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February 15, 1985


The opinion of the court was delivered by: Foreman, Chief Judge:


Before the Court is defendant K-Mart's Motion to Dismiss (Document No. 5). Plaintiffs bring this action seeking to recover damages for personal injuries and loss of consortium allegedly sustained as a result of plaintiff, Carole Jones', consumption of an excessive amount of a prescription drug over a period of time and its reaction with other drugs. Counts III and IV allege that defendant K-Mart was negligent in:

(a) That it knew or should have known that placidyl is a drug of abuse and that it was being prescribed in massive amounts; that it should have notified either the plaintiff or the physician prescribing the drug that something was amiss.

(b) That it knew that the plaintiff was being prescribed massive doses of placidyl, along with other drugs, and that it knew or should have known that the plaintiff was being over-medicated and that it had a duty to notify either the plaintiff and/or her physician of this problem.

(c) That it knew or should have known that the various drugs being prescribed for the plaintiff in the quantities in which they were being prescribed could have adverse reactions and it failed to take any action whatsoever to notify the plaintiff or her physician.

K-Mart moves for dismissal of Counts III and IV arguing that it owes no duty to warn the plaintiff or her physician of any danger enumerated above.

Initially, the Court notes that the precise issue before it is a narrow one. The plaintiff is not alleging that the pharmacist negligently filled the prescription; or that the pharmacist negligently substituted another drug for the prescribed drug; or that the pharmacist negligently gave the wrong instructions on the use of the drug. In each of these situations it is quite clear that the plaintiff would have a legal claim against the pharmacist. See Annot., 79 A.L.R.2d 301. Nor is the plaintiff seeking to hold the pharmacist liable under a strict product liability theory. Recent cases have uniformly held that a pharmacist is not strictly liable under a products liability theory since he is not a retailer. See Murphy v. E.R. Squibb & Sons, Inc., 156 Cal.App.3d 589, 202 Cal.Rptr. 802 (1984); Bichler v. Willing, 58 A.D.2d 331, 397 N.Y.S.2d 57 (1977); Ullman v. Grant, 114 Misc.2d 220, 450 N.Y.S.2d 955 (1982); Batiste v. American Home Products Corp., 32 N.C. App. 1, 231 S.E.2d 269 (1977). The precise issue before this Court is whether a pharmacist, who correctly fills a prescription, is negligent for failing to warn the customer or notify the physician that the drug is being prescribed in dangerous amounts, that the customer is being over medicated, or that the various drugs in their prescribed quantities could cause adverse reactions to the customer.

Since jurisdiction of this action is based on diversity, the Court is obligated to apply Illinois law to resolve this issue. Plaintiff has cited, and this Court could find, only one Illinois decision defining the duty a pharmacist owes to his customer. In Jones v. Walgreen Co., 265 Ill.App. 308 (1932), the court stated:

    "There is no conflict of authority as to the duty
  required of a druggist in his dealings with his
  customers. All the decisions support the principle
  enunciated in Tremblay v. Kimball, that while the law
  requires of a druggist only reasonable and ordinary
  care in compounding prescriptions, in selling
  medicines, and in performing the other duties of his
  profession, such care with reference to him means the
  highest degree of prudence, thoughtfulness, and
  diligence, and is proportioned to the danger
  involved; and that a breach of such duty would be
  negligence rendering him liable for injuries
  resulting therefrom."

Id. at 315-16 (emphasis in original). Applying this standard, the Jones court held that the pharmacist's legal duty goes further than merely dispensing the identical substance which a prescription calls for since "[a]s a chemist he may know that the physician has erred in his prescription and that to fill it might cause death or serious injury to the patient." Id. at 320. Although the language in Jones seems controlling, the case dealt with a situation in which the pharmacist filled the prescription with a different and stronger brand of the drug than that prescribed by the physician, apparently because he could not make out the name of the brand on the prescription. The Jones court pinpointed its holding by stating that

  If a prescription is doubtful as to what drug is
  really intended it is the duty of the pharmacist to
  be alert to avoid a mistake, and if there is any
  reasonable doubt as to the identical thing ordered,
  it is his duty to take all reasonable precaution to
  be certain that he does not sell one thing when
  another is called for.

Id. at 321. Therefore, in as much as Jones was addressing a different factual situation, it is not controlling in this case.

Hence, as is so often the case when Illinois law is silent on the subject, this Court must put on its soothsayer hat and predict what the Illinois Supreme Court would decide if it were faced with this issue. Amfac Mortgage Corp. v. Arizona Mall of Tempe, Inc., 583 F.2d 426 (9th Cir. 1978). Cf. Lamb v. Briggs, Mfg., A Division of Celotex Corp., 700 F.2d 1092 (7th Cir. 1983).

Other state court opinions, while not in agreement, shed light on the issue. In an early Maryland case, the court held that a druggist was not liable for failing to make an inquiry of the physician regarding the prescription calling for poison, where the result would have been to confirm the prescription. People's Service Drug Stores, Inc. v. Somerville, 161 Md. 662, 158 A. 12 (1932). The court stated that "[i]t would be a dangerous principle to establish that a druggist cannot safely fill a prescription merely because it is out of the ordinary. If that were done, many patients might die from being denied unusual remedies in extreme cases." 158 A. at 13. The court added, however, that "[o]f course this does not mean that pharmacists can safely fill prescriptions calling for doses ...

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