ORDER ON MOTION FOR SUMMARY JUDGMENT
MaryGay Kennedy Judge
Before the court is Defendant Lisbon Road Animal Hospital's ("Lisbon Road") Motion for Summary Judgment. Plaintiff Lindsy Hayes filed a seven-count Complaint against Lisbon Road following the death of her collie, Murphy. The court previously granted Lisbon Road's Motion for Judgment on the Pleadings as to Count IV, for negligent infliction of emotional distress, and Count VII, for loss of companionship and intrinsic value, and those counts have been dismissed. Lisbon Road's Motion for Summary Judgment concerns the remaining counts of the Complaint. The Complaint contains the following remaining counts: Count I is for professional negligence; Count II is for breach of fiduciary duty; Count III is for recoupment; Count V is for breach of contract; and Count VI is for vicarious liability. Ms. Hayes has opposed Lisbon Road's Motion for Summary Judgment. The court has reviewed the parties' filings, and has found the following.
I. Factual and procedural background
The following facts are gathered from Lisbon Road's Statement of Material Facts (S.M.F.), Ms. Hayes' Responses to the S.M.F. (O.S.M.F.), Ms. Hayes' Additional Statement of Material Facts (A.S.M.F.), and Lisbon Road's Reply Statement (R.S.M.F.).
On July 20, 2012, Ms. Hayes brought her eight-year-old dog, Murphy, to Lisbon Road so that his skin condition could be evaluated and treated. (S.M.F. ¶ 1; O.S.M.F. ¶ 1; A.S.M.F. ¶ 1; R.S.M.F. ¶ 1.) Murphy was diagnosed with Seborrhea and he was prescribed a shampoo to address itching. (A.S.M.F. ¶ 3; R.S.M.F. ¶ 3.) When Ms. Hayes and Murphy visited Lisbon Road they would see either Veterinarian Robert Clark, Jr. or Veterinarian Tyler Cote. (S.M.F. ¶ 2; O.S.M.F. 12; A.S.M.F. ¶ 2; R.S.M.F. ¶ 2.)
Between July 20, 2012 and March 7, 2013, Ms. Hayes both consulted by telephone and visited Lisbon Road a number of times for treatment of Murphy's skin condition. (S.M.F. ¶ 2; O.S.M.F. ¶ 2.) Doctors Clark and Cote performed a variety of diagnostic tests and recommended a number of remedies for Murphy's skin ailments. (Id.) On November 16, 2012, Murphy visited Lisbon Road again because his skin condition had failed to clear up and Prednisone was prescribed. (A.S.M.F. ¶ 4; R.S.M.F. ¶ 4.) Ms Hayes was very concerned that Murphy's condition was not improving. (A.S.M.F. ¶ 5; R.S.M.F. ¶ 5.) Murphy returned to Lisbon Road again on January 18, 2013. (A.S.M.F. ¶ 7; R.S.M.F. ¶ 7.)
On March 5, 2013, Ms. Hayes and Dr. Clark discussed a skin scraping test. (A.S.M.F. ¶ 9; R.S.M.F. ¶ 9.) Dr. Clark indicated that a skin scraping test was unnecessary. (A.S.M.F. ¶ 9; R.S.M.F. ¶ 9.) He explained that he would treat for mites, since if mites are suspected mites should be treated regardless of the outcome of the test. (R.S.M.F. ¶ 9.) Dr. Clark prescribed the medication Revolution for Murphy. (A.S.M.F. ¶ 10.)
Revolution provides that it is not to be given to underweight dogs. (A.S.M.F. ¶10.) While Murphy had lost 34 pounds. Murphy had originally been overweight prior to his weight loss and after his weight loss Murphy weighed 111 pounds. (A.S.M.F. ¶ 10; R.S.M.F. 10.) Ms. Hayes testified that normal weight for an adult male collie can range from 60 to over 100 pounds. (R.S.M.F. ¶ 10.)
Ms. Hayes eventually took Murphy to Central Maine Veterinary Hospital on March 11, 2013, at which point he was in dire shape and deteriorating. (S.M.F. ¶¶ 3-4; O.S.M.F. n 3-4.) Dr. Claire Morissette examined and performed diagnostic tests on Murphy. (S.M.F. ¶ 3; O.S.M.F. ¶ 3.) Dr. Morissette performed a skin scrape and found that Murphy had scabies. (A.S.M.F. ¶ 13; R.S.M.F. ¶13.) Dr. Morissette also suggested that Murphy had cancer. (S.M.F. ¶ 4; O.S.M.F. ¶ 4.) Based on his poor health and the likelihood that Murphy had untreatable cancer, Ms. Hayes had Murphy euthanized on March 21, 2013. (S.M.F. ¶ 5; O.S.M.F. ¶ 5.)
Ms. Hayes' counsel sought and the court granted five separate enlargements of Ms. Hayes' deadline to designate expert witnesses, which extended Ms. Hayes' deadline by 88 days. (S.M.F. ¶ 7; O.S.M.F. ¶ 7.)
At the time of the final deadline for designating expert witnesses, Ms. Hayes' counsel designated Dr. Clark of Lisbon Road and Dr. Morissette of Central Maine Veterinary Hospital. (S.M.F. ¶ 8; O.S.M.F. ¶ 8.) With respect to Dr. Clark, the designation did not provide any opinions that Ms. Hayes claims Dr. Clark holds that would substantiate her claim against him, instead the designation stated that Dr. Clark's opinions would be elicited through deposition and that she reserved the right to adopt them. (S.M.F. ¶ 9; O.S.M.F. ¶ 9.) Ms. Hayes never noticed or attempted to take Dr. Clark's deposition prior to the discovery deadline of September 14, 2014, and her motion to enlarge the discovery deadline was denied. (S.M.F. ¶ 10; O.S.M.F. ¶ 10.) Lisbon Road's Answer to the Complaint denies that Dr. Clark breached any duty to Ms. Hayes or that his actions caused Murphy's death. (S.M.F. ¶ 11; O.S.M.F. ¶11.)
Ms. Hayes originally asserted that Dr. Morissette would provide expert testimony concerning breaches of the standard of care, however, Dr. Morissette was designated without her knowledge and consent, never agreed to act as an expert witness, and would not consent to act as an expert witness. (S.M.F. ¶¶ 12-13; O.S.M.F. ¶¶ 12-13.) On September 2, 2014, following Dr. Morissette's objection to her "designation, Ms. Hayes' counsel supplied an amended expert witness list, which no longer listed Dr. Morissette and only listed Dr. Clark. (S.M.F. ¶ 14; O.S.M.F. ¶14.) Ms. Hayes has no education in veterinary science. (S.M.F. ¶ 15.)
II. Standard of review
"Summary judgment is appropriate when the record reveals no issues of material fact in dispute. A fact is material if it has the potential to affect the outcome of the case." Lepage v. Bath Iron Works Corp., 2 ...