Carrozza v. CVS Pharmacy, Inc.

          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

          F. Dennis Saylor IV United States District Judge.

         This is a lawsuit against a pharmacy, arising out of injuries allegedly sustained after ingesting an antibiotic. Jurisdiction is based on diversity of citizenship.

         Plaintiff 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”).^[1] Carrozza filed suit against CVS, alleging negligence, violation of Mass. Gen. Laws ch. 93A, and breach of implied warranty.

         CVS has 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.

         I. Background

         A. Factual Background

         The following facts are as set forth in the record.

         Carrozza 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).

         On 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).^[2] 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. 1).^[3] 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).

         The CVS computer system contained a “hardstop” warning that Carrozza was allergic to quinolones. (ECF No. 70 at 17).^[4] 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.

         Carrozza 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.).

         Carrozza 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 experienced.” (Id.).

         On 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, 51).^[5]

         Dr. 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).

         CVS has 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).

         B. Procedural Background

         On May 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.).

         The 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. ¶¶ 26-32).

         CVS has 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.^[6] 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.

         II. Motion to Preclude

         Fed. R. 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 ...