Crumpton v. Walgreen Co.

• Decision Date: 29 June 2007
• Docket Number: No. 1-06-0734.,1-06-0734.
• Citation: 871 N.E.2d 905
• Parties: Joann CRUMPTON, as Special Administrator of the Estate of Christina Crumpton, Deceased, Plaintiff-Appellant, v. WALGREEN COMPANY, a Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

871 N.E.2d 905

Joann CRUMPTON, as Special Administrator of the Estate of Christina Crumpton, Deceased, Plaintiff-Appellant, v. WALGREEN COMPANY, a Corporation, Defendant-Appellee.

No. 1-06-0734.

Appellate Court of Illinois, First District, Fourth Division.

June 29, 2007.

A. Denison Weaver, Ltd., Chicago (A. Denison Weaver, of counsel), for Appellant.

Johnson & Bell, Ltd., Chicago (David M. Macksey and Garrett L. Boehm, Jr., of counsel), for Appellee.

Presiding Justice QUINN delivered the opinion of the court:

Plaintiff Joann Crumpton filed a wrongful death and survival action against defendant Walgreen Co. (Walgreens) following the death of her daughter, Christina. Following a trial, on October 13, 2005, the jury returned a verdict in favor of plaintiff for $875,000 and also signed a special interrogatory finding that plaintiff was 25% contributorily negligent in her daughter's death. Plaintiff appeals from orders of the circuit court granting Walgreens' motion for judgment notwithstanding the verdict (judgment n.o.v.) and denying plaintiff's posttrial motion to vacate the jury's special finding that plaintiff was 25% contributorily negligent in this case. Plaintiff also appeals from the circuit court's order denying plaintiff's supplemental post-trial motion to vacate the court's order entering judgment n.o.v., to vacate the special finding that plaintiff was contributorily negligent, and to grant plaintiff a new trial. For the following reasons, we affirm.

I. Background

This case involves the death of plaintiff's daughter, Christina, a 12-year-old girl who had a history of psychosis. Christina was under the care and treatment of a number of psychiatrists and mental health professionals at various hospitals, including Riveredge Hospital. Christina was placed on an antipsychotic medication called Risperdal. On September 2, 2002, plaintiff filled the prescription for Risperdal at Walgreens.

The prescription for Risperdal was for 90 pills, a 30-day supply, but plaintiff ran out of pills for Christina after 10 days, on September 12, 2002. Plaintiff testified that she did not notice that the pills were about to run out until there was only one pill remaining. Plaintiff testified that she attempted to use the automated Walgreens system to refill the prescription, but was not successful. Plaintiff then went to Walgreens and told the individual at the pharmacy that she had not received all of the 90 pills for the prescription. Plaintiff testified that the pharmacist told her that the computer indicated that the prescription had been properly filled and that plaintiff would need to call her doctor.

Plaintiff testified that she called Christina's therapist, Denise Hall, at Pro Care, as well as Christina's doctor, Dr. Khadija Khan, at Riveredge Hospital. Dr. Khan returned plaintiff's call the next day, September 13, 2002, and indicated that she would call Walgreens regarding Christina's prescription. Plaintiff testified that when she called Walgreens, she was told that the doctor did not call in a prescription for Christina. Plaintiff testified that Christina did not take her medication from September 12 until September 16, 2002. Plaintiff testified that during this time Christina "acted like a normal child." Plaintiff testified that she slept with Christina at night because she was concerned that Christina did not have her medication. Plaintiff testified that if she had noticed anything out of the ordinary about Christina, plaintiff would have taken Christina to the emergency room.

Plaintiff testified that on September 16, 2002, she took Christina to see Dr. Martha Zuelke, who wrote another prescription for Risperdal. Plaintiff testified that she filled the prescription at Walgreens on September 16, 2002, and Christina began taking pills again that evening. On September 17, 2002, plaintiff kept Christina home from school because she had started taking Risperdal again and plaintiff was told to monitor Christina for drowsiness. Christina spent the day with plaintiff and her baby brother. They had gone to Christina's father's place of employment for lunch, stopped for ice cream, and returned home. At some point after returning home, plaintiff asked Christina to straighten her bed. Christina went to her room and the next time plaintiff saw Christina she was hanging from the top of her bunk bed with a jump rope tied around her neck. Christina later died at the hospital.

Plaintiff testified that on September 22, 2002, she returned to Walgreens to determine if she had been shorted pills when the original prescription had been filled. Plaintiff testified that two technicians at Walgreens checked Christina's patient profile and informed plaintiff that the correct number of pills had been originally dispensed. Plaintiff then spoke with Dawn Stefek, a registered pharmacist, who gave plaintiff an additional 60 pills of Risperdal and a note, included in plaintiff's exhibits, stating "For Christina Crumpton [sic] We gave her 60 more Risperdal 0.25 mg on 9-23-02. It is possible we did not give her enough on 9-2-02."

Plaintiff's expert, Dr. Alex John Spadoni, a board-certified psychiatrist, testified regarding the nature of Christina's illness and the therapeutic effects that Risperdal had on Christina's illness. Dr. Spadoni testified that in his opinion, the dosage of Risperdal prescribed for Christina at Riveredge was appropriate because she showed remarkable improvement on it and tolerated it well with little side effects. Dr. Spadoni testified that in his opinion, Christina's suicide was causally related to not taking the Risperdal medication from September 12 to September 16, 2002. Dr. Spadoni testified that if Christina had continued taking the dosage of Risperdal as prescribed she would not have committed suicide. Dr. Spadoni also testified that Christina was showing a breakthrough symptom on September 11, 2002, when she went to her school nurse complaining of hallucinations. Dr. Spadoni testified that these breakthrough symptoms would indicate that the medication should not be changed, but perhaps increased.

Dr. Spadoni also testified that he did not feel that there were sufficient grounds to conclude that Christina was a danger to herself or anybody else to justify hospitalization when she saw Dr. Zuelke on September 16, 2002. Dr. Spadoni testified that according to everyone involved, Christina's overt behavior was not psychotic. Dr. Spadoni also testified that the fact that Christina committed suicide was not foreseeable to her psychiatrist and that he would not expect a pharmacist to foresee that Christina was at risk for suicide. Dr. Spadoni testified as follows:

"Q. However, the fact that this child committed suicide, that was not foreseeable to the psychiatrist, was it?

A. It was not.

Q. If anyone is going to be able to foresee it, a psychiatrist is the person who is best trained to be able to foresee it?

A. True.

Q. So, if it wasn't foreseeable to the psychiatrist, would you agree with me that it would not have been foreseeable to anyone at Walgreens?

A. At Walgreens? I don't quite understand the connection.

Q. If a psychiatrist could not foresee that this child was going to commit suicide, one day after she saw Dr. Zuelke, would you expect Walgreens to have considered her to be a suicide risk?

A. Walgreens?

Q. Yes. Walgreen[s'] people. Their pharmacist. Their technicians. Their people.

* * *

Q. Would you expect a pharmacist or a technician to foresee that this child was a risk for suicide?

A. Well, no, of course not. They are not trained."

Dr. Martha Zuelke testified that she worked at Resurrection Pro Care, a community mental health agency, providing psychiatric evaluations of children and adolescents. Dr. Zuelke testified that Denise Hall, the social worker at the clinic, requested that she see Christina because Christina was in need of more medication. Dr. Zuelke testified that she was unable to prescribe more medication over the telephone because she had not previously evaluated Christina and given the original prescription. Dr. Zuelke testified that Dr. Khan, at Riveredge Hospital, had provided the original prescription.

Dr. Zuelke testified that she saw Christina on September 16, 2002, and her assessment was that Christina was not in imminent danger of injuring herself. Dr. Zuelke testified that Christina was not expressing ideas, impulses or behavior indicating she was at risk of injuring herself either purposely or inadvertently due to impulsive or agitated behavior. Christina was not presenting behavior that was a threat to others at home or apparently at school, and she was actively engaged in seeking help. Dr. Zuelke prescribed Christina a higher dosage of Risperdal but did not think it was necessary to hospitalize Christina.

Dr. Zuelke testified that it was not reasonably foreseeable that Christina was going to commit suicide. Dr. Zuelke further testified that even knowing that Christina had not been on Risperdal from September 12 to September 16, she did not consider Christina to be at risk of suicide.

Following trial, on October 13, 2005, the jury returned a verdict in favor of plaintiff for $875,000 and signed a special interrogatory finding that plaintiff was 25% contributorily negligent in Christina's death. On October 20, 2005, plaintiff filed a posttrial motion to vacate the special interrogatory finding plaintiff guilty of 25% contributory negligence. The circuit court denied that motion. On November 14, 2005, Walgreens filed its motion for judgment n.o.v. and on December 16, 2005, the parties presented their arguments on the motion. On January 13, 2006, the circuit court entered an order granting Walgreens' motion for judgment n.o.v. In its written order, the court found that where "the only evidence before the jury was that Christina's suicide was not foreseeable to anyone including Walgreens, * * * the jury's decision was against the manifest weight of the...