Grote v. J.S. Mayer & Co., Inc., C-890170

• Decision Date: 06 June 1990
• Docket Number: No. C-890170,C-890170
• Citation: 570 N.E.2d 1146,59 Ohio App.3d 44
• Parties: GROTE, Appellant, v. J.S. MAYER & COMPANY, INC. et al., Appellees. *
• Court: Ohio Court of Appeals

Page 44

59 Ohio App.3d 44

570 N.E.2d 1146

GROTE, Appellant, v. J.S. MAYER & COMPANY, INC. et al., Appellees. ^*

No. C-890170.

Court of Appeals of Ohio, First District, Hamilton County.

June 6, 1990.

Syllabus by the Court

1. In an action for the negligent infliction of emotional distress flowing from alleged negligent counseling by a licensed industrial psychologist, plaintiff must present expert evidence to prevent the court from granting summary judgment in favor of the defendant psychologist because plaintiff's claim involves proof of mental distress, and its cause, of a medically significant nature that exceeds the capability of a jury of non-professionals to reasonably understand and evaluate. (Paugh v. Hanks [1983], 6 Ohio St.3d 72, 80, 6 OBR 114, 121, 451 N.E.2d 759, 767, distinguished.)

2. Where, in response to defendant's motion for summary judgment, plaintiff fails to provide any expert evidence to counter expert deposition testimony that his former psychologist did not contribute in any way, either professionally or personally, to his mental illness, the trial court does not err by granting summary judgment in defendant's favor on plaintiff's claim of malpractice and negligent infliction of emotional distress; some rebutting evidence from an expert is necessary to avoid summary judgment where the plaintiff's claims included proof of mental distress, and its cause, of a medically significant nature that exceeded a lay person's capability to reasonably understand and evaluate. (Paugh v. Hanks [1983], 6 Ohio St.3d 72, 6 OBR 114, 451 N.E.2d 759, distinguished.)

Robert W. Grote, pro se.

Rendigs, Fry, Kiely & Dennis and David W. Peck, Cincinnati, for appellees.

PER CURIAM.

Robert W. Grote appeals from the trial court's grant of summary judgment in favor of defendants-appellees J.S. Mayer & Company, Inc. and James S. Mayer, ¹ and from its denial of Grote's cross-motion for summary judgment, on his claim alleging that Mayer, a licensed industrial psychologist, was liable for negligent counseling rendered to him in March 1975 and February 1976. Grote's first assignment of error raises issues concerning the necessity of expert testimony in cases involving malpractice and negligent infliction of emotional distress in the field of psychology, and whether Grote, by having acquired knowledge through personal investigation and research, could provide the expert testimony himself. Grote's second assignment of error is addressed to the trial court's denial of his motion for summary judgment, but merely reiterates the arguments made in his first assignment of error.

Grote first sought vocational counseling from Mayer in March 1975, when Mayer gave him a series of vocational-skills tests. Grote met with Mayer four more times in the period from March 1975 to February 1976, and contacted him by telephone most recently in the fall of 1982. Grote claims, among other things, that Mayer failed to refer him to a clinical psychologist for treatment of his mental illness and that Mayer prevented him from seeking appropriate treatment and aggravated his condition.

On April 22, 1986, Grote filed his complaint against the defendants, claiming they were responsible for injuries related to his ongoing mental illness. In the course of the proceedings Grote identified Roger H. Fisher, Ph.D., as his expert witness. In his deposition on August 7, 1987, however, Dr. Fisher exculpated the defendants from any liability, stating that he did not believe Mayer's conduct to have any causal connection with Grote's illness. During a hearing on the parties' cross-motions for summary judgment, the trial court gave Grote the opportunity to obtain another expert witness, apparently in consideration of Grote's pro se status and the fact that Dr. Fisher himself had been treating Grote for the past several years. Grote did not avail himself of this opportunity, arguing instead that either he was qualified as an expert himself or that expert testimony was not required to prove causation in this case. The trial court then granted summary judgment in favor of the defendants.

In his first assignment of error contending that the trial court erred by granting summary judgment in favor of the defendants, Grote reiterates the arguments made before the trial court, that either he was qualified to provide expert testimony with regard to the causation of his mental illness, or that no expert testimony was required to prove causation. We do not agree with either contention.

Expert testimony is usually necessary to establish the recognized standards of the medical community by which the defendant's performance is measured in medical malpractice cases, and the failure to establish those standards is fatal to a plaintiff's presentation of a prima facie malpractice claim. Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 75 O.O.2d 184, 346 N.E.2d 673. An exception to the general rule has been recognized where the standard of care is sufficiently obvious that nonprofessionals can reasonably evaluate the conduct. Whiteleather v. Yosowitz (1983), 10 Ohio App.3d 272, 10 OBR 386, 461 N.E.2d 1331. Issues involving the causation or aggravation of mental illness have also been determined to involve a field of scientific inquiry where expert medical testimony is indispensable. Culp v. Federated Dept. Stores, Inc. (1965), 11 Ohio App.2d 165, 40 O.O.2d 316, 229 N.E.2d 100.

Grote argues that because his complaint included a claim for negligent infliction of emotional distress, ² expert testimony was not required, in that respect, to withstand a motion for summary judgment, citing Paugh v. Hanks (1983), 6 Ohio St.3d 72, 6 OBR 114, 451 N.E.2d 759. In Paugh, the Supreme Court of Ohio held that "[w]here a bystander to an accident states a cause of action for negligent infliction of serious emotional distress, the emotional injuries sustained must be found to be both serious and reasonably foreseeable, in order to allow a recovery." Id. at paragraph three of the syllabus. The court observed in Paugh that, with respect to questions of proof, "expert medical treatment can assist the judicial process" in determining the gravity of the emotional injury, but that "lay witnesses who were acquainted with the plaintiff, may testify as to any marked changes in the emotional or habitual makeup that they discern in the plaintiff after the accident has occurred. The jurors themselves, can refer to their own experiences in order to determine whether, and to what extent, the defendant's conduct caused the serious emotion[al] distress. Molien [v. Kaiser Foundation Hospitals (1980), 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813] * * *." Paugh, supra, at 80, 6 OBR at 121, 451 N.E.2d at 767.

Paugh has been interpreted by other courts to dispense with the requirement of expert medical testimony in intentional-infliction-of-emotional-distress cases involving, for example, verbal abuse by the plaintiff's employer Foster v. McDevitt (1986), 31 Ohio App.3d 237, 31 OBR 520, 511 N.E.2d 403, and negligent infliction cases involving squalid conditions in rental property, including rat and roach infestation, allegedly caused by the landlord's failure to maintain the premises. Allen v. Lee (1987), 43 Ohio App.3d 31, 538 N.E.2d 1073.

Although Paugh, its predecessor, Schultz v. Barberton Glass Co. (1983), 4 Ohio St.3d 131, 4 OBR 376, 447 N.E.2d 109, and the majority of cases decided in their wake involved bystanders to an emotionally distressing mishap, the fact that Grote in this case was directly involved, and not a bystander, does not serve to distinguish this case from the line of cases descending from Schultz. Although the criteria set forth in Paugh to determine whether the negligently inflicted emotional injury was reasonably foreseeable are clearly oriented to a bystander situation, the reasoning permitting recovery for negligent infliction of emotional distress adopted in Paugh was originally applied by the California Supreme Court to instances of direct injury to the plaintiff in Molien v. Kaiser Foundation Hospitals (1980), 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, which was cited approvingly in Paugh in the passage quoted above. See, also, Allen, supra.

We hold, instead, that Paugh's elimination of the requirement of expert testimony in negligent-infliction-of-emotional-distress cases is distinguishable from this case on the grounds that Grote's claim here involved proof of mental distress, and its cause, of a medically significant nature that exceeded the capability of a jury of nonprofessionals to reasonably understand and evaluate.

In its observation in Paugh with respect to questions of proof, the Supreme Court of Ohio referred to Comment, Negligently Inflicted Mental Distress: The Case for an Independent Tort (1971), 59 Geo.L.J. 1237, that distinguished between the classes of emotional injury: "primary reactions," which consist of immediate, automatic responses to a stimulus that are subjective and of a relatively short duration, and "secondary reactions," which consist of traumatic neuroses that follow the primary reaction and are more...