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Happel v. Wal-Mart Stores

September 29, 2000

HEIDI HAPPEL AND KENT HAPPEL,
PLAINTIFFS-APPELLANTS,
V.
WAL-MART STORES, INC., D/B/A WAL-MART,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of McHenry County. No. 95--LA--381 Honorable Michael T. Caldwell, Judge, Presiding.

The opinion of the court was delivered by: Justice Inglis

Plaintiffs, Heidi and Kent Happel, appeal the judgment of the circuit court of McHenry County granting summary judgment in favor of defendant, Wal-Mart Stores, Inc., and denying plaintiffs' motion to amend their complaint. The court held that defendant had no duty to inform either plaintiff Heidi Happel or her physician that Heidi was potentially fatally allergic to a prescription drug; it also denied plaintiffs' motion to amend their complaint to add counts sounding in wilful and wanton misconduct, fraud, and battery. We affirm in part, reverse in part, and remand the cause.

The following facts are undisputed. On August 4, 1993, Heidi contacted her physician, Dr. Ted Lorenc, looking for a more effective pain reliever to ease her menstrual cramps. Heidi was allergic to aspirin, acetaminophen, and ibuprofen and was therefore unable to take those or related drugs. Dr. Lorenc prescribed Toradol, a nonsteroidal anti-inflammatory drug (NSAID), and his office telephoned the prescription to defendant.

Heidi had been to defendant's pharmacy approximately six times before August 4, 1993, to have other prescriptions filled. Each time she had a prescription filled at defendant's pharmacy, she was asked by pharmacy workers whether she had any drug allergies, and each time she replied that she was allergic to aspirin, acetaminophen, and ibuprofen. Defendant required its pharmacy to solicit information from its customers concerning drug allergies before filling a prescription to avoid dispensing drugs to which the customers were allergic. Two of defendant's pharmacists testified in their depositions that Heidi's allergies were entered into the pharmacy's computer system at some time prior to August 4, 1993. In addition to the information contained in the pharmacy's computer system, to which the employees had access on August 4, Heidi's allergies to aspirin, acetaminophen, and ibuprofen were handwritten on the prescription for Toradol.

Toradol is an NSAID and is contraindicated for persons allergic to aspirin and other NSAIDs. Despite their knowledge that Heidi was allergic to aspirin, acetaminophen, and ibuprofen, plaintiffs were unaware that those drugs belonged to the NSAID class of drugs or that Heidi was allergic to drugs belonging to that class of drugs and should not take any drugs belonging to that class. Plaintiffs had not heard of or used Toradol before August 4, 1993.

Pharmacist Florence Bowser, who was the only pharmacist working at defendant's pharmacy on August 4, 1993, testified at her deposition that she had no independent recollection of filling Heidi's prescription on that day. Bowser testified that she knew that Toradol was contraindicated for persons allergic to aspirin and other NSAIDs.

Bowser also testified that pharmacists are required to know a customer's drug allergies and contraindications. She testified that, according to her custom and practice, when she tried to fill a Toradol prescription for a person allergic to aspirin and NSAIDs, a contraindication alert would have flashed across the computer screen that would have halted the prescription process by preventing the pharmacist from printing the prescription label or entering the charges. Bowser testified that the process could be continued only if a pharmacist overrode the contraindication alert. Bowser further testified that defendant's policies required the pharmacist to contact the prescribing physician and inform him of the contraindication for his patient. Bowser testified that there was no record or indication that Heidi's prescribing physician, Dr. Lorenc, had been contacted about the contraindication in this case.

On August 4, 1993, Kent visited defendant's pharmacy to have Heidi's prescription filled. Before the prescription was filled, a pharmacy employee asked Kent about Heidi's drug allergies and Kent informed the worker that Heidi was allergic to aspirin, acetaminophen, and ibuprofen.

Both Bowser and defendant's pharmacy manager, Steven Odes, testified during deposition that the only way Heidi's Toradol prescription could have been filled was to use a special code to override the contraindication alert. Neither Dr. Lorenc nor his staff received a call from defendant advising that Toradol was contraindicated for Heidi, and defendant has not produced a record to indicate that the pharmacy contacted Dr. Lorenc. Bowser testified that it was her custom and practice to document any conversation with a physician either on the prescription or in the patient's computer record.

Dr. Lorenc testified in his deposition that, at the time he prescribed Toradol for Heidi, he did not know that it was contraindicated for patients with allergies to aspirin or other NSAIDs. Dr. Lorenc further testified that, had he known of the contraindication, he would not have prescribed it for Heidi.

Heidi began to feel the onset of respiratory distress after taking the first dose of Toradol. She began a nebulizer breathing treatment and called defendant to determine if there were any reason that she would be having a reaction to Toradol. Her first call was disconnected. Heidi called again and was informed that there was no reason for her to be experiencing a reaction and that she need not worry. Heidi then called her previous pharmacist, who was aware of her drug allergies, and he advised her to begin the nebulizer treatment if she had not yet done so and to go to the emergency room if her condition worsened. Heidi went to the emergency room, where she was found to be experiencing anaphylactic shock. Heidi testified that, as a result of taking Toradol, she currently experiences more frequent and intense asthma episodes and that she also experienced seizures and an exacerbation of multiple sclerosis.

On September 30, 1994, plaintiffs filed this negligence action against defendant and Dr. Lorenc. On March 8, 1999, defendant filed a motion for summary judgment. On March 15, 1999, plaintiffs settled with Dr. Lorenc and dismissed him from their complaint. Plaintiffs then filed motions to amend their pleadings and to add prayers for punitive damages, which were denied by the trial court.

The trial court also denied defendant's motion for summary judgment. Defendant filed a motion to reconsider, arguing that defendant neither owed plaintiff a legal duty to warn nor voluntarily assumed such a duty. On September 17, 1999, the trial court granted summary judgment in favor of defendant and denied plaintiffs' motion to amend their pleadings. Plaintiffs timely appeal.

Following plaintiffs' notice of appeal, we granted leave to the National Association of Boards of Pharmacy (NABP) to file an amicus curiae brief supporting plaintiffs' arguments. We also granted leave for the National Association of Chain Drug Stores to file an amicus curiae brief supporting defendant's arguments. Defendant filed a motion in this court seeking to strike the NABP's brief for including materials outside the record. We ordered defendant's motion taken with the case. The NABP filed a response to defendant's motion and defendant filed a motion to strike the response, arguing that an amicus does not have the right to engage in motion practice. We do not believe that, merely by responding to defendant's motion, the NABP has engaged in motion practice before this court. Additionally, defendant's reliance upon Zurich Insurance Co. v. Raymark Industries, Inc., 118 Ill. 2d 23, 59-60 (1987), is inapposite, as there the amicus filed a motion to strike the brief of another amicus. Here, the NABP merely filed objections to defendant's motion. Thus, we deny defendant's motion to strike the NABP's response. Last, ...


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