Carrozza v. CVS Pharmacy, Inc.
19-1776P
1st Cir.Mar 31, 2021Background
- In April 2015 Carrozza received a Levaquin prescription filled at CVS; the pharmacy computer issued a "hard stop" flag for a quinolone allergy but the pharmacist (Wokoske) dispensed the drug after noting conflicting patient-profile entries and prior quinolone prescriptions.
- Carrozza suffered an allergic reaction requiring hospitalization (records noted possible erythema multiforme/very mild Stevens–Johnson Syndrome) and alleges permanent ocular injury.
- Carrozza sent a Chapter 93A pre-suit demand for $650,000; CVS offered $5,000. Carrozza sued in state court; CVS removed on diversity grounds. District court denied remand.
- District court excluded plaintiff's expert (Dr. Backman) under Fed. R. Evid. 702, denied a belated request to take an audiovisual deposition of treating physician Dr. Foster, and rejected attempts to admit Foster’s affidavit.
- The district court granted summary judgment for CVS on negligence, product-liability (breach of implied warranty), and Chapter 93A claims; the First Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether federal diversity jurisdiction existed/remand was required | Carrozza: demand was not a bona fide $650,000 valuation; CVS’s $5,000 offer shows amount in controversy < $75,000 | CVS: pre-suit $650,000 demand (and claimed fees/medical bills) shows amount in controversy; CVS is a RI citizen, so complete diversity exists | Denial of remand affirmed — federal amount-in-controversy governed by federal standards; demand letter counts and diversity exists (Hertz applied) |
| Admissibility of plaintiff's expert and late discovery (Backman & Foster) | Carrozza: Backman qualified; Foster deposition needed after Backman’s deposition exposed weaknesses | CVS: Backman not qualified on pharmacy standard of care or causation; plaintiff failed to timely disclose/depose Foster | Exclusion of Backman and denial to reopen discovery affirmed — district court did not abuse discretion under Rule 702 and discovery rules |
| Whether negligence claim required expert proof of pharmacist standard of care/causation | Carrozza: breach is for jury; common-sense inference suffices | CVS: standard of care and causation are technical/professional questions requiring expert testimony | Summary judgment for CVS affirmed — expert evidence required and plaintiff produced none admissible |
| Whether dispensing a prescription is a sale of goods (UCC warranty) or a service; product-liability and Chapter 93A claims | Carrozza: alleged product defect/strict liability or implied warranty and Chapter 93A violation | CVS: dispensing predominately a professional service, not a sale of goods; no viable negligence/warranty showing so Chapter 93A fails | Summary judgment for CVS affirmed — dispensing predominately a service (UCC inapplicable for implied-warranty strict-liability); Chapter 93A fails as dependent claims fail |
Key Cases Cited
- St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283 (U.S. 1938) (plaintiff’s good-faith claim controls amount-in-controversy)
- Abdel-Aleem v. OPK Biotech LLC, 665 F.3d 38 (1st Cir. 2012) (amount-in-controversy and demand-letter principles)
- Hertz Corp. v. Friend, 559 U.S. 77 (U.S. 2010) (corporate citizenship/principal place of business rule)
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (U.S. 1993) (expert admissibility standard under Rule 702)
- Correa v. Schoeck, 98 N.E.3d 191 (Mass. 2018) (pharmacies’ duty to fill prescriptions correctly)
- White v. Peabody Construction Co., 434 N.E.2d 1015 (Mass. 1982) (UCC applies only to transactions predominantly for sale of goods)
- Mason v. General Motors Corp., 490 N.E.2d 437 (Mass. 1986) (Massachusetts rejects strict liability in tort apart from UCC warranty)