14.

15.

16.

17.

18.

19.

20.

21.

Prior to August 4, 1993, defendant WALMART had actual knowledge that its
customer, plaintiff HEIDI HAPPEL, was allergic to a class of drugs known as
non-steroidal anti-inflammatory drugs (NSAIDS), which includes aspirin and
ibuprofen, from these prior interactions between defendant WALMART and its
customer, plaintiff HEIDI HAPPEL.

On August 4, 1993, defendant WALMART, through its employees, agents, and
servants, had a telephone discussion with a physician, Dr. Ted Lorenc, who
prescribed Toradol for his patient, plaintiff HEIDI HAPPEL.

At all times relevant hereto, defendant WALMART's pharmacists, technicians,
assistants, and related personnel had a duty to possess the knowledge and apply
the skill of reasonably well qualified pharmacists, technicians, assistants, and
related personnel in providing services to its customer, plaintiff HEIDI HAPPEL.

At all relevant times herein, Toradol was a member of the class of drugs known
as NSAIDS.

At all relevant times herein, defendant WALMART had actual knowledge that
Toradol was a member of the class of drugs known as NSAIDS.

On August 4, 1993, defendant WALMART used a computer warning system that
warned of drug interactions with a flashing screen, and operated such that the
operator was not able to print the label for the bottle or the bill for its customer
without the program being manually overridden by a pharmacist.

On August 4, 1993, defendant WALMART had a policy and procedure that a
drug interaction warning would not be overridden by the pharmacist unless the
pharmacist contacted the prescribing doctor and informed the doctor of the
interaction warning.

On August 4, 1993, defendant WALMART's computer warning system flashed a
warning of drug interaction or contraindication regarding the prescription of
Toradol for its customer, plaintiff HEIDI HAPPEL, because Toradol is in the
same class of medications (NSAIDS) as HEIDI HAPPEL's previously reported
allergies.

On August 4, 1993, defendant WALMART had actual knowledge that ingestion
of Toradol by its customer, plaintiff HEIDI HAPPEL, would certainly cause a
severe allergic reaction and injury, including anaphylaxis and possible death.



WHEREFORE, plaintiff KENT HAPPEL sues defendant WALMART and PRAYS
judgment in such amount in excess of SEVENTY FIVE THOUSAND DOLLARS
($75,000.00) as shall adequately compensate the plaintiffs for the losses and damages
sustained, plus the costs of this law suit.

COUNT III
WILFUL and WANTON MISCONDUCT- WALMART

44, On August 4, 1993, defendant WALMART, through its employees, agents, and
servants, committed acts which it knew to substantial certainty would cause
dangerous and potentially lethal injuries to Plaintiff, in utter indifference or
conscious disregard for Plaintiff’s health and safety, through one or more of the
following acts and/or omissions:

(a)
(b)

©
@)

(e)

(g)

(h)

dispensed Toradol to the plaintiffs; and\or,

overrode the computer warning system in order to dispense Toradol to
the plaintiffs; and\or,

did not advise or reveal to Dr. Lorenc that Toradol should not be
prescribed to the plaintiff; and\or,

did not advise plaintiffs that Toradol should not be prescribed to the
plaintiff; and\or,

did not advise plaintiffs that Toradol should not be taken by HEIDI
HAPPEL,; and\or,

told plaintiffs that Toradol could safely be taken by HEIDI HAPPEL;
and\or,

did not advise plaintiffs that Toradol should not be used in individuals
with the complete or partial syndrome of nasal polyps, angioedema, and
bronchospastic reactivity to aspirin or other nonsteroidal anti-
inflammatory drugs; and/or,

did not advise plaintiff to cease taking Toradol after being called and
informed of HEIDI HAPPEL’s symptoms; and/or,



30.

31.

32.

33.

35.

On August 4, 1993, despite its actual knowledge that ingestion of Toradol by its
customer, HEIDI HAPPEL, would certainly cause a severe allergic reaction and
injury, including anaphylaxis and possible death, defendant WALMART
intentionally and/or recklessly told plaintiff KENT HAPPEL that the medication
Toradol could be safely ingested by its customer, plaintiff HEIDI HAPPEL.

On August 4, 1993, despite its actual knowledge that ingestion of Toradol by its
customer, HEIDI HAPPEL, would certainly cause a severe allergic reaction and
injury, including anaphylaxis and possible death, defendant WALMART
intentionally and/or recklessly overrode the computer warning program and
dispensed and released the medication Toradol for its customer, HEIDI
HAPPEL, to plaintiff KENT HAPPEL.

On August 4, 1993, despite its actual knowledge that ingestion of Toradol by its
customer, HEIDI HAPPEL, would certainly cause a severe allergic reaction and
injury, including anaphylaxis and possible death, defendant WALMART
intentionally and/or recklessly overrode the computer warning program and
intentionally dispensed and released the medication Toradol to plaintiff KENT
HAPPEL without any warnings, cautions or instructions that Toradol should not
be taken by its customer, plaintiff HEIDI HAPPEL.

At all relevant times herein, defendant WALMART intentionally caused its
customer, plaintiff HEIDI HAPPEL, to receive and ingest a drug to which it had
actual knowledge that she was allergic.

At all relevant times herein, plaintiff HEIDI HAPPEL did not consent to
receiving and ingesting a medication to which she was known to be allergic,
including Toradol. .

After taking Toradol on August 4, 1993, plaintiff HEIDI HAPPEL developed
wheezing and asthmatic bronchospastic reactivity, following which time she
called defendant WALMART on two separate occasions and informed defendant
WALMART that she was allergic to aspirin, Ibuprofen, and Tylenol, and asked if
her symptoms could be related to the Toradol.

During these two telephone calls from its customer, plaintiff HEIDI HAPPEL,
despite its actual knowledge that ingestion of Toradol by its customer, HEIDI
HAPPEL, would certainly cause a severe allergic reaction and injury, including
anaphylaxis and possible death, defendant WALMART intentionally and/or
recklessly informed, advised and assured its customer, plaintiff HEIDI HAPPEL,
that her difficulty breathing was not related to her taking Toradol.


24.

26.

27.

29.

On August 4, 1993, and thereafter, defendant WALMART did not inform, advise,
warn or caution Dr. Ted Lorenc that the medication Toradol should not be taken
by plaintiff HEIDI HAPPEL, because of her personal history of previous
sensitivity to aspirin and prior episodes of bronchospastic reactivity to aspirin or
other nonsteroidal anti-inflammatory drugs.

On August 4, 1993, and thereafter, defendant WALMART intentionally and/or
recklessly did not inform, advise, warn or caution Dr. Ted Lorenc about the
computer warning or that the medication Toradol should not be taken by
plaintiff HEIDI HAPPEL, because of her personal history of previous sensitivity
to aspirin and prior episodes of bronchospastic reactivity to aspirin or other
nonsteroidal anti-inflammatory drugs.

On August 4, 1993, and thereafter, defendant WALMART intentionally and/or
recklessly did not inform, advise, warn or caution Dr. Ted Lorenc that the
medication Toradol should not be prescribed to its customer, plaintiff HEIDI
HAPPEL.

On August 4, 1993, and thereafter, defendant WALMART intentionally and/or
recklessly did not inform, advise, warn or caution Dr. Ted Lorenc about the
computer warning or that the medication Toradol should not be prescribed to its
customer, plaintiff HEIDI HAPPEL.

Plaintiff KENT HAPPEL is the husband of plaintiff HEIDI HAPPEL and was her
husband on all aforesaid relevant dates.

Plaintiff KENT HAPPEL presented himself to employees, agents and servants of
defendant WALMART on August 4, 1993, to pick up the medication prescribed
by Dr. Ted Lorenc for plaintiff HEIDI HAPPEL, at which time plaintiff KENT
HAPPEL again informed defendant WALMART that its customer, plaintiff
HEIDI HAPPEL, was allergic to aspirin, Ibuprofen, and Tylenol, and asked
whether its customer, plaintiff HEIDI] HAPPEL, could safely take the drug
Toradol.

On August 4, 1993, after the statements made by plaintiff KENT HAPPEL
informing defendant WALMART of the allergies of its customer, plaintiff HEIDI
HAPPEL, to NSAIDS drugs, defendant WALMART again had actual knowledge
that ingestion of Toradol by its customer, HEIDI HAPPEL, would certainly cause
a severe allergic reaction and injury, including anaphylaxis and possible death.



(d) _ did not advise plaintiffs that Toradol should not be prescribed to the
plaintiff; and\or,

(e) did not advise plaintiffs that Toradol should not be taken by HEIDI
HAPPEL,; and\or,

(f) _ told plaintiffs that Toradol could safely be taken by HEIDI HAPPEL;
and\or,

(g) did not advise plaintiffs that Toradol should not be used in individuals
with the complete or partial syndrome of nasal polyps, angioedema, and
bronchospastic reactivity to aspirin or other nonsteroidal anti-
inflammatory drugs; and/or,

(h) did not advise plaintiff to cease taking Toradol after being called and
informed of HEIDI HAPPEL’s symptoms; and/or,

(i) _ did not instruct plaintiff to go immediately to the emergency room or call
her physician after being called and informed of HEIDI HAPPEL’s
symptoms; and/or,

(j) _ established policies and procedures which permitted Toradol to be
dispensed despite actual knowledge that the drug should not be taken by
HEIDI HAPPEL without necessary safeguards.

42. The care and treatment rendered to Plaintiff HEIDI HAPPEL by defendant
WALMART did not meet the standard of care which could reasonably have been
expected for a patient such as the plaintiff.

WHEREFORE, plaintiff HEIDI HAPPEL sues defendant WALMART and PRAYS
judgment in such amount in excess of SEVENTY FIVE THOUSAND DOLLARS
($75,000.00) which shall adequately compensate the plaintiff for the losses and damages
sustained, plus the costs of this law suit.

COUNT IT
LOSS OF SOCIETY: KENT HAPPEL

43. Asa direct and proximate result of the negligent aforesaid acts or omissions of
defendant WALMART, plaintiff KENT HAPPEL has lost the support, aid,
comfort, society and services of his spouse, plaintiff HEIDI HAPPEL.


pt

* t
IN THE UNITED STATES DISTRICT COURT FILED
FOR THE NORTHERN DISTRICT OF ILLINOIS rg
EASTERN DIVISION AT CHICAGO JUL 2 4 2003

MICHAEL W. DOBBINS

HEIDI HAPPEL and KENT HAPPEL, her ) LEAK, U.@, DIBTHIOT BoUAT
husband, )

Plaintiffs, )
vs. ) Case No. 02 C 7771

) 2

WAL-MART STORES, INC., a Delware ) Ju ple Mona
corporation, d/b/a WAL-MART PHARMACY )

Defendants. ) DOCKETED

; NOTICE OF FILING JUL 25 2003

TO: See attached service list

YOU ARE HEREBY NOTIFIED that on the A Gay of July, 2003, there was caused to be
filed with the Clerk of the United States District Court for the Northern District of Illinois, Eastern
Division, Illinois, Plaintiffs’ Second Amended Federal Complaint at Law, a copy of which is
attached hereto and duly served upon you. ©

Cys

One of Plaintiffs’ Attorneys

PROOF OF SERVICE

The undersigned, a non-attomney, being first duly sworn upon oath, states and deposes that
she served a copy of the forgoing Notice of Motion and its attachment(s) upon all counsel of record
by depositing same in the U.S. m:

Subscribed and swom to before me
on this day of July, 2003.

: j OFFICIAL oe
WN MM.
Maun +4 htec NOTA DNL, STATE OF ILLINOIS
Notary Public MY COMMISSION EXPIRES 6-1-2007
Te eee renee

LAW OFFICE OF KENNETH C. CHESSICK, M.D.
1870 North Roselle Road, Suite 104

Schaumburg, Ilinois 60195

(847) 843-8044



anaphylactic shock, acute and chronic respiratory failure, exacerbation of
multiple sclerosis, seizures, memory loss, motor and sensory nerve loss; pain and
suffering; necessary help; disability and disfigurement; she has required and will

| require future rehabilitation including surgery and procedures; she has incurred
in the past and will incur in the future significant monetary expenses.

I WHEREFORE, plaintiff HEIDI HAPPEL sues defendant WALMART and PRAYS

i judgment in such amount in excess of SEVENTY FIVE THOUSAND DOLLARS

| ($75,000.00) which shall adequately punish defendant WALMART, deter such conduct
in the future, and compensate the plaintiffs for the losses and damages sustained, plus

the costs of this law suit.
Cine? ake

Attorney for Plaintiffs

Law Office of KENNETH C. CHESSICK, M.D.
Attorney for Plaintiff

1870 N. Roselle Road, Suite 104

Schaumburg, IL 60195

(847) 843-8044

10


45.

(i) did not instruct plaintiff to go immediately to the emergency room or call
her physician after being called and informed of HEIDI HAPPEL’s
symptoms; and/or,

@) _ established policies and procedures which permitted Toradol to be
dispensed despite actual knowledge that the drug should not be taken by.
HEIDI HAPPEL without necessary safeguards.

Asa direct and proximate result of the wilful and wanton aforesaid acts and
omissions of defendant WALMART, plaintiff HEIDI HAPPEL has suffered
permanent injury and damage to her lungs and central nervous system,
including anaphylactic shock, acute and chronic respiratory failure, exacerbation
of multiple sclerosis, seizures, memory loss, motor and sensory nerve loss; pain
and suffering; necessary help; disability and disfigurement; she has required and
will require future rehabilitation including surgery and procedures; she has
incurred in the past and will incur in the future significant monetary expenses.

WHEREFORE, plaintiff HEIDI HAPPEL sues defendant WALMART and PRAYS

judgment in such amount in excess of SEVENTY FIVE THOUSAND DOLLARS
($75,000.00) which shall adequately punish defendant WALMART, deter such conduct
in the future, and compensate the plaintiffs for the losses and damages sustained, plus

the costs of this law suit.
[ee) Iv
BATTERY - WALMART
46. On August 4, 1993, defendant WALMART, through its employees, agents, and

47.

servants, committed the following intentional acts:

(a) dispensed Toradol to the plaintiffs; and\or,

(b) caused plaintiff to ingest Toradol; and/or,

(c) after receiving telephone information that plaintiff had symptoms of an
allergic reaction to Toradol encouraged and caused plaintiff to continue
ingesting Toradol.

Asa direct and proximate result of the intentional aforesaid acts and omissions

of defendant WALMART, plaintiff HEIDI HAPPEL has suffered permanent
injury and damage to her lungs and central nervous system, including



37.

38.

39.

40.

41.

Upon dispensing and selling Toradol to plaintiffs KENT HAPPEL and HEIDI
HAPPEL and instructing that plaintiff HEIDI HAPPEL could safely take Toradol,
despite her history of allergy to aspirin, Ibuprofen, and Tylenol, defendant
WALMART had the duty to possess the knowledge and use the skill of a
reasonably well qualified pharmacist in providing information and to plaintiff
HEIDI HAPPEL.

On and prior to August 4, 1993, the medication TORADOL was not to be
dispensed to or used in individuals with the complete or partial syndrome of
nasal polyps, angioedema, and bronchospastic reactivity to aspirin or other
nonsteroidal anti-inflammatory drugs.

At all relevant times herein, defendant WALMART intentionally caused its
customer, plaintiff HEIDI HAPPEL, to continue ingesting a drug to which it had
actual knowledge that she was allergic.

Asa direct and proximate result of its negligent, reckless, and/or intentional acts
or omissions of defendant WALMART, plaintiff HEIDI HAPPEL has suffered
permanent injury and damage to her lungs and central nervous system,
including anaphylactic shock, acute and chronic respiratory failure, exacerbation
of multiple sclerosis, seizures, memory loss, motor and sensory nerve loss; pain
and suffering; necessary help; disability and disfigurement; lost wages, benefits,
and economic and educational opportunities; she has required and will require
future rehabilitation including surgery and procedures; she has incurred in the
past and will incur in the future significant monetary expenses.

COUNT I: NEGLIGENCE
On August 4, 1993, defendant WALMART, through its employees, agents, and

servants, did breach its aforesaid duty to its customer, plaintiff HEIDI HAPPEL,
through one or more of the following negligent acts and/ or omissions:

{a) dispensed Toradol to the plaintiffs; and\or,

(b) _ overrode the computer warning system in order to dispense Toradol to
the plaintiffs; and\or,

(c) did not advise or reveal to Dr. Lorenc that Toradol should not be
prescribed to the plaintiff; and\or,


10.

11.

12.

13.

On September 30, 1994, plaintiffs filed Complaint 94112400 in the Circuit Court
of Cook County, Illinois, against this defendant.

On August 20, 2002, Order granting Plaintiffs’ Motion for Voluntary Dismissal
against this defendants was entered in the Circuit Court of McHenry County,
Illinois, attached herein as Exhibit A.

The filing of this action is within one year of the granting of plaintiffs’ Voluntary
Dismissal against this defendant.

FACTUAL ALLEGATIONS

On or about August 4, 1993, and thereafter, defendant WALMART was a
corporation, authorized to do business in the State of Illinois and doing business
in the County of Cook and State of Illinois with its Registered Agent in Cook
County, Illinois.

At all times relevant hereto, defendant WALMART held itself out as a
corporation properly equipped and staffed to offer the general public pharmacy
services to customers such as plaintiff HEIDI HAPPEL and whose Rules and
Regulations and Policies and Procedures established certain standards of
competence and required that such rules, regulations, policies and procedures be
followed by its employees, including pharmacists and allied pharmacy personnel
who work within WALMART’s facilities.

At all times relevant hereto, defendant WALMART's pharmacists, technicians,
assistants, and related personnel held themselves out to the public as
pharmacists, technicians, assistants, and related personnel, reasonably skilled in
the practice of pharmacy and pharmacology.

On August 4, 1993, Florence Bowser, Judith Grauman, and Steven Odes were
employees, agents, and servants of defendant WALMART and under its
direction and control.

Prior to August 4, 1993, defendant WALMART was informed by its customer,
plaintiff HEIDI HAPPEL, that she was allergic to aspirin and ibuprofen and other
similar drugs of its class.


IN THE UNITED STATES DISTRICT COURT F I L E D
NORTHERN DISTRICT OF ILLINOIS
JUL 24 2003 7G

MICHAEL w. DOBBINS

HEIDI HAPPEL and KENT HAPPEL, her LEAK, U.$, DISTRIGT Gouny

)
husband, )
Paint DOCKETED
vs. ) 02C 7771 JUL 2 5 2003
) v7
WALMART STORES, INC, a Delaware ) Ju D le CWR 4
corporation, d\b\a WALMART PHARMACY )
Defendants. )

D 33 ke) LA
NOW COME plaintiffs HEIDI HAPPEL and KENT HAPPEL, her husband, by
and through their attorneys, the Law Office of Kenneth Chessick, M.D., and
complaining of defendant WALMART PHARMACY, INC., a Delaware corporation

d\b\a WALMART PHARMACY (hereinafter referred to as “WALMART”), and state as
follows:

THE PARTIES

1. At the time of the filing of this complaint in September, 2002, plaintiffs HEIDI
HAPPEL and KENT HAPPEL are citizens of the State of Texas.

2. At the time of the filing of this complaint in September, 2002, defendant

WALMART was a Delaware corporation which is neither incorporated nor has
its principal place of business in the State of Texas,

JURISDICTION AND VENUE

3... These proceedings arise under and jurisdiction is founded upon 28 U.S.C. Sec.
} 1332 and the laws of the United States of America.

4. Venue is proper in this District pursuant to 28 U'S.C. Sec 1391, because claims
made herein arose in this District.

5. Complete diversity exists between all of the plaintiffs and the defendant.

5



SERVICE LIST

Happel v. WalMart
Case No: 02 L 012341
02C7771

meys for Defendant Wal PI
Mark Monroe

James McCluskey

P. Timothy Crandchamp

George M. Bebble

Steve B. Ekker

MOMKUS, MCCLUSKY, MCANDREW & MONROE, LLC.
3051 Oak Grove Drive

Downers Grove, Illinois 60515

(630) 434-0400

(630) 434-0444 (fax)