United States District Court, D. Massachusetts
ORDER ON DEFENDANT’S MOTION FOR SUMMARY
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
Frank and Robin Andrews brought this civil action against
Target Pharmacy #T-2292 (“Target” or “the
pharmacy”), alleging that on September 9, 2009, the
pharmacy staff negligently dispensed medication to Mr.
Andrews and that this error caused harm to Mr. Andrews.
Specifically, Plaintiffs claim that the pharmacy dispensed a
dosage of a medication called “Prograf” that was
ten times higher than the amount prescribed by Mr.
Andrews’ doctor. Plaintiffs allege that as a result of
the pharmacy’s negligence, Mr. Andrews ingested an
overdose of Prograf, resulting in both physical and emotional
injuries. Mr. Andrews asserts a negligence claim against the
pharmacy and seeks monetary damages for his alleged injuries
and resulting loss of wages. Plaintiff Robin Andrews, who is
Mr. Andrews’ wife, also asserts a claim for loss of
consortium with her husband.
the Court is Target’s Motion for Summary Judgment [ECF
No. 211]. For the reasons set forth in this Order, the Motion
is ALLOWED, and Judgment shall enter for the Defendant.
(tacrolimus) is a drug approved for use as prophylaxis
against organ rejection in patients receiving liver, kidney,
or heart transplants. Mr. Andrews had been taking Prograf since
March 2006, after he received a liver transplant.
See SMF ¶¶ 16, 22.
two-page Complaint alleges that at the time of the incident
in 2009, Mr. Andrews had a doctor’s prescription for
Prograf in a dosage equal to 0.5mg (five tenths of a
milligram). See Complaint [ECF No. 5]
(“Compl.”), ¶ 5. On or about September 9,
2009, Mr. Andrews filled this prescription at Target Pharmacy
in Wareham, Massachusetts. Id. ¶ 4. Instead of
dispensing 0.5 mg Prograf capsules, however, the pharmacy
staff mistakenly dispensed capsules containing 5.0mg (five
milligrams) of Prograf, or ten times the amount of Mr.
Andrews’ prescription dosage. Id. ¶ 6.
Mr. Andrews alleges that his resulting overdose was caused by
the pharmacy staff’s negligence. Id.
¶¶ 6, 8.
further allege that the overdose caused Mr. Andrews to suffer
physical and mental injuries. Specifically, Mr. Andrews says
that he suffered from kidney failure. SMF, ¶ 10. He also
claims to suffer from persistent and/or permanent conditions
of the brain; senile degeneration of the brain; nervous
system, neurological and cognitive disorders including, but
not limited to, encephalopathy; depressive disorder; mood
disorder; problems with attention and memory; confusion;
agitation; irritability; tangential thinking; slowed speech
and writing; greater apathy; decreased spontaneity; trouble
concentrating; and issues with his gait. SMF, ¶ 9.
record, however, reflects that Mr. Andrews had a fairly
complicated medical history, even prior to the overdose. In
the five years immediately preceding the incident, Mr.
Andrews was treated for cirrhosis of the liver; diabetes;
hypertension; and Hepatitis C. See SMF, ¶ 21.
Plaintiffs also conceded that these conditions caused Mr.
Andrews to suffer from numerous complications, both physical
and mental. Plaintiffs disclosed that in 2008, Mr. Andrews
was treated for a “mental disturbance” allegedly
caused by an Interferon drug. Id.; see also
Affidavit of Meredith M. Lasna, Esq. [ECF No. 212-1]
(“Lasna Aff.”), Ex. 4, p. 4.
further allege that as a result of the Prograf overdose, Mr.
Andrews has been out of work since September 9, 2009. SMF,
¶ 18; see Compl. ¶ 9. Plaintiffs’
deposition testimony, however, suggests that Mr. Andrews
ceased working in 2007 or 2008, well before the overdose
occurred. SMF, ¶ 25; see also Lasna Aff., Ex.
1, pp. 51-54. In fact, Mrs. Andrews testified that her
husband stopped working as a result of side effects from
Interferon. Id. Plaintiffs have not disputed this
fact for purposes of summary judgment.
Mrs. Andrews claims that she has suffered from loss of
consortium with her husband due to Target’s negligence.
Mrs. Andrews also demand damages for her alleged loss of
wages, based on the fact that because she needs to care for
Mr. Andrews, she is no longer able to work outside the home.
Target’s Motion for Summary Judgment is closely tied to
the procedural history of this case, the Court briefly
reviews the relevant events:
action was removed to federal District Court in September
2013. In June 2014, Judge O'Toole entered a Scheduling
Order that provided for a fact discovery deadline of February
2015. [ECF No. 36]. The Scheduling Order did not, however,
establish deadlines for expert discovery.
September 2014, Plaintiffs moved to extend the fact discovery
deadlines by 60 days, citing Mr. Andrew’s health
problems. [ECF No. 40]. Judge O’Toole allowed the
motion. In December 2014, the parties jointly moved for a
second extension of those deadlines [ECF No. 44], which the
Court also allowed. Under the revised deadlines, written fact
discovery was to be completed by April 1, 2015, and fact
witness depositions were to be complete by June 27, 2015.
[ECF No. 45].
case was subsequently reassigned to this session. At a Status
Conference on June 1, 2015, the Court (1) set a trial date of
December 7, 2015; and (2) established additional scheduling
and pre-trial deadlines. The Court’s Scheduling Order
stated that "Plaintiffs' experts shall be designated
and the information required by FRCP 26(a)(2) shall be
disclosed by July 1, 2015." [ECF No. 51]. All expert
depositions were to be completed by September 30, 2015. The
Court also entered an order setting pretrial deadlines. [ECF
October 2015 (after all fact and expert discovery had
presumably closed), Target filed several motions in limine,
including a motion to preclude Plaintiffs from offering
expert testimony [ECF No. 60]. Target explained that while
Plaintiffs’ initial disclosures and interrogatory
responses had identified several treating physicians as
potential expert witnesses, Plaintiffs never provided Target
with any formal expert disclosures pursuant to Fed.R.Civ.P.
26(a)(2). Further, Plaintiffs had not ...