PHILADELPHIA – A federal judge has remanded to state court a lawsuit from an Upper Darby woman, who alleged CVS Pharmacy improperly and incorrectly prescribed her medication, leading her to suffer adverse reactions.
Roslyn Hawkins of Upper Darby initially filed suit in the Philadelphia County Court of Common Pleas on Aug. 21 versus CVS Pharmacy, Inc. and CVS Health Corporation, both of Woonsocket, R.I.
“At all material times, CVS Pharmacy, Inc. and CVS Health Corporation were acting by and through their agents, ostensible agents, representatives, servants and/or employees in the negligent manner as set forth specifically herein. At all material times, CVS Pharmacy, Inc. and CVS Health Corporation held themselves to the public generally and to plaintiffs specifically as competent to provide pharmaceutical services and/or medical care,” the suit said.
“Plaintiffs looked to CVS Pharmacy, Inc. and CVS Health Corporation as competent to provide these services and to provide pharmaceutical services in an appropriate and proper manner. Those medical and pharmacological personnel who dispensed medication to plaintiff Roslyn Hawkins on or about May 8, 2022 and who had the duty to properly dispense the prescribed medicine. Additionally, once it was learned that the pharmacy had not dispensed the correct dosage, the pharmacy should have properly and promptly notified plaintiff that the dispensed medication was improperly dispensed.”
The suit added that on May 5, 2022, CVS Pharmacy in Drexel Hill called Hawkins and informed her that her prescription for Lamotrigine, which she had been prescribed for the last four years, was delayed.
“On or about May 8, 2022, the CVS Pharmacy contacted Hawkins and told her that her prescription was ready. On or about May 8, 2022, plaintiff arrived at the CVS pharmacist which is located at 802 Lansdowne Avenue, Drexel Hill, PA 19026 and was told that her prescription was not ready, however, the pharmacist gave her a few pills to hold her over until the full prescription was ready. The pills given to plaintiff by the CVS Pharmacist were in fact Topamax 200mg instead of Lamotrigine. On or about May 8, 2022, in response to plaintiff Hawkins’ request for this prescription of Lamotrigine tablet as prescribed, a pharmacist and/or pharmacy personnel located at CVS Pharmacy negligently, irresponsibly and/or recklessly prepared and mistakenly dispensed the wrong dosage medications; specifically 200 mg dosage of Topamax, which was not what plaintiff’s treating physician prescribed and should not have been dispensed to plaintiff by CVS Pharmacy, Inc. and CVS Health Corporation,” the suit stated.
“Plaintiff mistakenly believed that she was given the correct medication, trusting that the pharmacist would not give her drugs that were not prescribed to her. On or about May 9, 2022, plaintiff began taking the incorrectly dispensed medication, taking two pills totaling 400 mg of Topamax, and felt numbness and tingling in her hands, was unable to speak properly, felt dizzy, felt a heaviness in her body, and experienced problems with her vision. Due to the seriousness of her symptoms, plaintiff went to Urgent Care in Upper Darby, and from urgent care, was transported to Delaware County Memorial Hospital in Upper Darby, PA. As a result of ingesting medication improperly dispensed medication, plaintiff was caused to experience mental fogginess, dizziness, a feeling that resembled being drunk, slurred speech, tingling in the hands and feet, numbness in her right hand and great anxiety.”
Due to the alleged failure of CVS Pharmacy, Inc. and CVS Health Corporation in improperly dispensing medications, the plaintiff and has suffered “irreversible and permanent bodily damage and injuries including, but not limited to, high levels of stress, panic attacks, hypersensitivity to unfamiliar body sensations, extreme sweating upon entering any pharmacy.”
CVS looked to remove the case to the U.S. District Court for the Eastern District of Pennsylvania on Sept. 20, citing both diversity of citizenship between the parties and claimed damages in excess of $75,000.
The following day, CVS answered the complaint and denied its substantive allegations as conclusions of law to which no official response was required, before providing affirmative defenses on its own behalf.
“Plaintiff’s claims may be barred by the Doctrine of Contributory Negligence, based on the actions of plaintiff and/or plaintiff’s minor. Plaintiff’s claims may be barred or reduced by the provisions of the Pennsylvania Comparative Negligence Act, the relevant portions of which are incorporated herein by reference as though same were more fully set forth at length herein. Plaintiff and/or plaintiff’s minor failed to mitigate any damages allegedly sustained,” per the company’s answer.
“Pennsylvania Rule of Civil Procedure 238 should be deemed unconstitutional, as a violation of the Due Process and the Equal Protection clauses of the 14th Amendment of the United States Constitution, as well as Article I, Sections 1 and 11 and Article 5, Section 10(c) of the Pennsylvania Constitution. In accordance with Pennsylvania Rule of Civil Procedure 238, answering defendant is not required to pay delay damages during those time periods in which plaintiff’s conduct delayed the trial. Moreover, delay damages may be further reduced in accordance with Pennsylvania law. Plaintiff’s claims may be barred in whole or in part by the Medical Care Availability and Reduction of Error Act and/or the Health Care Services Malpractice Act. All provisions of the MCARE Act which are applicable to this case, including but not limited to Section 508(b)(a) (regarding collateral source and preclusion of recovery for paid, past medical bills) and Section 510 (regarding reduction to present value) are hereby pled.”
On Oct. 4, the plaintiff filed a motion to remand the case to the Philadelphia County Court of Common Pleas, contending that CVS offered her a low settlement amount, while at the same time, claiming the case exceeded the state court jurisdictional threshold – despite offering no evidence to support that claim.
“While negotiating in this case, defendant’s claims adjuster Louise Taft conveyed a settlement offer of $5,500 in an e-mail to plaintiff’s counsel. After plaintiff’s counsel rejected the settlement offer, Taft e-mailed plaintiff’s counsel back, stating that it was her belief that this case only had a value ‘more in line with $15,000’. Defendants value this case at $15,000, but have alleged that the case is worth over $75,000 in a sneaky attempt to avoid the Philadelphia County Court of Common Pleas,” the remand motion stated.
“Defendants’ settlement negotiations show that defendants value the case well under the jurisdictional limit, however, are claiming that it exceeds the jurisdictional limit as a strategy to avoid the Philadelphia County Court of Common Pleas. Pursuant to 28 U.S.C. Section 1447(c), plaintiff hereby seeks remand of this action back to the Philadelphia County Court of Common Pleas, because plaintiff’s claims arise under state law, and federal diversity jurisdiction pursuant to 28 U.S.C. Section 1332(c)(1) does not apply to this matter.”
UPDATE
In a Nov. 20 memorandum opinion, U.S. District Court for the Eastern District of Pennsylvania Judge Wendy Beetlestone granted the remand motion.
“Here, the compensatory damages identified by plaintiff in her complaint are focused on the psychic distress she suffered and continues to suffer as a result of being given and taking the wrong medication; damages for ‘deformity,’ ‘disfigurement,’ and ‘scarring;’ damages for wage loss; and damages for past and future medical care. While the Court accepts these injuries as legitimately pled, it does not conclude based on the allegations that taken together they warrant a finding that the amount in controversy rises to the requisite jurisdictional level,” Beetlestone ruled.
“There are no allegations at all in the complaint that she was unable to work or lost pay because of what happened. Neither are there any allegations that she was disfigured, scarred or deformed by taking the wrong drug. And while the allegations are that she sought medical care for her symptoms, there is nothing to suggest that she has continuing physical issues related to her ingestion of the wrong drug.”
Beetlestone said that even with a full year of weekly therapy sessions for the plaintiff, the approximate cost of that treatment would only total out to $13,000, far under the federal court’s financial and jurisdictional threshold.
Beetlestone added that in Pennsylvania, punitive damages are “an extreme remedy available only in the most exceptional circumstances” – and that upon the facts alleged, those circumstances are “not present here.”
“In short, CVS has the burden of proving that the amount in controversy exceeds $75,000. It has not met this burden. Accordingly, this Court has no jurisdiction and the matter will be remanded to state court,” Beetlestone said.
For counts of medical negligence/pharmaceutical malpractice, corporate negligence, the plaintiff is seeking damages, individually, jointly, severally and vicariously, in excess of $50,000, plus interest, delay damages, punitive damages and costs of suit.
The plaintiff is represented by Theodore Charles Levy of Fine & Staud, in Philadelphia.
The defendants are represented by Albert Bryan Tomlinson, Amalia V. Romanowicz and Raymond Edward Escobar of Post & Schell, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-03659
Philadelphia County Court of Common Pleas case 230802158
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com