Posted on Oct 01, 2006
Jury awards $31 million to Walgreens customer
Juror's own experience with bad pills revealed
BY ROB OLMSTEAD
Daily Herald Staff Writer
Posted Saturday, September 30, 2006
A seven-woman, four-man jury sent Walgreens a $31 million prescription Friday: Keep track of your drug inventory.
The Cook County jury ruled that Walgreens showed "utter indifference" to people's safety by not keeping accurate track of its medications, thereby allowing a pharmacist to illegally steal and take drugs for eight years before incorrectly filling a Schaumburg man's prescription, leading to his death.
And in a revelation that may figure into post-trial motions, the jury forewoman said Friday that the "significant other" for one of the jurors had a prescription filled incorrectly by Walgreens while the trial was going on.
The case the jury decided involved Len Kulisek of Schaumburg. He was 77 when he phoned in a prescription for his gout medication, Allopurinol, on Jan. 1, 2001, to the Walgreens at 38 E. Golf Road in Schaumburg. But pharmacist James Wilmes, records show, filled the prescription with Glipizide, a diabetes medication.
On Jan. 12 and 13, Kulisek took a pill each day, immediately felt poor, and briefly went into a diabetic coma the night of the 13th. He was hospitalized, diagnosed with kidney failure and had to start dialysis, which he continued for the rest of his life. Months later, he had a stroke and his health continued to spiral downward until he made the decision to stop dialysis and die. He was 79.
Walgreens attorney Tom Andrews admitted the error but maintained that medical records showed Kulisek already had kidney problems before the incident and therefore the company wasn't responsible for all of his medical bills or a large damage award. David Axelrod, attorney for the Kulisek estate, conceded Kulisek had mild kidney problems but said "Glipizide was the bullet that sent Len Kulisek downhill."
Also at issue was just how much the pharmacist's drug use played into the mistake. Walgreens asserted Wilmes only self-medicated for knee pain with drugs like codeine, even though Wilmes had signed a statement when he was fired admitting to taking uppers and other drugs - at a total theft of 86,000 pills over eight years.
Andrews maintained that number was incorrect, but Axelrod noted Walgreens had still collected from Wilmes - who remains a practicing pharmacist in Illinois - the $49,000 representing the full value of those 86,000 pills.
"They (Walgreens) haven't said, 'Oh, we're going to pay you (Wilmes) some of your money back," Axelrod told the jury.
Finally, Walgreens argued that even though it didn't catch Wilmes' theft until after the incident, it wasn't guilty of "utter indifference" because it did have a program in place to try to watch inventory and catch drug theft. The program didn't work, however, because Wilmes was a manager who was supposed to be catching other people's theft.
"Mr. Wilmes did not have a history of errors," Andrews said. "That is the most difficult person to determine is actually taking drugs out of the pharmacy."
Jurors rejected that argument, finding Walgreens should have caught Wilmes. That allowed them to assess punitive damages, which was $25 million of the $31,351,107 verdict.
They also appeared put off by Andrews' closing argument, which included the statement: "The man was 77 years old and had a number of significant (health) problems. And as I think we all know, everyone at some point, dies. ... I'm not going to go into drinking problems right now, but he did have some, which you heard about."
Jury forewoman Lisa Barrington of Chicago said the testimony showed Kulisek enjoyed a drink a day, which she didn't see as a "problem."
"The defense presentation kind of angered me because they stressed how they shouldn't be held accountable .... which led me to believe they didn't think it was important," Barrington said.
Being a manager shouldn't make you immune to detection, she said.
"So every (pharmacy) manager in every Walgreens in the United States can have a free-for-all?" she scoffed.
"We regret that this happened, but we disagree with the jury's verdict in every respect," said Walgreens spokesman Michael Polzin. He said the company will appeal.
One of the appeal grounds may come from a revelation Barrington made in speaking to reporters after the verdict. She said "one of the jurors had their significant other" get a mis-filled prescription from Walgreens while the trial was going on. The significant other didn't take the medicine, Barrington said, so no harm was done.
Barrington declined to name the juror but noted that the juror hadn't shared that information with other jurors until after the verdict.
Still, attorneys often argue that a juror with a similar experience as a party in the case may be biased. Neither attorney in the case appeared to know about that personal experience, which was not revealed during the course of the trial.
Kulisek lived with a longtime friend Richard Marston and his children. While Marston is the sole beneficiary of Kulisek's will, he said his two daughters, who referred to Kulisek as "Grandpa," will benefit, too.
Kulisek and Marston met while both worked at International Harvester and became fast friends.
"He was not the stereotypical 'guy at work.' He was someone who bothered to be a person," Marston said.