FOURTH DIVISION June 29, 2007
No. 1-06-0734
JOANN CRUMPTON, as Special Administrator of ) Appeal from the Estate of Christina Crumpton, Deceased, ) the Circuit Court ) Of Cook County. Plaintiff-Appellant, ) ) v. ) ) WALGREEN COMPANY, a Corporation, ) ) Honorable Defendant-Appellee. ) Deborah M. Dooling, ) Judge Presiding.
PRESIDING JUSTICE QUINN delivered the opinion of the court:
Plaintiff Joann Crumpton filed a wrongful death and survival action against defendant
Walgreen Co. (Walgreens) following the death of her daughter, Christina. Following a trial, on
October 13, 2005, the jury returned a verdict in favor of plaintiff for $875,000 and also signed a
special interrogatory finding that plaintiff was 25% contributorily negligent in her daughter’s
death. Plaintiff appeals from orders of the circuit court granting Walgreens’ motion for judgment
notwithstanding the verdict (judgment n.o.v.) and denying plaintiff’s posttrial motion to vacate the
jury’s special finding that plaintiff was 25% contributorily negligent in this case. Plaintiff also
appeals from the circuit court’s order denying plaintiff’s supplemental post-trial motion to vacate
the court’s order entering judgment n.o.v., to vacate the special finding that plaintiff was
contributorily negligent, and to grant plaintiff a new trial. For the following reasons, we affirm. 1-06-0734
I. Background
This case involves the death of plaintiff’s daughter, Christina, a 12- year-old girl who had
a history of psychosis. Christina was under the care and treatment of a number of psychiatrists
and mental health professionals at various hospitals, including Riveredge Hospital. Christina was
placed on an antipsychotic medication called Risperal. On September 2, 2002, plaintiff filled the
prescription for Risperal at Walgreens.
The prescription for Risperal was for 90 pills, a 30-day supply, but plaintiff ran out of pills
for Christina after 10 days, on September 12, 2002. Plaintiff testified that she did not notice that
the pills were about to run out until there was only one pill remaining. Plaintiff testified that she
attempted to use the automated Walgreens system to refill the prescription, but was not
successful. Plaintiff then went to Walgreens and told the individual at the pharmacy that she had
not received all of the 90 pills for the prescription. Plaintiff testified that the pharmacist told her
that the computer indicated that the prescription had been properly filled and that plaintiff would
need to call her doctor.
Plaintiff testified that she called Christina’s therapist, Denise Hall, at Pro Care, as well as
Christina’s doctor, Dr. Khadija Khan, at Riveredge Hospital. Dr. Kahn returned plaintiff’s call the
next day, September 13, 2002, and indicated that she would call Walgreens regarding Christina’s
prescription. Plaintiff testified that when she called Walgreens, she was told that the doctor did
not call in a prescription for Christina. Plaintiff testified that Christina did not take her medication
from September 12 until September 16, 2002. Plaintiff testified that during this time Christina
“acted like a normal child.” Plaintiff testified that she slept with Christina at night because she
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was concerned that Christina did not have her medication. Plaintiff testified that if she had
noticed anything out of the ordinary about Christina, plaintiff would have taken Christina to the
emergency room.
Plaintiff testified that on September 16, 2002, she took Christina to see Dr. Martha
Zuelke, who wrote another prescription for Risperdal. Plaintiff testified that she filled the
prescription at Walgreens on September 16, 2002, and Christina began taking pills again that
evening. On September 17, 2002, plaintiff kept Christina home from school because she had
started taking Risperdal again and plaintiff was told to monitor Christina for drowsiness.
Christina spent the day with plaintiff and her baby brother. They had gone to Christina’s father’s
place of employment for lunch, stopped for ice cream, and returned home. At some point after
returning home, plaintiff asked Christina to straighten her bed. Christina went to her room and
the next time plaintiff saw Christina she was hanging from the top of her bunk bed with a jump
rope tied around her neck. Christina later died at the hospital.
Plaintiff testified that on September 22, 2002, she returned to Walgreens to determine if
she had been shorted pills when the original prescription had been filled. Plaintiff testified that
two technicians at Walgreens checked Christina’s patient profile and informed plaintiff that the
correct number of pills had been originally dispensed. Plaintiff then spoke with Dawn Stefek, a
registered pharmacist, who gave plaintiff an additional 60 pills of Risperdal and a note, included in
plaintiff’s exhibits, stating “For Christina Crumpton [sic] We gave her 60 more Risperdal 0.25 mg
on 9-23-02. It is possible we did not give her enough on 9-2-02.”
Plaintiff’s expert, Dr. Alex John Spadoni, a board-certified psychiatrist, testified regarding
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the nature of Christina’s illness and the therapeutic effects that Risperdal had on Christina’s
illness. Dr. Spadoni testified that in his opinion, the dosage of Risperdal prescribed for Christina
at Riveredge was appropriate because she showed remarkable improvement on it and tolerated it
well with little side effects. Dr. Spadoni testified that in his opinion, Christina’s suicide was
causally related to not taking the Risperdal medication from September 12 to September 16,
2002. Dr. Spadoni testified that if Christina had continued taking the dosage of Risperdal as
prescribed she would not have committed suicide. Dr. Spadoni also testified that Christina was
showing a breakthrough symptom on September 11, 2002, when she went to her school nurse
complaining of hallucinations. Dr. Spadoni testified that these breakthrough symptoms would
indicate that the medication should not be changed, but perhaps increased.
Dr. Spadoni also testified that he did not feel that there were sufficient grounds to
conclude that Christina was a danger to herself or anybody else to justify hospitalization when she
saw Dr. Zuelke on September 16, 2002. Dr. Spadoni testified that according to everyone
involved, Christina’s overt behavior was not psychotic. Dr. Spadoni also testified that the fact
that Christina committed suicide was not foreseeable to her psychiatrist and that he would not
expect a pharmacist to foresee that Christina was at risk for suicide. Dr. Spadoni testified as
follows:
“Q. However, the fact that this child committed suicide, that was not foreseeable
to the psychiatrist, was it?
A. It was not.
Q. If anyone is going to be able to foresee it, a psychiatrist is the person who is
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best trained to be able to foresee it?
A. True.
Q. So, if it wasn’t foreseeable to the psychiatrist, would you agree with me that it
would not have been foreseeable to anyone at Walgreens?
A. At Walgreens? I don’t quite understand the connection.
Q. If a psychiatrist could not foresee that this child was going to commit suicide,
one day after she saw Dr. Zuelke, would you expect Walgreens to have considered
her to be a suicide risk?
A. Walgreens?
Q. Yes. Walgreen[s’] people. Their pharmacist. Their technicians. Their people.
***
Q. Would you expect a pharmacist or a technician to foresee that this child was a
risk for suicide?
A. Well, no, of course not. They are not trained.”
Dr. Martha Zuelke testified that she worked at Resurrection Pro Care, a community
mental health agency, providing psychiatric evaluations of children and adolescents. Dr. Zuelke
testified that Denise Hall, the social worker at the clinic, requested that she see Christina because
Christina was in need of more medication. Dr. Zuelke testified that she was unable to prescribe
more medication over the telephone because she had not previously evaluated Christina and given
the original prescription. Dr. Zuelke testified that Dr. Khan, at Riveredge Hospital, had provided
the original prescription.
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Dr. Zuelke testified that she saw Christina on September 16, 2002, and her assessment
was that Christina was not in imminent danger of injuring herself. Dr. Zuelke testified that
Christina was not expressing ideas, impulses or behavior indicating she was at risk of injuring
herself either purposely or inadvertently due to impulsive or agitated behavior. Christina was not
presenting behavior that was a threat to others at home or apparently at school, and she was
actively engaged in seeking help. Dr. Zuelke prescribed Christina a higher dosage of Risperdal
but did not think it was necessary to hospitalize Christina.
Dr. Zuelke testified that it was not reasonably foreseeable that Christina was going to
commit suicide. Dr. Zuelke further testified that even knowing that Christina had not been on
Risperdal from September 12 to September 16, she did not consider Christina to be at risk of
suicide.
Following trial, on October 13, 2005, the jury returned a verdict in favor of plaintiff for
$875,000 and signed a special interrogatory finding that plaintiff was 25% contributorily negligent
in Christina’s death. On October 20, 2005, plaintiff filed a posttrial motion to vacate the special
interrogatory finding plaintiff guilty of 25% contributory negligence. The circuit court denied that
motion. On November 14, 2005, Walgreens filed its motion for judgment n.o.v. and on
December 16, 2005, the parties presented their arguments on the motion. On January 13, 2006,
the circuit court entered an order granting Walgreen’s motion for judgment n.o.v.. In its written
order, the court found that where “the only evidence before the jury was that Christina’s suicide
was not foreseeable to anyone including Walgreens, *** the jury’s decision was against the
manifest weight of the evidence and must be overturned.” On March 3, 2006, the circuit court
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entered an order denying plaintiff’s supplemental posttrial motion to reconsider the entry of
judgment n.o.v. in favor of Walgreens and requesting a new trial.
On appeal, plaintiff contends that: (1) the circuit court improperly granted judgment n.o.v.
where plaintiff established legal causation; (2) plaintiff is entitled to a new trial; (3) the special
finding that plaintiff was 25% contributorily negligent is contrary to the evidence and law; and (4)
plaintiff is entitled to statutory interest on the original verdict from the date of its entry until the
judgment is satisfied.
II. Analysis
A. Standard of Review
The legal principles governing this court’s review are well established. "Judgment
notwithstanding the verdict [judgment n.o.v.] is properly granted where all the evidence, when
viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no
contrary verdict based on that evidence could ever stand." Washington v. City of Chicago, 188
Ill. 2d 235, 238 (1999). A motion for judgment n.o.v. will be granted only if there is a total
failure or lack of evidence to prove an essential element of the plaintiff’s case. Pempek v. Silliker
Laboratories, Inc., 309 Ill. App. 3d 972, 981 (1999). We review the trial court’s decision
regarding judgment n.o.v. de novo. Moss v. Amira, 356 Ill. App. 3d 701, 705 (2005).
B. Proximate Cause
"Proximate cause is one of three elements a plaintiff must prove to succeed in a negligence
action: (1) the defendant owed a duty of care; (2) the defendant breached that duty; and (3) the
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plaintiff’s resulting injury was proximately caused by the breach." Hooper v. County of Cook,
366 Ill. App. 3d 1, 6 (2006). The issue of the existence of proximate cause is ordinarily
determined by the trier of fact. Hooper, 366 Ill. App. 3d at 7. "However, where the facts are
undisputed and reasonable people would not differ as to the inferences to be drawn from the facts,
proximate cause may be determined as a matter of law." Suwanski v. Village of Lombard, 342 Ill.
App. 3d 248, 255 (2003).
"There are two requirements for a showing of proximate cause: cause in fact and legal
cause." Hooper, 366 Ill. App. 3d at 7. We are concerned in this case with legal cause. Legal
cause presents a question of foreseeability. "Legal cause is established if an injury was foreseeable
as the type of harm that a reasonable person would expect to see as a likely result of his or her
conduct." Hooper, 366 Ill. App. 3d at 7; Suwanski, 342 Ill. App. 3d at 255. "A proximate cause
is one that produces an injury through a natural and continuous sequence of events unbroken by
any effective intervening cause." Chalhoub v. Dixon, 338 Ill. App. 3d 535, 539 (2003).
Here, since the intervening force was Christina’s suicide, the question of proximate cause
involves whether the suicide was foreseeable to Walgreens. "It is well established under Illinois
law that a plaintiff may not recover for a decedent’s suicide following a tortious act because
suicide is an independent intervening event that the tortfeasor cannot be expected to foresee."
Chalhoub, 338 Ill. App. 3d at 539-40. However, plaintiff argues that the circuit court erred in
applying the general rule that suicide is an independent intervening act that would break the chain
of causation. Rather, plaintiff asserts that proximate cause in this case should be determined
based on the foreseeability that Christina’s psychosis would return due to Walgreens’ alleged
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negligence and not based on Christina’s subsequent suicide. In making her argument, plaintiff
relies on the exception to the general rule that suicide is an independent intervening act as found
in Stasiof v. Chicago Hoist & Body Co., 50 Ill. App. 2d 115 (1964), aff’d sub nom. Little v.
Chicago Hoist & Body Co., 32 Ill. 2d 156 (1965), and this court’s determination in Repinski v.
Jubilee Oil Co., 85 Ill. App. 3d 15 (1980).
In Stasiof, the plaintiff attempted suicide five years after an automobile accident. In the
interim he had lived a reasonably normal life. This court held that suicide or attempted suicide is
not a natural or probable result of a defendant’s negligence. This court described the act of
suicide as “an independent intervening act which the original tortfeasor could not have reasonably
expected to foresee.” Stasiof, 50 Ill. App. 2d at 122. However, in Stasiof, we also recognized an
exception exists when, “as the proximate result of an injury upon his head caused by the
negligence of another; the person injured becomes insane and bereft of reason, and while in this
condition and as a result thereof he takes his own life. His act in this case is not a voluntary one,
and therefore does not break the causal connection between the suicide and the act which caused
the injury.” Stasiof, 50 Ill. App. 2d at 122. Because the plaintiff in that case was not rendered
bereft of reason by the accident, we determined that plaintiff could not introduce evidence of
injuries from the attempted suicide. Stasiof, 50 Ill. App. 2d at 123-24.
Our supreme court affirmed the Stasiof decision and noted that “[t]he universal rule
followed by most jurisdictions is that the victim’s act of suicide is a new and independent agency
breaking the chain of causation from the negligent act and is not reasonably foreseeable.” Little,
32 Ill. 2d at 158-59. The court went on to quote the “ 'better view' ” expressed by Dean Prosser
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(D. Torts § 49 at 273-74 (2d ed. 1955) that if “ ‘insanity prevents [the victim] from realizing the
nature of his act or controlling his conduct, his suicide is to be regarded either as a direct result
and no intervening force at all, or as a normal incident of the risk, for which the defendant will be
liable. *** But if the suicide is during a lucid interval when he is in full command of his faculties
but his life has become unendurable to him, it is agreed that his voluntary choice is an abnormal
thing, which supercedes the defendant’s liability.’ ” Little, 32 Ill. 2d at 159.
In Repinski, this court determined that the plaintiff could submit evidence of his suicide
attempt in seeking damages for pain and suffering in a negligence case against the defendant. The
plaintiff brought an action against the City of Chicago and a gasoline station after the plaintiff
tripped in a hole in a gasoline station driveway which was also a city sidewalk. This court, relying
on Little, found that plaintiff met the requirements for the admission of evidence of his suicide
attempt which allegedly was the result of the accident, where there was evidence that the suicide
attempt took place slightly more than three months after the accident and shortly after he learned
that he was permanently disabled and would be unable to work. Plaintiff’s counsel also stated
that a psychiatrist would testify that there was a causal connection between the two events and
that plaintiff was suffering from a psychotic condition of depression which left him bereft of his
free will. Based on this proffered evidence, this court determined that the trial court should have
admitted evidence of the plaintiff’s suicide attempt and that the jury should decide whether the
suicide attempt was caused by insanity which resulted from the fall or was a conscious, voluntary
decision by plaintiff who had found his present state in life to be unendurable. Repinski, 85 Ill.
App. 3d at 25-26.
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In accordance with Stasiof and Repinski, plaintiff argues that proximate cause was
established in this case where the evidence showed that Walgreens’ negligence in filling the
prescription at issue caused Christina to be so bereft of reason as to cause her to commit an
involuntary suicide. We disagree.
Unlike the present case, neither Stasiof nor Repinski involved individuals who suffered
from a preexisting mental illness. Both cases involved mentally healthy individuals who were
physically injured by the defendants’ actions and then the plaintiffs attempted to commit suicide at
a later time. The issue in those cases was whether those plaintiffs could recover as an element of
damages the pain and suffering they endured when they attempted suicide. In Stasiof and
Repinski, we examined whether the plaintiffs laid the proper foundation for the admissibility of the
evidence of the plaintiffs’ suicide attempts. In those cases, this court determined that the proper
foundation was testimony regarding the plaintiff’s state of mind. Unlike Stasiof and Repinski,
here, Christina had a mental condition requiring medication before any involvement with
Walgreens. We find the present case similar to the facts in Moss v. Meyer, 117 Ill. App. 3d 862
865-66 (1983).
In Moss, this court relied upon Stasiof when it held that the plaintiff could not recover for
injuries resulting from an attempted suicide. The defendant was a pharmacy charged with
negligence by the plaintiffs because it had left a prescription at the doorstep of their home. The
prescription refill had been requested by the plaintiffs’ minor child. When she received the
prescription, the minor child followed through with her suicide plan by ingesting a large number
of capsules. Plaintiffs asserted that the pharmacy was negligent and that its negligence was the
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proximate cause of the minor child’s injuries. This court disagreed and found that the minor
child’s conduct was not foreseeable and that the evidence was insufficient to show that
defendant’s negligent conduct caused the child to be so bereft of reason as to cause her to attempt
suicide. We noted that the evidence in the child’s deposition indicated that she understood the
dangers of the drugs and admitted that the suicide attempt was a voluntary, intentional act. We
concluded that the defendant’s conduct could not have been the proximate cause of injury. Moss,
117 Ill. App. 3d at 865-66.
Like the plaintiffs in Moss, plaintiff here also asserts that the exception to the general rule
should apply where defendant’s negligence caused Christina to become insane and commit
suicide. However, the evidence did not show that Christina was so bereft of reason as to cause
her to commit suicide. Plaintiff testified that Christina did not take her medication from
September 12 until September 16, 2002. Plaintiff also testified that during this time Christina
“acted like a normal child.” Plaintiff further testified that if she had noticed anything out of the
ordinary about Christina, plaintiff would have taken Christina to the emergency room. While Dr.
Spadoni testified that, in his opinion, Christina’s suicide was causally related to not taking the
Risperdal medication from September 12 to September 16, 2002, he also testified that he did not
feel that there was sufficient ground to conclude that Christina was a danger to herself or anybody
else to justify hospitalization when she saw Dr. Zuelke on September 16, 2002. Dr. Spadoni
testified that according to everyone involved, Christina’s overt behavior was not psychotic. Dr.
Zuelke testified that she saw Christina on September 16, 2002, and her assessment was that
Christina was not in imminent danger of injuring herself. Dr. Zuelke testified that Christina was
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not expressing ideas, impulses or behavior indicating she was at risk of injuring herself either
purposely or inadvertently due to impulsive or agitated behavior. Christina was not presenting
behavior that was a threat to others at home or apparently at school, and she was actively
engaged in seeking help.
Plaintiff further argues that the jury decided that Christina was bereft of reason, and
therefore proximate cause was satisfied to hold Walgreens liable. While this court has recently
held that it was reversible error for a trial court to refuse to submit a special interrogatory to the
jury on the foreseeability of a patient’s suicide (see Hooper, 366 Ill. App. 3d at 8), that is not at
issue here. Contrary to plaintiff’s assertion, the jury in this case was not asked to answer whether
Christina was bereft of reason in either the jury instructions or a special interrogatory.
Accordingly, we find no reason to depart from the general rule "that a plaintiff may not
recover for a decedent’s suicide following a tortious act because suicide is an independent
intervening event that the tortfeasor cannot be expected to foresee." Chalhoub, 338 Ill. App. 3d
at 539-40. In this case, all of the testimony indicated that it was not foreseeable that Christina
would commit suicide. Christina’s treating psychiatrist, Dr. Zuelke, testified that it was not
reasonably foreseeable that Christina was going to commit suicide. Dr. Zuelke also testified that
even knowing that Christina had not been on Risperdal from September 12 to September 16, she
did not consider Christina to be at risk of suicide. Further, plaintiff’s expert, Dr. Spadoni testified
that the fact that Christina committed suicide was not foreseeable to her psychiatrist and that he
would not expect a pharmacist to foresee that Christina was at risk for suicide. Therefore, we
conclude that plaintiff did not prove that Christina’s suicide was foreseeable and that judgment
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n.o.v. was properly granted in this case.
C. Plaintiff’s Request for a New Trial
Plaintiff next contends that she is entitled to a new trial where she was unfairly prejudiced
by Walgreens eliciting testimony regarding plaintiff’s prior mental history. Plaintiff suggests that
this misconduct on the part of Walgreens led the jury to enter the special finding that plaintiff was
25% contributorily negligent in causing Christina’s death.
The record shows that plaintiff filed a motion in limine to bar the introduction of evidence
related to plaintiff’s prior mental health. Plaintiff specifically sought to exclude the admission
screening form from Christina’s treatment at Riveredge which indicated that plaintiff had a history
of psychiatric commitment, hearing voices, and occasional visual hallucinations and that she
previously had taken Risperdal. The circuit court denied plaintiff’s motion in limine in part
allowing the introduction of her mental history but granted the motion in part barring a statement
in the screening form that plaintiff reported hearing voices telling her to hurt her children.
Plaintiff argues that she was prejudiced by Walgreens asking questions regarding plaintiff’s
mental history during its cross-examination of Dr. Kahn. The complained of testimony is as
“Q. And they discussed the concerns they had about the safety of the
children due to the reporting in the family session that she continues to hear voices,
and they tell her to hurt her children - - excuse me.
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[JUROR]: Can you repeat that?
THE COURT: We’re going to strike it. Counsel is not going to repeat it. You’re
to disregard what counsel just said.
Q. They were concerned on this note, and I don’t want to go into the substance of
it. But they were concerned about the mother’s ability to take care of the child;
isn’t that true?
[PLAINTIFF'S COUNSEL]: Judge, I have a motion to make at the appropriate
time.”
The record shows that after the testimony was presented, plaintiff’s counsel argued for a mistrial
based on Walgreens’ violation of the order in limine which barred testimony relating to plaintiff’s
statement that voices instructed her to harm her children. The circuit court denied the motion for
mistrial.
Plaintiff argues that Walgreens’ only purpose in questioning Dr. Kahn regarding plaintiff’s
prior mental history was to unfairly prejudice the jury against plaintiff and that Walgreens’
violation of the motion in limine warrants a new trial. Contrary to plaintiff’s assertion, the record
shows that Walgreens’ counsel repeatedly argued that plaintiff’s mental health was part of this
case because Christina was sent home with her, when plaintiff herself may have been suffering
from mental health issues. Walgreens argued that its theory of the case was that Christina’s
treating physicians should have been aware of plaintiff’s mental health issues. In addition,
counsel’s question relating to plaintiff’s statement about voices telling her to harm her children, in
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violation of the motion in limine, was extremely brief due to the trial court’s immediate sua sponte
action and to the extent that any prejudice occurred, it was cured by the circuit court’s instruction
to the jury to disregard counsel’s question. See McDonnell v. McPartlin, 192 Ill. 2d 505, 534
(2000).
Since judgment n.o.v. was properly granted in this case and plaintiff was not entitled to a
new trial, we need not consider plaintiff’s further contentions that the jury’s special finding that
she was 25% contributorily negligent should be vacated and that she is entitled to statutory
interest on the original verdict until the judgment is satisfied.
III. Conclusion
For the above-stated reasons, we affirm the circuit court’s determination granting
judgment n.o.v. in this case and denying plaintiff’s request for a new trial.
Affirmed.
CAMPBELL and NEVILLE, JJ., concur.
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