HARRISBURG – Walmart is seeking to dismiss litigation between itself, a woman who alleged it committed a pharmaceutical packaging error which allegedly led her husband to take the wrong medicine and pass away in 2017 and the medicine’s manufacturer.
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, 2020 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.”
U.S. District Court for the Middle District of Pennsylvania Judge Jennifer P. Wilson ordered the action stayed on July 8, due to issues of discovery needing to be resolved before proceedings continued.
“By agreement of the parties and as discussed during the case management conference conducted on the date of this order, it is ordered that all discovery in this matter is stayed pending the court’s resolution of the defendants’ motions to dismiss,” Wilson said.
UPDATE
When proceedings resumed an amended complaint was filed, Walmart filed to dismiss the action on Jan. 5, for failure to state claims upon which relief could be granted.
“Plaintiff’s factual averments fail to establish the existence of a duty or standard of care that requires pharmacies to inspect a manufacturer’s sealed original labeled container to determine whether it was mislabeled. Nor could plaintiff ever make such factual allegations because there is no existing duty to inspect sealed pre-labeled/pre-packaged manufacturer’s bottles,” the dismissal motion said.
“The Court’s memorandum did not grant leave for plaintiff to merely file an amended complaint stating conclusory ‘magic words.’ Plaintiff was required to plead some facts, which if true, could establish the existence of a legally established and relevant duty.”
According to Walmart, Orner’s amended complaint purports to assert three new causes of action added without leave of Court: Strict products liability, breach of implied warranties, and breach of express warranties; none of which can be legally stated against Walmart in this context.
“Plaintiff alleges that the manufacturer, International Laboratories, supplied a consumer-ready sealed prepackaged bottle but makes no allegations that the Walmart pharmacy designed or manufactured the medication. At no time has plaintiff moved for leave to file an amended complaint stating new causes of action against an existing party,” the dismissal motion added.
“Certainly, the Court’s memorandum that dismissed negligence claims did not grant leave to file an amended complaint stating strict liability and warranty claims that were never pleaded. The new claims against Walmart should be dismissed both for failure to conform to an order of the Court and because they are legally defective. As such, all claims against Walmart should be dismissed.”
Through mutual stipulation between the parties, Count VI of the complaint for breach of express warranty against the Walmart defendants was dismissed with prejudice on Feb. 2.
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