Burgess v. Webster

<bold>1. Pharmacists — misfilling of prescription</bold> <bold>— failure to instruct on peculiar susceptibility</bold> <block_quote> 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 hyper-sensitive 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<page_number>Page 727</page_number> 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.</block_quote> <bold>2. Witnesses — qualifications — expert</bold> <bold>testimony</bold> <block_quote> 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.</block_quote> <bold>3. Appeal and Error