Keus v. Brooks Drug, Inc.

KEUS_V_BROOKS_DRUGS_INC.93-198; 163 Vt 1; 652 A.2d 475

[Filed 05-Aug-1994]

[Motion for Reargument and to Revise Mandate Denied 2-Nov-1994]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 93-198


 Erica Keus                                   Supreme Court

                                              On Appeal from
      v.                                      Bennington Superior Court

 Brooks Drug, Inc., and Peter                 December Term, 1993
 Del Santo


 Ellen Holmes Maloney, J.

 Bradley D. Myerson, Manchester Center, for plaintiff-appellant

 Martha M. Smyrski of Ryan Smith & Carbine, Ltd., Rutland, for defendants-
    appellees



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      GIBSON, J.  Plaintiff Erica Keus appeals from a judgment for defendants
 after the jury found defendants guilty of negligence and breach of express
 warranty, but denied damages, for lack of proximate causation, for injuries
 suffered by plaintiff in a fall brought on by a drug she was given when
 pharmacist Peter Del Santo incorrectly filled a prescription.  We reverse.
      In November 1985, suffering from pain in her chest and a fever,
 plaintiff went to see Dr. Ronald Woodworth in Bennington.  The doctor diag-
 nosed an infection and prescribed Eryc, a form of the antibiotic
 Erythromycin.  Plaintiff took the prescription to Brooks Pharmacy, where it
 was filled by defendant Del Santo.  Del Santo, however, misread the hand-

 

 writing on the prescription and filled it not with Eryc but with Esgic, a
 pain killer and sedative containing a barbiturate.  Plaintiff did not notice
 the mistake.  She took two of the pills before going to bed and two more
 pills the next morning.  Because she felt queasy and "cloudy," plaintiff
 decided to take a shower.  She fainted soon after stepping into the shower,
 and came to with a "stinging sensation" in her lower back, which she
 believes was caused by striking the water faucet when she fell.  She
 returned to Dr. Woodworth's office and showed the medication to the
 receptionist.  After a call to the pharmacy, the receptionist informed
 plaintiff that she had been given the wrong medication.  She went again to
 the pharmacy, where Del Santo apologized for the mistake and gave her a
 bottle with the correct medication.
      For about three weeks, plaintiff considered the mishap a "minor scrape
 and bruise," but when pain in her lower back continued she went to see Dr.
 Richard Fabricius, an orthopedist, who prescribed physical therapy.  Plain-
 tiff revisited Dr. Fabricius twice, and thereafter saw a number of different
 doctors, including a chiropractor, seeking relief from her pain.  She was
 finally told in 1992 by Dr. Dudley Baker, an orthopedic surgeon, that her
 condition was probably permanent.  In preparation for trial, she was seen
 and evaluated by a doctor for the defense, Dr. Richard Kuhlmann, and, at the
 request of her own attorney, by Dr. Robert Van Uitert, a neurologist.
      At trial, defendants presented no medical witnesses, relying instead on
 cross-examination of plaintiff and her medical witnesses.  Drs. Van Uitert
 and Baker were of the opinion that plaintiff's lower back pain was due to
 the injury sustained when she fell in the shower.  In addition, Dr. Van
 Uitert testified that in his opinion the fall was caused by the side effects
 
 

 of the drug Esgic, and that the fall would have occurred whether or not
 plaintiff had been in the shower.  Dr. Baker testified that plaintiff's
 account was consistent with the injury he diagnosed.
      On direct examination, plaintiff's counsel asked Dr. Van Uitert if he
 had based part of his history of plaintiff's injury on the reports of Dr.
 Fabricius, plaintiff's first treating doctor after the fall, and Dr.
 Kuhlmann, the defense's examining doctor.  Dr. Van Uitert stated that he
 had.  The crux of this appeal concerns the admission, during the cross-
 examination of Dr. Van Uitert, of the entire reports of Drs. Fabricius and
 Kuhlmann.  Plaintiff's counsel objected, as follows:

           MR. MYERSON:  Well, Your Honor, these are inadmissible
           as pertaining to the findings and conclusions of each
           Doctor.  The factual summaries and the findings are
           already in evidence, but I believe Rule 803 bars the
           conclusions and opinions of a non-testifying doctor as
           being hearsay.  So we would object to those.

           MR. MORGAN:  These are medical records.  Dr. Fabricius's
           are of a treating physician; Dr. Kuhlmann's of an
           examining physician.  Both records are based -- are the
           basis for some of the opinions given by the Doctor in
           this case.  I think they are relevant.  I think they are
           an exception to the hearsay rule.  I don't think the
           plaintiff is entitled to extract what she pleases from
           these records.  I think they would more fully explain to
           the jury the history and symptoms that the plaintiff
           exhibited.

           MR. MYERSON:  Your Honor --

           THE COURT:  It is appropriate by way of cross-
           examination that these be admitted.
      Dr. Kuhlmann's report included the following statement:  "I'm of the
 opinion that this patient has not incurred any partial permanent functional
 impairment to the spine related to the incident of the 21st November 1985."
 Further, the report stated that "[t]he cause of this patient's complaint
 other than the temporary one of back strain remain[s] obscure."  Dr.

 

 Fabricius's report "advised against continued manipulations," referring to
 back manipulations performed by plaintiff's osteopath, Dr. Woodworth.
      The jury's verdict was in the form of answers to special
 interrogatories, finding that (1) defendant Del Santo was negligent, (2)
 plaintiff was not contributorily negligent, (3) Del Santo's negligence was
 not the proximate cause of plaintiff's injury, (4) there was a breach of an
 express warranty by Del Santo to fill the prescription as presented, and (5)
 the breach of the express warranty was not the proximate cause of plain-
 tiff's injury.  As a result of its findings that the negligence and the
 breach of express warranty were not the proximate cause of plaintiff's
 injury, the jury assigned no damages.
      Plaintiff moved for a new trial on the proximate cause and damages
 issues, claiming the trial court improperly admitted hearsay opinions and
 conclusions contained in the reports of the two nontestifying physicians.
 The court denied the motion.  On appeal, plaintiff contends that the
 opinions and conclusions in the Kuhlmann report were inadmissible because
 (1) they were not "basis" evidence within the meaning of V.R.E. 703, and (2)
 use of the Kuhlmann and Fabricius opinions and conclusions as substantive
 evidence deprived her of a fair trial.
      We review a ruling on a motion for a new trial for abuse of discretion,
 Hardy v. Berisha, 144 Vt. 130, 133, 474 A.2d 93, 95 (1984), and we review
 claims relating to the admission of evidence according to the same standard,
 see Gilman v. Towmotor Corp., 160 Vt. 116, 122, 621 A.2d 1260, 1263 (1992)
 (Court will not reverse trial court's decision to admit or exclude evidence
 "absent an abuse of discretion resulting in prejudice").

 

      Vermont Rules of Evidence 703 (FN1) and 705 (FN2) control the definition
 and disclosure of the basis of expert opinion testimony.

           Under [V.R.E.] 703, if an expert relies on the out-of-
           court statements of another in forming his or her
           opinion and if such statements are of a type reasonably
           relied on by experts in the particular field, then the
           statements -- even if not independently admissible for
           their substance -- will be admissible for the limited
           purpose of demonstrating the basis for the expert's
           opinion.
 State v. Recor, 150 Vt. 40, 48, 549 A.2d 1382, 1388 (1988) (emphasis in
 original).  On cross-examination, counsel may ask an opponent's expert to
 disclose the underlying facts or data on which an opinion is based.  V.R.E.
 705.  Such disclosure may be useful to the jury in evaluating the expert's
 testimony.  See State v. Senecal, 145 Vt. 554, 559, 497 A.2d 349, 352 (1985)
 (credibility and weight of expert testimony is matter for jury).  While the
 latitude afforded the cross-examiner is wide, we have emphasized that basis
 evidence is admissible only for a limited purpose.  State v. Goodrich, 151
 Vt. 367, 376, 564 A.2d 1346, 1351 (1989) ("[E]vidence sought [under Rule

 

 705] must either constitute facts underlying the expert's opinion, or tend
 to prove unreliability, prejudice or bias.").  Only if the basis material is
 independently admissible under a hearsay exception may it be used substan-
 tively.  Recor, 150 Vt. at 47, 549 A.2d  at 1387.
      Plaintiff contends that the reports of Dr. Kuhlmann and Dr. Fabricius
 included opinions or conclusions that were not "facts or data" relied upon
 by Dr. Van Uitert or Dr. Baker, and that were therefore not admissible under
 V.R.E. 703 to demonstrate the basis of either doctor's opinion.  Plaintiff
 cites in support of her contention Dupona v. Benny, 130 Vt. 281, 291 A.2d 404 (1972), a case decided before the adoption of the Vermont Rules of
 Evidence.  In Dupona, we reversed the trial court's admission of a
 physician's opinion that was based entirely on the reports of other doctors,
 because the physician was not testifying to a conclusion based on his own
 observations, but merely acting as a conduit for the opinions of others,
 thus making it "impossible to conduct an intelligent and effective cross-
 examination of the opinion itself."  Id. at 286-87, 291 A.2d  at 407-08.
      Plaintiff asserts that neither doctor testified about the opinions or
 conclusions contained in the Kuhlmann and Fabricius reports or relied upon
 those reports other than to obtain a history of the injury.  Further,
 plaintiff contends that Dr. Van Uitert could not have relied on those
 opinions or conclusions because they directly contradicted his own
 opinions.  Defendants argue, however, that plaintiff's counsel "opened the
 door" to use of the opinions in the underlying reports when he asked Dr. Van
 Uitert if he had relied "on a particular doctor's diagnosis as to the source
 of pain or injury," to which Van Uitert replied that he used it "as
 information to come to a conclusion."

 

      But it is clear from the record that Dr. Van Uitert was never
 questioned about the opinions and conclusions contained in either report,
 and that he did not rely on them; rather, he used the reports only for the
 purpose of obtaining a history of the injury.  Accordingly, we agree with
 plaintiff that the opinions and conclusions contained therein were not
 admissible.  Recor, 150 Vt. at 48, 549 A.2d  at 1388; see also United States
 v. Dyer, 752 F.2d 591, 593 (11th Cir. 1985) (underlying opinion not admis-
 sible unless testifying expert states reliance on opinion); Bryan v. John
 Bean Division, 566 F.2d 541, 546-47 (5th Cir. 1978) (where testifying expert
 did not admit reliance on conclusions contained in underlying reports that
 contradicted his own, and where expert did not testify solely from the
 reports, conclusions were inadmissible under Fed. R. Evid. 705).  The
 underlying reports were also inadmissible for cross-examination of Dr.
 Baker, who was never asked the purported "door-opening" question referred to
 by defendants.
      When the court admitted the reports over plaintiff's objection "by way
 of cross-examination," it apparently thought the door had been opened for
 full use of the complete reports.  In denying plaintiff's motion for a new
 trial, the court stated that plaintiff "did not argue that Dr. Kuhlmann's
 report exceeded proper basis testimony under Rule 703, and failed to request
 a limiting instruction that the Report be considered only as a basis for Dr.
 Van Uitert's opinion."  We agree that counsel bears the burden of making a
 proper objection, see V.R.E. 103(a)(1), but we cannot agree that plaintiff's
 objection was insufficient.  The objection was to "conclusions and opinions"
 of the nontestifying experts, and was interposed with specific reference to
 the hearsay rule, Rule 803.  The objection should have alerted the court to

 

 the possibility that portions of the reports were inadmissible.  See State
 v. Gokey, 154 Vt. 129, 140-41, 574 A.2d 766, 772 (1990) (child's out-of-
 court account of incident to psychologist "did not qualify for the limited
 purposes permitted by [V.R.E. 703 & 705]"); Recor, 150 Vt. at 48, 549 A.2d 
 at 1388 (V.R.E. 703 "may not be used to circumvent the restrictions of the
 hearsay rules generally, or V.R.E. 803(4) in particular"); see also In re
 Agent Orange Prod. Liab. Litig., 611 F. Supp. 1223, 1245 (E.D.N.Y. 1985)
 (court "may not abdicate its independent responsibilities to decide if the
 bases [of expert opinion] meet minimum standards of reliability as a
 condition of admissibility"), aff'd, 818 F.2d 187 (2d Cir. 1987), cert.
 denied, 487 U.S. 1234 (1988).  The admission of the reports in their
 entirety was erroneous.
      Although there was error, we will not reverse unless there was also
 prejudice to plaintiff.  V.R.E. 103(a); see Cadel v. Sherburne Corp., 139
 Vt. 134, 136, 425 A.2d 546, 547 (1980) (refusing to reverse where it did not
 appear that "statement in question, though inadmissible, was a significant
 factor in the jury's determination of the issue of causation").  As the
 party claiming error, the burden is on plaintiff to demonstrate prejudice.
 Id.  Plaintiff points to portions of the reports which suggest that her
 injury was due to a failure to follow Dr. Fabricius's advice and indicate
 that Dr. Kuhlmann held an opinion that the cause of her injury was
 "obscure."  This misuse of evidence, she asserts, prejudiced her and
 warrants reversal.  We agree.
      In closing argument, defense counsel made repeated references to the
 medical reports as "silent witnesses."  For example, counsel argued:

            [O]n the third and last visit with Dr. Fabricius, the
            plaintiff told him what happened.  In determining

 

            credibility which is so very important, there are
            certain things to look at, certain things to read,
            read the silent witnesses.  I ask that you listen to
            what they say when you make your deliberations.
 Such argument improperly urged the jury to use the opinions and conclusions
 in the reports substantively to test the credibility of plaintiff and the
 testifying doctors, to the clear prejudice of plaintiff.  See Bryan, 566 F.2d  at 547 (reversible error where opinions of nontestifying experts
 contained in written reports were "argued substantively, violating the
 hearsay rule"); State v. Towne, 142 Vt. 241, 247, 453 A.2d 1133, 1136
 (1982) (reversible error where "jury was asked to base its decision upon the
 testimony of a witness never brought before the trier of fact and never
 cross-examined"); Kim v. Nazarian, 576 N.E.2d 427, 435 (Ill. App. Ct. 1991)
 (finding improper use of nontestifying experts' opinions was prejudicial
 where defense counsel "highlighted" opinions in opening and closing
 statements).
      Defendants also contend that plaintiff was required to request a
 limiting instruction.  See V.R.E. 105 (when evidence admissible for one
 purpose but not admissible for another purpose, court, upon request, shall
 restrict evidence to its proper scope and instruct jury accordingly); Recor,
 150 Vt. at 49, 549 A.2d  at 1388 (when hearsay evidence is admitted under
 V.R.E. 703, opposing party entitled to limiting instruction).  Here, how-
 ever, the opinions contained in the reports were not admissible in the
 first place.  A limiting instruction, while appropriate for properly
 admitted basis evidence, can only draw attention to improperly admitted
 evidence and will not cure the error.  Cf. Bryan, 566 F.2d  at 547 n.6
 (district court cautionary instruction "exacerbated the error" where

 

 opposing counsel was allowed to argue basis evidence substantively).
      Finally, defendants' argument that the "completeness" doctrine, V.R.E.
 106, provides an alternative basis for admission of the Fabricius and
 Kuhlmann reports is meritless.  Rule 106 allows otherwise incompetent
 hearsay evidence to be admitted only if it would "help to explain the
 original writing."  Reporter's Notes, V.R.E. 106.  The improper use of the
 Kuhlmann and Fabricius statements in this case cannot be justified on the
 ground that they help explain those doctors' original reports.
      Reversed and remanded.

                                    FOR THE COURT:



                                    _______________________________
                                    Associate Justice


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                              Footnotes


FN1.          The facts or data in the particular case upon which
           an expert bases an opinion or inference may be those
           perceived by or made known to him at or before the
           hearing.  If of a type reasonably relied upon by
           experts in the particular field in forming opinions or
           inferences upon the subject, the facts or data need
           not be admissible in evidence.
     V.R.E. 703.

FN2.              The expert may testify in terms of opinion or
           inference and give his reasons therefor without prior
           disclosure of the underlying facts or data, unless the
           court requires otherwise.  The expert may in any event
           be required to disclose the underlying facts or data
           on cross-examination.
      V.R.E. 705.