Hyman & Armstrong, P.S.C. v. Gunderson

279 S.W.3d 93

HYMAN & ARMSTRONG, P.S.C., et al., Appellants, v. Ronald GUNDERSON (Administrator of the Estate of Mary Margaret Gunderson), et al., Appellees. and Sandoz Pharmaceuticals Corporation (n/k/a Novartis Pharmaceuticals Corporation), Appellants, v. Ronald Gunderson (Administrator of the Estate of Mary Margaret Gunderson), et al., Appellees.

No. 2006-SC-000175-DG.

No. 2006-SC-000179-DG.

Supreme Court of Kentucky.

April 24, 2008.

As Modified on Grant of Rehearing November 26, 2008.

Rehearing Denied April 23, 2009.

Rehearing Denied April 23, 2009.

Raymond Smith, Edward H. Stopher, Rodney Dale Payne, Boehl, Stopher & Graves, LLP, Louisville, KY, Counsel for Hyman & Armstrong, P.S.C, and Karen Armstrong, Executrix of the Estate of Lyman Armstrong, M.D.

Larry B. Franklin, Jennifer Mills Barbour, Franklin, Gray & White, Michael R. Hance, Franklin and Hance, Louisville, KY, Counsel for Ronald Gunderson Administrator

of the Estate of Mary Margaret Gunderson: Nicholas Gunderson, a minor; Wesley Gunderson, a minor; John J. Ford, conservator of Wesley Gunderson, a minor.

Virginia Hamilton Snell, Deborah H. Patterson, Wyatt, Tarrant & Combs, Louisville, KY, Katharine R. Latimer, Bruce J. Berger, Joe G. Hollingsworth, Spriggs & Hollingsworth, Washington, DC, Counsel for Sandoz Pharmaceuticals Corporation n/k/a Novartis Pharmaceuticals Corporation.

Charles J. Cronan, IV, Jennifer L. Elliot, Kimberly Kay Ballard, Stites & Harbison Louisville, KY, Counsel for Kentucky Medical Association, Amicus Curiae.

Christopher M. Mussler, Frost Brown Todd Louisville, KY, Jonathan D. Hacker, Nicole A. Saharsky, O'Melveny & Myers, Robins S. Conrad, National Chamber Litigation Center, Inc., Washington, D.C., Counsel for Chamber of Commerce of the United States, Amicus Curiae.

William Kennedy Simpson, Thompson, Miller & Simpson, Louisville, KY, Counsel for Product Liability Advisory Council, Inc., Amicus Curiae.

Opinion of the Court by Justice SCHRODER.

While we find it was error in the trial of this products liability/medical malpractice case to allow evidence of the cross-claim to be admitted, we adjudge it to be harmless error. We find no in the Appellant's other allegations. Hence, we affirm the decision of the Court of Appeals.

FACTS

On September 28, 1993, Mary Gunderson, age thirty-two, gave birth by cesarean section to her second child, Wesley Gunderson. Because Mary did not want to breastfeed, Mary's obstetrician, Dr. Lyman Armstrong, prescribed the drug Parlodel (bromocriptine mesylate) to stop lactation. Mary began taking Parlodel on September 29, and was discharged from the hospital on October 1 to recover at home. Mary's recovery was uneventful until October 4, when Mary complained of a severe headache and pain between her shoulder blades radiating down her back. Mary went to bed that night at around 11:30 p.m. The next morning Mary's mother discovered Mary dead in her bed. Authorities were called and Detective David Burks of the Jeffersontown Police Department began a death scene investigation. Mary was found in bed lying on her back with her arms bent backwards by her head in a gravity-defying position. Mary was also found to have voided from her bladder.

The police report filed on November 23, 1993, listed the cause of death as unknown. In conducting the autopsy, the Kentucky Medical Examiner's Office found no anatomic cause of death. After further investigation of the death and research into the drug Parlodel, the Medical Examiner's report, completed on December 29, 1993, concluded the following:

Autopsy and toxicologic examinations disclose no cause of death in this case. Review of circumstances, literature and case reports concerning bromocriptine, used in this case for suppression of lactation, reveals an association with hypertension, vascular complications, headache[,] convulsive seizure, and death. Death is attributed to seizure, which is expected to provide no findings at autopsy.

On September 8, 1994, Mary's Estate, her husband, Ronald Gunderson, and her two minor children (hereinafter "the Gundersons") filed suit against Sandoz Pharmaceutical Corporation ("Sandoz"), the maker of Parlodel, and Hyman & Armstrong P.S.C. (hereinafter "Dr. Armstrong"),¹ alleging products liability and medical malpractice in causing Mary's death. The case was tried from February 2, 2004, to February 28, 2004, and resulted in a judgment for the Plaintiffs totaling $19,098,263. Apportioning 90% liability to Sandoz and 10% to Dr. Armstrong, the jury awarded $7,848,263 in compensatory damages ($6,000,000 for loss of parental consortium and $1,848,263 for loss of services and earning power). $11,250,000 in punitive damages was assessed against Sandoz.

On appeal to the Court of Appeals, the court vacated the portion of the judgment awarding punitive damages because the trial court failed to instruct the jury that punitive damages could not be based on conduct that occurred outside of Kentucky. The court thus remanded the action for a new trial "on the amount of Sandoz's punitive damages liability." The judgment was affirmed in all other respects. Sandoz and Dr. Armstrong filed separate motions for discretionary review, which were granted and consolidated for review before this Court.

LACK OF A DAUBERT HEARING

Prior to trial, the Defendants/Appellants moved for a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), to determine the admissibility of the Gundersons' causation experts who were slated to testify that Parlodel causes seizures in women taking the drug for postpartum lactation suppression. Sandoz and Dr. Armstrong argue that the trial court did not satisfy its gatekeeping obligations when it failed to hold a formal Daubert hearing and enter specific findings regarding the testimony of the Gundersons' causation experts. In Commonwealth v. Christie, 98 S.W.3d 485, 488-89 (Ky.2002), this Court stated the following relative to the proper application of Daubert in Kentucky:

When faced with a proffer of expert testimony under KRE 702, the trial judge's task is to determine whether the expert is proposing to testify to (1) scientific, technical, or other specialized knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This calls upon the trial court to assess whether the proffered testimony is both relevant and reliable. This assessment does not require a trial court to hold a hearing on the admissibility of the expert's testimony. But a trial court should only rule on the admissibility of expert testimony without first holding a hearing when the record [before it] is complete enough to measure the proffered testimony against the proper standards of reliability and relevance.

Usually, the record upon which a trial court can make an admissibility decision without a hearing will consist of the proposed expert's reports, affidavits, deposition testimony, existing precedent, and the like. Such a record is necessary in order to give a trial court an adequate basis for making its decision on the relevancy and reliability of the proposed expert's testimony and to allow for appellate review of the trial court's decision. Failure to make a determination on the admissibility of expert testimony without an adequate record is an abuse of discretion by the trial court.

(internal quotations and citations omitted).

In the instant case, the trial court had before it a mountain of discovery material including lengthy depositions of the causation experts, affidavits of the experts, reports of the experts, a voluminous amount of scientific studies, reports and publications relied on by experts, and extensive briefing by the parties. At one point, the judge remarked on the record that the pre-trial record occupied an entire room in his chambers and that he had spent weeks reading the material. Further, on January 19, 2004, the court devoted an entire day to addressing the parties' motions in limine, many of which related to the admissibility of specific pieces of scientific evidence that were relied on by the Gundersons' causation experts and were challenged as being unreliable and irrelevant. The challenged evidence included case reports, adverse drug experience reports, and animal studies. Although this may not have technically been a Daubert hearing, the court heard lengthy arguments on the reliability and relevancy of the scientific evidence underlying the Gundersons' causation experts' opinions. We adjudge that the trial court did not abuse its discretion in its method of evaluating the reliability and relevancy of the testimony of the Gundersons' causation experts. The court had more than an adequate record before it to make its Daubert ruling, and it was apparent at the January 19, 2004, hearing that the trial judge was well versed on the copious record.

LACK OF EXPRESS FINDINGS OF FACT ON THE DAUBERT RULING

While the trial court may not have entered express findings of fact, the court articulated some basis for its Daubert ruling when it stated the following at the January 19, 2004, hearing:

I have to make a requisite minimal determination whether or not I believe that the testimony is reliable, whether it is sufficiently trustworthy, and whether it's the general type of data upon which, in this case physicians or scientists, typically rely upon in forming their opinions. And it appears to me that both sides have that. You've got eminently well qualified experts and the subject of the majority of the attack with these experts is going to be on cross-examination in terms of the appropriate weight that the jury ought to afford their testimony and whether it is affected by this data on which they rely.

The trial court affirmatively stated on the record that it had reviewed the material submitted by the parties relative to the testimony of the Gundersons' causation experts and concluded that the testimony was...