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E-Alert Case Updates

Classification of Prescription Medicine Is Properly Subject of Judicial Notice, and Notice May Be Taken in Rebuttal Case

Heather P. Peirce v. Linda Fazenbaker
(November 28, 2016) Court of Special Appeals of Maryland

by Matthew J. McCloskey, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://www.mdcourts.gov/appellate/unreportedopinions/2016/1293s14.pdf

In a recent unreported opinion, the Court of Special Appeals of Maryland held that the classification of a prescription drug is properly the subject of judicial notice, and that such notice may be taken during a plaintiff’s rebuttal case.  Furthermore, the Court re-emphasized the necessity of a contemporaneous objection to preserve issues for appellate review, even when the objection relates to a statement made in a closing argument.

On January 8, 2009, Plaintiff had an appointment with her primary-care physician related to a rash and blisters she was experiencing on her body.  Plaintiff had previously been prescribed propylthiouracil (“PTU”) as treatment for hyperthyroidism.  Because Plaintiff’s physician was not familiar with PTU or its side effects, she referred Plaintiff to Defendant.  Defendant advised Plaintiff to stop taking PTU, but the rash persisted for approximately two (2) more weeks.  The rash subsequently dissipated.  Plaintiff was not advised to resume taking PTU. 

Approximately six (6) months later, Plaintiff’s condition deteriorated, and she was hospitalized due to pneumonia, congestive heart failure, and elevated thyroid levels.  Plaintiff was prescribed Cephalexin, an antibiotic belonging to the cephalosporin class of drugs, to address some of these issues.  Defendant also prescribed high dosages of PTU in an attempt remedy Plaintiff’s high thyroid level.  Plaintiff subsequently developed another rash.  Plaintiff’s condition worsened, and she was eventually transferred to another hospital.

Plaintiff sued Defendant, asserting that Defendant negligently failed to ascertain that her rash was caused by PTU and exacerbated her other medical issues by re-prescribing large doses of PTU.  At trial, Plaintiff’s expert witness testified within a reasonable degree of medical certainty that Plaintiff’s rash was caused by PTU.  In response, Defendant presented the testimony of an expert witness who testified that he did not have an opinion to a reasonable degree of medical certainty as to whether Plaintiff’s rash was caused by PTU or cephalosporin. 

Defendant thereafter argued that the rash may have been caused by cephalosporin.  As a result, Plaintiff asked the Court to take judicial notice that Cephalexin is a type of cephalosporin.  Plaintiff stated that she was not seeking judicial notice for the purposes of establishing that Defendant prescribed Cephalexin to Plaintiff, but rather because Defendant suggested that cephalosporin was the cause of Plaintiff’s rash.  Defendant objected to Plaintiff’s request, arguing that this request was not the proper subject of judicial notice and instead required expert testimony.  Defendant also argued that it was improper to take judicial notice of this fact during Plaintiff’s rebuttal case.  Over Defendant’s objection, the Court took judicial notice of the fact. 

During closing argument, Plaintiff’s counsel noted that Plaintiff had previously taken a cephalosporin and experienced no issues approximately one (1) year prior to the events relevant to this case.  Defendant did not object to this statement.  The jury returned a verdict for Plaintiff.  Defendant appealed.

On appeal, Judge Timothy E. Meredith, writing for the Court, affirmed.  First, the Court noted that “the categorization of Cephalexin as a cephalosporin is a factual matter, in the ‘look it up’ category.”  Consequently, the Circuit Court did not err in concluding that the classification of Caphalexin was an appropriate subject for judicial notice. 

Second, the Court found no error in the Circuit Court’s decision to take judicial notice during Plaintiff’s rebuttal case.  Maryland Rule 5-201(f) permits a court to take judicial notice “at any stage of the proceeding.”  Furthermore, because Defendant’s experts raised the issue of whether cephalosporin was the true cause of Plaintiff’s rash, Plaintiff was permitted to respond to that argument in her rebuttal.

Finally, the Court held that Defendant’s appellate argument that Plaintiff’s counsel’s closing argument was improper was waived.  In order to preserve an issue for review, counsel was required to make an objection on the record at the time of objectionable statement.  Because Defendant did not object contemporaneously, or indeed at all, to Plaintiff’s closing argument, this argument was unpreserved and the Court declined to consider it.  Accordingly, the Court affirmed the jury’s verdict against Defendant.


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