US Pharm. 2006;7:74-79

In terms of proper jurisdiction, what happens when a plaintiff decides to sue a defendant in a federal court for violation of an alleged breach of state-based standards of care? Looking at this question from just a slightly different perspective, what happens when a plaintiff sues a "foreign" defendant in a state court, and the defendant claims the case should be heard in a federal court by reason of "diversity jurisdiction"? In either case, the parties will argue about which court system is best able to render justice (or perhaps more correctly, both parties will try to find the court where they have the best chance of winning).1 As an informal rule, most plaintiffs prefer to sue in state courts where juries might be inclined to give a local individual the benefit of the doubt against a large corporation from a different, perhaps distant state or even country. On the other hand, corporations, whether local or foreign, prefer to litigate in the federal court systems on the premise that they will get better treatment, compared to state courts. The validity of these presumptions may be questionable from a statistical perspective.2 The very rationale of having two separate court systems is also debatable given their historical development over the last two centuries and more, when traveling between states or even within states was far more challenging than at present. Be that as it may, there are tomes written about this jurisdictional divide. Once it is determined which court system to assign a case to, the next challenge comes: Which substantive laws must govern the trial--the state laws where the plaintiff lives, the state laws where the defendant resides, or a combination? A newly decided case illustrates the point.3

 

Case History
For regular readers of this column, the case might sound familiar, as various aspects of it have appeared in this column on two prior occasions.4 The decision reviewed here constitutes the sixth opinion issued by the courts, an event that is nearly unheard of.5 This degree of scrutiny will surely mark the case as unique in the future annals of pharmacy jurisprudence.

Facts

In summary of the facts, Heidi (patient-plaintiff) made an appointment with her physician, complaining of intense menstrual cramping. The physician telephoned a prescription into the patient's pharmacy for Toradol. While there is some dispute, at least some of the records indicated that the pharmacy had a medication history on file showing that the patient reported allergies to aspirin, acetaminophen, and ibuprofen. Neither the plaintiff nor her husband had heard of Toradol or knew that it was a nonsteroidal anti-inflammatory drug (NSAID). The plaintiff stated that she had had previous prescriptions filled by the pharmacy, and in the past, pharmacy workers had asked her if she had any drug allergies. She said she always informed them that she was allergic to aspirin, acetaminophen, and ibuprofen. The pharmacy manager at the time noted that pharmacists were required to ask about drug allergies for new prescriptions. Heidi's husband stated that the pharmacy worker asked him about Heidi's allergies, and he said his wife was allergic to aspirin, ibuprofen, and Tylenol. The husband could not identify the person with whom he spoke but believed the worker was female. The pharmacy supervisor stated that there was only one female pharmacist working on the date of this incident in August 1993.

In reviewing the facts of this case, the federal trial court judge took note that:

In addition to asking the customer about any allergies, the pharmacy computer system would have informed the pharmacist who filled the order that Toradol should not be given to Heidi. As a pharmacy customer, Heidi would have had a profile stored in the pharmacy computer system. That profile would have listed her allergies. Pharmacists were required to enter prescriptions into the computer system, and if a drug was contraindicated, a warning would flash on the screen alerting the pharmacist of the potentially dangerous drug interaction. The pharmacist could proceed with filling the prescription only after calling the prescribing doctor or by manually overriding the computer warning by entering a code. It would have been improper for a pharmacist to override the computer without having first contacted the doctor. There is no record of any call to the physician or that a pharmacist manually overrode the computer in order to fill the Toradol prescription. If the computer did not contain information for a new drug, then the pharmacist would manually reference another source, such as a pharmacological guidebook in the pharmacy. The pharmacist consistently maintained that she has no recollection of the entire incident, including whether she entered the plaintiff's name and the Toradol prescription into the computer. She did acknowledge that the plaintiff's allergies would have been available to her through the computer on the day the prescription was filled.

Toradol is known to have cross-sensitivity in patients who are allergic to NSAIDs. As might have been foreseen, within 40 minutes of taking the first dose of Toradol, Heidi began having breathing difficulties and went into anaphylactic shock. She sued the prescriber and pharmacy for malpractice. The physician settled the claims against him out of court, and he was dismissed from the lawsuit.

Posturing

Before the trial against the pharmacy could take place, the plaintiff sought to amend her complaint to include allegations of intentional misconduct, along with the normal negligence and malpractice charges already made against the pharmacy. The importance of this aspect of the complaint is that if she were successful in claiming the intentional misconduct by the pharmacy, she would be entitled to seek punitive damages over and above any actual damages she suffered. The Illinois Court of Appeals and the state's Supreme Court decided the two earlier court opinions (Happel I and II, respectively). The essence of those opinions was that under Illinois law, a pharmacy does owe a limited duty to warn the patient or prescribing physician of drug contraindications when it has actual knowledge about a patient's allergic reaction to certain classes of medications. Both opinions addressed the refusal of the trial court judge to permit the plaintiff to amend her complaint to include allegations of intentional misconduct. Neither of the state courts could find any error in excluding those claims.

Following the Illinois Supreme Court decision, the defendant pharmacy "removed" the case to a federal district court based on "diversity jurisdiction."6 After doing so, the pharmacy brought a motion to the federal trial judge, asking for dismissal of the complaint. That motion was, for the most part, refused (Happel III). The pharmacy, however, came back a second time and asked the judge for dismissal of all claims against it. The essence of the dispute at this stage was to determine whether Illinois law permits a plaintiff to seek punitive damages under the circumstances presented in this case. The defendant claimed that the availability of punitive damages had been decided and refused in the first two state cases (Happel I and Happel II) and should therefore be barred in the federal case under a procedural doctrine called "law of the case."7

In Happel IV, the judge ruled that the "law of the case" doctrine bars a claim only if an issue is actually and clearly decided by another court. The federal court interpreted the state appellate court opinions as holding only that the complaint did not include factual allegations of intentional misconduct, and as such, could not support the intentional tort claims. Despite this limitation, the federal district court judge found that "there is nothing in the state decision that expressly or impliedly decides that the plaintiff's claims, if amended to include factual allegations of intentional wrongdoing, would fail." Despite this adverse ruling, the pharmacy came back once again asking the judge to "clarify" his Happel IV judgment and to dismiss the complaint, insofar that it still seeks punitive damages. In Happel V, the federal court judge reviewed the earlier proceedings and subsequent orders. He noted that Illinois has a statute that protects certain defendants from punitive damages for malpractice. The judge went on to discuss the plaintiff's claim for battery, and he determined that to state a claim, the plaintiff must allege that the defendant intended to cause a harmful contact, harmful contact resulted, and the plaintiff did not consent. The contact requirement may be met under Illinois law 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. Thus, there remained a limited right for the plaintiff to seek punitive damages.

At this stage, the pharmacy asked for summary judgment five times, and five times in three different court rooms, it had been told no in very specific language. Not wanting to take "no" for an answer, the pharmacy, for the sixth time in approximately 13 years, asked this federal judge for the third time to dismiss the case. The Happel VI opinion details the reasoning for this newly crafted message that will permit this case to stay on the docket.

This time, like so many of the others, the pharmacy tried to have the willful and wanton and battery counts dismissed using state statutes and procedures as the bases for this newest request. From the tone of the published opinion, it is obvious that this judge was getting irritated with the pharmacy (or at least its lawyers), as it keeps coming back for more bites at the apple. It is here that the crux of the differences between state judges and federal judges become apparent.

Which Laws Apply?
Oddly enough, even though the federal judge acknowledged that the case was properly in front of him on the jurisdictional diversity issues used in federal cases, he was bound to use that state's rules and procedures in determining the applicable laws. In many situations in which a federal judge is ruling on state law, there is precedence, i.e., a court of higher jurisdiction ruling in another prior case with the same or at least similar kinds of facts, such that the earlier decision will control the outcome in a subsequent case. This part of the decision-making is straightforward and is usually simple and easy to follow. The more tricky part comes when there are no state rulings from appeals courts setting out a clear interpretation of the laws at issue. In this environment, federal district court judges must take on a sort of fortune-teller role, looking into a crystal ball to determine what the state law would be if a state court were to rule on the pending issue.

In many respects, these were the kinds of decisions that the federal judge in the present case needed to address. Some of the rulings were based on precedent, which was clearly spelled out in the Illinois cases. Others required the judge to make an educated guess as to what the Illinois courts would decide. Without going into the murky waters of legalistic rationalizing, suffice it to say that the court unequivocally denied the pharmacy's pleas to have the willful and wanton claims, as well as the battery claims, dismissed. To a limited extent, the plaintiff will be able to get her claims for punitive damages to a jury.

Analysis
This case has had an enormous amount of judicial scrutiny to date. But here is the linchpin: There has not been one word stated in front of a jury that should resolve the legal dispute between the parties, and there may not yet be a trial. This case began with the manifestation of a drug allergy in August 1993. That was nearly 13 years ago. In between, these parties have been in and out of hearings and motions numerous times. Six different decisions have been issued in three different forums, and given the history of this case, it may go on even longer before a jury trial is held. Why all the hoopla? The threat of punitive damages. If this was a run-of-the-mill malpractice case, it would have been settled years ago. But with the threat of punitive damages, this pharmacy is scared enough to pull out all the ammo in its legal arsenal. Punitive damages have the potential for ruining a behemoth corporation, running its assets into an early grave. It is hard to tell if the pharmacy is fighting for its very livelihood or simply looking to bankrupt the plaintiff and/or her attorney with so much paperwork and court appearances and legal briefs and emotional ups and downs that the sane would give up. That is a strategy that could work to the benefit of the pharmacy. But watch out if it backfires and the jury decides that the pharmacy has been manipulating the system. In addition to any damages, compensatory or punitive, somebody could order the pharmacy to pay the plaintiff's lawyer costs, attorney fees, and hourly rate. All that is needed now is for cooler heads to prevail (or give up).

References

1. As used in posing these questions, the term foreign refers to a defendant, either an individual or a legally recognizable entity such as a corporation or a partnership, that is organized or legally operating under the laws of a state other than the state where the plaintiff lives or works. Every nation is foreign to all the rest, and the several states of the American Union are foreign to each other with respect to their municipal laws. 2 Wash. R. 282; 4 Conn. 517; 6 Conn. 480; 2 Wend. 411 1 Dall. 458, 463 6 Binn. 321; 12 S. & R. 203; 2 Hill R. 319 1 D. Chipm. 303 7 Monroe, 585 5 Leigh, 471; 3 Pick. 293. See: lawyerintl.com/modules/dictionary/search.php?q=foreign. Accessed May 28, 2006.

2. Bureau of Justice Statistics. See: www.ojp.usdoj.gov/bjs/welcome.html and www.ojp.usdoj.gov/bjs/civil.htm. Accessed May 28, 2006.

3. Happel v. Pharmacy (Slip Op No 02 C 771, March 8, 2006). USDC ND Ill, 2006, 2006 US D Lexis 10837.

4. Vivian JC. Learned-intermediary doctrine revisited. US Pharm. 2004;29:72-82, and Vivian JC. Law of the case: procedural doctrine. US Pharm. 2004;29:61-66.

5. There have now been six published decisions on the case to date. The first two opinions, Happel v. Pharmacy Stores, 316 Ill App 3d 621; 737 NE 2d 650 (2000) (hereafter designated as Happel I) and 199 Ill 2d 179; 766 NE 2d 1118 (2002) (hereafter designated as Happel II), were discussed in the July 2004 edition of this journal. The August 2004 edition of this column focused on three of the other opinions, 286 F Supp 2d 943, USDC Ill (2003) (hereafter designated as Happel III), Slip Op No 02 C 771(February 4, 2004), 2004 US Dist Lexis 1463, USDC Ill (hereafter designated as Happel IV), and 2004 USDC Ill; 2004 USDC Lexis 8225 (May 6, 2004) (hereafter designated as Happel V), in the federal courts. The current opinion under review this month (see note 3, supra) will be dubbed Happel VI.

6. Diversity jurisdiction is a term used in civil procedure to refer to the situation in which a U.S. district court has subject matter jurisdiction to hear a civil case because the parties are "diverse," meaning that they come from different states. Article III, § 2 of the U.S. Constitution gives the U.S. Congress the power to permit federal courts to hear such cases. The provision was included because the writers of the Constitution were concerned that where a case was brought in one state involving parties from both that state and another, the state court might be biased toward the party from its own state. Congress first exercised that power and granted federal trial district courts diversity jurisdiction in the Judiciary Act of 1789. Diversity jurisdiction is presently codified at 28USC§1322. See: en.wikipedia.org/wiki/Diversity_jurisdiction. Accessed June 12, 2006.

7. Once a judge has decided a legal question during the conduct of a lawsuit, he/she is unlikely to change his/her views and will respond that the ruling is the "law of the case." See: dictionary.law.com/default2.asp?selected=1115&bold=case||the||law||of||. Accessed June 12, 2006.

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