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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
JEFFREY R. HUGHES and Wife, MELODY HUGHES, Plaintiffs, v. K.P.
WEBSTER, and BI-LO, LLC, Defendants
Filed: 7 February 2006
1. Pharmacists--misfilling of prescription--failure to instruct on peculiar susceptibility
The trial court erred in a negligence case arising out of defendant pharmacist's misfilling
of a prescription by failing to instruct the jury on the peculiar susceptibility of plaintiff, and
plaintiff is entitled to a new trial, because: (1) there was evidence at trial that an ordinary person
would have been injured in the form of the normal toxicity effect of the pertinent drug such as
vomiting, nausea, and slowed heart rate; (2) there was evidence that plaintiff's heart damage and
stroke were caused by a hypersensitive drug reaction to the pertinent drug; (3) the jury sent a note
during deliberations evidencing that the jury was confused by the instructions given by the judge;
(4) there were allusions throughout the trial to a hypersensitive drug reaction of plaintiff, yet the
jury was in no way instructed on what to do with this evidence; and (5) plaintiff requested a jury
instruction on peculiar susceptibility while defendants requested one as well in the language of
N.C.P.I. Civ. 102.20, and given the incomplete state of the record, through no fault of appellant,
it cannot be said that plaintiff waived his objection and failed to preserve any error for appeal.
2. Witnesses--qualifications--expert testimony
The trial court did not abuse its discretion in a negligence case arising out of the
misfilling of a prescription by excluding a doctor's opinion on causation, because: (1) the doctor
admitted that he was not an expert in the area in which he was testifying and further admitted that
he came to have his opinion solely by reading the opinion of another expert in the field; and (2)
the exclusion was harmless where the same opinion was elicited from several other experts
throughout the trial.
3. Appeal and Error--mootness--proper notice--new trial
Although plaintiff contends the trial court erred in a negligence case arising out of the
misfilling of a prescription by excluding the expert opinion as to loss of future wages and failing
to exclude the testimony of defendants' experts where proper notice was not given pursuant to
the order issued by the court, this issue is moot where notice can be properly given at a new trial
granted on other grounds.
Appeal by plaintiffs from judgment and order entered 1 October
2004 and order entered 21 December 2004 by Judge Christopher M.
Collier in Cabarrus County Superior Court. Heard in the Court of
Appeals 7 December 2005.
Ferguson Scarbrough & Hayes, P.A., by James E. Scarbrough, for
Templeton & Raynor, P.A., by Kenneth R. Raynor, for defendant
Plaintiffs appeal from judgment entered after a jury verdict
finding that plaintiff Jeffrey R. Hughes was injured, through the
negligence of defendants, entitling them to recover $50,000.00 and
from an order awarding costs. A new trial must be awarded.
On 5 April 2002, plaintiffs (Mr. and Mrs. Hughes) filed a
complaint against defendants (Webster and Bi-Lo) alleging
negligence on the part of Webster as an employee of Bi-Lo in the
misfilling of Mr. Hughes' prescription which was the proximate
cause of injury to Mr. and Mrs. Hughes. Webster and Bi-Lo filed a
motion to dismiss and answer on 10 June 2002 denying negligence and
liability for damages alleged to have been suffered by Mr. and Mrs.
Hughes. Before trial, an order was entered on 1 March 2004
requiring Mr. and Mrs. Hughes to disclose all experts and expert
opinions to be used at trial on or before 1 April 2004 and
requiring Webster and Bi-Lo to then disclose all of their experts
and expert opinions to be used at trial within thirty days. In the
pretrial order pursuant to a conference with both side's attorneys,
it was stipulated that Webster and Bi-Lo were negligent in filling
the prescription of Mr. Hughes and that the only remaining issues
at trial were whether Mr. and Mrs. Hughes were injured or damagedby the negligence of Webster and Bi-Lo and to what amount of
damages, if any, Mr. and Mrs. Hughes were entitled.
The case proceeded to trial by jury on 21 June 2004. The
evidence at trial tended to show that Mr. Hughes went to Bi-Lo
Pharmacy to have a prescription for Aciphex 20 mg. refilled by
Pharmacist Webster who misfilled the prescription giving Mr. Hughes
Aricept 10 mg. bottled and labeled as Aciphex 20 mg. Unaware of the
mistake, Mr. Hughes took the misfilled prescription from 22 May
2001 to 28 May 2001 when he began to experience nausea, dizziness,
vomiting, weakness, headaches, tingling in his fingers, sweating,
shortness of breath, and a slowed heart rate. Around 28 May 2001,
while in the hospital, Mr. Hughes sustained damage to his heart and
suffered a stroke. Mr. Hughes was released from the hospital and
again, unknowingly, resumed taking the misfilled prescription. The
adverse symptoms recurred and Mr. Hughes returned to the hospital
on 9 June 2001. Once again Mr. Hughes was released from the
hospital whereupon he resumed taking the misfilled prescription
from 12 June 2001 to 23 June 2001 until he again experienced
adverse symptoms and was readmitted to the hospital. The
prescription ran out 5 July 2001 at which time Mr. Hughes returned
to Bi-Lo for a refill and discovered that he had been taking a drug
other than the one which he was prescribed.
The expert testimony showed that the normal toxicity effects
of Aricept included nausea, vomiting, and slowed heart rate.
Experts testifying on behalf of Mr. and Mrs. Hughes testified at
trial that in their opinion, the heart damage and stroke sufferedby Mr. Hughes was either directly caused by taking Aricept or by a
hypersensitive adverse drug reaction. Experts testifying for
Webster and Bi-Lo testified that it was their opinion that the drug
Aricept did not cause Mr. Hughes' heart problems. The Hugheses also
offered video deposition testimony of Dr. Kelling, the primary care
physician of Mr. Hughes, which contained the opinion that Aricept
was the cause of the nonischemic cardiomyopathy. Webster and Bi-Lo
objected to this testimony by Dr. Kelling arguing that this opinion
had not been disclosed prior to trial in accordance with the
previous court order. Dr. Kelling also testified in his video
deposition that his opinion had changed as to the cause of the
heart damage based on reading an opinion of another expert and
further admitted that he was not an expert in the area. The court
excluded the opinion of Dr. Kelling as to the cause of Mr. Hughes'
heart damage. A motion was made by Mr. and Mrs. Hughes on 30 June
2004 to exclude evidence of the opinions of Mr. Doering and Dr.
Hadler as to the cause of Mr. Hughes' cardiomyopathy and stroke,
contending that the experts' opinions were not properly disclosed
as they had changed since discovery, and no supplementation to
discovery answers were provided by Webster and Bi-Lo. Webster and
Bi-Lo also made an objection to any testimony by Mr. Hughes'
economist regarding loss of future wages where the opinion was not
disclosed in discovery. The trial court sustained the objection and
excluded any testimony as to loss of future wages.
On 30 June 2004 and 1 July 2004 the Hugheses submitted several
requests for special jury instructions to the trial judge. Therequested jury instructions included an instruction on sequence of
events, peculiar susceptibility, proximate cause, and
foreseeability. The parties stipulated on appeal that the court
reporter was unable to take down all statements at the charge
conference. The parties further stipulated that there was a
detailed discussion at the charge conference in which both parties
requested portions of North Carolina Civil Pattern Jury Instruction
102.20. After holding the charge conference, the trial judge
decided not to give Pattern Jury Instruction 102.20 or any
instruction on peculiar susceptibility. During deliberations the
jury submitted a note stating, Is the question was he injured or
damaged or was he injured or damaged specifically by Aricept? In
response to this question, the trial judge re-read the proximate
cause instruction given earlier to the jury.
The jury found that Mr. Hughes was injured or damaged by the
negligence of Webster and Bi-Lo and that he was entitled to recover
$50,000.00 but found that Mrs. Hughes was not injured or damaged by
their negligence and entitled to no damages. A judgment and order
awarding costs was entered 1 October 2004 awarding $50,000.00 in
damages and $23,869.44 in costs to Mr. Hughes. Mr. and Mrs. Hughes
filed a motion for a new trial on 1 October 2004 which was denied
by order entered 21 December 2004.
Plaintiffs now appeal.
 On appeal, plaintiffs first contend that the trial court
erred in failing to instruct the jury on the peculiar
susceptibility of the plaintiff Mr. Hughes. We agree.
On appeal, this Court considers a jury charge contextually and
in its entirety. Jones v. Development Co., 16 N.C. App. 80, 86, 191
S.E.2d 435, 439, cert. denied, 282 N.C. 304, 192 S.E.2d 194 (1972).
The charge will be held to be sufficient if it presents the law of
the case in such manner as to leave no reasonable cause to believe
the jury was misled or misinformed[.] Id. at 86-87, 191 S.E.2d at
440. The party asserting error bears the burden of showing that the
jury was misled or that the verdict was affected by an omitted
instruction. Robinson v. Seaboard System Railroad, 87 N.C. App.
512, 524, 361 S.E.2d 909, 917 (1987), disc. review denied, 321 N.C.
474, 364 S.E.2d 924 (1988) (Under such a standard of review, it is
not enough for the appealing party to show that error occurred in
the jury instructions; rather, it must be demonstrated that such
error was likely, in light of the entire charge, to mislead the
In general, where the facts of a case warrant a jury
instruction on peculiar susceptibility, and where the trial court
fails to charge the jury accordingly, such a failure may constitute
reversible error. See Casey v. Fredrickson Motor Express Corp., 97
N.C. App. 49, 387 S.E.2d 177, disc. review denied, 326 N.C. 594,
393 S.E.2d 874 (1990). The peculiar susceptibility doctrine is
relevant to the issue of proximate causation, and without the
instruction, the jury may conclude that the defendant wasnegligent, but that such negligence did not proximately cause the
plaintiff's injuries. See id. at 54, 387 S.E.2d at 180. Thus, if
the facts in the instant case warranted a jury instruction on
peculiar susceptibility due to a pre-existing mental or physical
condition, the trial court's failure to instruct the jury
accordingly would constitute reversible error. See Taylor v.
Ellerby, 146 N.C. App. 56, 552 S.E.2d 667 (2001).
A jury instruction on peculiar susceptibility is warranted
where a pre-existing condition aggravates an injury suffered by the
plaintiff. See id. The general rule is that if the defendant's act
would not have resulted in any injury to an ordinary person, he is
not liable for its harmful consequences to one of peculiar
susceptibility, except insofar as he was on notice of the existence
of such susceptibility, but if his misconduct amounted to a breach
of duty to a person of ordinary susceptibility, he is liable for
all damages suffered by plaintiff notwithstanding the fact that
these damages were unusually extensive because of peculiar
susceptibility. Lockwood v. McCaskill, 262 N.C. 663, 670, 138
S.E.2d 541, 546 (1964)(emphasis added).
In the instant case, there was evidence at trial that an
ordinary person would have been injured in the form of the normal
toxicity effect of the drug Aricept such as vomiting, nausea and
slowed heart rate. Further there was evidence that Mr. Hughes'
heart damage (cardiomyopathy) and stroke were caused by a
hypersensitive drug reaction to Aricept. This evidence warrants an
instruction on peculiar susceptibility. Moreover, the jury sent anote during deliberations asking, Is the question was he injured
or damaged or was he injured or damaged specifically by Aricept?
evidencing that the jury was confused by the instructions given by
the judge. There were allusions throughout the trial to a
hypersensitive drug reaction of Mr. Hughes, yet the jury was in no
way instructed on what to do with this evidence.
Mr. Hughes requested a jury instruction on peculiar
susceptibility and Webster and Bi-Lo requested one as well in the
language of N.C.P.I.--Civ. 102.20. The transcript of the charge
conference evinces that there was a lengthy discussion regarding
N.C.P.I.--Civ. 102.20; however, the transcript is incomplete. It
appears from the record that Mr. Hughes was requesting peculiar
susceptibility language in the instructions when he was diverted to
a discussion of N.C.P.I.--Civ. 102.20. In the transcript it appears
that there was further discussion as to what paragraphs of this
pattern jury instruction should be given and there is an indication
that Mr. Hughes agreed to the decision not to give one of the
paragraphs. However, this Court does not find that his agreement to
this was an acquiescence for the trial judge to fail to instruct
the jury entirely on peculiar susceptibility. Therefore, given the
incomplete state of the record, through no fault of the appellant,
it cannot be said that Mr. Hughes waived his objection and failed
to preserve any error for appeal. He is therefore entitled to a
 Next plaintiff Mr. Hughes contends that the trial court
erred in excluding Dr. Kelling's opinion on causation. We disagree.
It is well established that trial courts must decide
preliminary questions concerning the qualifications of experts to
testify or the admissibility of expert testimony. N.C. Gen. Stat.
§ 8C-1, Rule 104(a) (2005). When making such determinations, trial
courts are not bound by the rules of evidence. Id. In this
capacity, trial courts are afforded wide latitude of discretion
when making a determination about the admissibility of expert
testimony. State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370,
376 (1984). Given such latitude, it follows that a trial court's
ruling on the qualifications of an expert or the admissibility of
an expert's opinion will not be reversed on appeal absent a showing
of abuse of discretion. State v. Anderson, 322 N.C. 22, 28, 366
S.E.2d 459, 463, cert. denied, 488 U.S. 975, 102 L. Ed. 2d 548
(1988). A three-step inquiry must be made in determining whether
the expert testimony is admissible: (1) Is the expert's proffered
method of proof sufficiently reliable as an area for expert
testimony? (2) Is the witness testifying at trial qualified as an
expert in that area of testimony? (3) Is the expert's testimony
relevant? Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597
S.E.2d 674, 686 (2004) (citation omitted).
In the instant case, there were two grounds for excluding the
opinion of Dr. Kelling as to causation. The first ground was that
Dr. Kelling changed his opinion from the time of his initial
deposition and his deposition given as trial testimony. Dr. Kellingstated in his initial deposition that he did not know the cause of
Mr. Hughes' cardiomyopathy and in his deposition for trial he
testified that Aricept was the cause. Failure to disclose this
opinion was in direct violation of the pretrial order requiring
disclosure by 1 April. However, this ground is moot.
The second ground for excluding the opinion of Dr. Kelling
rested on the fact that he did not have the requisite expertise to
proffer this opinion. Dr. Kelling admitted that he was not an
expert in the area in which he was testifying and further admitted
that he came to have his opinion solely by reading the opinion of
another expert in the field. These are not appropriate
qualifications for expert testimony. Moreover, the exclusion was
harmless where the same opinion was elicited from several other
experts throughout the trial. See State v. Richardson, 341 N.C.
658, 462 S.E.2d 492 (1995) (Any error in exclusion of evidence is
harmless where evidence of the same import was admitted through the
testimony of other witnesses.). Therefore, this assignment of
error is overruled.
 Further, plaintiff contends that the trial court erred in
excluding the expert opinion as to loss of future wages and failing
to exclude the testimony of defendants' experts where proper notice
was not given pursuant to the order issued by the court. This issue
is moot where notice can be properly given at a new trial.
Accordingly, the trial court did not err in excluding the
opinion of Dr. Kelling as to causation but did commit reversibleerror in failing to instruct the jury on peculiar susceptibility,
and therefore a new trial must be granted. The remaining
assignments of error are either meritless or deemed moot due to the
decision to grant a new trial.
Judges HUNTER and GEER concur.
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