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Durham v. Qmed Inc.

March 12, 1998

DURHAM
v.
QMED, INC.



Before Pittman, P.j., McRAE And Roberts, JJ.

The opinion of the court was delivered by: McRAE, Justice

WILLIAM H. DURHAM, ALD. v. QMED, INC.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-A MEMORANDUM/PER CURIAM AFFIRMANCE

DATE OF JUDGMENT: 09/11/96

TRIAL JUDGE: HON. KEITH STARRETT

COURT FROM WHICH APPEALED: PIKE COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - TORTS (OTHER THAN PERSONAL INJURY AND PROPERTY DAMAGE)

DISPOSITION AFFIRMED - 03/12/98

Before the Court is an appeal from a jury verdict in favor of Qmed, Inc. and against William Durham, M.D. Durham alleges that the circuit court below erred in refusing to grant a new trial as to punitive damages based on a question posed by the jury to the court. We disagree. Finding no error in the court's denial of a new trial and subsequent award of $3500 cash to Durham, we affirm.

I.

Durham, an internal physician, was the chief of medicine at Southwest Mississippi Regional Medical Center in October 1992. Qmed is a manufacturer and seller of medical diagnostic instruments. Mike Coker, a salesman for Qmed, made a sales call to Durham in October 1992, accompanied by Mark Einstein (Weinstein), Qmed area sales manager. Coker and Durham sought to lease to Durham, through a third party (Rockford Industries), a piece of medical equipment called a VasoSpect. Durham agreed to lease the instrument based on his belief (and Einstein's representation) that the Medicare reimbursement rate for the instrument would be $63.

After the VasoSpect was installed in Durham's office, the Medicare reimbursement rate turned out to be $39 to $40 instead of the $63 that Durham expected. As a result, Durham and Qmed agreed to swap the VasoSpect with another Qmed device, the NDX. Nonetheless, Durham became unhappy with the reimbursement rate on the NDX, and stopped paying for the equipment. Durham was sued by Sanwa Leasing Corporation, which had been assigned the lease by Rockford Industries, for his default on payment for the NDX.

Eventually, Durham worked with Qmed to settle the dispute by agreeing to purchase a Monitor One TC Omni 100 device from Qmed. Qmed agreed to credit Durham's Qmed account for the difference between the purchase price of the Omni 100 and the payment necessary to release Durham from the lease he defaulted on earlier. Qmed obtained a release from Rockford Industries for $6500, and Rockford acknowledged Qmed's payment and Durham's release. On April 1, 1994, Sanwa took a default judgment in the amount of $9980.47 against Durham, which was satisfied on June 1, 1994. Instead of paying Durham cash, Qmed credited the remaining $3500 to Durham's account.

As a result, Durham filed suit against Qmed, Inc. on October 3 1, 1994 in the Circuit Court of Pike County, alleging breach of contract, fraud, negligent or intentional infliction of emotional distress, and outrageous conduct. The trial was held on July 29 and 30, 1996, and, after granting Qmed a directed verdict on Durham's claims of emotional distress, the court below submitted to the jury the claims of breach of contract, fraud and outrageous conduct. The jury returned a verdict in ...


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