MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 2 1 ME 51 Docket: Cum

- 20

- 281 Argued : July	13,	2021 Decided: October	28,	2021 Panel: MEAD, GORMAN,	JABAR , HUMPHREY,	HORTON , and CONNORS , JJ.

CHRISTOPHER	TOTO

v. RAELYN	KNOWLES

HUMPHREY ,	J. [¶1] Christopher	Toto	appeals	from	a	summary	judgment	entered by	the Superior	Court	(Cumberland	County, Kennedy,	J. ) in	favor	of	Raelyn	Knowles	on Toto’s	complaint	alleging that	he	was	injured	as	a	result of	Knowles’s	negligent operation	of a	motor	vehicle. Because	we	conclude	that	the	summary	judgment record	 establishes a genuine	 issue	 of	 material	 fact	 regarding	 whether Knowles’s	 negligence	 caused	 Toto	 to	 suffer	injuries, we	 vacate	 the summary judgment and	remand	for	further	proceedings.
I.		BACKGROUND [¶ 2 ]	 	 The	 following	 facts	 are drawn	 from	 the	 parties’	 supported statements	of	material	facts, viewed	in	the	light	most	favorable	to	Toto	as	the nonprevailing	party. See Kur tz	&	Perry,	P.A.	v.	Emerson, 2010	ME	 107,	¶	 15,2 8 A.3d	677 .		While	stopped in	traffic behind	a	minivan,	Toto’s	vehicle	was	struck from	 behind	 by	 another	 vehicle , causing	 Toto’s	 vehicle	 to	 collide	 with	 the minivan.		After	 the	collision,	 Toto	complained	 of	a	loss	 of	consciousness	 and

extreme pain	on	the	top	of	his	head,	and	he	was	transported	to a	hospital for evaluation. After	 the	 accident,	 h e suffered headaches,	 b alance	 issues,	 and impaired	vision ,	none	of	which he	suffered before the	accident. [¶ 3 ] On	 August	 6,	 2018,	 Toto	 filed	 a timely complaint for	 negligence against	 Knowles,	 alleging	 that	 Knowles	 was	 the	 operator	 of	 the	 vehicle	 that struck Toto’s	vehicle	from	behind. On	December	13,	2019,	Knowles moved in limine	 to	 exclude	 testimony	 from an	 expert	 designated	 by	 Toto

— an optometrist who	 would testify	 that the	 accident	 was	 the	 cause	 of “visual injuries ”	suffered	by	Toto. Knowles	argued	 that the o ptometrist ’s	deposition testimony	 revealed	 that	 he	 was not	 qualified	 to opine that	 the	 accident	 had caused	 Toto	 to	 suffer	 what	 the	 optometrist	 called	 a “visual	 midline	 shift

. ” Knowles	further	argued	that “visual	midline	shift” is not	a	recognized	diagnosis in	the	medical	community. [¶ 4 ] Anticipating	 that	 the	court	would	grant	her	motion	in	limine	and exclude	the	optometrist’s	testimony,	Knowles	moved	for	summary	judgment	in January	2020

. In	her	motion,	Knowles	argued	 that witho ut	expert	 testimony3 regarding	complex	medical	facts ,	Toto	could	not	prove	that	the	collision	caused Toto	to	suffer a “visual	midline	shift .” [¶ 5 ] T oto	admitted	Knowles’s	assertion in	her	statement	of	material	facts that	his	“ ‘ visual	injuries ’ and the purportedly	related	symptoms”	were	his	only claimed	injuries .		However,	h e elaborated	on	his	injuries in both his	opposing statement	 of	 material	 facts	 and his statement	 of	 additional	 facts , with referenced	evidentiary	support from	his	deposition.		Specific ally,	he	asserted that in	 addition	 to	 impaired	 vision, he suffered	 from lost	 consciousness immediately	 after	 the	 accident , headaches , and balance issues

. K nowles admitted Toto’s	additional assertions of	fact without	qualification

. [¶ 6 ] In	 March	 2020,	 t he	 court	 granted	 Knowles’s	 motion	 in	 limine to exclude the	 optometrist’s	anticipated expert testimony ,	 determining	 that the optometrist	was	not	qualified	to	opine	on	the cause	of a “visual	midline	shift.”
See M.R.	Evid.	702. The	court	denied	 the	motion as	 to	 the	 optometrist’s	 fact testimony. 1 The	court	simultaneously denied	Knowles’s	motion	for	summary judgment,	 concluding	 that	 Toto had presented	 sufficient	 evidence that

1 To	the	extent	that	Toto	challenged	the	ruling	on	the	motion	in	limine	in	his	brief,	he	clarified	at oral	argument	that	he	does	not	appeal	from	that	ruling,	and	we	do	not	discuss	the	issue	further.4 Knowles’ s negligent	operation	of	her	vehicle caused	hi m	to	suffer injuries for his	claim	to	survive	the	motion	for	summary	judgment

. [¶ 7 ]		Knowles moved for	reconsideration	of	the court’s	order	denying	her motion	 for summary	 judgment,	 reiterating	 her	 argument	 that the determination	that	Toto	suffered	a “visual	midline	shift” w as	based	on complex medical facts that	 require	 expert	 testimony	 and	 that , without	 it,	 Toto’s	 only remaining	evidence	of	proximate	causation was an	insufficient	assertion that Toto	 realized	 symptoms	 after	 the	 accident

. On	 October 7 ,	 2020,	 t he	 court entered a	 judgment grant ing Knowles’s motion	 for	 reconsideration	 and entering	a summary	judgment in	her	favor .		The	court conclud ed that “ visual midline	 shift ” was	 the	 sole	 injury asserted by	 Toto	 and	 that ,	 without	 expert testimony, Toto	could	not	establish	proximate	causation .		Toto	timely	appealed.
See 14	M.R.S.	§	1851	(2021);	M.R.	App.	P

. 2B(c)(1).
II.		DISCUSSION [¶ 8 ] We review the	entry	of	a summary	judgment	de	novo,	“ considering the	evidence	in	the	light	most	favorable	to	the	nonprevailing	party	to	determine whether	 the	parties’	 statements	 of	material	 facts	and	 the	 record	evidence	 to which	 the	 statements	 refer	 demonstrate	 that	 there	 is	 no	 genuine	 issue	 of material	fact and	the	moving	party	is	entitled	to	judgment	as	a	matter	of	law.”5 Kurtz	&	Perry, 2010	ME	107,	¶	15,	8	A.3d	677 (quotation	marks	omitted). “ A material	 fact	 is	 one	 that	 can	 affect	 the	 outcome	 of	 the	 case,	 and	 there	 is	 a ‘genuine	 issue’	 when	 there	 is	 sufficient	 evidence	 for	 a	 fact

- finder	 to	 choose between	competing	versions	of	the	fact.” Stewart

- Dore	v.	Webber	Hosp.	Ass’n , 2011	ME	26,	¶	8,	13	A .3d	773

. [¶ 9 ] “ A	cause	of	action	 for	negligence	has	 four	elements:	(1)	a	duty	of care	 owed	 to	 the	 plaintiff;	 (2)	 a	 breach	 of	 that	 duty;	 (3)	 an	 injury;	 and (4) causation,	that	is,	a	finding	that	the	breach	of	the	duty	of	care	was	a	cause	of the	injury.” Est.	of	Smith	v.	Cumberland	Cnty

. ,	2013	ME	13,	¶	16,	60	A.3d	759

.

“ When	the	defendant	is	the	moving	party,	[s]he	must	establish	that	there	is	no genuine	 dispute	 of	 fact	 and	 that	 the	 undisputed	 facts	 would	 entitle	 h[er]	 to judgment	as	a	matter	of	law.” Est

. of	Cabatit	v.	Canders ,	2014	ME 13 3,	¶ 8 , 105 A.3d	439 .		“It	then	becomes	the	plaintiff’s	burden	to	make	out	the	prima	facie case	and	demonstrate	that	there	are	disputed	facts.” Id. [¶1 0 ]		At	issue	here	is	whether	 the	accident	proximately	caused	Toto’s injuries. “Proximate	cause	is	an	action	occurring	in	a	natural	and	continuous sequence,	uninterrupted	by	an	intervening	cause,	that	produces	an	injury	that would	not	have	occurred	but	for the	action.” Cyr	v.	Adamar	Assocs.	Ltd.	P’ship , 2000	ME	110,	¶	6,	752	A.2d	603. A	fact	finder	may	draw	reasonable	inferences6 in	determining	issues	of	causation. See,	e.g. , Marcoux	v.	Parker	Hannifin/Nichols Portland	Div. ,	2005	ME	107,	¶	26,	881	A.2d	113 8 (holding	that	a	fact	finder	may infer	causation	without	speculation	from	supported	assertions	that	the	plaintiff fell	after	she	made	physical	contact	with	a	stain	on	the	floor)

. [¶1 1 ] Although	causation	in a vehicle	accident	case	is	usually	a	matter	to be	 resolved	by	 the	 fact	 finder,	 summary	judgment	may	be	appropriate	if	 the record	is	 completely	 devoid	 of	 evidence	 supporting	 causation. Est.	 of	 Smith , 2013	ME	13,	¶ 18,	60	A.3d	759. E vidence “submitted	in opposition	to	summary judgment [] need	not	be	persuasive	at	that	stage , ” but it “must	be	sufficient	to allow	a	 fact

- finder	 to	make	a	 factual	determination	without	speculating.” Id. ¶ 19. [¶1 2 ] The amount or type of evidence required to prove causation may
turn on the complexity of the facts. See Tolliver v. D ep’t of Transp. , 2008 ME 83, ¶ 42, 948 A.2d 1223 (“O ur	 precedents	 also	 indicate	 that	 in	 cases	 involving complex	facts	beyond	the	ken	of	the	average	juror,	.	.	.	more	substantial	evidence of	 proximate cause	 may	 be	 required.”). A lthough	 expert	 testimony	 may	 be required	if a	 party	is asserting	 complex	medical	 facts	 to	 establish	 causation,

see Merriam	v.	Wanger ,	2000	ME	159,	¶¶ 11

- 18,	757	A.2d	778 , expert	testimony is	not	required	if	“the	negligence	and	harmful	results	are	sufficiently	obvious	as7 to	 lie	 within	 common	 knowledge ,” Patten	 v.	 Milam ,	 480	 A.2d	 774,	 778 (Me. 1984) (quotation	marks	omitted). [¶1 3 ]	 	 Thus, “[w]here	 a	 plaintiff	 emerges	 from	 a	 sudden	 rear

- end automobile	accident	with	a	hurt	neck,	it	is	permissible	for	the	jury	to	infer	that the	 injury	 was	 caused	 by	 defendant’s	 negligent	 driving	 where	 there	 was	 no evidence	of	a	pre

- existing neck	injury .” 1 Dan B. Dobbs	et	al., The	Law	of	Torts § 191 at	639 (2d	ed.	2011) ; see,	e.g. , Foddrill	v.	Crane ,	894	N.E.2d	1070,	1074, 1078	 (Ind.	Ct.	App.	2008)	 (finding	 the	causal	connection	between	a	 rear

- end collision	and	neck	pain,	headaches,	and	other	injuries	was	“not	so	complex	that a	layperson	would	be	unable	to	comprehend	it	without	expert	testimony”	when there	 was	 no	 evidence	 that	 plaintiff	 suffered	 from	 prior	 neck	 injuries,	 the collision	 was	 forcef ul	 enough	 that	 plaintiff	 hit	 her	 head	 on	 the	 roof	 of	 her vehicle,	and	plaintiff	immediately	afterward	felt	pain	in	her	neck). [¶1 4 ] Construing	the	supported	statements	of	material	facts	in	the	light most	favorable	to	Toto , as	we	must, see MSR	Recycling, LLC	v.	Weeks	&	Hutchins,
LLC ,	2019	ME	125,	¶	6,	214	A.3d	1 , we	conclude	that	there	is	a	genuine	issue	of material	 fact	as	 to	whether	 the	accident	caused	Toto	some	injury. 2 Al though

2 We	acknowledge	that	in	Toto’s	statements	of	material	 facts,	he	both	(1)	admitted	that	“[t]he ‘visual	injuries’	and	the	purportedly	related	symptoms	[we]re	the	only	injuries”	he	was	claiming	that the	accident	caused	and	(2)	asserted	that	he	suffered	loss of	consciousness,	headaches,	and	balance problems	 separate	 from	 his	 vision	 issues.	 	 To	 the	 extent	 that	 Toto	 contradicted	 himself	 in	 his8 Toto did	not offer admissible evidence that	the	accident	proximately	cause d	a “visual	midline	shift,” see Merriam ,	2000	ME	159, ¶¶ 11

- 18, 757	A.2d	778 , he did	assert	and	offer	evidence	of	facts	sufficient	to	generate a genuine	issue	of material	 fact as	 to whether	 the	 accident	 caused him	 harm

. Using common knowledge and drawing reasonable	inferences ,	a	 fact	 finder	could determine that the	accident	caused some injury	to	Toto

. See Curtis	v.	Porter ,	2001	ME	158, ¶	9,	784	A.2d	18; Foddrill ,	894	N.E.2d	at	1074,	1078

. [¶1 5 ] Because	Knowles’s motion	for	summary	judgment must	therefore be denied, “ facts	admitted	by	the	parties	solely	for	the	purpose	of	the	summary judgment	motion	shall	have	no	preclusive	effect	at	trial.” See	also	CitiMortgage, Inc.	v.	Chartier ,	2015	ME	17,	¶ 10	n.6,	111	A.3d	39	(stating that the	purpose	of Rule	 56(d) is “‘to	 make	 it	 unnecessary	 to	 controvert	 facts	 for	 purposes	 of summary	 judgment	 solely	 because	 of	 concern	 about	 the	 possible	 preclusive effect	 of	 any	 admission	 of	 fact	 at	 trial	 or	 in	 other	 subsequent	 proceedings’” (quoting	M.R.	Civ.	P.	56	Advisory	Note

– November	2011)).		As	 the	Advisory Note	to	the November 2011	amendment	to	Rule	56	explains,	“The	amendment

deposition	testimony	or	conveyed his understanding	of	the	interrelatedness	of	his	symptoms after his	diagnosis	and	treat ment,	it	is	for	a	fact	finder	to	weigh	the	evidence	and	determine	whether	to accept	or	reject	Toto’s	testimony	“in	whole	or	in	part.” Sulikowski	v.	Sulikowski ,	2019	ME	143,	¶	10, 216	A.3d	893	(quotation	marks	omitted).9 to	Rule	56(d)	establishes	that	a	fact	admitted	or	not	opposed	by	any	party	solely for	 purposes	 of	 summary	 judgment	 is	 not	 deemed	 admitted	 for	 any	 othe r purpose	if	the	motion	for	summary	judgment	is	denied.” [¶1 6 ]		Thus,	although	Knowles	may	eventually	attempt	to	impeach	Toto’s trial	testimony	with	statements	that	Toto	made	during the deposition to	which the	parties	referred	in	their	statements	of	materi al	facts ,	the	denial	of	a	motion for	summary	judgment	will	not	preclude	Toto	from	offering	fact	evidence	about his	post

- accident	symptoms	at	trial. See M.R.	Civ.	P.	56(d).		The	ruling	on	the motion	in	limine	will,	however, unless	modified	before	trial, preclude	Toto	from offering	expert	 testimony	 from	 the	identified	 optometrist	about	 the	 accident having	caused	Toto	to	suffer	a	“visual	midline	shift.” The	trial	court	on	remand may	be	called	upon	to	address whether expert	testimony is	necessary to	prove

c ausation	 of	 any	medically	 complex	injuries	 through	 other	 experts,	 but	 such issues	are	not	presently	before	us;	we	here	decide	only that there	is	a	genuine issue	of	material	fact	on	the	element	of	causation. [¶1 7 ] In	 sum,	 t he	 court	 erred	 in	 entering	 a summary	 judgment	 in Knowles’s	favor.		We	vacate	the	summary	judgment	and	remand	the	matter	for further	proceedings.10 The	entry	is: Summary	 j udgment vacated

. Remanded	 for further	proceedings.

David	 Kreisler,	 Esq.,	 and	 Gary	 Goldberg,	 Esq. (orally) ,	 Terry Garmey	 & Associates,	Portland,	for	appellant	Christopher	Toto L.	 John	 Topchik,	 Esq. (orally) ,	 Law	 Offices	 of	 John	 B.	 Schulte,	 Portland,	 for appellee	Raeylyn	Knowles

Cumberland	County	Superior	Court	docket	number	CV

- 2018

- 354 F OR C LERK R EFERENCE O NLY