LANE v. WALGREEN CO.
Filing
109
ORDER - Defendant's Motion for Partial Summary Judgment and Motions to Strike ; This cause is before the Court on three motions filed by Defendant Walgreen Company a motion for partial summary judgment on Count II of Plaintiff's complaint Docket No. 36 , filed on January 15, 2014; a motion to strike Plaintiff's expert disclosures and exclude Plaintiff's expert witnesses Docket No. 47 , filed on February 18, 2014; and a motion to strike Plaintiff's second s upplemental expert disclosures Docket No. 57 , filed on March 14, 2014. The two motions to strike are DENIED and the motion for partial summary judgment is GRANTED. Signed by Judge Sarah Evans Barker on 6/24/2014. (CKM) Modified on 6/25/2014 (CKM).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
PATRICIA G. LANE,
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Plaintiff,
vs.
WALGREEN CO.,
Defendant.
No. 1:12-cv-01180-SEB-TAB
ORDER ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND
MOTIONS TO STRIKE
This cause is before the Court on three motions filed by Defendant Walgreen Company:
(1) a motion for partial summary judgment on Count II of Plaintiff’s complaint [Docket No. 36],
filed on January 15, 2014; (2) a motion to strike Plaintiff’s expert disclosures and exclude
Plaintiff’s expert witnesses [Docket No. 47], filed on February 18, 2014; and (3) a motion to
strike Plaintiff’s second supplemental expert disclosures [Docket No. 57], filed on March 14,
2014. For the reasons set forth below, the two motions to strike are DENIED and the motion for
partial summary judgment is GRANTED.
Factual and Procedural Background
Facts
Plaintiff’s decedent Oral A. Lane was a resident of Logansport, Indiana. Compl. ¶ 1. At
the time of the events giving rise to this suit, Mr. Lane was in his mid-70s, and suffered from a
number of chronic health problems, including hypertension, congestive heart failure, atrial
fibrillation, type 2 diabetes, and chronic kidney disease. Def.’s Ex. 5 at 2. He also had a history
of colon cancer, and as of 2010, he was undergoing chemotherapy, with treatments scheduled
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every two months, to treat the myeloma (cancer of the bone marrow) afflicting his clavicle and
ribs. Id. When Dr. Raymond M. Harwood, Lane’s longtime treating oncologist, diagnosed Lane
with myeloma in early 2009, he estimated that Lane could be expected to survive three to four
years if he opted to undergo chemotherapy. Harwood Dep. 38–40. When Lane saw Dr. Harwood
for a bi-monthly appointment on September 28, 2010, Harwood judged that Lane was handling
his chemotherapy well, and noted that Lane was alert and capable of handling most aspects of
daily life with some assistance. Id. at 86–88; see also Bennett Dep. 23; Patricia Lane Aff. ¶¶ 2–4.
Nonetheless, his primary care physician, Dr. Cherie Bennett, described his overall condition in
2010 as “frail and elderly.” Bennett Dep. 32.
On October 14, 2010, Lane visited Dr. Bennett’s office complaining of neck pain.
Bennett Dep. 30. Dr. Bennett prescribed Lane a liquid preparation of the drug Oxycodone, with
instructions to take a 5 mg/5mL dose orally every six hours. Compl. ¶ 8. Later that day, Lane’s
wife, Plaintiff Patricia Lane, filled the prescription at a retail pharmacy owned by Defendant
Walgreen Company, located at 2301 East Market Street, Logansport, Indiana. Id. at ¶ 7. The
pharmacy allegedly filled the prescription incorrectly, giving Mrs. Lane a preparation containing
a much higher concentration of the drug, at 20 mg/mL. Id. at ¶ 9. Less than an hour after he took
his initial dose of the Oxycodone, Mr. Lane suffered a fall in his home; his wife found him lying
on the floor, disoriented and speaking incoherently. Def.’s Ex. 5 at 2. Mrs. Lane took her
husband to the hospital, where he underwent tests including a CT scan as a precaution against
brain damage. Dr. Christopher Marino, who authorized Lane’s discharge from the hospital two
days later on October 16, 2010, noted that Mr. Lane was “awake, alert and oriented x2,1 not in
acute distress.” Id. at 3. In his deposition testimony, however, he acknowledged that Mr. Lane
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Physicians normally describe a patient as “oriented x3” when he or she is alert to “time, place, and person.” Dr.
Marino’s notation thus indicates that Mr. Lane had less than full orientation at the time of his release.
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was still “confused” at the time of his release from the hospital. Marino Dep. 126. At the time he
discharged him from the hospital, Dr. Marino was not aware that Mr. Lane had been given an
overdose of Oxycodone. Marino Dep. 87–88.
Two days later, on October 18, 2010, Mr. Lane was admitted to Logansport Memorial
Hospital for a more extended period. At this point, he was having difficulty walking and caring
for himself, and he complained of further neck pain and confusion; Dr. Bennett describes him as
being “bedbound” during his stay in the hospital. Bennett Dep. 59, 61. A chart note from October
30, 2010, states that Mr. Lane “requires maximum of assistance with transfers via Hoyer lift and
maximum assistance for turning and repositioning.” Id. at 60. After a week’s inpatient stay at the
hospital, Mr. Lane was transferred to The Arbor, a transitional “skilled nursing” facility at which
he received physical therapy. Id. at 53–54. He briefly returned to his home in November 2010,
but shortly thereafter suffered a fall in which he broke his femur. Id. at 54. When Mr. Lane saw
Dr. Harwood for his next bi-monthly appointment regarding his myeloma treatment, Harwood
determined that Mr. Lane was too frail to tolerate chemotherapy; Harwood noted at the time that
he wanted to discontinue chemotherapy at least long enough to “let the dust settle,” and he
recounted later that, at that point, he felt “the risks of treatment . . . outweighed the benefits.”
Harwood Dep. 90.
Mr. Lane’s health continued to deteriorate. When Dr. Harwood saw him next on February
15, 2011, he determined that Mr. Lane’s condition remained too poor to tolerate chemotherapy,
and he referred him to hospice care. Harwood Dep. 104; Bennett Dep. 42. Mr. Lane resided at
the Hope Hospice in Cass County, Indiana until his death on April 21, 2011. Compl. ¶ 5. His
death certificate was signed by his personal care physician Cherie Bennett, who was also the
health officer for Cass County. Def.’s Br. 2–3. Dr. Bennett stated at the time, and reaffirmed in
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later testimony, that Mr. Lane’s death was “multifactorial”—brought on by multiple causes.
Bennett Dep. 74. On the death certificate, Dr. Bennett listed three “causes of death”: multiple
myeloma, congestive heart failure, and hypertension. Def.’s Ex. 4 (Death Certificate). She also
listed a number of other factors as “significant conditions contributing to death”: colon cancer,
rectal cancer, chronic renal insufficiency, vitamin B12 deficiency, hyperlipidemia, and
paroxysmal atrial fibrillation. Id. The death certificate contains no mention of Mr. Lane’s alleged
Oxycodone overdose in October 2010.
Procedural History
Plaintiff Patricia Lane is the personal representative of the estate of Oral Lane. On July
18, 2012, she brought suit in the Marion County Superior Court. Docket No. 1. The complaint
contained two counts: Count I as a survival action under Ind. Code § 34-9-3-1, and Count II as a
wrongful death action under Ind. Code § 34-23-1-1. On August 20, 2012, Defendant removed the
case to this Court on the basis of diversity of citizenship. Docket No. 1.
In September 2013, Magistrate Judge Baker approved a Case Management Plan that set
the Rule 26 deadline for Plaintiff’s disclosure of information regarding expert witnesses as
January 15, 2014; Defendant’s deadline was February 15, 2014. Docket No. 47, Ex. A. at 3.
Plaintiff submitted her expert disclosures on the deadline date. The first expert listed—and the
only one identified by name—was Dr. Cherie Bennett; Plaintiff provided the doctor’s address
and referred to the curriculum vitae attached to her deposition, which had been taken on October
23, 2013. See Docket No. 35. Second, Plaintiff listed “[a]ll of the Plaintiff’s treating medical care
providers,” explaining that they had not been retained as expert witnesses but “may provide
expert testimony regarding their care and treatment of Oral Lane.” Id. After Defendant’s counsel
wrote to Plaintiff’s counsel expressing his belief that the initial expert disclosures were
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inadequate, the parties agreed to allow Plaintiff until January 27, 2014 to make a supplemental
disclosure, extending Defendants’ disclosure deadline by an equivalent number of days. See
Docket No. 37, Ex. C; Docket No. 47 at 2. Plaintiff filed her supplemental disclosure on the
deadline date; in it, she provided a paragraph-length summary of her intended use of Dr.
Bennett’s testimony:
Dr. Bennett testified that Defendant's employee filled Mr. Lane's prescription with
the incorrect dosage and then failed to recognize the error before the product was
sold to the patient. As a result of the wrong dosage given to Plaintiff, he
subsequently suffered, including but not limited to, a fall, hospitalization,
disorientation, wider/over-medicated, and further injuries consistent with her
deposition. In her deposition on October 22, 2013, she testified that the mis-filled
prescription overdose caused serious injuries to Mr. Lane requiring
hospitalization.
Docket No. 47, Ex. F. Plaintiff also provided the names of four other care providers—Kathleen
Kunkel, Angelique Witlam, Donna Hermance, and C. Miller—but noted that these were
anticipated as potential fact witnesses rather than experts. Id. On February 18, 2014, Defendant
filed a “motion to strike Plaintiff’s expert disclosures and to exclude Plaintiff’s expert
witnesses,” contending that, even after it had been supplemented, Plaintiff’s disclosure was
deficient under Rule 26. See Docket No. 47.
In late February 2014, Defendant took the depositions of two physicians as potential fact
witnesses in the case. The first was Dr. Christopher Marino, who supervised Mr. Lane’s
discharge from the Logansport Memorial Hospital on October 16, 2010; the second was Dr.
Raymond Harwood, his treating oncologist. Docket No. 51 at 1–2. On cross-examination, both
men gave testimony that Plaintiff felt might be valuable opinion testimony at trial. Docket No.
86 at 2–3. In an effort to secure her ability to present the two physicians’ opinions, Plaintiff filed
a “second supplemental” expert disclosure on March 4, 2014. Docket No. 51. In this document,
she listed Bennett, Marino, and Harwood as potential expert witnesses. Plaintiff did not provide
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addresses or summaries of their planned testimony for either Marino or Harwood; instead, she
submitted the following statement beneath each doctor’s name: “Plaintiff had no plans to take his
deposition. However, due to the testimony elicited by Defendant, Plaintiff intends to use his
deposition at trial. His testimony and opinions elicited by Defendant are in his deposition. His
deposition will be used at trial as Plaintiff does not intend to call him live.” Id. at 1–2. On March
14, 2014, Defendant filed a second motion to strike these additional expert witness disclosures,
contending that Plaintiff’s disclosure of Marino and Harwood as witnesses was untimely and
failed to meet the specificity requirements of Rule 26. See Docket No. 57.
Legal Analysis
Of the three motions before us, we address Defendant’s two motions to strike first
because their resolution heavily affects the viability of the wrongful death claim that is the
subject of Defendant’s motion for partial summary judgment.
I.
Motions to Strike
A. Legal Standard
Federal Rule of Civil Procedure 12(f) provides that a court may, sua sponte or on the
motion of a party, strike from a pleading “an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed. R. Civ. Pro. 12(f). As the rule’s language indicates, a
motion to strike should be granted only in rare circumstances, and such motions are “disfavored”
because they “potentially serve only to delay.” Heller Fin., Inc. v. Midwhey Powder Co., Inc.,
883 F.2d 1286, 1294 (7th Cir. 1989); Crowder v. Foster Wheeler, LLC, 265 F.R.D. 368, 370
(S.D. Ind. 2009). For this reason, a motion will be successful where it “remove[s] unnecessary
clutter from the case,” expediting the resolution of the case rather than erecting another obstacle
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to its consideration on the merits. Id. (citing United States v. 416.81 Acres of Land, 514 F.2d 627,
631 (7th Cir. 1975).
Here, Defendant invokes the expert disclosure requirements set forth by Federal Rule of
Civil Procedure 26 and the sanctions for disclosure violations authorized by Federal Rule of
Civil Procedure 37. Rule 26 provides that, for experts who are not required to submit a written
report, the disclosing party must state “the subject matter on which the witness is expected to
present evidence under Federal Rule of Evidence 702, 703, or 705,” and “a summary of the facts
and opinions to which the witness is expected to testify.” Fed. R. Civ. Pro. 26(a)(2)(C). The rule
additionally requires parties to supplement their disclosures “in a timely manner if the party
learns that in some material respect the disclosure or response is incomplete or incorrect, and if
the additional or corrective information has not otherwise been made known to the other parties
during the discovery process or in writing.” Fed. R. Civ. Pro. 26(e)(1)(A).
If a party fails to provide the required expert witness information, or does so in an
untimely manner, Rule 37 states that “the party is not allowed to use that information or witness
to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless.” Fed. R. Civ. Pro. 37(c)(1); see also Musser v. Gentiva Health Servs.,
356 F.3d 751, 758 (7th Cir. 2004). Although the language of the rule appears clear-cut, courts
possess considerable discretion in determining whether a violation warrants the exclusion of
evidence or witnesses. See Dynegy Mktg. & Trade v. Multiut Corp., 648 F.3d 506, 515 (7th Cir.
2011); David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003). The Seventh Circuit directs
that we consider four factors in exercising this discretion: “(1) the prejudice or surprise to the
party against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3)
the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not
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disclosing the evidence at an earlier date.” Tribble v. Evangelides, 670 F.3d 753, 760 (7th Cir.
2012) (citing David, 324 F.3d at 857).
B. First Motion to Strike
Defendant’s first motion to strike, filed in response to Plaintiff’s first supplemental expert
disclosure, challenges Plaintiff’s disclosure of Dr. Cherie Bennett as an expert and other medical
care providers as possible fact witnesses. See Docket No. 47. In response to Defendant’s motion,
Plaintiff signaled that it was withdrawing Kathleen Kunkel, Angelique Witlam, Donna Hernance,
and C. Miller, leaving Dr. Bennett as the only witness designated. Docket No. 66 at 1 n.1.
Plaintiff also made clear that she intended to rely only on Dr. Bennett’s deposition testimony,
which was taken in October 2013 and of which both parties are fully apprised. Docket No. 84 at
¶ 3. Defendant now agrees with Plaintiff that “by limiting her examination of Dr. Bennett to her
deposition testimony, [Plaintiff] has fully disclosed Dr. Bennett’s proposed opinions.” Id. at ¶ 4.
Defendant concedes that, based on this clarification, “there remain no other issues in the pending
Motion for the Court to address.” Id. at ¶ 5. Defendant’s first motion to strike is therefore
DENIED as moot.2
C. Second Motion to Strike
Defendant challenges Plaintiff’s “second supplemental expert disclosures,” which added
Drs. Christopher Marino and Raymond Harwood to her list of potential expert witnesses
alongside Dr. Cherie Bennett, on the grounds that they are untimely and incomplete. See Docket
No. 57 at ¶¶ 5–6.
Plaintiff’s second supplemental disclosures undoubtedly violate the letter of Rule 26. For
both Marino and Harwood, Plaintiff simply refers to their depositions without setting forth a
2
In its reply brief, Defendant reserved its right to “object to the admissibility of designated portions of Dr. Bennett’s
testimony” and to file motions in limine seeking to restrict the scope of Dr. Bennett’s deposition testimony as
presented at trial. Docket No. 84 at ¶ 5.
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summary of either doctor’s opinions or giving an indication of the purpose for which she intends
to use their testimony. See Docket No. 51 at ¶¶ 2–3. We nonetheless conclude that, under the
circumstances, the procedural shortfall is harmless.
As Plaintiff points out in her response to this motion, it was Defendant that subpoenaed
Marino and Harwood, and not until late February 2014—well after Plaintiff’s expert disclosure
deadline had passed and Plaintiff had submitted her initial and first supplemental disclosures.
Docket No. 86 at 2. As she stated in her disclosures, Plaintiff plans to rely solely on the resulting
depositions, without calling either physician to testify at trial. Docket No. 51 at ¶¶ 2–3. Since
Defendant elicited the testimony in question and has had full knowledge of its contents for as
long as Plaintiff has, Defendant can hardly claim to have suffered unfair “surprise” as a result of
this disclosure. Cf. Salgado by Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 (7th Cir. 1998)
(determining that a faulty disclosure unfairly prejudiced a party by depriving it of its “right to
know the conclusions” reached by the designated experts).
Neither can Defendant plausibly accuse Plaintiff of “bad faith” in this respect; Plaintiff
made the second supplemental disclosure less than a week after the depositions of Marino and
Harwood were taken, and there is no evidence that she knew in advance that Defendant’s fact
witnesses would furnish what she viewed as favorable expert opinions.3 Cf. Tribble, 670 F.3d at
760 (noting that “willful” delay, even in the absence of clear bad faith, is relevant to whether a
rules violation is harmless); Bellinger v. Deere & Co., 881 F. Supp. 813, 817 (N.D.N.Y. 1995)
(finding no evidence of bad faith where a party’s expert disclosure, though tardy with respect to
the case management deadline, followed shortly after its interview with the witness).
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As we discuss further below, Plaintiff stretches and misconstrues the testimony of the physicians in an effort to
build a proximate causation bridge between Mr. Lane’s overdose and his subsequent death. In dealing with the
motion to strike, however, we are not concerned with the ultimate persuasiveness of the testimony.
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The Court recently granted a motion to continue the trial in this case, which is now
scheduled to begin on November 25, 2014. See Docket No. 107. And as we shall discuss below,
the deposition testimony designated in the second supplemental disclosures is insufficient to
avoid summary judgment on Plaintiff’s wrongful death claim. We thus conclude that it is
possible, with the considerable time remaining before trial, to cure any prejudice to Defendant
that might result from these incomplete disclosures. Cf. Sherrod v. Lingle, 223 F.3d 605, 613
(7th Cir. 2000) (noting that opponent is less likely to be prejudiced by a disclosure if the trial is
still “a long way off”). If Plaintiff seeks to use the testimony of Harwood or Marino for the
remaining survival action claim at trial, we direct Plaintiff to submit a further disclosure within
14 days of the issuance of this order discussing with specificity the portions of the deposition
testimony upon which she seeks to rely—and for what purpose. Under the supervision and
timeline to be provided by the Magistrate Judge, Defendant will then have a limited opportunity
to take new depositions from the two physicians or obtain alternative expert testimony to rebut
issues raised by Plaintiff’s disclosure.
In resolving Defendant’s motion to strike in this manner, we are mindful of the case law’s
strong presumption in favor of resolving disputes on their merits rather than through strict
application of procedural rules. “In the normal course of events, justice is dispensed by the
hearing of cases on their merits; only when the interests of justice are best served by dismissal
can this harsh sanction be consonant with the role of courts.” Schilling v. Walworth Cnty. Park &
Planning Comm’n, 805 F.2d 272, 275 (7th Cir. 1986). Here, a circumspect approach is especially
warranted by the pivotal role that the designated testimony plays in Plaintiff’s attempt to set forth
a prima facie case for her wrongful death claim. “[W]e recognize that in a case such as this
where exclusion necessarily entails dismissal of the case, the sanction ‘must be one that a
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reasonable jurist, apprised of all the circumstances, would have chosen as proportionate to the
infraction.’” Sherrod, 223 F.3d at 612 (quoting Salgado, 150 F.3d at 739). As Plaintiff herself
has conceded, she relies exclusively on the testimony of Dr. Harwood to establish proximate
causation. See Docket No. 67 at 8 (“Plaintiff agrees that Dr. Harwood’s testimony is necessary to
causally link Mr. Lane’s early demise with Walgreen’s overdose.”). She is ultimately
unsuccessful in doing so, but dismissing a claim on account of its legal insufficiency is
preferable to doing so solely because of the plaintiff’s procedural tardiness.
Defendant’s second motion to strike is accordingly DENIED, with Plaintiff directed to
take the steps described above to enable Defendant to cure any prejudice resulting from the late
disclosure with respect to Plaintiff’s remaining claim.
II.
Motion for Partial Summary Judgment on Count II
A. Standard of review for summary judgment
Summary judgment is appropriate on a claim if the moving party can show that there is
no genuine dispute as to any material fact, leaving them entitled to judgment as a matter of law.
Fed. R. Civ. Pro. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–323 (1986). The purpose of
summary judgment is to “pierce the pleadings and to assess the proof in order to see whether
there is a genuine need for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). Disputes concerning material facts are genuine where the evidence is such
that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether genuine issues of material fact exist,
the court construes all facts in a light most favorable to the non-moving party and draws all
reasonable inferences in favor of the non-moving party. See id. at 255. However, neither the
Amere existence of some alleged factual dispute between the parties,@ id., 477 U.S. at 247, nor the
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existence of Asome metaphysical doubt as to the material facts,@ Matsushita, 475 U.S. at 586, will
defeat a motion for summary judgment. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d
687, 692 (7th Cir. 2000).
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for
resolving factual disputes. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).
Therefore, after drawing all reasonable inferences from the facts in Plaintiff’s favor, if genuine
doubts remain and a reasonable fact-finder could find for Plaintiff, summary judgment is
inappropriate. See Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir.
1992). But if it is clear that Plaintiff will be unable to satisfy the legal requirements necessary to
establish his case, summary judgment is not only appropriate, but mandated. Ziliak v.
AstraZeneca LP, 324 F.3d 518, 520 (7th Cir. 2003). Further, a failure to prove one essential
element Anecessarily renders all other facts immaterial.@ Celotex, 477 U.S. at 323.
B. Elements of a wrongful death claim
The Indiana wrongful death statute states that “[w]hen the death of one is caused by the
wrongful act or omission of another, the personal representative of the former may maintain an
action” against those responsible. Ind. Code § 34-23-1-1. The statute provides a vehicle for
recovery, but it incorporates the definitions of a “wrongful act or omission” provided by
common law. See Hays v. Bardasian, 615 F. Supp. 2d 796, 800 (N.D. Ind. 2009). Here, Plaintiff
alleges that Defendant’s pharmacy outlet in Logansport, Indiana negligently and incorrectly
filled Mr. Lane’s oxycodone prescription—and in doing so caused his death. Compl. ¶¶ 7–12.
In order to prevail on a wrongful death claim sounding in negligence, a plaintiff must
establish the existence of the following three elements: “(1) a duty on the part of the defendant to
conform his conduct to a standard of care arising from his relationship with the plaintiff, (2) a
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failure of the defendant to conform his conduct to the requisite standard of care required by the
relationship, and (3) an injury to the plaintiff proximately caused by the breach.” Hays, 615 F.
Supp. 2d at 800 (citing Holt v. Quality Motor Sales, Inc., 776 N.E.2d 361, 365 (Ind. Ct. App.
2002)) (further citations omitted). Indiana law recognizes that pharmacists owe a duty of care to
their customers—one that can be violated by the errant filling of prescriptions. See Hooks
SuperX, Inc. v. McLaughlin, 642 N.E.2d 514, 517–520 (Ind. 1994) (“That the law recognizes a
relationship between pharmacist and customer as one that gives rise to a duty . . . is wellestablished.”); Forbes v. Walgreen Co., 566 N.E.2d 90, 91 (Ind. Ct. App. 1991) (noting that
providing the wrong medication is a breach of the pharmacist’s duty of care).
C. Proximate causation
The only issue disputed by the parties on this motion for summary judgment is that of
proximate causation. Pl.’s Resp. 7; Def.’s Br. 4–5. A party claiming injury from negligence bears
the burden of proving an injury proximately resulting from the defendant’s negligent acts. Cowe
by Cowe v. Forum Grp., Inc., 575 N.E.2d 630, 636 (Ind. 1991). A plaintiff must demonstrate that
the negligent act of which she complains was “that cause which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produced the result complained of”—Mr.
Lane’s death—“and without which the result would not have occurred.” Porter v. Whitehall
Labs., Inc., 791 F. Supp. 1335, 1341 (S.D. Ind. 1992) (quoting Ortho Pharm. Corp. v. Chapman,
388 N.E.2d 541, 545 (Ind. Ct. App. 1979)).
Expert testimony is generally required to create a material issue of fact where a plaintiff’s
claims raise questions of medical causation beyond the understanding of lay jurors and
“necessarily dependent on the testimony of physicians and surgeons learned in such
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matters.” Brown v. Terre Haute Regional Hosp., 537 N.E.2d 54, 61 (Ind. Ct. App. 1989).
Although Indiana law does not require experts to state their opinions to a particular degree of
certainty, Noblesville Casting Div. of TRW v. Prince, 438 N.E.2d 722, 731 (Ind. 1982),
“testimony as to mere possibilities will not alone suffice to place a fact in issue.” Id.; Watson v.
Med. Emergency Serv. Corp., 532 N.E.2d 1191, 1195 (Ind. Ct. App. 1989). In other words, an
expert’s speculation as to proximate causation—standing on its own—is insufficient to avoid
summary judgment on the issue. Noblesville Casting, 438 N.E.2d at 731.
Here, Plaintiff alleges that Mr. Lane’s Oxycodone overdose in October 2010 proximately
caused his death in April 2011. Conceding that expert testimony is necessary to “causally link
Mr. Lane’s early demise with Walgreen’s overdose,” Plaintiff contends that the designated
deposition testimony of Dr. Harwood is sufficient to meet this burden. Pl.’s Resp. 8. As she
summarizes: “Dr. Harwood testified that Mr. Lane’s success rate, response rate, and life
expectancy were reduced by the overdose created by Walgreens. A genuine issue of material fact
exists as to whether Defendant’s mis-fill of the prescription [led] to Plaintiff’s early demise by
more than eighteen months.” Id. at 9. We conclude that Dr. Harwood’s testimony—whether by
itself or in conjunction with the other evidence in the record—is insufficient to make Plaintiff’s
prima facie case.
Our evaluation of Dr. Harwood’s opinions is complicated by the need to excavate
Plaintiff’s real testimony from Plaintiff’s embellished and misleading characterization of it. In
her opposition to summary judgment, Plaintiff frames excerpts from Dr. Harwood’s deposition in
a manner that seriously exaggerates the strength of his opinions, elevating speculation into
certainty. As a foundational point, Plaintiff correctly quotes Dr. Harwood’s factual testimony
regarding the deterioration of Mr. Lane’s condition between September 2010 and his next
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oncologist appointment in November 2010—the period in which the oxycodone overdose
occurred. Pl.’s Resp. 5 (citing Harwood Dep. 89–90). Building on that observation, Plaintiff
insists that “[n]o other explanation for Mr. Lane’s change in condition from September 28, 2010
to November 23, 2010 could be attributed to anything other than the overdose.” Pl.’s Resp. 6, ¶ 3
(quoting Harwood Dep. 97–98). In reality, however, Dr. Harwood declined to give a firm
opinion as to the cause of Mr. Lane’s worsened condition, repeatedly noting that he lacked the
knowledge necessary to offer anything but speculation. Upon questioning from Plaintiff’s
counsel at his deposition, Dr. Harwood stated that, “based on information provided,” he would
agree with the notion that a “traumatic event” occurred to Mr. Lane between September and
November 2010. Harwood Dep. 96. Plaintiff’s counsel then pressed further, leading to the
following exchange:
Question: Okay. So as you sit here, to the best of your knowledge, in ruling out
anything else as you sit here, there’s no other explanation for the change in
condition from September 28, 2010, to November 23, 2010, as you sit here today?
Answer: Not being in primary care of his other medical issues, you know, I don’t
have knowledge of that.
Id. Harwood further acknowledged that the October 15 hospital admission after the Oxycodone
overdose was the only medical event in the two-month period of which he had knowledge, but he
stopped short of giving a clear answer with respect to causation. Id. at 97.4
4
His exchange with Plaintiff’s counsel continued:
“Q: So you don’t have any knowledge of anything else other than – the only thing you have today, though,
is the OxyContin overdose; true?
A: Maybe rephrase that for me, if you would.
Q: Sure. From what you have in front of you, based upon your record, based upon everything that you
have, the best of your knowledge as you sit here today, you have no other explanation for the change in
condition from your September visit to your November visit other than the overdose of OxyContin IR;
correct?
A: Just knowledge of the admission for the overdose and then the multiple subsequent admissions.
Q: So that’s correct?
A: That’s correct.”
Harwood Dep. 96–97.
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If Harwood gave only equivocal backing to Plaintiff’s theory that an oxycodone overdose
caused the weakness and poor health that he observed in Mr. Lane as of November 2010, he
gave hardly any support at all for any causal link between the mis-filled prescription and his
death in April 2011. In her brief, Plaintiff states: “As his treating oncologist for more than twenty
(20) years, Dr. Harwood testified that the Oxycodone played a major role in his early death.”
Pl.’s Resp. 6 at ¶ 6 (citing Harwood Dep. 117–119). This is an outright mischaracterization,
wholly unsupported by the evidence. In the portion of his deposition cited by Plaintiff, Dr.
Harwood fielded further questions about the likely cause of Mr. Lane’s poor condition in
November 2010:
Q: If you assume that the testimony in this case will be that his condition did not
change as of October 14, 2010, when Dr. Bennett saw him. He could feed
himself; he could take care of his colostomy bag; he could garden a little; he
could walk; he could feed himself. And the next thing that happened is the
overdose of OxyContin and subsequent treatment at the hospital, at Merry Manor,
and Arbor up until the moment you see him in November 2010. Let me ask you
this then:
To the best of your knowledge based upon those facts, there’s no other
explanation for the change in his condition from September 28, 2010, to
November 23, 2010, other than the overdose on October 14, 2010; is that true?
[Defense counsel objects]
Q: Go ahead. You may answer.
A: It’s a reasonable assumption. But not seeing him in that six-week time frame,
you know, it’s – I can’t – give a definitive as an only reason.
Q: It does not have to be the sole cause but more likely than not that is the
standard?
...
A: You can assume it had a major role.
Q: Okay. That the OxyContin overdose had a major role?
A: Correct.
16
Harwood Dep. 117–119. Nowhere in the designated testimony does Dr. Harwood draw a causal
link between the overdose and Mr. Lane’s death—indeed, the “assumption” he offers relates
only to the change in Mr. Lane’s condition during a two month period that ended several months
before he died in April 2011. When asked more directly by defense counsel whether he had an
opinion on a link between the incorrectly filled prescription and Mr. Lane’s eventual death, Dr.
Harwood replied that he had “no way to determine that” and “no opinion.” Harwood Dep. 70–
71.5
Plaintiff also cites Dr. Harwood’s testimony for the proposition that, as of September
2010, Mr. Lane’s prognosis was good enough that “he should have lived for two more years.”
Pl.’s Resp. 6 at ¶ 4 (citing Harwood Dep. 100, 102). In the absence of any direct testimony that
the oxycodone overdose caused or hastened Mr. Lane’s death, Plaintiff apparently seeks to use
this testimony to buttress an inference that the overdose definitively reduced his life
expectancy—hence her argument, given Mr. Lane’s death six months after receiving this positive
prognosis, that “Defendant’s mis-fill of the prescription [led] to Plaintiff’s early demise by more
than eighteen (18) months.” Id. at 9. The problem for Plaintiff, however, is that Dr. Harwood
neither gave a firm opinion as to Mr. Lane’s life expectancy before the overdose nor opined that
the overdose reduced it. His actual testimony on the issue was as follows:
Q: Doctor, based on his condition as of September 28, 2010 . . . what was your
conservative opinion as to how long Mr. Lane would live?
[Defense counsel objects]
Q: Go ahead.
A: I mean, I had every evidence that his myeloma was still controlled, quiet, so he
could put – potentially have lived several more years.
5
Perhaps unsurprisingly, Plaintiff did not designate this portion of Dr. Harwood’s deposition testimony.
17
Q: Doctor, your opinion based upon your education, training, experience, is more
likely than not Mr. Lane would have lived, conservatively, approximately two
more years from September 28, 2010; is that true?
[Defense counsel objects]
A: At that far out, I tend to take a shorter view and then six months ahead of time
and not, you know, a – so I have no evidence of any impending issues with his
myeloma.
Q: So approximately two years would have been your opinion, more likely than
not, he would have lived, approximately?
A: I would hope . . . .
Harwood Dep. 100–101. As with other portions of the deposition, Plaintiff seeks to quote Dr.
Harwood for the statements counsel tried—and largely failed—to put in his mouth. Dr. Harwood
first resisted pronouncing on any concrete longer-term life expectancy with a myeloma patient;
when prodded further, he expressed his hope that the patient would have lived two more years as
of September 2010. Id. Nowhere in his testimony does Dr. Harwood state that an Oxycodone
overdose, or any other incident, intervened to reduce Mr. Lane’s life expectancy.
Dr. Harwood did not provide expert testimony on the cause of Mr. Lane’s death. His
willingness to speculate that an Oxycodone overdose could have been the cause of Mr. Lane’s
poor condition in November 2010 is only one link in a possible causal chain between the
overdose and the death some six months later—and a tentatively forged one at that. Standing
alone, the opinions offered by Dr. Harwood are thus insufficient to avoid summary judgment on
the issue of proximate causation. See Noblesville Casting, 438 N.E.2d at 731 (“[A]n opinion
which lacks reasonable certainty or probability is not sufficient evidence by itself to support a
verdict.”). None of the other designated evidence is sufficient to fill the rather large chasm
separating Dr. Harwood’s opinions from a viable prima facie case on the issue. Dr. Cherie
Bennett, Mr. Lane’s primary care provider, testified in general terms that “an overdose of a
18
narcotic pain medication . . . can kill you.”6 Bennett Dep. 31.7 Based on a review of the records
of his hospitalization on October 18, 2010, she noted that Mr. Lane had “some confusion” and
had lost continence. However, she never opined that this—or any other of his many health
problems—was related to a possible Oxycodone overdose; in fact, she specifically noted the
heavy dosages of other painkillers he was taking at the time as possible sources of his difficulties
with motor control in October 2010.8
The testimony of Dr. Christopher Marino is similarly unhelpful to Plaintiff’s cause. Dr.
Marino did note that a drug like oxycodone may metabolize more slowly in the body of an
elderly patient than a younger one, Marino Dep. 106, 109; he also confirmed that Mr. Lane was
less than fully alert when he left the hospital on October 16, 2010. Id. at 126. Dr. Marino was in
a position to offer factual testimony only with respect to the brief period in October 2010 when
he came into contact with Mr. Lane; apart from his general statement about the body’s
metabolism of Oxycodone, he offered no expert opinions about any possible long-term
consequences of an overdose—let alone the causes of a patient’s death several months later.
6
The context of this statement makes clear that death caused by an overdose would be concurrent with, or follow
shortly after, the period when the medication was actually in the patient’s system.
7
In her sur-reply to this motion, Plaintiff also discussed elements of the testimony of Defendants’ experts,
toxicologist Michael Evans, Ph.D., and oncologist Rafat Abonour, M.D. Plaintiff points to the testimony of both
doctors in support of the proposition that an elderly person with chronic issues like Mr. Lane may be “more
susceptible to injuries from an Oxycodone overdose,” and that an “Oxycodone overdose may stay in the body longer
in an elderly ill person than it would stay in a healthy adult.” See Pl.’s Sur-Reply 2 (citing Abonour Dep. 26, 35). As
Plaintiff herself obliquely concedes, these opinions cover no new ground. Id. at 3 (“Dr. Abonour provides a further
factual foundation for Dr. Harwood’s opinion”). The general danger of a drug overdose to an elderly patient is not in
dispute, and Drs. Bennett and Marino had already acknowledged as much. Bennett Dep. 31; Marino Dep. 106, 109.
This additional testimony may support an inference that Mr. Lane’s symptoms when he reported to the hospital on
October 15, 2010 were related to the oxycodone overdose, but it does nothing to address the yawning hole in
Plaintiff’s prima facie case—the lack of any demonstrated connection between that incident and the multiple factors
that directly caused Mr. Lane’s death in April 2011.
8
In her words, basing her recollection on Mr. Lane’s treatment notes from October 18, 2010: “He is alternating
between severe pain and excess sedation when he is on the pain medicine. The patient was seen in the emergency
room and given Dilaudid 2 milligrams and then he slept through much of my interview. And he has had increased
constipation since the pain meds were increased and the patient has not eaten anything in the last day. And I
observed him having difficulty swallowing when he was sedated.” Bennett Dep. 34.
19
The one piece of evidence in the record that explicitly addresses the causes of Mr. Lane’s
death—the death certificate authored by Dr. Bennett—is flatly inconsistent with Plaintiff’s
claim. The certificate recites three primary causes of death and several more secondary ones, but
it never mentions a medication overdose. See Def.’s Ex. 4. Neither Dr. Bennett herself nor any
other witness provided testimony suggesting that the numerous pre-existing, chronic maladies
suffered by Mr. Lane and officially listed as his causes of death were exacerbated or even
affected by the negligent act at issue in this case.
Even if Dr. Harwood, upon whom Plaintiff relies exclusively to meet her burden, had
offered his opinions with “reasonable scientific or medical certainty”—which he did not—his
speculations drew a connection only from the overdose to November 2010. Cf. Noblesville
Casting, 438 N.E.2d at 731. Further expert testimony connecting Mr. Lane’s condition in
November to his death in April would be needed to carry Plaintiff’s theory over the threshold;
she has provided us with none.
III.
Conclusion
In considering Defendant’s motion to strike the testimony of Drs. Marino and Harwood,
we have concluded that the Court’s interest in upholding the procedural guidelines that promote
the orderly and expeditious resolution of disputes, though a substantial one, gives way in this
instance to our strong presumption in favor of deciding cases based on matters of substance
rather than technicality. Ultimately, Plaintiff’s attempt to stave off summary judgment by
designating the depositions of Defendant’s fact witnesses as expert opinions was an exercise in
wishful thinking—and dubious mischaracterization. Read fairly, the record in this case paints a
picture of an elderly man who suffered from a constellation of serious health problems that both
20
pre-dated and post-dated Walgreens’ incorrectly filled prescription, and who eventually
succumbed to some combination of those ailments. None of the designated evidence, timely or
untimely, allows Plaintiff to carry her burden with respect to proximate causation; Plaintiff’s
wrongful death claim therefore fails.
Defendant’s motions to strike are DENIED, with the additional instructions to the parties
regarding the possibility of additional discovery to remedy any prejudice to Defendant as
discussed in Part I of this opinion. Defendant’s motion for partial summary judgment on Count II
of the complaint is GRANTED.
IT IS SO ORDERED.
06/24/2014
Date: ________________________
_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
21
Distribution:
Matthew M. Golitko
GOLITKO & DALY, P.C.
matt@golitkodaly.com
Robert Thomas Dassow
HOVDE DASSOW & DEETS LLC
rdassow@hovdelaw.com
Edward J. Fujawa
LEWIS WAGNER LLP
efujawa@lewiswagner.com
Susan E. Cline
LEWIS WAGNER LLP
scline@lewiswagner.com
22
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