Opinion
C. A. 1:19-12349:MLW
03-17-2023
JOAN LAURIE RENART, Plaintiff, v. RAISER, LLC, UBER TECHNOLOGIES, INC., and GUY PIERRE, Defendants.
MEMORANDUM AND ORDER
WOLF, D.J.
The Magistrate Judge issued a Report and Recommendation (Dkt. No. 95) (the "Report") concerning plaintiff Joan Laurie Renart's and defendants Guy Pierre, Raiser, LLC, and Uber, Inc.'s crossmotions for summary judgment (Dkt. Nos. 79, 85) . The Magistrate Judge recommended that the court grant in part and deny in part defendants' Motion to Strike portions of Renart's affidavit (Dkt. No. 88), grant defendants' Motion for Summary Judgment, and deny plaintiff's Motion for Summary Judgment. Plaintiff has filed an objection to the Report (Dkt. No. 96) (the "Objection"). Defendants have filed a Reply to the Objection (Dkt. No. 98).
The court has reviewed de novo the matters to which plaintiff objected. See 28 U.S.C. §636 (b) (1) (B) & (C); Fed.R.Civ.P. 72(b)(3); Diaz-Alarcon v. Flandez-Marcel, 944 F.3d 303, 310 (1st Cir. 2019). The court finds the Report to be thorough, thoughtful, and persuasive. Therefore it is being incorporated it into this Memorandum and Order. See Exhibit A.
The Magistrate Judge correctly construed the applicable Massachusetts law concerning negligence. Causation is, as she noted, an essential element of a claim to recover damages for negligence. See Glidden v. Maglio, 430 Mass. 694, 696 (2000). As the Magistrate Judge also noted, under the applicable law of Massachusetts, "[e]xpert testimony is necessary where proof of medical causation lies outside the ken of ordinary jurors." Pitts v. Wingate at Brighton, Inc., 972 N.E.2d 74, 78 (Mass. App. Ct. 2012). There are some cases in which the defendant's alleged negligence "was an obvious, commonsense explanation for [plaintiff's] injuries." Id. at 79. For example, in Pitts, a frail woman suffering from numerous medical conditions fell when a nursing home aide dropped her on the floor while trying to move her from the toilet to a wheelchair in a negligent manner. Id. at 77. The woman immediately complained of pain in her leg, which she had never done before. Id. The woman was sent to the hospital where she was diagnosed with fractures in her leg. Id. at 78. The Massachusetts Appeals Court found that "[n]o expert testimony [was] necessary for lay jurors to appreciate that allowing a nursing home patient to fall to the floor could cause a broken bone." Id. at 79.
Contrary to Renart's contention, the Magistrate Judge correctly concluded that this case is not analogous to Pitts. On October 27, 2017, Renart was already scheduled for right knee replacement surgery, which she had in January 2018. See Records of Dr. Jeffrey Warhaftig, Dkt. No. 83-3; Records of EmergeOrtho, Dkt. No. 83-4. Construed in the light most favorable to the plaintiff, she reported the "wrench" of her knee four days after October 27, 2017. Records of Dr. Jeffrey Warhaftig, Dkt. No. 83-3. However, she did not then complain of any of the ailments for which she seeks damages in this case. See id. In June 2018, she complained of hip pain. Records of EmergeOrtho, Dkt. No. 83-4. In August 2018, she complained of neck and upper right extremity pain, but did not link it to the October 27, 2017 incident. Records of EmergeOrtho, Dkt. No. 81-7. Rather, she stated that her symptoms "started somewhat suddenly after waking up one morning," and associated the pains with having slept the wrong way. Id. She did not assert that the pain in her shoulder, arm, and neck was caused by the October 27, 2017 incident until fourteen months later, on January 23, 2019. See Record of Dr. John Knab, Dkt. No. 81-10.
In these circumstances, the Magistrate Judge correctly concluded that a lay juror could not without expert evidence find that the October 27, 2017 incident was a cause of the pain for which Renart now seeks damages. See Weinberg v. Massachusetts Bay Transportation Authority, 205 N.E.2d 5, 6-7 (Mass. 1965) (holding that defendant's shortness of breath and varicose veins, which manifested years after the fall from the trolley, required expert testimony to prove causation); Casey's Case, 204 N.E.2d 710 (Mass. 1965) (finding admissible expert testimony necessary to prove causation when trauma allegedly exacerbated preexisting condition); Rotman v. Nat'l R.R. Passenger Corp., 669 N.E.2d 1090 (Mass. App. Ct. 1996); Everett v. Ejofodomi, 926 N.E.2d 229, 2010 WL 1923773 (Mass. App. Ct. 2010) (unpublished disposition) ("[B]ecause [plaintiff] appears to have suffered from a progressive preexisting osteoarthritis at that site, she needed an expert to demonstrate the causal connection between the accident and the aggravation of her hip disease." Id. at *2.).
Defendant has presented expert testimony sufficient, if believed, to refute Renart's claim concerning causation. More specifically, Dr. N. George Kasparyan's expert report indicates that he would testify at trial that Renart's "injuries were minor in nature and that all orthopaedic issues pertaining, especially to her shoulder and knee, were pre-existing in nature." Report of Dr. N. George Kasparyan, Dkt. No. 81-9.
Therefore, to defeat defendant's motion for summary judgement, Renart must produce "admissible evidence to support her claim" that defendant's alleged negligence caused the harm for which she is seeking damages. Fed.R.Civ.P. 56(c)(1)(B). She has not designated an expert witness to testify on her behalf and the deadline to do so has passed.
Renart's medical records could provide the required expert opinion. Such records are admissible at trial to the extent that they contain statements that are "made for - and [are] reasonably pertinent to - medical diagnosis or treatment." Fed.R.Evid. 803 (4) (A). Statements concerning the "general cause" of symptoms are also admissible. Fed.R.Evid. 803(4) (B). Renart relies on such records. However, the court finds that none of them contain a statement by a medical professional that the conditions for which Renart seeks damages were caused by the October 27, 2017 incident. The Magistrate Judge correctly concluded that "(t]o the extent that Renart provides characterization of her medical records, such statements are [] inappropriate and should not be considered." Report at 3. The Magistrate Judge noted that ”[t]o the extent that Renart cites to isolated statements in the medical records purportedly attributing her pain symptoms to the incident, those doctors were not expressing an opinion as to the cause of her injuries but rather appear to have been documenting her reports to them about her symptoms." Id. at 12 (citing Record of Dr. John Knab, Dkt. No. 83-2; Records of EmergeOrtho, Dkt. No. 83-4).
This court agrees with the Magistrate Judge and does not find by a preponderance of the evidence that the statements on which Renart relies were the opinions of doctors, and therefore admissible as the required expert evidence concerning causation. See Fed.R.Evid. 104(a). Rather, these statements are only Renart's own lay opinions and are insufficient to create a material dispute concerning the essential element of causation.
For example, in paragraph 15 of her affidavit, Renart writes "One of my physicians, Dr. Knab, reported on January 23, 2019, that I was 'injured on October 2017 when she was pulled/twisted when getting into an UBER car." Renart Aff. at ¶15, Dkt. No. 831. However, the underlined language is in a section of a five-page report under the heading of "Subjective." See Records of Dr. John Knab, Dkt. No. 81-10. In a paragraph titled "HPI (History of Present Illness) Details," Dr. Knab wrote: "Very pleasant 67-year-old female who was injured in October 2017 when she was pulled/twisted when getting into an UBER car . . . . "' Id. Viewed in context, this court concludes that Dr. Knab was merely recording what Renart reported rather than expressing his own opinion of the cause of her ailments.
Therefore, the Magistrate Judge properly struck Renart's characterizations of her medical records from her affidavit. To the extent that Renart accurately quotes directly from the records, those statements are admissible under Federal Rule of Evidence 803 (4), see Facey v. Dickhaut, 91 F.Supp.3d 12, 21 (D. Mass. 2014), and have been considered by this court, as they were evidently considered by the Magistrate Judge. However, to the extent that Renart's affidavit puts her own gloss on admissible records, she is making arguments rather than providing the evidence necessary to defeat defendants' motion for summary judgment. See Mekonnen v. OTG Management, LLC, 394 F.Supp.3d 134, 146 (D. Mass. 2019).
In view of the foregoing, it is hereby ORDERED that:
1. The Report is ADOPTED and INCOPRORATED in this Memorandum and Order.
2. Defendant's Motion to Strike (Dkt. No. 88) is ALLOWED in part and DENIED in part.
3. Plaintiff's Motion for Summary Judgment (Dkt. No. 85) is DENIED.
4. Defendant's Motion for Summary Judgment (Dkt. No. 79) is ALLOWED.
5. Judgment shall enter for Defendants.
EXHIBIT A
May 9, 2022
REPORT AND RECOMMENDATION ON PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT
[DOCKET NOS. 79,85]
JENNIFER C. BOAL, UNITED STATES MAGISTRATE JUDGE
In this action, plaintiff Joan Laurie Renart alleges that she sustained significant injuries as a result of an incident on October 26, 2017, when defendant Uber driver Guy Pierre removed his foot from the brake before Renart had the opportunity to pull her right leg into die vehicle. She brings negligence claims against Pierre, Rasier, LLC, and Uber, Inc. The parties have cross-moved for summary judgment. Docket Nos. 79,85. For the following reasons, I recommend that Judge Wolf grant Defendants' motion and deny Renart's motion.
On February 14, 2020, Judge Wolf referred this case to the undersigned for full pretrial management, including report and recommendation on dispositive motions. Docket No. 14.
I. FACTUAL BACKGROUND
A. Scope Of The Record
As a preliminary matter, this Court must address the Defendants' motion to strike portions of Renart's affidavit in support of her opposition to Defendants' motion for summary judgment. Docket No. 88. "An affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4) "[P]ersonal knowledge is the touchstone" in this process. Perez, 247 F.3d at 315. To that end, "mere [] conclusory reiterations of the allegations of the complaint... are insufficient." Roslindale Coop. Bank v. Greenwald. 638 F.2d 258. 261 (1st Cir. 1981). However, a "party's own affidavit, containing relevant information of which he has first-hand knowledge, may be self-serving, but it is nonetheless competent to support or defeat summary judgment." Santiago-Ramos v. Centennial P.R. Wireless Corp.. 217 F.3d46. 53 fist Cir. 2000) (citing Cadle Co. v. Haves. 116F.3d 957. 961 n. 5 (1st Cir. 1997)).
Defendants' motion sought to strike paragraphs 2-5,8-11, and 14-16 of Renart's affidavit. Docket No. 89 at 1. While paragraph 9 is mentioned in the introductory paragraph, it is not addressed in the body of the motion and it is not clear on what basis the Defendants move to strike it. At oral argument, Defendants' counsel indicated that they were seeking to strike the entirety of the affidavit despite not having requested such relief in their motion. This Court finds that striking Renart's affidavit in its entirety is not appropriate. See Perez v. Volvo Car Corp., 247 F.3d 303.315 (1st Cir. 2001) (quoting Akin v. O-L Invs.. Inc.. 959 F.2d 521. 531 (5th Cir. 1992)). (In considering a motion to strike, a court "should disregard only those portions of an affidavit that are inadequate and consider the rest."). Paragraph 9 should not be stricken as it describes Renart's pain and the symptoms she alleges she experienced.
In addition, the First Circuit has adopted a "sham affidavit" rule. Under the sham affidavit rule, "[w]hen an interested witness has given clear answers to unambiguous questions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed." Torres v. E.I. Dupont De Nemours & Co.. 219F.3d 13.20 (1st Cir. 2000) (quoting Colantuoni v. Alfred Calcagni & Sons. Inc.. 44F.3d I. 4-5 (1st Cir. 1994)).
1. Paragraphs 5.10.11. 14. 15. & 16
The Defendants object to paragraphs 5,10,11,14, 15, and 16 of Renart's affidavit as containing impermissible expert testimony as well as conclusory and argumentative statements. Docket No. 89 at 3-5. Defendant is correct that some of the statements contained in those paragraphs reflect impermissible expert opinions about the cause of Renart's alleged injuries as well as conclusory statements and opinions regarding her case. See, e.g.. Affidavit of the Plaintiff in Support of Her Opposition to the Defendants' Motion for Summary Judgment (Docket No. 83-1) ("Renart Aff.") at ¶ 11 ("The hip and groin pain was caused by the incident."). However, some of those paragraphs also contain statements regarding her personal medical history and symptoms, of which she has personal knowledge. See, e. g., Id. at ¶ 10 ("I had pre-existing right knee arthritis and had been scheduled for surgery."); 1) 11 ("I did not have groin pain prior to the accident and although I had an MRI prior to the accident it was not bothering me as much as it was after the accident."). To the extent that Renart provides characterizations of her medical records, such statements are also inappropriate and should not be considered. Accordingly, after review of the paragraphs at issue, I find that the statements set forth below in bold should be stricken from the following paragraph numbers:
At oral argument, Defendants' counsel indicated that they object to the consideration of Renart's medical records in connection with the motion for summary judgment because such records are inadmissible. This Court notes that Defendant has relied upon and cited to such medical records in its own motion. See, e.g., Def. SOF at ¶¶ 9-10. Moreover, Renart's medical records are likely admissible pursuant to Rule 803(4) and/or (6) of the Federal Rules of Evidence.
5. The driver drove away from the curb while I had one leg in the car and the other leg on the curb. This caused me to hyperextend my leg causing me injury.
***
10. I had pre-existing right knee arthritis and had been scheduled for surgery. The knee surgery (a total knee arthroplasty) was performed on January 9, 2018. The medical records evidence that the knee problems
were exacerbated by the accident and the continued pain that I suffered in the knee in the years to the present are related to the incident
11. The hip and groin pain was caused by the incident. I did not have groin pain prior to the accident and although I had an MRI prior to the accident it was not bothering me as much as it was after the accident. After the knee surgery I began physical therapy, but the groin pain continued. I performed PT approximately three times a week. My mobility worsened and I had difficulty walking on stairs. By June of 2018,1 still had groin and hip pain. In August of 2018,1 had a steroid shot in the hip.
***
14. In February of 2019,1 was diagnosed with spinal stenosis which was said to been caused as a result of the jolt of the accident. I saw a pain management doctor (Dr. Knab) in Wilmington, North Carolina. In February of 2019,1 had an MRI which evidenced a rotator cuff tear in my right shoulder. I still had pain in my neck. I resumed physical therapy in March of 2019.
15. One of my physicians, Dr. Knab reported on January 23, 2019, that I was "injured on October 2017 when she was pulled/twisted when getting into an UBER car in Cambridge and the car to cough (sic) as she was still getting in. She pulled her right shoulder and twisted her right knee. She also has had pain in the right arm and hand... She is still having circumferential knee pain despite the knee replacement. She has had limited ability to rotate her neck to the right due to the pain and stiffness." (Defendants' Exhibit 10) The records from Dr. Knab indicates knee replacement surgery in January of 2017. That is a typographical error as it was in 2018. Exhibit 10 says also, "multiple locationsof pain following the injury described above."
16. The records from my doctor, Shawn Hocker, M.D. (surgeon) discusses the pain in my buttocks and upper buttocks, hip, down the leg, pain at the knee and the hamstring and quadriceps area. "Increasing pain in the neck and right upper extremity." He also discusses continuing symptoms of right hip and groin pain. On April 13,2018,1 followed up with Dr. Hocker who described right anterior hip and groin pain since surgery, and increasing pain since the accident of October 2017. "The knee surgery and subsequent physical therapy seems to have exacerbated the pain for her. She feels as though the hip and groin pain is now causing the knee problems to persist and worsen despite her hard work in therapy." (Plaintiffs Exhibit 4).
2. Paragraphs 2.4. 5. & 8
The Defendants also object to paragraphs 2,4,5, and 8 under the sham affidavit rule. Docket No. 89 at 5-6. First, Defendants argue that Renart's statements that Pierre was wearing earphones at the time of the incident are contradicted by her deposition testimony that she could only see his right ear. Id. I find that Renart's affidavit does not contradict her deposition testimony. Renart testified that while she could not see both of Pierre's ears, she could see two wires on either side of Pierre's head and he was tapping the steering wheel, indicating that he was listening to something in his phone. See Renart Deposition at 17:23-18:2; 19:l-6.
The transcript of Renart's deposition can be found at Docket No. 81-4.
The Defendants also argue that Renart's statement in her affidavit that Pierre's car "drove away" should be struck as contradicting her deposition testimony that the car merely "started to move," that she could not tell how fast the car was moving, and that "all of a sudden the car stopped." Docket No. 89 at 6. I find that this does not constitute a contradiction. Accordingly, I recommend that Judge Wolf deny the motion to strike as to paragraphs 2,4,5, and 8 for this reason.
As stated above, however, portions of paragraph 5 should be stricken because they reflect an impermissible expert opinion about the cause of Renart's alleged injuries.
The facts are taken from the Defendants' Rule 56.1 Statement (Docket No. 81 ("Def. SOF"); Plaintiffs Response to Defendants' Rule 56.1 Statement of Facts Docket No. 84 at 1 -6) ("PI. Resp."); Plaintiffs Additional Statements of Fact Docket No. 84 at 6-12) ("PI. SOF"); and Defendants' Responses To Plaintiffs Additional Statement of Facts Docket No. 87-1 ("Def. Resp."). This Court construes the record in the light most favorable to the nonmovant and resolves all reasonable inferences in that party's favor. Baum-Holland v. Hilton El Con Management. LLC. 964 F.3d 77. 87 (1st Cir. 2020) (citations omitted).
On October 27,2017, Renart toured the Harvard University museums in Cambridge, Massachusetts, with her husband, Thomas Renart, her son, Matthew Renart, and her son-in-law, Wesley Spiro. Renart had engaged in a great deal of physical activity, and was suffering from an inflammation of the big toe. Her son-in-law recommended that she be seen at an urgent care facility in Boston and her son ordered a ride from the Uber application from Oxford Street in Cambridge to Stuart Street in Boston. Pierre accepted the ride request and picked up Renart and her family on Oxford Street in Cambridge.
Def. SOF ¶4; Pl. Resp. ¶4.
Def. SOF ¶5; Pl. Resp. ¶5.
Id.
Def. SOF ¶ 6; PI. Resp. 1 6.
Renart maintains that she entered the back door of Pierre's car on the right side. Her left leg was on the floor of the back scat. Her left hand was on the back of the passenger side where her husband sat. Her right leg was out of the car and her right hand was on the door.According to Renart, the car "took off." Renart and her family yelled. She was "holding on for dear life and all of a sudden, the car stopped." She described it as quite a jolt. According to Pierre, on the other hand, he removed his foot from the break and the vehicle moved forward. After he heard yelling, he put his foot on the break, allowing Renart to get fully inside the vehicle. The parties dispute whether Pierre was wearing earphones in both ears or just the right ear at the time of the incident.
PI. SOF ¶4.
Id.
Id.
Id.
PI. SOF ¶5.
PI. SOF ¶ 6.
Id.
Id.
Def. SOF ¶7.
Id.,
PI. SOF ¶¶ 1-3,15; Def. Resp. ¶¶ 1-3, 15.
Renart and her family chose to proceed with the ride. Renart indicated that she was fine, refused Pierre's offer to call the police, and sought no treatment for any injury that day.She did not report any injury to her right shoulder, neck, and groin, and did not report the incident or mention it during her treatment at urgent care.
Def. SOF ¶9; PI. Resp. ¶9.
Id.
Id.
Renart did not report the incident as a potential cause of any symptom until January 23, 2019, despite seeking treatment for pain in her neck and shoulder in June of 2018, difficulty raising her arm in August of 2018, and undergoing imaging of her cervical spine in October of 2018.
Def. SOF ¶ 10. Renart "disagrees" with this fact but the evidence cited does not actually dispute it. See PI. Resp. ¶ 10. She states that she reported the incident to Uber on the date of the incident, but that says nothing about whether she sought treatment for any alleged injuries sustained as result of the incident or reported the incident to her doctors as a potential cause of any symptoms.
Defendants have retained and are prepared to present at trial the testimony of Dr. George Kasparyan, a board-certified orthopedic surgeon who specializes in surgery of the hand and upper extremities. Dr. Kasparyan has reviewed all of Renart's medical records, radiology, imaging, as well as deposition transcripts of all parties in this matter and related materials. Dr. Kasparyan has opined that: (a) Renart has "a very small partial tear on the leading edge of the supraspinatus tendon with no evidence connecting the tear to the incident at issue;" (b) Renart's shoulder pain and decreased range of motion are not the result of the aforementioned tear; (c) Renart has a "very thick and robust" rotator cuff tendon resembling that of a healthy 30-year old; (d) Renart's discomfort and pain are the result of "a very large acromial spur Type II, which is not causally connected to this incident because these spurs grow randomly over time and can occur randomly, spontaneous, or be precipitated by sports-related issues or work overuse;" and (e) Renart's bone spur is also the probable cause of her right-hand bicep, and right-sided neck problems. Dr. Kasparyan further opined that Renart should undergo a one-hour arthroscopic surgery to remove the bone spur, resulting in shoulder decompression and alleviation of all pain and range of motion issues. According to Dr. Kasparyan, the recovery rate for such a procedure is extremely high.
Def. SOF ¶11.
Def. SOF ¶12.
Def. SOF ¶13.
Def. SOF ¶14.
Id.
Renart has not disclosed any experts.
Def. SOF ¶¶ 15-16; PI. Resp. ¶¶ 15-16. At oral argument, this Court inquired whether Renart intended to call any experts to testify at trial regarding the causation of her alleged injuries. Renart's counsel was noncommittal in his answer, eventually stating that "at this point in time, I don't intend to." In any event, the deadline for expert disclosures has long passed. Docket No. 69; see Fed.R.Civ.P. 37(c)(1) ("If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.").
II. ANALYSIS
A. Standard Of Review
Summary judgment is appropriate if the record, viewed in the light most favorable to the nonmoving party "discloses 'no genuine issue of material fact' and [thus] demonstrates that 'the moving party is entitled to a judgment as a matter of law.'" Zabala-De Jesus v. Sanofi-Aventis Puerto Rico. Inc.. 959 F.3d 423.427-428 (1st Cir. 2020) (quoting Iverson v. City of Boston. 452 F.3d 94. 98 (1st Cir. 2006)). A dispute is genuine where the evidence "is such that a reasonable jury could resolve the point in the favor of the non-moving party." Rivera-Rivera v. Medina & Medina. Inc.. 898 F.3d 77. 87 (1st Cir. 2018) (citation omitted). A material fact is one with the "potential of changing a case's outcome." Doe v. Trustees of Bos. College. 892 F.3d 67. 79 (1st Cir. 2018).
"To avoid 'the swing of the summary judgment scythe,' the nonmoving party must adduce specific facts showing that a trier of fact could reasonably find in his favor." Johnson v. Johnson. 73 F 4th 136. 141 (1st Cir. 2022) (citation omitted). "The nonmovant cannot rely on 'conclusory allegations, improbable inferences, and unsupported speculation."' Id. (citation omitted).
"Cross-motions for summary judgment do not alter the basic ... standard, but rather simply require us to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed." Alasaad v. Mavorkas. 988 F,3d 8. 16 fist Cir. 2021) (quoting Adria Int'l Gro- Inc. v. Ferre Dev.. Inc.. 741 F.3d 103. 107 (1st Cir. 2001)).
B. Renart Has Not Raised A Triable Issue Regarding Causation
In order to prevail, Renart must show (1) the Defendants' negligence, that is, "the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exercise under the particular circumstances," (2) a causal connection between the Defendants' negligence and Renart's injury or damage; and (3) damages. See Donovan v. Philip Morris USA. Inc., 455 Mass. 215. 221-222 (2009) (internal citations omitted). "At trial the plaintiff[] will have the burden of proving each element of a negligence claim by a preponderance of the evidence." Id. (citations omitted). Defendants argue that, without expert testimony, Renart cannot establish causation. Docket No. 82 at 4-7. They further argue that because she does not intend to introduce any expert testimony at trial, she cannot meet her burden and Defendants are entitled to judgment in their favor as a matter of law. Id. I agree.
"Causation is an essential element" of a plaintiffs claim of negligence. Glidden v. Maelio. 403 Mass 694- 696 (2000). "[W]here the causation between an accident and the resulting physical or psychological injury ramifications is not a matter of common knowledge, the proof must rest on expert medical testimony." Foley v. Kibrick. 12 Mass.App.Ct. 382. 385 (1981) (citations omitted); see also Pitts v. Wineate at Brighton. Inc.. 82, Mass. APP, Ct. 285. 289 (2012) ("Expert testimony is necessary where proof of medical causation lies outside the ken of lay jurors"). "However, where a determination of causation lies within 'general human knowledge and experience,' expert testimony is not required." Pitts. 82 Mass, App. Ct. at 289 (citing Bailev v. Cataldo Ambulance Serv.. Inc.. 64 Mass.App.Ct. 228,236 n.6 (2005)). For the reasons set forth below, I find that expert testimony is required to establish that Renart's alleged injuries were caused by the October 27, 2017 incident.
Here, viewing the evidence in the light most favorable to Renart, a fact finder could conclude that she was entering Pierre's vehicle, with one leg remaining on the street, when the vehicle "took off." After she and her family yelled, the car stopped. She "hyperextended" her right leg. However, she neither fell nor was struck. Although she did seek treatment for an unrelated "inflamed" big toe that day, she sought no treatment, diagnosis, or care for any injuries allegedly resulting from the incident on that day.
See PI. Resp. ¶7; PI. SOF ¶¶ 4-5.
PI. SOF ¶6.
Renart Aff. At ¶¶ 5, 8.
Def. SOF ¶9; PI. SOF ¶9.
Renart alleges that the incident was the cause of her neck, right shoulder, arm, groin, hip, and right leg pain. With respect to her alleged shoulder, neck, arm, hip, and groin pain, however, she did not report the incident as a potential cause of these symptoms until January 23, 2019. Indeed, in August 2019, she reported that her neck and right upper extremity pain started "somewhat suddenly after waking up one morning," and that she attributed to "sleeping wrong." In addition, the Defendants have proffered the expected testimony of an orthopedic surgeon who has opined, among other things, that Renart's neck, right shoulder, and right arm pain are caused by bone spur unrelated to the incident.
PI. SOF ¶18.
Def. SOF ¶10.
Docket No.81-7 at 3.
Def. SOF ¶ 13.
With respect to her knee complaints, Renart did report to Dr. Warhaftig that she "wrenched her right knee while getting into an UBER car" at a visit on October 31,2017, four days after the incident. However, she had pre-existing right knee arthritis and had been scheduled for surgery prior to the incident. See, e.g. Everett v. Eiofodomi. 76 Mass.App.Ct. 1131. at *2 (2010) (Where plaintiff suffered from progressive preexisting osteoarthritis, she needed an expert to demonstrate the causal connection between the accident and the aggravation of her hip disease.). Under these circumstances, therefore, the relationship between the incident as described by Renart, and any physical injury or delayed-onset subjective symptoms, is not "sufficiently obvious as to lie within [the] common knowledge" of the jury." Lallv v. Volkswagen Aktieneesellschaft. 45 Mass. Apn. Ct. 317. 325 (1998) (citing Haggerty v. McCarthy. 344 Mass. 136. 139 (1962)).
PI. SOF ¶29.
Renart Aff. at ¶ 10.
Renart states that she intends to introduce her medical records to demonstrate a causal relationship between the incident and her alleged injuries and argues that such records are sufficient to meet her burden to establish causation. Docket No. 83 at 9. Here, however, die medical records before the Court do not contain sufficient opinions on causation to meet Renart's burden. See Piscopo v. Sec, of Health and Human Servs.. 66 Fed. CI. 49. 56 (Fed. CI. 2005) ("Where evidence of causation is not plain from the medical records, an expert opinion is needed to establish causation."). To the extent that Renart cites to isolated statements in the medical records purportedly attributing her pain symptoms to the incident, those doctors were not expressing an opinion as to the cause of her injuries but rather appear to have been documenting her reports to them about her symptoms. See, e.g. Docket No. 83-2 at 1: Docket No. 83-4 at 3.
Accordingly, I find that, in the absence of expert testimony on the issue of causation, a jury would have no basis other than conjecture, surmise, or speculation upon which to conclude that Renart's injuries were caused by the incident. Because she has not disclosed an expert and it is now too late to do so, she cannot meet her burden to show causation and the Defendants are entitled to judgment in their favor.
Def. SOF ¶¶ 15-16; PI. Resp. ¶¶| 15-16.
C. Renart's Cross-Motion For Summary Judgment
Renart cross-moved for summary judgment in her favor on the issue of "liability." Docket No. 85. She argues that she is entitled to summary judgment on the issue of "liability"because the Defendants did not address it in their motion. She states that "[t]he overall evidence is that liability has been established as the incident and injury was a result of the defendant driving off before the plaintiff was in the car as testified by not only the witnesses but the defendant Pierre himself." Docket No. 83 at 10. Renart misunderstands the standard for granting summary judgment. As the plaintiff, Renart bears the burden of proof on each element of her negligence claim by a preponderance of the evidence. See Glidden. 410 Mass. at 696. Defendants may, therefore, prevail on their motion for summary judgment by showing that the plaintiff will be unable to carry her burden of persuasion at trial with respect to a single essential element of her claim. See Plourde v. Sorin Group USA. Inc.. 517 F.Supp.3d 76. 86 (D. Mass. 2021); see also Perez v. Volvo Car Corp.. 247 F.3d 303.310 (1st Cir. 2001) (citations omitted) ("[A]n absence of evidence on a critical issue weighs against the party-be it the movant or the nonmovant-who would wear the burden of proof on that issue at trial."). That is exactly what the Defendants have done here; they have shown that Renart cannot establish the essential clement of causation.
It appears that when Renart refers to "liability" she is referring to the limited issue of whether the Defendants breached a duty of care.
In order to prevail on her motion for summary judgment, on the other hand, Renart must "provide sufficient evidence for the court to hold that no reasonable trier of fact could find other than in [her] favor." Am. Steel Erectors. Inc. v. Local Union No. 7. Ass'n of Bridge. Structural. Ornamental & Reinforcing Iron Workers. 536 F.3d 68. 75 (2008) (citing Torres Vargas v. Santiago Cummings. 149 F.3d 29. 35-36 (1st Cir. 1998)). Even if Judge Wolf disagrees with this Court's conclusion regarding Renart's ability to prove causation, she is not entitled to judgment in her favor because there are material disputes of fact concerning what occurred on October 27, 2017. For example, there are material issues of fact regarding whether Pierre was wearing one or two earbuds; whether Renart's body was partially inside the vehicle and, if so, whether Pierre should have realized that she was not completely inside the vehicle; and how much the vehicle moved forward before Pierre stepped on the brake. Accordingly, I recommend that Judge Wolf deny Renart's motion for summary judgment.
See Def. SOF ¶¶7, 8; PI. Resp. ¶¶| 7, 8; PI. SOF ¶¶ 1-5; 20; Def. Resp. ¶¶| 1-5,20; Pocket No. 81-1 at 13.
III. RECOMMENDATION
For the foregoing reasons, this Court recommends that Judge Wolf grant in part and deny in part the Defendants' motion to strike, grant the Defendants' motion for summary judgment, and deny Renart's motion for summary judgment.
IV. REVIEW BY DISTRICT COURT
The parties are hereby advised that under the provisions of Fed.R.Civ.P. 1Kb), any party who objects to these proposed findings and recommendations must file specific written objections thereto with the Clerk of this Court within 14 days of service of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made, and the basis for such objections. See Fed. R. Civ. P. 72. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Fed R Civ P. 72(b) will preclude further appellate review of the District Court's order based on this Report and Recommendation. See Phinncy v. Wentworth Douglas Hospital. 199 F.3d 1 (1st Cir. 1999); Sunview Condo. Ass'n v. Flexel Int'l, Ltd.. 116F.3d 962 (1st Cir. 1997); Pagano v. Frank. 282 F.2d 343 (1st Cir. 1993).