United States District Court, D. Maine
MEMORANDUM DECISION ON MOTION TO EXCLUDE
H. Rich III United States Magistrate Judge
action arises out of the death of the defendant's
employee while the plaintiff was engaged in pest control
services at the defendant's facility in Maine. The
defendant, Moark, LLC, moves to exclude from trial any
testimony by three of the plaintiff's designated expert
witnesses, Phillip S. Cardamone, Psy.D., a psychologist;
Alnoor K. Ramji, M.D., a psychiatrist; and Rick Gingy, a
counselor. Defendant's Motion to Exclude Expert Testimony
(“Motion”) (ECF No. 23) at 1-2. All of these
individuals apparently treated Michael Warbin, the principal
of the corporate plaintiff. Id. I grant the motion.
complaint in this action alleging breach of contract (Count
I), defamation (Count II), and negligence (Count III) was
filed by C & M. Property Management, LLC and Michael
Warbin. Complaint (ECF No. 1) at 1-5. The defendant filed a
motion to dismiss (ECF No. 7), which was granted in part.
Order on Defendant's Motion to Dismiss (ECF No. 15) at 1.
All of the claims asserted by Warbin were dismissed.
Id. at 10.
defendant asserts that the plaintiff's designated expert
witnesses will “offer expert opinions that Mr. Warbin
suffers from depression that limits his ability to
work.” Motion at 1. Such testimony, it contends, is
irrelevant to the claims of the corporation. Id. at
1-2. It also seeks exclusion of this testimony because the
plaintiff did not provide it with “a complete summary
of the facts and opinions to which the experts intend to
testify.” Id. at 2.
defendant's first argument is based on the asserted
principle that a business, whether a corporation or a limited
liability company, cannot recover for injuries to its owners,
officers, or employees. Id. at 5-6. See, e.g.,
AIG Domestic Claims, Inc. v. Hess Oil Co., 232 W.Va.
145, 152-54, 751 S.E.2d 31, 38-40 (2013). The plaintiff
responds by citing case law from jurisdictions other than
Maine or Connecticut, Plaintiff's Response to Defendant
Moark, LLC's Motion to Exclude Expert Testimony
(“Opposition”) (ECF No. 26) at 5, where the
plaintiff is incorporated. Complaint ¶ 2. However, none
of this case law is applicable to the issue presented by the
court in 4MVR, LLC v. Hill, Civil Action No.
12-cv-10674, 2015 WL 3884054 (D. Mass. June 24, 2015), did
observe that “courts in other contexts have
acknowledged that single member LLCs are only slightly
factually different from their sole members[, ]”
id. at *4, but that observation says nothing about
the legal differences between the two. More important, the
court made that observation in the context of an attempt to
make the single member individually liable to the LLC.
Id. That is not the case here, where the defendant
seeks to preclude the corporate plaintiff from recovering for
losses allegedly caused by injuries inflicted upon its sole
In re Lemay, Bankruptcy No. 13-10999-BAH, 2014 WL
4690862 (Bankr. D.N.H. Sept. 19, 2014) (unpublished opinion),
one of the cases cited as authority for the Massachusetts
district court's observation discussed above, the issue
in an adversary proceeding was reliance on alleged
misrepresentations in negotiations between the defendant and
the sole member of the plaintiff LLC. Id. at *5.
Again, the court stated that the factual difference between
the LLC and its sole member was slight, id., but
that statement was dictum as the court denied
summary judgment, “given the factual uncertainty”
surrounding the negotiations in the summary judgment record.
Id. Again, there was no attempt in Lemay by
an LLC to recover for losses due to injuries to its sole
plaintiff asserts that the Maine Law Court in Centrix
Bank & Trust v. Kehl, 2012 ME 52, 40 A.3d 942,
“uph[eld] [the] trial court's grant of attachment
against [an] individual property owner and properties owned
by LLCs in which she was the sole member, even though [the]
LLCs were not named in the lawsuit[, ]” Opposition at
5, but the legal distinction between the LLCs and the sole
member is not mentioned in the opinion. The only issue was
whether an interlocutory appeal could be maintained under the
circumstances of the case, 2012 ME 52 ¶ 4, 40 A.3d at
943, and the Law Court ruled that it could not. It did not
reach the merits of the appellant's argument.
Delott v. Roraback, 179 Conn. 406, 426 A.2d 791
(1980), and Moiger v. Connecticut Ice Cream Co., 146
Conn. 551, 152 A.2d 925 (1959), as the plaintiff notes,
Opposition at 5, dealt with the questions of whether a
self-employed person could recover from a tortfeasor the
costs of hiring an employee to conduct his business while he
was prevented from doing so by his injuries or whether a
self-employed person could recover for loss of earning
capacity. Neither involved an LLC or any other form of
corporation; each involved simply a direct claim by the
in Valley View Angus Ranch v. Duke Energy Field
Servs., No. CIV-04-191-D, 2008 WL 1902435 (W.D. Okla.
Apr. 25, 2008), the court denied a motion for summary
judgment based on an argument that a corporate plaintiff
could not recover for tortious interference with an
individual plaintiff's use and enjoyment of property
owned by the corporation, where the individual plaintiff is a
shareholder in the corporation. Id. at *3-*4. The
shareholder was a named plaintiff, so it is not clear that
the corporate plaintiff was making a claim on his behalf.
plaintiff argues strenuously that it is not seeking damages
for injuries to Warbin, but rather damages to the LLC based
on Warbin's inability to work, thus rendering the LLC
insolvent. Opposition at 5-6. However, the only case law on
point cited by either party precludes such a claim. I agree
that a holding that a limited liability company cannot sue
another party for personal injuries “on behalf
of” any of its members or “for a wrong committed
against one of its members, ” Ouellette, Deganis
& Gallacher, LLC v. Trendowski, No. CV136006017S,
2015 WL 7941132 at *4 (Conn. Sup. Ct. Nov. 10, 2015), is not
directly applicable when the plaintiff, as is the case here,
casts its claim in terms of an alleged injury to itself
resulting from injuries inflicted upon its sole member. I
also recognize the problem lurking behind this distinction:
how many members must an LLC have before such a claim can be
rejected, if at all?
stated, the plaintiff's claim has been rejected under
Louisiana law. James v. Lincoln Gen. Ins. Co., Civil
Action No. 09-0727, 2011 WL 3878339, at *5 (W.D La. Aug. 30,
2011) (“Louisiana law is clear that a
corporation has no cause of action for an economic
loss claim based on the personal injuries sustained by one of
the business's employees[, ]” citing an opinion
from the Louisiana Court of Appeals holding that a
corporation had no cause of action for economic losses based
on impairment of earning capacity of its employee) (emphasis
in original). This principle, the court held, “applies
even when the employee at issue is closely associated with
the corporation, such as when he or she is the ...