$20 million complaint settled by pharmacy

Ray Fraley (T-G Photo by Clint Confehr) [Click to enlarge]

Pre-trial discussions between attorneys for CVS/pharmacy and a Shelbyville couple on Wednesday resulted in the settlement of a lawsuit demanding $20 million after pain pills were sold instead of a diuretic, officials said.

Anne E. Messick of Fairlane Drive has been hospitalized, or in a nursing home, since she stopped taking Methotrexate for 13 days instead of the Zaroxolyn as prescribed in mid-May of 2004 to increase urination, according to the lawsuit set for trial June 5 in Bedford County Circuit Court.

"Because it's a matter of pending litigation, we're not in a position to provide any comment," CVS Corporate Communications Manager Mike DeAngelis said yesterday afternoon.

This morning, Fayetteville-based attorney Ray Fraley said the case had been settled.

"It's a confidential settlement," Fraley said at about 8 a.m. "My client is satisfied, as is CVS."

Mrs. Messick purchased the allegedly "improperly-filled" prescription at the CVS/pharmacy in Big Springs Shopping Plaza.

Fraley filed the complaint for Anne and James P. Messick of Fairlane Drive against CVS/pharmacies and pharmacists William U. Cella and Johnny D. McBride, according to public records at the county courthouse here.

One issue revealed in the file is CVS' employment of Mark Greene, a former pharmacist who lost his state license to fill prescriptions as a result of his criminal record, but was participating in the Tennessee Pharmacist Recovery Network program. Greene was also attempting to have his criminal record expunged, erased, but that did not happen, nor did he regain his pharmacy license before a deadline set by CVS, court records state.

"It appears ... that [Mrs. Messick] is focusing her claim for punitive damages on ... [the] employment of pharmacy intern, Mark Greene," according to CVS defense arguments, challenging Fraley's apparent attempt to show that the company was reckless in doing so.

"Clearly, Mark Greene brought some baggage with him when he applied for a position ... [and] at the time of his provisional hiring, he was a recovering addict and a convicted felon," CVS states. Nevertheless, he was addressing those issues, including periodic drug testing

Furthermore, "Tennessee does not prohibit a pharmacy technician (or a pharmacist for that matter) from having a felony conviction," CVS states. The state Pharmacy Board only requires a "statement of good moral character."

Green passed periodic drug testing, CVS states. He did, however, fail a test for the Pharmacy Board, and when he didn't meet a company deadline to clear his name, he was dismissed from employment.

CVS claimed Fraley did not make a connection between the employment of Greene and the allegedly "improperly-filled" prescription.

The court file indicates that one issue that was to be resolved was whether Greene participated in filling the prescription. The process includes labeling as well as selection of pharmaceuticals.

In addition to the company's response admitting technical facts and denying various aspects of the case -- including a point that Hook-SupeRx Inc. is the appropriate defendant not CVS/pharmacy -- the defense attorney, Barry L. Howard, asked Circuit Court Judge Lee Russell to dismiss the Messicks' request for punitive damages. They amounted to half the $20 million sought.

Two weeks ago, Judge Russell denied Howard's motion and directed to company to answer Fraley's questions which included a request for a statement regarding the company's net worth.

CVS' apparent reluctance to place into the court record a statement on how much the business is worth is in contrast to press releases on its Internet Web site, one of which reports, "April sales increase 11.8 percent to a record $3.1 billion."

Fraley's partner, John Hill, said Wednesday discussions with CVS representatives were an attempt at mediation over the value of the claim, or how much might be paid by the company to settle the case.

Records in the Circuit Court office show Mrs. Messick took the pills she bought from CVS as directed by the prescription she got from her doctor on May 18, 2004.

Thereafter, she experienced pain and bleeding in her mouth and had trouble swallowing, and on May 31, 2004, she went to Bedford County Medical Center and was transferred to St. Thomas Hospital where her condition was found to be a result of the allegedly improperly-filled prescription, the complaint states.

She was placed on a ventilator, transferred to special care units and suffered seizures, the complaint states. She was released from St. Thomas July 15, 2004, and has been in nursing homes or convalescent centers in Columbia and Shelbyville, the complaint states.

Mrs. Messick is now a resident of Celebration Way on Union Street, an assisted living facility.