United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
PRECLUDE AND MOTION FOR SUMMARY JUDGMENT, AND PLAINTIFF'S
MOTION FOR PARTIAL SUMMARY JUDGMENT, MOTION TO TAKE
DEPOSITION, AND MOTION TO STRIKE
Dennis Saylor IV United States District Judge.
a lawsuit against a pharmacy, arising out of injuries
allegedly sustained after ingesting an antibiotic.
Jurisdiction is based on diversity of citizenship.
Kevin Carrozza was prescribed levofloxacin (Levaquin), a
quinolone antibiotic. Carrozza had the prescription filled at
a CVS Pharmacy in Bridgewater, Massachusetts. The internal
patient database at CVS included a “hardstop”
warning stating that Carrozza was allergic to quinolones. The
pharmacist on duty then investigated further, and found notes
stating that Carrozza previously denied having a quinolone
allergy and had been prescribed quinolone on multiple prior
occasions. The pharmacist ultimately decided to dispense the
drug. Carrozza alleges that he had an allergic reaction to
the drug, and alleges that it caused him to suffer swollen
and disfigured skin, along with Stevens-Johnson Syndrome
(“SJS”). Carrozza filed suit against CVS, alleging
negligence, violation of Mass. Gen. Laws ch. 93A, and breach
of implied warranty.
moved to preclude the testimony of Carrozza's sole expert
witness, Dr. Kenneth Backman, and for summary judgment.
Carrozza has cross-moved for partial summary judgment. He has
also moved to take an additional deposition after close of
discovery and to strike certain statements made at the May
16, 2019 motion hearing. For the following reasons, CVS's
motions to preclude and for summary judgment will be granted;
Carrozza's motions for partial summary judgment and to
take an additional deposition will be denied; and
Carrozza's motion to strike will be denied as moot.
following facts are as set forth in the record.
is a citizen of Massachusetts. CVS Pharmacy, Inc. is a Rhode
Island corporation with its principal place of business in
Woonsocket, Rhode Island. (ECF No. 1 ¶ 7).
April 22, 2015, Carrozza went to fill a prescription for
Levaquin, a quinolone antibiotic, at a CVS pharmacy in
Bridgewater, Massachusetts. (Am. Compl. ¶ 5). He was
prescribed the drug by his physician, Dr. George Despines,
for a head cold. (Am. Compl. Ex. A). Dr. Despines's medical
records as of that date did not state that Carrozza was
allergic to Levaquin or other quinolones. (ECF No. 62, Ex.
Carrozza later testified that he was unaware at that time
that he had a quinolone allergy. (ECF No. 62, Ex. 2
(“Carrozza Dep.”) at 64:8-14).
computer system contained a “hardstop” warning
that Carrozza was allergic to quinolones. (ECF No. 70 at
The pharmacist on duty, Richard Wokoske, investigated further
using the computer system and Carrozza's patient profile
and discovered conflicting information. (Ivanoski Dep. at
76:16-24). For example, a CVS Patient Profile note dated
September 2, 2009, reads “[Carrozza] states he has no
quinolone allergy.” (ECF No. 62, Ex. 4). Similarly, the
internal records of CVS showed that it had previously filled
quinolone prescriptions for Carrozza on February 26, 2008
(Levaquin), September 2, 2009 (Avelox), and January 26, 2010
(Avelox). (ECF No. 62, Ex. 5). Under such circumstances,
under CVS policy the decision whether to fill a prescription
falls to the dispensing pharmacist. (Ivanoski Dep. at
76:22-24). Wokoske decided to dispense the Levaquin.
then took the medication. After taking one dose, Carrozza
suffered what was later diagnosed as an allergic reaction and
sought treatment at Morton Hospital in Taunton,
Massachusetts. Medical records from Morton Hospital show that
he suffered a “red circular rash with central blisters
- atypical appearance for allergic reaction but may represent
erythema multiforme/very mild SJS.” (ECF No. 62, Ex.
6). There appear to have been two rashes: one on his left
arm, and one on his right ankle. (Id.).
filed this suit in 2017. On October 8, 2018, he filed a
disclosure identifying one expert witness, Dr. Kenneth
Backman, an allergist and immunologist. (ECF No. 48). In an
affidavit executed on September 28, 2018, Dr. Backman
attested that Wokoske's dispensing of Levaquin despite
the hardstop warning “was a breach of standard of
care.” (ECF No. 64 Ex. 2). He further attested
“[w]hile the onset of symptoms following ingestion of
Levaquin was rapid for Stevens-Johnson Syndrome, SJS can
occur rapidly in patients who have experienced reactions to
that medication previously.” (Id.). He
concluded that “Levaquin is the likely cause of [ocular
injury] and other damages that Mr. Carrozza
February 15, 2019, counsel for CVS deposed Dr. Backman. He
testified, contrary to his earlier sworn statement, that he
did not know “the standard of care [that is] applicable
to a pharmacist in this situation.” (ECF No. 64 Ex. 3
(“Backman Dep.”) at 94:14-18). He further
testified that he did not know how Carrozza's rashes
appeared (id. at 98:20-22) and whether he had any
other symptoms of SJS, including mucosal involvement,
epidermal detachment, skin sloughing, target lesions, and a
fever (id. at 99:4-101:4). Ultimately, Dr. Backman
conceded that he did not have sufficient information to form
an opinion as to whether Carrozza had SJS. (Id. at
100:2-8). Moreover, he stated that no physician at Morton
Hospital had diagnosed SJS. (Id. at 133:19-24). The
only basis for Dr. Backman's belief that Carrozza had SJS
was an opinion offered by an ophthalmologist, Dr. Stephen
Foster. (Id. at 100:9-13). However, because
Carrozza's counsel had failed to comply with the
requirements of the Federal Rules of Civil Procedure
governing expert disclosures, the Court had previously denied
his motion to admit Dr. Foster's affidavit, which was
substantively an expert report. (ECF Nos. 44,
Backman's testimony revealed that he had a limited
understanding of the facts of this case and SJS generally.
For example, the only source of information concerning SJS he
reviewed for this matter was a medical information program
called UpToDate. (Backman Dep. at 12:5-21). He was unable to
identify the criteria used to diagnose SJS, and has neither
diagnosed nor treated any patients with SJS. (Id. at
63:8-12; 68:9-23). He never communicated with Carrozza's
medical providers (id. at 15:6-9) and reviewed no
medical records other than documents from Morton Hospital and
two or three days' worth of notes from Dr. Despines
(id. at 15:11-19:2). He did not review photographs
taken at Morton Hospital of Carrozza's rashes.
(Id. at 22:15-18). Dr. Backman did not review the
deposition testimony of Carrozza or CVS personnel.
(Id. at 19:4-20:12). He did not know that Carrozza
had been prescribed quinolone on multiple occasions prior to
April 22, 2015, (id. at 71:13-19), and that Carrozza
himself purportedly was unaware of a quinolone allergy before
that date (id. at 70:17-20). And, he was unaware of
the responsibilities of a CVS pharmacist and the standard of
care required of pharmacists who encounter hardstop and
softstop warnings. (Id. at 85:14-19; 87:5-11).
presented three expert reports concerning the issues of
standard of care and causation. As relevant here, Melissa
Mattison, a pharmacist and Clinical Associate Professor of
Pharmacy Practice, has attested that Wokoske acted in
accordance with the appropriate standard of care and that
Carrozza did not suffer from SJS. (ECF No. 62, Ex. 9). Dr.
Daniela Kroshinsky, the Director of Inpatient Dermatology at
Massachusetts General Hospital, has attested that Carrozza
did not have SJS and that he instead suffered “a
limited cutaneous skin reaction.” (ECF No. 62, Ex. 10).
Dr. George Frangieh, an Assistant Surgeon of Ophthalmology at
Massachusetts Eye & Ear Infirmary, attested that Carrozza
did not have the ocular problems associated with SJS. (ECF
No. 62, Ex. 11).
1, 2015, Carrozza sent CVS a purported Chapter 93A demand
letter seeking $650, 000 in damages. (Am. Compl. Ex. A). CVS
sent a response on July 8, 2015, challenging the demand
letter as improper under Chapter 93A because it
“fail[ed] to reference the date of the alleged
incident” and “fail[ed] to identify any
cognizable unfair or deceptive act or practice.” (Am.
Compl. Ex. B). CVS also disclaimed liability, contending that
Dr. Despines was at fault for prescribing the medication and
that Carrozza's failure to advise Wokoske of the allergy
exceeded any negligence by CVS. (Id.).
complaint in this action was filed in Brockton District Court
on October 13, 2017. CVS removed the case to this court based
on diversity jurisdiction on December 1, 2017. The complaint
asserts three claims. Count One asserts a claim for
“tort, ” which the Court will construe to be a
claim for negligence. (Am. Compl. ¶¶ 4-17). Count
Two asserts a claim under Mass. Gen. Laws ch. 93A.
(Id. ¶¶ 18-25). Count Three asserts a
claim for product liability, which is in substance a claim
for breach of implied warranty. (Id. ¶¶
moved to preclude the testimony of Dr. Backman under
Fed.R.Evid. 702 and Daubert v. Merrill Dow Pharm.,
Inc., 509 U.S. 579 (1993). After completion of
discovery, CVS moved for summary judgment, and Carrozza
cross-moved for partial summary judgment. Carrozza further
moved to depose Dr. Foster, whose affidavit the Court
previously excluded, and to strike certain statements made by
defense counsel at the May 16, 2019 motion hearing.
Motion to Preclude
Evid. 702 provides as follows:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical or other
specialized knowledge will help the trier of fact to
understand the evidence ...