IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
RUTH ADAMS, SHARON RIDDICK, )
and ALAN ROSENTHAL, )
)
Plaintiffs, )
v. )
) C.A. No. N15C-06-030 MMJ
ANDREW J. GELMAN, D.O., and ) CCLD
ANDREW J. GELMAN, D.O., P.A., )
)
Defendants. )
)
)
)
)
)
Submitted: November 12, 2015
Decided: January 28, 2016
Upon Defendants’ Motion to Dismiss
GRANTED
OPINION
John S. Spadaro, Esq. (Argued), John Sheehan Spadaro, LLC, Attorney for
Plaintiffs
John D. Balaguer, Esq. (Argued), and Lindsey E. Anderson, Esq., White and
Williams, LLP, Attorneys for Andrew J. Gelman, D.O.
Colin M. Shalk, Esq. (Argued), and Rachel D. Allen, Esq., Casarino Christman
Shalk Ransom & Doss, P.A., Attorneys for Defendant Andrew J. Gelman, D.O.,
P.A.
JOHNSTON, J.
PROCEDURAL AND FACTUAL CONTEXT
On May 17, 2013, Dr. Gelman conducted an Independent Medical Exam
(“IME”) on Plaintiff Sharon Riddick (“Riddick”). Dr. Gelman prepared a report in
connection with injuries Riddick sustained in an August 2012 auto collision.
Plaintiff Alan Rosenthal (“Rosenthal”) sustained a work-related injury in
January 2013. The worker’s compensation insurance carrier sent Rosenthal for
Defense Medical Examinations (“DME”) with Dr. Gelman in May 2013 and
October 2013. Dr. Gelman testified before the Industrial Accident Board (“IAB”)
regarding the DMEs.
In April 2014, Dr. Gelman reviewed Plaintiff Ruth Adams’ (“Adams”)
medical records in connection with injuries she sustained in a July 2012 auto
collision.
On June 2, 2015, Adams, Riddick, and Rosenthal (collectively “Plaintiffs”)
commenced this action against Dr. Gelman and his medical practice (collectively
“Defendants”). Plaintiffs contend that each has been victimized by Dr. Gelman’s
systematic and unethical behavior. Plaintiffs have asserted 14 Counts in the
Complaint, as follows:
Count Alleged Parties
I, II, III Common Law Fraud All Plaintiffs
IV, V Constructive/Equitable Fraud Riddick, Rosenthal
VI, VII Breach of Fiduciary Duty Riddick, Rosenthal
VIII, IX, X Statutory Consumer Fraud All Plaintiffs
XI, XII Battery Riddick, Rosenthal
2
XIII Racketeering All Plaintiffs
XIV Civil Conspiracy All Plaintiffs
On August 6, 2015, Defendants filed a Motion to Dismiss. Plaintiffs filed an
Answer to Defendants’ Motion to Dismiss on September 4, 2015, and Defendants
filed a Response on September 24, 2015.
STANDARD OF REVIEW
When reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court
must determine whether the claimant “may recover under any reasonably
conceivable set of circumstances susceptible of proof.”1 The Court must accept as
true all non-conclusory, well-pleaded allegations. 2 Every reasonable factual
inference will be drawn in favor of the non-moving party. 3 If the claimant may
recover under that standard of review, the Court must deny the motion to dismiss.4
Dismissal is granted only when “under no reasonable interpretation of the facts
alleged could the complaint state a claim for which relief might be granted.”5
ANALYSIS
Defendants’ Contentions
Defendants argue that Dr. Gelman enjoys absolute immunity for his medical
examinations and reports, and for his testimony before the IAB. Additionally,
1
Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).
2
Id.
3
Wilmington Sav. Fund. Soc’y, F.S.B. v. Anderson, 2009 WL 597268, at *2 (Del. Super.) (citing Doe v. Cahill, 884
A.2d 451, 458 (Del. 2005)).
4
Spence, 396 A.2d at 968.
5
Thompson v. Medimmune, Inc., 2009 WL 1482237, at *4 (Del. Super.).
3
Defendants assert that fraud is not an exception to absolute immunity, and that
absolute immunity applies to claims other than defamation.
Defendants also argue that Plaintiffs have failed to state a claim for common
law fraud. Defendants assert that Plaintiffs have not alleged that Dr. Gelman made
any representation to them. Defendants also assert that Plaintiffs cannot
demonstrate justifiable reliance on any statement made by Dr. Gelman. Further,
Defendants assert that the allegations in the Complaint do not meet the specificity
requirements of Superior Court Civil Rule 9(b).
As an IME/DME does not establish a fiduciary relationship, Defendants
argue that Plaintiffs’ claims for breach of fiduciary duty, and for constructive or
equitable fraud, fail. Specifically, Defendants assert that Dr. Gelman had no
physician-patient relationship with Plaintiffs.
Defendants also argue that Plaintiffs have failed to state a claim for statutory
consumer fraud as the alleged misrepresentation did not occur in connection with a
sale.
Defendants argue that Plaintiffs’ claims for battery fail because they were
not filed within the statute of limitations, and because Plaintiffs failed to state a
claim upon which relief may be granted.
Lastly, Defendants argue that Plaintiffs have failed to state a claim for
conspiracy.
4
Absolute Immunity
Absolute immunity is a common law rule that “protects from actions for
defamation statements of judges, parties, witnesses and attorneys offered in the
course of judicial proceedings so long as the party claiming the privilege shows
that the statements issued as part of a judicial proceeding and were relevant to a
matter at issue in the case.”6
To determine whether absolute immunity applies,
the Court must address the first prerequisite for claiming
the absolute privilege-whether the allegedly defamatory
statements in this case were made during the course of a
judicial proceeding, and thus arose in a privileged
context. If the occasion on which the statements were
made is privileged, the Court must then determine
whether the contents of the statements were pertinent to
this action.7
An in-court judicial proceeding is not necessary for absolute immunity to
apply. In Hoover v. Van Stone,8 the plaintiff made communications to a limited
and discrete group of defendant’s customers for the purpose of obtaining evidence
for trial. The Court found that “statements made during depositions, conferences
between witnesses and counsel, and settlement negotiations, when pertinent to
underlying suit, have been protected by the absolute privilege.”9 The Court
explained that if communications between a plaintiff and potential witnesses were
6
Barker v. Huang, 610 A.2d 1341, 1345 (Del. 1992).
7
Hoover v. Van Stone, 540 F. Supp 1118, 1122 (D. Del. 1982).
8
540 F. Supp 1118 (D. Del. 1982).
9
Id. at 1122.
5
not privileged, it is unlikely that a plaintiff would be able to engage in effective
investigation necessary to prepare for litigation. 10
In Briscoe v. LaHue, 11 the United States Supreme Court found that the
“immunity analysis rests on functional categories, not on the status of the
defendant.”12 When testifying, a witness “is subject to compulsory process, takes
an oath, responds to questions on direct examination and cross-examination, and
may be prosecuted subsequently for perjury.” 13
As for the second prerequisite, “merely showing that the utterance in
question is reasonably germane to the pending action” 14 is sufficient.
This Court also must consider public policy. In Barker v. Huang, 15 this
Court recognized a line of cases holding that “[t]he purpose served by the absolute
privilege is to facilitate the flow of communication between persons involved in
judicial proceedings and, thus, to aid in the complete and full disclose of facts
necessary to a fair adjudication.”16 As long as a statement is made in the course of,
and pertinent to, a judicial proceeding, “a showing of malice will not divest the
statement of its immune status.”17 If a statement is offered in “sham litigation,” a
10
Id. at 1123.
11
460 U.S. 325 (1983).
12
Id. at 342.
13
Id.
14
Nix v. Sawyer, 466 A.2d 407, 411 (Del. Super. 1983).
15
610 A.2d 1341 (Del. 1992).
16
Id. at 1345.
17
Id. (quoting Hoover, 540 F. Supp at 1122).
6
party would have to “present an exceedingly strong factual showing in order to
defeat operation of the privilege.”18
Defendants rely on Hoover, Briscoe, and Nix to support their position that
Dr. Gelman enjoys absolute immunity for his medical examinations and reports.
Defendants argue it is customary for parties to retain experts before litigation is
commenced in order to investigate matters, to assess viability before committing to
litigation, and to assess matters for settlement. If not immune, Defendants argue
that the potential threat of subsequent litigation could color the expert’s testimony.
Defendants also rely on Barker, and argue that Dr. Gelman’s testimony
regarding Rosenthal’s two DMEs, heard during a judicial proceeding, is protected
by absolute immunity.
Plaintiffs submit that Dr. Gelman’s medical examinations and reports
occurred during the ordinary course of insurance claims handling, and not during a
formal judicial proceeding. A formal judicial proceeding is not necessary for
absolute immunity to apply. 19 All that is required is for the medical examinations
and reports to be reasonably germane to a pending action. 20 Plaintiffs have not
argued that the reports are not “germane” to a prospective or pending judicial
proceeding. Nor have Plaintiffs alleged that this is “sham litigation.”
18
Nix, 466 A.2d at 411.
19
Hoover, 540 F. Supp 1118 (D .Del. 1982).
20
See Nix, 466 A.2d at 411.
7
Dr. Gelman’s testimony regarding Rosenthal’s two DMEs to the IAB
occurred during a formal judicial proceeding. Therefore, that the testimony was
reasonably germane to the pending action.
Delaware courts have not limited absolute immunity strictly to defamation
claims. Instead, absolute immunity is limited to claims that involve injury to
reputation.
Defendants argue that even if the absolute privilege bars
an action for defamation, it does not preclude the
prosecution of the three other counts contained in the
counterclaim. These counts, however, are all predicated
on the very same acts providing the basis for the
defamation claim. Application of the absolute privilege
solely to the defamation count, accordingly, would be an
empty gesture indeed, if, because of artful pleading, the
plaintiff could still be forced to defend itself against the
same conduct regarded as defamatory. Maintenance of
these kindred causes of action, moreover, would equally
restrain the ability of judges, parties, counsel and
witnesses to speak and write freely during the course of
judicial proceedings21
The Court finds that Dr. Gelman has absolute immunity for his pre-litigation
medical examinations and reports, and for his testimony regarding Rosenthal’s two
DMEs to the IAB. The Court also finds that absolute immunity applies to claims
other than defamation. 22
21
Hoover, 540 F. Supp at 1124.
22
Id.
8
Common Law Fraud
Delaware Civil Rule 9(b) states: “In all averments of fraud, negligence or
mistake, the circumstances constituting fraud, negligence or mistake shall be stated
with particularity. Malice, intent, knowledge and other condition of mind of a
person may be averred generally.” 23 The purpose of Rule 9(b) is to ensure “that a
defendant is put on sufficient notice so that it may defend itself against a plaintiff’s
allegations.” 24 To satisfy Rule 9(b), common law fraud requires:
1) a false representation, usually of fact, made by the
defendant; 2) the defendant's knowledge or belief that the
representation was false, or was made with reckless
indifference to the truth; 3) an intent to induce the
plaintiff to act or to refrain from acting; 4) the plaintiff's
action or inaction was taken in justifiable reliance upon
the representation; and 5) damage to the plaintiff as a
result of such reliance. 25
In the Complaint, Plaintiffs allege that Dr. Gelman held himself out and
“represented (at least by implication)” that he was a fair and unbiased medical
examiner. In Browne v. Robb,26 the plaintiff retained the defendant attorney after
the attorney allegedly stated that he would provide skillful and diligent
representation. The Court found that plaintiff’s complaint “lacks even a single
particular or specific fact to support his fraud claim. Even assuming such a
23
Super. Ct. Civ. R. 9(b).
24
WP Devon Assocs., L.P. v. Hartstrings, LLC, 2012 WL 306513, at *4 (Del. Super.).
25
Crowhorn v. Nationwide Mut. Ins. Co., 2001 WL 695542, at *5 (Del. Super.) (quoting Stephenson v. Capano
Development, Inc., 462 A.2d 1069, 1074 ( Del. 1983)).
26
583 A.2d 949 (Del. 1990).
9
statement was made under the circumstances described, it was a mere expression
of opinion, which is not actionable.” 27
Plaintiffs have failed to allege with specificity a false representation made by
Dr. Gelman. Without this specificity, Plaintiffs have failed to provide Dr. Gelman
with sufficient notice to defend himself against their allegations, as required to
survive Rule 9(b) dismissal. The Court finds that unilateral perceptions of implied
representations simply are not sufficient to support allegations of fraud.
The Court also finds no reason for Dr. Gelman to have to disclose his bias, if
any, to Plaintiffs. A “physician selected by the defendant to examine plaintiff is
not necessarily a disinterested, impartial medical expert, indifferent to the
conflicting interests of the parties.”28 Under Delaware law, “[t]here is normally no
duty to speak absent a fiduciary or contractual relationship.”29
Plaintiffs have failed to state a specific allegation of any agreement between
Dr. Gelman, State Farm/Amazon.com, Inc., and Defendants’ counsel to achieve
particular results. The undisputed evidence shows that Adams and Riddick were
aware that Dr. Gelman was retained by State Farm, and that Rosenthal was aware
that Dr. Gelman was retained by Amazon.com, Inc. The question of Dr. Gelman’s
alleged bias, if any, should be addressed in the proper forum, through cross-
examination.
27
Id. at 955-56.
28
Jakubowski v. Lengen, 86 A.D.2d 398, 450 N.Y.S.2d 612, 624 (N.Y.App.Div. 1982).
29
S&R Associates, L.P. v. Shell Oil Co., 725 A.2d 431, 440 (Del. Super. 1998).
10
Breach of Fiduciary Duty
The physician-patient privilege is a statutory right that did not exist at
common law. 30 Pursuant to Delaware Uniform Rule of Evidence 503, 31 certain
communications between a patient and physician are protected. The majority of
states have concluded that an IME/DME performed, at the request of a third party,
does not give rise to a physician-patient relationship. 32 In Smith v. Radecki,33 the
Court found:
Physicians conducting IMEs at the behest of third parties
assume a fundamentally different role from a diagnosing
or treating physician; typically, a physician conducting
an IME is not selected by the examinee, is not hired by
the examinee, does not report to the examinee, and does
not provide treatment to the examinee.34
In Phillips v. Pris-MM, LLC, 35 this Court held that an IME/DME physician
does not establish a physician-patient privilege with the examinee. The purpose of
an IME/DME is “to further the litigation process.”36 The Court found that during
an IME/DME, the plaintiff “is compelled to submit to questioning and a physical
30
State v. Onumonu, 2001 WL 695539, at *4 (Del. Super.).
31
D.R.E. 503
32
Smith v. Radecki, 238 P.3d 111, 115 (Alaska 2010); Dyer v. Trachtman, 679 N.W.2d 311, 315 (Mich. 2004);
Hafner v. Beck, 916 P.2d 1105, 1107-1108 (Ariz. Ct. App. 1995); Martinex v. Lewis, 969 P.2d 213, 219-20 (Colo.
1998); Peace v. Weisman, 368 S.E.2d 319, 320-21 (Ga. App. 1988); Henkemeyer v. Boxall, 465 N.W.2d 437, 439
(Minn. App. 1991); Ervin v. Am. Guardian Life Assurance Co., 545 A.2d 354, 357 (Pa. Super. Ct. 1988); LoDico v.
Caputi, 129 A.D.2d 361, 364 (N.Y. App. Div. 1987).
33
238 P.3d 111 (Alaska 2010).
34
Id. at 115.
35
2009 WL 3022117 (Del. Super.).
36
Id. at *3 (quoting Jacobs v. Chaplin, 693 N.E.2d 1010, 1013 (Ind.1994).
11
examination by a physician not only not of plaintiff’s choosing, but a physician
hired by the party adverse to plaintiff in litigation.”37
The Delaware Supreme Court has explained that “the concept of a fiduciary
relationship, which derives from the law of trusts, is more aptly applied in legal
relationships where the interests of the fiduciary and the beneficiary incline toward
a common goal and in which the fiduciary is required to pursue solely the
interests of the beneficiary in the property.” 38 “A fiduciary relationship is a
situation where one person reposes special trust in and reliance on the judgment of
another or where a special duty exists on the part of one person to protect the
interests of another.”39 In addition to fiduciaries such as express trustees, corporate
officers and directors, fiduciary relationships exists between general partners,
administrators, executors, or guardians; and, in some instances, joint venturers or
principals and their agents. 40
Riddick and Rosenthal have not pled the existence of a fiduciary relationship
between them and Dr. Gelman. Riddick and Rosenthal have not alleged
circumstances that support a reasonable inference that they were dependent on Dr.
Gelman, such that he would be charged with protecting their interests. In fact,
Riddick and Rosenthal submit that State Farm and Amazon.com, Inc. retained Dr.
37
Phillips v. Pris-MM, LLC, 2009 WL 3022117, at *3 (Del. Super.) (emphasis on original).
38
Crosse v. BCBSD, Inc., 831A.2d 492, 495 (Del. 2003) (quoting Corrado Bros. v. Twin City Fires Ins. Co., 562
A.2d 1188, 1193) (Del. 1989) (emphasis added).
39
McMahon v. New Castle Assoc., 532 A.2d 601, 604 (Del. Ch. 1987) (quoting Cheese Shop Int’l, Inc. v. Steele, 303
A.2d 689 (Del. Ch. 1973), rev’d on other grounds, 311 A.2d 870 (Del. 1973)).
40
Id.
12
Gelman. As a result, Dr. Gelman’s interests were not perfectly aligned with
Riddick and Rosenthal. The Court finds that Riddick and Rosenthal have failed to
state claims for breach of fiduciary duty.
Constructive or Equitable Fraud
In the Complaint, Riddick and Rosenthal seek compensatory and punitive
damages against Dr. Gelman for constructive or equitable fraud. In order to
recover, they must allege sufficient facts to demonstrate a fiduciary relationship
with Dr. Gelman.
A fiduciary relationship will arise “where the relationship or trust can be
characterized as ‘special.’” 41 The Court has found that there was no fiduciary
relationship between Dr. Gelman and either Riddick or Rosenthal. Therefore,
Riddick and Rosenthal have failed to state claims for constructive or equitable
fraud.
Statutory Consumer Fraud
Plaintiffs allege that Dr. Gelman violated 6 Del. C. § 2513, the Consumer
Fraud Act. Section 2513 provides:
The act, use or employment by any person of any
deception fraud, false pretense, false promise,
misrepresentation, or the concealment, suppression, or
omission of any material fact with intent that others rely
upon such concealment, suppression or omission, in
connection with the sale, lease or advertisement of any
41
Total Care Physicians, P.A. v. O'Hara, 798 A.2d 1043, 1058 (Del. Super. 2001)
13
merchandise, whether or not any person has in fact been
misled, deceived or damaged thereby, is an unlawful
practice. 42
The purpose of Section 2513 is to protect “consumers and legitimate
business enterprises from unfair or deceptive merchandising practices in the
conduct of any trade or commerce in part of wholly within this State.”43 The
General Assembly has defined “Merchandise” to mean “any objects, wares, good,
commodities, intangibles, real estate or services.”44 “Advertisement” is defined as
“the attempt by publication, dissemination, solicitation or circulation to induce,
directly or indirectly, any person to enter into any obligation or acquire any title or
interest in, any merchandise.” 45 “Sale” is defined as “any sale, offer for sale or
attempt to sell any merchandise for any consideration.” 46
In order to recover, Plaintiffs must prove that Dr. Gelman “intentionally
concealed material facts with the intent that others would rely upon such
concealment.” 47 There is no allegation that Dr. Gelman contacted any Plaintiff for
the purpose of selling, leasing or advertising any merchandise or services.
Therefore, Plaintiffs have failed to state a claim for statutory consumer fraud.
42
6 Del. C. § 2513(a).
43
6 Del. C. § 2512.
44
6 Del. C. § 2511(6).
45
6 Del. C. § 2511(1).
46
6 Del. C. § 2511(8).
47
S&R Associates, L.P. v. Shell Oil Co., 725 A.2d 431, 440 (Del. Super. 1998).
14
Battery
“[B]attery is the intentional, unpermitted contact upon the person of another
which is harmful or offensive.”48 The defendant must have the “intent to make
contact with the person, not the intent to cause harm.” 49 Once the intent is
determined, an objective reasonableness standard is then utilized to determine if
the contact is harmful or offensive.50
In Delaware, a plaintiff must assert the claim within two years “from the
date upon which it is claimed that such alleged injuries were sustained….”51
Riddick and Rosenthal allege that Dr. Gelman committed battery on their persons
during their IMEs/DMEs. According to the Complaint, Riddick was examined in
May 2013, and Rosenthal was examined in May 2013 and again in October 2013.
To comply with the statute of limitations, battery claims arising from the May
2013 examination must have been filed by May 2015. The Complaint was not
filed until June 2, 2015. The Court finds that Plaintiffs’ battery claims arising from
their May 2013 medical examinations are barred.
Defendants argue that the battery claim arising from October 2013 must be
dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief
may be granted. Defendants contend that Riddick and Rosenthal are unable to
48
Brzoska v. Olson, 668 A.2d 1355, 1360 (Del. 1995).
49
Id.
50
Id.
51
10 Del. C. § 8119.
15
make a prima facie showing for battery because Riddick and Rosenthal consented
to the contact, and the contact was not offensive.
In order for a contact be offensive to a reasonable sense
of personal dignity, it must be one which would offend
the ordinary person and as such one not unduly sensitive
as to his personal dignity. It must, therefore, be a contact
which is unwarranted by the social usages prevalent at
the time and place at which it is inflicted.52
In Brzoska v. Olson, 53 this Court considered whether a patient may recover
damages against a doctor diagnosed with AIDS, absent a showing of a resultant
physical injury or exposure to the disease. Ordinarily, consent is not waived
“when the patient is touched in exactly the way he or she consented.”54 However,
a “physician may be held liable for battery when he or she obtains the consent of
the patient to perform one procedure and the physician instead performs a
substantially different procedure for which consent was not obtained.” 55
Riddick and Rosenthal do not allege that they did not grant Dr. Gelman
consent to conduct a medical examination. Riddick and Rosenthal do not allege
that Dr. Gelman performed a substantially different procedure. Therefore, the
Court finds that Riddick and Rosenthal have failed to state a battery claim upon
which relief may be granted.
52
Restatement (Second) of Torts § 19 cmt. A (1965).
53
668 A.2d 1355, 1360 (Del. 1995).
54
Id. at 1366.
55
Id.
16
Racketeering
The parties have agreed that Plaintiffs claim for racketeering will not be
pursued.
Civil Conspiracy
Civil conspiracy requires “the combination of two or more persons for an
unlawful purpose or for the accomplishment of a lawful purpose by unlawful
means, which conspiracy results in damages.” 56 In the Complaint, Plaintiffs allege
that Dr. Gelman has acted in concert with State Farm and with Amazon.com, Inc.,
to unreasonably delay and deny fair or timely payment of insurance benefits to
Plaintiffs.
In Delaware, civil conspiracy is not an independent cause of action. It
“requires an underlying wrong which would be actionable absent the
conspiracy.” 57 Having found that Plaintiffs have failed to state any substantive
claim upon which relief may be granted, Plaintiffs’ conspiracy claims also must be
dismissed.
CONCLUSION
Viewing the facts in the light most favorable to Plaintiffs, the Court grants
Defendants’ Motion to Dismiss.
56
Nutt v. A.C. & S. Co., Inc., 517 A.2d 690, 694 (Del. Super. 1986).
57
Id.
17
Dr. Gelman has absolute immunity for his medical examinations and reports,
and for his testimony before the IAB. Having failed to allege with specificity any
false representation made by Dr. Gelman to Plaintiffs, Plaintiffs’ fraud claim must
be dismissed. Plaintiffs’ claims for breach of fiduciary duty, and for constructive
or equitable fraud, must be dismissed due to Plaintiffs’ inability to adequately
plead the existence of a physician-patient or other fiduciary relationship between
them and Dr. Gelman. Plaintiffs’ claim for statutory consumer fraud must be
dismissed because there is no allegation suggesting that Dr. Gelman sold, leased or
advertised any merchandise or services to Plaintiffs. Riddick and Rosenthal’s
battery claims are dismissed because they did not file their claims within the
applicable statute of limitations, and because Riddick and Rosenthal have failed to
state a claim upon which relief may be granted. Because Plaintiffs’ underlying
claims have failed, their conspiracy claims must be dismissed.
THEREFORE, Defendant’s Motion to Dismiss is hereby GRANTED.
IT IS SO ORDERED.
/s/___Mary M. Johnston_________
The Honorable Mary M. Johnston
18