United States Court of Appeals For the First Circuit No. 19-1776

KEVIN CARROZZA,

Plaintiff, Appellant,

v.

CVS PHARMACY, INC. d/b/a CVS PHARMACY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Howard, Chief Judge, Barron, Circuit Judge, and Katzmann, Judge.

Albert E. Grady for appellant. Edward F. Mahoney, with whom Martin, Magnuson, McCarthy & Kenney was on brief, for appellees.

March 31, 2021

 Of the United States Court of International Trade, sitting by designation. 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.

- 2 - I. BACKGROUND1

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

1 The uncontested factual information recounted in this section is taken largely from the district court's thorough recitation. Carrozza v. CVS Pharmacy, Inc.,

(D. Mass. 2019).

- 3 - 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

2 A demand letter is a prerequisite to a suit under Chapter 93A for unfair or deceptive practices. "The purpose of the demand letter is to facilitate the settlement and damage assessment aspects of c. 93A and as such the letter and notice therein is a procedural requirement, the absence of which is a bar to suit." Entrialgo v. Twin City Dodge, Inc.,

(Mass. 1975). The statute provides: At least thirty days prior to the filing of any such action, a written demand for relief, identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered, shall be mailed or delivered to any prospective respondent. Any person receiving such a demand for relief who, within thirty days of the mailing or delivery of the demand for relief, makes a written tender of settlement which is rejected by the claimant may, in any subsequent action, file the written tender and an affidavit concerning its rejection and thereby limit any recovery to the relief tendered if the court finds that the relief tendered was reasonable in relation to the injury actually suffered by the petitioner. In all other cases, if the court finds for the petitioner, recovery shall be in the amount of actual damages or twenty-five dollars, whichever is greater; or up to three but not less than two times such amount if the court finds that the use or employment of the act or practice was a willful or knowing

- 4 - 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

violation of said section two [of Chapter 93A] or that the refusal to grant relief upon demand was made in bad faith with knowledge or reason to know that the act or practice complained of violated said section two. Mass. Gen. Laws ch. 93A, § 9(3).

- 5 - 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

- 6 - 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

(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

3CVS is a “Rhode Island Corporation with its principal place of business in Woonsocket, Rhode Island.”

- 7 - 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,

(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."

(a)(1). The burden of establishing

federal diversity jurisdiction rests on CVS as the party invoking

federal jurisdiction. Mass. Sch. of L.,

.

2. Carrozza's Claim Satisfies the Requirements for Diversity Jurisdiction Under

(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

- 8 - 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 on appeal that, because the

demand also stated that "[w]e do not expect [CVS] to make an offer

in that range at this time. We do expect from [CVS] a tender offer

of settlement," the demand letter does not in fact constitute a

statement of the value of the claim. This attempt to prevent

reliance on the demand letter is unpersuasive. Federal standards

- 9 - govern the calculation of the amount in controversy. See Stewart

v. Tupperware Corp.,

(1st Cir. 2004) ("Although

'federal courts must, of course, look to state law to determine

the nature and extent of the right to be enforced in a diversity

case,' the 'determination of the value of the matter in controversy

for purposes of federal jurisdiction is a federal question to be

decided under federal standards.'" (quoting Horton v. Liberty Mut.

Ins. Co.,

, 352–53 (1961))). Accordingly, "the sum

claimed by the plaintiff controls if the claim is apparently made

in good faith." Abdel-Aleem v. OPK Biotech LLC,

(1st Cir. 2012) (quoting St. Paul Mercury Indem. Co. v. Red Cab

Co.,

, 288–89 (1938)). Indeed, "[a] plaintiff's

'general allegation of damages that meet the amount requirement

suffices unless questioned by the opposing party or the court.'"

at 41–42 (quoting Stewart,

). Here, the demand

letter was expressly incorporated, and its allegations reiterated,

by Carrozza's initial and amended complaints. Furthermore, it is

Carrozza, not CVS, who questions his own assertion of damages.

The demand letter is therefore appropriate to demonstrate the

amount in controversy.4

4 Other courts have found explicitly that demand letters may serve as the basis for determining the amount in controversy in jurisdictional disputes. See Molina v. Wal-Mart Stores Tex., L.P.,

(W.D. Tex. 2008) ("[T]he Court finds that the pre-suit demand letter is evidence that the amount in

- 10 - We further note that Carrozza proposes no clear

alternative to his initial $650,000 demand. Despite explicitly

incorporating the demand letter below, he now argues that his claim

is in fact worth far less than his initial demand – an amount which

he characterizes as "only limited by the imagination of Claimant's

Attorney." He does not specify how much less, or in fact provide

any explanation for the alleged difference in demanded and actual

damages. As we have noted, Carrozza also attempts to rely on CVS's

expert testimony that his real damages are at best minimal, though

in doing so he again declines to provide any explanation for the

sudden (and substantial) change. In essence, it seems that

Carrozza is attempting to contest the adequacy of the amount in

controversy requirement by admitting at best error, and at worst

deceit, regarding the scope and merits of his claim. Allowing

remand on these grounds, and at this late stage of the litigation,

would run entirely counter to the mission of the court to "secure

the just, speedy, and inexpensive determination" of the

controversy exceeds $75,000 . . . ."); Six v. Sweeney, No. 5:13CV3,

, at *3 (N.D. W. Va. May 8, 2013) ("[P]laintiff's $100,000.00 demand letter received by the defendant less than one month prior to removal, clearly represents evidence that the amount in controversy has been satisfied."). Nor would Massachusetts law provide a basis for Carrozza's attempt to remand. See, e.g., Slaney v. Westwood Auto, Inc.,

(Mass. 1975) (finding that a Chapter 93A demand letter functions in part as "a control on the amount of damages which the complainant can ultimately recover if he proves his case").

- 11 - proceedings. Fed. R. Civ. P. 1.5 In sum, the demand letter is

appropriate to demonstrate amount in controversy.

We also reject Carrozza's attempt to argue that the

parties are in fact not diverse given CVS's business presence in

Massachusetts. The laws regarding corporate citizenship are well

established, and Carrozza has not shown that CVS, which is without

dispute a Rhode Island corporation, qualifies as a Massachusetts

citizen under the relevant tests. See, e.g., Hertz Corp. v.

Friend,

, 92–93 (2010). Because there is complete

diversity of citizenship between Carrozza and CVS and the amount

in controversy exceeds $75,000, exclusive of interest and costs,

removal from state court was proper and federal diversity

jurisdiction was properly exercised by the district court.

B. The Discovery Motions

In August 2018, Carrozza sought to admit into evidence

an affidavit from Dr. C. Stephen Foster ("Foster Affidavit"), his

treating ophthalmologist, under a state statutory exception to the

hearsay rule for certain medical records. See Mass. Gen. Laws ch.

233 § 79G. Noting that the Massachusetts statute was not

5Carrozza also attempts to contest the amount in controversy by proposing a stipulated cap of $75,000 upon remand to state court. Assuming arguendo stipulation offers a legitimate avenue for defeating diversity jurisdiction, there is no evidence that Carrozza raised this alternative at any point prior to appeal. At this late stage, we reject stipulation as untimely and inappropriate.

- 12 - applicable in federal court, and that Carrozza failed to comply

with the applicable Federal Rules of Civil Procedure governing

expert disclosures, the district court denied the motion to admit

the Foster Affidavit.

In October 2018, Carrozza identified Dr. Kenneth Backman

as an expert witness, and submitted an affidavit from Dr. Backman

attesting that (1) Wokoske's dispensing of Levaquin despite the

hard stop warning was a "breach of standard of care" and (2)

Carrozza's ingestion of Levaquin was the likely cause of the

injuries experienced by Carrozza. When deposed by CVS, however,

Dr. Backman testified that he in fact did not know the standard of

care applicable to pharmacists and had no firsthand knowledge of

either the treatment and identification of SJS or Carrozza's

alleged injuries. Dr. Backman further testified that his belief

that Carrozza had developed SJS as a result of his Levaquin

consumption was based entirely on the same Foster Affidavit

previously rejected by the district court.

Following CVS's deposition of Dr. Backman, Carrozza

again moved to admit the Foster Affidavit under Federal Rule of

Evidence 803(6) or 803(4) as a record of a regularly conducted

activity or a statement for purposes of medical diagnosis or

treatment. The district court again denied the motion on the

grounds that the Foster Affidavit constituted an expert report and

not an admissible out-of-court statement.

- 13 - Carrozza then moved to conduct an audiovisual deposition

of Dr. Foster. The district court denied Carrozza's motion on the

grounds that he failed to designate Dr. Foster as an expert witness

or depose him as a fact witness during the proceedings despite

having ample time to do so. The court found that Carrozza made no

showing of good cause for the reopening of discovery, and thus his

belated motion was "clearly . . . improper."

Finally, CVS moved to preclude the testimony of Dr.

Backman under Federal Rule of Evidence 702. The district court

granted CVS's motion, finding that Dr. Backman was not qualified

to render the opinions at issue and that his opinions in fact

amounted to mere "assumptions, speculation[,] and guesswork."

Polaino v. Bayer Corp.,

(D. Mass. 2000).

Noting Dr. Backman's testimony that he lacked essentially any

personal knowledge of the matters addressed by his expert opinion,

lacked any expertise on the standard of care required of

pharmacists, and relied nearly wholesale on the Foster Affidavit

in opining as to the cause of Carrozza's injuries, the district

court found that it was "manifestly clear that Dr. Backman is not

qualified to offer an expert opinion" on these issues.

Carrozza appealed both the denial of his motion to

conduct an audiovisual deposition of Dr. Foster and the district

court's preclusion of Dr. Backman's testimony under Federal Rule

of Evidence 702.

- 14 - 1. Standard of Review

We review challenges to a district court's discovery

determinations under an abuse of discretion standard. See, e.g.,

Dennis v. Osram Sylvania, Inc.,

, 859–60 (1st Cir.

2008). Under this standard, we "uphold the district court's ruling

. . . unless it is 'manifestly erroneous.'" Schubert v. Nissan

Motor Corp. in U.S.A.,

(1st Cir. 1998) (quoting

Bogosian v. Mercedes-Benz of N. Am., Inc.,

(1st

Cir. 1997)). Review of discovery matters in particular is "not

appellant-friendly" and intervention on appeal is only appropriate

where an appellant has clearly shown that the lower court's order

was "plainly wrong and resulted in substantial prejudice." Modern

Cont'l/Obayashi v. Occupational Safety & Health Rev. Comm'n,

(1st Cir. 1999) (quoting Faigin v. Kelly,

(1st Cir. 1999)).

2. Carrozza Made No Showing that the District Court Abused its Discretion in Denying His Motion to Depose Dr. Foster

Carrozza alleges that Dr. Backman's disqualifying

admissions during deposition testimony in fact "warrant allowing

Plaintiff to take an [audiovisual] depo[sition] of Dr. Foster,

plaintiff's treating ophthalmologist, for both evidentiary and

[summary judgment] Record enlarging use." Carrozza's argument is

that there "was no issue" with his previous expert "up until

transcript of his deposition testimony was introduced by CVS with

- 15 - [summary judgment] moving papers," and thus Carrozza's belated

motion to depose Dr. Foster "was for good cause." In particular,

Carrozza points to the "short time span" available to remedy Dr.

Backman's disqualification.

CVS responds that the district court reasonably

exercised its discretion in denying Carrozza's motion to depose

Dr. Foster given the factors identified by the court and Carrozza's

multiple failed attempts to "backdoor an expert opinion" by means

of the Foster Affidavit.

Carrozza has not demonstrated that the district court's

denial of his motion was plainly wrong. On the contrary, Carrozza

had every opportunity to pursue the inclusion of Dr. Foster as an

expert witness. Carrozza's August 2018 motion to admit the Foster

Affidavit shows that he was aware as of at least that date that

his case would benefit from the inclusion of Dr. Foster's

testimony. As noted, the district court explicitly informed

Carrozza when denying that motion that to admit Dr. Foster's

testimony he must comply with the requirements for designating Dr.

Foster as an expert witness under the Federal Rules of Civil

Procedure and Evidence. Carrozza chose to ignore these

instructions and move to admit the Foster Affidavit a second time

without designating Dr. Foster as an expert witness, at which point

the district court again informed him of his need to comply with

the rules. Not until the end of April 2019, well after the close

- 16 - of both fact and expert discovery, did Carrozza finally file the

contested motion to depose Dr. Foster.

In light of these facts, we conclude that the district

court permissibly exercised its discretion in denying Carrozza's

motion to depose. It is clear that Carrozza intended to rely on

Dr. Foster's findings as early as August 2018, and that he was

aware at least upon the denial of that motion that he was required

to designate Dr. Foster as an expert witness to do so.

Nevertheless, Carrozza made no effort to depose Dr. Foster over

the course of the eight months between his first and final motions.

Accordingly, we uphold the decision of the district court to deny

the motion to depose.

3. Dr. Backman's Expert Testimony was Permissibly Excluded

Carrozza argues on appeal that the district court

improperly excluded Dr. Backman's expert testimony given Dr.

Backman's relevant experience as a practicing physician. In

particular, Carrozza claims that Dr. Backman's professional

interactions with pharmacists qualify him to serve as an expert

witness on the subject of "custom and usage among" pharmacists,

even if his "opinion of rare disease of SJS . . . is properly

stricken." Carrozza further asserts that allergists and

pharmacists are "sufficient[ly] close in their careers to both

know when the other should not give a medication to a patient" and

that Dr. Backman's testimony that he did not know the standard of

- 17 - care for pharmacists is a result of "[Dr.] Backman getting tripped

up by [standard of care] questions" and having "not prepared for

his deposition by CVS."

CVS responds that Dr. Backman himself "acknowledged that

he was unfamiliar with and not qualified to render expert opinions

. . . as to the standard of care for pharmacists or pharmacies,"

despite any experience he might have as an allergist. CVS further

notes that "Dr. Backman did not even know the basic facts of the

claim presented by Carrozza or CVS's defenses," and in fact lacked

any "qualifications to provide reliable testimony about the

subject matters at issue in this case." Thus, CVS contends that

the district court did not exceed its discretion in precluding Dr.

Backman's testimony.

The relevant standard for the admission of expert

testimony is Federal Rule of Evidence 702, which provides that:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. Under this rule, district courts consider the

admissibility of expert testimony by determining whether "an

- 18 - expert's proffered testimony 'both rests on a reliable foundation

and is relevant to the task at hand.'" Samaan v. St. Joseph Hosp.,

(1st Cir. 2012) (quoting Daubert v. Merrill Dow

Pharms., Inc.,

(1993)). The court below

correctly identified three factors underlying this determination:

(1) whether the proposed expert is qualified by "knowledge, skill,

experience, training, or education"; (2) whether the subject

matter of the proposed testimony properly concerns "scientific,

technical, or other specialized knowledge"; and (3) "whether the

testimony [will be] helpful to the trier of fact, i.e., whether it

rests on a reliable foundation and is relevant to the facts of the

case." Bogosian,

. The Supreme Court has further

clarified that the focus of the Rule 702 inquiry "must be solely

on principles and methodology, not on the conclusions that they

generate." Daubert,

.

The evidence entirely supports the district court's

exclusion of Dr. Backman's testimony under Rule 702. Although Dr.

Backman's expert opinion was offered to support Carrozza's claims

regarding the standard of care for pharmacists and the likely cause

of Carrozza's injuries, the expert opinion manifestly failed to

meet the standard of admissibility on either of these issues. Dr.

Backman testified in his deposition that he could not himself

testify as to the appropriate standard of care, the nature of SJS

or whether Carrozza displayed that disorder, the cause of any

- 19 - injuries to Carrozza, or whether Carrozza in fact had any injuries.

The district court therefore did not abuse its discretion in

finding that "Dr. Backman is not qualified to render the opinions

at issue" and his testimony "must be excluded under Rule 702."

Accordingly, we affirm the district court's discovery

rulings.

C. The District Court's Grant of CVS's Motion for Summary Judgment

We conclude that summary judgment was appropriately

issued for CVS on Carrozza's negligence claim given Carrozza's

failure to present any non-precluded expert evidence in support of

that claim. Similarly, neither of Carrozza's attempted product

liability claims survive a motion for summary judgment, given

Carrozza's failure to plead and argue below his failure to warn

claim, and given that a pharmacist’s dispensing of a prescription

drug is primarily a rendition of a service and not a sale of goods

under the UCC. Finally, summary judgment was appropriately issued

for CVS on Carrozza's Chapter 93A claim given that such claim fails

as a matter of law where Carrozza's negligence and product

liability claims also fail.

1. Standard of Review

The role of summary judgment is "to pierce the pleadings

and to assess the proof in order to see whether there is a genuine

need for trial." Mesnick v. Gen. Elec. Co.,

, 822

- 20 - (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc.,

(1st Cir. 1990)). We review de novo a district court's grant

of a motion for summary judgment. See, e.g., Irobe v. U.S. Dep't

of Agric.,

(1st Cir. 2018). Under a de novo

standard, we affirm the district court's holding if the record,

"construed in the light most amiable to [Carrozza], presents no

'genuine issue as to any material fact and reflects [CVS]'s

entitlement to judgment as a matter of law.'"

(quoting McKenny

v. Mangino,

(1st Cir. 2017)); Fed. R. Civ. P.

56(a). While the burden of demonstrating the appropriateness of

summary judgment falls on the moving party, once the movant has

"properly supported" its summary judgment motion, the nonmoving

party must nevertheless "set forth specific facts showing that

there is a genuine issue for trial" and may not simply "rest upon

the mere allegations or denials of his pleading." Anderson v.

Liberty Lobby, Inc.,

(1986) (quoting First Nat'l

Bank of Ariz. v. Cities Serv. Co.,

(1968)); see

also Robinson v. Town of Marshfield,

(1st Cir.

2020).

2. Summary Judgment for CVS was Appropriate on Carrozza's Negligence Claim

Carrozza argues that the negligence claim against CVS

(set forth in Count 1) should survive the motion for summary

judgment given that it is properly a question for the jury,

- 21 - regardless of whether Carrozza can provide expert testimony in his

favor. To bolster his claim, Carrozza attempts to identify

disputed facts, among them whether Wokoske knew Carrozza had

previously been prescribed quinolone antibiotics.

CVS responds that the district court correctly found

that the negligence claim required an expert opinion as to at least

the applicable standard of care and the causation of Carrozza's

injuries, and – lacking such expert opinion – therefore properly

entered summary judgment for CVS. CVS characterizes the question

of Wokoske's breach of duty as the "central element" of Carrozza's

negligence claim and argues that the nature of the duty owed to

patients by pharmacists "undoubtedly requires the presentation of

expert testimony."

The Supreme Judicial Court "has long recognized that

pharmacies have a duty to fill prescriptions correctly." Correa

v. Schoeck,

(Mass. 2018) (citing Cottam v. CVS

Pharmacy,

(Mass. 2002)). A successful

negligence claim requires the plaintiff to prove that "the

defendant owed the plaintiff a duty of reasonable care, that the

defendant breached this duty, that damage resulted, and that there

was a causal relation between the breach of the duty and the

damage."

at 198 (quoting Jupin v. Kask,

, 834–

35 (Mass. 2006)); see Nutt v. Florio,

(Mass.

App. Ct. 2009) (first citing Glidden v. Maglio,

,

- 22 - 973 (Mass. 2000); then citing Lieberman v. Powers,

(Mass. App. Ct. 2007); and then citing Restatement (Second) of

Torts § 281 (Am. L. Inst. 1965)); see also Curreri v. Isihara,

(Mass. App. Ct. 2011) ("In a medical malpractice

case, the burden is on the plaintiff to establish a causal

connection between the alleged negligence of a defendant and any

damages."). We have previously held that in cases where expert

testimony is required under state law, the absence of such

testimony mandates issuance of summary judgment against the party

that failed to provide expert evidence. Flanders & Medeiros, Inc.

v. Bogosian,

(1st Cir. 1995). Massachusetts

courts have held that in negligence and malpractice actions,

"[e]xpert testimony is generally needed to establish [the]

professional standard of care" that "can be reasonably expected

from similarly situated professionals." See LeBlanc v. Logan

Hilton Joint Venture,

, 44 (Mass. 2012) (quoting Klein

v. Catalano,

(Mass. 1982)) (first citing

Pongonis v. Saab,

(Mass. 1985) (legal

malpractice); then citing Collins v. Baron,

, 173-

74 (Mass. 1984) (medical malpractice); and then citing Atlas Tack

Corp. v. Donabed,

, 621–22 (Mass. App. Ct.

1999) (legal malpractice in failing to present expert testimony of

engineer)). See generally Massachusetts Guide to Evidence 165-

173 (2021) (setting forth and discussing Section 702, Testimony by

- 23 - Expert Witnesses, and Section 703, Bases of Opinion Testimony by

Expert).

We conclude that an expert opinion is similarly

necessary here to prove the appropriate standard of care for

Wokoske. As the district court correctly noted, there is no

Massachusetts case law expressly pertaining to the use of expert

testimony regarding the professional judgment of pharmacists.

Nevertheless, the appropriate standard of care with respect to a

pharmacist's dispensation of prescriptions is, as in other

professional judgment cases, "not normally within the experience

of lay persons." Frullo v. Landenberger,

(Mass. App. Ct. 2004). Rather, "without expert testimony laymen,

including the jury, the trial judge, and [the appellate court],

could not be, and are not, in a position to determine" the

appropriate standard of care. Haggerty v. McCarthy,

(Mass. 1962). We agree with the district court that the

"central issue underlying the negligence claim" is whether Wokoske

breached his duty to Carrozza by dispensing Levaquin despite a

hard stop warning, and similarly determine that this issue is

beyond the ken of a lay jury. Thus, expert testimony is required

on the issue of standard of care.

Nor does this case present an issue of common-sense

determination sufficient to preclude the need for an expert, as

plaintiff argues. See Gliottone v. Ford Motor Co., 130 N.E.3d

- 24 - 212, 216 (Mass. App. Ct. 2019) (finding that expert testimony is

necessary "on subjects that the trier of fact would not 'be

expected to understand in many circumstances without guidance from

an expert'" but not where "lay knowledge enables the jury to find

the relevant facts" (quoting Providence & Worcester R.R. v. Chevron

U.S.A. Inc.,

(Mass. 1993)) (citing

Smith v. Ariens Co.,

(Mass. 1978))). A

pharmacist exercising his professional judgment in the context of

Mass. Gen. Laws ch. 112's extensive regulatory scheme is not

comparable to a physician unintentionally leaving a foreign object

inside a patient during an operation, Haggerty,

,

or a lawyer preparing a demand for an amount a hundred times less

than the actual amount requested by his client, Varnum v. Martin,

(1834). Wokoske's alleged negligence is not "so

gross or obvious" that laymen can infer it from the facts alone,

and thus an expert opinion as to the standard of care for

pharmacists is essential to the success of Carrozza's claim.

Pongonis,

.

By not adducing any admissible expert testimony,

Carrozza thus fails to substantiate his negligence claim

sufficiently to constitute a dispute of material fact. As

discussed above, the properly excluded opinion of Dr. Backman was

Carrozza's only expert evidence. Without expert evidence as to

the standard of care, Carrozza has failed to demonstrate a dispute

- 25 - of material fact regarding CVS's alleged breach of duty. Given

that there is therefore no dispute of material fact on Carrozza's

negligence claim, the district court correctly entered judgment

for CVS.

3. Summary Judgment for CVS was Appropriate on Carrozza's Product Liability Claim

We examine both of Carrozza's attempted product

liability claims (set forth in Count 3): the failure to warn claim

with respect to Wokoske's alleged duty to inform Carrozza of the

risks of Levaquin, and the breach of implied warranty claim with

respect to Levaquin's defective nature.

i. The Failure to Warn Claim

On appeal, Carrozza attempts to re-assert his untimely

allegation that "CVS knew [that the Levaquin] was defective, or at

least had evidence that [the] product was defective for Mr.

Carrozza and failed to warn." Carrozza admits that this claim was

not asserted in the pleadings. As the district court correctly

noted, a litigant may not posit a theory for the first time in

opposition to a summary judgment motion. Brooks v. AIG SunAmerica

Life Assurance Co.,

(1st Cir. 2007). Similarly,

"[a]ppellants cannot raise an argument on appeal that was not

'squarely and timely raised in the trial court.'" Thomas v. Rhode

Island,

(1st Cir. 2008) (quoting Iverson v. City

of Boston,

(1st Cir. 2006)). Accordingly, we

- 26 - affirm the district court's rejection of Carrozza's failure to

warn claim and decline to address it further on appeal.6

ii. The Breach of Implied Warranty Claim

As the district court observed in its memorandum,

"Carrozza's product liability argument is so thinly briefed and

difficult to comprehend that there is a strong argument for

waiver."

(citing United States v. Zannino,

(1st Cir. 1990)); see also Kelly, 964 F.3d at 115

n.8. The same could be said here. We do note that in his amended

complaint, it appears that Carrozza alleged a strict liability

theory of recovery. He first cites Everett v. Bucky Warren, Inc.,

(Mass. 1978), for the principle that a defendant

"is liable for the distribution of an unreasonable dangerous

product to Plaintiff." He next alleges that CVS "is liable to

Plaintiff for damages suffered as a result of warranty breach or

defective product." He then cites Back v. Wickes Corp., 378 N.E.2d

Nor is it clear that Cottam, 764 N.E.2d at 821–23, would 6

sustain Carrozza's failure to warn claim, had such claim been properly raised. Cottam addressed the limited circumstances in which a pharmacy's voluntary assumption of the duty to warn patients of potential side effects required such warning to extend to all possible side effects.

In contrast, Carrozza's claims stem from CVS's internal warning system, targeted to pharmacists. Whether an internal warning system relying on the technical performance of an individual pharmacist is properly analogized to a consumer-facing warning form provided by the pharmacy can be debated. Regardless, this argument is insufficiently developed by Carrozza, and is therefore waived. Kelly v. Riverside Partners, LLC,

, 115 n.8 (1st Cir. 2020).

- 27 - 964 (Mass. 1978), for the proposition that the Levaquin "was unfit

and unreasonably dangerous to sell or induce consumption by

Plaintiff."

"In Massachusetts, 'there is no strict liability in tort

apart from liability for breach of warranty under the Uniform

Commercial Code, G.L. c. 106, §§ 2–314–2–318.'" Guzman v.

MRM/Elgin,

(Mass. 1991) (quoting Swartz v.

Gen. Motors Corp.,

(Mass. 1978)). The Supreme

Judicial Court has specifically stated that it is unwilling to

hold "that, apart from liability for breach of warranty under our

statute, there may be liability without fault for defective

products." Mason v. General Motors Corp.,

(Mass. 1986). Consequently, 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, we

construe Carrozza's strict product liability claim to be a breach

of implied warranty claim under the UCC – as did the district court

– and address the merits of his claim that summary judgment was

improperly granted to CVS.

It is undisputed that CVS sold the Levaquin to Carrozza.

It is also clear under Massachusetts law that Carrozza's claim for

breach of implied warranty can only survive if it arises from a

contract for the sale of goods. The UCC applies to contracts for

transactions in goods, and not to agreements for the provision of

- 28 - services. White v. Peabody Constr. Co.,

, 1021–22

(Mass. 1982). Pharmacists, however, do not simply sell

medications; they also provide professional health care services.

Where, as here, there is a mix of elements in a transaction, under

Massachusetts law, to determine whether dispensation of a

prescription by a pharmacist constitutes a transaction in goods,

we must consider "whether the predominant factor, thrust, or

purpose of the contract is (1) 'the rendition of service, with

goods incidentally involved, or is [instead (2)] a transaction of

sale, with labor incidentally involved.'" Cumberland Farms, Inc.

v. Drehmann Paving & Flooring Co.,

(Mass.

App. Ct. 1988) (alteration in original) (quoting Bonebrake v. Cox,

(8th Cir. 1974)) (citing White,

)).

We hold, in agreement with CVS and the district court,

that under Massachusetts law a pharmacist's dispensation of

prescribed medication is predominately the provision of services,

and not the sale of goods. Although this specific question is an

issue of first impression for the Massachusetts appellate courts,

we note that a court in the District of Massachusetts has

previously found that dispensation of a prescribed

methylprednisolone acetate injection constitutes a service under

the UCC. In re New Eng. Compounding Pharmacy, Inc. Prods. Liab.

Litig., MDL No. 13-02149-RWZ,

, at *5 (D. Mass. Jan.

- 29 - 13, 2015) (applying the UCC in assessing strict liability under

Illinois law). In addition, other courts have consistently

concluded that pharmacists primarily provide a service when

dispensing prescriptions. See In re Rezulin Prods. Liab. Litig.,

(S.D.N.Y. 2001); Madison v. Am. Home

Prods. Corp.,

, 495–96 (S.C. 2004); Herzog v.

Arthrocare Corp., No. Civ. 02-76-P-C,

, at *13 (D.

Me. Mar. 21, 2003); see also Whiting v. Rite Aid Corp.,

(D. Utah 2014) (drawing a distinction between the

role a pharmacist performs when dispensing a prescription drug and

other roles a pharmacist may perform outside the prescription drug

setting). This reasoning is further substantiated by the

Massachusetts Board of Registration in Pharmacy's definition of

"dispensing" as:

[T]he physical act of delivering a drug, chemical, device or combination thereof to an ultimate user pursuant to the lawful order of a practitioner, as defined in M.G.L. c. 94C, § 1, including the utilization of the professional judgment of the pharmacist and the packaging, labeling, or compounding necessary to prepare the drug, chemical, or device for delivery.

247 Mass. Code. Regs. 2.00 (2013) (emphasis added).

We find instructive (as quoted by the district court,

) the analysis of the pharmacist's role

described by the California Supreme Court:

It is pure hyperbole to suggest . . . that the role of the pharmacist is similar to that of a clerk in an ordinary retail store. With a few exceptions, only a

- 30 - licensed pharmacist may dispense prescription drugs, and . . . there are stringent educational and professional requirements for obtaining and retaining a license . . . . A key factor is that the pharmacist who fills a prescription is in a different position from the ordinary retailer because he cannot offer a prescription for sale except by order of the doctor. In this respect, he is providing a service to the doctor and acting as an extension of the doctor in the same sense as a technician who takes an X-ray or analyzes a blood sample on a doctor's order.

Murphy v. E.R. Squibb & Sons, Inc.,

(Cal. 1985).

The provision of services is clearly not incidental to a

pharmacist's dispensation of prescribed medication under

Massachusetts law, but rather predominates over the transaction in

goods.

Thus, insofar as Carrozza intends to allege strict

liability stemming from a claim of breach of implied warranty, his

claim cannot survive a motion for summary judgment. We affirm the

district court's issuance of summary judgment for CVS on the

product liability claims.

4. Summary Judgment for CVS was Appropriate on Carrozza's Chapter 93A Claim

Chapter 93A prohibits "[u]nfair methods of competition

and unfair or deceptive acts or practices in the conduct of any

trade or commerce." Mass. Gen. Laws ch. 93A, § 2(a). It is well

established that to allege a violation of Chapter 93A a plaintiff

must show that the disputed conduct falls within a "common-law,

statutory, or other established concept of unfairness." Serpa

- 31 - Corp. v. McWane, Inc.,

(1st Cir. 1999) (quoting

Linkage Corp. v. Trs. of Bos. Univ.,

(Mass.

1997)). 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 (set forth in Count 2) fails as a matter of law. Kearney

v. Philip Morris, Inc.,

(D. Mass. 1996) ("If

plaintiff's claims of breach of warranty and negligence fail,

plaintiff's Mass. Gen. L. ch. 93A claim also fails.").

III. CONCLUSION

For the foregoing reasons, the district court's denial

of Carrozza's motions to remand and to conduct an audiovisual

deposition of Dr. Foster, grant of CVS's preclusion motion, and

issuance of summary judgment for CVS on all counts are

Affirmed.

- 32 -