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Morsicato v. Sav-On Drug Stores5/26/2005
Andrew Morsicato and Concetta Morsicato appeal from a final judgment of the district court, following a jury verdict, of no liability in a pharmacy malpractice action. The Morsicatos challenge the district court's admission of expert testimony that failed to conform to the reasonable degree of medical probability standard. We take this opportunity to clarify our holding in Banks v. Sunrise Hospital and confirm that medical expert testimony on the issue of causation must be stated to a reasonable degree of medical probability. Because, in this case, the testimony did not conform to this standard, we reverse the district court's judgment.
FACTS
After suffering rash-like symptoms, Andrew Morsicato was diagnosed with scabies. His dermatologist prescribed lindane lotion, an extremely potent neurotoxin lotion used as an insecticide to treat scabies. The dermatologist wrote two prescriptions for the lotion, one for Mr. Morsicato and one for his wife, as scabies is highly contagious to members of the same household.
Morsicato presented both prescriptions to Sav-On Drug Stores for filling and received two bottles of lindane, each with different application instructions. Morsicato's prescription correctly indicated the lotion should be applied at bedtime and washed off after 12 hours. The label on his wife's prescription displayed flawed instructions, directing application of the lotion every 12 hours. Sav-On's pharmacy expert admitted that Sav-On improperly labeled the wife's prescription bottle by directing lindane application every 12 hours.
Morsicato used his wife's prescription, applying the lotion every 12 hours for several days. Following multiple applications of the lotion, Morsicato began experiencing pain and significant skin irritation. Morsicato returned to his primary treating physician with boils, blisters, redness, and extreme pain on those areas where he had applied the lotion. Several physicians evaluated Morsicato and concluded that his injuries were linked to overexposure to lindane.
The Morsicatos sued Sav-On claiming that multiple applications of lindane caused Morsicato's permanent injuries. Because Sav-On admitted to improperly labeling the bottle, the district court granted a directed verdict in favor of the Morsicatos on the issue of Sav-On's negligence. The issues of causation, comparative negligence, and damages remained for the jury.
Prior to jury selection, the district court informed all parties that it was using a lottery system to select alternate jurors. In the lottery system, a total of ten jurors were seated in the jury box for the trial, and after closing argument but before deliberation, two alternate jurors were chosen by random drawing. Under this selection process, any two of the ten jurors could have been selected to be the alternate jurors. The record reveals the Morsicatos' counsel acquiesced in the district court's suggested process.
During trial, the jurors considered causation evidence. The Morsicatos presented several experts, who testified to a reasonable degree of medical probability that Morsicato's injuries were caused by the lindane lotion. Sav-On offered only the testimony of a neurologist, Dr. Michael Schneck. Dr. Schneck acknowledged the theory that lindane exposure caused Morsicato's injuries, but he opined that other theories, including an autoimmune response, could explain the injury. After counsel objected to the speculative nature of Dr. Schneck's testimony, the court explained that medical opinions regarding causation must state that the particular form of causation was more likely than not, or more than 50 percent likely. Dr. Schneck then testified that his autoimm
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