Kovach v. Alpharma, Inc.

Citation890 N.E.2d 55
Decision Date16 July 2008
Docket NumberNo. 49A04-0707-CV-406.,49A04-0707-CV-406.
PartiesJim KOVACH and Jill Kovach, Individually and on behalf of deceased minor child, Matthew Kovach, Appellants/Cross-Appellees-Plaintiffs, v. ALPHARMA, INC., Alpharma USPD, Inc., Anthony R. Catozzi, Catozzi Corporation, Pharmacy 1 Express, Dynarex Corporation, Medegen Holdings, LLC, Medegen Medical Products, LLC., Medegen, LLC., Medegen Vollrath Group, Vollrath Group, Inc., Premium Plastics, Inc., Micro-Biomedics, Inc., Doe Professional Corporation, Caligor Midwest, Caligor, Inc., and Henry Schein, Inc., Appellees/Cross-Appellants-Defendants.
CourtCourt of Appeals of Indiana

Stephen B. Caplin, Caplin Park, PC, Mark W. Sniderman, Sniderman Law Firm, Indianapolis, IN, Attorneys for Appellants.

Dina M. Cox, Lewis Wagner, LLP, John D. Nell, Matthew W. Adolay, Wooden & McLaughlin, LLP, Indianapolis, IN, Jeffrey Singer, Jason Kennedy, Keith J. Hays, Nancy S. Woodworth, Jill M. Felkins, Segal McCambridge Singer & Mahoney, Ltd., Chicago, IL, Attorneys for Appellees.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellants/Cross-Appellees-Plaintiffs, Jim Kovach (Jim) and Jill Kovach (Jill) (collectively, the Kovachs), individually and on behalf of their deceased minor child, Matthew Kovach (Matthew), appeal the trial court's Orders summarily granting summary judgment in favor of Appellees/Cross-Appellants-Defendants, Caligor Midwest, Caligor, Inc., Henry Schein, Inc., and Micro-Biomedics, Inc. (collectively, Caligor); Dynarex Corporation (Dynarex); Medegen Holdings, LLC, Medegen Medical Products, LLC, Medegen, LLC, Medegen Vollrath Group, and Vollrath Group, Inc. (collectively, Medegen); and Premium Plastics, Inc. (Premium) (all Appellees/Cross-Appellants-Defendants collectively, Cup Defendants).1

We affirm in part, reverse in part, and remand for further proceedings.

ISSUE

The Kovachs raise one issue on appeal, which we restate as follows: Whether the trial court erred by entering summary judgment in favor of the Cup Defendants. On cross-appeal, the Cup Defendants raise one issue, which we restate as follows: Whether the trial court erred by denying the Cup Defendants' Motion to Exclude the opinion testimony of the Kovachs' expert.

FACTS AND PROCEDURAL HISTORY

On August 8, 2002, Matthew, a nine-year-old child, was admitted to Surgicare, LLC (Surgicare) to undergo a scheduled adenoidectomy. While he recovered in the Post-Anesthesia Care Unit (PACU) of the ambulatory surgery center, Nurse Stormie Cummings Robinette (Nurse Robinette) administered Capital of Codeine, an opiate, to Matthew. To administer the drug, Nurse Robinette used a graduated medicine cup (the Cup), manufactured and/or sold by the Cup Defendants. The Cup is made of flexible translucent plastic which is not completely clear and denotes various volume measurement graduation markings, including milliliters (ml), drams, ounces, teaspoons, tablespoons, and cubic centimeters. These measurement markers are located on the interior surface of the Cup and have a similar translucency as the Cup. The vertical distance between the ml volume graduation markings varies: the smallest volume of ml measurement for the graduations between empty and 10ml is 2.5ml; while the smallest volume of ml measurement for the graduations between 10ml and 30ml is 5ml. The Cup holds 30ml or more of medicine when full.

Matthew was prescribed 15ml, or one-half of the Cup's volume, of Capital of Codeine. Although Nurse Robinette stated that she gave Matthew only 15ml of Codeine, Jim, who was in the room at the time, testified that the Cup was completely full. Matthew drank all of the medicine in the Cup. At 11:20 a.m., he was discharged from Surgicare. Later that day, after arriving home, Matthew went into respiratory arrest. He was transported to Bloomington Hospital, where he was pronounced dead of asphyxia due to an opiate overdose. The autopsy revealed that Matthew's blood contained between 280 and 344 nanograms per ml of Codeine, more than double the recommended therapeutic level of the drug.

On July 2, 2004, the Kovachs filed their Complaint against the Cup Defendants, which they amended on May 19, 2005. In their Amended Complaint, they assert a breach of the implied warranty of merchantability and the implied warranty of fitness for a particular purpose under the Uniform Commercial Code (UCC) and they claim strict liability in tort and negligence under the Product Liability Act. Between July 26, 2005, and February 6, 2006, each of the Cup Defendants filed motions for summary judgment. On May 1, 2006, the Kovachs filed their Memorandum in Opposition of Summary Judgment and Designation of Evidence. Included in their designated of evidence was the affidavit of the expert witness, James T. O'Donnell (O'Donnell), a pharmacist. On August 4, 2006, the Cup Defendants filed a Motion to Exclude the Kovachs' expert witness. In its Order of June 29, 2007, the trial court granted the Cup Defendants' respective motions for summary judgment and denied the Cup Defendants' motion to exclude O'Donnell's testimony.

The Kovachs now appeal the trial court's grant of summary judgment. The Cup Defendants cross appeal the trial court's denial of their motion to exclude the expert witness. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

On appeal, the Kovachs contend that the trial court erred in entering summary judgment in favor of the Cup Defendants. The Cup Defendants dispute the Kovachs' contentions and additionally initiate a cross appeal asserting that the trial court erred by denying the Cup Defendants' Motion to Exclude the opinion testimony of the Kovachs' expert. Because part of the designated evidence relied upon by the Kovachs in their opposition to the Cup Defendants motions for summary judgment consists of O'Donnell's affidavit, we will first review the Cup Defendants' cross appeal.

I. Cross-Appeal

On cross-appeal, the Cup Defendants contend that the trial court erred by denying the Cup Defendants' Motion to Exclude the opinion testimony of the Kovachs' expert. Generally, they argue that O'Donnell's opinions are speculative, unreliable, and not relevant to the issues at hand.

The Kovachs, as part of their designated evidence, submitted an eleven-page affidavit of O'Donnell in which he describes the particular characteristics of the Cup and formulates several opinions, including that the Cup is defective and unreasonably dangerous as a volume measuring device to administer medications to children and that a cause of Matthew's overdose and subsequent death was the lack of fitness and defective condition of the Cup. In turn, the Cup Defendants submit, in a separate appendix, O'Donnell's deposition testimony. In his deposition, O'Donnell testified to the method used to reach his opinions.

Ind. Evidence Rule 702, the evidentiary rule concerning expert testimony, provides as follows:

(a) if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

(b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.

Thus, an expert must be qualified by knowledge, skill, experience, training or education. Fueger v. Case Corp., 886 N.E.2d 102, 104 (Ind.Ct.App.2008); Lytle v. Ford Motor Co., 814 N.E.2d 301, 308 (Ind.Ct.App.2004), reh'g denied, trans. denied. Furthermore, an expert must have sufficient skill in the particular area of expert testimony before an opinion may be offered in that area. Lytle, 814 N.E.2d at 308. An expert in one field of expertise cannot offer opinions in other fields absent a requisite showing of competency in that other area. Id.

The proponent of the expert testimony bears the burden of establishing the foundation and reliability of the scientific principles and tests upon which the expert's testimony is based. Id. Where an expert's testimony is based upon the expert's skill or expertise rather than on the application of scientific principles, the proponent of the testimony must only demonstrate that the subject matter is related to some field beyond the knowledge of lay persons and the witness possesses sufficient skill, knowledge or experience in the field to assist the trier of fact to understand the evidence or to determine a fact in issue. Id. at 308-09. However, when the expert's testimony is based upon scientific principles, the proponent of the testimony must also establish that the scientific principles upon which the testimony rests are reliable. Id. at 309.

The trial court's function under Evid. R. 702, therefore, is as gatekeeper, ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Id. When expert scientific testimony is proffered, the court must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology can be applied to the facts at issue. Id. Scientific knowledge, to be admissible, must be more than subjective belief or unsupported speculation. Id. Expert testimony, consequently, must be supported by appropriate validation or "good grounds" based on what is known, establishing a standard of evidentiary reliability. Id.

Whether a theory or technique can be empirically tested is one question that will assist in determining whether the scientific knowledge will assist the trier of fact. Id. Another factor is whether the theory or technique has been subjected to peer review and publication. Id. Widespread acceptance or, conversely, minimal support can be weighty factors in the determination of whether certain evidence is admissible under Evid. R. 702. Again, these factors, while useful do not...

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