The Last Man Standing:

October 26, 2016

Eight Week Med Mal Trial Ends In Defense Verdict For Pharmacist And Favorable Verdict For Pharmacy

Patton & Ryan recently obtained an incredibly favorable verdict on behalf of their pharmacy and pharmacist clients in the case of Jesse Cox v. Comprehensive Pharmacy Services, Inc. et al. The case stemmed from the 2012 death of Joseph Brown, who incurred traumatic brain and spinal injuries following a cervical laminectomy proce­dure. The decedent’s son, Jesse Cox, brought suit against the hospital, the treating neurosurgeons, and the pharmacy and its pharmacists.

Living up to the firm’s reputation for parachut­ing into cases at the last minute, Patton & Ryan accepted the call to take over this complex medical malpractice matter in late January 2016. Though trial was set for April 11 and all discovery was closed but for defense expert depositions, Patton & Ryan rose to the occasion and immedi­ately began to cultivate a defense strategy.

Claiming negligence on the part of the pharmacy and its pharmacists, Plaintiffs alleged that these defendants allowed the decedent to receive a particularly powerful narcotic, though the treat­ing physician had ordered that this medication be discontinued. The central debate in this case was not whether the medication was discontinued by the pharmacy, but whether the pharmacy ever received the discontinue order from the hospital’s nursing staff. The pharmacy and pharmacists adamantly maintained that the hospital’s nursing staff never sent the order to the pharmacy, though a hospital nurse testified that she definitively faxed the order. There was no documentation that the fax was ever sent.

During pre-trial motions, Patton & Ryan success­fully barred many of Plaintiffs’ most compelling claims and limited the scope of Plaintiffs’ expert testimony. The firm’s strong arguments during this phase resulted in obtaining partial summary judg­ment based on the “learned intermediary” theory.

Motions in Limine also spanned an astounding three weeks, during which Patton & Ryan argued a Frye motion and Frye hearing which barred Plaintiff’s expert pharmacist from testifying to a damaging opinion.

Complications also arose during Motions in Limine when the hospi­tal, a central Defendant in the case, settled with the Plaintiffs. Hoping that the pharmacy would have to indemnify the hospital if found liable, the hospital then cooperated with the Plaintiffs’ attorneys, but refused to cooperate with the Defense. This severely undermined Patton & Ryan’s ability to demonstrate that the hospital and its nurses had neg­ligently cared for the decedent following his surgery.

Partners John W. Patton, Jr. and David F. Ryan met these challenges head-on and proceeded to try the case over a grueling eight week period.

At trial, the Plaintiff called seven expert witnesses, including the NFL’s brain injury expert, who all testified that the decedent’s injuries and death were directly caused by the negligence of the pharmacy and its pharmacists and the doctors. At the close of Plaintiff’s case-in-chief, the two neurosurgeons, who failed to properly identify and treat the decedent’s post-surgery complications, were dismissed on directed verdicts.

Faced with the substantial challenge of having to overcome the jury’s assumptions that the pharmacy and the pharmacists were guilty of something as they were the only defendants left in the case, Patton & Ryan called expert witnesses Dr. Hartman, Dr. Meyer, Dr. Salkind, and Dr. Patel. Each of these experts affirmatively testified that the injuries suffered by the decedent were not a result of the administration of the discontinued medication, as Plaintiffs had alleged. Dr. Meyer, a neu­roradiologist, and Dr. Salkind, a neurosurgeon, both testified that Mr. Brown’s injuries were caused from a compressive hematoma which was a result of the cervical laminectomy.

Though this case addressed complex medical issues and posed many hurdles along the way, Partners John Patton and Dave Ryan ultimately were able to convince the jury to decide the case on the facts, not on assumptions; to rely on the evidence, not their emotions. Though Plaintiffs requested that the jury award $22.5 million against the phar­macists and pharmacy in their closing arguments, the jury found the pharmacists blameless and returned a verdict of only $1.5 million against the pharmacy.

This incredible outcome serves as a shining example of Patton & Ry­an’s ability to parachute into a case on the eve of trial, and, even in the face of seemingly insurmountable odds, successfully secure a favor­able verdict for our clients.