Francis v. Costco Wholesale Corporation

Background

Michele Francis sought damages for injuries allegedly sustained when she slipped on a white substance, apparently mayonnaise, on the floor of a Costco store. She conceded that she did not fall and that her knees did not hit the ground. Ten days later, she visited her orthopedist, reported pain in both knees, and received injections in both knees.

Francis claimed that the incident caused pain and treatment involving her left knee. She acknowledged that she had been treated for arthritis in her right knee before the incident but denied having a prior history of arthritis in her left knee. Medical records from August 28, 2017, showed degenerative joint disease in both knees and a diagnosis of primary osteoarthritis in the left knee. The records did not refer to a traumatic injury or another condition besides osteoarthritis.

The Summary-Judgment Motion

Costco Wholesale Corporation and Costco Wholesale Membership, Inc. moved for summary judgment, which asks the court to rule without a trial when the evidence shows no genuine dispute about a fact that matters to the case. The defendants argued, among other things, that Francis had no evidence that the slip caused her claimed injury.

After the defendants identified the lack of supporting evidence, Francis had to present admissible evidence showing a genuine issue for trial. She relied on her medical records, expected testimony from her treating physician, her own testimony, and a report from the defendants' expert, Dr. Bazos.

Causation

The court held that Francis provided no medical evidence connecting her left-knee pain to the slip. Her medical records did not say whether the pain resulted from the incident or from a preexisting condition. Her own testimony was not objective medical evidence, and the fact that she slipped—without falling or striking the ground—was not enough by itself to establish the cause of her injury.

The court explained that when an injury may have multiple causes, expert testimony is necessary to establish causation. It also stated that aggravation of a preexisting injury must be shown with objective medical evidence. Francis did not submit an expert report or an affidavit from a treating physician. The court rejected her argument that she could rely on testimony Dr. Pope might give at trial because a party cannot defeat summary judgment by promising to present evidence later.

The court also rejected Francis's reading of Dr. Bazos's report. Although she characterized the report as finding that she suffered a soft-tissue injury from the slip, the court said the report, read as a whole, expressly denied that the incident caused her alleged injury.

Disposition

The court concluded that Francis had not provided evidence establishing a material factual issue concerning causation. Judge Lewis A. Kaplan granted the defendants' motion for summary judgment dismissing the complaint. The Clerk was directed to enter judgment and close the case.