Tracy L. Houghton v. Blackbear Medical

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
Docket No, CV-2021-162

TRACY L. HOUGHTON, AS
PERSONAL REPRESENTATIVE
OF THE ESTATE OF BRIANNA
M. HOUGHTON,

Plaintiff, ORDER ON PENDING MOTIONS
Vv.

BLACK BEAR MEDICAL, INC,,

Defendant.

This matter is before the Court on Defendant Black Bear Medical, Inc.’s (“Black
Bear”) Motion for Summary Judgment and Motion to Exclude Plaintiff's Liability Expert,
Steven Thomas, P.E., as well as a Motion for Leave to Supplement Expert Designation
filed by Plaintiff Tracy L. Houghton, as personal representative of the Estate of Brianna
M. Houghton (“Plaintiff”). For the following reasons, the Court denies Plaintiff's motion,
grants Black Bear’s Motion to Exclude Plaintiff's Liability Expert, and denies Black Bear's
Motion for Summary Judgment.

I, Expert Testimony

The Court will begin by addressing the competing motions regarding expert
testimony because the ruling on that will be relevant to the determination on Black Bear's
Motion for Summary Judgment.

The scheduling order, docketed May 24, 2021, sets a deadline for plaintiff's expert
witness designation of three months from the date of the order. The Court, by order dated
September 23, 2022, extended the deadline for Plaintiff's Expert Designation to December
20, 2022. The scheduling order itself states that “No extensions of the designation

deadlines will be granted except on motion demonstrating good. cause and that discovery

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was timely and diligently conducted in good faith, Counsel shall not assume that agreements
to designate experts beyond these deadlines will be accepted by the court.”

Plaintiff only moved to enlarge time to designate an expert witness after the
deadline for designating an expert had passed—or, rather, still has not moved, except to
supplement the untimely designation. Accordingly, the Court may only grant an
enlargement of time upon a showing of excusable neglect. Hutz v. Alden, 2011 ME 27, 7
21,12 A.3d 1174.

No satisfactory showing of excusable neglect has been made. Plaintiff argues that
an extension was needed to allow their proposed expert to review deposition testimony
of an anticipated witness and that Plaintiff sought and obtained approval of an
enlargement from opposing counsel. In other words, Plaintiff argues that counsel
mistakenly believed that an informal agreement between the parties—without any
notification to the Court—was sufficient to extend the deadline. Mistake as to the law or
procedural rules does not constitute excusable neglect.

Because the initial expert designation was untimely, the Court will not grant leave
to amend. For the same reasons, the Court will grant Black Bear’s Motion to Exclude
Plaintiff's Liability Expert, Steven Thomas, P.E. Additionally, as a sanction for
noncompliance with the scheduling order and discovery rules and in fairness to Black
Bear, Plaintiff is precluded from offering any undesignated expert testimony. See Pitt v.
Frawley, 1999 ME 5, { 7-9, 722 A.2d 358 (holding that the trial court did not err by
precluding the plaintiff from eliciting expert testimony from the defendant attorney
when the plaintiff had failed to designate any expert witnesses).

II. Motion for Summary Judgment
Summary judgment is appropriate “if the summary judgment record, taken in the

light most favorable to the nonmoving party, demonstrates that there is no genuine issue

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of material fact in dispute and the moving party would be entitled to a judgment as a
matter of law at trial.” Chartier v. Farm Fam. Life Ins. Co., 2015 ME 239, {j 6, 113 A.3d 234;
see MLR. Civ. P. 56(c). “A material fact is one that can affect the outcome of the case, and
there is a ‘genuine issue’ when there is sufficient evidence for a fact-finder to choose
between competing versions of the fact.” Toto v. Knowles, 2021 ME 51, { 8, 261 A.3d 233
(quoting Stewart-Dore v. Webber Hosp. Ass'n, 2011 ME 26, 7 8, 13 A.3d 773). To survive a
defendant’s motion for summary judgment, a plaintiff must present a prima facie case
for each challenged element of her claim. See Boivin v. Somatex, Ine., 2022 ME 44, ¥ 10, 279
A.3d 393.

The summary judgment record consists only of the parties’ properly supported
statements of material fact and the portions of the record referenced therein. See Dorsey
v. N. Light Health, 2022 ME 62, J 10, 288 A.3d 386, To controvert a party’s statement of
fact, an opposing party must “support each denial or qualification by a record
citation.” MLR. Civ. P. 56(h)(2).

A. Facts

The facts in the summary judgment record, as established through the parties’
statements of material facts, are as follows:

On July 19, 2015, Plaintiff’s daughter, Brianna Houghton (“Brianna” ), slipped and
fell while transferring from the shower to her wheelchair, a TiLite Aero X FXD Front
Tisport /Z2MPCT2 (“the Wheelchair”). (Def.’s Supp’g S.M.F. {{ 1-2.) As Brianna fell, she
impaled her rectum on a pole extending from the footrest of the Wheelchair, causing her
to sustain injuries and undergo medical treatment. (Def.’s Supp’g 5.M.F. 7] 3.) Plaintiff
was present just after Brianna injured herself on one the poles extending from the
Wheelchair. (PL’s Add’1S.M.F. § 20.) Brianna required a permanent colostomy due to her

injuries. (Pl.’s Add’15.M.F. 97.) Plaintiff claims that the footrest modification extending

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from the Wheelchair was a defect, danger, and safety hazard and that Black Bear failed
to exercise reasonable care in making this modification. (Def.’s Supp’g 5.MLF. 7 4.)

Black Bear is a provider of medical equipment. (Def.’s Supp’g S.M.P. {| 7.) Among
other services, Black Bear works with patients to design and provide specialized medical
equipment, including wheelchairs, adapted to individual patients’ needs. (Def.’s Supp’g
S.MLF. 7.)

Brianna was born with spina bifida and had been a wheelchair user before July 19,
2015, (Def.’s Supp’g S.M.F. 5.) Plaintiff began ordering wheelchairs for Brianna through
Black Bear when Brianna reached her mid-teen years. (Def.’s Supp’g S.M_F. 1 6.) To order
a wheelchair, Plaintiff and Brianna would visit a medical facility to be fitted for a
wheelchair that met her needs, medical conditions, and physical requirements. (Def.’s
Supp’g S.M.E. { 8.) During these visits, a medical professional and a Black Bear service
technician would take necessaty measurements to identify the type of wheelchair that
would be suitable for Brianna. (Def.’s Supp’g S.M.F, { 8; PL’s Resp. Def.’s Supp’g 5.M.F.
§ 8.) The evidence available to Black Bear suggests that the Wheelchair was delivered to
Black Bear and provided to Plaintiff and Brianna in or around March 2012. (Def.’s S.M.F.
T{ 13, 14.)

When Brianna and Plaintiff received the Wheelchair, they realized that the
footrests were too low for Brianna’s legs. (Def.’s S.M.F. { 15; Pi.’s Resp. Def.’s Supp’g
S.M.E. 15.) Plaintiff claims that a Black Bear employee, Don McKenna, modified the
Wheelchair to raise the footrests. (Def.’s Supp’g S.M.F. {| 16.)

Mr. McKenna was an Assistant Technology Provider for Black Bear with over
thirty years of experience. (Def.’s Supp’g S.M.F. { 18.) As an Assistant Technology
Provider, Mr. McKenna received specialized training and ongoing continuing education.

(Def’s Supp’g S.M.F. 7 21.) Mr. McKenna would work with the patient, representatives,

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and medical providers to find the most appropriate wheelchair. (Def.’s Supp’g 5.M.F.
24.)

Mr. McKenna believes that he was “more than likely” the person who installed the
modification on the Wheelchair because he was the one who delivered the Wheelchair.
(Pl’s Add’l S.MLE. { 2.) Mr. McKenna does not have a specific memory of making any
modification to the Wheelchair before or after Brianna’s fall. (Def.’s Supp’g 5.M.F. 1 26,
28.) Both Plaintiff and Mr. McKenna agree that a modification was necessary for Brianna’s
safety. (Def.’s Supp’g S.M.F. { 17; Pl’s Resp. Def.’s Supp’g 5.MF. 7] 17.)

Plaintiff was present when she and Brianna picked up the modified Wheelchair
from Black Bear. (Pl.’s Add’1 S.MF. { 3.) The modifications included two black poles
sticking wp from the Wheelchair, one on each side. (PL’s Add’1 5.MLF. { 7.) The pole that
impaled Brianna was on the Wheelchair when she received it from Black Bear. (PL’s Add’l
S.M.F. J 4.) The modifications were not changed or moved from the time Black Bear
delivered the modified Wheelchair until the time of Brianna’s fall. (Pl’s Add’15.MLF. 71
11, 12.)

After Brianna received the Wheelchair until her fall on July 19, 2015, Brianna had
had no issues with transferring to and from the Wheelchair. (Def.’s Supp’g S.M.F. { 29.)
Until July 19, 2015, Plaintiff had no concerns that the modification was a hazard and did
not notify Black Bear of any safety concerns. (Def.’s Supp’g S.M.F. 30.)

At no point did an engineer, physician, or other expert examine the subject
wheelchair to determine whether Black Bear's alleged modification was defective or
dangerous. (Def.’s Supp’g S.M.F. 17 32, 38; Pl.’s Resp. Def.’s Supp’g 5.M.F. 11 32, 38.) A
physical therapist placed a foam noodle over the protruding pole to prevent additional
injuries after Brianna’s fall. (Def.’s Supp’g S.M.F. {1 32, 38; PL’s Resp. Def.’s Supp’g

S.MLF. {{ 32, 38.)

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Mr, McKenna testified that “common sense” would dictate that the placement of
the poles would have been a “problem.” (Pl.’s Add’15.M.F. 1 16.) Mr. McKenna testified
that he could have come up with a solution for the footrest that would not have involved
having the poles mounted on the outside of the Wheelchair. (PL.’s Add’1 5.M.F. { 17.)

Plaintiff told Mr. McKenna about Brianna’s injury and asked him if anything could
be done to prevent it from happening again. (PL’s Add’l 5.M.F. {| 28.) Mr. McKenna
volunteered to cut the poles off. (P1.’s Add’1S.MLF. 29.) Plaintiff was present when Mr.
McKenna took the Wheelchair and returned it with the poles cut down and capped." (PL’s
Add’1S.M.F. { 30.)

After Plaintiff served a Notice of Claim on Black Bear, Black Bear requested a time
to inspect the Wheelchair and requested that Plaintiff preserve the Wheelchair. (Def.’s
Supp’g S.M.F. 7 40.) Black Bear made a similar request upon the Plaintiff during
discovery. (Def.’s Supp’g S.M.F. { 44.) However, Plaintiff discarded the Wheelchair after
Black Bear’s initial request and after litigation commenced. (Def.’s Supp’g S.MLF. q 45.)
When Plaintiff gave the Wheelchair away, she was not aware that she should keep it.
(PL’s Add’IS.MLF. { 36.)

Plaintiff failed to timely designate an expert witness. (Def.’s Supp’g 5.M.F. 14 50-
58.) As discussed above, Plaintiff is precluded from offering the testimony of her
proposed expert witness on liability.’

Plaintiff's First Amended Complaint consists of five counts: Count I for Strict

Liability: Defective Design or Manufacture, Count II for Breach of implied Warranty of

1 The Court can consider this as evidence of a feasible alternative design. See Rule 407(a); Espeaignette v.
Gene Tierney Co., 43 F.3d 1, 5-8 (1st Cir, 1994) (holding that the trial court erred in a products liability case
by excluding evidence of a subsequent modification under Rules 403 and 407).

2 Plaintiff’s Statement of Additional Material Facts includes several statements regarding expert witness
designations that are similar to the facts already considered by the Court in the context of Plaintiff's Motion
for Leave to Supplement Expert Designation and Black Bear’s Motion to Exclude Plaintiff's Liability Expert.
The Court sees no need to consider these facts again and omits further discussion of them.

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Merchantability, Count III for Breach of Implied Warranty of Fitness for a Particular
Purpose, Count IV for Strict Liability: Failure to Warn, and Count V for Negligence. Black
Bear moves for summary judgment on all counts of Plaintiffs First Amended Complaint.
B. Counts I and V: Defect in Design
Black Bear argues that Plaintiff cannot show that the Wheelchair modification was
“defective” in design. The Law Court has said:
In actions based upon defects in design, negligence and strict lability
theories overlap in that under both theories the plaintiff must prove that
the product was defectively designed thereby exposing the user to an
unreasonable risk of harm. Such proof will involve an examination of the
utility of its design, the risk of the design and the feasibility of safer
alternatives.
St. Germain v. Husqvarna Corp., 544 A.2d 1283, 1285 (Me. 1988) (quoting Stanley v. Schiavi
Mobile Homes, Inc., 462 A.2d 1144, 1148 (Me. 1983).
Thus, to avoid summary judgment on Counts BP and V, Plaintiff must make a
showing that the risk of harm posed by the modified footrest of the Wheelchair was
unreasonable in light of the utility of its design and the feasibility of safer alternatives.

Black Bear argues that in the absence of expert testimony, Plaintiff cannot prove defective

design.*

314M.RS. § 221 provides:

One who selis any goods or products in a defective condition unreasonably dangerous to
the user or consumer or to his property is subject to liability for physical harm thereby
caused to a person whom the manufacturer, seller or supplier might reasonably have
expected to use, consume or be affected by the goods, or to his property, if the seller is
engaged in the business of selling such a product and it is expected to and does reach the
user or consumer without significant change in the condition in which it is sold. This
section applies although the seller has exercised all possible care in the preparation and
sale of his product and the user or consumer has not bought the product from or entered
into any contractual relation with the seller.

4 Plaintiff argues that she need not designate an expert witness because Mr. McKenna’s deposition
testimony adequately establishes the elements of a products liability claim. The Court, however, would
disallow Plaintiff's use of Mr. McKenna’s testimony as an expert because of her failure to timely designate
anyone, including Mr. McKenna, as an expert. Pitt, 1999 ME 5, J 7-9, 722 A.2d 358.

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Contrary to Black Bear’s contentions, Maine law does not always require expert
testimony in products liability cases. The Law Court has certainly never held that expert
testimony is required in all products liability cases. In fact, the Law Court has adopted
Restatement (Third) of Torts: Products Liability § 3 (Am. L. Inst. 1998), which expressly
permits circumstantial evidence to prove a product defect in certain circumstances. Est.
of Pinkham v. Cargill, Inc., 2012 ME 85, {J 19-20, 23, 55 A.3d I.

Even in medical malpractice and legal malpractice cases, where expert testimony
is generally required, there is “an exception. . . for circumstances ‘where the negligence
and harmful results are sufficiently obvious as to lie within common knowledge,’ in those
situations, ‘a verdict may be supported without expert testimony.” Jim Mitchell and Jed
Davis, P.A. v. Jackson, 627 A.2d 1014, 1017 (Me. 1993) (quoting Cyr v. Giesen, 108 A.2d 316,
318 (Me. 1954)); cf. State v. Abdullahi, 2023 ME 41, ¥ 21, 298 A3d 815 (“Lay opinion
evidence is appropriate when ‘the subject of inquiry is one which is plainly
comprehensible by the jury and of such a nature that unskilled persons would be capable
of forming correct conclusions respecting it” (quoting Ginn v. Penobscot Co., 334 A.2d
874, 883 (Me. 1975))).

The summary judgment record contains evidence that the utility of the footrest
modification was derived from the ability to adjust the footrest to fit Brianna. Plaintiff has
presented evidence that a safer alternative (shortening and capping the rods) was feasible
without defeating its utility, Unlike cases involving more complex components of a
wheelchair, the alleged design defect is not beyond a jury’s understanding. Compare
Niehaus v. United Seating & Mobility, Inc., No. 10-160-GPM, 2011 WL 5325652, at *3-4 (5.D.
Ill. Nov. 3, 2011) (expert testimony required to establish defect in joystick and seatbelt in
a power wheelchair) and Bryant v. Scooter Store, 2009 WL 2414111, at *1-2, *6 (Ohio Ct.

App. Aug. 7, 2009) (expert testimony required to establish that power wheelchair’s

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malfunction after exposure to moisture was caused by defective design) with Varady v.
Guardian Co., 506 N.E.2d 708, 711 (Ill. App. Ct. 1987) (no expert testimony required to
prove defect in crutch that buckled under user).

Plaintiff has made a showing sufficient to survive summary judgment on the
challenged elements of her strict liability and negligence claims.

Cc. Remaining Counts

Although Black Bear moves for summary judgment on all counts of Plaintiff’s First
Amended Complaint, Black Bear makes substantive arguments concerning only Counts
Land V. Because a plaintiff opposing a defendant’s motion for summary judgment need
only establish a prima facie case as to each challenged element to survive summary
judgment, the Court denies Black Bear's motion as to the remaining counts of Plaintiff's
First Amended Complaint without further discussion, See Boivin, 2022 ME 44, J 10, 279
A.3d 393; cf. Bayview Loan Servicing, LLC v. Bartlett, 2014 ME 37, { 15 n.5, 87 A.3d 741
(parties waive arguments by failing to adequately develop them).

D. Spoliation

Finally, Black Bear argues that Plaintiff's First Amended Complaint should be
dismissed as a sanction for spoliating evidence or that the jury should be instructed on a
negative inference at trial. Although sanctions certainly may be appropriate under Maine
law for spoliation, the Court is hesitant to resolve what is more properly the subject of a
motion for sanctions or motion in limine in the context of a motion for summary
judgment. See Gagne v. D.E. Jonsen, Inc., 298 F. Supp. 2d 145, 147 (D. Me. 2003) (“The
remedy for spoliation of evidence is sanctions, including ‘dismissal of the case, the
exclusion of evidence, or a jury instruction on the spoliation inference.” (quoting Driggin
v. Am. Sec. Alarm Co., 141 F, Supp. 2d 113, 120 (D. Me. 2000))). In any event, Black Bear

does not dispute (for the purposes of summary judgment) that Plaintiff was unaware at

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the time she disposed of the Wheelchair that she should not have disposed of it or that
Black Bear had planned to inspect it.
lil. Conclusion

For the foregoing reasons, the Court will preclude Plaintiff from presenting expert
testimony. Despite the lack of expert testimony, Plaintiff has made a showing sufficient
to survive summary judgment as to the challenged elements of her claims. Finally, the
Court will not impose sanctions for spoliation at this time. Black Bear may, however,
renew its request through a motion for sanctions or motion in limine.

The entry is:

1. Plaintiff Tracy L. Houghton’s Motion for Leave to Supplement Expert
Designation is DENIED;

2, Defendant Black Bear Medical, Inc.’s Motion to Exclude Plaintiffs Liability
Expert, Steven Thomas, P.E. is GRANTED. Plaintiff is precluded from offering
the testimony of her proposed expert Steven Thomas, P.E., or any
undesignated expert witness; and

3. Defendant Black Bear Medical, Inc.’s Motion for Summary Judgment is
DENIED.

The Clerk is directed to incorporate this Order into the docket by reference

pursuant to Maine Rule of Civil Procedure 79(a).

Wished

Maty ay Kennedy, Justice
faire Superior Court

Dated: / é y. i Of a 5

Entarad on the Docket Ja /)e/4013

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