BASIL O'DAY and TRACY MCCLURE, as Guardians Ad Litem for N.W.O., Plaintiffs and Appellants,
STEPHEN NANTON, M.D., Defendant and Appellee.
Considered On Briefs On October 2, 2017
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE MARK SALTER
“KIT” MCCAHREN of Olinger, Lovald, McCahren Van
Camp & Konrad, PC Pierre, South Dakota Attorneys for
plaintiffs and appellants.
A. SUDBECK MATTHEW D. MURPHY of Boyce Law Firm, LLP Sioux
Falls, South Dakota Attorneys for defendant and appellee.
GILBERTSON, Chief Justice.
Basil O'Day and Tracy McClure (Appellants), as Guardians
Ad Litem for N.W.O., sued Steven Nanton, M.D., for medical
malpractice alleging he improperly treated N.W.O. with the
drug Reglan. At the jury trial, Appellants attempted
to present undisclosed rebuttal testimony from an expert
witness and also requested a nonapportionment-of-damages jury
instruction. The circuit court excluded the undisclosed
expert witness offered in rebuttal from testifying, and it
denied Appellant's requested jury instruction. The jury
concluded Dr. Nanton was not negligent and returned a verdict
in his favor. The Appellants appeal, arguing that the circuit
court erred in excluding Appellants' rebuttal expert
witness and in refusing Appellants'
nonapportionment-of-damages jury instruction. We affirm.
and Procedural History
In September 2008, N.W.O. was referred to Dr. Nanton, a
pediatric gastroenterologist, to address severe
gastrointestinal issues. N.W.O. was about two months old. He
was vomiting and having trouble keeping food down that
resulted in fussiness, irritability, crying,
inconsolableness, and sleeplessness. Dr. Nanton subsequently
diagnosed N.W.O. with severe gastroesophageal reflux disease
(GERD). Over the course of 19 months, Dr. Nanton examined
N.W.O. a number of times, performed multiple tests, altered
formula and food types, and prescribed medications to treat
N.W.O.'s ailments. One of the medications Dr. Nanton
prescribed was Reglan.
Reglan use is recommended for a maximum of 12 weeks except in
cases where the therapeutic benefits outweigh the risks.
Although many adverse side effects have been associated with
Reglan use, Dr. Nanton testified that he believed the
benefits outweighed the risks in N.W.O.'s situation.
Throughout N.W.O.'s treatment, Dr. Nanton attempted to
wean N.W.O. off Reglan as his conditions improved, but
N.W.O.'s vomiting would reappear and the Reglan dosage
had to be reinstated.
On July 1, 2009, Tracy McClure, N.W.O.'s mother, started
noticing problems with N.W.O.'s development. She observed
issues relating to standing, balancing, and facial grimacing.
Ms. McClure also reported that N.W.O. exhibited uncoordinated
jerky motions. Dr. Nanton also noticed motor and
developmental delays in N.W.O. Subsequently, N.W.O. was
referred to pediatric neurologists to address N.W.O.'s
issues. During N.W.O.'s treatment course with Dr. Nanton,
various healthcare providers and physicians treated N.W.O.,
amounting to approximately 75 different hospital and clinic
visits. N.W.O. was also participating in both speech and
physical therapy. N.W.O. continued to use Reglan during this
time to combat his GERD symptoms.
As a result of seeing a television commercial on the side
effects of Reglan, Ms. McClure brought her concerns about
Reglan's side effects to the attention of N.W.O.'s
primary care physician. Dr. Nanton discussed N.W.O.'s
Reglan regiment with N.W.O.'s primary physician and his
attempts to wean N.W.O. off the drug. In March 2010, Dr.
Nanton informed N.W.O.'s primary physician to stop
N.W.O.'s use of Reglan because of Ms. McClure's
concerns. Dr. Nanton had no further involvement in
N.W.O.'s care after this exchange.
On May 9, 2012, Appellants filed a complaint against Dr.
Nanton alleging medical malpractice. Appellants claimed Dr.
Nanton breached the standard of care by treating N.W.O. with
Reglan and causing N.W.O. injury. A five-day jury trial
commenced in Sioux Falls on June 13, 2016.
During the jury trial, Appellants presented testimony from
one expert, Dr. John Sabow, to opine on both the standard of
care and legal causation. Dr. Sabow, a neurologist, testified
that professional literature informs doctors to refrain from
using Reglan in the very young due to its vast side effects.
Dr. Sabow stated that Dr. Nanton breached the standard of
care when he placed N.W.O. on Reglan. Because of N.W.O.'s
extended Reglan use and improper monitoring, Dr. Sabow
concluded that N.W.O. had been poisoned by Reglan. Dr. Sabow
testified that as a result, N.W.O. acquired a
neuropsychiatric organic brain dysfunction that caused N.W.O.
to have cognitive thinking problems, motor function issues,
and an induced Tourette's Syndrome.
Dr. Nanton presented testimony from Dr. Warren Bishop, a
fellow pediatric gastroenterologist, on the standard of care.
Dr. Bishop testified that he personally has used Reglan in
adolescent patients and that Dr. Nanton's decision to use
the drug was justified and appropriate. He further stated
that Reglan's side effects were outweighed by its
therapeutic benefits, especially in a case like N.W.O.'s.
Dr. Bishop concluded that Dr. Nanton's treatment of
N.W.O. met the standard of care throughout the time of
N.W.O.'s Reglan use. On the causation issue, Dr. Bishop
testified that Reglan did not cause N.W.O.'s problems. He
stated he was unable to find any article linking Reglan use
to a developmental disability or any article indicating
Reglan use can cause Tourette's Syndrome.
Dr. Nanton also presented the testimony of three other
experts on the issue of causation. First, Dr. Patrick Barnes,
Medical Section Chief of Pediatric Neuroradiology at
Stanford, testified through a videotaped deposition about
N.W.O.'s pre-Reglan brain imaging. From an ultrasound of
N.W.O.'s brain taken on his first day of life, Dr. Barnes
concluded that N.W.O.'s right and left cerebral
hemispheres were asymmetric, which indicated N.W.O. had an
underdeveloped brain. Dr. Barnes confirmed these findings by
an MRI taken of N.W.O.'s brain on his second day of life.
Dr. Barnes concluded that N.W.O.'s brain was
underdeveloped early in the pregnancy and caused N.W.O.'s
Expanding on Dr. Barnes' testimony, Dr. Bradley Schaeffer
testified by videotaped trial deposition. Dr. Schaeffer is
the Founding Director for the Division of Medical Genetics at
the University of Arkansas. He testified that N.W.O.'s
MRI showed an abnormal brain at birth and this abnormality is
what caused N.W.O.'s developmental delays. Dr. Schaeffer
concluded that N.W.O.'s problems were not caused by
Reglan but were present from birth.
Lastly, Dr. Nanton called Dr. Donald Chadwick, a pediatric
neurologist. Using N.W.O.'s brain MRI, Dr. Chadwick
testified in person that N.W.O. had an abnormal brain at
birth, which is consistent with N.W.O.'s exhibited
developmental delays. After personally examining N.W.O. and
his medical ...