33 Mass. L. Rptr. 666
Mass. Super. Ct.2016Background
- Plaintiff Carmen Correa (administratrix) sued Walgreens, treating neurologist Dr. Schoeck, and his employer after Yarushka Rivera died of a seizure on Oct. 29, 2009; Walgreens moved for summary judgment which the court granted in June 2016 and invited a Rule 54(b) motion for final judgment.
- Rivera had been prescribed Topamax by Dr. Schoeck and filled it at Walgreens in June and July 2009; thereafter MassHealth would not cover Topamax without prior authorization.
- Rivera (and family) repeatedly attempted to refill Topamax in Sept–Oct 2009; Walgreens informed them MassHealth denied coverage for lack of prior authorization and advised them to contact Dr. Schoeck; Walgreens pharmacists allegedly told them Walgreens would fax and call the prescriber, but Walgreens had no obligation to send or track such faxes.
- Rivera also was prescribed Lamictal by psychiatrist Dr. Alonzo; dosage adjustments occurred in 2009, but Lamictal was prescribed by a different doctor than the neurologist.
- Plaintiff sought reconsideration under Mass. R. Civ. P. 54(b) arguing (1) Walgreens voluntarily assumed a duty by assuring it would contact Dr. Schoeck and (2) Walgreens had special knowledge of increased danger from missed/low-dose seizure medication.
- The court denied reconsideration on both bases, certified final judgment for Walgreens under Rule 54(b) to allow immediate appeal, and stayed the remaining trial pending that appeal (prejudgment interest against remaining defendants was suspended during the stay).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Walgreens voluntarily assume a duty to ensure Rivera received Topamax by promising to contact the prescriber? | Walgreens told Rivera/family it would fax/call Dr. Schoeck, creating an undertaken duty and liability for negligent performance. | Walgreens only advised and encouraged contacting the prescriber; any offer to contact was not required or relied upon and did not create a legal duty. | No voluntary-assumption duty as a matter of law; assurances plus instruction to contact prescriber do not establish legally cognizable duty. |
| Did Walgreens owe a duty based on "special knowledge" of increased danger to Rivera from missed/low-dose meds? | Walgreens received MassHealth messages (POPS) suggesting a low-dose exception and thus knew Rivera faced increased seizure risk. | The POPS entry and billing codes do not convey medical warnings; Walgreens lacked particularized knowledge of a customer-specific medical risk. | No duty from special knowledge; plaintiff’s inference from billing codes is speculative and insufficient to create duty. |
| Is the June 2016 summary judgment order as to Walgreens subject to revision under Mass. R. Civ. P. 54(b)? | Correa sought reconsideration claiming legal error in failing to find duties described above. | Walgreens opposed revision; court’s prior legal rulings were sound. | Motion to revise denied; judge appropriately exercised discretion and found no reversible error. |
| Should the court enter a separate and final judgment under Rule 54(b) so Walgreens’ dismissal is immediately appealable? | Plaintiff requested certification to permit immediate appeal; Walton’s dismissal is final as to that party. | Walgreens assented to certification. | Court granted Rule 54(b) certification (no just reason for delay) and entered final judgment for Walgreens; also granted stay of remaining trial pending appeal and tolled prejudgment interest against remaining defendants during the stay. |
Key Cases Cited
- Foster v. Group Health, Inc., 444 Mass. 668 (summary judgment standard and view of facts for non-moving party)
- Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387 (trial judge’s authority to reconsider interlocutory rulings)
- Cottam v. CVS Pharm., 436 Mass. 316 (pharmacist may assume duty voluntarily; duty exists only with specific knowledge of increased customer-specific danger)
- Roe No. 1 v. Children’s Hosp. Med. Ctr., 469 Mass. 710 (no duty to control another’s conduct absent special relationship)
- Afarian v. Massachusetts Elec. Co., 449 Mass. 257 (existence of legal duty is essential negligence element)
- Long v. Wickett, 50 Mass.App.Ct. 380 (Rule 54(b) certification factors and policy against piecemeal appeals)
- Morrissey v. New England Deaconess Ass’n—Abundant Life Cmtys., Inc., 458 Mass. 580 (54(b) used sparingly; balancing efficiency against piecemeal appeals)
- Lev v. Beverly Enters.-Mass., Inc., 457 Mass. 234 (employer policy violation evidence does not create independent duty)
- Luoni v. Berube, 431 Mass. 729 (policy considerations against creating novel duties that impose onerous burdens)