Filed 9/22/26 Shane v. Garfield Beach CVS CA4/1
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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.
16