First Circuit Agrees Pharmacists Provide Services, Not Sell Goods

When a plaintiff sues a pharmacist for dispensing and selling a prescribed medication that allegedly causes an injury, is the claim based on the negligent provision of services or on the sale of a defective product? Most courts agree that it is the former, and recently the U.S. Court of Appeals for the First Circuit, while recognizing that this specific issue had not yet been addressed by the appellate courts in Massachusetts, joined the majority of courts in holding that view.

The case arose out of the plaintiff’s use of Levaquin, a prescription quinolone antibiotic. The pharmacy prevailed at the District Court level on a motion for summary judgment that resulted in the dismissal of all of plaintiff’s claims, including claims sounding in negligence and claims based on product liability.

In an opinion addressing a number of other issues as well—including the District Court’s denial of plaintiff’s remand motion and several expert-related discovery orders—the First Circuit upheld the dismissal of plaintiffs’ claims on summary judgment. Plaintiff’s negligence-based claims were properly dismissed because, as the First Circuit explained, plaintiff failed to proffer any non-excluded expert testimony to support them. That finding, while significant as supporting the point that a negligence-based claim against a pharmacist requires expert testimony, is of less interest to future cases because it is primarily fact-specific to this particular plaintiff’s failure to proffer sufficient expert testimony.

However, more applicable to other cases is the First Circuit’s conclusion that when a pharmacist dispenses and sells a prescription medication, that is primarily a provision of services and not the sale of a good. This means that claims based on a theory founded on a sale of goods—such as the breach of warranty claim asserted by plaintiff in this case—must necessarily fail.

In reaching this conclusion, the First Circuit noted that it was aligning with the majority of courts that have previously addressed this issue in other jurisdictions. Accordingly, attorneys who represent and defend pharmacists in cases such as this have another appellate-level opinion to which to cite in support of the argument that such claims are properly assessed as negligence-based claims.



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