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Andrews v. Target Pharmacy

United States District Court, D. Massachusetts

August 10, 2016

TARGET PHARMACY #T-2292 Defendant.



         Plaintiffs 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.

         Before 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.


         Prograf (tacrolimus) is a drug approved for use as prophylaxis against organ rejection in patients receiving liver, kidney, or heart transplants.[2] Mr. Andrews had been taking Prograf since March 2006, after he received a liver transplant. See SMF ¶¶ 16, 22.

         Plaintiffs’ 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.

         Plaintiffs 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.

         The 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.

         Plaintiffs 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.

         Finally, 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.


         Because Target’s Motion for Summary Judgment is closely tied to the procedural history of this case, the Court briefly reviews the relevant events:

         This 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.

         In 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].

         The 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 No. 50].

         In 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 ...

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