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CONSTANCE L. MCDANIEL v. MERCK (09/15/87)

filed: September 15, 1987.

CONSTANCE L. MCDANIEL, AS ADMINISTRATRIX OF THE ESTATE OF CAROL M. LEE, AND ON BEHALF OF PAUL T. LEE, A MINOR AND ELIZABETH R. LEE, APPELLANTS,
v.
MERCK, SHARP & DOHME, THE WESTERN PENNSYLVANIA HOSPITAL, KENNETH MELANI, M.D., LESTER A. DUNMIRE, M.D., JOHN H. GOODWORTH, M.D., TIMOTHY KAVIC, M.D. AND PAUL KIM, M.D., APPELLEES



Appeal from the Order entered December 31, 1985 in the Court of Common Pleas of Allegheny County, Civil No. GD83-11505

COUNSEL

Frank M. McClellan, Pittsburgh, for appellants.

Raymond G. Hasley, Pittsburgh, for Merck, Sharp & Dohme, appellees.

John C. Conti, Pittsburgh, for Western Pennsylvania Hosp. and Melani, Kavic and Kim, appellees.

John W. Jordan, IV, Pittsburgh, for Dunmire and Goodworth, appellees.

Del Sole, Kelly and Popovich, JJ.

Author: Kelly

[ 367 Pa. Super. Page 604]

In this trespass action, plaintiff-appellant, Constance L. McDaniel, as Administratrix of the Estate of Carol M. Lee, appeals from an order of the Court of Common Pleas of Allegheny County denying her post-trial motions for the removal of a compulsory non-suit and judgment n.o.v. as to appellee, Merck, Sharp & Dohme (hereinafter Merck), and denying motions for a new trial and judgment n.o.v. as to appellees, Dr. John H. Goodworth, Dr. Timothy Kavic, and Western Pennsylvania Hospital (hereinafter West Penn). We reverse and remand this case to the Court of Common Pleas of Allegheny County for a new trial and for removal of the non-suit.

Although the legal issues presented will require extended discussion, the underlying facts may be briefly stated. On February 25, 1982, decedent, Carol M. Lee, visited appellee West Penn's emergency room complaining of a sore throat. She was diagnosed as having streptococal pharyngitis, received treatment, and was discharged. Nonetheless, her condition worsened and she returned to the hospital on February 28, 1982.

Decedent was diagnosed by appellee, Dr. Kavic (a surgical resident at West Penn), as having acute appendicitis. Decedent was admitted for surgery and put under the supervision of the hospital's surgery staff. The attending physician on that date was Dr. Dunmire.*fn1 Blood studies were ordered, and the first dose of the antibiotic Mefoxin was prescribed by Dr. Kim,*fn2 and administered.*fn3 Mefoxin,

[ 367 Pa. Super. Page 605]

    also referred to as Cefoxitin, is an antibiotic belonging to a group of drugs known as cephalosporins. It is a registered trademark of Merck and is registered with the United States Food and Drug Administration.

By noon, decedent was anemic.*fn4 Following an appendectomy performed by Dr. Dunmire on the evening of February 28, Mefoxin was again administered. Because the supervising physician is generally assigned to the surgery staff for only a thirty day period, Dr. Goodworth assumed supervision of the case the next day, replacing Dr. Dunmire.

Post-operatively, the decedent developed a wound infection and manifested an elevated temperature. Mefoxin was continuously administered from February 28 until decedent's death on April 4, 1982, except for a three day period while Dr. Kavic was on vacation.*fn5 Decedent underwent three subsequent operations to treat her infection. Nevertheless, her fever continued and she developed a severe case of hemolytic anemia with bone marrow depression, which ultimately precipitated her death.

Appellant, Administratrix of decedent's estate, filed her original complaint on July 15, 1983 and amended that complaint on October 20, 1983, on March 28, 1984 and on November 10, 1984. After preliminary objections were heard, appellant's causes of actions remaining for trial included: a claim against Merck under the Restatement of Torts (Second) § 402A; claims against Dr. Melani for failure to elicit informed consent from decedent and for failure to properly perform an appendectomy and administer the

[ 367 Pa. Super. Page 606]

    drug Mefoxin; a claim against West Penn for failure to properly supervise its staff; claims against Drs. Dunmire, Goodworth, Kavic and Kim for failure to consult specialists and for failure to discontinue the administration of Mefoxin post-operatively. The causes of action which were dismissed included claims against Merck under the Restatement of Torts (Second) § 402B and in tort for misrepresentation, and a claim against all defendants for punitive damages.

Trial began on June 17, 1985. During the trial, testimony of several of appellant's proferred expert witnesses was excluded, or limited in scope. In addition, reports acquired from Merck through appellant's discovery process which concern adverse reactions to the drug Mefoxin were also excluded. On June 27, 1985, following the close of appellant's evidence on the issue of liability, the trial court granted a compulsory non-suit in favor of Merck and Drs. Dunmire and Melani, and against appellant. The trial court asserted that appellant failed to present sufficient evidence that the product was defective or that lack of an adequate warning was the proximate cause of decedent's death. The trial court further noted that appellant presented no expert witness qualified to render an opinion as to the cause of decedent's death. On July 3, 1985, the jury returned a verdict in favor of the remaining defendants, Drs. Goodworth and Kavic, and West Penn.

Post-trial motions were heard and denied. Timely appeal to this Court followed. Appellant argues three allegations of trial court error on appeal, with multiple sub-arguments.

I. THE TRIAL COURT ABUSED ITS DISCRETION IN EXCLUDING, WHOLLY AND IN PART, CERTAIN EXPERT TESTIMONY.

A. The Trial Court Abused Its Discretion In Excluding The Testimony of Dr. David Gary Smith.

B. The Trial Court Abused Its Discretion In Excluding The Testimony of Dr. John Adriani.

C. The Trial Court Abused Its Discretion In Limiting The Testimony of Dr. Bennett Lorber.

[ 367 Pa. Super. Page 607]

D. The Trial Court Abused Its Discretion In Excluding The Testimony of Dr. Robert McCleery.

E. The Trial Court Abused Its Discretion In Limiting The Testimony of Dr. Richard Eisenstaedt.

II. THE TRIAL COURT ERRED IN GRANTING A NON-SUIT IN FAVOR OF MERCK AND DENYING McDANIEL'S REQUEST FOR POST-TRIAL RELIEF.

A. An Order Granting A Non-Suit Was Improper.

1. The court improperly excluded evidence which would have supported McDaniel's allegations that Merck manufactured and sold a defective product.

2. The trial court erred in preventing McDaniel to impeach Dr. William S. Beck.

3. The court improperly excluded evidence which would have supported McDaniel's allegations that Mefoxin caused the death of decedent.

B. The Court Erred As A Matter Of Law In Granting A Non-Suit In Favor Of Merck.

III. THE TRIAL COURT ERRED IN DENYING CLAIMS FOR PUNITIVE DAMAGES AGAINST MERCK, WEST PENN, AND DRS. KAVIC AND GOODWORTH.

We shall address these contentions seriatim.

I. EXPERT TESTIMONY

A. DR. DAVID GARY SMITH

Appellant offered into evidence the videotaped deposition of Dr. David Gary Smith, M.D. Dr. Smith was to testify to the standard of care required of the treating physicians, specifically their failure to discontinue the administration of the drug Mefoxin and their failure to obtain an appropriate consultation with a medical specialist when decedent's fever continued after her appendectomy. His testimony was also offered on the issue of causation. Dr. Smith's testimony was excluded at trial because, as the trial judge stated, Smith wasn't qualified, and "[h]e doesn't give the correct answers as to his opinion consistent with the law . . . ."

[ 367 Pa. Super. Page 608]

(N.T. at 259). Appellant asserts the court's ruling was ...


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