Madden v. Abate

Decision Date06 July 2011
Docket NumberCase No. 2:09–cv–145.
Citation800 F.Supp.2d 604
PartiesSamantha MADDEN, Plaintiff, v. Joseph A. ABATE, M.D., Defendant.
CourtU.S. District Court — District of Vermont

OPINION TEXT STARTS HERE

Jerome F. O'Neill, Esq., Tina L. Shoup, O'Neill Kellner & Green, Burlington, VT, for Plaintiff.

Eric S. Miller, Ian P. Carleton, Sheehey Furlong & Behm P.C., Burlington, VT, for Defendant.

OPINION and ORDER

WILLIAM K. SESSIONS III, District Judge.

Currently pending before the Court are Defendant Joseph Abate's consolidated motion to dismiss and motion for summary judgment, ECF No. 94; Plaintiff Samantha Madden's motion to amend her amended complaint, ECF No. 104; and motions by both parties to seal their filings with regard to these motions. ECF Nos. 95, 101, 107. For the reasons set forth below, Abate's motion to dismiss Madden's “sexual assault” claim is granted. The “sexual assault” claim is to be struck from the amended complaint, leaving the battery claim intact. Abate's motion for summary judgment and Madden's motion to amend are both denied. Finally the motions to seal are granted in part and denied in part. Any confidential information in the parties' filings will remain sealed, while all other information will be unsealed.

Background

Samantha Madden brought this action against Dr. Joseph Abate after Abate penetrated her vagina with his fingers during medical examinations she underwent because of hip and groin pain she was having. Abate did not explicitly inform Madden that he would be performing vaginal examinations , did not wear gloves during the examinations, did not use lubrication, did not make a note of the vaginal examinations in the medical records, and did not have a chaperone in the room during the examinations.

In her original complaint, filed on June 5, 2009, Madden indicated that she was pursuing claims for battery and medical malpractice. Compl., ECF No. 1. Pursuant to a discovery schedule issued by the Court on March 23, 2010, Plaintiff was to submit her expert witness reports by June 1, 2010 and both parties were to file any amendments to their pleadings by September 15, 2010. ECF No. 25. The discovery schedule was later amended such that all discovery was to be concluded and pre-trial motions were to be filed by March 2, 2011. ECF No. 81.

During discovery, Madden failed to disclose a medical expert who would testify in her case-in-chief regarding liability on the medical malpractice or battery claims. On February 7, 2011, she filed her first motion to amend the complaint, in which she sought to withdraw the medical malpractice claim, to characterize her battery claim as one for “sexual assault and battery” and to add a claim for “outrageous conduct.” Mot. to Amend, ECF No. 73. At a hearing held on February 16, 2011, the Court granted the motion to amend in part and denied it in part; specifically, the Court allowed Madden to strike the medical malpractice claim but denied her motion to add a claim for outrageous conduct because Abate raised some questions as to whether “outrageous conduct” is actually a cause of action. ECF No. 81. However, the Court invited the parties to submit further briefing on the issue of the viability of an outrageous conduct claim, which they did. ECF Nos. 86, 89. On March 16, 2011, Abate filed his consolidated motion to dismiss and motion for summary judgment. On April 28, 2011, Madden filed her motion to amend the amended complaint, which seeks to avoid the question of whether outrageous conduct is a proper cause of action by re-pleading the claim as one for intentional infliction of emotional distress (IIED).

Discussion
I. Abate's Motion to Dismiss

Under Fed.R.Civ.P. 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). At the pleading stage, the plaintiff has an obligation to provide factual allegations that are “enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). Where a private litigant asserts a claim that is not based upon any recognized private right of action, the Court may dismiss the claim. See Bellikoff v. Eaton Vance Corp., 481 F.3d 110, 115 (2d Cir.2007).

In her first amended complaint, and in her proposed second amended complaint, Madden titles her first cause of action “sexual assault and battery.” Abate argues that the claim for “sexual assault” should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) because under Vermont law, although sexual assault is a criminal offense, no such civil claim is recognized. Abate is correct that the existence of a criminal statute prohibiting certain conduct does not in and of itself create a private right of action that may be brought by the victim of that conduct. See, e.g., Joy v. Countrywide Financial Corp., NO. 5:10–CV–218–FL, 2011 WL 741597, at *1 n. 1, 2011 U.S. Dist. LEXIS 17797, at *3 n. 1 (E.D.N.C. February 23, 2011) ([Defendant] correctly observes that, as these are state criminal offenses, no civil cause of action may be maintained by plaintiff for their violation.”) (citing Diamond v. Charles, 476 U.S. 54, 64, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986)); Larry v. City of the Dalles, No. 09–CV–663–AC, 2009 WL 4894485, at *4 (D.Or. Dec. 16, 2009) (dismissing under Rule 12(b)(6) plaintiffs civil claim brought pursuant to Oregon's obstruction of justice statute, stating “there is no civil counterpart to this criminal statute and, thus, no civil cause of action for it.”).

Madden concedes that criminal statutes, in and of themselves, do not create private rights of action but attempts to rely upon In Re: Estate of Peters, 171 Vt. 381, 765 A.2d 468 (2000), for the proposition that Vermont courts have explicitly recognized a civil cause of action for sexual assault. In that case, the plaintiff, who alleged she had been sexually abused by her husband, filed a complaint that included a single claim for “sexual assault and battery.” Id. The Vermont Supreme Court noted that, although the trial court denied a motion to dismiss the claim, which “alleged both assault and battery, the [trial] court charged [the jury] only on battery.” Id. 475 n. 3. Madden, who cites no other authority suggesting the existence of a civil action for “sexual assault” under Vermont law, does not provide a substantive response to the lack of precedent supporting her position. Nor does she provide the Court with any helpful suggestions as to what authority the Court should draw on to determine the elements of such a claim in the absence of any case law recognizing a civil action for sexual assault.1 Instead she makes a generalized argument that justice and common sense dictate that where a patient is the victim of unwanted sexual touching by a doctor there must be some cause of action. Madden's appeal to broad notions of justice is not lost on the Court, but it misses the mark since it is clear that, regardless of whether she can bring a civil claim for “sexual assault,” she can proceed with her battery claim.

Because Madden has not identified any authority establishing the existence of a civil cause of action for “sexual assault,” much less identifying the elements of such an action, Abate's motion to dismiss the claim for “sexual assault” is granted. The “sexual assault” claim is to be struck from the amended complaint, leaving the battery claim intact.

II. Abate's Motion for Summary Judgment

Summary judgment is ‘warranted upon a showing that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 455 (2d Cir.2007) (quoting Feingold v. New York, 366 F.3d 138, 148 (2d Cir.2004)); Fed.R.Civ.P. 56(c). “In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the moving party.” Beth Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield of N.J., Inc., 448 F.3d 573, 579 (2d Cir.2006). The moving party will be “entitled to a judgment as a matter of law [if] the non-moving party ‘fails to make a showing sufficient to establish the existence of an element essential to that party's case.’ Tufariello v. Long Island R. Co., 458 F.3d 80, 85 (2d Cir.2006) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

Abate raises two arguments that he should be granted summary judgment on the battery claim: (1) Madden cannot make out the essential elements of her claim without calling a liability expert in her case-in-chief, and (2) Madden's claim can only be brought as a medical malpractice claim, and not as a battery claim.

A) Necessity of a Liability Expert

Abate argues that where a plaintiff claims that she was the victim of a battery during a medical procedure she cannot make out the essential element of lack of consent without the testimony of a medical expert in her case-in-chief. Abate's argument starts with the premise that under Vermont law, [i]n a medical context, a health care provider commits battery if the provider performs a procedure for which the patient has not given consent.” Christman v. Davis, 179 Vt. 99, 889 A.2d 746, 749 (2005). “Generally, consent to particular conduct, or ‘substantially the same conduct,’ bars recovery for a harmful invasion.” Id. (citing Restatement (Second) of Torts § 892A(2)(b)). Abate then cites the jury instructions in his criminal prosecution as well...

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1 cases
  • Agundis v. Rice
    • United States
    • U.S. District Court — Northern District of Alabama
    • July 13, 2018
    ...cause of action for such a claim. Both state and federal statutes prohibit intimidating or threatening a witness. See Madden v. Abate, 800 F. Supp. 2d 604, 606-07 (D. Vt. 2011) (existence of a criminal statute prohibiting certain conduct does not in and of itself create a civil cause of act......

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