STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DocketNo. CV-10~5,8) RAC- cv/Y)- 11 ~;c7o/3 u
HENRYKA ZWOLINSKI and ANIA ZWOLINSKI as legal guardians for JOANNA ZWOLINSKI, Plaintiffs ORDER ON DEFENDANTS' MOTION FOR SUMMARY v. mDGMENT
BENJAMIN SEALE, JOHANNA SEALE, AL YSE ALLEN, ELIZA JENKS, JOSEPH SEALE, MERRILL SEALE, and MAGNESENSE, LLC, Defendants
Before the court is the Defendants' Motion for Summary Judgcient on Plaintiffs' four-
count Amended Complaint, which alleges negligence as well as an intentional tort. The
Plaintiffs' claims rest upon the premise that Joanna Zwolinski was poisoned by one or more of
the Defendants. Joanna suffers from debilitating health problems, which originated when she was
14, and which she attributes to the alleged poisoning.
The Defendants have stated that the Plaintiffs cannot prove that any one of the
Defendants negligently or intentionally poisoned Joanna, and thereby the Plaintiffs cannot show
either a breach of duty under a negligence theory or an intentional tort. Defendants also contend
that the Plaintiffs cannot establish a prima facie case of proximate causation. As a result,
Defendants argue that they are entitled to summary judgment in their favor. The Plaintiffs replied to the Motion by filing a Rule 56(f) Motion in order to pursue
additional disco very .1 Wbile the Plaintiff' s Rule 56(f) Motion was granted, the discovery
deadline has passed, and the Plaintiffs have not submitted an opposition to the Motion for
Summary Judgment.
FACTUAL BACKGROUND: The following facts are garnered from the Defendants' unopposed Statement of Material 2 Facts ("S.M.F.") and are supported by record citations unless otherwise noted The Complaint
arises from an incident that the Plaintiffs allege took place at the Seale's home in Gorham on or
around July 30,2001. (S.M.F. ~~ 1, 5.) Johanna Seale hosted a sleepover for her friends Alyse Allen, Eliza Jenks and Joanna, at the Seale home (S.M.F. 3 ~ 5.) Johanna's parents Merrill' and
1 Rule 56(f) provides: Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court n:ay refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. M.R. Civ. P. 56(f). 2 As pointed out in the Plaintiffs Rule 56( f) Motion, the court notes that the depositions of the D~fendants suggest that the Defendants (with the exception of Magnesense) signed their affidavits Without personal knowledge regarding some of the information that they were swearing to. (See Joseph IS~ Seale ~ 4: Benjamin Sea\e Den' ~}; H·~U2. ~ Seale Dep. 27: 2g: 10, 32:25-3 5:1 &: Joseph Aff. ll•niillllin Seale Aff. 4, Ehza Jenks Dep. 9:18-10:24 Dep. 12:10-13·5· 33·18 36·25· Joha S 't .11 . 17_11 . 19 . . . P ~ . '19.12-20, Ehza Jenks Aff. 4; Johanna SealeI I · ' · - · , nna 4; Alyse Allen Dep. 4:18-5:5: , _ , , , _ , ea e 12 7 8 6 6 6the13affidav't Defendants appear to have signed 2 i, 5 _,;9 , 2~~ Aff ~ t f 4· M ·n s 1 D 1 ea e ep. 3:17-5:24; Merrill Seale Aff. ~ h , A yse Allen Aff. 4.) More specifically, the ~ ~ ~~to:~ rt~~~ ~~~:;~vel when many of the Defendants were bl I s s a mg t at they ate certain foods with certain people Jenks Aff. 4; Eliza Jenks Dep. 9: I 3toI of detail at their depositions. (See Eliza' Dep. 4:18-5:5; 6:6-6:13; 12:7-8; 25:5-29:23'·B~n· ~ . . ' 19.12-20, AlyseAllen Aff. 4; Alyse Allen Johanna Seale Aff. ~ 4; Johanna Seale Dep. ,12:16~~~.~.s;a~e ~ff..~ ~; BenJarnm Seale Dep. 93:14-94:22; Dep. 27:15-28:10, 32:25-35:18; Merrill Seale Aff ·., 3.18 36.25, Joseph Seale Aff. ~ 4; Joseph Seale thatthediscrepancies between the affidavi . ~ 4, _Mernll Seale Dep. 3:17-5:24.) The court notes ~ffifi~aAvi!ts provide that the statements cont:i~:~~!erp?sitiOnbs are troubling, since the Defendants' ., Defendant's Each yse Allen Aff .. ,· B enJammSeale · · emSeale Aff.; Johanna are Aff.. ased Jose on pe rsona1 knowledge. (See Eliza Jenks remainder of their While th :;~~~~;nents · m one portion of their affidavi;· call i~~o Sqe~~t~ff.t,·h Merrill .seale Aff..) Ion e verac1ty ofthe 3
c:~~ WI 'l~nreafiserAlyse e court notes that so me 0 f th e documents refer to AI as Eliza Lockh All Jenks. art-Jenks, for the purpose of consistency, the Wallace to Alyse Allenand andEliza ElizaJenks
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Joseph Seale, as well as her brother Benjamin Seale, were also home during the night of the
sleepover. (S.M.F. ~ 1, 7.) (Pls.' Am. Campi.~ 10.) Johanna, Alyse, Eliza, and Joanna had just
completed middle school together and were going to begin 9th grade at Gorham High School in
the fall. (S.M.F. ~ 6.)
At the sleepover, all of the parties purportedly ate pizza for dinner. (S.M.F. ~ 7.) Joanna
drank lime-aid with her dinner. (S.M.F. ~ 8.) At some time after dinner, Joanna also ate part of a
chocolate bar, which Alyse supposedly gave to her. (S.M.F. ~ 13.) Later that evening, while
Johanna, Alyse, Eliza, and Joanna were watching a movie, Joanna suggested that they have a
dessert. (S.M.F. ~ 9.) Johanna, Benjamin, Alyse, Eliza and Joanna all ate ice cream. (S.M.F. ~
10.) According to Ja anna, the ice cream was "very melted on the bottom", "syrupy on the
bottom", and it '"tasted a little weird"', but it was good enough to eat. (S.M.F. ~ 11; Ex. A 42:7-
18.) Some time after consuming the ice cream, Joanna developed a headache and decided to
make herself tea. (S.M.F. ~ 12.)
That night, Joanna was unable to make it to the bathroom in time, and she urinated on
herself. (S.M.F. ~ 14.) The following morning Joanna felt sick and she experienced nausea, dry
heaves, and diarrhea. (S.M.F. ~ 15.) Soon after she woke up, Joanna's mother and sister picked
Joanna up from the sleepover and took her home. (!d.) About five days after the sleepover,
Joanna began to lose her eyesight or her eyesight went blurry. (S.M.F. ~ 16.) Since the sleepover,
Joanna claims that she has experienced nausea, stomach pain, vision problems, and headaches.
(S.M.F. 17.) While the nausea, stomach pain and headaches have abated; Joanna still has
problems with her vision. (!d.) Although the following information is unsupported by record
citations, the court notes that Plaintiffs have represented through their Rule 56(f) Motion that
4 Certain documents in the record refer to Defendant Merrill Seale as A. Merrill Henderson or Ann Merrill Henderson. To avoid confusion, the court will continue to use the name Merrill Seale.
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Joanna "is now legally blind, a paraplegic, and suffering from numerous neurologic problems ...
. (Pl.'s. 56(f) Mot. 1.)
While not explained in the Defendants' Statement of Material Facts, the court
understands that the Plaintiffs' theory of the case rests on the premise that Joanna was poisoned
with thallium the night of the sleepover, which has led to her medical problems. 5 (See Pl.'s. 56(f)
Mot. 1-3.) Joanna stated that "after the poisoning" Benjamin, Johanna, Eliza and Alyse stopped
talking to her. 6 (S.M.F. 'J! 20.)
Joanna testified, however, that she did not observe any Defendant attempting to poison
her during the sleepover and she did not have any information "that would lead her to believe
that any Defendant poisoned her that night." (S.M.F. 'II 18.) The Defendants all state that they did
not place a foreign or poisonous substance into Joanna's food, nor did they witness anyone else
placing a foreign or poisonous substance into Joanna's food. (S.M.F. 'J! 22.) The Defendants
assert that none of them have knowledge of anyone poisoning Joanna. (S.M.F. 'II 22.)
Joseph and Merrill assert that they did not allow any of the children at the sleepover "to
possess or control known toxic or poisonous substances .... " (S.M.F. 'II 23.) They contend that
they have never seen thallium, have never stored it in their home, and have no reason to think
that thallium was in their home. (S.M.F. 'J! 24.) Benjamin and Johanna claim that they were
unaware of any toxic or poisonous substances containing thallium being present in their home.
(Id.) Defendant Magnesense, LLC claims it has never possessed or controlled anything that
5 The Plaintiff also stated that Joanna testified that one of her doctors considered that she might have been poisoned by methanol. (S.M.F. 21.) The record citation contains hearsay, however, and is inadmissible. (!d.) 6 The Statement of Material Facts includes Joanna's quote with brackets implying that Joanna was referring to Johanna, Alyse, and Eliza when she said "they had stopped talking to me .... " (S.M.F. ~ 20.) The deposition transcript cited to, however, suggests that she was talking about Benjamin, Johanna, Alyse, and Eliza. (Ex. A. 69:3-8.)
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contains thallium, and furthermore, that none of the children had access to Magnesense's
materials on the night of the sleepover. (S.M.F. ~ 25.)
PROCEDURAL HISTORY:
This case has been pending for over three years. As its history is complex and extended,
the court is compelled to describe it in some detail. The original Complaint in this matter was
filed on November 4, 2010 and named Benjamin, Johanna, Alyse, and Eliza as defendants. When
the Complaint was filed, the Plaintiff at the time was Joanna, and she was pro se.
On February 3, 2011, Defendants Benjamin and Johanna answered the Plaintiffs
Complaint and asked that the Plaintiffs Complaint be dismissed. Benjamin and Johanna are
represented by Attorney Kenneth D. Pierce at Monaghan Leahy, LLP. On February 4, 2011,
Defendant Alyse answered the Complaint and also asked that the Complaint be dismissed. Alyse
was represented by Attorney Joy C. McNaughton at the Law Offices of Gerard 0. Fournier.
The original discovery deadline for this case was October 10, 2011, but owing to repeated
requests by both parties the deadline was eventually extended to July 16, 2013.
On July 14, 2011, the Town of Gorham filed its Motion to Quash Subpoena regarding a
subpoena issued by counsel for Benjamin for the Town's file related to this incident. The Town's
Motion was denied at hearing on September 2, 2011 and by order on September 8, 2011.
On July 18, 2011, the court issued an Order fining Plaintiffs counsel for failure to file
ADR notification or report of ADR Conference.
Scott D. Giese entered his appearance as counsel for the Plaintiff on September 12, 2011.
Eliza filed her Answer to the Complaint on October 3, 2011. Eliza is also represented by
Attorney Pierce at Monaghan Leahy, LLP.
A settlement conference was held on October 27, 2011.
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On November 3, 2011, Attorney Giese moved to withdraw as counsel for the Plaintiff at
Plaintiffs request. The court granted Giese's motion. Attorneys J. Michael Conley and Wenonah
M. Wirick of Conley & Wirick, P.A. entered their appearances for the Plaintiff on November 7,
2011.
On January 5, 2012, Attorneys Conley and Wirick moved to withdraw as counsel for the
Plaintiff at Plaintiffs request. The court granted their motion on January 31, 2012.
A pre-trial order was entered on January 27, 2012.
The Plaintiff filed an Amended Complaine on February 1, 2012, which also named
Joseph, Merrill and Magnesense, LLC as Defendants and added two additional counts to the
Complaint.
Attorneys Anthony J. Sineni, III and Caleb J. Gannon of the Law Offices of Anthony J.
Sineni, III, LLC entered their appearance for the Plaintiff on February 1, 2012.
The Seale defendants, as well as Eliza and Magnesense, LLC, filed an Answer to the
Amended Complaint on March 29, 2012. The original Defendants also moved to strike
Plaintiffs Amended Complaint on March 29, 2012.
On July 2, 2012, Attorneys Terrence D. Garmey and Gary Goldberg entered their
appearance for the Plaintiff.
7The Amended Complaint contains four counts: Count I alleges that one or more Defendants acted negligently, recklessly or intentionally and placed a foreign substance in Joanna's food. Joanna consumed the food, and she argues that as a result she has suffered from severe medical problems. Count II of the Plaintiffs' Amended Complaint is against Joseph and Merrill and alleges that they were negligent because they breached their duty of reasonable care by failing to supervise the minor children at the sleepover and monitor or secure dangerous substances on their property. Countiii of the Amended Complaint alleges that Magnesense, LLC acted negligently when it breached its duty of reasonable care to Joanna by failing to properly handle and safeguard toxic substances under its control, including thallium, thereby resulting in injury to the Plaintiff. Lastly, Count IV of the Amended Complaint alleges that if one or more of the Defendants acted intentionally, then that Defendant or those Defendants acted with malice or malice can be implied. The Plaintiffs are seeking compensatory damages on Counts I through III, and they are seeking punitive damages on Count IV.
6 On July 5, 2012, Gerard 0. Fournier entered his appearance as co-counsel for Defendant
Alyse. On September 14, 2012, however, Attorneys Fournier and McNaughton withdrew as
counsel for Alyse. Attorney J. William Druary entered his appearance on behalf of Alyse on
September 24, 2012.
On October 4, 2012, Attorney Kevin Libby of Monaghan Leahy, LLP entered his
appearance for the Seale Defendants, Eliza, and Magnesense, LLC.
On October 15,2012, Philip M. Coffin III, Esq. moved to quash the subpoena to produce
records regarding Zwolinski v. Rioux. The court denied the motion on November 6, 2012.
The Defendants' filed their Motion for Summary Judgment on November 27, 2012. In
response, the Plaintiff filed a Rule 56(f) Motion on December 14, 2012. By agreement ofthe
parties, the Plaintiff was granted until January 15, 2013 to file its response to the Defendants'
Motion for Summary Judgment. The Plaintiffs Rule 56(f) Motion was ultimately granted.
On December 11, 2012, the Plaintiff also filed a motion for an injunction to have an
attorney for either party, or a neutral party, have access to and gain control of the pesticides in
the Seale's garage. The parties ultimately reached an agreement on this issue.
On December 12, 2012, Henryka Zwolinski (Joanna's mother) and Ania Zwolinski
(Joanna's sister) were named as co-guardians and co-conservators for Joanna Zwolinski. On
February 26, 2013, the court granted the Plaintiffs Motion to Substitute Parties Due to
Incompetence, and it ordered that Henryka and Ania be named as Plaintiffs in substitution for
Joanna.
On April 9, 2013, this court granted the Motion to Withdraw as counsel for the Plaintiffs
from Terry Garmey, Gary Goldberg, and Terry Garmey & Associates. At the same time, the
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court stayed the proceedings for 60 days to give the Plaintiffs the opportunity to retain new
counsel.
No new counsel has entered an appearance for the Plaintiffs, and the court has not
received a response to the Defendants' Motion. Accordingly, the court must proceed to consider
the merits of the Defendants' Motion.
STANDARD OF REVIEW:
Even though the Plaintiffs have not filed a response, the court must determine whether
the Defendants are entitled to summary judgment. See Cach, LLC v. Kulas, 2011 ME 70, ~ 9, 21
A.3d 1015 (quoting Levine v. R.B.K. Caly Corp., 2001 ME 77, ~ 5, 770 A.2d 653) ("'[A] party
who moves for a summary judgment must properly put the motion and, most importantly, the
material facts before the court, or the motion will not be granted, regardless of the adequacy, or
inadequacy, of the nonmoving party's response."'); see also M.R. Civ. P. 56(h)(4).
The Law Court has held that "[s]ummary judgment is properly granted if the facts are not
in dispute or, if the defendant has moved for summary judgment, the evidence favoring the
plaintiff is insufficient to support a verdict for the plaintiff as a matter of law." Curtis v. Porter,
2001 ME 158, ~ 7, 784 A.2d 18; see also Houde v. Millett, 2001 ME 183, ~ 11, 787 A.2d 757
("[I]fthe evidence produced by the plaintiff in opposition to a motion for summary judgment
would, if produced at trial, entitle the defendant to a judgment as a matter of law, the defendant
is entitled to a summary judgment.")
"When, as here, a defendant moves for summary judgment, the plaintiff 'must establish a
prima facie case for each element of her cause of action' that is properly challenged in the
defendant's motion." Curtis, 2001 ME 158, ~ 8, 784 A.2d 18 (quoting Champagne v. Mid-Maine
Med. Ctr., 1998 ME 87, ~ 9, 711 A.2d 842); see also Corey v. Norman, Hanson & DeTroy, 1999
8 ME 196, ~ 9, 742 A.2d 933. Rule 56 specifies that if an opposing party fails to respond in the
manner specified in Rule 56, then "summary judgment, if appropriate, shall be entered against
the adverse party." M.R. Civ. P. 56(e).
Under Rule 56, courts are constrained as to what they can consider. This court must
admit uncontroverted facts from the statement of material facts that are properly supported. M.R.
Civ. P. 56(h)(4). This court cannot consider parts of the record that were not referenced in a
statement of material facts. See M.R. Civ.P. 56(h)(4) ("The court shall have no independent duty
to search or consider any part of the record not specifically referenced in the parties' separate
statement of facts."); see also HSBC Bank USA, NA. v. Gabay, 2011 ME 101, ~ 17, 28 A.3d
1158.
DISCUSSION:
To survive the Motion for Summary Judgment, the Plaintiffs needed to make a prima
facie showing that one of the Defendants negligently, intentionally, or recklessly poisoned
Joanna and thereby caused her medical injuries. In this instance, the Plaintiffs have not opposed
the Motion, and thereby the Plaintiffs have not made out a prima facie case regarding any
elements.
The Defendants have argued, and this court agrees, that the Plaintiffs have failed to prove
a breach of duty and causation. The court notes that the common threshold issue running through
all four counts in this action is that the Plaintiffs needed to be able to demonstrate that one or
more of the Defendants poisoned Joanna the night of the sleepover. The Plaintiffs have failed to
do so.
9 Breach of Duty:
In a negligence action a plaintiff is required to demonstrate that a breach of duty
occurred. See Davis v. Dionne, 2011 ME 90, ~ 8, 26 A.3d 101. The Defendants argue that
Plaintiffs have failed to present evidence showing that any one of the Defendants actually
breached their duty to Joanna by poisoning her. (Defs.' Mot. 5). In Durham v. HTH Corp., a slip
and fall case in a restaurant, the Law Court found that testimony regarding a metal strip on the
top stair being pulled or curled up after the accident, as well as evidence regarding two other
patrons falling down the stairs, along with the restaurant owner's husband stating '"maybe' the
metal strip could have caused Durham's accident", were insufficient to demonstrate a breach of
duty on the part of the defendants. 2005 ME 53,~~ 10-11, 870 A.2d 577. See also Duchaine v.
Fortin, 159 Me. 313, 318, 192 A.2d 473, 476 (1963) (citations omitted) ("Liability cannot be
predicated upon the mere happening of an accident. It does not necessarily imply negligence ....
[T]o establish a case upon inferences drawn from facts, it must be from facts proven. Inferences
based on mere conjecture or probabilities will not support a verdict.").
While Joanna has asserted that she became ill during the sleepover and her loss of vision
began about five days after, there is no evidence before the court that demonstrates that any
Defendant put a foreign substance in her food. (S.M.F. ~~ 14-16, 18-19, 22.) All ofthe
Defendants have sworn that they did not introduce foreign or poisonous substances into Joanna's
food, nor did they witness anyone else do so, and they have not become aware of anyone
poisoning Joanna. (S.M.F. ~ 22.) Even if the court were to exclude the Defendants' testimony
based on questions regarding the credibility of their affidavits, Joanna's testimony adequately
demonstrates that the Plaintiffs have not shown that any of the Defendants poisoned her. (S.M.F.
~ 18; Ex. A 57:24-58:24.) Joanna testified in her deposition that she did not see any ofthe
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Defendants do anything to poison her, nor did she have any information regarding any Defendant
to suggest that he or she poisoned her. (Id.)
With respect to breach of duty, the Plaintiffs' case would appear to rely almost entirely
on speculation or conjecture. Joanna's statement that the ice cream she consumed the night of the
sleepover, "tasted a little weird", and that it was "very melted on the bottom" and "syrupy on the
bottom", does not suggest that the ice cream was actually poisoned. (S.M.F. ~ 11; Ex. A 42:7-
18.) Nor does Joanna's assertion that Alyse, Johanna, Eliza and Benjamin stopped talking to her,
show that any of them poisoned her. (S.M.F. ~ 20.)
Without any support for the proposition that one or more of the Defendants may have
poisoned her, the Plaintiff has failed to show a breach of duty. But failure to show a breach of
duty is not the sole reason why the court must find in favor of the Defendants.
Causation:
A Plaintiff's case cannot be based on speculation or conjecture. See Houde v. Millett,
2001 ME 183, ~~11-12, 787 A.2d 757 (holding that testimony regarding soot being frequently
tracked into the kitchen from the basement and soot being on the floor the night before the fall,
as well as evidence of a dark smudge later discovered on a pajama leg, failed to show without
speculation that soot caused the plaintiff to fall). "A defendant is entitled to a summary judgment
if there is so little evidence tending to show that the defendant's acts or omissions were the
proximate cause of the plaintiffs injuries that the jury would have to engage in conjecture or
speculation in order to return a verdict for the plaintiff." Houde, 2001 ME 183, ~ 11, 787 A.2d
757.
11 In order for a court to find that a defendant's actions or omissions proximately caused a
plaintiffs injuries the court must determine whether the elements of substantiality and
foreseeability have been met. See Tolliver v. Dep 't. ofTransp., 2008 ME 83, ~ 42, 948 A.2d
1223.
"Evidence is sufficient to support a finding of proximate cause if the evidence and inferences that may reasonably be drawn from the evidence indicate that the negligence played a substantial part in bringing about or actually causing the injury or damage and that the injury or damage was either a direct result or a reasonably foreseeable consequence of the negligence."
!d. (quoting Merriam v. Wanger, 2000 ME 159, ~ 8, 757 A.2d 778). When making a
determination regarding proximate cause, fact-finders are permitted to make reasonable
inferences from their own experiences, but the court has held that "in cases involving complex
facts beyond the ken of the average juror, or those potentially involving multiple causes, more
substantial evidence of proximate cause may be required." Tolliver, 2008 ME 83, ~ 42, 948 A.2d
The Plaintiffs have not shown that any foreign substance that may have been placed into
her food caused her medical problems. The only possible way that this court could find that a
Defendant poisoned Joanna resulting in her injuries would be through speculation. The
Defendants argue that even if the Plaintiffs were able to show that a Defendant or multiple
Defendants intentionally or negligently placed a foreign substance in her food, the Plaintiffs still
would not be able to establish causation between Joanna ingesting that food and her injuries.
(Defs.' Mot. 5.) '"The mere possibility of such causation is not enough, and when the matter
remains one of pure speculation or conjecture, or even ifthe probabilities are evenly balanced, a
defendant is entitled to a judgment."' Houde, 2001 ME 183, ~ 11, 787 A.2d 757 (quoting
Merriam v. Wanger, 2000 ME 159, ~ 8, 757 A.2d 778). Because the Plaintiffs failed to respond
12 to the Motion for Summary Judgment, the Plaintiffs failed to demonstrate to the court how a
poison like thallium could cause the range of medical problems Joanna has suffered from and
continues to suffer from.
Lastly, the court notes that Plaintiffs' fourth count regarding the Defendants acting
intentionally and thereby with malice, whereby the Plaintiffs would be able to collect punitive
damages, is not actually a separate legal claim. To the extent that the Plaintiffs are trying to
establish an intentional tort, however, the Plaintiffs have not provided any evidence of
intentional poisoning and that count must also fail.
Since the Plaintiffs have failed to demonstrate that any of the Defendants negligently or
intentionally poisoned Joanna, all four of the Plaintiffs' counts must fail. The court
acknowledges that Joanna suffers from devastating health problems and sympathizes with her
condition, but Plaintiffs have failed to demonstrate how any of the Defendants acted in any way
to cause Joanna's injuries.
Accordingly, the court ORDERS that the Defendants' Motion for Summary Judgment is
GRANTED.
The Clerk is directed to incorporate this Order into the docket by reference pursuant to
Maine Rule of Civil Procedure 79(a).
Dated: 4'5 Za 13