No. 02 C 7771 Page4

Under the law-of-the-case doctrine, any issue that is expressly or impliedly decided is
binding in subsequent proceedings before the deciding court or a lower court. Roboserve, Inc,
y. Kato Kagaku Co., Ltd., 936 F.Supp. 522, 524 (N.D.IIL 1996). The doctrine should only be
applied if an issue is actually and clearly decided. Jd. We are at a disadvantage, then, not
knowing the grounds of the trial court’s denials of plaintiffs’ motions to amend. What is left
is the appeals court decision. It held that the complaint did not include factual allegations of
intentional conduct and as such could not support the intentional tort claims. But there is
nothing in the state decisions that expressly or impliedly decides that plaintiffs’ claims, if
amended to include factual allegations of intentional wrongdoing, would fail.

Wal-Mart next argues that plaintiffs’ intentional misconduct claim is a healing arts
malpractice claim for which punitive damages are not available. The Illinois Code of Civil
Procedure provides that “[iJn all cases, whether tort, contract or otherwise, in which the
Plaintiff seeks damages by reason of legal, medical, hospital, or other healing art malpractice,
no punitive, exemplary, vindictive or aggravated damages shall be allowed.” 735 ILCS 5/2-
1115. The term “healing art malpractice” is broad in its scope and not limited to health
professionals. Lyon v. Hasbro Industries, Inc., 156 TILApp.3d 649, 654, 509 N.E.2d 702, 706
(4 Dist. 1987) citing Bernier v. Burris, 113 Ill.2d 219 (1986).

Plaintiffs assert that this provision is not applicable because Wal-Mart is not a
physician, hospital or clinic, protected by the Healing Arts Malpractice Act (HAMA). In

general, pharmacists filling prescriptions are shielded from negligence actions under the

‘Wal-Mart alternatively argues that plaintiffs’ claim is barred by collateral estoppel. As with law-of-
the-case, collateral estoppel relies on a finding that the same issue that was decided in the prior adjudication
is now before this court. Having found that the question before us was not definitely addressed by the earlier

proceedings, collateral estoppel is not applicable.



No. 02 C7771 Page3

Marques v. Federal Bank of Chicago, 286 F.3d 1014 (7" Cir. 2002). At the same time, a court
may take judicial notice of matters of public record without converting a Rule 12(b)(6) motion

into a motion for summary judgment. Henson v. CSC Credit Services, 29 F.3d 280, 284 (7%

Cir. 1994). Here, all of Wal-Mart’s attachments are publicly-recorded papers from prior court
proceedings. They meet the public records exception and we consider them in deciding this
motion to dismiss.

Wal-mart first argues that plaintiffs’ intentional misconduct claim is barred by the law-
of-the-case doctrine. In the state proceedings, the trial court denied plaintiffs’ motion to
include a claim of willful and wanton misconduct, and in a separate order denied their motion
to include claims of battery and fraud. Neither of the orders expounds on the reasoning
behind the holdings, instead stating the holding without explanation. In affirming the trial
court, the Second District states:

On August 9, 1999, plaintiffs filed an amended motion for leave to amend their
pleadings. This time, the amended complaint included count Il for battery and
count IV for fraud; plaintiffs did not include any count or allegations of wilful
and wanton misconduct, nor did they incorporate that count by reference to any
earlier pleadings ... plaintiffs have waived their contentions concerning wilful
and wanton misconduct.

We also find that the trial court did not abuse its discretion in refusing
plaintiffs leave to amend their complaint to include counts for battery and
fraud. To allege battery, the plaintiff must allege that the defendant intended
to cause a harmful or offensive contact and that a harmful or offensive conduct
resulted (citations omitted). Plaintiffs’ battery claim is fatally defective, as it
fails to include a proper allegation of intent. These allegations fall short of the
knowing or intentional conduct required to support a claim for battery....
Plaintiffs’ claim of fraud is again fatally defective, as they have alleged, at best,
that the purported misrepresentation was recklessly made, not intentionally.

Happel v. Wal-Mart Stores, Inc., 737 N.E.2d 650, 657-658 (2000).

Plaintiffs did not appeal this decision.



~

No. 02C 7771 Page5

rationale that pharmacists should not be responsible for the choices made by prescribing
physicians, without having a physician’s knowledge of each patient. See eg, Fakhourl y.
Taylor, 248 IlLApp.3d 328, 618 N.E.2d 518 (1993); Eldridge v. Eli Lilly & Co., 138 ILApp.3d
124, 485 N.E.2d 551 (1985). Plaintiffs argue that since pharmacists are already provided this
protection from legal action, there is no basis for invoking the HAMA. But plaintiffs’
negligence claim relies on the proposition that Wal-Mart had a duty to warn them of the
prescription’s contraindications. In recognizing this duty to warn, we are requiring that Wal-
Mart play a more active role in the prescription process. The flip side of this requirement is
that Wal-Mart can avail itself of the protection of the HAMA. Plaintiffs’ negligence claim, at
least, is subject to the limitations of section 2-1115.

But what of a claim of intentional misconduct? A complaint may contain both a
malpractice claim subject to the limitations of the HAMA and also an intentional tort claim

for which punitive damages are recoverable. Grant v. Petroff, 291 IlLApp.3d 795, 805. 684

N.E.2d 1020, 1027 (5* Dist. 1997). We agree with defendants, however, that it is not clear from
the complaint which intentional tort plaintiffs are trying to plead. We accordingly dismiss
count III without prejudice and give plaintiffs the opportunity to plead a recognizable
intentional tort. We do so with a recognition that the prior state court decisions do have a bite.
We are bound by state law, and here the state courts, particularly the appellate court, have
made explicit rulings respecting the reach (or, more particularly, the lack of reach) of state law
to the circumstances presented. It is not enough that something was recklessly done or not
done. It is not enough that the prescription was dispensed because, somehow, there was a

system failure or the pharmacist was inattentive. Someone dispensing the prescription must



Minute Bier Form (0697)

United States District Court, Northern District of Illinois (9)
Name of Assigned Jud; Sitting Judge if Oth
ae Machete Judge James B. Moran penny “Assigned Sudge
CASE NUMBER 02 C7771 DATE 6/30/2003
CASE Heide Happel et al. Vs. Wal-Mart Stores, Inc. etc.
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
Memorandum Opinion and Order
DOCKET ENTRY:
(6)) Oo Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) o Answer brief to motion due . Reply to answer briefdue__.
(4) Oo Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(()] o Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) oa Trial[set for/re-set for] on at .
(8) o [Bench/Jury trial] [Hearing] held/continued to at
(9) 1] This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) O)Local Rule 41.1 COFRCP41(a\(1) O FRCP41(a)(2).
ao [Other docket entry] Enter Memorandum Opinion and Order. For the reasons above, Wal-Mart’s
motion to dismiss is granted and plaintiffs’ claim for intentional misconduct is dismissed without
prejudice. Wal-Mart’s motion to strike is denied.
(11) @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court. .
No notices required. umber of not
Notices mailed by judge’s staff.
Notified counsel by telephone. Jol 02 2
a | Docketing to mail notices. :
Mail AO 450 form, LYN LaiyLsia “sp Aocketig fy Miata
Copy to judge/magistrate judge. wey
courtroom 02 :21Wd |- Inréu gecmnal et
WAH deputy's _
initale PAM SFr ec
central Clerk's Office mailing deputy initials



No. 02 C 7771 Page 6

have been aware that Toradol would cause or was likely to cause harm to plaintiff and,
nevertheless, dispensed the prescription with the intent to cause her harm, or being fully aware
that there was a substantial certainty that harm would result. The state court rulings require
a proof of a subjective intent, a very high threshold indeed.

‘Wal-Mart has also moved to strike portions of the complaint which make reference to
intentional misconduct, arguing that if this is an action for negligence, then any intentional
conductisirrelevant. But whether any of the alleged wrongdoing was committed intentionally,
is relevant to whether Wal-Mart used reasonable care in filling Heidi’s prescription. This is
a distinct issue from whether plaintiffs have stated a sufficient intentional tort claim, and the
dismissal of count III does not require removing any language from the remaining allegations.

CONCLUSION

For the reasons above, Wal- Mart’s motion to dismiss is granted and plaintiffs’ claim

for intentional misconduct is dismissed without prejudice. Wal-Mart’s motion to strike is

denied.

wR. Mera

JAMES B. MORAN
nior Judge, U. S. District Court

3O_, 2003.
ay



DOCKETED

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS JUL 0 2 2003
EASTERN DIVISION

HEIDE HAPPELand KENT HAPPEL, her _)
husband, )
)

Plaintiffs, )

)

vs. ) -No.02.C7771

)

WAL-MART STORES, INC., a Delaware )
corporation, d/b/a WAL-MART PHARMACY, )
)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiffs Heidi Happel and Kent Happel brought this action against defendant Wal-
Mart Stores, Inc. d/b/a Wal-Mart Pharmacy (Wal-Mart), alleging negligence, loss of society
and intentional misconduct. Wal-Mart moves to dismiss plaintiffs’ intentional misconduct
claim and moves to strike portions of the complaint. For the following reasons, Wal-Mart’s
motion to dismiss is granted and its motion to strike is denied.

BACKGROUND

On August 4, 1993, Kent Happel went to a Wal-Mart pharmacy and picked up a
prescription of Toradol for his wife Heidi. The prescription had been phoned in earlier that
day bya Dr. Torrence Lorenc. Wal-Mart allegedly knew at that time that Heidi was allergic
to aspirin and ibuprofen, a class of drugs known as non-steroidal anti-inflammatory drugs
(NSAIDS). When Heidi’s prescription information was entered into the computer system a
warning allegedly appeared showing that Toradol was a NSAID and that Heidi was allergic
to the medication. According to the complaint, a Wal-Mart prescription label and bill cannot

be printed when there is a computer warning unless a pharmacist overrides the system, and

o>



a»
No. 02 C7771 Page2

store policy requires a pharmacist to call the prescribing doctor before taking this step. This
protocol was allegedly not followed in dispersing the Toradol to Heidi.

After taking the medication plaintiff called Wal-Mart, informed them that she was
experiencing breathing problems, and reminded them that she was allergic to NSAID. She was
allegedly assured that her breathing problems were not related to taking the prescription.
Plaintiffs claim that Heidi suffered long-term medical problems as a result of taking the
Toradol

Prior to coming to this court, plaintiffs brought a negligence suit based on the same
facts in the Minois Circuit Court of Cook County. That case was transferred to the Circuit
Court of McHenry County. On September 17, 1999, the McHenry court denied plaintiffs’
motion to amend their complaint to add claims for punitive damages and granted summary
judgment in favor of Wal-Mart. The Second District Court of Appeals reversed summary
judgment but affirmed the denial of plaintiffs’ motion to amend their complaint. Happel y.
WakMart Stores, Inc., 316 ILApp.3d 621, 630, 737 N.E.2d 650, 657 (2d Dist. 2000). Wal-Mart
appealed the reversal of summary judgment to the Supreme Court of Illinois, which in turn
affirmed the appeals court decision. 199 IL2d 179 (2002). After a voluntary dismissal,
plaintiffs refiled the action in the Circuit Court of Cook County and Wal-Mart removed the
case to this court.

DISCUSSION

‘Wal-Mart’s motion to dismiss, brought under Fed.R.Civ.P. 12(b)(6), relies on

information contained in 13 exhibits attached to its motion. Generally, if a court considers

material attached to a motion to dismiss, the motion becomes one for summary judgment.