fifteen namely his consumption of level quint on a prescription filled by defendant c v s and days later and nine through a demand for relief was sent out entered two years later as i mentioned the negligence theory is advanced in one count product liability  the nd and chapter ninety three which would be section nine the consumer protection act and the rd count unlike the last case you're on is heard where the clearly erroneous standard applies  novo hearing with both parties having a fresh start before this court with inferences from evidence per law to be decided  issue that korea decided because if the court decided it based on duty assumed and there is evidence in the case and by that would promote a duty assumed decision here also now to me and corrodes his affidavit that c b s had informed him that he was allergic to sulfa but never informed him that he was allergic to on the day of the film and of the prescription and was meant taken the next day to martin hospital where he broke out and there was a suspicion of what is known as stevens johnson's syndrome and that and they can be quite severe and causes headaches and blistering of skin there is a disclosure and disclosure there is a disclosure of the korea caves and you can see it in the record appendix where the plaintiffs sets forth that he intends to use the career case to impose liability s based on the holding in korea which was that there is a duty to the not just notify the patient but to notify the pharmacist that pharmacies taking an important role and the total team effort for patient care from prescribing doctor to the filling pharmacist and are on page  pharmacist failed to act on specific knowledge of the pharmacist possess regarding danger to it to take a look customer a plank of says that that sits there with what took place here medications that mr corrosive was taking the rd was based upon his condition and that condition had to do with this kind of situation which is separate from and it is the testimony of the finest sis that he claims that he did see the warnings but then also also are this i mean identified that is without an author so called entry in the computer there is no evidence that they computed information is they stand to assure that it was in there in two thousand and nine are any time before the fulfilling of this prescription and that as a result of reading that healing pay the unilateral decision without consulting mystic or rosa without giving him a printout of those warnings nor did he consult with doctor  syndrome is really a he was aware of it but did not have sufficient on hand experience with such cases and it was also an issue of the standard of  the expert dr backman testifying that as an analogy is on the he is that it's common occurrence for pharmacist the caught him up and he changed prescriptions and in this particular case there was no outstanding reason and i don't know all right so you've reserve some time we'll we'll hear from mr mahoney and then we'll see where the argument takes a stink you so much mr brady thank you the st motion was in motion of court by c p s to preclude plaintiff's identified expert dr backman in on that which was allowed in on that issue the standard review i believe is whether there was abuse of discretion in deciding that motion the lower court decided that dr back means offered testimony would be excluded for several reasons one was his limited knowledge of the underlying record the nd reason was his lack of familiarity with the standard of care of a pharmacist and the rd was due to his lack of familiarity images in general and stevens johnson syndrome in particular and what the court ruled was that it is mina fess lee clear the doctor back and is not qualified to offer an expert opinion on either the appropriate standard of care for a pharmacist or whether cruise's consumption of leverkusen causes injuries particular syndrome that is the role of the lower court to make those make those judgments in this court laid out its rationale for allowing the motion now once that motion was allowed i would suggest a summary judgment decisions this court made flowed naturally from that that of course would be reviewed on a standard of over review there were three counts in the complaint one was the hunt for negligence one for breach of warranty one for ninety three dollars a taking the breach of warranty st what the lower court concluded was that a pharmacy is practitioner is a professional judgment of the pharmacist and i would suggest that a professional judgment goes hinted he and with the fact that it is a service being provided by an educated licensed reason to treat pharmacies differently from other retailers of commercial products in the cotton case focused on the fact that the pharmacist is not shoes which product to make available that patients don't choose which products to buy that pharmacists don't have discretion to alter or refused to fill a prescription based on an analysis of the recent benefits of that so i think that there are certainly in the regulations in massachusetts  there are many states that have considered this issue in or in a court california mean south carolina new york federal court applying mississippi law connecticut arkansas law all w considered it have said that what a pharmacy does is a service and therefore it's not subject to product liability in most states here breach of warranty of course here in massachusetts and there are several reasons i don't need to go in the mirror in the brief but several reasons where that distinction is made where where this is a service if that is the case then the breach of warranty statute in massachusetts which requires a sale to invoke it would not be applicable in summary judgment would be appropriate though the other courts talk about public policy but what they all him for size is that there is still a course of redress which would be of course a negligence claim but the negligen claim here lower court ruled appropriately requires that there be some expert to testify that they are familiar with the standard of care of the average pharmacist in that in their opinion the standard of care was breached interesting read the korea case which is also a case involving a summary judgment the plaintiff in a case did have an expert prepared to testify that the failure to notify  lower court concluded that it is beyond a lay person's knowledge to understand what a pharmacist does in the judgments they make here for example a heart stop warning which is not a mandate not to give the prescription it's a mandate to look further into what is going on with this particular patient their hearts to what the problems is did here was indeed to look further into the file note that there was a note in the getting this patient was not allergic to quinolones it also noted that understood to taking one is dispensing the drug because the reaction the other is in a way of just aliar which would be even while dispensing it not notifying the patient of the evidence both of those things because the one thing that's a just a little harder for me to see is what is the reason for not when the pharmacist has in their records evidence of the patient having been flagged for the allergy not informing patients of that fact you know the two part answer that question number one is the lower court ruled that there was not a failure to warrant case here because it hadn't been pled but putting that aside for purposes of your question i still think that that judgment of whether number one you go to fill the prescription or number two you are going to affirmatively tell a patient about this issue i still think that goes beyond what a lay person would recognized or be able to determine is standard of care for a pharmacist i understand what you're saying why not it would be the question but i still believe that when you talk about whether there's the negligence on the part of the pharmacist even for failure to do that if that's the question that would require someone from ill year with the standard of care what pharmacists do in those situations ok and on that nd point when you referenced that the s j c decision you said they had a pharmacy they had an expert the testimony of the plaintiff in that particular case they noted it was in her prepared to testify and given an affidavit for the summary judgment of what the standard of care required with respect to this point about the notification it was with respect to the don't occasion in that case of a the need for an authorization from the practitioner from the doctor to for them to fill the prescription and is  been brought up as part of a summary judgment as that the lower court said the reading of the amended complaint clearly does not include any language that could be suggesting that they're talking about a failure to warrant it certainly does include language that it was i'm trying to think in our in our motion itself i would say that at that point in time in the proceedings we were aware of not from an amended complaint not from a request are various district court opinions including one apparently in massachusetts which should basically stand for the proposition that the amount set forth in the man letter suffices fo questions well all right we'll hear from mr grad appropriate to the appellate court so that there isn't even  ending the handling of the similar cases in the from clips at the announcement could you just address it if you dress the district court's finding highlighted by your opposing counsel that the there was a ledge negligence in terms of the distribution of the love a coin to him as it had been found that he had counsel or i get the motions in the court below and then that pose certain issues but the plaintiff also wish to use dr foster as an expert the medicine and then if you say well what could i have done you could have called a doctor you could have notified the patient you could have given some kind of warning that's out of negligence but i submit you're right it becomes different on the product liability leases in that you can have a say the product is defective by virtue of a failure to warn so it performs the functions that supposed them but endangered somebody in the use and did you warn of it that you adequately want to hear plaintiffs here says that it was totally information contained that the defendant was aware about that the warning that they had they didn't need in the october two thousand eight hundred dollars disclosure not only of the principle of korea but the citing of the case in korea that is filed in court with and copy electronically served on counsel that career is going to be used having been decided that juror home too hold liability as c b s now is it is fulfilling a sufficient duty to say nothing when the command of korea and two thousand and eighteen and by the way there's no question it applies to this incident because korea was a two thousand not for me thank you all right very good thank you very much thank you rimes that concludes the arguments for today a session of the honorable united states court of appeals is now recessed until the next session of the court god save the united states of america and this our bill court counsel you may disconnect from the meeting