concluding that “a defendant is not entitled to a double reduction of damages; that is, the same action or inaction of the plaintiff that justifies a comparative negligence instruction should not also authorize a reduction of damages under the doctrine of mitigation or avoidable consequences”
How later courts described this case
- concluding that “a defendant is not entitled to a double reduction of damages; that is, the same action or inaction of the plaintiff that justifies a comparative negligence instruction should not also authorize a reduction of damages under the doctrine of mitigation or avoidable consequences”
- applying to a pharmacist the traditional standard of care as enunciated in a 1910 case, but suggesting that the pharmacist would also be liable under the more modern standard, which is the skill and diligence exercised by similar professionals
- holding expert testimony was not necessary to show professional negligence where a pharmacist filled a prescription with the wrong drug
- based on pharmacist's own testimony, court found standard of care breached when that pharmacist filled prescription with wrong drug, dispensed it to patient, and failed to discover after neglecting two checks that would have uncovered the error
Written by the judges who cited it.
Later courts went against this
Declined to follow by Parkerson v. Nanton, 876 So. 2d 1228 (2004)
Although we recognize that this theory has been adopted in other jurisdictions, see, e.g., Childs v. Franco, 563 F.Supp. 290, 292 (E.D.Pa.1983); Larson v. A.T.S.I., 859 P.2d 273, 275 (Col.App.1993); Lowe v. Kang, 167 Ill.App.3d 772, 118 Ill.Dec. 552, 521 N.E.2d 1245, 1247-48 (1988); Walter v. Wal-Mart Stores, Inc., 748 A.2d 961, 967 (Me.2000); Kohne v. Yost, 250 Mont. 109, 818 P.2d 360, 362 (1991); and Francis v. Pou…
The opinion
WATHEN, C.J.,
with whom RUDMAN and DANA, JJ., join, concurring.
[¶ 40] I concur in the result, but I reach that result on different grounds. It is problematic whether a judgment as a matter of' law in favor of a plaintiff in a negligence action can ever be upheld in the absence of a testimonial confession by the defendant or an admission by counsel. See Lewis v. Knowlton, 1997 ME 12 , 688 A.2d 912 . In my judgment, defense counsel in this case admitted liability in his opening statement when he told the jury that Wal-Mart had never denied liability and that the only issue concerned the amount of fair and just compensation. Having made that statement, he then sought to try the issue of liability behind the jurors’ backs. To countenance such a strategy would be to ignore the requirement of the Maine Bar Rules that trial counsel employ “such means only as are consistent with truth, and shall not seek to mislead the ... jury ... by any artifice or false statement of fact or law.” M. Bar R. 3.7(e)(l)(i). I would affirm the judgment on the basis that defense counsel admitted liability.