If Len Kulisek had lived, he might have gotten the whole $31 million.

But because Illinois law doesn't allow for punitive damages for plaintiffs who die from their injuries, an appellate court Tuesday disallowed $25 million in punishment against Walgreen's for the elderly Schaumburg man killed by a prescription mix-up.

That still leaves the survivors of Kulisek, who was 79 when he died in 2002, with compensatory damages of $6.1 million, though, which the court cited in disallowing the $25 million punishment. It noted that punitive damages are typically only allowed when survivors of the deceased would have no other form of compensation.

"The compensatory damages award in this case demonstrates that there can be no question that an adequate remedy exists in that form of damages," wrote Illinois Appellate Court Justice Joy Cunningham for a three-judge panel.

"It's disappointing in Illinois if somebody like Walgreens doesn't watch their inventory - and it ends up killing someone, they're not subject to punitive damages, whereas if they hurt someone who doesn't die, they could have" had to pay punitive damages, said David Axelrod, the attorney for Kulisek and his estate.

However, he said he was heartened the court strongly rejected Walgreens' argument that there was not enough evidence to prove that Walgreen's was responsible for Kulisek's death.

The judges noted that the pharmacist who misfiled the prescription, James Wilmes, admitted after the accident that he had been stealing and ingesting OxyContin, Vicodin, codeine, Ritalin and other prescription pills for a total of 86,400 pills over eight years. Additionally, two medical experts testified the most reasonable explanation for Kulisek's liver failure that eventually killed him was the glipizide that he ingested after Wilmes gave it to him instead of the requested allopurinol on Jan. 1, 2001. Even Walgreens' own medical expert admitted the low blood sugar resulting from the glipizide caused Kulisek brain injury, the judges said.

Finally, evidence showed that if Walgreens had obeyed state and federal laws and paid attention to its existing drug inventory system, they could have detected the theft much earlier.

Axelrod did not yet know if he planned to appeal.

Vivika Vergara, a spokeswoman for Walgreen's, said the company had no comment.