Expert Witnesses Properly Barred After Removal of Case from State to Federal Court

Written on Monday, May 17th, 2021 by T.C. Kelly
Filed under: Expert Opinions, ExpertWitness, Working with Experts

After a case is removed from state court to federal court, the federal rules of evidence apply. A federal appellate decision regarding a lawsuit that was filed in Massachusetts makes clear that lawyers cannot expect to be rescued by reliance on state rules when they fail to make the expert witness disclosure required by federal rules. Nor can lawyers gain back door admissibility of expert opinions by filtering them through a disclosed expert who lacks the qualifications to render those opinions.

Facts of the Case

A doctor in Massachusetts prescribed Levaquin to Kevin Carrozza. Levaquin is a quinolone antibiotic. Carrozza took the prescription to a CVS pharmacy to be filled. Neither Carrozza nor the prescribing doctor knew that Carrozza had an allergy to quinolones.

The CVS computer system alerted the pharmacist on duty, Richard Wokoske, of Carrozza’s allergy to quinolones. Wokoske checked Carrozza’s patient profile, which indicated that Carrozza had been prescribed Levaquin in the past and had denied knowledge of a quinolone allergy.

Pursuant to CVS policy, Wokoske used his own judgment in deciding how to resolve the conflicting information. He chose to dispense the prescription.

Carrozza took the Levaquin and suffered an allergic reaction. He alleged that the reaction caused permanent damage to his eyes. Carrozza sued CVS for dispensing the medication after being alerted to his allergy.

Carrozza’s lawsuit was removed to federal court. CVS filed a motion to preclude the testimony of Carrozza’s expert witness, Dr. Kenneth Backman. Carrozza filed a motion to take a deposition of a second expert witness, Dr. Stephen Foster. The trial court denied the motion to take Dr. Foster’s deposition because the discovery deadline had passed. The court then granted summary judgment in favor of CVS.

Dr. Foster’s Opinion

Carrozza initially based his case on information provided by Dr. Foster, an ophthalmologist. Dr. Foster executed an affidavit in which he opined that Carrozza’s ingestion of Levaquin caused his eye injuries.

The affidavit was arguably admissible evidence under Massachusetts law, which makes an exception to its hearsay rule for certain sworn statements from physicians, including “the opinion of such physician or dentist as to proximate cause of the condition so diagnosed.”

Federal law has no corresponding exception. When the case was removed to federal court, Carrozza could no longer rely on Dr. Foster’s affidavit as trial evidence. Carrozza nevertheless filed a motion, relatively early in the case, to admit the affidavit as evidence. The district court ruled that the affidavit was essentially an expert report. The court advised Carrozza that if he wanted to rely on Dr. Foster’s affidavit, he needed to designate Dr. Foster as an expert witness and to comply with federal rules governing the disclosure of expert opinions.

Dr. Backman’s Opinions

Carrozza did not designate Dr. Foster as an expert. He instead designated Dr. Backman. Carrozza supplied an affidavit from Dr. Backman opining that Wokoske’s decision to dispense Levaquin despite the warning was a breach of the standard of care. Dr. Backman also opined that Carrozza’s ingestion of Levaquin was the likely cause of his injuries.

Dr. Backman’s medical background includes a specialization in allergies and immunology. During his deposition, Dr. Backman admitted that he did not know the standard of care applicable to pharmacists. Dr. Backman also testified that he based his opinion about Carrozza’s eye injuries on Dr. Foster’s affidavit.

Denial of Motion to Depose Dr. Foster

CVS moved to exclude Dr. Backman’s testimony on the ground that he had no relevant knowledge of Carrozza’s injuries but was merely channeling the information in Dr. Foster’s affidavit. In response to that motion, Carrozza asked the court for permission to take Dr. Foster’s deposition so that he would have an admissible expert opinion.

The district court denied the motion. The court noted that Carrozza had never disclosed Dr. Foster as an expert witness despite having ample time do so. The court had warned Carrozza that Dr. Foster’s affidavit would be inadmissible hearsay at trial. Dr. Foster’s opinions might have been admissible as the opinions of an expert witness, but Dr. Foster was never designated as an expert. Taking his deposition would not result in admissible evidence because expert opinions can only be offered by witnesses who have been identified as experts.

The court of appeals determined that the district court reasonably exercised its discretion in denying the motion. Carrozza did not explain why he failed to designate Dr. Foster as an expert witness despite having sufficient time to do so after his motion to admit Dr. Foster’s affidavit was denied. In the absence of that designation, Carrozza had no grounds to reopen discovery so that he could take Dr. Foster’s deposition.

Exclusion of Dr. Backman’s Testimony

There isn’t much doubt that a party who fails to disclose an expert can’t use the expert. The more meaningful question in Carrozza’s case was whether he was entitled to use Dr. Backman as an expert. There was no dispute that Carrozza made a timely disclosure of Dr. Backman.

Dr. Backman testified that he had no personal knowledge of the standard of care that applied to pharmacists. Carrozza argued that as an allergist, Dr. Backman understood whether a pharmacist should dispense Levaquin to a patient after being alerted of the patient’s allergy to quinolones.

The appellate court disagreed. While Dr. Backman is qualified to discuss the standard of care an allergist would follow, the question here is how a pharmacist should react when the pharmacist has inconsistent information about a customer’s possible allergy to a particular drug. Dr. Backman’s admission that he did not know the standard of care that applies to pharmacists made him unqualified to render an expert opinion.

Nor did Dr. Backman’s testimony establish his familiarity with the cause of Carrozza’s eye injury. Dr. Backman relied on Dr. Foster’s affidavit in forming the opinion that Levaquin caused the injury.

Experts are entitled to rely on the opinions of other experts to the extent that experts in the field would generally do so, but that rule does not permit experts to serve as a back door conduit to admit an expert opinion that is otherwise inadmissible. Since Dr. Backman had no expertise of his own in ophthalmology and was not familiar with the causes of an eye condition like Carrozza’s, he was not qualified to render an expert opinion as to the cause of Carrozza’s injury.

Lessons Learned

A standard of care expert is nearly always needed to prove a professional negligence claim. Lawyers risk exclusion of expert testimony if their expert does not have experience in the same field as the negligent professional. An allergist is unlikely to have significant knowledge about the standards that are routinely followed by pharmacists when they determine whether it is safe to dispense medications. A pharmacist would have been an appropriate expert on standard of care in Carrozza’s case.

Dr. Foster might have been an appropriate expert to prove that Levaquin caused Carrozza’s eye injury. However, Dr. Foster was not identified as an expert. Lawyers who are accustomed to filing cases in state court and following state rules of evidence should take note of the Carrozza case. When a lawsuit is removed to federal court, the federal rules of evidence apply, including rules governing the disclose of expert witnesses and their reports. The failure to follow those rules will doom a party’s ability to rely on an expert witness.


About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.