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A Cobb County, Ga., judge has held drugstore chain CVS Corporation in contempt for failing to produce documents and witnesses requested by plaintiffs in a suit against the company. CVS has 30 days to produce them. Superior Court Judge Robert E. Flournoy III also ordered CVS to answer questions about suits against the company and about company prescription fulfillment policy. CVS must pay attorney fees of $5,563.80. Francis Salter v. Mableton Parkway CVS, Inc., No. 9815424628 (Cobb Super. filed April 29, 1998). The actions come in a case where the plaintiff, Francis Salter, alleges that a Mableton, Ga., CVS pharmacy gave her the wrong prescription, causing her to suffer an irregular heartbeat. CVS had resisted attempts by plaintiffs’ lawyers to get information on similar lawsuits against the company and other information about employee mistakes in filling prescriptions. Plaintiffs allege that the misfilled prescription was the result of CVS policies that require pharmacists to work faster than they should. “It is incomprehensible that Defendant is not able to disclose with absolute accuracy the amounts of monies paid to claimants on an annual basis either by settlement or by verdict and judgment as a consequence of negligently, fraudulently, etc., filled prescriptions,” the order says. “Likewise it is inconceivable that a large corporation like the Defendant would not be able to gain detailed information regarding lawsuits filed against it.” Hawkins & Parnell partner Warner S. Fox, who represents CVS, says his client hasn’t not decided how to respond to Flournoy’s order. “We respectfully disagree with the court’s order,” he says, adding that his client will make efforts to comply with the order, as well as consider other options. “We’re going to look into our rights of appeal.” Salter’s lawyer, Trace A. Dillon, says he hopes that the order will enable him to determine whether CVS policy overworks pharmacists. His client filed suit after a December 1997 incident in which a CVS pharmacist substituted another drug for the hypertension pills Salter was already taking and told her it was the equivalent of what her doctor prescribed. According to the complaint, the drug “was not a substitute and was not prescribed or authorized by her doctor.” The allegedly misfilled prescription, Dillon says, caused his client to develop an irregular heartbeat. In his contempt motion, Dillon calls the affliction “life threatening” and “incurable.” On Oct. 27, 1999, Judge Mary E. Staley, the case’s original judge, ordered the defense to produce a company official with knowledge of the facts and circumstances surrounding Georgia litigation against CVS in the past five years. After five months, CVS named its regional health-care manager as its witness, turned over a list of 21 Georgia suits and produced copies of 19 complaints against the company. By picking through the stack of suits, Dillon says, he came up with 25 suits against CVS in Georgia during the past five years. And the CVS official, Dillon says, was unable to tell him whether his list was complete, and unable to address the details of the cases. STONEWALLING CLAIMED During a hearing last October, Dillon accused the company of stonewalling his client, and asked Flournoy to hold CVS in contempt and fine it $100,000 “to get their attention.” At the hearing, Fox told Flournoy that the company’s risk-management division handles the records for suits, and that no one official has knowledge of all cases against the company over the past five years. The plaintiff, he said, would have to depose the individual company officials responsible for each file. And some of the cases, he said, may not have anything to do with misfilled prescriptions. While CVS doesn’t dispute that Salter received the wrong prescription, Fox noted that Salter’s own doctor had testified in a deposition that the possibility the misfilled prescription had caused Salter’s heart trouble was “very, very unlikely.” In his orders, Flournoy directed the defense to produce a witness who could answer Dillon’s questions about cases against CVS concerning misfilled prescriptions. The judge also ordered CVS to produce company policy manuals and personnel files of some employees accused of misfilling prescriptions or making other errors on the job. In those orders, Flournoy reserved his decision on whether to compel discovery of all error reports for all the stores managed by the same supervisor that managed the Mableton store, pending an explanation from the defense of why producing the information would be “unduly burdensome.” Fox says he intends to provide that explanation because the task would in fact be burdensome. INFORMATION TO BACK CLAIM? Dillon says he suspects the new information will show that CVS policy requires pharmacists to fill many more prescriptions daily than recommended by professional pharmacy groups. In a deposition, the pharmacist who filled Salter’s order testified that he filled an average of 200 prescriptions over an eight-hour day — about 25 prescriptions an hour. According to the National Pharmacists’ Association, a trade group in Darien, Ill., pharmacists should fill no more than 15 orders an hour, Dillon says. “It’s a corporate profit-making philosophy, and that’s what’s wrong with the chain,” he says. According to the CVS Web site, the Rhode Island-based pharmacy filled 12 percent of all prescriptions in the United States in 1999. The company comprises about 4,100 stores in 24 states.

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