When Does Bad Conduct Rise to the Level of Outrageous Conduct?

         A recent Tennessee Court of Appeals case serves as a reminder that the bar for proving outrageous conduct is high for plaintiffs attempting to make a case for intentional infliction of emotional distress (“IIED”). In Kindred v. Nat’l College of Bus. and Tech., Inc., No. W2014-00413-COA-R3-CV (Tenn. Ct. App. March 19, 2015), plaintiff sued her former college for, among other things, IIED related to the cancellation of her classes for one term. Plaintiff had her GED, and at the time of her initial enrollment the school did not require students to have an official copy of their equivalency certificate in their file. That policy later changed. Two weeks prior to the start of term 107, plaintiff went to the college to get a copy of that term’s schedule and was informed that her file did not have an official copy of her GED and that she was thus not in compliance with the school’s requirements. Plaintiff alleged that she presented the school with her GED equivalency card, but she did not dispute that she took no steps to get an official copy of her GED into her file.

            Plaintiff started attending classes at the beginning of term 107, but after one week the director of the campus cancelled plaintiff’s schedule because her file did not comply with the official copy requirement. The director told plaintiff that she would not be charged tuition for that term and that she could return to classes the next term as long as she had provided an official copy of her GED. Plaintiff provided the school with her GED on the same day she was informed about her schedule cancellation, but the director refused to reinstate her for that term. Two months later, plaintiff enrolled in another term (term 111) at the same college. She was not allowed to enroll until she paid an outstanding balance for textbooks from term 107 (the cancelled term), which she paid after protest. Plaintiff attended two additional terms at the school, but at the end of term 113 she received a failing grade, which she unsuccessfully challenged. After that, plaintiff alleged that “she could no longer suppress her pain and distress that began with [defendant’s] degrading termination of her enrollment eight months earlier. Plaintiff further allege[d] that this forced her to cease her attendance at [the school] and abandon her educational/professional goals.”

            Defendant filed a motion to dismiss plaintiff’s IIED claim, which the trial court granted and the appellate court affirmed. One of the elements of an IIED claim is that “the conduct must be so outrageous that it is not tolerated by a civilized society[.]” Here, the Court of Appeals found that the conduct alleged did not rise to this level. The Court noted that the Tennessee Supreme Court has adopted the Restatement (Second) of Torts standard for IIED with states that “[l]iability has been found only where the conduct has been so outrageous in character, and so extreme in degree as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Citing Bain v. Wells, 936 S.W.2d 618 (Tenn. 1997). While many situations may cause some distress, “outrageous conduct does not include ‘mere insults, indignities, threats, annoyances, petty oppression or other trivialities.’” Citing Levy v. Franks, 159 S.W.3d 66 (Tenn. Ct. App. 2004) (additional citations omitted).

            The Court conceded that plaintiff in the instant case was “understandably unhappy that her enrollment in term 107 was cancelled, and, thus, briefly delayed her goal of completing her degree at National College. However, [the director’s cancellation of her schedule] does not rise to the sufficiently outrageous standard required for recovery under IIED[.]”

            As this case illustrates, most common annoyances, no matter how upsetting, will not support a claim for IIED. The outrageous conduct standard required to support this tort is exacting, and a plaintiff filing a complaint should be mindful of the case law regarding IIED as he or she is drafting a complaint.  

Tennessee Medical Malpractice Case Rich With Law on Speculative Damages, NIED Claims and Whether Disruption of Family Planning Is A Valid Claim

Memphis, Tennessee medical malpractice cases always seem to have a more than their fair share of twists and turns.  This health care liability case has more twists and turns than the Cherohala Skyway TN 165 / NC143 from Tellico Plains to Robbinsville ( a great road for our motorcycling friends).

During her third pregnancy, Plaintiff Michelle Rye was under the care of Dr. Diane Long, a physician with Women's Care Center of Memphis. Because Ms. Rye has Rh negative blood, the standard of care dictated she be given a RhoGAM injection during her pregnancy.   The defendants failed to give Ms. Rye the RhoGAM injection and she developed Rh-sensitization as a result.   Rh-sensitization is a condition in which, if the in utero child has Rh positive blood, the mother's antibodies attack the baby's blood cells causing injury to the baby. 

The defendants admitted they failed to comply with the standard of care but denied the plaintiffs had suffered any damage. In particular, in support of their motion for summary judgment, the defendants attached the affidavit of Dr. Stovall who opined it could not be said with any reasonable degree of medical certainty that any Rh-sensitized female would ever sustain any injuries or damage and the same was true even if the woman conceived another child as the child would have to have Rh-positive blood for the condition to be in play.

The plaintiffs countered that the defendants' malpractice had caused them to alter their family planning. Specifically, following the birth of their third child, the defendants referred the plaintiffs to Dr. Schneider, a doctor who specialized in high risk pregnancies. Dr. Schneider advised the plaintiffs that any future surgery would be high risk and the risks would increase for every successive pregnancy because of Mrs. Rye's immune system response. According to the plaintiffs, Dr. Schneider actually discouraged the plaintiffs from having any additional children. Because of their religion, the plaintiffs used natural family planning methods. Since natural methods are not completely effective at preventing pregnancy, the plaintiffs had tremendous anxiety about the possibility of future pregnancies and the complications that would result, although neither plaintiff ever sought any psychological counseling for the anxiety. However, the anxiety was such that the plaintiffs approached their church seeking permission for Mrs. Rye to undergo voluntary sterilization but the request was denied. 

Further, even the defendant doctor admitted in her deposition that the decision of whether to have a child was a "huge deal" and the plaintiffs' decision to alter their family planning was reasonable. And finally, the plaintiffs presented an expert affidavit that Ms. Rye now has diseased blood and there was a 70% chance that if she became pregnant again her fetus would have Rh-positive blood and the complications could be moderate to severe and may require blood transfusions for the mother and invasive procedures for the infant. 

The procedural history of the motion for summary judgment is rather complicated and both parties filed competing applications for interlocutory appeal. But the issues were succinctly distilled by the Court of Appeals when they granted the application for interlocutory appeal and limited review to the following issues:  

1. Since the defendants admitted they failed to comply with the standard of care, did the trial court err in finding the damages were too speculative and subsequently granting summary judgment on the plaintiffs' claims that their future children are at risk for complications and Mrs. Rye is at risk for blood transfusions?

2. Did the trial court err by denying summary judgment to the defendants on Mrs. Rye's claim that she now has diseased blood and therefore has an injury in the form of altered health status?

3. Did the trial court err in failing to grant summary judgment on Mrs. Rye's emotional distress claim since it was not a "stand alone" claim?

4. Did the trial court err in granting summary judgment on Mr. Rye's claim for emotional distress since it was a "stand alone" claim?

5. Is disruption of family planning a cause of action under Tennessee law? If it is, does it belong to a woman, a man or both?

As for the first issue, the Court found the trial court properly denied summary judgment to the defendants on whether Mrs. Rye had suffered an actual injury. The plaintiffs' expert affidavit unequivocally opined Mrs. Rye had an irreversible altered body status in the form of an autoimmune disorder and the risk of the disorder to future pregnancies was not disputed. While the defendants pointed to the fact that Mrs. Rye had not received any medical treatment for her condition, the Court of Appeals relied upon the broad definition of "injury" and "impair" found in Black's Law Dictionary and noted that neither required a party to actually undergo any medical treatment to have an injury.

After a lengthy discussion about speculative damages, the Court of Appeals concluded that "regardless of whether any complications resulting from Mrs. Rye's Rh-sensitization actually occur in the future, we conclude the [defendants] have failed to show that Mrs. Rye cannot prove that she has suffered from an injury in this case." Since there was conflicting proof in the record, the Court of Appeals reversed the trial court's grant of summary judgment on the issue of future medical expenses for Mrs. Rye's future pregnancies. 

On the issue of future blood transfusions, the Court of Appeals held the future damages related to Mrs. Rye's blood transfusions were too speculative finding plaintiff's expert affidavit had not opined to a reasonable degree of medical certainty that Mrs. Rye would need future blood transfusions. Instead, that element of damage had been couched as merely a possibility. As such, the Court of Appeals affirmed the trial court's dismissal of that portion of plaintiffs' claims.

Next up was the claim related to disruption of family planning. The plaintiffs asserted the Tennessee Supreme Court's decision in Davis v. Davis was dispositive and permitted the claim. Davis involved a dispute between a divorcing couple about how to dispose of frozen embryos. The Court of Appeals disagreed distinguishing Davis on the basis that it involved the issue of unwarranted governmental intrusion into the decision of whether or not to have children. The Court of Appeals declined to extend the holding in Davis to cases involving non-governmental entities. Since Tennessee law does not recognize an independent claim for disruption of family planning, the trial court's grant of summary judgment on that claim was affirmed. However, the Court of Appeals did rule that the Ryes could present evidence of the disruption of their family planning as part of the damages for the negligent infliction of emotional distress claim, to the extent the claim survived.

Finally, the last issue is the aforementioned negligent infliction of emotional distress claim. The central issue was whether Mr. and Mrs. Ryes' NIED claims were stand-alone and thus required expert proof of which plaintiffs had offered none.   The opinion offers a nice history of the law on this issue. Ultimately, the Court of Appeals concluded Mrs. Rye's claim was not stand-alone but instead "parasitic" to her medical malpractice claim. Thus, expert medical proof was not necessary to proceed on her claim.

As for Mr. Rye, it was undisputed he did not suffer any physical injury nor did he have an independent basis for tort liability. Therefore, expert proof would be necessary. However, the Court of Appeals did not affirm the grant of summary judgment. Instead, the trial court was reversed under Hannan, i.e, "a party who moves for summary judgment cannot 'negate' an element of the nonmoving party's claim simply by noting the nonmoving party has no evidence to prove the element." 

The case is Rye v. Women's Care Center of Memphis, W2013-00804-COA-R9-CV (Tenn. Ct. App. March 10, 2014).

Dogs and Cats Living Together, Mass Hysteria

Out of a surprisingly ugly set of circumstances (only some of which I’ve mentioned here), we get an opinion on emotional distress claims that clarifies and progresses the law forward. 

In Coleman v. The Humane Society of Memphis and Shelby County, Plaintiff was a veterinarian who was hired by Defendant Humane Society to serve as its new staff veterinarian.  Plaintiff had run-ins with Defendant’s executive director about the conditions in which animals were kept at the Humane Society. Plaintiff later discovered that an employee at the Humane Society was illegally euthanizing cats without permission or a license using controlled drugs purchased with Plaintiff’s DEA license.

Plaintiff complained to the executive director and asked that the employee be fired, but the executive director did not terminate the employee. Plaintiff then complained to the Humane Society’s board of directors.  Within two months, Plaintiff’s hours, pay, and ultimately her job were cut.

Plaintiff sued for retaliatory discharge and negligent infliction of emotional distress. The trial court denied Defendant’s summary judgment motion as to the retaliatory discharge claim, but granted Defendant summary judgment on the emotional distress claim. Both parties were granted interlocutory appeal of the summary judgment decisions.

Preliminarily, the Court of Appeals found this case was to be judged under the Hannan standard because it was pending before the statutes modifying summary judgment standards were enacted.

Negligent Infliction of Emotional Distress

The key question was whether Plaintiff’s negligent infliction of emotional distress claim was parasitic, or whether it was a standalone claim requiring expert proof.

The Court of Appeals held that a parasitic claim is anyone where the individual claimant has brought another basis for tort liability in the same case.  Because Plaintiff also filed a retaliatory discharge claim out of the circumstances that led to her termination, the Court of Appeals found Plaintiff’s claim was parasitic and did not require expert proof.

The court distinguished Flax v. DaimlerChryslter Corp., 272 S.W.3d 521 (Tenn. 2008). In Flax, the plaintiff bringing the emotional distress claim had suffered bodily injuries in the auto accident at issue, but did not sue for those physicial. The plaintiff only filed suit as a wrongful death beneficiary, and wrongful death claims are owned by the decedent, not the beneficiaries. Because the Flax plaintiff had not brought suit with a basis for tort liability to that plaintiff other than the wrongful death claim, it was parasitic.

The Court of Appeals also held that a negligent infliction of emotional distress claim can be parasitic of an intentional tort. Defendant contended that Plaintiff’s negligent infliction of emotional distress claim could not be parasitic of the retaliatory discharge claim because retaliatory discharge is an intentional tort. The Court of Appeals rejected that argument outright.

Finding Plaintiff did not need expert proof, the court reversed summary judgment for Defendant on the negligent infliction of emotional distress claim.

Retaliatory Discharge

The Court of Appeals began by noting Plaintiff was bringing three types of retaliatory discharge claims, all with unique elements and considerations: (1) common law retaliatory discharge for an employee’s refusal to participate in illegal activities; (2) common law retaliatory discharge for an employee’s reporting of illegal activities; and (3) statutory “whistleblower act” retaliatory discharge for an employee’s reporting of illegal activities.  

Retaliatory Discharge – Employee’s Subjective Intent

The Court of Appeals held that an employee’s subjective intent in refusing to participate in illegal activities is irrelevant to that type of claim. An employee who refuses to go along with illegal activity merely to avoid prosecution of the employee herself is entitled to bring a retaliatory discharge claim.

With the common law and statutory claims for reporting illegal activity, however, subjective intent is relevant. The Court of Appeals held that the employee’s motivation for making the report must not be solely in the employee’s self-interest, but must be at least partly for concerns about the public good.

Retaliatory Discharge – Reporting to Outside Agency

The Court of Appeals held that an employee does not have to report illegal activity to anyone outside the company in order to qualify for a retaliatory discharge claim, but must report the illegal activity to someone other than the person(s) engaging in the illegal activity. In this case, Plaintiff complained to the executive director and the board of directors about the other Humane Society employee illegally using drugs to euthanize animals. Plaintiff did not, however, report the activity to anyone outside the Humane Society. The Court of Appeals held that Plaintiff’s report to Humane Society directors was sufficient for common law retaliatory discharge for reporting of illegal activities, as well as statutory “whistleblower act” retaliatory discharge for reporting of illegal activities. 

Retaliatory Discharge – Plaintiff’s Duty to Oversee the Activities at Issue

Defendant contended that Plaintiff should not be able to recover because Plaintiff was Defendant’s staff veterinarian, and was legally required to oversee all of the purchasing and dispensing of controlled substances.  The Court of Appeals rejected Defendant’s argument that an employee who has supervisory authority over an area can bring a retaliatory discharge claim if the employer continues to engage in the activity despite the employee’s protests.

Click on the link to read more about the law of negligent infliction of emotional distress in Tennessee.

Can A Police Officer Sue a 9-1-1 Caller For Failure to Warn of Danger of Assault?

A Texas police officer has sued a 9-1-1 caller for failing to warn the 9-1-1 official (and thus the police officer) that the police responding to the call would be walking into a dangerous situation.  The responding officer was attacked by a man at the home who had allegedly been using bath salts for several days.

That dog would not hunt in Tennessee. Tennessee (and most states) have what was historically known as the "policemen and firemen's" rule which, by the way, applies to female police officers and firefighters as well.

Here is a general statement of the rule from Tennessee's leading case on point, Carson v. Headrick , 900 S.W.2d 685 (Tenn. 1995):

It is beyond peradventure that the maintenance of organized society requires the presence and protection of firefighters and police officers. The fact is that situations requiring their presence are as inevitable as anything in life can be. It is apparent that these officers are employed for the benefit of society in general, and for people involved in circumstances requiring their presence in particular. The court in Calvert v. Garvey Elevators, Inc., [694 P.2d 433 (Kan. 1985)]] noted that '[f]irefighters enter on the premises to discharge their duties. Fire fighters are present upon the premises, not because of any private duty owed the occupant, but because of the duty owed to the public as a whole.' Calvert, supra, [694 P.2d 433]." 


[W]e conclude as a matter of public policy that a citizen owes no duty of reasonable care to police officers responding to that citizen's call for assistance and join the majority of other jurisdictions who have reaffirmed the policemen and firemen's rule on public policy grounds.

Id. at 689.

This does not mean that the public owes no duty to police officers and firefighters.  The same court opinion cited above makes it clear that Tennessee law provides that a citizen has a duty to refrain from intentionally, maliciously, or recklessly causing injury to police officers responding to the citizen's call for assistance.   In addition, the law does not prohibit a police officer or firefighter from bringing claims in other situations, such as claims arising in car wrecks caused by the negligence of others while the public servant is on duty.

By the way, this rule also applies to "animal control officers" who, while on duty,  are bitten by dogs. Jamison v. Ulrich, 206 S.W.3d 410 (Tenn. Ct. App. 2006).

Thanks to Overlawyered for bringing this lawsuit to my attention.


Tennessee Law of Negligent Infliction of Emotional Distress

Negligent infliction of emotional distress is a relatively new tort in Tennessee.  True, the tort existed in the early days of Tennessee tort law (not by that name, but the root concept was out there) but the circumstances giving rise to liability were extremely narrow.

All of that changed a little less than twenty years ago and we know have a nice body of law on negligent infliction of emotional distress claims.  I wrote an article on subject in an article  for the May, 2013 edition of the Tennessee Bar Journal, a publication of the Tennessee Bar Association. Click on the link o get a good grasp on the current Tennessee law of negligent infliction of emotional distress


Illinois Supreme Court Recognizes Claim For Invasion of Privacy and Holds Employer Responsible For Acts of Non-Employee Private Investigator

The Illinois Supreme Court has issued an opinion in Lawlor v. North American Corporation of Illinois, Case No. 112530 (Oct. 18, 2012), holding that (a)  the tort of intrusion upon seclusion is recognized in Illinois and (b) held that an employer liable for the torts of a non-employee private investigator because the investigator was acting as the employer's agent.  

Defendant North American hired a private investigator to determine whether Lawlor, a former employee of North American, had violated a covenant not to compete contained in her employment contract with the company.  The private investigator assessed the Lawlor's cell and home telephone records without her permission, causing her emotional distress.

The Court first recognized that existence of a tort that had never been expressly recognized by the High Court in Illinois.  The Court adopted Section 652B of the Restatement (Second) of Torts, which  provides as follows: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of  another or his private  affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”

The Court also held that under the facts of this case the employer could be held liable for the acts of the private investigator.   After discussing the general rules that permit employers to be held liable for the acts of independent contractors, the Court said as follows:

we cannot say when all of the evidence is considered, together with all reasonable inferences from the evidence in the light most favorable to Lawlor, that there was a total failure or lack of evidence to support the jury’s determination that Probe was
acting within its scope of authority as North American’s agent when Probe requested that Discover, as a subagent, obtain Lawlor’s phone records. We recognize that there was no direct evidence that North American knew how the phone records were acquired by investigators. The jury could reasonably infer, however, that North American was aware that Lawlor’s phone records were not publicly available, and that by requesting such records from Probe and providing DiLuigi, Probe’s president, with Lawlor’s personal information, North American was setting into motion a process by which investigators would pose as Lawlor to obtain the material.

The discussion about the liability of independent contractors reminds us that there are lots of ways to hold one who hires an independent contractor liable for the actions of the independent contractor.  For those of you who practice in Tennessee, the decision that gives the best overview of the law in this area is Waggoner Motors, Inc. v. Waverly Church of Christ, 159 S.W.3d 42 (Tenn. Ct. App. 2005).


Fungal Meningitis Outbreak: Do Those Who Received Contaminated Steroids But Who Do Not Get Fungal Meningitis Have A Claim for Damages Under Tennessee Law?

The fungal meningitis outbreak will result in four different classes of those with claims for damages against those who are responsible for the harm:  (1)those who die; (2) those who contract the disease and are treated with no long-range effects; (3) those who contract the disease, are treated, but are left with long-range effects; and, (4) those who learn they were exposed to the contaminated product but never contracted the disease.  (Note:  I understand this is a simple breakdown and that in fact there will be several sub-groups within one or more of these groups.)

Do the people in the last grouping have a claim for damages under Tennessee law?  That is, if a person can prove that he or she was exposed to the contaminated product, knew of the exposure, experienced understandable emotional distress after he or she learned of the exposure, is there a claim for damages under Tennessee law?

I believe the answer to that question is "yes."  The case I turn to for support of this opinion is Carroll v. Sisters of St. Francis Health Services, Inc., 868 S.W.2d 585 (Tenn. 1993).  The issue in Carroll was whether a plaintiff may recover damages for negligent infliction of emotional distress, based on the fear of contracting the Acquired Immunodeficiency Syndrome (AIDS), without presenting evidence that he or she was actually exposed to the human immunodeficiency virus (HIV or the AIDS virus)  The Court answered this question "no" and dismissed the case.   

However, in reaching this result, the Court said as follows:

we hereby formally adopt the "actual exposure" approach [to imposing liability]. In order to recover emotional damages based on the fear of contracting AIDS, the plaintiff must prove, at a minimum, that he or she was actually exposed to HIV. And even assuming that the plaintiff was actually exposed to HIV, liability will attach only to the extent that the resulting emotional distress was within the range of that experienced by an ordinary, reasonable person under the circumstances. Moreover, any damages recoverable for emotional distress will be "confined to the time between discovery of the [exposure] and the negative medical diagnosis or other information that puts to rest the fear of injury."  [Citations omitted.]

I believe Carroll is still good law.  Thus,l I believe those people who can demonstrate they received contaminated epidural steroid injections (and perhaps other types of steroid injections as well, depending on how the facts develop) and who suffer emotional distress as a result will be able to recover damages for emotional distress from the time between the discovery of the exposure until the time he or she receives a negative medical diagnosis or other information that puts to rest the fear of contracting fungal meningitis.  There will be a big fight over whether expert proof of emotional distress will be required.

We still don't know exactly how long people are at risk for contracting fungal meningitis after they are exposed to it.  The Centers for Disease Control says the exposure period is four weeks or longer.  In fact, the CDC recommends that anyone with symptoms linked to fungal meningitis in the "several months" following exposure should seek prompt medical attention even if they have been previously evaluated.  Here are the symptoms to be concerned about:

  • New or worsening headache
  • Fever
  • Sensitivity to light
  • Stiff neck
  • New weakness or numbness in any part of your body
  • Slurred speech
  • Increased pain, redness or swelling at your injection site

As I have said in other posts, most recently in this post called "Fungal Meningitis Outbreak: Lots Of Questions Remain," there is still a lot we do not know about all of the legal consequences of the fungal meningitis outbreak.  However, I believe Tennessee law will permit those exposed to contaminated steroids but avoided contracting fungal meningitis to be able to seek damages for emotional distress.  Of course, such people will still have to prove the liability of the product manufacturer or others involved.

 Other posts on the fungal meningitis outbreak:

Fungal Meningitis, Tort Reform, and Damages in Tennessee Personal Injury and Wrongful Death Cases

Who Has Legal Liability Arising From the Fungal Meningitis Outbreak?


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Burger With Everything - Hold the Loogie

It takes a particular type of jerk to project a loogie onto a hamburger that is being served to another person.  (I guess you would never do that to a hamburger you intended to eat yourself.)    And there is a relatively small subset of jerks who would do this to a police officer who ordered the burger for a late-night meal.

Now, what are the odds that the police officer would sense that something was amiss before eating that burger?   Deputy  Bylsma from Clark County, Washington did, and when he pulled the top of the bun off his burger he observed  a “slimy, clear and white phlegm glob” on the meat patty.

Now, the good deputy had one course of action that comes immediately to mind.  He could go into Burger King, identify which of the only two people on the job committed this act, and then proceed to resolve the situation with a good ol' fashioned ass whipping.  But Bylsma was smarter than that.

He called for back-up  (what is the 10-code for a loogie on a burger?) and got DNA tests both on the glob and the two employees at the restaurant who were on duty that night.   

Later DNA testing revealed that the glob on the meat patty was Burger King employee Gary Herb's saliva. Herb pled guilty to felony assault and was sentenced to 90 days in jail.  Bylsma filed suit against the restaurant, and claims that he suffers ongoing emotional trauma from the incident, including vomiting, nausea, food anxiety, and sleeplessness, and has sought treatment by a mental health professional.

The federal district court dismissed the case, saying that the Washington Products Liability Act (WPLA) did not allow for recovery of mental distress damages caused to a purchaser by a contaminated product in the absence of physical injury. 

The Ninth Circuit Court of Appeals looked at Washington law and concluded that it was unsure whether the Supreme Court of Washington would recognize a cause of action for Bylsma. Thus, it certified this question to Washington's highest court: "whether the WPLA permits relief for emotional distress caused to a direct purchaser by a contaminated product in the absence of physical injury."  The Ninth Circuit panel properly concluded that "the answer to the unsettled question of law presented by Bylsma's appeal will have far-reaching effects on those involved in the manufacture and sale of products in Washington. We are reluctant to create uncertainty in this area of the law by answering this question ourselves in the first instance."

Of course, the urban legend is that this conduct happens in our restaurants.  We know one incident where this happened to another police officer  - a Michigan teenager supplied his own version of special sauce to the turkey wrap of a state trooper.   One experienced server tells us in this video that such conduct doesn't occur in "nice" restaurants -  I did not find particularly his words particularly comforting.

So, we will see how the Washington Supreme Court handles this issue.  I must confess I know nothing about the WPLA and therefore cannot predict how the Court will rule on this issue.  

One last thought for the loogie-man,  just in case he decides to Google his name:  Mr. Herb, I hope you enjoyed your little joke.  Big laugh.  Ha ha.  I am sure that  you had plenty of time to think about what you did while you were sitting in jail. Let me ask you this, Mr. Herb.  As you were sitting in jail, did you think about your fellow prisoners who worked in the kitchen?  Did you ever wonder whether any of those fine citizens might have returned the favor to you?  Or did you just think the scrambled eggs were a little under-cooked that Saturday morning?

Hat tip to Torts Prof .


Kentucky Supreme Court Holds That Personal Injury Plaintiff Lost Privilege By Claiming Mental Injury

The Kentucky Supreme Court has ruled that a plaintiff who asserted a claim of mental injury waived her right to assert that the psychotherapist-patient privilege protected her prior mental health records.

In Dudley v. Jefferson Circuit Court,  2010-SC-000458-M (Ken. S.C. 6/10/2011) plaintiff brought a medical malpractice claim alleging, inter alia, mental and emotional pain and suffering.  Defendants sought her prior mental health records, and plaintiff sought a protective order, claiming that they were protected by the statutory privilege protecting psychotherapy records.

The court held that the records were discoverable, saying " Appellant's claim for mental pain caused by the alleged negligence, put into question her mental state at the time the medical treatment occurred . It would be fundamentally unfair to permit Appellant to allege and prove mental anguish caused by the negligence while denying the [defendants] from reviewing her mental health records for the possibility of pre-existing mental conditions."

One would think that the a protective order should be issued to prevent defendants from sharing the plaintiff's records with those who have no part in the litigation.  However, I think the court did the right thing by ordering the production of the records in this case.

Practice tip:  before asserting a claim of mental or emotional injury, ask your client whether they have a mental health history and help them understand that asserting a claim will likely open that history up for evaluation by the defendant.  I firmly believe that rarely should a plaintiff be troubled by that because  I think there are two types of people:  people who have been to counseling and people who are going to go to counseling.  That being said, some folks have what they believe to be deep, dark secrets that they do not want to come out no matter what the cost.  If your client is one of those people, a claim of emotional injury may have to be dropped.

Sex Abuse Cases Against Therapists

If you have a potential claim for professional misconduct against a therapist for sexually abusing or inappropriately touching a patient, don't forget that Tennessee has a special act for such torts. 

The act is known as the "Therapist Sexual Misconduct Victims Compensation Act."  It is codified at T.C.A. Section 29-26-201 et seq.  

Under the Act a therapist is "any person who performs therapy regardless of whether the person is licensed by the state."

The Act also has a longer statute of limitations that traditional tort cases in Tennessee.    The statute of limitations is set forth in T.C.A. Section 29-26-208.   Generally speaking, the statute of limitations in such claims is two years and is subject to a "discovery rule" but discovery of the injury does not occur until after the therapy ends.



New Tennessee Legislation of Interest to Tort Lawyers - Post 9

Post 9 in our ongoing series of legislation of interest to tort lawyers addresses a new act that clarifies the responsibility of cemetary operators when they learn that a body has been interred in the wrong burial plot at the cemetery.  If the cemetary operator complies with the statute no damages can be awarded against the cemetery unless the cemetery acted intentionally or with malice.

Click on the link to read Public Acts, 2009 Public Chapter 365.

SCOTUS Reverses Tennessee FELA Case

The U.S. Supreme Court reversed a Tennessee Court of Appeals case on the proper instruction to the jury in an FELA case when the plaintiff is seeking damages for fear of developing lung cancer.  The worker alleged that his work exposed him to asbestos, which caused asbestosis. He sought pain and suffering damages for fear of developing lung cancer.

The railroad asked that the jury be instructed that the fear must be "serious and genuine" to be compensable.  The Tennessee Court of Appeals upheld the trial judge's refusal to give such an instruction.  The High Court reversed, saying "the volume of pending asbestos claims and also because the nature of those claims enhances the danger that a jury, without proper instructions, could award emotional distress damages based on slight evidence of a plaintiff’s fear of contracting cancer."  (Interesting rationale, isn't it?  There are so many people who have been hurt and killed by asbestos that we need to set the bar high on the issue of damages.  The worse the product, the higher the standard, I guess.)

Doesn't the gatekeeper function of the court in evaluating expert testimony already address this issue?  Not according to the Supreme Court;

It is no answer that, as the Tennessee Court of Appeals stated, courts can apply the Ayers standard when ruling on sufficiency-of-the-evidence challenges. To be sure, [Norfolk & Western R. Co. v.] Ayers recognized that a “review of the evidence on damages for sufficiency” is another of the “verdict control devices” available to courts when plaintiffs seek fear-of cancer damages. Id., at 159, n. 19. But a determination that there is sufficient evidence to send a claim to a jury is not the same as a determination that a plaintiff has met the burden of proof and should succeed on a claim outright. Put another way, a properly instructed jury could find that a plaintiff’s fear is not “genuine and serious” even when there is legally sufficient evidence for the jury to rule for the plaintiff on the issue. That is why Ayers recognized that sufficiency reviews and jury instructions are important and separate protections against imposing unbounded liability on asbestos defendants in fear-of cancer claims.

Justice Stevens' dissent points out that  " it is hard to believe the jury would have awarded any damages for Hensley’s fear of cancer if it did not believe that fear to be genuine and serious."

The case is CSX Transportation, Inc. v. Hensley, 556 U.S. ___ ( June 1, 2009).  Read it here.  The dollar amount of the jury verdict that was reversed?  $5,000,000, plus several years of post-judgment interest.


Cert Petition Denied in Tennessee Products Case

The United States Supreme Court denied cert in  Flax v. DaimlerChrysler Corporation, the products liability, punitive damages, and negligent infliction of the emotional distress case decided by the Tennessee Supreme Court last year.  Here is my post from last July on the decision by the Tennessee court.


Fear of HIV Lawsuit - Defendant Roberto Alomar

CNN reports that Roberto Alomar has been sued in New York by his ex-girlfriend,  who alleges that he exposed her to the HIV virus by engaging in unprotected sex with her while he was suffering from HIV/AIDS.  She has tested negative for the disease.   Here is a copy of the complaint.

Alomar's attorney says the lawsuit is frivolous (surprise) and says his client is healthy and wants to keep his health status private.   Hmmm.

Would the ex-girlfriend have a claim in Tennessee?   Perhaps.  Tennessee does recognize a claim for negligent transmission of a sexual disease, but recall she did not get a sexual disease.  Her claim is for emotional distress arising from  fear of contracting a disease that she did not get.

The closest case on point in Tennessee that I can recall is Bain v. Wells, 936 S.W.2d 618 (Tenn. 1997), where a hospital was sued for allegedly exposing a patient to a risk of HIV infection.  The court denied recovery because it found that there was no proof of actual exposure to the virus but said that if there was exposure  liability would attach "only to the extent that the resulting emotional distress was within the range of that experienced by a an ordinary reasonable person under the circumstances."  The Court also said that "[d]amages recoverable ... will be confined to the time between discovery of the exposure and the negative medical diagnosis or other information that puts to rest the fear of contracting AIDS."

The Complaint alleges 45 months of unprotected sexual relations ending in February, 2006.  Alomar allegedly falsely told the plaintiff  that despite symptoms consistent with HIV/AIDS during a portion of this period that he had been tested and was negative for the disease.  He received a positive diagnosis on February 6, 2006 and while it is unclear exactly when plaintiff was tested (and received a negative test result) it appears it was within 9 days.  (See paragraphs 42-44 of the complaint.)

If my assumption of the time of her negative test is correct, and if the negative test is conclusive evidence that she did not have the disease, Tennessee law would probably limit the damages for emotional distress from February 6 until the date she got the test results.  If from a scientific standpoint one negative test is not conclusive, it is possible that the window for damages would remain open until conclusive results were obtained.

The Complaint also alleges a cause of action for outrageous conduct.  Assuming the facts stated in the complaint are true, it is my opinion that a cause of action for outrageous conduct would be stated underTennessee law.  The damages would still probably be limited as set forth in Bain  but punitive damages could be recovered if outrageous conduct was proven.

Fascinating case. 

NIED Claims

The January 2009 edition of the Tennessee Bar Journal includes my quarterly column on tort law.  This  column is titled "NIED Claims after Flax and Eskin."

For some reason, the online version of the article has some missing words and other problems, but it includes the important stuff.

TSC Releases NIED Case

The Tennessee Supreme Court has released the opinion in Eskin v. Bartee and  expanded the scope of recovery for negligent infliction of emotional distress.

The bottom line:  "we have determined that it is appropriate and fair to permit recovery of damages for the negligent infliction of emotional distress by plaintiffs who have a close personal relationship with an injured party and who arrive at the scene of the accident while the scene is in essentially the same condition it was in immediately after the accident."

The key change is found in the words "arrive at the scene of the accident."  Before this decision, the plaintiff was required to have seen or heard the injury causing event. 

Here are an elements of the cause of action:

"When a plaintiff did not witness the injury-producing event, the cause of action for negligent infliction of emotional distress requires proof of the following elements: (1) the actual or apparent death or serious physical injury of another caused by the defendant’s negligence, (2) the existence of a close and intimate personal relationship between the plaintiff and the deceased or injured person, (3) the plaintiff’s observation of the actual or apparent death or serious physical injury at the scene of the accident before the scene has been materially altered, and (4) the resulting serious or severe emotional injury to the plaintiff caused by the observation of the death or injury."  [Footnote omitted.]

The opinion was authored by Justice Koch.  As one would expect, it includes an excellent recitation of the development of the tort of negligent infliction of emotional distress in Tennessee.

Citation:  Eskin v. Bartee,  No. W2006-01336-SC-R11-CV  (Tenn.  Aug. 2008).  Read it here.

An Analysis of the Murphy Opinion

Sylvius von Saucken, a partner in the Garretson firm, has written this analysis of the opinion in Murphy v. United States, released by D.C. Court of Appeals on July 3, 2007.    The case addresses the taxability of damage awards in cases alleging emotional distress.

Here, in bold,  is his analysis of the decision:

On July 3, 2007 the highly anticipated Murphy decision was handed down following its rehearing on April 23, 2007. The original three judge panel (for the D.C. Court of Appeals) reheard the case following the Government’s Petition for a Rehearing En Banc. This case has a rather unusual procedural history because it is atypical for a court to vacate its own opinion, which in turn renders an existing Petition for a Rehearing en banc moot, and then rehear the case. The court’s impetus for doing so remained a mystery up until Tuesday. In the recent decision the court explained its actions. In its Petition for a rehearing the Government raised a new constitutional issue, as the Government argued “even if Murphy’s award is not income, there is no constitutional impediment to taxing it because a tax on the award is not a direct tax and is imposed uniformly.”  This issue apparently triggered the court to vacate its earlier opinion and effectively gave the Government another try.

The initial opinion, issued last August was decided in favor of Murphy, but this time the same court’s three-judge panel turned about-face and held:

1. Murphy’s compensatory award was not received on account of personal physical injuries, it was for non-physical emotional distress, with the physical manifestations (bruxism, etc.) being used to prove those emotional injuries, therefore is not exempt from taxation pursuant to §104(a)(2) of the IRC;

2. The award is a part of her “gross income,” as defined by § 61 of the IRC; regardless of whether the award was an accession to wealth.

3. The tax upon the award is an excise and not a direct tax subject to the apportionment requirement of Article I, Section 9 of the Constitution.”

Continue Reading...

Taxability of Damage Awards

The D.C. Circuit Court of Appeals has released an en banc  opinion in Murphy v. Internal  Revenue Service,  No. 05-5139 (July 3, 2007).

The summary of the opinion as prepared by the Court:  "Marrita Murphy brought this suit to recover income taxes she paid on the compensatory damages for emotional distress and loss of reputation  she was awarded inan administrative action she brought against her former employer. Murphy contends that under § 104(a)(2) of the Internal Revenue Code (IRC), 26 U.S.C. § 104(a)(2), her award should have been excluded from her gross income because it was compensation received “on account of personal physical injuries or physical sickness.” She also maintains that, in any event, her award is not part of her gross income as defined by § 61 of the IRC, 26 U.S.C. § 61. Finally, she argues that taxing her award subjects her to an unapportioned direct tax in violation of Article I, Section 9 of the Constitution of the United States.

We reject Murphy’s argument in all aspects. We hold, first, that Murphy’s compensation was not “received ... on account of personal physical injuries” excludable from gross income under §104(a)(2). Second, we conclude gross income as defined by § 61 includes compensatory damages  for non-physical injuries. Third, we hold that a tax upon such damages is within the
Congress’s power to tax."

Read the entire opinion here.

Kentucky Case on Pre-Impact Fear

The Kentucky Supreme Court has ruled that damages for pre-impact fear cannot be recovered in a wrongful death case.

The Court said that "The proof of the fear in this case the testimony of a person at the scene of the accident that the decedent's facial expression showed she saw the accident coming and was terrified-simply underscores the speculative nature of such harm. Mrs. Congleton's mental distress, if any, simply was caused not by the impact she suffered, but by fear of the impact. Under the impact rule as currently applied in Kentucky, her pre-impact fear and shock cannot serve as the basis of a claim, and any damages for such a claim are not recoverable."

The case is noteworthy because it will eliminate one potential element of damages in the Comair litigation underway in Lexington.  It has little relevance for Tennessee lawyers in Tennessee cases because I think our Court would reach a different result on the law.  (The subject  case was a little short on a factual basis for the damages.)

The Kentucky decision is Steel Technologies v. Congleton,  2005-SC-000551-DG  (June 21, 2007).  Read it here.

Thanks to Shannon Ragsdale at Jury Verdict Publications for telling me about the opinion.

Bystander Recovery - Indiana

The Indiana Supreme Court has ruled that the fiancee of a man who came upon a crash site involving a collision between her fiancee and defendant could not sue for emotional distress.

Indiana law says that  "[w]hen . . . a plaintiff sustains a direct impact by the negligence of another and, by virtue of that direct involvement sustains an emotional trauma which is serious in nature and of a kind and extent normally expected to occur in a reasonable person, . . . such a plaintiff is entitled to maintain an action to recover for that emotional trauma without regard to whether the emotional trauma arises out of or accompanies any physical injury to the plaintiff." 

It also provides that "a bystander may . . . establish “direct involvement” by proving that the plaintiff actually witnessed or came on the scene soon after the death or severe injury of a loved one with a relationship to the plaintiff analogous to a spouse, parent, child, grandparent, grandchild, or sibling caused by the defendant’s negligent or other-wise tortuous [sic] conduct.."

However, the Court rejected plaintiff's argument that one who was engaged to be married was "analogous to a spouse."  The Court weighed these three factors in reaching its decision:  "(1) promoting the strong state interest in the marriage relationship; (2) preventing an unreasonable burden on the courts; and (3) limiting the number of persons to whom a negligent defendant owes a duty of care."

The Court also examined the "soon after the death of a loved one”  requirement and held that it provides that "the requirement of bystander recovery is both temporal—at or immediately following the incident—and also circumstantial. The scene viewed by the claimant must be essentially as it was at the time of the incident, the victim must be in essentially the same condition as immediately following the incident, and the claimant must not have been informed of the incident before coming upon the scene."

The decision is Smith v. Toney, No. 94S00-0602-CQ-48 (Ind. S. March 13, 2007).  Read it here.

New Hampshire Court Denies Claim for Boyfriend

The New Hampshire Supreme Court has held that a boyfriend riding a motorcycle could not bring an emotional distress claim against another driver for injuries caused as a result witnessing the death of his passenger (who was also his girlfriend).

The issue was "did the trial court err in determining that the plaintiff and MacDonald were not “closely related” so as to satisfy the requirements of Graves v. Estabrook, 149 N.H. 202 (2003), for bystander recovery in a negligent infliction of emotional distress claim?"

The Supreme Court affirmed dismissal of the case, holding that the plaintiff and his late girlfriend were not "closely related."  They explained their decision as follows:

"In Graves, we held that the close relationship required by the Dillon test need not be one defined only by blood or marriage. Graves, 149 N.H. at 206. Instead, we determined that a plaintiff must show a relationship that is of significant duration and which is deep, lasting and genuinely intimate, i.e., a relationship that is stable, enduring, substantial, and mutually supportive, cemented by strong emotional bonds and providing a deep and pervasive emotional security. Id. at 209. When determining whether a plaintiff and a victim are “closely related,” the trial court is to take into account: (1) the duration of the relationship; (2) the degree of mutual dependence; (3) the extent of common contributions to a life together; (4) the extent and quality of shared experience; (5) whether the plaintiff and the injured person were members of the same household; (6) their emotional reliance upon each other; (7) the particulars of their day-to-day relationship; and (8) the manner in which they related to each other in attending to life’s mundane requirements. Id. at 209-10.
In Graves, we determined that the plaintiff had met the standard for alleging the existence of a sufficiently close relationship, in part, because she alleged that she and the decedent were engaged to be married and had lived together for more than seven years. Id. at 210. Construing all reasonable inferences in favor of the plaintiff, we determined that it was reasonable to infer that the plaintiff and her fiancée “enjoyed mutual dependence, common contributions to a life together, emotional reliance on each other and attended to life’s mundane requirements together.” Id.

[Conversely]. [t]he plaintiff and MacDonald were involved in a relationship lasting approximately six months. In that brief time, they did not live together and had not married or become engaged, nor was there any prospect of them doing so for some time. Moreover, at the time of MacDonald’s death, both she and the plaintiff were unemployed and living with their respective parents. Thus, they could not financially support each other, and it was unlikely that they could become members of the same household at any point in the foreseeable future, or that they could make any more than minimal contributions to a life together. Also, although the plaintiff contends that he and MacDonald met or spoke on the telephone frequently, and spent time dining out, camping or visiting relatives together, such interactions reveal little, if anything, about the particulars of their day-to-day relationship or the manner in which they related to each other in attending to life’s mundane requirements. To extend Graves to include relationships such as the one between the plaintiff and MacDonald
would invite a significant expansion of bystander liability in New Hampshire, a result we have consistently refused to permit. Graves, 149 N.H. at 205-06."

The case is St. Onge v. MacDonald,  No. 2006-317 (January 26, 2007).  Read the opinion  here.

Note: don't let the name of the decedent and the name of the defendant confuse you.  Oddly, each of them shared the same last name.

New Emotional Distress Decision

The Tennessee Supreme Court has ruled that the three-year statute of limitation applies for emotional distess claims arising out of injury to property "inspired by fraud, malice or like motives."

The Trial Court and Court of Appeals affirmed dismissal of the claim for emotional injuries because the lawsuit was not  filed within one year.  The TSC reversed on this issue, holding that "[t]he gravamen of the Whaleys’ complaint is that the defendants’ actions injured their property, and the damages they sought for emotional distress were “damages aris[ing] wholly as a result of the injury  to plaintiffs’ property and not as a result of anything personally done to them.” In other words, the  Whaleys’ “claim” for damages for emotional distress was merely an element of their overall claim  for damages for the injury to their property and not a stand-alone cause of action. Consequently, the  three-year property tort statute of limitations applies, and the intermediate court erred in holding that the one-year personal injury statute of limitations barred the Whaleys’ claim for damages for emotional distress."  

Turning to another issue, the Court also held that "the Defendants’ violation of the Shelby County subdivision regulation does not warrant the application of the doctrine of negligence  per se."  The Court agreed with the Court of Appeals on this issue, and adopted this language from the opinion of the lower appellate court:  "these subdivision regulations were enacted largely for reasons related  to quality of life, among them, assuring adequate public facilities for  residents, minimizing pollution, providing for orderly layout and use  of land, protecting the value of land, preventing overcrowding, and  assuring effective traffic circulation. The harm alleged by the  Whaleys is not a harm the regulations were designed to prevent, but  rather, it is an accidental consequence of a [regulation] enacted to  prevent other harms to the community and its residents that could be  caused by the unregulated subdivision of land."

The case is Whaley v. Perkins, No. W2004-02058-SC-R11-CV  (Tenn.  July 14, 2006).  Read the opinion here.

Emotional Distress Claims Allowed for Trespass to Real Property

The United States District Court for the District of Columbia has allowed plaintiffs in a trespass action to seek damages for emotional distress.

Defendant and its predecessors alleged contaminated ground water with gasoline. Plaintiffs' claims included claims for emotional distress.

The Court ruled that "[u]nder District of Columbia law, it is firmly established that a plaintiff may recover damages for mental suffering unaccompanied by physical injury where the plaintiff sues for an intentional tort. Adams v. George W. Cochran & Co., Inc., 597 A.2d 28, 31 (D.C. 1991); Parker v. Stein, 557 A.2d 1319, 1322 (D.C. 1989); Barnes v. Dist. of Columbia, 452 A.2d 1198, 1199 D.C. 1982). It is also clear that trespass is an intentional tort. E.g., Cleveland Park Club v. Perry, 165 A.2d 48, 488 (D.C. 1960). Although the parties have not cited - and the Court has been unable to find - a District of Columbia decision addressing the availability of emotional distress damages in a trespass case, the decision in Parker is instructive. In that case, the Court of Appeals for the District of Columbia, applying the established rule regarding intentional torts, concluded that emotional distress damages are available in an action for conversion of personal property. Parker, 557 A.2d at 1322-23. Here, the Court can find no meaningful distinction between personal and real property to suggest that courts in the District of Columbia would permit recovery of emotional distress damages for intentional torts involving personal, but not real, property damage. Accordingly, the Court concludes that emotional distress damages are recoverable for trespass actions under District of Columbia law."

The case is Nnadili v. Chevron U.S.A., Inc., Civil Action No. 02-1620 (ESH); read the June 1, 2006 opinion here.

Bone Harvesting

Here is an article about some conduct alleged to have occurred in New Jersey which, if true, is going to give rise to some strong emotional distress claims.

The article tells us that certain people who received bone transplants have alleged that the bones "were pilfered from cadavers and sold without the consent of the deceaseds' families or the protective screening required by law, leaving recipients exposed to risk of infection with HIV, hepatitis and syphilis."

Suits have also been filed by families of the cadavers, alleging emotional distress for taking the bones without consent.

Read another article on the litigation here.

This is a very interesting case and one we will try to follow on this blog.