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Williams v. Walgreen La. Co., Inc.

Court of Appeal of Louisiana, Fifth Circuit

February 25, 2015

PEGGY WILLIAMS
v.
WALGREEN LOUISIANA COMPANY, INC

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ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 637-436, DIVISION " E" . HONORABLE JOHN J. MOLAISON, JR., JUDGE PRESIDING.

RICHARD C. TRAHANT, ATTORNEY AT LAW, Metairie, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.

JOHN H. DENENEA, JR., ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.

KURT S. BLANKENSHIP, ROBERT I. BAUDOUIN, RYAN J. ROEMERSHAUSER, ATTORNEYS AT LAW, Metairie, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

Panel composed of Judges Fredericka Homberg Wicker, Robert M. Murphy, and Hans J. Liljeberg. WICKER, J., DISSENTS IN PART AND CONCURS IN PART, WITH REASONS.

OPINION

HANS J. LILJEBERG, J.

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[14-716 La.App. 5 Cir. 2] Plaintiff appeals the judgment of the trial court after a jury trial on the merits of her negligence action. For the following reasons, we amend the judgment and affirm as amended.

Procedural History

Plaintiff, Peggy Williams, filed a petition instituting a negligence action against defendant, Walgreens Louisiana Company, Inc. (" Walgreens" ). Ms. Williams sued for damages including past and future pain, suffering and mental anguish; past and future medical expenses; loss of enjoyment of life and past and future lost wages.

The matter proceeded to trial before a 12-person jury. Upon conclusion of the trial, the jury returned a verdict in favor of Ms. Williams, awarding her damages in the amount of $1,000,000.00. The jury, finding comparative fault [14-716 La.App. 5 Cir. 3] between the parties and Ms. Williams' son, assigned Walgreens 60% fault, Ms. Williams 35% fault and Derrick Williams 5% fault. The trial court thereafter entered judgment in favor of Ms. Williams in the amount of $600,000.00 together with legal interest from the date of judicial demand and costs.

Post-trial, Ms. Williams moved for a judgment notwithstanding the verdict and for post-trial discovery. After a hearing and in camera inspection of sales data produced post-trial by Walgreens, the trial court denied the JNOV and imposed a $7,500.00 sanction against Walgreens for discovery abuses.

Ms. Williams now appeals the judgments of the trial court.

Facts

Ms. Williams was an administrative worker for the Orleans Parish School Board before Hurricane Katrina struck the Gulf Coast in August 2005. Prior to the hurricane, she evacuated to Grand Prairie, Texas, with her grandson, sisters and elderly father. Upon returning to New Orleans, Ms. Williams, who suffers from high blood pressure and diabetes, began to feel ill and realized that she left her blood pressure medicine (Toprol) in Texas.

On June 10, 2006, Ms. Williams called the Walgreens pharmacy in Grand Prairie and transferred her prescription to the Walgreens pharmacy on Lapalco Boulevard in Gretna, Louisiana. At her request, Derrick Williams picked up his mother's prescription using the drive-thru service. Unbeknownst to Ms. Williams, a Walgreens' employee gave Derrick another customer's prescription of Zyprexa, a potent anti-psychotic medication.

After ingesting the Zyprexa, Ms. Williams began feeling more lethargic and unstable, but attended a relative's baby shower hours later. She was unable to participate in the event and instead lay down in the bedroom complaining of fatigue and dizziness. Monique Carter, the mother of Ms. Williams' grandson, [14-716 La.App. 5 Cir. 4] checked on her shortly after and took her blood pressure.[1] Realizing it was too high, Ms. Carter suggested that Ms. Williams take another Toprol. When Ms. Carter reached into Ms. Williams' purse to retrieve the prescription, she noticed that the name on the bottle was not Ms.

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Williams' and that Ms. Williams took the wrong medication.

Ms. Carter called Derrick to take Ms. Williams to the emergency room. At Meadowcrest Hospital, Ms. Williams had high blood pressure and was administered Toprol, which lowered her blood pressure. Once her blood pressure improved, Ms. Williams was released in the early morning hours on June 11.

Ms. Williams slept most of the day; but once awake, she complained of increased nausea, vomiting and numbness. Derrick took her to Touro Infirmary on June 12, when it was discovered that she suffered a stroke. Her physician, Dr. Evita Currie, admitted Ms. Williams and attended to her care. Ms. Williams suffered a second and third stroke in 2007 and 2008, which Ms. Williams contends was caused by the initial stroke. Ms. Williams alleged to have sustained disabling injuries, including left-sided neural deficits and paralysis as a result of the strokes.

Evidence of Zyprexa's side effects including increased or decreased blood pressure and stroke was admitted at trial; however, Walgreens argued that Ms. Williams' pre-existing conditions caused her initial stroke, and that a single 20mg Zyprexa did not. At trial, the jury heard testimony from Ms. Williams' physicians, psychologists and experts. Walgreens rested without putting on a case. At the conclusion of the trial, the jury assigned primary liability to Walgreens.

Assignments of Error

On appeal, Ms. Williams asserts several assignments of error based upon the trial court's failure to grant a judgment notwithstanding the verdict. Plaintiff also [14-716 La.App. 5 Cir. 5] asserts that the trial court erred in failing to impose a larger monetary sanction based upon Walgreens' sales data produced post-trial.

Discussion

Louisiana Code of Civil Procedure article 1811 governs a motion for judgment notwithstanding the verdict or JNOV. A JNOV may be granted on the issue of liability or on the issue of damages or on both. La. C.C.P. art. 1811(F).

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Davis v. Wal-Mart Stores, Inc., 00-445 (La. 11/28/00), 774 So.2d 84, 89; Scott v. Hospital Serv. Dist. No. 1, 496 So.2d 270 (La. 1986).

The standard of review for a JNOV on appeal is a two part inquiry. In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether or not to grant the motion. After determining that the trial court correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV ...


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