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Walter v. Wal-Mart Stores, attorneys and footnotes.

Attorneys for plaintiff: Steven D. Silin, Esq., (orally) Paul F. Macri, Esq. Berman & Simmons, P.A. P O Box 961 Lewiston, ME 04243-0961 Attorneys for appellant: James M. Bowie, Esq., (orally) Elizabeth K. Peck, Esq. Mark V. Franco, Esq, Thompson & Bowie P O Box 4360 Portland, ME 04112
FOOTNOTES******************************** {1} . Wal-Mart's counsel began his opening statement by explaining the process of a lawsuit and why Wal-Mart denied liability in its answer. He then stated: What I'm here to tell you right now is since the filing of the complaint and filing of the answer, Wal-Mart has never denied responsibility for this incident. Never. Going back to what happened. [Walter's attorney] and I are in substantial agreement in terms of what happened on May 7, 1997, and what has to [sic] occurred since. He asked you why we are here. I'll tell you why we are here. The reason is that the parties have a dispute. They have a difference of opinion as to what constitutes fair, reasonable and just compensation for Mrs. Walter. That's why we are here. We can't agree. It's as simple as that. We just can't agree on that issue. We need your help. . . . . It's not because we are blaming Mrs. Walter. It's not because we are trying to deflect blame. And it's not because we are trying to sort of make the issues obscure or distracting. We are going to put all the cards on the table. There are no secrets. There are no major disputes as to what occurred. There are no major disputes as to the facts. The hardest issue and the one that is going to be in your laps at the end of tomorrow is what monetary amount represents fair and just compensation for Mrs. Walter? You will be asked to consider medical bills and what she went through during the hospitalization and what she has done [sic] through since then. Wal-Mart is here, and I'm here to ask you as the conscience of the community what that figure is. That's really why we are here. Wal-Mart's counsel then described the pharmacist, where he came from, his family and other information about him, Mr. Lovin, Henry, was familiar with Dr. Ross and Dr. Ross's prescriptions. He filled many prescription [sic] from Dr. Ross in the past, including for Chlorambucil, so he knew what he wanted when he used that word. The evidence in this case will show that on - the statement was made on May 7, 1997 - Mr. Lovin was given a prescription for Chlorambucil. What came to his mind was Alkeran. And from there the mistake was made. And it was sort of on a path of not being able being [sic] corrected in his mind. He was confident that Chlorambucil was Alkeran. It was a mistake. And it's a mistake for which he's deeply sorry. But that's irrelevant. The fact is that a mistake was made. That he didn't realize it at the time and wasn't told of the mistake until June 3rd when he received a call from Dr. Ross. Counsel went on to describe the difference in the medications. He mentioned that Dr. Ross's notes stated that Walter was to have her blood checked in two weeks and that Walter did not have her blood taken until later. He briefly mentioned her hospitalization and the fact that her cancer was in remission. He told the jury it didn't matter that the defendant was Wal-Mart, that it could have been the drug store down the street. Counsel concluded by thanking the jurors and stating: I would ask you to keep your eye on the target: fair and just and reasonable compensation. That's going to be the issue that you will have to decide when you go into the jury room at the end of the evidence. {2} . For a discussion of pharmacists' traditional or ordinary standard of care and the professional standard of care, see Lauren Fleischer, Note, From Pill-Counting to Patient Care: Pharmacists' Standard of Care in Negligence Law, 68 Fordham L. Rev. 165, 174-75 (1999). {3} . The blood tests alone did not reveal that the wrong medication had been given. Dr. Ross did not discover that she was taking the wrong medication until after she was admitted to the hospital. {4} . The court twice, in its instructions to the jury, stated that it was Walter's burden to prove to them by a preponderance of the evidence that Wal-Mart's negligence caused Walter's damages: (1) "[A]ny damages that you award in this case must be based upon a finding by you that the plaintiff, who is the one seeking damages, has convinced you by a preponderance of the evidence that the particular injury and pain and suffering for which she seeks compensation was caused by the defendant's negligence."; and (2) "You must determine the damages to which the plaintiff is entitled as a result of the injury proximately caused by the defendant." {5} . We are aware of two cases from other jurisdictions in which a comparative negligence instruction was given when a pharmacist gave the plaintiff the wrong medication. The facts in one case, however, make it distinguishable from Walter's situation. In Forbes v. Walgreen Co., 566 N.E.2d 90, 91 (Ind. Ct. App. 1991), the plaintiff had been taking medication for headaches. When she had the prescription refilled, she noticed that the medication she was given was different in size, shape, and color from what she had been taking, but she took it anyway for several months. The wrong medication did not cause her to be sick, but it was ineffective on her headaches. See id. Walter had never taken her medication previously and had no reason to be suspicious of its size, shape, or color. In the other case, the ten percent reduction of plaintiff's damages for comparative negligence was not appealed or discussed. See Van Hattem v. Kmart Corp., 719 N.E.2d 212, 222 (Ill. App. 1999) (reversing the jury verdict for plaintiff because the trial court refused a special interrogatory to the jury under the Illinois wrongful death statute concerning the contributory negligence of a beneficiary of a decedent). {6} . There is no uniformity among other jurisdictions on the question of whether the patient's failure to follow a physician's instructions is comparative negligence or comes under the doctrine of mitigation or avoidable consequences. Compare Bryant v. Calantone, 669 A.2d 286, 289 (N.J. Super. Ct. App. Div. 1996) (holding that patient's failure to ask dentist for medication or failing to consult with cardiologist goes to mitigation of damages, not comparative negligence) with McMullen v. Vaughan, 227 S.E.2d 440 (Ga. Ct. App. 1976) (finding that post-operative failure to return for follow-up visits and undergo physical therapy constituted negligence to be compared with surgeon's negligence). See also Sharon W. Murphy, Comment, Contributory Negligence in Medical Malpractice: Are the Standards Changing to Reflect Society's Growing Health Care Consumerism? 17 U. Dayton L. Rev. 151 (1991); Madelynn R. Orr, Comment, Defense of Patient's Contribution to Fault in Medical Malpractice Actions, 25 Creighton L. Rev. 665 (1992). In some comparative negligence jurisdictions, the failure to mitigate damages or avoid consequences is defined as fault. See, e.g., Cox v. Lesko, 953 P.2d 1033 (Kan. 1998); Love v. Park Lane Med. Ctr., 737 S.W.2d 720 (Mo. 1987). {7} . In the standard comparative negligence instruction, the jury is told that if they find that the plaintiff was negligent and the plaintiff's negligence was a legal cause of her damage, the jury should apportion the relative degree of fault by comparing the fault of each. See 14 M.R.S.A. § 156 (1980); Donald G. Alexander, Maine Jury Instruction Manual § 7-40 at 7-53.8 (3d ed. 1999). The jury is further instructed that if the parties are equally at fault or the plaintiff is more at fault than the defendant, they are to return a verdict for the defendant, but if the defendant was more at fault than the plaintiff they reduce the total amount of damages that the plaintiff would be entitled to by a just and equitable amount. See id. In the mitigation instruction the jury is told that every person who is injured has a duty to exercise reasonable care to reduce the extent of the injury and to take reasonable steps to effect a cure or reduce the severity of the damage. See Alexander, § 7-65 at 7-92. {8} . Judges have a responsibility to give every party "the right to be heard according to law." Maine Code of Jud. Conduct Canon 3(B)(7) (1999). Parties must be given the opportunity to make their arguments to the court. This does not mean that judges have to allow counsel to make lengthy or repetitious arguments. Once counsel have stated their objections to the proposed instructions and the court has ruled, there is no need to allow counsel additional time with the court reporter to repeat their arguments.

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