No. 02 C 7771 Page 4

be available. Grant v, Petroff, 291 Ill. App. 3d 795, 805, 684 N.E.2d 1020, 1027 (5 Dist. 1997).
Defendant claims that plaintiffs’ earlier, unsuccessful attempts to add such intentional torts
to their complaint preclude them from now including such claims. This court must give the
earlier state court rulings the same effect as would be given by the state courts of Mlinois.
PaineWebber Inc. v. Farnam, 870 F.2d 1286, 1290 (7 Cir. 1989); 28 U.S.C. § 1738. When an
issue of law or fact is argued and decided, the determination is conclusive in any subsequent
action between the same parties, as to all subsequent claims, 7d.

As stated in this court’s Memorandum Opinion and Order of July 2, 2003, we are
unable to look at the exact reasoning used by the circuit court when denying plaintiffs’ motions
for leave to amend their complaint. Likewise, the appellate court’s decision dealt only with
the sufficiency of the battery allegations, finding that plaintiffs did not properly allege intent.
Taken together, we cannot say that the state courts precluded the possibility of plaintiffs
prevailing on a properly pled complaint for elther willful and wanton misconduct or for
battery. At no point in this litigation has any court entered a judgement determining the
ultimate state of facts or the final rights and responsibilities of the parties that would be
binding on subsequent disputes. Garrison v. Community Consol. School Dist, No. 65, 88 Ill.
App. 2d 158, 169, 232 N.E.2d 148, 153-54 (1" Dist. 1967).

Defendant contends that the appellate court clearly stated that plaintiffs waived their
right to state a claim for willful and wanton misconduct. See Happel, 737 N.E.2d at 657.
While that opinion is not entirely clear, it appears that the appellate court held only that
plaintiffs could not raise any arguments about the willful and wanton misconduct claim as part
of that appeal. Nothing in that, or any of the other state court opinions, forecloses the

possibility of plaintiffs subsequently attempting to file a new claim for willful and wanton


No, 02 C7771 Page7

Portability and Accounting Act of 1996, Pub. L. No, 104-191; 740 ILCS 110/10. We recognize
that such information is personal, and should be protected to the greatest extent possible. A
protective order, as suggested by plaintiffs, may be the most efficient way to accomplish this.
The order plaintiffs seek, however, is far too restrictive, requiring separate authorizations for
a great number of relevant documents. Defendant, and its expert witness, must have an
adequate opportunity to review Heidi’s mental health records, as well as other relevant
medical records.

We will therefore enter an appropriate protective order limiting access to the medical
records to defendant, and its experts, and limiting the duration of such access to the time
necessary for this litigation. This should ensure Heidi’s privacy from third party access to her
medical information. At the same time, we order plaintiffs to immediately authorize access by
defendant to all possibly relevant medical records, and that includes all the records sought..

* CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss is denied. Plaintiffs’ motion
in support of a qualified protective order is granted in part; defendant’s motion to compel
discovery compliance is granted in part, and its motion to strike plaintiffs’ objections is denied

as moot,

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

ima Ly , 2004.


No. 02 C7771 Page3

court.

Plaintiffs’ first amended federal complaint, filed on March 4, 2003, contained a claim
for intentional misconduct, which was dismissed on July 2, 2003, on defendant’s motion.
Happel v. Wal-Mart Sores, Inc., 2003 WL 21518570 (N.D. Hil. 2003). In so doing, this court
held that plaintiffs’ intentional tort claims were not barred by the state court decisions and
offered the plaintiffs the opportunity to state a viable claim for an intentional tort. On July
24, 2003, plaintiffs filed their second amended complaint, adding claims for willful and wanton
misconduct and battery.

DISCUSSION
Motion to Dismiss

In deciding a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, we must
assume the truth of all well-pleaded allegations, making all inferences in the plaintiff’s favor.
Sidney S. Arst Co. y. Pipefitters Welfare Educ, Fund, 25 F.3d 417, 420 (7TM Cir. 1994). The
court should dismiss 2 claim only if it appears “beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to relief.” Conley y. Gibson, 355
U.S. 41, 45-46 (1957). While the complaint does not need to provide the correct legal theory
to withstand a Rule 12(b)(6) motion, it must allege allt of the elements necessary to recover.
Ellsworth v. City of Racine, 774 F.2d 182, 184 (7" Cir. 1985), cert. denied, 475 U.S. 1047 (1986).

At issue {s plaintiffs’ desire to seek punitive damages. The Mlinols Code of Civil
Procedure and Healing Arts Malpractice Act (HAMA) impose a duty of care upon Wal-Mart,
when it acts as a pharmacist, in exchange for protection from “punitive, exemplary, vindictive
or aggravated damages.” 735 ILCS 5/2-1115. A plaintiff may state a malpractice claim subject

to HAMA’s limitations, as well as an intentional tort claim for which punitive damages may


No. 02 € 7771 Page S

misconduct. See Barnett y. Zion Park Dist, 171 Ill. 2d 378, 384, 665 N.E.2d 808, 811 (1996)
(failure to incorporate previously dismissed allegations in the final complaint constitutes
waiver of appellate review of those claims).

Defendant {fs correct in its assertion that, even if plaintiffs prevail, the willful and
wanton misconduct claim is not sufficient for plaintiffs to recover punitive damages. While
state courts in Illinois have never gone as far as the Seventh Circuit, Dayis v, U.S,, 716 F.2d
418, 426 (7" Cir. 1983) (stating that willful and wanton misconduct is basically a heightened
form of negligence), they recognize that willful and wanton misconduct is essentially the same
standard as recklessness. Burke y. 12 Rothschild’s Liquor Mart, Inc,, 148 LIL 2d 429, 593
N.E.2d 522, 531 (holding, after a lengthy discussion of the meaning of willful and wanton
conduct, that such conduct was qualitatively different than negligence and could not be
compared to negligence in order to reduce plaintiff's recovery). As stated in this court’s order
on July 2, 2003, this ts not enough to recover punitive damages because of the limitations of
HAMA. Plaintiffs do however sufficiently allege the elements of willful and wanton
misconduct so as to survive a motion to dismiss.

Finally, defendant argues that plaintiffs fail to properly state a claim for battery
because they do not allege actual physical contact and they fail to allege subjective intent. In
support of its first contention, defendant does no more than compare the facts of this case to
those in Grant, where the court allowed plaintiffs to file a HAMA malpractice claim, along
with a battery claim, following an unconsented-to tubal ligation. 291 TL App. 3d 795, 684
N.E.2d 1020. This alone is not enough to defeat plaintiffs’ claim for battery. We note that
while defendant’s alleged wrongdoing differs significantly from that in Grant, the parties do

not direct us to any cases resolving the issue of whether the alleged conduct was sufficient to


a7

Minute Border Form (06/97)

United States District Court, Northern District of Mlinois

N if
wmeatnaewasiee | James B. Moran | tng oe Ome
CASE NUMBER 027774 DATE 2/3/2004
CASE HEIDI HAPPEL vs. WAL-MART STORES, INC.
TITLE

of the motion being presented. ]

[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:
MEMORANDUM OPINION AND ORDER
DOCKET ENTRY:
(ly oO Filed motion of [ use listing in “Motion” box above.}
(2) im} Brief in support of motion due___
(3) aq Answer brief to motion due___. Reply to answer briefdue__.
(4) a Ruling/Hearing on _____ssetfor___at
(5) Qo Status hearing[held/continued to] [set for/re-set for]on___—ssetfor__—at.
(6) ia] Pretrial conference[held/continued to] [set for/re-set for]on___—setfor__—s ss at_—
@ QO Trial{set for/re-set for]on___—__at
(8) im} (Bench/Jury trial] [Hearing] held/continued to___at
(9) a This case is dismissed {with/without} prejudice and without costs[by/agreement/pursuant to}

CUFRCP4(m) C)Local Rule 41.1. OFRCP41(a)(1) © FRCP41(a)(2).

as moot.

di @ {For further detail see order attached to the original minute order.]

qo) [Other docket entry} Enter Memorandum Opinion And Order. Defendant’s motion to dismiss is
denied. Plaintiffs’ motion in support of a qualified protective order is granted in part; defendant’s motion
to compel discovery compliance is granted in part, and its motion to strike plaintiffs’ objections is denied

No notices required, advised in open court.

No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone.
wv | Docketing to mail notices,
Mail AO 450 form. Portas

Copy to judge/magistrate judge. Roe
courtroom Seay +
LG deputy's ales
initials a -
YL Dateftime received in
central Clerk°d Office



No. 02C 7771 Page 6

constitute a battery under Illinois law. Because the parties have not substantially briefed this
issue we deny, for now, defendant’s motion to dismiss the claim.

While denying the motion, we reiterate what we said in our order dated July 2, 2003:
plaintiffs bear a heavy burden in proving subjective intent to cause harm. Happel, 2003 WL
21518570 (plaintiffs’ allegations require “proof of a subjective intent, a very high threshold
indeed”). The sufficiency of plaintiffs’ evidence is not the subject of this motion, though it may
prove to be at issue in a summary judgment motion. At this stage, plaintiffs sufficiently allege
the elements of battery and therefore survive this motion to dismiss,

lotion for Quali r

We next turn to an ongoing discovery dispute surrounding the disclosure of Heidi’s
medical records to defendant. On March 25, 2003, we granted defendant’s motion (without
objection by plaintiffs) and directed plaintiffs to sign authorizations giving defendant access
to the records. After receiving the authorizations, plaintiffs refused to sign the documents and
filed objections to the discovery, arguing that this court lacked authority to order her to sign,
and that the authorization forms were over-broad. Defendant then filed motions to strike
plaintiffs’ objections, and seeking immediate disclosure of the records. It subsequently filed
a motion to compel discovery compliance and to revise the discovery plan. Plaintiffs
responded by filing a motion seeking a qualified protective order, claiming that such an order
was the only appropriate way for defendant to obtain the information.

As the supervisor of discovery, we clearly have the authority to require plaintiffs to sign
the authorizations. They cannot bring Heidi’s mental health into issue and then refuse access
by the defendant to relevant information. Discovery of this information through such

authorizations {s clearly allowed by both federal and state law. See Health Insurance


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

EASTERN DIVISION
HEIDI HAPPEL and KENT HAPPEL, y
her husband, )
Plaintiffs, }
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 Wal-Mart
Stores, Inc. d/b/a Wal-Mart Pharmacy (Wal-Mart) alleging negligence, loss of society, willful
and wanton misconduct and battery. ‘Defendant now moves to dismiss Counts I and IV, the
claims for willful and wanton conduct and battery, which were added as part of plaintiffs’
second amended complaint on July 24, 2003. For the following reasons, defendant’s motion
is dented. We also order plaintiffs to authorize discovery of Heldi’s relevant mental health
records, subject to an appropriate protective order.

BACKGROUND

On August 4, 1993, Kent Happel entered a Wal-Mart pharmacy and picked up a
prescription for the drug Toradol, for his wife Heidi, which had been phoned in earlier that
day by Dr. Terrence Lorenc. According to plaintiffs, Wal-Mart’s computer contained
information showing that Heidi was allergic to aspirin and ibuprofen, both in the class of
drugs known as non-steroidal anti-inflammatory drugs (NSAIDs). Neither Kent nor Heidi was

aware that Toradol was an NSAID, nor had they any reason to believe that Heidi would be


No. 02 C7771 Page2

allergic ta the medicine.

Plaintiffs allege that Wal-Mart’s computer system would bave displayed a warning
when Kent asked for the Toradol because of Heldi’s allergies to other NSAIDs. They further
allege that Wal-Mart’s computer system will not allow a prescription label to be printed after
such a warning, unless the pharmacist manually overrides the system. Also, they allege that
store policy prevents the pharmacist from doing so without first speaking to the prescribing
physician. Plaintiffs claim that one or more Wal-Mart employee noticed the warning and
knew that Toradol would have a harmful effect on Heidl, and printed the prescription,
intending to cause her harm. After taking the Toradol, Heidi allegedly suffered severe, long-
term medical problems as a result of her allergic reaction to the drug.

Plaintiffs initially brought suit in the Circuit Court of Cook County, Illinois, and that
lawsuit was transferred to McHenry County. On April 20, 1999, plaintiffs sought leave to
amend their complaint to add a claim for willful and wanton conduct, which motion was
denied on July 16, 1999. On August 9, 1999, plaintiffs again sought leave to amend the
complaint, this time to add claims for battery and fraud. On September 17, 1999, the court
denied their motion, and granted summary judgment in favor of the defendant. On appeal,
the appellate court reversed the granting of summary judgment but affirmed the court’s
denials of leave to amend the complaint, and further ruled that plaintiffs had waived appellate
review of their claim for willful and wanton conduct. Happel vy. Wal-Mart Stores, Inc., 316 Ill.
App. 3d 621, 737 N.E.2d 650 (2" Dist. 2000). Defendant appealed that decision but it was
affirmed by the Minois Supreme Court. Happel v. Wal-Mart Stores, Inc., 199 Dl. 2d 179, 766
N.E.2d 1118 (2002). On remand, plaintiffs voluntarily dismissed the McHenry County action

and refiled this action in Cook County, at which time defendants removed the case to this