Opinion
No. CV04 400 16 15S
October 24, 2005
MEMORANDUM OF DECISION
FACTS
The plaintiff Maria Silva brings this action on her own behalf, and as parent and next friend of her minor daughter, Michelle Silva, against three defendants.
In her four-count amended complaint dated June 21, 2005, Maria Silva claims that she purchased a prescription drug from Walgreens on July 30, 2002.
On that date, she maintains, at approximately 12:30 pm., she picked up a prescription at the Walgreens store located at 2251 Main Street, Bridgeport.
The prescription, which she was to take at the direction of a physician, was designed to treat a sinus condition.
Approximately one-half hour later, Maria Silva swallowed one of the tablets which had been given to her as part of the prescription. Shortly thereafter, while at work, she began to fall ill, experienced fatigue, dizziness, sweating, and a burning sensation in her chest.
At approximately 9:00 p.m. that evening, the plaintiff, Maria Silva claims to have received a telephone call from her daughter, Michelle Silva.
According to the amended complaint, Michelle Silva told her mother that a representative of Walgreens had telephoned. The individual informed Michelle Silva that her mother had been given the wrong prescription by the Walgreens employee, and that immediate medical treatment should be sought. CT Page 13355-k
Michelle Silva claims that the phone call caused her to suffer serious physical and mental pain and suffering, accompanied by fatigue and anxiety.
Count One of the amended complaint alleges that Maria Silva sustained injuries and damages as a result of the negligence of Walgreens, while in Count Two she claims damages resulting from the negligent infliction of emotional distress.
Count Three involves a claim by Michelle Silva for bystander emotional distress.
In Count Four, Maria Silva claims that Walgreens violated the Connecticut Products Liability Act (CPLA), § 52-572m et. seq. of the Connecticut General Statutes.
The defendants have moved to strike Count Four.
They maintain that the filling of a prescription by a pharmacy involves providing a service to the consumer, and not the sale of a product. Therefore, they argue, no claim can be maintained as a matter of law, under the Connecticut Products Liability Act (CPLA).
STANDARD OF REVIEW
The purpose of a Motion to Strike is to test the legal sufficiency of a pleading. Ferryman v. Groton, 212 Conn. 138, 142 (1989). If facts provable in the complaint would support a cause of action, the Motion to Strike must be denied. Waters v. Autuori, 236 Conn. 820, 825-26 (1996).
When ruling on a Motion to Strike, the court must construe all facts in a complaint in a light most favorable to the nonmoving party. Morris v. Hartford Courant Co., 200 Conn. 676, 678 (1986); Norwich v. Silverberg, 200 Conn. 367, 370 (1986). Although the motion admits all well pleaded facts, it does not admit legal conclusions. Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 557 (1967).
PRESCRIPTION DRUGS ARE "PRODUCTS" AND A PHARMACIST IS A PRODUCT SELLER AS DEFINED IN THE CONNECTICUT PRODUCTS LIABILITY ACT
Maria Silva alleges that she was given the wrong prescription by an employee of the defendant, Walgreens, and suffered adverse consequences when she ingested the drug. She further claims that the drug she was CT Page 13355-l given was not designed to treat her sinus condition.
The Connecticut Products Liability Act (CPLA), § 52-572m(a) of the General Statutes, defines a product seller to mean "any person or entity, including a . . . retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption . . ."
A products liability claim, under the Act, includes any claim for personal injury in which it is alleged that the preparation, marketing, packaging or labeling of any product caused injury, § 52-572m(b), C.G.S.
A product liability claim includes claims where it is alleged that the product seller was negligent.
In Vitanza v. Upjohn Co., 257 Conn. 365, 375 (2001), the Connecticut Supreme Court assumed, without expressly deciding, that prescription drugs are products, and are subject to the Products Liability Act.
The Court observed that prescription drugs fall within the classification of unavoidably unsafe products, which may cause serious side effects despite careful and proper manufacturing. Vitanza v. Upjohn Co., supra, 378.
The Court's earlier decision in Zichichi v. Middletown Memorial Hospital, 204 Conn. 399 (1987), although determining that blood and blood plasma were services, and not products under the Products Liability Act, supports the plaintiff's position.
In Zichichi, the Court determined that blood made available for transfusions was a medical service, based upon its reading of § 19a-280 of the General Statutes, Connecticut's "blood shield" statute.
§ 19a-280, C.G.S. "Such blood, blood plasma and the components, derivatives or fractions thereof, or tissue or organs shall not be considered commodities subject to sale or barter, but shall be considered as medical services."
The Court determined that the statutory designation of blood and plasma as a "service," placed them outside the reach of Connecticut's Products Liability Act. Zichichi v. Middletown Memorial Hospital, supra, 403.
Unlike the circumstances surrounding the furnishing of blood and blood plasma, the General Assembly has made no legislative determination concerning the status of prescription drugs.
In the absence of such a clear legislative expression, the Court's implicit recognition of prescription drugs as a product in Vitanza, as well as the ordinary understanding of the term "product," are controlling. CT Page 13355-m
It is found that the prescription drugs sold to the plaintiff, Maria Silva, are "products," and therefore are subject to the provisions of the Connecticut Products Liability Act.
The defendant maintains, however, that the pharmacist employed by the defendant, Walgreens, is not a "product seller" and the plaintiff's claim can not be allowed to stand, for that reason.
This contention, which is at odds with the definition of "Product Seller" contained in the Act, is not well taken.
Although a pharmacist must meet stringent educational and professional licensing requirements, those requirements do not transform a prescription drug from a "product," to a "service," based upon the facts alleged.
In Vitanza, the Supreme Court reaffirmed the validity of the common-law "learned intermediary doctrine." Under this doctrine, if adequate warnings are provided to a physician concerning prescription drugs, the manufacturer is not obligated to warn the ultimate consumer directly, because of the nature of the relationship of a physician and a patient. Vitanza v. Upjohn Co., supra, 389.
This doctrine has no application based upon the facts presented. It is not alleged that the pharmacist failed to warn the plaintiff of a specific danger concerning the drug which was given to her.
The pharmacist was not asked to make any independent medical judgment requiring the exercise of discretion. He was simply asked to give to the patient a prescription drug, which her physician had prescribed.
He failed to follow the physician's instructions, according to the amended complaint, and gave Maria Silva the wrong prescription drug.
A party is considered a product seller, where, as here, the sale of a product is a principal part of the transaction, and where the essence of the relationship between the buyer and the seller does not involve the furnishing of professional skill or services. Truglio v. Hayes Construction Co., 66 Conn.App. 681, 685 (2001).
It is found that the dispensing of prescription drugs by a pharmacist, based upon the facts alleged, represents the sale of a product by a product seller, and is therefore properly pled as a cause of action, pursuant to the Connecticut Products Liability Act (CPLA). CT Page 13355-n
The defendants' Motion to Strike is denied.