Hayes v. Lisbon Rd. Animal Hosp.

• Decision Date: 07 April 2015
• Docket Number: SUPERIOR COURT CIVIL ACTION Docket No. CV-13-168
• Parties: LINDSY HAYES, Plaintiff v. LISBON ROAD ANIMAL HOSPITAL, Defendant
• Court: Maine Superior Court

LINDSY HAYES, Plaintiff v. LISBON ROAD ANIMAL HOSPITAL, Defendant

SUPERIOR COURT CIVIL ACTION Docket No. CV-13-168

Superior Court of Maine

April 7, 2015

STATE OF MAINE

ANDROSCOGGIN, ss.

ORDER ON MOTION FOR SUMMARY JUDGMENT

Before the court is Defendant Lisbon Road Animal Hospital's ("Lisbon Road") Motion for Summary Judgment. Plaintiff Lindsy Hayes filed a seven-count Complaint against Lisbon Road following the death of her collie, Murphy. The court previously granted Lisbon Road's Motion for Judgment on the Pleadings as to Count IV, for negligent infliction of emotional distress, and Count VII, for loss of companionship and intrinsic value, and those counts have been dismissed. Lisbon Road's Motion for Summary Judgment concerns the remaining counts of the Complaint. The Complaint contains the following remaining counts: Count I is for professional negligence; Count II is for breach of fiduciary duty; Count III is for recoupment; Count V is for breach of contract; and Count VI is for vicarious liability. Ms. Hayes has opposed Lisbon Road's Motion for Summary Judgment. The court has reviewed the parties' filings, and has found the following.

I. Factual and procedural background

The following facts are gathered from Lisbon Road's Statement of Material Facts (S.M.F.), Ms. Hayes' Responses to the S.M.F. (O.S.M.F.), Ms. Hayes' Additional Statement of Material Facts (A.S.M.F.), and Lisbon Road's Reply Statement (R.S.M.F.).

On July 20, 2012, Ms. Hayes brought her eight-year-old dog, Murphy, to Lisbon Road so that his skin condition could be evaluated and treated. (S.M.F. ¶ 1; O.S.M.F. ¶ 1; A.S.M.F. ¶ 1; R.S.M.F. ¶ 1.) Murphy was diagnosed with Seborrhea and he was prescribed a shampoo to address itching. (A.S.M.F. ¶ 3; R.S.M.F. ¶ 3.) When Ms. Hayes and Murphy visited Lisbon Road they would see either Veterinarian Robert Clark, Jr. or Veterinarian Tyler Cote. (S.M.F. ¶ 2; O.S.M.F. ¶2; A.S.M.F. ¶ 2; R.S.M.F. ¶ 2.)

Between July 20, 2012 and March 7, 2013, Ms. Hayes both consulted by telephone and visited Lisbon Road a number of times for treatment of Murphy's skin condition. (S.M.F. ¶ 2; O.S.M.F. ¶ 2.) Doctors Clark and Cote performed a variety of diagnostic tests and recommendeda number of remedies for Murphy's skin ailments. (Id.) On November 16, 2012, Murphy visited Lisbon Road again because his skin condition had failed to clear up and Prednisone was prescribed. (A.S.M.F. ¶ 4; R.S.M.F. ¶ 4.) Ms Hayes was very concerned that Murphy's condition was not improving. (A.S.M.F. ¶ 5; R.S.M.F. ¶ 5.) Murphy returned to Lisbon Road again on January 18, 2013. (A.S.M.F. ¶ 7; R.S.M.F. ¶ 7.)

On March 5, 2013, Ms. Hayes and Dr. Clark discussed a skin scraping test. (A.S.M.F. ¶ 9; R.S.M.F. ¶ 9.) Dr. Clark indicated that a skin scraping test was unnecessary. (A.S.M.F. ¶ 9; R.S.M.F. ¶ 9.) He explained that he would treat for mites, since if mites are suspected mites should be treated regardless of the outcome of the test. (R.S.M.F. ¶ 9.) Dr. Clark prescribed the medication Revolution for Murphy. (A.S.M.F. ¶ 10.)

Revolution provides that it is not to be given to underweight dogs. (A.S.M.F. ¶ 10.) While Murphy had lost 34 pounds, Murphy had originally been overweight prior to his weight loss and after his weight loss Murphy weighed 111 pounds. (A.S.M.F. ¶ 10; R.S.M.F. 10.) Ms. Hayes testified that normal weight for an adult male collie can range from 60 to over 100 pounds.¹ (R.S.M.F. ¶ 10.)

Ms. Hayes eventually took Murphy to Central Maine Veterinary Hospital on March 11, 2013, at which point he was in dire shape and deteriorating. (S.M.F. ¶¶ 3-4; O.S.M.F. ¶¶ 3-4.) Dr. Claire Morissette examined and performed diagnostic tests on Murphy. (S.M.F. ¶ 3; O.S.M.F. ¶ 3.) Dr. Morissette performed a skin scrape and found that Murphy had scabies. (A.S.M.F. ¶ 13; R.S.M.F. ¶ 13.) Dr. Morissette also suggested that Murphy had cancer. (S.M.F. ¶ 4; O.S.M.F. ¶ 4.) Based on his poor health and the likelihood that Murphy had untreatable cancer, Ms. Hayes had Murphy euthanized on March 21, 2013. (S.M.F. ¶ 5; O.S.M.F. ¶ 5.)

Ms. Hayes' counsel sought and the court granted five separate enlargements of Ms. Hayes' deadline to designate expert witnesses, which extended Ms. Hayes' deadline by 88 days. (S.M.F. ¶ 7; O.S.M.F. ¶ 7.)

At the time of the final deadline for designating expert witnesses, Ms. Hayes' counsel designated Dr. Clark of Lisbon Road and Dr. Morissette of Central Maine Veterinary Hospital. (S.M.F. ¶ 8; O.S.M.F. ¶ 8.) With respect to Dr. Clark, the designation did not provide any opinions that Ms. Hayes claims Dr. Clark holds that would substantiate her claim against him,instead the designation stated that Dr. Clark's opinions would be elicited through deposition and that she reserved the right to adopt them. (S.M.F. ¶ 9; O.S.M.F. ¶ 9.) Ms. Hayes never noticed or attempted to take Dr. Clark's deposition prior to the discovery deadline of September 14, 2014, and her motion to enlarge the discovery deadline was denied. (S.M.F. ¶ 10; O.S.M.F. ¶ 10.) Lisbon Road's Answer to the Complaint denies that Dr. Clark breached any duty to Ms. Hayes or that his actions caused Murphy's death. (S.M.F. ¶ 11; O.S.M.F. ¶ 11.)

Ms. Hayes originally asserted that Dr. Morissette would provide expert testimony concerning breaches of the standard of care, however, Dr. Morissette was designated without her knowledge and consent, never agreed to act as an expert witness, and would not consent to act as an expert witness. (S.M.F. ¶¶ 12-13; O.S.M.F. ¶¶ 12-13.) On September 2, 2014, following Dr. Morissette's objection to her designation, Ms. Hayes' counsel supplied an amended expert witness list, which no longer listed Dr. Morissette and only listed Dr. Clark. (S.M.F. ¶ 14; O.S.M.F. ¶ 14.) Ms. Hayes has no education in veterinary science. (S.M.F. ¶ 15.)

II. Standard of review

"Summary judgment is appropriate when the record reveals no issues of material fact in dispute. A fact is material if it has the potential to affect the outcome of the case." Lepage v. Bath Iron Works Corp., 2006 ME 130, ¶ 9, 909 A.2d 629 (citations omitted).

The Law Court has held that "[s]ummary judgment is properly granted if the facts are not in dispute or, if the defendant has moved for summary judgment, the evidence favoring the plaintiff is insufficient to support a verdict for the plaintiff as a matter of law." Curtis v. Porter, 2001 ME 158, ¶ 7, 784 A.2d 18; see also Houde v. Millett, 2001 ME 183, ¶ 11, 787 A.2d 757. If "a defendant moves for summary judgment, the plaintiff 'must establish a prima facie case for each element of her cause of action' that is properly challenged in the defendant's motion." Curtis, 2001 ME 158, ¶ 8, 784 A.2d 18 (quoting Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, ¶ 9, 711 A.2d 842); see also Corey v. Norman, Hanson & DeTroy, 1999 ME 196, ¶ 9, 742 A.2d 933.

When considering a Motion for Summary Judgment, the court must admit uncontroverted facts from the statement of material facts that are properly supported. M.R. Civ. P. 56(h)(4). The court cannot consider parts of the record that are not properly referenced in a statement of material facts. See M.R. Civ.P. 56(h)(4) ("The court shall have no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of facts."); see also HSBC Bank USA, N.A. v. Gabay, 2011 ME 101, ¶ 17, 28 A.3d 1158.

III. Discussion

a. Professional negligence, breach of contract, recoupment and vicarious liability

As an initial matter, Ms. Hayes concedes that her recoupment, breach of contract, and vicarious liability claims should be "treated consistently" with her professional negligence claim.

Ms. Hayes has alleged that Lisbon Road breached the standard of care in its treatment of Murphy and that Lisbon Road's negligence proximately caused Murphy's death. Ms. Hayes, however, has not properly designated experts to support her case. Dr. Clark of Lisbon Road is listed as her sole expert witness. Lisbon Road contends that Ms. Hayes cannot prevail on her action for professional negligence without expert testimony.

"[O]rdinarily a plaintiff can discharge his burden of proof for a claim of negligent medical care only by expert medical testimony establishing the appropriate standard of medical care, that the defendant departed from the standard, and that the negligent conduct proximately caused the plaintiff's injury." Forbes v. Osteopathic Hosp. of Maine, Inc., 552 A.2d 16, 17 (Me. 1988). "The exception to the rule is that under some circumstances where the negligence and harmful results are sufficiently obvious as to lie within common knowledge, a verdict may be supported without expert testimony." Cyr v. Giesen, 150 Me. 248, 251-52, 108 A.2d 316, 318 (1954). This principle has been extended to negligence actions involving attorneys and professional engineers. Seven Tree Manor, Inc. v. Kallberg, 1997 ME 10, ¶¶ 6, 7, 688 A.2d 916.

Maine Rule of Evidence 702 allows for the use of expert testimony "If scientific, technical, or other specialized knowledge will assist the trier or fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." M.R. Evid. 702.

Other jurisdictions have required expert testimony in veterinary malpractice actions. E.g., Zimmerman v. Robertson, 854 P.2d 338, 340 (Mont. 1993) ("expert testimony is necessary to establish the applicable standard of care in an action against a veterinarian which arises from the veterinarian's professional capacity. Matters concerning the standard of care owed by a veterinarian during and after surgery are outside the common experience and knowledge of lay jurors . . . ."); Juliano v S.I. Vet Care, 950 N.Y.S.2d 492 (N.Y. App. Term. 2012) (while stating that expert testimony is unnecessary in cases where the acts themselves demonstrate malpractice, the court noted that in the...