Lisnoff v. Stein, M.D.
Filing
28
MEMORANDUM AND ORDER granting in part and denying in part 22 Motion to Dismiss for Failure to State a Claim. Dr. Stein's motion to dismiss the 20 Amended Complaint is DENIED with respect to Counts I and II, and GRANTED with respect to Count III. So Ordered by Chief Judge Mary M. Lisi on 2/15/2013. (Duhamel, John)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
GABRIELLE LISNOFF,
Plaintiff,
v.
C.A. No. 12-197-ML
DR. MICHAEL STEIN,
Defendant.
MEMORANDUM AND ORDER
This diversity action arose from the publication of the book
“The Addict: One Patient, One Doctor, One Year” (the “Book”)
authored by the defendant, Dr. Michael Stein (“Dr. Stein”). The
Book recounts the battle of one of Dr. Stein’s patients1 with her
addiction to prescription drugs. The case is brought by Gabrielle
Lisnoff (“Lisnoff”), a New York resident and former patient of Dr.
Stein’s, who asserts that the Book was based, in large part, on
confidential disclosures she made to Dr. Stein during treatment
sessions. In addition to compensatory and punitive damages, Lisnoff
seeks a percentage of all future revenues received by Dr. Stein
that are derived from his authorship of the Book.
The matter
before the Court is Dr. Stein’s motion to dismiss Lisnoff’s first
1
The Author’s Note reflects that, although the patient “most
extensively” discussed in the Book was imbued with “some
experiences and characteristics that belong to other patients,” Dr.
Stein primarily sought to “portray a patient of mine, a young woman
whose story touched me deeply.” Michael Stein, The Addict: One
Patient, One Doctor, One Year. (HarperCollins 2009).
1
amended complaint for failure to state a claim upon which relief
may be granted, pursuant to Fed. R. Civ. P. 12(b)(6).
I. Factual Background and Procedural History
Dr. Stein is licensed to practice medicine in the State of
Rhode
Island
where
he
specializes
in
internal
and
geriatric
medicine. Complaint ¶ 4. Lisnoff began treatment with Dr. Stein in
late March 2005. Id. ¶ 8. Shortly thereafter, she was admitted to
a Suboxone maintenance program overseen by Dr. Stein, id. ¶ 9, in
the course of which she attended regular appointments with him
several times per month. Id. ¶ 10. According to the Complaint,
during those sessions, Lisnoff “was asked detailed questions by
[Dr. Stein] concerning her private life, romantic history, work
history, childhood and adolescence, and her relationships with
family members.” Id. ¶ 11.
In late March 2009, Lisnoff discovered the Book while doing
online research for a college class. Id. ¶ 12. Lisnoff purchased a
copy of the Book and read it. ¶ 13. The Book recounts Dr. Stein’s
treatment of “Lucy Fields,” whom he describes as one of his female
patients
who
sought
help
for
her
addiction
to
prescription
medications.
In her Complaint, Lisnoff asserts that “many aspects of the
stories contained in the book were taken from what she had told
[Dr. Stein] during her treatment sessions or were closely adapted
from private facts that she had confidentially shared with him
2
during her appointments.” Id. ¶ 14. According to Lisnoff, prior to
discovering the Book, she had been unaware that
Dr. Stein had
written a book based on her treatment. Id. ¶ 16.
Lisnoff also
states that she expected that her private conversations taking
place during treatment sessions with Dr. Stein would remain private
and confidential and that Dr. Stein “would not seek to profit from
those patient-physician conversations.” Id. ¶ 15. Lisnoff further
alleges that Dr. Stein “solicited information regarding her most
private,
embarrassing,
surreptitiously
and
obtain
traumatizing
material
for
memories
the
[Book].”
in
order
Id.
¶
to
17.
Following her discovery of the Book, Lisnoff continued to treat
with Dr. Stein for more than a year, through May 2010. Id. ¶ 4.
On March 16, 2012, Lisnoff filed a complaint against Dr. Stein
for (Count I) Intrusion upon Seclusion pursuant to R.I. Gen. Laws
§ 9-1-28.1(a)(1); (Count II) Appropriation of Name or Likeness
pursuant
to
R.I.
Gen.
Laws
§
9-1-28.1(a)(2);
(Count
III)
Unreasonable Publicity to One’s Private Life pursuant to R.I. Gen.
Laws § 9-1-28.1(a)(3); and (Count IV) Intentional Infliction of
Emotional Distress. Complaint (Docket # 1).
On May 29, 2012, Dr.
Stein moved for dismissal of the complaint pursuant to Fed. R. Civ.
P. 12(b)(6), (Docket # 10), to which Lisnoff objected on June 15,
2012 (Docket ## 14, 15).
On June 21, 2012, Dr. Stein replied to
Lisnoff’s objection (Docket # 16).
The Court conducted a hearing on Dr. Stein’s motion to dismiss
3
the complaint on August 15, 2012. Following the hearing, the Court
granted, in part, and denied, in part, Dr. Stein’s motion. Count II
was dismissed with prejudice, and Counts I, III, and IV were
dismissed without prejudice. (Docket # 18). Lisnoff was also
afforded an opportunity to file an amended complaint in order to
include additional facts to address certain concerns raised by the
Court regarding the sufficiency of Lisnoff’s pleadings.
On September 14, 2012, Lisnoff filed a first amended complaint
(the “Complaint”)(Docket # 20) containing several edits, additional
allegations,
and
including,
as
Exhibit
A,
a
table
comparing
passages from the Book to corresponding entries from Lisnoff’s
medical records. On October 29, 2012, Dr. Stein filed a motion to
dismiss the Complaint on essentially the same grounds he had raised
with respect to the original complaint. (Docket # 22). Lisnoff
responded with an objection on December 13, 2012 (Docket # 25), to
which Dr. Stein filed a reply on January 4, 2013. (Docket # 27).
II.
Standard of Review
The only issue for the Court to decide in a motion to dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
is “whether, construing the well-pleaded facts of the complaint in
the light most favorable to the plaintiffs, the complaint states a
claim
for
which
relief
can
be
granted.”
Ocasio-Hernandez
v.
Fortuno-Burset, 640 F.3d 1, 8 (1st Cir. 2011)(reviewing two recent
clarifications
by
the
United
States
4
Supreme
Court
of
what
constitutes an adequately stated claim).
In order to withstand a motion to dismiss, a complaint “‘must
contain sufficient factual matter ... to “state a claim to relief
that is plausible on its face.”’” Katz v. Pershing, LLC, 672 F.3d
64, 72-73 (1st Cir. 2012)(quoting Ashcroft v. Iqbal, 556 U.S. 662,
129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007)). The plaintiff is required to “include ‘factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Katz v. Pershing,
LLC, 672 F.3d at 73 (quoting Haley v. City of Boston, 657 F.3d 39,
46 (1st Cir.2011) (quoting Iqbal, 129 S.Ct. at 1949)).
In determining a motion to dismiss, the Court takes “the
complaint’s well-pled (i.e., non-conclusory, non-speculative) facts
as true, drawing all reasonable inferences in the pleader’s favor
and see if they plausibly narrate a claim for relief.” Schatz v.
Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir.
2012)(internal citations omitted). However, “statements in the
complaint that simply offer legal labels and conclusions or merely
rehash cause of-action-elements” must be isolated and ignored. Id.;
Rodriguez-Ramos v. Hernandez-Gregorat, 685 F.3d 34, 40 (1st Cir.
2012)(noting that the Court must “disregard statements in the
complaint that merely offer ‘legal conclusion[s] couched as ...
fact[]’ or ‘threadbare recitals of the elements of a cause of
5
action)(internal quotations omitted).
The Court may include in its analysis “(a) ‘implications from
documents’ attached to or fairly ‘incorporated into the complaint,’
(b) ‘facts’ susceptible to ‘judicial notice,’ and (c) ‘concessions’
in plaintiff's ‘response to the motion to dismiss.’ Schatz v.
Republican State Leadership Comm., 669 F.3d at 55-56 (citing
Arturet–Vélez v. R.J. Reynolds Tobacco Co., 429 F.3d 10, 13 n. 2
(1st Cir.2005); Haley v. City of Boston, 657 F.3d 39, 44, 46 (1st
Cir.2011)).
III. The Complaint
Generally, Lisnoff states that, while she was in treatment
with Dr. Stein, he “elicited private facts and stories from her and
probed into her personal affairs” and, without her knowledge or
permission, he then published a book about Lisnoff’s life and
history with drug addiction. Complaint ¶ 1. She further states that
she expected that her private conversations during the treatment
sessions would remain private and confidential and that Dr. Stein
“would
not
seek
to
profit
from
those
patient-physician
conversations.” Id. at ¶ 15. Lisnoff also alleges that Dr. Stein
“solicited information regarding her most private, embarrassing and
traumatizing memories in order to surreptitiously obtain material
for the book.” Id. at ¶ 17.
With
respect
to
her
claim
for
Intrusion
upon
Seclusion
pursuant to R.I. Gen. Laws § 9-1-28.1(a)(1)(Count I), Lisnoff
6
asserts that the disclosures she made to Dr. Stein
were made “in
the confines of [Dr. Stein’s] medical office, which she considered
to be a private space, and she would not have made such disclosures
if she had known that [Dr. Stein] was going to publish them in a
book he authored.” Complaint ¶ 20. Lisnoff also alleges that
numerous passages in the Book were taken from entries in her
medical records, as detailed in a chart (the “Chart”) attached to
the Complaint. (Docket # 20 Ex. A).2 Lisnoff reiterates that
allegation in her claim of Unreasonable Publicity to One’s Private
Life
pursuant
to
Complaint ¶ 25.
R.I.
Gen.
Laws
§
9-1-28.1(a)(3)(Count
II).
Finally, regarding her claim for intentional
infliction of emotional distress (Count III), Lisnoff asserts that
Dr. Stein published private facts which she had disclosed during
her treatment in the expectation that they would remain private;
that Dr. Stein failed to disclose he was going to publish such
facts; and that “after reading the book and realizing a substantial
portion of the stories contained therein were based upon private
facts disclosed by [Lisnoff] during her treatment sessions with
[Dr. Stein], she suffered severe emotional distress.”
Id. ¶¶ 28,
29, 31.
2
The referenced Chart contains a column of 17 separate passages
from the Book next to a column of corresponding entries from
Lisnoff’s medical records.
7
IV.
The Parties’ Positions
(A) The Motion to Dismiss
With respect to Count I, Dr. Stein points out that the
Complaint “contains no new allegations supporting a claim that [Dr.
Stein] intruded on the physical solitude or physical seclusion of
the plaintiff.” Def.’s Mem. 3 (Docket # 22-1).
Dr. Stein argues
that the allegations only underscore that Lisnoff’s alleged injury
arises from the publication of the Book, not from interactions
between the parties. Id.
He concludes that, because Lisnoff
alleges no physical intrusion and is not identifiable in the Book,
the publication is protected and the intrusion claim fails as a
matter of law. Id.
Regarding Count II, Dr. Stein asserts that Lisnoff again
“fails to allege that any reasonable reader did or would understand
that the [Book] was about Lisnoff. Id. He argues that “the critical
issue is whether a reasonable reader would understand” that the
character in the book was based on Lisnoff, not whether the Book
was inspired by, or based on, a particular person. Id. Dr. Stein
also suggests that, if the facts cited by Lisnoff were sufficient
to state a claim, “health and safety and social case studies that
provide important information to the public would suddenly become
actionable,” which is a restriction not permitted by Rhode Island
law or the First Amendment. Id. In his reply to Lisnoff’s objection
(Docket # 27), Dr. Stein reiterates that, in order to bring a claim
8
for a violation under 9-1-28.1(a)(3), Lisnoff must allege that a
reasonable person would understand that the facts disclosed in the
book were about Lisnoff.
Finally,
with
respect
to
Lisnoff’s
claim
of
intentional
infliction of emotional harm, Dr. Stein contends that (1) the claim
is duplicative and/or derivative; (2) Dr. Stein’s conduct was not
“extreme and outrageous;” and (3) the Complaint fails to allege
that Lisnoff suffered physical symptoms as result of Dr. Stein’s
conduct. Id. 18-19.
(B) Lisnoff’s Objection
Lisnoff re-emphasizes that she does not seek to preclude Dr.
Stein from selling the Book; rather, she seeks “damages for the
unauthorized publication of intimate details of her life which she
revealed to [Dr. Stein] during the course of her medical treatment
by him.” Pltf.’s Obj. 7 (Docket # 25).
With
respect to
her
claim
asserted
in
Count
I,
Lisnoff
concedes that “some invasion of a person’s physical solitude or
seclusion must have occurred.” Id. at 10. She contends, however,
that she, like any person of ordinary sensibilities, “had an
expectation that the medical offices where her consultations with
[Dr. Stein] occurred were private and that all occurrences therein
were protected by confidentiality.” Id. at 11. She also asserts
that she “would have never disclosed many of her private facts to
[Dr. Stein] in such elaborate detail had she been aware he would be
9
publishing a book about her without her permission or knowledge.”
Id.
Regarding Count II, Lisnoff rejects Dr. Stein’s contention
that the Rhode Island statute requires her to allege “that a
reasonable reader would understand that the Book or any part
thereof is about her.” Id. at 9. Lisnoff also suggests that Dr.
Stein
“utilized
private
facts
revealed
by
[her]
during
her
confidential treatment sessions as a means to compile notes for use
in [his] book.” Id. at 10.
Finally, in support of her claim for intentional infliction of
emotional distress, Lisnoff argues that this claim is valid - even
if it is deemed derivative of Counts I and II - because she has
sufficiently alleged those claims. Id. at 13. She also suggests
that, pursuant to Rule 8 of the Federal Rules of Civil Procedure,
she may “bring claims against [Dr. Stein] based on alternative
theories of liability.” Id. at 14. Lisnoff makes no allegations
that she has suffered any physical symptoms as a result of Dr.
Stein’s alleged conduct.
V.
Discussion
(A) Right to Privacy - R.I. Gen. Laws § 9-1-28.1(a)(1).
Section 9-1-28.1 was enacted in 1980, “making it ‘the policy
of this state that every person shall have a right to privacy.’”)
Pontbriand v. Sundlun, 699 A.2 856, 863 (R.I. 1997). Specifically,
Section 9-1-28.1(a) affords “protection to the four interests
10
encompassed
within
the
‘common
law
tort’
recognized
by
the
Restatement though not recognized as such in this state.” Id.
(citing Section 652A of the Restatement (Second) Torts). Section 91-28.1(a)(1)3 protects “[t]he right to be secure from unreasonable
intrusion upon one's physical solitude or seclusion.” Id. In order
to state a claim under that provision, a plaintiff must assert an
“invasion of something that is entitled to be private or would be
expected to be private,” Section 9-1-28.1(a)(1)(i)(A), and that the
invasion would be “offensive or objectionable to a reasonable man.”
Section 9-1-28.1(a)(1)(i)(B).
As
set
forth
explicitly
in
Section
9-1-28.1(a)(1),
an
individual has the right to be secure from unreasonable intrusion
upon one’s
physical
solitude
or
seclusion.
R.I.
Gen.
Laws §
3
R.I. Gen. Laws § 9-1-28.1(a)(1) provides as follows:
(a) Right to privacy created. It is the policy of this
state that every person in this state shall have a right
to privacy which shall be defined to include any of the
following rights individually:
(1) The right to be secure from unreasonable
intrusion
upon
one's
physical
solitude
or
seclusion;
(i) In order to recover for violation of this
right, it must be established that:
(A) It was an invasion of something that
is entitled to be private or would be
expected to be private;
(B) The invasion was or is offensive or
objectionable
to a
reasonable
man;
although,
(ii) The person who discloses the information
need not benefit from the disclosure.
11
9-1-28.1(a)(1).(Emphasis
added).
No
reasonable
expectation
of
privacy exists with respect to “activities taking place outside [an
individual’s] residence in a location visible to any passersby.”
Swerdlick v. Koch, 721 A.2d 849, 857 (R.I.1998)(rejecting claims of
invasion of privacy against defendants who had surveilled and
photographed certain activities occurring outside the plaintiffs’
home.)
The protection against an invasion of “one’s physical solitude
or seclusion” does not apply “when one ventures outside his or her
house into public view.” Swerdlick v. Koch, 721 A.2d at 857
(emphasis added). The Rhode Island Supreme Court in Swerdlick
specifically referred to commentary in the Second Restatement of
Torts, which explained that “a defendant is subject to liability
[for intrusion upon seclusion] only when he has intruded into a
private place, or has otherwise invaded a private seclusion that
the plaintiff has thrown about his person or affairs.”
Swerdlick
v. Koch, 721 A.2d at 857 n. 11 (quoting The Restatement (Second)
Torts, § 652B cmt.c, at 379-80 (1977)(providing examples)).
In DaPonte v. Ocean State Job Lot, Inc., the Rhode Island
Supreme Court noted that “once the person leaves the seclusion of
the home and enters the public domain, the burden is upon the party
alleging
an
unreasonable
intrusion
upon
his
or
her
physical
solitude or seclusion to establish that ‘thrown about his [or her]
person
or
affairs’
is
an
affirmative
12
seclusion
to
merit
an
objective expectation of privacy.” DaPonte v. Ocean State Job Lot,
Inc., 21 A.3d 248, 252 (R.I. 2011)(holding that a fleeting touch of
the plaintiff’s outer garment by her supervisor - while in a public
place - was insufficient to raise a privacy claim under Section 91-28.1(a)(1))(quoting Swerdlick v. Koch, 721 A.2d at 857 n. 11). As
an example of a “private seclusion thrown about a person in a
public place,” the DaPonte Court again relied on the commentary in
the Second Restatement of Torts, which further explained that
“‘[e]ven in a public place, *** there may be some matters about the
plaintiff, such as his underwear or lack of it, that are not
exhibited to the public gaze; and there may still be invasion of
privacy when there is intrusion upon these matters.’” DaPonte v.
Ocean State Job Lot, Inc., 21 A.3d at 252 n. 4.
Other cases interpreting Section 9-1-28.1(a)(1) established a
rightful
expectation
that
prescription
drug
records
be
kept
confidential and that their unauthorized disclosure was “offensive
or objectionable to a reasonable person.” Washburn v. Rite Aid
Corp., 695 A.2d 495, 500 (R.I. 1997).
On the other hand, in Pontbriant v. Sundlun, the Supreme Court
of Rhode Island rejected claims of bank depositors against the
Governor of Rhode Island and others for releasing the depositors’
account
information
to
the
media.
Because
there
were
“no
allegations in the complaint that the information possessed by the
Governor was acquired through any wrongful or improper means,” the
13
Court concluded that “the depositors have not stated a cause of
action
for
intrusion
under
§
9-1-28.1(a)(1).”
Pontbriand
v.
Sundlun, 699 A.2 at 863-864 (citing Harris by Harris v. Easton
Publishing Co., 335 Pa.Super. 141, 483 A.2d 1377 (1984) (no tort of
invasion of privacy shown because the facts published were not
obtained by intentional intrusion)).
Taking the facts alleged in the Complaint as true, and drawing
all reasonable inferences in Lisnoff’s favor, it appears that Dr.
Stein, a medical doctor of some experience, published a book that
was based, at least in significant part, on numerous confidential
disclosures of Lisnoff, one of his patients. From the submissions
of the parties, it appears that the writing and publication of the
Book occurred while Lisnoff was still in treatment with Dr. Stein
and that they occurred without Lisnoff’s knowledge until she
discovered the Book’s existence by chance.
The allegations raised in Lisnoff’s Complaint include that she
made certain “disclosures” to Dr. Stein “in the confines of [his]
medical office, which she considered to be a private space.”
Complaint ¶ 20.
She further asserts that “she would not have made
such disclosures if she had known that [Dr. Stein] was going to
publish them.” Id. Lisnoff also asserts that Dr. Stein solicited
information about her memories “in order to surreptitiously obtain
material for the book.” In other words, Lisnoff’s allegations
amount to an assertion that the therapy sessions in Dr. Stein’s
14
office constituted a “private seclusion” related to her person and
affairs, Swerdlick, 721 A.2d at 857, and that the information
obtained from her by Dr. Stein “was acquired through [a] wrongful
or improper means,” Pontbriand, 699 A.2 at 863-864.
As such, the Court is of the opinion that, construing the
facts
of
the
Complaint
in
the
light
most
favorable
to
the
plaintiff, Lisnoff’s allegations are sufficient to withstand Dr.
Stein’s motion to dismiss.
(B) Unreasonable Publicity to One’s Private Life
Pursuant
to
Section
9-1-28.1(a)(3)4,
an
individual
is
guaranteed “[t]he right to be secure from unreasonable publicity to
one’s private life.” R.I. Gen. Laws § 9-1-28.1(a)(3); Pontbriand v.
Sundlun, 699 A.2 at 864.
To establish that a fact is “private,” a plaintiff is required
4
R.I. Gen.
following:
Laws
§
9-1-28.1(a)(3)
affords
protection
for
the
The right to be secure from unreasonable publicity given to one's
private life;
(i) In order to recover for violation of this right, it must
be established that:
(A) There has been some publication of a private fact;
(B) The fact which has been made public must be one which
would be offensive or objectionable to a reasonable man
of ordinary sensibilities;
(ii) The fact which has been disclosed need not be of any
benefit to the discloser of the fact. R.I. Gen. Laws §
9-1-28.1(a)(3)
15
to “‘demonstrate that [she] actually expected a disclosed fact to
remain private, and that society would recognize this expectation
of privacy as reasonable and be willing to respect it.’” Lamarque
v. Centreville Sav. Bank, 22 A.3d 1136, 1140 (R.I. 2011)(quoting
Swerdlick v. Koch, 721 A.2d at 858). Put another way, “a privacy
claim must be ‘bona fide and of a type that a reasonable person
would expect to be observed.’” Swerdlick v. Koch, 721 A.2d at 858
(quoting Pontbriand v. Sundlun, 699 A.2d at 865)).
In her Complaint, Lisnoff alleges that Dr. Stein, while still
in a doctor-patient relationship with her, decided - without prior
notice to Lisnoff - to publish a book containing numerous facts
Lisnoff would recognize as private experiences she had previously
disclosed to Dr. Stein in a confidential therapy setting. Lisnoff
further asserts that the Book contains facts that she expected to
remain private and that numerous passages in the Book were taken
from entries in her medical records. The Court notes that Lisnoff
does not claim that the Book identifies her as “Lucy Fields” or
that any third party has recognized her as the patient on whom the
Book was based. However, the Court is of the opinion that Lisnoff’s
allegations that Dr. Stein published facts she reasonably expected
to remain private and confidential, when examined under the lenient
Rule 12(b)(6) standard, are sufficient to state a claim for which
relief can be granted.
16
(C) Intentional Infliction of Emotional Distress
Rhode Island recognizes a claim for intentional infliction of
emotional distress. Andrade v. Jamestown Housing Auth., 82 F.3d
1179, 1187 (1st Cir. 1996)(noting that the cause of action is
patterned after § 46 of the Restatement (Second) of Torts (1965)).
In
order
to
establish a
claim
for
intentional
infliction of
emotional distress, a plaintiff must prove “extreme and outrageous
conduct that intentionally or recklessly resulted in causing her
severe emotional distress.” Vallinoto v. DiSandro, 688 A.2d 830,
838 (R.I. 1997); Andrade v. Jamestown Housing Auth., 82 F.3d at
1187; Wright v. Zielinski, 824 A.2d 494, 499 (R.I. 2003)(“To prove
intentional infliction of emotional distress, the plaintiff must
allege and prove that the defendant intentionally or recklessly
engaged
in
extreme
and
outrageous
conduct,
resulting
in
the
plaintiff's severe emotional distress.”).
In addition, the plaintiff is required to allege and prove
“physical
symptomatology
resulting
from
the
alleged
improper
conduct.” Id.; Francis v. American Bankers Life Assur. Co. of
Florida, 861
A.2d
1040,
1046
(R.I.
2004)(“Both
the
torts of
negligent and intentional infliction of emotional distress require
that plaintiff allege and prove that medically established physical
symptomatology accompany the distress.”); Castellucci v. Battista,
847 A.2d 243, 249 (R.I. 2004)(stating that “physical symptomatology
is a required element” for a claim of intentional infliction of
17
emotional
distress.);
Vallinoto
v.
DiSandro,
688
A.2d
at
838(“[P]laintiff must prove physical symptomatology resulting from
the alleged improper conduct.”); Adams v. Uno Restaurants, Inc.,
794 A.2d 489, 492 (R.I. 2002)(Plaintiff must establish that “he or
she
experienced
physical
symptoms
of
their
alleged
emotional
distress.”); Hoffman v. Davenport-Metcalf, 851 A.2d 1083, 1089
(R.I. 2004)(plaintiff must prove physical symptomatology to prevail
on claim for intentional infliction of emotional harm); DiBattista
v. State, 808 A.2d 1081, 1089 (R.I. 2002) (claims of intentional
and negligent infliction of emotional distress could not survive
summary judgment motion where plaintiffs relied only on generalized
assertions of physical symptomatology in their amended complaint.);
Clift v. Narragansett Television L.P., 688 A.2d 805, 813 (R.I.
1996)(holding that defendant was entitled to summary judgment on
claim of intentional infliction of emotional distress in the
absence of any allegations of resulting physical symptomatology in
the complaint).
Lisnoff alleges in Count III that Dr. Stein’s conduct - the
publication of the Book, which contained private facts she had
confided to him during treatment - was “extreme and outrageous,”
and that it caused her to suffer “severe emotional distress.”
Complaint ¶¶ 30,31.
Although
Lisnoff
repeatedly
emphasizes
that
the
facts
published about her are offensive or objectionable and that the
18
publication of the Book has caused her to suffer severe emotional
distress, neither the Complaint nor Lisnoff’s memorandum refer to
any physical manifestations of her alleged distress. Even if every
fact asserted in the Complaint is taken as true, the complete
absence of any assertions that Dr. Stein’s alleged conduct resulted
in physical symptomatology - particularly where Lisnoff was given
an opportunity to flesh out the facts on which her claims were
based - cannot pass muster on a motion to dismiss pursuant to
Fed.R.Civ. P. 12(b)(6).
Conclusion
For the reasons stated herein, Dr. Stein’s motion to dismiss
the Complaint is DENIED with respect to Counts I and II, and
GRANTED with respect to Count III.
SO ORDERED.
/s/ Mary M. Lisi
Mary M. Lisi
Chief United States District Judge
February 15, 2013
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