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Home My WebLink About04-4161 DANIEL J. MADIO, n, and TINA M. MADIO, Plnintiffs : IN THE COURT OF COMMON PLEAS OF v. : CUMBERLAND COUNTY, PENNSYLVANIA 2004- '-/1(0 I CIVIL TERM CVS CORPORATION, CVS PHARMACY NEW YORK, INC., TID/B/A CVS PHARMACY, and CVS PHARMACY, INC, Defendants PRAECIPE FOR ISSUANCE OF A WRIT OF SUMMONS TO CURTIS R. LONG, PROTHONOTARY: Please issue a Writ of Summons against the defendants. CVS CORPORATION, CVS PHARMACY NEW YORK, INC., TII>/B/A CVS PHARMACY and CVS PHARMACY, INC., and enter my appearance on behalf of the plaintiffs. Daniel J. Madio, II and Tina M. Madio. Please direct the Sheriff to serve the defendant as follows: CVS CORPORATION CORPORATE HEADQUARTERS ONE CVS DRIVE WOONSOCKET, RI 02895 CVS PHARMACY. INC. 785 SOUTH WEST STREET CARLISLE, PA 17013 Respectfully submitted, By: August 20, 2004 To: CVS CORPORATION, CVS PHARMACY NEW YORK INC., TID/B/A CVS PHARMACY and CVS PHARMACY, INC. You are hereby notified that Daniel J. Madio, II, and Tina M. Madio, plaintiffs, have commenced an action against you which you are required to defend or a defa'Z1gment may be ent d against you. By: ~1~(p Date: ~;(O .2004 9 '"0\- A::, c;:; V'\ ~ ~ <..f\ ,:. ~ ~~ ~ n ~ ':> ~, . ~ ~ U) ~ V1 (.N ~ -r- SHERIFF'S RETURN - U.S. CERTIFIED MAIL CASE NO: 2004-04161 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND MADIO DANIEL ET AL VS. CVS CORPORATION ET AL R. Thomas Kline Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law served the within named DEFENDANT ,CVS CORPORATION by United States Certified Mail postage prepaid, on the 23rd day of August ,2004 at 0000:00 HOURS, at CVS CORPORATE HEADQUARTERS ONE CVS DRIVE WOONSOCKET, RI 02895 , a true and attested copy of the attached WRIT OF SUMMONS Together with The returned receipt card was signed by SIGNATURE ILLEGIBLE 08/25/2004 on Additional Comments: Docketing Service Affidavit Surcharge 18.00 4.42 .00 10.00 .00 32.42 omas Kline riff of Cumberland County Sheriff's Costs: Paid by MARCUS MCKNIGHT on 08/30/2004 . Sworn and sUbscr~~.~efore me this j{,? day of .)()()'{ A.D. (1. u_ a f/A,Pl'" M~ ~thonotary , 7" CASE NO: 2004-04161 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MADIO DANIEL ET AL VS CVS CORPORATION ET AL ROBERT BITNER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS CVS PHARMACY INC DEFENDANT was served upon the at 785 SOUTH WEST STREET , at 1850:00 HOURS, on the 23rd day of August 2004 CARLISLE, PA 17013 KIMBERLY SNYDER, ASSISTANT by handing to MANAGER, ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 6.00 3.70 .00 10.00 .00 19.70 Sworn and Subscribed to before .,., me this J(, - day of ~J ~{)tJ'f A. D. '?"J CJ ~ ~ P~othonotary , So Answers: r~--<~ R. Thomas Kline 08/30/2004 MARCUS MCKNIGHT BY'~A:r9,1d c ~l ~ ~ ....J ... CI ... ~ CI uJ ~ fti ~' fti ~) c, 0- c, CI -. 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I-' '" I-' () ~" 1-'" I-' '@ 000 ~ 0'" \\' p~~ ! 9 3 ~ "';:: g ~, ~- 9: ::;fjj -<"- mo !flz o ~ ;? ~ ~ ,,-"- ~~ o "- it "- ~ ;; ~ ~ a- ".3 9t;::l' o 0 ~ "3 o ~ m ;:: o a ,- ~ "- or m " o ,0 ' ",,0 00....!l: 0 H~iJ~ u & ::0 ~J! ilioo cj&, 2: ..!..&(JJ.~ (fcf~j - - - ui <n 2! :g C1l oi E ~ .... :J g, w () S <r /}f -' ~ 2 Q. m t< t) Cl /!! . ~ -- >- iJ5 i! a:: fu o <n "- lL. cr lJ.J :x:'"' <nO:: j::~ ;zS5~ "" ~ 0,",0 u"'''- :::> - 00 ~~'" <~CL ....cr 0:::::>'"" lJ.J0-' mut/) ~l.U.=i ::>;zcr 0023 -- - - '- - :: :: - - (-.f .::) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DANIEL J. MADia, II and TINA M. MADia, Plaintiffs NO. 2004-4161 v. CIVIL ACTION - LAW CVS of PENNSYLVANIA Defendant ENTRY OF APPEARANCE Kindly enter my appearance on behalf of Defendant, CVS of Pennsylvania, in the above- captioned. Respectfully submitted, McKissock & Hoffman, P.C. By: Edwin A.D. Schw I.D. No.: 75902 B. Craig Black, Esquire 1.0. No.: 36818 2040 Linglestown Hoad Suite 302 Harrisburg, PA 17" 10 (717) 540-3400 Dated: /~~~ Attorneys for Defendant CERTIFICATE OF SERVICE~ I hereby certify that I am this day serving a copy of the foregoing Entry of Appearance upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 (Counsel for Plaintiffs) By: McKissock & Hoffman, P.C. ~d Edwin A.D. chw 1.0. No.: 75902 B. Craig Black, Esquire 1.0. No.: 3€)818 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated: /~~~ Attorneys for Defendant " Co I'-..) C) C7~::" c: '- 7,) -rl -;;- ~", :-:: :~ C-, i--'l -T ......,::: F'-' :-':'J CTl ; ,.. I .., 6 1..0 <'') ".', -..., _1: -1. v ,~:Z :n C.-) N ; ~) I~rl '~'.I .:,~ 1 Ul ;,;} "''''',,- <.: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DANIEL J. MADID, II and TINA M. MADID, Plaintiffs NO. 2004-4161 v. CIVIL ACTION - LAW CVS of PENNSYLVANIA Defendant PRAECIPE FOR RULE TO FILE A COMPLAINT Please issue a Rule directed to Plaintiffs to file a Complaint in the above-captioned matter within twenty (20) days of service or suffer judgment Non Pros. Respectfully submitted, By: ~~:::? Edwin A.D. Sch RULE AND NOW, this 9-'-"-, day of A)~() ,2004, upon consideration of Defendant's Praecipe For Rule To File A Complaint, a Rule is hereby granted upon Plaintiffs to file a Complaint within twenty (20) days of service, or suffer judgment Non Pros. Rule issued this !l!:!::: day of ",4)C"i') , 2004. (11~' Curt Long, Prothonota D t....::l = 0 '. c:::~) .c- -on '. , ~:: :_~J c::' "",r- iij ;:.r~ I -nrn \f.') : n -;:J '-(.1 :.~~? "-'<r -n <.~.) N en CJl f') IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL.VANIA DANIEL J. MADIO, II and TINA M. MADIO, Plaintiffs NO. 2004-4161 v, CIVIL ACTION - LAW CVS of PENNSYLVANIA Defendant To: Daniel & Tina Madio clo Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 Date of Notice: June 24, 2005 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO FILE A COMPLAINT IN THIS CASE. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR RIGHT TO SUE THE DEFENDANT AND THIEREBY LOSE PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER TO OR TELEPHONE THE OFFICE SET FORTH BELOW, THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OFl NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 McKissock ,!lo. Hoffman, P.C, ::7. -- By: & Edwin A.D. Schwa Attorney I.D, No. 75902 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540,3400 Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Notice upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first,class postage prepaid, addressed as follows: Marcus A. McKnight, III, Esquir<~ Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 (Counsel for Plaintiffs) McKissock & Hoffman, P,C. By: / ~7 Edwin A.D. Schw Identification No.: 75902 2040 Lingleistown Road Suite 302 Harrisburg, PA 17110 (717) 540,3:400 Attorneys for Defendant Dated: ~/k'~.r- ,...., c:? ~ "p <.... c: - ' ...'- .' \ .,./..,. N C:0 ~ -' "fT,?l tn. :y\q '~'-~(?, .-.,". - ~\',\. ;i.~;';\ fiJ :-<: _0 ~ ~ 0' y;.- - DANIEL J. MADIO, II, and TINA M. MADlO, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. 2004 - 4161 CIVIL TERM CVS CORPORATION, CVS PHARMACY NEW YORK, INC., TIDfflIACVSPHARMACY,md CVS PHARMACY, INC, Defendants NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint, order and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 1-800-990-9108 Americans with Disabilities Act of1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court. please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court, You must attend the scheduled conference or hearing. 2 DANIEL J. MADIO, II, and TINA M. MADIO, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. 2004 - 4161 CIVIL TERM CVS CORPORATION, CVS PHARMACY NEW YORK, INC., Tillffi/ACVSPHARMACY,and CVS PHARMACY, INC, Defendants COMPLAINT AND NOW, this 14th day of July 2005 comes the plaintiffs, DANIEL J. MADIa, II, and TINA M. MADIa, by and through their attorneys, Irwin & McKnight, and makes the following Complaint against the defendants, CVS CORPORA nON, CVS PHARMACY NEW YORK, INC" TIDIBIA CVS PHARMACY and CVS PHARMACY, INC., as follows: 1. The plaintiffs is Daniel J. Madio, II, and Tina M. Madio, adult individuals residing at 264 Gibson Street, Carlisle, Cumberland County, Pennsylvania, 17013 2. The defendant is CVS Pharmacy New York, Inc. and CVS Corporation, a Rhode Island Corporation with a mailing address of Corporate Headquarters, One CVS Drive, W oonsocket, Rhode Island, 02895. 3. The defendant is CVS Pharmacy and CVS Pharmacy, Inc. with a mailing address of785 South West Street, Carlisle, Cumberland County, Pennsylvania 17013. 3 4. The Plaintiffs are acting on behalf of their minor child, Benjamin Andrew Madio, born July 15, 2002, who is the injured party in this action. 5. The Plaintiff's minor son, Benjamin Andrew Madio, born July 15, 2002, was diagnosed at the Carlisle Regional Medical Center as having gastroesophageal reflux on July 27,2002. After diagnosis, two medications were prescribed, that being Metoclopramide and Zantac. 6. On July 29, 2002, the plaintiffs, had the two prescriptions filled at the CVS Pharmacy located at 785 South West Street, Carlisle, Pennsylvania, 17013, on behalf of their infant son, Benjamin Andrew Madio. 7. On August 22, 2002, both prescriptions were refilled at the CVS Pharmacy located at 785 South West Street, Carlisle, Pennsylvania, 17013, on behalf of their infant son, Benjamin Andrew Madio. 8. At that time, the Plaintiffs noticed that the prescription labeled Zantac had a different taste from the original prescription. The label was marked Zantac and the Plaintiffs assumed that the prescription had been flavored. 4 9. On October 8, 2002, the Plaintiffs contacted CVS Pharmacy, 785 South West Street, Carlisle, Pennsylvania 17013, by telephone to refill the prescription labeled Zantac, When the Plaintiff stated that the prescription be flavored as was the previous prescription, the pharmacist informed the Plaintiff that it was not possible to flavor the prescription and to return the remaining prescription labeled Zantac. 10. Upon the pharmacist's examination of the remaining prescription labeled Zantac, the pharmacist detennined and admitted that it was not Zantac as indicated on the label, but it was the medication Zyrtec. 11. The pharmacist refunded the price of the prescription filled in error and provided a new bottle with the correct prescription of Zantac. 12. The Plaintiffs were greatly concemed due to their infant son's age and the fact that all but a very small amount of the incorrect prescription was given to their son, Benjamin Andrew Madio. 13. The Plaintiff's consulted with their family physician, Dr. Bryan Reid. Dr, Reid informed the Plaintiffs that Zyrtec is not approved for children. 5 14. The phannacist was the employee/agent of the Defendants, and the Defendants are responsible for the phannacist's gross negligence. 15. The Defendants were negligent in that they failed to do the following: a. Provide proper supervision of its phannacists; and b. Provide adequate procedures to ensure that medication such as Zantac and Zyrtec are not confused and wrongfully distributed. 16. As a result of the negligence of the Defendants, the Plaintiffs have sustained significant mental anguish and distress regarding the welfare of their infant son, Benjamin Andrew Madio. 17. The Plaintiffs infant son, Benjamin Andrew Madio, received the wrong prescription/ medication and did not receive the correct prescription/medication for his illness. The Plaintiffs may incur future medical expenses if their son's health is impacted by the negligence of the Defendants. 18. The conduct of the Defendants is the proximate cause of the injuries sustained by the Plaintiffs and their infant son, Benjamin Andrew Madio. The Plaintiffs seek punitive damages from the Defendants for its reckless and gross negligence. 6 THEREFORE, the Plaintiffs, Daniel J. Madio, II and Tina M. Madio, seek compensatory damages against the Defendants, in excess of Twenty,Five Thousand and noli 00 ($25,000.00) Dollars together with punitive damages with the costs of this action and interest as permitted by law. Respectfully submitted, By: Marcus. ight, III, E e 60 We omfret Street Carr e, Pennsylvania 17013 (71 ) 249,2353 Supr e Court l.D. No. 25476 Attorney for p . . Date: July 14, 2005 7 VERIFICATION The foregoing document is based upon infonnation which has been gathered by counsel for the petitioner in the preparation of this document. To the extent that the docwnent is based upon infonnation which has been gathered by counsel, it is true and correct to the best of the counsel's knowledge, infonnation and belief. The undersigned is verifying on behalf of the petitioner according to 42 Pa.C.S.A. ~ I 024( c)(2). The undersigned understands that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: July 14, 2005 : IN THE COURT OF COMMON PLEAS OF DANIEL J. MADIO, II, and TINA M. MADIO, Plaintiffs v. : CUMBERLAND COUNTY, PENNSYLVANIA 2004 - 4161 CIVIL TERM CVS CORPORATION, CVS PHARMACY NEW YORK, INC., TIDIB/A CVS PHARMACY, and CVS PHARMACY, INC, Defendants CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached document was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Edwin A. D. Schwartz, Esq. McKissock & Hoffman, P.C. 2040 LinglestoWD Road, Ste. 302 Harrisburg, PA 17110 IRWIN & McKNIGHT By: Marcus A. McKni 60 West Pomfret treet Carlisle, P A 17 13 (717) 249-2353 Supreme Court 1.0, Date: July 14, 2005 '" ~~:, ' [I" , .J;-"r ;:;:;.. -'1 "" () r; s' w w ~ '" "'" C:.:;:> c.n '- c:: r-- o '1 '-I X..... rn"O r-- III i::J +- ""rJ ~ (') " 2;1~~ :-~o:l .~:i) '"" IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DANIEL J. MADIa, II and TINA M, MADIa, Plaintiffs, NO, 2004-4161 v. CIVIL ACTION - LAW CVS CORPORATION,CVS PHARMACY NEW YORK, INC., T/D/B/A CVS PHARMACY, and CVS PHARMACY, INC, Defendants. NOTICE TO PLEAD To: Daniel J. Madio, III and Tina M. Madio c/o Marcus McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013-3222 You are hereby notified to file a written response to the enclosed Answer and New Matter pursuant to Pa.R.c.P. 1030 within 20 days from service hereof or a judgment may be entered against you. DEFENDANT'S ANSWER AND NEW MATTER TO PLAINTIFFS' COMPLAINT AND NOW, comes Defendant, CVS of Pennsylvania, Inc., improperly pled as CVS Corporation, CVS Pharmacy New York, Inc., t/dIb/a CVS Pharmacy, and CVS Pharmacy, Inc., (hereinafter the "Defendant"), by and through its counsel, McKissock & Hoffman, P,C., and provides the foregoing Answer with New Matter affirmative defenses to Plaintiffs' Complaint in the above-captioned matter and as such, provides as follows: l. Defendants are without sufficient information to admit or deny the averments contained in 'Ill of Plaintiffs' Complaint and as such, strict proof thereof is demanded at the time of trial. By way of further response, it is admitted that Daniel J. Madio, II and Tina M, Madio are named as Plaintiffs in this action, 2, Denied as stated. 3, Denied as stated. By way of further response, Defendant maintains a pharmacy with a mailing address of 785 South West Street, Carlisle, Cumberland County, Pennsylvania 17013. 4. Defendant is without sufficient information to admit or deny the averments contained in '114 of Plaintiffs' Complaint and as such, strict proof thereof is demanded at the time of trial. By way of further response, it is specifically noted that minor child, Benjamin Andrew Madio, is not named in the caption of the instant action, 5. To the extent the averments contained in '115 of Plaintiffs' Complaint are consistent with the medical records maintained in the ordinary course of business by the Carlisle Regional Medical Center, such averments are admitted. To the extent the averments contained in '115 are inconsistenl with the medical records maintained in the regular course of business at Carlisle Regional Medical Center, such averments are specifically denied and strict proof thereof is demanded at the time of trial. 6. II is admitted that two prescriptions for Benjamin Madio were filled on July 28, 2002, 7. Admitted, 8. Defendant is without sufficient information to admit or deny the averments in '118 of Plaintiffs' Complaint and as such, strict proof thereof is demanded at the time of trial. 9, Defendant is without sufficient information to admit or deny the averments in '119 of Plaintiffs' Complaint and as such, strict proof thereof is demanded at the time of trial. 10. Admitted. 11. It is admitted that upon examination of the medication provided to Plainliffs on behalf of the minor son, Benjamin Andrew Madio, the pharmacisl ultimately refunded the price of the prescription previously filled and provided a new bottle of Zantac for the minor's use. 12, Defendant is without sufficient information to admit or deny the averments contained in '][12 of Plaintiffs' Complaint and as such, strict proof thereof is demanded at the time of tri al. 13. Defendant is without sufficient information to admit or deny the averments contained in '][13 of Plaintiffs' Complaint and as such, strict proof thereof is demanded at the time of trial. By way of further response, it is specifically denied that Zyrtec is not approved for children and as such, strict proof thereof is demanded at the time of trial. 14. The averments contained in '][14 represent conclusions of law to which no response is required. If it is later judicially determined that a response is so required, the averments contained in '][14 are specifically denied and strict proof thereof is demanded at the time of trial. 15. The averments contained in '][15 represent conclusions of law to which no response is required. If it is later judicially determined that a response is so required, the averments contained in '][15 are specifically denied and strict proof thereof is demanded at the time of trial. 16, The averments contained in '][16 represent conclusions of law to which no response is required, If it is later judicially determined that a response is so required, the averments contained in '][16 are specifically denied and strict proof thereof is demanded at the time of trial. 17, Admitted in part, denied in part. It is admitted that at some time within the relevant time period Benjamin Andrew Madio received the wrong medication. The remaining averments, and all inferences to be garnered therefrom, as set forth in '][17 of Plaintiffs' Complaint are specifically denied and strict proof thereof is demanded at the time of trial. 18. The averments contained in '][18 represent conclusions of law to which no response is required. If it is later judicially determined that a response is so required, the averments contained in '][18 are specifically denied and strict proof thereof is demanded at the time of trial. WHEREFORE, Defendant respectfully requests this Honorable Court enter judgment in their favor and dismiss Plaintiffs' Complaint with prejudice and award Defendants all such further relief as is proper and just. NEW MATTER 19, Paragraphs 1-18 of Defendant's Answer are incorporated herein as if set forth at length, 20, The recovery of medical expenses paid by any third-party, including any insurance canier, is barred pursuant to Section 605 of the Health Care Service Malpractice Act of 1975, as amended (Act of October 15,1975; P,R. 390, No: 111(40 Pa,S, SI301.605)). 21. Plaintiffs' claims are barred by the applicable Statute of Limitations. 22, Plaintiffs' injuries and losses, if any, were caused in whole or in part by persons or events outside of the control of Defendant. 23. Plaintiffs' injury and losses, if any, were caused in whole or in part by persons not a party to the within action, 24. Plaintiffs' injuries, if any, were sustained as a result of natural and unknown causes and not as a result of any action or inaction on behalf of Defendant. 25, At all times relevant hereto, Defendant rendered care in an appropriate manner, within the standards of care applicable thereto and in compliance with all Statutes, Rules, Regulations, Protocols and/or Procedures applicable thereto. 26. Any acts and/or omissions of Defendant were and are not the proximate cause or a substantial factor giving rise to Plaintiffs' injuries and/or damages, 27. To the extent that Defendant elected a trealment modality which is recognized as proper but may differ from another appropriate treatment modality, Defendant invokes the two schools ofthought doctrine. 28, Plaintiffs may have entered into a Release Agreement with other individuals or entities which has the effect of discharging any and all liability of Defendant. 29. Plaintiffs have failed to state a claim upon which relief can be granted. 30, All claims and causes of action pleaded against Defendant are barred by Plaintiffs' knowing and voluntary informed consent to the care in question. 31. Plaintiffs' claims are barred by the doctrines of Comparative or Contributory negligence, 32. Plaintiffs have not sustained any damages. WHEREFORE, Defendanl respectfully requests this Honorable Court enter judgment in their favor and dismiss Plaintiffs' Complaint with prejudice and award Defendants all such further relief as is proper and just. Respectfully submitted, McKissock & Hoffman, P.C. Dated: Augusl 9, 2005 BY:~ Edwin A.D. Schwartz, I.D, No.: 75902 B. Craig Black, Esquire I.D, No.: 36818 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540- 3400 Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Answer and New Matter upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 (Counsel for Plaintiffs) Respectfully submitted, McKissock & Hoffman, P.C. Dated: August 9,2005 By:/a Edwin A,D. Schwartz, J.D. No.: 75902 B. Craig Black, Esquire J.D. No,: 36818 2040 Linglestown Road Suite 302 Harrisburg, P A 17110 (717) 540-3400 Attorneys for Defendant "p" "", ,., ", , "".' ""t') , [~!? '., .:) (~~ ~..:, ......' , , 8 z; :< r--' = = eft :P- c:: G") ~ ~ m~ :8C? 0<",-> "'~'i -"1 I-n Po Zrn S ~ -cl :x N .. W N DANIEL J. MADIO, II, and TINA M. MADIO, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. 2004 - 4161 CIVIL TERM CVS CORPORATION, CVS PHARMACY NEW YORK, INC., T/D/B/A CVS PHARMACY, and CVS PHARMACY, INC, Defendants PETITION TO APPROVE SETTLEMENT OF A MINOR- BENJAMIN ANDREW MADIO AND NOW this 9th day of November 2006, come the Petitioners, Daniel J. Madio, II and Tina M. Madio, by their attorneys, Irwin & McKnight, and makes the following Petition to Approve Settlement of a Minor, Benjamin Andrew Madio: 1. The Plaintiffs are Daniel J. Madio, II, and Tina M. Madio, adult individuals residing at 264 Gibson Street, Carlisle, Cumberland County, Pennsylvania, 17013 2. The Defendant is CVS Phannacy New York, Inc. and CVS Corporation, a Rhode Island Corporation with a mailing address of Corporate Headquarters, One CVS Drive, W oonsocket, Rhode Island, 02895. 3. The Defendant is CVS Phannacy and CVS Phannacy, Inc. with a mailing address of 785 South West Street, Carlisle, Cumberland County, Pennsylvania 17013. 4. The Plaintiffs are acting on behalf of their minor child, Benjamin Andrew Madio, born July 15, 2002, who is the injured party in this action. 2 5. The Plaintiff's minor son, Benjamin Andrew Madio, born July 15, 2002, was diagnosed at the Carlisle Regional Medical Center as having gastroesophageal reflux on July 27, 2002. After diagnosis, two medications were prescribed, that being Metoclopramide and Zantac. 6. On July 29, 2002, the Plaintiffs, had the two prescriptions filled at the CVS Pharmacy located at 785 South West Street, Carlisle, Pennsylvania, 17013, on behalf of their infant son, Benjamin Andrew Madio. 7. On August 22, 2002, both prescriptions were refilled at the CVS Pharmacy located at 785 South West Street, Carlisle, Pennsylvania, 17013, on behalf of the Plaintiffs' infant son, Benjamin Andrew Madio. 8. At that time, the Plaintiffs noticed that the prescription labeled Zantac had a different taste from the original prescription. The label was marked Zantac and the Plaintiffs assumed that the prescription had been flavored. 9. Upon the pharmacist's examination of the remaining prescription labeled Zantac, the pharmacist determined and admitted that it was not Zantac as indicated on the label, but it was the medication Zyrtec. 10. The pharmacist refunded the price of the prescription filled in error and provided a new bottle with the correct prescription of Zantac. 3 11. The Plaintiffs were greatly concerned due to their infant son's age and the fact that all but a very small amount of the incorrect prescription was given to their son, Benjamin Andrew Madio. 12. The Plaintiffs consulted with their family physician, Dr. Bryan Reid. Dr. Reid informed the Plaintiffs that Zyrtec is not approved for children. 13. In order to resolve this claim, the Defendants have agreed to pay the sum of Four Thousand and nollOO ($4,000.00) Dollars to the Plaintiffs. A copy of the Release is attached hereto and marked as Exhibit "A". 14. The Plaintiffs have been unable to detect any serious hann to their son, Benjamin Andrew Madio, age four (4), born July 15, 2002. 15. The Plaintiffs propose that the settlement be distributed as follows: Plaintiffs..................... ... ......,... ... ... .......... ................... .$4,000.00 (Less Legal Fees - 25% to I&M).......................l,OOO.OO (Less Costs) Filing Fee ......................................................... .55 .50 SherifI's Costs.................................................. .52.12 Spring Road Family Practice Records ..............28.75 CRMC Medical Records..................................95.36 Total amount of settlement to Daniel 1. Madio II and Tina M. Madio ...........$2,768.27 The settlement proceeds shall allocate legal fees to Irwin & McKnight as indicated above. 4 16. The balance due to the Plaintiffs will be placed in an insured interest bearing account at Sovereign Bank in Carlisle, Pennsylvania. WHEREFORE, the petitioners respectfully request the approval of the said Petition with the distribution as set forth above. Respectfully submitted, By: Date: November 9, 2006 5 EXHIBIT "A" GENERAL RELEASE 1. KNOW ALL PERSONS, that we, Daniel J. Madio, II and Tina M. Madio, individually and as parents and natural guardians of BENJAMIN MADIO (a Minor), (hereinafter the "Undersigned"), in consideration of payment of FOUR THOUSAND DOLLARS ($4,000.00) and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, for our heirs, executors, administrators, successors and assigns, do hereby release and quitclaim unto CVS OF PENNSYLVANIA, INC., CVS, INC., CVS PHARMACY, INC. and CVS CORPORATION, their subsidiaries and affiliated corporations, and all persons acting on behalf of said aforementioned corporations, individually, and in their capacity as employees of said corporations (hereinafter the "Releasees"), as to all manner of actions, causes of action, debts, dues, claims and demands, both in law and equity, and in particular, as to any and all claims arising out of a certain alleged incident, which allegedly occurred on August 22, 2002 at CVS of Pennsylvnaia, Inc., store no. 1646, located at 765 South West Street, Carlisle, Pennsylvania It is the specific intent and purpose of this instrument to release and discharge any and all claims and causes of action of any kind or nature whatsoever, whether known or unknown and whether specifically mentioned or not, which against said Releasees said Undersigned and BENJAMIN MADIO ever had, now have, or in the future may have for or by reason or means of any matter or thing whatsoever arising out of said incident. 2. The Undersigned hereby agree to indemnify and hold harmless the Releasees from any claims made by BENJAMIN MADIO, third-parties or other individuals whose claims comprise or are derivative of the injuries and/or pain and suffering, including consortium or other derivative causes of action, arising out of the incident referred to above. 3. The Undersigned understand that this is a disputed claim and that the payment specified herein is not to be construed as an admission of liability on the part of the Releasees, but on the contrary, liability is expressly denied by them. ,. i-. .... ;, General Release Page 2 of2 4. As a result of this disputed claim, the Undersigned agree that the facts of this claim, or the fact that any money was paid on this claim, or the amount of money paid, shall be kept confidential and not disclosed or published by the Undersigned and/or BENJAMIN MADIO to any form of media, including but not limited to periodicals, newspapers, or television, except if required by court order. #J.. IN WITNESS WHEREOF, we have hereunto set our hand this ~ day of Q~~~ ,2000. ..... ~J . Daniel J. Madio, II, individually and as parent and natural guardian of BENJAMIN MADIO (a Minor) ~~ vY'Y\.vYY\tAk, Tina M. Madio, individually and as parent and natural guardian of BENJAMIN MADIO (a Minor) PRV _755779 _I1JLAPOINTE Benjamin Madio (Minor) Release VERIFICATION The foregoing document is based upon information which has been gathered by counsel and us in the preparation of this action. We have read the statements made in this document and they are true and correct to the best of our knowledge, information and belief. We understand that false statements herein made are subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsification to authorities. ~Dd. DANIEL J. MADIO, II ~"'-- VfY\.VfY\~ TINA M. MADIO Date: November 9, 2006 : IN THE COURT OF COMMON PLEAS OF DANIEL J. MADIO, II, and TINA M. MADIO, Plaintiffs : CUMBERLAND COUNTY, PENNSYLVANIA v. 2004 - 4161 CIVIL TERM CVS CORPORATION, CVS PHARMACY NEW YORK, INC., TID/B/A CVS PHARMACY, and CVS PHARMACY, INC, Defendants CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached Document was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Edwin A. D. Schwartz. Esq. McKissock & Hoffman, P.C. 2040 Linglestown Road, Ste 302 Harrisburg, P A 17110 By: Date: November 22, 2006 7 o ::= r--.) (":':) c;-.;> CJ.... o 'T1 --l ~:!} I..C- =-~:i t::] , , 1(') C) ....,;-- ", N ......',' \.......,. () ',., I f1 '.J --i ._,...~ CD :-< .r:- (J...l NOV JJ 2006 ~ Y DANIEL J. MADIO, ll, and TINA M. MADIO, Plaintiffs : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. 2004 - 4161 CIVIL TERM CVS CORPORATION, CVS PHARMACY NEW YORK, INC., TIDIB/A CVS PHARMACY, and CVS PHARMACY, INC, Defendants 1 ORDER OF COURT AND NOW. this iJ. -Iday of November 2006. upon consideration of the attached Petition of the Plaintiffs/Petitioners. it is hereby ORDERED that the approval of the settlement of Plaintiffs' claims are granted as follows: 1. The settlement in the amount of Four Thousand and no/lOO ($4.000.00) Dollars from the CVS Corporation is hereby approved. 2. The settlement proceeds shall be allocated as follows: a. Total Settlement Amount ....................................................$4.000.00 (Less Legal Fees - 25% to I&M)..............................I.OOO.OO (Less Costs) Filing Fee ...... ...... .................... ........ ......... ...... ...... ....55 .50 Sheriff s Costs...... ......... ...... ................... ............... ...52.12 Spring Road Family Practice Records .....................28.75 CRMC Medical Records ..........................................95.36 Total settlement Amount to Daniel J. Madio. II and Tina M. Madio ..............................$2,768.27 The settlement proceeds shall allocate legal fees to Irwin & McKnight as indicated above. 3. The settlement balance will be placed in an insured interest bearing account which is at Sovereign Banle. No distribution of funds shall be made until the minor child. Benjamin Andrew Madio attains the age of eighteen (18) years. By the Court: r1, i1. ~f ~ Pt~ ~t ~ 9i'J : II !\"l~ ZZ I, 900l .:10 DANIEL J. MADIO, II, and TINA M. MADIO, Plaintiffs v. CVS CORPORATION, CVS PHARMACY NEW YORK, INC., TIDIB/A CVS PHARMACY, and CVS PHARMACY, INC, Defendants : IN THE COUR OF COMMON PLEAS OF : CUMBERLAN COUNTY, PENNSYLVANIA 2004 - 4161 CIVIL TERM By: PRAECIPE TO SETTLE AND DISC To Curtis R. Long, Prothonotary: Please mark the above-captioned case settled and disc ntinued and issue a Settlement Certificate to Marcus A. McKnight, III, Esquire, at 60 est Pomfret Street, Carlisle, Pennsylvania 17013. Date: December 5,2006 DANIEL J. MADIO, II, and TINA M. MADIO, Plaintiffs OF COMMON PLEAS OF : CUMBERLAN COUNTY, PENNSYLVANIA v. 2004 - 416 CIVIL TERM CVS CORPORATION, CVS PHARMACY NEW YORK, INC., TromlA CVS PHARMACY, and CVS PHARMACY, INC, Defendants CERTIFICATE OF SERVI I, Marcus A. McKnight, ill, Esquire, hereby certify that a copy of attached Praecipe to Settle and Discontinue was served upon the following by depo iting a true and correct copy of the same in the United States mail, First Class, postage prepai in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Edwin A.D. Schwartz, Esq. McKissock & Hoffman 2040 Linglestown Road, Ste. 302 Harrisburg, P A 17110 By: Date: December 5, 2006 () '" ~ <:::;) s = 0.... <:. 0 =;J if;ft-! ", fi'j:!J .c::. ...1 ('"') r- ;2' , -om -""'0 (j) en C){l., -< ~;: , ,...j -,' L...... lj (~~' ..:.~- -,.. C', -"'- > e- G.) 25fTl ;..,.~ ::;;;! _".1 a 5J ~ co -<