In a recent case that brought disappointment, but came as no surprise surprise to experienced Chicago wrongful death and personal injury lawyers, the Illinois Appellate Court for the First District reaffirmed the law in Illinois precluding punitive damages in wrongful death actions. Punitive damages are not permitted in Illinois wrongful death actions (brought by a decedent’s heirs for their own injuries caused by the decedent’s death) or in actions brought under the Survival Act (brought by the representative of the decedent’s estate for claims of injury the decedent experienced before death), absent “specific statutory authority or very strong equitable reasons.” Marston v. Walgreen Co., 1-07-0209 (Ill. App. Ct. 1 Dist. March 21, 2009). The court interpreted “very strong equitable reasons” to mean “instances in which a party would otherwise be left without any remedy.”
In Marston, the plaintiff filed a personal injury, wrongful death and survival action against Walgreen Company and Walgreen’s pharmacist, James Wilmes, for negligently prescribing the wrong prescription drugs to Leonord Kulisek, resulting his his death. Following trial, the jury awarded the plaintiff (independent administrator of Mr. Kulisek’s estate) compensatory damages in the amount of $6,351,107, and punitive damages in the amount of $25 million.
Mr. Kulisek’s prescription was written for an anti-gout medication called allopurinol. However, Wilmes gave Kulisek a bottle of pills labeled “allopurinol” but containing glipizide, a medication used to treat diabetes by lowering a person’s blood sugar. The day after Kulisek was given the prescription, and after he had taken two doses of the medicine, he was found completley unresponsive, and was rushed to the hospital. He was diagnosed as hypoglycemic (having low blood sugar). He died 22 months later, having required full-tie care for his condition as a result of ingesting the wrong medicine.
Walgreens admitted that their pharmacist had for at least seven years prior to the occurrence, and almost one year thereafter, stolen drugs from Walgreens and ingested thousands of doses of controlled substances, including Hydrocodone, Vicodin, Vicoprofen, Didrex, various forms of Oxycontin, Tylonol-3, codene, and Ritalin. Mr. Wilmes signed a statement in which he estimated he stole and ingested 86,400 pills during the eight-year period. In violation of state and federal law, Walgreen failed to keep a record of the controlled substance that it disposed of, delivered, or sold.
The plaintiff argued that this level of willful and wanton and egregious conduct on the part of Walgreens and its pharmacist warranted the jury awarding punitive damages. However, the appellate court held that regardless of Walgreen’s conduct, punitive damages were not permitted as a matter of law in the action under the Survival Act or under the Wrongful Death Act.
According to the court, “actions for punitive damages will not survive the death of the original plaintiff unless the legislature specifically authorizes such an action or there are strong equitable reasons for allowing the recovery of punitive damages.” In Marston, the court found that since the plaintiff was awarded over $6 million in compensatory damages, the case did not fit into the “narrow exceptions to this principle.”
Top personal injury lawyers in Illinois question the rationale behind a law that permits punitive damages for certain conduct if the plaintiff lives, but precludes punitive damages if the plaintiff dies. As Marston shows, any change in law will have to come from the legislature.