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When we finished reading the majority opinion in Kovach v. Alpharma, Inc., No. 49A04-0707-CV-406, 2008 WL 2746509 (Ind. App. July 16, 2008), we were thinking of publishing a post titled: “Hire Us, Alpharma!”

The Kovach majority decision entirely overlooked what seemed to be the dispositive issue in the case, so we figured that defense counsel had blown it; maybe we could have helped.

But we kept reading, and our first impression was wrong.

The dissenting opinion focused on the right issue, so the error was not defense counsels’.

Here’s what happened:

Nine-year-old Matthew Kovach was prescribed 15 ml of Codeine, which is one half of the volume of a graduated medicine cup. Instead of giving Matthew a half cupful, Nurse Robinette may have given him a whole cupful. Later that day, Matthew died of asphyxia due to an opiate overdose; the autopsy revealed more than twice the recommended therapeutic dose of Codeine in his blood.

Plaintiffs sued everyone in sight. As to the cup manufacturer, plaintiffs’ expert testified that the “graduated measurement markings of the Cup” did not create a clear contrast, and the cup’s “graduated measurements are not sufficiently visible.” Id. at *5.

We gotcha.

And if the nurse was supposed to administer 8 ml, but she administed 9 ml instead because she couldn’t read the markings on the cup, plaintiff might have a point.

But that’s not what happened here. The nurse was supposed to administer a half cup, and she apparently administered a whole one instead. Someone might be at fault here, but the injury didn’t have anything to do with the graduated markings on the cup.

You can tell a half pint from a half gallon even if the “1/4 ounce” markings are a little blurry. The markings on this cup simply could not have caused the nurse’s error that led to Matthew’s death.
The majority opinion, however, doesn’t mention this dispositive issue. The majority tells us that “children are more sensitive to an overdose of medication than adults,” the measurement markers “are located on the interior surface of the Cup,” and “it would have been reasonable to include a warning with the Cup, stating that it should be used with caution when dispensing precise doses of medications.” Id. at *7.

Holy toledo, Batman! What happened to causation — seemingly the dispositive issue in the case? The supposed obscurity of the lines for individual milliliters couldn’t have had anything to do with this child’s death. Had defense counsel for the product manufacturers really overlooked that point?

Then we read the dissent.

“The nurse administered at least double the recommended dosage of the drug to Matthew. No reasonable factfinder would conclude that her actions were the result of a measuring error.” Id. at *13. “[T]he Kovachs have failed to show that the alleged defect, failure to warn, . . . was the proximate cause of Matthew’s death.” Id.

We can’t blame defense counsel for this; they obviously got it right.

The lawyers raised the issue, and the majority was not persuaded.

We’re a bit surprised at the result, but we can’t use this case as a chance for brazen self-promotion.

Maybe next time.