Hungerford v. Jones

• Decision Date: 25 July 1997
• Docket Number: Civil No. 96-559-M
• Citation: Hungerford v. Jones, 988 F.Supp. 22 (D. N.H. 1997)
• Parties: Joel HUNGERFORD v. Susan L. JONES.
• Court: U.S. District Court — District of New Hampshire

988 F.Supp. 22

Joel HUNGERFORD v.Susan L. JONES.

Civil No. 96-559-M

United States District Court, D. New Hampshire.

July 25, 1997.

Paul A. Maggiotto, Concord, NH.

Robert W. Upton, Concord, NH.

Edward M. Kaplan, Concord, NH.

ORDER

McAULIFFE, District Judge.

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 questions 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."Gooley v. Mobil Oil Corp.,851 F.2d 513, 515(1st Cir.1988).A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is one of limited inquiry, 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,416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90(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,83 F.3d 1, 3(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 defendantSusan Jones.Jones, a social worker, represented herself as a mental health therapist qualified 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 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 technique Jones called "visualization" or "imagery" in which she led Bachman into a self-induced trance to uncover allegedly lost memories of sexual assault.Through this technique, 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 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,697 A.2d 916(N.H.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 techniques 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 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 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.¹As 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 diagnosis and treatment of a patient.Nevertheless, Hungerford asks this court to rule that the New Hampshire Supreme Courtwould find that such a duty exists under New Hampshire's common law.

Certification of that legal question 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,416 U.S. 386, 391, 94 S.Ct. 1741, 1744, 40 L.Ed.2d 215(1974);Nieves on Behalf of Nieves v. University of Puerto Rico,7 F.3d 270, 275(1st Cir.1993).Certification is generally appropriate when the legal question is novel and the state's law on the question is unsettled.Lehman Bros.,416 U.S. at 391, 94 S.Ct. at 1744;accordArizonans for Official English v. Arizona,520 U.S. 43, ___, 117 S.Ct. 1055, 1073, 137 L.Ed.2d 170(1997);Acadia Ins. Co. v. McNeil,116 F.3d 599(1st Cir.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., Marquay v. Eno,139 N.H. 708, 716, 662 A.2d 272(1995);Walls v. Oxford Management Co.,137 N.H. 653, 656-57, 633 A.2d 103(1993);Island Shores Estates v. Concord,136 N.H. 300, 304, 615 A.2d 629(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,140 N.H. 595, 669 A.2d 810, 813(1995).Thus, the question 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,240 Conn. 549, 692 A.2d 781(1997);Bird v. W.C.W.,868 S.W.2d 767(Texas1994);Strom v. C.C.,1997 WL 118253(March 18, 1997, Minn.App.).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.,894 F.Supp. 183(E.D.Pa.1995);Doe v. McKay,286 Ill.App.3d 1020, 222 Ill.Dec. 643, 678 N.E.2d 50(1997);Schwarz v. Regents of the Univ. of Calif.,226 Cal.App.3d 149, 276 Cal.Rptr. 470(1990)(distinguishingMarlene F. v. Affiliated Psychiatric...