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In re New England Compounding Pharmacy, Inc. Products Liability Litigation

United States District Court, D. Massachusetts

February 7, 2018




         Plaintiffs 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.

         Plaintiffs 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.[1] Plaintiffs claim damages for negligence and also assert claims under the Massachusetts consumer protection law, Mass. Gen. Laws ch. 93A.

         Defendants 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 punitive damages.[2]

         I. Legal Standard

         Summary 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. 2015).

         II. Analysis

         The court addresses each of defendants’ arguments in turn.

         A. Negligence

         Defendants 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.

         Contrary 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.”).

         B. Massachusetts Consumer Protection Claim

         Defendants’ 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).

         C. Request for ...

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