Hungerford v. Jones CV-96-559-M 07/25/97 P UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Joel Hungerford

v. Civil No. 96-559-M

Susan L. Jones

O R D E R

Plaintiff, Joel Hungerford, brings a diversity action

alleging state tort claims against Susan Jones, a therapist who

treated Hungerford's adult daughter, Laura Bachman, for a mental

health condition. Hungerford contends that Jones's improper

diagnosis and treatment of Bachman caused her to recall false

memories of sexual abuse and to falsely accuse him of having

sexually abused her. Jones has moved to dismiss all of

Hungerford's claims. For the reasons that follow, the motion to

dismiss is granted as to Hungerford's claims for defamation,

intentional infliction of emotional distress, and loss of

consortium, but denied as to the negligence claims. The court

proposes to certify guestions related to the negligence claims to

the New Hampshire Supreme Court.

STANDARD OF REVIEW _____ A complaint must contain "factual allegations, either direct

or inferential, respecting each material element necessary to

sustain recovery under some actionable legal theory." Goolev v.

Mobil Oil Corp.,

(1st Cir. 1988). A motion to

dismiss under Federal Rule of Civil Procedure 12(b) (6) is one of

limited inguiry, focusing not on "whether a plaintiff will

ultimately prevail but whether the claimant is entitled to offer

evidence to support the claims." Scheuer v. Rhodes,

(1974). In considering a motion to dismiss, the court

accepts "as true all well-pleaded factual averments and

indulg[es] all reasonable inferences in the plaintiff's favor."

Aulson v. Blanchard,

(1st Cir. 1996). In accord

with the applicable standard, the background facts are taken from

plaintiff's complaint and accepted as if true.

BACKGROUND

In August or September 1992, plaintiff's adult daughter,

Laura Bachman, began treatment with defendant Susan Jones.

Jones, a social worker, represented herself as a mental health

therapist gualified and experienced in the treatment of problems

associated with incest and sexual abuse. Before Bachman began

therapy, she had no knowledge or memory of sexual abuse by her

father. During therapy, Jones led Bachman to believe that

2 nightmares and anxiety attacks that she was experiencing were

"flashbacks" and "recovered memories" of episodes of sexual

assaults and abuse by her father. Jones also determined that

Bachman's difficulties with intimate relationships and other

psychological problems were the result of sexual abuse by her

father.

Jones's treatment with Bachman included a memory retrieval

technigue Jones called "visualization" or "imagery" in which she

lead Bachman into a self-induced trance to uncover allegedly lost

memories of sexual assault. Through this technigue, Jones caused

Bachman to "recall" five episodes of sexual assault by her

father, the first allegedly occurred when she was three years old

and the last only two nights before her wedding. During

Bachman's course of therapy, Hungerford authorized his own

therapist to communicate with Jones in an effort to help Bachman

realize that her "memories" were false. Jones, nevertheless,

remained convinced that Hungerford had sexually assaulted his

daughter.

In October 1992 at Jones's direction, Bachman cut off all

contact with her father, and, in the spring of 1993, Bachman

filed a complaint against her father with the Amherst, New

Hampshire, police department charging aggravated felonious sexual

assault. Jones contacted the Amherst police in support of

3 Bachman's complaint to verify Bachman's recollections of assault

by her father and to encourage prosecution of Hungerford. Jones

also met with the Hillsborough County Attorney to assist in the

prosecution of Hungerford.

Hungerford was indicted by a Hillsborough County grand jury

on two counts of aggravated felonious sexual assault and was held

at the Hillsborough County jail for a substantial period of time.

In a decree dated May 23, 1995, the Hillsborough County Superior

Court, Groff, J., ruled that Bachman's "memories" of assault by

her father were not scientifically reliable and would not be

admissible at trial. The New Hampshire Supreme Court affirmed

the Superior Court's ruling. State v. Hungerford, No. 95-529

(N.H., July 1, 1997).

Hungerford alleges that he was wrongfully accused of sexual

assault based on Jones's improper diagnosis and treatment of his

daughter. He further alleges that Jones's only training in

memory retrieval technigues was a lecture she attended at a

weekend symposium, that she in fact had limited experience in

treating patients with repressed memories of sexual assault, and

that she failed to consult with other mental health professionals

for assistance in the diagnosis and treatment of Bachman's

condition. Jones did not inform Bachman of her limited

experience and training in memory retrieval or explain the

4 concerns of the professional community regarding its reliability

and validity before beginning therapy. Hungerford also asserts

that Bachman's "memories" of sexual assault are false and were

caused by Jones's improper treatment.

DISCUSSION

Hungerford's complaint includes claims of professional

malpractice and negligence, negligent and intentional infliction

of emotional distress, loss of consortium, and defamation. Jones

moves to dismiss all counts on grounds that Hungerford's

complaint does not state claims cognizable under New Hampshire

law. Jones's primary challenge focuses on whether she owed

Hungerford any duty under the circumstances of this case. In

addition, Jones specifically challenges Hungerford's claims for

intentional infliction of emotional distress, defamation, and

loss of consortium.

A. Duty to a Third Party To Use Reasonable or Professional Care in the Diagnosis and Treatment of a Patient

Hungerford alleges that Jones had a duty to treat Bachman in

a manner consistent with the professional standards applicable to

mental health therapists and clinical social workers and that in

breach of her duty, she failed to properly or competently

5 diagnose or treat Bachman, and failed to provide proper care and

guidance to Bachman. As a result, Hungerford contends, Jones did

not diagnose or treat the real cause of Bachman's psychological

condition but instead caused her to believe, falsely, that she

was the victim of sexual assault and abuse by her father.

Hungerford further alleges that the resulting harm to him, damage

to his reputation and relationship with his daughter, was

foreseeable.

In her motion to dismiss, Jones argues that Hungerford's

negligence claims must be dismissed because Jones did not owe any

duty to Hungerford to use reasonable care in the diagnosis and

treatment of Bachman.1 As Hungerford acknowledges in his

objection, the New Hampshire Supreme Court has not yet decided

whether a therapist2 owes a duty to a third party based on her

Jones also contends that even if the New Hampshire Supreme Court would impose such a duty under the circumstances of this case, she would be absolutely immune because all of the harm alleged resulted from reporting the allegations of abuse to the police. As a factual matter, at least some of the harm alleged is the result of alienation between father and daughter due to the diagnosis and treatment of abuse. The court declines to rule on the immunity guestion in this context until the scope of any legal duty is described.

Plaintiff argues that New Hampshire has previously recognized a physician's duty to a nonpatient third party in Edwards v. Lamb,

(1899). In Edwards, however, the court found that when the physician treating plaintiff's husband's wound informed plaintiff that there was no danger of infection to her, he assumed the duty of using due care in providing medical advice to her. Edwards,

. The

6 diagnosis and treatment of a patient. Nevertheless, Hungerford

asks this court to rule that the New Hampshire Supreme Court

would find that such a duty exists under New Hampshire's common

law .

Certification of that legal guestion to the New Hampshire

Supreme Court was discussed at the pretrial conference held on

April 8, 1997. Whether to certify a state law issue to the

state's highest court is discretionary. Lehman Bros, v. Schein,

(1974); Nieves ex rel Nieves v. University of

Puerto Rico,

(1st Cir. 1993). Certification is

generally appropriate when the legal guestion is novel and the

state's law on the guestion is unsettled. Lehman Bros., 416 U.S.

at 3 91; accord Arizonans for Official English v. Arizona, 117 S.

C t . 1055, 1073 (1997); Acadia Ins. Co. v. McNeil, No. 96-2240,

(1st Cir., June 17, 1997).

Under established New Hampshire law, whether an enforceable

duty exists is a legal concept that focuses on the relationship

between the parties, policy issues attendant to their

relationship, and the foreseeability of harm. See, e.g., Marguav

v. Eno,

(1995); Walls v. Oxford Management Co.,

(1993); Island Shores Estates v. Concord,

situation in the present case is readily distinguishable as the defendant here did not advise, treat, or have any direct relationship with the plaintiff.

7

(1992) . While privity between parties no

longer controls negligence liability, the New Hampshire Supreme

Court has insisted upon "well-defined guidelines in order to

prevent the imposition of remote and unexpected liability on

defendants." Williams v. O'Brien,

(N.H. 1995).

Thus, the guestion raised by Hungerford's claim, (i.e. Whether a

therapist who diagnoses and treats a patient for conditions

associated with alleged past sexual abuse owes a legal duty to

the person accused to treat the patient in a professionally

competent manner?) raises important issues regarding the scope of

the state's common law of negligence, as well as related policy

issues.

Jurisdictions which have considered the matter have reached

divergent conclusions. Some have decided, primarily on policy

grounds, that the common law does not impose liability on mental

health care providers for negligent diagnosis and treatment of

conditions associated with alleged past sexual abuse. See, e.g.,

Zamstein v. Marvasti,

(Conn. 1997); Bird v . W .C .W .,

(Texas 1994); Strom v . C .C .,

(March

18, 1997, Minn. A p p .). Whether a defined relationship exists

between a therapist and parent accused of abuse has been the

determinative issue in other decisions. See, e.g., Tuman v.

Genesis Assoc.,

(E.D. Pa. 1995); Doe v. McKay,

(Ill.App.Ct. 19 97); Schwarz v. Regents of the

Univ. of Calif.,

(Cal.Ct.App. 1990)

(distinguishing Marlene F. v. Affiliated Psychiatric Medical

Clinic Inc.,

(1989)). Other courts have held

that a therapist may be liable for actions based on a negligent

professional diagnosis, such as directing the patient to sever

ties with her family, notifying family members or authorities of

abuse, or issuing a false report or recommendation. See, e.g.,

Sullivan v. Cheshier,

(N.D. 111. 1994); Caryl S .

v. Child & Adolescent Treatment Servs. Inc.,

(N.Y. App. Div. 1994); Montova v. Bebensee,

(Colo.Ct.App. 1988). Interpreting Vermont negligence law, the

federal district court held that a psychiatrist's duty to third

parties in diagnosing past sexual abuse depended upon the

foreseeability of harm to the third party. Wilkinson v. Balsam,

(D.Vt. 1995).

Given the wide range of results in other jurisdictions, and

the important state law and public policy issues implicated in

deciding whether a therapist owes a legal duty to a third party

when diagnosing and treating conditions arising from alleged past

sexual abuse, it seems apparent that the New Hampshire Supreme

Court and not this court should decide what New Hampshire's

common law is. For that reason, the court proposes to certify the following questions to the New Hampshire Supreme Court

pursuant to New Hampshire Supreme Court Rule 34:

1. Does a mental health care provider owe a legal duty to the father of an adult patient to diagnose and treat the patient with the requisite skill and competence of the profession when the diagnosis is that the father sexually abused or assaulted the patient?

2. Does a mental health care provider owe a duty to act with reasonable care to avoid foreseeable harm to the father of an adult patient resulting from treatment or other action taken in relation to mental health conditions arising from the diagnosis of past sexual abuse or assault by said father?

The parties are invited to comment upon those questions, or

suggest different questions to be certified. In addition, the

parties shall file a statement of stipulated facts to be included

in the certification order pursuant to New Hampshire Supreme

Court Rule 34.

The parties' responses to the proposed questions and the

statement of stipulated facts shall be filed within thirty days

of the date of this order. If the parties do not file a

statement of stipulated facts within the time allowed, the court

will transmit the factual statement in this order as the

statement of facts relevant to the certified question, as

required by Supreme Court Rule 34.

In light of the court's decision to certify legal questions

controlling disposition of Hungerford's negligence and

professional malpractice claims, Jones's motion to dismiss those

10 claims cannot be resolved until the questions are answered.

Accordingly, the motion to dismiss those claims is denied without

prejudice to refiling the motion following the New Hampshire

Supreme Court's decision on the certified questions.

B. Remaining Claims

Jones also challenges Hungerford's claims for defamation,

intentional infliction of emotional distress, and loss of

consortium. Each is addressed in turn.

1. Defamation

In his complaint, Hungerford alleges that Jones's letter to

the Amherst Police Department and her discussions with the

Hillsborough County Attorney's Office in which she reported that

he raped and sexually assaulted his daughter were false and

defamatory. Jones moves to dismiss the claim on grounds that she

is absolutely immune from defamation liability for statements

made to police and prosecutors. Hungerford responds that

"pertinence" and the absence of bad faith are prerequisites of

immunity, so that dismissal prior to factual development of those

issues would be premature. See McGranahan v. Dahar,

(1979) .

11 Hungerford misunderstands the nature of "bad faith" in the

context of the absolute privilege afforded by McGranahan. The

absolute privilege afforded to statements made in the course of

judicial proceedings is not conditioned on good faith.

. The only limitation on the protection of the privilege

provided by McGranahan reguires that the statements be "pertinent

to the subject matter of the proceeding."

. While the

pertinence reguirement "eliminates protection for statements made

needlessly and wholly in bad faith," the privilege does not

reguire good faith or even an absence of malice in making the

statements.

Jones's statements to police and prosecutors concerning her

understanding of Bachman's "memories" and allegations of sexual

assault by Hungerford were of course pertinent to the charges

brought against him and to the prosecution for sexual assault.

Hungerford alleges that the charges arose from Jones's negligent

diagnosis and treatment of Bachman, not that they were

intentionally concocted to smear him. No facts pled in the

complaint remotely suggest circumstances in which Jones's

statements were made "needlessly" or "wholly in bad faith." To

the extent Jones may have acted with malice toward Hungerford in

contacting the police or cooperating with prosecutors, her intent

would not deprive her of the privilege.

12 McGranahan also explains that a defamation cause of action

cannot redress harm caused by statements made to police and

prosecutors by persons accused of crimes but not convicted.

at 7 69. "Except in extreme cases, for which malicious

prosecution or abuse of process are adequate remedies, a person

wrongfully accused of a crime must bear that risk, lest those who

suspect wrongful activity be intimidated from speaking about it

to the proper authorities for fear of becoming embroiled

themselves in the hazards of interminable litigation."

Accordingly, Hungerford's defamation claim based on Jones's

reports to the police and prosecutors must be dismissed either

because Jones's statements are protected by absolute privilege or

because the harm alleged cannot be redressed through a defamation

claim under New Hampshire law.

2. Intentional Infliction of Emotional Distress

To state a claim of intentional infliction of emotional

distress, a party must allege that the defendant "by extreme and

outrageous conduct intentionally or recklessly cause[d] severe

emotional distress." Morancv v. Morancv,

(1991). Knowingly false accusations of sexual assault in certain

circumstances might well constitute extreme and outrageous

conduct actionable as intentional infliction of emotional

13 distress. However, negligent, even grossly negligent,

misdiagnosis and treatment of mental health conditions arising

from past sexual abuse, leading to false accusations and reports

of sexual assault, as alleged here, are insufficient to state a

cause of action for intentional infliction of emotional distress.

Accordingly, the claim is dismissed.

3. Loss of Consortium

Hungerford seeks compensation for loss of the society and

companionship of his daughter. In response to Jones's motion to

dismiss, Hungerford acknowledges that in Siciliano v. Capitol

City Shows, Inc.,

(1984), the New Hampshire

Supreme Court ruled that parents cannot recover for the loss of a

child's society. Hungerford contends, instead, that his loss of

consortium claim is in actuality a claim for interference with

parental custody and family relationship as recognized in Plante

v. Enael,

(1983).

The claim recognized in Plante focused on intentional

interference with parental custody of children who are improperly

or illegally separated from their parents, or from one parent, as

a result of a custody dispute incident to divorce, kidnaping, or

other "antisocial conduct." Siciliano,

. As

Bachman, Hungerford's daughter, was an emancipated adult when she

14 began treatment with Jones and was no longer a member of

Hungerford's household or in his "custody," an interference with

custody claim is not maintainable and is dismissed.

CONCLUSION

For the foregoing reasons, defendant's motion to dismiss

(document no. 4) plaintiff's professional malpractice and

negligence claims is denied without prejudice to refiling, as to

those issues, and is granted as to plaintiff's claims for

defamation, intentional infliction of emotional distress, and

loss of consortium. The parties' responses to the court's

proposed guestions for certification, and the stipulated factual

statement, shall be filed within thirty days of the date of this

order.

SO ORDERED.

Steven J. McAuliffe United States District Judge

July 25, 1997

cc: Paul A. Maggiotto, Esg. Robert W. Upton, II, Esg. Edward M. Kaplan, Esg.

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