No. 02 C 7771 Page 4

The court held that Mink was of the second variety. Even though the plaintiffs
themselves ingested the pills, they did not know they were taking part in an experiment. Jd. at
718. The fact that they consented to treatment for prenatal care did not give defendants the
right to treat them in any manner. Id. Instead, that consent was limited to acts that were
substantially similar to those to which there was actual consent. Id. Testing a new use for a
drug went beyond those limits. Jd.

In Moore v. Eli Lilly and Co, 626 F.Supp 365, 366 (D. Mass. 1986), plaintiffs claimed

that they were harmed by defects in the arthritis drug Oraflex. They claimed that the
defendants fraudulently misrepresented facts relating to the drug’s defective nature. Id. In
determining that the plaintiffs could not state a claim for battery, the court distinguished Mink
by stating that the plaintiff could only show a lack of informed consent. Id. at 368. Because the
patient was aware that he was being given some form of a drug, he must rely on a negligence
action. Id., citing, Mink, 460 F. Supp at 717.

While this court has not found any cases with facts identical to those in this case, we

believe that it is closer to Mink than to Moore. Although Heidi actually ingested the Toradol

knowing that she was taking the medication, she had no idea that the defendant’s employees
allegedly gave her a drug that effectively amounted to poison. If this claim is true, the act
completely lacked consent. Heidi’s allergy to NSAIDs was different from a potential side effect
of medication in that it was virtually certain to cause her harm. Plaintiffs are not claiming that
Heidi required more information to make her decision, but that defendant should not have
filled her prescription at all.

This is not a situation where a plaintiff merely suffered because of an “undisclosed


~

No. 02. C7771 Page3

damages. See Grant, 684 N.E.2d at 1027. This is the point where plaintiffs’ allegations cease
to be of willful and wanton misconduct and become battery. Plaintiffs cannot therefore seek
punitive damages for count III (though they may continue to pursue the claim as a species of
malpractice), and the corresponding prayer for relief is stricken.

Defendant also renews its motion to dismiss count IV, arguing that the alleged facts do
not support a battery claim.” To state such a claim, a plaintiff must allege that the defendant
intended to cause a harmful contact, that harmful contact resulted and that the plaintiff did not
consent, Cohen y. Smith, 648 N.E.2d 329, 332 (Ill. App. 5” Dist. 1995). The contact
requirement may be met by showing that the defendant caused the plaintiff to come into contact
with a foreign substance in a way that may reasonably be regarded as offensive. Mink v.
University of Chicago, 460 F. Supp 713, 718 (N.D. Ill. 1978), quoting Restatement (Second) of
Torts § 18, Comment c at 31.

In Mink, the plaintiffs were administered diethylstilbestrol (DES) as part of a study to
determine DES’ value in preventing miscarriages. 460 F. Supp. at 715. The plaintiffs did not
know that they were being administered the drug and claimed that it resulted in increased risks
of cancer to their children. Jd. The court determined that, under Dlinois law, there are two
distinct theories for malpractice cases resulting from lack of consent to a procedure. Id. at 717.
In the first type of case, a plaintiff may claim negligence if the defendant fails to disclose
adequate information to allow the plaintiff to make a well-reasoned decision. /d, at 718. In the
second type, a plaintiff may state a claim for battery if there is a complete absence of consent

to the procedure. Id.

"in denying defendant’s first motion to dismiss, the court noted that the parties did not brief the issue
as to whether the alleged conduct sufficiently constituted a battery. They have now done so.


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No. 02.C 7771 Page 5

inherent complication with a low probability,” lacking only some of the information necessary
to make an informed choice. See Mink, 460 F. Supp. at 717, quoting, Cobbs v. Grant, 502 P.2d
1,8 (Cal. 1972). Instead, plaintiffs allege that defendant actively set out to cause harm to Heidi.
While they bear a heavy burden in proving the necessary intent, if they are able to do so,
plaintiffs may be able to prevail on the claim for battery and seek punitive damages for that
intentional tort.

CONCLUSION

For the foregoing reasons, defendant’s motion to clarify is granted, its motion to strike

is granted, and its motion to dismiss is denied.

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

Mew C2004.


4 ‘Monte Orded Form (06/97)
United States District Court, Northern District of Minois

Namestasimed ines | James B, Moran ‘| stn Jae
CASE NUMBER 02C 7771 DATE 5/6/2004
CASE HEIDI HAPPEL and KENT HAPPEL vs. WAL-MART STORES, INC.
TITLE
[In the following box (8) 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:
ql) o Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) o Answer brief to motion due__. Reply to answer briefdue__.
(4) o Ruling/Hearingon___sset for_____at
(5) a Status hearing{held/continued to] [set for/re-set for]on__——ssetfor__—_—at
(6) o Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor__——sat
(y) i] Trial[set for/re-set for]on___—_at
(8) Qo [Bench/Jury trial] [Hearing] held/continuedto__—_at
(9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

OFRCP4(m) OLocal Rule 41.1 OFRCP41(a)(1) O FRCP41(a)(2).

ao) (Other docket entry} Enter Memorandum Opinion And Order. Defendant’s motion to clarify is
granted, its motion to strike is granted, and its motion to dismiss is denied. .

ail) a (For further detail see order attached to the original minute order.]
1 | No notices required, advised in open court.

No notices required.

| Notices maited by judge's staff.

Notified counsel by telephone.
oa | Docketing to mail notices.
‘Mail AO 450 form,

Copy to judge/magistrate judge.
courtroom
LG deputy’s
initials
Date/time received in
ctntral Clerk'§ Office?

os ere ae


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
HEIDI HAPPEL and KENT HAPPEL, )
her husband, )
)
Plaintiffs, )
) WAY - 6 2004
vs. ) No. 02 C 7771
)
‘WAL-MART STORES, INC., a Delaware )
corporation, d/b/a WAL-MART )
PHARMACY, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiffs Heidi and Kent Happel brought this action against defendant Wall-Mart
Stores, Inc, d/b/a Wal-Mart Pharmacy (Wal-Mart) alleging negligence, loss of society, willful
and wanton misconduct and battery. On February 3, 2004, this court entered an order denying
defendant’s motion to dismiss counts III and IV. Defendant now seeks to clarify that order by
striking part of count III, and renews its motion to dismiss count IV. For the following reasons,
defendant’s motion to clarify is granted, its motion to strike is granted, and its motion to
dismiss is denied.

Plaintiffs allege that defendant’s employees filled a Toradol prescription for Heidi while
knowing that she was allergic to non-steroidal anti-inflammatory drugs (NSAIDs). They claim
that the employees intended to cause harm to Heidi and that, as a result of taking the drug, she
suffered severe, long-term medical problems.’

Defendant’s motions to clarify and strike concern plaintiff's desire to seek punitive

‘For all relevant facts see the February 3, 2004 order, Happel v. Wal-Mart Stores, Inc., 2004 WL

755581 (N.D. Ill.).


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No. 02 C7771 Page 2

damages. As the court has heretofore stated, the [linois Civil Code of Civil Procedure and
Healing Arts Malpractice Act (HAMA) protects certain defendants from punitive damages for
malpractice. 735 ILCS 5/2-1115. A plaintiff may however seek punitive damages for an
intentional tort by such a defendant. Grant y. Petroff, 684 N.E.2d 1020, 1027 (DI. App. 5" Dist.
1997).

Plaintiffs originally attempted to state a claim for “intentional misconduct,” which we
determined was not a specific intentional tort under Illinois law. While dismissing that claim
without prejudice on July 2, 2003, we recognized that HAMA and state court decisions strictly
limit the situations in which a plaintiff may seek punitive damages for an intentional tort while
simultaneously claiming malpractice. A plaintiff must allege an intentional tort other than
malpractice. We stated in our February 3, 2004 order that the threshold for proving willful and
wanton misconduct is somewhat lower than intentional harm. See Burke v. 12 Rothschild’s
Liquor Mart, Inc., 593 N.E.2d 522, 531 (Ill. 1992)(citing the Restatement (Second) of Torts §
500, Comment g, finding that the standard is essentially the same as recklessness — somewhere
above negligence). To the extent that count III simply alleges reckless malpractice, HAMA
prohibits the awarding of punitive damages, even for willful and wanton misconduct —a claim
for which punitive damages are ordinarily awarded. Id. at 532. And they are awarded because
willful and wanton conduct is qualitatively different from simple negligence. Willful and
wanton conduct may justify punitive damages, but it is not, however, an independent tort, so
far as we know.

Plaintiffs allege that defendant’s conduct crossed a line, where it effectively ceased to be

malpractice and was instead an intentional tort, at which point plaintiffs may seek punitive