Carrozza v. CVS Pharmacy, Inc.
391 F. Supp. 3d 136
D.D.C.2019Background
- Plaintiff Kevin Carrozza filled a prescription for levofloxacin (Levaquin) at a CVS pharmacy; CVS's system displayed a "hardstop" allergy warning for quinolones but internal notes and prior fills indicated conflicting information and past denials of a quinolone allergy.
- Pharmacist Richard Wokoske investigated the record, found prior denials and prior quinolone fills, and chose to dispense the medication.
- After one dose, Carrozza developed skin rashes and sought treatment; hospital records described an atypical rash possibly representing erythema multiforme/very mild Stevens-Johnson Syndrome (SJS).
- Plaintiff sued CVS (diversity jurisdiction) asserting negligence, Chapter 93A, and breach of implied warranty/product liability; plaintiff disclosed one expert, allergist Dr. Kenneth Backman.
- The court excluded Dr. Backman under Fed. R. Evid. 702 (insufficient qualifications, methodology, and factual basis), granted CVS's motion to exclude and motion for summary judgment on all counts, and denied plaintiff's motions to reopen discovery and for partial summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of plaintiff's expert (Dr. Backman) | Backman will show breach of pharmacist standard of care and causation (Levaquin caused SJS). | Backman lacks qualifications, reliable methodology, and adequate factual basis to opine on pharmacist standard of care or SJS causation. | Excluded: Backman not qualified; opinions speculative and not reliably supported under Rule 702/Daubert. |
| Need for expert on pharmacist standard of care | No expert required: dispensing decision was commonsense based on hardstop; jury can decide. | Expert testimony is required to establish professional/technical standard of care for pharmacists. | Expert required; absent admissible expert, plaintiff cannot prove breach—summary judgment for CVS on negligence. |
| Causation of alleged SJS/injury | Backman and (unadmitted) Foster affidavit support causation. | No admissible expert proving SJS or causation; CVS experts conclude no SJS and proper care. | Without admissible expert proof of causation, plaintiff cannot survive summary judgment. |
| Product liability / breach of implied warranty (UCC) | CVS sold a defective product or failed to warn; plaintiff invokes implied warranty/consumer expectations. | Filling a prescription is predominately a rendition of professional services, not a sale of goods governed by UCC strict liability; no expert support for design defect. | Claim construed as implied-warranty fails because transaction predominately is service; summary judgment for CVS. |
| Chapter 93A claim | Chapter 93A based on same facts of negligence/warranty; CVS failed to warn. | No independent 93A theory separate from negligence/warranty; plaintiff raised failure-to-warn only at summary judgment (too late). | 93A claim fails because underlying tort/warranty claims fail; summary judgment for CVS. |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (trial courts act as gatekeepers under Rule 702 to ensure expert testimony is reliable and relevant)
- Samaan v. St. Joseph Hosp., 670 F.3d 21 (1st Cir. 2012) (discusses Rule 702 admissibility and gatekeeping function)
- Bogosian v. Mercedes-Benz of N. Am., Inc., 104 F.3d 472 (1st Cir. 1997) (sets out qualification, subject-matter, and helpfulness inquiries under Rule 702)
- Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77 (1st Cir. 1998) (Daubert reliability factors and focus on methodology)
- Cottam v. CVS Pharmacy, 436 Mass. 316 (2002) (distinguishes duty-to-warn claims from technical performance by pharmacists)
- Polonsky v. Union Hosp., 11 Mass. App. Ct. 622 (1981) (expert opinion required where professional judgment is involved)
- Lally v. Volkswagen Aktiengesellschaft, 45 Mass. App. Ct. 317 (1998) (expert testimony required for technical medical issues including causation)
- Anderson v. Liberty Lobby, 477 U.S. 242 (1986) (summary judgment standard requiring affirmative evidence to create a genuine issue)
- Mesnick v. General Elec. Co., 950 F.2d 816 (1st Cir. 1991) (purpose of summary judgment to assess whether trial is necessary)