Court Orders Mistrial After Plaintiff Participates in TV Report on Pharmacy Errors

Larry M. Simonsmeirer, JD, RPh
Published Online: Saturday, June 1, 2002
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Issue of the Case:
An Illinois appellate court was asked whether a defendant pharmacy was entitled to a mistrial because jurors saw a television news expos? about errors in the practice of phar-macy?just before jury deliberations were to begin.

Facts of the Case:
The plaintiffs represented the estate of John Doe, who died following a massive brain bleed. At the time of his death, the patient was taking several prescription medications, including 2 mg of Coumadin. Each time the physician prescribed Coumadin, he warned Doe about the dangers associated with the drug. Each time the pharmacy dispensed the medication, written warnings were attached to the prescription bag.

Doe?s wife picked up all of his prescriptions but removed the warnings before she gave him the prescription container. Even though suffering from macular degeneration, Doe took his own medicine and kept a log of his medication use. He also had his prothrombin time checked monthly.

When Doe?s wife noticed blood in their toilet, Doe told her that he would contact his doctor about his ?prostate.? The next morning, Doe was taken to the hospital when his wife found him unconscious and bleeding from his mouth and nose. His wife remembered the warnings about Coumadin and bleeding. It was determined that Doe had mistakenly received, in his most recent refill, 5-mg tablets. Doe died shortly thereafter. A lawsuit was filed. During the trial, testimony was presented claiming that the misfilled prescription was the cause of Doe?s death. Before the case was submitted to the jury, Doe?s wife appeared in a news segment on local TV describing how Doe died from a prescription dispensing error. A number of the jurors reported that they had watched the program on TV. The pharmacy moved for a mistrial. The judge questioned the jury and determined that no legal error had occurred and the trial could proceed.

The Court?s Ruling:
The jury returned a verdict against the pharmacy in the amount of $900,000, which was reduced by 10% because of Doe?s comparative fault in not noticing the different tablets with his most recent refill. The pharmacy appealed, claiming that the trial court erred in denying its motion for a mistrial based on the news broadcast that was seen by jurors during the trial. The appellate court found the TV news report to be prejudicial and reversed the trial court decision. The case was set for a new trial.

The Court?s Reasoning:
The attorney asked the court to instruct the jurors not to watch the TV program, but the judge declined. The TV news documentary focused on the high volume of prescriptions being filled in local pharmacies and questioned whether enough trained workers were available to meet the demand. The program reported on errors at other pharmacies, and it included an interview with Doe?s widow.
When the court polled the jurors, 5 of them said that they had seen the program or the commercials preceding its broadcast. The trial court had questioned them individually and had concluded that they could still be fair and impartial. The appellate court noted that a determination of this question involves the trial court?s consideration of all the circumstances and conjecturing upon the effect that information had on the minds of the jurors. It has been held in other cases that jurors themselves are incapable of knowing the effect that prejudicial matters may have upon their unconscious minds.

The court reviewed the TV news story, ?Prescription for Trouble,? and concluded that its content was palpably prejudicial and deprived the defendant of a fair trial. Although the investigative piece purported to report upon a general problem in the profession of pharmacy, specific references to Doe?s ?tragedy? were repeated throughout the program.
The trial court erred by questioning only those jurors who had seen the program, and failing to question those who had not seen it but heard about it through a commercial. The commercial for the news report promised a program about ?one family?s painful ordeal.? Even the commercial, standing alone, was prejudicial.

The appellate court concluded that the effect of such a prejudicial newscast, aired during the trial, just before jury deliberations, cannot be underestimated. The motion for mistrial should have been granted.



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