#27953-a-DG
2017 S.D. 90


                         IN THE SUPREME COURT
                                 OF THE
                        STATE OF SOUTH DAKOTA


                                ****

BASIL O’DAY and TRACY MCCLURE,
as Guardians Ad Litem for N.W.O.,        Plaintiffs and Appellants,

     v.

STEPHEN NANTON, M.D.,                    Defendant and Appellee.


                                ****
                 APPEAL FROM THE CIRCUIT COURT OF
                    THE SECOND JUDICIAL CIRCUIT
                 MINNEHAHA COUNTY, SOUTH DAKOTA
                                ****
                     THE HONORABLE MARK SALTER
                               Judge
                                ****


LEE C. “KIT” MCCAHREN of
Olinger, Lovald, McCahren
 Van Camp & Konrad, PC
Pierre, South Dakota                     Attorneys for plaintiffs and
                                         appellants.

ROGER A. SUDBECK
MATTHEW D. MURPHY of
Boyce Law Firm, LLP
Sioux Falls, South Dakota                Attorneys for defendant and
                                         appellee.

                                ****

                                         CONSIDERED ON BRIEFS
                                         ON OCTOBER 2, 2017
                                         OPINION FILED 12/20/17
#27953

GILBERTSON, Chief Justice

[¶1.]         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.

                           Facts and Procedural History

[¶2.]         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. 1



1.      Reglan is a brand name for Metoclopramide. According to Dr. Nanton,
        Reglan works to promote the emptying of the stomach into the intestine so
                                                         (continued . . .)
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[¶3.]         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.

[¶4.]         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.




________________________
(. . . continued)
         reflux does not occur, but Dr. Nanton admitted there are possibilities of side
         effects. Appellants expert, Dr. John Sabow, testified at trial that the side
         effects can include tardive dyskinesia, which exhibit symptoms of irregular
         mouth movements, grimacing, twisting, and other involuntary, abnormal
         movements. Dr. Sabow also testified that side effects can include
         extrapyramidal dysfunction disorders manifesting themselves through
         convulsions and sudden stiffening.

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[¶5.]        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.

[¶6.]        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.

[¶7.]        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.

[¶8.]        Dr. Nanton presented testimony from Dr. Warren Bishop, a fellow

pediatric gastroenterologist, on the standard of care. Dr. Bishop testified that he


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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.

[¶9.]        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 developmental

problems.

[¶10.]       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




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#27953

developmental delays. Dr. Schaeffer concluded that N.W.O.’s problems were not

caused by Reglan but were present from birth.

[¶11.]       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 records,

Dr. Chadwick concluded that Reglan did not cause N.W.O.’s developmental delays.

[¶12.]       At the close of Dr. Nanton’s case-in-chief, Appellants attempted to

present rebuttal testimony from Dr. Sabow to refute the MRI images discussed by

Dr. Nanton’s experts that described N.W.O.’s abnormal brain at birth. Dr. Nanton

objected because Dr. Sabow’s opinion was untimely disclosed and would be

prejudicial. Appellants argued that they were unaware the MRI was going to be

used as a basis for Dr. Nanton’s experts’ opinions; Dr. Sabow was present during

Dr. Chadwick’s testimony and should be allowed to rebut the opinions as to what

N.W.O.’s MRI depicts; and Dr. Sabow’s rebuttal testimony was not required to be

disclosed.

[¶13.]       The circuit court excluded Appellants’ rebuttal expert testimony

because Dr. Sabow’s opinion as to the MRI images was new and undisclosed; the

Appellants knew the topic would be part of the trial; and the potential for prejudice

against Dr. Nanton favored exclusion.

[¶14.]       In settling jury instructions, Appellants also requested a

nonapportionment-of-damages jury instruction. The instruction provided that

Appellants could recover if the jury found Reglan aggravated N.W.O.’s pre-existing


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condition. The circuit court stated that the Appellants had argued throughout the

trial that N.W.O. was a healthy baby at birth and Reglan was the cause of N.W.O.’s

developmental problems, while Dr. Nanton’s entire defense was based on the

opposite rationale. Thus, the circuit court refused to give the instruction to the jury

because there was no evidence in the record to support it.

[¶15.]       Following deliberation, the jury returned a verdict in favor of Dr.

Nanton on June 17, 2016. The jury concluded via a special verdict form that Dr.

Nanton was not negligent.

[¶16.]       The Appellants appeal, raising two issues:

             1.     Whether the circuit court erred in excluding Appellants’
                    expert’s undisclosed rebuttal testimony.

             2.     Whether the circuit court erred in refusing Appellants’
                    requested jury instruction.

                                 Standard of Review

[¶17.]       A “circuit court has discretion in admitting or excluding expert

testimony, and therefore, we review a court’s evidentiary ruling on expert testimony

for an abuse of discretion.” Thompson v. Avera Queen of Peace Hosp., 2013 S.D. 8, ¶

7 n.1, 827 N.W.2d 570, 573 n.1. “An abuse of discretion refers to a discretion

exercised to an end or purpose not justified by, and clearly against reason and

evidence.” Kaiser v. Univ. Physicians Clinic, 2006 S.D. 95, ¶ 29, 724 N.W.2d 186,

194 (quoting State v. Henry, 1996 S.D. 108, ¶ 10, 554 N.W.2d 472, 473). “Not only

must this Court find that the [circuit] court abused its discretion . . . , but it must

find that the jury’s consideration of the erroneously excluded evidence might and

probably would have resulted in a different finding by the jury in order to warrant a


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#27953

reversal of the [circuit] court.” Schrader v. Tjarks, 522 N.W.2d 205, 209-10 (S.D.

1994).

[¶18.]         Likewise, “we generally review a [circuit] court’s decision to grant or

deny a particular [jury] instruction under the abuse of discretion standard.” Papke

v. Harbert, 2007 S.D. 87, ¶ 13, 738 N.W.2d 510, 515. Further, we have stated:

               [N]o court has discretion to give incorrect, misleading,
               conflicting, or confusing instructions: to do so constitutes
               reversible error if it is shown not only that the instructions were
               erroneous, but also that they were prejudicial. Erroneous
               instructions are prejudicial under SDCL 15-6-61 when in all
               probability they produced some effect upon the verdict and were
               harmful to the substantial rights of a party. Accordingly, when
               the question is whether a jury was properly instructed overall,
               that issue becomes a question of law reviewable de novo.

Id. (citations omitted) (quoting Vetter v. Cam Wal Elec. Coop., Inc., 2006 S.D. 21, ¶

10, 711 N.W.2d 612, 615).

                                Analysis and Decision

[¶19.]         1.    Whether the circuit court erred in excluding
                     Appellants’ expert’s undisclosed rebuttal testimony.

[¶20.]         Appellants first contend that the circuit court abused its discretion in

excluding Dr. Sabow’s rebuttal testimony offered in response to Dr. Chadwick’s

interpretation of N.W.O.’s brain images as showing an abnormal brain at birth. 2

Appellants argue that they were not required to disclose Dr. Sabow’s rebuttal

testimony because the pretrial scheduling order that included a deadline for expert

witness disclosure did not mention rebuttal witnesses specifically, and the

2.       Appellants also contend that Dr. Sabow’s rebuttal testimony was offered in
         response to Dr. Nanton raising an affirmative defense; however, the record is
         absent any indication an affirmative defense was raised other than Dr.
         Nanton’s original statute of limitations defense, which was not argued at
         trial.

                                            -7-
#27953

disclosure of rebuttal witnesses is not required in South Dakota. See Sorensen v.

Harbor Bar, LLC, 2015 S.D. 88, ¶ 31, 871 N.W.2d 851, 857 (“Disclosure of rebuttal

witnesses has never been required in South Dakota by statute, rule, or caselaw.”).

Without clarifying further, Appellants stated in their brief that the erroneous

exclusion of Dr. Sabow’s rebuttal testimony was prejudicial and “must have

influenced the jury’s deliberations” because it went to a central issue to their case.

[¶21.]         “[O]ur review requires a two-step process; first, to determine whether

the trial court abused its discretion in making an evidentiary ruling; and second,

whether this error was a prejudicial error that ‘in all probability’ affected the jury’s

conclusion.” Supreme Pork, Inc. v. Master Blaster, Inc., 2009 S.D. 20, ¶ 59, 764

N.W.2d 474, 491. Even assuming, without deciding error occurred, that the circuit

court abused its discretion in excluding Dr. Sabow’s rebuttal testimony, we find

such an error harmless.

[¶22.]         Appellants argue that Dr. Sabow would have contrasted Dr.

Chadwick’s interpretation of N.W.O.’s MRI by stating that the image showed

N.W.O. had a normal brain at birth and that his developmental delays were caused

by Reglan. 3 Dr. Sabow’s testimony, if believed, would go to causation; but the jury



3.       While Appellants suggest Dr. Sabow was called to rebut the testimony of Dr.
         Chadwick, the record is suspect of an inadequate offer of proof on what Dr.
         Sabow would testify to. See Thomson v. Mehlhaff, 2005 S.D. 69, ¶ 21, 698
         N.W.2d 512, 520 (“[T]he proponent of excluded evidence must also attempt to
         offer the excluded evidence at trial and make an offer of proof.”); see also
         Wilcox v. Vermeulen, 2010 S.D. 29, ¶ 20, 781 N.W.2d 464, 471 (failure to
         make an offer of proof on excluded testimony precludes review of the issue);
         SDCL 19-19-103(a)(2). During trial, Appellants’ counsel stated that Dr.
         Sabow was going to rebut the conclusions made by Dr, Nanton’s experts from
         the MRI images. Other than what Appellants suggested in their brief to this
                                                              (continued . . .)
                                             -8-
#27953

did not reach the issue of causation. In a special verdict form, the jury was told to

answer certain questions. The first question required the jury to answer “YES” or

“NO” in response to: “Do you find that the Defendant Dr. Steven Nanton was

negligent?” Relevant to that question, Instruction 22 informed the jury:

             A specialist in a particular field of medicine has the duty to
             possess that degree of knowledge and skill ordinarily possessed
             by physicians of good standing engaged in the same field of
             specialization in the United States.

             A specialist also has the duty to use that care and skill
             ordinarily exercised under similar circumstances by physicians
             in good standing engaged in the same field of specialization in
             the United States and to be diligent in an effort to accomplish
             the purpose for which the physician is employed.

             A failure to perform any such duty is negligence.

Additionally, Instruction 24 informed the jury:

             In determining whether Dr. Nanton was negligent in selection of
             his method of treatment, you should consider the judgment in
             light of all the attendant circumstances at the time he acted.
             You should not judge Dr. Nanton by after-acquired knowledge or
             by the results of the treatment. In view of all the facts and the

________________________
(. . . continued)
         Court, we still do not know the exact opinions Dr. Sabow holds as to N.W.O.’s
         MRI images or his conclusions based on them. However, the substance of Dr.
         Sabow’s proposed testimony was apparent from the context—in that he
         believed N.W.O.’s brain was normal at birth—even though a formal offer of
         proof was not provided. See SDCL 19-19-103(a)(2); see also State v. Ralios,
         2010 S.D. 43, ¶ 53 n.5, 783 N.W.2d 647, 661 n.5 (stating that the sufficiency
         of an offer of proof before the trial court should be left to its discretion).
         Probably the least favored methods for an offer of proof is one of testimony by
         counsel because it carries the risk of failing to meet the standards of a good
         offer of proof—specificity and detail. United States v. Adams, 271 F.3d 1236,
         1242 (10th Cir. 2001); see 75 Am. Jur. 2d Trial § 372, Westlaw (database
         updated November 2017) (certainty and detail are needed in narrative offers
         of proof by counsel because there is a great risk that the court will find it
         insufficient).


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#27953

             state of knowledge of the profession at the time Dr. Nanton
             acted, the proper test is whether the treatment employed was in
             conformity with the accepted standards of skill and care at that
             time.

The jury checked “NO” on the special verdict form, finding that Appellants did not

prove Dr. Nanton was negligent.

[¶23.]       An action in negligence generally requires a plaintiff to prove “duty,

breach of that duty, proximate and factual causation, and actual injury.” Hamilton

v. Sommers, 2014 S.D. 76, ¶ 21, 855 N.W.2d 855, 861 (quoting Bernie v. Catholic

Diocese of Sioux Falls, 2012 S.D. 63, ¶ 15, 821 N.W.2d 232, 240). Here, because the

jury answered “NO” in response to the question whether Dr. Nanton was negligent,

the jury was not required to decide the next questions on the special verdict form

related to causation and damages. The question on causation required the jury to

answer “YES” or “NO” to: “Do you find that Dr. Nanton’s negligence was the legal

cause of the Plaintiffs’ injuries or damages?” The third question required the jury to

“[s]et forth the amount of damages [it finds] to be legally caused by Dr. Nanton’s

negligent conduct[.]” Because Dr. Sabow’s rebuttal testimony went to the issue of

causation and not Dr. Nanton’s duty or breach of that duty, and the jury did not

reach the issue of causation, Appellants have failed to establish “the jury might and

probably would have returned a different verdict if the alleged error had not

occurred.” Supreme Pork, Inc., 2009 S.D. 20, ¶ 58, 764 N.W.2d at 491 (quoting

Sander v. Geib, Elston, Frost Prof’l Ass’n, 506 N.W.2d 107, 113 (S.D. 1993)).




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[¶24.]         2.     Whether the circuit court erred in refusing
                      Appellants’ requested jury instruction.

[¶25.]         The Appellants argue the circuit committed reversible error when it

refused to give the jury a nonapportionment-of-damages instruction. The requested

instruction stated:

               If you find that the Plaintiffs are entitled to recover for an
               aggravation of a pre-existing injury, but you cannot logically,
               reasonably or practically apportion Plaintiffs’ present and future
               injuries between the injury caused by the pre-existing injury
               and the aggravation caused by the Defendants’ conduct, then
               you may award damages for all present and future injuries
               caused by both the pre-existing injury and Defendants’ conduct.

The Appellants state that the circuit court deprived the jury of the opportunity to

conclude that N.W.O. had a pre-existing condition and that Reglan aggravated this

condition. 4

[¶26.]         “To establish reversible error from a [circuit] court’s refusal to give a

requested instruction, the party asserting error must show that (1) the tendered

instruction was a correct statement of the law, (2) the instruction was warranted by

the evidence, and (3) the error in not giving the instruction was prejudicial.” State

v. Engesser, 2003 S.D. 47, ¶ 43, 661 N.W.2d 739, 753. Here, although Appellant’s

requested instruction was a correct statement of the law, it was not warranted by

the evidence.




4.       Appellants also argue the prejudice created by the exclusion of Dr. Sabow’s
         rebuttal testimony was compounded by the circuit court’s refusal to provide
         the jury with a nonapportionment-of-damages instruction. However, these
         arguments are mutually exclusive. Dr. Sabow’s alleged testimony of N.W.O.’s
         MRI depicting a normal brain at birth would run counter to an argument
         that N.W.O. had a pre-existing condition that Reglan aggravated.

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[¶27.]        Appellants’ requested nonapportionment-of-damages jury instruction

applies where evidence of a pre-existing injury is aggravated. “[A circuit] court is

not required to instruct on matters that find no support in the evidence.” State v.

Carter, 2009 S.D. 65, ¶ 54, 771 N.W.2d 329, 344 (quoting State v. Mulligan, 2007

S.D. 67, ¶ 43, 736 N.W.2d 808, 822). Thus, the circuit court stated, and we agree,

that the record is absent any expert opinion that N.W.O.’s developmental delays

were aggravated by his Reglan use. Appellants’ expert, Dr. Sabow, instead argued

throughout trial that N.W.O. was healthy at birth and that he had since acquired a

neuropsychiatric organic brain dysfunction caused by Reglan. In contrast, Dr.

Nanton presented evidence that N.W.O. had developmental delays from birth and

that Reglan did not cause N.W.O.’s issues. Because the instruction was not

warranted by the evidence, the circuit court did not abuse its discretion when it

refused it.

[¶28.]        Because the circuit court did not err in excluding Appellants’

undisclosed expert’s rebuttal testimony and in refusing Appellants’ requested jury

instruction, we affirm.

[¶29.]        ZINTER and SEVERSON, Justices, and WILBUR, Retired Justice,

and STRAWN, Circuit Court Judge, concur.

[¶30.]        STRAWN, Circuit Court Judge, sitting for KERN, Justice, disqualified.

[¶31.]        JENSEN, Justice, not having been a member of the Court at the time

this action was assigned to the Court, did not participate.




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