We are going to take today’s decision a little out of order because we think the outcome is fairly easily surmised from our title – plaintiff couldn’t sustain his claim because he didn’t have admissible expert testimony.  But before we get to the substance of the opinion, at the end the court was called on to decide plaintiff’s motion to re-open discovery to depose another doctor, presumably so plaintiff could try to get the needed expert testimony.  In support of the request, plaintiff’s counsel “blamed” their expert’s “attitude” and “his lack of preparation” for his deposition as the reason he was excluded.  Carrozza v. CVS Pharmacy, Inc., — F.Supp.3d–, 2019 WL 2913987, at *9 (D. Mass. Jul. 8, 2019).  Counsel tossed their own expert right under the bus.  That’s a worse excuse than “the dog ate my homework.”  It’s like saying “I ate my homework.”  Whose job was it to prepare the expert for his deposition?  To cross-examine him to make sure he knew how to handle himself in a deposition?  To review all the medical records and facts with him so that he was well-versed and his opinions fully supported?  Counsel.  It’s a poor excuse that says more about counsel than about the expert and it wasn’t reasonable grounds for re-opening discovery.

While that was the end of the decision, it was the start of plaintiff’s problems.  Plaintiff was prescribed levofloxacin, the generic equivalent of Levaquin, a quinolone antibiotic.  When the pharmacist went to fill the prescription, a “hardstop” warning in the pharmacy’s computer said that plaintiff was allergic to quinolone drugs.  But, when the pharmacist researched the “hardstop,” plaintiff’s patient profile showed other filled prescriptions for quinolone drugs and a denial from plaintiff that he had a quinolone allergy.  Based on this, the pharmacy’s policy is to allow the pharmacist to make the decision whether to fill the prescription.  Id. at *1-2.  Plaintiff got the medication and had an allergic reaction.  He developed rash symptoms that may have been a mild case of SJS.  Id. at *2.

Plaintiff had two experts.  He failed to timely serve the expert report from one and the expert was therefore excluded.  Id.  The expert report for the other, an allergist/immunologist, opined that the pharmacist had breached his standard of care and that the drug was the likely cause of plaintiff’s SJS.   Id.  But, at his deposition, the expert testified that he didn’t know the applicable standard of care for the pharmacist and didn’t know enough to be able to form an opinion as to whether plaintiff actually had SJS.  Id.  We guess this was the “lack of preparation” plaintiff’s counsel complained about.  More like a general lack of expertise.

If you want a full list of all the things plaintiff’s expert didn’t know, we refer you to the decision.  Id. at *3.  But, for a few highlights:  he had never diagnosed or treated SJS; he hadn’t read the medical records; he didn’t know plaintiff had been prescribed the drug before; and he didn’t know the standard of care for pharmacists in cases of “hardstops.”  Id.  Perhaps all things that should have been known before he was deposed – before he ever authored his report.

Not surprisingly, defendant moved to preclude plaintiff’s expert. After a thorough recitation of the Daubert standard, the court concluded

It is manifestly clear that [plaintiff’s expert] is not qualified to offer an expert opinion on either the appropriate standard of care for a pharmacist or whether [plaintiff’s] consumption of Levaquin caused his injuries, particularly the alleged SJS.

Id. at *5.  Plaintiff argued that this expert based his causation opinion on the precluded affidavit of plaintiff’s untimely expert, citing precedent that an expert is allowed to rely on otherwise inadmissible evidence if it is of the type commonly relied on in the field.  Id.  However,

A witness who has no relevant expertise or familiarity with a subject matter may not, [ ] simply parrot the conclusions of an expert who does. At a minimum, to allow such testimony would effectively permit a party to evade the disclosure requirements of Rule 26 and would preclude meaningful cross-examination.

Id.  Since the expert was simply speculating, he was excluded — leaving plaintiff with no expert testimony.  Which brings us to defendant’s motion for summary judgment which was largely based on the lack of expert testimony.  Plaintiff tried to argue that the main issue was a “common sense decision” whether to prescribe.  But, actually the question that had to be answered by the jury was whether the pharmacist had breached the standard of care when he decided to prescribe, a decision that involved professional and technical judgment beyond the lay experience of the jurors.  This is the first Massachusetts court to hold that expert testimony is required to support allegations of pharmacist malpractice.  Id. at *6.

Plaintiff had no expert on the appropriate standard of care, but he also had no expert evidence on causation.  So plaintiff also couldn’t prove the drug caused his injuries or that he actually suffered his alleged injuries.  Id.  That alone defeated all of plaintiff’s causes of action — negligence, products liability, and unfair trade.  But plaintiff’s products liability claim also failed under Massachusetts law for an independent reason.

In Massachusetts, the only products liability claim is one under the U.C.C. for breach of warranty.  But the U.C.C. only applies to contracts for the sale of goods.  Pharmacists do more than sell goods, they offer services.  And the court determined that since pharmacists predominately offer a service, the U.C.C. does not apply.  Id. at *7-8.  Plaintiff tried to save this claim by turning it into a failure to warn claim, but since that wasn’t alleged in the complaint he wasn’t allowed to raise it at summary judgment.  He also tried to turn it into a defective design claim – which would fail for lack of expert testimony and so was futile anyway.  Id. at *8.

This case was fraught with problems and the plaintiff’s counsel’s blame game may have been only one of them, but it was the worst in our eyes.