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Montany v. University of New England

United States Court of Appeals, First Circuit

May 30, 2017

ANNALIA MONTANY, Plaintiff, Appellant,


          John J.E. Markham, II, with whom Markham & Read was on brief, for appellant.

          Edward M. Kaplan, with whom William D. Pandolph and Sulloway & Hollis, P.L.L.C. were on brief, for appellees.

          Before Torruella, Thompson, and Kayatta, Circuit Judges.

          THOMPSON, Circuit Judge.

         Annalia Montany appeals from the entry of summary judgment in favor of the University of New England (UNE) and Scott McNeil (collectively, defendants). We affirm.


         Montany was a student in UNE's two-year occupational-therapy master's degree program. The program requires its students to take practical exams, in which program instructors act as mock patients and students are tested on their ability to properly manage a patient in need of occupational therapy. In one of these practical exams, Montany was tasked with assisting McNeil - an instructor playing the role of a mock patient who was "unable to ambulate" and was "very weak, and unable to bear much weight into the legs" - in a transfer from a wheelchair into a bed. According to Montany, while she was assisting McNeil in the transfer, McNeil intentionally "dropped his weight" (210 pounds) in "a fake slipping" or "falling movement."[2] Montany suffered a back injury as a result, although she did not report this injury to McNeil at this time. Montany did not achieve the minimum passing score on this practical exam. According to Montany, she told McNeil three days after failing this practical exam that her "back hurts." Five days after that, Montany took a retake of the practical exam for the course; it is undisputed that she did not tell McNeil or any other instructor at UNE that she could not retake the practical exam because of any back problem. She failed the retake exam as well, and so did not receive a passing grade for the course.

         As a result of this failing grade, the program's Student Development Committee (SDC) intervened. During her initial meeting with the SDC, Montany did not report that she had injured her back or relate that her failure of the retake of the practical exam was a product of her back injury. The SDC developed a plan (SDC plan) for Montany that provided, in pertinent part, that, "[d]epending on her GPA and progress in other courses this fall, she may return [for the following fall semester] on academic probation to re-take [the failed course] or be dismissed" and that "she needs to keep her GPA high in other courses to meet the 3.00 semester criterion." In a later meeting with the SDC, she reported the back injury she suffered in the practical exam. Although Montany maintained a 3.07 GPA that semester, the SDC nonetheless voted to dismiss Montany from the program. The program director agreed, and, accordingly, Montany was dismissed from the program. Montany responded by filing suit against UNE and McNeil. She asserted a negligence claim against both defendants and a breach-of-contract claim against UNE. Montany timely appealed from the district court's entry of summary judgment on both claims.


         On appeal, Montany argues that the district court [3] erred in entering summary judgment for defendants on both of her claims. We address each claim in turn.

         A. Negligence

         In her complaint, Montany alleged that the practice of feigning falls in a practical exam - which, according to Montany, McNeil did during Montany's practical exam (and, to a lesser extent, during another one of Montany's practical exams in the prior semester) - is "a procedure known by the medical community to be dangerous." "Lifting or bearing the dead weight of a patient, " Montany's complaint alleged, "is known to be a frequent cause of injury to health care providers. Therefore, the practice engaged in by defendant McNeil . . . was negligent in that it placed an unreasonable risk of injury upon the plaintiff." Montany further alleged that McNeil's conduct during the practical exam in which she suffered a lasting back injury "was unreasonable and a lack of ordinary care" and that McNeil's weight "was more tha[n] [Montany] should have been required to bear."

         After discovery was complete, the district court entered summary judgment in defendants' favor on Montany's negligence claim. Reasoning that "[t]he circumstances of the practical exam at issue were particular to the program of study of occupational therapy conducted by UNE" and that "the negligence and its harmful results to [Montany] are not so obvious in this case as to lie within a jury's common knowledge, " the court concluded that expert testimony was required to establish defendants' breach of the standard of care. The court explained:

Whether a student studying occupational therapy is required to move patients heavier than herself as part of the job duties for which she is being trained, whether she must demonstrate at [Montany's] stage of her training at the time of the practical exam at issue that she knows how to do this without coaching from an instructor or supervisor, and whether an instructor acting as a patient in such an exam may reasonably act in the manner described by [Montany] are all questions that are not within an average juror's common sense, knowledge, or experience.

         Because Montany had failed to designate such an expert, the district court granted defendants summary judgment on her negligence claim.

         On appeal, Montany argues that expert testimony was not required to establish McNeil's breach of the standard of care. Montany insists that, to the contrary, McNeil's actions - instructing Montany to hold on to a gait belt and then dropping his weight during the practical exam - were "non-technical" and went "against common sense and the ordinary standard of care." As a fallback, Montany argues that, even if expert testimony would ordinarily be required in this context, it is not required in this case because "the negligence and harmful results ...

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