DONAHOE v. BRINKER INTERNATIONAL, INC.
Filing
42
Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting 30 Motion for Summary Judgment (Woodlock, Douglas)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
MARJORIE JOAN DONAHOE,
)
)
Plaintiff,
)
)
v.
)
)
MAGGIANO’S HOLDING
)
CORPORATION, D/B/A MAGGIANO’S )
LITTLE ITALY RESTAURANT,
)
)
Defendant.
)
CIVIL ACTION NO.
1:18-CV-10230-DPW
MEMORANDUM AND ORDER
February 13, 2020
Plaintiff Marjorie Joan Donahoe was injured when she left a
restaurant through its revolving door.
in state court.
She sued for negligence
Defendant Maggiano’s Holding Corporation
(“Maggiano’s”) removed the matter to this Court on the basis of
diversity jurisdiction and following discovery has moved for
summary judgment.
I will grant that motion after finding as a
matter of law that Ms. Donahoe cannot establish that Maggiano’s
caused her injury.
I. BACKGROUND
The incident occurred when Ms. Donahoe was at Maggiano’s
Little Italy Restaurant on Columbus Avenue in Boston to have
dinner with several members of her family for her 75th birthday.
After dinner, she sought to leave the restaurant through a
revolving door.
A sign on a nearby door instructed patrons to
use the revolving door.
When she went through the revolving door, Ms. Donahoe fell
onto the sidewalk outside of the restaurant.
fall is in dispute.
be assigned to it.
The cause of this
Maggiano’s contends that causation cannot
By contrast, Ms. Donahoe contends that
Maggiano’s revolving door was defective.
Her sole basis for
this contention is a purported expert report.
Ms. Donahoe has submitted a purported expert report from
Michael Panish, a building contractor who says he has been
retained in some 1,300 cases.
Mr. Panish writes that the
American National Standards Institute (“ANSI”) “strongly
recommend[s] that all revolving door mechanisms be inspected by
a professional service provider at least annually and the door
be maintained and inspected for function on a regular basis per
manufacturers instruction. This is considered the best industry
practices.”
ANSI requires doors like the one at Maggiano’s to
have a rotational limit of 12 revolutions per minute.
Mr. Panish tested the door at Maggiano’s in July, 2018.
He
found the door to be in compliance with the rotational
requirement.
Nevertheless, he asserted that, because the door
pushed on Ms. Donahoe’s back, sending her out onto the sidewalk,
“it is more probable than not that the condition of the subject
doorway, and the potential rotational limited speed of the
mechanism exceeded the ANSI requirement, and at the time of the
incident was different than at the time of my site inspection.”
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Additionally, Mr. Panish wrote that, based on the force required
by ANSI to stop the revolving door from revolving, “[i]t is more
probable than not that the plaintiff would have been able to
overcome and withstand that level of force if the braking
adjustment was properly functioning and or adjusted per the
above referenced ANSI standard.”
Mr. Panish made this statement
without any discussion of Ms. Donahoe’s age or physical
strength.
II. STANDARD OF REVIEW
Summary judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A
“genuine” issue is one where a reasonable factfinder could find
in favor of either party.
Borges ex rel. S.M.B.W. v. Serrano-
Isern, 605 F.3d 1, 4 (1st Cir. 2010).
A “material” fact is one
whose “existence or nonexistence has the potential to change the
outcome of the suit.”
Id. at 5.
In ruling on a motion for
summary judgment, I make all reasonable inferences from the
admissible evidence in the light most favorable to the nonmoving party—here, Ms. Donahoe—and grant summary judgment if no
reasonable jury could find for her.
Fithian v. Reed, 204 F.3d
306, 308 (1st Cir. 2000).
Because this is a diversity case, I apply state substantive
law and federal procedural law.
Erie R. Co. v. Tompkins, 304
3
U.S. 64, 78 (1938).
I will apply Massachusetts state law to the
substantive questions of negligence and federal law to the
question whether the expert report is admissible.
See Ruiz-
Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77,
80 (1st Cir. 1998)(applying Rule 702 of the Federal Rules of
Evidence in diversity case); McGovern ex rel. McGovern v.
Brigham & Women's Hosp., 584 F. Supp. 2d 418, 422 (D. Mass.
2008)(same).
III. ANALYSIS
Under Massachusetts law, “[t]o prevail on a negligence
claim, a plaintiff must prove that the defendant owed the
plaintiff a duty of reasonable care, that the defendant breached
this duty, that damage resulted, and that there was a causal
relation between the breach of the duty and the damage.”
Stewart v. Five Bridge Inn, LLC, No. 14-P-1878, 2015 WL 8519517,
at *1 (Mass. App. Ct. Dec. 10, 2015).
Maggiano’s owed Ms.
Donahoe a duty to make reasonable efforts to keep the restaurant
premises in a safe condition.
Allen v. Albert Zallen Co., 165
N.E.2d 403, 404 (Mass. 1960).
A reasonable jury might find that
Maggiano’s breached that duty by failing to inspect the
revolving door regularly.
The question of causation, however,
is more complex.
The parties dispute both the mechanics of Ms. Donahoe’s
injury and whether the revolving door was functioning properly
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at the time of the injury.
Ms. Donahoe’s expert report is
founded on the contention that Maggiano’s breached its duty of
care in maintaining the door, resulting in a malfunction, and
causing Ms. Donahoe’s injury.
A.
Cause of Injury
The only admissible evidence about the unfolding of the
incident is that a child got into another segment of the
revolving door and pushed it so hard that it hit Ms. Donahoe.
Although she admitted as much soon after the incident, Ms.
Donahoe now denies that someone was pushing the door.
She
argues, however, that even if someone was, she would not have
been ejected if the door were functioning properly.
Ms. Donahoe
contends that “by arguing that another party is somehow pushing
the door and causing Ms. Donahoe’s injury, the Defendant has
adopted the position that its revolving door was defective.”
The evidence supporting the contention that another person
was pushing on the revolving door can be marshalled as follows.
First, Ms. Donahoe’s grandson testified that he observed a
little girl pushing the door while Ms. Donahoe walked through
it, and that Ms. Donahoe told him the day after the incident
that this is what happened.
Second, Ms. Donahoe’s granddaughter
Grace testified that Ms. Donahoe told her after the incident
that she fell because a little girl was pushing the door while
Ms. Donahoe was walking through it.
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Third, Ms. Donahoe’s
medical records generated immediately after the incident state
that she “reports she was leaving a restaurant through a
revolving door and another person went through the otherside of
the revolving door at a rapid pace launching pt out onto
sidewalk.”1
In her deposition, however, Ms. Donahoe testified that she
was “definitely confident” that she was “the only one” in the
revolving door, although “[i]t was very dark in there” and she
“did not” look behind her or otherwise check to see if she was
alone in the door.
She testified that she did not touch the
door, but that as soon as she stepped into a partition in the
door, the partition hit her in the back.
She further testified
that when she was at the hospital after the incident,
everybody was asking me and they said, “Somebody must have
pushed that door,” and I don’t know who that—people were
asking me, even people that worked there, “Well, how did
this happen,” and they assumed, whoever was questioning it,
that somebody pushed the door. So that’s where that idea
came—not idea, but that’s where that thought came from.
No, I never saw anybody get in to the… the door, no.
She admitted that she “might have said” that somebody pushed the
door from behind her, but “somebody put that idea into my head.”
1
At the hearing on this matter I found that totem pole hearsay
in a Maggiano’s guest incident report was inadmissible.
Further, I noted that since the motion turns on the question
whether Maggiano’s is responsible, the apparent dispute
referenced by the guest incident report over whether Ms. Donahoe
was pushed, tripped, or some amalgam of both by someone not
affiliated with Maggiano’s was not material to resolution of the
motion on the current record.
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Ms. Donahoe also contends that her “grandchildren may have
created their stories to help them understand how she was
injured.”
The admissible evidence of how the door came to strike Ms.
Donahoe is the grandson’s observation that a little girl was
pushing the door and her admissions immediately thereafter.
At
its best, Ms. Donahoe’s later testimony asserts her absence of
observation; she says she did not look to see whether there was
anyone else in the door.
speculative.
Her testimony is fundamentally
Opinion testimony that is not “rationally based on
the witness’s perception” is inadmissible under Federal Rule of
Evidence 701(a).
A lay witness’s testimony must be based on
what she herself observed and must not require the witness to
make any “irrational leaps of logic.”
180 F.3d 1, 16 (1st Cir. 1999).
Lynch v. City of Bos.,
See also Keller v. United
States, 38 F.3d 16, 31 (1st Cir. 1994)(finding no abuse of
discretion where trial judge did not admit an eyewitness’s
deposition testimony that the plaintiff hit his head prior to a
fall because the eyewitness did not see him strike his head or
testify to “any other sensory perception from which one might
rationally infer such an impact”).
Ms. Donahoe’s testimony that
there was no one else in the door is not based on sensory
perception.
I therefore find Ms. Donahoe’s statement that there
was no one in the door inadmissible.
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B.
Door’s Functionality
Ultimately, however, regardless of whether a child pushed
the door or not, Ms. Donahoe cannot prove that some malfunction
in the door’s operation can be said to be the proximate cause of
the incident.
In his expert report, Mr. Panish tendered the conclusion
that “[i]t is more probable than not that the plaintiff would
have been able to overcome and withstand that level of force if
the braking adjustment was properly functioning and or adjusted
per the above referenced ANSI standard.”
He writes that the
best industry practice is for these doors to be inspected at
least annually, and that “[i]t is more probable than not that
the plaintiff was pushed from behind with greater resistance due
to lack of appropriate maintenance and annual inspection.”
With
respect to the regular inspection, Yolandi Arundel, Maggiano’s
General Manager, testified that the door had not been inspected
in at least 7 years as of the date of her deposition in July,
2018.
However, Mr. Panish came to inspect the door three and a
half years after the incident and found it to be working
properly.
Although he tried, he was “unable to get the movement
of the door to exceed the maximum allowable requirement.”
There
is no evidence that the door was fixed or adjusted between the
time of the incident and the time of Mr. Panish’s inspection.
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Ms. Donahoe suggests the fact that Maggiano’s didn’t inspect the
door for “nineteen years of operation” is evidence of
negligence.
But Ms. Arundel testified that the door has never
been evaluated for safety during her tenure, which began before
this incident and continued as of the date of her July 26, 2018
deposition.
She specifically testified that the door was not
tested after the incident with Ms. Donahoe.
Thus, Mr. Panish’s
opinion requires accepting the perverse and speculative
proposition that a door that was properly functioning at the
only time it was examined, three years after the incident, came
into compliance of its own accord after some undocumented period
of non-compliance that included the date of the incident.
Mr. Panish’s conclusions about the probability that the
door was malfunctioning at the time of the incident are based
solely on an unsupported res ipsa loquitur assertion that, if
the door were working properly, it would not have expelled Ms.
Donahoe in the way that she testifies it did.
But “[r]es ipsa
loquitur is no substitute for the lack of evidence of the
defendant's negligence.”
Ide v. Foreign Candy Co., 2006 Mass.
App. Div. 165, 167 (Mass. App. Div. 2006).
I find the majority of Mr. Panish’s report inadmissible
under Fed. R. Evid. 702.
Under the Federal Rules of Evidence,
“the trial judge must ensure that any and all scientific
testimony or evidence admitted is not only relevant, but
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reliable.”
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
589 (1993).
In other words, a trial judge must “screen out of
the trial process ‘expertise that is fausse and science that is
junky.’”
Smith v. Gen. Elec. Co., No. CIV.A.91-12912-RGS, 2004
WL 870832, at *2 (D. Mass. Apr. 23, 2004) quoting Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 159 (1999) (Scalia, J.,
concurring).
An expert’s opinion should be admitted only if it
is likely to “assist the trier of fact to understand or
determine a fact in issue.”
Smith, 2004 WL 870832, at *3,
quoting Ruiz–Troche, 161 F.3d at 81.
Mr. Panish’s opinion would
not.
That Mr. Panish’s ultimate opinion is at best junk science
relying on exegesis by assertion can be seen by a more granular
evaluation of the claims in his expert report.
1.
Rotational Speed at Time of Inspection
Mr. Panish used the ANSI standards and the size of the
revolving door to determine how many times the door should be
able to revolve in a minute in order to be ANSI compliant.
He
found that, because “the measured drum was approximately 6 feet
in diameter, the correct rotational limit should have been no
more than 12 revolutions per minute (ANSI A 156.27 section
4.2.).”
He tried to push the door hard enough that it would
revolve more than 12 times per minute, and was unable to.
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He
then determined that, at the time of his inspection, the door
was ANSI compliant.
Mr. Panish’s conclusion that the door was compliant at the
time of his inspection is not in dispute.
theory or technique.
Mr. Panish tested his
See Daubert, 509 U.S. at 593.
methodology could be repeated.
His
Narrowly conceived, that
conclusion is rational, based on observable facts, and reflects
valid engineering principles.
It is the only part of his expert
report that is arguably reliable and admissible.
2.
The Wind Blew the Door
However, Mr. Panish next pulls out of the air an
unsupported conclusion that the wind blew the door, causing it
to eject Ms. Donahoe forcefully.
Mr. Panish does not merely
offer this as a speculative possibility.
Rather, he writes, “It
is more probable than not that… the ambient conditions
pertaining to wind allowed the door wing to act as a sail
pushing the door against the plaintiff as she exited the
restaurant.”
I see nothing in the record to ballast this
conclusion and I find it inadmissible. “[N]othing in either
Daubert or the Federal Rules of Evidence requires a district
court to admit opinion evidence that is connected to existing
data only by the ipse dixit of the expert.”
Maciel v. Thomas J.
Hastings Props., Inc., No. CV 10-12167-JCB, 2012 WL 13047595, at
*3 (D. Mass. Nov. 30, 2012) quoting Gen. Elec. Co. v. Joiner,
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522 U.S. 136, 146 (1997).
I may not rely on an opinion with no
scientific or evidentiary foundation.
3.
The Braking Mechanism was Broken
Next, Mr. Panish opines that the braking mechanism was not
working properly at the time of the incident.
His support for
this conclusion is solely that the door was not regularly
inspected.
But he did not tie this conclusion to any pertinent
observations, except for the conclusory observation that Ms.
Donahoe would not have been injured if the door were working
properly.
tested.
His theory about the braking mechanism was not
See Daubert, 509 U.S. at 593.
It is fair to say that
his conclusion is not based on any kind of scientific analysis
or expertise at all.
All that Mr. Panish provided here was his
knowledge of the ANSI standards.
He may be correct that
Maggiano’s inspection frequency of the door is “below the
industry accepted best practices for revolving doors.”
But
while that may be relevant to the question of breach of duty, it
is immaterial to whether the door in fact malfunctioned.
His
pertinent conclusion that the braking mechanism was broken at
the time of the incident is inadmissible under FRE 702 and its
case law as an ipse dixit assertion.
See Slatkavitz v. Gen.
Motors Corp., 523 F. Supp. 383, 385 (D. Mass. 1981) quoting
Swartz v. Gen. Motors Corp. 378 N.E.2d 61, 65 (1978) (holding
that a “verdict may not be based on conjecture and surmise, and
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expert opinion does not help if it is demonstrated that it rests
on speculation”); cf. Stewart, 2015 WL 8519517 (upholding
summary judgment for defendant based on lack of causation where
plaintiff assumed, but could not be sure, that her injury
resulted from tripping over a large rock embedded in a gravel
parking lot).
C.
Summary
The only admissible part of Mr. Panish’s report is that the
door was functioning properly at the time of his site visit.
How it was functioning at some other time — specifically, when
the incident occurred — is not the subject of evidence, but is
confected in service of an improper res ipsa loquitur assertion.
See, e.g., Maciel, 2012 WL 13047595, at *3 quoting Joiner, 522
U.S. at 146 (“Expert testimony may be excluded if there is ‘too
great an analytical gap between the data and the opinion
proffered.’”)
Ms. Donahoe references no evidence to support her expert’s
contention that the door malfunctioned.
Her base assertion that
the door must not have been working properly is insufficient to
establish causation.
Even if a jury believed that she was alone
in the revolving door when she was injured, there is
insufficient evidence for the jury to find that Maggiano’s
caused that injury.
Negligence cannot be established simply
because there has been an accident.
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See Wardwell v. George H.
Taylor Co., 130 N.E.2d 586, 588 (Mass. 1955).
Accordingly,
Massachusetts case law has carefully evaluated the underlying
evidence said to support causation.
A trial judge’s finding of negligence has been reversed
where the evidence was simply that a door fell on a restaurant
patron.
See Benzaquin v. Friendly Ice Cream Corp., 2003 Mass.
App. Div. 65 (Mass. App. Div. 2003).
The patron’s testimony was
that as the door was falling she saw that there was no pin in
the door hinge.
The court found that this was insufficient to
establish that “a deteriorating condition would have been
visible on reasonable inspection.”
Id. at 67.
Similarly, a directed verdict that there was no negligence
was affirmed where the plaintiff suffered mouth and throat
injuries after eating several Warheads Sour Gum balls.
2006 Mass. App. Div. 165 at 165.
See Ide,
The court found the evidence
of causation to be “inadequate” because “[t]here was no evidence
indicating that there was any defect in the Warheads ingested by
Ide, nor was there any clear evidence that the Warheads had
caused Ide’s injuries.”
Id. at 167.
The Supreme Judicial Court, for its part, has rejected as
speculative a causation contention involving a service manager
responsible for turning off a portable electric heater every
night, who did not remember turning it off on a certain Friday.
Third. Nat. Bank Trust Co. v. Reiter Oldsmobile, Inc., 277
14
N.E.2d 824 (Mass. 1972).
A fire started the following Sunday,
and the fire marshal’s office gave the opinion that the fire
started because a portable electric heater was left running and
overheated.
Id. at 825.
The SJC found that because there was a
“possibility that the fire resulted from a defect in the heater
of which the defendant had no notice,” a finding of negligence
“would have rested in surmise and conjecture.”
It is clear that Ms. Donahoe was injured.
she was injured while exiting Maggiano’s.
Id.
It is clear that
Other than that,
nothing is clear, although there is direct evidence a little
girl pushed the door.
But, Ms. Donahoe has offered no evidence
to support her contention that the revolving door itself
malfunctioned.
Her argument is simply that she was injured, she
does not know how it happened, and therefore the door must have
been broken.
As a matter of law, that is insufficient to prove
causation. See Slatkavitz, 523 F. Supp. at 385 (“The key element
of causation cannot be left to a jury's speculation.”).
IV. CONCLUSION
There being no basis to conclude that any breach of duty of
care by Maggiano’s caused injury to Ms. Donahoe, Defendant
Maggiano’s motion for summary judgment is GRANTED.
/s/ Douglas P. Woodlock_________
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE
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