Opinion
No. CV 10-6008649
October 7, 2010
MEMORANDUM OF DECISION
The issue raised by the defendant's motion to strike is whether a products liability claim may be brought against a pharmacy for dispensing the wrong medication to a customer. The court holds it may not.
The plaintiff's complaint alleges that the plaintiff's physician prescribed her an anti-anxiety medication. The plaintiff had the prescription filled at the defendant's pharmacy. Instead of properly filling her prescription, the pharmacy provided her with Naproxin. The plaintiff ingested the Naproxin and became ill. At oral argument, the plaintiff conceded that there was nothing defective about the Naproxin, just that it was mistakenly given to the plaintiff.
The plaintiff has brought this action in three counts. The first count alleges negligence by the defendant. The second count alleges negligent infliction of emotional distress. The third count alleges a products liability pursuant to General Statutes § 52-572m et seq. The defendant has moved to strike the third count on the grounds that the dispensing of the wrong medication by a pharmacy is the negligent performance of a service, and not within the ambit of the products liability action. The plaintiff disagrees. In the alternative, the defendant moves to strike the first and second counts on the grounds that where a products liability action lies, it is the exclusive remedy. See General Statutes § 52-572n (a).
"General Statutes 52-572m(b) defines a product liability claim as including `all claims or actions brought for personal injury . . . caused by the . . . marketing . . . of any product.' Section 52-572n(a) allows such claims to be brought against `product sellers.' Section 52-572m(a) defines `product seller,' in pertinent part, as `any person or entity . . . who is engaged in the business of selling such products whether the sale is for resale or for use or consumption.' To maintain a product liability action under § 52-572m et seq., the plaintiff must establish and prove, inter alia, `that . . . the defendant was engaged in the business of selling the product . . . [and] the defect existed at the time of the sale . . .' Giglio v. Connecticut Light Power Co., 180 Conn. 230, 234, 429 A.2d 486 (1980); Coe-Park Donuts, Inc. v. Robertshaw Controls Co., 1 Conn.App. 84, 86, 468 A.2d 292 (1983); 2 Restatement (Second), Torts § 402A. Once a particular transaction is labeled a `service,' as opposed to a `sale' of a `product,' it is outside the purview of our product liability statute. See General Statutes § 52-572m et seq.; Coffee v. Cutter Biological, 809 F.2d 191, 193 (2d Cir. 1987) (transfer of blood not a `sale' but a service; therefore, not within purview of § 52-572m et seq.) . . ." (Emphasis in original.) Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987).
While it is true that "the pharmacist is engaged in a hybrid enterprise, combining the performance of services and the sale of prescription drugs"; Murphy v. E.R. Squibb Sons, Inc., 40 Cal.3d 672, 678, 710 P.2d 247, 221 Cal.Rptr. 447 (1985); where the gist of a claim is that the wrong medication was dispensed on prescription to a customer, and that there was nothing defective about the medication itself, the transaction is a service and is outside the purview of our products liability statute. See Henderson v. CVS Pharmacy, Superior Court, judicial district of New Haven, CV 08 5017128 (July 31, 2008, Cosgrove, J.) ( 46 Conn. L. Rptr. 25); Silber v. Walgreen Co., Superior Court, judicial district of New Haven, Docket No. 04 4009662 (May 4, 2005, Thompson, J.) ( 39 Conn. L. Rptr. 271); Altieri v. CVS Pharmacy, Inc., Superior Court, complex litigation docket at Waterbury, No. X06-CV-02-017 1626 (December 13, 2002, McWeeney, J.) ( 33 Conn. L. Rptr. 524); Madison v. American Home Products Corp., 358 S.C. 449, 455, 595 S.E.2d 493 (2004); contra Silva v. Walgreen Co., Superior Court, judicial district of Fairfield, No. CV 04 4001615 (November 24, 2006, Hiller, J.) ( 42 Conn. L. Rptr. 407); Silva v. Walgreen Co., Superior Court, judicial district of Fairfield, No. CV 04 4001615 (October 25, 2005, Radcliffe, J.) ( 40 Conn. L. Rptr. 187); Stanko v. Bader, Superior Court, judicial district of Stamford-Norwalk at Stamford, No. CV 03 0193669 (October 7, 2003, D'Andrea, J.T.R.) ( 35 Conn. L. Rptr. 605); Stevens v. Romer, Superior Court, judicial district of Stamford-Norwalk at Stamford, No. CV 98 0168402 (March 24, 1999, D'Andrea, J.) ( 24 Conn. L. Rptr. 279); cf. Dunn v. Upjohn Co., 350 So.2d 127, 129 (1977) ("we consider that the filling of a prescription by a pharmacist is more in the nature of processing a product than it is a personal service"). The motion to strike the third count is granted.