DeMeo v. Goodall, Civ. No. 85-723-D

• Decision Date: 01 August 1986
• Docket Number: Civ. No. 85-723-D,85-724-D.
• Citation: 640 F. Supp. 1115
• Parties: Mildred C. DeMEO v. Edwin B. GOODALL, M.D., personally; Huggins Hospital. Robert R. DeMEO, M.D. v. Edwin B. GOODALL, M.D., personally; Huggins Hospital.
• Court: U.S. District Court — District of New Hampshire

640 F. Supp. 1115

Mildred C. DeMEO v. Edwin B. GOODALL, M.D., personally; Huggins Hospital.

Robert R. DeMEO, M.D. v. Edwin B. GOODALL, M.D., personally; Huggins Hospital.

Civ. Nos. 85-723-D, 85-724-D.

United States District Court, D. New Hampshire.

August 1, 1986.

Andrew P. McEvoy, Concord, N.H., for plaintiff.

Theodore Wadleigh, Manchester, N.H., for defendant Huggins.

Michael P. Lehman, Concord, N.H., for defendant Goodall.

ORDER

DEVINE, Chief Judge.

In these actions, plaintiffs Mildred C. DeMeo and Robert R. DeMeo, M.D., have brought suit against defendants Edwin B. Goodall, M.D., as a representative and agent of Huggins Hospital and against Huggins Hospital. Plaintiffs seek monetary damages for the alleged defamatory statements of defendant Goodall contained in an evaluation prepared for defendant Huggins Hospital. Plaintiffs are residents of Staten Island, New York, defendant Goodall is a resident of Wolfeboro, New Hampshire, and defendant Huggins is a hospital operating under New Hampshire law and conducting business in Wolfeboro, New Hampshire. Jurisdiction is founded on 28 U.S.C. § 1332, the citizenship of the parties being diverse and the amount in controversy exceeding ten thousand dollars exclusive of interest and costs.

Plaintiffs claim that the evaluation prepared and published by Dr. Goodall contained false and defamatory matter concerning Dr. DeMeo's ability as an ophthalmologist and stated that Mrs. DeMeo was an incompetent nurse anesthetist and an unsupportive spouse. Plaintiffs complain in Count I that defendant Goodall's evaluations contained false and defamatory matter, were prepared with malice and willful intent to injure, caused substantial injury to plaintiffs' social and professional reputations, and constituted defamation under state law. In Count II plaintiffs charge that defendants' actions constituted wrongful infliction of emotional distress under state law, and in Count III plaintiffs allege a loss of ability to enjoy life. Presently before the Court are both defendants' motions to dismiss Counts II and III, their motions to strike plaintiffs' request for exemplary or enhanced damages, and plaintiffs' objections thereto.

Count II

Consideration of a motion to dismiss for failure to state a claim under Rule 12(b)(6), Fed.R.Civ.P., requires application of the rule that "the material facts alleged in the complaint are to be construed in the light most favorable to the plaintiff and taken as admitted, with dismissal to be ordered if the plaintiff is not entitled to relief under any set of facts he could prove." Chasan v. Village District of Eastman, 572 F.Supp. 578, 579 (D.N.H.1983), aff'd without opinion, 745 F.2d 43 (1st Cir.1984) (citations omitted).

Upon review of plaintiffs' complaints and application of the above standard thereto, the Court finds and rules that New Hampshire law does not recognize a cause of action for wrongful infliction of emotional distress where the factual predicate sounds in defamation, and that defendants' motions to dismiss Count II must be granted.

Defendants in their motions to dismiss contend that an action for defamation will not support an independent cause of action for wrongful infliction of emotional distress and that the New Hampshire Supreme Court has never recognized a cause of action for either negligent or intentional infliction of emotional distress arising out of words alone. It should be noted that, contrary to defendants' assertion, New Hampshire law does provide a separate cause of action for both negligent, see Corso v. Merrill, 119 N.H. 647, 749, 406 A.2d 300 (1979), and intentional, see Chamberlin v. 101 Realty, Inc., 626 F.Supp. 865 (D.N. H.1985), infliction of emotional distress. However, in light of Chagnon v. Union Leader Corp., 103 N.H. 426, 174 A.2d 825 (1961), this Court holds that these actions may not be maintained concurrently with an action sounding in defamation.

In Chagnon, the New Hampshire Supreme Court discussed the available remedies in a defamation action where a single plaintiff had been damaged both professionally and personally. The court held that:

When the element of malice enters into the wrong `the rule of damages is different and more liberal ... In such cases there enter into the question of damages considerations which cannot be made the subject of exact pecuniary compensation, — such as ... mental distress and vexation, what in common language might be spoken of as offences to the feelings, insult, degradation, offences against honest pride, and all matters which cannot arise except in those wrongs which are attended with malice.'

Id. at 442, 174 A.2d 825, quoting Bixby v. Dunlap, 56 N.H. 456, 462, 463 (1876) (emphasis added).

It is evident from the above that the Supreme Court includes emotional distress as one of the damages for defamation. As such, this Court is drawn to the conclusion that while plaintiffs may recover damages for emotional distress in a defamation action, a cause of action for negligent or intentional infliction of emotional distress may not be maintained concurrently therewith.

Even assuming arguendo that both causes of action could be brought concurrently, Count II fails to state a claim upon which relief may be granted. The Court notes first that plaintiffs ambiguously claim damages for "wrongful" infliction of emotional distress. The Court properly construes Count II as a claim for either negligent or intentional infliction of emotional distress. In Corso v. Merrill, supra, 119 N.H. at 649, 406 A.2d 300, the New Hampshire Supreme Court discussed the existence of the tort of negligent infliction of emotional distress. The court held that recovery is permitted only when the plaintiff is able to prove that

(a) his injury was foreseeable;

(b) defendant was at fault;

(c) his injury directly resulted from the accident;

(d) the emotional injury was directly attributable to the emotional impact of plaintiff's observation or contemporaneous sensory perception of the accident and immediate viewing of the accident victim; and

(e) the emotional injury has physical symptoms.

In Corso, the court addresses the question of whether parents who perceive that their child has been seriously injured and immediately observe the child at the accident scene can recover for emotional distress. This Court finds that Corso has application only in the context of a third party's contemporaneous observation and perception of an accident resulting from a defendant's tortious activity. The facts as alleged in the instant action, that plaintiffs suffered emotional distress as a result of defendant Goodall's evaluation, are thus not sufficient to plead a cause of action for negligent infliction of emotional distress.

This Court in Chamberlin v. 101 Realty Inc., supra, 626 F.Supp. at 868-69, held that the tort of intentional infliction of emotional distress does exist and noted that the elements for the cause of action are outlined...