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Hattem v. Kmart Corp.

September 30, 1999

HAZEL VAN HATTEM, NANCY WITVOET, DONNA JONKMAN AND MARILYN NEUMEYER, CO-ADMINISTRATORS OF THE ESTATE OF ERNEST VAN HATTEM, DECEASED,
PLAINTIFFS-APPELLEES,
V.
KMART CORPORATION,
DEFENDANT-APPELLANT,
AND
KMART CORPORATION D/B/A KMART PHARMACY NO. 7289, JAMES S. HABIB AND JAMES S. HABIB, M.D., LTD.,
DEFENDANTS.
KMART CORPORATION AND KMART CORPORATION D/B/A KMART PHARMACY NO. 7289,
DEFENDANTS/COUNTERPLAINTIFFS,
V.
JAMES S. HABIB AND JAMES S. HABIB, M.D.,
DEFENDANTS/COUNTERDEFENDANTS.



The opinion of the court was delivered by: Justice Hartman

Appeal from the Circuit Court of Cook County. Honorable Donald J. O'Brien, Judge Presiding.

Hazel Van Hattem (Hazel), Nancy Witvoet, Donna Jonkman and Marilyn Neumeyer, in their capacities as administrators of Ernest Van Hattem's estate (collectively, plaintiffs), brought a wrongful death and survival action against Dr. James S. Habib, alleging that he misdiagnosed and prescribed inappropriate medication to Ernest Van Hattem (Ernest); and against Kmart Corporation (Kmart), alleging that a Kmart pharmacy misfilled a prescription for Ernest, resulting in his death. A jury returned a verdict for plaintiffs against Kmart, but against plaintiffs and for Dr. Habib. The circuit court entered an $810,000 judgment for plaintiffs and against Kmart. Kmart appeals, contending that the court erred in (1) failing to grant a mistrial due to alleged prejudice resulting from a television news investigative story about pharmacy misfills which aired during the week of trial; (2) refusing Kmart's request for a special interrogatory regarding Hazel's alleged contributory negligence; (3) denying Kmart's motion in limine which sought to bar admission of the contents of a prescription bottle for failure to establish a proper chain of custody for that evidence; and (4) in denying Kmart's motion in limine to bar testimony from two expert witnesses.

The evidence adduced at trial established that, on June 15, 1995, 76-year-old Ernest died at St. James Hospital following an intracerebral hemorrhage, or massive brain bleed. At the time of his death, Ernest was taking several prescription medications, including Coumadin, a drug for reducing clotting factors and thinning the blood.

Dr. Habib, Ernest's physician, had first prescribed Coumadin for him during a three-month period in 1991 to prevent phlebitis, for which he had been hospitalized. Thereafter, in June 1994, after being hospitalized for acute thrombophlebitis, Ernest again was prescribed a two-milligram dosage (one pill) of Coumadin once per day by Dr. Habib. On July 15, 1994, Dr. Habib increased Ernest's dosage from six milligrams every three days to eight milligrams every three days. His specific instructions were for Ernest to take one pill on the first day, one pill on the second day and two pills on the third day, repeating that dosage, or a 1-1-2 regimen. *fn1

On October 14, 1994, Dr. Habib again prescribed a 1-1-2 regimen of two-milligram-strength Coumadin for Ernest. The prescription was filled at Kmart's Steger pharmacy, as it had been by the pharmacy previous times: on June 17, 1994; on July 29, 1994; and on September 7, 1994. Refills of the October 1994 Coumadin prescription also were filled by the Kmart pharmacy on December 29, 1994, March 10, 1995 and May 30, 1995.

Each time Dr. Habib prescribed Coumadin, he warned Ernest about the dangers associated with that drug, specifically abnormal bleeding. Upon his discharges from the hospital, Ernest also was warned about Coumadin and was told to report any unusual symptoms or bleeding to his doctor. In addition, each time the Kmart pharmacy filled Ernest's Coumadin prescription, written warnings were provided and stapled to the bag containing the prescription bottle.

According to Hazel, who picked up all Ernest's prescriptions at Kmart's Steger pharmacy, warnings were attached to each prescription bag, but she regularly removed those warnings before she gave Ernest the medication. *fn2 Although she could not specifically remember picking up the May 30, 1995, Coumadin refill, Hazel testified that it was her custom to telephone a refill request to the Steger pharmacy whenever Ernest placed his pill bottle by the telephone. She then brought the prescription home, removed the warning labels and receipt and gave the bag containing the prescription bottle to Ernest. She believed she had done this for the May 30, 1995 prescription, but could not remember specifically. After giving her husband his prescription, she did not monitor the manner in which he took his medication. Ernest took his own medicine and kept a "drug diary," entering a check mark each time he took medication.

While Ernest was on Coumadin, Dr. Habib checked his prothrombin time (the number of seconds it takes for a plasma sample to clot) monthly. From June 1994 until June 1995, Ernest's prothrombin time remained therapeutic. On June 14, 1995, after he was brought to the hospital, however, Ernest's prothrombin time was abnormally high and more than twice the previous result from a test taken on May 24, 1995.

On the afternoon of June 13, 1995, Hazel and Ernest were vacationing in Dowagiac, Michigan. There, Ernest remarked to a friend that he might have passed blood in his urine. Ernest's friend advised him to see his doctor. That evening, after returning to their home in Crete, Illinois, Hazel noticed spatters of blood in front of their toilet; Ernest told her he would see his doctor in the morning about his "prostate." Ernest, who suffered from migraines, also complained of a headache. The next morning, Hazel found her husband unconscious and bleeding from his mouth and nose. Paramedics were called and Ernest was transported to St. James Hospital. *fn3

On June 15, 1995, while Ernest was in the hospital, Hazel remembered the warnings about Coumadin and bleeding. At home, she removed the Coumadin prescription bottle from the drawer in their home where her husband kept it, looked at its contents, and noticed the number "5" on the 79 pills remaining in the bottle, although the prescription label indicated that the dosage was two milligrams. While at the hospital, the Van Hattems' daughter Marilyn Neumeyer, a registered nurse since 1968, overheard her mother express concern that the Coumadin prescription bottle contained pills imprinted with a "5." Neumeyer then requested a Physician's Desk Reference and saw that the number "5" on the pills meant that they were five-milligram strength.

On June 16, 1995, after Ernest's death, one of his sons-in-law brought the subject Coumadin prescription bottle to his niece, Julie Witvoet, a pharmacist. Witvoet, who had been a licensed pharmacist for three years, identified the pills as five-milligrams in strength, not the two-milligram strength set forth on the prescription label.

Immediately, the Van Hattem family placed the prescription bottle containing the pills in a basement safe and contacted their attorney, who then placed the prescription bottle in a bank safe deposit box. On September 6, 1995, plaintiffs filed the present suit.

Prior to trial, Kmart sought to bar, inter alia, admission of the prescription bottle and its contents. Arguing plaintiffs could not establish that the 79 five-milligram strength pills contained in the prescription bottle were in substantially the same condition as when Kmart allegedly had given them to Hazel, Kmart asserted that a proper chain of custody could not be established. The circuit court denied Kmart's motion in limine, but allowed Kmart "free rein" at trial to argue that the pills were not provided by its pharmacy.

At trial, further evidence was presented as to Kmart's custom and practice in filling prescriptions. According to a Kmart pharmacist, when a new prescription is brought into Kmart, a review is done to establish that all the pertinent information is legible. Then, the pharmacist enters onto a computer the patient's name, the name of the medication, its quantity, its directions, the number of refills and the doctor's name. A second check is done by comparing the computer screen to the written prescription. The computer then generates a label, patient information, warnings and a receipt. To fill the prescription, a member of the pharmacy staff removes the indicated drug, which is labeled with a National Drug Code (NDC) number, from the shelf. The pharmacy staff consists of pharmacists and technicians. *fn4

A member of the pharmacy staff then matches the NDC, the name and the strength of the drug on the stock bottle to that on the prescription label. Thereafter, the pills from the stock bottle are poured into a tray, counted out, and then poured from the tray into the prescription bottle, which is capped and labeled. If the prescription is completed by a technician, the bottle is left to be checked by a pharmacist. Similar procedures are used for refills. None of the pharmacists or technicians on duty the day Ernest's May 30, 1995 refill was prepared remembered refilling that prescription.

Dr. Habib and two of plaintiffs' expert witnesses, Dr. Scott Kale and James O'Donnell, a pharmacologist, testified at trial that the Kmart pharmacy misfilled the May 30, 1995 prescription with five-milligram strength Coumadin instead of the prescribed two-milligram strength, resulting in Ernest's death. Dr. Harry Messmore, a hematologist testifying as Dr. Habib's expert, was of the opinion that Kmart misfilled the May 30, 1995 prescription, causing Ernest's cerebral hemorrhage. Dr. Robert Barkin, Kmart's expert and a pharmacy professor, believed the prescription was filled properly and characterized the source of the five-milligram pills as "not identified." Dr. Ashok Raojibhai Patel, a hematologist and oncologist, testified that the cause of Ernest's cerebral hemorrhage was unknown. Dr. Patel also suggested that a review of Ernest's medical charts indicated to him that Ernest had been taking a 5-5-10 regimen since February 15, 1995; he also acknowledged, however, that Kmart's pharmacy records never reflected a five-milligram dosage prescription being received or filled for Ernest Van Hattem.

After presentation of testimony was concluded, but before argument, Kmart's attorney moved for a mistrial based upon a news segment which appeared on television concerning misfilled prescriptions. The Channel 5 News program aired during the trial and featured interviews of Hazel in which she discussed how Ernest's death was caused by a misfilled prescription. After polling the jury and questioning the jurors who had seen the program, the circuit court denied Kmart's motion.

Thereafter, the jury returned a verdict in favor of plaintiffs and against Kmart in the amount of $900,000, reduced by a 10 percent comparative fault finding against Ernest. The jury found in favor ...


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