Walter v. Wal-Mart Stores, Inc.

• Decision Date: 12 April 2000
• Parties: Antoinette WALTER v. WAL-MART STORES, INC.
• Court: Maine Supreme Court

748 A.2d 961

2000 ME 63

Antoinette WALTER v. WAL-MART STORES, INC.

Supreme Judicial Court of Maine.

Argued January 5, 2000.

Decided April 12, 2000.

Steven D. Silin (orally), Paul F. Macri, Berman & Simmons, P.A., Lewiston, for plaintiff.

James M. Bowie (orally), Elizabeth K. Peck, Mark V. Franco, Thompson & Bowie, Portland, for appellant.

Before WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER and CALKINS, JJ.

CALKINS, J.

[¶ 1] Wal-Mart Stores, Inc. appeals from a judgment entered in the Superior Court (Knox County, Marsano, J.) following a jury trial awarding damages to Antoinette Walter in the amount of $550,000 for her claim of pharmacist malpractice. Wal-Mart contends that the Superior Court erred in (1) granting Walter's motion for judgment as a matter of law on liability; (2) denying Wal-Mart's motion for judgment as a matter of law; and (3) denying Wal-Mart's motion for mistrial following comments by Walter's attorney during closing argument. Wal-Mart also appeals on the ground that the jury verdict was excessive and the result of bias and prejudice. We affirm the judgment.

I. FACTS

[¶ 2] Walter, an eighty-year-old resident of Rockland, was diagnosed with a type of cancer which attacks the lymphatic system. Dr. Stephen Ross, Walter's treating physician and a board-certified oncologist, termed her condition treatable with the proper medication. Dr. Ross prescribed Chlorambucil, a chemotherapy drug, for Walter. On the prescription slip, he explicitly called for Chlorambucil, the generic name, because he feared that the drug's brand name, Leukeran, could be confused with other drugs with similar trade names.

[¶ 3] Walter took the prescription for Chlorambucil to the pharmacy in the Wal-Mart store in Rockland on May 7, 1997. Henry Lovin, a Maine licensed pharmacist and an employee of Wal-Mart, was on duty at the pharmacy. Instead of giving Walter Chlorambucil, as called for in the prescription, Lovin gave her a different drug with the brand name of Melphalen. The generic name for Melphalen is Alkeran. Lovin did not speak with Walter at the time he filled the prescription, but he provided her with an information sheet which described the effects of Melphalen. Melphalen is also a chemotherapy drug, but it is a substantially more powerful medication than Chlorambucil. Melphalen is typically given in smaller doses over shorter periods of time than is Chlorambucil, and doctors monitor it more closely. Melphalen has a very toxic effect on the body, and it substantially suppresses bone marrow. It has a longer life in the body than Chlorambucil, which means that any side effects from it last longer.

[¶ 4] To the extent that Walter noticed that the information sheet and bottle label read Melphalen, it did not make an impression on her. She assumed that the drug she had been given was the same as Dr. Ross had prescribed, and she began taking the prescribed dosage. Within seven to ten days of starting the drug treatment, Walter began to suffer from nausea and lack of appetite. When she referred to the information sheet, Walter saw that such side effects are common for chemotherapy drugs. She continued to take the Melphalen. During the third week after starting the medication Walter noticed bruises on her arms and legs, and during the fourth week she developed a skin rash on her arms and legs. Although the information sheet warned that bruises and rashes should prompt a call to the doctor, Walter waited a few days before attempting to contact Dr. Ross.

[¶ 5] Dr. Ross testified at trial that his notes indicated that Walter should have had blood tests two weeks after starting medication and that she was to have scheduled an appointment with him within four weeks of beginning the medication. He also testified that because Chlorambucil is slow-acting, he does not insist that his patients have blood tests done in fourteen days but only that they have blood work periodically. Walter testified that she understood she was to have a follow-up appointment with Dr. Ross in four weeks and blood tests sometime before that appointment.

[¶ 6] On the twenty-third day after starting the medication, Walter had blood tests done. She attempted to reach Dr. Ross by phone to tell him about the side effects, but she was unsuccessful until June 3, 1997. On that day Dr. Ross told her that her blood levels were low and to stop taking the medication immediately. He scheduled an appointment for June 5. Walter, however, was rushed to the hospital later in the day on June 3 when she suffered gastrointestinal bleeding. Following her emergency admission, Walter remained in the hospital five weeks and received numerous blood transfusions. She suffered several infections, and a catheter was placed in her chest. The bruising and skin rash continued. For a period of time she was unable to eat because of bleeding gums and an infection in her mouth. Because of her weakened immune system, Walter's visitors could not come within ten feet of her.

[¶ 7] Prior to receiving the Melphalen, Walter lived independently and was active. Following her hospital discharge on July 7, 1997, she was physically weak. She initially had to make daily trips to the hospital and later went less frequently. She had to have additional transfusions after she left the hospital. Melphalen did have the effect of causing her cancer to go into remission. Walter's total medical bills for her treatment came to $71,042.63.

[¶ 8] The two-day jury trial was held in February 1999. Wal-Mart moved for judgment as a matter of law at the close of Walter's case on the grounds that she had failed to present expert testimony on the standard of care by pharmacists, and the motion was denied. At the close of the evidence Walter moved for a judgment as a matter of law, and the court granted Walter's motion concluding that she was entitled to judgment on liability. During Walter's closing argument, Wal-Mart moved for a mistrial arguing that certain comments by Walter's counsel were improper, and the motion was denied. The jury awarded Walter $550,000 in damages. Wal-Mart's post-trial motion for judgment as a matter of law or a new trial was denied.

II. WALTER'S MOTION FOR JUDGMENT ON LIABILITY

[¶ 9] The court granted Walter's motion for judgment on the issue of liability. "In reviewing a trial court's disposition of a motion for judgment as a matter of law, we view the evidence together with all justifiable inferences in the light most favorable to the party opposing the motion." Lewis v. Knowlton, 1997 ME 12, ¶ 6, 688 A.2d 912, 913. If a reasonable view of the evidence would sustain a verdict for the nonmoving party, the motion must be denied. See id.

[¶ 10] The effect of the court's grant of Walter's motion was a determination, as a matter of law, that Wal-Mart had a duty to Walter which it breached; that breach caused Walter harm; and Walter was not negligent—or if she was negligent, her negligence did not proximately cause her harm. The only issue left for the jury was the amount of damages caused by Wal-Mart's negligence and whether those damages should be reduced because of any action or inaction by Walter to take reasonable steps to reduce the extent of her injuries.

A. Wal-Mart's Representations to the Jury

[¶ 11] Wal-Mart argues that the court erred in granting Walter's motion for judgment as a matter of law because it should have submitted the issues of negligence, proximate cause, and comparative negligence to the jury. Walter contends that Wal-Mart judicially admitted liability in its opening statement to the jury. The clear import of Wal-Mart's opening statement was that liability was not an issue, and the only question that the jury would have to decide was the amount of damages.¹ [¶ 12] Statements made by counsel during an opening statement or closing argument can result in a judicial admission. See Kohne v. Yost, 250 Mont. 109, 818 P.2d 360, 362 (1991)

. In order to be considered a judicial admission the statements must be deliberate, clear, and unambiguous. See MacDonald v. General Motors Corp., 110 F.3d 337, 340 (6th Cir. 1997). When made in an opening statement, the alleged judicial admission must be considered in the context of the entire statement. See Lowe v. Kang, 167 Ill. App.3d 772, 118 Ill.Dec. 552, 521 N.E.2d 1245, 1247 (1988). The statement must be unequivocal and pertain to a factual matter. See Larson v. A.T.S.I., 859 P.2d 273, 276 (Colo.App.1993).

[¶ 13] Wal-Mart's opening statement admitted the error made by its pharmacist in filling the prescription but because negligence consists of both law (whether a duty exists and what that duty is) and facts (whether the duty was breached), there was no judicial admission of negligence. Furthermore, the statement taken in its entire context, does not contain an unequivocal admission that the mistake in filling the prescription caused Walter's harm. While Wal-Mart appears to concede that there was no fault on the part of Walter, the mention of the delay in obtaining the blood test renders the concession ambiguous. For these reasons, we cannot conclude that there was a judicial admission that Wal-Mart was liable for Walter's damages.

B. Wal-Mart's Negligence

[¶ 14] Walter had the burden to prove that Wal-Mart, through its pharmacist employee, owed a duty to Walter that it breached, thereby causing her harm. In Tremblay v. Kimball, 107 Me. 53, 77 A. 405 (1910), we held that pharmacists owe their customers a duty of ordinary care, but that "ordinary care" for a pharmacist means that "the highest practicable degree of prudence, thoughtfulness, and vigilance and the most exact and reliable safeguards" must be taken. Id. at 58, 77 A. at 408.

[¶ 15] Lovin, the Wal-Mart pharmacist, readily admitted that he made an error in filling Walter's prescription. He testified that he thought that the brand name for Chlorambucil was Alkeran, and he filled the prescription with Alkeran, which is Melphalen....