IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION PAULA BUNTON Plaintiff, V. WALGREENSCOMPANY Defendant. § § § § § § §
Civil ActionNo. _
PLAINTIFF'S ORIGINAL COMPLAINT AND JURy DEMAND
Pursuant to the Federal Rules of Civil Procedure, Plaintiff Paula Bunton (hereinafter, "Ms. Bunton" or "Plaintiff') files her Original Complaint against Defendant Walgreen Company (hereinafter, "Defendant"), complaining of the following:
1:
NATURE OF ACTION
1. Plaintiff Paula Bunton trusted Defendant Walgreen Company and its pharmacist to act prudently when she had her prescription drug medication filled at the Walgreens Store No. 5558, located at 1507 W. Pleasant Run Rd., Lancaster, TX 75146, on September 18, 2009. As she learned and as it happens with other Walgreen's customers (and probably hundreds more which have gone unreported), the pharmacist carelessly and recklessly misfilled Ms. Bunton's medication ACIPHEX with a commonly confused and similar-sounding prescription drug.
2. Defendant and its pharmacists should have been on high alert when filling the commonly confused and similar-sounding prescription drug based on reports from 2004 and 2008 from the United States Pharmacopeia, the official public standards-setting authority for prescription medications. More than sixty-six (66) million prescription medication mistakes
occur throughout pharmacies per year in the United States, and Ms. BW1ton became another statistic as a result of the negligence of Defendant.
3. This case is about the devastating consequences that can occur when a pharmacist is required by its own employer to fill a prescription on average every two minutes and makes a small yet catastrophic error. A pharmacist is the last check that a prescription drug has before it leaves the pharmacy - Ms. Bunton deserved and expected that check which never occurred.
II. PARTIES
4. Plaintiff Paula Bunton is a natural person and resident of Lancaster, Dallas County, Texas, and makes an appearance contemporarily with her Original Complaint.
5. Defendant Walgreen Company is an Illinois corporation with its principal place of business at 200 Wilmont Road, Deerfield, Illinois 60015. Defendant Walgreen Company is authorized to do business and is doing business in the State of Texas. Defendant may be served through its registered agent, Prentice Hall Corporation System, 211 E. 7th Street, Suite 620, Austin, Texas 78701-3218 USA.
III.
JURISDICTION AND VENUE
6. The Court has jurisdiction over this lawsuit pursuant to 29 U.S.C. § 1332 (a)(I) because Plaintiffs and Defendant are citizens of different states, and the amount in controversy exceeds $75,000.00, excluding interests and costs.
7. Venue is proper pursuant to 28 U.S.c. § 1391 (b) because the Northern District of Texas is a judicial district where a Substantial part of the events or omissions giving rise to this
claim occurred. Specifically, some of the conduct alleged herein has occurred or been directed towards various entities and individuals doing business within this District.
IV.
FACTUAL BACKGROUND
A. DEFENDANT WALGREEN COMPANY'S HISTORY WITH WRONGLY FILLED
PRESCRIPTIO 'So
8. Defendant's self proclaimed title is "The Pharmacy America Trusts." According to its 2009 annual report, Defendant is the nation's largest drugstore chain with over 238,000 employees and fiscal 2009 sales of $63 billion. Itbragged to its shareholders that 2009 was the Company's 35th consecutive year of record sales. In 2009 alone, it opened 602 stores and it opened its 7,000th drugstore (one of its "long-standing objectives") during the Fall of2009. It is important to note that from 2000 to 2007, Defendant doubled in size from approximately 3,000 to 6,000 stores.
9. Additionally, in its 2009 annual report, Defendant claims that "Pharmacy is 65 percent of our business." It touted that it filled over 651 million prescriptions in 2009, which is 18.3 percent of the U.S. retail market and retail prescriptions nationwide. If anything is abundantly clearly in its 2009 annual report, it is that Defendant puts profits above everything else including customer care and safety.
10. Unfortunately, you will not find in its 2009 annual report that the number of lawsuits against Defendant is on the rise due to the number of misfilled prescriptions within its pharmacies.
I I. In fact, Defendant has a very public history of lawsuits filed against it based on negligent prescriptions filled. These lawsuits match a growing collection of consumer complaints of serious errors made while filling the 651 million prescriptions alIDually.
12. During the early part of this decade, Walgreens had several lawsuits filed against it for prescription error. As a result of those lawsuits, many documents from Defendant were made public. Those documents evidenced Defendant's corporate sanctioned push for volume of prescriptions filled over accuracy of the prescription and safety of its customers.
13. For example, Defendant's own guidelines represented that its pharmacists need as little as two minutes to fill a prescription.
14. Additionally, these lawsuits made public Defendant's policy to pay bonuses to pharmacists and pharmacy managers based, in part, on increases in prescription volume. If errors were made in the filling of prescriptions, it didn't matter as those individuals still got the same bonus.
15. Furthermore, it came to light that after serious errors were made by Defendant's pharmacists, the company failed to inform these pharmacists of their serious errors, let alone discipline them for the same. Defendant also admitted to implementing unregulated and inexpensive "Pharmacy Technicians" to do the hands on tasks historically performed by licensed pharmacists. These "Pharmacy Technicians" require no formal training, registration or licensing in the State of Texas. This unseen hidden workforce used by the pharmacy to keep up with the lofty corporate promised time goals of filling prescriptions.
16. In a very poignant example, Phillip P. Burgess, Walgreen Company's National Director for Pharmacy Affairs testified in a 2007 deposition that he disagreed when asked whether bonus decisions should take into account drug errors, saying, "Errors, as unfortunate as they are, are human errors."
17. In the last three years, the verdicts against Defendant for prescription negligence total $61 million.
18. However, as demonstrated by Defendant's documents that are now of public record and its annual reports, it continues to operate on an intentional systemic drive for profits over accuracy of its prescriptions and the safety of its customers.
B. Ms.BUNTON'S STORY.
19. Ms. Bunton is a thirty-nine year old female who was diagnosed with Gastroesophageal reflux disease (GERD) by her treating physician in September of2009.
20. After the diagnosis, her treating physician prescribed Ms. Bunton the prescription drug ACIPHEX® on September 16, 2009. The active ingredient in ACIPHEX® is rabeprazole sodium, a substituted benzimidazole that inhibits gastric acid secretion.
21. She promptly took this prescription to Walgreens Store No. 5558, and had it filled by Defendant PHARMACIST on September 18, 2009.
22. Instead of filling the prescription for ACIPHEX®, Defendant by and through its pharmacist, filled the prescription for Adipex-P (also known as Phentermine).
23. Adipex-P is an appetite suppressant prescription drug for use by only excessively overweight individuals who have a condition-such as diabetes, high blood pressure, or high cholesterol- and is only prescribed for short-term use.
24. Unbeknownst to Ms. Bunton, she continued to take the wrong medication for eleven days until September 29,2009, and her symptoms worsened over that period.
25. On September 29, 2009, Ms. Bunton began "vomiting perfuse bright red blood and clot."
26. As a result, she was admitted to Medical City of Dallas' emergency room ICU. Noel L. Snowberger, M.D. and board certified in Gastroenterology, diagnosed Ms. Bunton with gastrointestinal bleeding and performed various procedures, including but not limited to an
esophagogastroduodenoscopy while removing the blood clots caused by taking the wrongly filled prescription medication.
27. Ms. Bunton stayed In the hospital for six days and was later discharged on October 5,2009.
28. After she was discharged from the hospital, she continued and continues to treat with physicians to this day.
C. PRESCRIPTION DRUGS THAT COMMONLY CAUSE CONFUSION.
29. The problem of prescription drug name confusion has been recognized for many years now.
30. More than 1,500 commonly used drugs are involved in errors linked to drug names that look alike or sound alike, according to U.S. Pharmacopeia's Eighth Annual National MEDMARX Data report.
31. Defendant's pharmacists should be well-trained with respect to these two prescriptions, ACIPHEX® and Adipex-P. What is so egregious is that the pharmacists employed by Defendant should have known that these two prescriptions ACIPHEX® and AdipexP -commonly cause confusion.
32. As acknowledged in the U.S. Pharmacopeia's Center for Advancement for Patient Safety article entitled, "USP Quality Review - Use Caution - Avoid Confusion," originally published in April of 2004 and updated in March of 2008, these Walgreens' pharmacists should have been on high alert that these two prescriptions can be easily confused.
33. Defendant was also aware of previous problems with this particular pharmacy as it had been reprimanded less than two years prior to Ms. Bunton's misfiled prescription.
34. Specifically, the Texas State Board of Phannacy reprimanded Walgreens Store No. 5558 for a previous dispensing error in 2006. According to the Texas State Board of Phannacy, this particular Walgreens was required to "develop and implement a Continuous Quality Improvement Program" which included peer review "to prevent and handle dispensing errors in the future."
35. Such program was negligently designed or negligently perfonned as evidenced by the misfill for Ms. Bunton's prescription.
V.
AGENCY AND RESPONDEAT SUPERIOR
36. Whenever in Plaintiffs Original Complaint, it is alleged that Defendant did any act or thing, it is meant that Defendant, itself or agents, officers, partners, servants, employees or representatives did such act or thing and it was done with the full authorization or ratification of Defendant or done in the nonnal routine, course and scope of the agency or employment of Defendant to its agents, officers, partners, servants, employees or representatives.
VI.
CAUSES OF ACTION - PHARMACEUTICAL NEGLIGENCE OF DEFENDANT 37. The allegations contained in all of the paragraphs of this Original Complaint are hereby realleged for all purposes and incorporated herein with the same force and effect as if set forth verbatim.
38. Defendant Walgreen Company committed acts of omission and commiSSIOn, which collectively and severally constituted negligence, which were a proximate cause of the damages to Plaintiff.
39. Defendant Walgreen Company owed a legal duty to Plaintiff to properly fill a prescription.
40. Defendant Walgreen Company breached the legal duty when its pharmacist negligently misfiled Plaintiffs prescription.
41. Defendant Walgreen Company's breach of the legal duty proximately caused Plaintiffs injuries.
42. The negligence of Defendant Walgreen Company was a direct and proximate cause of Plaintiffs injuries that resulted in damages to Plaintiff in an amount within the jurisdictional limits of this Court.
VII. DAMAGES
43. Plaintiff herein incorporates all ofthe paragraphs of her Original Complaint for all purposes and incorporated herein with the same force and effect as if set forth verbatim.
44. As a direct and proximate cause of the actions of Defendant listed above, Plaintiff has suffered damages. These damages include but are not limited to actual damages, attorneys' fees, pre-judgment and post-judgment damages as well as emotional distress and mental anguish and punitive damages.
45. Plaintiff herein incorporates all of the paragraphs of her Original Complaint for all purposes and incorporated herein with the same force and effect as if set forth verbatim.
46. As a direct and proximate cause of the actions of Defendant listed above, Plaintiff has suffered damages. These damages include but are not limited to actual damages, attorneys' fees, pre-judgment and post-judgment damages as well as emotional distress and mental anguish and punitive damages.
47. The maximum amount of damages sought by Plaintiff is within the jurisdictional limitations ofthe Court.
48. Plaintiff is also seeking attorneys' fees pursuant to the applicable sections of the Texas Civil Practice and Remedies Code and all other applicable law under the State of Texas.
VIII.
ATTORNEYS' FEES AND COSTS
49. Plaintiff seeks all reasonable attorneys' fees, court costs and expenses incurred in the prosecution of this suit and allowed by law.
IX.
EXEMPLARY DAMAGES
50. Plaintiff seeks exemplary damages for the harm caused by Defendant's willful actions.
X.
CLAIM FOR PRE-JUDGMENT AND POST-JUDGMENT INTEREST
51. Plaintiff claims interest in accordance with Texas Finance Code §304.001 et seq. and any other applicable law.
XI.
CONDITIONS PRECEDENT
52. All conditions precedent to Plainti ff s rights to recover herein and to Defendant's liability has been performed or has occurred.
XII.
DEMAND FOR JURY TRIAL 53. Plaintiff requests a trial by jury.
XIII.
DISCOVERY REQUESTS TQ DEFENDANT
54. Pursuant to the Federal Rules of Civil Procedure, Plaintiff requests that Defendant answer the discovery. Attached as Exhibit "A" is the discovery set of requests to Defendant Walgreen Company and incorporated herein this Original Complaint.
XIV. PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff Paula Bunton prays that Defendant Walgreen Company be cited to appear and answer herein, that this cause be set down for trial before a jury, and that Plaintiff Paula recovers judgment of and from Defendant for the following:
a. Actual damages (including attorneys' fees, pre-judgment and post-judgment interest)
b. Costs and expenses of the lawsuit; and
c. Such other and further relief to which Plaintiff Paula Bunton is justly entitled, whether at law or in equity.
Respectfully Submitted,
THE DRINNON L FIRM, PLLC
1700 P cific Suite 2
Dallas, Texas 7520 I
(972) 445-6080 (Telephone) (972) 445-6089 (Facsimile)
ATTORNEYS FOR PLAINTIFF PAULA BUNTON
