Miller v. Bernard
957 N.E.2d 685
Ind. Ct. App.2011Background
- Alexis Ritch, a four-year-old, died after ingesting Promethazine Syrup Plain manufactured by Morton Grove Pharmaceuticals and distributed by CVS Pharmacy.
- Promethazine Syrup Plain testing showed very high promethazine levels in Alexis's blood (AIT) and in the bottle, with disputes over testing methodology and reliability.
- Plaintiffs allege defective manufacturing/super-potency of Promethazine Syrup Plain as a cause of Alexis's death; Defendants dispute causation and testing reliability.
- CVS distributed the syrup; MGP manufactured it; Plaintiffs also asserted various liability theories including product liability, negligence, and misrepresentation.
- Indiana’s product liability statute creates a rebuttable presumption that a conforming product was not defective, which the trial court applied to this case.
- The trial court granted summary judgment to Defendants, but the Indiana Court of Appeals reversed in part, remanding for further proceedings and addressing Dr. Loeb’s excluded testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Dr. Loeb's testimony | Loeb's affidavit should be admissible as expert testimony. | Loeb’s testimony is inadmissible because it relates to MR Panel proceedings to which Defendants were not a party. | Court erred in excluding Loeb; remanded to Rule 702 evaluation. |
| Applicability of the statutory presumption | Presumption applies so long as lot identification is not required to be proven. | Presumption applies because the product conformed to state-of-the-art and FDA/USP standards. | Presumption applies; rebuttal remains a factual issue; summary judgment inappropriate. |
| Causation: whether manufacturing/distribution caused Alexis's death | Evidence supports that defective Promethazine Syrup Plain caused death or contributed significantly. | Evidence shows no proximate cause attributable to manufacturing/distribution; other factors negate causation. | Genuine issue of material fact; not plain and indisputable. |
| Cross-appeal: admissibility of Kulig and Nichols | Experts’ opinions should be considered despite differences among experts. | Disagreements among Plaintiffs' experts render their opinions unreliable. | Trial court did not err in admitting Kulig and Nichols' opinions. |
Key Cases Cited
- Kovach v. Caligor Midwest, 913 N.E.2d 193 (Ind. 2009) (standard for summary judgment de novo)
- Dickerson v. Strand, 904 N.E.2d 711 (Ind.Ct.App. 2009) (limitations on trial court weighing evidence at summary judgment)
- Jarboe v. Landmark Cmty. Newspapers of Indiana, Inc., 644 N.E.2d 118 (Ind.1994) (Indiana summary judgment burden-shifting procedure)
- Hagerman Constr., Inc. v. Copeland, 697 N.E.2d 948 (Ind.Ct.App. 1998) (reliability of laboratory testing and admissibility)
- Saliba v. State, 475 N.E.2d 1181 (Ind.Ct.App. 1985) (expert opinion admissibility; weight not admissibility)
- Yang v. Stafford, 515 N.E.2d 1157 (Ind.Ct.App. 1987) (admissibility of expert testimony; foundation and methodology)
- Kennedy v. Murphy, 659 N.E.2d 506 (Ind. 1995) (summary judgment burden shifting)