David A. Axelrod, representing the estate of Leonard L. Kulisek, won a $31.3 million verdict against Walgreen Co. under the Survival Act after a trial in which he argued that a drug-abusing pharmacist made an error in filling Kulisek's prescription that ultimately caused his death.

The bulk of the verdict — $25 million — came in the form of punitive damages. Including punitive damages, the award was the largest reported verdict in Illinois for an incorrectly filled prescription, said John L. Kirkton, editor of the Cook County Jury Verdict Reporter.

The Illinois Supreme Court held in Mattyasovszky v. West Towns Bus Co., 61 Ill.2d 31 (1975), that punitive damages typically are not available under the Survival Act. Courts have allowed such damages in certain circumstances, however, when a specific statute or ''strong equitable considerations'' allow for them. Froud v. Celotex Corp., 98 Ill.2d 324 (1983).

At oral argument on Tuesday, Axelrod asserted that Walgreen failed to comply with state and federal laws regulating controlled substances and that, had the pharmacy complied with those laws, it would have discovered that pharmacist James Wilmes was stealing narcotics. The jury found that Wilmes was under the influence when he filled Kulisek's prescription.

Axelrod told the appeals court that the public policy underlying the controlled substances laws should allow the imposition of punitive damages when they are violated. Wilmes apparently signed a statement admitting to stealing 86,000 doses of medication over an eight-year period, but Walgreen has said that amount was in error.

The three-judge panel hearing the case was made up of Justice Thomas E. Hoffman, Joy V. Cunningham and Leslie E. South.

In his questioning, Hoffman seemed concerned that the ''equitable considerations'' exception could be pushed too far. He noted that the plaintiff did have another remedy available in this case besides punitive damages.

''This is one of those rare cases where [the exception] should apply,'' Axelrod replied. Kulisek died from renal disease in November 2002 after suffering a series of illnesses that began with the wrongly filled prescription at a Schaumburg Walgreen pharmacy. Kulisek was supposed to receive medicine to treat gout, but instead got a drug used to treat diabetes by lowering blood sugar.

Kulisek, then 77, ingested the diabetes drug for two days in January 2001, which caused a diabetic coma that injured his brain and kidneys. He went on dialysis, which triggered a stroke that necessitated around-the-clock care until his death.

Walgreen argues that the punitive damages award should be thrown out. If it is, Walgreen it should receive a new trial on compensatory damages because the evidence on punitive damage issue was so prejudicial, the company contends. The jury awarded $6.35 million in compensatory damages.

Michele L. Odorizzi of Mayer, Brown LLP argued the case for Walgreen. She noted that the drug-control statutes Walgreen was accused of violating have no provision for punitive damages.

Odorizzi also argued that the medical causation evidence was speculative, and that evidence of Wilmes' misdeeds and Walgreen's failure to detect them were a ''thumb on the scale'' in favor of the jury finding in favor of the plaintiff.

''The $25 million punitive damages award indicated the jury really wanted to punish Walgreen,'' she said.

Cunningham seemed to question whether the causation evidence was speculative. Kulisek, who had some health problems prior to the prescription error, was living in a ''delicate balance,'' she said.

''This guy, essentially his health was like an eggshell and Walgreen did something that cracked the eggshell … and his health just oozed out,'' Cunningham said.

After trial, Cook County Circuit Judge Arthur L. Janura Jr., who has since retired, apportioned one-third of the punitive damages award to the plaintiff's attorney, and $16.75 million to the Illinois Department of Human Services. Richard Marston, a long-time friend of Kulisek and the administrator of his estate, received $100 of the award.

Marston did not challenge the apportionment of the award, and Assistant Attorney General Jan Hughes argued for the state Tuesday that it should be upheld.

However, Geneva attorney Scott C. Lucas, representing Kulisek's niece and nephew, argued that Janura's sua sponte apportionment of most of the award to the state should be overturned. However, the justices strongly questioned Lucas as to whether his clients had standing to challenge the apportionment and whether the trial court had jurisdiction to allow Lucas' clients to intervene in the case when they did.    

The case is Richard Marston, etc. v. Walgreen Co., 07-0209. 

Law Bulletin Panel Mulls Post-Death Bar to Damages 02.03.2009

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