The U.S. District Court in Massachusetts in the case of Carrozza v. CVS Pharmacy Inc. (July 8, 2019) dealt with a lawsuit against a pharmacy by a plaintiff who suffered an allergic reaction to Levaquin, an antibiotic he was prescribed. The pharmacy dispensed the drug despite a “hardstop” warning in their system indicating that the patient had an allergy.
The sole expert witness for the plaintiff was Backman, an allergist. The plaintiff’s expert disclosure contained an affidavit from Backman.
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.).
Backman was later deposed. It did not go well.
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).
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).
Based upon Backman’s admission during deposition that he had “almost no understanding of the facts of the case,” the court granted the defendant’s motion to preclude his testimony. The court found that Backman “was not qualified to render the opinions at issue and his opinions are not based on adequate data. His conclusions therefor amount to mere “assumptions, speculation, and guesswork, and his testimony must be excluded.”
The court went on to grant summary judgement for the defendant because, once Backman’s testimony was excluded, the plaintiff had no evidence as to the standard of care.
The questions raised are: how did the sole expert witness show up for his deposition so unprepared? and whose responsibility was it to make sure he was properly prepared?
In an interesting twist, plaintiff’s counsel argued it was the expert’s attitude and his lack of preparation that caused his poor deposition and performance.