Montgomery Ward & Co. v. McFarland

Sweeney, J., delivered the opinion of the Court. William E. McFarland (McFarland) brought suit against Montgomery Ward & Co., Inc., (Wards), alleging that he contracted Pasteurella Tularemia, commonly known as rabbit fever, from one of two rabbits that he purchased from a store owned by Wards in Prince George’s County. McFarland alleged (a) negligence on the part of Wards in selling him a rabbit which had a communicable, infectious disease, and (b) breach of warranty as to the good health of the rabbit. Trial was held before the Honorable Samuel W. H. Meloy and a jury of ten on October 11, 1973, and the jury returned a verdict for McFarland in the amount of $6,582.00 and an additional sum of $1,500.00 to McFarland and his wife for loss of consortium.

The jury found for McFarland on the negligence count in the declaration, after first having returned a general verdict for him and being reinstructed by the trial judge that they could find on either the negligence count or the breach of warranty count, but not on both. Wards is taking this appeal from that judgment, alleging, inter alia, that the court erred in failing to grant its motion for a directed verdict and motion for judgment n.o.v. McFarland has filed a cross-appeal, alleging that the court erred in requiring the jury to elect between the negligence count and the warranty count after it had rendered a general verdict. McFarland also alleges that the trial court erred in refusing to allow his physician to give his opinion as to the cause of his disease. • It appears that on the evening of February 19, 1970, ⁵⁰³ McFarland purchased two rabbits from Wards as an early Easter gift for his children. He took the rabbits to his home, where they were handled extensively by him, and to a lesser extent by his wife and three children.

On the evening of the purchase he noticed that one of the rabbits was scratching a lesion on its jaw, and so McFarland applied an ointment to the jaw, rubbing it in with his finger. He also noticed that the rabbit was quiet and sluggish, had no appetite, and was not as “frisky” as the other rabbit. The next morning, on looking into the cage which housed the rabbits, McFarland found the rabbit with the lesion dead, “lying in the corner of the cage with his face in the water bowl.” He cleaned out the cage, put the dead rabbit in a plastic bag, and disposed of it in the trash can. That same day he returned to Wards, where he was given another rabbit to replace the one that had died. “A couple days” after the rabbit died, McFarland felt a pain in his jaw, noticed swelling in the jaw, and felt feverish.

McFarland’s condition continued unchecked for two or three weeks, at which time, he said: “[I] couldn’t open my mouth, and the side of my face was distorted, and there was a great deal of pain with it, and you couldn’t even sleep at nights.” No other member of his family shared any of these symptoms. McFarland sought medical attention from his family doctor, who, according to McFarland, diagnosed his condition as mumps and gave him a prescription. After two visits to the family physician failed to effect a cure, he was referred to Dr. James C. King, an eye, ear and nose specialist. He first saw Dr. King on March 19th, a month after the purchase of the rabbits.

He testified that on that date his jaws were so swollen that he was unable to open his mouth and he “couldn’t get a pencil in between [his] teeth.” Dr. King prescribed additional medication and had blood tests, x-rays and throat cultures made. McFarland testified that the acute stage of his illness lasted for three weeks to a month after his first visit to Dr. King, but that he remained on medication for three months, and it was at least that long ⁵⁰⁴ before he could open his mouth normally. Pain continued for a “couple months” after he began treatment with Dr. King and finally diminished. The only remaining difficulty as of the date of the trial was an occasional cramp in the mouth or jaw.

McFarland testified that he lost three months from his self-employment in the drapery business, with an estimated loss of income of $1,400.00. He also said that he and his wife were unable to cohabit for three months after he became ill, and only infrequently for an indeterminate period thereafter. Dr. King testified that when he first saw McFarland, his main complaint was swelling and pain in the face, especially in front of the right ear, and the doctor’s initial impression was that “it looked like the mumps, somebody with the mumps.” To assist in the diagnosis, the doctor obtained a blood count, a throat culture, and a sialogram. 1 Those tests revealed a general enlargement of the right parotid gland, with no evidence of a stone or tumor. Dr. King and his partner prescribed various antibiotics for McFarland and during the period March 19th through March 26th they saw him for a total of four times.

The doctor testified that on March 26th, McFarland visited his office, and: “He looked very pale. He just looked obviously sick. And in the course of talking to him he got paler and paler, and finally I took him in the back room and laid him down, checked his blood pressure and talked to him a little bit more. Once he came around I said, ‘Now, look, this has been going on for four or five, six weeks.

We have seen you four times in a week. I want you to think about anything you have done, any place you have been, anything different you have done, any out of the ordinary thing which you started or whieh you did around the time that your illness started.’ I said, ‘It’s obviously not the mumps carrying on this long. We ⁵⁰⁵ know it’s not a tumor or stone.’ I said, ‘It’s got to be something out of the ordinary. Now, look back in your mind and see if you can think of anything out of the ordinary.’ And at that point I got a blood count and ordered the throat culture on him, and he said at that time the only thing — he had talked to his wife that week and he said the only thing odd that they could think about was that he had gotten these rabbits for the children, and that the first week he had them, one of them had gotten sick with a festering sore about one of the eyes, and he tried to treat it with some antibiotic ointment at home, and that the rabbit had died and he buried it.

He said that was the only thing they coaid think of that was out of the ordinary. “Well, I checked him for — with the history of being exposed to a sick rabbit, I was looking for — MR. MCCARTHY: Court please, I am going to object to that. There is no testimony in this case that that rabbit was sick. We don’t know what is wrong with that rabbit.

THE COURT: You may proceed, sir. Overruled. [DR. KING]: I checked the gentleman for any ulcers or sores on his hands. I checked his axilla, which is under the arm, for lymphnodes.

I checked his neck for lymphnodes, and I checked his groin for lymphnodes. I felt his belly for any enlargement of the spleen or liver. BY MR. BLANK: Q. Did you look for lesions or other marks about the body?

A. Yes. Q. Anything show? A. No. THE WITNESS: I felt I was treating him for an ⁵⁰⁶ infection in the salivary gland caused by Rabbit Fever. I then proceeded to run a number of tests to try and either prove or disprove this matter.

I talked to our pathologist. BY MR. BLANK: Q. I don’t think we can get into hearsay at this point, Doctor. A. Right.

Q. Doctor, then it is your testimony that your diagnosis is Rabbit Fever? THE WITNESS: I felt I was treating him for Rabbit Fever, more specifically causing an infection in his right parotid gland.” When asked to state his diagnosis of McFarland’s illness, Dr. King said: “My diagnosis was sialadentis of the right parotid gland caused by Pasteurella Tularemia”. On examination as to his qualifications as an expert on infectious diseases, the doctor testified that he had never treated a case of rabbit fever prior to McFarland’s case and had treated none since. He was not permitted to testify as to whether he had an opinion with reasonable medical certainty as to the cause of McFarland’s infection, but he did state that in making the diagnosis of rabbit fever, he had assumed that the rabbit handled by McFarland had been infected with that disease.

The doctor also testified that the only thing he knew about tularemia in rabbits is that: “. .. these animals are very slow, they don’t run fast. How it manifests itself from what a vet would be looking for, I don’t know.” McFarland then called a veterinary doctor, David Tayman, who was only permitted to testify after strenuous objections by Wards, because of the failure of McFarland to give them notification of his intention to call the doctor. The court ascertained that the witness had been obtained only the night before the trial and that Wards’ attorney had been ⁵⁰⁷ notified the morning of the trial, and held that since Wards had not sought a continuance in order to depose the witness, his testimony would be permitted. We find no error in that ruling.

Dr. Tayman testified that he had been a practicing veterinarian for four and and one-half years and was a graduate of Michigan State University. Asked to describe the symptoms of a rabbit infected with pasteurella tularemia, he responded: “[A] rabbit with tularemia would show a general weakness, it would be depressed, it may be running a fever, and it would show symptoms of litter disorder.” He stated further that it would have little appetite and would be generally listless, and that the disease was fatal. Of particular interest was his interrogation on whether an animal with rabbit fever would display external lesions: “Q. Doctor, would there be any other signs in the way of markings such as lesions or cuts or bruises or boils? A. No. Q. Would a lesion be inconsistent with tularemia?

MR. MCCARTHY: Objection. THE COURT: Overruled. THE WITNESS: A lesion, exterior lesion?

MR. BLANK: Yes. THE WITNESS: It probably would be inconsistent, but it is transmitted by the saliva, also. THE COURT: You say, Inconsistent’?

THE WITNESS: Right. Most of the lesions are internal. BY MR. BLANK: Q. Are there ever lesions on the external?

MR. MCCARTHY: Objection. THE COURT: Overruled. ⁵⁰⁸ THE WITNESS: As far as I know, not really. The lesions — again, most of the lesions are internal.

It affects viscera, or the insides, of the animals. BY MR. BLANK: Q. When you say, ‘most,’ Doctor, does that mean that some are on the outside? MR.

McCARTHY: Objection, Your Honor. This is his witness. He is cross-examining him now. THE COURT: I don’t think he is cross-examining.

Overruled. THE WITNESS: ‘Ever’, is an awfully big word, and I assume there probably could be a lesion on the outside.” The doctor testified further that the incubation period for tularemia in a rabbit was from 24 hours to a week and that if the rabbit had died because of tularemia, he would assume that it had the disease 24 hours prior to its death. On cross-examination, the veterinarian was asked: “Q. Doctor, is there any way short of an autopsy that you could tell with reasonable medical certainty what was the cause of this particular rabbit’s death? A. No. mr.

McCarthy: no. THE COURT: What is the incubation period between a diseased rabbit and a human being if contact is made? THE WITNESS: Again, I assume it’s probably about anywhere from four days to seven days or so. THE COURT: From four to seven.

Any earlier? THE WITNESS: That I can’t say. I have never been in contact with a person per se that has had tularemia. THE COURT: All right, sir, you are excused.” Dr. King was recalled and on cross-examination he was ⁵⁰⁹ questioned concerning the tests that he had made on McFarland: ‘Q. You took a throat culture and was this culture to determine whether or not there were any bacteria in his throat at that time from Pasteurella infection, Rabbit Fever?

A. It was to determine if there were any pathogenic bacteria, specifically we were looking to see if there were any Pasteurella, but we did not isolate any. That culture was done on the 1st of April at Prince George’s. Q. So it’s my understanding, then, that when you took the throat culture to try to isolate Pastuerella organisms, it was negative, there weren’t any? A. Correct.

Q. Now, you also said you took blood samples? A. Blood count was done — Q. Blood count — A. — on the 26th of March. This was one week following our — his first visit. As I said, he looked even sicker and we had seen him four times that week.

So we got a blood count to see if there was — see what was what. Q. Now, did you also have blood samples taken at your direction at Prince George’s Hospital?.... A. Yes. They were taken on March 30th and on the 1st — I believe it was the 1st of July.

Q. Let me ask you this, Doctor. After a man has had Pasteurella infection, or Rabbit Fever, does he produce certain antibodies that remain in the blood stream for some time? A. He should. Q. And how long will they remain in the blood stream? ⁵¹⁰ A. It’s indeterminate.

Q. At least a year? A. Generally speaking. Q. Now, when a blood sample was taken to be tested to see whether it had any antibodies on July the 1st, this would have been within six months, wouldn’t it,