United States District Court, D. Massachusetts
IN RE NEW ENGLAND COMPOUNDING PHARMACY, INC. PRODUCTS LIABILITY LITIGATION
MEMORANDUM OF DECISION
ZOBEL, SENIOR UNITED STATES DISTRICT JUDGE.
are the surviving family members and estate of Brenda Lee
Rozek. Ms. Rozek died on September 16, 2012, sixteen days
after defendant Dr. Ritu T. Bhambani treated her with
contaminated methylprednisolone acetate ("MPA")
ordered from New England Compounding Center
("NECC"). All of the underlying events occurred in
Maryland, where Ms. Rozek resided, Dr. Bhambani practiced and
where this action was originally filed.
allege that Dr. Bhambani and her co-defendants owed Ms. Rozek
a duty of care based on the physician-patient relationship,
and that defendants breached that duty by, inter
alia, bulk-ordering MPA from NECC using false patient
names and failing to investigate the safety of NECC's
products. Plaintiffs claim damages for negligence
and also assert claims under the Massachusetts consumer
protection law, Mass. Gen. Laws ch. 93A.
move for partial summary judgment on: (i) certain aspects of
the negligence claims (Count I); (ii) the consumer protection
claims (Count XII); and (iii) plaintiffs' requests for
judgment is appropriate when the moving party “shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “An issue is
‘genuine’ for purposes of summary judgment if
‘the evidence is such that a reasonable jury could
return a verdict for the nonmoving party,’ and a
‘material fact’ is one which ‘might affect
the outcome of the suit under the governing
law.’” Poulis-Minott v. Smith, 388 F.3d
354, 363 (1st Cir. 2004) (quoting Hayes v. Douglas
Dynamics, Inc., 8 F.3d 88, 90 (1st Cir. 1993)). Summary
judgment is improper where the non-movant “present[s]
definite, competent evidence to rebut the motion.”
Advanced Flexible Circuits, Inc. v. GE Sensing &
Inspection Techs. GmbH, 781 F.3d 510, 516 (1st Cir.
court addresses each of defendants’ arguments in turn.
move for summary judgment on sub-issues related to
plaintiffs’ negligence claims. They argue, first, that
conducting “due diligence” prior to purchasing
MPA from NECC was not within the scope of the duty they owed
to plaintiffs; second, that their failure to order MPA using
patient-specific prescriptions did not cause Ms.
Rozek’s death; and third, that the conduct of NECC
and/or NECC president Barry Cadden was a superseding or
intervening cause of Ms. Rozek’s death, thereby
relieving them of liability.
to defendants’ benign view of the evidence, disputed
factual matters pervade these issues, each of which presents
a classic question for the jury. See Valentine v. On
Target, Inc., 727 A.2d 947, 949 (Md. 1999). Plaintiffs
have proffered evidence, including expert opinions, regarding
the scope of defendants’ duty in this case,
defendants’ breach of that duty, and the causal
relationship between that breach and Ms. Rozek’s death.
Docket Nos. 3485-10, 3485-11, 3485-12 (expert opinions of
Drs. Saberski, Shoham, and Chason); see Crise v. Md. Gen.
Hosp., Inc., 69 A.3d 536, 553 (Md. Ct. Spec. App. 2013)
(“With few exceptions, the applicable standard of care,
i.e., the nature and scope of the duty owed, is
proven by expert testimony (as is the issue of whether the
applicable standard of care was breached).”). Drawing
all inferences in favor of the non-movant, a jury could
credit plaintiffs’ expert testimony regarding
defendants’ so-called “due diligence”
obligations and the causal relationship between
defendants’ ordering practices, as well as the alleged
harm. See Den Norske Bank AS v. First Nat. Bank
of Boston, 75 F.3d 49, 58 (1st Cir. 1996). Because a
jury believing that evidence could render a verdict for
plaintiffs, summary judgment is not warranted. See
Crise, 69 A.3d at 554–55 (scope of duty, breach,
and causation “within the province of the jury, not the
court, to decide.”).
Massachusetts Consumer Protection Claim
motion for summary judgment on plaintiffs’
Massachusetts consumer protection claim is allowed.
Massachusetts law does not govern this case. It involves
exclusively Maryland parties. Moreover, defendants’
alleged tortious conduct and plaintiffs’ harm occurred
entirely in Maryland. See Mear v. Sun Life Assur. Co. of
Canada (U.S.)/Keyport Life Ins. Co., No.
CIV.A.06-12143RWZ, 2008 WL 245217, at *10 (D. Mass. Jan. 24,
2008) (Arizona’s consumer protection law, rather than
Chapter 93A, governed claim brought by Arizona plaintiff
where all relevant conduct occurred in Arizona); see also
Reicher v. Berkshire Life Ins. Co. of Am., 360 F.3d 1,
6-7 (1st Cir. 2004) (affirming dismissal of Maryland
plaintiff’s Chapter 93A claim under similar
circumstances); Value Partners S.A. v. Bain &
Co., 245 F. Supp. 2d 269, 278 (D. Mass. 2003) (Chapter
93A claim barred because Brazilian law governed claims
sounding in tort).
Request for ...