United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON CROSS MOTIONS FOR PARTIAL
SUMMARY JUDGMENT AND MOTION TO STRIKE CERTAIN OPINIONS OF
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
Stephen White filed this action in his capacity as the duly
appointed administrator for the estate of Debra Sarno.
See [ECF No. 1-2 at 1]. Plaintiff alleges
negligence, gross negligence, and wrongful death, and seeks
damages related to pain and suffering and punitive damages
against Defendant Joseph Maldonado in connection with a fatal
motor vehicle accident that involved Mr. Maldonado and Ms.
Sarno. [Id. at 1, 4-8]. In addition, Plaintiff seeks
damages related to pain and suffering, punitive damages, and
damages related to vicarious liability from Mr.
Maldonado's former employer, M&M Produce, Inc.
(“M&M Produce” and, collectively with Mr.
Maldonado, “Defendants”). [Id. at 1,
7-8]. Presently before the Court are Plaintiff's and
Defendants' respective motions for partial summary
judgment. [ECF Nos. 74, 78, 82]. Also before the Court is
Plaintiff's motion to strike certain opinions of
Defendants' expert, Stephen Benanti. [ECF No. 76]. For
the reasons explained herein, Plaintiff's motion for
partial summary judgment on the issue of comparative
negligence, [ECF No. 74], is DENIED. Plaintiff's
unopposed motion for partial summary judgment on the issue of
liability, [ECF No. 78], is GRANTED. Defendants'
partial motion for summary judgment on the issue of punitive
damages, [ECF No. 82], is DENIED. Plaintiff's
motion to strike certain opinions of Defendants' expert,
Mr. Benanti, [ECF No. 76], is GRANTED in part and
DENIED in part.
April 4, 2017, Plaintiff filed this lawsuit in Suffolk
Superior Court. [ECF No. 1-2]. Defendants removed the matter
from state court on May 2, 2017, on the basis of diversity
jurisdiction because Mr. Maldonado was a resident of
Connecticut and M&M Produce had its principal place of
business in Connecticut. [ECF No. 1]. Defendants filed their
answer with affirmative defenses on May 9, 2017. [ECF No. 6].
Following discovery, Plaintiff filed a series of motions on
April 30, 2019, including a motion for partial summary
judgment on the issue of comparative negligence, [ECF No.
74], a motion to strike certain opinions of Defendants'
expert, Mr. Benanti, [ECF No. 76], and a motion for partial
summary judgment on the issue of liability, [ECF No. 78].
Defendants filed their oppositions to two of these motions on
June 6, 2019, [ECF Nos. 89, 91], but did not oppose
Plaintiff's motion for partial summary judgment on the
issue of liability, see [ECF No. 86 at 1 n.1]. On
May 8, 2019, Defendants filed a motion for partial summary
judgment on Plaintiff's claim for punitive damages. [ECF
No. 82]. Plaintiff filed his opposition on May 22, 2019, [ECF
Nos. 84, 85], and Defendants filed their reply on June 5,
2019, [ECF No. 88].
as otherwise noted, the following facts are not in dispute.
morning of April 21, 2014, Ms. Sarno was driving a taxicab
northbound across the Zakim Bridge when she pulled her
vehicle to the right side of the road and came to a stop.
[ECF No. 75 ¶¶ 1-2; ECF No. 83 ¶¶ 1-2].
There is no breakdown lane on the Zakim Bridge. [ECF No. 75
¶ 4; ECF No. 89 ¶ 4]. Ms. Sarno called the dispatcher
at Malden Cab and spoke with Sue Ellen Hyde, telling her that
the vehicle had a flat tire. [ECF No. 75 ¶¶ 2-3;
ECF No. 89 ¶ 1]. Ms. Hyde called a tow truck to assist her.
[ECF No. 75 ¶ 3; ECF No. 83 ¶ 18]. Ms. Sarno waited
in her vehicle for assistance. See [ECF No. 75
¶ 6; ECF No. 83 ¶ 14]. Approximately twenty-four
vehicles maneuvered past Ms. Sarno's taxicab while she
was stopped. [ECF No. 85 ¶ 18; ECF No. 83 ¶ 20].
Maldonado was also traveling northbound on the Zakim Bridge
that morning, driving a truck in the course of his employment
with Defendant M&M Produce. [ECF No. 75 ¶ 5; ECF No.
89 ¶ 5]. Mr. Maldonado's truck struck the taxicab in
which Ms. Sarno was sitting from the rear, causing it to
burst into flames. [ECF No. 75 ¶ 6; ECF No. 89 ¶
6]. Ms. Sarno died as a result of the collision. [ECF No. 75
¶ 7; ECF No. 89 ¶ 7].
judgment is appropriate where the movant demonstrates that
“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 fact is material if
its resolution might affect the outcome of the case under the
controlling law.” Cochran v. Quest Software,
Inc., 328 F.3d 1, 6 (1st Cir. 2003). “A genuine
issue exists as to such a fact if there is evidence from
which a reasonable trier could decide the fact either
way.” Id. When reviewing the record, the court
“must take the evidence in the light most flattering to
the party opposing summary judgment, indulging all reasonable
inferences in that party's favor.” Id. The
First Circuit has noted that this standard “is
favorable to the nonmoving party, but it does not give him a
free pass to trial.” Hannon v. Beard, 645 F.3d
45, 48 (1st Cir. 2011). “The factual conflicts upon
which he relies must be both genuine and material, ”
Gomez v. Stop & Shop Supermarket Co., 670 F.3d
395, 397 (1st Cir. 2012), and the court may discount
“conclusory allegations, improbable inferences, and
unsupported speculation, ” Cochran, 328 F.3d
at 6 (quoting Medina-Muñoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)).
succeed in showing that there is no genuine dispute of
material fact, ” the moving party must point to
“specific evidence in the record that would be
admissible at trial.” Ocasio-Hernandez v.
Fortuño-Burset, 777 F.3d 1, 4 (1st Cir. 2015).
“That is, it must ‘affirmatively produce evidence
that negates an essential element of the non-moving
party's claim,' or, using ‘evidentiary
materials already on file . . . demonstrate that the
non-moving party will be unable to carry its burden of
persuasion at trial.'” Id. at 4-5 (quoting
Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir.
2000)). “One of the principal purposes of the summary
judgment rule is to isolate and dispose of factually
unsupported claims or defenses . . . .” Celotex
Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Once the
movant takes the position that the record fails to make out
any trial-worthy question of material fact, “it is the
burden of the nonmoving party to proffer facts sufficient to
rebut the movant's assertions.” Nansamba v. No.
Shore Med. Ctr., Inc., 727 F.3d 33, 40 (1st Cir. 2013).
seeks summary judgment on Defendants' affirmative defense
of comparative negligence, claiming that Defendants have
failed to provide sufficient evidence of negligence on the
part of Ms. Sarno. [ECF No. 75 at 7]. In response, Defendants
argue that there are issues of material fact regarding
whether Ms. Sarno exercised reasonable care when faced with
car trouble on the Zakim Bridge or whether she violated a
Massachusetts regulation regarding highway safety. [ECF No.
89 at 1].
Whether Ms. Sarno Exercised Reasonable Care
Massachusetts law, which provides the basis for
Defendants' comparative negligence defense, “[t]he
burden of alleging and proving negligence which serves to
diminish a plaintiff's damages or bar recovery under this
section shall be upon the person who seeks to establish such
negligence, and the plaintiff shall be presumed to have been
in the exercise of due care.” Mass. Gen. Laws ch. 231,
§ 85. Defendants therefore bear the burden of proving
that Ms. Sarno did not exercise reasonable care and that this
alleged lapse resulted, at least in part, in her injuries.
question of comparative negligence, like that of breach of
duty, is primarily for the factfinder.” Marquez v.
Home Depot USA, Inc., 154 F.Supp.2d 152, 156 (D. Mass.
2001) (citing Everett v. Bucky Warren, Inc., 380
N.E.2d 653 (Mass. 1978)). The parties dispute several facts
that are relevant to Defendants' burden on the issue of
comparative negligence. For example, there are disputed
factual issues as to the condition of Ms. Sarno's
vehicle. Plaintiff alleges that Ms. Sarno's vehicle had a
flat tire, while Defendants dispute this. [ECF No. 75 at 2;
ECF No. 89 at 2]. Ms. Sarno made a call to her dispatcher,
Ms. Hyde, to report a flat tire, [ECF No. 75 at 2], but
Defendants state that Ms. Hyde's testimony regarding Ms.
Sarno's representations about the condition of the
vehicle are hearsay, and note that there is no evidence of
the condition of her vehicle, [ECF No. 89 at
The condition of the vehicle's tires and the resulting
drivability of the car is relevant to the parties'
dispute as to whether Ms. Sarno could have driven to a place
of safety, or whether she could have pulled the vehicle
closer to the shoulder of the highway. [ECF No. 75 at 3-4;
ECF No. 89 at 4-5]. The parties also dispute whether Ms.
Sarno should have exited the vehicle while waiting for
assistance. [ECF No. 75 at 4-6; ECF No. 89 at 10-11].
Relatedly, the parties dispute whether, if she had moved the
vehicle or her person to a position of safety, the accident
could have been avoided or its severity minimized. [ECF No.
75 at 5-6; ECF No. 89 at 4-5].
Alleged Violation of a Statute or Regulation
also allege that Ms. Sarno violated a Massachusetts highway
regulation. [ECF No. 89 at 7]. The Massachusetts statute
governing comparative negligence addresses the issue of
liability when a plaintiff has violated such a regulation:
The violation of a criminal statute, ordinance or regulation
by a plaintiff which contributed to said injury, death or
damage, shall be considered as evidence of negligence of that
plaintiff, but the violation of said statute, ordinance or
regulation shall not as a matter of law ...