Opinion
No. CV044009662S
May 4, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE #105
This action has been instituted by the minor plaintiff, Miranda Silber, acting through her parents Holly and Jeffrey Silber and Holly and Jeffrey Silber individually. The plaintiffs allege that the defendant pharmacy was negligent in filling a prescription for Miranda Silber because it filled the prescription using the wrong drug. It is alleged that the prescription was for Seroquil but that the defendants filled the prescription by using Serzone.
The complaint is in three counts. The first count alleges negligence. The second count alleges product liability under the Connecticut Product Liability Act. The third count sounds in either bystander emotional distress and/or the negligent infliction of emotional distress on behalf of the plaintiff parents individually.
The defendants have moved to strike the second count of the complaint on the grounds that the sale of prescription drugs by a pharmacy constituted a service rather than a sale of goods and thus a claim for personal injuries arising from an incorrectly filled prescription is not subject to the Product Liability Act.
There is a difference of opinion on this issue among Superior Court Judges. This court agrees with the opinion of Judge McWeeney in the case of Daren Altieri, Administrator of the Estate of Donna Marie Altieri v. CVS Pharmacy Inc. et al., Superior Court at Waterbury, No. X06-CV-02-017162-S; 33 Conn. L. Rptr., No. 14, 524 (January 27, 2003) in which Judge McWeeney held that a pharmacist filling a prescription is furnishing a service rather than selling a product.
This is not a situation where the drug that was provided was somehow defective or tainted. The plaintiff was allegedly given the wrong drug and thus the negligence involved relates to the service provided rather than a defect in the medication.
Therefore, the motion to strike count two should be granted.
The defendants have also moved to strike the third count of the complaint on the ground that the individual parents have failed to state a legally recognizable cause of action for either bystander emotional distress or the negligent infliction of emotional distress.
In Clark v. New Britain General Hospital et al, 2002 WL 1150726 (Conn.Super.) Judge Aurigemma held that a cause of action for the negligent infliction of emotional distress requires that the plaintiff must be in danger or at risk. See Barrett v. Danbury Hospital, 232 Conn. 242, 261 (1995). In this case the alleged negligence was committed against Miranda Silber rather than her parents. Thus a claim for the negligent infliction of emotional distress cannot survive a motion to strike.
Furthermore, with respect to bystander emotional distress, the plaintiff parents have not pled the requisite elements of such a cause of action as set forth in Clohessy v. Bachelor, 237 Conn. 31 (1996).
For the above-stated reasons, the defendants' motion to strike the second and third counts of the complaint is granted.
Thompson, J.