Massachusetts Superior Court

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BRIENZE v. CASSERLY, No. 01-1655-C (December 19, 2003)
DANIEL BRIENZE and PHILIP D. BRIENZE, as Executor of the Estate of PAULA
BRIENZE v. BRIAN CASSERLY, M.D., ANDREW LEE, RPh. and CVS PHARMACY, INC.
No. 01-1655-C.
COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT.
MIDDLESEX, SS.
December 19, 2003.

MEMORANDUM AND ORDER ON MOTION OF THE DEFENDANTS, STONEHAM CVS,
INC., improperly pled as "CVS PHARMACY, INC." and ANDREW LEE,
RPh., FOR SUMMARY JUDGMENT PURSUANT TO M.R.C.P. 56

LAURIAT, J.

Daniel Brienze ("Daniel"), brought this action to recover for
personal injuries he sustained from the adverse interaction of
two prescription medications, Ciproflaxin ("Cipro") and
Theophylline. The prescriptions were ordered by defendant Brian
Casserly, M.D. ("Casserly"), and were filled by defendant Andrew
Lee, RPh. ("Lee"). Lee was allegedly acting pursuant to his
duties as a pharmacist employed by defendant CVS Pharmacy, Inc.
("CVS"). Philip Brienze, as Executor of the estate of Daniel's
late wife, Paula Brienze ("Paula"), also asserts a claim for loss
of consortium arising from Daniel's injuries. Paula and Daniel
will hereinafter be collectively referred to as "Plaintiffs."

The Plaintiffs' claims against Lee and CVS are based upon their
theory that Lee and CVS breached their duty to warn Daniel of the
potentially adverse interaction of Cipro and Theophylline when
they filled his prescription. Lee and CVS, hereinafter referred
to collectively as "the Defendants," now move for summary
judgment pursuant to Mass. R. Civ. P. 56, contending that
Massachusetts law imposes no such duty to warn upon pharmacists
or pharmacies.

For the reasons set forth below, this court concludes that
Massachusetts law does impose such a duty. Therefore, the
Defendants' motion for summary judgment is denied.

BACKGROUND

The undisputed material facts and the disputed material facts
viewed in the light most favorable to Plaintiffs, as revealed by
the summary judgment record, are as follows.

On or about October 28, 1999, Casserly performed a complete
physical examination of Daniel. As part of that examination,
Casserly noted all of the medications which Daniel was already
taking, including prescription Theophylline. Nevertheless, after
completing the examination, Casserly prescribed a ten-day course
of the anti-biotic drug Cipro.

Later on October 28, 1999, Lee filled Daniel's Cipro
prescription while working at CVS. Just two days before, the same
CVS had filled Daniel's Theophylline prescription, and Lee knew
that Daniel was taking Theophylline when he filled his Cipro
prescription. Lee was also aware of the potentially adverse
interaction between Cipro and Theophylline. Not only did the CVS
computer system alert him, he was also familiar with that danger
through his personal training and experience. Lee knew that when
the two drugs are used in combination, a patient's blood levels
should be monitored due to the risk of Theophylline toxicity.

Paula picked up the prescription at CVS for her husband Like
most pharmacy customers, Paula declined an offer to speak to the
pharmacist at that time. Although CVS provided an insert with the
Cipro which warned users, in fine print, that a patient should
inform his doctor that he is taking Theophylline before beginning
to take Cipro, Lee did not give Paula any additional warning.

DISCUSSION

Summary judgment will be granted where there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v.
Comm'r of Correction, 390 Mass. 419, 422 (1983);Community Nat'l
Bank v. Dawes, 369 Mass. 550, 553 (1976). The moving party bears
the burden of affirmatively demonstrating the absence of a
triable issue and that the summary judgment record entitles the
moving party to judgment as a matter of law. Pederson v. Time,
Inc., 404 Mass. 14, 16-17 (1989). The moving party may satisfy
this burden either by submitting affirmative evidence that
negates an essential element of the opposing party's case or by
demonstrating that the opposing party has no reasonable
expectation of proving an essential element of his case at
trial.Flesner v. Technical Communications Corp., 410 Mass. 805,
809 (1991); Kourouvacilis v. General Motors Corp.,
410 Mass. 706, 716 (1991).

Here, the Plaintiffs assert that Lee and CVS breached their
duty to warn Daniel of the potentially adverse interaction
between Cipro and Theophylline. Lee and CVS assert that they do
not have any such duty to warn because the physician acts as a
learned intermediary between the drug manufacturer or distributor
and the consuming patient. See Cottam v. CVS Pharmacy,
436 Mass. 316, 322 (2002).

It is true that "[b]ecause the physician is the appropriate
person to perform the duty of warning a patient of the possible
side effects of prescription drugs," a pharmacist has no
general duty to warn. Cottam, 436 Mass. at 322. However, the
Supreme Judicial Court did not declare that pharmacists have
absolutely no duty. Rather it "h[e]ld simply that, where the
pharmacist has no specific knowledge of an increased danger to a
particular customer, the pharmacist has no duty to warn of
potential side effects." Cottam, 436 Mass. at 322-323.

This is not such a case. Lee was specifically aware that a
particular customer, Daniel, was already taking Theophylline when
he filled his prescription for Cipro, and that this posed an
increased danger to him. Therefore, the duty imposed in this case
is not within the scope of the learned intermediary doctrine
carved out by Cottam. Indeed, when adopting the learned
intermediary doctrine for pharmacists in Cottam, the Court
expressly did not address cases, such as this one, where a
pharmacist "failed to warn the customer when filling two
prescriptions that adversely interact with one another."
Cottam, 436 Mass. at 322-323 (citing Lasley v. Shrake's
Country Club Pharmacy, Inc., 179 Ariz. 583 (Ct. App.
1994)).[fn1]

Accordingly, it is clear that the learned intermediary
doctrine, as adopted in Massachusetts, does not eliminate a
pharmacist's duty to warn a particular customer of the
potentially adverse interaction of two drugs which the pharmacist
knows the customer is taking. Thus, the Defendants' motion for
summary judgment must be denied.

ORDER

For the foregoing reasons, the Motion of the Defendants,
Stoneham CVS, Inc. improperly pled as "CVS Pharmacy, Inc." and
Andrew Lee, RPh., for Summary Judgment Pursuant to M.R.C.P. 56 is
DENIED.

[fn1] Although Lasley refuses to adopt any learned intermediary
doctrine for pharmacists or pharmacies, it is cited by the
Supreme Judicial Court in Cottam as an illustration of the
limits to the doctrine in Massachusetts. Cottam, 436 Mass. at
322-323.



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