United States District Court, D. Vermont
ORDER ON LINCARE, INC.'S RENEWED MOTION FOR
JUDGMENT AS A MATTER OF LAW (Docs. 94)
Honorable J. Garvan Murtha United States District Judge
Jane Griffin asserts a negligence claim against Defendant
Lincare, Inc. (“Lincare”), alleging it is liable
for frostbite burns to her foot caused by its oxygen system.
(Doc. 1 (“Compl.”), Doc. 43.) After hearing the
testimony of witnesses and examining documentary evidence at
trial, the jury could not reach a verdict and a mistrial was
declared. Lincare now moves for judgment arguing plaintiff
failed to introduce evidence that the proximate cause of her
injury was the advice she received from Lincare's
representative, failed to introduce evidence she was burned
by oxygen vapor and that was the proximate cause of her
injury, and did not introduce any causation theory connecting
Lincare's alleged instructions to the release of oxygen
from the system. (Doc. 94.) Griffin opposes the motion. (Doc.
95.) Lincare filed a reply. (Doc. 96.) For the following
reasons, Lincare's motion is GRANTED.
Jane Griffin, a retired nurse, relies on supplemental oxygen
24 hours per day and has neuropathy (nerve damage) in her
feet that causes tingling, burning, and numbness, and leaves
her with no feeling in her toes and the ball of her foot. She
asserts Lincare, a provider of oxygen, respiratory, and home
infusion products and services, was negligent and is liable
for frostbite burns to her foot caused by its oxygen system
leaking as she attempted to disconnect the portable unit from
the oxygen reservoir tank. Specifically, she alleges Lincare
failed to instruct her in accordance with the
Manufacturer's Operating Manual when its service
representative instructed her to return to the unit and
“twist and rock” the portable unit. See
Doc. 91 at 83 (Trial Tr. 83:20-22). The Court held a
three-day trial from January 10-12, 2017. See Dkt.
Entries No. 81, 84-85.
case consisted of her own testimony, the testimony of
Lincare's service representative, Layton Durkee, and her
doctor, Dr. Matthew Conway. At the close of her case, Lincare
moved for judgment as a matter of law. (Doc. 92 at 34 (Trial
Tr. 34:3-39-12).) The Court denied the motion. Id.
at 39 (Trial Tr. 39:13-40:2.)
introduced expert testimony from Dr. Guiseppe Petrucci and,
at the close of its case, again moved for judgment as a
matter of law. (Doc. 92 at 94 (Trial Tr. 94:14-102:6).) The
Court again denied the motion, allowing the case to go to the
jury. Id. at 102 (Trial Tr. 102:7-14).)
jury deliberated for six hours over two days before informing
the Court it was deadlocked and unable to reach a verdict.
The Court declared a mistrial. Dkt. Entry No. 85.
now renews its motion for judgment as a matter of law. (Doc.
motion for judgment as a matter of law should be granted when
“a party has been fully heard on an issue during a jury
trial and the court finds that a reasonable jury would not
have a legally sufficient evidentiary basis to find for the
party on that issue.” Fed.R.Civ.P. 50(a). The Court
must draw all reasonable inferences in favor of the
non-moving party and may not weigh the evidence or make
credibility determinations. Cross v. N.Y.C. Transit
Auth., 417 F.3d 241, 247 (2d Cir. 2005). A party may
file a post-trial motion for judgment as a matter of law only
where, as here, it has first moved prior to submission of the
case to the jury. Fed.R.Civ.P. 50(b). In ruling on a renewed
motion, the Court may direct the entry of judgment as a
matter of law. Id. 50(b)(3).
reviewed the parties' filings and the trial transcript,
the Court concludes no reasonable jury could determine
Lincare's service representative's instructions to
Griffin were the cause of her injury. In denying summary
judgment, the Court concluded a jury could draw a reasonable
inference that Griffin was injured while standing in close
proximity to the leaking oxygen system as she attempted to
remove the portable unit from the reservoir in accordance
with the Lincare Service Representative's instructions.
(Doc. 43 at 11.) At trial, however, Griffin testified she had
stood in close proximity to the oxygen unit as it was
emitting vapor before she called Lincare and before
Durkee returned her call. (Doc. 91 at 37, 77, 98 (Trial Tr.
37:23-38:4; 77:6-16; 98:13-19).)
requires both “but-for” and proximate causation.
Collins v. Thomas, 938 A.2d 1208, 1211 (Vt. 2007). A
plaintiff must show: (1) the harm would not have occurred
“but-for” the defendant's conduct such that
the “tortious conduct was a necessary condition for the
occurrence of the plaintiff's harm, ” and (2) the
defendant's negligence was “legally sufficient to
result in liability such that liability attaches for all the
injurious consequences that flow from the defendant's
negligence until diverted by the intervention of some
efficient cause that makes the injury its own.”
Id. (internal quotation marks and citations
viewing the evidence in the light most favorable to Griffin,
there is no legally sufficient evidentiary basis--beyond mere
speculation--for a jury to conclude Griffin's injury
happened as a result of Lincare's
representative's instructions because she had already
been standing at the unit in proximity to the leaking oxygen
vapor before she spoke to Durkee and he instructed her to
return to the unit. The key to Griffin's claim is the
relationship, if any, between her exposure to leaking oxygen
from the tank and Lincare Service Representative Durkee's
instructions to her. No testimony, or other evidence, makes
this connection such that a reasonable jury could determine
Griffin's injury happened as a result of, i.e. but-for,
Durkee's instructions. The fact that an accident or
injury occurred is not evidence of negligence. See
Calvert v. Katy Taxi, Inc., 413 F.2d 841, 844 (2d Cir.
1969) (noting “if injury is caused by the negligence of
someone that negligence must be brought home to the defendant
in the action”). Griffin's argument that
“logic and common sense would dictate that the ambient
temperature of the area in the vicinity of the base of tank
would have gotten colder the longer it was exposed to the
leaking cryogenic vapor, ” is insufficient to support a
finding of legal causation. Bolduc v. Coffin, 329