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November 29, 1990

ANN R. FORMAN, Administratrix of the Estate of Brian Forman, deceased, Plaintiff,

The opinion of the court was delivered by: HARRIS

 This case is before the Court on defendant's post-trial motion for judgment n.o.v. or, alternatively, for a new trial, remittitur, or application of pro tanto credit. Upon consideration of the defendant's motion, plaintiff's opposition, and the entire record, the Court holds that plaintiff did not present any evidence to support a reasonable finding of either negligence or causation and therefore grants defendant's motion for judgment notwithstanding the verdict. In the alternative, the Court conditionally grants defendant's motion for a new trial on the grounds that the verdict is against the clear weight of the evidence and that plaintiff's counsel's opening statement unfairly prejudiced the defendant.


 This case arose out of the death of Brian Forman at age five following a persistent history of serious illness. Brian's mother brought this action on behalf of his estate, claiming wrongful death and survivorship damages against Dr. Pillsbury. Plaintiff also filed an action in New York against several doctors at Mt. Sinai Hospital in that city who had diagnosed and cared for Brian. The Court stayed this action pending resolution of the New York lawsuit, which settled on the last day of trial. After a two-week jury trial in this Court, the jury found in favor of the plaintiff and awarded her a total of $ 350,000.00.

 The evidence at trial showed, sadly, that Brian was an extremely ill child almost from birth. In 1981, Dr. Hirschhorn of Mt. Sinai Hospital diagnosed Brian's illness as Mixed Connective Tissue Disease. *fn1" Doctors at Mt. Sinai initiated treatment with Prednisone, a steroid, which the defendant in turn prescribed through a local pharmacy. The Prednisone treatment caused a variety of serious and painful side effects including vomiting, diarrhea, cyanosis and extreme lethargy. Brian's underlying illness also caused numerous uncomfortable symptoms. In April 1983, the Mt. Sinai doctors discontinued the Prednisone and began treatment with Imuran, a drug that suppresses white blood cell production. Because of this potentially dangerous effect, the doctors recommended a schedule for closely monitoring Brian's blood. The schedule called for weekly white blood count checks (WBCs) at the outset and monthly checks when Brian's white blood cell level became stable at a level between 4,000 and 10,000. Dr. Pillsbury prescribed the medicine through a local pharmacy and undertook to monitor the Imuran treatment according to the Mt. Sinai doctors' instructions. *fn2"

 Brian's Imuran treatment lasted from April 1983 until late September 1983 when a WBC done at Fairfax Pediatric Associates revealed a low white blood cell count of 2,300. Plaintiff notified a doctor at Mt. Sinai of this low count and he recommended discontinuing the Imuran treatment. Brian was diagnosed at Mt. Sinai hospital on October 6, 1983, as leukopenic secondary to Imuran; his white blood cell count had dropped to 600. Although the Imuran was discontinued, Brian's white blood cell count remained suppressed and Brian was admitted to Mt. Sinai several times between November 1983 and February 1984. Brian was admitted to Georgetown University Hospital through its emergency room on February 22, 1984. He suffered two coronary arrests and died on February 27, 1984.

 Plaintiff's theory at trial was that the Mt. Sinai monitoring schedule represented the standard of care and that Dr. Pillsbury was obligated to abide by the schedule. Uncontroverted evidence showed that WBCs were conducted consistently up to July 20, 1983, when Brian's white blood count was well within the target range. Defendant did not conduct all of the WBCs up to that time. After the July 20 WBC, the next test should have been performed in late August. Defendant was away from the Washington, D.C., area on vacation during that time, and a WBC was not performed until late September, when Fairfax Pediatric Associates discovered that Brian's count was low. Plaintiff contended that defendant should have made some alternative provision for a WBC during August to comply with Mt. Sinai's schedule. Defendant maintained that it was reasonable for him to expect that the plaintiff, an intelligent and well-educated woman who actively participated in her son's medical treatment, would arrange for a WBC at Fairfax Pediatric Associates or elsewhere.

 According to plaintiff's own testimony, she continually alternated calls and visits to the defendant and the Mt. Sinai doctors during Brian's illness, particularly during the Imuran treatment. Plaintiff's summary of Brian's medical treatment in her complaint included many actions taken by the Mt. Sinai doctors and many innocuous actions taken by the defendant. This complicated factual background included many allegations of negligence unconnected to the defendant and unsubstantiated by the proposed evidence. On defendant's pretrial motion, the Court orally clarified that the only relevant alleged negligence on Dr. Pillsbury's part was failing to monitor Brian's white blood cell count adequately. More specifically, the Court restricted the issue of negligence to defendant's failure to conduct a white blood cell check (WBC) in August 1983. *fn3"

 At the trial, plaintiff offered the testimony of two expert witnesses, Dr. Goldstein who testified and Dr. Smith whose deposition was read into the record. Dr. Goldstein testified that, in his opinion, defendant violated the relevant standard of care in failing to adhere to the monitoring schedule and to ensure that a WBC was done in August. Dr. Smith, on the other hand, refused to comment on any alleged breach of the standard of care. Both Dr. Goldstein and Dr. Smith gave the opinion that the Imuran, rather than Brian's underlying illness, caused his pancytopenia and death. Neither expert could give an opinion as to when the final white blood cell drop occurred. Dr. Smith stated that the drop "could have been any time in the course of use." In addition, both doctors conceded that it was unusual for the white blood cell count to drop permanently and admitted that they were unaware of a case of a permanently suppressed white blood cell count due to Imuran in medical literature. Neither of plaintiff's experts could give a prognosis for Brian's underlying illness. In contrast, defendant's three experts gave the opinion that Brian's underlying illness, and not the Imuran, caused his death. *fn4" Defendant's experts found no violation of the standard of care and opined confidently that the missed WBC did not contribute to Brian's death.

 Defendant's counsel moved for a directed verdict at the close of plaintiff's evidence and again at the close of all the evidence. The Court denied both motions and sent the case to the jury. The jury found in favor of the plaintiff and awarded her $ 175,000.00 on the survivorship claim and $ 175,000.00 on the wrongful death claim.


 The same standard governs motions for judgment n.o.v. as motions for directed verdict. Richardson v. Richardson-Merrell, Inc., 273 U.S. App. D.C. 32, 857 F.2d 823, 827 (D.C. Cir. 1988), cert. den., 493 U.S. 882, 107 L. Ed. 2d 171, 110 S. Ct. 218 (1989); Coburn v. Pan Am. World Airways, Inc., 229 U.S. App. D.C. 61, 711 F.2d 339, 342 (D.C. Cir.), cert. den., 464 U.S. 994, 104 S. Ct. 488, 78 L. Ed. 2d 683 (1983). The Supreme Court has stated repeatedly that the mere existence of "some" evidence to support a jury verdict does not preclude the entry of summary judgment or a directed verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202(1986) quoting Improvement Co. v. Munson, 81 U.S. 442, 448, 20 L. Ed. 867, 14 Wall. 442 (1872)). The proper inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. 106 S. Ct. at 2515. "Judgment n.o.v. is proper only if, viewing the evidence in the light most favorable to the [nonmoving party] and giving him the advantage of every fair and reasonable inference that the evidence may permit, there can be but one reasonable conclusion drawn." Richardson, 857 F.2d at 827.

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