MSC remands case on issue of foreseeable of rare drug side effect

In May 2010, the Michigan Court of Appeals ruled that a rare side effect of an anticonvulsant drug was foreseeable for the purposes of a medical malpractice action. The side effect, called Stevens-Johnson syndrome, wound up causing the patient’s death eight days later.

The appeals court upheld the trial court’s determination, stating “the issue is not whether defendants should have foreseen that Jamar would develop this syndrome, but rather whether they should have foreseen the possibility that as a result of taking the medication, Jamar, like any other patient being prescribed the medication, bore a risk of developing the syndrome.”

The court continued, “The evidence shows that [Tegretol] contained warnings that Stevens-Johnson syndrome may result. Thus it was foreseeable that the prescribing of [Tegretol] created a risk, albeit a small one, that Jamar could contract Stevens-Johnson syndrome.”

The court said the unlikelihood of developing the disease does not diminish that it was the proximate cause of the disease, comparing it to the foreseeability of speeding causing an auto accident.

“We are unfamiliar with any body of law that would allow a defendant to argue, let alone a jury to find, that because there are thousands of incidents of speeding that do not result in an auto accident, for each one that does, a defendant’s excessive speed in a given case cannot be considered a proximate cause of the given crash,” the court wrote.

Judge Joel Hoekstra dissented, arguing it should have been a jury question.

In a 4-3 order, the Michigan Supreme Court agreed, reversing the decision and remanding it back to the trial court.

The lower courts erred by granting partial summary disposition to plaintiffs on the issue of proximate causation here. The lower courts presumed that because the development of Stevens-Johnson Syndrome is a known risk of prescribing tegretol, proximate causation is per se established. After presuming that plaintiff could prove negligence, the lower court “collapse[d]” factual and proximate causation such that the two were “essentially indistinguishable,” Jones v Detroit Medical Ctr, 288 Mich App 466, 481 (2010), contrary to traditional standards for determining proximate causation. For a plaintiff to prevail on proximate cause at the summary disposition stage, it must be shown that reasonable minds cannot differ that injury was a foreseeable, natural, and probable consequence of the defendant’s negligence. Here, viewing the evidence in the light most favorable to defendants, there is a question of fact in this regard that should be submitted to the trier of fact rather than decided as a matter of law.

All three Democratic justices dissented. Justice Diane M. Hathaway argued the case was properly decided in the Court of Appeals.

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Malicious prosecution suit fails because prosecutor didn’t rely upon detective’s faulty report for probable cause

The 6th U.S. Circuit Court of Appeals has upheld the dismissal of a Troy man’s malicious prosecution suit against the Oakland County Prosecutor and the City of Troy, because the prosecutor

Gerald Molnar was acquitted of sexually abusing his nine year old daughter. During the investigation, Molnar’s daughter told police that Molnar had touched her in a sexual way. However, both Molnar and his girlfriend both told Troy detective Janice Pokley that the charges were brought in retaliation for Molnar threatening to go to authorities because his ex-wife, Renee, allowed her brother, a convicted sex offender, to be around their daughter. Pokley was also told by the girlfriend that she was there at all times when he was with his daughter and the incident did not happen.

Pokley included the daughter’s statement, but not Molnar’s and his girlfriend’s statement, into her report to the Oakland prosecutor.

Molnar brought Section 1983 and 1985 claims against the defendants, arguing that the city and prosecutor falsely created probable cause.

The Sixth Circuit affirmed the district court’s dismissal, stating:

Molnar argues that Officer Pokely (1) fabricated probable cause and (2) failed to disclose exculpatory information. As evidence of these claims, he points to Officer Pokely’s failure to disclose in her police report that his girlfriend corroborated his statements and that Renee’s brother
was a pedophile. However, what was excluded from Pokely’s police report is simply not material to resolving the issue of whose statements the state court relied on to establish probable cause. At the preliminary hearing, the Prosecutor called one witness, Elizabeth. Molnar, in rebuttal, called Renee, Pokely, and Allen. Even accepting Molnar’s allegation that Detective Pokely “knowingly
supplied the magistrate with false information,” Darrah, 255 F.3d at 311, the state court did not rely on her testimony to establish probable cause. Rather, it bound him over for trial based on Elizabeth’s “very believable” testimony. Thus, Molnar’s reliance on Darrah is misplaced, because the state court relied on the victim’s testimony to establish probable cause.

The unpublished opinion can be found here.