Loretta Albanese et al. v. CVS LLC (2015)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (# 163)

The amended complaint of Loretta and Christopher Albanese, the plaintiffs, dated September 12, 2014, is the operative complaint.   It alleges five counts.   The first four counts are claims of Loretta Albanese ¹ for, respectively, professional negligence, common-law recklessness, negligence, and negligent infliction of emotional distress, all arising from the dispensing, by a pharmacist employed by the defendant, Connecticut CVS Pharmacy, LLC, of the plaintiff's prescription for Tizanidine with double the prescribed dosage of that medication on August 5, 2008, and again the following month.   Count five is Christopher Albanese's claim, as the plaintiff's husband, for loss of consortium based on the plaintiff's injuries claimed in counts one through four.

The defendant moved on January 20, 2015, for summary judgment on all five counts for the following reasons:

1. the plaintiff is unable to prove through competent evidence that the injuries she claims were caused by the negligence or recklessness of the defendant;

2. the plaintiff is unable to prove that the defendant acted recklessly;

3. the plaintiff's negligence claim is duplicative of count one for “professional negligence”;

4. count four, for negligent infliction of emotional distress, is barred by the applicable statute of limitation, General Statutes § 52–584;

5. the plaintiff cannot prove the elements of negligent infliction of emotional distress (including that her emotional claims are “not objectively reasonable”);  and

6. because the defendant is entitled to judgment on counts one through four, Christopher Albanese's claim in count five must fail.

The present motion incorporates factual claims and arguments from the defendant's prior motion for summary judgment (# 153) and related briefs (# 154 and # 161).   The plaintiffs filed an opposing brief (# 169), which incorporates certain arguments and exhibits to their opposition to the original motion for summary judgment, to which the defendant filed a reply (# 170).   The motion was argued on February 17, 2015.

Practice Book § 17–49 provides that summary judgment must be rendered if the pleadings, affidavits, and any other proof submitted demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   A genuine issue of material fact has been defined as a triable issue of fact, which can be maintained by substantial evidence.  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969).   A motion for summary judgment shall be supported by appropriate documentary evidence, such as affidavits and certified transcripts of testimony given under oath.  Practice Book § 17–45.   In this case, the court regards the present motion as being based on seven exhibits filed with the original motion for summary judgment, including the plaintiff's answers to interrogatories, her disclosure of Rodney Richmond as an expert [# 144], her disclosure of Matthew Levey as an expert [# 151], and excerpts of Mr. Levey's deposition transcript.

In deciding a motion for summary judgment, the moving party has the burden of showing that genuine issues of material fact do not exist;  however, after the moving party has met its burden, the nonmoving party may still defeat the motion by presenting evidence showing that a genuine issue of material fact exists.  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).   In ruling on the present motion, the court's function is to determine whether any issues of material fact exist, not to decide any such issues.  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).   Summary judgment is appropriate only when it is the sole conclusion that a fair and reasonable person could reach based on the evidence.  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).   Another way to view the standard for granting a motion for summary judgment is the court must find that all the evidence necessary to make the necessary findings is before the court and that, without weighing the credibility of any of that evidence, the movant is entitled to judgment.

In ruling on a motion for summary judgment, the trial court must view the submissions in the light most favorable to the non-moving party.  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 57, 68 A.3d 1162 (2013).   Statements that are merely conclusions are not evidence.   See Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).

There are triable issues of material fact as to counts one through four and, therefore, as to Christopher Albanese's derivative claim for loss of consortium.

Preliminarily, while the defendant does not admit that filling the plaintiff's prescription with double the prescribed dosage was negligence, the defendant does not dispute that its employee erred in doing so.   The court finds it common knowledge, in law and in the community, that pharmacists are supposed to dispense drugs at the dose prescribed.

As to count one, the court is not persuaded that there is no evidence on which the trier of fact—here, the jury—could base a finding of causation of the plaintiff's claimed injuries.   One of the plaintiff's treating physicians, Dr. Okasha, states in one of his disclosed reports that he diagnosed “overdose of zanaflex” (another name for Tizanidine) as one of the plaintiff's medical issues.  (See Exhibit C [# 158] to the plaintiff's brief # 156.)  Practice Book § 13–4(b)(2) states that disclosure of the records of a plaintiff's treating health care provider satisfies the expert disclosure requirements of § 13–4.   In addition, the trier of fact could draw reasonable inferences concerning the severity of the defendant's error and the risk and existence of medical complications of that error from evidence that the plaintiff had to taper from the defendant's dispensed double dosage to the prescribed dosage over a period of several months.

As to count two, for common-law recklessness, Judge Cosgrove found the allegations sufficient.   This court cannot, though skeptical, conclude as a matter of law that the defendant's prescription error was not an extreme departure from ordinary care.

Count three, except for the word “professional” in the title, is practically identical to count one.   While the court believes that count three is surplusage—that count one is sufficient to encompass both professional and general negligence—to grant the present motion as to count three would be to grant it as to count one, which the court cannot do.   The trial judge will evaluate any surplusage and, by jury instructions and other procedures, deal with such as the trial court finds.

First, as to count four, the court does not base the present ruling on Judge Leuba's overruling of the defendant's objection to the plaintiffs' request to amend their complaint to add that count.   The standards for amendment are different from the merits of the claims.   Second, the court rejects the plaintiff's claim of waiver.   The defendant's argument that count four is barred by the statute of limitation is not a matter of personal jurisdiction, the absence of which is waivable.   The bar of the statute of limitation implicates subject matter jurisdiction, the lack of which can be raised at any time.  Keller v. Beckenstein, 305 Conn. 523, 531–32, 46 A.3d 102 (2012).   However, the court finds that count four does relate back to count one.   The “elements of the cause of action for negligent infliction of emotional distress [are]:  (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress;  (2) the plaintiff's distress was foreseeable;  (3) the emotional distress was severe enough that it might result in illness or bodily harm;  and (4) the defendant's conduct was the cause of the plaintiff's distress.”  Carrol v. Allstate Ins. Co., 262 Conn 433, 444, 815 A.2d 119 (2003);  see also Davis v. Davis, 112 Conn.App. 56, 68, 962 A.2d 140 (2009).   Count four alleges a different theory of recovery founded on the same facts of which the original complaint in this case, filed August 27, 2010, gave notice to the defendant.   See Austin–Casares v. Safeco Ins. Co. of America, 310 Conn. 640, 656–57, 81 A.3d 200 (2013).

Also concerning count four, “no sufficient evidence” (see defendant's brief # 170, p. 8) is not the same as no evidence.   The court cannot say, as a matter of law, that the defendant's conduct did not create an unreasonable risk of causing the plaintiff emotional distress, that the distress was not foreseeable, that the emotional distress was not so severe that it could not possibly result in illness or bodily harm to the plaintiff, or that the defendant's conduct was the cause of the plaintiff's distress.   See Carrol v. Allstate Ins. Co., supra, 262 Conn. 444.   Summary judgment is inappropriate when necessary inferences concern intent, motive, and subjective feelings and reactions.  Batick v. Seymour, 186 Conn. 632, 646–47, 443 A.2d 471 (1982).   The law does not require a risk of dramatic or grave illness or bodily injury to the plaintiff claiming negligent infliction of emotional distress.   The law protects people with claims of all magnitudes.   Assuming, for the sake of illustration, that the defendant's error is not a “disaster,” such as the house fire and the plaintiff's burn injuries in Carrol, and assuming further that the effects of the defendant's alleged conduct were not “devastating,” such as the insurance company defendant's investigation in that case, the plaintiff would still have a claim.   As for the defendant's claim that the plaintiff's emotional claims are “not objectively reasonable,” the court finds that the “objective reasonableness” of those claims is a triable issue of fact.   Barrett v. Danbury Hospital, 232 Conn. 242, 261, 654 A.2d 748 (1995), is distinguishable:  in that case, possibly infected blood did not, as the plaintiff claimed, actually enter the plaintiff's body.   In this case, the plaintiff did ingest the double dosage of Tizanidine for about two months before the error was discovered.

The present motion is denied.   Because the plaintiff's claims survive the present motion, count five does, as well.

Cole–Chu, J.

FOOTNOTES

FN1. Loretta Albanese will hereinafter be referred to as the plaintiff..  FN1. Loretta Albanese will hereinafter be referred to as the plaintiff.

Cole–Chu, Leeland J., J.