed to any injuries that were caused by Walgreens’s conduct after July 13.” RV.14 n.16. Accordingly, the court “focuse[d] its analysis on the alleged failures that took place on or before July 13, 2020.” RV.15 n.16. The parties similarly focus their appellate arguments on the existence of a duty before July 13. Given this shared understanding, when discussing “duty” throughout this opinion, we refer specifically to a duty by Walgreens to fill J.J.S.’s prescription before July 13, and we specify otherwise only as necessary.

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(heading format omitted). The Scholls rejected Walgreens’ suggestion that

its corporate policies might be legally relevant, arguing corporate policies

“do not establish a legal duty or the applicable industry-wide standard of

care.” RIII.22 (quoting Cruz v. Am. Nat’l Red Cross, 2022 WL 2813237, at

*3 (10th Cir. 2022) (unpublished) (interpreting Kansas law)). Rather,

Walgreens owed duties over the entire period alleged in the complaint, and

those duties arose from Oklahoma statutes, regulations, and common law.

The district court granted summary judgment to Walgreens in a

comprehensive written order. Agreeing with the parties that Oklahoma tort

law governed the negligence claim, the district court viewed the briefing as

presenting a “threshold question”: Before July 13, 2020, “[d]id Walgreens

have a duty to fill [J.J.S.’s] prescription for Lupron Depot”? 9 RV.9. The

district court answered no. It surveyed Oklahoma law and found no

authority suggesting pharmacists “have a general duty to fill prescriptions.”

9 The Scholls’ complaint framed their negligence claim as implicating

Walgreens’ duty “to deliver a Lupron Depot shot to J.J.S.’s physician on a timely basis[.]” RI.17 (emphasis added). The district court seemed to view the more general duty question (whether Walgreens had any duty to fill J.J.S.’s prescription before July 13) as encompassing the narrower timeliness question (whether Walgreens had a duty to timely fill the prescription before July 13). On appeal, the parties follow the district court’s lead and focus on a general duty to fill. We see no difference between the general and the narrower duties that would bear on the disposition of this appeal. Nor do the parties argue otherwise.

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RV.14. Just the opposite: Oklahoma law seemed to indicate no such duty

exists. The court pointed to a 2022 amendment to state pharmacy

regulations, which expressly “clarif[ied] a pharmacist’s right not to fill a

valid prescription.” RV.12 (quoting 2022 OKLA. REG. TEXT 600564 (NS)

(codified at OKLA. ADMIN. CODE § 535:15-3-13(c) (providing a “pharmacist

maintains the right not to fill the valid prescription”)).

The district court next considered whether a duty arose from

Walgreens’ conduct. Recognizing that, under Oklahoma common law, a

party’s actions can show it undertook a duty of care, the court parsed the

summary judgment record and found Walgreens neither “established a

contractual relationship with the Scholls,” RV.17, nor “agreed, promised, or

otherwise indicated it would begin the process of filling the prescription”

until July 13, 2020, RV.7. The district court also was not persuaded that,

under the circumstances here, Walgreens’ corporate policies created any

duty. Summing up, the court found “no evidence . . . that would permit a

jury to conclude that, prior to July 13, 2020, Walgreens had . . . a duty to

[J.]J.S. that would support a [] negligence claim.” RV.22. On that basis, the

district court concluded “there can be no recovery for negligence” and

granted summary judgment to Walgreens. RV.22.

This timely appeal followed.

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“We review the grant of summary judgment de novo, and apply the

same legal standard used by the district court under Federal Rule of Civil

Procedure 56(c).” Est. of Beauford v. Mesa County, 35 F.4th 1248, 1261 (10th

Cir. 2022). Urging reversal, the Scholls argue, first, the district court made

a procedural mistake by granting summary judgment sua sponte—meaning

based on arguments the parties never raised; and second, the district court

erroneously concluded Walgreens owed no duty under Oklahoma law to fill

J.J.S.’s prescription until July 13, 2020. We address each issue in turn and

discern no error.

III

Rule 56 allows a district court to grant a motion for summary

judgment “on grounds not raised by a party” so long as the nonmovant has

“notice and a reasonable time to respond.” FED. R. CIV. P. 56(f)(2). Granting

summary judgment on a basis different than the one identified in a

summary judgment motion is known as “sua sponte summary judgment[.]”

Snyder v. Beam Techs., Inc., 147 F.4th 1246, 1259 (10th Cir. 2025) (quoting

Oldham v. O.K. Farms, Inc., 871 F.3d 1147, 1151 (10th Cir. 2017)); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) (“[D]istrict courts are

widely acknowledged to possess the power to enter summary judgments sua

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sponte, so long as the losing party was on notice that she had to come

forward with all of her evidence.”). “[T]he practice of granting summary

judgment sua sponte is not favored.” Scull v. New Mexico, 236 F.3d 588, 600

(10th Cir. 2000). We will reverse a grant of sua sponte summary judgment

when the losing party both (1) lacked notice that it needed to marshal

evidence about the issue ruled on by the district court and (2) suffered

prejudice from that lack of notice. See Johnson v. Weld County, 594 F.3d

1202, 1214 (10th Cir. 2010) (“[E]ven if such notice is lacking, we will still

affirm a grant of [sua sponte] summary judgment if the losing party suffered

no prejudice from the lack of notice.”). The appellate burden of showing a

lack of notice and prejudice from the sua sponte summary judgment falls on

the party alleging error. See Oldham, 871 F.3d at 1151.

The notice requirement asks whether a party “recogni[zed] that it had

to come forward with all of [its] evidence[.]” Safeway Stores 46 Inc., v. WY

Plaza LC, 65 F.4th 474, 481 (10th Cir. 2023) (internal quotation marks

omitted); see A.M. v. Holmes, 830 F.3d 1123, 1137 (10th Cir. 2016)

(explaining lack of notice can be shown if “none of the [summary judgment]

briefing discussed” the issue, leaving the losing party unaware “the issue

was even presented for decision” on summary judgment); Interstate Med.

Licensure Compact Comm’n v. Bowling, 113 F.4th 1266, 1284 (10th Cir.

2024) (recognizing lack of notice where “[n]either party [had] briefed the

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issue” at summary judgment (internal quotation marks omitted)). Prejudice

can be shown if the losing party points to some evidence it “could have

produced or relied on to undermine the district court’s [summary judgment]

ruling.” Oldham, 871 F.3d at 1151; Snyder, 147 F.4th at 1259–60

(explaining the losing party must “at least point[] to some evidence that he

could have offered” to the district court to show a genuine dispute of

material fact); Atkins v. Salazar, 677 F.3d 667, 678 (5th Cir. 2011) (per

curiam) (explaining the losing party fails to show prejudice if that party

“has no additional evidence or if all of the nonmovant’s additional evidence

is reviewed by the appellate court and none of the evidence presents a

genuine issue of material fact” (internal quotation marks omitted)).

The Scholls claim they lacked notice that the district court would

decide on summary judgment whether Walgreens had a duty to fill J.J.S.’s

prescription before July 13, 2020. That lack of notice, the Scholls argue,

denied them an opportunity to present contrary evidence before the district

court ruled against them on summary judgment. Walgreens urges

affirmance, arguing the Scholls “were certainly on notice of their obligation

to put forth evidence of the sole cause of action they alleged in their own

lawsuit.” Resp. Br. at 42. We agree with Walgreens.

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We begin with notice. The Scholls brought just one claim against

Walgreens: negligence. Under Oklahoma law, “[t]he existence of a duty of

care is the threshold question in any negligence action.” Marshall v. City of

Tulsa, 558 P.3d 1220, 1228 (Okla. 2024). In their motion for summary

judgment, Walgreens argued it had no duty to fill the prescription from

June 16 until July 13. In response, the Scholls’ primary argument was

“Defendants owed a duty” to J.J.S. over the entire period at issue in the

complaint. RIII.22 (heading formatting omitted). As put by the Scholls in

the first paragraph of their brief, Walgreens was wrong to argue “they owe

no duty to [J.J.S.] or any other patient that they abandon.” RIII.6.

The question of whether Walgreens owed a duty thus “did not arise

out of the blue.” Kannady v. City of Kiowa, 590 F.3d 1161, 1171 (10th Cir.

2010) (quoting Bridgeway Corp. v. Citibank, 201 F.3d 134, 140 (2d Cir.

2000)). Even assuming the Scholls were due more particularized notice—

not just that the district court could rule on the existence of a duty but

specifically a duty before July 13—the record shows the Scholls had such

notice. As the Scholls acknowledge, the summary judgment motion argued

Walgreens owed no duty from June 16 until July 13. That argument

necessarily alerted the Scholls to “present evidence (as well as legal

argument)” about any duty Walgreens owed before July 13. A.M., 830 F.3d

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at 1137. No surprise, the Scholls devoted several pages of their summary

judgment response to arguing a duty existed before July 13. The Scholls

expressly disagreed with Walgreens’ “claim that there is no duty to fill a

prescription within a certain amount of time[.]” RIII.23. The Scholls also

chided Walgreens for “refus[ing] to act until July” even though it “received

the prior authorization on June 16[.]” RIII.27.

Under these circumstances, where the summary judgment briefing

clearly identified the issue the district court would decide, there can be no

doubt the Scholls had notice to present their evidence about whether and

when Walgreens owed a duty to fill J.J.S.’s prescription. See A.M., 830 F.3d

at 1137.

Even if we concluded the Scholls lacked notice, they have not shown

prejudice. See Rogers v. Riggs, 71 F.4th 1256, 1263 (10th Cir. 2023)

(explaining “we don’t reverse” a sua sponte summary judgment “if the lack

of notice didn’t prejudice the losing party”); Trujillo v. Amity Plaza, __ F.4th

__ (10th Cir. 2026) (recognizing, if a litigant waives an argument about

prejudice for failure to adequately develop it in the opening brief, we can

affirm the sua sponte summary judgment “on that basis alone”). Prejudice

requires the losing party to point to “additional evidence . . . that would

change the resolution of his case.” Scull, 236 F.3d at 601. If the losing party

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“had no additional evidence to bring, it cannot plausibly argue that it was

prejudiced[.]” Bridgeway, 201 F.3d at 140. That requirement has a

particular meaning where “discovery had proceeded to the point where the

parties understood the material facts at issue.” Triumph Foods, LLC v.

Campbell, 156 F.4th 29, 40 (1st Cir. 2025) (internal quotation marks

omitted). Prejudice generally cannot be shown where “the summary

judgment came after the close of discovery” and the party complaining of

sua sponte summary judgment “was not deprived of either its ability to

ascertain facts or its opportunity to develop and present its case.” Gen.

Universal Sys., Inc. v. Lee, 379 F.3d 131, 145 n.29 (5th Cir. 2004) (per

curiam); see Rogers, 71 F.4th at 1265 (recognizing a litigant cannot show

prejudice “[w]here a legal issue has been fully developed, and the

evidentiary record is complete” (quoting Artistic Ent., Inc. v. City of Warner

Robins, 331 F.3d 1196, 1202 (11th Cir. 2003) (per curiam))).

The Scholls fail to identify any record evidence showing a genuine

dispute of material fact on the duty issue or suggesting Walgreens should

not be entitled to summary judgment as a matter of law. When pressed at

oral argument, the Scholls admitted they could not point to any additional

evidence in the record supporting their position that the district court had

not already considered. We thus cannot say this is an appeal where the

losing party “at least points to some evidence that [it] could have offered if

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[it] had been told that the district court was going to enter summary

judgment” on a particular issue. Snyder, 147 F.4th at 1259–60 (emphasis

added).

Still, the Scholls insist sua sponte summary judgment “depriv[ed]

them of the opportunity to present more evidence[,]” Reply Br. at 4, and in

particular “evidence regarding the circumstances of Walgreens’ agreement

to fill the prescription[,]” Op. Br. at 14. We are not persuaded. It is

important to remember Walgreens moved for summary judgment after

discovery closed. The Scholls could have tried to develop further evidence

by moving to extend or reopen the discovery deadline. See FED. R. CIV.

P. 56(d)(2) (“If a nonmovant shows by affidavit or declaration that, for

specified reasons, it cannot present facts essential to justify its opposition,

the court may . . . allow time to obtain affidavits or declarations or to take

discovery[.]”). They neither asked the district court for a discovery extension

nor press any discovery-related arguments on appeal.

In any event, the Scholls seem to conflate notice with prejudice.

Whether a litigant had a chance to marshal its evidence before the district

court is distinct from whether the litigant had the chance to develop

evidence in the first place. Even assuming the Scholls lacked the former, we

fail to see how they lacked the latter. The Scholls framed Walgreens’ alleged

“promise[]” to fill the prescription as the centerpiece of their lawsuit. RI.15.

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It strains credulity to suggest the Scholls failed to foresee the need to “come

forward with all of their evidence” on an essential element of their lawsuit’s

sole cause of action. Jones v. Salt Lake County, 503 F.3d 1147, 1152 (10th

Cir. 2007) (brackets omitted) (finding no prejudice).

We reject the contention the district court procedurally erred by

granting summary judgment sua sponte.

We next consider the Scholls’ argument that the district court

erroneously concluded Walgreens owed no duty to fill the prescription. The

parties agree, under Oklahoma law, “[a] legal duty may arise by several

means[,]” including “by statute or ordinance, common law duty, a duty

imposed by implication of law or operation of law, and the relation or

situation of the parties.” Knox v. Okla. Gas & Elec. Co., 549 P.3d 1260, 1269

(Okla. 2024). Here, the dispute can be understood as disagreements about

whether a duty existed (i) under affirmative statements of law, such as

Oklahoma statutes, regulations, and cases; or else (ii) as a result of

Walgreens’ conduct. The district court found nothing in Oklahoma law

indicating Walgreens owed a duty to fill the Lupron Depot prescription

before July 13, 2020. We agree with the district court.

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This appeal centers on the grant of summary judgment by a federal

court exercising diversity jurisdiction under 28 U.S.C. § 1332. “A district

court sitting in diversity must apply the law of the state as it has been

determined by the highest court of that state.” Mitchell v. Roberts, 43 F.4th

1074, 1085 (10th Cir. 2022); see RV.4 & n.2 (citing Erie, 304 U.S. at 78).

“[W]e review de novo the district court’s interpretation of state law.”

Evanston Ins. Co. v. Desert State Life Mgmt., 56 F.4th 899, 905 (10th Cir.

2022). “To determine the relevant state law, we look to controlling state

supreme court cases, but when none exist, we attempt to predict how the

highest court would interpret the issue.” Bartch v. Barch, 111 F.4th 1043,

1057 (10th Cir. 2024) (internal quotation marks omitted). “In conducting

our inquiry, we are free to consider all resources available, including

decisions of [state] courts,” state statutes, and state regulations. FDIC v.

Schuchmann, 235 F.3d 1217, 1225 (10th Cir. 2000) (internal quotation

marks omitted). We are “guided by an overarching reticence to expand state

law absent clear guidance from the state’s highest court.” Lawson v. Spirit

AeroSystems, Inc., 135 F.4th 1186, 1199 (10th Cir. 2025) (internal quotation

marks and brackets omitted).

Plaintiffs allege a single claim for negligence under Oklahoma law. A

negligence claim has three elements: “1) a duty owed by the defendant to

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protect the plaintiff from injury; 2) a failure to perform that duty; and

3) injuries to the plaintiff which are proximately caused by the defendant's

failure to exercise the duty of care.” Smith v. City of Stillwater, 328 P.3d

1192, 1200 (Okla. 2014). At issue here is the first element: duty. “Whether

the defendant owed the plaintiff a duty of care is a question of law for the

court in a negligence action. And, if the defendant did not owe a duty of care

to the plaintiff, there can be no liability for negligence as a matter of law.”

Lowery v. Echostar Satellite Corp., 160 P.3d 959, 964 (Okla. 2007) (internal

citation omitted).

We review the district court’s grant of summary judgment de novo,

applying “the same legal standard used by the district court” under Rule 56.

Est. of Beauford, 35 F.4th at 1261. That rule states summary judgment is

appropriate “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.”

FED. R. CIV. P. 56(a). To carry their burden, movants must produce

“affirmative evidence negating an essential element of the non-moving

party’s claim” or show “the nonmoving party does not have enough evidence

to carry its burden of persuasion at trial.” Pelt v. Utah, 539 F.3d 1271, 1280

(10th Cir. 2008) (internal quotation marks omitted). “If the movant carries

this initial burden, the nonmovant that would bear the burden of persuasion

at trial may not simply rest upon its pleadings[.]” Thom v. Bristol-Myers

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Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003). Instead, “the burden shifts

to the nonmovant to go beyond the pleadings and ‘set forth specific facts’

that would be admissible in evidence in the event of trial from which a

rational trier of fact could find for the nonmovant.” Id. (quoting FED. R. CIV.

P. 56(e)). “The summary judgment standard requires us to construe the

facts in the light most favorable to the nonmovant and to draw all

reasonable inferences in its favor.” Est. of Beauford, 35 F.4th at 1261.

Applying these standards, we now consider the Scholls’ arguments in

support of reversal. None is availing.

The Scholls first argue Oklahoma statutes, regulations, and judicial

decisions show Walgreens had a duty to fill J.J.S.’s prescription. The Scholls

insist the district court misinterpreted Oklahoma’s Pharmacy Act and

related regulations, which, in their view, establish pharmacists in

Oklahoma have an “overarching duty to dispense medications lawfully

prescribed.” Op. Br. at 22–23 (first citing OKLA. ADMIN. CODE §§ 535:10-3-1.1, 535:10-9-2, & 535:15-3-2; and then citing OKLA. STAT. tit. 59,

§§ 353.20.1(B), 353.20.2(A) & (C)). We see no error.

The Oklahoma Supreme Court has never weighed in on a pharmacist’s

duties under Oklahoma law. Like the district court, we must make an “Erie

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guess” about how the Oklahoma Supreme Court would interpret the

question of duty raised by this appeal. Lawson, 135 F.4th at 1198–99 & n.2.

We thus consider “all resources available” to inform our prediction.

Schuchmann, 235 F.3d at 1225. We conclude the Oklahoma Supreme Court

would find state law imposed no duty on Walgreens to fill J.J.S.’s

prescription before July 13, 2020.

We begin with the Oklahoma Court of Civil Appeals’ decision in

Pharmcare Oklahoma, Inc. v. State Health Care Authority, which is the

“most comprehensive Oklahoma appellate court statement regarding the[]

duties” at issue here. Carista v. Valuck, 394 P.3d 253, 257 (Okla. Civ. App.

2016). In Pharmcare, the court set out a range of actions subject to

regulation under the Oklahoma Pharmacy Act, OKLA. STAT. tit. 59, § 353.1

et seq, and by the Oklahoma Board of Pharmacy, see OKLA. STAT. tit. 59,

§ 353.7(12). The court then explained a pharmacist’s duties in Oklahoma

are “clearly defined and limited under the Pharmacy Act.” Pharmcare, 152

P.3d at 273 (emphasis added); see also Carista, 394 P.3d at 257 (quoting

same).

The Pharmacy Act makes no mention of a duty to fill a prescription.

See OKLA. STAT. tit. 59, § 353.1 et seq. And the rules promulgated by the

state Board of Pharmacy pursuant to the Pharmacy Act likewise make no

mention of such a duty. See OKLA. ADMIN. CODE § 317:30-5-70.1. For

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example, Oklahoma Administrative Code § 535:10-3-1.2 lists twenty-nine

distinct violations of a pharmacist’s rules of professional conduct. Failing to

fill a prescription is not one of them. The absence of any express

requirement to fill a prescription in Oklahoma statutes and regulations, on

its own, supports the conclusion that the Oklahoma Supreme Court would

find no such requirement exists. See Lawson, 135 F.4th at 1199.

To the extent Oklahoma law affirmatively says anything about a

pharmacist’s duty to fill a prescription, it indicates there is no such duty.

For example, “[a] pharmacist may refuse to dispense any prescription which

appears to be improperly executed or which, in their professional judgment,

is unsafe as presented.” OKLA. ADMIN. CODE § 317:30-5-70.1; see Pharmcare,

152 P.3d at 273 (same). Further, when a “device or medication[]” is

“medically necessary to prevent the death of or serious harm to the health

of a patient,” a “pharmacist may,” but is not required to, “dispense without

a prescription[.]” OKLA. STAT. tit. 59, § 353.20.2(C) (emphasis added).

Like the district court, we also find instructive the 2022 amendment

to the state pharmacy regulations. See OKLA. ADMIN. CODE § 535:15-3-13(c).

The amendment states, in relevant part, “The pharmacist maintains the

right not to fill the valid prescription.” Id. According to the state Pharmacy

Board, the amendment “clarifies a pharmacist’s right not to fill a valid

prescription.” 39 OKLA. REG. 160, no. 6, at 160 (Dec. 1, 2021). In our view,

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the Oklahoma Supreme Court would conclude the 2022 amendment applies

retroactively, since it is straightforwardly “a clarifying enactment.” Polymer

Fabricating, Inc. v. Emps. Workers’ Comp. Ass’n, 980 P.2d 109, 114 (Okla.

1998) (holding “[w]here an earlier legislative enactment is unclear in some

respect and a later enactment attempts to remove the ambiguity, the

amendatory statute constitutes a clarifying enactment that is to be given

retrospective force.”). We endorse the district court’s conclusion that the

2022 amendment “expressly provided what was previously only implied:

Oklahoma’s comprehensive statutory and regulatory scheme does not

impose a duty to fill prescriptions.” 10 RV.12.

The Scholls advance no persuasive contrary argument. The Scholls

first point to Carista v. Valuck, an Oklahoma Court of Civil Appeals case

involving a wrongful-death lawsuit against a pharmacy following an alleged

overdose of painkillers. See 394 P.3d at 255. The Scholls tell us Carista

10 The Scholls argue the 2022 amendment cannot apply retroactively,

because retroactive application “would destroy vested rights, including the right of the Scholl family to sue for negligence.” Op. Br. at 24. This argument concerning vested rights proceeds from a mistaken premise: that pharmacists have a duty to fill prescriptions. We conclude no such duty existed under Oklahoma law even before the 2022 amendment. See 39 OKLA. REG. 160, no. 6, at 160 (Dec. 1, 2021); Polymer Fabricating, 980 P.2d at 114; see N. Coltrane Cmty. Ass’n, Inc. v. Bd. of Cnty. Comm’rs of Okla. Cnty., 453 P.3d 913, 919–20 (Okla. Civ. App. 2019) (“Where a statute is ambiguous and an amendment is made which construes and clarifies prior language, a court should accept the amendment as legislative intent as to the meaning of the previous ambiguous language.”).

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holds “a pharmacist’s duties include . . . dispensing prescriptions.” Op. Br.

at 21 (bolding omitted). The Scholls misstate the law. What the court

actually said was a pharmacist’s duties to a patient “include accurately

filling and dispensing prescriptions.” Carista, 394 P.3d at 257 (emphasis

added) (quoting Pharmcare, 152 P.3d at 273). In describing Carista, the

Scholls omit a key word—accurately—which modifies both “filling” and

“dispensing.” See Potts v. Ctr. for Excellence in Higher Ed., Inc., 908 F.3d

610, 615 (10th Cir. 2018) (“[W]hen there is a straightforward, parallel

construction that involves all nouns or verbs in a series, a prepositive or

postpositive modifier normally applies to the entire series.” (quoting

ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION

OF LEGAL TEXTS 147 (2012) (discussing the examples of “unreasonable

searches and seizures” and “high crimes and misdemeanors” (italics

omitted)))). A duty to fill a prescription accurately does not presuppose a

duty to fill a prescription under any and all circumstances. Correctly

understood, Carista does not support the Scholls.

The Scholls next contend the duties applicable to doctors in Oklahoma

also apply to pharmacists. We are not convinced the Oklahoma Supreme

Court would agree. Oklahoma law does not regulate physicians like

pharmacists. Compare Application of State Bd. of Med. Exam’rs, 206 P.2d

211, 212–14 (Okla. 1949) (discussing physician regulation), and State ex rel.

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Okla. Bd. of Med. Licensure & Supervision v. Pinaroc, 46 P.3d 114, 116

(Okla. 2002) (same), with Pharmcare, 152 P.3d at 273 (discussing

pharmacist regulation); see Davuluri v. State ex rel. Okla. Bd. of Med.

Licensure & Supervision, 10 P.3d 198, 210 (Okla. 2000) (Opala, J.,

concurring in part and dissenting in part) (laying out differences in the

various licensing and regulatory schemes governing members of “healing”

and “health-related” professions); cf. Carista, 394 P.3d at 259 (explaining,

in the context of prescription abuse, “Pharmacists are neither physicians

nor counselors on the use of illegal drugs”). 11 Without authority to support

their position, the Scholls invite us to hold that the professional duties of

physicians under Oklahoma necessarily apply to pharmacists. The Scholls

do not explain why the Oklahoma Supreme Court would endorse their

position or why we should overcome our “reticence to expand state law.”

Lawson, 135 F.4th at 1199.

11 In Carista, for example, the court looked to the Pharmacy Act and

implementing regulations to understand a pharmacist’s duties under Oklahoma law. 394 P.3d at 258–59. The court also favorably quoted Pharmcare’s conclusion that a “pharmacist’s duty to [a] patient is clearly defined and limited under the Pharmacy Act.” Id. at 257 (quoting Pharmcare, 152 P.3d at 273). Nothing in the Pharmacy Act or its implementing regulations treat pharmacists like physicians. The Scholls also acknowledged at oral argument that they are aware of no cases in Oklahoma treating pharmacists like physicians for purposes of assessing duties.

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The Scholls also rely on Oklahoma Administrative Code § 535:10-3-1.2(11), which states a pharmacist commits professional misconduct by

“[n]ot attempting to resolve a possible prescription error; or situation of

potential harm to the patient when apparent or should have been apparent

to the pharmacist.” Op. Br. at 23, 26. We are not convinced this provision

applies here. The Scholls cite no authority suggesting a rule of professional

conduct creates a legal duty in tort. Cf. Bd. of Cnty. Comm’rs of Harmon

Cnty. v. Ass’n of Cnty. Comm’rs of Okla. Self-Insured Grp., 485 P.3d 234,

239 (Okla. 2021) (holding, in an attorney malpractice claim, a violation of

the Oklahoma Rules of Professional Conduct “does not give rise to a cause

of action, nor create the presumption of a legal duty, nor should such

violation serve as the basis for civil liability”). And, in any event, the plain

language of this regulation does not establish a duty to fill a prescription—

only to “attempt[] to resolve a possible prescription error” or a “situation of

potential harm to the patient” when it is “apparent or should have been

apparent to the pharmacist.” OKLA. ADMIN. CODE § 535:10-3-1.2(11)

(emphasis added). The Scholls have neither alleged nor argued they ever

spoke directly to a Walgreens pharmacist, nor have they pointed to evidence

suggesting a pharmacist knew about the problems filling the Lupron Depot

prescription.

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In sum, there is no affirmative statement anywhere in Oklahoma law

that, under the circumstances here, Walgreens owed a duty to fill J.J.S.’s

prescription before July 13, 2020.

The Scholls next argue the evidence at summary judgment showed

Walgreens’ conduct created a duty to fill the prescription. See Trinity

Baptist Church v. Bhd. Mut. Ins. Servs., LLC, 341 P.3d 75, 84 (Okla. 2014)

(recognizing a duty can arise as a result of “the relationship between the

parties” and the circumstances of their “common undertaking”). According

to the Scholls, Walgreens took on a common-law duty “through its actions

in both promising to seek out and actually seeking out authorization.” Op.

Br. at 16; see Op. Br. at 16 (citing Harwood, 522 P.3d at 481 (“One who

undertakes, gratuitously or for consideration, to render services to

another . . . is subject to liability to the other for physical harm resulting

from his (or her) failure to exercise reasonable care to perform the

undertaking[.]” (internal quotation marks omitted))). The Scholls’

argument is unavailing because they point to no evidence of the promise

they allege.

Recall, the Scholls claim Walgreens made a “promise” to fill J.J.S.’s

prescription, which gave rise to a duty. RI.15. The district court concluded

no such conduct-based duty existed, since the record turned up “no evidence

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that Walgreens agreed to fill the prescription, stated that it would initiate

a fill request, coordinated delivery, or otherwise gave any indication that it

would undertake any obligation with respect to the prescription.” RV.22.

We agree with the district court’s carefully considered conclusion.

At oral argument, the Scholls acknowledged the record contains no

direct evidence of a promise or contractual relationship. See Oral Arg. at

16:21–17:02. At most, the record suggests Walgreens agreed to seek out

insurance authorization before June 17. But a promise to inquire about

preauthorization—which will determine whether a prescription can be

filled—is not a promise to fill a prescription under any circumstances. The

Scholls argue otherwise, relying on Harwood v. Ardagh Group, 522 P.3d 473

(Okla. 2022). That case does not help them. In Harwood, an employee sued

his employer for negligence, arguing the employer had breached its duty to

provide a safer crosswalk for employees using an employer-designated

parking lot. See id. at 474. The Oklahoma Supreme Court concluded the

employee plausibly alleged the employer undertook a duty, because the

employer “represented to employees that it would make the passage across

the highway as safe as possible,” “previously had taken steps to make the

crossing safer,” and “failed to do so” on the occasion giving rise to the injury.

Id. at 481. Here, unlike in Harwood, the asserted duty would not be a

continuation of a course of conduct but would instead require Walgreens to

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take actions it had not previously taken, had not represented that it would

take, and was under no contractual obligation to take. On this putative

course-of-conduct duty, therefore, the Scholls have failed to carry their

burden on summary judgment to “go beyond the pleadings and ‘set forth

specific facts’ . . . from which a rational trier of fact could find for the

nonmovant.” Thom, 353 F.3d at 851 (quoting FED. R. CIV. P. 56(e)). 12

12 Finally, the Scholls claim Walgreens effectively conceded at summary judgment that it owed a duty before July 13 to fill J.J.S.’s prescription, and the district court mistakenly overlooked that concession. The Scholls seek to invoke judicial estoppel, claiming Walgreens cannot change its position on appeal. This argument is waived. We do not see an argument in the Scholls’ summary judgment brief that Walgreens conceded a duty. At most, the Scholls suggested Walgreens, in relying on its corporate policies, was impermissibly treating duty like “a light switch, to be turned on and off at a whim.” RIII.24. But “a party does not preserve an issue merely by . . . presenting [it] to the district court in a vague and ambiguous manner, or by making a fleeting contention before the district court.” GeoMetWatch Corp. v. Behunin, 38 F.4th 1183, 1206 (10th Cir. 2022) (internal quotation marks omitted). On appeal, the Scholls argue plain error only perfunctorily, and for the first time in their reply brief. See Reply Br. at 4 (arguing the district court “obviously erred by ignoring binding judicial admissions that had removed duty from dispute”); Adams v. Fed. Aviation Admin., 168 F.4th 1271, 1284 n.8 (10th Cir. 2026) (“Cursory discussion on appeal fails to preserve an argument.”); Alex W. v. Poudre Sch. Dist. R-1, 94 F.4th 1176, 1186 (10th Cir. 2024) (“We do not consider late-blooming arguments raised for the first time in a reply brief.” (internal quotation marks omitted)). In any event, on the record before us, we see no “threat to judicial integrity” or reason to conclude the district court “was misled” where neither the district court nor the party invoking judicial estoppel accepted the concession the Scholls claim Walgreens made in the district court. New Hampshire v. Maine, 532 U.S. 742, 750–51 (2001) (internal quotation marks omitted); see Fucci v. First Am. Title Ins. Co., 153 F.4th 1129, 1139 n.2 (10th Cir. 2025) (“[J]udicial estoppel does not apply when the earlier position failed to persuade the court.”).

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We AFFIRM the district court’s grant of summary judgment to

Walgreens.

Scholl v. Walgreens Specialty Pharmacy

Authorities cited

Opinion · public domain