## Facts

- Ellen R. Levy-Gray was prescribed doxycycline for Lyme disease; her physician instructed her not to nurse but gave no further directions on administration.
- She filled the prescription at a Rite Aid pharmacy, which dispensed doxycycline and provided a pharmacy-generated patient package insert branded “Rite Advice.”
- The insert instructed that the medication should be taken “with food or milk if upset stomach occurs,” and also included general disclaimers that the information was not medical advice and not a substitute for professional advice.
- After experiencing stomach upset, Levy-Gray followed the insert and took doxycycline with milk and consumed significant dairy while on the medication.
- Levy-Gray’s symptoms did not resolve; she was later diagnosed with post-Lyme syndrome.
- Levy-Gray sued Rite Aid on multiple theories; the case proceeded to a jury verdict for Levy-Gray on breach of express warranty based on the insert’s instruction.
- The intermediate appellate court affirmed; Rite Aid sought further review.

## Issues

1. Whether prescription drugs dispensed by a pharmacy are “goods” subject to express-warranty liability under UCC § 2-313.
2. Whether a pharmacy’s patient insert instruction (“take with food or milk if upset stomach occurs”) is an affirmation of fact or promise that can become part of the “basis of the bargain” even if provided after the consumer pays for the prescription.
3. Whether the evidence permitted the jury to find reliance and causation on the express-warranty theory.

## Decision

- The Court of Appeals of Maryland affirmed the judgment for Levy-Gray on breach of express warranty.
- The court held that prescription pharmaceuticals dispensed by a pharmacy are “goods” that may be the subject of an express warranty under UCC § 2-313.
- The court held the insert’s instruction was a specific affirmation regarding administration of the drug and could create an express warranty attributable to Rite Aid.
- The court rejected the argument that post-payment delivery of the insert barred “basis of the bargain,” endorsing a functional approach centered on how consumers use dispensed medications.
- The court held the jury could reasonably infer Levy-Gray relied on the instruction in deciding how to take the drug and could find causation despite conflicting expert testimony.
- General disclaimers in the insert did not negate the specific directive statement.

## Legal Principles

- Under UCC § 2-313, an express warranty arises from any seller’s affirmation of fact or promise relating to goods that becomes part of the basis of the bargain.
- Pharmacies may be sellers of “goods” for Article 2 purposes when dispensing prescription medications, even though pharmacy practice includes service components.
- A specific, operational instruction about a product’s use may qualify as an actionable affirmation of fact, not mere opinion or puffery.
- “Basis of the bargain” does not require that the affirmation precede payment; reliance in the course of using the product as dispensed may suffice in the prescription-drug context.
- General disclaimer language may be insufficient to defeat a concrete, product-specific affirmation supporting an express warranty claim.

## Conclusion

The court upheld a jury verdict that Rite Aid breached an express warranty where its pharmacy-generated patient insert instructed taking doxycycline with food or milk, concluding prescription drugs are goods under the UCC and that post-payment written directions can form the basis of the bargain when relied upon in administering the medication.


Rite Aid Corp. v. Levy-Gray, 894 A.2d 563 (Md. 2006)