Thayer v. Vaughan

• Decision Date: 06 November 2003
• Docket Number: No. 79A02-0303-CV-260.,79A02-0303-CV-260.
• Citation: 798 N.E.2d 249
• Parties: Cathy A. THAYER and Mark Thayer, Appellants-Plaintiffs, v. Charles R. VAUGHAN and Vaughan and Vaughan, Appellees-Defendants.
• Court: Indiana Appellate Court

798 N.E.2d 249

Cathy A. THAYER and Mark Thayer, Appellants-Plaintiffs, v. Charles R. VAUGHAN and Vaughan and Vaughan, Appellees-Defendants.

No. 79A02-0303-CV-260.

Court of Appeals of Indiana.

November 6, 2003.

Andrew C. Charnstrom, Ann S. Grayson, Wooden & McLaughlin LLP, Indianapolis, IN, Attorneys for Appellants.

Robert M. Baker, III, Hoover, Hull, Baker & Heath, LLP, Indianapolis, IN, Attorney for Appellees.

OPINION

BAKER, Judge.

Appellants-plaintiffs Cathy and Mark Thayer ("Cathy," "Mark" or "Thayers") appeal the trial court's ruling regarding her legal malpractice claim against appellees-defendants Charles Vaughan and the law firm of Vaughan and Vaughan ("Vaughan"). Specifically, the Thayers raise three issues, which we consolidate and restate as: (1) whether the trial court erred in denying the Thayers's motion to strike the affidavit of Dr. Larry Davis; and (2) whether the trial court erred in granting summary judgment to Vaughan. Additionally, Vaughan has requested an award of appellate attorney fees. Finding that the trial court did not abuse its discretion in denying Thayer's motion to strike, correctly granted summary judgment to Vaughan, and that Vaughan is not entitled to appellate attorney fees, we affirm.

FACTS

Cathy was employed at the Lafayette Clinic, Inc. ("LCI"), a mental healthcare practice, from September 1988 until September 25, 1997. She originally worked as a receptionist but was promoted to officer manager in 1995 or 1996. Dr. Nizar El-Khalili and Dr. Michael OrRico were the co-owners, officers, and directors of LCI. In 1990, Thayer began to suffer from depression after several deaths occurred in her family, and she began to take anti-depressant medication prescribed for her by Dr. El-Khalili. Sometime in 1990 or 1991, Cathy began seeking advice concerning problems she was having with her children and her marriage from Dr. OrRico.

At the end of the office Christmas party in December 1996, Dr. OrRico gave Cathy a stuffed animal as a gift, then kissed her. She shoved him away and said no. Then, early in January 1997, Cathy met Dr. Or-Rico at the office after hours to discuss business matters. He suggested they drive around in his truck to talk, and she agreed. Dr. OrRico drove out to the country, turned off the truck, locked the doors and scooted over to her side of the truck. The two then had sexual intercourse in spite of Cathy telling him no. Then at the end of January, Cathy agreed to meet Dr. OrRico at the Holiday Inn in Crawfordsville. When Cathy entered the room, Dr. OrRico was naked, and the two again engaged in sexual intercourse. Afterward, they had dinner in the hotel room and talked for several hours. From that point until October 1997, Cathy and Dr. OrRico had a consensual sexual affair. During the affair, Cathy stated that she wanted to spend the rest of her life with Dr. OrRico, and that he was the nicest, sweetest thing that had ever happened to her. However, she became unhappy when he decided to stay with his wife.

At some point, Dr. El-Khalili discovered the affair between Cathy and Dr. OrRico and told Dr. OrRico that either he or Cathy had to leave LCI. Dr. El-Khalili felt that the personal relationship between his partner and employee interfered with the functioning of the office, especially since Cathy, who worked for the corporation, was doing things for Dr. OrRico's personal practice that were beyond her duties. Dr. El-Khalili felt uncomfortable continuing to work together with both Dr. OrRico and Cathy. Dr. OrRico talked to Cathy about the situation and asked her to leave the clinic. She prepared a letter of resignation and left LCI on September 25, 1997.

The Thayers decided to take legal action and initially talked to lawyer Doug Pool about a potential cause of action in February 1998. When Pool told them he would not take the case, the Thayers went to Vaughan and Vaughan and spoke with Robert Johnson on February 26, 1998. At that first meeting, the Thayers discussed at some length the facts surrounding their possible claims against LCI. Johnson agreed to review the information, to consider their potential claims, and thereafter to meet with the Thayers again with Charles Vaughan, his supervisor. That meeting took place on April 28, 1998. Vaughan testified that he informed the Thayers at that meeting that the firm was not going to take the sexual harassment case because it had no merit, but the Thayers deny this. Appellant's App. Tab 23 p. 3.

The Thayers retained other legal counsel and ultimately filed a suit that included a medical malpractice claim against Drs. El-Khalili and OrRico in the Tippecanoe Superior Court. The claim against Dr. El-Khalili was settled without a payment of money, and the suit was dismissed against him. The claim for medical malpractice against Dr. OrRico was dismissed by summary judgment, but this court reversed in Thayer v. OrRico, 792 N.E.2d 919 (Ind.Ct.App.2003), finding a genuine issue of material fact as to whether there was a doctor-patient relationship between Cathy and Dr. OrRico.

The Thayers filed a complaint for legal malpractice against Vaughan on March 23, 2000, alleging that Vaughan failed to take necessary steps to preserve and prosecute their potential claims for sex discrimination and sexual harassment. Vaughan responded with an answer and a counterclaim for defamation and abuse of process against the Thayers and a third-party complaint for defamation and abuse of process against their attorney. Vaughan filed a motion for summary judgment on November 7, 2002, and the Thayers filed a cross motion for summary judgment. In Vaughan's brief opposing the Thayer's cross motion and supporting Vaughan's motion, Vaughan tendered the affidavit of Dr. Larry Davis, which set forth his credentials and explained that he reviewed "voluminous materials relevant to Cathy Thayer and her suit" to reach his opinions. Appellant's App. tab 8 p. 4-5. Dr. Davis indicated in his affidavit that he received his M.D. degree from the Indiana School of Medicine in 1967, that he is licensed to practice in Indiana, Illinois, and Kentucky, and that he specializes in psychiatry. Dr. Davis opined that Cathy did not have a doctor-patient relationship with Dr. OrRico, that Cathy and Dr. OrRico perceived their feelings to be reciprocal love, that Cathy was of sound mind during her relationship with Dr. OrRico, and that Cathy did not show signs of dissociation during her four depositions. The Thayers filed a motion to strike Dr. Davis's affidavit, which the trial court later denied. Following a hearing on February 19, 2003, the trial court granted Vaughan's motion for summary judgment. The Thayers now appeal.

DISCUSSION AND DECISION

I. Motion to Strike

Cathy contends that the trial court erred in denying her motion to strike the affidavit of Dr. Larry Davis that Vaughan submitted in support of his motion for summary judgment. Specifically, she argues that the testimony was unreliable, and therefore should not have been admitted into evidence.

The standard of review for admissibility of evidence issues is abuse of discretion. Fairfield Development, Inc. v. Georgetown Woods Sr. Apartments Ltd. Partnership, 768 N.E.2d 463, 466-67 (Ind. Ct.App.2002). "An abuse of discretion occurs only when the trial court's action is clearly erroneous and against the logic and effect of the facts and circumstances before the court." Id. Even if a trial court errs in a ruling on the admissibility of evidence, this court will only reverse if the error is inconsistent with substantial justice. Id.

Indiana Rule of Evidence 702 provides for the admissibility of expert opinions. The rule states:

(a) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

(b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.

Ind. Evidence Rule 702. In addition to asserting admissible facts upon which the opinion is based, an expert opinion affidavit must also state the reasoning or methodologies upon which it is based. Doe v. Shults-Lewis Child and Family Servs., 718 N.E.2d 738, 750 (Ind.1999). The trial court must be provided with enough information to proceed with a reasonable amount of confidence that the principles used to form the opinion are reliable. Id. at 750-51. A list of admissible facts and a bald conclusion drawn therefrom is insufficient. Id. at 750. In Time Warner Entertainment Co. v. Whiteman, 741 N.E.2d 1265, 1274 (Ind.Ct.App.2001), we upheld the admission of an expert opinion affidavit where the affiant connected her experience, the data, and her conclusions. Thus, we look for the same characteristics in Dr. Davis's affidavit.

Dr. Davis testified that he received his M.D. degree from the Indiana School of Medicine in 1967 and is licensed to practice in Indiana, Illinois, and Kentucky. He further stated that he specializes in psychiatry and is a Diplomate in the American Board of Psychiatry and Neurology, the Board of Clinical Sexology, the Board of Forensic Examiners, and the American Board of Forensic Medicine. Dr. Davis provided that in the course of his forensic psychiatric practice he had reviewed "voluminous materials" relevant to Cathy and her suit. He went on to detail that he had reviewed depositions, including those of Cathy, Dr. OrRico, Dr. El-Khalili and Dr. Toner Overly. His experience and his review of this data led him to conclude that Cathy did not have a doctor-patient relationship with Dr. OrRico, that Cathy and Dr. OrRico perceived their feelings to be reciprocal love, that Cathy was of sound mind during her relationship with Dr. OrRico, and that Cathy did not show signs of dissociation during...