Hundley ex rel. Hundley v. Rite Aid

• Citation: 339 S.C. 285,529 S.E.2d 45
• Decision Date: 28 February 2000
• Docket Number: No. 3126.,3126.
• Parties: Gabrielle HUNDLEY, a minor under the age of fourteen (14) years, by through her Guardian ad Litem, Peggie W. HUNDLEY, Respondents, v. RITE AID OF SOUTH CAROLINA, INC. and Howard Jones, Appellants. Ronald R. Hundley and Peggie W. Hundley, Respondents, v. Rite Aid of South Carolina, Inc. and Howard Jones, Appellants.
• Court: Court of Appeals of South Carolina

339 S.C. 285

529 S.E.2d 45

Gabrielle HUNDLEY, a minor under the age of fourteen (14) years, by through her Guardian ad Litem, Peggie W. HUNDLEY, Respondents, v. RITE AID OF SOUTH CAROLINA, INC. and Howard Jones, Appellants.

Ronald R. Hundley and Peggie W. Hundley, Respondents, v. Rite Aid of South Carolina, Inc. and Howard Jones, Appellants.

No. 3126.

Court of Appeals of South Carolina.

Heard September 8, 1999.

Decided February 28, 2000.

Rehearing Denied May 6, 2000.

Charles E. Carpenter, Jr. and Elizabeth Brosnan, both of Richardson, Plowden, Carpenter & Robinson; T. Patton Adams and Hardwick Stuart, both of Berry, Adams, Quackenbush & Stuart, all of Columbia, for appellants.

James C. Anders, Thad L. Myers and Cheryl F. Perkins, all of James C. Anders, P.A.; James B. Richardson, Jr., of Svalina, Richardson & Larson, all of Columbia, for respondents.

HOWARD, Judge:

These consolidated tort actions arise from injuries sustained by Gabrielle Hundley, a minor child, after she ingested medication from an incorrectly filled prescription. A jury trial resulted in a verdict for Gabrielle Hundley (Gabrielle) against Howard Jones, the pharmacist, and Rite Aid of South Carolina (Rite Aid) (collectively "defendants") in the sum of $5,000,000 actual damages, and against Rite Aid in the sum of $10,000,000 punitive damages. The jury returned a verdict in the parents' companion case against both defendants for actual damages in the sum of $20,000, and against Rite Aid for punitive damages in the sum of $1,000,000. Both defendants appeal. We affirm.

FACTS/PROCEDURAL BACKGROUND

Facts Regarding the Injury

On February 20, 1995, Dr. Jan Shaw diagnosed seven-year-old Gabrielle Hundley with attention deficit hyperactivity disorder ("ADHD") and prescribed Ritalin. Dr. Shaw is a pediatric neurologist. Peggie Hundley, Gabrielle's mother, took the prescription to a Rite Aid pharmacy in Rock Hill, South Carolina, where it was filled that evening.

The next morning, Mrs. Hundley gave Gabrielle one tablet from the prescription bottle as directed. She then took several tablets to Gabrielle's school with appropriate instructions to give Gabrielle one tablet each day at 11:30 a.m. School officials administered a second dose at 11:30 as instructed. Unfortunately, the Rite Aid prescription did not contain Ritalin, but instead contained six milligram tablets of Glynase, an adult medication used to treat diabetes.

Shortly before 2:30 p.m., Gabrielle had a seizure. She lost consciousness and was taken by emergency service personnel to the hospital. She was in a hypoglycemic coma. She stayed in a coma for several hours and remained in the hospital overnight.

Gabrielle's doctors determined her coma was induced by her ingestion of Glynase. Glynase is a medication designed to lower blood sugar levels in adult diabetics. It is not prescribed for children at any dose, and a six milligram tablet is a high dosage, even for an adult.

According to doctors, while Gabrielle was in a hypoglycemic coma her blood sugar fell to a level at which her brain cells, particularly the gray cells of the cerebral cortex, began using their own proteins and lipids as fuel to avoid necrosis.¹ As a result, Gabrielle suffered permanent brain damage.

Experts opined at trial that Gabrielle's ability to learn has decreased since the incident, and she has not progressed academically or behaviorally at her previous rate of progress. She has fallen behind her peers despite extra help from her parents, tutors, and summer school. Evidence indicated that Gabrielle's ability to care for herself has also decreased. According to Gabrielle's parents, she can no longer manage personal hygiene without assistance. She cannot fully dress herself, and she is unable to manage clothing fasteners. She makes poor choices, endangering herself further. In addition to her brain injury, Gabrielle was described as suffering mental trauma, including major depression, post traumatic stress disorder, and separation anxiety disorder. At trial, Gabrielle was categorized for the first time as mentally retarded because of her brain injury.

The two actions were tried together beginning on October 7, 1996. During trial, the Hundleys' economist, Dr. Oliver Wood, was allowed to base his opinions as to the present value of future damages upon cost estimates contained in a Life Care Plan which was not admitted into evidence. The Plan included a $4,727,641 cost for institutionalized care for Gabrielle beginning at age twenty-one.

After the verdicts were rendered, Jones and Rite Aid made post trial motions for a new trial, new trial nisi remittitur, judgment notwithstanding the verdict, and for a review and reduction of the punitive damage award pursuant to Gamble v. Stevenson.² Testimony was taken as to the financial status of Rite Aid of South Carolina in connection with this review. This appeal is taken from a denial of all post trial motions.

Seeking clarity, we set forth the remaining facts necessary for our decision in connection with our discussion of the issues to which they pertain.

ISSUES

I. Did the trial court abuse its discretion in allowing expert opinion testimony under Rule 703, SCRE, as to the present value of future damages based upon hearsay evidence of cost?

II. Did the trial court abuse its discretion in denying a continuance to the defendants?

III. Does the inclusion of the $4,727,641 cost for managed care require reversal of the actual damage award?

IV. Should the award of punitive damages against Rite Aid be reversed because there is no clear and convincing evidence of gross negligence in the mis-filling of Gabrielle's prescription?

V. Is the verdict as to punitive damages inconsistent?

VI. Is the punitive damage award so excessive as to constitute a violation of due process?

LAW/ANALYSIS

I. RULE 703 TESTIMONY

The first issue raised by Jones and Rite Aid is that the trial court erred in allowing the Hundleys' economist, Dr. Wood, to include the $4,727,641 cost associated with future managed care in his computations and ultimate opinion. This figure was included in a Life Care Plan provided to Dr. Wood prior to trial. Although the plan was prepared by a nurse with a master's degree, certified as a rehabilitation care specialist, it was not admitted at trial and the nurse who prepared it did not testify.

Jones and Rite Aid assert that Rule 703 of the South Carolina Rules of Evidence does not permit the admission of this testimony. We disagree.

The admissibility of an expert's testimony is within the trial judge's sound discretion, whose decision will not be reversed absent an abuse of discretion. Payton v. Kearse, 329 S.C. 51, 495 S.E.2d 205 (1998).

Rule 703, SCRE, reads as follows:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

The defendants argue the trial court erred by allowing the expert, under the guise of Rule 703, to act as a "conduit" for inadmissible hearsay. They contend the figures were not the type of data relied upon by economists, but were instead foundational facts which must be separately proved. In this regard, they reason that Rule 703 is subservient to other Rules of Evidence.

Disposing of this latter assertion first, we note that generally under Rule 602, SCRE, "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." However, this rule specifically states that it is subject to Rule 703. Consequently, we do not find Rule 703 to be subservient, as argued by the defendants.

An expert witness may state an opinion based on facts not within his firsthand knowledge. State v. Hutto, 325 S.C. 221, 481 S.E.2d 432 (1997); Ellis v. Oliver, 323 S.C. 121, 473 S.E.2d 793 (1996); State v. Franklin, 318 S.C. 47, 456 S.E.2d 357 (1995); Creed v. City of Columbia, 310 S.C. 342, 426 S.E.2d 785 (1993); James v. Lister, 331 S.C. 277, 500 S.E.2d 198 (Ct.App.1998), cert. denied, March 5, 1999; Halbersberg v. Berry, 302 S.C. 97, 394 S.E.2d 7 (Ct.App.1990); Harris v. Campbell, 293 S.C. 85, 358 S.E.2d 719 (Ct.App.1987). He may base his opinion on information, whether or not admissible, made available to him before the hearing if the information is of the type reasonably relied upon in the field to make opinions. Halbersberg, 302 S.C. at 97, 394 S.E.2d at 7; see J. Dreher, A Guide to Evidence Law in South Carolina 20 (Thames Rev.1979). Also, an expert may testify as to matters of hearsay for the purpose of showing what information he relied on in giving his opinion of value. Halbersberg, 302 S.C. at 97, 394 S.E.2d at 7 (citing United States v. 5139.5 Acres of Land in Aiken and Barnwell Counties, 200 F.2d 659 (4th Cir.1952)). The admissibility of the testimony of an expert on a fact in issue is largely within the discretion of the trial court. Id., at 97, 394 S.E.2d at 7 (citing South Carolina Dept. of Soc. Servs. v. Bacot, 280 S.C. 485, 313 S.E.2d 45 (Ct.App.1984)).

Dr. Wood rendered his opinion as to the economic damages sustained by the Hundleys, which included the present value of future medical and related costs. To render his opinion, he relied upon cost information contained in the Life Care Plan. As to the costs associated with future care, he testified that he could have obtained the figures himself, but the information contained in the plan was of the type normally relied upon by experts in his field in rendering an opinion. Based upon this foundation, the trial court allowed the testimony. We see no abuse of discretion.

In this case, the contested cost components were not opinions of others. The information was easily ascertainable, and would have been no less...