Summary
Holding that misfilling pharmacists are a product seller
Summary of this case from Henderson v. CVS PharmacyOpinion
No. CV 03 0193669
October 7, 2003
MEMORANDUM OF DECISION RE MOTION TO STRIKE
The plaintiff, Stephen Stanko, filed a four-count complaint against Elaine Bader and Stop and Shop Supermarket, Inc. d/b/a Stop and Shop Pharmacy (Stop and Shop or defendant). According to the complaint on April 17, 2002 the plaintiff went to the pharmacy department at Stop and Shop in Norwalk to fill a prescription for Requip, a drug used to treat the effects of Parkinson's disease. However, instead of correctly filling the prescription for Requip, the defendant Bader placed risperidone, an anti-psychotic drug, in the bottle labeled for Requip and sold it to the plaintiff. Four days later, after ingesting multiple doses of the risperidone, the plaintiff's symptoms worsened.
After calling Stop and Shop to inquire about the medication, Stop and Shop sent an employee to the plaintiff's home to correct the mistake. The employee told the plaintiff that he was given the wrong dosage of Requip, but never mentioned that the bottle contained risperidone. Three days later the plaintiff became "disoriented" and fell to the floor and remained there for more than twenty-four hours. He was then hospitalized and has suffered permanent injuries.
On February 20, 2003 the defendants filed a motion to strike (# 102) counts three and four. Counts three and four are directed solely at Stop and Shop and contain claims for strict products liability and recklessness, respectively. The plaintiff filed opposition papers.
For some reason the defendants filed a duplicate motion to strike (#107), which is identical to the first with the exception that the second has copies of different cases attached.
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 629, 804 A.2d 180 (2002). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a . . . motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Citation omitted; internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000).
Count three alleges a products liability claim. A products liability claim "includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product." (Emphasis added.) General Statutes § 52-572m(b). Products liability claims also include, inter alia, "all actions based on . . . strict liability in tort [and] negligence." Id.
The defendant argues that the filling of a prescription by a pharmacy is "not the sale of a product" within the meaning of the Connecticut's Products Liability Act, General Statutes § 52-572m et seq. (CPLA). The defendant further contends that the dispensing of a prescription drug is more akin to a professional service and not product sales. The plaintiff argues that prescription drugs are products within the CPLA and that a pharmacy is not a service business. As set forth below, this court agrees with the plaintiff.
The first issue to be decided is whether a misfilled prescription drug qualifies as a defective "product" under the CPLA. Initially, it is important to note that the CPLA does not define the term "product," see Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987); nor have the appellate courts explicitly determined that prescription drugs are "products" under the products liability statute. Interestingly, in Vitanza v. Upjohn Co., 257 Conn. 365, 778 A.2d 829 (2001), the Supreme Court ruled that the learned intermediary doctrine remains a viable affirmative defense in products liability actions against a drug manufacturer. If a prescription drug was not a "product" under the CPLA, the Supreme Court would have certainly not reached this conclusion.
This court previously ruled on this precise issue. In Stevens v. Romer, Superior Court, judicial district of Stamford/Norwalk, Docket No. CV 980168402 (March 24, 1999, D'Andrea, J.) ( 24 Conn. L. Rptr. No. 8, 279), this court denied a motion to strike on facts nearly identical to the case at bar. In Stevens, the plaintiff sued a pharmacy for products liability for dispensing the wrong medication. This court ruled that when a pharmacy misfills a prescription, a plaintiff can allege that the "product" was defective. Id. 280, citing Potter v. Pneumatic Tool Co., 241 Conn. 199, 211, 694 A.2d 1319 (1997).
In this case, the plaintiff alleges that his doctor prescribed Requip. However, when refilling his prescription, the defendant incorrectly sold him risperidone. This court finds no reason to exempt prescription medication from the definition of "product" under the CPLA, thus the plaintiff's complaint sufficiently alleges that he was injured by a defective product.
The next issue involves whether a pharmacy is a "product seller" under the CPLA. A products liability claim can only be asserted against one who is a "product seller." General Statutes § 52-572m(a); Zichichi v. Middlesex Memorial Hospital, supra, 204 Conn. 403; Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 126, 818 A.2d 769 (2003). Whether the defendant is a "product seller" is a question of law for the court to decide. Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 72, 579 A.2d 26 (1990). Under the CPLA, a "product seller" is defined as "any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption." (Emphasis added.) General Statutes § 52-572m(a). On its face, this definition encompasses the defendant's retail pharmacy business because the defendant's business involves retail sales of prescription medication to consumers.
The defendants argue that its pharmacy is a service and, consequently, cannot be held liable in products liability. "Once a particular transaction is labeled a `service,' as opposed to the sale of a `product,' it is outside the purview of our product liability statute." Zichichi v. Middlesex Memorial Hospital, supra, 204 Conn. 403. Although our appellate courts have not decided this issue, the Superior Court, in Altieri v. CVS Pharmacy, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 020171626 (December 13, 2002, McWeeny J.) ( 33 Conn. L. Rptr. 524), cited by the defendant, ruled that the defendant-pharmacy was "primarily furnishing a service" and not subject to the products liability statute. However, this court finds Alteri unpersuasive. First, that decision relied solely on a California decision based on a manufacturer's design defect that specifically excluded from its holding cases involving pharmacies that fail to exercise "due care." Murphy v. E.R. Squibb Sons, Inc., 40 Cal.3d 672, 676, 710 P.2d 247 (1985).
Second, the definition of "product seller" under the CPLA does not address hybrid transactions, those that, arguably, involve a combination of sales and service. In Truglio v. Hayes Construction Co., 66 Conn. App. 681, 684, 785 A.2d 1153 (2001), the court looked to the commentary of the Draft Uniform Products Liability Act, upon which the CPLA was based, see Potter v. Pneumatic Tool Co., supra, 241 Conn. 230, for guidance into the meaning of "product seller." That commentary suggested that "a party be considered a product seller where a sale of a product is a principal part of the transaction and where the essence of the relationship between the buyer and seller is not the furnishing of professional skill or services." (Emphasis in original.) Truglio v. Hayes Construction Co., supra, 66 Conn. App. 685, citing, Fed. Reg. 3003. Similarly, courts have looked to the nature of the contract. Acmat Corp. v. Jansen Rogan Construction, Superior Court, judicial district of New Britain, Docket No. CV 96 0474249 (Aug. 23, 1999, Robinson, J.) ( 25 Conn. L. Rptr. 463).
Draft Uniform Products Liability Law, § 102(1), 44 Fed. Reg. 2996, 2997-98 (1979).
In this case, the plaintiff went to the pharmacy to purchase a prescription drug and nothing more. Although the filling of a prescription may involve some service, such as checking for conflicts in medication, it seems clear that the plaintiff primarily expected to receive Requip, a drug prescribed by his doctor. This court finds that the defendant pharmacy is a "product seller" under the CPLA, because the principal part of the transaction was the sale of medication.
The defendant also moves to strike the fourth count (recklessness) for legal insufficiency. To determine whether the plaintiff's complaint sufficiently states a cause of action for recklessness, this court must define reckless behavior. "Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them." Frillici v. Westport, 264 Conn. 266, 277-78 (2003). "It is well established that causes of action for negligence and [recklessness] are separate and distinct causes of action. There is a substantial difference between negligence and [reckless] conduct, and a complaint should employ language explicit enough to inform the court and opposing counsel clearly that [reckless] conduct is being asserted." Warner v. Leslie-Elliot Constructors, Inc., 194 Conn. 129, 138, 479 A.2d 231 (1984).
In this case, recklessness was sufficiently alleged in the complaint. The plaintiff alleged that he called the defendant's pharmacy to inform it about the wrong medication he was given. The defendant sent an employee to the plaintiff's home to retrieve the incorrect prescription and supply the correct medication. The plaintiff next alleges that the defendant's employee told the plaintiff that he was simply given the "wrong dosage," even though, by implication, the defendant knew that the plaintiff had ingested risperidone. These allegations, if proven, could evidence a reckless disregard for the plaintiff's safety and welfare.
Accordingly, defendant's motion to strike count three (products liability) and count four (recklessness) is denied.
BY THE COURT
D'ANDREA, J.