Morsicato v. Sav-On Drug Stores, Inc.

Decision Date26 May 2005
Docket NumberNo. 41879.,41879.
Citation121 Nev. 153,111 P.3d 1112
PartiesAndrew MORSICATO and Concetta Morsicato, Husband and Wife, Appellants, v. SAV-ON DRUG STORES, INC., A Delaware Corporation, Respondent.
CourtNevada Supreme Court

Harrison Kemp & Jones, LLP, and Artemus W. Ham IV and J. Randall Jones, Las Vegas, for Appellants.

Beckley Singleton, Chtd., and Joel D. Henriod and Daniel F. Polsenberg, Las Vegas, for Respondent.

Before ROSE, GIBBONS and HARDESTY, JJ.

OPINION

PER CURIAM.

Andrew Morsicato and Concetta Morsicato appeal from a final judgment of the district court, following a jury verdict, of no liability in a pharmacy malpractice action. The Morsicatos challenge the district court's admission of expert testimony that failed to conform to the reasonable degree of medical probability standard. We take this opportunity to clarify our holding in Banks v. Sunrise Hospital1 and confirm that medical expert testimony on the issue of causation must be stated to a reasonable degree of medical probability. Because, in this case, the testimony did not conform to this standard, we reverse the district court's judgment.

FACTS

After suffering rash-like symptoms, Andrew Morsicato was diagnosed with scabies. His dermatologist prescribed lindane lotion, an extremely potent neurotoxin lotion used as an insecticide to treat scabies. The dermatologist wrote two prescriptions for the lotion, one for Mr. Morsicato and one for his wife, as scabies is highly contagious to members of the same household.

Morsicato presented both prescriptions to Sav-On Drug Stores for filling and received two bottles of lindane, each with different application instructions. Morsicato's prescription correctly indicated the lotion should be applied at bedtime and washed off after 12 hours. The label on his wife's prescription displayed flawed instructions, directing application of the lotion every 12 hours. Sav-On's pharmacy expert admitted that Sav-On improperly labeled the wife's prescription bottle by directing lindane application every 12 hours.

Morsicato used his wife's prescription, applying the lotion every 12 hours for several days. Following multiple applications of the lotion, Morsicato began experiencing pain and significant skin irritation. Morsicato returned to his primary treating physician with boils, blisters, redness, and extreme pain on those areas where he had applied the lotion. Several physicians evaluated Morsicato and concluded that his injuries were linked to overexposure to lindane.

The Morsicatos sued Sav-On claiming that multiple applications of lindane caused Morsicato's permanent injuries. Because Sav-On admitted to improperly labeling the bottle, the district court granted a directed verdict in favor of the Morsicatos on the issue of Sav-On's negligence. The issues of causation, comparative negligence, and damages remained for the jury.

Prior to jury selection, the district court informed all parties that it was using a lottery system to select alternate jurors. In the lottery system, a total of ten jurors were seated in the jury box for the trial, and after closing argument but before deliberation, two alternate jurors were chosen by random drawing. Under this selection process, any two of the ten jurors could have been selected to be the alternate jurors. The record reveals the Morsicatos' counsel acquiesced in the district court's suggested process.

During trial, the jurors considered causation evidence. The Morsicatos presented several experts, who testified to a reasonable degree of medical probability that Morsicato's injuries were caused by the lindane lotion. Sav-On offered only the testimony of a neurologist, Dr. Michael Schneck. Dr. Schneck acknowledged the theory that lindane exposure caused Morsicato's injuries, but he opined that other theories, including an autoimmune response, could explain the injury. After counsel objected to the speculative nature of Dr. Schneck's testimony, the court explained that medical opinions regarding causation must state that the particular form of causation was more likely than not, or more than 50 percent likely. Dr. Schneck then testified that his autoimmune theory was not more likely than other causes but that he would rank that theory as the most likely medical cause. Dr. Schneck acknowledged that his ranking of possible causes was inconsistent with Nevada's evidentiary standard. Again, the court explained the standard, clarifying that the opinion must be more than 50 percent likely or the court would strike the testimony. Dr. Schneck then stated that the autoimmune phenomenon was the most likely cause.

The jury returned a unanimous verdict, finding that Sav-On's negligence did not cause Morsicato's skin condition. The judgment was then entered based on this verdict. The Morsicato's filed a motion for new trial and a motion for judgment notwithstanding the verdict (JNOV), which the district court denied in a subsequent order.2

DISCUSSION

Admissibility of expert testimony

The Morsicatos argue Dr. Schneck's expert testimony on causation was speculation and conjecture that failed to meet the requisite standard for expert testimony and therefore should have been stricken. We agree.

A district court's decision to admit expert testimony is reviewed for an abuse of discretion.3 The district court's decision will not be overturned absent "a clear abuse of discretion."4

NRS 50.275 provides that "a witness qualified as an expert by special knowledge, skill, experience, training or education may testify to matters within the scope of such knowledge." In United Exposition Service Co. v. SIIS, we concluded that an "award of compensation cannot be based solely upon possibilities and speculative testimony."5 In that case, which involved the payment of workers' compensation benefits after an industrial injury, we held that "physician[s] must state to a degree of reasonable medical probability that the condition in question was caused by the industrial injury, or sufficient facts must be shown so that the trier of fact can make the reasonable conclusion that the condition was caused by the industrial injury."6 The speculative nature of an opinion that an injury possibly could have been a precipitating factor was insufficient to support a finding of causation; specifically, we stated, "A possibility is not the same as a probability."7

Sav-On argues that even though Dr. Schneck's testimony was not made to a reasonable degree of medical probability, it was nevertheless admissible under the general standard of NRS 50.275 because it did not address an ultimate finding of fact.

Not all medical expert testimony must be stated with a reasonable degree of medical probability. The standard for admissibility varies depending upon the expert opinion's nature and purpose.

In Banks v. Sunrise Hospital, this court considered the contention that the district court erred in admitting expert medical opinion testimony.8 During trial, the medical expert...

To continue reading

Request your trial
40 cases
  • Leavitt v. Siems
    • United States
    • Nevada Supreme Court
    • 10 Julio 2014
    ...to “ ‘a reasonable degree of medical probability.’ ” 127 Nev. at ––––, 262 P.3d at 367–68 (quoting Morsicato v. Sav–On Drug Stores, Inc., 121 Nev. 153, 157, 111 P.3d 1112, 1115 (2005)). We explained that the application of the reasonable-degree-of-medical-probability standard hinges on the ......
  • Price v. State, 64281
    • United States
    • Nevada Supreme Court
    • 29 Septiembre 2017
    ...testimony is reviewed for an abuse of discretion and will not be overturned absent "clear abuse." Morsicato v. Sav-On Drug Stores, Inc., 121 Nev. 153, 157, 111 P.3d 1112, 1115 (2005). Dr. Naik testified within the scope of her expertise. The notice described Dr. Naik as a "medical expert" w......
  • Williams v. the Eighth Judicial Dist. Court of State
    • United States
    • Nevada Supreme Court
    • 28 Julio 2011
    ...causation theories must meet the “reasonable degree of medical probability” standard set forth in Morsicato v. Sav–On Drug Stores, Inc., 121 Nev. 153, 155, 111 P.3d 1112, 1114 (2005). We conclude that a nurse can testify regarding matters within his or her specialized area of practice, but ......
  • Kerns v. Hoppe
    • United States
    • Nevada Supreme Court
    • 21 Marzo 2012
    ...injury or disease and standard of care must be stated to a reasonable degree of medical probability. Morsicato v. Sav–On Drug Stores, Inc., 121 Nev. 153, 158, 111 P.3d 1112, 1116 (2005).“The courts are reluctant to grant summary judgment in negligence cases because foreseeability, duty, pro......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT