PHILADELPHIA – CVS Pharmacy has settled a negligence lawsuit filed by a Philadelphia woman who alleged she was dispensed the wrong prescription medication and then suffered a seizure, claiming the plaintiff has failed to state a case against it, plus other defenses.
On March 13, counsel for both plaintiff April Ploeger and defendant CVS mutually stipulated to dismiss the litigation with prejudice, and with each party to bear its own attorney’s fees and costs. The order was signed by U.S. District Court Judge Eduardo C. Robreno.
Terms of the settlement were not disclosed.
Ploeger had initially filed her complaint on Nov. 19 in the Philadelphia County Court of Common Pleas.
She alleged that on June 29, 2017, she “unknowingly” took Prozac that was mistakenly dispensed by a West Philadelphia CVS Pharmacy in her prescription vial, labeled Gabapentin 100 mg. As a result, Ploeger alleged she suffered seizures and subsequently required hospitalization.
CVS removed the suit to federal court in the U.S. District Court for the Eastern District of Pennsylvania on Dec. 18, claiming the amount in controversy exceeded $75,000 and citing diversity of citizenship.
Four weeks later, on Jan. 16, the pharmacy filed a formal answer to the complaint.
CVS categorically denied each of the plaintiff’s allegations and asserted no less than 18 separate affirmative defenses against Ploeger.
They included the plaintiff allegedly:
• Failing to state a cause of action upon which relief may be granted;
• Committing contributory negligence to advance her own injuries;
• Assuming the risk of injury; and
• Failing to mitigate any damages allegedly sustained, along with many others.
Prior to settlement, the plaintiff was seeking, individually and jointly and severally, an amount in excess of $50,000 in compensatory damages, delay damages pursuant to Pa. R.C.P. 238, interest and allowable costs of suit.
The plaintiff was represented by Kevin R. Marciano and Patrick D. MacAvoy of Marciano & MacAvoy, in Media.
The defendants were represented by Amalia V. Romanowicz and A. Bryan Tomlinson of Post & Schell, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:19-cv-05978
Philadelphia County Court of Common Pleas case 190701404
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com