Marston v. Walgreen Co.

• Decision Date: 31 March 2009
• Docket Number: No. 1-07-0209.,1-07-0209.
• Citation: 907 N.E.2d 851,389 Ill. App.3d 337
• Parties: Richard MARSTON, as Independent Administrator for the Estate of Leonard J. Kulisek, Plaintiff-Appellee, v. WALGREEN COMPANY, an Illinois Corporation, Defendant-Appellant (Mia Crickman and Charles Kulisek, Intervening Plaintiffs-Appellees and Cross-Appellants; James Wilmes, Defendant; The Department of Human Services, Intervenor).
• Court: United States Appellate Court of Illinois

907 N.E.2d 851

389 Ill. App.3d 337

Richard MARSTON, as Independent Administrator for the Estate of Leonard J. Kulisek, Plaintiff-Appellee, v. WALGREEN COMPANY, an Illinois Corporation, Defendant-Appellant (Mia Crickman and Charles Kulisek, Intervening Plaintiffs-Appellees and Cross-Appellants James Wilmes, Defendant The Department of Human Services, Intervenor).

No. 1-07-0209.

Appellate Court of Illinois, First District, Second Division.

March 31, 2009.

Mayer, Brown, Rowe & Maw LLP, Chicago (Michele Odorizzi, of counsel) and Johnson & Bell, Ltd., Chicago (Thomas J. Andrews and Michael C. Holy, of counsel), for Appellant.

David A. Axelrod & Associates, P.C., Chicago (David A. Axelrod and Stacey L. Leinheiser, of counsel), for appellee Richard Marston.

S.C. Lucas Law Offices (Scott C. Lucas, of counsel) and R.D. Skelton, Ltd. (Richard D. Skelton, of counsel), and Law Offices of Lynn Dowd, Naperville (Lynn D. Dowd, of counsel), for appellees Mia Crickman and Charles Kulisek.

National Association of Chain Drug Stores, Inc., Alexandria, VA, (Don L. Bell, II, of counsel), amicus curiae.

Law Office of Lawrence R. Kream, LLC, Chicago (Lawrence R. Kream, of counsel), for amicus curiae.

Justice CUNNINGHAM delivered the opinion of the court:

In this personal injury, wrongful death, and survival action in October 2006, a jury found defendants Walgreen Company (Walgreen) and Walgreen's pharmacist, James Wilmes,¹ to have been negligent in providing the wrong prescription drugs to Leonard Kulisek, then 77 years old. This event occurred on January 1, 2001, at a Walgreen's store in Schaumburg, Illinois. Kulisek suffered grave injuries and ultimately death.² Following trial, the jury awarded to plaintiff Richard Marston, as independent administrator of Kulisek's estate, compensatory damages in the amount of $6,351,107, and $25 million in punitive damages. The trial judge then divided the punitive damages, allocating $100 to Richard Marston in his administrative capacity, $8,333,333.33 plus accrued postjudgment interest to plaintiff Marston's attorneys, and $16,666,566.67 plus postjudgment interest to the State of Illinois, Department of Human Services (the Department). This allocation to the State of Illinois was pursuant to section 2-1207 of the Code of Civil Procedure (735 ILCS 5/2-1207 (West 2006)), which gives the trial court the discretion, on its own motion, to apportion a punitive damages award among the plaintiff, the plaintiff's attorney, and the Department of Human Services of the State of Illinois. Walgreen appealed the judgment. After the apportionment had taken place, a cross-appeal from the allocation of the punitive damages was filed by Mia Crickman and Charles Kulisek (Mia and Charles), the niece and nephew of the decedent Leonard Kulisek. They were not parties to the original lawsuit, but were permitted by the circuit court to intervene as plaintiffs following the ruling on apportionment of the punitive damages. We have permitted the Department to intervene on appeal.

Walgreen's contentions on appeal are: (1) punitive damages for personal injuries cannot, as a matter of law, survive the death of the injured party; (2) even if punitive damages could legally have been awarded, Walgreen should have been granted judgment in its favor on that issue as a matter of law; (3) if the issue of punitive damages did not belong in the case, then a new trial on compensatory damages is required because of prejudicial evidence admitted solely because of and directly related to punitive damages; (4) Walgreen is entitled to a new trial because of numerous trial errors; and (5) the compensatory and punitive damages were excessive, in part, because the evidence failed to establish that some of the decedent's injuries were proximately caused by his ingestion of the wrong drug.

Intervening plaintiffs-appellees and cross-appellants Mia and Charles contend: (1) the trial court possessed jurisdiction to allow them to intervene as plaintiffs and cross-appellants; (2) they have standing to intervene; (3) punitive damages are permitted after the death of the plaintiff and were awarded in a proper total amount; (4) the punitive damages should not have been allocated in the manner done by the trial court but instead should have been awarded entirely to the plaintiff; (5) alternatively, the allocation should be vacated and the cause remanded to the trial court for a new allocation hearing regarding the punitive damages; and (6) the attorney fees awarded to plaintiff Marston's attorneys are excessive.

In response to these contentions by Mia and Charles, plaintiff Marston, who does not challenge the allocation of punitive damages by the trial court, contends that the cross-appeal of Mia and Charles should be dismissed because the trial court lacked jurisdiction to entertain their motion to intervene and, further, they have no standing to intervene in the case or to participate in this appeal. He also contends that the allocation of punitive damages to his attorneys acting on behalf of Kulisek's estate was not excessive. Finally, the Department joins Marston in asserting that the cross-appeal by Mia and Charles should be dismissed because the trial court lacked jurisdiction to entertain their motion to intervene and also they lack standing to intervene. The Department defends the award of punitive damages and the allocation by the trial court. We affirm the judgment of the circuit court of Cook County on the award of compensatory damages, vacate the award of punitive damages, and dismiss the cross-appeal of Mia and Charles.

BACKGROUND

Much of the evidence adduced from the record is undisputed. Walgreen has admitted liability based upon the actions of its pharmacist (James Wilmes) in erroneously filling a medication prescription for Leonard Kulisek. However, Walgreen disputes the extent of the injuries which resulted to Leonard Kulisek. Wilmes admitted that on January 1, 2001, he erroneously filled a prescription for Kulisek. The prescription was written for an antigout medicine called allopurinol. Instead, Wilmes gave Kulisek a bottle of pills labeled "allopurinol" but containing glipizide pills, a medication used to treat diabetes by lowering a person's blood sugar. Wilmes admitted that the two drugs were in completely different locations in the drug storage area and that he should have been able to distinguish between the two drugs. He offered no explanation for the mistake.

Walgreen and Marston agree that Kulisek was injured by this mistake, but they differ on the extent of the injury attributable to Kulisek's ingestion of the glipizide. Three physicians testified to Kulisek's health prior to this incident. They were his internist of 36 years, Dr. George Podzamsky, the plaintiff's medical expert Dr. Gary Toback, a board-certified nephrologist and an internist who practiced at the University of Chicago Hospitals, and the plaintiff's other medical expert Dr. Scott Kale, a board-certified internist practicing at Rush University Medical Center. They testified generally that Kulisek, who was 77 years old at the time of this incident, had been active and self-sufficient, with no significant medical problems preventing him from leading an active life. Dr. Toback testified that Kulisek did have mild kidney disease, chronic obstructive lung disease that caused occasional shortness of breath but was relatively stable, prostate cancer that had apparently been successfully treated, and gout. But it was Dr. Toback's opinion that Kulisek was doing well and functioning at a level permitting him to participate in family and community activities.

On January 2, 2001, the day after Kulisek was given this prescription by Wilmes, and after he had taken two doses of the medicine, he became completely unresponsive. Paramedics were summoned to his home and found that Kulisek's blood sugar was extremely low. They gave him an intravenous solution of dextrose and took him to the emergency room at St. Alexius Medical Center in Hoffman Estates, Illinois. Kulisek was diagnosed as hypoglycemic (having low blood sugar). Emergency room physicians determined that this was caused by the glipizide which he had taken. They found the pills in a bottle labeled "allopurinol." Kulisek was admitted to the hospital and remained there until January 22, 2001. While there, he suffered acute kidney failure, persistent hypoglycemia, decreased mental functioning, and pneumonia. Because of his kidney problems he was placed on dialysis, which was to last until the end of his life. For the remaining 22 months of his life, Kulisek required full-time care. He underwent dialysis regularly, was hospitalized for 136 days, placed in a rehabilitation facility, had multiple surgeries, and required the insertion of a feeding tube. He suffered a stroke, had episodes of aspiration pneumonia, and became severely depressed. After leaving the rehabilitation facility on June 21, 2001, following his stroke, Kulisek required a caregiver 24 hours a day, 7 days a week. He required help in performing all activities of daily living, such as toileting and personal grooming. He could stand for only about five minutes at a time and had to use a wheelchair or walker for ambulation. He had difficulty speaking and continued to suffer from severe depression. On November 8, 2002, Kulisek directed that his dialysis be discontinued, telling a friend that he could no longer face life. He died on November 11, 2002.

The plaintiff's two medical experts, Dr. Toback and Dr. Kale, testified to a reasonable degree of medical certainty that the glipizide caused Kulisek's problems. They testified that the glipizide caused hypoglycemia, which then caused severe injury to Kulisek's kidneys, necessitating dialysis for the rest of his life. These doctors also testified, as did Walgreen's medical expert, Dr. LaPalio, that Kulisek was not suffering from symptoms of severe kidney disease before he took the...