ARTHUR G. NEWMYER v. THE SIDWELL FRIENDS SCHOOL and JAMES F. HUNTINGTON , 128 A.3d 1023 ( 2015 )

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Nos. 13-CV-1262, 14—CV-0186 & 14-CV-0187
ULEID)
DEC 24 2015
DISTRICT OF COLUMBIA
COURT OF APPEALS
ARTHUR G. NEWMYER, INDIVIDUALLY AND ON BEHALF OF
HIS MINOR DAUGHTER, D.‘,
Appellants/Cross—Appellee,
V. CAM—3727—1 1
THE SIDVVELL FRIENDS SCHOOL,
Appellee,
and
JAMES F. HUNTINGTON,
Appellee/Cross—Appellant.
On Appeal from the Superior Court of the District of Columbia
Civil Division
_ BEFORE: Fisher and Blackburne-Rigsby, Associate Judges, and Ferren, Senior
Judge.
J U D G M E N T
This case came to be heard on the transcript of record, the briefs filed, and
was argued by counsel. On consideration whereof, and as set forth in the opinion filed
this date, it is now hereby
ORDERED and ADJUDGED that the trial court’s grant of summary
judgment as to appellee/cross-appellant, Dr. Huntington’s, counterclaims against
appellant/cross-appelle, Mr. Newmyer, for tortious interference with Dr. Huntington’s
business relationships with appellee Sidwell and Wake Kendall, and for intentional
infliction of emotional distress, are reversed. The matter is remanded for proceedings
consistent with this opinion. In all other aspects, the judgment on appeal is affirmed.
For the Court:
JULIO A. CA TILLO
Clerk of the Court
Dated: December 24, 2015.
Opinion by Associate Judge Anna Biackburne—Rigsby.
1 The panel has chosen not to use the initials of the minor in this case and refers to her as
“D77.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. l3-CV__—1262, l4-CV—0186, l4—CV—0187
ARTHUR G. NEWMYER, INDIVIDUALLY AND ON BEHALF OF HIS MINOR DAUGHTER,
D. 1, APPELLANTs/CROSs-APPELLEE,
V.
THE SIDWELL FRIENDS SCHOOL, APPELLEE,
AND
JAMES F. HUNTINGTON, APPELLEE/CROSS~APPELLANT.
Appeals from the Superior Court
of the District of Columbia
(CAM-3727-11)
(Hon. Michael Lee Rankin, Trial Judge)
(Argued January 21, 2015 Decided December 24, 2015)
Steven S. Rosenthal, with whom Kerry Alan Scanlon and Jeremy M White
were on the brief, for appellants Arthur G. Newmyer and D.
John T. May, with whom Raphael J. Cohen was on the brief, for
appellant/cross-appellee Arthur G. Newmyer.
William D. Nussbaum for appellee The Sidwell Friends School.
1 We have chosen not to use the initials of the minor in this case and will
refer to her as “D.”
10
Huntington’s actions did not appear to violate any school policy and that Dr.
Huntington “had no direct contact whatsoever with [L]ower . . . [S]chool students
in a specific counseling situation.”
On April 20, 2010, Mr. Newmyer contacted Mr. Barker directly and claimed
that Dr. Huntington was in breach of ethical obligations for serving as D.’s
therapist while having a sexual relationship with Ms. Mehrbach. According to Mr.
Barker’s deposition, Mr. Newmyer told him that if the school did not take action,
he was prepared to use his money and connections to “mount a campaign against
Sidwell,” which “might involve publicity in the Washington Post.” On April 22,
2010, Sidwell received a letter from attorney Armin Kuder regarding Dr.
Huntington’s relationship with Ms. Mehrbach, purporting to write on behalf of an
anonymous group of concerned Sidwell community members, including “current
and former parents and students and one former board member[.]” Mr. Kuder
specifically excluded Mr. Newmyer and D. from this “anonymous group,” because
he “underst[ood] that they are represented separately.” In his deposition, however,
Mr. Newmyer stated that Mr. Kuder was in fact retained by and billing Mr.
Newmyer for legal services at the time. in this letter, Mr. Kuder asked that Sidwell
provide him with its policy on such interactions, any internal communications
related to the matter, and the identity of all persons involved in the school’s
11
internal investigation. Should the school fail to provide the requested documents,
Mr. Kuder threatened legal action and inquired whether the school would provide
legal counsel for Dr. Huntington. Upon receiving this letter, Mr. Barker and Mr.
Davies met with Dr. Huntington to discuss the situation and again concluded that
Dr. Huntington’s relationship with Ms. Mehrbach did not raise a concern.
In June 2010, Mr. Newmyer filed for divorce from Ms. Mehrbach in Florida.
As part of the divorce proceedings, Mr. Newmyer subpoenaed from Sidwell all
emails from Dr. Huntington’s school account that involved Ms. Mehrbach, many
of which were sexually explicit. After reviewing these emails, an attorney for Mr.
Newmyer informed Sidwell that he would prepare some of these subpoenaed
materials for the school’s review.4 On February 1, 2011, Mr. Newmyer’s attorney“
produced a memorandum for Sidwell analyzing Dr. Huntington’s conduct and
appended many of the subpoenaed emails. Separately, Mr. Newmyer provided this
memorandum with the appended emails to several members of Sidwell’s Board of
Trustees on February 11, 2011. Mr. Thomas Farquhar, Sidwell’s new Head of
School, read the memorandum and appended emails and terminated Dr.
Huntington on February 16, 2011. As grounds for termination, Mr. Farquhar
4 Sidwell had apparently responded to Mr. Newmyer’s discovery request by
providing emails within a requested date range and did not internally review the
emails before satisfying the request.
12
explained that he had relied primarily on the emails, rather than the memorandum,
to conclude that Dr. Huntington had violated school policy. Specifically, Mr.
Farquhar determined that Dr. Huntington had used a Sidwell email account to send
“a super abundance of personal communications relative to professional
communications[,]” had been “indiscreet” with confidential information, and had
sent many messages that ignored the school’s caution that “employees should not
presume that their communication would be private.”
B. The Present Litigation
On May 12, 2011, Mr. Newmyer filed a civil complaint in the Superior
Court in which he alleged, inter alia, that a physician-patient relationship between
Dr. Huntington and D. formed during the January 22, 2010, playdate and that Dr.
Huntington’s call to Ms. Whelan was a professional referral arising out of his
observations in his capacity as a psychologist. Citing the ensuing romance
between Ms. Mehrbach and Dr. Huntington, Mr. Newmyer brought claims for (1)
professional malpractice against Sidwell and Dr. Huntington,
(2) negligent supervision against Sidwell, (3) breach of fiduciary duty against
Sidwell and Dr. Huntington, (4) negligent infliction of emotional distress against
Sidweli and Dr. Huntington, and (5) intentional infliction of emotional distress
against Sidwell and Dr. Huntington. The complaint referenced many emails
13
between Dr. Huntington and Ms. Mehrbach and laid out in detail the specific
sexual acts that the two had discussed throughout the emails, citing for
“illustrat[ion]” to a particularly sexually explicit portion of an email from Dr.
Huntington in which he described a sex act involving Ms. Mehrbach.
On the day he filed his complaint, Mr. Newmyer hired a communications
firm to distribute the complaint to multiple newspapers, including the Washington
Post and the New York Times, and to multiple local and national television
stations.5 On May 17, 2011, counsel for Mr. Newmyer submitted the complaint to
the District of Columbia Board of Psychology, suggesting that Dr. Huntington had
“breached multiple sections of the APA Ethical Principles and Code of Conduct,”
promising to provide supporting documents after discovery, and expressing interest
in participating in meetings regarding the Board’s investigation. The Board
initiated an investigation shortly thereafter. On May 18, 2011, the Maryland Board
of Examiners of Psychologists initiated a similar inquiry, apparently in response to
5 In an answer to Sidwell’s interrogatories, Mr. Newmyer acknowledged
that he distributed the complaint to multiple news outlets. This court initially
sealed Mr. Newmyer’s answer to this interrogatory in response to his unopposed
motion to redact portions of the appendix on appeal, pursuant to a consent order
issued by the trial court. However, the trial court’s consent order extends only to
personal information pertaining to minor children, and thus does not include Mr.
Newmyer’s answer to this interrogatory.
14
a newspaper article.6 Both Boards subsequently cleared Dr. Huntington of
wrongdoing in 2012. Notably, the District of Columbia Board of Psychology
concluded “after a thorough investigation” that “there was no evidence to indicate
that Dr. Huntington provided psychological services to Tara and Arthur
Newmyer’s daughter, [D.,]” and that, accordingly, Dr. Huntington’s relationship
with Ms. Mehrbach “did not violate any provision of the Health Occupations
Revision Act or the APA Code of Ethics.”
News of Mr. Newmyer’s allegations eventually reached two private
psychological treatment practices, Wake Kendall and Rathbone, where Dr.
Huntington provided services to patients as an independent contractor.7 Wake
Kendall received notice of forthcoming litigation and Board proceedings against
Dr. Huntington from one of Mr. Newmyer’s attorneys in a letter dated September
6 The Maryland Board’s letter of notice to Dr. Huntington appears to
contain a typographical error. In the first paragraph, the letter states that the
Board’s investigation commenced on “4/18/201 1” but directs Dr. Huntington to an
attached “Board Initiated Inquiry Form” that provides “5/18/11” as the date the
Board received the inquiry. The Board Initiated Inquiry Form then cites to an
“attached newspaper article” that, presumably, was an article discussing the civil
complaint filed May 12, 2011.
7 Wake Kendall referred to Dr. Huntington as an “associate” and stated that
there were no conditions preventing Wake Kendall or Dr. Huntington from
terminating the relationship. Dr. Huntington referred to himself as an
“independent contractor” at Wake Kendall. Rathbone referred to Dr. Huntington
as an “independent contractor.”
15
17, 2010. In that letter, Mr. Newmyer explained through his attorney that D. had
been evaluated by Wake Kendall at some point in the past and that D.’s sister had
recently been evaluated. Mr. Newmyer demanded that all future contact with his
two daughters cease in light of Dr. Huntington‘s position at Wake Kendall. When
Wake Kendall subsequently learned of the District of Columbia Board of
Psychology inquiry, it decided to place Dr. Huntington on leave pending the
outcome of the inquiry. Wake Kendall was aware of Mr. Newmyer’s civii
complaint, but did not cite the complaint as the basis for its decision. Dr.
Huntington did not seek reinstatement at Wake Kendall after the Board cleared
him of wrongdoing. Rathbone learned of Mr. Newmyer’s civil complaint from a
newspaper article and terminated its relationship with Dr. Huntington the following
day, May 13, 2011. Rathbone stated that it was “concerned about the impact of the
allegations” in the complaint that Dr. Huntington “had broken confidentiality” and
about “the sexually explicit content of the e~mails[.]”
Dr. Huntington filed a counter-complaint against Mr. Newmyer on
December 30, 2011, alleging (l) tortious interference with his contractual or
business relationships with Sidwell, Wake Kendall, and Rathbone; and (2)
intentional infliction of emotional distress. Dr. Huntington also brought claims for
defamation and false light invasion of privacy, but the trial court dismissed those
16
claims as time-barred and Dr. Huntington has not appealed this dismissal. The
parties filed motions for summary judgment as to all remaining claims and the trial
court granted the motions in full. This appeal and cross-appeal followed.
II. Discussion
We review the trial court’s grant of a motion for summary judgment de
novo. Steele v. Salb, 93 A.3d 1277, 1281 (DC. 2014). We will affirm where “the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.”
Franco v. District ofColumbia, 39 A.3d 890, 894 (DC. 2012) (quoting Super. Ct.
Civ. R. 56 (0)). “Once the movant has made a sufficient evidentiary showing to
support the motion, the opposing party’s response “must set forth specific facts
showing that there is a genuine issue for trial?” Night & Day Mgrth LLC v.
Butler, 101 A.3d 1033, 1037 (DC. 2014) (quoting Super. Ct. Civ. R. 56 (e)). Our
review takes all inferences in favor of the opposing party, but mere “conelusory
allegations” are insufficient to defeat the motion. Steele, supra, 93 A.3d at 1281.
Summary judgment is warranted where the opposing party fails to “establish the
existence of an element essential to that party’s case, and on which that party will
l7
bear the burden of proof at trial.” Night cl”: Day Mgmi., LLC, supra, 101 A.3d at
1037 (quoting Celotex Corp. v. Cairei‘i, 477 us. 317, 322 (1986)).
A. Mr. N ewmycr’s Claims on Appeal
1'. Negligence Claims
The prima facie elements for a professional malpractice claim and a
negligent infliction of emotional distress claim are essentially the same. To carry
his burden under both claims, Mr. Newmyer must establish that (1) Dr. Huntington
owed a legal duty to conform to a standard of care with regard to D., (2) he
deviated from that standard of care, and (3) there is a causal relationship between
this deviation and an injury. See Woldeamanael 12. Georgetown Univ. Hosp, 703
A.2d 1243, 1244 (DC. 1997) (listing the three elements for professional
malpractice); Hedgepeih v. Whitman Walker Clinic, 22 A.3d 789, 810—11 (DC.
2011) (en banc) (listing three similar elements for negligent infliction of emotional
distress). Whether the facts in the record give rise to a legal duty am when viewed
in the light most favorable to Mr. Newmyer on de novo review — is “an issue of
law to be determined by the court as a necessary precondition to the viability of a
cause of action for negligence.” Hedgepeih v. Whitman Walker Clinic, supra, 22
A.3d at 810—11 (stating that in order to recover for negligent infliction of
18
emotional distress, a plaintiff must first show that “the defendant has a relationship
with the plaintiff, or has undertaken an obligation to the plaintiff of a nature that
necessarily implicates the plaintiff’s emotional well-being”); see also In re Sealed
Case, 67 F.3d 965, 968 (DC. Cir. 1995) (stating that in order to recover for
medical malpractice, a plaintiff must first show a duty, which may be predicated
upon a physician—patient relationship).
While facts demonstrating a physician-patient relationship may give rise to a
duty of care, this court has refrained from deciding whether such a relationship is a
necessary element of a malpractice claim. See Gilbert v. Miodovnik, 990 A.2d
983, 991 & n.9 (DC. 2010). Here, Mr. Newmyer asserts that Dr. Huntington’s
actions established a physician-patient relationship that gives rise to a duty and, in
the alternative, that a general duty of care exists due to Dr. Huntington’s status as a
school counselor who is a licensed psychologist. Although the present case
involves an alleged psychologist-patient relationship, we will View this relationship
in the same light as a physician-patient relationship for the purposes of a
malpractice claim. McCracken v. Walls-Faufman, 717 A.2d 346, 351 (DC. 1998)
(discussing the existence of a duty for both physicians and psychologists under a
medical malpractice claim). The record, however, does not support either of Mr.
Newmyer’s assertions.
19
“The relation of physician and patient is a consensual one depending on the
physician’s acceptance of the patient and the latter’s assent to the medical
services.” Hankerson v. Thomas, 148 A.2d 583, 584 (DC. 1959) (per curium). A
physician—patient relationship may arise by express or implied contract, “and the
fact that a physician does not deal directly with a patient does not necessarily
preclude the existence of a physician-patient relationship.” Delm v. Edgecombe,
865 A.2d 603, 611 (Md. 2005). Yet, because consent is the operative factor,
“when no prior relationship exists, the physician must take some action to treat the
person before the physician-patient relationship can be established.” Id. For
example, a physician-patient relationship may be established by examining the
patient, independently reviewing or analyzing a patient’s medical records,
engaging in a continuous course of treatment, rendering a medical opinion, or
controlling a patient’s course of treatment. Gilbert, supra, 990 A.2d at 991.
There is no evidence that Dr. Huntington or Ms. Mehrbach ever expressly
created a consensual physician-patient relationship between Dr. Huntington and D.
Both Dr. Huntington and Ms. Mehrbach testified that they neither formed nor
intended to form a physician-patient relationship with regard to D. In an email
dated February 14, 2010, Dr. Huntington stated his understanding that he was not
acting pursuant to a physician-patient relationship when he assured Ms. Mehrbach
2
Andrew Butz and Barton D. Moorsz‘em, with whom Barry D. Trebach,
Katherine B. Yoder, and Megan Kinsey-Smith were on the brief, for appellee/cross—
appellant James F. Huntington.
Before FISHER and BLACKBURNE—Riossv, Associate Judges, and FERREN,
Senior Judge.
BLACKBURNE—RIGSBY, Associate Judge: Although many issues are before
us, this appeal addresses two primary questions: First, when a school counselor
became romantically involved with the mother of a child at the school, did the
evidence justify recovery in tort against the counselor and the school, under
multiple theories, for endangering the child’s well-being? Second, when the
child’s father not only filed the complaint in court but also publicized it widely
through the news media, allegedly as a weapon to disrupt the private life and career
prospects of the school counselor, did the evidence justify the counselor’s
counterclaim in tort for emotional distress and interference with his contractual and
business relationships?
Underlying these questions is a troubled marriage, pursuant to which
appellant/cross—appellee Arthur G. Newmyer and Tara Mehrbach, the parents of a
five—year—old child, appellant D., entered into a separation agreement. While D.
was a pre—kindergarten student at the Lower School of The Sidwell Friends School
(“Sidwell”), Ms. Mehrbach began dating appellee/cross-appellant Dr. James F.
Huntington, a psychologist who served as a school counselor at Sidwell’s Middle
20
that his relationship with her —— the mother of a Sidwell student — did not violate
Sidwell’s rules or any ethical rule, as would “dating patients or moms/dads of
patients.”8 Furthermore, the record details the extensive efforts of Ms. Mehrbach
and Mr. Newmyer to help D. assimilate at Sidwell, most notably by “engag[ing]”
at least three professionals to provide psychological services, in collaboration with
D.’s teachers. Mr. Newmyer and Ms. Mehrbach were well-acquainted with the
process for initiating such professional relationships, and Ms. Mehrbach would
undoubtedly have formally approached Dr. Huntington if she sought to expressly
initiate a physician-patient relationship on D.’s behalf. Accordingly, there is no
genuine issue, with evidence sufficient to support a jury finding, that an express
physician-patient relationship existed between Dr. Huntington and D.
Yet Mr. Newmyer also asserts that a physician-patient relationship existed
by implication, based on three primary facts: (1) Dr. Huntington “observed and
evaluated” D. during the January 22, 2010 playdate and on other occasions,
including one occasion when he took D. and his daughter to a park; (2) Dr.
8 To the extent that Mr. Newmyer draws attention to a possible physician-
patient relationship between Dr. Huntington and Ms. Mehrbach, the record is
equally clear that no such relationship existed. In multiple emails in January 2010,
Dr. Huntington explicitly told Ms. Mehrbach “I am not your therapist” when
discussing a personal issue during a flirtatious exchange, and he also explained that
he would “listen and talk” with her as she sorts through her divorce, but that his
“strong feelings” for her would “color” his responses.
21
Huntington called Ms. Whalen and “made a specific ‘recommendation’ that D.
receive more academic stimulation”; and (3) Dr. Huntington provided
“professional advice and counseling services to D. through her mother,” including
suggesting “play therapy,” over the course of multiple email conversations in
which Ms. Mehrbach provided detailed information and documentation about D.’s
“mental health and cognitive behavior.”
In the absence of an express physician-patient relationship, a physician must
“take some action to treat the person before the physician—patient relationship can
be established.” Dehn, supra, 865 A.2d at 611. The record does not support Mr.
Newmyer’s assertions that Dr. Huntington took steps to treat D. pursuant to an
implied physician-patient relationship. Rather, the record demonstrates that Dr.
Huntington interacted with D. informally during the course of his romantic
relationship with her mother, Ms. Mehrbach. Regarding the first and third above
listed facts, Dr. Huntington and Ms. Mehrbach shared information about their
family lives and personal concerns in emails and in-person interactions. Viewing
the evidence in Mr. Newmyer’s favor, as we must on appeal, there is no evidence
in the parties’ depositions or email exchanges to suggest that the January 22, 2010
playdate at Ms. Mehrbach’s home was anything other than an opportunity to
pursue a mutual romantic interest while their daughters interacted outside of
22
school. During this playdate at Ms. Mehrbach’s home, Dr. Huntington was within
close proximity to D. and made casual observations to Ms. Mehrbach about D.’s
reading and writing abilities with reference to his own daughter’s abilities. Indeed,
this topic had come up before in an email exchange between Ms. Mehrbach and
Dr. Huntington after D. inadvertently stumbled upon several of their romantic
email exchanges. That these observations were uttered by Dr. Huntington, a
licensed psychologist, during the playdate and over exchanged emails does not turn
them into “professional conclusions” rendered to treat D. pursuant to a physician-
patient relationship, as Mr. Newmyer casts them. See Delm, supra, 865 A.2d at
61}.
Nor is there any support for Mr. Newmyer’s assertion that Dr. Huntington’s
offer to call Ms. Whalen, Sidwell’s resource teacher, and his accompanying
voicemail to Ms. Whalen, were something other than friendly gestures. Ms.
Mehrbach claimed she learned of a “turf war” between the resource teacher and
D.’s teachers and told Mr. Newmyer in an email that Dr. Huntington’s offer to call
Ms. Whalen would help prevent an uncomfortable situation. When Dr. Huntington
called Ms. Whalen, he relied on his own daughter’s interactions with D. as
classmates and Ms. Mehrbach’s statements about D. rather than making a
professional conclusion, stating that
23
1 the mom has indicated that [1).] seems under
§ stimulated. . . the mom is very open about saying, you
know, ‘I’m sure my daughter isn’t the most pleasant
person to be around or can be sort of moody . . . ’ [and]
mentioned to me something about a recent report card not
having, um, not recognizing, sort of, her daughter’s, uh,
at least academic potential or learning potential.
He finished the call by asking Ms. Whalen “if there’s just a way to sort of assess
this kid or give her some stimulation or something” and stressed that he was “just
basing it on [his] limited exposure with this child and then talking to the mom[.]”
This voicemail indicates that Ms. Whalen, not Dr. Huntington, would have the
ultimate authority to make the decision as to D’s needs while at Sidwell. See
Gilbert, supra, 990 A.2d at 991—93 (explaining that the absence of decision-
making authority over a patient’s course of treatment suggests no physician-patient
relationship).9 Accordingly, no implied physician-patient relationship giving rise
to a legal duty existed between Dr. Huntington and D.
9 While not dispositive on the issue, Ms. Whalen testified in her deposition
that she understood Dr. Huntington‘s call to be the result of “having seen I). . . . in
a social setting with family friends.” Further, Ms. Mehrbach ofthandedly
explained during her deposition that she often asks another friend who is a
therapist for advice about D.
24
In the alternative, Mr. Newmyer asserts that Dr. Huntington owed a general
duty to D. “as a licensed psychologist and school counselor who undertook to help
D. while she was a student at Sidwell” because he “conduct[ed] an evaluation . . . ,
and provided a
provid[ed] continued advice and counseling support,”
“recommendation” to the school’s resource teacher. We disagree for the same
reasons that Dr. Huntington’s actions did not create a physician-patient
relationship: the facts in the record, even when viewed in favor of Mr. Newmyer,
simply do not support this claim. While Dr. Huntington’s actions on. behalf of D.
were no doubt motivated by a genuine desire to help her succeed at Sidwell, he did
not trigger the duty that accompanies his role as a school counselor by simply
expressing interest in D.’s well—being in emails to Ms. Mehrbach, with whom he
was romantically involved. Nor did he trigger this duty by offering to make a
phone call to alleviate Ms. Mehrbach’s concern that she might be perceived as
“pushy” by D.’s teachers. Furthermore, Dr. Huntington served as a counselor at
Sidwell’s Middle School, not Sidwell’s Lower School where D. was a student. AS
stated by Mr. Barker, Sidwell’s interim Head of School, “a middle school person
. . . would have had nothing to do with [D.] at [the Lower] school.” Ms. Whalen
later echoed this fact.
Mr. Newmyer’s speculation that Dr. Huntington may
interact with Lower School students does not overcome this evidence.
25
In sum, we perceive no genuine issue of material fact here; on this record, no
reasonable jury could find that Dr. Huntington owed a legal duty to D. pursuant to
a physician—patient relationship or his position as a school counselor. We are
unpersuaded by Mr. Newmyer’s argument that a duty of care exists based upon
facts demonstrating Dr. Huntington’s romanticallywmotivated actions. Such a
broad interpretation of professional duty would risk putting doctors, lawyers, and
other professionals at risk of incurring civil liability for innocuous day-to-day
interactions.10 Thus, we affirm the trial court’s granting of summary judgment
dismissing both of Mr. Newmyer’s negligence claims.
10 As an alternative to his negligence claims, Mr. Newmyer cites Church of
Scientology Inr‘l v. Eli Lilly 0‘2: C0. to argue that Dr. Huntington entered a fiduciary
relationship with Ms. Mehrbach after she placed her “trust or confidence” in him
regarding information about her marriage, D.’s emotional issues at Sidwell, and
D.’s relationship with her father. 848 F. Supp. 1018, 1028 (D.D.C. 1994) (citation
omitted) (“[T]he relationship exists in all cases in which influence has been
acquired and betrayed . . . [including] informal relations which exist whenever one
man trusts in, and relies upon, another . . . .”). Mr. Newmyer suggests that Ms.
Mehrbach “would not have asked for [Dr. Huntington’s] advice and opinions if he
had not been a psychologist and did not have a position of influence at the school
by reason of being a psychologist and/or counselor.”
Mr. Newmyer did not raise a breach of fiduciary duty claim as to Ms.
Mehrbach before the trial court. Instead, he argued that Dr. Huntington entered a
fiduciary duty with D. by way of his status as a “psychologist, psychotherapist
and/or counselor who provided counseling instruction and guidance to Sidwell
students and their families” and that he breached this duty by engaging “in a sexual
relationship with D’s married mother while still acting as her school
(continued . . .)
26
ii. Intentional Infliction of Emotional Distress
To survive a motion for summary judgment, Mr. Newmyer must establish a
prima facie case of intentional infliction of emotional distress by showing
(1) extreme and outrageous conduct on the part of Dr. Huntington or Sidwell that
(2) intentionally or recklessly (3) caused Mr. Newmyer or D. severe emotional
distress. District of Columbia v. Tulin, 994 A.2d 788, 800 (DC. 2010); Larijarii v.
Georgetown Univ, 791 A.2d 41, 44 (DC. 2002). To be actionable, the conduct
must be “so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community.” Tulin, supra, 994 A.2d at 800 (citation omitted). “This
(. . . continued)
psychologist[.]” We need not address this claim for the first time on appeal. See
District of Columbia 12. Patterson, 667 A.2d 1338, 1347—48 (DC. 1995). Yet,
even if Mr. Newmyer had raised this claim below, it fails for the same reason that
his negligence claims fails: the absence of any duty or, more specifically, the
absence of “a duty to act for or give advice for the benefit of another upon matters
within the scope of the relation.” See Church of Scientology Int’l, supra note 10,
848 F. Supp. at 1028 (quoting RESTATEMENT (SECOND) OF TORTS § 874 cmt. a
(Am. Law. Inst. 1979)).
27
requirement of outrageousness is not an easy one to meet.” Drejza v. Vaccaro, 650
A.2d 1308, 1312 (DC. 1994). “It is for the court to determine, in the first instance,
whether the defendant’s conduct may reasonably be regarded as so extreme and
outrageous as to permit recovery, or whether it is necessarily so.” Id. at 1316
(quoting REsTArBMENT (SECOND) OF TORTS § 46 cmt. H (AM. LAW. INST. 1965)).
Where reasonable persons may differ, the question must go to the jury “to
determine Whether, in the particular case, the conduct has been sufficient[ly]
extreme and outrageous to result in liability.” Id.
Mr. Newmyer asserts that Dr. Huntington “abused his position as a school
counselor” by intentionally or recklessly engaging in a sexual relationship with
Ms. Mehrbach “in the course of counseling D.” while knowing “the foreseeable
harm and confusion it would have on D.” Mr. Newmyer further asserts that
Sidwell was warned of Dr. Huntington’s conduct and did nothing to stop it for
nearly a year. The result, according to Mr. Newmyer, was that he and D. suffered
severe emotional distress. We disagree.
As we have already concluded, the record does not demonstrate that Dr.
Huntington ever served in a professional capacity as a school counselor to D.,
much less that he intentionally or recklessly engaged in a sexual relationship with
28
Ms. Mehrbach “in the course of counseling D.” 11 The record evidence, as
thoroughly recited in this opinion, simply does not reflect “extreme or outrageous”
conduct on Dr. Huntington’s part to support a claim for intentionai infliction of
emotional distress and survive summary judgment. See Homcm v. Goya], 711 A.2d
812, 818 (DC 1998) (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (AM.
LAW. INST. 1965) (stating that an intentional infliction of emotional distress claim
may lie where “the recitation of the facts to an average member of the community
would arouse his resentment against the actor, and lead him to exclaim,
‘Outrageous!’”)). Accordingly, we affirm the trial court’s entry of summary
judgment in favor of Dr. Huntington and Sidwell.12
iii. Negligent Supervision
To carry his burden for a negligent supervision claim and survive summary
judgment, Mr. Newmyer must show a genuine issue of material fact as to whether
Sidwell (1) “knew or should have known” that Dr. Huntington “behaved in a
dangerous or otherwise incompetent manner”; and (2) “armed with that actual or
H See supra section A—i.
‘2 To the extent that Mr. Newmyer argues that Dr. Huntington’s acts toward
D. caused him severe emotional distress, any harm he experienced would be
derivative of harm to D., which the record does not support.
29
constructive knowledge, failed to adequately supervise” Dr. Huntington. T ulin,
supra, 994 A.2d at 794 (citation omitted). Mr. Newmyer has failed to carry this
burden.
Mr. Newmyer argues that Sidwell breached its duties to supervise Dr.
Huntington and “keep students placed within [Sidwell’s] care safe from harm or
danger” when it failed to prevent harm to D. and Mr. Newmyer from Dr.
Huntington’s romantic relationship with Ms. Mehrbach.
Because Mr. Newmyer must show that Dr. Huntington acted in a dangerous
or incompetent manner, his negligent supervision claim against Sidwell fails with
his claims against Dr. Huntington.l3 Even if Mr. Newmyer’s claims against Dr.
Huntington did not fail, however, Sidwell’s response to the situation was anything
but negligent. When the administration first learned in March 2010 that Dr.
Huntington and Ms. Mehrbach were romantically involved, it immediately
conducted an internal investigation and determined that it would not intervene in a
personal relationship that did not involve D., did not violate its policies, and
existed outside of the school between consenting adults. When the administration
subsequently learned in February 2011 that Dr. Huntington had misused his
13 See supra sections A-i and A-ii.
School. Mr. Newmyer discovered the relationship and began a determined
campaign to have Dr. Huntington fired, which eventually culminated in the present
litigation. Dr. Huntington responded to Mr. Newmyer’s campaign With litigation
of his own. The trial court granted both parties’ cross-motions for summary
judgment, dismissing the case in rota.
Mr. Newmyer appeals from the trial court’s dismissal of multiple tort claims,
filed individually and on behalf of D., against Sidwell and Dr. Huntington, in
which he generally asserts that Dr. Huntington established a physician-patient
relationship with D. while engaged in a romantic relationship with D’s mother Ms.
Mehrbach. Mr. Newmyer brought claims for (1) professional malpractice against
Sidwell and Dr. Huntington, (2) negligent supervision against Sidwell, (3) breach
of fiduciary duty against Sidwell and Dr. Huntington, (4) negligent infliction of
emotional distress against Sidwell and Dr. Huntington, and (5) intentional
infliction of emotional distress against Sidwell and Dr. Huntington.
Dr. Huntington cross-appeals from the trial court’s dismissal of his
counterclaims against Mr. Newmyer, in which he generally asserts that Mr.
Newmyer maliciously campaigned to have him fired from Sidwell out of spite over
the romantic relationship, causing him to lose three jobs and tarnishing his
reputation. Dr. Huntington brought claims for (1) tortious interference with
30
Sidwell email account in conversations with Ms. Mehrbach, it again acted quickly
to review the emails before terminating Dr. Huntington for violating its policies.
Sidwell had no notice of these policy violations in March 2010, and even if it had
somehow opted to review Dr. Huntington’s email account without cause on its own
initiative, it could not have discovered evidence that Dr. Huntington’s actions
harmed D. because no such evidence exists. Accordingly, Mr. Newmyer has failed
to show that Sidwell negligently supervised Dr. Huntington, and we affinn the trial
court’s grant of summary judgment regarding this claim in favor of Sidwell.
B. Dr. Huntington’s Counterclaims
i. Tortious Interference with Business or Contractual Relationships
Our law of tortious interference with business or contractual relationships
derives from the Restatement (Second) of Torts. See Sorrells v. Garfinckel’s,
Brooks Bros, Mller & Rhoads, Inc, 565 A.2d 285, 290 (DC. 1989) (applying
RESTATEMENT (SECOND) OF TORTS §§ 766—67 (AM. LAW. INST. 1979)). To
establish a prima facie case of tortious interference and survive summary
judgment, Dr. Huntington must demonstrate: “(1) existence of a valid contractual
or other business relationship; (2) [Mr Newmyer’s] knowledge of the relationship;
(3) intentional interference with that relationship by [Mr. Newmyer]; and (4)
31
resulting damages.” Havilah Real Prop. Seams, LLC v. VLK, LLC, 108 A.3d 334,
345—46 (DC. 2015) (quoting Onyeoziri v. Spivok, 44 A.3d 279, 286—87 (DC.
2012)
Dr. Huntington bears the burden to establish a “substantial and direct causal
link” between Mr. Newmyer’s alleged interference and the damages suffered.
Connors, Fiscina, Swartz & Zimmerly v. Rees, 599 A.2d 47, 51 (DC. 1991)
(quoting Dale v. Kivz‘tz, 596 A.2d 35, 41 (DC. 1991)). Interference is actionable
where it “induc[es] or otherwise caus[es] the third person [here, Sidwell] not to
perform” and it “need not cause an actual breach of the business relationship, but
instead may cause ‘merely a failure of performance’ by one of the parties.”
Onyeozz'ri, supra, 44 A.3d at 286 (citations omitted). The Restatement provides
seven factors to aid a fact—finder in determining whether recovery is available:
(a) the nature of the actor’s conduct, (b) the actor’s
motive, (c) the interests of the other with which the
actor’s conduct interferes, (d) the interests sought to be
advanced by the actor, (e) the social interests in
protecting the freedom of action of the actor and the
contractual interests of the other, (f) the proximity or
remoteness of the actor’s conduct to the interference and
(g) the relations between the parties.
32
Onyeoziri, supra, 44 A.3d at 291 (quoting RESTATEMENT (SECOND) OF TORTS
§ 767). The “key consideration,” however, is the actor’s “motive” for interfering.
Havilah, supra, 108 A.3d at 346. Dr. Huntington raised tortious interference
claims with regard to his employment at Sidwell and his business relations with
two private practices, Wake Kendall and Rathbone. For the reasons that follow,
we conclude that he has made a prima facie case with regard to Sidwell and Wake
Kendall.
Looking first to Sidwell, Dr. Huntington argues that he was fired from
Sidwell only after Mr. Newmyer (1) submitted an attorney—prepared memorandum
to Sidwell’s administration and Board of Trustees that analyzed Dr. Huntington’s
purported tortious conduct and appended many of the emails subpoenaed by Mr.
Newmyer in the course of divorce proceedings and (2) threatened litigation and
public exposure if Sidwell did not fire“ Dr. Huntington. Dr. Huntington cites
Onyeoziri and the Restatement factors to argue that even if Sidwell had valid
reasons for firing him, those reasons do not absolve Mr. Newmyer of his causal
conduct. See Onyeoziri, supra, 44 A.3d at 291 (citation omitted) (“All the
circumstances must be analyzed and considered with reference to the type of
relation disrupted, the means employed and the purpose of the actor’s
interference”).
33
The parties do not dispute that Dr. Huntington was an at-will employee at
Sidwell. Mr. Newmyer suggests that Dr. Huntington’s at—will status precludes his
claim of tortious interference. We disagree. We have previously held that liability
for tortious interference may lie where an actor interferes with an at-will
employee’s relationship with an employer. See Sorrells, supra, 565 A.2d at 288,
291, 292 (concluding that an at-will employee at a department store could bring a
claim for tortious interference with a contract against an agent of her employer).
Moreover, the District of Columbia derives the elements of tortious interference
with a contract and/or prospective advantage from the Restatement. See Havilah,
supra, 108 A.3d 349 (clarifying that “our jurisdiction embraces the Restatement’s
definition of tortious interference and its defenses”); see also Onyeoziri, supra, 44
A.3d at 286 (quoting the RESTATEMENT (SECOND) or Tonrs § 766 (AM. LAw. MST.
1979) (“One who intentionally and improperly interferes with the performance of a
contract . . . between another and a third person by inducing or otherwise causing
the third person not to perform the contract, is subject to liability to the other for
the pecuniary loss resulting to the other from the failure of the third person to
perform the contract.”)). In comment g to this section, the Restatement explains
that a contract that is terminable at—will is “valid and subsisting” until terminated
“and the defendant may not improperly interfere with it.” Applying the
Restatement, we conclude that an at-will employment relationship of the kind that
34
existed between Dr. Huntington and Sidwell is a valid and subsisting business
relationship for the purposes of a tortious interference claim.14
Mr. Newmyer cannot dispute that he knew of this business relationship, I
given his determined efforts to suggest a conflict between Dr. Huntington’s
employment at Sidwell and his romance with Ms. Mehrbach. Nor can Mr.
Newmyer dispute his well-documented and deliberate efforts to encourage Sidwell
to take action against Dr. Huntington. Accordingly, the only element of tortious
interference that remains in dispute is the causal relationship between Mr.
Newmyer’s actions and the resulting damage, namely, the termination of Dr.
Huntington’s employment at Sidwell.
14 Dr. Huntington’s counterclaim against Mr. Newmyer for interfering with
Dr. Huntington’s relationship with Sidwell falls outside the line of cases in which
we have held that an at-will employee, barred from challenging termination of
employment, is also barred from bringing a tortious interference claim —
essentially attacking the same termination — against third parties affiliated with
that employer. See Furrell v. Dep’t of Labor Fed. Credit Union, 816 A.2d 793,
807 (DC. 2003) (stating that an at—will employee cannot bring a wrongful
discharge claim against an employer nor a tortious interference claim for the same
termination); McManus v. MCI Commc’n Corp, 748 A.2d 949, 958 (DC. 2000)
(“it is axiomatic that an employer cannot interfere with its own contrac ”); Bible
Way Church of Our Lord Jesus Christ of Apostolic Faith of Washington, D. C. v.
Beards, 680 A.2d 419, 433 (DC. 1996) (finding no basis for an at-will employee
to bring a tortious interference claim against an employer for wrongful discharge),
Cf. Mei: V. BAE Sys. Tech. Solutions & Servs. Inc, 774 F.3d 18, 21, 23 (DC. Cir.
2014) (concluding that there is no tortious interference claim for at-will employees
in the District of Columbia).
35
Viewing the evidence in the light most favorable to Dr. Huntington, we
cannot conclude, as a matter of law, that Mr. Farquhar, Sidwell’s Head of School,
relied solely on the emails attached to the attorney—prepared memorandum in
deciding to fire Dr. Huntington. Reaching this conclusion, as Mr. Newmyer would
have us do, would usurp the role of the fact—finder. Mr. F arquhar testified in his
deposition that the memorandum contained “sufficient information . . . to serve as
grounds for termination” but stated that his decision was “based more on the
emails attached to the memorandum.” We agree that a jury may credit Mr.
Farquhar’s testimony at trial as evidence that he was not influenced by Mr.
Newmyer’s threat of litigation; however, it need not do so given Mr. Farquhar’s
exposure to the memorandum summarizing Dr. Huntington’s alleged tortious
conduct that accompanied those emails.
To be sure, Dr. Huntington’s violation of Sidwell policies provided valid
independent reasons to fire Dr. Huntington in the absence of any intentional
interference by Mr. Newmyer. Yet, the fact that Sidwell had an independent
reason for firing Dr. Huntington is in no way dispositive to the question of liability
for tortious interference. See Onyeoziri, supra, 44 A.3d at 291 (stating that “[the
. to determine whether the
fact-finder’s] task is to evaluate the evidence . .
interference was improper under the circumstances” and considering the factors
36
listed in the RESTATEMENT (SECOND) OF TORTs § 767) (quotations and alterations
omitted). The evidence in the record demonstrates a genuine issue of material fact
and does not establish, as Mr. Newmyer suggests, that Mr. Farquhar relied solely
upon “the transmission of truthful information[, which] cannot serve as the basis
53
for a tortious interference claim, We reverse the trial court’s entry of summary
judgment in favor of Mr. Newmyer as to Dr. Huntington’s counterclaim for
tortious interference with his employment at Sidwell.
We reach a similar conclusion with regard to Dr. Huntington’s business
relationship with Wake Kendall, which the record indicates was an independent
contractor relationship. Mr. Newmyer was aware of this business relationship and
intentionally interfered with it, as demonstrated by his attorney’s September 17,
2010, letter informing Wake Kendall of forthcoming litigation and Board inquiries
against Dr. Huntington. As with Dr. Huntington’s employment at Sidwell, the
only element of tortious interference that remains in dispute as to Wake Kendall is
the causal relationship between Mr. Newmyer’s interfering actions and the
resulting damage, namely, Wake Kendall’s decision to place Dr. Huntington on
leave pending an inquiry by the District of Columbia Board of Psychology.
Dr. Huntington alleges that Mr. Newmyer’s interfering actions included
sending the September 17, 2010, letter, publicizing his subsequently-filed civil
37
complaint to multiple media outlets on May 12, 2010, and initiating an inquiry at
the District of Columbia Board of Psychology five days later. Wake Kendall
testified in a deposition that its decision to place Dr. Huntington on leave was
based on the Board’s inquiry but that it was also aware of the civil complaint. On
these facts, there exists a genuine issue of material fact for a jury as to whether Mr.
Newmyer’s actions caused Dr. Huntington to be placed on leave. Accordingly, we
reverse the trial court’s entry of summary judgment in favor of Mr. Newmyer as to
Dr. Huntington’s counterclaim for tortious interference with his position at Wake
Kendall.
As to Dr. Huntington’s business relationship with Rathbone, the record
indicates that Dr. Huntington was an independent contractor. The record does not
establish, however, that Mr. Newmyer knew of Dr. Huntington’s business
relationship with Rathbone such that Mr. Newmyer could intend to interfere with
it. Accordingly, we affirm the trial court’s entry of summary judgment in favor of
Mr. Newmyer as to Dr. Huntington’s counterclaim for tortious interference with
his position at Rathbone. See Alston v. United States, 518 A.2d 439, 440 n.2 (DC.
1986) (“It is well settled that an appellate court may affirm a decision for reasons
other than those given by the trial court”).
38
ii. Intentional Infliction of Emotional Distress
To survive summary judgment, Dr. Huntington was required to meet the
standard for intentional infliction of emotional distress that we articulated supra in
section A-ii: he must Show (1) extreme and outrageous conduct on the part of Mr.
Newmyer that (2) intentionally or recklessly (3) caused him severe emotional
distress. See Tulin, supra, 994 A.2d at 800. To be actionable, the conduct must be
“so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community” Id. (citation omitted). “The requirement of outrageousness
is not an easy one to meet.” Drejza, supra, 650 A.2d at 1312. “It is for the court to
determine, in the first instance, whether the defendant’s conduct may reasonably be
regarded as so extreme and outrageous as to permit recovery, or whether it is
necessarily so.” Id. at 1316 (citing RESTATEMENT (SECOND) OF TORTS § 46 cmt. h).
Where reasonable persons may differ, the question must go to the jury “to
determine whether, in the particular case, the conduct has been sufficientfly]
extreme and outrageous to result in liability.” Id. (quoting RESTATEMENT
(SECOND) OF TORTS § 46 cmt. h).
39
Dr. Huntington primarily contends that Mr. Newmyer’s use of a
communications firm to publicize the civil complaint immediately after he filed it
was an “extreme and outrageous” act. Dr. Huntington argues that publicizing such
a complaint, which contained direct quotes firom sexually explicit emails between
Dr. Huntington and Ms. Mehrbach, went “beyond all possible bounds of decency.”
T ulin, supra, 994 A.2d at 800 (citation omitted). Moreover, Dr. Huntington alleges
that publicizing the complaint was merely the culmination of a string of such
conduct -~— which included subpoenaing Dr. Huntington in the Newmyer divorce
proceedings — all aimed at “furthering [Mr. Newmyer’s] malicious desire to
inflict financial, professional, and emotional pain[.]” This conduct caused severe
emotional distress, Dr. Huntington argues, as demonstrated by a multitude of
symptoms, including “low affect, loss of appetite, low energy, sleep disturbances
and periods of weepiness.” Dr. Huntington supported these symptoms with
deposition testimony from Dr. Mitch Earlywine, PhD, who is Dr. Huntington’s
mentor and professor, and from whom Dr. Huntington sought behavioral and
cognitive assistance.
The District of Columbia recognizes an absolute privilege for “statements
published incidental to judicial proceedings . . . , providing the statements are
relevant to the proceeding.” Mazanderan v. McGranery, 490 A.2d 180, 181 (DC.
contractual or business relationships with Sidwell and two private practices, The
Wake Kendall Group PLLC (“Wake Kendall”) and Rathbone and Associates
(“Rathbone”); and (2) intentional infliction of emotional distress.
For the reasons that follow, we affirm the trial court’s grant of summary
judgment dismissing Mr. Newmyer’s claims. We reverse the trial court’s grant of
summary judgment dismissing Dr. Huntington’s counterclaims against Mr.
Newmyer for tortious interference as to his employment at Sidweli and Wake
Kendall, and for intentional infliction of emotional distress. Finally, we affirm the
dismissal of Dr. Huntington’s counterclaim for tortious interference with his
employment at Rathbone.
I. Factual Background
A. The Events at Issue
Arthur Newmyer and Tara Mehrbach were married in 2001 and had two
daughters while living in Florida. The couple separated in 2009 and entered a
separation agreement in which they stipulated that they would live apart, “freed of
any and all marital responsibilities and duties[.]” Mr. Newmyer remained in
Florida while Ms. Mehrbach relocated with their two daughters to the Washington,
40
1984). See also RESTATEMENT (SECOND) OF TORTs § 587 (1977); Mahler v.
Houston, 356 A.2d 646, 647 (DC. 1976) (explaining, in the context Of the
analogous privilege for attorneys, RESTATEMENT (SECOND) OF TORTs § 586 (1938),
that “[t]he question of relevance is a question of law for the court to determine”).15
Mr. Newmyer contends that his actions fall within this privilege. While we agree
that the contents of Mr. Newmyer’s civil complaint fall within this privilege, Mr.
Newmyer’s act of publicizing the complaint to media organizations immediately
after filing does not. Publicizing the complaint was gratuitous and bears no
relevance whatsoever to the judicial proceedings. We decline to attach a privilege
to such conduct.
Given the particularly sexually explicit language of the complaint and Mr.
Newmyer’s subsequent use of the complaint to trigger an investigation of Dr.
Huntington by the District Of Columbia Board of Psychology and the Maryland
15 The RESTATEMENT (SECOND) OF TORTS § 587 provides:
A party to a private litigation or a private prosecutor or
defendant in a criminal prosecution is absolutely
privileged to publish defamatory matter concerning
another in communications preliminary to a proposed
judicial proceeding, or in the institution of or during the
course and as a part of, a judicial proceeding in which he
participates, if the matter has some relation to the
proceeding.
41
Board of Examiners of Psychologists, we have little difficulty concluding that this
conduct “may reasonably be regarded as so extreme and outrageous.” See Drejza,
supra, 650 A.2d at 1316 (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. h).
On the record before us, there is no question that Mr. Newmyer intentionally
publicized the civil complaint. We can discern no purpose behind this act other
than to brand Dr. Huntington with a scarlet letter by increasing public awareness of
the lawsuit.16 We acknowledge, however, that “reasonable [persons] may differ”
and we leave to the jury the task of determining “whether, in the particular case,
the conduct has been sufficientfiy] extreme and outrageous to result in liability.”
Id. (quoting RESTATEMENT (SECOND) OF TORTs § 46 cmt. h). Accordingly, we
reverse the trial court’s grant of summary judgment for Mr. Newmyer as to Dr.
Huntington’s counterclaim for intentional infliction of emotional distress.
III. Conclusion
We reverse the trial court’s grant of summary judgment as to Dr.
Huntington’s counterclaims against Mr. Newmyer for tortious interference with
Dr. Huntington’s business relationships with Sidweil and Wake Kendall and for
. 16 C}? NATHANIEL HAWTHORNE, THE SCARLET LETTER: A ROMANCE (1850).
42
intentional infliction of emotional distress, and we remand the case for proceedings
consistent with this opinion. In all other aspects, we affirm.17
‘7 Mr. Newmyer also appealed from the trial court’s denial of his special
motion to dismiss, filed pursuant to the Anti-SLAPP Act, DC. Code § 16-5502 (a)
(2012 Repl.), which authorizes damages pursuant to “any claim arising from an act
in furtherance of the right of advocacy on issues of public interest[.]” Such
motions protect citizens from “Strategic Lawsuits Against Public Participation”
and require the moving party to show “that the claim at issue arises from an act in
furtherance of the right of advocacy on issues of public interest” no later than “45
days after service of the claim.” Id. The trial court denied Mr. Newmyer’s motion
as untimely, frivolous, and inapplicable to the current dispute for lack of any issue
of public importance.
We affirm the trial court’s denial of the motion and award of attorney’s fees
for two reasons. First, Mr. Newmyer filed his motion on February 29, 2012, more
than forty-five days after Dr. Huntington filed his counter-complaint on May 12,
2011. See DC. Code § 16-5502 (a) (placing a forty—five day limit on such claims).
Second, Mr. Newmyer failed to establish any issue of public interest. See DC.
Code § 16—5501 (3) (2012 Repl.) (stating that an “‘[i]ssue of public interest” means
an issue related to health or safety; environmental, economic, or community well-
being; the District government; a public figure; or a good, product, or service in the
market place” and “shall not be construed to include private interests[.]”).
D.C., metropolitan area. Shortly thereafter, Ms. Mehrbach enrolled one daughter,
D., then five years old, in the Lower School at Sidwell, over Mr. Newmyer’s
objections. As a former Sidwell student, Mr. Newmyer thought that the school
would not fit D.’s needs, as D. is an advanced learner with a history of emotional
problems.
D. in fact experienced adjustment issues related to her emotional problems
in her first few months at Sidwell and received report cards that seemed at odds
with her intellectual ability. In an effort to help D. succeed at Sidwell, Ms.
Mehrbach and Mr. Newmyer engaged Dr. Frederic Solomon, whom Ms. Mehrbach
referred to as “a leading pediatric psychiatrist,” to treat D. Over the course of this
treatment, Dr. Solomon conferred with D.’s teachers at Sidwell and, along with
two colleagues, conducted a complete “educational, cognitive, and psychological”
evaluation of D. that concluded in March 2010.
Meanwhile, on November 13, 2009, Ms. Mehrbach hosted a potluck dinner
at her home for families of prekindergarten students enrolled in Sidwell’s Lower
School. Dr. James Huntington attended the potluck with his daughter, who was
D.’s classmate. In addition to being a Sidwell parent, Dr. Huntington is a licensed
clinical psychologist who worked as a counselor at Sidwell’s Middle School. Dr.
Huntington explained in his deposition that Sidwell’s Middle School and Lower
School are separated by approximately four miles and that counselors from the
Middle School do not generally work with students at the Lower School. Dr.
Huntington’s statement is corroborated by testimony from Ms. Louise Whalen, the
Lower School’s resource teacher, and Mr. Stephen Barker, the interim Head of
School at Sidwell?
Several months later, on January 12, 2010, Dr. Huntington emailed Ms.
Mehrbaeh to state his regret at being unable to spend more time talking with her at
the potluck and to ask whether she would like to arrange a “playdate” for his
daughter and D., who seemed to get along well. After scheduling the playdate, the
two parents exchanged many emails expressing mutual romantic interest. In one of
these emails, Ms. Mehrbach explained that D. had opened Ms. Mehrbach’s laptop
and had likely seen several emails from Dr. Huntington. Dr. Huntington responded
by expressing surprise that D. could read at such a young age, which prompted Ms.
Mehrbach to share her frustration at how Sidwell had handled D.’s intellectual
needs. Ms. Mehrbach explained that she had intended to mention this topic to him
and suggested that they discuss it again in the future.
2 Mr. Barker stated that Dr. Huntington, as “a middle school person . . .
would have had nothing to do with [D.] at [the Lower] school.”
The playdate occurred on January 22, 2010. Over several hours, Dr.
Huntington’s three children, including his daughter, interacted with Ms.
Mehrbach’s two daughters, including D. At some point during the playdate, Dr.
Huntington and Ms. Mehrbach discussed D.’s difficulties at Sidwell and Dr.
Huntington suggested that Ms. Mehrbach contact the school’s resource teacher,
Ms. Louise Whalen. Two days later, Ms. Mehrbach summarized her interaction
with Dr. Huntington in an email to Mr. Newmyer, explaining that Dr. Huntington
had “spent a little time with [D.] on Friday at the playdate and [she] explained
[their] frustration with [the] school,” and that Dr. Huntington had “agreed to talk to
the lower school resource teacher on [D.]’s behalf.” In the same email, Ms.
Mehrbach explained to Mr. Newmyer that she and Dr. Huntington met for drinks
the night after the playdate and again discussed D. so that when Dr. Huntington
contacted Ms. Whalen “he could act like he know[s] [D.] better than he does.” She
also shared that Dr. Huntington “was blown away by her reading, etc.” Ms.
Mehrbach explained that Dr. Huntington had told her about a “turf war” between
Lower School teachers and Ms. Whelan “because the teachers don’t want to admit
if they cant [sic] handle something.” She continued:
So [Dr. Huntington] is going to call the resource woman
and explain that he has spent some time with [D.] and
. . . thinks she needs more stimulation because she is
really advanced and isn’t getting recognized for it. That
way we don’t have to be the pushy . . . parents who went
around the teachers.
Ms. Mehrbach ended the email by expressing her hope that Dr. Huntington’s call
to Ms. Whalen, combined with the efforts of D’s treating psychologist, Dr.
Solomon, would help D. to improve at Sidwell. Dr. Huntington testified in his
deposition that he does not recall this conversation, though he stated that he and
Ms. Mehrbach “would have talked about whatever. And, [he guessed], according
to [Ms Mehrbach’s] memories, [they] talked about [D.].”
Dr. Huntington did not follow through on his promise to contact Ms. Whalen
about D. until February 22, 2010, a month after the playdate. In a voicemail
message, Dr. Huntington told Ms. Whelan that he was calling without “any sense
of urgency” regarding Ms. Mehrbach’s concern that D. seemed “understimulated.”
He explained that he had been surprised by D.’s advanced ability and asked Ms.
Whalen “if there’s just a way to sort of assess this kid or give her some stimulation
or something,” noting that he thought D. may be “bored” based on his “limited
exposure with this child and then talking with the mom[.]”3
3 In her deposition, Ms. Whelan testified that she did not understand this
voicemail to be “a recommendation or a directive of any sort” and understood that
(continued . . .)
In the months following the playdate, Ms. Mehrbach and Dr. Huntington
developed a romantic relationship. They continued to exchange emails about
many personal matters, including their children and Ms. Mehrbach’s strained
relationship with Mr. Newmyer. Mr. Newmyer discovered Ms. Mehrbach’s
romantic relationship with Dr. Huntington in February 2010. In March 2010, Mr.
Newmyer asked a former Sidwell board member, Mr. Daniel Mayers, to contact
Sidwell’s attorney, Mr. Christopher Davies, regarding Dr. Huntington. Mr.
Mayers met with Mr. Davies and conveyed that Mr. Newmyer was very upset
about the romantic relationship and encouraged the school to contact Mr.
Newmyer to discuss it. Mr. Stephen Barker, then interim Head of School at
Sidweil, conducted an internal investigation, during which he discussed the issue
with Dr. Huntington. Dr. Huntington denied the existence of a therapeutic
relationship with D. and provided a copy of the Newmyers’ separation agreement,
which indicated that Ms. Mehrbach was free to engage in a romantic relationship.
After consulting with Mr. Davies, Mr. Barker determined that the school would not
intervene in a personal relationship that existed outside of the school between
consenting adults; Mr. Barker explained during his deposition that Dr.
(. . . continued)
Dr. Huntington’s call resulted from observing D. “in a social setting with family
friends.”