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Procedure and Substance

Last updated on: October 7, 2021

Procedure and SubstanceOne of the most frustrating aspects of litigation is the almost endless procedures and complicated court rules that the parties must endure on the way to seeking justice. Procedures sometimes get in the way of substance, much like misplaced focus on a single tree prevents us from seeing a whole forest.

A recent case, Burkes v. Fred’s Stores of Tennessee, demonstrates the problems that can occur when too much emphasis is placed on following court rules and scant attention is paid to the facts at hand.

A suit that has taken four years to move to trial illustrates the problem of paying more attention to court procedures than the facts of the case itself.


In August 1996, suffering from leg cramps, the plaintiff consulted her physician. He prescribed quinine sulfate. The plaintiff took her prescription to the defendant-pharmacy located in Lexington, Mississippi. Although it is highly disputed, it appears that the pharmacist mistakenly filled the prescription with quinidine. In any event, the label on the container indicated the drug was quinidine, not the quinine that had been prescribed.

The plaintiff did not notice the difference in the names. Not knowing that she had the wrong drug, the plaintiff took her medication as directed on the label for two weeks. She began suffering severe stomach cramps and was admitted to a hospital in Jackson with gastritis. During her stay, the error was discovered. She was discharged a few days later with a diagnosis on her chart of “adverse drug reaction to quinidine.”


She sued the pharmacy corporation and the individual pharmacist in a Mississippi court for negligence in filling her prescription. Her lawsuit was filed on December 4, 1996. The defendants answered the complaint on January 7, 1997, and began discovery by asking the plaintiff to produce all records in support of her claims. As part of the request, the defendants asked the plaintiff to list her expert witnesses and state the basis for their testimony. The plaintiff responded to the discovery requests over a period of time from February 16, 1997 to April 11, 1997.

On March 24, 1997, the plaintiff filed documents indicating two expert witnesses, one a Ph.D. and the other a Pharm.D., both employed by the University of Mississippi School of Pharmacy. She also listed the name of her treating physician. She did not, however, designate the subject matter on which the experts were expected to testify, the substance of the facts and opinions they were expected to provide, or a summary of each expert’s opinion.

In answer to the plaintiff’s discovery requests, the defendants admitted that the pharmacist “mistakenly mislabeled the medicine dispensed to the plaintiff as quinidine sulfate instead of quinine sulfate.” The pharmacist did not, however, admit that he dispensed quinidine instead of quinine. In fact, he never indicated what he dispensed, limiting the admission only to mislabeling the vial. The plaintiff unsuccessfully attempted to employ other discovery methods to pin down the defense. The plaintiff tried to take the deposition of the pharmacist on several occasions but he refused to appear.

On April 15, 1997, the defendants “removed” the lawsuit from the state court system to the federal district court sitting in Mississippi. Removal is a procedure often employed by corporate defendants that are headquartered outside of the state where the complaint is filed. Right or wrong, this tactic is employed on the belief that the outside corporation will be treated “fairer” by the federal court system where a jury pool consists of residents from a much larger area. In state courts, the jury pool is usually composed of residents from the county where the plaintiff lives. Local residents are presumed to be more sympathetic to the plaintiff than an outside corporation.

Upon the filing of the motion to remove the case, discovery ceased. This is normal because discovery rules differ between state and federal courts. Discovery is usually postponed until the courts determine where the proper venue is. The federal district court determined on December 12, 1997, that jurisdiction was proper in the state court, not the federal court. Accordingly, the case was “remanded” back to the court where the complaint was originally filed.

On January 8, 1998 (well over a year after the lawsuit began), the defendants filed a Motion for Summary Judgment, asking the judge to throw out the lawsuit, or in the alternative, to compel more discovery. On April 21, 1998, the state court judge realized that discovery had ceased during the removal proceeding. He then entered an amended scheduling order that extended discovery until August 15, 1998. He held the defendants’ Motion for Summary Judgment in abeyance until after the new discovery deadline. Under the court rules, within a few weeks of the new scheduling order, the plaintiff should have again designated expert witnesses and listed the basis for their testimony. This was not done.

The defendants filed a renewed motion to either compel discovery or dismiss the case. On June 16, 1998, the judge entered an order compelling the plaintiff to designate experts on or before June 22, 1998. The plaintiff did not comply and on July 6, 1998, the defendants again asked the judge to dismiss the case. On August 24, 1998, the judge entered an order of summary judgment in favor of the defendants. The judge specifically found that the plaintiff had failed to “properly” designate experts as ordered and, as a result, cannot prove her case. The plaintiff asked the judge to reconsider, pointing out that experts were originally named on March 24, 1997. The request for reconsideration was denied on August 27, 1998. A final order of dismissal was entered
on May 3, 1999. The plaintiff appealed to the Mississippi Court of Appeals.

Appellate Decision

On October 3, 2000, nearly four years after the lawsuit started, the Court of Appeals rendered its decision. It reversed the lower court ruling and ordered the case scheduled for trial. It was clear to the appeals court that the plaintiff did designate witnesses in a timely manner as mandated by the scheduling orders and court rules. However, the plaintiff, or more properly, her attorney, did not provide the required details concerning the expert witnesses’ testimony as requested by the defendants pursuant to interrogatories. The opinion of the Court of Appeals speculates, “Perhaps this is what the trial judge was referring to in the order when she said that the plaintiff had ‘failed to properly designate’ her experts.”

As an excuse for not supplying the additional information about the experts, the plaintiff argued that her attorney was “taking all possible steps to obtain the deposition of the defendants in an effort to obtain information to present to her experts for purposes of evaluating the necessity of expert opinion testimony in this case.” The plaintiff noted that the defendants, especially the pharmacist, were uncooperative and that he refused to be deposed. Although the Court of Appeals did not rule on this particular argument, it did note that the record shows the plaintiff’s attorney made an unsuccessful effort to depose the pharmacist prior to the trial court’s granting summary judgment.

The Court of Appeals also looked much closer at the evidence in the record. It stated that there is still a question of fact as to whether the pharmacist had misfilled the plaintiff’s prescription. According to the Court of Appeals, “The medical records which were produced by the plaintiff during discovery showed, without contradiction, that upon admission, [the plaintiff] had a serum quinidine level of 0.7. The medical records also showed, without contradiction, that [the plaintiff] had suffered acute gastritis which was quinidine induced.

According to the complaint [the plaintiff] ingested quinidine given her by [the pharmacist] who admitted that the medicine prescribed was quinine sulfate. While not identifying the medicine he gave [the plaintiff], the pharmacist contends that the medicine was mislabeled as quinidine sulfate. Whether it was mislabeled or was in fact quinidine sulfate was a genuine issue of material fact. Consequently, there remained material issues of fact when the motion for summary judgment was granted.”

Insofar as the question of the experts not being properly described, the Court of Appeals stated, “It appears to us that it does not require expert testimony to prove that misfilling a prescription is negligence. It does, however, take a medical expert to prove that [the plaintiff’s] injuries were caused by the drug quinidine. In this regard, we note that the medical records produced in discovery clearly conclude that quinidine was the culprit. According to the medical records, that conclusion was reached by [the plaintiff’s] treating physician at [the hospital].

His name had been separately disclosed to [the defendants], not as an expert, but as a person having discoverable information about [the plaintiff’s] allegations. Of course, it is obvious that a medical doctor possesses special knowledge and expertise in medical matters. It is also obvious, based on the disclosed documents, that [the defendants] were aware of the physician’s final opinion though that opinion had not been disclosed to them in the proper form.”

In its conclusion, the Court of Appeals took special care to note, “Although we are reversing and remanding this case for trial, we want to be clear that [the plaintiff] had an obligation to supplement her answer, designating her experts, to include the subject matter on which the experts were expected to testify, the substance of the facts and opinions to which each expert was expected to testify, and a summary of the grounds for each expert’s opinion.

We do not condone [her] failure to do so, and on remand, the trial judge is free to impose whatever sanctions she determines to be appropriate for [the plaintiff’s] actions. In this regard, we only add that the trial court should also consider the role, if any, that [the defendants] had in frustrating or thwarting [the plaintiff’s] effort to take the depositions she desired and whether their actions, if any, in that regard impacted [the plaintiff’s] ability to timely supplement her answer regarding her designated experts.”


This case is close to the epitome of elevating form over substance. It has gone in and out of the state court, in and out of the federal court, back to the state court, dismissed from the trial court, up to the Court of Appeals and now back to the trial court. By artful manipulation of the legal system, this case has been pending for over four years since this patient was injured as a result of getting the wrong medication from her pharmacy. If this is not a case of “justice delayed is justice denied,” it is hard to think of what would qualify. Without intense persistence, the plaintiff may have never had her day in court. A trial court judge dismissed the complaint because expert witnesses were not “properly” designated. That would be a harsh sanction indeed.

From the pharmacy perspective, this may even seem to be a worthy and appropriate outcome. How badly could she have been hurt, anyway? From the perspective of the corporate pharmacy, maybe it is better to pay the defense lawyers and show that plaintiffs cannot sue it without paying a heavy price. From the trial lawyers’ perspective, the case has to be a gem. Think of the legal fees generated by all the procedural wrangling. The amount of paperwork generated by the case to date must be astounding. From the trial court judge’s perspective, the plaintiff’s failure to follow the rules looks like a good excuse to get rid of one more case that is part of what is undoubtedly an overburdened docket. Perhaps people who do not follow the form and substance of the court rules should not have their day in court.

The Court of Appeals took an entirely different perspective and did the harder but more appropriate work of looking at substance first and procedure second. The record showed that the plaintiff obtained the wrong drug from somewhere, that the pharmacist typed the wrong name of the drug on the label, that the labeled name was not the name of the prescribed drug, that the patient was hospitalized, that laboratory tests showed her blood level of the drug name typed on the pharmacy label was elevated, and that her physician was convinced that her symptoms were caused by a toxic amount of a drug she consumed but that had not been prescribed for her. The record also revealed that the plaintiff did
designate two experts from a respected pharmacy school and that she had attempted, without any cooperation on the defendants’ part, to take the deposition of the pharmacist. Although not explicitly stated, it is also obvious from this record that the defense is trying to argue that there is no evidence that the pharmacist in fact dispensed the wrong drug, that he only mistyped quinidine instead of the prescribed quinine on the label, that there is no evidence that the elevated blood serum level of quinidine displayed by the plaintiff resulted from quinidine obtained from the pharmacy, and that there is no evidence that the quinidine the patient got from somewhere caused her symptoms.

The defense seems to also be asserting that because the plaintiff did not explain the basis for the opinions of her expert witnesses, they should be barred from testifying which, in turn, will make it impossible for her to prove her case. Those are all good and legal arguments that could be credible in the right context. But, as the Court of Appeals found, the arguments are beyond credibility under the facts and circumstances of this case.

Lawyers are supposed to be zealous in the representation of their clients. Like it or not, we live in a society that allows people to retain the best lawyers and put them to work as hard as they can up to the limits they can afford. Sometimes, in the fervent pursuit of justice, though, we lose perspective of what we should be about. Pharmacists are not lawyers. Our job is to help people make the best use of their medications. If we make mistakes, we need to minimize the harm caused to the patient. It does not appear that the profession of pharmacy is well served in this case.

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