Judges question legality of $25 mil. punishment in Walgreens case
An Illinois appeals court questioned Tuesday whether it is legal to order Walgreens to pay $25 million as punishment on top of $6.1 million in compensation for the death of an elderly Schaumburg man who was given the wrong prescription.
A jury ruled in 2006 that Len Kulisek was killed because a Walgreens pharmacist gave him blood pressure medication instead of the prescribed gout medicine he ordered. The pharmacist had been stealing various pills from the Schaumburg store and taking them himself without a prescription, although he denied he was under the influence at the time he filled the prescription on Jan. 1, 2001.
The jury held Walgreens responsible because it failed to follow strict state and federal laws mandating that the company carefully control its inventory, which would have allowed them to detect Wilmes' theft of more than 70,000 pills sooner, thereby possibly preventing Kulisek's death.
The jury forewoman interviewed after the verdict said they imposed the $25 million penalty in part to try to teach Walgreens a lesson and prevent a future tragedy.
But Justice Thomas E. Hoffman and two other judges questioned if that option should have even been given to the jury.
Walgreens attorney Michele Odorizzi argued Tuesday that in claims surviving the death of the victim, the legislature doesn't allow for punishment on top of compensation. That's true, responded David Axelrod, the attorney for Kulisek and the family that lived with him at the time of his death. But, Axelrod noted, judge-made law sometimes does provide an exception to that rule in cases where the public interest is at stake, and the trial court judge had ruled such an exception existed in this case.
"People expect ... that when they go in to fill their prescriptions that they're going to get the right medicine," said Axelrod.
True enough, said Hoffmann, but asked "where do we draw the line" on deciding which cases are exceptions to the rule?
Although the judges appeared skeptical of approving the $25 million punishment, they were none too receptive when Walgreens attorney suggested the $6.1 million in compensation should be up for grabs too. She argued the entire trial should be done over, in part, because it was never proved the prescription mix-up, rather than existing illness, was what killed Kulisek.
"This (Kulisek) was an old guy who was getting through the delicate balance of his (health)," said Justice Joy V. Cunningham. "His health was like an eggshell, and Walgreens did something that cracked the eggshell ... and his health just oozed out. That's what the jury said."
No ruling date has been set.