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Keefover v. Giant Food Inc.6/5/1990
As a result of a jury trial in the Circuit Court for Prince George's County (Levin, J.), Terri M. Keefover was awarded $1,000 and costs in her suit against Giant Food.
In this Court, Keefover poses seven issues which we shall address in the order presented. Before doing so, however, we shall set forth the factual scene from which the controversy arose.
Keefover was a patient of Dr. Thomas Ein, who prescribed for her a birth control pill known as Lo-Ovral/28. She had the prescription filled at the Giant Food store in Laurel, Maryland. Instead of receiving Lo-Ovral/28, she received and took Ovral.
Shortly after she began taking the Ovral, Keefover experienced symptomatology of being pregnant, including nausea, vomiting, and tenderness of the breasts. After taking a month's supply of the birth control pills, she returned to Giant to have the prescription refilled. There she learned that the prescription had been previously filled in error. Keefover contacted Dr. Ein, who examined her two days later. Dr. Ein recommended and performed a tubal ligation on Keefover.
Subsequently, Keefover sued Giant Foods, Inc., in a five count complaint alleging negligence, breach of statutory duty, fraud, breach of warranties, and breach of contract. At trial, the only issue that ultimately was presented to the jury was the negligence claim. The jury, as we have seen, returned a verdict in favor of Keefover.
I.
"Whether the lower court abused its discretion in refusing to allow counsel for Keefover to call Dr. Ein as an adverse witness."
Maryland's adverse witness statute is found in Md. Cts. & Jud.Proc.Code Ann. § 9-113. There it is stated: "In a civil case, a party or an officer, director, or managing agent of a corporation, partnership, or association may be called by the adverse party and interrogated as on cross-examination."
Dr. Ein did not fall within the ambit of § 9-113; therefore, he could not be called as an adverse witness. See Born v. Hammond, 218 Md. 184, 191, 146 A.2d 44 (1958); Mike v. Service Review, Inc., 19 Md. App. 287, 299, 310 A.2d
585 (1973). Keefover was not, however, precluded from calling Dr. Ein as a witness, but, in the court's discretion, she was precluded from asking leading questions. There was no error in the trial court's refusal to allow Keefover to treat Dr. Ein as an adverse witness.
II.
"Whether the lower court erred in not permitting Keefover to testify to the statements of Dr. Ein in connection with the treatment allegedly forming the basis of the malpractice claim."
Keefover maintains that Judge Levin erred in not permitting her to testify concerning statements made by Dr. Ein with regard to his treatment of her condition. She asserts the court erred in two respects.
First, Keefover argues that the nature of her claim required her to prove a "case within a case." Her case-in-chief against Giant was predicated on her showing that Dr. Ein prescribed sterilization to solve the problems caused by the overdose of Ovral and that sterilization was in fact not necessary. In other words, Keefover felt it requisite to her case to show malpractice by Dr. Ein.
Second, because Keefover signed a consent to the tubal ligation, she asserts that her inquiry into Dr. Ein's statement to her was to demonstrate her state of mind at the time of her consent.
Judge Levin, in sustaining objections by Giant, said: "I am not going to let you get in any evidence as of right now of anything that Dr. Ein prescribed for this lady. It's that sim
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