United States Court of Appeals 

For the First Circuit 

No. 16-2176 

ANNALIA MONTANY, 

Plaintiff, Appellant, 

v. 

UNIVERSITY OF NEW ENGLAND and SCOTT MCNEIL, 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. Jon D. Levy, U.S. District Judge] 

Before 

Torruella, Thompson, and Kayatta, 

Circuit Judges. 

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. 

May 30, 2017 
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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. 

BACKGROUND1

Montany was a student in UNE's two-year occupationaltherapy 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 

 1 In this summary-judgment appeal, we view the facts (and all 

reasonable inferences that can be drawn from them) in the light 

most favorable to Montany, the nonmovant. See Garmon v. Nat'l 

R.R. Passenger Corp., 844 F.3d 307, 312 (1st Cir. 2016). We set 

forth here only those facts necessary to provide the general 

backstory, amplifying this factual background when necessary in 

the course of our analysis. 

2 In her opening and reply briefs, Montany repeatedly asserts 

that McNeil instructed her to hold on to a gait belt during this 

transfer. However, the record passages cited for support show 

only that Montany was holding a gait belt during the transfer, not 

that McNeil instructed her to do so. Nonetheless, because it makes 
- 3 - 

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 

 

no difference to our analysis, we assume, favorably to Montany, 

that McNeil instructed her to hold on to a gait belt during the 

transfer. 
- 4 - 

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.

ANALYSIS 

On appeal, Montany argues that the district court3 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 

 3 We view things institutionally and use "the district court" 

to refer to both the magistrate judge who issued a report and 

recommendation (R&R) and the district-court judge who adopted the 

R&R in its entirety. 
- 5 - 

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. 
- 6 - 

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 [were] 

sufficiently obvious as to lie within common knowledge." (Quoting 

Cyr v. Giesen, 108 A.2d 316, 318 (Me. 1954).) We disagree. 

Under Maine law,4 there are four elements of a negligence 

claim: "duty, breach, causation, and damages." Maravell v. R.J. 

Grondin & Sons, 914 A.2d 709, 712 (Me. 2007) (quoting Maddocks v. 

Whitcomb, 896 A.2d 265, 268 (Me. 2006)). "In determining the 

nature of the appropriate standard of care or practice, expert 

testimony may be necessary 'where the matter in issue is within 

the knowledge of experts only, and not within the common knowledge 

of lay[persons].'" Id. at 712-13 (alteration in original) (quoting 

Cyr, 108 A.2d at 318). The Maine Supreme Judicial Court, sitting 

as the Law Court (Law Court), has held that expert testimony is 

 4 The parties agree that Maine law governs this diversity 

case. 
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ordinarily required to establish the duty and breach elements in 

a negligence action against a physician or surgeon, see Cyr, 108 

A.2d at 318, a dentist, see Welch v. McCarthy, 677 A.2d 1066, 1067, 

1069 (Me. 1996), an attorney, see Pawlendzio v. Haddow, 148 A.3d 

713, 715 (Me. 2016), a professional engineer, see Seven Tree Manor, 

Inc. v. Kallberg, 688 A.2d 916, 917-18 (Me. 1997), a college 

athletic trainer, see Searles v. Trs. of St. Joseph's Coll., 695 

A.2d 1206, 1210 (Me. 1997), and a general contractor supervising 

a blasting contractor, see Maravell, 914 A.2d at 713. As the Law 

Court has observed, requiring expert testimony in such 

circumstances protects against "the potential danger that a jury, 

composed of laymen and gifted with the benefit of hindsight, will 

divine the breach of a[n] . . . obligation largely on the basis of 

the unfortunate result." Woolley v. Henderson, 418 A.2d 1123, 

1131 (Me. 1980). 

We reject Montany's contention that an expert is not 

generally required to establish the standard of care for what is 

reasonable conduct in a practical exam in an occupational-therapy 

program and the breach of that standard of care. Montany admits 

that "[a] practical exam requires that a student properly manage 

a patient in need of occupational therapy," and McNeil testified 

that practical exams are designed to test students' abilities to 

demonstrate proper mastery of transfer mechanics. The question of 

whether a practical exam tests those mechanics in an unreasonable 
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fashion is "not within the common knowledge of lay[persons]" and 

instead lies "within the knowledge of experts only." Maravell, 

914 A.2d at 712-13 (alteration in original) (quoting Cyr, 108 A.2d 

at 318). Indeed, Montany concedes that her negligence claim 

involves the question "whether an instructor acting as a patient 

in [a practical] exam 'may reasonably act in the manner described 

by [Montany].'" Answering that question requires more than the 

jury's common sense, knowledge, and experience; it requires expert 

testimony separating the reasonable actions of an occupationaltherapy instructor administering a practical exam to a graduate 

student from those that breach the standard of care.5 

Of course, even in those circumstances where expert 

testimony is ordinarily required to establish breach of the 

standard of care, such testimony is not required "where the 

negligence and harmful results are sufficiently obvious as to lie 

within common knowledge." Id. at 713; see also Downer v. Veilleux, 

322 A.2d 82, 84 (Me. 1974) (explaining that this exception applies 

"where the negligence and the harmful results are so glaringly 

apparent as to lie within the common knowledge of laymen"); cf. 

 5 Montany's complaint confirms this conclusion. Although she 

alleged that McNeil's conduct during the practical exam "was 

unreasonable and a lack of ordinary care," she also alleged that 

the practice of feigning falls is "a procedure known by the medical 

community to be dangerous" and that "[l]ifting or bearing the dead 

weight of a patient is known to be a frequent cause of injury to 

health care providers." (Emphasis added.) 
- 9 - 

Michaud v. Blue Hill Mem'l Hosp., 942 A.2d 686, 688 (Me. 2008) 

("Except in unusual circumstances, not existing here, a plaintiff 

in a medical malpractice case must prove the nature and scope of 

the defendants' duty by expert medical testimony." (emphasis 

added)). Montany attempts to bring her case within this exception, 

but we are unpersuaded. 

The two cases upon which Montany primarily relies do not 

support her position that expert testimony was not required in 

this case. Montany principally relies on Searles, but that case 

offers her no assistance. In Searles, the Law Court held that, 

while "establishing the standard of care for [athletic trainers] 

in their treatment of athletes ordinarily requires expert 

testimony," 695 A.2d at 1210, no expert testimony was required in 

the circumstances of that case, which involved a negligence action 

brought by a college basketball player who suffered knee injuries, 

id. at 1208, 1210-11. The basketball player's claim against the 

athletic trainer "involve[d] more than a claim that [the athletic 

trainer] negligently conducted a course of treatment of [the 

player's] injuries that contributed to a worsening of his 

condition, or that he failed to appreciate the seriousness of [the 

player's] condition." Id. at 1210-11. Instead, the claim was 

that the athletic trainer, despite knowing of the acuteness of the 

player's injuries, failed to notify the basketball coach that the 

player should not have played basketball and failed to communicate 
- 10 - 

to the coach the nature and extent of the player's injuries. Id. 

at 1211. The court reasoned that "[j]urors could apply their 

common knowledge in determining whether such failures, if they 

occurred, constituted a breach by [the athletic trainer] of his 

duty to exercise reasonable care for the health and safety of [the 

player]." Id. 

But Montany's case is not cut from the same cloth. She 

alleges that McNeil's weight drop during the practical exam was 

unreasonable. Assessing the reasonableness of that conduct — which 

indisputably occurred during the course of a practical exam in an 

occupational-therapy graduate-degree program — is not a matter 

within the common knowledge of lay jurors. Instead, it is a matter 

of professional judgment about the appropriate manner in which to 

test occupational-therapy graduate students on mobility-transfer 

mechanics. Indeed, Searles actually supports the district court's 

conclusion that an expert was required in this case. As the Law 

Court recognized in Searles, "the standard of care applicable to 

an athletic trainer who treats physical injuries or who must make 

judgments about the severity of a physical condition does not 

ordinarily lend itself to common knowledge." Id. at 1210. The 

same is true for the standard of care in this case, which hinges 

on a professional-judgment call about the appropriate manner to 

test graduate students in a practical exam administered as part of 

an occupational-therapy program. 
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The other case on which Montany relies, Walter v. WalMart Stores, Inc., 748 A.2d 961 (Me. 2000), is also of no 

assistance to her. In that case, the defendant pharmacist gave 

the plaintiff the wrong medication, id. at 964-65, and he admitted 

that he failed to follow the pharmacy's four-step process utilized 

to check for errors, id. at 967. The Law Court held that expert 

testimony was not required to establish the pharmacist's breach of 

the standard of care because "[t]he negligence of the pharmacist 

and the harmful results were sufficiently obvious to be within the 

common knowledge of a lay person. It does not take an expert to 

know that filling a prescription with the wrong drug and failing 

to take the steps in place in that pharmacy to check for the wrong 

drug is negligence." Id. at 972. Unlike a pharmacist's failure 

to dispense the correct medication, however, McNeil's alleged 

negligence — a purposeful weight drop during a practical exam 

testing students' abilities to demonstrate proper transfer 

mechanics in an occupational-therapy graduate-degree program — and 

its harmful effects are not sufficiently obvious to be within the 

common knowledge of a lay person. Expert testimony, therefore, 

was required to establish McNeil's breach of the standard of care.6 

 6 Montany's reliance on Laing v. Clair Car Connection, No. 

Civ. A. CV-01-516, 2003 WL 1669624, at *4 (Me. Super. Ct. Jan. 29, 

2003), is also misplaced. The plaintiff's pertinent claims in 

Laing were for negligent misrepresentation and breach of contract, 

and the Superior Court rejected the car dealer's argument that 

"expert testimony is required to establish one's duty not to 
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At oral argument, Montany offered an additional reason 

why, in her view, her negligence claim does not require expert 

testimony: According to Montany, McNeil testified in his 

deposition that an intentional weight drop "wasn't part of the 

test."7 But this contention made its debut at oral argument, so 

we need not — and therefore do not — consider it. See United 

States v. Hogan, 722 F.3d 55, 61 (1st Cir. 2013) (holding that 

appellant waived arguments raised for first time at oral argument). 

As a last gasp, Montany attempts to paper over her own 

failure to obtain an expert by noting that "[d]efendants presented 

 

negligently misrepresent facts or breach a contract." Id. 

Similarly, to the extent Montany intended to rely on Seider v. 

Board of Examiners of Psychologists, 754 A.2d 986 (Me. 2000), it 

provides her no support. In that case — which arose from the 

decision of the Board of Examiners of Psychologists (Board) that 

found that the plaintiff, a psychologist, violated the code of 

conduct governing her profession — the Law Court rejected the 

argument that the Board was required, as a matter of procedural 

due process, to establish the standard of care through expert 

testimony because (among other reasons) "it is well within the 

realm of common knowledge that a complete failure to act in 

accordance with provisions of the code of conduct established for 

one's profession constitutes a violation, and that violations of 

numerous provisions of that code may constitute negligence." Id. 

at 992. 

7 It appears that what McNeil actually said in his deposition 

was less definitive than Montany lets on. From our review of the 

deposition transcript (Montany has not pointed us to where in the 

record this statement appears), the closest thing we can find in 

McNeil's testimony is where he stated: "Shift my weight 

unexpectedly, throw my arms in the air unexpectedly, I — that 

doesn't sound like what happens in a practical exam." In any 

event, because Montany failed to raise this argument to this court 

until oral argument, we need not dwell on whether Montany's 

characterization of McNeil's testimony is accurate. 
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no evidence of any specialized circumstances that preclude a jury 

from understanding what happened." But she cites no case — let 

alone a Maine case — for the proposition that a defendant in a 

negligence action is under any burden to come forward with record 

evidence demonstrating that an expert is required to establish the 

standard of care and its breach.8 Montany, the plaintiff in this 

action, bore the burden of establishing the prima facie elements 

of her negligence claim, see Maravell, 914 A.2d at 712, and, for 

reasons already explained, we are convinced — based on the 

undisputed fact that her negligence claim against an occupationaltherapist instructor alleges that he acted unreasonably in the 

course of administering a practical exam to a graduate student in 

the occupational-therapy master's degree program — that, to 

satisfy this burden, she needed to come forward with expert 

testimony to establish the standard of care and its breach. 

Because expert testimony was required to establish McNeil's breach 

of the standard of care and Montany failed to adduce such evidence, 

summary judgment in defendants' favor was appropriate on her 

negligence claim. See Pawlendzio, 148 A.3d at 715-16 (affirming 

 8 The Law Court's decision in Seven Tree Manor, which Montany 

references in passing in connection with this argument, imposes no 

such obligation. In that case, the Law Court instructed the 

parties to brief the issue of the need for expert testimony to 

establish breach of the standard of care owed by professional 

engineers and both parties agreed that such testimony should 

ordinarily be required. Seven Tree Manor, 688 A.2d at 917-18. 
- 14 - 

entry of summary judgment on legal-malpractice claim based on 

plaintiffs' failure to produce expert-based evidence); Michaud, 

942 A.2d at 688 (same in medical-malpractice case). 

B. Breach of Contract 

In her brief before us, Montany's characterization of 

her contract claim is a bit of a moving target. At certain points 

in her brief, Montany seems to rely on the UNE student handbook as 

the basis for her contract claim. At other points in her brief, 

Montany seems to suggest that her breach-of-contract claim is 

grounded, at least in part, in the SDC plan. Finally, at still 

other points in her brief, Montany characterizes her contract claim 

as one for UNE's breach of either "the implied promise of good 

faith and fair dealing" or the duty "not to act in an arbitrary 

manner and in bad faith toward the student." We address each 

characterization in turn. 

1. Handbook 

In her complaint, Montany alleged that "[t]here existed 

between [Montany] and UNE a contract the terms of which were the 

provision of the [s]tudent [h]andbook." Montany argues that the 

district court "ignore[d] the claim of breach of contract based 

upon the [s]tudent [h]andbook." 

But it did no such thing. Rather, the district court 

recognized that "[t]he contract claim asserted in the complaint is 

based on the student handbook" but noted that, when confronted 
- 15 - 

with defendants' argument that they were entitled to summary 

judgment on a breach-of-contract claim arising from the student 

handbook, Montany eschewed reliance on the handbook, "apparently 

abandoned" it as a basis for her contract claim, and instead 

"respond[ed] that her claim based on the [SDC plan] remains viable, 

as well as a claim, apparently based on an implied contract, that 

the defendants acted unfairly, arbitrarily, and/or capriciously."9 

Defendants argue that Montany's failure to put forth any 

argument in her opposition to defendants' motion for summary 

judgment to the effect that UNE breached a provision of the student 

handbook constitutes abandonment of any such claim. Having read 

Montany's opposition, we agree. See Grenier v. Cyanamid Plastics, 

Inc., 70 F.3d 667, 678 (1st Cir. 1995) (recognizing that "an issue 

raised in the complaint but ignored at summary judgment may be 

deemed waived"); see also Vélez-Vélez v. P.R. Highway & Transp. 

Auth., 795 F.3d 230, 238 (1st Cir. 2015) (concluding that plaintiff 

failed to preserve arguments relating to entry of summary judgment 

on one claim where plaintiff failed to address, beyond mere onesentence cursory assertion, that claim in her opposition to 

summary-judgment motion); Merrimon v. Unum Life Ins. Co. of Am., 

 9 The district court similarly remarked that Montany's 

"summary judgment presentation on the merits of her contract claim 

is based entirely upon the alleged 'specific contractual promise' 

inherent in the ' . . . SDC Plan.'" 
- 16 - 

758 F.3d 46, 57 (1st Cir. 2014) ("After filing their complaint, 

the plaintiffs did nothing to develop this particular claim, and 

the summary judgment papers disclose no development of it. The 

claim is, therefore, waived.").10

2. SDC Plan 

The district court concluded that Montany's "complaint 

cannot reasonably be read to include . . . a contract claim based 

on the [SDC plan]," and it refused to allow her to amend her 

complaint through argument in her opposition to defendants' motion 

for summary judgment. See Asociación de Suscripción Conjunta del 

Seguro de Responsabilidad Obligatorio v. Juarbe-Jiménez, 659 F.3d 

42, 53 (1st Cir. 2011) (quoting Gilmour v. Gates, McDonald & Co., 

 10 We note that, even if she hadn't abandoned this claim, it's 

far from clear that Montany could state a contract claim based on 

the provisions of the student handbook. The handbook provides 

that its "provisions . . . do not constitute a contract, express 

or implied, between [UNE] and any applicant, student's family or 

faculty or staff member" and that UNE "reserves the right to change 

the policies, procedures, rules, regulations, and information in 

this handbook at any time." Under Maine law, a student handbook 

using language such as this cannot alone form the basis of a 

breach-of-contract claim. See Millien v. Colby Coll., 874 A.2d 

397, 400, 402 (Me. 2005) (affirming trial court's conclusion that 

student handbook — which contained "a reservation clause that 

g[ave] [the college] the right to unilaterally alter the terms of 

the handbook without notice to students" — "was not a binding 

contract or the exclusive source of the terms of the parties' 

agreement" because, "[u]nder Maine law, 'a reservation to either 

party of an unlimited right to determine the nature and extent of 

his performance renders his obligation too indefinite for legal 

enforcement, making it, as it is termed, merely illusory'" (quoting 

Corthell v. Summit Thread Co., 167 A. 79, 81 (Me. 1933))). 
- 17 - 

382 F.3d 1312, 1315 (11th Cir. 2004), for the proposition that 

"[a] plaintiff may not amend her complaint through argument in a 

brief opposing summary judgment"). We agree that Montany's 

complaint cannot be read as asserting such a claim; indeed, the 

SDC plan is not even mentioned in the complaint. 

On appeal, Montany has not offered a coherent and 

developed argument challenging the ground on which the district 

court entered summary judgment on any breach-of-contract claim 

premised on the SDC plan. First, she argues that the SDC "plan is 

not a separate contract; it is part and parcel of the contract 

between UNE and . . . Montany that is based upon the [s]tudent 

[h]andbook, and which carries with it an implied obligation of 

good faith and fair dealing in all interactions between UNE and 

its students." Second, Montany observes that "university/student 

contracts mostly 'involve written materials, usually student 

handbooks'" and notes that the SDC "plan presented by UNE to 

Montany, setting forth the requirements for her continuation at 

UNE, and produced by UNE in discovery, is a writing, and part and 

parcel of a larger contractual obligation." 

But, notwithstanding these passing observations, Montany 

has failed to meaningfully develop any argument that the district 

court erred in entering summary judgment on any breach-of-contract 

claim premised on the SDC plan since such a claim was never alleged 

in her complaint; accordingly, we need not consider any such 
- 18 - 

undeveloped argument. See United States v. Zannino, 895 F.2d 1, 

17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, 

unaccompanied by some effort at developed argumentation, are 

deemed waived."); see also Town of Norwood v. Fed. Energy 

Regulatory Comm'n, 202 F.3d 392, 405 (1st Cir. 2000) ("[D]eveloping 

a sustained argument out of . . . legal precedents is the job of 

the appellant, not the reviewing court, as we have previously 

warned."). 

3. Good Faith/Arbitrariness 

In her complaint, Montany alleges that (1) UNE undertook 

an obligation to "deal with her in good faith and fairly" and to 

not "act arbitrarily and in bad faith"; (2) she "relied on UNE's 

promise of good faith and fair dealing, and that she would not be 

treated in bad faith and arbitrarily"; and (3) UNE "did not act in 

good faith and did not deal fairly with plaintiff." 

But, to the extent she means to assert a claim for UNE's 

breach of the implied obligation of good faith and fair dealing, 

she cannot do so because, as the district court correctly 

concluded, Maine has confined this duty to insurance contracts and 

contracts governed by the Uniform Commercial Code (U.C.C.). See 

Wortley v. Camplin, 333 F.3d 284, 293 (1st Cir. 2003) ("Maine law 

does not impose a duty of good faith and fair dealing except in 

circumstances governed by specific provisions of the U.C.C."); Me. 

Farms Venison, Inc. v. Peerless Ins. Co., 853 A.2d 767, 770 (Me. 
- 19 - 

2004) ("We have held that 'in every insurance contract an insurer 

owes a duty to act in good faith and deal fairly with its insured' 

in the handling of insurance claims." (quoting Marquis v. Farm 

Family Mut. Ins. Co., 628 A.2d 644, 648 (Me. 1993))); Haines v. 

Great N. Paper, Inc., 808 A.2d 1246, 1250 (Me. 2002) ("We have 

declined to impose a duty of good faith and fair dealing except in 

circumstances governed by specific provisions of the Uniform 

Commercial Code."); Niedojadlo v. Cent. Me. Moving & Storage Co., 

715 A.2d 934, 937 (Me. 1998) ("We have had the opportunity to 

extend the implied covenant of objective good faith in contracts 

not governed by Maine's U.C.C. and we have specifically refused to 

do so. We decline the invitation to do so today." (internal 

citations omitted)). 

Perhaps in recognition of this hurdle, Montany's reply 

brief distinguishes the "duty of good faith and fair dealing" that 

"some states attach . . . to various commercial contracts" from 

her allegation that UNE breached "a stand-alone duty" to avoid 

arbitrary and capricious conduct and to "meet[] common standards 

of fair play, meet[] the student's reasonable expectations, and 

provide[] fundamental fairness." And, according to Montany, a 

jury should decide whether UNE acted arbitrarily and in a 

fundamentally unfair manner when it promulgated the SDC plan — a 

plan that (in Montany's words) "surely could justify Montany's 

reasonable expectation that she would be allowed to return to UNE 
- 20 - 

and complete her occupational therapy training if she complied 

with" it — but failed to honor it. 

But it is not at all clear — despite Montany's 

protestations to the contrary — that Maine imposes any such duty 

on private universities. The primary authority upon which Montany 

relies for the existence of this duty is a decision of the Maine 

Superior Court, Millien v. Colby Coll., No. Civ. A CV-02-261, 2003 

WL 22100833 (Me. Super. Ct. Aug. 14, 2003). Relying on Goodman v. 

President & Trustees of Bowdoin College, 135 F. Supp. 2d 40, 54 

(D. Me. 2001), the Superior Court concluded in Millien that: (1) 

"a contractual relationship [between the college and the student] 

probably exist[ed]," Millien, 2003 WL 22100833, at *2; (2) "[t]o 

the extent that there is a contractual relationship between the 

college and its students with regard to disciplinary proceedings, 

the school's responsibility would be to provide a process which 

meets common standards of fair play, meets the student's reasonable 

expectations[,] and provides fundamental fairness," id. at *3; and 

(3) in any event, the college did not breach any contractual 

obligation in that case, id. at *3. 

The student appealed, and the Law Court affirmed. 

Millien, 874 A.2d at 400. Because the college did not file a 

cross-appeal challenging the Superior Court's finding that a 

contractual relationship existed between the parties, the Law 

Court accepted this finding and affirmed the lower court's 
- 21 - 

conclusion that the college's conduct did not constitute a breach 

of contract. Id. at 401-02 & nn.2-3. Notably, the student urged 

the Law Court to adopt language from Goodman — the very same 

language that Montany relies on in this case — but it declined to 

do so: "Because we affirm the trial court's finding regarding the 

contractual relationship between [the student] and [the college] 

under the facts of this case, we see no need to adopt a fixed 

standard or standards governing the contractual relationship 

between students and private colleges or universities." Id. at 

401 n.2. Since Millien, Maine's highest court has not addressed 

whether and to what extent a contractual relationship exists 

between students and private colleges or universities. 

Now Montany — who elected to bring this diversity action 

in federal court instead of Maine state court — asks us to adopt 

the very same "fixed standard or standards" that the Law Court 

declined to adopt in Millien. But the cases upon which she relies 

shed little light on whether the Law Court would hold that a 

private university has the contractual relationship with students 

that Montany alleges,11 and, in light of Millien, we are hesitant 

 11 In addition to the Maine Superior Court decision in Millien 

and the language from Goodman that the Law Court declined to adopt 

in Millien, Montany relies on two decisions from the United States 

District Court for the District of Maine — both of which predate 

the Law Court's decision in Millien and involved situations where 

the university did not contest that a contractual relationship 

existed, see Gomes v. Univ. of Me. Sys., 304 F. Supp. 2d 117, 130 

(D. Me. 2004); Tobin v. Univ. of Me. Sys., 59 F. Supp. 2d 87, 95 
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to conclude that it would. After all, "we are reluctant to push 

state law to new frontiers in a plaintiff-elected diversity action 

where the state's [highest court] has evinced reluctance to take 

the approach the diversity plaintiff proposes." Kelly v. 

Marcantonio, 187 F.3d 192, 199 (1st Cir. 1999). Montany's breachof-contract theory "should have been directed to the state courts 

in the first instance." Id. at 198-99. In the absence of authority 

persuading us that such a contractual relationship exists under 

Maine law, "we find no basis for [this aspect of Montany's 

contract] claim." Nicolaci v. Anapol, 387 F.3d 21, 27 (1st Cir. 

2004) (declining to recognize cause of action for common-law 

indemnification under Massachusetts law where, as diversity 

plaintiffs conceded, Massachusetts had never extended doctrine to 

scenario of plaintiffs' case and cases cited by plaintiffs did not 

support such extension). Therefore, summary judgment was 

appropriate on this aspect of Montany's breach-of-contract claim.12 

 

(D. Me. 1999) — and four decisions of this court — all but one of 

which also predate Millien and all of which, in any event, apply 

the substantive law of a state other than Maine, see Havlik v. 

Johnson & Wales Univ., 509 F.3d 25, 34-35 (1st Cir. 2007) (applying 

Rhode Island law, which recognizes "that parties to a contract act 

pursuant to an implied duty of good faith and fair dealing"); 

Mangla v. Brown Univ., 135 F.3d 80, 83, 84 (1st Cir. 1998) (same); 

Russell v. Salve Regina Coll., 890 F.2d 484, 487, 488 (1st Cir. 

1989), rev'd 499 U.S. 225 (1991) (same); Cloud v. Trs. of Bos. 

Univ., 720 F.2d 721, 724-25 (1st Cir. 1983) (applying Massachusetts 

law). 

12 Although the district court did not enter summary judgment 

on this aspect of Montany's breach-of-contract claim on this 
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CONCLUSION 

For these reasons, we affirm the entry of summary 

judgment in defendants' favor on Montany's negligence and breachof-contract claims.13 Each side shall bear its own costs. 

 

precise ground, we are free to affirm the entry of summary judgment 

on any ground apparent from the record. See Delgado Echevarría v. 

AstraZeneca Pharm. LP, No. 15-2232, 2017 WL 1593474, at *3 (1st 

Cir. May 2, 2017). 

13 We need not — and therefore do not — address UNE's argument 

that the district court could have entered summary judgment on 

Montany's breach-of-contract claim on the ground that she failed 

to exhaust her internal remedies by failing to appeal her dismissal 

to the Dean of UNE.