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HELEN E. GELSINGER
Plaintiff
v.
I IN THE COURT OF COMMON PLEAS
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I CIVIL ACTION - LAW
NO. 'N - '" r IJ C",,;( IA.<........
RITE AIO CORPORATION,
Defendants
JURY TRIAL DEMANDED
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to detend against the
claims .et forth in the following pages, you must take action within
twenty (20) days after this Complaint 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 notice for any money claimed in the Complaint or
tor any other claim or relief requested by the Plaintift. You may lose
money or property or other rights important t~ 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.
Court Administrator, 4th Fl.
Cumberland County Courthouse
One Courthouse Square
CarliSle, PA 17013
240-6200
4985'/....
NOTICE
La han demandado a usted en la corte. si usted quiere defenders.
de estas demandas expuestas en las paqinas siquientes, usted ti.ne
viente (30) dias de plazo al partir de la fecha de la demanda y la
notificacion.
Usted debe presentar una apariencia escrita 0 en
persona 0 por aboqado y archivar en la corte en forma escrita sus
defensas 0 sus objectiones alas demandas en contra de su persona.
Sea avisado que 8i usted no se defiende, la corte tomara medidas y
puede entrar una orden contra usted sin previa aviso 0 notificacion y
por cualquier queja 0 alivio que es pedido en la peticion de demanda.
Usted puede perder dinero 0 sus propiedades 0 otros derechos
importantes para usted.
LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTA.
51 NO TIENE
ABODAGO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA
EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DON DE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Court Administrator, 4th Fl.
Cumberland County Courthouse
One Courthouse square
Carlisle, PA 17013
240-6200
HELEN E. GELSINGER
Plaintiff
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION ~ LAW
NO. ,/'1- ,/,PI.J- (:,,;.1 'r,.~..
RITE AID CORPORATION,
Defendants
JURY TRIAL DEMANDED
COMPIAINT
1. Plaintiff Helen Gelsinger is an adult residing in
Chambersburg, Franklin County, Penneylvania.
2. Defendant Rite Aid Corporation is a profit-making corporation
whose headquarters is located in Shiremanstown, Cumberland County,
Pennsylvania.
3. In August, 1993, Helen Gelsinger underwent major open heart
surgery to replace a faulty heart valve. As a result of the surgery and
valve replacement, her treating physician placed Helen Gelsinger on
Coumadin. a blood thinner, for the balance of her life.
4. On October 13, 1993, Helen Gelsinger brought her physician's
prescription for Coumadin, 2 milligram tablets, to a Rite Aid pharmacy
located on 39 Warm Springs Road, Chambersburg, Pennsylvania.
5. The Rite Aid Pharmacy 112275 at Warm Springs Road,
Chambersburg, Pennsylvania is owned, operated and controlled by
Defendant Rite Aid Corporation.
6. Defendant Rite Aid has the Pharmacy License for said pharmacy
and employed the pharmacists therein.
7. On October 13, 1993 the Rite Aid Pharmacy gave Helen Gelsinger
a prescription bottle labeled "Coumadin 2 mg. tablets."
However,
unbeknownst to Helen Gelsinger, the bottle labeled 2 milligram tablets
actually contained 12 milligram Coumadin tablets. five times the amount
required by her physician's prescription.
49851/'"
8. unbeknownst to Helen Gelsinger, but surely within the
knowledge of the dispensing pharmacist, Coumadin tablets are color coded
and nulllbered by the manufacturer. A 2 milligram tablet is gray with the
nulllber 2 elllbedded in the pill. A 10 milligram tablet is white with the
nulllber 10 olllbedded in the pill.
9. Despite the very obvious visual differences between a 2
milligram and a 10 milligram Coumadin tablet, the Rite Aid employee put
white pills with the number 10 into a bottle which he had just labeled
"Coumadin 2 mgs."
10. On October 28, 1993, Helen Gelsinger woke up with blood in her
mouth from bleeding in her gums which she could not stop. Her physician
was concerned enough to hospitalized her in an attempt to regulate her
coagulation.
11. While in tho hospital utilizing coumadin dispensed by the
hospital pharmacy. Mrs. Gelsinger's coagulation stabilized at a
prothrombin time of 18.3 seconds.
12. On November 11, following her discharge from the hospital and
resumption of use of the Rite Aid prescription, Mrs. Gelsinger'S
prothrombin time rose to 42.3 seconds, more than three times the
therapeutic range.
13. Over the next several weeks, Mrs. Gelsinger was unable to
regulate her coagulation despite stopping and restarting the coumadin
prescription. Consequently, even though Mrs. Gelsinger's heart had
returned to normal and she had no symptoms related to her heart surgery,
her physician did not feel she could return to work.
14. The inability to return to work and to regulate her blood
thinners was very disturbing to Mrs. Gelsinger given her recent serious
2
heart operation and the knowledge she would have to use blood thinners
for the rest of her life.
15. As a direct result of Defendants supplying the wrong dosage of
her pre8cribed medication, Helen Gelsinger has 8uffered the followinq
damag8s1
(a) a loss of earnings,
(b) a loss of earning capacity,
(c) present and future pain, SUffering and anxiety,
(d) present and future medical expenses,
(e) a loss of life's pleasures I
COUNT I - NEGLIGENCE
16. Paragraphs 1 through 15 are incorporated herein by reference.
Defendant Rite Aid is liable to Helen Gelsinger for the injuries alleged
herein which were directly and proximally caused by Defendant'.
negligencG and/or gross negligence in:
(a) dispensing a drug to Mrs. Gelsinger which was not in the
dosage pres~~ibed by her physician;
(b) mislabeling Helen Gelsinger's medication to indicate 2
milligram tablets when 10 milligram tablets were contained therein;
(c) providing 10 milligram tablets to a patient which
Defendant knew or should have known exceeded the patient's appropriate
dosage,
(d) failing to have in place sufficient procedures and
protocols to assure that the proper drug wall dispensed in a proper
dosage as defined by the physician'S prescription;
ee) failing to read their own label and recognize that a
white 10 milligram tablet was not a gray 2 milligram table of coumadin,
3
(f) failing to observe the color differences between 2 and 10
milligram tablets,
(g) employing a pharmacist who violated the Pharmacy Act, 63
P.S. 5390-4, ~nd 390-5(8), 390-5(11) and 390-5(12).
(h) violating the regulations of the Pennsylvania Pharmacy
Board concerning the dispensing of medications in a manner exactly
consistent with the prescription written by a physician;
(i) violating FDA regulations regarding the proper labeling
of pharmaceutical products;
(j) violating FDA regulations regarding consistency of the
medications dispensed by retailers to the physician's and manufacturer's
requirements; and
(k) violating Rite Aid's own internal policy and protocol
regarding the checking of the dispensed medication to assure performance
with the physician's order.
WHEREFORE, Plaintiff prays for judgment against Defendant in an
amount in excess of Twenty Thousand ($20,000) Dollars, exclusive of
interest and costs, and in excess of any jurisdictional amount requiring
compulsory arbitration.
COUNT II - RES IPSA LOQUITUR
17. Paragraphs 1 through 15 are incorporated herein by reference.
18. Defendant is also liable under the Doctrine of Res Ipsa
Loquitur since the dispensing of a prescription drug by a pharmacy i.
completely and exclusively under the pharmacy's control and the pharmacy
could not possibly put a 10 milligram pill in a bottle labeled and,
prescribed for 2 milligrams, in the absence of negligence on the part of
its employees.
4
WHEREFORE, Plaintiff prays for judgment against Defendant in an
amount in excess of Twenty Thousand ($20,000) Dollars, exclusive of
interest and costs, and in excess of any jurisdictional amount requiring
compulsory arbitration.
COUNT 111- UCC STRICT LIABILITY
19. Paragraphs 1 through 15 are incorporated herein by reference,
20. Defendant Rite Aid is also strictly liable to Plaintiff under
the Uniform Commercial Code warranty of merchantability, 13 Pa. C.S.A.
2314 and the warranty of fitness for a particular purpose, 13 Pa. C.S.A.
52315 by selling Plaintiff a product which did not conform with her
written prescriptions.
WHEREFORE, Plaintiff prays for judgment against Defendant in an
amount in excess of Twenty Thousand ($20,000) Dollars, exclusive of
interest and costs, and in excess of any jurisdictional amount requiring
compulsory arbitration.
COUNT IV - EXEMPLARY DAMAGES
21. Paragraphs 1 through 15 and Counts I, II, and III are
incorporated herein by reference.
22. Prescription drugs, by their nature, present significant risks
of harm to the consumer unless prescribed in the specific manner
regulated by both the Commonwealth of Pennsylvania and the United
States government. The public must, by necessity, obtain prescription
drugs through a pharmacy.
23. Coumadin, a potent blood thinner, can and does cause
significant risks of harm to its users, including death and .erious
personal injury. It is only safe when taken in the dosage prescribed by
the treating physician. Coumadin is only legally available through a
5
Licensed Pharmacy.
24. The manutacturer ot Coumadin provides clear color coding ot
its pills to avoid any misunderstanding as to their dosage. The color
coding and numbering ot such pills is obvious and well known to
pharmacists who job it is to dispense such medication in the proper
dosage to their customers.
2~. For Rite Aid to dispense to Helen Gelsinger, a recent heart
surgery patient, a bottle of Coumadin labeled 2 milligrams then till it
with 10 milligram tablets which are clearly the wrong color and wrong
number is gross negligence rising to the level ot reckless disregard tor
the satety ot its customers.
26. Dispensing mislabeled drugs is a violation ot the Pennsylvania
Pharmacy Act and Federal and state regulatory bodies which also
justities the imposition of exemplary damages.
WHEREFORE, Detendant prays tor a judgment against Defendant tor
exemplary damages In an amount as the jury deems appropriate.
ANGINO & ROVNER, P.C.
/
/) ~
Te!"y s. Hyt11 .,""-P:squire
I.D. No.. 3gaO;
4503 N.r" }'ront. street
Harris!.\.urg, .PA 17110
(717) 238"'6791
Counsel tor Plaintitt
6
VERIFICATION
I, HELEN GELSINGER, do hereby swear and attirm that the tacts set
torth in the toregoing document are true and correct to the best ot my
knowledge, intormation and beliet.
I understand that this
veritication is made subject to the penalties ot 18 Pa.C.S. S 4904,
relating to unsworn talsitication to authorities.
WITNESS:
'--1fltLkdA. tlJ Pw (~
Dated: ~/?Sl)'1
Hidh,5'~
HELEN GELSINGER
.
HELEN E. GELSINGER,
Plalntitt
v.
I IN THE COURT OF COMMON PLEAS
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I NO. 94-4812
I
CIVIL ACTION - LAW
RITE AID OF PENNSYLVANIA, INC., I
d/b/a RITE AID PHARMACY,
JURY TRIAL DEMANDED
Detendant
C?RDER
AND NOW, on this ____ day ot
, 1994, upon
consideration ot Detendant Rite Aid of Pennsylvania, Inc., d/b/a
Rite Aid Pharmacy's Preliminary Objections to Plaintitt's Amended
Complaint:
IT IS HEREBY ORDERED that Defendant's Preliminary Objections
are granted and Count III is stricken trom Plaintitt' s Amended
Complaint.
BY THE COURT:
J.
4. In her Amended Complaint, Plaintiff alleges that
Detendant-pharmacy misfilled a prescription for Coumadin, a blood
thinner, causing her physical and emotional injury.
r. DEMURRER TO COUNT III
5. Pennsylvania Rule of civil Procedure 1028(a) (4) provides
that a defendant may file preliminary objections in the nature ot
a demurrer.
6. Plaintiff has demanded punitive damages in Count III of
her Amended Complaint.
7. Specifically, Plaintiff alleges in Count III that
Defendant's misfill of Plaintiff's prescription was "gross
negligence rising to the level of reckless disregard for the safety
of its customers." (See Paragraph 24 of Plaintiff's Amended
Complaint. )
8. The Commonwealth of Pennsylvania in relevant case law
therein, establishes that punitive damages may only be awarded in
cases where defendant's conduct is egregious, outrageous, wanton,
willful, performed with evil motive or reckless indifference to the
rights of others. Negligent or even grossly negligent conduct on
the part of the defendant will not support a claim for punitive
damages.
9. Plaintiff has failed to aver any conduct on the part of
Defendant that rises to the standard warranting punitive damages.
- 2 -
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 94-4812
HELEN E. GELSINGER
Plaintiff
RITE AID OF PENNSYLVANIA, INC.
d/b/a RITE AID PHARMACY,
Defendants
JURY TRIAL DEMANDED
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to detend against the
claims set forth in the following pages, you must take action within
twenty (20) days after this Complaint 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 notice for any money claimed in the Complaint or
for any other claim or relief requested by the Plaintitt. 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.
Court Administrator, 4th Fl.
Cumberland county Courthouse
One Courthouse square
Carlisle, PA 17013
240-6200
v.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 94-4812
HELEN E. GELSINGER
Plaintiff
RITE AID OF PENNSYLVANIA, INC.:
d/b/a RITE AID PHARMACY,
Defendants JURY TRIAL DEMANDED
AMENDED COMPLAINT
1. Plaintiff Helen Gelsinger is an adult residing in
Chambersburg, Franklin county, Pennsylvania.
2. Defendant Rite Aid Corporation is a profit-making
corporation whose headquarters iR located in Shiremanstown,
Cumberland County, Pennsylvania.
3. In August, 1993, Helen Gelsinger underwent major open
heart surgery to replace a faulty heart valve. As a result of the
surgery and valve replacement, her treating physician placed Helen
Gelsinger on CClumadin, a blood thinner, for the balance of her
life.
4. On October 13, 1993, Helen Gelsinger brought her
physician's prescription for Coumadin, 2 milligram tablets, to a
Rite Aid pharmacy located on 39 Warm Springs Road, Chambersburg,
PennsylvanIa.
5. The Rite Aid Pharmacy j/2275 at Warm Springs Road,
Chambersburg, Pennsylvania is owned, operated and controlled by
Defendant Rite Aid corporation.
6. Detendant Rite Aid has the Pharmacy License for said
49851/MMP
pharmacy and employed the pharmacists therein.
7. On October 13, 1993 the Rite Aid Pharmacy qave Helen
Gelsinger a prescript:.on bottle labeled "Coumadin 2 mg. tablets."
However, unbeknownst to Helen Gelsinger, the bottle labeled 2
milligram tablets actually contained l.Q milLigram coumadin tablets,
five times the amount required by her physician's prescription.
8. Unbeknownst to Helen Gelsinger, but surely within the
knowledge of the dispensing pharmacist, coumadin tablets are color
coded and numbered by the manufacturer. A 2 milligram tablet is
gray with the number 2 embedded in the pill. A 10 milligram tablet
is white with the number 10 embedded in the pIll.
9. Despite the very obvious visual differences between a 2
milligram and a 10 milligram Coumadin tablet, the Rite Aid employee
put white pills with the number 10 into a bottle which he had just
labeled "Coumadin 2 mqs."
10. On October 28, 1993, Helen Gelsinger woke up with blood
in her mouth from bleeding in her gums which she could not stop.
Her physician was concerned enough to hospitalized her in an
attempt to regulate her coagulation.
11. While in the hospital utilizing Coumadin dispensed by the
hospital pharmacy, Mrs. Gelsinger's coagulation stabilized at a
prothrombin time of 18.3 seconds.
12. On November 11, following her discharge from the hospital
and resumption of use of the Rite Aid prescription, Mrs.
Gelsinger's prothrombin time rose to 42.3 seconds, more than three
times the therapeutic range.
13. Over the next several weeks, Mrs. Gelsinger was unable to
regulate her coagulation despite stopping and restarting the
Coumadin prescription. Consequently, even though Mrs. Gelsinger's
heart had returned to normal and she had no symptoms related to her
heart surgery, her physician did not feel she could return to work.
14. The inability to return to work and to regulate her blood
thinners was very disturbing to Mrs. Gelsinger given her recent
serious heart operation and the knowledge she would have to use
blood thinners for the rest of her life.
15. As a direct result of Defendants supplying the wrong
dosage of her prescribed medication, Helen Gelsinger has suftered
the following damages:
(a) a loss of earnings;
(b) a loss of earning capacity;
(c) present and future pain, sufferIng and anxiety;
(d) present and future medical expenses;
(e) a loss of life's pleasures:
COUNT I - NEGLIGENCE
16. Paragraphs 1 through 15 are incorporated herein by
reference. Defendant Rite Aid is liable to Helen Gelsinger tor the
injurIes alleged herein which were directly and proximally caused
by Detendant's negligence and/or gross negligence in:
(a) dispensing a drug to Mrs. Gelsinger whj,ch was not in
the dosage prescribed by her physician:
(b) mislabeling Helen Gelsinger's medication to indicate
2 milligram tablets when 10 milligram tablets were contained
therein,
(c) providing 10 milligram tablets to a patient which
Defendant knew or should have known exceeded the patient's
appropriate dosage,
(d) failing to have in place sufficient procedures and
protocols to assure that the proper drug was dispensed in a proper
dosage as defined by the physician's prescription:
(el failing to read their own label and recognize that
a whIte 10 milligram tablet was not a gray 2 milligram table of
coumadin:
(f) failing to observe the color differences between 2
and 10 milligram tablets:
(g) employing a pharmacist who violated the Pharmacy
Act, 63 P.S. ~390-4, and 390-5(B), 390-5(11) and 390-5(12).
(h) violating the regulations of the Pennsylvania
Pharmacy Board concerning the dispensing of medications found in 49
Pa. Code ~ 27.3.2, 27.14, 27.18 (d), (p) and (r) (4), 27.19 and
27.32 :
Food,
(i) violating section 502(a) and 201(m) of the Federal
Drug and Cosmetic Act regarding the mislabeling of
pharmaceutical products I
(j) violating 35 P. S. 780-102 and 780-ll3 (a) regulations
regarding consistency of the medications dispensed by retailers to
the physician's and manufacturer's requirements I and
(k) viOlating Rite Aid's own internal policy and
protocol regarding the checking of the dispensed medIcation to
assure performance with the physician's order.
17. The dispensing of a prescription drug by a pharmacy is
completely and exclusively under the pharmacy's control and the
pharmacy could not possibly put a 10 milligram pill in a bottle
labeled and prescribed for 2 milligrams, in the absence ot
negligence on the part of its employees.
WHEREFORE, Plaintiff prays for judgment agaInst Defendant in
an amount in excess of Twenty Thousand ($20,000) Dollars, exclusive
of Interest and costs, and in excess of any jurIsdictional amount
requiring compulsory arbitration.
COUNT 11- UCC STRICT LIABILITY
18. Paragraphs 1 through 15 are incorporated herein by
reference.
19. Detendant Rite Aid is also strictly lIable to Plaintitt
under the Uniform Commercial Code warranty of merchantabIlity, 13
Pa. C.S.A. 2314 and the warranty of fitness for a particular
purpose, 13 Pa. C.S.A. ~2315 by selling Plaintiff a product which
did not conform with her written prescriptions.
WHEREFORE, Plaintitf prays for judgment against Oetendant J.n
an amount in excess of Twenty Thousand ($20,000) Dollars, exclusive
ot interest and costs, and in excess of any jurisdictional amount
requiring compulsory arbitration.
COUNT III - EXEMPLARY DAMAGES
20. Paragraphs 1 through 15 and Counts I and II are
incorporated herein by reference.
21. Prescription drugs, by their nature, present significant
risks of harm to the consumer unless prescribed in the specific
manner regulated by both the Commonwealth of Pennsylvania and the
UnIted states qovernment. The public must, by necessity, obtain
prescription drugs through a pharmacy.
22. Coumadin, a potent blood thinner, can and does cause
signi.ficant risks of harm to its users, including death and serious
personal injury. It is only safe when taken in the dosage
prescribed by the treating physician. Coumadin is only legally
available through a Licensed Pharmacy.
23. The manufacturer of Coumadin provides clear color coding
of its pills to avoid any misunderstanding as to their dosage. The
color coding and numbering of such pills is obvIous and well known
to pharmacists who jOb it is to dispense such medIcatIon in the
proper dosage to their customers.
24. For Rite Aid to dispense to Helen Gelsinger, a recent
heart surgery patient, a bottle of Coumadin labeled 2 milligrams
VERIFI~ATION
I, HELEN GELSINGER, do hereby swear and affirm that the tacts set
torth in the toregoing document are true and correct to the best ot my
knowledge, intormation and beliet.
I understand that thia
veritication Is made subject to the penalties ot 18 Pa.C.S. t 4904,
relatIng to unsworn falsification to authorities.
WITNESS:
-mil L ~ I. &. ni /2.u ~ _.
Dated: IoN /?1
ti~ E' ~
HE GELSINGER
CERTIFICATE OF SERVICE
AND NOW, this 4th day of october, 1994, I, Michelle M.
prucnal, an employee ot Angino & Rovner, P.C., do hereby certity
that I have served a true and correct copy of the PLAINTIFF'S
AMENDED COMPLAINT in the United states mail, postage prepaid at
Harrisburg, Pennsylvania, addressed as follows:
Sarah A. Arosell, Esquire
THOMAS, THOMAS & HAFER
305 N. Front Street
Harrisburg, PA 17108-0999
Attorney for Defendant
. ~.~-
~prucnal
II. '~A~"IMT O' OUI.TIOH PRI.IMTIDI
A. au PLAIMTU' rAILID TO .TAT. A OLAIK ,oa nlCB 'I'B.
alLU' 0' PUIIITIVI DAIlAGI. OAII .. GIlAIlTID .ICAU.. 'B.
'AIL' TO PLIAD .U'.IOIIIT 'AOT. WHICB WOULD .uppoa'l' A
'IIIDIIIG TIlAT DI'IIIDAIIT ACTlD WITB IIVIL HOTlVI oa aICILI..
IIIDI"IRIHCI TO THI PLAIITI'." RIGHT"
(suggested answer: Yes)
nI. UGVIIIITI
A. PLAIMTI" BAS .AILID TO .TATI A CLAIK 'OR nICH THI
RILU. O. PUHITIVI DUAGI. CAlI .1 GIlAIlTID .ICAU.I .HI
.AILS TO PLIAD SU..ICIIIT 'ACTS WHICH WOULD SUPPORT A
'INDING TIlAT DI.INDlUIT ACTIlD WITH IIVIL IIMIV. OR RICKLISS
INDI..IRINCI TO. THI PLAINTI"'S RIGHTS.
Pennsylvania is a fact pleading state and as such requires
that the pleadings do more than merely give notice of the charges
to be defended. ~ Pa. R.C.P. 1019; Baker v. Ranaos, 229 Pa.
Super. 33, 324 A.2d 498 (1974). Additionally, although Pa. R.C.P.
1019(b) allows a condition of mind to be averred generally, that
section was not meant to eliminate the requirement ot pleading the
tactual circumstances giving rise to an inference as to the state
ot mind ot the actor. ~ Ammluna v. Platt, 224 Pa. Super. 47, 302
A.2d 491 (1973).
There are no facts alleged in Plaintitt' s
Amended Complaint which would give rise to an inference. that
Defendant-pharmacy's conduct rose to the level ot evil motive or
reckless indifterence to the rights of others as opposed to mere
negligence tor which punitive or exemplary damages cannot be
awarded.
- 2 -
The tactual allegations imputing wrongdoing to Detendant Rite
Aid are set torth in Paragraphs 7 - 9 ot Plaintift's Amended
Complaint as tollows:
7. On October 13, 1993 the Rite Aid Pharmacy gave Helen
Gelsinger a prescription bottle labeled "Coumadin 2 mg.
tablets." However, unbeknownst to Helen Gelsinger, the
bottle labeled 2 milligram tablets actually contained 10
milligram coumadin tablets, five times the amount
required by her physician's prescription.
8. Unbeknownst to Helen Gelsinger, but surely within the
knowledge ot the dispensing pharmacist, coumadin tablets
are color coded and numbered by the manutacturer. A 2
milligram tablet is gray with the number 2 embedded in
the pill. A 10 milligram tablet is white with the number
10 embedded in the pill.
9. Despite the very obvious visual ditterences between
a 2 milligram and 10 milligram Coumadin tablet, the Rite
Aid employee put white pills with the number 10 into a
bottle which he had just labeled "Coumadin 2 mgs."
These factual averments are repeated, albeit not verbatim, in
Count I ot Plaintiff's Amended Complaint, entitled "Negligence" and
in Count III entitled "Exemplary Damages," followed by the self-
serving legal conclusions that Defendant' misfill ot Plaintiff's
prescription was "gross negligence rising to the level of reckless
dIsregard for the safety of its customers" and a violation ot
Federal and stllte statutes and regulations "which also justifies
the imposition ot exemplary damages." (See Paragraphs 16, 24 and
25 ot Plaintiff's Amended Complaint, attached as Exhibit "A" to
Oetendant's Preliminary Objections).
The Courts ot this Commonwealth have consistently held that
punitive damages will only be awarded to punish conduct "that is so
- 3 -
outraqeous as to rise to the level ot intentional, willtul, wanton
or reckless conduct". ~ Restatement (Second) ot Torts section
908(2); Abadie v. Riddle Memorial HosDital, 404 Pa. Super. 8, 15,
1589 A.2d 1143,1146 (1991); Martin v. Johns-Manville CorD., 508 Pa.
154, 494 A.2d 1088 (1985). The award ot punitive damaqes is
appropriate to punish and deter only extreme behavior and is
justltiable in rare instances subject to the strict control ot the
court. Martin v. Johns-Manville CorD.,~. Ordinary negliqence
alone is not sutficient to sustain an award ot punitive damages.
Chambers v. Montaomerv, 411 Pa. 339, 192 A.2d 355 (1963); McDaniel
v. Merck. Share & Dome, 367 Pa. Super. 600, 623, 533 A.2d 436, 447
(1987), .11m. W. 520 Pa. 589, 551 A.2d 215 (1988). Punitive
damaqes are not justified where the defendant's mental state rises
to no more than gross negligence. SHV Coal v. Continental Grain
~, 526 Pa. 489, 587 A.2d 703, 705 (1991). Only if there has been
conduct which is contrary to the Plaintitf's interest and involves
evil motive or reckless inditference to the Plaintitf's well-being
may punitive damages be awarded. Chambers v. Montaomerv, sUDra;
~ Alag Schecter v. Watkins, 395 Pa. Super. 363, 383, 577 A.2d
585, 595 (1990).
Since Plaintiff has failed to plead evil motive on the part ot
Defendant Rite Aid Pharmacy, this court must determine whether
Plaintitf has sufficiently alleged facts which would support the
conclusion that the behavior of the Defendant-pharmacy constituted
"reckless indifference to the rights ot others".
- 4 -
Pennsylvania courts have adopted the standard tor reokless or
wanton misconduct set torth in section !500 ot the Restatement
(Seoond) ot Torts. ~ Parker v. Jones, 423 Pa. 15, 20, 223 A.2d
229, 232 (1966); Evans v. PhiladelDhia TransDortation ComDanv, 418
Pa. 567, 574, 212 A.2d 440, 444 (1965); Junk v. East End Fire
pepartment, 262 Pa. Super. 473, 4Bl-482, 396 A.2d 1269, 1273
(1978). section 500 of the Restatement (Second) of Torts provides:
The actor's conduct is in reckless disregard ot the
satety of another if he does an act or intentionally
fails to do an act which it is his duty to the other to
do, knowing or having reason to know ot facts which would
lead a reasonable man to realize, not only that his
conduct creates an unreasonable risk ot physical harm to
another, but also that such risk is substantially greater
than that which is necessary to make his conduct
negligent.
Comment b of Section 500 of the Restatement ot Torts provides
turther:
PerceDtion of risk. Conduct cannot be in reckless
disreqard of the safetv of others unless the act or
omission is itself intended, notwithstanding that the
actor knows of facts which would lead any reasonable man
to realize the extreme risk to which is subjects the
safety of others. (Emphasis added).
Comment g of Section 500 of the Restatement of Torts provIdes
turther:
Nealiaence and recklessness contrasted. Reckless
misconduct ditfers from negligence in several important
particulars. It differs from that form ot negligence
which consists in mere inadvertence, incompetence,
unskillfulness, or a failure to take precautions to
enable the actor adequately to cope with a possible or
probable future emergency, in that reckless misconduct
reauires a conscious choice ot a course ot action, either
with knowledge of the serious danger to others involved
in it or with knowledge of tacts which would disclose
- 5 -
this danger to any reasonable man
added) .
Comment e ot section 500 ot the Restatement ot Torts provides
.
(Emphaais
further I
violation ot statute. The mere tact that certain
precautions are required by a statute rather than the
common law does not ot itselt make the intentional
omission ot the statutory precaution reckless
inditterence to the satety of others. In order that the
breach ot the statute constitute reckless disregard tor
the satety of those for whose protection it is enacted,
the statute must not only be intentionally violated, but
the precautions required must be such that their omission
will be recognized as involving a high degree ot
probability that serious harm will result...
(Emphasis added).
The detendant's state ot mind is vital because the act or the
tailure to act in reckless disregard of the satety ot others must
be conscious and intended in order to sustain a cause ot action tor
punitive damages. ~ Martin v. Johns-Manville CorD., SUDra 494
A.2d 1088 (1985) (In deciding whether punitive damages are
assessable, the motive tor the tort feasor's act must be taken into
account, not just the nature ot the act itself); ~aro v. Reminaton
Arms Co.. Inc., 432 Pa. Super. 60, 637 A.2d 983, 989 (1993) (WhIle
the element of knowledge or intention is irrelevant to a claim tor
strict liability, it is particularly relevant in the context ot a
claim tor punitive damages); Pittsburah Live. Inc. V. Servov,
419 Pa. Super. 423, 615 A.2d 438, 442 (1992) (To justlty the award
ot punitive damages, there must be acts of malice, vindictiveness
and a wholly wanton disregard ot the rights ot others).
- 6 -
plaintitt attempts to obviate the requirement to plead intent
or conscious disregard by concluding in Paragraph 25 that a
violation ot Federal and state statutes and regulations, more
specifically the Pennsylvania Pharmacy Act, Regulations promulgated
by the PA Pharmacy Board, the Pennsylvania Drug, Device and
Cosmetic Act and the Federal Food, Drug and Cosmetic Act justities
the impodtion of exemplary damages. As set torth above, in
Comment e ot Section 500 of the Restatement ot Torts, the statute
must be intentionally violated to make omission ot a statutory
precaution reckless indifference to the safety ot others.
In this case, Plaintiff has failed to aver any conduct on the
part ot Detendant Rite Aid which rises to the level whIch would
support an award of punitive damages pursuant to the standards ot
Restatement (Second) of Torts Sections 90B(2) and 500. Plaintitt
avers no tacts within her Amended Complaint that evidence Detendant
Rite Aid's outrageous conduct, performed with intentional, willtul,
wanton or evil motive or in conscious reckless disregard tor the
satety ot Plaintiff. The alleged facts, it proven at trial, may
establish inadvertence, incompetence, unskillfulness, i.e.,
ordinary negligence, but they certainly do not establish egregious
conduct to support a claim for punitive damages.
The appropriate remedy in casos where the complaint tails to
state a claim for which relief may be granted is to sustain the
preliminary objections. In Cumberland County, claims for punitive
damages have been struck when the plaintifts have tailed to allege
- 7 -
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 94-4812
HELEN E. GELSINGER
Plaintiff
RITE AID OF PENNSYLVANIA, INC.:
d/b/a RITE AID PHARMACY,
Defendants JURY TRIAL DEMANDED
PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT
RITE AID OF PENNSYLVANIA. INC. d/b/a/ RITE AID PHARMACY'S
PRELIMINARY OBJECTIONS TO THE AMENDED COMPLAlHI
Facts and Procedural History:
On October 13, 1993, Helen Gelsinger brought her physician's
prescription for Coumadin 2 mg tablets to a Rite Aid pharmacy. At
that time, the Rite Aid Pharmacy gave Helen a prescrIption bottle
labeled Coumadin 2 mg tablets.
However, the bottle actually
contained 10 mg coumadin tablets, five times the amount prescribed
by her physician. Coumadin tablets are color coded and numbered by
the manufacturer. The 2 milligram tablet is gray with the number
"2" embedded in the pill. A 10 milligram table is white wIth the
number "10" embedded in the pill.
Despite the very obvious
differences, a Rite Aid employee put white pills with the number 10
into a bottle which she had just labeled Coumadin 2 mg.
As a result of Defendant's conduct, Helen Gelsinger suffered
bleeding from her gums and was unable to regulate her coagulation.
As a result of her injuries, Mrs. Gelsinger also suffered some work
loss.
On or about October 4, 1994, Plaintiff initiated suit against
S7302lMMP
Defendant Rite Aid Corporation tor supplyin9 the wrong dosage ot
her prescribed medication. A~ part ot this suit, Plaintiff brought
a claim for punitive damages averring facts in the Complaint of
Defendant's outrageous conduct. Defendant tiled Preliminary
objections to this Complaint on September 20, 1994. In response,
Plaintiff filed an Amended Complaint on October 4, 1994. On
October 18, 1994, Defendant Rite Aid Corporation filed Preliminary
objections to the Amended Complaint challenging tho punitive
damages claim.
Arqument:
It is well established that before Preliminary Objections in
the nature of a demurer can be sustained, the Defendant must meet
a substantial burden. A demurrer admits every pleaded material
fact set forth as well as inferences reasonably deductible
therefrom, but not conclusions of law. Bartanus v. Lee, 332 Pa.
Super. 48, 480 A.2d 1170 (1984). It tests the legal sufficiency of
the challenged complaint and will be sustained only in cases where
the pleader has clearly failed to state a claim for which relief
may be granted. Creeger Brick v. Mid-state Bank, 385 Pa. Super.
30, 560 A.2d 151 (1989). If there is any doubt as to whether a
claim has been stated, 'che demurrer should be overruled. Bondas v.
UDDer Saucon Townshi~, 127 Pa. Cmwlth. 378, 361 A.2d 1290 (1989).
The standard for punitive damages as adopted by the
2
is necessary to make his conduct negligent.
au, Martin v. Johns-Manville CorD., 508 Pa. 154, 494 A.2d 1088,
1095 (1985).
The definition of reckless indifference requires a two fold
analysis. First, the Defendant must know or have reason to know at
facts to create a high degree of risk at personal harm to the
consumer. Second, the Defendant must deliberately proc~ed to act
in conscious disregard of the risk. The requisite mental state is
present where the Defendant had the knowledge of the hIgh degree of
risk involved. Field v. PhiladelDhia Elec. Co., 388 Pa. Super.
400, 565 A.2d 1170, 1182 (1989).
In Field, the superior Court stated that the reckless mental
state was present, thus warranting the claim for punitive damages,
where the Complaint alleged that the worker told supervisors at the
power company that it was dangerous to operate a reactor while
remedying the standing water problem in an off-gas pipe tunnel, and
despite this knowledge, Defendant intentionally vented steam
activating the reactor while the Plaintiff was remedying the
standing water problem. Field, 565 A.2d at 1183.
Additionally, in Georae v. Caravan EXDress. Inc., 9 D. & C.
4th, 593 (C.P. Lafayette CO. 1990), plaintiff satisfactorily
alleged the r.eckless state of mind where the Complaint stated that
the Defendant was "negligent, careless and reckless' [i]n failing
4
to train and instruct its servant, agent, employee . . . in proper
methods and procedures of operating a tractor trailer
combination. III This allegation was enough to satisfy the standard
of a claim for punitive damages. ~
The Federal District Court in Moser v. Bosti tch Di v. ot
Textron. Inc., has also permitted a claim tor punitive damages to
be asserted where the Complaint sufficiently averred tacts ot the
Defendant's outrageous conduct. In applying Pennsylvania law, this
court held that the statements of the Complaint alleging that the
Plaintiff was injured when a piece of wire holding rooting nails
together in a nailer came out and penetrated his eye satisfied the
standard of punitive damages so as to support this claim. Moser v.
Bostitch Div. of Textron. Inc., 609 F.Supp. 917 (W.D. Pa. 1985).
Punitive damages have been awarded in other situations such as
a bank using a customer's information to the detriment of a
customer Delahantv v. First pennsvlvania Bank N.A., 318 Pa. Super.
90,464 A.2d 1243 (1983); drunken driving on a city street Focht v.
Rabada, 217 Pa. Super. 35, 268 A.2d 157 (1970); a failure to give
a plaintiff copies of her medical records pierce v. Penman, 357 Pa.
Super. 225, 515 A.2d 948 (1986); failing to take care of a patient
who was left lying on a cold floor for two hours even though there
was no additional physical injury Hoffman v. Memorial OsteoDathic
HOSD., 342 Pa. Super. 375, 492 A.2d 1382 (1985); false arrest tor
5
shoplifting Dalev v. John Wanamaker. Inc., 317 Pa. Super. 348, 464
A.2d 355 (1983) I and, recklessly stating that a tootball player had
a fatal disease Chuv v. PhiladelDhia Eaales Football C~, 595 F.2d
1265 (3d Cir. 1979) I Medvecz v. Choi, 569 F.2d 1221 (3d Cir. 1977).
In the present case, Helen Gelsinger suffered severe injurIes
as a result of the careless and reckless acts of Defendant Rite Aid
pharmacy and its employees. The Amended Complaint alleges facts to
support Defendant's awareness of the facts to create a high degree
of risk of personal harm to the consumer.
Amended Complaint provides:
6. Defendant Rite Aid has the Pharmacy License
for said pharmacy and employed the pharmacists therein.
specifically, the
8. Unbeknownst to Helen Gelsinger, but
surely within the knowledge of the dispensing pharmacist,
Coumadin tablets are color coded and numbered by the
manufacturer. A 2 milligram tablet is gray with the
number 2 embedded in the pill. A 10 milligram tablet is
white with the number 10 embedded in the pill.
22. Coumadin, a potent blood thinner, can and does
cause significant risks of harm to its users, inclUding
death and serious personal injury. It is only safe when
taken in the dosage prescribed by the treating physician.
Coumadin is only legally available through a Licensed
Pharmacy.
23. The manufacturer of Coumadin provides clear
color coding of its pills to avoid any misunderstanding
as to their dosage. The color coding and numbering of
such pillS is obvious and well known to pharmacists who
jOb it is to dispense such medicatIon in the proper
dosage to their customers.
As tha Amended Complaint states, the Defendant possesses the
6
requisite knowledge of the hlgh degree ot risk. The Defendant is
a licensed pharmacy with trained individuals who handle drugs such
as Coumadin on a daily basis.
The Defendant is aware ot the
effects of such medication if taken in improper doses. Thus, the
Defendant knew or had reason to know of the risks to the consumer
associated with supplying and dispensing the wrong medication.
The Amended Complaint further alleges the Detendant's
conscious disregard of that risk. specifically, it states:
7. On October 13, 1993 the Rite Aid Pharmacy gave
Helen Gelsinger a prescription bottle labeled "Coumadin
2 mg. tablets." However, unbeknownst to Helen Gelsinger,
the bottle labeled 2 milligram tablets actually contained
l.Q milligram Coumadin tablets, five times the amount
required by her physicIan's prescription.
9. Despite the very obvious visual differences
between a 2 milligram and a 10 milligram Coumadin tablet,
the Rite Aid employee put white pills wIth the number 10
into a bottle whIch he had just labeled "Coumadin 2 mgs."
Moreover, subparts (b), (c), (e), (f), (h), (h), and (i) of
paragraph 16 and paragraph 24 provide:
(b) mislabeling Helen GelsInger's medication
to indicate 2 milligram tablets when 10
milligram tablets were contained therein,
(c) providing 10 milligram tablets to a
patient which Defendant knew or should have
known exceeded the patient's appropriate
dosage;
***..
(e) failing to read their own label and
recognize that a white 10 milligram tablet was
not a gray 2 milligram table of coumadin,
(f) failing to observe the color difterences
between 2 and 10 milligram tablets;
(g) employing a pharmacist who violated the
7
HELEN E. GELSINGER
plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
NO. 94-4812
RITE AID OF PENNSYLVANIA, INC.:
d/b/a RITE AID PHARMACY,
Defendants JURY TRIAL DEMANDED
AMENDED COMPLAINT
1. Plaintiff Helen Gelsinger is an adult residing in
Chambersburg, Franklin County, Pennsylvania.
2. Defendant Rite Aid corporation is a profit-making
corporation whose headquarters is located in Shiremanstown,
Cumberland county, Pennsylvania.
3. In August, 1993, Helen Gelsinger underwent major open
heart surgery to replace a faulty heart valve. As a result of the
surgery and valve replacement, her treating physician placed Helen
Gelsinger on Coumadin, a blood thinner, for the balance of her
life.
4. On October 13, 1993, Helen Gelsinger brought her
physician's prescription for Coumadin, 2 milligram tablets, to a
Rite Aid pharmacy located on 39 Warm Springs Road, Chambersburg,
Pennsylvania.
5. The Rite Aid Pharmacy #2275 at Warm Springs Road,
Chambersburg, Pennsylvania is owned, operated and controlled by
Defendant Rite Aid corporation.
6. De fendant Rite Aid has the Pharmacy License for said
49851/MMP
pharmacy and employed the pharmacists therein.
7. On October 13, 1993 the Rite Aid Pharmacy gave Helen
Gelsinger a prescription bottle labeled "Coumadin 2 mg. tablets."
However, unbeknownst to Helen Gelsinger, the bottle labeled 2
milligram tablets actually contained .JJ!. milligram Coumadin tablets,
five times the amount required by her physician's prescription.
8. Unbeknownst to Helen Gelsinger, but surely within the
knowledge of the dispensing pharmacist, Coumadin tablets are color
coded and numbered by the manufacturer. A 2 milligram tablet is
gray with the number 2 embedded in the pill. A 10 milligram tablet
is white with the number 10 embedded in the pill.
9. Despite the very obvious visual differences between a 2
milligram and a 10 milligram Coumadin tablet, the Rite Aid employee
put white pills with the number 10 into a bottle which he had just
labeled "Coumadin 2 mgs."
10. On October 28, 1993, Helen Gelsinger woke up with blood
in her mouth from bleeding in her gums which she could not stop.
Her physician was concerned enough to hospitalized her in an
attempt to regulate her coagulation.
11. While in the hospital utilizing Coumadin dispensed by the
hospi tal pharmacy, Mrs. Gelsinger's coagulation stabil ized at a
prothrombin time of 18.3 seconds.
12. On November 11, following her discharge from the hospital
and resumption of use of the Rite Aid prescription, Mrs.
Gelsinger's prothrombin time rose to 4a.J seconds, more than three
times the therapeutic range.
13. Over the next several weeks, Mrs. Gelsinger was unable to
regulate her coagu !l1t Ion desp 1 te stopping and restarting the
Coumadin prescription. consequently, even though Mrs. Gelsinger's
heart had returned to normn 1 and she had no symptoms related to her
heart surgery, her phyalclnn did not feel she could return to work.
14. The Inability to return to work and to regulate her blood
thinners was very dlHturblnq to Mrs. Gelsinger given her recent
serious heart operation and the knowledge she would have to use
blood thinners for tho rest of her life.
15. As a dir.ect result of Defendants supplying the wrong
dosage of her. prescribed medication, Helen Gelsinger has suffered
the following damages I
(a) a loss of earnings;
(b) a 108s of earning capacity:
(c) present and future pain, suffering and anxiety;
(d) present and futuro medical expenses;
(e) a loss of life's pleasures:
COUNT I - NEGLIGENCE
16. Paragraphs 1 through 15 are incorporated hereIn by
reterence. Defendant Rite Aid is liable to Helen Gelsinger for the
injuries alleged heroin which were directly and proximally caused
by Defendant's negligence and/or gross negligence in:
(a) dispensing a drug to Mrs. Gelsinger which was not in
the dosage prescribed by her physician I
(b) mislabeling Helen Gelsinger's medication to indicate
2 milligram tablets when 10 milligram tablets were contained
thereinl
(c) providing 10 milligram tablets to a patient which
Defendant knew or should have known exceeded the patient's
appropriate dosage I
(d) failing to have in place sufficient procedures and
protocols to assure that the proper drug was dispensed in a proper
dosage as defined by the physician'S prescription;
(e) failing to read their own label and recognize that
a white 10 milligram tablet was not a gray 2 milligram table of
coumadin;
(f) failing to observe the color differences between 2
and 10 milligram tablets;
(g) employing a pharmacist who violated the Pharmacy
Act, 63 P.S. ~390-4, and 390-5(8), 390-5(11) and 390-5(12).
(h) violating the regulations of the Pennsylvania
Pharmacy Board concerning the dispensing of medications found In 49
Pa. Code ~ 27.12, 27.14, 27.18 (d), (p) and (r) (4), 27.19 and
27.32;
(i) violating section 502(a) and 201(m) of the Federal
Food, Drug and Cosmetic Act regarding the mislabeling of
pharmaceutical products,
(j) violating 35 P.S. 780-102 and 7BO-113(a)regulations
regarding consistency of the medications dispensed by retailers to
the physician's and manufacturer's requirements, and
(k) violating Rite Aid's own internal policy and
protocol regard Lng the checking of the dispensed medication to
assure performance with the physician's order.
1'1. The d Lspens Lng of a prescription drug by a pharmacy is
complotely and oxclusLvely under the pharmacy's control and the
pharmacy could not possibly put a 10 milligram pill in a bottle
labeled and pretllJt'Lbed for 2 milligrams, in the absence of
negligence on the part of its employees.
WHEREFORE, Plaintiff prays for jUdgment against Defendant in
an amount in excess of Twenty Thousand ($20,000) Dollars, exclusive
of interest and costs, and in excess of any jurisdictional amount
requiring compulsory arbitration.
COUNT 11- UCC STRICT LIABILITY
18. Paraqraphs 1 through 15 are incorporated herein by
referenco.
19. Defendant Rite Aid is also strictly liable to Plaintiff
under the Uniform Commercial Code warranty of merchantability, 13
Pa. C.S.A. 2314 and the warranty of fitness for a particular
purpose, 13 Pa. C.S.A. 92315 by selling Plaintiff a product which
dld not conform with her written prescriptions.
WHEREFORE, Plaintiff prays for judgment against Defendant in
an amount in excess of Twenty Thousand ($20,000) Dollars, exclusive
of interest and costs, and in excess of any jurisdictional amount
requiring compulsory arbitration.
COUNT III - EXEMPLARY DAMAGES
20. Paragraphs 1 through 15 and Counts I and II are
incorporated herein by reference.
21. prescription drugs, by their nature, present significant
risks of harm to the consumer unless prescribed in the specIfic
manner regulated by both the Commonwealth of Pennsylvania and the
united states government. The pUblic must, by necessity, obtain
prescription drugs through a pharmacy.
22. Coumadin, a potent blood thinner, can and does cause
significant risks of harm to its users, including death and serious
personal injury. It is only safe when taken in the dosage
prescribed by the treating physician. Coumadin is only legally
available through a Licensed Pharmacy.
23. The manufacturer of Coumadin provides clear color Qoding
of its pills to avoid any misunderstanding as to their dosage. The
color coding and numbering of such pills is obvious and well known
to pharmacists who job it is to dispense such medication in the
proper dosage to their customers.
24. For Rite Aid to dispense to Helen Gelsinger, a recent
heart surgery patient, a bottle of Coumadin labeled 2 milligrams
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: IN THE COURT OF COMMO P EAS
CUMBERLAND COUNTY, PENNSYLVANIA
I
NO. 94-4812
v.
CIVIL ACTION - LAW
RITE AID OF PENNSYLVANIA, INC.,
d/b/a RITE AID PHARMACY,
Defendant
JURY TRIAL DEMANDED
STIPULATIOlf
IT IS HEREBY STIPULATED AND AGREF.D, by and among the counsel
indicated below, as authorized by their respective clients, that
the caption ot the above case should be amended to reUect the
proper name ot the Defendant as Rite Aid of Pennsylvania, Inc.,
d/b/a Rite Aid Pharmacy, and that all further pleadings in the case
will note the correct name.
THOMAS, THOMAS I BAFER
ANQINO I ROVNER
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By: -t(uttUU/l.w,,d-L,
S W. Arosell, Esquire
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
AttornlllYs tor Defendant, Rite
Aid ot Pennsylvania, Inc.,
d/b/a Rite Aid Pharmacy
DATED: /1'/')'1
DATED:
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
IMult bl typlwrlnln Ind lubmlnld In dupllcltll
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Pl.... lift the within men., fo, Ihe "1)11:
.JL
A,gum.nl Cou,'
C....PTION OF CASE:
l.nll,. ..pllon mUll b. .,.lId In 'ulll
HELEN E. GELSINGER.
PI.lnlllf
IN THE COURT OF COMMON PLE....S OF
CUMBERLAND COUNTY, PENNSYLVANIA
y.
NO. 84.4812
RITE AID OF PENNSYLVANIA, INC., d/bl. RITE AID
PHARMACY.
D,'.nd.nl
CIVIL ACTION. LAW
JURY TRIAL DEMANDED
1. Stat, mener to be a,gued ILe., plaintiff'1 motion tor new trial,
defendant'. demur,., to complolnt, ete.l:
O,f.ndent', Preliminary Objection. to Plaintiff'. Amended Complaint
2.
Identify counll8l who will arguo cose:
II) for plaintiff: Terry S. Hyman, Elqulre
AN GINO & ROVNER. P.C.
4503 North F,ont S"lIt
H."ilbu,g, PA 17110
Ibl '0' d.f.ndont: So,oh W. A,ololl. Elqui,o
THOMAS. THOMAS & HAFER
306 Nonh Front Street
P.O. Box 999
Ho"ilburg. PA 17108.0999
3,
'will notify ell perU.. in writing within two dayit' th~1 thiS case he. been
lI.t.d '0' .,gum.nt.
THOMAS. THOMAS & HAFER
By: I~A~""<<""
Sarah W. Arosell, E.qui,.
Attorney tor Defendant
O.I.d: O.Iob., 14, 1884
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 94-4B12
CIVIL ACTION - LAW
HELEN E. GELSINqER,
PlainUft
RITE AID OF PENNSYLVANIA, INC.,
d/b/a RITE AID PHA CY,
Defendant
JURY TRIAL DEMANDED
.
AND NOW, on his 20th day of september, 1994, comes the
Detendant, Rite Aid of Pennsylvania, Inc., d/b/a Rite Aid Pharmacy,
by and through its attorneys, Thomas, Thomas & Hafer, to raise
preliminary objections to Plaintiff's Complaint in the above-
captioned action as tollows:
1. Plaintift commenced this action by filing a Complaint on
August 25, 1994.
(A copy of Plaintiff's Complaint is attached
hereto as Exhibit "A.")
2. Detendant was served with the Complaint on August 31,
1994.
3. In hex' Complaint, Pl.aintiff alleges that Detendant-
pharmacy misfilled a prescription for Coumadin, a blood thinner,
causing her physical and emotional injury.
I. DEMURRER TO COUNT IV
4. Pennsylvania Rule of Civil Procedure l028(a) (4) provIdes
that a detendant may file preliminary objections in the nature of
a demurrer.
5. Plaintitt has demanded punitive damages in Count IV ot
her Complaint.
6. specitically, Plaintiff alleges in Count IV that
Detendant's mistill of Plaintift's prescription was "gross
negligence rising to the level ot recklesB disregard tor the satety
ot its customers." (See Paragraph 25 ot Plaintiff's Complaint.)
7. The Commonwealth of Pennsylvania in relevant case law
therein, establishes that punitive damages may only be awarded in
cases where detendant's conduct is egregious, outrageous, wanton,
willtul, pertormed with evil motive or reckless inditference to the
rights ot others. Negligent or even grossly negligent conduct on
the part ot the defendant will not support a claim for punitive
damages.
8. Plaintiff has failed to aver any conduct on the part ot
Detendant that rises to the standard warranting punitive damages.
WHEREFORE, Defendant RITE AID OF PENNSYLVANIA, INC.,d/b/a RnE
AID PHARMACY respectfully requests this Court, pursuant to Pa.
R.C.P. 1028(a)(4), grant its demurrer and dismiss Count IV and all
reterences to gross negligence which comprise Plaintift' s claim tor
punitive damages.
II. INSUFFICIENT SPECIFICITY OF SUBPARAGRAPHS 16 (hI - (i)
9. Pennsylvania Rule of Civil Procedure 1028(a)(3) provides
that a detendant may file preliminary objections on the grounds of
insufficient specificity in a pleading.
10. In Count I, Paragraph 16 of her Complaint, Plaintitt
claims that her injuries were proximately caused by the Defendant's
negligence and/or gross negligence by inter AliA:
(h) violating the regulations of the Pennsylvania
Pharmacy board concerning the dispensing ot medication in
- 2 -
a manner exactly consistent with the prescription written
by a physician;
(i) violating FDA regulations regarding the proper
labeling ot pharmaceutical products; and
(j) violating FDA regulations regarding consistency ot
the medications dispensed by retailers to the physician's
and manufacturer's requirements.
11. The allegations contained in subparagraphs 16 (h) - (j)
tail to identity which regulations of the Pharmacy Board and the
Food and Drug Administration Defendant-pharmacy has allegedly
violated.
Rather, the allegations as plead, are so broad and
nonspecific as to be in violation of the Pennsylvania Rules ot
civil procedure, Rule 1019(a) and in contravention ot Connor v.
Alleahenv General Hosoital, 501 Pa. 306, 461 A.2d 600 (1983).
12. Defendant is unable to respond or prepare a defense to
such overly broad, vague, conclusory and otherwise deticient
(j), to
allegations as set forth in subparagraphs 16 (h)
Detendant's great prejudice.
13. In addition to precluding Defendant from preparing an
adequate defense, the improper boilerplate allegations ot
negligence prejudice the Defendant in that if they remain in the
Complaint, the Plaintiff will be allowed to introduce a new theory
ot negligence at any time, not withstanding the expiration ot the
statute ot limitations.
WHEREFORE, Detendant RITE AID OF PENNSYLVANIA, INC.,d/b/a RnE
AID PHARMACY respectfully requests this court, pursuant to Pa.
R.C.P. 1028(a)(3), to strike subparagraphs 16 (h) - (j) or, in the
alternative, direct that the Plaintiff file a more specific
- 3 -
pleading identifying with particularity, those portions of the
Pharmacy Board Regulations and the Food and Drug Administration
Requlatiolls which Detendant has allegedly violated.
III. DBMURRER TO COONT II
14. Pennsylvania Rule of Civil Procedure 102B(a) (4) provides
that a defendant may tile preliminary objections in the nature ot
a demurrer.
15. In Count II, paragraph lB of her Complaint, Plaintitt
alleqes Detendant is liable for her injuries under the theory ot
res ipsa loquitur as follows:
Defendant is also liable under the Doctrine ot Res Ipsa
Loquitur since the dispensing of a prescription druq by
a pharmacy is completely and exclusively under the
pharmacy's control and the pharmacy could not possibly
put a 10 milligram pill in a bottle labeled and
prescribed for 2 milligrams, in the absence of negligence
on the part of its employeas.
16. Res ipsa loquitur is a rule of evidence, not a theory ot
liability or cause of action recognized by the Commonwealth ot
Pennsylvania.
17. Defendant is prejudiced by Plaintiff's attempt to bolster
her allegations of negligence by mischaracterizing an evidentiary
rule as a theory of liability and improperly pleading res ipsa
loquitur as a separate cause of action.
WHEREFORE, Defendant RITE AID OF PENNSYLVANIA, INC.,dVb/a RnE
AID PHARMACY respectfully requests this Court, pursuant to Pa.
- 4 -
5. . '3 '904 BI33
Eo l'lIC.-RI5I< MG
FROM 7i7~ lEi
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I IN THIl CO~T 0' COMMON PLIU
I CUKlIRLAHD COUNTY, PENNSYLVANIA
I
I CIVIL ACTION - tAW
I 110. qy_ IIPI2. (!,.U;J"~
I
I JURY TRIAL DEMAN DID
BILEN I. GELSINGIR
PldntiU
RITE AID CORPORATION,
Dafendant.
~~d~C;-
tJO'l'Ie.
yOU HAVE BEEN SUED IN CO~T. If you wish to defend a;ain.t the
01a1m. set forth in the tollowin9 page., you must take action within
twenty (ao) days after thil Complaint and NoUCI are sarvad, by entarin9
a written appearance personally or by attorney and filin; in writing
with thl Court your deten..s or Objection. to the claim. let forth
against you. '. You al:e warned that if you taU to do so the Clsa may
pl:ocead without you and a judiDent may be entered agaln.t you by the
Court without turther notice for any money olaimad in the Complaint 01:
for any other claim 01: relilt reque.ted by the plaintiff. You may 10'a
money or property or other rights important to you.
YOU SHOULD TAla: THIS PAPER TO YOUR tAl'l'YER AT ONCII:. Ir YOU DO 140'1'
HAVE A LAWYER OR CANNOT AFFORD ONB, GO TO OR TELEPHONE THE OFFICI SIT
FORTH BELOW TO FIND 0tJ'l' WHERE: YOU CAN GET LEGAL HELP.
Court AcSmini.trator, 4th '1.
cumberland County Courthouse'
One Courthouse Squire
carlisle, PA 1701'
/:JJ . . 340-1200
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e AID"RI5~ I"G
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HELIN I. OZL8%tlGU I
'l.in~itt I
I
v. I
I
RITI AID CORPORATION, .+l. "'\7S-~
Defendanta -tt "'..,. .
IN THI COURT or COMMON PLlAS
CUMBERLAND COUNfV, PINNSVLVANIA
CIVIL ACTION - LAW
NO.
JURV TRIAL DEMANDED
COMPUINT
1. plaintUt Helen Gelsinger ia an aeSul t. residing 1n
cnambersbur9, r~anklin county, Pennsylvania.
2. Defendant Rite Aid corporation is a protit-makinq corporation
whose haa<lquar1:ers is locatecS in Shiremanatown, CUmblrland c::cunty,
Pennaylvan1a.
3. In AuquSt., 1"3, Helin aels1nger underwent major open heart
a\l~gery to replaoe a faulty heart velve. AS a rllult. ot the aurqery aneS
valve replacement, her tnatine; physician placed Helen' Celsinger on
Coumadin, a blood thInner, tor the balance of her lite.
4. On October 13, 1993, Helen Oalainger brouqht her phyalo1an's
'p~esoription tor CoualeS1ft, 2 m11119ra. tableta, to a Ri~e Aid pharmaoy
100ateeS on 39 Warm Springe Road, Chamberlbur9, Pennsylvania. '#'..).;) 1<:)
5. The Rite Aid Pharmaoy 12275 at Warm Springs Road,
Challbe:raburg, PIMsylvania 11 owned, operatl4 and controllelS by
Deflndant Rite Aid Corporation.
6. Defendant Rite Aid has the Pharmaoy L1cense tor add phanacy
aneS employed the pharmeeiete therein.
7. On Ootober 13, 1993 the Rite AieS Pharmacy gave Helen oela1n9&r
. pre.oript1on bottle labeled "CoUllladin 2 1\9. tablets. II However,
unbeknownat to Helin Oel.inger, the bottle labllld 2 milligram tableta
aotually containld 14 .1111~a. Coumadln tablets, five tlme. the ..ount
.
~equl:reeS by her physioien'a presoription.
,,..,,...
S.p. 9. '94 el~4
E !'lIC,RISK MG
F~CM 717-S7 761
F. 4
I. Unbeknown at to Helen Oelllnger, but surely within the
knowledge of the dilpendng phal'1llacht, cOWlladin tablets arl color coded
and numbered ):Iy the manutacturer. A a milligram tablet 18 gray with tha
nWllb.r a embGdde4 in the pill. A 10 milligram tablet is white with the
nWllber 10 embedded in the pill.
II. Delpltl the very obvious viaual ditterlnoe. betwaen a 2
111111i;ram and a 10 milligram coumadin tablet, thl Rite Aid Imployee put
Whit. pilla with thl number 10 into a bottle which hi had juat labeled
.COWlladln 2 mis.1I
10. On October ai, 1993, HIlln GIlllnger woke up with blood in har
mouth from blledln9 in her guml which she could not Itop. Her phydcian
va. ccncerned enough to hospitalized har in en attlmpt to regulate her
coagUlation.
11. While in the hOlpital utilizing COWlladin displnsed by the
hoapital pharmacy, Mra. Gelsinger'l coagulation atabilizld at a
,~o'~rOmbin time of 18.3 .Iconds.
12. On November 11, to110wing her dlscharge from the hOlpital and
re.ulllption of use of the Rite Aid prelcription, Mr.. alllinqer's
prothrombin time rOle to 42.:S seconds, more than three time. the
theraplutio ranqe.
U. Over the next slveral welkl, Mrs. Gelsinger was unable to
regulate hlr coagulation de.pitl stopping and re.tarting thl Coumadln
prescription. Consequently, even though Mr.. Geldnger's heart: had
returned to normal snd Ihe had no sYllptoml related to her hlart surge1Y,
her physioian did not feel Ihe could rlturn to work.
14. The inalliUty to r.t\un to work an4 to r'CJullte her 1>100<1
,
thinnerl VIS VI1Y dlsturbin9 to Mrl. GI1.inger 'livln her rlcent leriouI
2
s.~. 9 '9~ 6'34
" .,.~_.''lIO,RIS.( MG
FROM 717-975- 01
P. 5
bea~t ope~ation and the knowl.dge ehe would have to use blood thinner.
fo~ the rest of her lif..
1!!. A. a diract nau). t of Datandanta aupply1n9 the w~onq dosaqe ot
be~ p~eaorlbad medicetlon, Kalan aalsin;e~ has .utte~ed the tollowinq
damagas,
(a) . loes ot earnings,
(b) . 10.a of aarninq capacity,
(0) pre.ent and futu~e pain, autfarinq and anxiety,
(d) p=aeent and future madical axpen.a.,
(a) . loss of lite's pleaaura.l
COUNT I - NEGLIGENCE
1.. Paragraphs 1 through 15 ara incorporated herein by reference.
Dafan4.n~ Ri~a Aid 1. liable to Halan Galainger for the inju~ies alleged
herein which were diract1y and proximally caused by Detendant's
negliganoe and/or gros. negligenoe In:
(a) di.peneing a drug to Mrs. Gelsinger which was not in the
do.age prescribed by her phYMlcian,
(b) mislabellng Helen Ge1.1nger's medication to indicate 2
.1111I1ra. tablets whan 10 milligram tablets wera oontalned tnerein,
(0) providing 10 milligram tablets .to a patiant whioh
Detandant knew or ahould hava known exceeded the patient's appropriate
do..ge,
(d) tdUng to heve in place autficient procldurel and
protocols to as.ure that the proper drug was diapense4 in a proplr
dosa,e as dafinad by tha physioian's prascription,
(e) faiUng to read their own labal and :ncollnile that e
.
white 10 milligram tablat wae not a gray 2 milligram table of eoumadin,
,
S.p. 9 '94 S/35
E A1D-1<J5K I"G
FROM 717-97 ~61
F. 6
(f) faUing to obsarve the 00101' cUUerenoes between a and 10
milligra. tablets,
(9) eJ:lploying a phanaoht who violated the Pharlll&oy Aot, n
..8. 1380-4, and 380-5(1), 350-5(11) and 380-5(12).
(h) violating the regulation_ of the Pennsylvania Pharaaoy
Board aoncuninq the d1spensin9 of lIlecSioations in a ann. exactly
consistent with the prescription written by a phy.ician,
(i) violatin9 FDA regulation- regarding the proper labaling
of pharlll&ceuticel produots,
(j) violating FDA regulations r.garding con.1st.nay of the
medication. dispensad by nt.Han to the physician'S andllanufeoturu"1
requirement., and
(k) violating Rite Aid's own internal pclicy ancS protocol
regardIng the Checking of the dhpenud medication to assure perronance
with the physician's order.
WHEREfORE, Plaintift pray' for judqment against Detendant in an
amount in exeese at TWenty Thousand ($20,000) Dollarl, exclu.ive of
Inhreet and co.ts, end in exce.. at any jurisdictional amount requlrinC)
compulsory arbitration.
COUNT II - RES IPSA LOQtJI'l'U1t
17. paragraphs 1 through 15 an inoorporated herdn by reference.
18. Defendant is also liable under the Doctrine at Res Ip.a
Loquitur sinoe the dilpenling of a prelcription drug by a pharmacy i.
completely and exclullvely under the ph.nacy's control and the phanacy
could not pOIs1bly put a 10 milUgnm pHl in a bottle labeled en4
~re.oribed tor 2 milligrams. in the absence ot negligence on the part of
.
its .mploy.e..
4
E FHD/R15I< J1j
.-
FROM 717-97 761
P. 7
WHEREFORE, Plaintltf p~.ys tor ju4qment a;alnlt D.fendant in an
a.ount in exce.. of Twanty Thousand (UO,OOO) DollAl'S, exclu.ivl of
intal'..t an~ QQ.ts, and ln exce.s of any ~uriscUotional amoun\: raqu1r1nV
compul.ory arbitration.
COUNT UI- UCC STRICT LU.IX101'1'Y
1'. Paragraph. 1 through 15 ar. incorpo~atad, herein by I'afal'enoe.
30. Defendant Rite Aid is also strictly liable to plaintiff und.r
the Uniform commerolal Code warranty of ..rchantability, 13 Ja. C.I.A.
2314 and tne wa~ranty ot fitne.. tOI' a partioular pUl'po.a, 13 pa. C.I.A.
12315 by ..l11n; Plaintiff a pl'oduct which 4i4 not confol'll with her
written pra.oriptions.
WHEREFORE, Plalntift prays for judgment again.t Daten4ant 1n an
alllount in exceas of Twenty Thousand (t20,OOO) Dollars, exoluaiva of
intereet and costs, and 1n axee.. of .ny jurh4igtional alllount requirin;
oonpuleory arbitration.
COUNT IV - EXEMPLARY D>>IACl!1
21. Paragraphe 1 through 15 and count. J, II, and III are
lnco%porated harain by raferance.
22. Prascription druge, by their nature, present .ignif1oant rille.
of hal'll to the oonSUlllIr unlass pre.cribad ln the spacific mannar
%eiU1ate4 by both the Commonwealth of Pennsylvania and the united
atatee government. Tha publ1c Duet, by nec~..ity, obtaln preecriptlon
drug' through a pharmacy.
23. COUllladin, a potant blood thinnar, can and doa. cause
slgn1flcent deks of harm to its uean, inoluding d.ath and ..rioue
~nonal injury. It 1_ only uf. when taken in the do.age prsscrib.12 by
.
tha treat1nq phy_1cian. coumadln i. only legally available throu9h a
5
S.p. 9 ~94 el~
1: FlID-1lISK I'G
-
. FRD'1 717-9'; i7Eil
P. e
.
.
.
,
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Vf!RtI'YCA'l'~OH
I, HEl.IN GELSINGER, do hereby swear and dUn that the facta aet
forth in the foreqoinq document are true an6 correct to the beat of .Y
knowledqe, information an4 beliet. I underatand that this
v~rification is .a4e subjeot to the penalties of II Pa.C... t 4104,
relatin; to unsworn falsification to authorities.
WITNESS a
Dated I
r/,~/''1
fi/.,~ 8' ft~
IlJ: GELUNGIlR
.
BBLBN B. GBLSINGBR I IN THB COURT OF COMMON PLBAS or
Plaintiff I CUMBERLAND COUNTY, PBNNSYLVANIA
I
V I
I
RITB AID OF PENNSYLVANIA I ~O. 94-4812 CIVIL
INC. d/b/a RITE AID I
PHARMACY, I
Defendants I CIVIL ACTION - LAW
IN REI DEFENDANT'S PRELIMINARY OBJECTION TO
PLAINTIFF'S AMENDED COMPLAINT
BEFORE SHEELY. P.J.. HOFFER. J. AND OLER. J.
ORDER OF COURT
AND NOW, this
2.. "1-
day of FEBRUARY, 1995, defendant's
demurrer is GRANTED and Count III requesting punitive damages is
stricken from plaintiff's amended complaInt.
By the Court,
&<;I.~.ft1----
arold E. Sheely, P.J.
Terry S. Hyman, Esquire
For the Plaintiff
Sarah A. Arosell, Esquire
For the Defendant
Cuf~" m~..(<.{ .1/ (C/9S,
..& p.
"
Isld
BBLBN B. GBLSINGBR I
Plaintiff I
I
V I
I
RITB AID OF PBNNSYLVANIA I
INC. d/b/a RITB AID I
PHARMACY, I
Defendants I
IN THB COURT OF COMMON PLBAS or
CUMBBRLAND COUNTY, PBNNSYLVANIA
NO. 94-4812 CIVIL
CIVIL ACTION - LAW
IN RBI DBFBNDANT'S PRELIMINARY OBJECTION TO
PLAINTIFF'S AMENDBD COMPLAINT
BBFORB SHEELY. P.J.. HOFFBR. J. AND OLBR. J.
OPINION AND ORDER OF COURT
In the present action, defendant raises preliminary
objections in the nature of a demurrer to the punitive damages
request in Count III of plaintiff's amended complaint.
Initially, we note the well settled standard of review for
preliminary objections in the nature of a demurrer I
...All material factB Bet forth in
the complaint, aB well as all
inferences reasonable deducible
therefrom, are admitted as true for
purpose of review. Eckell v.
Wileon, 409 Pa. Super. 132, 135,
597 A.2d 696, 698 (1991). However,
we cannot accept as true
conclueions of law. ~. The
queBtion presented by a demurrer is
whether, on the facts averred, the
law eaye with certainty that no
recovery ie pOBBible. 19. A
demurrer should be sustained only
in casee where the plaintiff has
clearly failed to state a claim on
which relief may be granted. 19.
A demurrer Bhould not be suetained
if there ie any doubt as to whether
the complaint adequately states a
claim for relief under any theory.
Jd. at 135-36, 597 A.2d at 698.
NO. 94-4812 CIVIL ACTION - LAW
rittsburah National Bank v. Perr, 431 Pa. Super. 580, 584, 637
A.2d 334, 336 (1994).
with this standard of review in mind, we aummarize the facta
as aet forth in plaintiff'. complaint. On October 13, 1993,
plaintiff took her preacription for Coumadin, a blood thinner, to
defendant.l Unbeknownst to plaintiff, defendant filled the
preacription uainq ten (10) milligram tablet. rather than the two
(2) milligram tablets prescribed.' On October 28, plaintiff waa
hoapitallzed in order to regulate her coagul.ation.' Upon her
relea.e, plaintiff resumed, stopped, and reatarted her
preacription in order to att~mpt to regulate her coagulation.'
Plaintiff'. physicIan recommended that ahe not return to work.~
As a result of the aforementioned events, plaintiff fIled a
complaint with this court seeking, inter AliA, punitive damagee.
Defendant filed preliminary objections to plaintiff's complaint
on September 20, 1994. In response, plaintiff filed an amended
complaint on October 5, 1994. Defendant then filed preliminary
1 Complaint at para. 4. Plaintiff had recently undergone
open heart surgery and was permanently placed on blood thinners.
lsi. at para. 3.
, lsi. at para. 7. Apparently, the tablets are different
colors and have the doeage embedded on them. 19. at para. 8.
, lsi. at para. 10.
,,'~. t 13
..... a para. .
~ lsi .
2
NO. 94-4812 CIVIL ACTION - LAW
objection. to plaintiff's amended complaint on October 18, 1994.
Oral argument was heard before thie court on December 7, 1994.
DISCUSSION
Defendant requests this court, pursuant to Pa.R.C.P.
1028(a)(4), to dismiss Count III and all references to gross
negligence which comprise plaintiff's claim for punitive
damage.. We first point out that Pennsylvania courts have
permitted an award of punitive damages for conduct that is
outrageous either because of the defendant's evil motive or
becau.e of his reckless indifference to the rights of others.
Niaro v. Reminaton Arms Co.. Inc., 432 Pa. Super 60, 73, 637 A.2d
983 (1993); SHV coal. Inc. v. Continental Grain Co., 526 Pa. 489,
493, 587 A.2d 702, 704 (1991). The type of reckless conduct
sufficient to create a jury question is where "the actor knowe or
has reason to know of facts which create a high degree of risk of
physical harm to another, and deliberately proceeds to act, in
conscious disregard or indifference to that risk." lsl. at 494-
95, 587 A.2d at 704-705 (quoting the restatement (Second) pf
Torts 5500 comment a). "Damages are not justified where the
defendant's mental state rises to no more than gross negligence."
lsl. at 495, 587 A.2d at 705. Moreover, in McDaniel v. Merck.
SharDe , Dohme, 367 Pa.Super. 600, 623, 533 A.2d 436, 447-48
(l987), the court upheld the trial court's decision to grant
preliminary objections regarding punitive damages claims as to
three defendants because the appellant failed t.o allege facts in
3
, .
NO. 94-4812 CIVIL ACTION - LAW
its complaint other than those which would constitute ordinary
negligence. ~ AlaQ, AmmlunQ v. Platt, 224 Pa.Super. 47, 58-59,
302 A.2d 491, 497-98 (1973) (stating that permIssibility of
pleading a condition of the mind generally was not meant to
dispense with the pleading of material facts).
Applying the law to the facts, we find nothing in the
complaint to indicate that plaintiff is entitled to a punitive
damages claim. Although defendant would have reason to know
filling a prescription with ten (lO) mg. rather than two (2) mg.
tablets creates a high degree of risk of physical harm, there are
no facts to indicate defendant deliberately acted in conscious
disregard or indIfference to that risk. Plaintiff's complaint
identifies defendant's conduct ae negligent and/or grossly
neglIgent. (Complaint at para 16) and that the misfilling of the
prescription would not have occurred absent the negligence of its
employees. Complaint at para. lB. As previously noted, plaintiff
must allege more than gross negligence. Plaintiff's complaint
does allege defendant's conduct to be "gross negligence rising to
the level of reckless disregard for the safety of its customers"
(Complaint at para 24), but this assertion is not supported by
any facts to indicate the requisite state of mind to sustain a
punitive damages claIm. Furthermore, neither party has cited to
any case, and we find none, in which plaintiff was entitled to a
punitIve damages claim when a pharmacy misfilled a prescription
on one occasion, as has been alleged here.
4
. .
NO. 94-4812 CIVIL ACTION - LAW
We believe plaintiff's contention regarding defendant's
alleged violation of federal and etate etatutes as justification
for punitive damagee to fail for the same reason. As defendant
correctly notee, the Reetatement (S~cond) of Torts 5500 comment
e, states that breach of a etatute must be intentionally
violated. Plaintiff has not alleged any facts to indicate
defendant intentionally violated the statutes.
For the foregoing reasons, we find that plaintiff is not
entitled to a punitive damages claim. Accordingly, we grant
defendant's request to strike Count III from plaintiff's amended
complaint.'
ORDER OF CQYB!
AND NOW, this ,J'I'{ day of FEBRUARY, 1995, defendant's
demurrer is GRANTED and Count III requesting punitive damages is
stricken from plaintiff's ,~ended complaint.
By the Court,
Isl Harold E. Sheelv
Harold E. Sheely, P.J.
Terry S. Hyman, Esquire
For the Plaintiff
Sarah A. Aroeell, Eequire
For the Defendant
· We do not find it necessary to strike references to gross
negligence in the remaining counts of the complaint.
5
HBLBN B. GELSINGER,
Plaintiff
IN THE COURT OF COMMON PLBAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
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NO. 94-4812 CIVIL TERM
RITE AID OF PENNSYLVANIA,
INC. d/b/a RITE AID
PHARMACY,
Defendant
QBID;R OF COURT
AND NOW, this I;~ day of March, 1995, upon consideration of
Plaintiff's Motion to Compel Discovery, a Rule is hereby ISSUED
upon the Defendant to show cause why the relief requested should
not be granted.
RULE RETURNABLE within 20 days of service.
BY THE COURT,
.
Terry S. Hyman, Esq.
4503 N. Front Street
Harrisburg, PA 17110
Attorney for Plaintiff
_0.fu.>
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311'1/4S'
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Sarah A. Arosell, Esq.
305 North Front Street
Harrisburg, PA 17108-0999
Attorney for Defendant
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 94-4812
H~LEN E. GELSINGER:
Plaintiff
:
RITE AID OF PENNSYLVANIA, INC.1
d/b/a RITE AID PHARMACY,
Defendants
JURY TRIAL DEMANDED
ORDER
AND NOW,
this day of
,
1995,
it is hereby
Ordered and Decreed that Defendant shall respond to plaintiff's
outstanding discovery no later than 15 days from the date of this
Order.
Failure to comply with this Order may result in imposition of
such sanctions as the Court deems necessary, including but not
limited to binding admissions of fact or preclusions of defenses.
BY THE COURT:
J.
v.
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INC. I
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 94-4812
HELEN E. GELSINGER
Plaintiff
RITE AID OF PENNSYLVANIA,
d/b/a RITE AID PHARMACY,
Detendants
JURY TRIAL DEMANDED
REQUEST FOR PRODUCTION OF DOCUMENTS
PURSUANT TO PA. R.C.P. NOS. 4003.4 and 4009
DATED OCTOBER 4, 1994
To: Detendant Rite Aid of Pennsylvanai, Inc. d/b/a
Ri te Aid Pharmcy
PLEASE TAKE NOTICE that pursuant to Pa. R.C.P. Nos. 4003.4 and
4009, please furnish at our expense, at our oftice, on or betore
thirty (30) days ot service hereot, a photostatic copy or like
reproduction of the materials concerning this action or its subject
matter which are in your possession, custody or control and which
are not protected by the attorney/client privilege; or, in the
alternative, produce the said matter at said time to permit
inspection and copying thereot;
1. Every document In your possession relating to the
prescription of and/or dispensing Coumadin to Helen Gelsinger on
October 13, 1993.
2. The written physician's prescriptIon tor Helen
Gelsinger'. October 13, 1993 Coumadin Rx.
3. All documents, manuals, handouts, training material. or
videotape. containing protocols, procedure. or policIes which
discuss or reterence the manner in which a pharmacist, assistant or
f~ Juhd'/]
Rite Aid quality assurance employee is to assure that the
medication dispensed to customers is the proper dosage ot the
prescribed medication in a correctly labeled container.
4. Any documen-c containing intormation which you believe
shows that Helen Gelsinger was prescribed 10 mg doses of Coumadin
by Dr. Drubeck in September through october, 1993.
5. The entire contents of any investigation tile or tiles or
any other documents evidence in your possession which supports or
relates to the allegations ot Plaintitf's complaInt or any de tense
thereto. (Excluding references to mental impressions, conclusion,
or opinions representing ttle value or merit ot the claim or de tense
respecting to strategy or tactics and privilege communications to
and from counsel.)
6. Any and all statements concerning the actions, as detined
by Rule 4003.4, trom all witnesses including any statements trom
the party herein or their respective agents, servants, employees or
representatives.
7. All documents identitied in Plaintitt's Interrogatories.
8. Any diagrams, photograph. or other graphic
representatIons of the accident scene, any instrumentality involved
in the accident.
9. Any and all document. contaIning the name. rand home
addresses and/or business addresses ot every individual contacted
2
CERTIFICATE OF SERVICE
AND NOW, this 4th day ot October, 1994, I, Michelle M.
prucnal, an employee ot Anqino , Rovner, P.C., do hereby certity
that I have served a true and correct copy ot the PLAINTIFF'S
REQUEST FOR PRODUCTION OF DOCUMENTS, REQUEST I DATED OCTOBER 4,
1994 in the United States mail, postage prepaid at Harrisburg,
Pennsylvania, addressed as tollowSI
Sarah A. Arosell, Esquire
THOMAS, THOMAS & HAFER
305 N. Front Street
Harrisburg, PA 17108-0999
Attorney tor Detendant
~/1J.J1U -1J1.a.u~
M chelle M. prucnal -
4
Plaintiffs, through their attorney, hereby propound the following
I Interrogatories to defendants pursuant to Pennsylvania Rule of Civil
.1 Procedure 4006 to be answered within thirty (30) days from service
thereof. These Interrogatories shall be deemed to be continuing
I Interrogatoriqs. If, between the time of your answer to said Interro-
gatories and the time of the trial of this case you, or anyone acting on
" your behalf, learns the identity and whereabouts of any other witnesses
~ not identified in your said answers, or if you obtain or become aware of
. additional requested information not supplied in your answers, you shall
promptly furnish the same to plaintiffs' attorney by a supplemental
, answer.
,
~ :
For the purposes of these Interrogatories, "you. or "your" refers to
, the defendants and their files, the defendants' insurance company and it!
~ files, the defendants' attorney and his files and all other persons,
agents or representatives of the defendants and their files. "You" shaU
~ further ~nclude all persons on whose behalf defendants prosecute thi~
~ action and all persons who will benefit or be legally bound by the I
I' results of this action. Your answer to the Interrogatories shall r~flecl
I and contain the knowledge of all of the above persons. \
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References to plaintiff and/or defendant shall be interpreted as singulal
or plural, depending upon the particular circumstances of each case.
The term "description" or "describe" as used herein shall mean that the
defendants shall set forth the name and address of the author or origi-
.,
nator. dates. title or subject matter, the present custodians of the
original and of any copies and the last known address of each custodian.
"Oocument" shall mean any written, printed, typed or other graphic matte:
of any kind, whether handwritten. typed or printed, whether distributed
or undistributed. It shall include without limitation letters, memorandi
, articles, studies, notebooks, diaries and notes. as well as all mechan~-
~.:.I cal and electronic sound recordings or transcripts thereof in the
possession or control of the defendants or known by them to exist. It
:; shall also mean all copies of documents by whatever means made.
I,
I Answer each interrogatory in the space following the interrogatory.
I' Supplemental sheets may be attached for answers which require additional
space. Please take notice that you are required to serve upon the
I undersigned your answers in writing within thirty (30) days pursuant to
I' the Pennsylvania Rules of Civil Procedure. These Interrogatories are
deemed continuing and supplemental answers should seasonably be provided
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3. state whether Thrift Drug followed the polici.s and
protocols described in Interrogatory 2 when dispensing Coumadin to
Helen Gelsinger on october 13, 1993.
(a) If answered affirmatively, identify every person or
document you believe has factual knowledge or
contains information showing the protocols were
followed.
(b) If answered negatively, state why the protocols,
procedures and policies were not followed in this
instance and identify every person or document
which has knowledge of or contains information
showing the protocols which were actually followed
in dispensing Coumadin to Helen Gelsinger on
October 13, 1993.
(c) Identify the person answering this Interrogatory
and all sources and person upon which you relied in
providing the information herein.
4
5. Describe every training session, document, manual, text,
publication, videotape, computer instruction, seminar, inservice or
any other means by which Rite Aid informs or trains its pharmacists
and assistants about the procedures to be followed to assure the
customer receives the proper dosage of the prescribed medication in
a correctly labeled container.
6
7. Identify the document upon which your pharmacist
dispensed Coumadin to Helen Gelsinger .on October 13, 1993 and its
current location.
8
8. state the contents of every conversation between Mr..
Gelsinger and any Rite Aid employee from August, 1993 to the
current date relating to his medication, including the date of the
conversations, the names of all persons present during the
conversation and, any documents which would contain information
referencing, recording or relating to the conversations.
"
9
10. with regard to each individual you expect to call aa an
expert witne.. at trial, state the following:
(a) date of birth;
(b) name and address of present employer, and if self-
employed, name and address of the busine..,
(e) full formal educational background, with date of
attendance and degrees obtained;
(d) a list of all writings and/or documents of any kind
prepared in whole or in part by the expert; and
(e) names and addresses of all persons, firms or
corporations who have retained this expert in the
past ten years to render a report or testify as an
expert witness.
11
13. If you have taken any statements or have any document
containinq an essentially verbatim recordation of any statement
given by any person concerning a matter relating to the subject
litigation:
<a) Identify the person taking the statement and the person
giving the statement;
(b) The date of the statement;
(c) Every document which contains the statement and the
present custodian of same.
14
20. Identify each person who:
(a) was a witness to the incident through .1qht or
hearing and/or
(b) has knowledge of facts concerning the happening of
the incident or conditions or circumstance. at the
scene of the incident prior to, at the time of, or
after the incident.
(c) with respect to each person identified, state that
person's exact location and activity at the time of
the incident.
21
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Plaintiff I S Amended Complaint and pursuant to the Pennsylvania
Rules of Civil Procedure, said averments are therefore, denied and
proof demanded at the time of trial.
4. Admitted in part. Denied in part. It is admitted that
a prescription for 2,milligram tablets of Coumadin was presented to
the Rite Aid pharmacy located on 39 Warm Spring Road, Chambersburg,
PA on October 13, 1993. Defendant has no knowledge as to who
presented the prescription on that date and said averment is denied
and proof demanded at the time of trial.
5. Denied as stated. The Rite Aid Pharmacy #2275 at Warm
Spring Road, Chambersburg, Pennsylvania is owned, operated and
controlled by Rite Aid of Pennsylvania Inc., d/b/a Rite Aid
Pharmacy.
6. Denied as stated. Rite Aid of Pennsylvania, Inc., d/b/a
Rite Aid Pharmacy has the Pharmacy License for said pharmacy and
employed the pharmacists therein.
7. Admitted in part. Denied in part. It is admitted that
on October 13, 1993, Rite Aid Pharmacy #2275 filled a prescription
bottle labeled "Coumadin 2 mg. tablets". The remainder of the
averments in this paragraph are denied and proof demanded at the
time of trial, since after reasonable investigation, Answering
Defendant is without knowledge or information sufficient to either
. 3.
admit or deny the averments as to who picked up the prescription
and what was known at any time by the Plaintiff.
8. Admitted in part. Denied in part. It is admitted that
Coumadin tablets are color coded and numbered by the manufacturer
and that such information is known by the pharmacists. The
remaining averment in this paragraph is denied and proof demanded
at the time of trial, since after reasonable investigation,
Answering Defendant is without knowledge or information sufficient
to either admit or deny the averment as to what was known at any
time by the Plaintiff.
9. Admitted.
10. -14. Denied. After reasonable investigation, Answering
Defendant is without knowledge or information sufficient to either
admit or deny the averments contained in these paragraphs of the
Plaintiff I s Amended Complaint and pursuant to the Pennsylvania
Rules of Civil procedure, said averments are therefore, denied and
proof demanded at the time of trial.
15. Denied. After reasonable investigation, Answering
Defendant is without knowledge or information sufficient to either
admit or deny the averments contained in this paragraph of the
Plaintiff I s Amended Complaint and pursuant to the Pennsylvania
Rules of Civil Procedure, said averments are therefore, denied and
proof demanded at the time of trial.
.4.
COUNT I - NEGLIGENCE
16. Answering Defendant incorporates herein by reference
Paragraphs 1 - 15 of this Answer as though the same were set forth
herein at length. Admitted in part. Oenied in part. It is
admitted that Defendant was negligent. Answering Defendant is
without knowledge or information sufficient to form a belie! as to
the nature of and/or extent of the injuries and damages allegedly
sustained by the Plaintiff as a result of the misfill and
therefore, said averments are deemed denied and strict proof
thereof is demanded at the time of trial.
17. It is admitted that Defendant was negligent.
WHEREFORE, Answering Defendant admits that it was negligent,
but demands proof of Plaintiff's damage claim.
COUNT II - STRICT LIABILITY
18. Answering Defendant incorporates herein by reference
Paragraphs 1 - 17 of this Answer as though the same were set forth
herein at length.
19. The averments contained in this paragraph of Plaintiff's
Amended Complaint set forth conclusions of law as opposed to
statements of fact and no response is required.
WHEREFORE, Answering Defendant demands proof of Plaintiff's
damage claim.
.5.
VERIFICATION
I, William R. Bryan, state that I am Risk Claim Manager of
Rite Aid corporation, that I make this Verification on behalf of
Defendant Rite Aid of Pennsylvania, d/b/a Rite Aid Pharmacy, and
that I am familiar with the facts and allegations set forth in the
foregoing ANSWER WITH NEW MATTER. I have read the foregoing
document and hereby affirm that it is true and correct to the best
of my personal knowledge, information and belief. This
Verification is made pursuant to 18 Pa. C.S.A. S4904 relating to
unsworn falsification to authorities.
{!:~~e'l
Dated: /k-CH 30"\ r97.3
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CERTIFICATE OF SERVICE
I, SARAH W. AROSELL, ESOUIRE, hereby certify that I have served e true end
correct copy of the foregoing RESPONSE TO PLAINTIFF'S MOTION TO COMPEL on
the following person by placing a copy of the samo In tho United Statlls mall. first
cless mall, directed to his office address as follows:
Terry S. Hyman, Esquire
ANGINO & ROVNER, P.C.
4503 North Front Streot
Harrisburg, PA 17110
THOMAS, THOMAS III HAFER
By:--f2fa...~
Sarah W. Arosell, Esquire
DATE: ~r'r
-
CERTIFICATE OF SERVICE
AND NOW, this 18th day of April, 1995 I, Michelle M. prucnal,
an employee of Angino , Rovner, P.C., do hereby certify that I have
served a true and correct copy of the PLAINTIFF'S RESPONSE TO
DEFENDANT'S NEW MATTER in the united States mail, postage prepaid
at Harrisburg, Pennsylvania, addressed as follows:
Sarah w. Arosell, Esquire
THOMAS, THOMAS , HAFER
305 N. Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
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JOSEIH III, IIIELlLLO
11!JlRY S, HYIIIAN
DAVID L, I.UTZ
MICIlAI!L E, KOSIK
PAMaLA 0, SHUMAN
CATHEIlINE III, MAHADY.Slllml
RICHAIlD A, SADLllCK
DAVID S, WISNESKI
ANGINO & ROVNER, P. C.
L1sn!D IN
NUllLE COLSON
IIIICHAEL J, NAVtTSKY
ROBIN I, MAIlZELLA
LAWRENCE p, BARONE
DAWN L, JENNINOS
STEPHEN R,PEDERSEN
SOLOMON l, KIlEVSKY
JOSEPH M, DOIlIA
11lE BEST LAWYERS
-IN-
AMERICA
RICHAIlD C ANOINO
NEIL I, ROVNER
May 23, 1995
The Honorable J. Wesley Oler, Jr.
Cumberland county Courthouse
One Courthouse square
Carlisle, PA 17013
Re: Gelsinger v. Rite Aid
Dear Judge Oler:
This letter is to advise the Court that the parties have been
able to work out their discovery differences in the above-captioned
matter. Therefore, it will not be necessary to hold the conference
scheduled for June 1.
TSH:mmp
I do thank you for your consideration of this matter.
Very truly yours,
{";/--\
/ ';er~~-:- Hyman
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Arosell, F,(re '
co: Sarah W.
656611/.'
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4503 NORTH fRONT. STREET, HARRISBURG, PA 17110-170'
. (717) 23"'781
fAX (717) 238-5810
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