Large Jury Award Not the Result of Passion or Prejudice

Larry M. Simonsmeier, JD, RPh
Published Online: Tuesday, June 1, 2004
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Issue of the Case:

The Supreme Court of Arkansas was asked in this month's case whether a $1-million jury verdict to the wife of a man who received the wrong medication from a pharmacy was the result of passion or prejudice on the part of the jury.

Facts of the Case:

The plaintiff lived in Texas, where he underwent cardiac bypass surgery. At the time of his last checkup in 1996, his cardiologist indicated that he had a life expectancy of 5 to 10 years. The plaintiff moved to Arkansas in 1997 and became the patient of a family practitioner.

Because the plaintiff was overweight, his physician prescribed Zaroxolyn (metolazone) to help reduce fluid retention. The pharmacist who filled the prescription mistakenly dispensed Ziac (bisoprolol fumarate and hydrochlorothiazide). Within a short time, the plaintiff suffered substantial weight gain due to water retention. He was hospitalized to reduce the condition. Unaware of the pharmacist's mistake, the patient's physician directed him to return home and to double the dosage of the Zaroxolyn.

The plaintiff complied with the physician's instructions, but, because he was unknowingly taking Ziac, the weight gain and fluid retention reappeared. He again was hospitalized, and this time he was diagnosed with a kidney condition. Upon discharge, he was told once more to increase his dosage of Zaroxolyn.

The plaintiff had only 2 capsules remaining, so he returned to the pharmacy for a refill. The pharmacist realized his error when he examined the remaining capsules. After advising the plaintiff that he would call the physician (which apparently did not happen), the pharmacist dispensed the correct medication. One week later, the plaintiff died of a myocardial infarction.

The Court's Ruling:

A jury awarded $150,000 to the plaintiff's estate, $1 million to his wife for mental anguish and loss of companionship, and $125,000 to his daughter for mental anguish. The pharmacy appealed, but the appellate court affirmed the jury verdict. The court found no evidence that the $1-million verdict to the wife was the result of passion or prejudice.

The Court's Reasoning:

The pharmacy argued that the evidence clearly failed to prove that its negligence was the direct cause of the plaintiff's death. It contended that factors other than the wrong medication contributed to or caused the adverse event. The appellate court, however, did not pursue this line of reasoning, because the pharmacy had not followed the correct procedural process.

The defendant pharmacy's primary challenge was that the $1-million award to the plaintiff's wife was the result of passion and prejudice on the part of the jury. It pointed out that the award was almost 7 times the amount awarded to the plaintiff's estate. Further, the amount was disproportionate to the amount of awards in other cases within the same jurisdiction.

The court rejected these arguments, stating that a comparison of awards made in other cases is "a most unsatisfactory method of determining a proper award, not only because the degree of injury is rarely the same, but also because the dollar no longer has its prior value."

Next, the defendant complained that the attorney for the decedent's wife inflamed passion in the jury by urging members to "send a message" to the "corporate wrongdoer." Although such language may be improper and grounds for reversal in certain instances, the defendant had failed to object at the time the statement was made. Therefore, this complaint could not be considered on appeal.

Finally, the court examined the nature of the relationship between the decedent and his wife. They had had a very close marriage. They had met in high school and had been married 41 years. They had been apart only once. The decedent's wife testified that the loss of her husband was the most horrible period in her life. She testified that her husband was her best friend and fishing buddy. She has not been able to make the adjustment to the loss of her husband and must now depend on someone else. In viewing this evidence of a very close relationship, the court was "unable to say that the $1-million jury verdict was given under the influence of passion or prejudice." The court refused to overturn the verdict.

Larry M. Simonsmeier is Emeritus Professor of Pharmacy Law at Washington State University College of Pharmacy.



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