Idaho Case Law

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SWALLOW v. EMERGENCY MEDICINE OF IDAHO, P.A., 138 Idaho 589 (2003)
67 P.3d 68
DAVID SWALLOW and ANNE SWALLOW, husband and wife, Plaintiffs-Appellants
v. EMERGENCY MEDICINE OF IDAHO, P.A., an Idaho professional corporation;
WILLIAM H. BLAHD, M.D., an individual, Defendants-Respondents, and ST.
LUKE'S REGIONAL MEDICAL CENTER, LTD., a general non-profit corporation;
IDAHO EMERGENCY PHYSICIANS, P.A., an Idaho professional corporation;
DONALD E. WALKER, M.D., P.A., a professional association; and JOHN DOES 1
through 10, inclusive, Defendants.
Docket No. 27997.
Supreme Court of Idaho, Boise, January 2003 Term.
Filed April 2, 2003.

Appeal from the District Court of the Fourth Judicial District, State
of Idaho, Ada County. Hon. Kathryn A. Sticklen, District Judge.

The judgment of the district court is affirmed.
Page 590

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES AND HEADNOTES IS NOT AN
OFFICIAL PRODUCT OF THE COURT, THEREFORE IT IS NOT DISPLAYED]
Page 591

Law Offices of Scot M. Ludwig, Boise, for appellants. Daniel A. Miller
argued.

Hall, Farley, Oberrecht & Blanton, P.A., Boise, for respondents.
Richard E. Hall and Kevin J. Scanlan argued.

EISMANN, Justice.

This is an appeal from a judgment dismissing the Plaintiffs' complaint
on motion for summary judgment after the district court ruled that the
Plaintiffs' expert testimony regarding causation was inadmissible. We
affirm.

I. FACTS AND PROCEDURAL HISTORY

On June 4, 1997, plaintiff-appellant David Swallow went to the
emergency room at St. Luke's Regional Medical Center in Boise, Idaho,
where Dr. William S. Blahd treated him for a prostate gland infection.
While treating Mr. Swallow, Dr. Blahd consulted with a urologist, who
recommended that Mr. Swallow be prescribed the antibiotic Ciprofloxacin
(Cipro) to be taken at the rate of 1500 milligrams per day (either 750
milligrams twice a day or 500 milligrams three times a day). Dr. Blahd
administered an intravenous loading dose of Cipro to Mr. Swallow in the
emergency room, and then gave him a prescription for Cipro. When writing
the prescription, Dr. Blahd incorrectly directed that Swallow take three
500-milligram tablets three times a day rather than one 500-milligram
tablet three times a day. Mr. Swallow filled the prescription at the
hospital's outpatient pharmacy and went home.

At approximately 11:00 a.m. on June 5, 1997, Mr. Swallow took three
500-milligram Cipro tablets as prescribed and then went to the
urologist's office for an appointment. After seeing the urologist, Mr.
Swallow and his wife drove to a family member's home to visit. Later that
day, at approximately 3:30 p.m., while driving back home to Idaho City,
Mr. Swallow began experiencing chest tightness and nausea. After they
arrived home, Mrs. Swallow telephoned for medical assistance, and
approximately one hour later Mr. Swallow was flown by helicopter to St.
Luke's Regional Medical Center, where he was diagnosed as having suffered
a myocardial infarction (heart attack).

On June 2, 1999, the Swallows filed this action to recover damages
resulting from Mr. Swallow's heart attack. This action was ultimately
dismissed as to all defendants except Emergency Medicine of Idaho, P.A.,
and Dr. Blahd (herein jointly called "Dr. Blahd"). In order to show that
the heart attack was caused by an overdose of Cipro, the Swallows
retained Dr. Carl Tommaso, a cardiologist, and Dr. Catherine Heyneman, a
pharmacologist, as expert witnesses. In their depositions, they both
testified that in their opinions the overdose of Cipro caused Mr.
Swallow's heart attack.

On May 30, 2001, Dr. Blahd moved to exclude opinion testimony from Dr.
Tommaso that Cipro caused Mr. Swallow's heart attack, statements about
Cipro contained in the Physician's Desk Reference (PDR), and evidence
regarding adverse reaction reports from the Food and Drug Administration
(FDA) regarding Cipro. The basis of the motion was that there was no
scientific evidence that Cipro could cause a heart attack. The district
court heard the motion, and on June 21, 2001, issued a memorandum
decision and order granting the motion.

Dr. Blahd then filed a motion for summary judgment, and the Swallows
filed a motion asking the district court to reconsider its ruling. In
connection with his motion for summary judgment, Dr. Blahd argued that
Dr. Heyneman's opinion testimony was likewise inadmissible for the same
reasons that Dr. Tommaso's opinion testimony had been ruled
inadmissible. The district court agreed and granted Dr. Blahd's motion
for summary judgment on the ground that there was no admissible evidence
showing that the Cipro could cause a heart attack. The district court
also denied the Swallow's motion to reconsider its prior ruling excluding
the opinion testimony of Dr. Tommaso, the references to Cipro in the
PDR, and the adverse reaction reports. On October 25, 2001, the district
court entered judgment dismissing this action, and on November 20, 2001,
the Swallows timely filed a notice of appeal.
Page 592

On November 6, 2001, Dr. Blahd filed a memorandum of costs in which he
sought $6,162.64 in costs as a matter of right and $7,227.21 in
discretionary costs. The Swallows timely objected to the costs claimed,
and on January 29, 2002, the district court entered its order awarding
costs as a matter of right in the sum of $4,662.64 and discretionary
costs in the sum of $6,462.80. On January 30, 2002, the Swallows filed an
amended notice of appeal, and on February 5, 2002, they filed a second
amended notice of appeal in which they added the order awarding costs as
an additional issue on appeal.

II. ISSUES ON APPEAL

A. Did the district court abuse its discretion in excluding from evidence
the opinion testimony of Dr. Tommaso, the information about Cipro
contained in the PDR, and the Food and Drug Administration adverse
incident reports?

B. Did the district court abuse its discretion in excluding from evidence
the opinion testimony of Dr. Heyneman?

C. Did the district court err in granting Dr. Blahd's motion for summary
judgment?

D. Did the district court abuse its discretion in awarding discretionary
costs?

E. Are the Swallows entitled to an award of attorney fees on appeal?

III. ANALYSIS

A. Did the District Court Abuse Its Discretion in Excluding from
Evidence the Opinion Testimony of Dr. Tommaso, the Information About
Cipro Contained in the PDR, and the Food and Drug Administration Adverse
Incident Reports?

Rule 702 of the Idaho Rules of Evidence states: "If scientific,
technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise."
This rule provides the appropriate test for measuring the reliability of
evidence. State v. Merwin, 131 Idaho 642, 962 P.2d 1026 (1998).

The admissibility of expert testimony is a matter committed to the
discretion of the trial court, and the court's ruling will not be
overturned absent an abuse of that discretion. Clark v. Klein,
137 Idaho 154, 45 P.3d 810 (2002). When reviewing an alleged abuse of
discretion by the trial court, our sequence of inquiry is: (1) whether
the trial court correctly perceived the issue as one of discretion; (2)
whether the trial court acted within the outer boundaries of its
discretion and consistently with the legal standards applicable to the
specific choices available to it; and (3) whether the trial court reached
its decision by an exercise of reason. State v. Merwin, 131 Idaho 642,
962 P.2d 1026 (1998); Sun Valley Shopping Ctr., Inc. v. Idaho Power Co.,
119 Idaho 87, 803 P.2d 993 (1991).

1. Did the District Court Abuse Its Discretion in Excluding from
Evidence the Opinion Testimony of Dr. Tommaso?

The issue in this case is whether the trial court has the discretion to
determine whether or not there is a scientific basis for an expert's
opinion regarding scientific knowledge. The Swallows argue that the trial
court has discretion to determine whether or not a witness is qualified
as an expert regarding the scientific matters about which the witness is
asked to testify, but the trial court does not have discretion to
determine whether or not there is a scientific basis for the expert's
opinion. We disagree.

To be admissible, the expert's testimony must assist the trier of fact
to understand the evidence or to determine a fact in issue. An expert
opinion that is speculative or unsubstantiated by facts in the record is
inadmissible because it would not assist the trier of fact to understand
the evidence or determine a fact that is at issue. Bromley v. Garey,
132 Idaho 807, 979 P.2d 1169 (1999). When the expert's opinion is based
upon scientific knowledge, there must likewise be a scientific basis for
that opinion. If the reasoning or methodology underlying that opinion is
not scientifically sound, then the opinion will not assist the trier of
fact to understand the evidence or determine a fact in issue.
Page 593

The foundation for the admission of opinion testimony based upon
scientific knowledge includes both that the witness is an expert in the
field and that there is a scientific basis for the expert's opinion.
State v. Faught, 127 Idaho 873, 908 P.2d 566 (1995) (admission of expert
opinion testimony linking defendant to crime based upon DNA evidence was
upheld where witness was qualified as an expert witness in the field and
the statistical base used in determining the frequency of a random DNA
match was scientifically reliable); State v. Gleason, 123 Idaho 62,
844 P.2d 691 (1992) (foundation for admission of opinion testimony
regarding horizontal gaze nystagmus (HGN) test required showing that HGN
test was scientifically reliable and that witness was qualified to
testify regarding the test and administering it to the defendant); State
v. Rodgers, 119 Idaho 1047, 812 P.2d 1208 (1991) (admission of testimony
regarding the interpretation of blood splatter evidence upheld where
evidence showed that blood splatter analysis was a well-recognized
discipline based upon the laws of physics and that the witnesses were
sufficiently qualified to testify as experts regarding blood splatter
evidence). Because the trial court has the discretion to determine
whether a proper foundation has been laid for the admission of expert
testimony, Perry v. Magic Valley Reg'l Med. Ctr., 134 Idaho 46,
995 P.2d 816 (2000); IDAHO R. EVID. 104(a), the trial court has
discretion to determine both whether the expert is qualified as an expert
in the field and whether there is a scientific basis for the expert's
opinion.

Dr. Blahd did not challenge the qualifications of Dr. Tommaso as an
expert in cardiology. Rather, he challenged the scientific basis for Dr.
Tommaso's opinion. In his deposition, Dr. Tommaso testified that in his
opinion there was a high likelihood that the very high dose of Cipro taken
by Mr. Swallow had a role in precipitating his heart attack. Dr. Tommaso
admitted that for a medication to cause a heart attack, the medication
would have to have either a vasoactive or pro-coagulative effect, and he
did not know whether Cipro had either effect. He also stated that he did
not know of any research or studies that would suggest that the dosage
taken of Cipro had any effect in causing a myocardial infarction. When
asked to be specific as to how the Cipro could have had a role in
precipitating Mr. Swallow's heart attack, Dr. Tommaso answered, "We don't
know the pathophysiology. I'm aware from the PDR and from the FDA that
Cipro can precipitate a myocardial infarction. How it does it, I don't
know. So my use of the word `role' is the fact that it can precipitate a
myocardial infarction."

Dr. Tommaso based his opinion that the Cipro had a role in causing Mr.
Swallow's heart attack upon the PDR and upon adverse reaction reports
from the FDA. He testified that both of these sources confirm that Cipro
can precipitate a myocardial infarction.

The PDR does not state that Cipro can cause a myocardial infarction.
The PDR information regarding Cipro contains a subsection entitled
"Adverse Reactions," which states:

During clinical investigation with the tablet, 2,799
patients received 2,868 courses of the drug. Adverse
events that were considered likely to be drug related
occurred in 7.3% of patients treated, possibly related
in 9.2% (total of 16.5% thought to be possibly or
probably related to drug therapy), and remotely related
in 3.0%. Ciprofloxacin was discontinued because of an
adverse event in 3.5% of patients treated, primarily
involving the gastrointestinal system (1.5%), skin
(0.6%), and central nervous system (0.4%).

The subsection then listed "the most frequently reported events, drug
related or not." Those "drug related or not" events occurring in more
than 1% of the ciprofloxacin patients were "nausea (5.2%), diarrhea
(2.3%), vomiting (2.0%), abdominal pain/discomfort (1.7%), headache
(1.2%), restlessness (1.1%), and rash (1.1%)." The subsection then listed
77 other events, "drug related or not," that occurred in less than 1% of
ciprofloxacin patients. One of the events listed was myocardial
infarction. Thus, the PDR simply states that some unknown number of
people, constituting less than 1% of the 2,799 patients in the clinical
investigation, had a subsequent myocardial infarction that may or may
Page 594
not
have been related to taking the Cipro.

Dr. Tommaso also relied upon FDA adverse reaction reports. He testified
that physicians or other health care providers submit these reports to
the FDA when they suspect that there is a causal relationship between a
drug and an adverse event. The applicable regulation defines "adverse
drug experience" as "[a]ny adverse event associated with the use of a
drug in humans, whether or not considered drug related."
21 C.F.R. § 314.80(a). Dr. Tommaso based his opinion upon copies of
eleven FDA adverse reaction reports concerning Cipro. In ten of those
reports, the patient suffered a cardiac arrest or myocardial infarction,
and in the other the patient attempted suicide while being administered
Cipro in the hospital and then committed suicide two days after
discharge. The FDA adverse reaction reports contain ten instances in
which the physician or health care provider suspected there might be a
causal connection between the administering of Cipro and a subsequent
myocardial infarction or cardiac arrest. Dr. Tommaso agreed that those
reports were based solely upon the temporal relationship between the
administration of Cipro and the adverse cardiac event. These ten events
occurred during the period from June 1989 through June 1997. There was no
showing as to what percentage of Cipro patients are represented by these
ten events, nor was there any showing that these ten events were
statistically significant. In other words, there is no showing that ten
adverse cardiac events occurring over eight years to patients who had
been administered Cipro is a greater incidence of such events than would
be expected to occur by chance.

When ruling that Dr. Tommaso's testimony was not admissible, the
district court reasoned as follows:

There is no scientific evidence before me that has been
tested, published, peer-reviewed or otherwise shown to
be reliable which establishes that Cipro in any amount
can cause heart attacks. Thus, the proffered testimony
and evidence, regardless of other possible objections,
really amounts to nothing more than speculation based
on a temporal concurrence of events. A jury does not
need the "assistance" of this type of "expert" testimony
to draw the same speculative conclusion that Cipro
caused the myocardial infarction in this case.

The district court did not abuse its discretion in ruling that the
foundation for Dr. Tommaso's opinion testimony was insufficient because
there was no showing that an overdose of Cipro can cause a myocardial
infarction.

2. Did the District Court Abuse Its Discretion in Excluding from
Evidence the Physician's Desk Reference and the Food and Drug
Administration adverse reaction reports?

As explained above, the PDR and the FDA adverse reaction reports merely
state that some patients who have been administered Cipro have later had
a myocardial infarction or cardiac arrest. The PDR reported that in less
than 1% of the cases, a person administered Cipro had a myocardial
infarction, and the FDA adverse reaction reports show that there were ten
reported incidents of a person having a myocardial infarction or cardiac
arrest after being administered Cipro. Neither source shows what
percentage of the patients given Cipro had a myocardial infarction or
cardiac arrest, nor is there any evidence showing that such percentage,
whatever it was, is statistically significant.

When ruling that the PDR and FDA adverse reaction reports were
inadmissible, the district court wrote as follows:

However, the FDA regulations concerning reporting of
adverse reactions to drugs, 21 C.F.R. § 201.57(3)
and 314.80, clearly indicate that the reporting
requirement is purely associational; no causal
relationship need be proved and reports must be
submitted whether or not the noted reaction is
considered drug related. Thus, while the PDR is
concededly a "learned treatise" upon which physicians
regularly rely, the information concerning any
association between Cipro and cardiovascular events
reported therein does not satisfy the requirements of
Rule 702 and Daubert or Merwin that there be
scientifically reliable proof that Cipro can cause
such events. The FDA reports suffer from the same
defect. There is no scientific evidence before me that
has been tested, published,
Page 595

peer-reviewed or otherwise
shown to be reliable which establishes that Cipro in
any amount can cause heart attacks. Thus, the
proffered testimony and evidence, regardless of other
possible objections, really amounts to nothing more
than speculation based on a temporal concurrence of
events.

The district court did not abuse its discretion in holding that the PDR
and FDA adverse reaction reports were inadmissible in this case.[fn1]

B. Did the District Court Abuse Its Discretion in Excluding from
Evidence the Opinion Testimony of Dr. Heyneman?

The Plaintiffs also presented the deposition testimony of Dr. Catherine
Heyneman, a pharmacologist. She testified that in her opinion the Cipro
taken by Mr. Swallow was causally related to his subsequent heart attack
because of the temporal relationship between taking the Cipro and the
heart attack, because the peak level of Cipro in Mr. Swallow's blood
would have occurred fairly close to the time when he had the heart
attack, and because of Mr. Swallow's lack of other risk factors. She
stated that to her knowledge, a drug could cause a heart attack if the
drug produced one of four effects: (a) arrhythmia, (b) thickening of the
blood so that it is more easily coagulable, (c) constriction of the blood
vessels, or (d) tachycardia. She admitted that to her knowledge, Cipro
did not have any procoagulative or vasoconstrictive effect, nor was she
aware of any pro-arrhythogenic effect that could possibly be related to
Cipro. Dr. Heyneman testified that there is some literature that suggests
that in some patients Cipro can cause tachycardia, but on further
questioning she admitted that the literature merely stated that in some
patients it can cause hypertension. Although tachycardia can cause
hypertension, Dr. Heyneman admitted they are not synonymous and the
literature did not state that Cipro can cause tachycardia. Finally, Dr.
Heyneman testified that there were animal studies that link Cipro to
ventricular tachycardia. In those studies, a dosage of Cipro equivalent
to ten times the dose taken by Mr. Swallow caused ventricular tachycardia
in rats. There was no showing, however, that the results of these rat
studies are applicable to humans or to any other species.

In ruling that there was not adequate foundation for Dr. Heyneman's
opinion that the Cipro taken by Mr. Swallow was a cause of his heart
attack, the district court reasoned as follows:

The information provided concerning the bases for the
opinions of Dr. Heynemann [sic] has been reviewed. It
suffers from the same defects as the basis for Dr.
Tommaso's opinions. The opinions are based on the facts
that the heart attack occurred within two hours [of] the
peak level of Cipro in Mr. Swallow's blood and that Mr.
Swallow had no real risk factors for heart attack,
coupled with a purported association between Cipro and
heart attacks, although there is no evidence that Cipro
can or does cause myocardial infarctions. For the same
reasons set forth in the ruling concerning the
cardiologist Dr. Tommaso, the opinions of Dr. Heynemann
[sic] are not admissible.

The district court did not abuse its discretion in ruling that the
foundation for Dr.Heyneman's opinion testimony was insufficient because
there was no showing that an overdose of Cipro can cause a myocardial
infarction.

C. Did the District Court Err in Granting Dr. Blahd's Motion for
Summary Judgment?

The district court granted Dr. Blahd's motion for summary judgment on
the ground that there was no admissible expert testimony showing that
Cipro could cause a myocardial infarction. As the district court wrote:
Page 596

[I]n this case some admissible expert testimony is
necessary to tie Plaintiff David Swallow's heart attack
to the ingestion of an overdose of Cipro. In other
words, in this case without some reliable expert
testimony relating Cipro to myocardial infarction, there
is no chain of circumstances from which causation
reasonably could be inferred.

Relying upon Sheridan v. St. Luke's Regional Medical Center, 135 Idaho 775,
25 P.3d 88 (2001), the Plaintiffs argue that expert testimony as to
causation is not a requirement in a medical malpractice case. Thus,
Plaintiffs argue that even if the opinions of Drs. Tommaso and Heyneman
were inadmissible, there was still sufficient evidence of causation to
defeat Dr. Blahd's motion for summary judgment.

In Sheridan, this Court affirmed the denial of a motion for directed
verdict made by the defendant hospital in a medical malpractice case. The
hospital moved for a directed verdict on the ground that the plaintiffs
had failed to prove that the hospital's alleged negligence caused harm to
the plaintiffs' child. The child was born at the hospital on March 23,
1995, and was discharged about 36 hours later. He had jaundice at the
time of his discharge. The child's pediatrician next saw him on March
28, 1995, three days after discharge, because the child's mother called
and said that the child had ceased to feed as vigorously, seemed sleepy
and lethargic, and was still yellow. The following day the child's mother
telephoned the pediatrician to report that the child was not improving
and that his jaundice had increased. Upon the pediatrician's order, the
child was readmitted to the hospital on March 29, 1995. Tests done upon
readmission indicated that the child had a high bilirubin level. After
treatment for his jaundice, the child was discharged from the hospital on
April 2, 1995. His pediatrician ultimately diagnosed him as having
cerebral palsey. Later, a physician diagnosed the child as having
kernicterus, a form of cerebral palsy associated with a neonatal history
of elevated serum bilirubin and consequent jaundice.

There was evidence of negligence by the hospital's nursing staff. The
two nurses who attended the child during his first 24 hours of life both
noticed he was jaundiced, but they did not notify the child's
pediatrician of that fact. There was expert testimony that jaundice
appearing in the first 24 hours is pathologic and requires further
evaluation such as serum bilirubin measurement. The nurses knew that no
bilirubin tests had been conducted on the child, although such tests were
routine and readily available. Both nurses testified that they would be
concerned if the jaundice progressed rapidly, but neither of them charted
any indicia from which the progress of the jaundice could be
ascertained. The nurses also failed to note the possible blood
incompatibility between the child and his mother. The pediatrician
testified that had he known of the blood incompatibility, he would have
treated the child's hyperbilirubinaemia more aggressively. Evidence was
presented that high bilirubin levels can be successfully treated by the
use of bili lights and blood exchange transfusions. When mother and child
were discharged, the nursing staff advised the mother about normal
jaundice, but did not warn her that this jaundice may not be normal and
that serious brain damage could occur if it worsened and was not
treated.

The hospital moved for a directed verdict because the plaintiffs did
not present direct expert testimony that the nurses' alleged negligence
caused the child's kernicterus. The district court denied the motion, and
we upheld the denial on the ground that from the evidence presented, the
jury could reasonably and naturally infer from a chain of circumstances
that the nurses' negligence was a proximate cause of the child's
injuries. When doing so, we did not hold that expert testimony is never
necessary in order to prove causation in a medical malpractice case. We
simply held that expert testimony that the nurses' negligence was a
proximate cause of the child's injuries was not required under the facts
of that particular case.

When defending Dr. Blahd's motion for summary judgment, the Swallows
were entitled to all reasonable inferences that can be drawn from the
record. Lapham v. Stewart, 137 Idaho 582, 51 P.3d 396 (2002). The
Plaintiffs argue that causation can be
Page 597
established by reasonable
inferences drawn from the following facts: Mr. Swallow was given a dose
of Cipro that was three times the dosage intended;[fn2] his heart attack
occurred at the approximate time of the peak level of Cipro in his
blood; his cardiologist ruled out atherosclerosis, which is the most
common cause of heart attacks;[fn3] his cardiologist believed the dose of
Cipro was unusually high and temporally related to the heart attack;[fn4]
and that he had a lack of personal and family history of cardiovascular
problems.[fn5]

The instant case is similar to Bloching v. Albertson's, Inc.,
129 Idaho 844, 934 P.2d 17 (1997), in which we upheld the grant of
summary judgment because of the lack of competent evidence showing
causation. In Bloching, the plaintiff had been taking beef insulin for
his diabetes. He suffered one seizure every four to six weeks because of
hypoglycemic reactions to insulin. His insulin prescription was then
filled with a combination of beef and pork insulin because the pharmacy
was out of beef insulin. The pharmacist stated that the blend of beef and
pork insulin was a direct substitute for beef insulin. Immediately after
the plaintiff began using the insulin blend, he suffered a seizure. As he
continued using the insulin, he suffered seizures on a daily basis, and
they were considerably more violent than those he had previously
experienced. After a week he discontinued using the insulin blend, but he
continued to suffer violent seizures.

The plaintiff sued the pharmacy for negligence. His treating physician
testified in his deposition that although it was possible that the switch
to the insulin blend caused permanent injury, in his opinion it had
nothing to do with the seizures. The district court ultimately dismissed
the lawsuit on the pharmacy's motion for summary judgment because there
were not sufficient admissible facts to demonstrate a genuine dispute
regarding the proximate cause of the plaintiff's alleged injuries. On
appeal, we affirmed the dismissal because "the record contains no
credible, admissible testimony in opposition to Albertson's motion for
summary judgment." 129 Idaho at 847, 934 P.2d at 20. The temporal
relationship between the taking of the insulin blend and the onset of
more frequent and severe seizures was not sufficient to prove causation.

We have previously held that a lay person was not qualified to give an
opinion about the cause of a medical condition or disease. Bloching v.
Albertson's, Inc., 129 Idaho 844, 934 P.2d 17 (1997) (lay person was not
qualified to testify that the seizure he suffered immediately after using
a blend of pork and beef insulin was caused by the insulin); Evans v.
Twin Falls County, 118 Idaho 210, 796 P.2d 87 (1990) (husband was not
qualified to testify that conduct by sheriff's deputies on
Page 598
April 15,
1987, in grabbing and shaking his wife was a cause of her cardiac arrest
and death over eleven months later); Flowerdew v. Warner, 90 Idaho 164,
409 P.2d 164 (1965) (patient was not qualified to testify that his injury
was caused by physician's treatment). In support of the holding in Evans
v. Twin Falls County, we quoted from 31A Am.Jur.2d, Expert & Opinion
Evidence § 207 as follows:

Where the subject matter regarding the cause of disease,
injury, or death of a person is wholly scientific or so
far removed from the usual and ordinary experience of
the average person that expert knowledge is essential to
the formation of an intelligent opinion, only an expert
can competently give opinion evidence as to the cause of
death, disease or physical condition.

118 Idaho at 214, 796 P.2d at 91.

The same considerations that disqualified the lay testimony in the
above cases apply here. Whether or not the Cipro taken by Mr. Swallow was
a cause of his heart attack is a matter of science that is far removed
from the usual and ordinary experience of the average person. A jury,
comprised of lay people, is simply not qualified to determine that issue
without the assistance of expert testimony establishing that Cipro can
cause a myocardial infarction. Absent such testimony, any finding in that
regard would be based upon speculation. In granting the motion for
summary judgment, the district court wrote, "[I]n this case without some
reliable expert testimony relating Cipro to myocardial infarction, there
is no chain of circumstances from which causation reasonably could be
inferred." The district court did not err in granting Dr. Blahd's motion
for summary judgment.

D. Did the District Court Abuse Its Discretion in Awarding
Discretionary Costs?

The district court awarded Dr. Blahd discretionary costs totaling
$6,462.80. The Plaintiffs challenge on appeal the award of discretionary
costs totaling $4,980 for the fees of three experts who did not testify
either at a deposition or at trial. The three experts were a
cardiologist, a pharmacologist, and an infectious disease specialist who
were prepared to testify on behalf of Dr. Blahd had this case gone to
trial. Rule 54(d)(1)(D) of the Idaho Rules of Civil Procedure provides
that discretionary costs may be allowed "upon a showing that said costs
were necessary and exceptional costs reasonably incurred, and should in
the interest of justice be assessed against the adverse party." The
district court found that the fees for these experts were necessary and
exceptional because medical experts are essential in a medical
malpractice case and they cannot be retained for the $500 awardable under
Rule 54(d)(1)(C) as costs as a matter of right. The district court also
found that the fees for these three experts were reasonably incurred. The
district court did not make any finding, however, that these costs should
in the interest of justice be assessed against the Plaintiffs, nor did
Dr. Blahd present any evidence or make any argument supporting that
requirement. Therefore, we reverse the award of costs totaling $4,980 for
the fees of these three experts.

E. Are the Swallows Entitled to an Award of Attorney Fees on Appeal?

The Plaintiffs requested an award of attorney fees on appeal under
Idaho Code § 12-121. Because they are not prevailing parties on this
appeal, they are not entitled to an award of attorney fees under that
statute. King v. King, 137 Idaho 438, 50 P.3d 453 (2002).

IV. CONCLUSION

We affirm the decision of the district court holding inadmissible the
testimony of Drs. Tommaso and Heyneman, the PDR, and the FDA adverse
incident reports. We also affirm the grant of summary judgment in favor
of Dr. Blahd and the judgment dismissing this action with prejudice. We
reverse that portion of the order granting discretionary costs which
awards costs totaling $4,980 for the fees of the three experts. We do not
award attorney fees on appeal. We award costs on appeal to the
respondents.
Page 599

Chief Justice TROUT, Justices SCHROEDER, WALTERS and KIDWELL concur.

[fn1] The district court analyzed the admissibility of the expert
testimony of Drs. Tommaso and Heyneman and of the PDR and the FDA adverse
reaction reports under both Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), and State v. Merwin, 131 Idaho 642,
962 P.2d 1026 (1998). The court found such evidence inadmissible both
under the Daubert test and under Rule 702 of the Idaho Rules of
Evidence, considering the factors identified in Merwin. Although this
Court has not adopted the Daubert test for admissibility, the district
court's decision is also based upon the analysis in Merwin.

[fn2] The urologist testified that he gave Dr. Blahd the option of
prescribing either 750 milligrams of Cipro taken twice a day or 500
milligrams taken three times a day. He stated that he considered them to
be equal doses. Thus, the initial 1500 milligrams taken by Mr. Swallow
would have been twice the maximum dosage that the urologist recommended
be taken at one time.

[fn3] Mr. Swallow's cardiologist testified in his deposition that
occasionally he sees heart attack patients who do not have a lot of
atherosclerosis, based upon their angiograms. He stated that
cardiologists hypothesize that in those cases the artery spasmed,
squeezing down the vessel and restricting the blood flow. When the flow
is restricted, some of the blood becomes static and tends to clot. He
also stated that Mr. Swallow had pretty mild atherosclerosis. In his
opinion, a spasm was the most likely etiology, but he added that there
could have been some atherosclerosis involvement. With respect to the
cause of spasming, the cardiologist said, "That I think is open to a lot
of different things that might go into that. And I think our
understanding of spasming is rudimentary as a profession."

[fn4] Mr. Swallow's cardiologist testified that the dose seemed high, but
he only uses Cipro on rare occasions. He also stated that he has no
opinion as to whether Cipro caused Mr. Swallow's heart attack, that the
temporal relationship between the Cipro and the heart attack does not
establish causation, but that the unusually high dosage of Cipro
triggered concern.

[fn5] Mr. Swallow's cardiologist testified that the history taken when
Mr. Swallow was in the emergency room indicated that Mr. Swallow had
prior chest discomfort or chest tightness when he was under stress and
swelling of his lower extremities, both of which indicated he had a
possible history of cardiac problems. The cardiologist also testified that
Mr. Swallow's use of "fat burner" pills containing ephedrine, which is
associated with heart attacks, clouds the issue of the cause of his heart
attack.



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