The following is a case update written by Dean T. Kirby, Jr. a member of the firm of Kirby & McGuinn, A P.C., analyzing a recent decision of interest:
In Carrozza v. CVS Pharmacy, Inc., 992 F.3d 44 (1st Cir. 2021), the First Circuit held that under Massachusetts law, a pharmacist correctly filling a prescription could not be held liable for damages suffered by the patient under a claim for breach of implied warranty under the Uniform Commercial Code.
A copy of the opinion may be found here.
Plaintiff Kevin Carrozza had a head cold. His doctor prescribed Levaquin (the quinolone antibiotic levofloxacin). Neither Mr. Carrozza nor the prescribing physician knew that he had any allergies or sensitivities to quinalone antibiotics. Before dispensing the medication, the pharmacist on duty at CVS Pharmacy received a “hard stop” warning from the computer system, indicating that Mr. Carrozza was allergic to quinalones. The pharmacist investigated further and found conflicting information in the system, including records of prior statements by Mr. Carrozza that he had no quinolone allergy and prior prescriptions of Levaquin and other quinolones in 2008, 2009 and 2010. According to the opinion, CVS policy is that a pharmacist confronted with conflicting information regarding a hard stop warning must exercise his individual judgment in deciding whether to dispense the prescription. The pharmacist chose to dispense the Levaquin to Mr. Carrozza, who claimed to have had an allergic reaction. He asserted that he suffered “permanent ocular damage” as a result.
Mr. Carrozza sued CVS in Massachusetts state court. CVS successfully removed the action to the United States District Court, based on diversity of citizenship. The complaint alleged three claims for relief: (1) negligence; (2) product liability; and (3) a claim under Mass. Gen. Laws Ann. Chapter 93A, prohibiting unfair and deceptive business practices.
The District Court granted summary judgment in favor of CVS on all claims and the First Circuit affirmed.
The First Circuit upheld a series of District Court rulings in favor of the Defendants. First, the Court affirmed the denial of a motion to remand. The motion argued that the amount in controversy was lower than $75,000, the jurisdictional floor in diversity cases. As required under the Massachusetts unfair business practices statute, the parties had exchanged pre-litigation settlement demands. The letter sent on behalf of Mr. Carrozza (later incorporated into the complaint) demanded $650,000. The CVS counteroffer was $5,000. The Court held that the Carrozza demand letter was “appropriate to demonstrate amount in controversy.”
The Court then affirmed a series of orders denying discovery motions made on behalf of Mr. Carrozza. The District Court granted a motion to exclude the affidavit of an expert who was not timely designated. It also excluded Mr. Carrozza’s motion to belatedly depose his own treating ophthalmologist as an attempt to “backdoor an expert opinion.” As a consequence of these rulings, the Court granted summary judgment as to the negligence claim because Mr. Carrozza could not offer admissible expert testimony to establish the breach of a standard of care.
Mr. Carrozza’s next claim for relief was pleaded as a strict liability tort for injury caused by a defective product. The Court pointed out that “there is no independent claim of ‘strict liability in tort’ under Massachusetts law, and the sole remedy for strict liability is provided under the UCC.” Thus, the District Court, and the Court of Appeal, treated the products liability claim as one for breach of implied warranty under UCC sections 2-314 through 2-318.
The First Circuit affirmed the District Court’s holding that Mr. Carrozza could not plead a breach of warranty claim because “the UCC applies to contracts for transactions in goods, not to agreements for the provision of services.” Acknowledging that it was deciding a matter of first impression under Massachusetts law, the Court held that “a pharmacist’s dispensation of prescribed medication is predominately the provision of services, and not the sale of goods.”
Finally, the Court held that in order to establish a statutory cause of action under Chapter 93A, “a plaintiff must show that the disputed conduct falls within a ‘common-law, statutory, or other established concept of unfairness.’ [citations] Given that Carrozza alleges no common-law, statutory, or otherwise-established unfairness on the part of CVS that is sufficient to survive a motion for summary judgment, his Chapter 93A claim . . . fails as a matter of law.”
Strict liability for damages caused by defective products is the rule in a substantial majority of states. In a few of the remaining states there is no strict liability at all (see, e.g., Louisiana, Massachusetts, Michigan). In other states, strict liability as to retailers is unavailable in certain common circumstances. Most of these exceptions apply to cases where a solvent manufacturer of the product may be sued in that state. (see e.g., Iowa, Kansas, Kentucky, Ohio, Tennessee). In states where there is no strict liability for retailers, claims for breach of the implied warranty of merchantability under UCC section 2-314, and the implied warranty of fitness for a particular purpose under UCC section 2-315 may sometimes take its place.
But regardless, attempts to impose liability on a pharmacist who has done no more than correctly fill a prescription have been generally unsuccessful. This has been the case as to both strict liability claims (see, e.g. Murphy v. E. R. Squibb & Sons, Inc., 40 Cal. 3d 672, 710 P.2d 247 (1985) and breach of warranty claims (see, e.g., Makripodis v Merrell-Dow Pharma, Inc., 361 Pa. Super 589, 523 A2d 374, 376-77 (1987).
However, claims based on negligence have had some success. See, e.g., Lasley v Shrake’s Country Club Pharmacy, Inc, 880 P 2d 1129, 1133-34 (Ariz Ct App 1994) (claim that pharmacist breached the standard of care by filling prescriptions for addictive drugs). One might argue that if the pharmacist is not subject to breach of warranty claims because it is primarily a service provider and not a retailer, then it must be subject to liability for services performed in a negligent manner. In Carrozza, the pharmacist filled a prescription notwithstanding the computer’s “hard stop” warning. The Court did not grant summary judgment in Carrozza on the negligence cause of action for any reason other than the inadequacy of expert evidence.
These materials were written by Dean T. Kirby, Jr. a member of the firm of Kirby & McGuinn, A P.C., located in San Diego, California. Mr. Kirby is a member of the ad hoc group and a member of the Commercial Transactions Committee of the Business Law Section. Editorial contributions were made by the Honorable Meredith Jury (United States Bankruptcy Judge, C.D. Cal, Ret.), also a member of the ad hoc group. Thomson Reuters holds the copyright to these materials and has permitted the Insolvency Law Committee to reprint them. This material may not be further transmitted without the consent of Thomson Reuters.