O'Day v. Nanton

• Decision Date: 20 December 2017
• Docket Number: 27953
• Citation: 905 N.W.2d 568
• Parties: Basil O'DAY and Tracy McClure, as Guardians Ad Litem for N.W.O., Plaintiffs and Appellants, v. Stephen NANTON, M.D., Defendant and Appellee.
• Court: South Dakota Supreme Court

905 N.W.2d 568

Basil O'DAY and Tracy McClure, as Guardians Ad Litem for N.W.O., Plaintiffs and Appellants,

v.Stephen NANTON, M.D., Defendant and Appellee.

27953

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS ON OCTOBER 2, 2017

OPINION FILED December 20, 2017

LEE C. "KIT" MCCAHREN of Olinger, Lovald, McCahren, Van Camp & Konrad, PC, Pierre, South Dakota, Attorneys for plaintiffs and appellants.

ROGER A. SUDBECK, MATTHEW D. MURPHY of Boyce Law Firm, LLP, Sioux Falls, South Dakota, Attorneys for defendant and appellee.

GILBERTSON, Chief Justice

[¶ 1.] Basil O'Day and Tracy McClure (Appellants), as Guardians Ad Litem for N.W.O., sued Steven Nanton, M.D., for medical malpractice alleging he improperly treated N.W.O. with the drug Reglan. At the jury trial, Appellants attempted to present undisclosed rebuttal testimony from an expert witness and also requested a nonapportionment-of-damages jury instruction. The circuit court excluded the undisclosed expert witness offered in rebuttal from testifying, and it denied Appellant's requested jury instruction. The jury concluded Dr. Nanton was not negligent and returned a verdict in his favor. The Appellants appeal, arguing that the circuit court erred in excluding Appellants' rebuttal expert witness and in refusing Appellants' nonapportionment-of-damages jury instruction. We affirm.

Facts and Procedural History

[¶ 2.] In September 2008, N.W.O. was referred to Dr. Nanton, a pediatric gastroenterologist, to address severe gastrointestinal issues. N.W.O. was about two months old. He was vomiting and having trouble keeping food down that resulted in fussiness, irritability, crying, inconsolableness, and sleeplessness. Dr. Nanton subsequently diagnosed N.W.O. with severe gastroesophageal reflux disease (GERD). Over the course of 19 months, Dr. Nanton examined N.W.O. a number of times, performed multiple tests, altered formula and food types, and prescribed medications to treat N.W.O.'s ailments. One of the medications Dr. Nanton prescribed was Reglan.¹

[¶ 3.] Reglan use is recommended for a maximum of 12 weeks except in cases where the therapeutic benefits outweigh the risks. Although many adverse side effects have been associated with Reglan use, Dr. Nanton testified that he believed the benefits outweighed the risks in N.W.O.'s situation. Throughout N.W.O.'s treatment, Dr. Nanton attempted to wean N.W.O. off Reglan as his conditions improved, but N.W.O.'s vomiting would reappear and the Reglan dosage had to be reinstated.

[¶ 4.] On July 1, 2009, Tracy McClure, N.W.O.'s mother, started noticing problems with N.W.O.'s development. She observed issues relating to standing, balancing, and facial grimacing. Ms. McClure also reported that N.W.O. exhibited uncoordinated jerky motions. Dr. Nanton also noticed motor and developmental delays in N.W.O. Subsequently, N.W.O. was referred to pediatric neurologists to address N.W.O.'s issues. During N.W.O.'s treatment course with Dr. Nanton, various healthcare providers and physicians treated N.W.O., amounting to approximately 75 different hospital and clinic visits. N.W.O. was also participating in both speech and physical therapy. N.W.O. continued to use Reglan during this time to combat his GERD symptoms.

As a result of seeing a television commercial on the side effects of Reglan, Ms. McClur e brought her concerns about Reglan's side effe cts to the attention of N.W.O.'s primary care physician. Dr. Nanton discussed N.W.O.'s Reglan regiment wi th N.W.O.'s primary physician and his attempts to wean N.W.O. off the drug. In March 2010, Dr. Nanton informed N.W.O.'s primary physician to stop N.W.O.'s use of Reglan because of Ms. McClure's concerns. Dr. Nanton had no further involvement in N.W.O.'s care after this exchange.

[¶ 6.] On May 9, 2012, Appellants filed a complaint against Dr. Nanton alleging medical malpractice. Appellants claimed Dr. Nanton breached the standard of care by treating N.W.O. with Reglan and causing N.W.O. injury. A five-day jury trial commenced in Sioux Falls on June 13, 2016.

[¶ 7.] During the jury trial, Appellants presented testimony from one expert, Dr. John Sabow, to opine on both the standard of care and legal causation. Dr. Sabow, a neurologist, testified that professional literature informs doctors to refrain from using Reglan in the very young due to its vast side effects. Dr. Sabow stated that Dr. Nanton breached the standard of care when he placed N.W.O. on Reglan. Because of N.W.O.'s extended Reglan use and improper monitoring, Dr. Sabow concluded that N.W.O. had been poisoned by Reglan. Dr. Sabow testified that as a result, N.W.O. acquired a neuropsychiatric organic brain dysfunction that caused N.W.O. to have cognitive thinking problems, motor function issues, and an induced Tourette's Syndrome.

[¶ 8.] Dr. Nanton presented testimony from Dr. Warren Bishop, a fellow pediatric gastroenterologist, on the standard of care. Dr. Bishop testified that he personally has used Reglan in adolescent patients and that Dr. Nanton's decision to use the drug was justified and appropriate. He further stated that Reglan's side effects were outweighed by its therapeutic benefits, especially in a case like N.W.O.'s. Dr. Bishop concluded that Dr. Nanton's treatment of N.W.O. met the standard of care throughout the time of N.W.O.'s Reglan use. On the causation issue, Dr. Bishop testified that Reglan did not cause N.W.O.'s problems. He stated he was unable to find any article linking Reglan use to a developmental disability or any article indicating Reglan use can cause Tourette's Syndrome.

[¶ 9.] Dr. Nanton also presented the testimony of three other experts on the issue of causation. First, Dr. Patrick Barnes, Medical Section Chief of Pediatric Neuroradiology at Stanford, testified through a videotaped deposition about N.W.O.'s pre-Reglan brain imaging. From an ultrasound of N.W.O.'s brain taken on his first day of life, Dr. Barnes concluded that N.W.O.'s right and left cerebral hemispheres were asymmetric, which indicated N.W.O. had an underdeveloped brain. Dr. Barnes confirmed these findings by an MRI taken of N.W.O.'s brain on his second day of life. Dr. Barnes concluded that N.W.O.'s brain was underdeveloped early in the pregnancy and caused N.W.O.'s developmental problems.

[¶ 10.] Expanding on Dr. Barnes' testimony, Dr. Bradley Schaeffer testified by videotaped trial deposition. Dr. Schaeffer is the Founding Director for the Division of Medical Genetics at the University of Arkansas. He testified that N.W.O.'s MRI showed an abnormal brain at birth and this abnormality is what caused N.W.O.'s developmental delays. Dr. Schaeffer concluded that N.W.O.'s problems were not caused by Reglan but were present from birth.

Lastly, Dr. Nanton called Dr. Donald Chadwick, a pediatric neurologist. Using N.W.O.'s brain MRI, Dr. Chadwick testified in person that N.W.O. had an abnormal brain at birth, which is consistent with N.W.O.'s exhibited developmental delays. After personally examining N.W.O. and his medical records, Dr. Chadwick concluded that Reglandid no t cause N.W.O.'s developmental delays.

[¶ 12.] At the close of Dr. Nanton's case-in-chief, Appellants attempted to present rebuttal testimony from Dr. Sabow to refute the MRI images discussed by Dr. Nanton's experts that described N.W.O.'s abnormal brain at birth. Dr. Nanton objected because Dr. Sabow's opinion was untimely disclosed and would be prejudicial. Appellants argued that they were unaware the MRI was going to be used as a basis for Dr. Nanton's experts' opinions; Dr. Sabow was present during Dr. Chadwick's testimony and should be allowed to rebut the opinions as to what N.W.O.'s MRI depicts; and Dr. Sabow's rebuttal testimony was not required to be disclosed.

[¶ 13.] The circuit court excluded Appellants' rebuttal expert testimony because Dr. Sabow's opinion as to the MRI images was new and undisclosed; the Appellants knew the topic would be part of the trial; and the potential for prejudice against Dr. Nanton favored exclusion.

[¶ 14.] In settling jury instructions, Appellants also requested a nonapportionment-of-damages jury instruction. The instruction provided that Appellants could recover if the jury found Reglan aggravated N.W.O.'s pre-existing condition. The circuit court stated that the Appellants had argued throughout the trial that N.W.O. was a healthy baby at birth and Reglan was the cause of N.W.O.'s developmental problems, while Dr. Nanton's entire defense was based on the opposite rationale. Thus, the circuit court refused to give the instruction to the jury because there was no evidence in the record to support it.

[¶ 15.] Following deliberation, the jury returned a verdict in favor of Dr. Nanton on June 17, 2016. The jury concluded via a special verdict form that Dr. Nanton was not negligent.

[¶ 16.] The Appellants appeal, raising two issues:

1. Whether the circuit court erred in excluding Appellants' expert's undisclosed rebuttal testimony.

2. Whether the circuit court erred in refusing Appellants' requested jury instruction.

Standard of Review

[¶ 17.] A "circuit court has discretion in admitting or excluding expert testimony, and therefore, we review a court's evidentiary ruling on expert testimony for an abuse of discretion." Thompson v. Avera Queen of Peace Hosp. , 2013 S.D. 8, ¶ 7 n.1, 827 N.W.2d 570, 573 n.1. "An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence." Kaiser v. Univ. Physicians Clinic , 2006 S.D. 95, ¶ 29, 724 N.W.2d 186, 194 (quoting State v. Henry , 1996 S.D. 108, ¶ 10, 554 N.W.2d 472, 473 ). "Not only must this Court find that the [circuit] court abused its discretion ..., but it must find that the jury's consideration of the erroneously excluded evidence might and probably would have resulted in a different finding by the jury in order to warrant a reversal of the [circuit] court." Schrader v. Tjarks , 522 N.W.2d 205, 209-10 (S.D. 1994).

[¶ 18.] Likewise, "we...