Swallow v. EMERGENCY MEDICINE OF IDAHO

• Decision Date: 02 April 2003
• Docket Number: No. 27997.,27997.
• Citation: 138 Idaho 589,67 P.3d 68
• Court: Idaho Supreme Court
• Parties: David SWALLOW and Anne Swallow, husband and wife, Plaintiffs-Appellants, v. EMERGENCY MEDICINE OF IDAHO, P.A., an Idaho professional corporation; William H. Blahd, M.D., an individual, Defendants-Respondents, and St. Luke's Regional Medical Center, Ltd., a general non-profit corporation; Idaho Emergency Physicians, P.A., an Idaho professional corporation; Donald E. Walker, M.D., P.A., a professional association; and John Does 1 through 10, inclusive, Defendants.

67 P.3d 68

138 Idaho 589

David SWALLOW and Anne Swallow, husband and wife, Plaintiffs-Appellants, v. EMERGENCY MEDICINE OF IDAHO, P.A., an Idaho professional corporation; William H. Blahd, M.D., an individual, Defendants-Respondents, and St. Luke's Regional Medical Center, Ltd., a general non-profit corporation; Idaho Emergency Physicians, P.A., an Idaho professional corporation; Donald E. Walker, M.D., P.A., a professional association; and John Does , inclusive, Defendants.

No. 27997.

Supreme Court of Idaho, Boise, January 2003 Term.

April 2, 2003.

Law Offices of Scot M. Ludwig, Boise, for appellants. Daniel A. Miller argued.

Hall, Farley, Oberrecht & Blanton, P.A., Boise, for respondents. Richard E. Hall and Kevin J. Scanlan argued.

EISMANN, Justice.

This is an appeal from a judgment dismissing the Plaintiffs' complaint on motion for summary judgment after the district court ruled that the Plaintiffs' expert testimony regarding causation was inadmissible. We affirm.

I. FACTS AND PROCEDURAL HISTORY

On June 4, 1997, plaintiff-appellant David Swallow went to the emergency room at St. Luke's Regional Medical Center in Boise, Idaho, where Dr. William S. Blahd treated him for a prostate gland infection. While treating Mr. Swallow, Dr. Blahd consulted with a urologist, who recommended that Mr. Swallow be prescribed the antibiotic Ciprofloxacin (Cipro) to be taken at the rate of 1500 milligrams per day (either 750 milligrams twice a day or 500 milligrams three times a day). Dr. Blahd administered an intravenous loading dose of Cipro to Mr. Swallow in the emergency room, and then gave him a prescription for Cipro. When writing the prescription, Dr. Blahd incorrectly directed that Swallow take three 500-milligram tablets three times a day rather than one 500-milligram tablet three times a day. Mr. Swallow filled the prescription at the hospital's outpatient pharmacy and went home.

At approximately 11:00 a.m. on June 5, 1997, Mr. Swallow took three 500-milligram Cipro tablets as prescribed and then went to the urologist's office for an appointment. After seeing the urologist, Mr. Swallow and his wife drove to a family member's home to visit. Later that day, at approximately 3:30 p.m., while driving back home to Idaho City, Mr. Swallow began experiencing chest tightness and nausea. After they arrived home, Mrs. Swallow telephoned for medical assistance, and approximately one hour later Mr. Swallow was flown by helicopter to St. Luke's Regional Medical Center, where he was diagnosed as having suffered a myocardial infarction (heart attack).

On June 2, 1999, the Swallows filed this action to recover damages resulting from Mr. Swallow's heart attack. This action was ultimately dismissed as to all defendants except Emergency Medicine of Idaho, P.A., and Dr. Blahd (herein jointly called "Dr. Blahd"). In order to show that the heart attack was caused by an overdose of Cipro, the Swallows retained Dr. Carl Tommaso, a cardiologist, and Dr. Catherine Heyneman, a pharmacologist, as expert witnesses. In their depositions, they both testified that in their opinions the overdose of Cipro caused Mr. Swallow's heart attack.

On May 30, 2001, Dr. Blahd moved to exclude opinion testimony from Dr. Tommaso that Cipro caused Mr. Swallow's heart attack, statements about Cipro contained in the Physician's Desk Reference (PDR), and evidence regarding adverse reaction reports from the Food and Drug Administration (FDA) regarding Cipro. The basis of the motion was that there was no scientific evidence that Cipro could cause a heart attack. The district court heard the motion, and on June 21, 2001, issued a memorandum decision and order granting the motion.

Dr. Blahd then filed a motion for summary judgment, and the Swallows filed a motion asking the district court to reconsider its ruling. In connection with his motion for summary judgment, Dr. Blahd argued that Dr. Heyneman's opinion testimony was likewise inadmissible for the same reasons that Dr. Tommaso's opinion testimony had been ruled inadmissible. The district court agreed and granted Dr. Blahd's motion for summary judgment on the ground that there was no admissible evidence showing that the Cipro could cause a heart attack. The district court also denied the Swallow's motion to reconsider its prior ruling excluding the opinion testimony of Dr. Tommaso, the references to Cipro in the PDR, and the adverse reaction reports. On October 25, 2001, the district court entered judgment dismissing this action, and on November 20, 2001, the Swallows timely filed a notice of appeal. On November 6, 2001, Dr. Blahd filed a memorandum of costs in which he sought $6,162.64 in costs as a matter of right and $7,227.21 in discretionary costs. The Swallows timely objected to the costs claimed, and on January 29, 2002, the district court entered its order awarding costs as a matter of right in the sum of $4,662.64 and discretionary costs in the sum of $6,462.80. On January 30, 2002, the Swallows filed an amended notice of appeal, and on February 5, 2002, they filed a second amended notice of appeal in which they added the order awarding costs as an additional issue on appeal.

II. ISSUES ON APPEAL

A. Did the district court abuse its discretion in excluding from evidence the opinion testimony of Dr. Tommaso, the information about Cipro contained in the PDR, and the Food and Drug Administration adverse incident reports?

B. Did the district court abuse its discretion in excluding from evidence the opinion testimony of Dr. Heyneman?

C. Did the district court err in granting Dr. Blahd's motion for summary judgment?

D. Did the district court abuse its discretion in awarding discretionary costs?

E. Are the Swallows entitled to an award of attorney fees on appeal?

III. ANALYSIS

A. Did the District Court Abuse Its Discretion in Excluding from Evidence the Opinion Testimony of Dr. Tommaso, the Information About Cipro Contained in the PDR, and the Food and Drug Administration Adverse Incident Reports?

Rule 702 of the Idaho Rules of Evidence states: "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." This rule provides the appropriate test for measuring the reliability of evidence. State v. Merwin, 131 Idaho 642, 962 P.2d 1026 (1998).

The admissibility of expert testimony is a matter committed to the discretion of the trial court, and the court's ruling will not be overturned absent an abuse of that discretion. Clark v. Klein, 137 Idaho 154, 45 P.3d 810 (2002). When reviewing an alleged abuse of discretion by the trial court, our sequence of inquiry is: (1) whether the trial court correctly perceived the issue as one of discretion; (2) whether the trial court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) whether the trial court reached its decision by an exercise of reason. State v. Merwin, 131 Idaho 642, 962 P.2d 1026 (1998); Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 803 P.2d 993 (1991).

1. Did the District Court Abuse Its Discretion in Excluding from Evidence the Opinion Testimony of Dr. Tommaso? The

issue in this case is whether the trial court has the discretion to determine whether or not there is a scientific basis for an expert's opinion regarding scientific knowledge. The Swallows argue that the trial court has discretion to determine whether or not a witness is qualified as an expert regarding the scientific matters about which the witness is asked to testify, but the trial court does not have discretion to determine whether or not there is a scientific basis for the expert's opinion. We disagree.

To be admissible, the expert's testimony must assist the trier of fact to understand the evidence or to determine a fact in issue. An expert opinion that is speculative or unsubstantiated by facts in the record is inadmissible because it would not assist the trier of fact to understand the evidence or determine a fact that is at issue. Bromley v. Garey, 132 Idaho 807, 979 P.2d 1165 (1999). When the expert's opinion is based upon scientific knowledge, there must likewise be a scientific basis for that opinion. If the reasoning or methodology underlying that opinion is not scientifically sound, then the opinion will not assist the trier of fact to understand the evidence or determine a fact in issue. The foundation for the admission of opinion testimony based upon scientific knowledge includes both that the witness is an expert in the field and that there is a scientific basis for the expert's opinion. State v. Faught, 127 Idaho 873, 908 P.2d 566 (1995) (admission of expert opinion testimony linking defendant to crime based upon DNA evidence was upheld where witness was qualified as an expert witness in the field and the statistical base used in determining the frequency of a random DNA match was scientifically reliable); State v. Gleason, 123 Idaho 62, 844 P.2d 691 (1992) (foundation for admission of opinion testimony regarding horizontal gaze nystagmus (HGN) test required showing that HGN test was scientifically reliable and that witness was qualified to testify regarding the test and administering it to the defendant); State v. Rodgers, 119 Idaho 1047, 812 P.2d 1208 (1991) (admission of testimony regarding the interpretation of blood splatter evidence upheld where evidence showed that blood splatter analysis was a well-recognized discipline based upon the laws of physics and that the witnesses were sufficiently qualified to testify as experts regarding blood splatter evidence). Because the trial court has the discretion to determine whether a proper foundation has been laid for the admission of expert testimony, ...