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
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 ...