## Facts

- An 80-year-old cancer patient was prescribed chlorambucil (a chemotherapy drug) by her oncologist, who used the generic name to avoid confusion with similar drug names.
- The patient filled the prescription at a retail pharmacy operated by the defendant’s employee pharmacist.
- The pharmacist mistakenly dispensed melphalan (a different, more potent chemotherapy drug) and provided written drug information describing melphalan and potential side effects.
- The pharmacist did not speak with the patient when filling the prescription and later admitted the dispensing mistake and failures in his checking process.
- The patient took the medication as directed for chlorambucil and developed serious symptoms, including nausea, bruising, and rash.
- After several days, she contacted her doctor, who told her to stop the medication immediately; she was hospitalized the same day.
- The patient was hospitalized for five weeks, underwent transfusions, suffered infections and gastrointestinal bleeding, and experienced lasting weakness and depression; medical bills were about $71,042.63.
- The trial court granted judgment as a matter of law for the patient on liability, leaving damages to the jury; the jury awarded $550,000.

## Issues

1. Whether the trial court properly granted judgment as a matter of law on liability, removing negligence, proximate cause, and comparative negligence from the jury.
2. Whether the trial court erred in denying the defendant’s motion for judgment as a matter of law.
3. Whether the trial court abused its discretion in denying a mistrial based on alleged improper closing argument.
4. Whether the damages award was excessive and reflected jury bias or prejudice.

## Decision

- The Supreme Judicial Court of Maine affirmed.
- The court upheld judgment as a matter of law on liability because the pharmacist’s negligence and causation were effectively conceded and no reasonable view of the evidence could support a defense verdict.
- The court rejected comparative negligence based on the patient’s conduct, treating it as a mitigation (avoidable consequences) question rather than fault contributing to the dispensing error.
- The court held the trial judge’s curative actions during closing argument supported denial of mistrial.
- The court upheld the $550,000 award as supported by the evidence and not the product of passion or prejudice.

## Legal Principles

- Judgment as a matter of law is proper when, viewing the evidence most favorably to the nonmovant, no reasonable factfinder could find for that party on liability.
- A party’s clear trial concession and a professional’s admissions about breaching the standard of care may establish negligence and support judgment as a matter of law.
- Comparative negligence concerns conduct that contributes to the occurrence of the tortious event; post-injury conduct typically concerns mitigation under the avoidable consequences doctrine and affects damages rather than liability.
- Denial of mistrial based on closing argument is reviewed for abuse of discretion; sustained objections and curative instructions weigh against a finding of reversible prejudice.
- A damages award will be upheld if supported by the evidence and not shown to result from bias, prejudice, or passion.

## Conclusion

The court affirmed a liability determination as a matter of law against the pharmacy operator for an admitted dispensing error causing severe injury, held that the patient’s alleged delay in responding to symptoms went to mitigation rather than comparative fault, and sustained the jury’s damages award.


Walter v. Wal-Mart Stores, Inc., 748 A.2d 961 (Me. 2000)