Judge: H. Jay Ford, III, Case: 20STCV38817, Date: 2022-10-20 Tentative Ruling

Case Number: 20STCV38817    Hearing Date: October 20, 2022    Dept: O

  Case Name:  Hatanian, et al. v. ACE Medical Pharmacy, et al.

SUBJECT:                MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Defendants David Yashar, Pharm.D. and DSY Pharmacy Inc. d/b/a ACE Medical Pharmacy  

RESP. PARTY:         Plaintiffs Moussa Hatanian and Soheila Akhlashy

TENTATIVE RULING

            Defendants David Yashar and DSY Pharmacy Inc. d/b/a Ace Medical Pharmacy’s Motion for Summary Judgment is DENIED.  Defendants fail to negate Plaintiffs’ allegations of breach and causation. 

            Plaintiff’s Objections to Defendants’ Evidence—OVERRULE. Yashar’s statement that he did not recall Decedent specifically does not render his opinion lacking in foundation.  Yashar testifies to habit and custom and the testimony is admissible per Evidence Code §1105.  Simonian’s declaration does not offer improper expert testimony.

            Defendants’ Objections to Plaintiff’s Evidence—OVERRULED.  For purposes of opposing summary judgment, Dr. Goldenberg’s expert opinion is sufficient to raise triable issues of  fact regarding breach of the standard of care and causation.

I.  Defendants fail to negate Plaintiffs’ allegations of breach and causation

            A.  Yashar Declaration

            Yashar testifies that in accordance with habit and custom, (1) he checked Decedent’s patient profile on the CURES database, (2) counseled Decedent by way of an oral conversation regarding the medications prescribed to him and discussed with him the name of the medications prescribed, the number of pills dispensed, how to take the medication, how to store the medication, the importance of compliance, counseled him on the sedative side effect of each medication and the respiratory depressive effect of Hydrocodone and Xanax; and (3) provided Decedent with typewritten documents regarding Patient Education regarding the medication.  See Dec. of D. Yashar, ¶¶7-12. 

            Yashar does not claim that the standard of care requires a pharmacist or a pharmacy to contact a prescribing doctor to alert them of possible drug interactions between Alprazolam and Hydrocodone.  See Dec. of D. Yashar, ¶16.  Yashar testifies that counseling is sufficient given that Decedent was on these medications at the exact same dosages since at least August 2019.  Id.  Yashar argues that he determined in his discretion that Narcan was not necessary based on the dosages of the medications and the length of time Decedent had been taking the exact same medication.  Id. at ¶19. 

            Yashar opines that he complied with the applicable standard of care.  Yashar opines that his alleged breaches therefore could not have caused Decedent’s death. 

            Yashar fails to fully negate Plaintiffs’ allegation of breach of the standard of care.  Plaintiffs allege Yashar breached the standard of care by (1) failing to check the CURES database; (2) failing to offer a prescription of naloxone hydrochloride or another drug approved by the FDA for the complete reversal of opioid induced respiratory depression; (3) failing to provide education to Decedent consistent with the standard of care on opioid overdose prevention and the use of naloxone hydrochloride or other approved drug for reversal of opioid-induced respiratory depression; (4) failing to provide adequate counseling regarding the potential hazards associated with using both medications; (5) failing to adequately ensure Decedent’s safety when taking the Prescriptions at the recommended doses; and (6) failing to confer with Decedent’s doctors concerning the potential harmful interaction between the Prescriptions.  See Complaint, ¶¶14 and 22-24. 

            Yashar admits he never offered Decedent naloxone hydrochloride or another drug approved by the FDA for the complete reversal of opioid induced respiratory depression.  See Dec. of D. Yashar, ¶19.  Yashar testifies that he did not offer naloxone to Decedent, because in his discretion, he did not believe it was necessary to offer it to Decedent based on Decedent’s familiarity with the medications.  Id.  

            However, Yashar does not testify that the applicable standard of care did not require him to offer Decedent naloxone.  Yashar also does not deny that B&PC §741(a)(1) applies to him.  Under B&PC §741(a)(1), when prescribing an opioid or benzodiazepine medication to a patient, a prescriber shall offer a prescription of Naxolone. 

            Likewise, Yashar does not testify that he provided Decedent with education consistent with the standard of care on opioid overdose prevention and the use of naloxone hydrochloride or other approved drug for reversal of opioid-induced respiratory depression.  Yashar attests to the information he provided Decedent during the oral consultation and the typed written notices included with the medication.  See Dec. of Yashar, ¶¶9, 10.  The information did not include information regarding overdose prevention and use of naloxone specifically for reversal of opioid induced respiratory depression.  Id.  Yashar also does testify that the applicable standard of care did not require him to provide such education or that B&PC §741(a)(2) does not apply to him.   

            As such, Yashar does not fully negate Plaintiffs’ allegations of breach of the applicable standard of care.  Yashar fails to negate Plaintiffs’ allegation that Yashar breached the applicable standard of care by failing to offer Naxolone to Decedent at the time of filling the prescription or educating him regarding overdose prevention and use of naloxone for reversal of opioid-induced respiratory depression. 

            In addition, Yashar’s testimony on the element of causation is based on his statement that Defendants did not breach any applicable standard of care.  Because Yashar fails to fully negate the allegation of breach, his testimony regarding lack of causation fails as well. 

            B.  Simonian Declaration

            The declaration of Raffi Simonian fails to negate Plaintiff’s allegations of breach for the same reasons as Yashar’s declaration.  Simonian’s declaration is silent on Plaintiffs’ allegation that Yashar breached his duty of care by failing to educate Decedent regarding overdose prevention, including use of Naxolone. 

            Simonian testifies that the standard of care in California does not require a pharmacist to offer Narcan when Xanax and Norco have been prescribed at the dosage levels prescribed for the Decedent. Simonian does not address the impact of B&PC §741(a)(1).  Considering the statutory obligation under B&PC §741(a)(1) to offer Naxolone and educate patients on overdose prevention, specifically with Naxolone, Simonian’s testimony, at most, merely raises a triable issue of fact regarding the applicable standard of care.

            Simonian’s expert opinion regarding causation is based on his opinion that Defendants did not breach any applicable standard of care.  However, Simonian’s opinion does not account for the mandaotry obligation to educate a patient on overdose prevention, specifically Naxolone, under B&PC §741(a)(1). Simonian’s expert declaration fails to negate the allegation of causation.

            Simonian states that Decedent was offered Naxolene in September 2019 and refused the prescription.  See Dec. of Simonian, ¶21.  The fact that Decedent was offered Naxolene in September 2019 does not negate the allegation that Defendants’ failure to offer Naxolene on 10-1-19 caused Defendants’ death. 

            Simonian’s declaration fails to negate Plaintiffs’ allegations of breach and causation.  Defendants fail to satisfy their burden as moving parties with Simonian’s declaration. 

            C.  Reliance on Defendant Forest’s expert declaration of Sean Nordt, MD, PharmD

            On reply, Defendants Yashar and Ace Pharmacy argue that Sean Nordt’s expert declaration submitted on behalf of Defendant Forest negates Plaintiffs’ allegations of causation. Defendants cannot raise an argument for the first time on reply.  More importantly, Sean Nordt’s expert opinion was submitted on Forest’s behalf and he opined that nothing Forest did or failed to do caused Decedent’s death.  Nordt did not offer any opinion as to Defendants Yashar and Ace Pharmacy.

II.  Plaintiffs raise a triable issue of fact as to breach of the applicable standard of care and causation.

            Even if Defendants had fully negated Plaintiffs’ allegations of breach of the standard of care, Plaintiffs’ expert Goldenberg raises a triable issue of fact as to breach.  Goldenberg testifies that (1) Yashar’s failure to call Kurhana and Forest regarding the concurrent dispensing of Xanax and Hydrocodone was a deviation from the standard of care; (2) Decedent’s prior use of these drugs did not obviate the need for Yashar to contact the two prescribing physicians; (3) assuming that the Decedent was sufficiently familiar with the dangers of the drugs deviated from the standard of care; and (4) Yashar’s failure to offer Naxolone was a breach of the standard of care.  See Dec. of S. Goldenberg, ¶¶10, 13, 15-17, 24.

            For purposes of opposing summary judgment, Goldenberg’s expert opinion is sufficient to raise a triable fact regarding causation.  Plaintiff “is entitled to all favorable inferences that may reasonably be derived from [plaintiff’s expert’s] declaration” (Hanson v. Grode (1999) 76 Cal.App.4th 601 (the trial court erred in finding Plaintiff’s expert medical opinion lacked a factual basis -  summary judgment in favor of defendant reversed.)  “[T]he rule [is] that ... we liberally construe the declarations for the plaintiff's experts.” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125-128 (summary judgment in favor of defendant reversed - trial court erred in finding Plaintiff’s medical expert opinion did not have a “detailed reasoned explanation” rejecting the application of that requirement to expert declarations submitted in opposition to summary judgment; see also Garrett v. Howmedica Osteonics orp. (2013) 214 Cal.App.4th 173, 189, 153 Cal.Rptr.3d 693 [“a reasoned explanation required in an expert declaration filed in opposition to a summary judgment motion need not be as detailed or extensive as that required in expert testimony presented in support of a summary judgment motion or at trial”].)

Case Name:  Hatanian, et al. v. ACE Medical Pharmacy, et al.

SUBJECT:                MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Defendant Christine D. Forest, MD

RESP. PARTY:         Plaintiffs Moussa Hatanian and Soehila Akhlashy

TENTATIVE RULING

            Defendant Christine D. Forest, MD’s Motion for Summary Judgment is DENIED. 

Defendant’s Evidentiary Objections

Defendant’s Objection No. 1 to Dec. of Peitruska—SUSTAIN based on Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742–743 (expert medical witness's declaration, setting forth facts based on review of records which were not properly before the court, did not meet the burden of production of evidence required to support summary judgment.)

Defendant Forest’s Objections to Dec. of Lymberis

Nos. 2-7—OVERRULED. For purpose of opposing a summary judgment, the foundation for Dr. Lymberis expert opinion regarding causation is sufficient to raise triable issues of fact

I.  Defendant Forest submits admissible expert evidence negating the element of causation

            Plaintiff alleges that Defendant Forest breached the applicable standard of care by (1) failing to offer a prescription of naloxone hydrochloride or another drug approved by the US Food and Drug Administration for the complete or partial reversal of opioid-induced respiratory depression; (2) failure to provide education to Decedent consistent with the standard of care on opioid overdose prevention and the use of naloxone hydrochloride or other approved drug for reversal of opioid-induced respiratory depression; and (3) failure to properly check the CURES database when prescribing a Schedule II-IV controlled substance and run a Patient Activity Reprot when prescribed. See Complaint, ¶¶22-23.  Defense experts Nordt and Freeman’s opinions are based on these complaint allegations.  See Dec. of S. Nordt, ¶7; Dec. of D. Freeman, ¶7.

            A.  Freeman Declaration

            Defendant’s expert, Freeman explains the standard of care did not require Forest to prescribe or recommend naloxone, because a person who is in the midst of overdose would not realize the need for naloxone.  See Dec. of Freeman, ¶13.  Freeman also explains that naloxone has only recently been given to opiate consumers who use in groups.  Id.

            Freeman’s testimony regarding the standard of care fails to rebut Plaintiff’s allegation of breach.  Freeman testifies that Forest was not required by the applicable standard of care to prescribe or recommend naloxone to Decedent.  Id at ¶13.  However, Plaintiff does not allege that the standard of care under B&PC §741 required Forest to “recommend or prescribe” naloxone.  B&PC §741 required Forest to “[o]ffer the patient a prescription for naloxone hydrochloride or another drug approved by the United States Food and Drug Administration for the complete or partial reversal of opioid-induced respiratory depression” and “consistent with the existing standard of care, provide education to Decedent consistent with the standard of care on opioid overdose prevention and the use of naloxone hydrochloride or other approved drug for reversal of opioid-induced respiratory depression.”  See B&PC §741(a)(1) and (2); Complaint, ¶¶22-23. Freeman’s opinion therefore does not negate the Plaintiff’s allegation of breach pursuant to B&PC §741. 

            In addition, even if Freeman’s testimony regarding the applicable standard of care were considered, Freeman’s opinion would not negate Plaintiff’s allegation that Forest was required to comply with B&PC §741.  Because the duty is statutory, Freeman’s opinion would at best create a triable issue as to whether the statute or Freeman’s opinion created the applicable standard of care. 

            The same reasoning applies to Freeman’s opinion that the applicable standard of care did not require Forest to check the CURES database.  Forest as a prescribing physician was subject to Health & Safety Code §11165.4, which imposes a mandatory duty on a health care practitioner.  A health care practitioner “shall consult the patient activity report or information from the patient activity report obtained from the CURES database to review a patient's controlled substance history for the past 12 months before prescribing a Schedule II, Schedule III, or Schedule IV controlled substance to the patient for the first time and at least once every six months thereafter if the prescriber renews the prescription and the substance remains part of the treatment of the patient.”  Freeman’s testimony that Forest was not required to comply with H&S Code §11165.4 at best creates a triable issue of fact, but it does not negate the allegation that the standard of care required compliance with H&S Code §11165.4. 

            Freeman’s expert declaration therefore fails to negate Plaintiff’s allegation that the applicable standard of care required Forest to comply with B&PC §741 and H&S Code §11165.4. Forest also does not claim that she complied with either B&PC §741 or H&S Code §11165.4.  See SSUMF Nos. 1-16 (consultations but no reference to naloxone), 17 (admitting that Forest did not check CURES database).  Triable issues of fact therefore remain as to the applicable standard of care.

            Freeman also opines that Forest’s failure to check the CURES database and her prescription of Xanax were not the proximate cause of Decedent’s death.  Freeman explains that checking the CURES database would not have raised any red flags that Decedent was abusing Xanax or Norco, or that he was doctor-shopping in an effort to obtain prescriptions.  See Dec. of Freeman, ¶16.  Freeman also explains that Decedent’s death was not caused by the combined effects of Norco and Xanax from overdose of Norco (hydrocodone).  See Dec. of Freeman, ¶17.  Freeman opines that, based on the prescriptions written by both Khurana and Forest and Decedent’s blood levels at death, Decedent was not taking the medications as prescribed by either Khurana or Forest.  Id.  Freeman opines that to a reasonable degree of medical probability, no negligent act or omission by Forest caused or contributed to Hatanian’s death.  Id.

            Freeman also opines that a prescription or recommendation of naxolone would not have prevented Decedent’s death.  Freeman concedes that naxolone can reverse an opioid overdose, but opines that by the time Decedent would have thought to use it, he would likely have been unconscious.  See Dec. of Freeman, ¶13.   

            Freeman testifies that, to a reasonable degree of medical probability, no negligent act or omission by Forest caused or contributed to Decedent’s death.  See Dec. of Freeman, ¶¶15 and 17.  Freeman’s expert opinion negates Plaintiff’s allegation of causation.  Defendant Forest therefore satisfies her burden on summary judgment by negating the element of causation.

            B.  Nordt Declaration

            Defense expert Sean P. Nordt, MD, PharmD offers an expert opinion on the element of causation alone.  Nordt opines that, to a reasonable degree of medical probability, no negligent act or omission by Forest caused or contributed to Decedent’s death.  See Dec. of S. Nordt, ¶13.  Nordt explains that nothing Forest did or failed to do contributed to Decedent’s death, because Decedent did not take the medication as prescribed.  Id. at ¶¶12-13.  Nordt opines that, had Hatanian taken the drugs as prescribed by Khurana and Forest, he would not have died of an overdose of hydrocodone.  Id at ¶13.  Nordt states that, according to the autopsy report, Khurana’s prescription for Norco was filled on 10-1-19 with 42 tablets, of which only 2 remained in the bottle at the time of Decedent’s death on 10-13-19.  Id.  Nordt disagrees that the Xanax was the cause of Decedent’s death.  Id. at ¶¶12-13. 

            Nordt’s declaration negates the causation element of Plaintiff’s wrongful death claim.  Defendant Forest therefore satisfies her burden on summary judgment by negating the element of causation.

II.  Plaintiff’s expert testimony of Dr. Maria Lymberis raises a triable issue of material fact as to causation.

            Lymberis testifies that, “Based on Dr. Forest’s substandard care by her failure to review the CURES report, regular concurrent prescription of Xanax while the decedent was also taking Opiates, failure to properly warn the decedent of the dangers of the concurrent use of the two classes of medications, and failure to consult with the Orthopedic Surgeon, it is my opinion based on a reasonable degree of medical probability, that Dr. Forest’s care of the decedent was a contributing factor to his death.”  See Dec. of M. Lymberis, ¶25.  Lymberis testifies that, “Had Dr. Forest communicated with the Orthopedic Surgeon, in the care of this patient, they could have discussed alternative solutions minimizing the risk involved in the concurrent prescription of Opiates and Xanax.”  Id. at ¶26.

            The Court overrules Defendant Forest’s objections to ¶¶25-26 of Lymberis’s declaration.  For purposes of opposing summary judgment, Dr. Lymberis’ expert opinion is sufficient to raise a triable fact regarding causation. Plaintiff  is entitled to all favorable inferences that may reasonably be derived from Dr. Lymberis’ declaration. (Hanson v. Grode (1999) 76 Cal.App.4th 60, 609-610 (the trial court erred in finding Plaintiff’s expert medical opinion lacked a factual basis -  summary judgment in favor of defendant reversed.)  “[T]he rule [is] that ... we liberally construe the declarations for the plaintiff's experts.” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125-128 (summary judgment in favor of defendant reversed - trial court erred in finding Plaintiff’s medical expert opinion did not have a “detailed reasoned explanation” rejecting the application of that requirement to expert declarations submitted in opposition to summary judgment; see also Garrett v. Howmedica Osteonics orp. (2013) 214 Cal.App.4th 173, 189, 153 Cal.Rptr.3d 693 [“a reasoned explanation required in an expert declaration filed in opposition to a summary judgment motion need not be as detailed or extensive as that required in expert testimony presented in support of a summary judgment motion or at trial”].)

  Case Name:  Hatanian, et al. v. ACE Medical Pharmacy, et al.

SUBJECT:                MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Defendant Sanjay Khurana, MD

RESP. PARTY:         Plaintiffs Moussa Hatanian and Soehila Akhlashy

TENTATIVE RULING

            Defendant Sanjay Khurana, MD’s Motion for Summary Judgment is DENIED.  Defendant’s Objections to the Declaration of Goodstein are SUSTAINED as to Objections 6, 7 and OVERRULED as to Objections 1-5, 8-20. 

I.  Defendant Khurana fails to satisfy his burden on summary judgment

Where a defendant seeks summary judgment or adjudication, they must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.”  See Code of Civil Procedure §437c(o)(2).)  Here, Khurana moves for summary judgment based on the elements of breach and causation. 

Khurana fails to negate Plaintiffs’ allegations of breach.  Khurana only addresses whether his treatment of decedent fell below the standard of care based on (1) the failure to offer a prescription of naloxone hydrochloride or another drug approved by the US Food and Drug Administration for the complete or partial reversal of opioid-induced respiratory depression as required under B&PC §741; and (2) the failure to properly check the CURES database.  Khurana fails to address Plaintiffs’ allegation that Khurana breached the standard of care when he failed to provide education to Decedent consistent with the standard of care on opioid overdose prevention and the use of naloxone hydrochloride or other approved drug for reversal of opioid-induced respiratory depression.  See Complaint, ¶22. 

Khurana’s expert opinion only addresses whether Khurana’s breached the standard of care by (1) failing to check the medications being prescribed by other providers by obtaining a CURES report when prescribing to decedent opioid medications and (2) failing to offer the decedent naloxone or another appropriate opioid reversal agent.  See Dec. of M. Spoonamore, ¶7.  Spoonamore does not address whether Khurana breached the standard of care by failing to provide education to Decedent consistent with the standard of care on opioid overdose prevention, as required under B&PC 741(a)(2). 

As such, Khurana fails to fully negate Plaintiffs’ allegations of breach.  For the same reason, Khurana fails to negate the allegations of causation.  Spoonamore fails to address Plaintiffs’ allegations of breach and causation based on Khurana’s failure to educate Decedent as required under B&PC §741(a)(2). 

Similarly, Khurana’s evidence that he complied with B&PC §741(a)(1) (requirement that prescriber offer patient for naloxone hydrochloride or another drug approved by FDA for complete or partial reversal of opioid induced respiratory depression) and checked the CURES database does not fully negate Plaintiffs’ allegations of breach.  Elaine Vink, Khurana’s physician’s assistant, testifies that she checked the CURES database prior to prescribing the medication to decedent. See Defendants’ Evidence ISO of MSJ, Dec. of E. Vink, ¶¶5-7.  Vink also testifies that she offered decedent a prescription for Narcan, which is a reversal agent and antidote nasal spray.  Id. at ¶6. 

Vink testifies that she discussed with decedent the “risks, benefits, and alternatives of narcotic medications, including the risk of overdoes, and that she should be aware of the power of narcotics.”  Id.  Vink’s testimony does not clearly negate Plaintiffs’ allegation that Khurana failed to educate Decedent on “opioid overdose prevention” consistent with the applicable standard of care.  First, Vink provides not details regarding what her counseling regarding the “risk of overdose” consisted of, nor does she state that her counseling complied with the standard of care applicable to patient education on opioid overdose prevention.  Second, Spoonamore does not offer an opinion on whether Vink’s counseling of decedent on the risk of overdose complied with the standard of care applicable to patient education on opioid overdoes prevention.  There is therefore still a triable issue of fact regarding whether Khurana breached his duty to educate Decedent on opioid overdoes prevention. 

Khurana fails to satisfy his burden as moving party on summary judgment.  Defendant Khurana’s Motion for Summary Judgment is DENIED.

III. Even if Khurana had met his burden on the element of breach and causation, Plaintiffs raise a triable issue of material fact with their own expert declaration

            Even if Khurana satisfied his burden on summary judgment, Plaintiffs raise triable issues of fact regarding breach.  Plaintiffs submit the expert declaration of Jordan Goodstein, MD as evidence that Khurana breached the standard of care and that the breach was a “contributing cause” of the Decedent’s death.  Goodstein’s testimony regarding breach of the applicable standard of care is sufficient to raise a triable issue of material fact.  Goodstein testifies that Khurana’s treatment of decedent fell below the standard of care, because the medical records reflect that Khurana and his staff failed to warn decedent that the combined effects of Hydrocodone and Xanax could be fatal.  See Dec. of J. Goodstein, ¶22.  Goodstein also opines that Khurana breached the standard of care when he prescribed Hydrocodone while knowing that decedent was also prescribed Xanax without taking any measures to curtail the prescription of Xanax or decrease the dosage of Xanax.  Id. at ¶23. 

            Goodstein’s declaration raises a triable issue of fact as to breach based on alleged conduct that Defendant’s expert does not address.  Defendant’s expert declaration therefore fails to address whether this conduct was a substantial factor in causing decedent’s death.  As such, Goodstein’s expert declaration raises a triable issue of material fact as to both the breach and causation elements of Plaintiffs’ claims.