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TUMAN v. GENESIS ASSOCIATES
935 F.Supp. 1375 (1996)
United States District Court, E.D. Pennsylvania.
April 25, 1996.
I cannot find the same with regard to the alleged statements made by Defendant Neuhausel to the West Whiteland Township Police Department in July 1992. Although ¶ 63 encompasses the substance of what Defendant Neuhausel allegedly said to police,17 it asserts simply that Defendants uttered defamatory statements to other Genesis clients, and makes no reference to defamatory remarks made to others outside the Genesis network. For this reason, I will grant Defendant Neuhausel's motion and enter judgment with respect to the defamation claim against her. My inquiry does not end there, however, because Defendant Mansmann further argues that Plaintiffs' defamation claim against her must fail because there is an absence of evidence that Plaintiffs suffered special damages as a result of the defamation. See 42 Pa.C.S.A. § 8343(a) (West 1982) (setting forth plaintiff's burden of proof in defamation claims).18 Plaintiffs argue in response that because Defendants statements constitute defamation per se, Plaintiffs do not need to prove special harm. Under Pennsylvania law, a plaintiff may recover on a defamation claim in the absence of proof that s/he suffered special harm as a result of the defamation, where the words constitute slander per se. Walker v. Grand Central Sanitation, Inc.,430 Pa.Super. 236, 634 A.2d 237, 242 (1993), app. denied, 539 Pa. 652, 651 A.2d 539 (1994). Words imputing a criminal offense, loathsome disease, business misconduct or serious sexual misconduct constitute slander per se. Chicarella v. Passant,343 Pa.Super. 330, 494 A.2d 1109, 1115 n. 5 (1985). Applying this criteria, I find that the alleged statements made by Defendant
Mansmann to Kathy Kelly, as described above, do not constitute slander per se because they do not impute loathsome disease, business misconduct, serious sexual misconduct, or criminal offense to Plaintiffs. As Defendant Mansmann points out, Plaintiffs have not demonstrated that being a member of a satanic cult is a criminal offense in Pennsylvania. See Clemente v. Espinosa,749 F.Supp. 672, 679 (E.D.Pa.1990) ("A statement constitutes slander per se as an accusation of criminality when it charges either directly or indirectly the commission of a specific offense punishable by imprisonment") (citation omitted). The closest that Defendant Mansmann's statements come to imputing a criminal offense is by stating that Plaintiffs' cult would probably kill Diane. This, however, is equally insufficient because "[a] charge of criminal intent or design, or merely ability to commit a crime" does not constitute slander per se. Id. (citation omitted). Therefore, I will enter judgment for Defendant Mansmann on the defamation claim against her as well. D. Intentional Infliction of Emotional Distress Claim Defendants correctly argue that in order to make out a claim for intentional infliction of emotional distress in Pennsylvania, Plaintiffs must offer expert medical confirmation that they actually suffered the claimed distress. See Kazatsky v. King David Memorial Park, Inc.,515 Pa. 183, 527 A.2d 988, 995 (1987); see also Krysmalski v. Tarasovich,424 Pa.Super. 121, 622 A.2d 298, 316-17 (Cirillo, J., dissenting) (explaining that "[i]n claims for intentional infliction of emotional distress, the supreme court imposed the requirement of expert medical evidence of the distress as a counterweight to the ease with which fraudulent claims of outrageous behavior could be brought"), app. denied, 535 Pa. 675, 636 A.2d 634 (1993). Defendants contend that Plaintiffs will not be able to sustain this burden because they testified that they did not seek treatment for the various injuries they have alleged19 nor were they diagnosed by a professional as suffering from these ailments. K. Tuman dep at 414-18; J. Tuman dep. at 212-13, 277-78, 284-85, 292, 306-07, 332.
1. Plaintiffs' tort claims against Defendant Genesis Associates are based solely upon respondeat superior. 2. By motion, Defendant Mansmann also joined in Defendants Neuhausel's and Genesis Associates' motion, and incorporated all arguments made by Defendants Neuhausel and Genesis Associates as if they were her own. 3. According to the Amended Complaint, at the time of Diane's treatment, Defendant Mansmann was a licensed psychologist and Defendant Neuhausel was a licensed social worker. 4. Jurisdiction is based on diversity, as Plaintiffs are New Jersey residents and Defendants reside or have a principal place of business in Pennsylvania.
A district court sitting in diversity must apply the law of the state in which it sits to the facts of the case. Erie Railroad Co. v. Tompkins,304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The parties agrees that Pennsylvania law governs this case. 5. I dismissed with prejudice Plaintiffs' interference with filial relations claim. Id. at 189-90. I dismissed without prejudice Plaintiffs' negligence claim because they had failed to allege physical injury as is required under Pennsylvania law, and granted leave to Plaintiffs to file an amended complaint, id. at 189, which they did. 6. Plaintiffs argue that although Diane was Defendants' patient, Defendants also owed a duty of care to Plaintiffs. In my July 1995 opinion, after reviewing Pennsylvania law on professional malpractice, I predicted that the Pennsylvania Supreme Court would conclude that a therapist owes a duty of reasonable care to a patient's parent, where (1) the therapist specifically undertook to treat the child for the parents; (2) the parents relied upon the therapist; (3) the therapist was aware of the parents' reliance; and (4) it was reasonably foreseeable that the parents would be harmed by the therapist's conduct. 894 F.Supp. at 188. 7. Defendant Mansmann argues that the Tumans were on notice even earlier, when in 1990 they attended a lecture and later approached the lecturer to ask about the appropriateness of detachment therapy. K. Tuman dep. at 278-79. However, given that Diane only started therapy with Genesis in 1990, I conclude that the discussion with the lecturer in 1990 would be insufficient to put Plaintiffs on notice that they were being harmed by Genesis' treatment methods. 8. Defendants cite to this part of Kenneth Tuman's deposition as proof that the officer told them that day that Diane filed a complaint with the New Jersey state police that Plaintiffs were subjecting Diane to satanic ritualistic abuse. This is a misstatement of the deposition testimony. At p. 70, Plaintiff Kenneth Tuman states that it was not until Plaintiffs went to Denver in November 1992 that they learned for the first time that Diane was making these accusations against Plaintiffs and not third parties. Also, at p. 8 of her deposition, Plaintiff Joan Tuman states that after they returned from Denver in November 1992, they contacted the New Jersey state police and gave them a written account of the events of July 1992 leading up to Diane's disappearance; they did this because the information they received in Colorado led them to believe that they were under investigation by the New Jersey state police. See also J. Tuman dep. at 386. 9. Plaintiffs' breach of contract claim, by contrast, is premised on Plaintiffs' allegation that Defendants provided substandard care to Diane and that this constituted a breach warranting contract damages. 10. Plaintiffs also contend that Defendants should not be allowed to argue that Plaintiffs' expert testimony is inadmissible on the grounds that the expert did not consult Diane's treatment notes, because Plaintiffs demanded the treatment notes during discovery but Defendants refused to produce them, improperly claiming that they were privileged.
Fed.R.Civ.P. 37 instructs a party to move the court to compel disclosure in the event that s/he believes an opposing party is improperly withholding discovery. I note that Plaintiffs failed to file such a motion to compel during the discovery phase of this case, which ended on Feb. 15, 1996. For this reason, I do not consider this argument by Plaintiffs in my analysis. 11. As Defendants correctly observe, Pennsylvania does not recognize a cause of action for loss of filial relations, and this Court previously dismissed Plaintiffs' claim for loss of filial relations in its July 1995 opinion. 894 F.Supp. at 189-90. 12. Defendants argue that Plaintiffs should not be permitted to pursue their breach of contract claim against Defendants because this case does not fall within the two narrow exceptions recognized by the Pennsylvania Supreme Court to the general rule that a non-client cannot sue a professional for malpractice. See DiMarco v. Lynch Homes-Chester County, Inc.,525 Pa. 558, 583 A.2d 422 (1990) (holding that a third-person in class of persons whose health is likely to be threatened by patient with communicable disease has tort cause of action against treating physician for giving patient erroneous advice about the risk of spreading the disease) and Guy v. Liederbach,501 Pa. 47, 459 A.2d 744 (1983) (holding that named beneficiaries in will can sue attorney who drafted will for decedent in assumpsit for improperly drafting instrument). See also Lindgren v. Moore,907 F.Supp. 1183, 1187-89 (N.D.Ill.1995) (holding that father and siblings of patient could not sue in tort on allegations of false memory implantation because plaintiffs did not have a "special relationship" with patient as is required under Illinois law).
Plaintiffs allege that they directly contracted with Defendants to treat Diane; they do not argue that they were intended beneficiaries of a contract between Diane and Defendants as was the case in Guy v. Liederbach. For that reason, Guy is not helpful on the issue of whether the parties in the instant action formed a contract and thus have a cause of action for breach. DiMarco and Lindgren also are not instructive on the contract formation question in the instant action, because those cases were solely negligence actions in which the courts were trying to determine if a practitioner owed a duty of care to a non-patient third party. 13. In response to Defendant Mansmann's contention that there is no evidence of a contract between herself and Plaintiffs, Plaintiffs simply respond that Mansmann, as the Genesis psychologist, was "responsible for the acts of employees working under her" and that "she submitted bills under her name." Pls.' Mem.Opp. at 25. Plaintiffs, however, fail to point to any deposition testimony or other evidence in the record to support the claim that Defendant Mansmann was Defendant Neuhausel's employer or supervisor. Moreover, in a later submission, Plaintiffs completely reversed their argument, and stated that Defendant Mansmann was not Defendant Neuhausel's supervisor. Pls.' Post-Argument Mem. at 17. Finally, I note that Plaintiffs have not submitted any bills from Defendant Mansmann with their opposition papers, nor have the pointed to testimony by Plaintiffs that they received such bills. 14. I noted a significant difference between this case and the fact-scenario presented in cases such as Sherman. In this case, Plaintiffs' contract claim is not based on allegations that Defendants failed to provide Plaintiffs with reasonable care; instead, Plaintiffs claim that Defendants breached a contract between Plaintiffs and Defendants by failing to provide Diane with adequate care. Id. at 186.
I further note that this case is distinguishable because Plaintiffs' negligence claim seeks to recover for alleged injuries suffered by Plaintiffs on the theory that Defendants breached a duty of care that they directly owed to Plaintiffs; Plaintiffs do not seek a tort remedy for injuries incurred by Diane for any alleged breach by Defendants of the professional duty of care they owed to Diane. 15. The First Count of the Amended Complaint states in pertinent part:
14. Plaintiffs performed their obligations under said contract by paying Defendants monies in excess of five thousand dollars. * * * * * * 19. As a result of the conduct of Defendants described hereinabove, Plaintiffs have suffered monetary damages in excess of five thousand dollars and have been caused to suffer emotional and mental pain, discomfort and anguish and will continue to suffer same for an indefinite period in the future. 16. Plaintiffs have acknowledged that they are no longer seeking to hold Defendants liable for statements uttered by Diane. Pls.' Mem.Opp. at 14. 17. According to a July 7, 1992 report, Defendant Neuhausel told police that Diane had been groomed by a cult in Mount Holly, N.J. since she was about two years old to become a high priest. In a report dated July 29, 1992, Neuhausel is reported to have said that she received a phone message from Diane that Diane was back at her parents' home in New Jersey, and that Neuhausel believed Diane was in serious danger and had been taken back to New Jersey against her will. Pls.' Mem.Opp., Ex. K. 18. The statute provides:
(a) Burden of plaintiff. — In an action for defamation, the plaintiff has the burden of proving, when the issue is properly raised: (1) The defamatory character of the communication. (2) Its publication by the defendant. (3) Its application to the plaintiff. (4) The understanding by the recipient of its defamatory meaning. (5) The understanding by the recipient of it as intended to be applied to the plaintiff. (6) Special harm resulting to the plaintiff from its publication. (7) Abuse of a conditionally privileged occasion. 42 Pa.C.S.A. § 8343(a) (West 1982) (emphasis added). 19. Plaintiffs testified that they have experienced a number of physical injuries stemming from their emotional distress, including depression, anxiety, sleeplessness, weight gain, hypertension, and sexual dysfunction. K. Tuman dep. at 414-18, 434-35, 442-43, 446-47; J. Tuman dep. at 261-62, 276-77, 284, 327, 332. 20. Plaintiffs assert that the Court should not enter judgment for Defendants on this claim, because Plaintiffs provided medical releases to Defendants but Defendants failed to subpoena these records. This argument is irrelevant. Once Defendants established that there was no expert medical confirmation of Plaintiffs' alleged injuries in the record, it became Plaintiffs' burden to produce that expert medical evidence to defeat the motion for summary judgment on this claim. 21. To make out a claim for intentional misrepresentation, Plaintiffs must demonstrate: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. Gibbs v. Ernst,538 Pa. 193, 647 A.2d 882, 889 (1994) (citations omitted).
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