Benjamin v. Tandem HealthCare, Inc., No. 4D10-881

CourtFlorida District Court of Appeals
Writing for the CourtHAZOURI
PartiesJODI BENJAMIN, as Personal Representative of the Estate of MARLENE GAGNON, Deceased, Appellant, v. TANDEM HEALTHCARE, INC., a foreign corporation d/b/a TANDEM HEALTH CARE OF WEST PALM BEACH, INC., a Florida corporation, Appellee.
Docket NumberNo. 4D10-881
Decision Date27 June 2012

JODI BENJAMIN, as Personal Representative of the Estate of
MARLENE GAGNON, Deceased, Appellant,
TANDEM HEALTHCARE, INC., a foreign corporation d/b/a TANDEM HEALTH CARE OF
WEST PALM BEACH, INC., a Florida corporation, Appellee.

No. 4D10-881


January Term 2012
June 27, 2012


Jodi Benjamin, as personal representative of the estate of her mother Marlene Gagnon (hereinafter "the Estate"), appeals a final judgment entered against the Estate and in favor of Tandem Healthcare, Inc. (hereinafter "Tandem") after a jury trial. The Estate raises three issues on appeal: 1) that the trial court erred in admitting a United States Food and Drug Administration (FDA) advisory concerning prescription medication Mrs. Gagnon was taking; 2) that the trial court erred in excluding the testimony of a kitchen worker who overheard another employee of Tandem, a CNA, rush into the kitchen from the dining room and state that Gagnon was choking on coleslaw and a week later this same employee was at a meeting called by the kitchen manager who stated that Mrs. Gagnon had choked on coleslaw and died; 3) that the trial court erred in excluding statutory survivors other than the personal representative of the Estate from the courtroom prior to their testimony. We affirm on points one and three and reverse as to point two and remand for a new trial.

The genesis of this appeal is an action for wrongful death alleging negligence and violation of a nursing home resident's rights under sections 400.022 and 400.023, Florida Statutes (2004). Mrs. Gagnon, an Alzheimer's patient with a history of a swallowing disorder, was a resident at Tandem's West Palm Beach nursing home. The complaint alleged that Mrs. Gagnon died as a result of choking on food while eating and that Tandem breached its duty of care to Mrs. Gagnon by failing to

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properly supervise her while she was eating. The case proceeded to trial, wherein the Estate's experts opined that Tandem's actions led Mrs. Gagnon to choke and eventually suffer cardiac arrest. Conversely, Tandem's defense was based on its theory that Mrs. Gagnon suffered a fatal arrhythmia potentially caused by her prescription medication Seroquel and Abilify. To strengthen this theory, Tandem sought to introduce an FDA advisory and accompanying black box warning concerning these medications.1 Tandem further claimed that Mrs. Gagnon did not choke and that Tandem had met the reasonable standard of care. The issue of causation was hotly contested with both sides presenting experts and other witnesses to support their respective theories.

During Tandem's opening statement, it asserted that Mrs. Gagnon did not choke to death but had an arrhythmia that was caused by certain medications that she was taking. Tandem also asserted that there would be no witness testifying that, at the time Mrs. Gagnon was in the dining room on the day of the incident, she choked on any food.

The evidence at trial demonstrated that Mrs. Gagnon had difficulty swallowing foods due to contracting polio at a young age, which left her throat partially paralyzed. Mrs. Gagnon avoided choking by taking small bites, chewing carefully, and turning her head to the left while swallowing. In 1999, Mrs. Gagnon was diagnosed with dementia and she was prescribed Seroquel and Abilify. As her dementia progressed, she needed more assistance with swallowing. Because of her difficulty swallowing, she was placed on a mechanical soft diet.

In 2004, Mrs. Gagnon was admitted to Tandem. Tandem was told of Mrs. Gagnon's history of swallowing issues. Tandem's speech therapist recommended Mrs. Gagnon eat in the dining room where she could be supervised and recommended she remain on a soft diet.

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On the day of the incident giving rise to the claim, Mrs. Gagnon was brought into the dining room for lunch by a certified nursing assistant. At that point, Tandem's speech therapist was monitoring Mrs. Gagnon. The speech therapist testified that there were no registered nurses in the dining room at that time. She intended to leave the dining room, but before doing so she asked the nursing assistants who were present to watch Mrs. Gagnon. A short time later, one of the nursing assistants noticed Mrs. Gagnon staring blankly in the dining room, and a code blue was called. Tandem's nurses performed an oral sweep twice, but did not find any food in Mrs. Gagnon's mouth. The Heimlich Maneuver was also attempted without success. The nurses then began CPR, and, upon arrival, the responding paramedics performed advanced cardiac life support on Mrs. Gagnon. The EMS report indicated Mrs. Gagnon was in cardiac arrest.

Mrs. Gagnon was then transported to the hospital. Certain testimony indicated there was food found in the back of Mrs. Gagnon's throat in the emergency room, which was suctioned out. Mrs. Gagnon never regained consciousness and a few days later life support was discontinued.

At trial, the side effects of Mrs. Gagnon's medications and the FDA advisory were extensively discussed during direct and cross-examination of the parties' respective experts, even prior to the advisory's admission into evidence.

Dr. Irving Vinger, the Estate's first expert witness, discussed that an abnormality in Mrs. Gagnon's EKG may have been a side effect of certain medications she was taking as well as a potential reason for an arrhythmia to start. However, it was his opinion that Mrs. Gagnon's death was caused by Tandem's lack of proper supervision, which led to her choking. On cross-examination, he testified that he would not prescribe Seroquel or Abilify because they had not been thoroughly studied and because of the possible side effects, including arrhythmia and sudden death. He went on to mention the FDA advisory concerning those medications. Tandem's counsel had Dr. Vinger review the advisory and marked the document as an exhibit for identification purposes. The document was not admitted at that time. After objections by the Estate, Dr. Vinger was allowed to testify that the advisory applied to Seroquel and Abilify, which Mrs. Gagnon had been taking2 , and discussed his understanding of its contents.

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The Estate's next expert, Dr. Richard Kishner, a neurologist, asserted that he had not observed the incidence of heart attacks or arrhythmias in patients taking Seroquel or any complications from Mrs. Gagnon's use of Seroquel. Then, the following exchange took place between Dr. Kishner and the Estate's counsel:

Q. Has Seroquel being (sic) taken off the market by the government?
A. No. Several years ago a Black Box Warning was issued but it was not withdrawn from the market.
Q. Doesn't a Black Box Warning mean that everybody that's taking the drug is going to drop dead instantly?
A. No. Black Box Warnings typically mean that there can be an increased risk of death associated with the drug. And basically what it is for the physicians is a heads up to say, look, if you're going to use this drug think about it, use it appropriately, and cautiously; discuss the possible adverse effects to the patient's family so they know what to do to really basically prevent against adverse effects.
Q. Again, any clinical documentation of cardiac arrhythmias with regard to this lady in this case?
A. No.

In his medical opinion, Mrs. Gagnon choked, which caused a blockage of air to her lungs and resulted in her death. Furthermore, he opined that there was no evidence that the drug Seroquel caused a cardiac arrhythmia in Mrs. Gagnon causing her death. He did acknowledge on cross-examination that Mrs. Gagnon was also taking Abilify, which had been listed in the advisory due to the same association with a slight increase in death based on cardiac arrhythmia or infection. However, he clarified that it had not been shown that the two drugs would act together and have a greater effect than either one would individually. He testified that if there was a high risk, the drugs would have been withdrawn from the market by the FDA.

During Tandem's case-in-chief, Tandem argued for admission of the FDA advisory under the hearsay exception for public records and reports. See § 90.803(8), Fla. Stat. (2009). The Estate responded that section 90.706, Florida Statutes (2009)3 , was dispositive and precluded use of

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the advisory as substantive evidence. It also argued that the advisory was not admissible. The trial court overruled the objections.

The main expert testimony presented by Tandem was that of Dr. Steven Meyerson, an internal medicine and geriatrics physician. He refuted the Estate's position that Mrs. Gagnon had choked and opined that a review of Mrs. Gagnon's EKG supported the notion that she suffered a fatal arrhythmia. Dr. Meyerson was of the opinion that Mrs. Gagnon's medications may have led to the arrhythmia although he could not prove it. When he was shown the FDA advisory, Tandem sought to have him read or summarize the contents to the jury. The trial court did not allow this to occur and did not allow Dr. Meyerson to use the advisory to support his opinion based on the Estate's objections regarding improper bolstering under section 90.706. Nonetheless, Dr. Meyerson testified from his own knowledge and experience regarding the side effects of Seroquel and Abilify, specifically that they were known to increase the risk of sudden death from infections or arrhythmias, and these risks were higher in older people.

We first address whether the trial court erred in admitting, as...

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