Loretta Albanese v. CVS (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (NO. 110)

Facts and Procedural History

The plaintiffs, Loretta and Christopher Albanese, filed a revised complaint against CVS Pharmacy, Inc. on November 30, 2010.   On March 14, 2011, the court granted the motion to substitute Connecticut CVS Pharmacy, LLC, in place of CVS Pharmacy, Inc., as the defendant.   As a result, CVS Pharmacy, Inc. was removed from this action and “the defendant” hereafter refers to Connecticut CVS Pharmacy, LLC. The plaintiffs' four-count complaint alleges professional negligence, common law recklessness, violation of the Connecticut Products Liability Act (“CPLA”), and loss of consortium.   These claims result from allegations that the defendant provided Loretta Albanese with the wrong dosage of a prescription medication.

On December 15, 2010, the defendant filed a motion to strike counts two and three.   The plaintiffs filed their objection on May 13, 2011.   The parties appeared for oral argument at short calendar on May 16, 2011.   During oral argument, the plaintiffs conceded that count three, alleging violation of CPLA, should be stricken.   In addition, the plaintiffs agreed that the loss of consortium claim contained in count four, as it derives from their CPLA claim, should also be stricken.   As a result, the court need only address the defendant's motion to strike count two, alleging common law recklessness, and the plaintiffs' loss of consortium claim as it derives from this count.

Discussion

“[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ․” (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).   In ruling on a motion to strike, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [plaintiffs have] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).   The defendant argues that count two should be stricken because the allegations do not present facts that rise to the level of recklessness as defined under Connecticut law.

In their professional negligence claim, contained in count one, the plaintiffs allege:  “As a result of the carelessness and negligence of the defendant, its servants, agents, apparent agents and/or employees, the plaintiff, Loretta Albanese, was given the wrong dosage of prescription medication and suffered serious, painful and permanent injuries ․ The injuries suffered by the plaintiff were caused by the failure of the defendant, its servants, agents, apparent agents and/or employees to exercise reasonable care and skill in the provision of pharmaceutical services, in that they improperly filled her prescription for Tizanidine on or about August 5, 2008.”

In count two, the plaintiffs allege:  “As a result of the carelessness and negligence of the defendant, its servants, agents, apparent agents and/or employees, the plaintiff, Loretta Albanese, was given the wrong dosage of prescription medication and suffered serious, painful and permanent injuries ․ The injuries suffered by the plaintiff were caused by the defendant's reckless disregard for customers in that on August 5, 2008 they provided the plaintiff with the wrong dosage of medication for her ailment and did nothing to check the accuracy of the medications provided to her despite their clear professional responsibility to do so, and the grave danger posed to her by virtue of the provision of the wrong dosage of medication.”

In Henderson v. CVS Pharmacy, Superior Court, Judicial district of New Haven, Docket No. CV 08 5017128 (July 31, 2008, Cosgrove, J.) (46 Conn. L. Rptr. 25), this court addressed the legal sufficiency of a recklessness count in an action brought against CVS Pharmacy, Inc. and a pharmacist employed by CVS, which was similarly based upon allegations that the defendants provided incorrect prescription medication.

In that matter, the plaintiffs' negligence count alleged that the harm was caused by “the failure of the defendants ․ to exercise reasonable care and skill in the provision of pharmaceutical services, in that they improperly filled prescriptions.”  Id., 27.   In their recklessness count, the plaintiffs alleged that the defendants not only provided the wrong medication and instructions, but also “did nothing to check the accuracy of the medications provided [to the plaintiffs] despite their clear professional responsibility to do so, and the grave danger posed to [the plaintiffs] by virtue of dispensing the wrong medications and instructions.”  Id.

This court explained:  “[Recklessness] requires an extreme departure from ordinary care ․ [N]egligence and wilful and wanton misconduct are separate and distinct causes of action ․ There is a wide difference between negligence and a reckless disregard of the rights or safety of others, and a complaint should employ language explicit enough to clearly inform the court and opposing counsel that reckless misconduct is relied on ․ Merely using the term ‘recklessness' to describe conduct previously alleged as negligence is insufficient as a matter of law.”  (Internal quotation marks omitted.)  Id., 26.

“Recklessness entails something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ․ Wanton misconduct is reckless misconduct ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action.   Willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent ․ It is at least clear ․ that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention.”  (Internal quotation marks omitted.)   Id.

In denying the defendants' motion to strike, this court reasoned:  “In this matter, the plaintiffs allege that the pharmacy dispensed the wrong medicine and provided incorrect instructions.   The Superior Court has previously held that an allegation of recklessness was sufficient when the pharmacy was given notice that the medication they provided was of the wrong kind, but still failed to remedy their error when given the opportunity.   See Stanko v. Bader, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 03 0193669 (October 7, 2003, D'Andrea, J.T.R.) (35 Conn. L. Rptr. 605).   In Altieri v. CVS Pharmacy, Inc., Superior Court, judicial district of Waterbury, Docket No. X06 CV 02 0171626 (December 13, 2002, McWeeny, J.) (3 Conn. L. Rptr. 605), the court found that the plaintiffs had distinguished their recklessness claim from their negligence claim by adding terms that, when viewed in a light most favorable to the plaintiff, made it possible for a trier of fact to find that the defendant had acted recklessly.”  Id., 26–27.

“In reviewing the allegations made by the plaintiffs in the present matter, they have done more than just relabel their negligence claim ․ The plaintiffs have, in fact, differentiated the first two counts by alleging in the second count that the defendants had a professional responsibility that was ignored by them and that they did so even in the face of great danger that could befall someone who was to receive the medication they dispensed.   The plaintiffs have not merely appended adjectives to their negligence complaint.   The foreseeable danger is inherent in that a mistake by them regarding type of medicine, dosage, or instructions as to use could have serious health risks for someone taking those medicines.   The plaintiff's allegations of recklessness are not merely allegations of negligence suffused with legal conclusions.   When the pleadings are construed broadly, it is apparent that there are alleged facts contained within the second count that could allow for a finding that the defendants acted recklessly.”  Id., 27.

Here, the court is similarly persuaded that the plaintiffs have differentiated their professional negligence and common law recklessness claims.   The plaintiffs' allegations that the defendant “provided the plaintiff with the wrong dosage of medication for her ailment and did nothing to check the accuracy of the medications provided to her despite their clear professional responsibility to do so, and the grave danger posed to her by virtue of the provision of the wrong dosage of medication,” sufficiently support their common law reckless claim.   Consequently, the loss of consortium claim, as it relates to the plaintiffs' recklessness count, also remains.

Conclusion

For all of the foregoing reasons, the defendant's motion to strike count two, and the loss of consortium claim that derives from it, is hereby denied.   By agreement of the parties, the defendant's motion to strike count three, and the loss of consortium claim that derives from it, is hereby granted.

Cosgrove, J.

Cosgrove, Emmet L., J.