This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






James W. Clifford, individually and

as Trustee of the Heirs and Next of Kin of

Doris T. Clifford, deceased,





Geritom Med, Inc.,

defendant and third-party plaintiff,



Michael Gmitro, M.D., et al.,

third-party defendants,



Bruce J. Mack, M.D.,

third-party defendant,



Monica Myklebust, M.D., et al.,

third-party defendants,



Filed September 28, 2004


Huspeni, Judge*


Hennepin County District Court

File No. 9913457


Paul A. Strandness, Stephen S. Eckman, Heather L. Marx, Eckman, Strandness & Egan, P.A., 319 Barry Avenue South, P.O. Box 597, Wayzata, MN 55391 (for respondent Clifford)


Timothy J. Leer, Robert E. Kuderer, Matthew M. Johnson, Johnson & Condon, P.A., 7401 Metro Boulevard, Suite 600, Minneapolis, MN  55439-3034 (for appellant)


Bradley J. Betlach, Susan R. Zwaschka, Halleland, Lewis, Nilan, Sipkins & Johnson, P.A., 600 Pillsbury Center South, 220 South Sixth Street, Minneapolis, MN  55402-4501 (for respondents Gmitro, et al.)


William M. Hart, Melissa Dosick Riethof, Barbara A. Zurek, Meagher & Geer, P.L.L.P., 33 South Sixth Street, Suite 4200, Minneapolis, MN  55402 (for respondent Mack)


David C. Hutchinson, Carolin J. Nearing, Geraghty, O’Loughlin & Kenney, P.A., 386 North Wabasha Street, Suite 1400, St. Paul, MN  55102 (for respondents Myklebust, et al.)


            Considered and decided by Kalitowski, Presiding Judge; Anderson, Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


            Respondent James Clifford brought an action for the wrongful death of his mother, Doris Clifford, who died after taking prescription medication mistakenly dispensed to her by appellant Geritom Med, Inc., a pharmacy.  Geritom in turn brought a third-party action against respondents Dr. Michael Gmitro, Clifford’s physician, nurse Susan Duffy, and her clinic, Park Nicollet Clinic, and against respondents North Memorial Hospital, where Clifford died, and two doctors who treated her there, Drs. Monica Myklebust and Bruce Mack.  The district court dismissed the third-party defendants for lack of common liability.  In the first jury trial, in which Dr. Gmitro and nurse Duffy were included on the verdict form for the purpose of allocating fault, the jury determined Geritom was not negligent, and that Dr. Gmitro and/or nurse Duffy were negligent, but that their negligence was not a direct cause of Clifford’s death.  The district court granted a new trial on liability alone.  Near the close of the second trial, the district court gave Geritom the option of including Dr. Gmitro and nurse Duffy on the verdict form, and Geritom did so.  The jury found Geritom causally negligent and Dr. Gmitro and nurse Duffy not negligent.

            Geritom appealed, and this court reinstated the first jury’s verdict finding Geritom not negligent, holding that the district court had abused its discretion in granting a new trial.  Clifford v. Geritom Med, Inc., No. CX-02-2041, 2003 WL 21652269 (Minn. App. July 15, 2003) (Clifford I).  The supreme court reversed, concluding that the district court properly granted Clifford a new trial.  Clifford v. Geritom Med, Inc., 681 N.W.2d 680, 689 (Minn. 2004) (Clifford II).  The supreme court remanded the matter to this court to decide the issues that this court did not reach in the first appeal.  We affirm.


            On June 17, 1999, Doris Clifford, age 84, was recovering from a cold and called her doctor’s office seeking relief for a phlegm problem.  Her physician, respondent Michael Gmitro, returned her call and prescribed the drug Liquibid, a decongestant.  He wrote a prescription for the drug and gave it to his nurse, respondent Susan Duffy, to call Clifford’s pharmacy to place the order.  Duffy called in the order to appellant Geritom Med, Inc., a “closed-door” or “dispensing” pharmacy, which takes the prescriptions over the telephone and then delivers them directly to patients.  The Geritom pharmacist who took the order wrote down the medication Lithobid, which contains lithium and is used to treat bipolar or manic-depressive disorders.

            Geritom filled the prescription, as recorded by its pharmacist, for Lithobid.  When Clifford received the medication, she put a small label of her own on the bottle with the words “Lithobid—decongestant.”

            Eight days later, Clifford arrived at respondent North Memorial Medical Center by ambulance, having experienced various symptoms.  She remained in the hospital for testing.  In accordance with its practice, the hospital dispensed drugs from its pharmacy and continued administering preadmission medication, including the Lithobid.

            On June 29, Clifford suffered “an acute decrease in mental status.”  After testing her lithium blood level, the Lithobid was stopped and the doctors sought to clear it from her system.  Despite these efforts, her condition deteriorated and she died a week later from complications from lithium toxicity. 



            The issues that this court did not address in the first appeal, but that require answers as a result of remand by the supreme court are:  (1) did the trial court err in denying Geritom’s motion after the second trial for a third trial that would include all previously dismissed third-party defendants, and (2) did the trial court err in granting the motions of all third-party defendants seeking dismissal pursuant to Minn. R. Civ. P. 12.02(e) on the basis of lack of common liability between them and Geritom?  In addition to recognizing that the issues to be addressed in this opinion are related, we are cognizant also of the claims made by Geritom against each of the third-party defendants – North Memorial Hospital and the Park Nicollet parties – and of their responses to those claims.  Therefore, to the extent feasible, we separately address the claims in regard to each third-party defendant.[2]

            Whether common liability exists is a question of law reviewed de novo.  See Nuessmeier Elec., Inc. v. Weiss Mfg. Co., 632 N.W.2d 248, 251 (Minn. App. 2001), review denied (Minn. Oct. 16, 2001).  The question of whether to grant a new trial is within the discretion of the district court, which will not be reversed absent an abuse of discretion or an error of law.  Clifford v. Geritom Med, Inc., 681 N.W.2d 680, 687 (Minn. 2004) (Clifford II); Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).

North Memorial Hospital

            A.         Superseding Cause

            We begin our analysis of the remanded issues by concluding that to the extent Geritom continues to argue that North Memorial’s negligence is a superseding cause in this matter, that argument is without merit.  “[T]he general rule is that a negligent actor is responsible for all injuries which proximately result from a negligent action.”  However, the doctrine of superseding cause is an exception to this rule.  Wartnick v. Moss & Barnett, 490 N.W.2d 108, 113 (Minn. 1992).  When the actual injury is caused by a superseding, intervening event, the original negligent actor will not be liable.  Id.  Before an intervening cause will be considered a superseding cause, the following four elements must be present:

                        1) its harmful effects must have occurred after the original negligence; 2) it must not have been brought about by the original negligence; 3) it must have actively worked to bring about a result which would not otherwise have followed from the original negligence; and 4) it must not have been reasonably foreseeable by the original wrongdoer.


Can. by Landy v. McCarthy, 567 N.W.2d 496, 507 (Minn. 1997). 

            During the second trial, Geritom’s superseding-cause argument was rejected by the trial court on the basis that the superseding-cause doctrine had no application in this case.  A similar motion made by Geritom after the conclusion of the second trial was also rejected by the trial court.

            The supreme court addressed superseding cause in its review of this court’s opinion.  Clifford II, 681 N.W.2d at 687.  First, the supreme court noted that North Memorial obtained the prescription information from the bottle of Lithobid dispensed by Geritom, and that when North Memorial dispensed Lithobid to Clifford, it was following its policy of continuing preadmission medication.  Id.  The court stated, “[w]e concur with the district court’s apparent conclusion that North Memorial would not have dispensed and administered Lithobid if not for the prescription information found on the bottle of Lithobid.”  Id.

            Next, in addressing Geritom’s arguments that the first jury verdict should have been upheld, the supreme court distinguished cases cited by Geritom in which a “superseding cause was legally cognizable” noting that “here the district court specifically denied Geritom’s request for a superseding cause instruction.”  Id. at 688.  Further, in its decision granting a new trial, the district court explained that the likely reason for the jury’s mistake in the first trial was the improper statements by defense counsel “alluding to potential superseding causes.”  Id. at 689 n.2.  The supreme court observed that the trial court’s

articulated ground for granting a new trial was that the evidence did not justify the verdict and we affirm on that ground.  Because we conclude it was unnecessary for the court of appeals to address the issue of superseding cause, we vacate the court of appeals opinion to the extent that court directly or indirectly addressed this issue in its opinion.



            As recognized by the supreme court, any negligence by the hospital was not a superseding cause because it would not have occurred without the negligence of Geritom.  We conclude that the words of the supreme court can be interpreted in only one way.  The doctrine of superseding cause has no application in this case.  Thus, Geritom cannot prevail on its superseding negligence argument.

            B.         Direct Cause

            Direct cause or proximate cause exists if “the negligent conduct was a substantial factor in bringing about the injury.”  Flom v. Flom, 291 N.W.2d 914, 917 (Minn. 1980); Fiedler v. Adams, 466 N.W.2d 39, 43 (Minn. App. 1991), review denied (Minn. Apr. 29, 1991).  Common liability by two separate tortfeasors may be created if the wrongful acts occur at the same instant.  Spitzack v. Schumacher, 308 Minn. 143, 145, 241 N.W.2d 641, 643 (1976).  But when the acts of two or more tortfeasors are independent or separate and distinct torts, they are not considered to be joint tortfeasors.  Vesely, Otto, Miller & Keefe v. Blake, 311 N.W.2d 3, 5 (Minn. 1981). 

            In its motion in limine before the second trial, Geritom also moved to be allowed to present evidence that it was the Lithobid dispensed by North Memorial during Clifford’s hospitalization, not the approximately five tablets Clifford took from the Geritom-dispensed Lithobid prescription, that was the direct cause of Clifford’s death.  The district court denied this motion, and also denied the motion for a third trial on this ground.  The supreme court also addressed the issue of direct cause, stating that it concurred “with the district court’s apparent conclusion that North Memorial would not have dispensed and administered Lithobid if not for the prescription information found on the bottle of Lithobid.”  Clifford II, 681 N.W.2d at 687.  The supreme court went on to state that “[t]he significance of this conclusion is that it shifts the question of direct cause from which source of lithium was responsible for Clifford’s death to who was responsible for the erroneous prescription information on the bottle of Lithobid dispensed by Geritom.”  Id. (footnote omitted).

            We conclude, and believe we are consistent with the supreme court in doing so, that the negligence, if any, of North Memorial was not a direct cause of Clifford’s death.

            C.        Dismissal Under Rule 12

            A complaint that fails to state a claim on which relief can be granted must be dismissed.  Minn. R. Civ. P. 12.02(e).  The only question before the reviewing court is whether the complaint states a legally sufficient basis for relief.  Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 739 (Minn. 2000).

            Geritom argues that the district court erred in dismissing its complaint against the North Memorial respondents prior to the start of trial.  The district court dismissed the North Memorial respondents on the ground that no common liability existed between them and Geritom.  As discussed above, common liability does not exist between the two.  Therefore, the district court properly dismissed the North Memorial respondents as a matter of law.


Park Nicollet, Dr. Gmitro, Nurse Duffy

            In challenging the trial court’s ruling regarding the Park Nicollet defendants, Geritom first argues that the court erred in dismissing the third-party claims against them.

            Geritom alleged in its complaint that the Park Nicollet medical personnel were negligent because they failed to accurately and properly transmit Clifford’s medication prescription to Geritom.  The district court noted that the act of prescribing the wrong medication by the Park Nicollet personnel was separate in time and effect from the act of dispensing the wrong medication by Geritom, and that these actions could not have been jointly performed to cause injury to Clifford.  Instead, the court reasoned, Geritom’s claims against Dr. Gmitro and nurse Duffy were independent acts for which sole liability would attach, and such claims would provide Geritom with a complete defense to Clifford’s claim and would remove any issue of contribution or indemnity.  Therefore, the court dismissed Geritom’s third-party complaint against the Park Nicollet medical personnel for failure to set forth a legally sufficient claim for relief as there was no common liability between them.

            Geritom contends that it had always maintained the theory that miscommunication had occurred during the ordering of the prescription under which Park Nicollet medical personnel and Geritom had a common duty.  Our review of the record convinces us, however, that Geritom failed to assert this claim in its third-party complaint.[3]  The trial court properly dismissed without prejudice Park Nicollet, Dr. Gmitro, and Nurse Duffy.

            Whether to grant a new trial is within the discretion of the district court, which will not be reversed absent a clear abuse of discretion.  Clifford II, 681 N.W.2d at 687.  Near the end of the second trial, the district court stated that based on the evidence, it appeared that Geritom had a claim based not only on Park Nicollet’s negligence in prescribing the medication, but also on other negligence, including Park Nicollet’s failure to communicate properly with Geritom and failure to return a phone call to Clifford, as well as other possible negligence.  The court noted that this change from the pretrial rulings was the result of evidence that had come forth at trial and its understanding of the arguments counsel would make.  Consequently, at the close of the second trial, the court gave Geritom the option of adding the question of Dr. Gmitro’s and nurse Duffy’s negligence onto the verdict form.  Geritom chose to add them to the verdict form, but the jury allocated no fault to them.  On Geritom’s posttrial motion claiming error on this ground, the court found it failed to demonstrate prejudice from the court’s ruling.  Geritom contends that it was prejudiced by the district court’s action at the late stages of trial and also argues that counsel made prejudicial arguments.  Geritom contended it was entitled to a new trial on these bases.  Geritom has failed to show prejudice either in the trial court’s decision or in arguments by counsel. 

            In summary, we conclude that the trial court did not err in its dismissal without prejudice of the third-party defendants nor in its denial of Geritom’s motion for a third trial.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.


[1] The facts of this case, detailed at length in the supreme court’s opinion, Clifford v. Geritom, 681 N.W.2d 680, 681-83 (Minn. 2004), are abbreviated here.

[2]  We note once more that Clifford brought this action solely against Geritom; Geritom then sued the third-party defendants for contribution or indemnity.

[3]  Geritom never amended its complaint to add this theory.