Opinion
F085797
03-26-2024
CRISTIAN MACDONALD, a Minor, etc., Plaintiff and Appellant, v. VALLEY CHILDREN'S HOSPITAL, et al., Defendants and Respondents.
Ken Fitzgerald and Zishan Lokhandwala for Plaintiff and Appellant. Parichan, Renberg &Crossman and Michael L. Renberg for Defendant and Respondent Walgreen Company.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County. No. MCV083943 Sosi Chitakian Vogt, Judge.
Ken Fitzgerald and Zishan Lokhandwala for Plaintiff and Appellant.
Parichan, Renberg &Crossman and Michael L. Renberg for Defendant and Respondent Walgreen Company.
While the caption of this case refers to respondent as "Walgreen Company" the company is more commonly known as "Walgreens," and will be referred to as such throughout.
OPINION
SNAUFFER, J.
Cristian MacDonald, a minor, appearing by and through his guardian ad litem Andrew MacDonald, appeals from the judgment following the granting of a summary judgment motion filed by Walgreens. MacDonald argues the trial court failed to give him the appropriate inferences to which he was entitled as the non-moving party on summary judgment. As discussed below, we do not agree with MacDonald's argument, and affirm.
The complaint in this case was filed on August 6, 2020, against Valley Children's Hospital, Valley Children's Healthcare, Dr. Rachelle Wareham, Walgreen Company, and Zachary Dillon Fair, a pharmacist for Walgreens. The defendants are represented separately, with one counsel jointly representing Valley Children's Hospital, Valley Children's Healthcare, and Wareham on the one hand (the "Valley Children's Defendants"), and another jointly representing Walgreens and Fair (the "Walgreens Defendants") on the other hand. Both the Valley Children's Defendants and the Walgreens Defendants separately moved for summary judgment. However, the Valley Children's Defendants withdrew their motion for summary judgment on March 21, 2022. Further, MacDonald voluntarily dismissed his claims against Fair with prejudice at the hearing on the summary judgment motion. This appeal therefore concerns only Walgreens, which is the sole respondent.
BACKGROUND
The relevant facts here are largely undisputed. On August 12, 2019, MacDonald, who was then three years old, came to Valley Children's Hospital to have tubes placed in his ears, as well as for a tonsillectomy and adenoidectomy, all to be performed by Dr. Wareham. The procedure went well, and no complications were noted. The same day, MacDonald was discharged with a medication list, including ear drops and various pain medications, namely acetaminophen, ibuprofen, and oxycodone. The oxycodone dosage of five milligrams per five milliliters was to be administered every six hours, as needed. The discharge nurse went over the discharge instructions and explained the pain medications to MacDonald's parents. The nurse told MacDonald's parents, "they gave him the good stuff," referring to the oxycodone pain medication, and stated, "do not miss a dose."
MacDonald's parents filled the prescription at the Walgreens pharmacy located on the Valley Children's campus. MacDonald's father went into the pharmacy and was told it was very busy, and that it would take approximately an hour to fill the prescriptions. The family left, had lunch, and returned to the hospital to pick up the prescriptions. Father again went into the hospital to pick up the prescriptions while mother waited with him in the car. Father testified the pharmacy was still busy, and when he was handed the prescription, the counter person did not offer a consultation. Father returned to the car and mentioned it was busy, but did not tell mother whether or not a consult was offered.
Hereafter, we refer to MacDonald's parents simply as father and mother.
MacDonald returned home, where his mother exclusively administered the medications to him over the next few days. She affirmed she reviewed the labels and instructions for the medications before she administered them to MacDonald, and understood the oxycodone was to be given only as needed for moderate to severe pain. Mother also testified she attempted to comply with the instructions and gave him oxycodone only because he was in severe pain. In doing so, she relied upon the labels on the bottle and the discharge instructions she received from the nurse at the hospital.
Mother last administered oxycodone to MacDonald on August 14, 2021, at approximately 4:15 a.m. She went into his room at 6:30 a.m. and was unable to wake him. Shortly thereafter, an ambulance arrived at MacDonald's home and found him to be lethargic and unresponsive. A paramedic gave MacDonald a dose of Narcan, and he "woke up screaming." He was admitted to the hospital that same day, and was given further doses of Narcan for a suspected opioid overdose. He was stabilized over the next two days, at which point he was discharged from the hospital.
It was undisputed mother did not enter the pharmacy at any point, and only interacted with Walgreens over the phone to confirm the number of days for which the prescription could be filled. It was also undisputed the only information mother received from Walgreens was the information and warnings printed on the medications' labels. Mother testified she did not have any questions about the instructions on the medications' labels. MacDonald produced no evidence that the medications provided by Walgreens differed in any way from the doctor's prescription. It was also undisputed Fair was the pharmacist of record-referred to in pharmacy regulations as the "pharmacist-in- charge"-whose name would appear on the medication bottles, but did not provide the prescription medications to father. There is no evidence in the record showing Fair was even at the pharmacy at the time MacDonald's prescription was filled.
In the complaint, MacDonald brought the third cause of action, for negligence, against Walgreens. On September 12, 2022, the trial court issued a tentative ruling on Walgreens's motion for summary judgment, which it later adopted as its final ruling. It found MacDonald could not establish causation as a matter of law, because he could not identify any information Walgreens should have provided that would have prevented the incident from occurring. The court observed there was no evidence that any information that would have been relayed in a consultation, had one occurred, would have impacted the manner in which medication was administered to MacDonald. The court also found MacDonald failed to demonstrate that there was a triable issue of material fact as to causation, since only father went into the pharmacy, and only mother administered the medication. The court found MacDonald presented no evidence that a consultation with father would have had an impact on the incident caused by mother's administration of medication.
Walgreens filed evidentiary objections to MacDonald's expert evidence in the trial court. Initially, Walgreens objected to the declaration of Jon Bohland, MacDonald's expert witness, in its entirety, because Bohland's curriculum vitae was not attached to the declaration and the declaration did not otherwise establish Bohland's credentials as an expert. The trial court then permitted MacDonald to file an amended declaration from Bohland, setting forth his qualifications, which MacDonald did on July 14, 2022. Walgreens then filed amended objections, withdrawing its in toto objection to Bohland's declaration, but maintaining various objections to the conclusions Bohland reached therein. The court sustained seven of Walgreens's twelve objections to Bohland's declaration on various grounds. MacDonald did not raise any issues related to these evidentiary rulings in his opening brief on appeal and, as discussed below, has waived those issues he raises for the first time on reply. Moreover, even were we to reach the merits of these objections, we would find the trial court did not abuse its discretion in sustaining them.
ANALYSIS
I. Standard of Review
A party is entitled to summary judgment if "there is no triable issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)
Undesignated statutory references are to the Code of Civil Procedure.
"A defendant moving for summary judgment has the initial burden of showing, with respect to each cause of action set forth in the complaint, the cause of action is without merit." (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1101 (Leyva).) Thus, the defendant in that situation "bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar, supra, 25 Cal.4th at p. 850.) "To meet this burden, the defendant must show one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action." (Simmons v. Superior Court (2016) 7 Cal.App.5th 1113, 1124 (Simmons).) This showing can be made based on the plaintiff's" 'factually devoid discovery responses,'" (ibid.), or by introducing evidence which," 'if uncontradicted, would constitute a preponderance of evidence [i.e., show it is more likely than not] that an essential element of the plaintiff's case cannot be established.'" (Leyva, supra, 20 Cal.App.5th at pp. 1101-1102.) "A prima facie showing is one that is sufficient to support the position of the party in question. ... No more is called for." (Aguilar, supra, 25 Cal.4th at p. 851.)
The court reviews the evidence, and the reasonable inferences deducible therefrom, in the light most favorable to the non-moving party. (Aguilar, supra, 25 Cal.4th at p. 843.) Generally speaking, we "consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained." (§ 437c, subd. (c).) We need not abide by a trial court's patently erroneous evidentiary rulings on our review of summary judgment, because doing so would serve to insulate a decision perhaps dependent on obviously inadmissible evidence. (See Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 711-712.) However, we treat evidentiary rulings made by the trial court with significant deference, particularly if the ruling is not challenged on appeal, which typically leads to forfeiture of any claim of error thereon. (See Nirschl v. Schiller (2023) 91 Cal.App.5th 386, 396 fn. 3; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 852; Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014-1015 [sustained objections to evidence from which no issue on appeal is raised are treated as properly excluded]; Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 ["Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived."].)
We apply de novo review to an order granting summary judgment. (Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807, 813; Doe v. Good Samaritan Hospital (2018) 23 Cal.App.5th 653, 661.)" 'In practical effect, we assume the role of a trial court and apply the same rules and standards which govern a trial court's determination of a motion for summary judgment.'" (Simmons, supra, 7 Cal.App.5th at p. 1124.)
II. The Trial Court Did Not Err in Finding MacDonald Failed to Present Evidence that the Issue of Causation Required Jury Resolution
The trial court concluded MacDonald failed to provide sufficient evidence to demonstrate a dispute of material fact related to the element of causation on its single claim for negligence against Walgreens. Causation is a necessary element of any negligence claim. (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 352 fn.11; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 778.) This requires showing that, but for a defendant's breach of the standard of care, the plaintiff's injuries would not have occurred. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1240-1241; Mayes v. Brian (2006) 139 Cal.App.4th 1075, 1095.) "To establish but-for causation, the plaintiff must 'introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of [plaintiff's harm].'" (Modisette v. Apple Inc. (2018) 30 Cal.App.5th 136, 153.)
The trial court here observed Walgreens had met its burden to show MacDonald could not demonstrate causation, because the only negligence alleged against Walgreens in the complaint was the failure to consult. Walgreens demonstrated the discovery responses identified nothing father would have learned during a consultation which would have impacted how mother administered the medication. Further, the court noted Walgreens demonstrated the person who would have consulted with the pharmacist (father) was not the person who dispensed any medication (mother). Therefore, there was no evidence from which a jury could reasonably conclude that Walgreen's failure to consult was the cause of MacDonald's injuries.
Having found Walgreens carried its burden to set forth a prima facie case that MacDonald could not prove causation, the trial court then turned to MacDonald's evidence to review whether he could show there was a disputed issue of material fact on that element. The court noted MacDonald relied entirely on the expert declaration of Bohland to prove causation. Because most of Bohland's declaration was found inadmissible due to lack of foundation and personal knowledge, the court concluded MacDonald had failed to show any issue of material fact, and thus granted summary judgment in favor of Walgreens.
Our assessment is similar. Reviewing the evidence and argument submitted by MacDonald in opposition to the summary judgment motion, it is apparent MacDonald's focus was almost entirely upon establishing that Walgreens owed him a duty, and what that duty was. The sole statement on causation made in the opposition to summary judgment is that MacDonald's discovery responses "are code complaint [sic] and proper, and themselves attest to a causal link." No explanation is provided as to what information MacDonald's parents could have learned during a consultation which would have changed the way they administered the medication or otherwise averted his accidental overdose. The only evidentiary citations in this section of the brief were to Bohland's expert declaration, to which most of the objections were sustained.
MacDonald asserts the trial court deprived him of three specific inferences to which he was legally entitled on summary judgment. Of course, on summary judgment, the court must consider the evidence, and all "inferences reasonably drawn therefrom ... in the light most favorable to the opposing party." (Aguilar, supra, 25 Cal.4th at pp. 844-845.) MacDonald first argues the court wrongfully assumed his father would never dispense medication under any circumstances. Second, he contends the court improperly assumed his father (who did not dispense any medications) would not advise his mother (who did dispense the medications) about any warnings received. Lastly, he states the court erred by failing to assume Walgreens's agent-whoever that was, since it appears it was not Fair-could not have done something else, other than consult with the parents, to prevent the overdose. None of these arguments are persuasive.
Concerning the first two arguments, MacDonald fails to address the only issue on which summary judgment was granted, which is causation. Even assuming his father administered medication or would have conveyed any warnings or other instructions to his mother, he does not identify what Walgreens's agent could have told his parents that would have prevented the overdose. Even in briefing here, let alone in admissible evidence presented in the trial court, MacDonald fails to identify any warning, instruction, or cautionary statement that was missed because of the failure to consult, and how the absence of that warning caused him to overdose. This is a simple matter of but-for causation: MacDonald cannot identify anything that would have occurred in a consultation that would have prevented the overdose. Thus, even if we make all assumptions MacDonald requests, and assume both duty and breach on the part of Walgreens's agent, we still lack any explanation for how this would have prevented an overdose. The undisputed evidence here is that mother read the instructions and warnings, understood them, and followed them. MacDonald does not identify any additional information that, if provided during a consultation, would have prevented the overdose.
MacDonald's third argument-that the trial court failed to consider other actions the pharmacist could have taken beyond consulting-fails as well, because the complaint alleged no other negligent acts beyond a failure to consult. A plaintiff may not raise a new claim or theory in defense to a summary judgment motion that was not pleaded in the complaint. (California Bank &Trust v. Lawlor (2013) 222 Cal.App.4th 625, 637 fn. 3 ["A party may not oppose a summary judgment motion based on a claim, theory, or defense that is not alleged in the pleadings."]; see also Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250 [pleadings" 'set the boundaries of the issues to be resolved at summary judgment' "]; Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 444; Leek v. Cooper (2011) 194 Cal.App.4th 399, 406 [where plaintiff did not allege alter ego theory in complaint, defendant "was under no duty to negate an alter ego claim" on summary judgment]; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381 [" 'The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.' "].)
MacDonald contends a failure to consult claim was not the only claim he raised in the complaint. However, the complaint tells a different story. The complaint alleges one count of negligence against Walgreens and Fair, and states they "disbursed the [m]edications ... but did not provide a consultation with [father] to notify him on how the [m]edications should be administered or any dangers with the prescription and dosage. The error in not consulting with [father] was due to the negligence" of Walgreens.According to the complaint, "[r]easonably relying on the label and pursuant to the directions on the label, [MacDonald] consumed the [m]edications, resulting in an overdose." While MacDonald now argues Walgreens's pharmacist could have taken other actions, such as verifying the dosage and drug with the prescribing physician, or even questioning whether the physician should be prescribing it at all, this simply was not pleaded in the complaint. MacDonald cannot introduce new claims for the first time in opposition to summary judgment.
The complaint also asserts Walgreens and Fair owed a duty to MacDonald to "use reasonable care to see that the prescriptions for drugs were filled so as to be fit for human use." While it is unclear precisely what this allegation means, other than being a general articulation of the duty owed, MacDonald does not argue here and did not argue in the trial court that the medications provided by Walgreens were in some way not appropriate for use by humans.
Even were we to assume MacDonald had alleged much broader claims of negligence than appear in the complaint, he still fails to articulate how this alleged negligence caused his injury. In his opposition to the summary judgment motion, MacDonald claimed a pharmacist-and through respondeat superior, Walgreens-had a duty to confirm the veracity and safety of the prescribed medication and the dosage with the prescribing physician or their staff. However, assuming this is true, MacDonald points to no evidence explaining how doing so would have led to a different result. That is, he identifies no evidence showing the prescribing doctor would have written a different prescription or provided different instructions or dosages if contacted by one of Walgreens's employees. Even under the expanded theory MacDonald now asserts, there simply is not sufficient evidence that Walgreens caused his injuries to warrant this matter proceeding to trial.
III. MacDonald May Not Raise New Issues For the First Time in His Reply Brief
MacDonald raises a host of new issues for the first time in his reply brief. Among these, he now argues that each of the sustained objections to the declaration of Bohland- seven separate evidentiary rulings-should be reversed. He also argues he should have been permitted to amend his opposition to the motion for summary judgment further under subdivision (h) of section 437c.
One of the more well-established rules of appellate practice is that new issues may not be raised for the first time in reply, absent good cause for failure to present them earlier. (High Sierra Rural Alliance v. County of Plumas (2018) 29 Cal.App.5th 102, 111 fn. 2; Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 (Reichardt).) Fairness requires the appellant to raise all of his arguments in the opening brief to afford the respondent an opportunity to argue against them, and failing to raise an issue until the reply brief prevents the respondent from opposing it. (American Indian Model Schools v. Oakland Unified School Dist. (2014) 227 Cal.App.4th 258, 275-276; Reichardt, supra, 52 Cal.App.4th at pp. 764-765; American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.)
The opening brief here raised no issues related to the admissibility of Bohland's declaration. Nor did it raise the issue of permitting further discovery under subdivision (h) of section 437c, which it appears MacDonald also did not raise in the trial court, which is a separate reason the latter issue should not be considered. (See, e.g., Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1519; McKee v. Orange Unified School Dist. (2003) 110 Cal.App.4th 1310, 1320; Overgaard v. Johnson (1977) 68 Cal.App.3d 821, 826.) MacDonald presents no explanation, let alone good cause, showing why these issues were not raised initially.
That section states, in relevant part: "If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just." (§ 437c, subd. (h).)
Even were we to reach the merits, we would not find them persuasive. Trial court evidentiary rulings are generally reviewed for abuse of discretion, and the weight of authority applies this standard even on review of a summary judgment motion, which is otherwise reviewed de novo. (Strobel v. Johnson &Johnson (2021) 70 Cal.App.5th 796, 810; Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 226 (Alexander); Kincaid v. Kincaid (2011) 197 Cal.App.4th 75, 82; Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.) "[E]videntiary objections based on lack of foundation, qualification of experts, and conclusory and speculative testimony are traditionally left to the sound discretion of the trial court." (Alexander, supra, 23 Cal.App.5th at p. 226.)" '[T]he appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered.'" (Ibid.)
All of the trial court's sustained objections to Bohland's declaration were based on a lack of foundation and/or personal knowledge. Expert testimony must be linked to the facts of the case, and cannot consist merely of generalizations. (People v. Renteria (2022) 13 Cal.5th 951, 968 [expert testimony on gangs must be "grounded in specific facts that show the defendant acted on behalf of a gang rather than for personal reasons"]; Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 770 [" 'We construe this to mean that the matter relied on must provide a reasonable basis for the particular opinion offered, and that an expert opinion based on speculation or conjecture is inadmissible.' "]; Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 740 ["If the expert's opinion is not based on facts otherwise proved or if the opinion assumes facts contrary to the evidence, 'it cannot rise to the dignity of substantial evidence.' "].) Two of the statements in Bohland's declaration were predicated upon Bohland's apparent belief that Fair was actively involved in filling the prescription in question, even though it was undisputed he was not. Two additional objections were sustained because Bohland provided no basis to believe the pharmacist-in-charge is personally liable for every prescription picked up from a pharmacy. Three further objections were sustained because Bohland provided no basis grounded in case-specific facts for his opinion that there was a causal link between the consultation that did not occur here and the outcome of MacDonald's drug therapy. We have reviewed Bohland's declaration, and Bohland does not explain what the causal link is here, but rather simply states there is one; such a general conclusion is speculative and inadmissible. It was not an abuse of discretion for the trial court to sustain these objections.
California regulations require each pharmacy to designate a pharmacist-in-charge, which the parties refer to as a pharmacist of record, who bears ultimate regulatory and supervisory responsibility for the daily operation of the pharmacy. (Cal. Code Regs., tit. 16, § 1709.1, subd. (a).) The pharmacist-in-charge is required to complete various reporting and supervising requirements, pursuant to state regulation. (See, e.g., Cal. Code Regs., tit. 16, §§ 1715 [requiring self-assessment of pharmacy by pharmacist-in-charge], 1715.1 [requiring self-assessment by pharmacist-in-charge of automated drug delivery systems], 1715.6 [determination of significant losses of drugs].) Nothing in the regulations suggests that each pharmacy may only employ one pharmacist, and the duty to consult is placed by regulation upon the pharmacist filling the prescription for a particular patient, not the pharmacist-in-charge. (Cal. Code Regs., tit. 16, § 1707.2 ["A pharmacist shall provide oral consultation to his or her patient ...], italics added.)
Concerning the section 437c, subdivision (h) argument, we note again that MacDonald points to nowhere in the record where he requested a delay in the ruling to provide time for him to ascertain further facts necessary to oppose the summary judgment motion. Moreover, there is no reason to assume such a request would have been granted. A declaration in support of such a request must show" '(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts.'" (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.) MacDonald does not identify what types of facts are needed that he does not have, nor does he explain why the court should believe such facts exist or why additional time was needed to obtain them. The complaint in this case was filed on August 6, 2020, and Walgreens's motion for summary judgment was filed on March 15, 2022. We have been given no explanation why 19 months is not sufficient time in which to conduct discovery. Therefore, this argument would fail on the merits, even were we to reach it.
DISPOSITION
The trial court's summary judgment in favor of Walgreens is affirmed. Walgreens is awarded its costs on appeal.
WE CONCUR: DETJEN, Acting P. J., MEEHAN, J.