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TUMAN v. GENESIS ASSOCS.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


July 19, 1995

KENNETH J. TUMAN and JOAN E. TUMAN
v.
GENESIS ASSOCIATES, et al.

The opinion of the court was delivered by: JOHN R. PADOVA

MEMORANDUM

 Padova, J.

 July 19, 1995

 This case, apparently the first of its kind in Pennsylvania, is a "false memory" lawsuit *fn1" by parents against their daughter's former mental health counselors. *fn2" Plaintiffs, Kenneth J. Tuman and Joan E. Tuman, allege that while treating the Tuman's only child, Diane, for bulimia, Defendants implanted false memories that Plaintiffs murdered numerous children, sexually assaulted Diane, and routinely performed bizarre satanic rituals. Plaintiffs assert the following state-law claims: breach of contract (Count I), negligence (Count II), reckless, wanton, and malicious interference with filial relations (Count III), intentional infliction of emotional distress (Count IV), defamation (Count V), intentional misrepresentation (Count VI), and punitive damages (Count VII). Jurisdiction is based on diversity of citizenship, as Plaintiffs are New Jersey residents and Defendants reside in or have a principal place of business in Pennsylvania. Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants seek to dismiss Plaintiffs' Complaint. For the reasons set forth below, I shall grant in part and deny in part Defendants' Motion.

 I. FACTS ALLEGED

 Plaintiffs allege the following facts, which I shall assume are true for purposes of the motion to dismiss. Beginning in July 1990, Diane, who was then twenty years old, became a Genesis client in order to improve her self esteem and to help deal with an eating disorder. Defendants informed Plaintiffs that Diane suffered from bulimia and would benefit from therapy, but that Plaintiffs must separate and detach from Diane for approximately two years. Plaintiffs agreed to the separation, and formed a contract with Genesis whereby Plaintiffs agreed to pay Defendants on a per-session basis, and Defendants agreed to provide Diane with psychological counseling and mental health therapy that was within acceptable standards of care.

 Plaintiffs allege, however, that Defendants provided Diane with substandard care, and that Diane's mental health only deteriorated while Defendants treated her. Specifically, Plaintiffs allege that the Defendants "brainwashed" Diane by implanting false memories that (a) Plaintiffs were members of a satanic cult; (b) Plaintiffs murdered Diane's twin brother and other children during satanic rituals; (c) Kenneth Tuman raped Diane and impregnated her; (d) Plaintiffs murdered Diane and Kenneth's child during a satanic ritual; and (e) cult members intended to harm Diane for attempting to leave the cult. Additionally, on January 30, 1991, during a "rage therapy" session, Diane suffered a catatonic seizure, fell to the floor, and was left unattended for more than eight hours before Defendants sought appropriate medical care.

 Plaintiffs also allege that on numerous occasions during group therapy sessions, Defendants stated that Diane was the victim of incest and ritual satanic abuse, and then invited Diane to tell group members the identity of her abusers. With this encouragement, Diane falsely stated that Plaintiffs committed incest and murder, and lead a satanic cult.

 Finally, during the summer of 1992, Defendants solicited money from other Genesis patients to help Diane hide from the cult. Diane has assumed a new identity and is no longer in Pennsylvania, and Plaintiffs have not seen or heard from her for more than two years.

 II. STANDARD FOR MOTION TO DISMISS

 A claim may be dismissed under Fed. R. Civ. P. 12(b)(6) only if the plaintiff can prove no set of facts in support of the claim that would entitle her to relief. See ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994). The reviewing court must consider only those facts alleged in the complaint and accept all of the allegations as true. See id.

 III. DISCUSSION

 Plaintiffs seek relief based on contract and tort theories of liability. I shall discuss these claims separately.

 A. Breach of Contract

 Plaintiffs allege that they formed a contract with Defendants to provide Diane with adequate mental health counseling, but that Defendants breached the agreement by providing her with substandard care. Defendants contend that this contract claim must be dismissed because it is really a negligence claim in disguise. I disagree.

 Significantly, Plaintiffs' contract claim is not based on allegations that Defendants provided Plaintiffs with inadequate care. Thus, this case is distinguishable from Pennsylvania cases *fn3" in which a plaintiff-client asserts both negligence and contract claims *fn4" based on the defendant's failure to provide the plaintiff with acceptable professional services. In such cases, courts have held that to state a distinct breach of contract claim, the plaintiff must allege that she "specifically instructed the defendant to perform a task that the defendant failed to perform, or . . . [that] the defendant made a specific promise upon which plaintiff reasonably relied to [her] detriment." Resolution Trust Corp. v. Farmer, 823 F. Supp. 302, 308 (E.D. Pa. 1993) (citing Sherman Indus., Inc. v. Goldhammer, 683 F. Supp. 502, 506 (E.D. Pa. 1988)); Hoyer v. Frazee, 323 Pa. Super. 421, 470 A.2d 990, 992-93 (Pa. Super. Ct. 1984). *fn5" The defendant's tort duty of care in such cases, which forms the basis of the plaintiff's negligence claim, arises from the professional relationship itself, and does not stem from the contract. To state a separate contract claim therefore, the plaintiff-client must allege that the defendant breached more than the non-contractually created duty of care.

 In this case, by contrast, Plaintiffs' contract claim is based on Defendants' alleged breach of a contractually-based promise to Plaintiffs to provide Diane with adequate care, rather than the violation of a duty arising from a direct professional service rendered to Plaintiffs. Moreover, even absent this important distinction, Plaintiffs have alleged that they specifically instructed Defendants to treat Diane for bulimia, and Defendants agreed to provide adequate treatment to Diane using therapy requiring Plaintiffs to separate from their daughter for two years. Thus, even if the law requiring a specific instruction or a specific promise applied in this case, I would conclude that Plaintiffs have adequately stated a contract cause of action. Accordingly, I shall not dismiss the contract claim.

 B. Negligence

 Plaintiffs allege that Defendants negligently implanted false memories in Diane, and that Plaintiffs suffered emotional distress as a result. Defendants assert that they owed no duty of care to Plaintiffs, and therefore Plaintiffs' negligence claim must be dismissed. Although I agree that the negligence claim must be dismissed, I disagree that Defendants owed Plaintiff no duty of care.

 Under Pennsylvania law, important policies designed to limit a professional's exposure to potentially unlimited negligence liability "require privity (an attorney-client or analogous professional relationship or a specific undertaking) to maintain an action in negligence for professional malpractice." Guy, 459 A.2d at 746 (emphasis added) (citing Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 (N.Y. 1931) (privity requirement avoids "liability in an indeterminate amount for an indeterminate time to an indeterminate class")). Pennsylvania law may, therefore, permit a plaintiff alleging only a specific undertaking to maintain a claim for professional negligence. *fn6" Even if a specific undertaking alone is not a sufficient prerequisite to maintaining such a claim, however, I predict that the Pennsylvania Supreme Court would conclude that a specific undertaking coupled with reasonably foreseeably harm to an identifiable third party is sufficient to maintain a claim for professional negligence.

 The Pennsylvania Supreme Court has held that where the policies underlying the privity requirement "pale in comparison to the harm at issue, . . . lack of privity does not bar a third party from maintaining a cause of action against a professional." DiMarco, 583 A.2d at 425 n.1 (concluding that a physician's duty of care extends to any third person whose health would be threatened by contact with a patient infected with a communicable disease). *fn7" See also Crosby v. Sultz, 405 Pa. Super. 527, 592 A.2d 1337, 1343 (Pa. Super. Ct. 1991) ("Physicians [must] protect third parties from harm which could be inflicted on such persons by the physicians' patients . . . if it was reasonably foreseeable that third persons would be harmed by the conduct of the physicians."). Cf. Guy, 459 A.2d at 755 (McDermott, J., dissenting) (noting that "the continued existence of privity as a defense to an action in negligence is on very thin ice," and that "the New York Court of Appeals has held that [the policy concerns expressed in Ultramares ] are inapplicable where the negligence of a professional is directed to a 'known' third party") (citation omitted).

 A careful review of Pennsylvania law, therefore, indicates that although a plaintiff generally must show a professional relationship to maintain a claim for professional negligence, the absence of such a relationship does not necessarily bar a plaintiff's recovery where the defendant's negligence causes substantial harm to an identifiable and readily determinable class of plaintiffs. Accordingly, although there may be some uncertainty whether a specific undertaking alone is sufficient to maintain a claim for professional malpractice, I predict that the Pennsylvania Supreme Court would conclude that in the absence of any other statutory duty of care, *fn8" a therapist owes a duty of reasonable care to a patient's parents, where (1) the therapist specifically undertook to treat the child for the parents; (2) the parents relied upon the therapist; (3) the therapist was aware of the parents' reliance; and (4) it was reasonably foreseeable that the parents would be harmed by the therapist's conduct. *fn9"

  Plaintiffs' allegations adequately meet this standard. Because Plaintiffs funded Diane's counseling sessions, and severed all contact with her after Defendants informed them that Diane would benefit from the Genesis therapy, I may fairly infer that Plaintiffs relied upon Defendants to provide adequate therapy for Diane, and that Defendants were aware of this reliance. Further, because Defendants allegedly negligently induced Diane to falsely believe that her father raped her, and that her parents murdered her twin brother, her child, and other small children during satanic rituals, it was reasonably foreseeable that Plaintiffs would be harmed by Defendants' conduct. Cf. Montoya v. Bebensee, 761 P.2d 285, 288-89 (Colo. Ct. App. 1988) (concluding that it is readily foreseeable that harm to a parent may result from negligent false accusations of child abuse); Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex. 1994) (stating that injury is almost certain to result when a parent is falsely accused of sexually abusing a child). *fn10" Accordingly, based on the allegations of the Complaint, I conclude that Defendants owed Plaintiffs a duty of reasonable care. *fn11"

 My inquiry does not end there, however, because Plaintiffs allege purely emotional injuries as a result of Defendants' negligence. Under Pennsylvania law, to state a claim for emotional distress damages, a plaintiff must allege physical injury resulting from defendant's tortious conduct. See Rolla v. Westmoreland Health Sys., 438 Pa. Super. 33, 651 A.2d 160, 163 (Pa. Super. Ct. 1994) (to state a claim for either intentional or negligent infliction of emotional distress, plaintiff must allege physical injury). With this recognized limitation in mind, I therefore predict that the Pennsylvania Supreme Court would conclude that a non-patient must also plead physical injury to recover emotional distress damages caused by a therapist's negligent conduct. *fn12" Because Plaintiffs have not alleged physical injury, I shall dismiss this claim but grant Plaintiffs leave to amend to allege physical injury, if any.

 C. Interference With Filial Relations

 The Complaint alleges that as a result of Defendants' conduct, Plaintiffs have been denied the comfort, aid, companionship, and support of their only child. However, Pennsylvania's courts have consistently refused to recognize a parent's direct cause of action for loss of filial consortium caused by the interference of a third party. See Jackson v. Tastykake, Inc., 437 Pa. Super. 34, 648 A.2d 1214 (Pa. Super. Ct. 1994); Wapner v. Somers, 428 Pa. Super. 187, 630 A.2d 885 (Pa. Super. Ct. 1993); McCaskill v. Philadelphia Hous. Auth., 419 Pa. Super. 313, 615 A.2d 382, 384-85 (Pa. Super. Ct. 1992); Steiner v. Bell Telephone Co., 358 Pa. Super. 505, 517 A.2d 1348, 1353 (Pa. Super. Ct. 1986) (citing Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (Pa. 1979); Quinn v. Pittsburgh, 243 Pa. 521, 90 A. 353 (Pa. 1914)). Accordingly, I shall dismiss this claim.

 D. Intentional Infliction of Emotional Distress

 Defendants assert that because Defendants owed no duty to Plaintiffs with regard to Diane's treatment, Plaintiffs' intentional infliction of emotional distress claim must be dismissed. Defendants' assertion cannot be true. Regardless of whether Defendants owed Plaintiffs any duty of care with respect to Diane's mental health counseling, Defendants had independent duties not to intentionally inflict emotional distress upon Plaintiffs. Because Defendants have not otherwise challenged the sufficiency of this claim, I shall not dismiss it at this time. Cf. Bartanus v. Lis, 332 Pa. Super. 48, 480 A.2d 1178 (Pa. Super. Ct. 1984) (allegations that defendant persuaded plaintiff's son to stay away from plaintiff by repeatedly telling son that plaintiff was unloving, a whoremaster, liar, and con artist, and that plaintiff's house was dirty, poisonous, and rat infested, sufficiently stated claim for intentional infliction of emotional distress).

 E. Defamation

 Plaintiffs allege that during group therapy sessions, Defendants made slanderous statements about Plaintiffs by stating that Diane was the victim of incest and satanic ritual abuse, and that Diane served as Defendants' "mouthpiece" when she later named Plaintiffs as her abusers. Defendants assert that Plaintiffs' defamation claim must be dismissed because the Complaint fails to allege that Defendants published any defamatory communication. I disagree.

 To state a claim for defamation, a plaintiff must allege (1) a defamatory communication; (2) pertaining to the plaintiff; (3) published by the defendant to a third party; (4) who understood that the communication pertained to the plaintiff and had a defamatory meaning; and (5) that resulted in plaintiff's injury. See Petula v. Mellody, 138 Pa. Commw. 411, 588 A.2d 103 (Pa. Commw. Ct. 1991); 42 Pa. Cons. Stat. Ann. § 8343 (1982). Although Plaintiffs have not alleged that Defendants specifically stated that Plaintiffs committed incest and murder, Plaintiffs have alleged that Defendants implanted in Diane false memories of severe childhood abuse, and in this way induced and encouraged Diane to publish Defendants' defamatory statements about her parents. See Restatement (Second) of Torts § 577 cmt. f (1977) ("One is liable for publication of defamation by a third person whom as his servant, agent, or otherwise he directs or procures to publish defamatory matter."). Further, Defendants' statements, although not specifically naming Plaintiffs, may sufficiently pertain to Plaintiffs based on the context in which they were made. See Weinstein v. Bullick, 827 F. Supp. 1193, 1199 (E.D. Pa. 1993) (defamed party need not be specifically named in a defamatory statement, however, "if she is pointed to by description or circumstances tending to identify her"). Accordingly, I shall not dismiss the defamation claim at this time.

 F. Intentional Misrepresentation

 Defendants similarly assert that because Defendants owed no duty to Plaintiffs with regard to Diane's treatment, Plaintiffs' fraud claim must be dismissed. Again, Defendants' assertion is an inadequate basis for dismissal. Because Defendants have not otherwise challenged the sufficiency of this claim, I shall not dismiss it at this time.

 H. Punitive Damages

 Defendants assert that the Complaint fails to allege conduct sufficiently extreme to warrant punitive damages. I disagree. Because Plaintiffs' "claim" for punitive damages involves factual issues that may not properly be resolved in a motion to dismiss, I shall not dismiss this prayer for relief at this time. Cf. Doe v. Kohn, Nast, & Graf, P.C., 862 F. Supp. 1310, 1329 (E.D. Pa. 1994) (noting that punitive damages "claim" involves factual issues that may not be resolved in a motion for summary judgment).

 An appropriate order follows.

 ORDER

 AND NOW, this 19th day of July 1995, it is hereby ORDERED that Defendants' Motion to Dismiss (Document No. 7) is GRANTED IN PART AND DENIED IN PART AS FOLLOWS:

 1. Plaintiffs' negligence claim (Count II) is DISMISSED WITHOUT PREJUDICE;

 2. Plaintiffs are granted leave to file an Amended Complaint on or before Friday, August 4, 1995, alleging facts, if any, supporting a negligence claim, as set forth in the accompanying memorandum;

 3. Plaintiffs' interference with filial relations claim (Count III) is DISMISSED WITH PREJUDICE;

 4. In all other respects, Defendants' motion is DENIED.

 BY THE COURT:

 JOHN R. PADOVA, J.


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