United States District Court, N.D. Illinois
February 3, 2004.
HEIDI HAPPEL and KENT HAPPEL, her husband, Plaintiffs
WAL-MART STORES, INC., a Delaware corporation, d/b/a WAL-MART PHARMACY, Defendant
The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Heidi and Kent Happel brought this action against
defendant Wal-Mart Stores, Inc. d/b/a Wal-Mart Pharmacy (Wal-Mart)
alleging negligence, loss of society, willful and wanton misconduct and
battery. Defendant now moves to dismiss Counts II and IV, the claims for
willful and wanton conduct and battery, which were added as part of
plaintiffs* second amended complaint on July 24, 2003. For the following
reasons, defendant's motion is denied. We also order plaintiffs to
authorize discovery of Heidi's relevant mental health records, subject to
an appropriate protective order.
On August 4, 1993, Kent Happel entered a Wal-Mart pharmacy and picked
up a prescription for the drug Toradol, for his wife Heidi, which had
been phoned in earlier that day by Dr. Terrence Lorenc. According to
plaintiffs, Wal-Mart's computer contained information showing that Heidi
was allergic to aspirin and ibuprofen, both in the class of drugs known
as non-steroidal anti-inflammatory drugs (NSAIDs). Neither Kent nor Heidi
was aware that Toradol was an NSAID, nor had they any reason to believe
that Heidi would be
allergic to the medicine.
Plaintiffs allege that Wal-Mart's computer system would have displayed
a warning when Kent asked for the Toradol because of Heidi's allergies to
other NSAIDs. They further allege that Wal-Mart's computer system will
not allow a prescription label to be printed after such a warning, unless
the pharmacist manually overrides the system. Also, they allege that
store policy prevents the pharmacist from doing so without first speaking
to the prescribing physician. Plaintiffs claim that one or more Wal-Mart
employee noticed the warning and knew that Toradol would have a harmful
effect on Heidi, and printed the prescription, intending to cause her
harm. After taking the Toradol, Heidi allegedly suffered severe,
long-term medical problems as a result of her allergic reaction to the
Plaintiffs Initially brought suit in the Circuit Court of Cook County,
Illinois, and that lawsuit was transferred to McHenry County. On April
20, 1999, plaintiffs sought leave to amend their complaint to add a claim
for willful and wanton conduct, which motion was denied on July 16, 1999.
On August 9, 1999, plaintiffs again sought leave to amend the complaint,
this time to add claims for battery and fraud. On September 17, 1999, the
court denied their motion, and granted summary judgment in favor of the
defendant On appeal, the appellate court reversed the granting of summary
judgment but affirmed the court's denials of leave to amend the
complaint, and further ruled that plaintiffs had waived appellate review
of their claim for willful and wanton conduct Happel v. Wal-Mart
Stores, Inc., 316 Ill. App.3d 621, 737 N.E.2d 650 (2nd Dist. 2000).
Defendant appealed that decision but it was affirmed by the Illinois
Supreme Court Happel v. Wal-Mart Stores. Inc., 199 Ill.2d 179,
766 N.E.2d 1118 (2002). On remand, plaintiffs voluntarily dismissed
the McHenry County action and refilled this action in Cook County, at
which time defendants removed the case to this
Plaintiffs' first amended federal complaint, filed on March 4, 2003,
contained a claim for intentional misconduct, which was dismissed on July
2, 2003, on defendant's motion. Happel v. Wal-Mart Sores. Inc.,
2003 WL 21518570 (N.D. Ill. 2003). In so doing, this court held that
plaintiffs' intentional tort claims were not barred by the state court
decisions and offered the plaintiffs the opportunity to state a viable
claim for an intentional tort On July 24, 2003, plaintiff's filed their
second amended complaint, adding claims for willful and wanton misconduct
Motion to Dismiss
In deciding a Federal Rule of Civil Procedure 12(b)(6) motion to
dismiss, we must assume the truth of all well-pleaded allegations, making
ail Inferences in the plaintiff's favor. Sidney S. Arst Co. v.
Pipefitters Welfare Educ. Fund, 25 F.3d 417, 420 (7th Cir. 1994).
The court should dismiss a claim only if it appears "beyond doubt that
the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957). While the complaint does not need to provide the
correct legal theory to withstand a Rule 12(b)(6) motion, it must allege
all of the elements necessary to recover. Ellsworth v. City of
Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert denied,
415 U.S. 1047 (1986).
At issue is plaintiffs' desire to seek punitive damages. The Illinois
Code of Civil Procedure and Healing Arts Malpractice Act (HAMA) impose a
duty of care upon Wal-Mart, when it acts as a pharmacist, in exchange for
protection from "punitive, exemplary, vindictive or aggravated damages."
735 ILCS 5/2-1115. A plaintiff may state a malpractice claim subject to
HAMA's limitations, as well as an intentional tort claim for which
punitive damages may
be available. Grant v. Petroff, 291 Ill. App.3d
795, 805, 684 N.E.2d 1020, 1027 (5th Dist. 1997). Defendant claims that
plaintiffs' earlier, unsuccessful attempts to add such intentional torts
to their complaint preclude them from now including such claims. This
court must give the earlier state court rulings the same effect as would
be given by the state courts of Illinois. Paine Webber Inc. v.
Farnam, 870 F.2d 1286, 1290 (7th Cir. 1989); 28 U.S.C. § 1738.
When an issue of law or fact is argued and decided, the determination is
conclusive in any subsequent action between the same parties, as to all
subsequent claims. Id.
As stated in this court's Memorandum Opinion and Order of July 2, 2003,
we are unable to look at the exact reasoning used by the circuit court
when denying plaintiffs* motions for leave to amend their complaint
Likewise, the appellate court's decision dealt only with the sufficiency
of the battery allegations, finding that plaintiffs did not properly
allege intent. Taken together, we cannot say that the state courts
precluded the possibility of plaintiffs prevailing on a properly pled
complaint for either willful and wanton misconduct or for battery. At no
point in this litigation has any court entered a judgement determining
the ultimate state of facts or the final rights and responsibilities of
the parties that would be binding on subsequent disputes. Garrison
v. Community Consol. School Dist. No. 65,
88 Ill. App.2d 158, 169, 232 N.E.2d 148, 153-54 (1st Dist. 1967).
Defendant contends that the appellate court clearly stated that
plaintiffs waived their right to state a claim for willful and wanton
misconduct See Happel, 737 N.E.2d at 657. While that
opinion is not entirely clear, it appears that the appellate court held
only that plaintiffs could not raise any arguments about the willful and
wanton misconduct claim as part of that appeal. Nothing in that, or any
of the other state court opinions, forecloses the possibility of
plaintiffs subsequently attempting to file a new claim for willful and
misconduct See Barnett v. Zion Park Dist., 171 Ill.2d 378,
384, 665 N.E.2d 808, 811 (1996) (failure to incorporate previously
dismissed allegations in the final complaint constitutes waiver of
appellate review of those claims).
Defendant is correct in its assertion that, even if plaintiffs prevail,
the willful and wanton misconduct claim is not sufficient for plaintiffs
to recover punitive damages. While state courts in Illinois have never
gone as far as the Seventh Circuit, Davis v. U.S., 716 F.2d 418,
426 (7th Cir. 1983) (stating that willful and wanton misconduct is
basically a heightened form of negligence), they recognize that willful
and wanton misconduct is essentially the same standard as recklessness.
Burke v. 12 Rothschild's Liquor Mart. Inc., 148 Ill.2d 429,
593 N.E.2d 522, 531 (holding, after a lengthy discussion of the meaning
of willful and wanton conduct, that such conduct was qualitatively
different than negligence and could not be compared to negligence in
order to reduce plaintiff's recovery). As stated in this court's order
on July 2, 2003, this is not enough to recover punitive damages because
of the limitations of HAMA. Plaintiffs do however sufficiently allege the
elements of willful and wanton misconduct so as to survive a motion to
Finally, defendant argues that plaintiffs fail to properly state a
claim for battery because they do not allege actual physical contact and
they fall to allege subjective intent In support of its first contention,
defendant does no more than compare the facts of this case to those in
Grant where the court allowed plaintiffs to file a HAMA
malpractice claim, along with a battery claim, following an
unconsented-to tubal ligation. 291 Ill. App.3d 795, 684 N.E.2d 1020.
This alone is not enough to defeat plaintiffs' claim for battery. We note
that while defendant's alleged wrongdoing differs significantly from that
in Grant the parties do not direct us to any cases resolving
the Issue of whether the alleged conduct was sufficient to
constitute a battery under Illinois law. Because the
parties have not substantially briefed this issue we deny, for now,
defendant's motion to dismiss the claim.
While denying the motion, we reiterate what we said in our order dated
July 2, 2003: plaintiffs bear a heavy burden in proving subjective intent
to cause harm. Happel, 2003 WL 21518570 (plaintiffs'
allegations require "proof of a subjective intent, a very high threshold
indeed"). The sufficiency of plaintiffs' evidence is not the subject of
this motion, though it may prove to be at issue in a summary judgment
motion. At this stage, plaintiffs sufficiently allege the elements of
battery and therefore survive this motion to dismiss.
Motion for Qualified Protective Order
We next turn to an ongoing discovery dispute surrounding the disclosure
of Heidi's medical records to defendant On March 25, 2003, we granted
defendant's motion (without objection by plaintiffs) and directed
plaintiffs to sign authorizations giving defendant access to the records.
After receiving the authorizations, plaintiffs refused to sign the
documents and filed objections to the discovery, arguing that this court
lacked authority to order her to sign, and that the authorization forms
were over-broad. Defendant then filed motions to strike plaintiffs'
objections, and seeking immediate disclosure of the records. It
subsequently filed a motion to compel discovery compliance and to revise
the discovery plan. Plaintiffs responded by filing a motion seeking a
qualified protective order, claiming that such an order was the only
appropriate way for defendant to obtain the information.
As the supervisor of discovery, we clearly have the authority to
require plaintiffs to sign the authorizations. They cannot bring Heidi's
mental health into Issue and then refuse access by the defendant to
relevant Information. Discovery of this information through such
authorizations is clearly allowed by both federal and state law.
See Health Insurance
Portability and Accounting Act of 1996, Pub.L. No. 104-191;
740 ILCS110/10. We recognize that such information is personal, and
should be protected to the greatest extent possible. A protective order,
as suggested by plaintiffs, may be the most efficient way to accomplish
this. The order plaintiffs seek, however, is far too restrictive,
requiring separate authorizations for a great number of relevant
documents. Defendant, and its expert witness, must have an adequate
opportunity to review Heidi's mental health records, as well as other
relevant medical records.
We will therefore enter an appropriate protective order limiting access
to tile medical records to defendant, and its experts, and limiting the
duration of such access to the time necessary for this litigation. This
should ensure Heidi's privacy from third party access to her medical
information. At the same time, we order plaintiffs to immediately
authorize access by defendant to all possibly relevant medical records,
and that includes all the records sought.
For the foregoing reasons, defendant's motion to dismiss is denied.
Plaintiffs' motion in support of a qualified protective order is granted
in part; defendant's motion to compel discovery compliance is granted in
part, and its motion to strike plaintiffs' objections is denied as moot.
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