Ferguson v. Williams

399 S.E.2d 389 (1991)

101 N.C. App. 265

Mary T. FERGUSON, Administratrix of the Estate of Charles W. Ferguson, Jr., Deceased, Plaintiff, v. Margaret WILLIAMS and Ring Drug Company d/b/a Bobbitt's Professional Pharmacy, Defendants.

No. 9021SC393.

Court of Appeals of North Carolina.

January 15, 1991.

*392 Michael R. Nash, Greensboro, for plaintiff-appellant.

Petree Stockton & Robinson by J. Robert Elster and Stephen R. Berlin, Winston-Salem, for defendants-appellants.

ARNOLD, Judge.

Although plaintiff brings forth a number of assignments of error, the crux of this appeal is whether plaintiff presented sufficient *393 evidence to withstand defendants' motion for directed verdict on three grounds. The first is whether plaintiff presented evidence sufficient to show Williams breached the applicable standard of care when she advised Ferguson that Percodan and Indocin were unrelated. Second is whether plaintiff provided sufficient evidence to show Ferguson's ingestion of Indocin caused his death; and third, whether decedent was contributorily negligent in not telling Williams that he was allergic to aspirin or that he had triad asthma.

The party moving for a directed verdict bears a heavy burden in North Carolina. Taylor v. Walker, 320 N.C. 729, 360 S.E.2d 796 (1987). Ordinarily, a judgment for directed verdict is not proper unless as a matter of law recovery cannot be had by plaintiff upon any view of the facts which the evidence reasonably tends to establish. Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1977).

A directed verdict motion tests the legal sufficiency of the evidence to take the case to the jury in support of a verdict for the nonmoving party. Everhart v. LeBrun, 52 N.C.App. 139, 277 S.E.2d 816 (1981). A directed verdict is appropriate only when the issue submitted presents a question of law based on admitted facts where no other conclusion can reasonably be reached. Seaman v. McQueen, 51 N.C.App. 500, 277 S.E.2d 118 (1981). When considering a defendant's motion for a directed verdict, a trial court must view the evidence in the light most favorable to the plaintiff, resolving all conflicts in his favor and giving the plaintiff the benefit of every inference that reasonably can be drawn in his favor. Cantey v. Barnes, 51 N.C.App. 356, 276 S.E.2d 490 (1981). The reviewing court performs the identical task, that is, to determine whether the evidence, when considered in the light most favorable to the nonmovant, was sufficient to have been submitted to the jury. Meacham v. Montgomery County Board of Education, 59 N.C.App. 381, 297 S.E.2d 192 (1982), cert. denied, 307 N.C. 577, 299 S.E.2d 651 (1983).

The movant's burden is even heavier in cases, such as the one before us, in which the principal issues are negligence and contributory negligence. Taylor, 320 N.C. 729, 360 S.E.2d 796. Issues arising in negligence cases are ordinarily not susceptible of summary adjudication because application of the applicable standard of care is generally for the jury. Williams v. Power & Light Co., 296 N.C. 400, 250 S.E.2d 255 (1979). In cases involving negligence and contributory negligence, greater judicial caution is therefore called for. Gladstein v. South Square Assoc., 39 N.C.App. 171, 249 S.E.2d 827 (1978), cert. denied, 296 N.C. 736, 254 S.E.2d 178 (1979).

Applying these principles here, we conclude that the trial court erred in allowing defendants' motion for directed verdict.

It is clear that a pharmacist who properly fills a prescription as written by a physician is under no duty to warn a customer about potential risks or dangers associated with taking the medication. Batiste v. American Home Products Corp., 32 N.C.App. 1, 231 S.E.2d 269, cert. denied, 292 N.C. 466, 233 S.E.2d 921 (1977); see also, Ferguson v. Williams, 92 N.C.App. 336, 374 S.E.2d 438 (1988). A druggist simply has the duty to act with due, ordinary care and diligence in compounding and selling drugs. Batiste, 32 N.C.App. at 8, 231 S.E.2d at 274 (citing Spry v. Kiser, 179 N.C. 417, 102 S.E. 708 (1920)). Batiste, however, recognizes that if a pharmacist undertakes to advise a client concerning a medication, the pharmacist is under a duty to advise correctly. Id.

Plaintiff presented the testimony of three pharmacy experts who testified that once Williams undertook to advise Ferguson about the relationship between Indocin and Percodan in the context of Ferguson possibly having a severe drug allergy, she did not exercise due care in advising him that the two drugs were unrelated. Percodan contains oxycodone, a Schedule II narcotic, and aspirin. Indocin does not contain aspirin, but like aspirin, it is a nonsteroidal anti-inflammatory agent. Both have the same "mechanism of action" in inhibiting prostaglandin biosynthesis, and both share a common cross-sensitivity in that if a person *394 is allergic to aspirin, it is probable he will be allergic to Indocin.

It is undisputed that Williams knew Ferguson was allergic to Percodan and that she knew Percodan contains aspirin. It is also clear she knew Ferguson had suffered from an anaphylactic reaction to Percodan. According to the three experts, this information was sufficient to have alerted Williams that Ferguson might suffer from a cross-sensitivity with Indocin. Faced with this evidence, it was error for the trial judge to grant defendant's motion for directed verdict on the basis plaintiff did not establish defendant owed the decedent any legal duty.

We are further persuaded in reaching this conclusion because the credibility of a witness is crucial in the determination here. Whether or not Williams owed Ferguson a duty depends on what was said during the conversation that occurred while Williams filled Ferguson's prescription. The only testimony of that conversation is from the defendant herself. Witness credibility is a determination made by a jury, not a judge. Stutts v. Green Ford, Inc., 47 N.C.App. 503, 267 S.E.2d 919 (1980).

Closely related to the issue of Williams' duty to Ferguson is whether Ferguson was contributorily negligent in bringing about his own death. A directed verdict for a defendant on the ground of contributory negligence may only be granted when the evidence, taken in the light most favorable to plaintiff, establishes contributory negligence so clearly that no other reasonable inference or conclusion may be drawn. Horne v. Trivette, 58 N.C.App. 77, 293 S.E.2d 290, cert. denied, 306 N.C. 741, 295 S.E.2d 759 (1982).

While it is obvious Ferguson might have averted this tragedy with a more explicit explanation of his drug allergies, we are not prepared to say, based on plaintiff's evidence, that the decedent's conduct renders him negligent as a matter of law. Three expert witnesses testified Ferguson apparently gave Williams enough information to alert her that Ferguson might have a severe allergic reaction to the Indocin. We believe reasonable people could form differing opinions on this issue based upon this evidence. Therefore, directed verdict based on the decedent's contributory negligence was improper.

Defendants also argue plaintiff failed to show to a reasonable degree of certainty that Ferguson's death was precipitated by his ingestion of Indocin. Defendants point to several facts established by plaintiff's evidence to support their contention: Ferguson was allergic to a number of allergens that could have triggered his asthmatic bronchospasm; no one saw Ferguson take the Indocin; a gross examination of the decedent's stomach contents on autopsy revealed only fragments of a white tablet, no traces of a pink and white capsule were found; and no trace of Indocin was discovered in the decedent's urine.

A directed verdict is appropriate when the "evidence raises a mere conjecture, surmise and speculation as to [causation]." Hinson v. National Starch & Chemical Corp., 99 N.C.App. 198, 202, 392 S.E.2d 657, 659 (1990). We find, however, plaintiff's evidence is certain to a reasonable degree to show causation.

Tim Ellison testified that after Ferguson's attack started on 18 December, the decedent told Ellison to call an ambulance because he thought he was dying. In close proximity to this statement, Ferguson handed Ellison the bottle containing the Indocin capsules and told Ellison to give it to the doctor at the hospital because the bottle contained the medication he had taken that morning. After Ferguson died, it was discovered that the bottle of medication contained forty-nine capsules. Ferguson's prescription called for fifty capsules.

The autopsy evidence was uncontroverted that Ferguson had suffered from a severe anaphylactic reaction caused by an allergen. A toxicologist testified the Indocin capsule would have been absorbed into the stomach lining and then into the bloodstream. The toxicologist also testified that within less than an hour after the anaphylactic reaction hit and Ferguson suffered respiratory and cardiac arrest, his circulation *395 would cease and no more urine would have been produced. Given the timing of the events, the toxicologist stated he would not have expected to see any Indocin in the decedent's urine. The directed verdict was therefore inappropriate on the ground that the facts failed to establish the element of causation to a sufficiently certain degree.

Plaintiff also assigns as error the trial court's exclusion of portions of the testimony of two witnesses and several exhibits. Excluded from admission were portions of the deposition testimony of Dr. Bishop, the emergency room physician who treated Ferguson and pronounced him dead. The contested statements are all remarks made by Ferguson to Ellison and then to Bishop. As such, all the statements constituted hearsay within hearsay and failed to fall under any exception to the rule. Therefore, they were properly excluded. See N.C.R.Evid. 805. This assignment of error is overruled.

Plaintiff also contends the trial court erroneously excluded testimony and a letter concerning a hearsay statement made by Ellison. Plaintiff contends Ellison should have been allowed to testify that as Ferguson was dying, the decedent said, "[t]ell Mary [his wife] and the kids I love them," because the statement constituted a dying declaration. Plaintiff also sought to introduce a letter written by Ellison containing the same declaration. We find no error in these assignments. To fall within this hearsay exception, the declaration must deal with the cause and circumstances of the declarant's anticipated death. 1 L. Brandis, Brandis on North Carolina Evidence, § 146 at 673 (3d ed. 1988). Statements of love and affection, which plaintiff sought to introduce for purposes of proving damages, do not fall within the rule.

Plaintiff also complains the trial court erred in excluding from evidence exhibits of empty bottles of Percodan and Indocin. The labels on these bottles listed the active ingredients of each medication. The exhibits, however, were not the actual bottles involved in the 1984 incident, see State v. Zuniga, 320 N.C. 233, 255, 357 S.E.2d 898, 912 (1987), cert. denied, 484 U.S. 959, 108 S. Ct. 359, 98 L. Ed. 2d 384 (1987), nor, at the point in time plaintiff's counsel sought to have them introduced, had plaintiff's counsel properly shown that the bottles were sufficiently identical duplicates to the 1984 bottles. State v. Hunt, 297 N.C. 258, 254 S.E.2d 591 (1979). Our reading of the record shows that when plaintiff's counsel sought to introduce the exhibits and defendant properly objected, the proper foundation for showing that the bottles were sufficiently identical to the ones used in 1984 had not been laid. Later, plaintiff arguably elicited testimony to show the exhibits were identical duplicates, but then did not move to have the exhibits introduced as exhibits. This assignment of error is overruled.

Finally, plaintiff assigns error to the trial court's exclusion of exhibits of blown-up excerpts from the treatise, the Physician's Desk Reference, concerning the contraindications for Percodan and Indocin. Statements from learned treatises, however, if admitted, may be read into evidence but may not be received as exhibits. N.C. R.Evid. 803(18). Plaintiff's assignment of error is overruled.

Defendants have appealed one issue from below. On 25 October 1989, defendants brought a motion to dismiss plaintiff's appeal pursuant to Rules 7 and 25 of the North Carolina Rule of Appellate Procedure. Rule 7(a)(1) requires an appellant in a civil case to make a formal request for a copy of the trial transcript within ten days of filing notice of appeal. In their Motion, defendants asserted plaintiff failed to comply with this rule. Judge John held a hearing and denied defendants' motion, finding that plaintiff had "substantially complied" with the rule. We decline to disturb this finding on appeal.

The order granting defendants' motions for directed verdict is reversed. Plaintiff is entitled to a new trial.

New trial.

EAGLES and PARKER, JJ., concur.