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May 6, 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


Plaintiffs Heidi and Kent Happel brought this action against defendant Wall-Mart Stores, Inc. d/b/a Wal-Mart Pharmacy (Wal-Mart) alleging negligence, loss of society, willful and wanton misconduct and battery. On February 3, 2004, this court entered an order denying defendant's motion to dismiss counts III and IV. Defendant now seeks to clarify that order by striking part of count HI, and renews its motion to dismiss count IV. For the following reasons, defendant's motion to clarify is granted, its motion to strike is granted, and its motion to dismiss is denied.

Plaintiffs allege that defendant's employees filled a Toradol prescription for Heidi while knowing that she was allergic to non-steroidal anti-inflammatory drugs (NSAIDs). They claim that the employees intended to cause harm to Heidi and that, as a result of taking the drug, she suffered severe, long-term medical problems.*fn1

  Defendant's motions to clarify and strike concern plaintiff's desire to seek punitive damages. As the court has heretofore stated, the Illinois Civil Code of Civil Procedure and Healing Arts Malpractice Act (HAMA) protects certain defendants from punitive damages for malpractice. 735 ILCS 5/2-1115. A plaintiff may however seek punitive damages for an intentional tort by such a defendant Grant v. Petroff, 684 N.E.2d 1020, 1027 (Ill.App.5th Dist 1997).

  Plaintiffs originally attempted to state a claim for "intentional misconduct," which we determined was not a specific intentional tort under Illinois law. While dismissing that claim without prejudice on July 2, 2003, we recognized that HAMA and state court decisions strictly limit the situations in which a plaintiff may seek punitive damages for an intentional tort while simultaneously claiming malpractice. A plaintiff must allege an intentional tort other than malpractice. We stated in our February 3, 2004 order that the threshold for proving willful and wanton misconduct is somewhat lower than intentional harm. See Burke v. 12 Rothschild's Liquor Mart, Inc., 593 N.E.2d 522, 531 (Ill. 1992)(citing the Restatement (Second) of Torts § 500, Comment g, finding that the standard is essentially the same as recklessness — somewhere above negligence). To the extent that count III simply alleges reckless malpractice, HAMA prohibits the awarding of punitive damages, even for willful and wanton misconduct — a claim for which punitive damages are ordinarily awarded. Id. at 532. And they are awarded because willful and wanton conduct is qualitatively different from simple negligence. Willful and wanton conduct may justify punitive damages, but it is not, however, an independent tort, so far as we know.

  Plaintiffs allege that defendant's conduct crossed a line, where it effectively ceased to be malpractice and was instead an intentional tort, at which point plaintiffs may seek punitive damages. See Grant, 684 N.E.2d at 1027. This is the point where plaintiffs' allegations cease to be of willful and wanton misconduct and become battery. Plaintiffs cannot therefore seek punitive damages for count III (though they may continue to pursue the claim as a species of malpractice), and the corresponding prayer for relief is stricken.

  Defendant also renews its motion to dismiss count IV, arguing that the alleged facts do not support a battery claim.*fn2 To state such a claim, a plaintiff must allege that the defendant intended to cause a harmful contact, that harmful contact resulted and that the plaintiff did not consent Cohen v. Smith, 648 N.E.2d 329, 332 (Ill.App.5th Dist. 1995). The contact requirement may be met by showing that the defendant caused the plaintiff to come into contact with a foreign substance in a way that may reasonably be regarded as offensive. Mink v. University of Chicago, 460 F. Supp. 713, 718 (N.D. Ill. 1978), quoting Restatement (Second) of Torts § 18, Comment c at 31.

  In Mink, the plaintiffs were administered diethylstilbestrol (DES) as part of a study to determine DES' value in preventing miscarriages. 460 F. Supp. at 715. The plaintiffs did not know that they were being administered the drug and claimed that it resulted in increased risks of cancer to their children. Id. The court determined that, under Illinois law, there are two distinct theories for malpractice cases resulting from lack of consent to a procedure. Id. at 717. In the first type of case, a plaintiff may claim negligence if the defendant fails to disclose adequate information to allow the plaintiff to make a well-reasoned decision. Id. at 718. In the second type, a plaintiff may state a claim for battery if there is a complete absence of consent to the procedure. Id. The court held that Mink was of the second variety. Even though the plaintiffs themselves Ingested the pills, they did not know they were taking part in an experiment Id. at 718. The fact that they consented to treatment for prenatal care did not give defendants the right to treat them in any manner. Id. Instead, that consent was limited to acts that were substantially similar to those to which there was actual consent Id. Testing a new use for a drug went beyond those limits. Id.

  In Moore v. Eli Lilly and Co., 626 F. Supp. 365, 366 (D. Mass. 1986), plaintiffs claimed that they were harmed by defects in the arthritis drug Oraflex. They claimed that the defendants fraudulently misrepresented facts relating to the drug's defective nature. Id. In determining that the plaintiffs could not state a claim for battery, the court distinguished Mink by stating that the plaintiff could only show a lack of informed consent Id. at 368. Because the patient was aware that he was being given some form of a drug, he must rely on a negligence action. Id., citing, Mink, 460 F. Supp. at 717.

  While this court has not found any cases with facts identical to those in this case, we believe that it is closer to Mink than to Moore. Although Heidi actually ingested the Toradol knowing that she was taking the medication, she had no idea that the defendant's employees allegedly gave her a drug that effectively amounted to poison. If this claim is true, the act completely lacked consent Heidi's allergy to NSAIDs was different from a potential side effect of medication in that it was virtually certain to cause her harm. Plaintiffs are not claiming that Heidi required more information to make her decision, but that defendant should not have filled her prescription at all.

  This is not a situation where a plaintiff merely suffered because of an "undisclosed inherent complication with a low probability," lacking only some of the information necessary to make an informed choice. See Mink. 460 F. Supp. at 717, quoting, Cobbs v. Grant, 502 P.2d 1, 8 (Cal. 1972). Instead, plaintiffs allege that defendant actively set out to cause harm to Heidi. While they bear a heavy burden in proving the necessary intent, if they are able to do so, plaintiffs may be able to prevail on the claim for battery and seek punitive damages for that intentional tort.


  For the foregoing reasons, defendant's motion to clarify is granted, its motion to strike is granted, and ...

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