Keus v. Brooks Drug, Inc.

• Decision Date: 05 August 1994
• Docket Number: No. 93-198,93-198
• Citation: 652 A.2d 475,163 Vt. 1
• Parties: Erica KEUS v. BROOKS DRUG, INC., and Peter Del Santo.
• Court: Vermont Supreme Court

Page 475

652 A.2d 475

163 Vt. 1

Erica KEUS v. BROOKS DRUG, INC., and Peter Del Santo.

No. 93-198.

Supreme Court of Vermont.

Aug. 5, 1994.

Motions for Reargument and to

Revise Mandate Denied Nov. 2, 1994.

Bradley D. Myerson, Manchester Center, for plaintiff-appellant.

Martha M. Smyrski of Ryan Smith & Carbine, Ltd., Rutland, for defendants-appellees.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

GIBSON, Justice.

Plaintiff Erica Keus appeals from a judgment for defendants after the jury found defendants guilty of negligence and breach of express warranty, but denied damages, for lack of proximate causation, for injuries suffered by plaintiff in a fall brought on by a drug she was given when pharmacist Peter Del Santo incorrectly filled a prescription. We reverse.

In November 1985, suffering from pain in her chest and a fever, plaintiff went to see Dr. Ronald Woodworth in Bennington. The doctor diagnosed an infection and prescribed Eryc, a form of the antibiotic Erythromycin. Plaintiff took the prescription to Brooks Pharmacy, where it was filled by defendant Del Santo. Del Santo, however, misread the handwriting on the prescription and filled it not with Eryc but with Esgic, a pain killer and sedative containing a barbiturate. Plaintiff did not notice the mistake. She took two of the pills before going to bed and two more pills the next morning. Because she felt queasy and "cloudy," plaintiff decided to take a shower. She fainted soon after stepping into the shower, and came to with a "stinging sensation" in her lower back, which she believes was caused by striking the water faucet when she fell. She returned to Dr. Woodworth's office and showed the medication to the receptionist. After a call to the pharmacy, the receptionist informed plaintiff that she had been given the wrong medication. She went again to the pharmacy, where Del Santo apologized for the mistake and gave her a bottle with the correct medication.

For about three weeks, plaintiff considered the mishap a "minor scrape and bruise," but when pain in her lower back continued she went to see Dr. Richard Fabricius, an orthopedist, who prescribed physical therapy. Plaintiff revisited Dr. Fabricius twice, and thereafter saw a number of different doctors, including a chiropractor, seeking relief from her pain. She was finally told in 1992 by Dr. Dudley Baker, an orthopedic surgeon, that her condition was probably permanent. In preparation for trial, she was seen and evaluated by a doctor for the defense, Dr. Raymond Kuhlmann, and, at the request of her own attorney, by Dr. Robert Van Uitert, a neurologist.

At trial, defendants presented no medical witnesses, relying instead on cross-examination of plaintiff and her medical witnesses. Drs. Van Uitert and Baker were of the opinion that plaintiff's lower back pain was due to the injury sustained when she fell in the shower. In addition, Dr. Van Uitert testified that in his opinion the fall was caused by the side effects of the drug Esgic, and that the fall would have occurred whether or not plaintiff had been in the shower. Dr. Baker testified that plaintiff's account was consistent with the injury he diagnosed.

On direct examination, plaintiff's counsel asked Dr. Van Uitert if he had based part of his history of plaintiff's injury on the reports of Dr. Fabricius, plaintiff's first treating doctor after the fall, and Dr. Kuhlmann, the defense's examining doctor. Dr. Van Uitert stated that he had. The crux of this appeal concerns the admission, during the cross-examination of Dr. Van Uitert, of the entire reports of Drs. Fabricius and Kuhlmann. Plaintiff's counsel objected, as follows:

MR. MYERSON: Well, Your Honor, these are inadmissible as pertaining to the findings and conclusions of each Doctor. The factual summaries and the findings are already in evidence, but I believe Rule 803 bars the conclusions and opinions of a non-testifying doctor as being hearsay. So we would object to those.

MR. MORGAN: These are medical records. Dr. Fabricius's are of a treating physician; Dr. Kuhlmann's of an examining physician. Both records are based--are the basis for some of the opinions given by the Doctor in this case. I think they are relevant. I think they are an exception to the hearsay rule. I don't think the plaintiff is entitled to extract what she pleases from these records. I think they would more fully explain to the jury the history and symptoms that the plaintiff exhibited.

MR. MYERSON: Your Honor--

THE COURT: It is appropriate by way of cross-examination that these be admitted.

Dr. Kuhlmann's report included the following statement: "I'm of the opinion that this patient has not incurred any partial permanent functional impairment to the spine related to the incident of the 21st November 1985." Further, the report stated that "[t]he cause of this patient's complaint other than the temporary one of back strain remain[s] obscure." Dr. Fabricius's report "advised against continued manipulations," referring to back manipulations performed by plaintiff's osteopath, Dr. Woodworth.

The jury's verdict was in the form of answers to special interrogatories, finding that (1) defendant Del Santo was negligent, (2) plaintiff was not contributorily negligent, (3) Del Santo's negligence was not the proximate cause of plaintiff's injury, (4) there was a breach of an express warranty by Del Santo to fill the prescription as presented, and (5) the breach of the express warranty was not the proximate cause of plaintiff's injury. As a result of its findings that the negligence and the breach of express warranty were not the proximate cause of plaintiff's injury, the jury assigned no damages.

Plaintiff moved for a new trial on the proximate cause and damages issues, claiming the trial court improperly admitted hearsay opinions and conclusions contained in the reports of the two nontestifying physicians. The court denied the motion. On appeal, plaintiff contends that the opinions and conclusions in the Kuhlmann report were inadmissible because (1) they were not "basis" evidence within the meaning of V.R.E. 703, and (2) use of the Kuhlmann and Fabricius opinions and conclusions as substantive evidence deprived her of a fair trial.

We review a ruling on a motion for a new trial for abuse of discretion, Hardy v. Berisha, 144 Vt. 130, 133, 474 A.2d 93, 95 (1984), and we review claims relating to the admission of evidence according to the same standard, see Gilman v. Towmotor Corp., 160 Vt. 116, 122, 621 A.2d 1260, 1263 (1992) (Court will not reverse trial court's decision to admit or exclude evidence "absent an abuse of discretion resulting in prejudice").

Vermont Rules of Evidence 703 ¹ and 705 ² control the definition and disclosure of the basis of expert opinion testimony.

Under [V.R.E.] 703, if an expert relies on the out-of-court statements of another in forming his or her opinion and if such statements are of a type reasonably relied on by experts in the particular field, then the statements--even if not independently admissible for their substance--will be admissible for the limited purpose of demonstrating the basis for the expert's opinion.

State v. Recor, 150 Vt. 40, 48, 549 A.2d 1382, 1388 (1988) (emphasis in original). On cross-examination, counsel may ask an opponent's expert to disclose the underlying facts or data on which an opinion is based. V.R.E. 705. Such disclosure may be useful to the jury in evaluating the expert's testimony. See State v. Senecal, 145 Vt. 554, 559, 497 A.2d 349, 352 (1985) (credibility and weight of expert testimony is matter for jury). While the latitude afforded the cross-examiner is wide, we have emphasized that basis evidence is admissible only for a limited purpose. State v. Goodrich, 151 Vt. 367, 376, 564 A.2d 1346, 1351 (1989) ("[E]vidence sought [under Rule 705] must either constitute facts underlying the expert's opinion, or tend to prove unreliability, prejudice or bias."). Only if the basis material is independently admissible under a hearsay exception may it be used substantively. Recor, 150 Vt. at 47, 549 A.2d at 1387.

Plaintiff contends that the reports of Dr. Kuhlmann and Dr. Fabricius included opinions or conclusions that were not "facts or data" relied upon by Dr. Van Uitert or Dr. Baker, and that were therefore not admissible under V.R.E. 703 to demonstrate the basis of either doctor's opinion. Plaintiff cites in support of her contention Dupona v. Benny, 130 Vt. 281, 291 A.2d 404 (1972), a case decided before the adoption of the Vermont Rules of Evidence. In Dupona, we reversed the trial court's admission of a physician's opinion that was based entirely on the reports of other doctors, because the physician was not testifying to a conclusion based on his own observations, but merely acting as a conduit for the opinions of others, thus making it "impossible to conduct an intelligent and effective cross-examination of the opinion itself." Id. at 286-87, 291 A.2d at 407-08.

Plaintiff asserts that neither doctor testified about the opinions or conclusions contained in the Kuhlmann and Fabricius reports or relied upon those reports other than to obtain a history of the injury. Further, plaintiff contends that Dr. Van Uitert could not have relied on those opinions or conclusions because they directly contradicted his own opinions. Defendants argue, however, that plaintiff's counsel "opened the door" to use of the opinions in the underlying reports when he asked Dr. Van Uitert if he had relied "on a particular doctor's diagnosis as to the source of pain or injury," to which Van Uitert replied that he used it "as information to come to a conclusion."

But it is clear from the record that Dr. Van Uitert was never questioned about the opinions and conclusions contained in either report, and that he did not rely on them; rather, he used the reports only for the purpose of obtaining a history of the injury. Accordingly, we agree with pla...