Carrozza v. CVS Pharmacy, Inc.

• Decision Date: 31 March 2021
• Docket Number: No. 19-1776,19-1776
• Citation: 992 F.3d 44
• Parties: Kevin CARROZZA, Plaintiff, Appellant, v. CVS PHARMACY, INC. d/b/a CVS Pharmacy, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

992 F.3d 44

Kevin CARROZZA, Plaintiff, Appellant,

v.CVS PHARMACY, INC. d/b/a CVS Pharmacy, Defendant, Appellee.

No. 19-1776

United States Court of Appeals, First Circuit.

March 31, 2021

Albert E. Grady, Brockton, MA, for appellant.

Edward F. Mahoney, Boston, MA, with whom Martin, Magnuson, McCarthy & Kenney was on brief, for appellees.

Before Howard, Chief Judge, Barron, Circuit Judge, and Katzmann,^* Judge.

KATZMANN, Judge.

This diversity case involves a pharmacist's dispensation of a prescription that triggered the pharmacy's internal warning system. The appeal presents issues regarding jurisdiction, negligence, Massachusetts consumer protection laws, and breach of warranty. Among the questions are whether expert testimony was required to prove breach of professional duty on the part of a pharmacist to establish a negligence claim, and whether a pharmacist's dispensation of prescribed medication constitutes a provision of services, governed by the common law, or is better characterized as a sale of goods, governed by the Massachusetts Uniform Commercial Code (UCC). Plaintiff Kevin Carrozza initiated this appeal to challenge the district court's findings on these and other questions, including its rulings on issues of jurisdiction and discovery, and to request reversal of the district court's grant of Defendant CVS Pharmacy, Inc.'s (CVS) motion for summary judgment. The district court found that the requirements of diversity jurisdiction had been satisfied and that the case was properly removed to federal court, that there was no genuine issue as to any material fact with respect to Carrozza's negligence and breach of warranty claims, that Carrozza's claim pursuant to Massachusetts General Laws Chapter 93A, § 2(a) (Chapter 93A) for unfair or deceptive practices therefore failed, and that summary judgment should be granted in favor of CVS. We affirm.

I. BACKGROUND ¹

In April 2015, Carrozza was prescribed Levaquin

(the quinolone antibiotic levofloxacin ) by his physician for treatment of a head cold. He had the prescription filled at a CVS pharmacy in Bridgewater, Massachusetts. Neither Carrozza nor his prescribing physician were aware at the time that Carrozza had any allergies or sensitivities to Levaquin or other quinolones.

The pharmacist on duty, Richard Wokoske, attempted to fill the prescription but was notified by his computer system of a "hard stop" warning indicating that Carrozza was allergic to quinolones. Upon investigation, Wokoske identified conflicting information in Carrozza's CVS Patient Profile, including statements by Carrozza that he in fact had no quinolone allergy, and prior prescriptions of Levaquin

and other quinolones in 2008, 2009 and 2010. 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. Wokoske chose to dispense the Levaquin to Carrozza.

Carrozza took the prescribed Levaquin

and suffered what was later determined to be an allergic reaction. Hospital records from Carrozza's admission for this reaction indicate that he suffered a rash "atypical ... for allergic reaction" but possibly indicating "erythema multiforme /very mild [Stevens-Johnson Syndrome (SJS)]." Carrozza asserts that he sustained "permanent ocular damages" as a result.

A. Procedural History

In May of 2015, Carrozza sent CVS a pre-suit demand letter, as required by Massachusetts General Laws Chapter 93A § 9(3),² seeking $650,000 in damages.

CVS responded, challenging the demand letter as improper, and disclaiming liability. CVS subsequently offered, and Carrozza rejected, a settlement of $5,000.

In October 2017, Carrozza filed suit against CVS in Brockton District Court in the Commonwealth of Massachusetts. CVS subsequently successfully removed the action to the United States District Court for the District of Massachusetts on diversity grounds. Carrozza twice moved to remand the litigation to state court, arguing that CVS's settlement offer indicated that the amount in controversy was less than $75,000, and that the action therefore did not support federal jurisdiction on a diversity basis. The district court denied Carrozza's motions to remand.

Ultimately, the district court identified three claims asserted by Carrozza: (1) a claim for "tort," which the court construed as a claim for negligence (Count 1), (2) a claim under Chapter 93A (Count 2), and (3) a claim for product liability, which the court construed as a claim for breach of implied warranty (Count 3).

On March 22, 2019, CVS filed a motion for summary judgment, and a motion to preclude the testimony of Carrozza's expert witness, Dr. Kenneth Backman, under Federal Rule of Evidence 702. On April 30, 2019, Carrozza filed a cross-motion for partial summary judgment and a motion to conduct an audio-visual deposition of Dr. Stephen Foster as an expert witness. On July 8, 2019, the district court granted CVS's motion to preclude under Rule 702, denied Carrozza's motion to depose Dr. Foster as an improper attempt to reopen discovery, and issued summary judgment in favor of CVS.

Carrozza appealed the district court's issuance of summary judgment, and further appealed the district court's denial of his first motion to remand to state court, denial of his motion to depose Dr. Foster, and preclusion of Dr. Backman's testimony.

II. ANALYSIS

We conclude that Carrozza does not provide any adequate basis for reversing the district court's decisions. With respect to the motion to remand, the district court's exercise of diversity jurisdiction was proper. In addition, Carrozza fails to demonstrate abuse of discretion with respect to the district court's denial of his motion to conduct an audiovisual deposition of Dr. Foster or its grant of CVS's motion to preclude Dr. Backman's testimony. Finally, Carrozza does not identify any genuine issue of material fact with respect to his negligence, product liability, or Chapter 93A claims. Largely for the reasons set forth by the district court in its thorough opinion, we affirm the denial of Carrozza's motions to remand and to depose Dr. Foster, the preclusion of Dr. Backman's testimony, and the granting of summary judgment in favor of CVS on all counts.

A. The District Court's Denial of Carrozza's Motion to Remand

After being filed in Massachusetts state court, the litigation was removed to federal district court under 28 U.S.C. § 1332(a)(1), which grants district courts original subject matter jurisdiction (commonly known as "diversity jurisdiction") over "all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different States." Removal was based on complete diversity of citizenship, with CVS being a citizen of Rhode Island³ and Carrozza an undisputed citizen of Massachusetts, as well as on Carrozza's initial demand for $650,000. The district court acknowledged upon Carrozza's initial motion to remand that the complaint did not itself provide a damages figure, but nevertheless found that "[t]he amount demanded by [a] plaintiff in good faith is generally deemed to be the amount in controversy" and thus denied the motion. The district court also denied Carrozza's second motion, finding that "[t]he fact that most of the relevant events may have occurred in Massachusetts is immaterial to the question of whether plaintiff and defendant are citizens of different states for diversity purposes."

1. Standard of Review

We review de novo a district court's denial of a motion to remand. See, e.g., Mass. Sch. of L. at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 33 (1st Cir. 1998). Under a de novo standard, we will affirm the district court's denial if "the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different States." 28 U.S.C. § 1332(a)(1). The burden of establishing federal diversity jurisdiction rests on CVS as the party invoking federal jurisdiction. Mass. Sch. of L., 142 F.3d at 33.

2. Carrozza's Claim Satisfies the Requirements for Diversity Jurisdiction Under 28 U.S.C. § 1332(a)(1)

Carrozza argues on appeal that the district court should have granted his motion to remand the litigation to state court. In particular, Carrozza claims that his Chapter 93A demand letter seeking $650,000 in damages was not evidence of an amount in controversy in excess of $75,000. Rather, he argues that the amount sought in the demand letter was not a demand, given that the language "the official Demand for this Client is $650,000" was followed by "[w]e do not expect CVS to make an offer in that range at this time." Carrozza asserts that the value of the claim should be based on CVS's settlement offer of $5,000 in response to the demand letter, or on the damage assessments suggested by CVS's retained experts. Finally, Carrozza argues that the parties are not fully diverse, given that CVS's many Massachusetts locations render it essentially a resident of Massachusetts.

CVS responds that the district court properly concluded that "CVS established by a preponderance of the evidence that the amount in controversy exceeded $75,000." CVS notes that Carrozza's Chapter 93A demand letter documented total damages of $650,000, and his complaint further identified "medical bills in excess of $6,000." In addition, CVS notes that Carrozza's claim for attorney's fees – included in the amount in controversy under Chapter 93A – themselves exceed the jurisdictional limit as described in Carrozza's Amended Complaint and demand letter.

We determine that Carrozza's motion for remand was properly denied. Assuming that Carrozza's $650,000 demand was issued in good faith, his claim well exceeds the $75,000 threshold required to find diversity jurisdiction. Nor does Carrozza dispute that this was the amount requested in his pre-suit demand letter to CVS. Rather, he attempts to argue...