Houwman v. Gaiser

Filing 48

ORDER denying as moot 21 Motion for Discovery; denying 24 Motion to Exclude; granting in part and denying in part 26 Motion for Summary Judgment. Signed by Chief Judge Karen E. Schreier on 9/15/2011. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
GRANT HOUWMAN,
Plaintiff,
vs.
JON GAISER
Defendant.

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CIV. 10-4125-KES

MEMORANDUM OPINION
AND ORDER

Plaintiff, Grant Houwman, asserts claims of alienation of affections and
deceit against defendant, Jon Gaiser, and seeks compensatory and punitive
damages. Gaiser moves for summary judgment on Houwman’s claims. Docket
26. Houwman resists the motion and moves to commence discovery on his
punitive damages claim. Docket 21. Houwman also moves to exclude the expert
testimony of Dr. Susan Eleeson. Docket 24. Gaiser resists these motions. For
the reasons stated below, Houwman’s motion to exclude expert testimony is
denied, and Gaiser’s motion for summary judgment is granted in part and
denied in part.
BACKGROUND
In the light most favorable to Houwman, the nonmoving party on the
summary judgment motion, the pertinent facts are as follows:
Houwman and Brittney Houwman (Brittney) were married in September
2001. In 2006, Brittney was hired as a controller for MetaBank, where Gaiser

was her supervisor. Soon after Brittney was hired, Gaiser began to fantasize
about an affair with Brittney and wrote a pornographic story about an illicit
encounter between him and Brittney at the workplace. He shared this story
with Brittney after they began their affair. During the affair, Gaiser told Brittney
that “the attraction was there for me on day one.” Docket 29-2 at 5.
Starting in the spring of 2007 and continuing through September 2007,
Gaiser and Brittney engaged in a sexual and emotional relationship. Brittney
originally informed Houwman that the relationship started as an incident of
“date rape.” On a weekend when both Houwman and Gaiser’s wife were out of
town, Brittney hosted a gathering for her co-workers, including Gaiser. Gaiser
and Brittney created a plan where Gaiser would leave with the other guests and
then return so as not to raise suspicion. When he returned to the house, Gaiser
began consuming additional cocktails with Brittney and the pair began kissing
and fondling.
Gaiser and Brittney had discussed “hooking up” prior to that evening, but
they did not end up having sex. Docket 40-2 at 2. Brittney asked Gaiser to
sleep on the downstairs couch until he sobered up and could go home, but
Gaiser came to her marital bed. Once Gaiser climbed into bed with Brittney,
Brittney began to have her first panic attack. Gaiser helped Brittney calm down
and then left for home. Gaiser knew at the time that what he was doing was

2

wrong and felt guilt and fear, yet he would have engaged in sexual intercourse
with Brittney if the opportunity had arisen.
The next morning Gaiser called Brittney and asked her to come to his
home. Brittney agreed to come over because she wanted to maintain her
friendship with Gaiser, but she explicitly told Gaiser she would not engage in
sexual intercourse with him. In addition, Brittney was not attracted to Gaiser at
that time. Brittney went to Gaiser’s home where they spent the day together.
They napped together and then began kissing and fondling. Brittney did not
want to have sexual intercourse. She cried and pulled her panties up and
Gaiser told her, “We just need to get this out of our system this one time.”
Docket 40-3 at 3. Brittney stopped fighting Gaiser, and they had sex. Brittney
testified that she “wouldn’t consider the first time consensual.” Docket 40-3
at 3. Afterward, Brittney cried.
Beyond the first incidence of sexual intercourse, there was no additional
coerced sex, and the remainder of the affair was consensual. Brittney and
Gaiser began to send romantic and illicit e-mails through personal e-mail
accounts and continued to engage in sex. The pair shared, and subsequently
engaged in, their sexual fantasies.
Brittney and Houwman had a troubled marriage, but they had love for
each other before and during the affair. Brittney acknowledged that Houwman

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was the most important person in her life and that she loved Houwman, even
once the affair had begun.
Starting with the first night Gaiser came to Brittney’s bed, Brittney began
having panic attacks. Before that night, Brittney had never had panic attacks.
Once the affair began, Brittney’s emotional stability decreased. She believed
that Gaiser, in his supervisory role at work, took advantage of her emotional
instability. After the affair ended, Brittney had bouts of depression and anxiety,
and she consumed alcohol most nights.
After Brittney informed Houwman of the relationship, she filed a sexual
harassment discrimination claim against Gaiser. MetaBank hired an external
investigator to investigate the claim. The South Dakota Division of Human
Rights issued a finding of no probable cause for the sexual harassment claim,
but Gaiser was fired by MetaBank for engaging in a sexual relationship with his
inferior. As Gaiser acknowledged to Brittney, “good bosses probably wouldn’t
seduce their employees.” Docket 29-2 at 10. Houwman did not learn until after
the sexual harassment claim ended that the “the affair was entirely mutual and
[Brittney] had been perpetrating the lies.” Docket 29-4 at ¶ 20. Brittney and
Houwman attended marriage counseling with Dr. Susan K. Eleeson, who saw
them together as well as Brittney individually.
Brittney subsequently filed for divorce from Houwman in March 2009
and cited extreme cruelty and irreconcilable differences. Houwman filed a

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counterclaim and cited extreme cruelty and adultery. On August 13, 2010, the
circuit court granted a divorce to Houwman based on the ground of adultery.
On August 26, 2010, Houwman filed the present suit against Gaiser.
I.

Motion to Exclude Expert Testimony
Houwman argues that the testimony of Gaiser’s proposed expert witness,

Dr. Susan K. Eleeson, should be excluded because her opinions are unreliable
under Federal Rule of Evidence 702. Houwman claims this is because Brittney
was not fully forthcoming and did not tell Dr. Eleeson the truth.
Rule 702 of the Federal Rules of Evidence governs the admissibility of
expert testimony. Sancom, Inc. v. Qwest Comm. Corp., 683 F. Supp. 2d 1043,
1050 (D.S.D. 2010). The rule specifically provides:
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, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
Fed. R. Evid. 702. Using Rule 702, the trial judge becomes a “gatekeeper” who
screens evidence to ensure its reliability and relevance. Sancom, 683 F. Supp.
2d at 1050 (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589
(1993)). “The rule clearly is one of admissibility rather than exclusion.” Id.
(citing Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001)). An
expert’s opinion should be excluded “only if it is so fundamentally unsupported
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that it can offer no assistance to the jury.” Id. (citing Wood v. Minn. Mining &
Mfg. Co., 112 F.3d 306, 309 (8th Cir. 1997)).
The district court applies a three-part test when screening proposed
testimony for experts under Rule 702:
First, evidence based on scientific, technical, or other specialized
knowledge must be useful to the finder of fact in deciding the
ultimate issue of fact. This is the basic rule of relevancy. Second,
the proposed witness must be qualified to assist the finder of fact.
Third, the proposed evidence must be reliable or trustworthy in an
evidentiary sense, so that, if the finder of fact accepts it as true, it
provides the assistance the finder of fact requires.
Sancom, 683 F. Supp. 2d at 1051 (citing Lauzon, 270 F.3d at 686) (internal
citations and quotations omitted).
First, Dr. Eleeson’s specialized knowledge of human interaction and
expertise in marriage counseling would be useful to the finder of fact in this
case. Dr. Eleeson knows Houwman and Brittney well because she had
counseling sessions with Brittney over a period of 35 months, and she met with
both Brittney and Houwman 18 times. She was an insider to the Houwman
marriage prior to its dissolution and after the Gaiser affair, and she can help
the jury understand the marriage through an analysis of their marital problems
with a psychological or scientific lens. Dr. Eleeson would provide helpful
information as to whether Gaiser alienated Brittney’s affections.
Second, Dr. Eleeson is qualified in this specific area to help the fact
finder make its determination. Dr. Eleeson’s curriculum vitae details her

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education, background, and professional experience in the area of psychology.
Docket 43-1. Dr. Eleeson has both a doctorate in psychology and philosophy
as well as a master’s degree in counseling and a bachelor’s degree in fine arts.
Id. She has been practicing professionally since 1998, but she gained
experience through clinical hours long before that time. Id. Dr. Eleeson is a
member of the American Psychological Association and the South Dakota
Psychological Association. Id. She participated in numerous professional
presentations and published pertinent literature on the topics of women’s
health, psychology, and related issues. Dr. Eleeson is qualified to offer her
opinion to the jury.
Finally, not only is Dr. Eleeson qualified in the area of psychology, but
she also has reliable knowledge of this case. Dr. Eleeson had counseling
sessions with Brittney over a period of 35 months and met often with both
Brittney and Houwman; therefore, she has psychological insight to both their
thought processes and emotional well-being. Houwman claims that
Dr. Eleeson’s opinion is unreliable because Brittney did not tell Dr. Eleeson the
whole truth immediately about the affair, but Dr. Eleeson knew the majority of
the pertinent facts. Dr. Eleeson knew of the affair between Gaiser and Brittney,
she had counseling sessions with both Brittney and Houwman, and she based
her opinion on what she was told, what she observed, and her training and
experience. Dr. Eleeson said in her opinion letter that she was “simply

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organizing and condensing what was told to me, what I observed, and my
training as an expert in human behavior.” Docket 43-2 at 3. Her knowledge is
reliable.
Houwman also claims that Dr. Eleeson is impermissible as an expert
witness because the state court judge in the Houwmans’ divorce action found
portions of her opinion unreliable. First, that opinion is not binding on this
court. Second, the circuit judge was not “concerned” about Dr. Eleeson’s
opinion about Brittney and Houwman, the problems in the marriage, or how
Brittney’s conduct affected her. Instead, that judge was concerned with
Dr. Eleeson’s lack of qualification to opine about child custody. The judge
concluded, “Eleeson’s observations about the litigants give some insight that
assists the court . . . .” Docket 43-3 at 23-24.
As a medical professional, Dr. Eleeson would give the jury valuable
guidance to the health of the Houwman marriage and the impact of Gaiser
upon it—a critical issue in this case. Dr. Eleeson’s testimony will not be
excluded because Rule 702 is one of inclusion, and her opinion is relevant,
reliable, and would help the jury understand the issues in this case. Moreover,
Houwman will have ample “opportunity to expose the testimony’s weaknesses
through vigorous cross-examination and the presentation of contrary evidence.”
In re Prempro Products Liability Litigation, 586 F.3d 547, 567 (8th Cir. 2009)
(citing Daubert, 509 U.S. at 596).

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II.

Summary Judgment
STANDARD OF REVIEW
Summary judgment is proper “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a).1 “A party asserting that a fact cannot
be . . . disputed must support the assertion” either by “citing to particular parts
of materials in the record,” or by “showing that the materials cited do not
establish the . . . presence of a genuine dispute[.]” Fed. R. Civ. P. 56(c)(1)(A)-(B).
The movant can also establish the absence of a disputed material fact by
showing “that an adverse party cannot produce admissible evidence to support
the fact.” Fed. R. Civ. P. 56(c)(1)(B). The burden is initially placed on the moving
party to establish the absence of a genuine issue of material fact and that the
party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986) (“[A] party seeking summary judgment always bears the
initial responsibility of . . . demonstrat[ing] the absence of a genuine issue of
material fact.”) (internal quotations omitted).
Once the moving party has met its initial burden, the nonmoving party
must establish “that a fact . . . is genuinely disputed” either “by citing to
particular parts of materials in the record,” or by “showing that the materials

1

Rule 56 was amended April 28, 2010, effective December 1, 2010. The
comments to the 2010 amendments make clear, however, that the “standard
for granting summary judgment remains unchanged.”
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cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P.
56(c)(1)(A)-(B). For purposes of summary judgment, the facts, and inferences
drawn from those facts, are “viewed in the light most favorable to the party
opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655
(1962)). In determining whether a genuine issue for trial exists, the court
applies the standard and burden associated with the applicable substantive
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, (1986) (“The judge's
inquiry, therefore, unavoidably asks whether reasonable jurors could find by a
preponderance of the evidence that the plaintiff is entitled to a verdict[.]”).
South Dakota substantive law applies to Houwman’s claims because this
case is before the court on the basis of diversity. Hammonds v. Hartford Fire Ins.
Co., 501 F.3d 991, 996 n.6 (8th Cir. 2007) (“We apply South Dakota
substantive law because this diversity action was brought in the District of
South Dakota, and the district court sitting in diversity applies the substantive
law of the state in which it is located.”) (citing Erie R.R. Co. v. Tompkins, 304
U.S. 64 (1938)).

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DISCUSSION
A. Alienation of Affections
Houwman asserts an action for the alienation of his former wife’s
affections. The tort of alienation of affections is codified under SDCL 20-9-7.
The judicially created elements of an alienation of affections claim are:
1. Wrongful conduct by the defendant with specific intent to
alienate one spouse’s affections from the other spouse (such
intent may develop at any point during the adulterous
relationship);
2. Loss of affection or consortium; and
3. A causal connection between such intentional conduct and
loss.
State Farm Fire & Cas. Co. v. Harbert, 741 N.W.2d 228, 235-36 (S.D. 2007)
(citing Pickering v. Pickering, 434 N.W.2d 758, 762-63 (S.D. 1989)).
Gaiser contends that there are no material questions of fact and he
should be awarded summary judgment for three reasons: (1) Gaiser did not
have specific intent to entice the affections of Brittney from Houwman, (2) there
was no lost affections between Houwman and Brittney, and (3) there was no
causal connection between the affair and Brittney’s loss of affections for
Houwman.

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1.

Specific Intent to Entice the Affections

The first prong of an alienation of affections claim is showing that the
defendant acted with wrongful conduct “with specific intent to alienate one
spouse’s affections from the other spouse.”2 Harbert, 741 N.W.2d at 236. “[T]he
specific intent to alienate affections is not required to be present ‘from the
outset’ of the affair.” Id. at 235 (citation omitted). “Rather, the specific intent to
alienate one spouse’s affections from the other spouse may develop at any point
during the adulterous relationship.” Id.
There is no dispute that Gaiser knew that Brittney was married to
Houwman. There is evidence that Gaiser was attracted to Brittney and engaged
in sexual intercourse with Brittney. There is also evidence that Gaiser wrote
pornographic stories about sexual intercourse with Brittney in the office setting

2

In Kebede v. Hilton, 580 F.3d 714 (8th Cir. 2009), the Eighth Circuit
Court of Appeals stated that “actual intent to alienate the affection of the
spouse of another need not necessarily be shown if defendant’s conduct is
inherently wrong and tends to, and does, have that effect.” Id. at 716
(alteration, internal quotations, and citations omitted). The decision in Kebede
relied on prior Eighth Circuit precedent that relied on a 1956 South Dakota
case and did not address the more recent 2007 opinion of Harbert, which
explicitly held that an alienation of affections claim requires the “specific intent
to alienate one spouse’s affections from the other spouse.” 741 N.W.2d at 235.
This court is bound by the South Dakota Supreme Court’s holding as to the
elements of the alienation of affections claim because this case is before the
court on the basis of diversity jurisdiction. See Bockelman v. MCI Worldcom,
Inc., 403 F.3d 528, 531 (8th Cir. 2005) (“[W]e are bound by the decisions of the
Missouri Supreme Court regarding issues of substantive state law.”); HawkeyeSec. Ins. Co. v. Davis, 277 F.2d 765, 769 (8th Cir. 1960) (“In diversity cases it is
our duty to apply state law as determined by state appellate courts . . . . [W]e
must follow the rule of law there announced.”).
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before the sexual relationship began. Furthermore, e-mail exchanges show
Gaiser professing his love to Brittney. For example, on July 9, 2007, Gaiser
wrote: “I know I love you deeply. I think you love me, too. I hate that I do,
because it has really screwed some things up in my life. On the other hand - - :)
- - it brought you and me closer, which I cherish.” Docket 29-2 at 15. Viewing
this evidence in the light most favorable to the nonmoving party, and drawing
all reasonable inferences in favor of the nonmoving party, the court finds that
the jury could reasonably conclude that Gaiser acted with the specific intent to
alienate Brittney’s marital affections from Houwman.
Despite Gaiser’s claim to the contrary, Houwman does not have to prove
that Gaiser intended that Brittney and Houwman would end their marriage. As
explained above, Houwman must show that Gaiser intended to alienate the
affections of that marriage. Also, the fact that Gaiser repeatedly told Brittney he
would not end his marriage does not establish as a matter of law that Gaiser
did not otherwise intend to gain Brittney’s affections at Houwman’s expense.
See Pickering, 434 N.W.2d at 763 (finding a material issue of fact “as to whether
[the defendant] acted purposefully to entice [the wife’s] affections away from
[the husband]”). Houwman has identified sufficient evidence to allow the jury to
reasonably conclude that Gaiser intended to alienate those marital affections.

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2.

Loss of Affections

Gaiser also contends that there was no loss of affections between Brittney
and Houwman because Brittney never had affections for Houwman. With
regard to this second element, the South Dakota Supreme Court has recognized
that “if it appears there was no affection to alienate, recovery is precluded.”
Pankratz v. Miller, 401 N.W.2d 543, 546 (S.D. 1987). As a result, there may not
be a loss of affections when the straying spouse did not love or express
affections toward the other spouse prior to the intervening person’s actions. Id.
at 546-47 (recognizing that there was no loss of affections based, in part, on the
straying spouse’s testimony, “I have not loved [my spouse] for about four, five
years now”). The presence of affection between the husband and wife can be
inferred, however, from such things as remorseful letters from a straying wife,
testimony from the husband that there was love, and testimony from family and
friends that the couple “had a wonderful marriage.” Veeder v. Kennedy, 589
N.W.2d 610, 617 (S.D. 1999).
Brittney told Gaiser during the affair that Houwman was the most
important person in her life. Brittney also testified that she loved her husband
before Gaiser’s actions allegedly alienated her affections. In fact, Brittney
testified she still loved Houwman, even after she began her affair with Gaiser.
Gaiser relies on testimony from Brittney that she did not allow herself to love
Houwman as much as she had loved her first husband. But the fact that

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Brittney might not have loved Houwman as much as her first husband does not
mean she had no love and affection for Houwman. Viewed in the light most
favorable to Houwman, this evidence creates a material issue of fact as to
whether Brittney had affections for Houwman before the affair. Thus, there is
sufficient evidence for the jury to reasonably conclude that Houwman lost the
affections of Brittney.
3.

Causality

Gaiser also argues that Houwman cannot establish a causal connection.
The third requirement for an alienation of affections claim is a causal
connection between the intentional conduct and the loss of affections. Under
South Dakota law:
Unless it is established that the defendant is the enticer or the one
who produced or brought about the alienation or separation, the
mere proof that one spouse and the defendant are maintaining
improper relations is not sufficient to support an action by the
other spouse for the alienation of his or her affections.
Pankratz, 401 N.W.2d at 547 n.9 (quoting Annot., 19 A.L.R.2d 471 § 2, at 483
(1951)).
There is evidence that Brittney began having panic attacks the first night
she was in a bed with Gaiser and those panic attacks continued. Brittney
suffered from other mental health issues during and following the affair and
considered herself emotionally unstable. There is evidence that this emotional

15

instability impacted her relationship with both her husband and her children
and also impacted her ability to communicate with her husband.
Moreover, in the divorce action between Houwman and Brittney, the
South Dakota Circuit Court granted the divorce to Houwman on the fault-based
ground of adultery based on the affair between Gaiser and Brittney. That the
affair was judicially determined as the cause of the divorce is probative evidence
on the issue of whether or not Gaiser’s conduct also caused the loss of
affections. Gaiser relies on Dr. Susan Eleeson to diminish the significance of
the divorce proceedings. But this would remain a question of fact for the jury to
determine as to whether Gaiser’s actions caused Houwman to suffer the loss of
Brittney’s affections. Thus, Gaiser’s motion for summary judgment on the
alienation of affections claim is denied.
B. Deceit
Gaiser also moves for summary judgment as to Houwman’s deceit claim.
In South Dakota, “[o]ne who willfully deceives another, with the intent to induce
him to alter his position to his injury or risk, is liable for any damage which he
thereby suffers.” SDCL 20-10-1. As used in SDCL 20-10-1, the definition of
deceit provides:
(1) The suggestion, as a fact, of that which is not true, by one who
does not believe it to be true;
(2) The assertion, as a fact, of that which is not true, by one who
has no reasonable ground for believing it to be true;

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(3) The suppression of a fact by one who is bound to disclose it, or
who gives information of other facts which are likely to mislead
for want of communication of that fact; or
(4) A promise made without any intention of performing.
SDCL 20-10-2. As the South Dakota Supreme Court recently acknowledged, “a
tort action for deceit requires proof that material, intentional
misrepresentations were made and that the plaintiff relied on them.” Arnoldy v.
Mahoney, 791 N.W.2d 645, 660 (S.D. 2010) (citing Littau v. Midwest
Commodities, Inc., 316 N.W.2d 639, 643 (S.D. 1982)). And the deceit statutes
“are declaratory of common law and comprehend an intent to mislead.” Id. at
660 (internal quotations and citation omitted).
Gaiser argues that there is no evidence that he had the required intent to
induce Houwman to “alter his position to his injury or risk.” Docket 28 at 6.
Houwman argues that there is sufficient evidence for the jury to find that
Gaiser’s actions, or inaction, amounted to deceit as defined in SDCL 20-10-2.
Houwman has not, however, identified any evidence that would allow for the
jury to reasonably conclude that Gaiser acted with the intent to induce
Houwman to alter his position. Indeed, the only evidence presented to this
court is that Gaiser’s alleged deceit was for the purpose of protecting his own
reputation. Docket 28 at 6.
Houwman objects to this fact as being taken out of context because his
testimony was meant to be an example of how he abused his authority role over

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Brittney. Docket 39 at 5. Assuming that Houwman is correct, it does not
change the fact that Gaiser’s intent behind his alleged deceit was to protect his
own reputation, not to induce Houwman to alter his position to his injury.
Moreover, even if Houwman did have the requisite intent, there is no evidence
in the record that would allow the jury to reasonably conclude that Houwman
relied on Gaiser’s alleged deceit. Summary judgment is therefore granted as to
the deceit claim because Houwman has failed to identify any evidence that
would allow the jury to reasonably conclude that Gaiser’s alleged deceit was
accompanied with the requisite intent and because there is no evidence that
would allow the jury to reasonably conclude that Houwman relied on Gaiser’s
alleged deceit.
C. Compensatory Damages
Gaiser claims that even if Houwman could prove the elements to
alienation of affections, Houwman’s damages are limited because the damages
related to the Houwmans’ subsequent divorce are not recoverable and not the
proximate result of any alienation of affections. Because this matter is before
the court on a motion for summary judgment, the only issue before the court is
whether Houwman has evidence of any damages. The specifics of whether
certain evidence is admissible on various categories of damages should be
addressed in motions in limine prior to trial.

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Alienation of affections is an action sounding in tort. The measure of
damages for torts is determined by SDCL 21-3-1, which provides, “[f]or the
breach of an obligation not arising from contract, the measure of damages,
except where otherwise expressly provided by this code, is the amount which
will compensate for all the detriment proximately caused thereby, whether it
could have been anticipated or not.” Id. Specifically referring to damages for
alienation of affections claims, the South Dakota Supreme Court recognized,
[t]he plaintiff in an action for alienation of affections may recover
for all direct and proximate losses occasioned by the tort, including
loss of love and consortium, and he or she may recover for any
physical pain, mental agony, lacerated feelings, wounded
sensibilities, humiliation, blow to honor, hurt to family life,
suspicion cast on offspring, etc.
Morey v. Keller, 85 N.W.2d 57, 59 (S.D. 1957) (citing 27 Am. Jur. Husband and
Wife § 543). Because Houwman has evidence that he suffered mental agony,
wounded sensibilities, humiliation, a blow to his honor, and a hurt family life,
Gaiser is not entitled to summary judgment due to lack of any damages.
D.

Punitive Damages

Gaiser moves for summary judgment on Houwman’s claim of punitive
damages and to deny Houwman’s Motion to Commence Discovery and Present
Punitive Damages Claim at Trial. Docket 21. Gaiser argues that the facts and
evidence do not support a claim for punitive damages because he did not act
willfully, wantonly, or maliciously. Gaiser also argues that additional proof of

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malice beyond the malice necessary to prove the tort of alienation of affections
must be shown by Houwman.
Under South Dakota law,
[i]n any action for the breach of an obligation not arising from
contract, where the defendant has been guilty of oppression, fraud,
or malice, actual or presumed, . . . committed intentionally or by
willful and wanton misconduct, in disregard of humanity, the jury,
in addition to the actual damage, may give damages for the sake of
example, and by way of punishing the defendant.
SDCL 21-3-2. “Malice is an essential element of a claim for punitive damages[.]”
Isaac v. State Farm Mut. Auto. Ins. Co., 522 N.W.2d 752, 761 (S.D. 1994).
Malicious conduct may be actual or presumed. Actual malicious conduct “is a
positive state of mind, evidenced by a positive desire and intention to injure one
another, actuated by hatred or ill will towards that person.” Case v. Murdock,
488 N.W.2d 885, 891 (S.D. 1992). Presumed malicious conduct, conversely,
exists “when a person acts willfully or wantonly to the injury of others” and
“implies that the act complained of was conceived in the spirit of mischief or
criminal indifference to civil obligations.” Id. (citing Dahl v. Sittner, 474 N.W.2d
897, 900 (S.D. 1991)). Malicious conduct can also be proven with a showing of
“a disregard for the rights of others.” Id. (citing Flockhart v. Wyant, 467 N.W.2d
473, 475 (S.D.1991)).
The South Dakota Supreme Court has defined willful and wanton
misconduct as an action that “demonstrates an affirmative, reckless state of

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mind or deliberate recklessness on the part of the defendant.” Tranby v.
Brodock, 348 N.W.2d 458, 461 (S.D. 1984). In addition,
[t]here must be facts that would show that defendant intentionally
did something . . . which he should not have done or intentionally
failed to do something which he should have done under the
circumstances that it can be said that he consciously realized that
his conduct would in all probability, as distinguished from
possibility, produce the precise result which it did produce and
would bring harm to the plaintiff.
Id.
Gaiser knew Brittney was married to Houwman before he began an
extramarital affair with her. Gaiser knew he and Brittney were “crossing lines”
they should not be crossing when they began to flirt, and he knew as her
supervisor that a relationship would be complicated, but he chose to begin and
continue the relationship anyway. Specifically, Gaiser admitted that he knew
the right thing to do was to stop his relationship with Brittney. The jury could
find that Gaiser consciously understood that in all probability his actions of
continuing a relationship with a married woman would harm her marriage or
even lead to its dissolution. Gaiser understood the risks, recognized the
wrongfulness of the conduct, and chose to forge ahead. There is sufficient
factual evidence for a jury to conclude that Gaiser acted with a reckless state of
mind or that his actions amounted to presumed malicious conduct. Presumed
malicious conduct can be shown by “a disregard for the rights of others,” and it

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is probable Gaiser disregarded the rights of Houwman and Brittney when he
began and continued a wrongful affair.
Gaiser claims that the punitive damages claim may continue only if there
is “evidence of circumstances of aggravation beyond the proof of malice
necessary to satisfy the elements of the tort to sustain a recovery of
compensatory damages.” Docket 27 at 30. This is not the law of South Dakota.
See Veeder v. Kennedy, 589 N.W.2d 610 (S.D. 1999) (following the jury’s award
of $200,000 in punitive damages in an alienation of affections claim, the South
Dakota Supreme Court did not note any additional factors necessary to prove
malice and affirmed the award). Further, in Jones v. Swanson, 341 F.3d 723,
736 (8th Cir. 2003), the Eighth Circuit Court of Appeals affirmed the district
court’s decision to deny the defendant’s motion for judgment as a matter of law
on the jury’s award of punitive damages when the court was sitting in diversity
and applying South Dakota law in an alienation of affections claim.
Houwman claims that his burden is surmounting SDCL 21-1-4.1, which
provides that the burden in proving punitive damages is to show a prima facie
case for punitive damages through clear and convincing evidence of a
reasonable basis for the claim. Docket 22. This is not the case. In Amman v.
Masse-Ferguson, Ltd., 933 F. Supp. 840 (D.S.D. 1996), the district court
determined this statute does not apply to federal courts sitting in diversity
because it is purely procedural and conflicts with the federal rules of evidence.

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Therefore, the statute’s requirement of a hearing before commencing discovery,
as well as the statute’s language, does not apply to this action in federal court.
Viewing the evidence in the light most favorable to the nonmoving party
and drawing all reasonable inferences in favor of the nonmoving party, there is
sufficient evidence for the jury to reasonably conclude that Gaiser acted
willfully, wantonly, or maliciously such that punitive damages would be
appropriate.
CONCLUSION
Dr. Eleeson’s expert testimony and opinion is admissible because the
testimony would assist the trier of fact in its determination, she is sufficiently
qualified to offer her opinion, and her knowledge is reliable. Thus, plaintiff’s
motion to exclude her testimony is denied. There is sufficient factual basis for
the jury to conclude that Gaiser did alienate Brittney’s affections, so the motion
for summary judgment on that claim is denied. There is insufficient evidence
that Gaiser intended to deceive Houwman, so the motion for summary
judgment as to the deceit claim is granted. There is evidence that Houwman’s
damages from his divorce could be the actual and proximate loss resulting from
Gaiser’s tortious conduct, so the motion for summary judgment is denied as to
that claim. Finally, the jury could conclude that Gaiser acted maliciously or
willfully and wantonly such that punitive damages would be appropriate.
Summary judgment is denied on the punitive damages claim. Houwman is not

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precluded by South Dakota procedural law from commencing discovery on the
punitive damages claim.
Accordingly, it is
ORDERED that the motion to exclude expert Dr. Susan Eleeson (Docket
24) is denied, and the motion to commence discovery is denied as moot (Docket
21);
IT IS FURTHER ORDERED that the motion for summary judgment
(Docket 26) is granted as to the deceit claim; and
IT IS FURTHER ORDERED that the motion for summary judgment is
denied as to the alienation of affections claim, the compensatory damages
claim, and the punitive damages claim.
Dated September 15, 2011.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

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