Posted on 08/18/2003 7:51:53 AM PDT by JesseHousman
Joshua Dunbar was described as an exceptionally bright but hyperactive 7-year-old who was being treated with a generic version of Ritalin.
On Nov. 10, 2001, he told his mother he didn't feel well. He went to sleep about 2 p.m. that day. When he couldn't be awakened, he was taken to the hospital emergency room in Española. He was later airlifted to Presbyterian Hospital in Albuquerque.
Joshua spent six days in a coma and two months at Albuquerque hospitals. His lawyers say diagnostic tests confirmed strokes and permanent brain damage.
In a lawsuit that went to trial late last month, Joshua's lawyers argued that the boy's injuries stem from a mixup at Walgreens pharmacy in Española. Instead of generic Ritalin, they claim, Joshua was taking methadone— a morphinelike narcotic used to treat heroin addicts.
But District Judge Tim Garcia declared a mistrial after seven days of testimony when a Walgreens pharmacist testified that a prescription intended to show that the pharmacy could account for all its methadone— a highly regulated narcotic— was fraudulent.
The lawyers defending Walgreens withdrew from the case and heatedly dispute any allegation of wrongdoing. Walgreens has denied all allegations in the lawsuit. Now, the boy's legal team wants Garcia to sanction Walgreens to the tune of millions of dollars for conduct by both the corporation and its attorneys that Joshua's lawyers describe as "appalling," "intentional, knowing, (and) inexcusable."
The Branch law firm in Albuquerque filed the sanctions request Friday on behalf of Miriam Dunbar of Española and her son Joshua, now 8 years old. They attached affidavits from jurors who said they were prepared to return a substantial verdict in favor of Joshua and his mother.
"We felt robbed in terms of our inability to finish our jury service by arriving at a verdict," one affidavit said. "After Judge Garcia's explanation as to the fraud committed on the jury, I felt like $20 (million) to $30 million total would be an appropriate amount to award Joshua for all of the things that have happened to him including the deception."
Miriam Dunbar filled two prescriptions at the Española Walgreens in October 2001. The vial in question, later seized by police, indicated that it was 60 pills of 10 milligram methylphenidate— a generic form of Ritalin. The boy took doses of medicine at home and some from a nurse at his school.
The vial has the initials "RRM" written in the corner. Walgreens pharmacist Rick R. Mascarenas, a defendant in the lawsuit, is the witness who testified about the fraudulent methadone prescription.
In the second week of November, Joshua began to show signs of nausea, vomiting, drowsiness and itching. After his hospitalization, State Police seized both the home vial and school vial of Joshua's medicine. One of them had methylphenidate. The other contained 53 pills of methadone.
Miriam Dunbar did not know what methadone was, her attorneys said. She was, in the legal terminology of the lawsuit, "blamelessly ignorant that the vial contained methadone."
From being an exceptionally bright first-grader, Joshua became a child who took a very long time to accomplish simple tasks, his first-grade teacher, Joan Davidge, testified in a deposition and at trial.
Walgreens says in court documents that its procedures safeguarded against errors such as the one alleged by Dunbar's lawyers and that any injury to Joshua was not because of anything Walgreens did or didn't do.
But Joshua's lawyers contend that mistakes in record-keeping required by the U.S. Drug Enforcement Administration for Class II narcotics such as methadone, called "perpetual inventory logs," show how an error in dispensing could occur. Branch firm lawyers Turner and Margaret Moses Branch, John Burnett and Harriet Hickman say in their request for sanctions that the logs contained "mysterious strikethroughs ... which somehow appear to account for these sixty missing pills, without any explanation as to their origin."
Mascarenas testified at trial that he had reconciled an apparent discrepancy in the logs after he found two prescriptions that had not been previously produced.
A photocopy of a Dec. 1, 2001, prescription, supplied by the defense would apparently have explained a discrepancy in the methadone supply. Judge Garcia had ordered Walgreens to supply originals of the prescriptions and the accompanying DEA computer logs for an in-chambers inspection. When Mascarenas failed to do so, and his attorney said he had misunderstood, the court ordered the state Pharmacy Board to take the originals. Mascarenas, recalled to the stand after consulting with a criminal defense attorney, told the court that he had been notified by a Walgreens attorney that she had found the missing Dec. 1, 2001, prescription that appeared to reconcile the inventory.
Mascarenas told the jury that in his opinion the Dec. 1, 2001, prescription was forged and that he had told his supervisor about his suspicions. "Nothing was done by anyone at Walgreens ... until Mr. Mascarenas decided to confess this conspiracy in open court on Aug. 5, 2003," the sanctions motion says.
"While it is anticipated Walgreen's new counsel will attempt to minimize this misconduct ... it is inescapable that Walgreen's corporate office had direct knowledge of this fraud at high levels prior to the submission of all the fraudulent statements and representations ... and did nothing to prevent (it)."
Michele U. Estrada, a one-time pharmacist and the primary attorney at Madison Harbour Mroz & Brennan in Albuquerque defending Walgreens at trial, said Friday she hadn't seen the 34-page motion and accompanying exhibits alleging misconduct by her firm. "I haven't seen that. I have no comment, and I adamantly deny that our law firm was involved in any way (in misconduct)," Estrada said.
Walgreens corporate communications officers in Deerfield, Ill., were not available for comment Friday.
Charles Pharris, an Albuquerque attorney who last week entered an appearance on behalf of the corporation in the case, was also out of the office Friday.
The Branch firm said the sanctions should be significant enough to "impact and deter the conduct of a multibillion-dollar multinational corporation."
Sworn affidavits from seven jurors accompanying the motion indicate that the jury was prepared to award as much as $350 million or more in punitive damages against Walgreens for the apparent error— if they had been allowed to decide the case.
This is no excuse for the bungling by the pharmacy, but dosing 7 year-olds with Ritalin creates a generation of zombies. Just what America doesn't need.
Yeh, but it makes the teachers job easier when the children are doped up. The unions love it.
Another kid will come along to take his place, and the school will still get it's funding. It's no big deal.
(Sarcasm on my part, no doubt in my mind - reality on theirs)
Most children prescribed Ritalin do not need it, and are in fact harmed by it, but that does not mean that no child needs it or benefits from it.
That said, Walgreens needs to be roasted for what they did,
So9So9
I have personal knowledge of two children--both girls--diagnosed with ADHD. Both were given Ritalin, and their grades improved, their teachers gushed relief at their improved behavior and attention span.
Anecdotal, but I observed NO adverse effect--and only benefits--to Ritalin in these two cases.
--Boris
What isn't mentioned in this article is that Rio Arriba County in NM has the highest per capita heroin overdose rate in the nation. That would explain the possible lax oversight of methadone. There's lots of folks up there receiving it.
Well what percentage would you say nned it?
Why damage millions when only .1 % need this valuable mind altering drug?
I'm sorry to say this, Servant, but your response makes little sense.
1. It shouldn't damage any.
Competent doctors can tell who really needs it and they should get it.
The mistake is wanting to ban its use because stupid parents and teachers want an easy way out and irresponsible doctors prescribe it for them.
2. It certainly won't damage your kids or mine.
Think of it as Evolution in Action.
So9
Nor are they pushing kids to use it.
They are pushing adults to buy it for their kids.
If stupid parents destroy their kids, that is Evolution in Action.
I don't like big brother telling people what is good for them.
So9
So9
I take it you failed logic in college.
As I said, I saw NO adverse side-effects when these kids took Ritalin as directed over a long period.
If your doctor precribes meth, maybe your brain would work better, I dunno.
--Boris
I agree with what this earlier poster stated; however, I don't believe in hundreds of millions of dollars going to one person as it makes litigation more lucrative than the lotteries.
Do you really believe that ADHD affects millions of kids, but somehow we all survived childhood with being restrained by medication?
Obviously that lawyer developed mind virus resonates with you but I don't agree with it. Money does not equal justice. If people broke the law put them in jail, they'll understand that just fine. The problem with extorting billions from business is it drives up prices and we all end up paying for these lotto payouts. I would give up my chance at a $350 million jackpot if I didn't have to buy $500 per month in lotto tickets. Lottos and lawyer extortion schemes are for people bad at math.
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