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This blogger took last week off.  Not just from blogging, but from the confines of home and office – which are still one and the same.  During those five days of much needed sun and sea, we had a friend stay at the house to watch the dog.  Our dog/house sitter cleared out before we got home, in an abundance of pandemic caution.  Arriving home with that feeling of exhaustion only a day of travel can provide, we discovered that the door leading from our garage into the house was locked.  We were happy that our friend secured our home but dismayed on several accounts.  We never lock that door.  Hence, we do not carry a key to it.  More troublesome was that we only had with us our car key fob since we assumed we would enter through the garage.  So, we had no key to the front door and no key to the back door.  What we did have was a 100-pound Labrador-Husky mix going wild knowing we were right outside.  If only he knew how to unlock the door.  Fortunately, we still have one member of the family young enough and small enough to fit through a window to the basement that we were able to open by popping out a window fan (note to self to fix security weak spot).  So, with the overly excited large dog licking her face, father and brother holding her ankles, and mother uselessly doubled over in laughter, said small teen managed to gain our access to home sweet home.  The front and back doors may have been blocked, but we found an alternate route in (and learned a lesson about carrying spare keys).  The same cannot be said for plaintiff in Carrozza v. CVS Pharmacy, — F.3d –, 2021 WL 1206542 (1st Cir. Mar. 31, 2021).

Plaintiff was prescribed an antibiotic.  But when the pharmacist went to fill it, he received a computer notice that the plaintiff was allergic to the drug.  Further investigation revealed conflicting information including statements by plaintiff himself that he was not allergic and prior filled prescriptions for the same drug.  According to pharmacy policy, it is up to the pharmacist to exercise his individual judgment given all of the information in deciding whether to dispense the drug.  In this case, the pharmacist did fill the prescription.  After ingesting the medication, plaintiff alleges he suffered an allergic reaction including permanent ocular damage.  Id. at *1.

The district court granted the pharmacy’s motion for summary judgment and plaintiff appealed.  The circuit court took up three general issues: (1) was removal appropriate; (2) was plaintiff’s expert properly excluded; (3) was summary judgment warranted.  The answer to each question was an emphatic “yes.”

After plaintiff filed suit in state court in Massachusetts, defendant removed the case based on diversity jurisdiction.  Plaintiff was a Massachusetts resident and defendant a citizen of Rhode Island.  Id. at *3.  While plaintiff tried to take issue with defendant’s citizenship, a far-flung argument, his primary challenge to removal was that the amount in controversy did not exceed the statutorily required $75,000.  In a pre-suit demand letter, plaintiff’s counsel made an initial demand for $650,000, which was met by an offer from defendant of $5000.  Id.  Plaintiff argued that the value of the claim for removal purposes should have been the defendant’s offer, not his demand.  The court pointed to several cases finding demand letters to be an appropriate basis for the amount in controversy.  Id. at *4 & n4.  Further, the court questioned the plaintiff’s sudden about-face “by admitting at best error, and at worst deceit, regarding the scope and merits of his claim.”  Id.

The court next moved to plaintiff’s expert(s).   First, plaintiff asked the court to admit as evidence an affidavit from his treating physician based on a Massachusetts state law hearsay exception for certain medical records.  The court denied the request because the rule did not apply in federal court and advised plaintiff to adhere to the federal rules regarding expert disclosures.  Id. at *5.  A few months later, plaintiff submitted an affidavit from a retained expert who purported to opine on the pharmacist’s standard of care and medical causation.  At his deposition, however, plaintiff’s expert testified that he did not know the applicable standard of care nor did he have any firsthand knowledge of plaintiff’s treatment or injury.  He relied solely on the previously excluded treater affidavit.  Id.

Seeing that the front door was about to be slammed shut, plaintiff headed for the back door.  Following the deposition, plaintiff moved to admit the treater affidavit under Federal Rules of Evidence 803(6) or 803(4) as a record of regularly conducted activity or a statement for purposes of medical diagnosis or treatment.  Since it was neither, the court called it what it really was – an untimely and therefore inadmissible expert report.  Id.

Still hoping to find an unlocked window, plaintiff moved for leave to depose the treating physician.  The court again denied plaintiff’s request citing that plaintiff had not disclosed the treater as an expert and had had ample time to depose him as a fact witness but never did so.  Id.  Plaintiff’s “good cause” argument for re-opening discovery was “that there was no issue with his [retained] expert up until transcript of his deposition testimony was introduced by [defendant] with [summary judgment] moving papers.”  Id. at *6.  So, the expert’s opinion was “valid” right up to the point he was asked to support it?  That’s grounds for excluding the expert, not for allowing plaintiff a third attempt to get in the opinion of his treating physician.  The circuit court noted that starting with plaintiff’s first failed attempt to admit the treater affidavit, plaintiff seemingly knew of the importance of the treater’s testimony to his case, but repeatedly ignored the district court’s instructions regarding the proper steps to admit expert testimony.  Id.  The district court did not abuse its discretion at any point regarding the affidavit or deposition of plaintiff’s treating physician.  Id.

Not surprisingly, defendant moved to dismiss plaintiff’s retained expert based on his testimony that he did know the applicable standard of care, was unfamiliar with plaintiff’s alleged condition, had no knowledge of the cause of plaintiff’s condition, or in fact whether plaintiff had any injuries at all.  With no support for his “opinions,” the district court properly excluded his testimony.  Id.

That leaves defendant’s summary judgment motion.  Plaintiff brought three claims against the pharmacy – strict liability (breach of warranty), negligence, and unfair competition.  Going in reverse order, the court found summary judgment was appropriate on the unfair competition claim because plaintiff did not allege or prove any “established” form of unfairness as required by the statute.  Id. at *12.

Plaintiff’s negligence and warranty claims presented issues of first impression under Massachusetts law.  The district court dismissed plaintiff’s negligence claim holding that it failed due to a lack of admissible expert testimony on standard of care and causation.  Id. at *8.  While no Massachusetts law deals explicitly with the need for expert testimony pertaining to a pharmacist’s professional judgment, there is ample support for that requirement in other professional negligence cases.  Id. at *9.  As in those other contexts, “the appropriate standard of care with respect to a pharmacist’s dispensation of prescriptions is . . . not normally within the experience of lay persons.”  Id.  This is not a case where a layman can infer from the facts whether defendant acted negligently.

Plaintiff’s last cause of action was a strict products liability claim premised on an allegation that defendant was liable for distributing an unreasonably dangerous product to plaintiff.  Id. at *10.  But Massachusetts does not recognize strict liability in tort apart from breach of warranty under the UCC.  Id. at *11.  A claim for breach of warranty only applies to a contract for a sale of goods.  Pharmacists, however, also provide professional services.  Therefore, the circuit court had to address another first impression issue – whether the predominant purpose of a pharmacist dispensing prescription medications is the provision of a service or a provision of goods.  It decided the district court was correct in holding it was the former.  The court found support in Massachusetts’s definition of “dispensing” as “including the utilization of the professional judgment of the pharmacist.”  Id.  After all, pharmacists have stringent education and professional licensing requirements and act more as an extension of the prescribing doctor.  Because the provision of services predominates over the transaction in goods, defendant was entitled to summary judgment on a breach of warranty claim.

The First Circuit doubled checked every door and window plaintiff tried, but they were all locked up tight by the district court.  Not even a sliver to slide through.