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Lay Testimony about Notations in Pharmacy’s Delivery Log Found Not Speculative and Admissible


The plaintiff suffered complications from LASIK surgery to correct her vision. Her ophthalmologist performed a second surgery to address the complications. During that surgery the doctor applied what he thought was a prescription drug known as mitomycin-C (MMC) to help treat her blurry vision and prevent scarring. The bottle containing what was supposed to be MMC was provided by the defendant pharmacy. The plaintiff suffered additional complications from the second surgery which, according to another ophthalmologist, were caused by failure to apply MMC during the second surgery. The first ophthalmologist submitted the bottle provided by the defendant pharmacy for testing where it was discovered that it did not contain MMC.

 

The plaintiff sued the defendant pharmacy for negligence in the compounding of the solution delivered to the ophthalmologist. Immediately prior to trial, the defendant pharmacy discovered two documents indicating that the ophthalmologist’s office did not pick up the MMC until after the plaintiff’s surgery had been completed. These documents were not disclosed to opposing counsel prior to being admitted as evidence at trial. At trial, the jury found in favor of the defendant pharmacy from which the plaintiff appealed arguing that the documents should have been excluded as a sanction for failing to disclose them and that testimony from witnesses about the meaning of the exhibits should have been excluded as too speculative. The appellate court reversed and ordered a new trial. 

 

The Iowa Supreme Court vacated the decision of the court of appeals and affirmed the district court. The court reasoned that the district court did not abuse its discretion when it granted a continuance rather than exclude the evidence considering that the plaintiff did not renew her objection stating that the continuance was insufficient until after the trial was over. Regarding the admission of testimony that was too speculative, the court reasoned that the court did not abuse its discretion because the pharmacy established the witness, the pharmacy manager, had personal knowledge of the pharmacy's delivery log procedures and that he conducted an investigation into the logs and receipts in this case before reaching his conclusion. Thus, it was reasonable for the trial court to conclude that the testimony was circumstantial evidence of the proposition claimed.

 

See: Whitley v. C.R. Pharmacy Service, Inc., 2012 WL 2479588 (Iowa Jun 29, 2012) (not designated for publication).

 

 

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