Zeranti v. United States

Decision Date11 February 2019
Docket Number1:15-CV-00488 EAW
Citation358 F.Supp.3d 244
Parties Kenneth ZERANTI, Plaintiff, v. UNITED STATES of America and Erica L. Sargent, PH.D., Defendants.
CourtU.S. District Court — Western District of New York

Donald W. O'Brien, Jr., Woods Oviatt Gilman LLP, Rochester, NY, for Plaintiff.

Michael S. Cerrone, U.S. Attorney's Office, Ann M. Campbell, The Tarantino Law Firm, LLP, Buffalo, NY, Mark G. Farrell, Law Offices of Mark G. Farrell & Associates, Williamsville, NY, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Plaintiff Kenneth Zeranti ("Plaintiff") brings this action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2671 et seq. , against defendants United States of America ("Defendant") and Erica L. Sargent, Ph.D. ("Dr. Sargent"), alleging negligence resulting in "permanent or long-standing emotional harm." (Dkt. 1). Specifically, Plaintiff claims that Dr. Sargent, Plaintiff's psychotherapist at the Veterans Administration ("VA") Hospital in Buffalo, New York ("Buffalo VAMC"), mismanaged Plaintiff's emotional dependence on her, engaged in a sexual, intimate relationship with Plaintiff, and then terminated the relationship "in an abrupt manner," causing Plaintiff to suffer "severe and debilitating depression." (Id. at ¶¶ 7-12). Plaintiff asserts two causes of action against Defendant: (1) a claim for vicarious liability based on Dr. Sargent's negligence, and (2) a claim for negligent supervision and/or retention. (Id. at 3-5).

Presently before the Court is the motion to dismiss brought by Defendant pursuant to Federal Rules of Civil Procedure 12(b)(1) and 56. (Dkt. 37). Defendant seeks dismissal of the claims asserted by Plaintiff for lack of subject matter jurisdiction. (Id. at 1; Dkt. 39 at 10, 16). Defendant also seeks summary judgment as to Plaintiff's second cause of action alleging negligent supervision. (Dkt. 37 at 1; Dkt. 39 at 19). For the following reasons, Defendant's motion is denied.

BACKGROUND
I. Factual Background

The following facts are drawn from Defendant's Rule 56 Statement of Undisputed Facts (Dkt. 40) ("Defendant's Statement"), Plaintiff's Response to Defendant's Statement of Undisputed Facts (Dkt. 42-3) ("Plaintiff's Statement"), and their supporting documents. The Court has noted where factual disputes exist and views all such disputes in the light most favorable to Plaintiff, as required on a motion such as this.

Plaintiff is a veteran who receives disability benefits through the Social Security Administration and the VA as a result of his diagnosis with major depression, dysthymia, anxiety, post-traumatic stress disorder, and obsessive-compulsive disorder. (Dkt. 40 at ¶¶ 3-9). Plaintiff has received continuous mental health treatment from the Buffalo VAMC since the late 1980s. (Id. at ¶ 16). From 1987 until August 2011, Plaintiff's therapist at the Buffalo VAMC was a clinical psychologist named Eddie Venzor, Ph.D. (Id. at ¶ 19). After Dr. Venzor's retirement, Plaintiff was transferred to Dr. Sargent, another psychologist at the Buffalo VAMC, for his mental health care. (Id. at ¶¶ 20, 26). For several months, Plaintiff was treated by a psychology intern Dr. Sargent supervised (id. at ¶¶ 21-23), and Dr. Sargent began personally counseling Plaintiff in December 2011 (id. at ¶ 45).

Psychologists at the Buffalo VAMC "function as independent practitioners" (id. at ¶ 27), and the VA does not require clinical supervision of its psychologists (id. at ¶ 31). However, psychologists employed at the Buffalo VAMC are supposed to complete an Ongoing Professional Practice Evaluation ("OPPE") every six months where a psychologist's chart timeliness, continuing education documentation, and case presentation are evaluated by the lead psychologist. (Id. at ¶ 34; Dkt. 42-3 at 34). Additionally, Dr. Sargent's administrative supervisor, Thomas Brent ("Brent"), had staff meetings with psychologists every other week to discuss their cases and would sometimes talk to Dr. Sargent one-on-one about treatment methods for cases with which she struggled. (Dkt. 40 at ¶¶ 42-43).

The Veteran's Health Administration Handbook requires patient health records to "be timely, relevant, necessary, complete, and authenticated." (Dkt. 42-2 at 27). Each VA facility is required to establish policies that "specify time standards for content, authentication, and completion" of patient records and "describe procedures for ongoing monitoring and reporting of individual delinquent records, responsible clinicians, and re-occurring delinquency patterns." (Id. ). At the Buffalo VAMC, therapists were required to enter notes within five days of the sessions. (Dkt. 42-1 at ¶ 28).

Throughout 2012 and 2013, Dr. Sargent failed to complete the notes taken during her counseling sessions with many of her patients, including those with Plaintiff. (Dkt. 40 at ¶¶ 123-25). Dr. Sargent received a disciplinary warning on April 19, 2012, for failing to enter her notes in a timely manner, and Brent was supposed to monitor her note entry. (Dkt. 42-1 at ¶ 29). In November 2012, Dr. Sargent still had few substantive notes. (Id. at ¶ 26). No notes of any kind exist for Plaintiff's final 15 therapy sessions with Dr. Sargent. (Id. ). The record does not show that Brent discussed this deficiency with Dr. Sargent. (See id. at ¶ 30).

On or before January 2013, Plaintiff began expressing affection to Dr. Sargent in their therapy sessions. (Id. at ¶ 46; Dkt. 42-3 at ¶ 46). A patient becoming infatuated with a therapist is a common occurrence in therapeutic settings and is referred to as the transference phenomenon. (Dkt. 40 at ¶¶ 48-50). Patients experiencing transference have feelings towards their therapist that are not necessarily based in reality, but occur because the therapist may be one of the few people who sits and listens to the patient and "who cares in an organized and thoughtful and attentive way." (Id. ). Dr. Sargent had successfully handled transference situations twice previously in her career (id. at ¶ 64), and prior to 2013, she had never engaged in a sexual or romantic relationship with a patient (id. at ¶ 65).

Between January and March 2013, Plaintiff started expressing his affection for Dr. Sargent more vehemently by writing her letters and cards and by leaving her voicemails until her inbox was full. (Dkt. 42-2 at 152). Plaintiff gave several gifts to Dr. Sargent, including crystal sculptures (id. at 157) and a three-and-a-half-foot tall flower arrangement that Dr. Sargent placed in the reception area (id. at 218). The hospital staff noticed that Plaintiff brought these gifts to Dr. Sargent (id. at 223), and on at least one occasion, a hospital staff member admonished Plaintiff for doing so (id. at 165). Additionally, Plaintiff referred to Dr. Sargent as "hot Dr. Sargent" in front of Buffalo VAMC staff members throughout this time. (Id. at 223).

In March or April 2013, Dr. Sargent claims she met with Brent to ask for guidance about how to handle Plaintiff's affection.1 (Dkt. 40 at ¶ 55). She also met twice with one of her peers, Dr. Elizabeth Wahlig ("Dr. Wahlig"). (Dkt. 42-2 at 272). During these meetings, Dr. Sargent told Brent and Dr. Wahlig that she "was in distress over [Plaintiff] pushing the boundaries and pursuing me in a romantic way. And that I did not know anything further that I could do to set the boundaries and to keep him from doing more." (Id. at 222-23). Both Brent and Dr. Wahlig encouraged Dr. Sargent to reinforce appropriate therapeutic boundaries with Plaintiff. (Dkt. 40 at ¶ 59). During Dr. Sargent's second meeting with Dr. Wahlig, Dr. Wahlig noted that she felt "concerned that [Plaintiff] had not backed down gracefully nor respected the limits that [Dr. Sargent] was trying to enforce but had, in fact, become more insistent." (Dkt. 42-2 at 340). Dr. Wahlig concluded Dr. Sargent should transfer Plaintiff to another therapist, but never advised Dr. Sargent to do so. (Id. at 341). Brent also testified that, as a general matter, if a therapist he supervised came to him with concerns about a patient's attraction or an exchange of gifts, he would talk to them about next steps, one of which would be transferring the patient. (Id. at 251). Brent did not speak with Dr. Sargent about transferring Plaintiff to another therapist. (Id. at 223).

Sometime between when these meetings occurred and May 11, 2013, Dr. Sargent met with Plaintiff for the first time in a personal way on the grounds of the Buffalo VAMC. (Id. at 153, 223). She encouraged him to ride by an outside picnic area on his Harley motorcycle with his dogs, and at least one of the other hospital employees saw this happen. (Id. ). Also during this time, Dr. Sargent left some of the cards Plaintiff had written to her on her office desk, removing them only after Plaintiff expressed surprise that she would display them. (Id. at 152-53).

On May 11, 2013, Dr. Sargent, wearing a hat and trench coat, met with Plaintiff off hospital grounds at a coffee shop. (Dkt. 40 at ¶¶ 71-72). From there they drove separately to a nearby park, and Dr. Sargent then got into Plaintiff's car where they kissed for an hour. (Id. at ¶¶ 74-75). A day or two later, Plaintiff states that he had a therapy session with Dr. Sargent where they "[w]ent through the formality of what would ordinarily be a mental health appointment" before hugging and kissing in Dr. Sargent's office. (Dkt. 42-2 at 155).2 Several days later, Plaintiff took Dr. Sargent for a ride on his motorcycle to a different park and kissed her under a tree. (Dkt. 40 at ¶¶ 76-77). Plaintiff purchased a $ 1,000 motorcycle jacket and helmet for Dr. Sargent, along with a dark visor so she could hide her face. (Id. at ¶¶ 97-98).

On May 18, 2013, Dr. Sargent met Plaintiff at his home, where they had sex. (Id. at ¶ 78). Dr. Sargent spent the night with Plaintiff at his house, and several hours the next day. (Id. at ¶¶ 79-80). She returned to Plaintiff's home on or about May 22, 2013, and met...

To continue reading

Request your trial
4 cases
  • Peralta v. United States
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • July 28, 2020
    ...Berkovitz by Berkovitz v. United States , 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988) ; See Zeranti v. United States , 358 F. Supp. 3d 244, 258 (W.D.N.Y. 2019) (holding that the discretionary function exception did not bar negligent supervision claim asserted against the super......
  • Frederick v. State
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • March 27, 2020
    ...from arguing that Defendants' actions can be viewed as supporting alternate theories of liability. Zeranti v. United States , 358 F. Supp. 3d 244, 260 n.10 (W.D.N.Y. 2019).6 When alleged discrimination is based on a perceived impairment, "[t]he ‘regarded as’ clause requires a plaintiff to e......
  • JD1 v. Canisius Coll.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • June 27, 2022
    ...conduct falls outside the scope of employment if done ‘solely for personal motives unrelated to the furtherance of the employer's business.'” Id. Catania v. Herbst, 916 F.Supp.2d 266, 272 (E.D.N.Y. 2013)). Courts consider the following factors to evaluate whether acts were done within the s......
  • Johal v. Garland
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • November 30, 2021
    ... SARANJIT SINGH JOHAL, [1]Petitioner, v. MERRICK B. GARLAND, [2]United States Attorney General, et al., Respondents. No. 20-CV-1315-LJVUnited ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT