Shane v. Garfield Beach CVS CA4/1

Opinion

Filed 9/22/26 Shane v. Garfield Beach CVS CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PAMELA SHANE, D087134

Plaintiff and Appellant, (Super. Ct. No. CIVSB2213633)

v.

GARFIELD BEACH CVS, LLC,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Bernardino County, Winston S. Keh, Judge. Affirmed.

Kampf Schiavone & Associates and Randall S. Schiavone for Plaintiff and Appellant. La Follette, Johnson, DeHaas, Fesler & Ames, Dennis K. Ames, Marissa A. Warren, Robert J. Iacopino and Merna R. Abdelmalak for Defendant and Respondent. Pamela Shane appeals the judgment entered by the trial court after it granted a motion for summary judgment filed by Garfield Beach CVS (CVS) and then denied her motion for a new trial. Shane’s complaint alleged CVS committed medical malpractice when it gave her the incorrect medication that caused her to suffer from persistent seizures and convulsions. Shane argues the court erred in concluding CVS met its burden to establish there was no triable issue as to causation because its expert lacked relevant training, and his opinion was not connected to the evidence in the record. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND1 A. Factual Background Shane began seeing a neurologist in September 2019 to treat migraine headaches. The neurologist prescribed a few medications. Shane also took medications for depression and anxiety prescribed by her primary care physician. In April 2021, Shane had a phone appointment with her neurologist and was told she should continue taking Topamax, one of her migraine medications. Shane asked her neurologist to call the prescription into CVS. Following several weeks of communication between Shane, multiple pharmacies and her insurance company, Shane again contacted her neurologist’s office to ask that Topamax be called into CVS. On July 1, 2021, Shane’s husband picked up the prescription from CVS and brought it home. Instead of receiving Topamax, however, Shane received 1 Because this is an appeal from a grant of summary judgment in favor of CVS, “our account of the facts is presented in the light most favorable to [Shane], . . . and assumes that, for [the] purposes of our analysis, [Shane’s] version of all disputed facts is the correct one.” (Birchstein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 999.) 2 Amitriptyline. Shane saw that the bottle was labelled “Amitriptyline.” She “knew that it was a different medication but thought that the doctor wanted to try something else.” She also “assumed that it was a different generic name for Topamax.” She took the dose of 100 mg that evening and a short time later she “was roaming around the house in a confused state.” She went to bed and woke up in the middle of the night with “a high fever, severe headache, and severe muscle and joint aches.” The next day, Shane called urgent care and was told she had a sinus infection, for which she was prescribed antibiotics, cough medication, and an antihistamine. She did not take Amitriptyline again until July 5, 2021, when she took her morning and evening doses and then “slept all day after the second tablet.” The next morning, on July 6, 2021, Shane took her fourth dose of Amitriptyline before going to work.2 About an hour after arriving at work, she “started to feel faint and lightheaded.” An ambulance was called and she was taken to the hospital. While in the ambulance, she experienced convulsions and involuntary muscle spasms on her right side. The emergency room physician was informed she “might” have had a seizure, and he “witnessed a second jerking movement” where she was “moving head side to side left to right and moving her extremities uncoordinated,” although “she blocked her left hand falling over her head.” He noted Shane had “jerking 2 There is no evidence in the record that Shane took any further doses of the medication after July 6, 2021. 3 movements” later that afternoon but “without postictal state.”3 He noted that it was “[l]ess likely to be tonic clonic seizures.”4 A brain scan showed no abnormalities. She was advised “her convulsions were due to stress.” That evening, Shane was transported to another hospital, where she stayed for two days and was diagnosed with “pseudo-seizures,” anxiety, stress and depression. A brain scan showed “no acute intracranial abnormality.” The attending physician noted her seizures were “questionable,” where she demonstrated “shaking in entire bed and moving her head right and left,” but were “non-epileptic in nature,” and “with no post-ictal state or urinary incontinence or tongue biting.” Shane informed the physician, in the course of her work training teachers, she had recently watched a “video of children being abused.” She was “significantly stressed and also recalled her own” child abuse history and “blame[d] herself for not being there for her own children,” who were mentally and physically abused by her ex-husband. Overall, the hospital “workup” was “completely negative” and she was told once again “her convulsions were due to stress.” The attending physician recommended counseling, psychotherapy, and pausing her use of an antidepressant and a stimulant and discontinuing her use of anti-seizure medication. The physician “educated” Shane and her husband on “non- 3 “After most seizures, the person enters into a recovery period known as the ‘postictal’ stage.” (People v. Yang (2021) 67 Cal.App.5th 1, 19 [“A person recovering in a postictal state may seem dazed and in a state of confusion; they may seem oriented as to some things but not have all of their senses back.”].)

4 A tonic clonic seizure is “a type of generalized onset seizure and will cause the patient to stiffen and fall (tonic stiffening) and jerk (clonic).” (Yang, supra, 67 Cal.App.5th at 18.) 4 epileptic events,” but did not mention Amitriptyline use in connection with his diagnosis, assessment, or treatment plan. Towards the end of July 2021, Shane visited a medical clinic “for hospital [follow up] after convulsions.” Her husband expressed that she “started getting convulsions after she was prescribed Amitriptyline.” Despite having been told by doctors to continue taking the medication, he noted “they decided that [Shane] would stop” taking it and, since then, she “has stopped having convulsions for the past week.” Shane reported that her convulsions were triggered by such things as having to “talk or interact with somebody,” deciding to “go out for a drive,” loud noises, and sometimes her husband. The doctor’s clinic notes stated Shane’s “convulsions and reduced strength and sensation on left side are likely [secondary to] pseudoseizures given significant psychiatric history and lack of tongue biting and incontinence.”5 In August 2021, Shane went to another medical center for consultation, and she reported “multiple episodes of seizure[]-like activity.” On exam, the physician observed Shane having an episode of this “seizure-like” activity, in which her bilateral shoulders twitched, her eyes closed, and she covered her ears and stomped her feet. However, the physician noted there was “[n]o notable postictal period in the [emergency department]. No urinary incontinence, loss of consciousness, tongue biting.” Considering her “history” and symptoms, the physician diagnosed Shane with “[p]sychogenic non- 5 “Pseudoseizures are psychological events which superficially resemble epileptic seizures.” (Norasingh v. Lightbourne (2014) 229 Cal.App.4th 740, 745 (Lightbourne).) 5 epileptic seizures.”6 She was recommended to follow up with neurology and psychiatry. Later in August 2021, she returned to the medical clinic she visited in July and was seen by the same doctors. She reported that she “continued to have convulsions daily.” Her husband shared a video clip of her convulsion where her arms were shaking and “her eyes were closed the entire time.” The physicians concluded her convulsions were “likely [secondary to] functional etiology/pseudoseizures in the setting of significant psychiatric history and stressful social situation. Less likely seizure disorder given that her eyes [were] closed during convulsions, and there is a lack of tongue biting and incontinence.” Shane was “reassured that her convulsions [were] likely not due to seizures” and was encouraged to schedule an appointment with a psychiatrist. She returned to the same medical clinic again in September 2021, where she reported she “had decreased convulsions, now occurring once every few days rather than multiple times daily like before.” She described them as “similar to the ones she has had in the past,” including “eyes closed and without any tongue biting, incontinence, or post-ictal confusion.” She also reported that her “slurred speech has gotten a bit worse since last visit.” The doctors’ impression was consistent: “Her convulsions are likely [secondary to] functional etiology/pseudoseizures in the setting of significant psychiatric history and stressful social situation. Less likely seizure disorder given that 6 “[T]he current Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition—DSM-5—includes psychogenic, nonepileptic seizures under ‘conversion disorder’ which is defined as ‘[o]ne or more symptoms of altered voluntary motor or sensory function’ found to be incompatible with ‘recognized neurological or medical conditions.’ [Citation] In other words, psychogenic seizures are a mental impairment, not a medical condition.” (Lightbourne, supra, 229 Cal.App.4th at 745, fn. 2.) 6 her eyes are closed during convulsions, and there is a lack of tongue biting and incontinence.” She was diagnosed with “Pseudoseizure.” In October 2021, Shane underwent an “normal routine”

electroencephalogram7 while she was awake. The neurologist noted Shane had one of her “convulsion events” during the study, but that her exhibited reactions did not correlate with any neurological changes. Specifically, the neurologist noted: “The captured habitual clinical events of random right arm twitching movements, pelvic thrusting, head and body shaking from side to side, with stuttering voice during her preserved awareness did not correlate with [electroencephalogram] changes.” The neurologist concluded: “These are [p]sychogenic [n]onepileptic [s]eizures. . . [¶] No focal abnormalities or epileptiform discharges were seen.” In a November 2021 telephonic appointment, Shane’s doctors reviewed the electroencephalogram report with her and explained that “her convulsions were captured” during the study, “consistent with” psychogenic nonepileptic seizures and “no focal abnormalities or epileptiform changes were seen.” They explained to her that her “convulsions are most likely functional in etiology and re-iterated her negative” brain scan results. Their diagnosis once again was that her “convulsions are likely [secondary to] functional etiology/pseudoseizures in the setting of significant psychiatric history and stressful social situation.” In October 2022, after establishing care with a new doctor for further evaluation of continuing “episodes of right sided weakness, fatigue, [and] stuttering speech,” Shane was referred to a neurologist. She then had a telephonic appointment with a neurologist in March 2023 “for follow-up on 7 An electroencephalogram is a test that records electrical activity in the brain. (People v. Steele (2002) 27 Cal.4th 1230, 1241.) 7 psychogenic nonepileptic seizures with continued episodes of stuttering speech and weakness in her right upper and lower extremity.” The neurologist concluded her symptoms were most likely related to psychogenic nonepileptic seizures. The doctor recommended Shane come in for an in- person examination. At an in-person appointment with the neurologist in May 2023, Shane reported she “continues to have many frequent” psychogenic nonepileptic seizure episodes. With respect to the complaints of weakness on the right side, Shane initially reported there were “times when her strength is totally normal,” but later in the conversation reported “she does not have periods of being without weakness on the right.” The neurologist conducted a physical examination, tested her right arm muscle strength at 5/5, right leg strength at 4/5, noted “give-way weakness” and a “very poor effort” on Shane’s part and determined she had “subjective but not objective weakness” on her right side. The neurologist observed that, during her visit, she “had an episode of shaking with arms turned outwards for 30 seconds though she didn’t lose consciousness, vitals were stable and [within normal limits].” Following the episode, she “had a quick return to baseline with no tongue biting,” was alert, oriented, “conversational and willing to continue regular visit.” The neurologist noted that, after her office visit, Shane was “seen walking stabley [sic] without needing assistance on her way to get dinner, no clear signs of weakness detected in gait, not leaning to one side.” The neurologist had the “[h]ighest suspicion that stuttering and shaking events” were due to psychogenic nonepileptic seizures due to her “history which is less suggestive for seizure” given the lack of post-ictal confusion, urinary incontinence, tongue biting during her episodes, but with “immediate return back to baseline” and “being fully aware during the event.”

8 B. Procedural History In June 2022, Shane filed a complaint asserting a single cause of action for medical malpractice against CVS and the prescribing physician. Shane alleged that her physician prescribed an incorrect medication, Amitriptyline, and that CVS then filled that prescription. She alleged that, as a result of taking the medication, she suffered seizures and related complaints. In October 2025, CVS filed a motion for summary judgment. CVS argued that it did not breach its professional duty of care to Shane and that its conduct did not cause her seizures and related complaints. Its motion was supported by Melissa Durham, a pharmacist, who opined that CVS’s pharmacists and employees “met the standard of care in the reviewing, verifying, dispensing and sale of Amitriptyline” to Shane. It was also supported by Timothy Albertson, a pharmacologist and toxicologist, who opined that Amitriptyline “did not cause or contribute to any of [Shane’s] claimed injuries or damages.” Because the half-life of Amitriptyline is 10 to 28 hours, he asserted it could not continue to cause her seizures more than 28 hours after ingested. Moreover, he declared Amitriptyline could not have caused her claimed injuries because it does not cause psychogenic nonepileptic seizures. Shane’s opposition was supported by Kenneth Schell, a pharmacist and pharmacologist, who opined that “there was a breach of the standard of care.” He explained that CVS pharmacists “did not demonstrate the level of skill or knowledge expected of a pharmacist by not communicating with [Shane’s doctor] and dispensing the Amitriptyline to [Shane’s husband] was a substantial factor in causing [Shane] to suffer seizures and serotonin 9 syndrome.”8 Shane also objected to Albertson’s declaration on the ground that he was not competent to offer an opinion that Amitriptyline did not cause her psychogenic nonepileptic seizures because he was not a psychiatrist or a neurologist. In January 2025, the trial court granted CVS’s motion for summary judgment. Although the court found “whether the standard of care was met would be a matter for the jury” because there were “dueling expert opinions,” it also found “causation [wa]s lacking” because Schell “offer[ed] no opinion on the causation factor.” More specifically, Schell offered “no opinion to a reasonable degree of medical probability that the filling and providing the prescription of Amitriptyline to [Shane] . . . was a cause or contributing factor to her injuries and damages.” “With no opposing expert, the opinion of [] Albertson governs to conclude” there was no causation. In March 2025, Shane filed a motion for a new trial arguing Albertson’s opinions were conclusory because he misread the hospital record and he was not competent to offer a causation opinion. The court denied Shane’s motion. DISCUSSION A. Relevant Legal Principles We review a grant of summary judgment de novo. (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 848.) “Summary judgment is appropriate only ‘where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.’ ” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618.) But “[s]ummary judgment shall not be granted by the court based on inferences 8 Serotonin syndrome is “a ‘potentially fatal’ condition where a person’s body cannot absorb serotonin.” (Debruyn v. Douglas (6th Cir. 2026) 168 F.4th 913, 929.) 10 reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment meets its burden of showing a cause of action has no merit if the defendant shows one or more elements cannot be established or that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(1).) Once a defendant meets its burden, the plaintiff must then “show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Id., § 437c, subd. (p)(2).) “We must consider all evidence in the light most favorable to the nonmoving part[y].” (Marez v. Lyft, Inc. (2020) 48 Cal.App.5th 569, 576– 577.) We do not, however, “draw inferences from thin air,” and the plaintiff must “show that the inferences favorable to her are more reasonable or probable than those against her.” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 474; see also, United Professional Planning, Inc. v. Superior Court (1970) 9 Cal.App.3d 377, 393.) (“Improbable conclusions will not be sustained where testimony is at variance with the physical facts and the repugnance is material and self-evident.”). Additionally, despite the standard of review, we presume the judgment is correct and appellant still bears the burden of demonstrating error. (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1376; Go Tek Energy, Inc. v. SoCal IP Law Group, LLP (2016) 3 Cal.App.5th 1240, 1245 [“ ‘[A]ppellant has the burden of showing error, even if [s]he did not bear the burden in the trial court’ ”]; Tubbs v. Berkowitz (2020) 47 Cal.App.5th 548, 554.) Although we review a summary judgment motion de novo, we review evidentiary rulings made in connection with the motion for abuse of 11 discretion. (Great American Ins. Cos. v. Gordon Trucking, Inc. (2008) 165 Cal.App.4th 445, 449.) B. Analysis Shane first argues Albertson’s opinion lacks foundation because she claims he is not qualified to opine about the cause of Shane’s “conversion disorder.”9 We disagree. “The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) “California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases.” (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984–985.) “[C]ausation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case.” (Jones v. Ortho Pharm. Corp. (1985) 163 Cal.App.3d 396, 402 (Jones).) Here, Albertson has a doctorate in pharmacology and toxicology, is a medical doctor who is board-certified in medical toxicology and has more than 45 years of experience in the field, with many years teaching pharmacology 9 Conversion disorder “is defined as ‘[o]ne or more symptoms of altered voluntary motor or sensory function’ found to be incompatible with ‘recognized neurological or medical conditions.’ (American Psychiatric Assn., Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) pp. 318–319.)” (Lightbourne, supra, 229 Cal.App.4th 740, 746, fn. 2.) Both parties agree psychogenic nonepileptic seizures are a form of conversion disorder. For the sake of consistency, we will continue to refer to psychogenic nonepileptic seizures. 12 and toxicology to medical students and residents. In developing his opinion, he reviewed Shane’s medical records from nine different providers and medical facilities, discovery responses of CVS and Shane’s doctor, transcripts of Shane’s deposition and her doctor’s deposition, documents produced in the case, including Shane’s prescription record, documents “related to the verification, dispensing and sale” of Amitriptyline and the drug monograph and FDA medication guide for Amitriptyline. Based on his education, training, experience, and review of the record, Albertson opined that “although Amitriptyline . . . can cause epileptic seizures, each of [Shane]’s treating physicians . . . have all diagnosed [Shane] with pseudo-seizures or psychogenic nonepileptic seizures.” He gave a basic definition of the distinction between epileptic seizures and psychogenic nonepileptic seizures, and explained that epileptic seizures result from abnormal electrical activity in the brain, whereas psychogenic nonepileptic seizures are a form of conversion disorder in which mental stress or anxiety is converted into a physical symptom. Ultimately, Albertson concluded that, to a reasonable degree of medical probability, Shane’s claimed injuries were “not caused by her ingestion of Amitriptyline” in July 2021. Albertson also opined that the half-life of Amitriptyline is 10 to 28 hours and, therefore, if Shane’s last dose of Amitriptyline was the morning on July 6, 2021, then she would not physiologically suffer from any effects of the Amitriptyline 28 hours or longer thereafter. Albertson also questioned whether the patient took a dose of Amitriptyline on the morning of July 6, 2021, given that her urine toxicology screen done that same morning was negative for tricyclics, which is the class of pharmaceuticals to which Amitriptyline belongs. In any event, because the test did not show Amitriptyline in her system that morning, Albertson opined that, to a 13 reasonable degree of medical probability, “the Amitriptyline . . . did not cause or contribute to [Shane’s] claimed injuries.” Albertson was competent to testify about the potential side effects and half-life of Amitriptyline, (Evid Code § 720, subd. (a)), and it “was not unreasonable to conclude” that his “opinions had an adequate foundation in the trial evidence and were based on his training and experience.” (People v. Morales (2020) 10 Cal.5th 76, 100.) The trial court did not err. The burden thus shifted to Shane to present competent opposing expert opinion as to the essential element of causation—if any existed—to raise a triable question of fact. (Code of Civ. Proc. § 437c, subd. (p)(2).) She failed to do so. Shane’s argument that CVS should have had a psychiatrist or neurologist testify is misplaced. Shane failed to put CVS on notice of her theory that her consumption of Amitriptyline while she had “preexisting psychiatric history and concurrent psychoactive medications” in early July 2021 caused “mental stress or anxiety” to be “ ‘converted into a physical symptom [psychogenic nonepileptic seizures]’ . . . that has persisted to this day.” (White v. Smule, Inc. (2022) 75 Cal.App.5th 346, 354 [“ ‘The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues’ and to frame ‘the outer measure of materiality in a summary judgment proceeding.’ ”].) In her complaint, Shane merely alleged that her “consumption of Amitriptyline” caused her to have seizures and other injuries. The side effects she allegedly experienced from “consuming the medication” was thus the sole causation issue framed by the pleadings. (Union Pacific Railroad Co. v. Ameron Pole Products LLC (2019) 43 Cal.App.5th 974, 981 [the complaint’s “allegations frame the issues to be decided on summary judgment.”].)

14 Shane also is incorrect to argue that Albertson’s opinion “lacks any connection to the evidence and is therefore conclusory.” In her opening brief, she argues it is “demonstrably false” that her urine toxicology screening on July 6, 2021, was negative for Amitriptyline and that there was “no line item showing tricyclics or Amitriptyline anywhere in the toxicology records.” After CVS’s response showed a screenshot of a negative entry for tricyclics in her medical records, in her reply brief, Shane merely contended that “the toxicology result . . . does not carry the weight CVS assigns to it.” Thus, her argument that Albertson’s opinion is not connected to the evidence is simply not true. Her argument that Albertson failed to address Shane’s lack of prior seizure activity is similarly misplaced. (See, e.g., In re Humphrey (2021) 11 Cal.5th 135, 147 [“correlation doesn’t itself establish causation”]; Motorola Communication & Electronics, Inc. v. Department of General Services (1997) 55 Cal.App.4th 1340, 1345 [“More than post hoc, ergo propter hoc must be demonstrated.”].) As discussed earlier, the essential element of causation must be established “based upon competent expert testimony” (Jones, supra, 163 Cal.App.3d at 402), and not by counsel’s speculation that an alleged fact is “crucial.” We conclude Albertson is competent and his opinions are supported by the evidence. Moreover, Shane failed to object to Albertson’s opinion that, due to its half-life, Amitriptyline could not cause her seizures more than 28 hours after she last took it on July 6, 2021. (Evid. Code, § 353, subd. (a); Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 346 [failure to timely object to expert testimony forfeits issue on appeal].) Thus, the trial court’s finding that causation was lacking is also supported by Albertson’s undisputed 15 opinion that, because of the half-life of Amitriptyline, the medication “did not cause or contribute to [Shane’s] claimed injuries.” Finally, the trial court properly denied Shane’s motion for a new trial. “The granting of a motion for a new trial rests completely within the discretion of the trial judge.” (Bridgford v. Sawyer (1951) 105 Cal.App.2d 631, 634.) Shane’s motion for a new trial was brought on the same grounds as this appeal and is without merit for the same reasons. The trial court did not err when it found Shane failed to identify any insufficiency of the evidence or any error in law, as required by Code of Civil Procedure Section 657. DISPOSITION The judgment is affirmed. Respondent is entitled to its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

KELETY, J.

WE CONCUR:

DO, Acting P. J.

CASTILLO, J.