HARRISBURG – A woman who alleged Walmart committed a pharmaceutical packaging error which allegedly led her husband to take the wrong medicine and pass away in 2017, is fighting an attempt on the part of the company to dismiss the case.
Cindy M. Orner first filed suit on behalf of the Estate of Raymond J. Orner Jr. in the Franklin County Court of Common Pleas on Feb. 26, and Walmart removed the case to the U.S. District Court for the Middle District of Pennsylvania on March 16.
Cindy claimed that a misprint on Walmart medicine resulted in Raymond’s death. After having stents installed in his right coronary artery, left internal carotid artery, and his right internal iliac artery over the prior four years, Raymond was taking platelet inhibitor medication Clopidogrel (a.k.a. Plavix) starting in April 2017.
Raymond was prescribed the medicine and picked it up from Walmart Store No. 3633. It was labeled “Clopidogrel”, but the lawsuit claimed that the medicine inside was actually Simvastatin.
“It is believed that Mr. Orner took the incorrect medication, believing the bottle he had been given at Walmart had been packaged with Clopidogrel,” the lawsuit alleged.
“Because Mr. Orner was not actually taking Clopidogrel as prescribed by his doctor, his risk of suffering a heart attack and stroke increased with each passing day.”
He had a heart attack and passed away in late 2017 at the age of 55.
On Jan. 10, 2018, International Laboratories, LLC issued a voluntary nationwide recall of one lot of “Clopidogrel Tablets, USP 75 mg, packaged in bottles of 30 tablets, to the consumer level due to mislabeling.”
On March 23, Walmart filed a motion to dismiss counts of survival and wrongful death from Orner’s lawsuit for failure to state claims or in the alternative, to dismiss the complaint in its entirety for failing to join an indispensable party to the action in International Laboratories.
“Plaintiff has alleged negligence against the dispensing pharmacy Walmart, but plaintiff fails to provide the factual basis for Walmart’s alleged negligence. Rather, the facts upon which plaintiff relies only support claims against International Laboratories who supplied a consumer-ready sealed bottle, and not Walmart. As such, plaintiff fails to state a claim upon which relief can be granted,” the dismissal motion read.
“Additionally, as of the date of this writing, there is no indication to Walmart that defendant International Laboratories, LLC was properly served with the writ of summons or complaint. International Laboratories is undoubtedly an indispensable party to this action. If this indispensable party was not joined, then the complaint should be dismissed in its entirety.”
According to Walmart, its conduct was not negligent and its connection to the case was minimal.
“Walmart’s only connection to the litigation is that it allegedly dispensed a pre-packaged and sealed, consumer-level bottle of medication to Mr. Orner,” the motion stated.
Orner responded to the dismissal motion on May 6 and opposed Walmart’s efforts in that regard, feeling the dismissal attempt was premature and she should be entitled to further prosecute her claim.
“At this early stage in the litigation, the allegations contained in the facts section and Counts IV and V of the complaint provide a plausible basis from which a reasonable inference could be made that the Walmart defendants are ‘liable for the misconduct alleged,” counsel for Orner stated.
“If, however, the plaintiff cannot establish any failings on the part of the Walmart defendants through the course of discovery, defendants can and will move for summary judgment. At the present time, however, without the benefit of discovery, the Walmart defendants’ motion to dismiss is premature.”
Orner additionally argued that the joinder process involving defendant International Laboratories, LLC remains in progress and that to dismiss the complaint during that process would also be premature.
The plaintiff is represented by Scott M. Simon of Robert Peirce & Associates, in Pittsburgh.
The defendants are represented by Louis Hockman of Mintzer Sarowitz Zeris Ledva & Meyers and Maureen E. Daley of Rawle & Henderson, both in Philadelphia, plus Elisa M. Boody and Patrick J. McDonnell of McDonnell & Associates, in King of Prussia.
U.S. District Court for the Middle District of Pennsylvania case 1:20-cv-00449
Franklin County Court of Common Pleas case 2019-4862
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com