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TUMAN v. GENESIS ASSOCS.

April 25, 1996

KENNETH J. TUMAN and JOAN E. TUMAN
v.
GENESIS ASSOCIATES; PATRICIA A. MANSMANN; AND PATRICIA A. NEUHAUSEL



The opinion of the court was delivered by: PADOVA

 Padova, J.

 April 25, 1996

 Plaintiffs Kenneth J. and Joan E. Tuman instituted this suit against two mental health professionals, Defendants Patricia A. Mansmann and Patricia A. Neuhausel, and their corporate practice, Defendant Genesis Associates, alleging that Defendants breached a contract and committed various tortious acts in treating Plaintiffs' daughter, Diane Tuman, a non-party to this action. *fn1" Presently before the Court are Defendants Neuhausel's and Genesis Associates' motion for summary judgment pursuant to Fed. R. Civ. P. 56 as to the claims against them, and Defendant Mansmann's separate motion for summary judgment as to Plaintiffs' claims against her. *fn2" For the reasons discussed below, I will grant in part and deny in part Defendants Neuhausel's and Genesis Associates' motion, and grant Defendant Mansmann's motion.

 I. BACKGROUND AND PROCEDURAL HISTORY

 Plaintiffs filed this lawsuit on Sept. 21, 1994, raising state law contract and tort claims. Plaintiffs allege that they entered into a contract with Defendants in 1990 for Defendants to provide mental health therapy to their daughter, Diane Tuman, then 20 years old, to treat Diane for bulimia and other emotional problems. Defendants treated Diane for a two-year period from 1990 to 1992. Plaintiffs further allege that Defendants provided Diane with substandard care and that the treatment methods Defendants employed with Diane deviated from good and accepted practices in the mental health field. *fn3"

 In summary, Plaintiffs allege the following. Defendants required Plaintiffs to "detach" from Diane for a two-year period, during which time Plaintiffs could not communicate with Diane. During the course of her therapy, Defendants implanted "false memories" in Diane that Plaintiffs sexually assaulted Diane and routinely performed bizarre satanic rituals, including murdering children. Defendants fostered these beliefs in Diane by, for example, stating in group therapy sessions that Diane had been subject to sexual and satanic ritualistic abuse and then urging Diane to identify her abusers. Defendants encouraged Diane to believe these "memories," despite the fact that Defendants never attempted to independently verify them. Plaintiffs claim that Diane's mental condition deteriorated significantly while treating with Defendants. Moreover, Diane, believing that Plaintiffs are dangerous, fled the area, assumed a new identity, and broke off contact with Plaintiffs; as of the filing of this lawsuit, Plaintiffs had not seen or spoken with Diane in more than two years.

 Defendants subsequently filed a motion to dismiss Plaintiffs' suit. Applying Pennsylvania law, *fn4" I denied Defendants' motion with respect to all but two of Plaintiffs' causes of action in July 1995. 894 F. Supp. 183 (E.D. Pa. 1995). *fn5" The surviving counts of Plaintiffs' Amended Complaint raise claims against all three Defendants for: (1) negligence; (2) breach of contract; (3) defamation; (4) intentional infliction of emotional distress; (5) misrepresentation; and (5) punitive damages. The parties have now completed discovery, and the case is scheduled for trial next month.

 II. STANDARD OF REVIEW

 Fed. R. Civ. P. 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show 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." Fed. R. Civ. P. 56(c). An issue is "genuine" only if there is sufficient evidence with which a reasonable jury could find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). Furthermore, bearing in mind that all uncertainties are to be resolved in favor of the nonmoving party, a factual dispute is only "material" if it might affect the outcome of the case. Id. Rule 56(c) directs summary judgment "after adequate time for discovery . . . against a party who fails to make a showing sufficient enough to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 III. DISCUSSION

 A. Negligence Claim

 Plaintiffs contend that through negligent treatment of Diane, Defendants breached their duty of care to Plaintiffs *fn6" and thereby caused harm to them. Specifically, Plaintiffs assert that Defendants were negligent because they implanted and/or fostered false memories in Diane of sexual and satanic ritualistic abuse by her parents without ever attempting to ascertain whether these allegations were true, and then terminated therapy with Diane at a time when these beliefs were entrenched in Diane's mind. Plaintiffs contend that because Diane has severed all contact with them and has told others, including the police, that Plaintiffs engage in such practices, Plaintiffs have suffered severe emotional distress which has manifested itself in the form of depression, anxiety, sleeplessness, weight gain, hypertension, and sexual dysfunction.

 Defendants move for summary judgment on the negligence claim, asserting four separate grounds. First, the claim is time-barred. Second, Plaintiffs will be unable to establish at trial that Defendants' methods deviated from good and accepted practices in the mental health field, because Plaintiffs' expert testimony is inadmissible as a matter of law. Third, Defendant Mansmann argues that Plaintiffs will be unable to prove at trial that the alleged deviation in Defendants' treatment of Diane caused Plaintiffs' alleged injuries, because Plaintiffs' expert report does not opine as to a causal link between the deviation and the alleged physical injuries. Fourth and finally, Defendant Mansmann asserts that Plaintiffs' negligence claim must fail because Pennsylvania courts only recognize a cause of action for negligent infliction of emotional distress in "bystander" cases. Defendant Mansmann also moves separately for summary judgment as to the negligence claim against her, asserting that there is no evidence that she specifically undertook to treat Diane for Plaintiffs or that she was involved in a therapeutic relationship with Diane. I will address each of these arguments in turn.

 1. Is the claim time-barred?

 Plaintiffs' negligence claim is governed by the two-year statute of limitations set forth in 42 Pa.C.S.A. ยง 5524 (West 1995). "This two year period begins to run 'as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations.'" A. McD. v. Rosen, 423 Pa. Super. 304, 621 A.2d 128, 130 (Pa. Super. 1993) (citing Pocono Int'l Raceway v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468, 471 (Pa. 1983)). An individual asserting a claim must use "all reasonable diligence" to become informed of all the facts and circumstances possibly giving rise to a right of recovery, and then file his/her complaint before the limitations period has run. Id.

 Defendants argue that by July 1992 at the latest, Plaintiffs knew all the facts necessary to initiate suit against Defendants for malpractice and the other claims raised in this action. Alternatively, Defendants contend that Plaintiffs had sufficient knowledge of salient facts by July 1992 to impose on Plaintiffs a duty to investigate whether Defendants caused injury to them; Plaintiffs, however, failed to exercise reasonable diligence and, therefore, the discovery rule does not apply to toll the limitations period.

 In support of their argument, Defendants point to the following deposition testimony. Kenneth Tuman testified that events in the spring of 1992 led to the "culmination" in his thinking that something was "not right" about Defendants' treatment methods. Plaintiffs received a call from Diane that she had been hospitalized on an emergency basis for about ten days on the same day that Plaintiffs received a bill from the hospital. Upset that Defendants had not called them to tell them of Diane's emergency hospitalization, Plaintiffs called Defendant Neuhausel to find out more about why Diane had been hospitalized. Defendant Neuhausel refused to give them any information. K. Tuman dep. at 142-44. Also in the spring of 1992, Plaintiffs consulted a therapist, who expressed the view that it was wrong for Defendants to exclude Plaintiffs from Diane's therapy and that Plaintiffs should have been included in the process. K. Tuman dep. at 104-05, 361; J. Tuman dep. at 198-99. Frustrated that they had so little knowledge about Diane and the nature of her therapy, Plaintiffs stopped sending money to Diane to pay for her therapy that spring. K. Tuman dep. at 387-88; J. Tuman dep. at 196-97. *fn7"

 Then, in July 1992, Diane arrived at Plaintiffs' home, claiming that she was being pursued by members of a satanic cult and that she would have to flee because she was in danger. K. Tuman dep. at 9-10, 30. Plaintiff Kenneth Tuman testified that although he did not believe Diane's stories about the satanic cult, Plaintiffs helped Diane prepare to leave the area. K. Tuman dep. at 21-25, 31-32. After staying with Plaintiffs for approximately ten days, Diane left Plaintiffs' household, claiming that she had seen the cult members in the area. K. Tuman dep. at 366-67. Plaintiffs knew at that time that part of the money Diane used to flee from the Tumans' home came from "donations" from others in the Genesis network. K. Tuman dep. at 130-31. They also knew that Diane and Defendant Neuhausel had made a complaint to police in Pennsylvania about the alleged cult that was pursuing her. K. Tuman dep. at 106. Based on this, Plaintiff Kenneth Tuman testified that he knew that Defendant Neuhausel had to have some knowledge about Diane's flight. K. Tuman dep. at 107, 135. The day after Diane left, a New Jersey state police officer came to Plaintiffs' house to investigate a report that someone was after Diane. K. Tuman dep. at 71-74. *fn8" Plaintiffs never attempted to contact Defendant Neuhausel or otherwise investigate to determine Defendants' involvement in Diane's flight. K. Tuman dep. at 132-139.

 Plaintiffs contend that the statute of limitations did not start to run until January 1994. Plaintiffs point to their own deposition testimony where they testified that they did not learn that Diane was accusing them of abuse until they traveled to Colorado in November 1992 in an attempt to find Diane. K. Tuman dep. at 66-74; J. Tuman dep. at 369-73. Plaintiffs claim that even after the November 1992 trip, they had no reason to believe that Defendants had anything to do with Diane making these accusations against Plaintiffs. Plaintiffs learned for the first time in January 1994 that Diane had made similar accusations against them in her group therapy sessions at Genesis, when they attended a meeting of the False Memory Syndrome Foundation and met other former Genesis clients. K. Tuman dep. at 109, 117-18, 176, 398-99; J. Tuman dep. at 377-78. It was at this point in time that Plaintiffs argue they were on notice that Defendants had caused them injury.

 As an initial matter, it is important to separate two distinct issues: when Plaintiffs became aware, or reasonably should have been aware, that Defendants' treatment was harmful to Diane, as contrasted to when Plaintiffs knew or should have known that Defendants' actions were causing injury to Plaintiffs. Plaintiffs' deposition testimony indicates that they were aware in the spring and summer of 1992 that something was not right about Defendants' treatment methods and that Diane was unwell. Plaintiffs, however, do not seek to recover on their negligence claim for injuries suffered by Diane but, instead, for injuries allegedly inflicted on them by Defendants' treatment of Diane. *fn9" Specifically, Plaintiffs contend that Defendants' negligent treatment of Diane harmed Plaintiffs because it caused Diane to believe that her parents subjected her to sexual and satanic ritualistic abuse, prompting Diane to flee from her parents and make false reports about Plaintiffs to the police. This in turn led Plaintiffs to suffer great emotional distress.

 According to Plaintiffs' deposition testimony, when Diane was home in July 1992, family relations were good and they engaged in a number of activities together, such as going out to eat and playing tennis. J. Tuman dep. at 42. Plaintiffs and Diane attended a session together with the therapist who Plaintiffs had consulted about Diane's treatment; during that session Diane discussed her therapy at Genesis, her hospitalization that past spring, and issues of sexual abuse. K. Tuman dep. at 362-63; J. Tuman dep. at 66-67. And it was during her July 1992 visit that Diane told Plaintiffs that she had been sexually abused by an uncle when she was younger. K. Tuman dep. at 354-56. On this testimony, a factfinder could decide that in July 1992 Plaintiffs did not have reason to suspect that Defendants' treatment of Diane had caused Diane to believe that Plaintiffs were abusing her.

 On the record as a whole, I conclude that there is a genuine issue of material fact as to when Plaintiffs knew or reasonably should have known that they themselves were injured by Defendants' treatment of Diane. A reasonable factfinder could find that the earliest that Plaintiffs had knowledge or constructive knowledge was in November 1992. Alternatively, a factfinder could determine that Plaintiffs had sufficient knowledge by July 1992 to impose a duty on Plaintiffs to investigate whether Defendants caused injury to them, but that Plaintiffs exercised reasonable diligence in investigating Defendants' role. See Stauffer, 560 A.2d at 819 (holding that summary judgment should not be granted if there is a question of fact as to whether plaintiff exercised reasonable diligence in investigating the cause of his/her injury).

 Because I cannot conclude that the undisputed facts establish that the time it took for Plaintiffs to discover that they were injured by Defendants' actions was unreasonable as a matter of law, this claim must proceed.

 2. Admissibility of Opinion of Plaintiffs' Expert

 Defendants correctly note that Pennsylvania law requires Plaintiffs to introduce expert testimony to establish their claim that Defendants' actions deviated from the applicable standard of care. See Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888, 892 (Pa. 1990) (citation omitted); Hoffman v. Mogil, 445 Pa. Super. 252, 665 A.2d 478, 481 (Pa. Super. 1995) (citation omitted). Defendants contend that Plaintiffs will be unable to sustain this burden at trial because the report of their expert, Elliot Atkins, Ed.D., a licensed psychologist, indicates that he did not base his opinions on a review of Diane's treatment records or any other information about Defendants' treatment of Diane and her condition.

 Instead, Defendants argue that the report demonstrates that Dr. Atkins bases his opinion that Plaintiffs' treatment of Diane deviated from good and acceptable practices amongst mental health therapists almost exclusively on Plaintiffs' allegations, the allegations of nonparties who are suing Defendants in unrelated actions, and the findings of licensing boards in unrelated actions against Defendants. Because these sources are biased and unreliable, Defendants assert that the expert's opinions are inadmissible, citing in support Viterbo v. Dow Chemical Co., 826 F.2d 420, 423-24 (5th Cir. 1987) (holding that expert report was properly excluded by district court because it was based primarily on statements by plaintiff that defendant's product was only possible source of plaintiff's injuries) and Faries v. Atlas Truck Body Mfg. Co., 797 F.2d 619, 623-24 (8th Cir. 1986) (holding that district court properly excluded police officer's testimony as to cause of accident because officer's opinion was based solely on interview of one of the drivers involved in the accident).

 Plaintiffs point out that Defendants fail to fully list the materials which their expert reviewed, which include the depositions of Plaintiffs, Defendants, and individuals who participated in group therapy with Diane and Defendants; letters from Diane to Plaintiffs containing comments about her therapy with Defendants; reports made by Defendants Neuhausel and Diane to law enforcement officials; and literature written by Defendants Neuhausel and Mansmann about their treatment methods. Plaintiffs correctly argue that Viterbo and Faries do not apply here to preclude admission of their expert's opinion. The court in both of those cases excluded the expert's opinion because it relied almost exclusively on information from one source who was clearly biased. Viterbo, 826 F.2d at 423-24; Faries, 797 F.2d at 623-24. By contrast, Plaintiffs' expert in the instant case consulted various materials, including information provided by Defendants, in rendering his opinion.

 As the Viterbo court itself noted, "as a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's consideration." 826 F.2d at 422 (citation omitted). A court should only preclude expert testimony when the sources on which the expert relies are of "such little weight" that the expert's opinion is insupportable. Id. The reasoning behind this rule is that a "fundamentally unsupported" opinion offers no assistance to the trier of fact as is required by Fed. R. Evid. 702, and may be more prejudicial than probative and thus inadmissible pursuant to Fed. R. Evid. 403. Id. (citations omitted).

 The question thus presented is whether Dr. Atkins had so little reliable information about Defendants' treatment of Diane that his opinion is "fundamentally unsupported" and therefore should not be heard by the jury. After examining the report and the record as a whole, I cannot conclude at this time that Plaintiffs' expert opinion is "fundamentally unsupported" and, therefore, I decline to rule that the opinion is inadmissible.

 For example, Dr. Atkins reviewed Defendants' answer and deposition testimony, in which Defendants stated that Diane had multiple and severe emotional problems, to the point that she contemplated suicide, and that her stories about cults were most likely fabricated. Atkins rpt. at 11. Defendants also testified as to their methods for determining if their clients claims of abuse are based in reality. Atkins rpt. at 11-12. Atkins read the depositions of individuals who participated in group therapy sessions with Diane at Genesis. Atkins rpt. at 3. Dr. Atkins consulted an article and a book written by Defendants Neuhausel and Mansmann about their treatment methods, Atkins rpt. at 2, 7; Plaintiff Joan Tuman testified that Defendant Neuhausel referred and sold to Plaintiffs that same book at a meeting about Diane's treatment. J. Tuman dep. at 88. Dr. Atkins consulted two police reports in which Defendant Neuhausel told police, inter alia, that Diane was being treated by Defendants because she had been raised in a satanic cult, and that Defendants had terminated Diane's therapy at a Burger King restaurant because she was having contact with her parents. Atkins rpt. at 11, 16-17. Atkins had access to letters written by Diane to Plaintiffs, in which Diane stated, inter alia, that Defendants told her that they would not continue to treat her if she had contact with her parents. Atkins rpt. at 6. Dr. Atkins also interviewed Plaintiffs, and reviewed their deposition testimony and other documents prepared by Plaintiffs. Atkins rpt. at 1-2. Plaintiffs, in turn, have testified that they had four or five meetings with Defendant Neuhausel, in which Plaintiffs obtained some limited information about Diane's treatment. K. Tuman dep. at 86-92, 202, 215-16, 305-12, 316-23, 336-41; J. Tuman dep. at 81-93.

 From this review, I cannot conclude at this time that Dr. Atkins had so little reliable information about Defendants' treatment of Diane that his testimony would be inadmissible as a matter of law. This is not to say, however, that the Defendants cannot cross examine Dr. Atkins as to the reliability of his opinion given that he did not consult Diane's treatment records. *fn10" Defendants are free to cross-examine Dr. Atkins about the extent to which his opinion about Defendants' treatment of Diane relies on information that is unrelated to Diane's treatment. Defendants also may cross examine Dr. Atkins at length about the possible biases of the sources he ...


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