505 F.2d 489
505 F.2d 489
(Cite as: 505 F.2d 489)
FOR EDUCATIONAL USE ONLY
Chumbler v. McClure,
C.A.Tenn. 1974.
United States Court of Appeals, Sixth Circuit.
Boyce E. CHUMBLER, Plaintiff-Appellant,
v.
Marguerite Wallace McCLURE, Executrix of the
Estate of Dr. C. C. McClure, Jr., and Ayerst
Laboratories, Defendants-Appellees.
No. 74-1169.
Page 1
Under Tennessee law, reviewing courts in
considering assignments of error concerning
sufficiency of evidence neither review nor weigh
evidence but determine only whether there was any
material evidence to support verdict; in such review
court must take strongest legitimate view of all
evidence favorable to prevailing party, disregard all
to contrary, and indulge all reasonable inferences to
uphold the verdict.
[3] Trial 388
141
Oct. 23, 1974.
In a diversity case, medical malpractice was alleged
against the executrix of the estate of a deceased
physician, in respect to drug treatment, and product
liability was alleged against a laboratory company.
After trial by jury in the United States District Court
for the Middle District of Tennessee, Nashville
Division, L. Clure Morton, J., a verdict in favor of
the laboratory was directed at the conclusion of the
plaintiff's case and in favor of the defendant estate of
the physician at the conclusion of all evidence.
Plaintiff appealed. The Court of Appeals, Carl B.
Rubin, District Judge, held that in view of the proper
exclusion of certain evidence under the Tennessee
dead man's statute, evidence failed to make a case
for the jury against either the laboratory or the estate
of the deceased physician.
Affirmed.
West Headnotes
[1] Federal Courts 170B
416
170B Federal Courts
170BVI State Laws as Rules of Decision
170BVI(C) Application to Particular Matters
170Bk416 k. Evidence Law. Most Cited
Cases
(Formerly 106k376)
In diversity case, trial judge is bound by state law as
to sufficiency of evidence.
388 Trial
388VI Taking Case or Question from Jury
388VI(A) Questions of Law or of Fact in
General
388k141 k. Uncontroverted Facts or
Evidence. Most Cited Cases
Trial 388
142
388 Trial
388VI Taking Case or Question from Jury
388VI(A) Questions of Law or of Fact in
General
388k142 k. Inferences from Evidence.
Most Cited Cases
Under Tennessee law, it is only where evidence is
uncontradicted and a reasonable mind could draw
only one conclusion from evidence that trial judge is
justified in directing verdict.
[4] Products Liability 313A
313A Products Liability
313AII Actions
313Ak87 Questions of Law or Fact
313Ak88 k. Particular Products. Most
Cited Cases
(Formerly 138k22 Drugs and Narcotics)
In suit against laboratory corporation for product
liability, evidence concerning drug treatment was
insufficient to make case for jury.
[5] Witnesses 410
[2] Federal Courts 170B
88
128
478
170B Federal Courts
170BVII Supreme Court
170BVII(C) Review of Decisions of District
Courts
170Bk478 k. Scope and Extent of Review.
Most Cited Cases
(Formerly 30k930(1), 30k989)
410 Witnesses
410II Competency
410II(C) “Dead Man'S” Statutes and Rules
410k127 Actions and Proceedings in
Which Testimony Is Excluded
410k128 k. In General. Most Cited
Cases
Tennessee dead man's statute is applicable to tort
© 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.
505 F.2d 489
505 F.2d 489
(Cite as: 505 F.2d 489)
FOR EDUCATIONAL USE ONLY
cases. T.C.A. § 24-105.
[6] Witnesses 410
statute. T.C.A. § 24-105.
159(3)
410 Witnesses
410II Competency
410II(C) “Dead Man'S” Statutes and Rules
410k157 Subject-Matter of Testimony
410k159
Transactions
or
Communications Between Witness and Person
Subsequently Deceased or Incompetent
410k159(3) k. What Constitutes
Transaction in General. Most Cited Cases
Though general approach of Tennessee courts is to
construe narrowly exclusion of testimony, word
“transactions” within dead man's statute
encompasses large range of excludable testimony on
things done in decedent's presence to which he
might testify from his own personal knowledge.
T.C.A. § 24-105.
[7] Witnesses 410
160(1)
410 Witnesses
410II Competency
410II(C) “Dead Man'S” Statutes and Rules
410k157 Subject-Matter of Testimony
410k160
Transactions
or
Communications Between Person Other Than
Witness and Person Subsequently Deceased or
Incompetent
410k160(1) k. In General. Most
Cited Cases
Under Tennessee dead man's statute, trial court in
malpractice action against executrix of estate of
deceased physician did not err in excluding all
testimony on alleged lack of informed consent by
patient concerning his drug treatment. T.C.A. §
24-105.
[8] Witnesses 410
Page 2
158
410 Witnesses
410II Competency
410II(C) “Dead Man'S” Statutes and Rules
410k157 Subject-Matter of Testimony
410k158 k. In General. Most Cited
Cases
In malpractice action against executrix of estate of
deceased physician, testimony which plaintiff
sought to proffer as to his state of mind as it bore on
informed consent concerning drug treatment by the
physician fell within bounds of testimony
proscribed by Tennessee dead man's statute, and
well outside “independent facts” exception to the
[9] Health 198H
925
198H Health
198HVI Consent of Patient and Substituted
Judgment
198Hk922 Proceedings and Actions
198Hk925 k. Burden of Proof. Most Cited
Cases
(Formerly 299k18.60 Physicians and Surgeons)
In malpractice action against executrix of estate of
deceased physician, burden of proof with respect to
issue of informed consent to drug treatment rested
on plaintiff, under Tennessee law. T.C.A. § 24-105.
[10] Health 198H
906
198H Health
198HVI Consent of Patient and Substituted
Judgment
198Hk904 Consent of Patient
198Hk906 k. Informed Consent in
General; Duty to Disclose. Most Cited Cases
(Formerly 299k18.12 Physicians and Surgeons)
Under Tennessee law, informed consent does not
ordinarily relieve physician from liability for
malpractice where he has not conformed to accepted
medical standards for treatment.
[11] Witnesses 410
182
410 Witnesses
410II Competency
410II(C) “Dead Man'S” Statutes and Rules
410k182 k. Evidence as to Nature and
Circumstances of Transaction, Communication, or
Other Subject-Matter. Most Cited Cases
Under Tennessee law, party offering testimony
assertedly barred by dead man's statute has burden
of proving competency. T.C.A. § 24-105.
[12] Constitutional Law 92
2500
92 Constitutional Law
92XX Separation of Powers
92XX(C) Judicial Powers and Functions
92XX(C)2 Encroachment on Legislature
92k2499 Particular Issues and
Applications
92k2500 k. In General. Most Cited
Cases
(Formerly 92k70.1(7.1), 92k70.1(7))
Relief from harsh results of application of dead
© 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.
505 F.2d 489
505 F.2d 489
(Cite as: 505 F.2d 489)
FOR EDUCATIONAL USE ONLY
man's statute lies not with court but with legislature.
T.C.A. § 24-105.
[13] Health 198H
623
198H Health
198HV Malpractice, Negligence, or Breach of
Duty
198HV(B) Duties and Liabilities in General
198Hk622 Breach of Duty
198Hk623 k. In General. Most Cited
Cases
(Formerly 299k18.12 Physicians and Surgeons)
Under Tennessee law, deviation from accepted
medical practices and community standards is
prerequisite for maintenance of medical malpractice
suit.
[14] Health 198H
628
198H Health
198HV Malpractice, Negligence, or Breach of
Duty
198HV(B) Duties and Liabilities in General
198Hk628 k. School of Medicine. Most
Cited Cases
(Formerly 299k14(4) Physicians and Surgeons)
Under Tennessee law, test for medical malpractice
and for community standards is not to be determined
solely by plebiscite; where two or more schools of
thought exist among competent members of medical
profession concerning proper medical treatment for
given ailment, each of which is supported by
responsible medical authority, it is not malpractice
to be among the minority in given city who follow
one of the accepted schools.
[15] Health 198H
825
198H Health
198HV Malpractice, Negligence, or Breach of
Duty
198HV(G) Actions and Proceedings
198Hk824 Questions of Law or Fact and
Directed Verdicts
198Hk825 k. In General. Most Cited
Cases
(Formerly 299k18.90 Physicians and Surgeons)
Under Tennessee law on directed verdicts, evidence
with respect to drug treatment, in malpractice case
against executrix of estate of deceased physician,
failed to make case for jury.
*490 Franklin D. Brabson, W. Gary Blackburn,
Malcolm L. McCune, Blackburn & McCune,
Page 3
Nashville, Tenn., Joseph W. Bolin, Clinton, Ky., for
plaintiff-appellant.
W. A. Moody, Carrol D. Kilgore, William J.
Harbison,
Nashville,
Tenn.,
for
defendants-appellees.
*490 Before PHILLIPS, Chief Judge, McCREE,
Circuit Judge, and RUBIN, FN* District Judge.
FN* Honorable Carl B. Rubin, United
States District Judge for the Southern
District of Ohio, sitting by designation.
OPINION
CARL B. RUBIN, District Judge.
This matter comes before the Court as a diversity
case alleging medical malpractice against
Marguerite Wallace McClure, Executrix of the
Estate of Doctor C. C. McClure, Jr., and product
liability against Ayerst Laboratories, Inc. The trial
was to a jury and the trial judge directed a verdict in
favor of defendant Ayerst at the conclusion of the
plaintiff's case and directed a verdict in favor of the
defendant Estate of Dr. C. C. McClure, Jr. at the
conclusion of all evidence. We affirm.
The factual background of this case indicates that in
April, 1971, the plaintiff consulted Dr. C. C.
McClure, a neurosurgeon in Nashville, Tennessee,
in connection with injuries sustained by Chumbler
in an electrical explosion. Dr. McClure diagnosed
Chumbler's illness as cerebral vascular insufficiency
and prescribed a female hormone known as
Estrogen, produced and marketed commercially as
Premarin by defendant Ayerst Laboratories. Dr.
McClure also prescribed Pavabid, a drug which
dilates blood vessels. Known side effects of
Premarin include an enlargement of the breasts and
a loss of libido. While plaintiff also sought damages
for impotence and menopausal symptoms, that issue
need not be reached.
Plaintiff's appeal raises issues of whether the
District Court acted properly in directing verdicts
for the defendants on whether Dr. McClure violated
the accepted medical standards in his
community*491 in his treatment of Chumbler and
whether defendant Ayerst acted negligently in the
production or sale of Premarin. Further, the
plaintiff-appellant asserts that the District Court
erred in excluding all testimony on the issue of
plaintiff's informed consent to his drug treatments.
[1][2][3] The law is well settled in this circuit and
elsewhere that in a diversity case, the trial judge is
© 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.
505 F.2d 489
505 F.2d 489
(Cite as: 505 F.2d 489)
FOR EDUCATIONAL USE ONLY
bound by state law as to the sufficiency of
evidence.Moskowitz v. Peariso, 458 F.2d 240 (6th
Cir. 1972); Thompson v. Illinois Central Railroad
Company, 423 F.2d 1257 (6th Cir. 1970); Dean v.
Southern Railway Co., 327 F.2d 757 (6th Cir. 1964).
This Court, in Wallace v. Louisville & N.R.Co., 332
F.2d 97 (6th Cir. 1964), found that the rule in
Tennessee required the court:
‘to look to all the evidence, to take as true the
evidence for the plaintiff, to discard all
countervailing evidence, to take the strongest
legitimate view of the evidence for the plaintiff, to
allow all reasonable inferences from it in his favor;
and if then there is any dispute as to any material
determinative evidence, or any doubt as to the
conclusion to be drawn from the whole evidence,
the motion for a directed verdict must be
denied.’Poe v. Atlantic Coast Line Railroad Co.,
205 Tenn. 276, 284, 326 S.W.2d 461, 464 (1958);
Baggett v. Louisville & Nashville Railroad Co., (51
Tenn.App. 175)365 S.W.2d 902, 904-905 (1960).
Accord, Osborne v. Frazor, 58 Tenn.App. 15, 425
S.W.2d 768, 774 (1968); Goings v. aetna Cas. & Sur.
Co., 491 S.W.2d 847 (Tenn.App.1972). The rule
remains the same in Tennessee today and has
recently been summarized in other terms. See, e.g.,
Phelps v. Magnovox Co., 497 S.W.2d 898
(Tenn.App.1972) (no evidence in the entire record
from which a jury could have based a verdict for the
plaintiff); Keller v. East Tennessee Prod. Credit
Ass'n., 501 S.W.2d 810 (Tenn.App.1973) (where a
reasonable mind could only draw one conclusion
from the evidence).
[4][5][6] Against this standard, we find that the trial
court did not err in directing a verdict for defendant
Ayerst Laboratories. Plaintiff failed to prove
participation of Ayerst in any alleged experiments
by Dr. McClure, any overpromotion, or a lack of
warning concerning side effects of Premarin. From
the evidence adduced at trial, we find that taking the
strongest legitimate view of the evidence for the
plaintiff and resolving all inferences in his favor,
reasonable minds could only have found in favor of
defendant Ayerst Laboratories. Based upon the
foregoing conclusion, we find that the District Court
acted properly in directing a verdict for defendant
Ayerst.
We reach the same conclusion concerning the
directed verdict for the Estate of Dr. McClure. Since
Dr. McClure was deceased, the plaintiff was
confronted with the Tennessee Dead Man's Statute,
Page 4
Tenn.Code Ann. § 24-105,FN1 see Worthington Corp.
v. Lease Management, Inc., 352 F.2d 24 (6th Cir.
1965), cert. den.383 U.S. 937, 86 S.Ct. 1068, 15
L.Ed.2d 854 (1967). Its applicability to tort cases in
Tennessee is well established. See, e.g., Christofiel
v. Johnson, 40 Tenn.App. 197, 290 S.W.2d 215
(1956) While the general approach is to construe
narrowly the exclusion of testimony, McDonald v.
Allen, 67 Tenn. 446 (1874); Christofiel v. Johnson,
supra, ‘transactions' encompass a large range of
excludable testimony on things done in the
deceased's presence to which he might testify from
his own personal knowledge.Waggoner v. Dorris,
17 Tenn.App. 420, 68 S.W.2d 142 (1933).
FN1.§ 24-105 states, in pertinent part: In
actions or proceedings by or against
executors, administrators, or guardians, in
which judgments may be rendered for or
against them, neither party shall be allowed
to testify against the other as to any
transaction with or statement by the
testator, intestate, or ward, unless called to
testify by the opposite party . . ..
[7][8] We hold that the trial court did not err in
excluding all testimony on *492 the alleged lack of
informed consent by the plaintiff-appellant
concerning his drug treatment. Such testimony
would inevitably relate to conversations with the
deceased doctor or to transactions involving that
doctor. The testimony which plaintiff sought to
proffer as to his state of mind as it bore on informed
consent also falls well within the bounds of
proscribed testimony and well outside the
‘independent facts' exception to the Dead Man's
Statute.
[9][10][11][12] Plaintiff asserted that proof of his
informed consent is an affirmative defense and,
consequently, that the burden lies upon the
defendant. The trial court properly found that the
burden rested on the plaintiff. Since consent does
not ordinarily relieve a physician from liability
where he has not conformed to accepted medical
standards for treatment and since the party offering
testimony barred by the Dead Man's Statute has the
burden of proving competency, we believe the trial
judge was correct.Martin v. Morris, 163 Tenn. 186,
42 S.W.2d 207 (1931); Meadows v. Patterson, 21
Tenn.App.
283,
109
S.W.2d
417
(Tenn.Sup.Ct.1937); Story v. Saunders, 27 Tenn.
663 (1848). The harshness of this statute may be as
severe as plaintiff argues in effectively making it
impossible to obtain a judgment against any
deceased doctor. While not deciding this issue, this
© 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.
505 F.2d 489
505 F.2d 489
(Cite as: 505 F.2d 489)
FOR EDUCATIONAL USE ONLY
Court must point out that relief lies not with the
courts but with the Legislature of the State of
Tennessee.
[13] As the trial court properly refused to admit
testimony barred by the Dead Man's Statute, we may
now consider plaintiff's third ground for appeal-that
that a directed verdict in favor of the doctor's estate
was erroneous. Deviation from accepted medical
practices and community standards is a prerequisite
for maintenance of a medical malpractice
suit.Campbell v. Oliva, 424 F.2d 1244 (6th Cir.
1970); Perkins v. Park View Hospital, Inc., 61
Tenn.App. 458, 456 S.W.2d 277 (1970); Ison v.
McFall, 55 Tenn.App. 326, 400 S.W.2d 243 (1964);
Wooten v. Curry, 50 Tenn.App. 549, 362 S.W.2d
820 (1961); Beech v. Hunter, 14 Tenn.App. 88
(1931).
[14] The record in this caseFN2 is devoid of evidence
of such deviation. The most favorable interpretation
that may be placed on the testimony adduced at trial
below is that there is a division of opinion in the
medical profession regarding the use of Premarin in
the treatment of cerebral vascular insufficiency, and
that Dr. McClure was alone among neurosurgeons
in Nashville in using such therapy. The test for
malpractice and for community standards is not to
be determined solely by a plebiscite. Where two or
more schools of thought exist among competent
members of the medical profession concerning
proper medical treatment for a given ailment, each
of which is supported by responsible medical
authority, it is not malpractice to be among the
minority in a given city who follow one of the
accepted schools.Gresham v. Ford, 192 Tenn. 310,
241 S.W.2d 408 (1951); Perkins v. Park View Hosp.
Inc., supra;Ison v. McFall, supra;Ball v. Mallinkrodt
Chem. Works,53 Tenn.App. 218, 381 S.W.2d 563
(1964); Wooten v. Curry, supra.
FN2. See attached Appendix for the salient
testimony relating to medical standards in
Nashville and elsewhere.
[15] Were this not true, an anomaly might occur
where nine neurosurgeons in Memphis, Tennessee,
prescribed Premarin for cerebral vascular
insufficiency and where nine neurosurgeons in
Nashville prescribed other treatment. Should one
Memphis neurosurgeon move to Nashville and
continue to prescribe Premarin, he might be liable
for malpractice. Such a result would impose a
standard of practice upon the medical profession
which would be totally unsupported by logic and
Page 5
unreasonable in concept. See the cases cited, supra.
Scrutiny of the testimony below leads to no other
conclusion. The doctors who testified asserted only
that Dr. McClure was alone in Nashville among
neurosurgeons*493 in prescribing Premarin.
Accompanying testimony as to the medical
acceptability of this practice and of the drug itself
leave no other possible outcome other than
plaintiff's failure to present even a prima facie case
of malpractice. Under Tennessee law on directed
verdicts, we find that the trial court acted properly in
directing a verdict for the doctor's estate at the close
of all the evidence. Accordingly, for this and reasons
mentioned before, the actions of the trial court, both
as to defendant Estate of Dr. C. C. McClure, Jr. and
defendant Ayerst Laboratories, Inc. are hereby
affirmed.
APPENDIX
Testimony of Dr. Ray W. Hester, p. 78:
Q. Do you of your knowledge know of anyone in
this community that's a neurosurgeon or a
neurologist that prescribes Premarin in the treatment
of cerebral vascular insufficiency other than Dr.
McClure?
A. Well, Dr. McClure did, and of my own personal
knowledge, I don't know of any of the other
neurosurgeons who do, No, sir.
Page 91:
Q. Now, based on that, and based on your
knowledge and based on reasonable medical
certainty, etc. should that drug (Premarin) have been
used on Boyce Chumbler for anything other than
prostatic carcinoma?
A. Again, that's a difficult question to answer. First
of all, we have just quoted two articles that one is for
and the other is against. Now there are other articles
in the literature where the drug has been used and
has been tried and they also have conflicting
evidence.
BY THE COURT: Are you saying there is a split of
opinion in the medical profession as to whether or
not this drug should or should not be used for a
vascular insufficiency or vascular accident?
A. Yes, sir. At least at one time there was and I think
© 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.
505 F.2d 489
505 F.2d 489
(Cite as: 505 F.2d 489)
FOR EDUCATIONAL USE ONLY
the physician must come to his own conclusion from
what, you know, has been read and his medical
knowledge at the time . . .
Page 98:
Q. . . . As I understand and you correct me if I am
wrong, there are two schools of thought in medicine
as to the use of Premarin in the treatment of a
possible vascular situation?
A. Yes, sir.
Q. All right. One school of thought promotes and
uses Premarin, another school of thought to which
you belong does not believe in the use of Premarin?
Page 6
Page 119:
Q. Dr. Hester, you didn't intend to tell the jury, did
you, that Dr. McClure *494 didn't use the standard
of care requisite for neurosurgeons in this
community in diagnosing the man's condition, did
you?
A. No, sir, I did not.
Q. . . . Now, he had a different idea about the
medication that might be used from your own ideas,
I understand it?
A. Yes, he did.
A. That's correct.
. . . . di
Page 104:
Q. Are you saying he was violating the professional
standards in the community in prescribing it
(Premarin), doctor?
Q. Now, as you are a neurosurgeon and as you do
meet with a group of neurosurgeons, do you have
knowledge of the standard that is followed by
internists, general practitioners, general surgeons
and family doctors in this area with regard to the
diagnosis and treatment of symptoms similar to Mr.
Chumbler's . . .
BY THE COURT: Just let me ask him- Dr., is this
condition we are talking about, is it a medical
condition which based on the local standards of this
community falls primarily in the field of
neurosurgery?
A. Well, I think I have already answered that
question earlier when I said the standard in our
community was not to prescribe Premarin for
cerebral vascular insufficiency and to my
knowledge none of us do. Now whether this is just
opinions or whether you are going to call this the
standard, I don't know how you are going to arrive at
that. In Memphis, maybe the neurosurgeons do, I
don't know, but here we don't go so far except for Dr.
McClure.
Q. All right, but now you are aware that it is widely
used by many doctors for many different things,
aren't you?
A. No, sir.
. . . ..
A. Yes, sir.
Q. Then I believe I asked you, are you familiar with
the standard that is followed by internists, by
general surgeons and family practitioners, just plain
old doctors in this area, in treating these conditions
and prescribing Premarin?
Q. All right, isn't it a matter of medical judgment
which drug to prescribe in the last analysis?
A. It certainly is.
A. I am not nearly so familiar with that and . . .
Testimony of Dr. Gerald Fenichel, p. 309:
BY THE COURT: Well, now, Doctor, I don't mean
to be abrupt about this matter, but in this matter I
think you are going to have to say either you are or
you are not.
Q. Doctor, is it your opinion and within that, that
Premarin is accepted therapy for cerebral vascular
insufficiency?
A. No, it is not.
A. Well, I am not.
© 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.
505 F.2d 489
505 F.2d 489
(Cite as: 505 F.2d 489)
FOR EDUCATIONAL USE ONLY
Q. Is there anyone in this community of neurologists
or neurosurgeons that you have knowledge of that
uses Premarin in the treatment of cerebral vascular
insufficiencies?
Page 7
was the only person in the community using
Premarin in the treatment of cerebral vascular
disease.
Testimony of Dr. Oscar F. Nowell, p. 401:
A. I can only speak for the neurologists in the city.
There are nine. At our last society meeting, of which
seven were present, all said they had never used
Premarin for the treatment of cerebral vascular
insufficiency . . .
Q. In your opinion, has Premarin been or can it be an
effective medication for the prevention of strokes?
BY THE COURT: . . . Are you saying, doctor, that
it's ineffective, is that what you are saying?
Q. Have you ever used Premarin?
A. It has never been demonstrated to be effective as
a treatment for cerebral vascular insufficiency.
Page 334:
*495 A. In my way of thinking, yes.
A. Oh, yes, I've used it for many years.
Q. And have youA. But not for that purpose.
Q. In the treatment of cerebral vascular problems as
it existed beginning in April, 1971, am I correct in
assuming there was an honest difference of opinion
as to the various approaches among the specialists at
that time?
A. Are you referring to all the treatments or just the
estrogen therapy?
Q. All right, sir, have you ever used Premarin for
heart problems?
A. No, I am not a cardiologist . . . but I do know it
has been recommended for this purpose.
Q. And you do know that it is being used locally for
this purpose?
Q. Any kind of treatment.
A. Yes, sir.
A. There have been- that is correct, there is no
specific established treatment for cerebral vascular
disease.
Page 399:
Q. And especially, some general practitioners
honestly disagree as to whether or not there was one
proper approach to it?
BY THE COURT: Doctor, do you know the
standard of medicine in this area with reference to
whether or not- I mean with reference to the
standard in the medical practice in Nashville,
Tennessee?
A. I think they all agreed there was no one
established approach.
A. Yes, sir.
Page 336:
BY THE COURT: All right.:
BY THE COURT: All right, based on the standard
that existed in this community in April of 1971, now
go ahead and finish your question.
(By Mr. Moody, continuing)
(By Mr. Brabson, continuing)
Q. Was Premarin a drug to use in cerebral vascular
insufficiency?
Q. Doctor, do you know whether or not, basing your
knowledge upon the factors that you know about in
the practice of medicine in Davidson County,
Tennessee, is Premarin used for the treatment of
cerebral vascular insufficiency?
A. Yes, sir.
A. . . . to the best of my knowledge, Dr. McClure
© 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.
505 F.2d 489
505 F.2d 489
(Cite as: 505 F.2d 489)
FOR EDUCATIONAL USE ONLY
Q. How is it used and why is it used for that
purpose?
A. . . . Now the important thing is to enlarge the
diameter of these blood vessels so that more blood
can get through and at the same time use some kind
of drug that will decrease the physiological age of
these blood vessels.
Q. Is Premarin one of the drugs?
A. And one of these drugs is Premarin to reduce the
physiological age of the blood vessels in
question . . .
C.A.Tenn. 1974.
Chumbler v. McClure
505 F.2d 489
END OF DOCUMENT
© 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Page 8