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Drug Supplier Not at Fault for Teen's Overdose on Stolen Xanax, Court Rules

Harding Pharmacy, others agreed to pay $4.1M to a man who swallowed stolen Xanax in 2007 and suffered serious injuries. A state court ruled Wednesday that the wholesale distributor, Kinray Inc., was not liable for injuries.

A state appeals court ruled Wednesday to deny a final appeal claiming a New York-based pharmaceutical supplier is partially liable for severe injuries a then-17-year-old Saddle River boy suffered when he overdosed on stolen prescription drugs at a party in 2007.

According to court documents, then 17-year-old Scott Simon threw a party at the Saddle River house his father purchased. It was there, on Sept. 22, 2007, Simon voluntarily ingested stolen Xanax pills provided by friend Marc Malajian, who worked as a part-time clerk at Harding Pharmacy in Ridgewood. The drugs were supplied to Harding by Whitestone, NY company Kinray Inc.

Malajian, according to court documents, gave him the pills despite observing Simon seemed "messed up" and knowing his friend had a "reputation for getting 'a little crazy [with drugs] at times.'"

The rowdy party was shut down by the adult Simon's father hired as a supervisor to his teenage son, and moved to another home, that of Donny Nuckel.

At Nuckel's home, Simon fell into a coma and the party-goers failed to immediately call the ambulance. Simon now suffers from severe nerve damage and has been declared "incompetent."

Harding Pharamacy – which court documents say was found to have committed 92 regulatory violations in a DEA audit, including not locking a cabinet containing drugs – hired Malajian despite knowing he had drug abuse issues, according to the Wednesday ruling.

According to court documents, the DEA told co-owner Myron Lesh that Malajian was suspected of stealing in early 2007, but he maintained employment.

Simon sued Harding Pharmacy, the family who hosted the party, as well as various guests of the party. He collected a sum of $4.1 million in settlements, including $1.9 million from Harding Pharmacy.

But a Superior Court justice found the Simon family's suit against drug maker Kinray was without merit. The plaintiffs argued Kinray should have ensured Harding maintained better safeguards.

The court, upholding a previous ruling, said Kinray closely monitoring the processes and policies of all 2,000 pharmacies it distributes drugs to would be "burdensome" and unrealistic.

The wholesaler had a correct expectation pharmacies – already heavily regulated – would be responsible with the drugs it held, the appellate court ruled.

Have a question or news tip? Contact editor James Kleimann at James.Kleimann@patch.com, or find us on Facebook and Twitter. For news straight to your inbox every morning, sign up for our daily newsletter.

Jim October 17, 2012 at 06:27 PM
Thank God - common sense prevails
J.D. Luke October 17, 2012 at 06:41 PM
I am now trying to parse the fundamental difference between "we did not lock our cabinets and an employee stole drugs" and "we did not lock our car and some thief took my stuff". To my mind, in both cases a bad decision was made but the fault still lies with the thief.
Rock October 17, 2012 at 08:01 PM
JD Luke -- I think those would be equivalent examples, if there was a law requiring you to lock your car, along with 91 other legal requirements that you did not adhere to....and the authorities warned you that a thief who liked to steal from cars lived next door.
Lawrence October 17, 2012 at 08:06 PM
I read the court decision and here's the thing that infuriates me . . . Footnote #4 states "Despite knowing of Scott's pre-existing serious drug problems, Scott's father did not reside with him; rather, he employed an adult to live with Scott in a house the father purchased in New Jersey." So, the parent dumped this kid in his own house in NJ, to be supervised by paid help who could care less and lets him party freely, who didn't stop the partying that night and then the father has the b*lls to not accept responsibility for his own lack of supervision of his drug addicted son? Really? Of course the Malajian kids is responsible for providing the drugs but does anyone but me think the father might have been negligent by not supervising his son and should at least bear some responsibility for his son's condition? I guess Arnie Simon was too busy being an uber-wealthy fashion industry titan or too busy destroying his wife (literally, she killed herself during their bitter divorce proceeding) to care about his sons drug addiction. These lawsuits seem to really be about Mr. Simon blaming everyone but himself for his sons fat.
Charles October 17, 2012 at 11:44 PM
How is it their fault that he decided to commit a crime against them and then ignore every vein of rationality in his body and probably combine alcohol with excessive usage of anti-anxiety medications? What a dumb lawsuit. I can't believe they had to pay. Who cares if they did or did not lock their medicinal cabinet, he still would've had access as an employee. The kid was incompetent long before he overdosed.
James Kleimann October 18, 2012 at 01:00 AM
The whole judgment from the appellate court can be seen here: http://www.judiciary.state.nj.us/opinions/a1234-11.pdf
Lauren Imbruglia October 18, 2012 at 03:14 AM
What were the consequences for the Maljian boy?
SR res October 18, 2012 at 11:45 AM
@Lawrence- you got it right 100%.
Dennis Martinez October 18, 2012 at 12:54 PM
We live in a society in which you start with the end result ( a death to a teen) and work your way backwards to attach blame along the way. In the end the loser is the consumer who pays the additional 20% cost that is needed to be charged to every product to cover this dysfunctional process. The plaintiffs lawyer gets his contingency fee if he wins. The defense lawyer gets paid regardless of the outcome and the business always loses (defense costs) even if it wins the case and doesn't have to pay the judgment.This is how the American system works.
Hope Anderson October 18, 2012 at 07:21 PM
Our legal system is totally broken. So many lives were affected by this frivilous lawsuit and everyone takes the blame but the theif and the fool who come out on top.
Kelly Schwietering October 19, 2012 at 12:51 AM
http://www.orangecoast.com/October2010/feature/privatewoman.aspx check out this llnk that is a story all about the wife and family situation -- just backing up @lawrence's comments. what a tradegy.
paul smith October 20, 2012 at 06:49 PM
I can see the pharmacy getting fined by the state and the guy swiping the goods getting time but the money thug, who has millions already, squeezes more out by profiting from his son's bad choices.... and here's a bit more about poor deb simon... I will never buy a product that her ex husband trades in... maybe he'll try to sue the Patch too... http://www.ocnewsnetwork.com/localnews/2009/9/11/debbie-simon-major-newport-beach-socialite-dies-she-was-53.html
ante seput December 24, 2012 at 08:22 PM
Amen to that!!! The problem is that we have judicial system that does not have any brian however in this case perhaps little. I am looking to see outcome. http://www.triond.com/rw/82161
ante seput December 24, 2012 at 08:42 PM
We do not have legal or judicial system in our country is run by bunch "MORONS". This litigation should be in opposite direction since this idiot S. Simon was under the edge Pharmaceutical Company has legal right to hold parents liable for any damaged or loses. It seem that judicial system always works what is right for me it is not right for you, as old American Indian putt it white man speaks with two Tung! That is our judicial system. http://www.triond.com/rw/82161

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