Vallinoto v. DiSandro

See, heard, e.g., Adoption Murphy, In re we decline substantive Ohio be to reach the (1988) App.3d due-process presented questions in N.E.2d claims (court presence held mother’s mere in 5. county statutory requirement did not meet therefore, summary, cer- In we answer the 5103.16) (R.C. county § that she reside questions tified as follows: jurisdiction acquire that the over order court Family 1: question To Court retains placement adoption; private of her child for jurisdiction adoption petition to hear an shopping”). mother was “forum notwithstanding appointment of a tem- private placements on Restrictions have guardian by porary the Probate Court. attempted to ensure that the best-interests questions To and 4: We hold that the standard is and that children are satisfied best interests the child Jeramie N. will “ highest not ‘sold to the bidder and shuffled Family permitting be served Court objects around like on an auction block.’” petition adop- for to hear and consider the Adoption N.E.2d Murphy, In re at tion his deceased’s mother’s twin sister private placements 832. Because can raise husband, and her are non-Rhode Is- who may agen- implicated concerns that not be We land residents. decline on basis cy placements, prepared at we are not this apply holding our the record before us to hold that no rational basis for time to there is holding cases at time. Our to other this imposition residency requirements applied in limited to the statute as this public adoptions. private adoptions but not in case. however, opinion, baby- are of the We have questions To and 5: Because we are in the implicated market issues in- petitioners, relief to we need afforded stant case and that best interests Jeramie’s due-process their not address substantive by permitting

would be served Rumrills arguments. petition Family to have their heard Court. may in this be remanded The record case Family proceedings consis- Court for Therefore, we to conclude are led opinion. tent with this § applying is no 15- there rational basis preclude petitioners 7-4 to the out-of-state Family petitioning

this case from Court parents. adoptive consideration decision,

reaching this we note that the re- imposed private placements by

strictions §

§ 15-7-2 and 42-72.1-4 do bar the placement

private of a child with close

relative. See ante. Maria Del Rosario VALLINOTO note that before us de-

We the record input testimony govern- from the void of agencies adoption mental and licensed A. et al. Edmond DiSANDRO setting forth the presumably assisted in ra- ques- adoption tional basis for statute 93-379-Appeal. No. tion, agencies allowed to offer that should be Supreme Court of Rhode Island. arguments respect the statute’s consti- tutionality. ease does not en- Because this Feb. fully public-policy able us consider the underlying implications rationale statute, we decline

enactment not sur- to hold that would

time the statute minimal-scrutiny analysis. Consequent-

vive

ly, concluding that 15-7-4 we refrain from scrutiny. equal-protection

fails to survive permit petition Rumrills’

Because we

832 Bar- Keough, Pawtucket and

Joseph A. Malloy, Plaintiff. tholme P. Smith, Provi- and Robert W. Lauren Jones dence, for Defendant.

OPINION BOURCIER, Justice. appeal from us on

This comes before case Superior judgment final entered jury’s favor following a verdict Court Rosario Vallinoto plaintiff, Maria Del defendant, Ed- (Vallinoto), against (DiSandro). mond A. DiSandro I Travel Facts and May retained DiSandro In Vallinoto brought action represent her a divorce husband, against August her former Dennis some three months (Ledo). Vallinoto, Spain, Ledo a citizen of having represent after retained to been Valli- living Spain married Ledo while in 1977. action, noto in her divorce DiSandro They country. thereafter moved to this Vallinoto became involved in an intimate citizen, Ledo anwas American but Vallinoto physical relationship. relationship That con- “green was not and was here on a so-called hearing tinued until last on her Vallinoto’s child, marriage produced card.” The one petition in Di- divorce December of 1988. Christina, was also an who American citizen. Sandro viewed the as consensu- Vallinoto, hand, alleged al. the other marriage Vallinoto’s no means a tranquil happy compelled perform or a she was acts one. She testified that during marriage part the course of alleged to Ledo with DiSandro in because of an home, her, she had been restricted to the marital threat that DiSandro had once made to abused, verbally badgered, and belittled. stating representa- that if he discontinued his She claims to have suffеred severe mental her, deported tion of she would and lose stress, depression and to have entertained custody in alleged, of her child. She also like thoughts, suicidal and to have “isolated” been vein, that DiSandro told her that he had by and “victimized” throughout Ledo represent undertaken to her because ten-year course marriage. of their It was she had him been referred to a mutual Ledo, however, who commenced the fateful good lawyers friend and that like himself proceedings, divorce with Vallinoto later usually lawyers did not take cases that other counterclaiming for divorce. started, interpreted had which she to mean having

After retained and dismissing then as in he withdrew her counsel her attorneys two other with whom had she be- case, good attorneys other would not under- come dissatisfied in the course the divorce represent take to her. Vallinoto asserted proceedings, Vallinoto in retained DiSandro threats, implied that as a result of those she May of 1987. DiSandro’s efforts on her compelled comply felt with DiSandro’s appear behalf per- to have been both well demands, fearing that he would termi- formed and successful. DiSandro was able representation nate his and she weekly obtain for her an increase would engage not thereafter be able to an- support payments child previously ordered competent attorney.1 other Over the course daughter, Christina, for her from $15 $30 approximately eighteen-month of their rela- per week to per week. $150 More- $200 tionship, Vallinoto estimated that she and over, at the time that her divorce became actively DiSandro were intimate almost 25,1989, April final on Vallinoto was awarded times, all without consent. She later custody Christina, percent of the mari- disciplinary hearings testified at board assets, priceless tal several paintings and really guess number was on her heirlooms, Vallinoto, attorney’s and fees. event, part. the occurrence rather account, her own acknowledged receiving ex- significant than the number is the factor. legal representation cellent DiSandro below, jury During the trial DiSandro’s proceedings divorce as well as successful (Smith), results, partner, clearly final all law Z. Hershel Smith was evidenced in her final judgment testify Unfortunately, of divorce. called as a witness Vallinoto to howev- er, regard relationship relationship DiSandro’s with Vallinoto ex- with to the nature of the beyond legal representation tended far that existed between Vallinoto and DiSandro. contrary her. Smith testified to Vallinoto’s estate, attempted portray 1. The has herself in obtained a state license to sell real realtor, appeal helpless, penniless employed by as a native of a local and after a Spain, country family ten-year marriage, alone in this without had bitter and tumultuous she English speaking ability. parents readily friends and limited in filed for divorce. Her made money engage The trial record discloses otherwise. She had available to her in order to three college Spain years, major- attorneys point deposited attended for three and at one different $10,000 ing psychology, year had married in her third in a Rhode Island bank account which college, country during lived in this for ten funds were to her her divorce some available years, speak English, litigation. learned to tested for and DiSandro, relationship complaint view of her he in her civil action filed girl- Superior considered Vallinoto to be DiSandro’s Court therein she asserted claims time, legal malpractice friend. He recalled that at Christmas against DiSandro and firm, cheerfully battery Vallinoto came to DiSandro’s law his law and intentional infliction DiSandro, gave gifts personnel, against office to the office of emotional distress de- including firm, against DiSandro. herself testi- Vallinoto ceit DiSandro and the law that in the course negligence against fied she sought the law firm.2 She frequently greeting compensatory punitive sent cards to damages. different well as DiSandro, many separate ex- which ended with an trial After five claims submit- pression obviously intending jury, of “love” to con- and the ted returned vey Among Vallinoto, covering that emotion to general DiSandro. verdict for all $25,000 many claims, greeting compensatory trial exhibits was a card con- taining phrase “yоu $200,000 got right punitive me where I damages. DiSandro want me.” appealed.

By the time divorce Vallinoto’s became affairs, II early final in both nonlegal, between her and DiSandro had Legal Malpractice returned, however, ended. She DiSandro prevail negligence- In order on later, eight legal seeking some months assis- claim, legal malpractice based Vallinoto was tance on another matter in which she was prove required to that she had retained the husband, being sued her former Ledo. defendant-attorney in represent her her and did She DiSandro not renew their sexual attorney proceeding, divorce that had intimacy during attorney- that particular negligent, attorney’s been and that relationship, client and Vallinoto has never “‘negligence was proximate cause of complained handling of DiSandro’s of that ” * * * damages Scuncio her or loss.’ Mo matter for her. (R.I.1993) tors, Teverow, Inc. v. A.2d 268 The record also reveals that Vallinoto’s curiam). part An (per integral attor interests, however, not re- extramarital requires ney-malpractice-negligence claim attorney’s participation. to her stricted She proof that actual resulted from the during ongoing rela- admitted her sexual duty attorney’s alleged arising breach of the tionship prior with DiSandro and to the time attorney-client relationship. out of the That concluding hearings petition her divorce duty part providing includes in essential com continuing into late thereafter client, representation including petent dating she than DiSan- someone other legal competent knowledge, the utilization of In dro. the summer of 1989 she traveled to skill, thoroughness preparation case rea person Hawaii with that other shared necessary protect sonably and to both the same hotel room with him for some two See, e.g., art. advance client’s interests. Later, early began weeks. she then V, Supreme Rule 1.1 of the Court Rules of dating a new and man. It was different Professional Conduct. planning pur- man while with this latest larger together Suppressed Suppressed, chase a house in to live In Ill. which previous App.3d him 565 N.E.2d 101 that she decided tell 151 Ill.Dec. (1990), attorney relationship sexual with DiSandro. She a female client sued who eventually represented in a previously married that man in December had her divorce later, alleged It was some three weeks action. The client a breach fidu decided, attorney’s January ciary duty arising alleged with the she from the husband, her, encouragement of her to com- and seduction of which resulted new coercion litigation seeking monetary engaging dam- acts him. The mence her her with ages from claimed had been forced to DiSandro. client that she complaint 2. Vallinoto’s also asserted a claim for linoto withdrew that count at trial. distress, negligent Val- infliction emotional but attorney’s comply requests cordingly with the for sexu- found that there was no cause of intimacy legal malpractice proven al because she had feared that to action for and af- jeopardized have refused would have firmed court’s dismissal of the did, however, having complied complaint. case. After her attor- client’s The court ney’s requests times, possibil- opinion, a few the client dis- in the course of its raise the charged ity allegations him and retained new counsel to that on the basis of the client’s complete battery a claim or intentional her divorce action. could lie infliction of distress.

Although complaint in her the client did Gile, specifically Cal.App.3d label her cause of action “le- In McDaniel (1991), hand, gal malpractice,” Cal.Rptr. the Illinois court nonethe- on the other interpreted allegations legal malpractice less as such. claim was held sufficient to concluded, however, summary judgment That court the withstand in circum- demonstrate, factually Sup- client had failed to on the evi- stances that differed McDaniel, duty presented, proof pressed. dence of a breach of In involved services, damages. accordingly actually legal gave The court held sub- withheld client, recovery. that the client was not entitled to standard service to the and de- legal malpractice layed rendering legal The client’s claim in that services whenever rejected, part, requests ease was bеcause the Illi- for sexual favors went unanswered. result, go up nois court refused to far as to hold that As a the client that ease ended every attorney-client losing pension plan inherent in a her half-interest duty sexually proceeding by was a to refrain from intimate had to settle her divorce her- Instead, McDaniel, self, disadvantage. behavior. the court all held there to her duty alleged “the breach in a mal- there was clear evidence that the sexual fa- practice clearly action requested quid pro quo must be more linked vors were as a attorney’s legal representation.” legal legal 151 the services and that the client’s actually position Ill.Dec. 565 N.E.2d at 105. Thus in her divorce action suf- legal malpractice comply there could be no claim for fered as a result of her refusal to a attorney’s requests. as result of sexual involvement between an with her The facts, attorney course, complete- and a client unless “the of are McDaniel case actually professional ly distinguishable Sup- made his services con- from the facts in * * * tingent upon legal pressed, malpractice the sexual involvement or where the claim legal was, representation rejected. They completely his in of the client are also dis- fact, adversely by tinguishable affected” his sexual activi- in the the facts before us concerning ties. Id. The court found that on the facts instant ease Vallinoto and DiSan- client, alleged by no evidence existed dro. quid pro quo that the sexual acts a for involves, Sup- The case before us unlike legal provided services her. McDaniel, pressed negligence-based le- Suppressed gal legal malpractice opposed court also found that the claim as prove “damages stemming malpractice client of fidu- failed claim based on breach However, theory, underlying ciary duty. from a loss suffered in the client's under either * * * legal legal legal malpractice action or that the client’s claim for would position compromised by probative was somehow fail. There is no relevant evidence duty alleged.” suggests in to us that breach Id. 151 Ill.Dec. at the trial record legal by 565 N.E.2d at 106. The Illinois court services rendered DiSandro alone, damage, contingent on sexual involvement reasoned was were made ability legal malpractice clearly had the insufficient to sustain a with Vallinoto. She knowledge discharge opening claim it “would the door and the and leave because any brought any dissat- malpractice number of actions DiSandro at time she was ever may legal representation in her clients who have been less than isfied with his earlier, prior to re- legal representation satisfied their but divorce case. She had DiSandro, point specific taining discharged previous two can to no harm other than their attorneys court ac- with whom she had been dissatis- own emotional distress.” Id. The any Moreover, prevents re- testimony, legal efforts on her behalf according to her fied. legal malprac- covery negligence-based than 200 incidents of sexual on a there were more DiSandro, some such as the one Vallinoto asserts between her and tice claim encounters at inti- taking place complaint. after romantic dinners during sleep- and others mate restaurants since Valli- Accordingly, we conclude that The numerous overs at DiSandro’s house. produce any dam- noto failed to evidence greeting cards she sent to DiSandro over resulting litigation from the ages to her relationship, express- all many months of the represented DiSandro which she was him, for seem to ing her love and affection support negligence-based claim for two-way it affair. Addi- indicate that was malpractice, the trial erred legal tionally, returned she to DiSandro granting DiSandro’s motion for a direct- representation long after the incidents of the malpractice A di- on the count. ed verdict concerned in alleged forced sexual relations granted verdict should also have been rected terminated and at a time her civil action had malpractice negligence-based legal on the men, dating other when she was at least two (count 6). against the law firm count asserted just filing whom she married before one оf absolutely presented no evidence There was All facts against DiSandro. those her action support that claim at trial could legal represen- suggest to us that DiSandro’s DiSandro, committing when prove that kept separate apart from the tation was Vallinoto, was then sexual acts with various personal relationship that he embarked partnership and with- acting on behalf of the Accordingly, though we with Vallinoto. even partnership scope of the in the reasonable or ex- certainly cannot and do not condone Partnership Act of Uniform business. See involving his cuse DiSandro’s actions extrale- (1995); § Uniform 6 U.L.A. client, is an gal relationship with his there 6 U.L.A. Partnership Act of 1994 before us absence of evidence the record Annotation, (1995); Kemper, Vicarious J.R. support contention that would Vallinoto’s Attorney Partner in Liability Tort departed from that DiSandro’s services Firm, Law 70 A.L.R.3d required of due care of DiSan- the standard was, again, competent no Additionally, there litiga- handling of her divorce case dro duty proof any independent breach relationship. attorney-client We tion Vallinoto, and, discussed as was owed to additionally that even if a factfinder note above, evi- there was a total absence by legal services DiSan- were to find that the damages resulting to her specific dence of favors, quid quo for pro a dro were malpractice litigation. A civil out of the claim would still fail because Vallinoto’s essence, is, negligence claim. It claim any competent and complete absence of by pre- the fair requires prove damages probative evidence of relevant ponderance of the trial evidence legal position, to her or her resulted care, duty also his or her but defendant’s personally, as a result of DiSan- detriment actually damages and the breach thereof She inappropriate dro’s sexual activities. plain- resulting therefrom proximately job that DiSandro did “excellent” testified those re- prove all three of tiff. Failure to in her divorce action. representing law, elements, matter of quired acts as a had ever more than she She fact received recovery. bar relief or her divorce anticipated at the conclusion of court, are restricted custody appellate As an we of her proceeding. She was awarded record, reviewing trial to what child, when support payments, 60 an increase case, the trial to us. and several record discloses percent of the marital assets plaintiff sus- heirlooms, clearly discloses that well as record priceless paintings as damage that she could loss or action tained no attorney’s fees. Her divorce legal per- hers, certainly proximately to DiSandro’s accounts, including relate all actions, in firm’s formance or to his law satisfactorily, and that result reflects settled claims for count 5 and count 6 legal represen- support of her competency of DiSandro’s upon alleged negligence malpractice based evi- complete The absence tation. bitterly handling contested di- damages resulting to her from his dence

837 vorce-custody necessarily private It cause of action for dam- case. follows establish jury’s that the ages sounding negligence therefore verdict for for breach of simply on the count 5 and count 6 claims was fiduciary obligation. contrary elementary negli to the most directly “All of courts that have consid gence-tort principles law and not sustainable. question ered this have held that it does Engineering

See Lutz Co. v. Industrial Lou Trevino, not. See Martin v. 578 S.W.2d vers, Inc., 631, (R.I.1991); 585 A.2d 635 Forte Arnold, (Tex.Civ.App.1978); Tingle v. 763 Brothers, Amusements, Inc., Inc. v. National Allen, 134, Ga.App. Cate & 129 199 S.E.2d (R.I.1987). 1301, See also (1973) (statute solicitation); prohibiting 260 Stores, Inc., v. Presto Food 618 Mostoufi Corp. Elgin Merritt-Chapman & Scott v. 1372, (Fla.Dist.Ct.App.1993); So.2d 1377 1 (E.D.Tenn. Coal, Inc., F.Supp. 358 17 Krause, Gans, Speiser, The American Morris, 497, 1972); Ga.App. Bush v. 123 (1983); § Law Torts 1:11 1 on Per Stein (1971) (statute prohibiting 181 S.E.2d 503 (2nd 1991); Injury Damages, § sonal 1:4 ed. having private practice); Lyddon DA from Minzer, Nates, Kimball, Axelrod, ‍​​‌​‌​‌​‌​‌​​​‌​​‌‌​‌‌‌​​‌​‌‌‌​​​​‌​‌​​​​​‌‌‌‌‌​‍1 and Gold- Shaw, 489, Ill.App.3d v. 14 56 Ill.Dec. stein, Damages in Tort Action 1.01[2] (1978); Harley, 372 N.E.2d 685 v. Gifford (1978); 62 A.D.2d 404 405 Hill N.Y.S.2d Willmott, (Ky.App.1978); v. 561 331 S.W.2d suggests The dissent that in review Buonagurio, Drago v. 46 N.Y.2d 413 ing sufficiency of the trial record con (1978); 910, 386 N.E.2d 821 N.Y.S.2d cerning plaintiffs negli count 5 and count 6 (La. Spencer Burglass, v. 337 596 So.2d claims, gence-based mаlpractice we should Sears, Co., App.1976); Noble v. Roebuck & adjudication consider DiSandro’s later Cal.App.3d Cal.Rptr. 33 109 269 having disciplinary pro violated certain (1973); Mackie, F.Supp. Bickel v. stemming fessional-conduct rules from his (N.D.Iowa 1978); Miller, Nelson v. extralegal sexual plaintiff.3 activities with the (1980); Young Kan. Although a P.2d 438 violation of those could rules Hecht, certainly Kan.App.2d 597 P.2d 682 be relevant in a claim for breach (1979); Dozorc, fiduciary obligation, Mich.App. Friedman v. this rec (1978); proceeding Brody ord and made no 268 N.W.2d 673 such claim. (Iowa 1978). record, Ruby, That fact out in It stands N.W.2d also actually appears what served as the for the that most on this basis writers justice’s trial permit plaintiffs subject refusal to approve the rule as stated these proffered expert fiduciary obligation, Pro courts. Geoffrey fessor C. Hazard of the Yale Law rule, principal “The reasons for this faculty, giving testimony School on that courts, opinions stated in the these are subject. justice, The trial because of the following: plaintiffs correctly pleadings, noted that (a) statute or of Professional Code proffered such evidence on the Responsibility not intended to create a was negligence-based malpractice count 5 claim contrary, private cause of action. On the probative

would “not be issues remedy the sole intended for a violation of agree justice’s pre case.” We with the trial imposition such a statute or code is the cise assessment. disbarment, discipline by suspension or See, reprimand offending attorney. record,

In view that clear trial Trevino, 770; e.g., supra, Martin v. at Vallinoto cannot hebetate the basic defi Mackie, 1383; supra, v. at Bickel Merritt- ciency negligence malpractice in her count 5 Coal, Chapman Corp. Elgin v. & Scott by inverting claim it into a of fiducia breach Willmott, Inc., 22; supra, ry judicial supra, at Hill v. claim. The clear and unanimous 333-34, Sears, rule, authority, at and Noble v. Roebuck & as well as academic is that Co., professional supra, Cal.Rptr. mere at 271-72. See violation codes of re 907-08; sponsibility automatically Brody Ruby, supra, and conduct do not also v. at DiSandro, (R.I.1996). July years In re 680 A.2d 73 That more than five after Vallino- opinion calling public against censure was filed on to had filed her civil action DiSandro. 600-01, potentiaUy exist Although such a claim could Spencer Burglass, supra, v. Arnold, Allen, case, reason Tingle supra, & 199 in this Vallinoto for whatever v. Cate Pontiac, Godfrey unable, neglected, produce at 263.” Bob Inc. S.E.2d either or was Roloff, competent 291 Or. 630 P.2d any medical at trial admissible (1981). Hizey Carpenter, objective See also showing physical manifes- evidence 251, 830 P.2d 646 injuries Wash.2d aUeged psychic that tation of her her from DiSandro’s proximately resulted to Conduct, art.V, Rules of Professional Our testimony, as Her social worker’s actions. preamble: state in the likewise discussed, inherently was insuffi- wiUlater give of a Rule should not rise to “Violation medical-expert by of its lack of cient reason any nor should it create a cause of action legaHy competence qualification estab- legal duty presumption that a has been any necessary relationship for lish the causal pro- designed The Rules are breached. injury complaints psychic of Vallinoto’s guidance lawyers provide and to vide resulting from Di- physical aHegedly His regulating through conduct structure necessary Absent that evi- Sandro’s actions. They disciplinary agencies. are not de- dence, became vulnerable to di- her claim liability.” signed to be a basis for civil

rected verdict. Ill that did testi The record reflects Vallinoto Intentional Infliction of headaches, shame, fy experienced that she Emotional Distress fear, terror, crying, nightmares, and flash backs, that the trial personaHy likewise conclude aU of she attributed We which However, granting in not DiSandro’s mo erred sexual to DiSandro’s conduct. for a directed on Vallinoto’s claim additionaHy tion discloses that she had record verdict distress for intentional infliction most of those same ailments experienced (count 2). claim, prevail In order to ten-year marriage to during her Ledo. She prove required extreme Vallinoto divorce case end also testified that after her intentionally outrageous conduct ed, shingles. Those sub she suffered recklessly causing in' resulted her severe alone, any com jective without declarations Reilly v. United emotional distress. See tending petent supporting medical evidence (R.I.1988). States, In Rhode 547 A.2d 894 aUeged physical His prove that Island, prove physical symp- must proximately caused DiSandro’s con im tomatology resulting alleged from the simply not the aftermath duct and were at 898. proper conduct. Id. marriage recently concluded tumultuous Ledo, were insufficient to withstand McDaniel, supra., the court held Parrillo for a directed verdict. See motion in client-plaintiffs for intentional claim Co., v. F.W. Woolworth distress avoided sum fliction of emotional (R.I.1986). compe Although Vallinoto was case the mary judgment because testify psychic prob that she suffered tent only proven that her attor plaintiff had physical aHegedly experienced lems and ney’s harassment was based on outra therefrom, was, she howev symptomatology but, addition, presented geous had conduct worker, er, qualified to as was her social damages resulting to her of actual evidence aUeged psychic specificaHy testify that those for intentional infliction therefrom. Claims proximately caused physical iHs were suggested also of emotional distress were origin actions.4 The DiSandro’s upon being permissible that court as physi psychic and causal connection of those supra., present Suppressed, specific facts Kantar, complaints to her affair with DiSandro Ill.App.3d cal Marriage 220 and In re See, (1991). e.g., expert opinion. medical required 581 N.E.2d 6 163 Ill.Dec. marriage by and not her turbulent experienced of the same DiSandro she some 4. The fact that Co., Woolworth 518 marriage Porrillo v. F.W. symptoms during is relevant Ledo. her first Cf. (R.I.1986) (medical evidence must presented at 356 medical evidence was because no potential causes complaints “exclude other unrelated that Vallinoto’s trial that established * ** injury”). plaintiff’s by proximately her caused

839 Tomaselli, R.I.190, apparently v. Marshall 118 372 A.2d Vallinoto overlooks aEege separate 1280 See also Maietta v. United fact that while she did Service, Inc., (count 2) F.Supp. Parcel 749 1344 complaint count the tort of inten (D.N.J.1990), opinion, without 932 F.2d tional infliction of emotional distress which aff'd (3rd Collette, Cir.1991); 960 v. 177 Collette sought damages for she the sexual assaults (1979); Conn. 418 A.2d 891 Woods v. defendant,6 perpetrated upon her we (1962); Brumlop, 71 N.M. 377 P.2d 520 however, recovery, require along with the (Okla. McGahey, Matchen v. 455 52 P.2d judicial majority authority, psy vast 1969). any competent Had there been medi physical injury chic as weü as claims must be required cal evidence to establish the causal supported by competent expert opin medical alleged connection between Vallinoto’s shin existence, origin, regarding ion and causa gles conduct, and DiSandro’s we would not See, Pion, 13, 17 e.g., tion. v. 497 A.2d Ondis uphold justice’s trial hesitate submis (R.I.1985). In the trial record facts before sion the intentional infliction of emotional any legaEy produce us the faded to However, jury. distress count to the competent admissible medical evidence to absence such evidence was fatal to Vallino- support self-serving her uncorroborated claim, to’s and the trial erred in not “nightmares,” statements that she sustained granting DiSandro’s motion for a directed “headaches,” aches,” “anxiety,” “stomach verdict on the intentional infliction emo “nausea,” proximate and “flashbacks” as the tional distress count. result of her sexual encounters with the de appeal appears Vallinoto to have MedicaEy unsupported fendant. claims for commingled and thus 2 confused her count very complaints those same have been con (intentional infliction of severe mental dis- sistently rejected by majority the vast tress) and (negligence-malprac- her count 5 See, country. e.g., Gagne courts in this v. tice) appears claims. She to overlook the Co., Northwestern National Insurance 881 proof requirements distinction and (6th Cir.1989); Bohonovsky, F.2d 309 J.B. v. exist negligence between her claim and her (D.N.J.1993); F.Supp. 835 796 v. Butler intentional infliction of severe mental distress Westinghouse Corp., F.Supp. Electric 690 claim, often referred to as “the tort of out- Voit, (D.Md.1987); Fitch v. So.2d 542 rage.” A reading complaint careful Finne, (Ala.1993); Odegard v. 500 N.W.2d actually reveals that complained what she (Minn.App.1993); Hendrix Wain about was DiSandro’s unconsеnted sexual en- Industries, wright (Mo.App. 755 S.W.2d 411 being counters with her as the cause of the 1988); Brooks, Ruple v. N.W.2d injuries alleged. emotional she Her com- Buhler, (S.D.1984); Garvey v. 146 Wis.2d plaint alleged centered itself DiSandro’s 281, 430 (App.1988). N.W.2d 616 deliberate and intentional sexual misconduct. interesting It is to note that the case rec- injury “Where mental is the sole com- deposi- ord reveals that Vallinoto testified at plaint, recovery damages may for direct 10, 1992, proceedings January tion jurisdiction recognizes aEowed the a tort in fact she had been examined at least for infliction of mental distress. Such an action, however, competent three medical doctors and other legal malprac- is not for personnel regarding aEeged emotional- wrong tice but intended to inflict psychic injuries. conduct, complaints, none of whom were Similarly, fact, testify. negligent, which is not caEed her to the first such as sexual as- sault, governed by ordinary attorney that she had retained to sue DiSan- tort rules.” Smith, physicians one of Legal Malpractice, Mullen & dro referred her to those (4th 1996). complaints. (Emphasis 19.11 at 612 ed. for an evaluation of her That added.) given report of the doctor’s origin accept 5. For an instructive We discussion of the as fact the admitted sexual tort, Kazatsky King nature of that see David encounters constituted unconsented batteries be- Park, Memorial 515 Pa. 993- jury’s findings. cause of the (1987), Rigazio v. Archdiocese Louis- ville, (Ky.Ct.App.1993). 853 S.W.2d However, give expert facts and to medi- pretrial medical evaluation. those on, of, noted, diagnosis post-trau- opinion to cal and a none of the doctors were called justice trial her- testify support complaints, matic stress disorder. The Vallinoto’s properly recognized the social from them were self worker’s and no medical affidavits medical-expert-witness-qualification support count 2 inherent ever offered at trial deficiency. justice stated that the The trial claim. testify.” qualified “was not to

social worker However, IV thereafter nonethe- erroneously permitted social less worker Testimony Social Worker’s testimony give expert opinion de- medical challenged in this has also DiSandro recognize spite her earlier reluctance to testimony appeal admissibility of the qualification to do so. witness’s pertained as it Vallinoto’s social worker damages. Vallinoto’s count claim for The remand, if In trial after the suf social ‍​​‌​‌​‌​‌​‌​​​‌​​‌‌​‌‌‌​​‌​‌‌‌​​​​‌​‌​​​​​‌‌‌‌‌​‍testified that Vallinoto was worker present is then able to suffi social worker disorder, fering post-traumatic stress give expert qualification enabling her to cient argues condition which about DiSandro should, appear, it opinion, medical she would qualified give the social worker was not testify regard then be able Willis, expert opinion testimony. In State by hearsay statements made to her Vallinoto (1995), 256 Kan. 888 P.2d 839 the Kansas obtaining psychological purpose for the worker, court held that a social while emi diagnosis. In re Jean Marie treatment and such, qualified to nently qualified as was not (R.I.1989). W., testimony Such 559 A.2d 625 “diagnose psychiatric medical and conditions by registered qualified independent post-traumatic Id. such as stress disorder.” would be admissible clinical social worker Carde, 888 P.2d at 845. Ouellette v. 803(4) pursuant to Rule of the Rhode Island (R.I.1992), that a A.2d 687 we there held Thus, social Rules of Evidence. Vallinoto’s testify psychother about social worker could testify might very able to worker well be apy qualified, give expert not but could hearsay statements made about the opinion. social in Ouel- medical worker given for if those statements were Vallinoto closely supervised physi had lette been diagnosis treatment and purpose together and had worked with him cian preparing for given purpose not for the thera such a manner the social worker’s testimony trial. litigation providing or for py part physician’s work. The was a that, guid purposes of holding absent also note for implicit of Ouellette is We during any trial after remand that working relationship ance new the close between statements, challenged which described physician, and the social worker that case allegedly suffered abuse Vallinoto physician’s supervision involved the sexual and the DiSandro, therein, would not be the hands of the social worker would not have at. simply on the basis that concerning psycho inadmissible testify deemed been able fault, they assign as asserted tended to therapy sessions in such detail as he was note, appeal by Those statements in that case. DiSandro. permitted to do so We Ouellette, examining however, physician to a were not made that the social worker patient physical evidence of a crime. See having given generous testimo despite been Lima, (R.I.1988); give 546 A.2d 770 State leeway, permitted a State v. nial was still (R.I.1983). Pina, In Pina 455 A.2d 313 diagnosis expert final or an medical medical Willis, held that statements that as 845. In the and Lima we opinion. See 888 P.2d at a medical us, sign fault and that are made to social worker did case before Vallinoto’s from, searching physical evidence of sex or under the doctor not work with assistance However, inadmissible. Valli- of, coun ual abuse are any physician when she supervision psychological ail being treated for may ar noto was although Thus she seled Vallinoto. ones, ments, physical statements the facts guably qualified have been to relate regarding itself, worker made her to her social concerning psychotherapy session di- activity with DiSandro qualified expand certainly was not she qualified diagnosis regret it. She was not to reetly probably of her mental relevant her, testify, state the treatment that she was receiv- I’ll let and the can but ing alleged anguish mental and would for her worth.” No it whatever it’s consider W., In re be admissible. Jean Marie that nature of reported case law condones in Lima A.2d at 630. Unlike situation admissibility. Pina, the statements of the child victim recovery of con- proposition, “As a were “to establish Jean Marie introduced damages mental or indi- sequential actually had but sexual abuse occurred comport physical injuries should rect * * did fix fault not act to Id. jurisdictional applicable rules to with the We note that dissent makes reference Thus, cogni- ordinary tort actions. (Second) § to Torts the Restatement wrong, proximate causation and zable (1965) judicial sup- holdings in and several exist, recovery all should actual port plain- position any lay person of its for emotion- be allowed. Becаuse claims may allege physical tiff and sue for or mental physical injuries often al or some are injury lay opinion own claims of their speculative, attempts to uncertain or re- unsupported any competent testimony, fail injuries typically for such un- cover evidence, testimony or ori- medical establish persuasive produces less existence, gin, proximate causation 2 Mailen & supporting evidence.” authority clearly thereof. That contended is Smith, Legal Malpractice, 19.11 at distinguishable on the The facts this case. supporting judicial holdings several cited plaintiffs count claim for intentional The ques- primarily cases that involved concerned distress fails be- infliction of severe mental pleading tions wherein actions had the social worker cause it was founded on stage pleading

been dismissed while testimony. For that basic psychotherapist’s appeal later reversed and re- reason, jury’s cannot withstand verdict light very manded for trial liberal judicial muster and set aside. must be permitting rule an action dis- to overcome if it pleading stage missal motions at the required are not here to deter- “We appears reasonably probable plain- that the King David’s conduct mine whether tiff, complaint, the framework of the within ‘outrageousness’ the level of reached might trial to produce be able at evidence recovery support money that would eventually might support complaint’s damages under 46 [Restatement section World, Bragg Shoppers claim. v. Warwick (Second) (1965)], because Torts Inc., 102 R.I. That is proof glaring failure in the chain re- presented has been to us in this what The quired to establish this claim. Ka- appeal. clearly In this case the re- record zatskys presented expert testimony, no day full veals that had her except no at all their indeed evidence opportunity present court and had full to averments, con- own unsubstantiated supporting medical evidence that she was per- injuries. To cerning alleged their capable producing prove her count recovery of such a on the basis mit alleged sufferings. exiguous at- mental Her questionablе showing would necessitate however, so, solely by means tempt to do was departure princi- from settled a radical testimony psycho- social worker Pennsylvania ples of tort doctrine. who, although qualified therapist found « * * # proffer opinion medical injury that an “It is basic tort law plain- in regard to cause or causation of the proven. Given the an element complaints alleged tiffs headaches and other science, it state of medical advanced ills, alleged permitted nonetheless unnecessary permit recov- unwise and testify to cause regard and causation. ery predicated on an inference noted, to be prior per- justice prophetically trial ‘outrageous- on the defendant’s based mitting psychotherapist worker the social confirma- testimony expert without medical give prejudicial ness’ limited but actually suffered complaints, “I’ll tion that regarding the Moreover, the claimed aggression distress. the re- reason to fear such would quirement objective proof fact, of some ever be directed toward her. DiSan- pres- severe emotional distress will not alleged plausibly dro’s threats could more ent an unsurmountable obstacle to re- interpreted purpose to have been for the covery. truly damaged Those should defending protecting Vallinoto. We not difficulty procuring have little reliable being improper view that evidence as testimony as to the nature and extent of character evidence but also believe that its injuries. their We therefore conclude value, all, probative if relevant at was sub- that if section 46 of the Restatement stantially outweighed by danger of unfair Commonwealth, accepted to be in this at prejudice resulting to DiSandro and should least, very alleged existence of the admitted, pursuant not have been to Rule 403 supported distress must be Accordingly, of the Rules of Evidence. we competent Kazatsky medical evidence.” find that admission of that evidence was er- Park, Inc., King v. David Memorial 515 ror. 988, 992, Pa. VI adopt

We too find ourselves reluctant position espoused by it New Trial pertains to her count claim. Such would jury gen Because the returned a departure” indeed constitute “radical eral verdict that awarded both com Vallinoto long-settled elementary and universal tort pensatory punitive damages, we are un principles. any Such radical action event quantum able to determine therefrom the totally unnecessary because the impact that the error infected mal permitted pursue retrial will be her re- practice and intentional infliction of emotion quests compensatory punitive as well as counts, al distress as well as the other trial damages and to recover all to which she can errors, computation had in the actual prove legally remaining she is entitled in her composition total of the award. The trial viable causes of action. complaint submitted all counts in the jury only general in such form that V special verdict could be returned. No find Threatening

DiSandro’s Conduct ings requested by parties. Conse quently, impossible DiSandro asserts that the admission it is for us to determine at trial relating upon jurors of evidence he threats which counts the relied in re allegedly turning liability made to in respect Vallinoto’s former husband their verdict damages. and to her former husband’s was Since certain counts should agree. inadmissible. We Pursuant to Rule not have been submitted to the for Evidence, stated, general 404 of the Rhode Island Rules of reasons heretofore ver say portion character evidence is inadmissible to show dict is cannot what tainted. We person conformity that a general finding acted therewith. total verdict reflects a Moreover, if stemming those acts were not admitted to and an award from an issue on conformity show therewith but were instead which directed verdict should have been admitted to holding show basis Vallinoto’s fear returned. In accordance with our DiSandro, Missler, Reynolds that evidence would still be 80 R.I. 90 A.2d 779 (1952), inadmissible. Those acts were not sufficient we are constrained to order a new trial, ly alleged against similar to despite being the acts DiSan- our satisfied that suffi to, support dro Vallinoto to be relevant or at all cient evidence existed submission of, 1,4, probative аllegedly jury. the coercion directed of the claims counts and 9 to the assuming to and felt permit Vallinoto. Even Failure to do so would result our aggressively ting multiple DiSandro had acted toward to recover Val- recover attorney, linoto’s former husband and his ies for defendant’s misconduct that alleged aggression probative appears multiple was to be the sole basis for her “[D]uplicature recovery aggressive the fact that DiSandro had acted claims. for the same ly underlying prohibited.” or that Borden toward Vallinoto Vallinoto had behavior is Co., record necessary comment it Revere Ins. 935 F.2d v. Paul Life (1st Cir.1991)(citing Graph nega- that reflects us. It is a record before Diversified (8th ics, Groves, F.2d Ltd. during the tively upon conduct DiSandro’s Cir.1989)). “recovery lawyer-client representation course infliction claim we have re [that intentional conduct, in opinion, our Vallinoto. Such of any incremental award versed] barred the with reprehensible keeping and not damages the Id. on fraud claim.” attorneys of professional conduct demanded addition, In we note that the verdict courts. practice law our state licensed to reports general a award for questionnaire opinion today, which Nothing in our stated punitive damages as compensatory well as princi- long-settled general solely upon based plaintifPs Two of all five of claims. those law, any man- ples of be should construed claims, intentional infliction five we condone such sexual imply ner to fraud, the identical claims distress and are visited DiSandro’s behavior as was by Judge Selya in Borden. On the noted repre- when during client the time he was jury’s in the uncontroverted facts contained senting a most deli- and her interests in her verdict, plaintiff here was in fact general the The bar and divorce action. cate traumatic duplicative as well as incremental awarded maintain, in client relation- to its cautioned underlying for the conduct of same in no ships, circumspect such conduct defendant, namely, the sexual assaults public question the to instance could cause employed accomplishing those the deceit lawyer pro- her Clеarly recog- posture assaults. the law as the the his or sexual prohibits recovery. nized in Borden See Any appear- fessional role as an advocate. International, Inc., also DeCosta v. Viacom suspect. assignation ance of should never (D.R.I.1991). F.Supp. ap- notwithstanding sustain DiSandro’s We may plaintiff get “a additional bites of the peal judgment the final vacate by multiple apple demanding the forms of are papers this case Superior Court. injury cloaking for the or a relief same court for a new trial remanded to that legal in a single variety claim theories.” proceedings in with this further accordance Id. 812. opinion. case, impossible it is to legally In this reason-

ably propriety or the measure determine bite, jury’s fact because one remains Justice, FLANDERS, dissenting. is, clear, plain- and that five of the that all up claims were that one tifPs swallowed I believe respectfully I dissent because bite, leaving conjecture to absolute how much Edmond A. DiSandro’s defendant portion general or what of the total verdict serv- of the while depredation sexual any particular one award was attributable to a constituted ing as divorce her jury. of the five claims considered fiduciary he flagrant duties breach of trial, ordering are a new we Because we and that consti- owed his client this breach need not address DiSandro’s other and vari- here, When, legal malpractice. tuted claims of ous error. enters lawyer handling a divorce for a client client, I relationship with that into sexual

VII legal mal- lawyer has committed believe that Conclusion ob- legal results practice, regardless per- lawyer has tained how well disposed Having of the issues essential legal necessary Such appeal, formed the services.7 the resolution we deem DiSandro’s case, English postseparation sex- services in- converse in defendant’s —that having relationship him was to her sign ual with "irrelevant" cluded and submit false client case, custody prepared bo- interrogatory oppos- he these court and divorce and answers to the sign. gus gave Pur- ing purpose concealing them her to counsel fоr their answers and advice, relationship. spuri- fraudulent defendant suant the defendant’s After the sex-for-legal- notwithstanding ongoing foreign-bom, Span- ously advised —a defendant, ability ish-speaking services woman with limited wrong misconduct is “a Coakley, that is distinct and 243 Mass. 137 N.E. independent professional negligence but Upholding jury’s verdict and the legal malpractice.” still is (Emphasis add- judgment reg- below would also discredit the ed.) 2 Jeffrey Ronald E. Mallen & M. popular litigator nant ethos of the as a Smith, (4th Legal Malpractice § 14.1 at 229 “hired-gun,” which, pursuant lawyer if the 1996).8 ed. performs results, well and obtains successful then the client will complain not be heard to result, contrary To reach a I would have to fraud, philandering, about incidental perform surgery radical plaintiffs legal- self-dealing unethical committed the law- malpractice claim and downsize it into yer along way. shrunken professional-neg- and dismembered ligence Further, cause of action. I would In awarding damages for defen- lop have to body plaintiffs off from the of client, jury dant’s sexual of his abuse the malpractice fiduciary case the duties owed obviously put lawyer’s money decided to lawyers to their clients. But I can neither say where his mouth I was. Because cannot procrustean, subscribe to such negligence- a erroneous, that result was I believe we arising based vision of the duties from the judgment should uphold affirm the and the attorney-client relationship I nor can exalt jury’s finding defendant/lawyer verdict the the “successful” results achieved in this liti- guilty having legal of malpractice, committed gation over the devious and coercive means fraud, battery, intentionally inflicting and employed by defendant/lawyer the to achieve (his client) plaintiff own with emotional dis- pyrrhic Furthermore, such a victory. I am tress. unwilling amputate fiduciary legs to the plaintiffs action, malpractice cause of there-

by leaving jump through requisite her to I the legal hoops only bloody stumps with the of a Legal Malpractice Defendant Committed professional-negligence claim to land on. So by Breaching Fiduciary Duties hobbled, malpractice her case would inevita- He Owed to His Client bly falter. action, prevail legal-malpractice To in a

I presented believe that this case us with establish, all, opportunity attorney- must establish that an once and for (as elsewhere) existed, relationship Rhode Island client attor- the defen- neys charged dant-attorney duty are arising fiduciaries with breached a out of duly perform competently relationship, their work and that as a result of the “[ujnflinching fidelity but also with their defendant’s breach the suffered genuine [clients’] generally interests.” Berman v. harm.9 Henry, See Evora v. 559 Aberman, 359, plaintiff signed 193, interrogatory pre- answers 196 Conn. 205 pared by (1985) (the plaintiff's against the defendant and denied under oath claim the defendant * * * having engaged any fiduciary obligation extramarital sexual rela- for "breach of Thus, respect tions. legal malpractice”); in this the defendant’s another name a claim for Rane, plaintiff's legal, Ill.App.3d efforts on the behalf were not Calhoun v. 304, 307, 234 175 Ill.Dec. they (1992) (in part nor were on her behalf but rather of a 599 N.E.2d 1321 campaign up legal malpractice injured plaintiff may to cover his own unethical self- case an aggrandizement plaintiff’s expense. plead separate professional negli- at the counts of both gence fiduciary duty). and breach of Corp. 8. Accord Resolution Trust & Holland (S.D.Fla.1993) Knight, F.Supp. Upon 832 attorney-client 1532 9. the formation of an rela (both professional negligence tionship, attorney and breach of fidu- owes his or her client are, root, ciary duty malpractice general catego claims "at duties that tend to fall into three claims”); Shuham, CPA, (1) care, (2) Bukoskey duty duty loyalty, v. Walter W. ries: P.C., (D.Alaska 1987) (3) F.Supp. (pro- any and the duties contract that embodied negligence concerning attorney’s fessional is the failure to use reason- is created the terms of the professional engagement. Pringle, able care in the rendition of services Owen v. 621 So.2d (Miss. 1993). fiduciary obligations requires whereas breach of Breach of one of these carry duty loyalty a failure to out one's duties can form the basis of a cause of action for fidelity, attorney legal malpractice, including or evidence that the committed an action for dam client); ages recovery attorney’s some sort of fraud Solomon v. or for the fees. Solo- found, (the (R.I.1989) alleged, and attorney’s Here position trust misused his that defendant negligence proximate must be cause to threaten deceive Smith, loss); plaintiff’s Mallen & 8.1 relationship, sex-for-legal-services into 555. alternately fiimflammed and he one which Among lawyer the various owes duties his submitting into coerced her “ * * * duty a client is the to ‘at all times exchange his continued demands represent client and handle his client’s his in her divorce representation of her interests honesty, degree utmost affairs plaintiffs com- custody Count 5 of ease. ” forthrightness, loyalty fidelity.’ Reso- “Legal Malpractice v. plaint, DiSan- entitled Knight, Corp. v. lution Trust Holland & 832 dro,” alleged “en- expressly that defendant (S.D.Fla.1993). Indeed, F.Supp. attomey/client tered into an trust, fiduciary obligations of attorney’s * * * promised represent he wherein loyalty, confidentiality common-law are * * * faithfully legal interests [plaintiffs] “acknowledged by every duties American professional independent and to exercise jurisdiction” “predate despite exist (Emphases add- judgment on her behalf.” independent, codified ethical standards” ed.) his alleged that “virtue of She also Smith, § & 14.1 at 227- conduct. Mallen duty conduct” defendant breached Accordingly expect clients are entitled her, dilatory by engaging by “deceiving only attorney competently to their not act in oth- proceeding tactics in the divorce and representing underlying their in the interests acting personal his erwise own interests attorney action for which the has been en- during the to the hers course exclusion of of ” carry diligently gaged but also to out all the representation of her. professional his fiduciary attorney obligations the to owes added.) plaintiff (Emphasis Although did satisfy lawyer’s duty them.10 The to fidu- expressly use the “breach of not term fiduciary obligations owed to the client are legal ciary duty” fashioning her claim for independent any lawyer to of duties the has type ‍​​‌​‌​‌​‌​‌​​​‌​​‌‌​‌‌‌​​‌​‌‌‌​​​​‌​‌​​​​​‌‌‌‌‌​‍of malpractice, precisely is comply professional disciplinary with rules alleged complaint in her misconduct she Thus, codes if and of behavior. even defen- аctions. when she described defendant’s any profes- had of Thus, dant never violated rules just “negligence-based- was not this disciplined had solely sional conduct and never been legal malpractice claim” limited to by engaging attorney’s duty perform legal this for in the conduct that court breach an to of here, it also a claim competently, is at issue he would liable this but was still be to services plaintiff, the conflict of interest defendant Maria Del Rosario based on Yallinoto. mon, 207; Owen, 671; length. other at The client 493 A.2d at 621 So.2d at with each arm's 1242, many respectspowerless (Miss. to resist the Singleton is in Stegall, 580 v. So.2d 1245 often attorney. be 1991); Dworkin, 341, his v. Vt. 147 515 influence If influence of Steinfeld untoward, criminal, vicious, the relation 1051, (1986). [or] 1051 the source trust is abused and becomes added.) (Emphasis wrong." Berman v. Coak- attorneys required fiduciary, 10. As “are to con- 667, 348, ley, N.E. 243 Mass. 137 according highest duct ethical themselves (1923). and moral Bank Mill Creekv. Elk standards.” attorney’s pursuit to or of interests adverse An Corp., Horn Coal 133 W.Va. 57 S.E.2d conflicting con his or her client’s interests with Supreme 748 As the Judicial Court of attorney’s fiduciary obli of the stitutes a breach Massachusetts once remarked: attorney gations exposes the to client and to that profound importance See, "It is a matter of malpractice. e.g., Fielding legal liability for every point * * * Brebbia, (D.C.Cir.1968), view that members bar F.2d v. aff'd rectitude, jealous probity remand, (D.C.Cir.1973); to and main- Ma 479 F.2d 195 after honesty Lurie, with tain their Ill.App.3d relations utmost jumdar 210 Ill.Dec. v. protect against (1995); them clients and solicitous Lionel 653 N.E.2d Lakoff legal fidelity gen- (N.Y.Sup. wrong. Unflinching to their Corp., 207 Misc. 137 N.Y.S.2d Hall, every attorney Ct.1955); duty Apple uine 412 N.E.2d interests see also policy hardly (Ind.Ct.App.1980) (representation can of an in his Public touch clients. general present "a concern than the terest to a or former client matters of more adverse skill, knowledge, abili standard of failure to exercise maintenance of untarnished * * * attorney ty ordinarily possessed and exercised mem toward at law conduct profession”). legal attorney do deal bers of the and client not client[s]. The

created with his client when he entered kept separate apart into was from the sexual a sexual relationship with her. plaintiff. he embarked plaintiff Indeed, testified that when she was when this court first considered initially conduct, confronted with defendant’s insis- defendant’s we concluded that retainer, tence gratifying on a sexual defendant his own plain- not sexual desires with drop handling action, threatened to tiff while her case but her divorce also defen- told dant her that as he was created “an inherent lawyer, now her third conflict with [his] obligation attorney represent no other agree properly.”11 would the client represent DiSandro, (R.I.1996). In re he refused to do so. The defendant Moreover, he did purposely giving then so while communicated to that if she did legal demands, gain her false advice to submit to his sexual her sexual he would favors, misusing position his counsel, as her withdraw as her whereupon she documents, sign to have her false court custody would daughter lose and be defrauding engaging into rela- deported Spain. Thereafter, to her native part quid pro tions with him as quo notwithstanding ongoing his sexual rela- services. her, tions with prepared defendant answers interrogatories sign under If I accept suggestion were to falsely represented oath that to opposing there probative is no relevant evidence indi- Family counsel and to the Court that she had cating that defendant’s services were engaged sexual relations with contingent plaintiff’s willingness grant person other during than her husband favors, him sexual I riding roughsh- would be couple’s marriage. justify perjurious To od over what necessarily decided dissembling, fraudulently defendant also mis- assessing credibility, after the witnesses’ represented deny that she could evidence, hearing returning all the ver- having had sexual relations with him in her every dicts on count in Al- favor. sworn interrogatory answers because their though defendant claimed that the relation- postseparation trysts allegedly were “irrele- ship purely was consensual and that some of pending vant” to the divorce action and child- plaintiffs greeting cards and other actions custody proceedings. When faced with these only agreed showed how she not to but actu- facts, jury justice the and the trial ally under- relationship, came tо relish their “lexual” standably had little trouble in rejecting any jury justice the and the trial were entitled to notion that legal representation defendant’s function, conclude otherwise. It was their recently 11. We sanctioned defendant for violat- Given the "inherent conflict” created defen- ing applicable professional ethical rules of legal representation plaintiff dant’s in her di- plaintiff. doing conduct in his actions toward engaging vorce case while in sexual relations so, (contrary we noted that even if to what the her, possibly with I believe he could not have here) jury attorney’s found a divorce sexual rela- kept legal representation separate apart his and consensual, tionship with a client is such a rela- personal relationship plaintiff. from his with In- tionship “creates an inherent conflict” with the deed, conflict,” lawyer aif has an "inherent this maximizing client’s interests in his or her share impossible lawyer keep means that it is for the to property of the marital distribution and in ob- conflicting separate apart. the Moreover, interests and taining custody any marriage. children of the preparation defendant’s of false inter- DiSandro, (R.I.1996); In re 680 A.2d see rogatory denying any answers such extramarital (R.I.1996). DiPippo, also In re 678 A.2d 454 relationship any suggestion sexual refutes that he Specifically we stated that keep was relationship able to his sexual attorney engages "[a]n who in sexual relations plaintiff separate from his services on her places with his or her divorce client Finally, gist plaintiff's testimony behalf. rights jeopardy. lawyer's client's The own requests was that defendant’s numerous for of- maintaining interest in relationship the sexual parleys fice consultations and other alone with obligation creates an inherent with the conflict plaintiff pretexts to discuss her case were all for represent properly. the client When an attor- precisely why defendant to ravish her. This is ney represents a divorce client in a case in we concluded that defendant's custody, support, "own interest in which child and distribution issue, maintaining attorney of marital the sexual create[d] assets are at must engaging obligаtion represent in sexual relations with inherent conflict with the refrain DiSandro, the client or must withdraw from the case.” properly.” the client 680 A.2d at 75. added.) DiSandro, (Emphases 680 A.2d at 75. how ours, regard these minds could differ credibility to evaluate the of these interpreted, plainly it was factual facts should be witnesses in the context of the other plain- for trial to submit proper presented E.g., to them. Don circumstances jury. Lines, Inc., legal-malpractice claim to the tiffs nelly Grey Goose PBS, Inc., See, (R.I.1995). included, e.g., Long v. Atlantic 794-96 for exam These (R.I.1996).12 A.2d ple, plaintiffs extremely position vulnerable Spaniard as a native isolated from her body growing law There is also a case family foreign country. friends in a and jurisdictions that can be cited from other destitute, Though she was far from attorney-client proposition for here, this family had no friends in few established, relationship, cannot be ex- once country, only English-language and limited attorney to his own sexual ploited Moreover, facility. she was isolated advantage detriment.13 and to client’s emotionally frazzled after the traumatic but attorney’s obligation An foremost breakup marriage a domi of her turbulent loyalty must trust —not the at- client and neering In defen controlling husband. torney’s personal gratification at the sexual words, Thus, came him dant’s own when she to see expense. who client’s a client is dam- serving lawyer, as her “had physically, emotionally about aged monetarily, nothing” and “was at the ebb.” attorney’s down lowest his or fidu- by the breach of through exploitation was therefore entitled to conclude ciary duties that at time of in her crisis life client be able to recover for should rapaci ill-equipped malpractice regardless to fend off the sexual of whether the attor- lupine ty cunning ney’s legal performed well and fraudulent own efforts successfully.14 lawyer-turned-Lothario. Since reasonable reports concerning challenging psychological [the client] defendants denial Because are motion, solely attorney's their new-trial all the facts must be of” in and because obtained light plaintiff, viewed most in a favorable representation was a breach fidu- of the client all must be drawn in her reаsonable inferences duty attorney ciary was liable dam- for which PBS, Inc., See, Long e.g., Kantar, favor. v. Atlantic Marriage Ill.App.3d ages); In re (R.I.1996). We have on also noted 58-60, 581 N.E.2d 163 Ill.Dec. that, deciding numerous occasions a new-trial (1991) petition (allowing a divorce client motion, court, it is the function of the trial attorney's part fees in be- court recalculate appeal, not of on to assess credibil this court .allegedly time cause the billed Moreover, ity passing of the witnesses. during attorney and client had sexual which the motion, justice should directed-verdict relations); Pringle, also Owen v. 621 So.2d see credibility make at all but no determinations (when 668, 1993) (Miss. plaintiff’s the at- 669-71 simply determine whether evidence exists sexually plain- torney with became involved the which a rational factfinder could base a favor ex-wife, attorney’s of his the breach fiducia- tiff’s nonmoving party. E.g., the able verdict for Mor though duty he ry even did not was actionable Zuckerman, 937, (R.I.1996). ris v. 680 938 against plain- negligence case mishandle Unless examination of the record reveals that chiropractor). tiff's justice wrong clearly trial or or was overlooked evidence, types these misconceived material Sup- Suppressed reliance on 14.The defendant's E.g., at trial Don determinations are conclusive. 830, 918, Ill.App.3d Ill.Dec. 565 pressed, 206 151 Lines, Inc., 792, nelly Grey Goose 667 A.2d (1990), appellate an intermediate N.E.2d 101 (R.I.1995). On this record I believe state, opinion unpersua- from another court’s justice correctly that sufficient trial concluded First, factually reasons. it sive for several deny evidence existed defendants' directed- Ap- distinguishable. Suppressed, In the Illinois support and to verdict and new-trial motions attorney’s pellate that an seduction of Court held jury's ultimate verdict that defendant’s miscon legal a claim for a divorce client did state legal malpractice. duct constituted tangible evi- malpractice [was] "unless there attorney actually profes- that made his dence See, Gile, Cal.App.3d e.g., McDaniel v. 13. contingent upon sexual involve- sional services (1991) ("[t]he Cal.Rptr. with- legal representation of the client ment or that his was, holding legal services a retained fact, adversely (Emphasis affected.” granted by client when sexual favors are added.) at 565 N.E.2d 151 Ill.Dec. at Id. engaging the client in sexual harassment of here, the divorce In to the facts conduct”); contrast Herring, 264 outrageous Tante v. are (much less, alleged (1994) (the Suppressed never client defen- Ga. 453 S.E.2d here, attorney directly "misuse, proved) that the defendant attorney’s ad- [sexual] to his own dant legal he services vantage, her or that made in medical threatened of confidential information Moreover, I would affirm judgment corporation Since the itself engages in the below that the law firm of rendering DiSandro-Smith & professional through services its Associates, P.C., Inc., plaintiff is also liable to agents, officers and under Rhode Island law having legal malpractice. committed corporate entity “the will be liable for the Lawyers practice admitted to the in misprisions law of its members to the extent of may Rhode Island do so in the form of a corporate assets.” In re Rhode Island professional-service corporation. Association, See G.L. Bar 106 R.I. at 263 A.2d at §§ 7-5.1-1 legal profes- to -12. The 697. For these reasons I would also affirm sional corporation, service attorneys like the legal-malpractice judgment entered it, employed by performs legal against services and defendant law firm. can through act agents. its officers and Consequently the actions of its officers and II agents committed furtherance of the cor- Damages Plaintiff Suffered as a Result poration’s legal rendition of services are acts Legal Malpractice of Defendant’s may imputed See coloration. Association,

In re Rhode Island Bar 106 R.I. The defendant contends that even if his 752, 761, (1970); gener- see legal quid pro quo plain- services were a ally Smith, Mallen & 5.4. favors, plaintiffs tiffs sexual malpractice claim would still presented fail because she Here president defendant was and secre- no evidence of either to her tary Associates, P.C., of DiSandro-Smith & position or to personally. herself But I Inc., professional corporation. service agree with the and the trial rendering legal plaintiff, services to he plaintiff damaged by was indeed defendant’s fiduciary breached his duties to her and com- misconduct. legal malpractice. mitted Z. Hershel Smith (Smith), only partner firm, defendant’s First, jury may agreed well have with “dating” knew defendant was while puiposely prolonged defendant proceeding her divorce pending plaintiffs but proceedings divorce to maximize inquire failed to or any steps further to take the time and the number of occasions for his whatsoever to abate the conflict of gratification interest own plaintiffs ex- inherent such a pense.15 Moreover, or to avert the deliberately provided he consequences deleterious it could have on improper regarding advice client’s pending interests in the pro- divorce possible deportation and loss of ceeding. Both custody defendant and Smith knew child to coerce her to submit should they have known duty demands, had a to his sexual all of which under- avoid this inherent standably conflict of interest with caused her considerable emotional duly their client and a physical withdraw from and plain- distress. He also advised representation if such a conflict did sign arise tiff to interrogatory and file false an- legal representation. swers, course of the They thereby potentially subjecting her to failed on both accounts. contempt charges and criminal exposing and Rather, contingent Third, having on his sex with her. Suppressed, there was no evidence in as Suppressed here, plaintiff yield- attorney contended that she there was that the defendant de- ed to the plaintiff/client defendant’s sexual ceived advances because to advance his own refuse, personal she felt expense by giving that were she to the defendant interests at her her adequately by having would not false falsely advocate for best advice and her her inter- swear 832, ests. Id. 151 Ill.Dec. to facts submitted at 565 N.E.2d at to court in connection with 103. Here, subtle, her insisting divorce case. defendant was much less plaintiff yield to his sexual needs or suffer case, deportation his withdrawal from the her 15. The evidence established that defendant re- Spain, Second, custody daughter. and the loss of approximately thirty-eight corded 430 and hours Suppressed inappropriately court fo- appearances jury might court for what the have solely attorney’s “duty provide cused on the justifiably relatively straightfor- concluded was a competent legal representation,” ward, id. 151 Ill.Dec. Regarding length no-fault divorce. 834, 105, it, at 565 N.E.2d at rather than also the case and her role in testified that attorney’s fiduciary consider duty going to exercise she "never knew what was on” and that good dealing faith and fair goes by, by, by, nothing toward the client. happened.” "[t]he time

849 tort, attorney types is liable for all an to collat- and any settlement the divorce action by proximately caused damages foreseeable Upon by her former husband. eral attack omissions, not wrongful his or acts or her his wife discovering the truth about what was Generally, when a just pecuniary losses.17 she doing while with defendant damages because another’s person suffers generous seeking custody of child and a their acts, person is enti- tortious intentional distribution, plaintiff’s for- property marital by any all losses caused tled to recover might sought have to re- well mer husband misconduct, including, in cer- the tortfeasor’s on that he such a settlement the basis scind circumstances, damages, punitive com- tain fraud. too was a victim defendant’s See damages attributable pensatory damages, 60(b) (allowing a court re- R.P.Dom.Rel. suffering, pain, scar- distress order, party judgment, from a final or lieve enjoy- injury, loss of ring permanent or other for, alia, fraud, misrepresen- inter proceeding expectancy, hu- life or life ment of reduced misconduct). tation, or other miliation, consortium, any other loss of testified, and the The also monetary damages and relief consequential found, physically defendant battered her potentially to victims tortious available emotionally, causing her such severe Kaya Partington, 681 misconduct. See she a mess” and emotional distress that “was (Flanders, (R.I.1996) J., 268 dis- nausea, nightmares, anxi- suffered recurrent cases). Indeed, very (listing senting) headaches, attacks, shame, cry- ety terrible compensate those purpose of tort law is fits, ing shingles,16 More- and flashbacks. injured tor- persons a result of another’s over, September plaintiff had since al., Page et Prosser tious acts. W. Keeton by and treated a licensed been counseled (5th § 1 at on Law Torts 6 Keeton social to ameliorate the emotional worker 1984). Thus, attorney commits ed. perfidious legal rep- fallout from defendant’s duties, fiduciary by breaching malpractice resentation. for, alia, attorney may inter be liable Further, disagree argument damages, I with the for cost punitive exemplary any damages retaining for to recover caused to correct or another legal malpractice, consequences she must defendant’s minimize adverse legal rep- unsatisfactory have suffered results caused his or flawed client any damages pecuni- for attribut- underlying causing divorce action resentation and/or suffering18 ary Legal in able the client’s emotional malpractice is an action loss. Smith, Legal Malpractice "Shingles" colloquial Jeffrey 19.4 & M. term sometimes (4th 1996). eruption. lay persons ed. used to describe a skin Johnson, F.Supp. See Doe v. (W.D.Mich.1993) (characterizing shingles Adams, 18.See, as a e.g., Wagenmann v. F.2d " ” "headaches, par malad[y]’ Cir.1987) (1st (client 'common on to emotional-dis- entitled nondescript spots body, weakness and fa attorney’s negligence damages caused tress when Heritage tigue”); generally see The involuntarily American to mental to be committed Porterie, client institution); (3d Dictionary English Language ed. F.2d Delesdemier 1996). shingles Cir.1982) (5th The medical nomenclature (attorney emo- liable for client's herpes Dictionary zoster. See PDR Medical by his withdraw- tional distress caused malicious (1st 1995). plaintiff, trial); ed. who was Elliott v. al Videan, months before as counsel two Spanish English, used the (App.1989) fluent in but not 791 P.2d 639 164 Ariz. description “shingles” (client's attorney’s vernacular to relate what negligence justified loss due to Liles, painful experienced as she an abnormal and skin punitive damages); imposition of Liles v. provide any type (1986) (attorney of medical condition and 711 S.W.2d 447 289 Ark. Thus, diagnosis. proper jus setting it was incurred in aside liable for opinion lay tice admit such evidence. See agreement occa- property sеttlement divorce Hamilton, 212 Hospital v. Ala. professional Gadsden General by attorney’s mis- fraud and sioned 531, (1925); Expert conduct); Rigau Rigau, So. 553 31A Am.Jur.2d 103 De v. & Pantosa Saenz (1989). (for- Opinion P.A., §§ (Fla.Dist.Ct.App.1989) and Evidence 199-210 So.2d 682 549 attorney proceed against mer client allowed 643, See, Brooks, attorney’s arising a out of rescission fees e.g., Mass. for 17. Fishman v. 396 1377, ("[a]n by attorney's (1986) unauthorized action necessitated 487 1379 N.E.2d * * * property); v. selling client's David malpractice] of former is liable to his [commits who L.P.A., Schwarzwald, Robiner, Co., & Rock any reasonably client foreseeable loss caused for Wolf (1992) 786, App.3d 1173 607 negligence"); 2 79 N.E.2d his also E. Mallen Ohio see Ronald 850

Moreover, merely plaintiff injury because re as manifestations of her mental an- satisfactory pecuniary ceived a guish.19 her For result on recover her claim underlying divorce action mean that for does not intentional infliction of emotional distress outrageous but for defendant’s sexual mis she to establish had that defendant’s conduct conduct, quicker pecuniary a or outrageous, better settle was extreme and that he knew ment could not have been for have his obtained her should known that actions would harm, plaintiff having likely without to become the attor cause her emotional and that she ney’s for length concubine of extended suffered severe emotional as a distress result proceedings. divorce Nor a outrageous does satis of defendant’s and extreme ac- See, factory pecuniary e.g., States, Reilly . settlement mean that tions. v. United 547 894, (R.I.1988). precluded recovering is dam 898 A.2d A defendant will be ages physical suffering for her and mental found liable for such conduct it is “so character, sustained direct outrageous as a result of so defendant’s extreme in fiduciary Indeed, obligations. degree, go beyond breach of his as possible all bounds loss, pecuniary may decency, even atrocious, absent a re of regarded client and to be as damages suffering utterly cover for emotional intolerable a civilized commu- (Sec- damages humiliation such nity.” (quoting when are sustained Id. at 898 Restatement ond) (1965)). attorney’s E.g., a result of the breach. 46 Torts cmt. d Adams, 196, Wagenmann v. 829 221-22 F.2d Here, by conditioning his services (1st Cir.1987); Porterie, Delesdemier v. 666 favors, plaintiffs granting him sexual de- (5th 116, Cir.1982); F.2d 124 David v. certainly guilty outrageous fendant was Schwarzwald, Bobiner, Co., Rock &Wolf Equally outrageous conduct. were his L.P.A, App.3d 79 Ohio 607 N.E.2d preparation interrogatory of false answers 1182 sign, knowing submission Thus I affirm judgment would below oppos- answers to and to these the court awarding plaintiff damages personal counsel, ing involving plain- and his threats injuries she as a suffered result defen- custody deportation tiff’s loss of legal malpractice. dant’s lawyer minor child. Such conduct reprehensible

so as to intolerable in be community.20 civilized Ill Moreover, in addition to the elements list- Defendant’s Intentional Infliction of Emo- above, plaintiff alleging ed an infliction-of- tional Distress Plaintiff Result- jurisdiction emotional-distress claim in this Physical Symptoms ed in That Were must establish his or her also mental Properly Admitted into Evidence anguish objectively manifested itself Next, defendant contends physical requirement form of ill.21 The some by submitting plaintiffs erred physical claim of of symptomatology, court has intentional explained, infliction emotional distress to genuine to ensure the nature of plaintiff allegedly Reilly, because failed to 547 A.2d at mental distress. prove any objective symptoms physical Reilly Thus in this court held that absent (compensatory may awarded for in an action for because of his emotional distress suffering McDaniel, mental conduct); humiliation if sustained as threatening Cal.Rptr. intentional, wrongful,

result of con and willful (“[t]he withholding by 247—49 a retained attor- claim); by attorney legal-malpractice duct ac ney of services favors are when sexual Batilla, cord Rhodes v. S.W.2d granted by engaging ‍​​‌​‌​‌​‌​‌​​​‌​​‌‌​‌‌‌​​‌​‌‌‌​​​​‌​‌​​​​​‌‌‌‌‌​‍client and Richmond, (Tex.App.1993); Stanley see also outrageous harassment of the client are conduct” Cal.App.4th Cal.Rptr.2d support sufficient to a claim intentional inflic- (1995); Carrigan, v. Kirk & S.W.2d Perez distress). tion of (Tex.App.1991). 266-67 trial, plaintiff negli- 19. At withdrew her claim Television,L.P., 21. E.g., Narragansett Clift gent infliction of emotional distress. (R.I.1996); Curtis v. State Families, Department Children and Their 522 for Foreman, Singleton 20. v. 435 F.2d 971 Cf. (R.I.1987). 208 A.2d (5th Cir.1970) (attorney may be liable to client

851 had regard to she claiming opinion valid whether physical symptomatology, a mother physician’s of tо developed shingles, trauma as a result much less attribute negligence during childbirth could recov- defendant’s of this condition to the onset negligent inflic- damages an action for er of exploitation her. reason, the of emotional The tion distress. training lacking medical laypeople But emphasized, was to “reluctant[ance] court the testify to the ex- long been allowed to have impose potentially unlimited and undeserved of their characteristics ternal and internal liability guilty upon a who is of defendant of their physical or to the state added.) own condition (Emphasis unintentional conduct.” subject only when the health.23 It is own Id22 wholly or so far removed matter is scientific Here, plaintiff presented that the evidence ordinary experience of usual and from the de- emotional trauma inflicted testimony lay average person expert that itself in the form of vari- fendant manifested Tomaselli, See, e.g., v. essential. Marshall First, physical ailments. she testified ous 190, 196-98, 372 1284-85 118 R.I. with defen- that stress of her relations (1977) (requiring expert an medical witness recurring experience to caused her dant support the headaches, medical-malpractice case to attacks, in a anxiety nightmares, shin- nausea, fits, injured crying allegation as gles, plaintiffs and flashbacks. that she Second, testimony presented expert from she physician’s negligence result of the defendant a social counselor that major surgery on her or performing worker/sexual-abuse symptoms of posttraumatic exhibited condition” af- treating her “rare serious require years disorder that would of (1) stress operation the treatment ter the because counseling remedy. to nor sufficiently common suffi- was “neither layman ciently could be nontechnical that a expert The that defendant contends absent (2) expected appraise it” and the attribu- testimony, plaintiffs medical re- statements tion of a causal between in- garding physical her own condition were injuries and the defendant doctor’s competent Specifically, and inadmissible. beyond alleged negligence the ken argues that “was defendant lacked 701; average layman”); R.I.R.Evid. requisite necessary express medical skills cf. Note, however, velop physical injuiy"). driving force 22. that in an action like this one into distress, increasing recognition for intentional of emotional behind this trend is the infliction extreme, (if precisely outrageous, this reluctance should diminish not vanish that it is altogether) defendant’s wrongful and the intentional nature because now the conduct Thus, inju- inherently that conduct but deliberate. conduct makes unintentional 998; “Outrage," among many jurisdictions 38 A.L.R.4th at Restate- growing has rious. trend (Second) (1965). § claiming ment Torts 46 permit plaintiffs been intentional in fliction of emotional distress to recover anguish requiring mental without first their Co., See, e.g., Stuckey 42 R.I. v. Island Rhode prove they them accom suffered from (1920) 450, 453, (citing with 108 A. 583 panying physical injuries. Ctift, 688 A.2d at See distinguishing in- approval cases and authorities J., (Flanders, concurring part 815-816 opinions lay competent medical witnesses cases); dissenting part) (collecting Agis testifying to the external witnesses such Co., Howard Johnson 371 Mass. Annotation, 355 N.E.2d injuries appearance of own as well as their " (1976); 315 see also Modern Status 'feeling, symptoms, as as pains, well their Intentional Mental Distress injuiy, all external the characteristics of Independent Infliction of ” Tort; “Outrage", 38 internal])] [tjhis A.L.R.4th lay was the limit’ (1985) (hereinafter “Outrage”); Restatement competency); also see 31A Am.Jur.2d witnesses’ Weiner, (Second) (1965); (1989); § §§ of Torts 46 Merle H. Opinion Expert Evidence Annotation, Warren, Admissibility opin- Violence and the Per Se Standard Domestic H.D. (1995) disease, death, Outrage, Maryland L.Rev. ion evidence as cause of Thus, (1959). (reporting forty-eight recogniz states injury, 66 A.L.R.2d 1082 (in ing example, the tort of infliction of emotional intentional it been held that a has distress, adopted may testify imprisonment) all but three the Restate have action for false Shahvari, formulation); impris- person Mandana Com not a before ment’s she was nervous ment, afflicted with nervous- AIDS a Cause but that she was Fear As onment AfrAIDS: Action, (1994) nightmares (noting thereafter. Temp.L.Rev. suffered from ness and Hamilton, Hospital Ala. Gadsden General 531, these cases "has been aban that the trend in requirement de- So. 553 that emotional distress don the 852 here, Further,

R.I.R.Evid. 702. But unlike the situa- emotional abuse of her. consider- Marshall, personal injuries tion in plain- ing plaintiffs difficulty inexperience with and experienced tiff not rare diseases re- expressing English, in herself quiring explanation everyday scientific but her did abuse discretion afford- garden-variety symptoms illnesses with ing plaintiff a certain amount of latitude lay are familiar to witnesses. the manner in plaintiff which described her physical jury. condition to the addition, widely accepted it is elsewhere persons plaintiff this who claim like to colds, suffer from such common ailments as IV headaches, indigestion, nausea, or skin rash- Properly The Trial Justice Allowed the may testify es about nature and cause of Jury to Hear the Social Worker’s Tes- their ailment without the expert need for timony Concerning Plaintiffs Post- testimony.24 medical This was com- traumatic Disorder Stress petent go jury lay-opinion to the with such expert-medical diagnosis evidence not as but challenges The defendant also the admissi- lay description as a witness’s of her own bility testimony of Suzanne Bowman physical personal condition based on her ob- (Bowman), plaintiff’s psychotherapist and so- experience.25 servations and cial worker. He contends that Bowman’s worker, opposed status as a social as to that Consequently, lay witness, like other doctor, of a precludes medical from testi- her testify competent about her fying opinion to her suffers physical own condition before and after her from syndrome posttraumatic- as known relationship with defendant and about wheth- (PTSD). er, Citing stress disorder v. him, Ouellette after her sexual encounters with she Carde, (R.I.1992), 612 developed symptoms nervousness, A.2d 687 defendant of extreme nausea, rashes, a psychotherapisVsocial asserts that sleeplessness, skin worker night- mares, can testify closely and she has plaintiff’s flashbacks. The he or been testi- mony supervised by physician, regard incompetent quali- was not a medical attempt expert at a fied as an self-diagnosis psychothera- medical but an the field of py, effort her give expert opinion. and relate various does medical physical symptoms experi- and she Accordingly conditions he claims that Bowman’s testi- following physical mony enced diagnosing plaintiff suffering defendant’s and as Orsini, 367, 24. See State v. Dist.Ct.App.1986) (plaintiff compe- 155 Conn. seaman "was 907, (1967) ("state pregnancy testify 910 lay regarding is such a tent to as a witness the effect may give common condition that a woman that noxious fumes which emanated from an oil- opinion pregnant”); City State, that she herself is paint body"); based had v. Lanier 368, England, 17, (1913) (death v. Goshen 119 Ind. 21 N.E. 977 141 Ga. 80 S.E. 5 caused (broken (1889) foot); Inter-Southern strangulation); Insur- Incorporated City v. Suddith Life 694, Stephenson, Ky. Boone, 258, v. (1903) (nox- ance Co. 246 56 S.W.2d 121 Iowa 96 N.W. 853 332, (1933) (laypersons "may testify sickness); Blatti, 335 gases ious caused Patterson v. * * * knowledge 23, matters within (1916) (marks [their] concern- 133 157 717 Minn. N.W. on a ing vigor apparent physical the[ir] bite); and condition tooth thumb were marks from Letcher v. recognized symptoms Skiver, 269, (external and (1924) as well-known and Okla. P. 99 226 1029 disease”); indicating Tierney Minneapolis accident); injuries v. & caused auto Novak v. Mil- Co., 311, Railway ler, St. Louis 33 (1924) Minn. 23 N.W. (bruises 97 Okla. 223 155 and P. (1885) (skin disease); 233 v. Owens Kansas by being pavement); cuts caused thrown to Co., City, Joseph St. & Mountain, Inc., Council Railroad 95 Egede-Nissen Crystal v. Bluffs (1888) (partial Mo. paraly- S.W. (1980) (plaintiff Wash.2d 606 P.2d sis), disapproved grounds by other Moore v. qualified explain pain or differences dis- Co., Ready Mixed Concrete 329 S.W.2d pregnancy prior birth-giving comfort of (Mo.1959) (enbanc). pregnancy birth-giving to accident sub- accident); sequent Wright City Fort How- ard, (miscar- (1884) nonexperts 60 Wis. 18 N.W. 750 25. For these same have reasons been fall); riage permitted day testify suffered on also 31A about the after see cause numerous Snowden, injuries. Wagner Expert §§ Corp. Opinion Am.Jur.2d 199- Electric Evidence (8th Cir.1930) Warren, (1989); Annotation, (gas burning F.2d H.D. Admissi- caused sen- nose, throat, chest); Death, eyes, Opinion bility sation Solano v. Evidence as to Cause Lines, Inc., Disease, (Fla. Injury, Carnival Cruise 491 So.2d 325 1082 8 A.L.R.2d added.) Porraro, 121 Accord v. provide to State improper attempt PTSD was an es (1979). 882, 892, expert opinion by not 404 A.2d medical one who is a R.I. physician. But In re Jean Ma- licensed see possesses sufficient a witness Whether (R.I.1989) W., 625, 629, 630 n. 8 rie 559 A.2d skill, experience, training, or edu knowledge, justice’s to a (affirming trial decision allow a expert concerning a qualify to as an cation testify diagnosis to her social worker to subject primarily in particular matter rests patient’s as the cause of her sexual abuse discretion, and absent a justice’s the trial injuries). emotional disturb showing this court will not of abuse W., re the case of In Jean Marie not appeal. of that discretion on the exercise only expert to was the social-worker allowed (R.I. Fogarty, 433 A.2d State testify concerning patient’s hearsay 1981). during her statements made to the course we psychological treatment but also affirmed Here, quali- properly trial after the justice’s trial decision to allow the social field of expert in the fied Bowman as expert opinion diag- give to her and worker to Bowman testi- psychotherapy, she allowed nosis that sexual abuse was the cause symptoms fy con- suffered Thus, injuries. patient’s Id. in opin- based her sistent with PTSD. Bowman jurisdiction, proving this the cause of emo- only education and ion not on her formal require complaints tional-distress does not training diagnosing coun- professional in and opinion. expert medical on her seling sufferers of PTSD but also own plain- personal and treatment of observations

Rule of the Rhode Island Rules of years counseling sessions. during tiff two provides: Evidence education and extensive formal Bowman’s scientific, technical, specialized “If or other psy- in practical experience the field knowledge will the trier of fact assist justice’s broad chotherapy support the evidence or to determine a understand expert qualify as an issue, discretion qualified fact in as an witness testimony psycho- skill, practicing knowledge, experience, admit her as expert by in education, may testify therapist.26 there no error ad- training, Thus or thereto testimony.27 mitting in opinion.” (Emphas- the form of fact or this (R.I.1992), testimony opinion 26. Bowman was licensed as in Social mandated Certified by expert social workers be corroborated Work Rhode Island and a Licensed Inde- testimony pendent after conceded medical Clinical Social Worker in Massachusetts plan offer such corroborat approximately years. that there was no ten has an She under- herein, ing testimony. I For the reasons set forth graduate degree University and a from Brown imposes requirement. no Ouellette such degree believe social work master's from Boston Uni- Further, spe psychotherapist or worker social versity. starting psychotherapy Before her own diagnosing people cially and educated in trained practice, super- participated Bowman in several rape-trauma syn symptoms of or 3,000 PTSD internships engaged over su- vised physi equivalent aof licensed drome is not the spe- pervised hours of clinical social work. She rendering diagnoses providing medical or cian counseling cialized in individuals who had been testimony. Many jurisdictions expert medical sexually drug who ad- abused or suffered from professional therapists recognized oth have eating dictions or disorders. diag possess expertise physicians er than Gregory G. PTSD. See nosis and treatment of expert qualifying Bowman as an witness After Sarao, Annotation, Admissibility, Criminal psychotherapy immediately in the field Prosecution, Rape Expert Testimonyon Trauma following testimony concerning plain- Bowman’s (1985); Syndrome, 42 James O. A.L.R.4Ü1 PTSD, justice, denying defen- tiff’s trial Jr., Annotation, Pearson, Admissibility Expert testimony, to strike the com- dant's motion Testimony Opinion or Bat on Battered Wife mented: Syndrome, A.L.R.4th 1153 Woman tered is, Bock, Annotation, you going (1982); [that strike "I'm overrule J.A. Qualification cf. regret testimony] probably Testify Psychologist and I'll as to Men Bowman’s Nonmedical testify, qualified I’ll Competency, She was not but let 78 A.L.R.2d 919 it. Condition or tal * * * * * * her[,] jury can] consider it [the Moreover, candidly told the Bowman for whatever it’s worth.” however, noted, physician and therefore that these com- she was not licensed It should be dispense render medical immediately medication or after defense could not ments were uttered Carde, Nonetheless, she was diagnoses. she stated that argued counsel that Ouellette Contrary arguments, comports only defendant’s with the result Ouellette holding in does Ouellette not stand for the holding but also with our In re Jean proposition expert that a social worker’s There, court Marie W. held that opinion is admissible at trial if that Family justice “the properly Court was opinion supervision is formed under the close allowing in within his discretion this [social practitioner. of licensed medical In Ouel- diаgnosis worker] witness to render lette, the court focused on the of closeness registered, based on her as a status inde- psychiatrist/social the relationship, worker pendent pursuant to clinical social worker purpose creating not for of the a new rule (1987Reenactment) chapter G.L.1956 of39 barring testimony expert-opinion by social title 5. Her extensive formal education workers unless it is formulated the under practical experience in the of field doctor, aegis of a licensed medical but for the support child work social also this deci- purpose refuting argument proffered of sion.” 559 A.2d at 630 n. 8. concerning competency the defendant underlying The rationale our decisions and There, psychiatrist’s testimony. those from other such states28 allow ex- argued psychiatrist defendant pert testimony to be into admitted evidence should testify not have been allowed to be- professional that if therapist or social delegated cause he had counseling of qualifies expert ap- worker an Ouellette to a social worker as under the and therefore personal knowledge plicable lacked of of Ouellette’s rules evidence and if or her rejected testimony treatment. The court not this in can assist factfinder argument issues, upheld but also of the admission determination of the restrictions testimony expert social worker’s as an operate to bar of the admission such Ouellette, in psychotherapy. witness 612 probative testimony cautiously should be im- Consequently A.2d at 693. the Ouellette heavily justified. posed and no Because such permitted expert, properly quali- court each here, justification discretionary exists de- such, testify respective fied as about their justice of cision the trial to allow the social treating roles without estab- testify worker expert Bowman to as an lishing any requirement that a social worker psychotherapy concerning diagnosis of supervision by must first show a medical plaintiffs just upheld, PTSD should be as we doctor testify before he or she can an did In re Marie W. Jean (no expert. Fogarty, 433 978 Cf abuse of refusing qualify discretion in V counselоr of treatment alcoholism as Evidence of Defendant’s Assaults expert degree when he held no academic Attorney Plaintiffs Husband and His subject matter, expertise in the had no in the Properly Was Admitted diagnosis alcoholism, and had no medical knowledge). challenges The defendant also the admis-

Plainly testimony relating justice’s physical the trial sion of decision to admit assaults testimony the social worker’s this case former husband and threats al- Knock, competent See, recognize patients e.g., and treat suffer- dromes like PTSD. v. 224 Knock (1993) ing (sociologist- from PTSD and certain other emotional mal- Conn. 621 A.2d 267 State, Fully expertise. cognizant syndrome); adies within her battered-woman v. Simmons fact, (Ind.1987) (psychiatric 575 ruled 504 N.E.2d social that Bowman’s admissible, Reeder, rape-trauma testimony syndrome); was State v. [as] "not medical worker - * * * (1992) opinion N.C.App. (psy opinion." 105 413 S.E.2d 580 [but a social as] worker’s abuse); W., chologist State v. Schum Accord In re Jean Marie 630 n. - child (1993) (men (R.I.1989) pert, 312 S.C. 435 S.E.2d (affirming 859 allowance of social work- rape-trauma syndrome); tal health testify regard diagnosis er to abuse). to her of sexual counselor— Bubar, (1985) State v. Vt. A.2d 1197 (rape rape-trauma syndrome); ac counselor - State, (Fla.App. 28. Rhode Island does not stand alone its deci- cord Hawthorne So.2d 1982) (clinical psychologist sion to social other allow workers and licensed - battered-woman Robinson, professional therapists syndrome); counselors and who Wis.2d State (1988) physicians testify concerning (rape rape- are not treat- 431 N.W.2d counselor - diagnosis syn- syndrome). ment and of emotional-trauma trauma awith dant assaulted her former husband presence in her legedly made defendant bragged to her about on the and later her former husband’s clenched fist Although him. grounds that the admission of such evidence he to do to what intended 404(b) defendant, was Rule the Rhode Island this evidence prejudicial violated Evidence,29 unduly prejudicial, plain- reasonableness Rules of relevant to show the intimidation, disagree. I completely irrelevant. physical tiffs sense defendant, al- and of the emotional fear terri Here claimed that she was over her. leged sway he coercive hеld that he tricked and fied defendant and into a sexual intimidated her defendant, hand, on the other

with him. The VI plaintiffs participation con claimed that was Battery and Fraud Plaintiffs Because specific Consequently of sensual. evidence Alone, Standing Support Claims, the by perpetrated of intimidation personal acts by Jury, Damages the the Awarded presence plain and made in the of defendant Judgment No Be Affirmed and Should importance potentially critical tiff were of New Be Granted —Even Trial Should the the consent issue to both reasonable Malpractice Emotional-Dis- if the plaintiffs charges credibility the of ness and Improperly Had Been tress Claims by See alleged of intimidation defendant. Jury to the Submitted (R.I. 1079, Tribble, 428 A.2d State v. Martinez, 1981); 651 A.2d see also State v. DiSandro, defendants, DiSandro and (R.I.1994) (evidence of criminal Inc., Associates, P.C., contend that & Smith if it is to the conduct is admissible relevant showing that a di they in are successful case). “paramount the issues in Since the granted on have been rected verdict should is to ensure purpose of our rules of evidence wrongdoing the of one of five counts even it trier of fact will have before all that the they jury, to the then were submitted that reliable, relevant, probative on evidence remaining a on the new trial are entitled dispute,” in defen the issues evidence of Reynolds They v. Mis counts. assert that propensity dant’s to resort to acts and (1951), sler, on A.2d 914 79 R.I. aff'd in physical plaintiffs threats of violence both (1952), stands reh’g, 80 R.I. 90 A.2d presence and of which she was aware were multiple counts proposition for the when apprise jury the properly admitted jury, judgment to a a been submitted have during period mind of defen state of parly general after a entered in favor of alleged ongoing dant’s coercion and when evidence verdict must be reversed Tribble, of her. 428 A.2d at 1085.30 abuse insufficient counts is any one of the several jury. by See following support its consideration plaintiff testified that Here Tex Manufacturing, taking Division deposition of a held at defendant’s law also Welsh Inc., tron, Pinkerton’s, office, A.2d Inc. v. took her former husband’s defendant (R.I.1984). The reason such attorney by and threw him out of 441-42 the collar сontend, very result, they is that the nature the room. She also claimed that outside the impossible general it courtroom, of the verdict renders during proceedings, defen- court defense, claim, 404(b) charge, or when evidence or Island Rules of 29. Rule of the Rhode 404(b), proof may provides pertinent part: be in also Evidence is offered under Rule crimes, person’s specific con- wrongs, of the made of instances other or acts is "Evidence of prove the character of a not admissible duct.” person person acted that the order show however, may, conformity therewith. It may Although be excluded relevant evidence 30. proof purposes, such as for other admissible probative ground is substan- its value on intent, motive, plan, preparation, opportunity, danger preju- outweighed by unfair tially identity, knowledge, or ac- absence of mistake dice, is of evidence unless such R.I.R.Evid. cident, prove feared immi- or to that defendant enormously prejudicial, "marginal relevance bodily fear was reason- nent harm and it." act to exclude should not able." Inc., Optical, v.Wells UvexWinter 405(b) In like manner Rule states: (R.I.1994). or trait [of] which character “In cases in person is an essential element of character of a for the court to determine jury whether the liability these what answers theories of ” its “solely based verdict improperly jury rendering relied its verdict added.) (Emphasis submitted count. Reyn- Further, plaintiff. damages claimed olds, 79 R.I. at by plaintiff jury and assessed specific any peculiar or one count However, decidedly this is not the situation alleged theory but were common each we have In here. both Missler and Pinker- liability relied upon seeking ton’s, general verdicts were returned favor (that is, plaintiffs recovery physical suffer- any of the special without findings ing, distress, her severe emotional and her jury regard made to the defen- humiliation). extreme liability dant’s on each separate causes damages action for which had been fact the in support plaintiffs evidence Thus, sought.31 either Missler or Pinker- was identical for each count and ton’s, it impossible for this court to would not have varied one iota whichеver theory determine on which or theory theories the of liability or theories were allowed to relied in rendering its go jury. verdict. Nor is there evidence theoretically possible Because it was any duplicative multiple whatsoever jury’s verdict was solely based on recovery jury’s case, the im- any the award. properly claim, submitted a objected new trial on the defendant never to the form the remaining counts had to be ordered.32 verdict or to special interrogatories the that were Consequently submitted. he has Pinkerton’s, But in contrast to Missler and any theory, waived claim based on this and I special interrogatories here were submitted why cannot see a new trial should re- be jury concerning to the each count it that was quired battery on the and fraud claims. consider, jury’s and the answers these interrogatories Indeed, that disclosed it found defen- very purpose we that have said the dant to be separate liable on having each the a trial submit written inter- recovery plaintiff present- theories of rogatories that jury (together to the with a re- namely, battery, verdict) quest general intentional infliction of a is to avoid ed— distress, legal malpractice, and uncertainty” “[s]uch a crisis of about which fraud. It counts, also found law firm any, jury the liable for a the finds defendant to having legal malpractice. committed be liable. Seabra v. Puritan Insurance Life $25,000 Co., compensato- was awarded 488, 503, 117 R.I. 369 A.2d ry damages against (1977); both Super.R.Civ.P. defendant and the see also 49. In Sea- $200,000 law firm punitive damages distinguished bra this court Missler on the against defendant alone.33 is Hence it clear basis sup- that Seabra “evidence [existed] Textron, Manufacturing, 31. prejudicial In Welsh Division error and whether or Pinkerton’s, Inc., (R.I.1984), Inc. A.2d request defendant had the burden to find- such interrogatories jury were submitted to the but ings. might appropriate questions These be here, interrogatories, those the unlike ones used where all the in a counts declaration con- are did indicate which of the various theories of proper sistent under action the stated in on, liability jury the based its verdict that is is, they [that the writ all arise out of one negligent whether the defendant was in the hir- context], where, here, but factual supervision, ing, training, assignment or of its entirely count cause different of action security guard. imported into the declaration without * * justification *.” Id. at 90 A.2d at 781. because, distinguishable 32. Missler is also unlike case, the claims improperly in this the count 33.According judgments the entered jury totally foreign submitted the there “was Court, Superior compensatory-damage and inconsistent with the cause of action on trial,” against Missler, 59, 62, award ran dro, Edmond Reynolds "defendants DiSan- 80 R.I. 90 A.2d al[J,” (1952), punitive aff'g, damage et 79 R.I. A.2d while award (1951), is, DiSandro, factually against one that was unrelated ran "defendant Edmond et However, properly joined deliberations, and thus not jus- with the stated al." before cause action. For reason the Missler punitive tice’s instructions made clear dam- court stated: ages only against could be assessed defendant peculiar "In the circumstances of this case against it and not defendant's law firm. unnecessary special to decide whether find- ings necessary to determine the existence * * * supported by unequivocally claims was plaintiffs] theo deceit porting [the both of which, dupli- ries, standing appear and does not either one the evidence [and] alone, R.I. support recovery.” judg- at way, would affirm the I would cative 661; also Aldrich v. see on the awarded ment below and too, 98, 103 Here, Lyman, 6 R.I. validity claims alone of these basis of the claims, “standing plaintiffs battery fraud remanding Superior case to without Moreover, alone, support recovery.” would trial. Court for new one, mirroring present this a situation potential saving grace court noted Conclusion justice’s special findings requesting trial reject I the de- reasons would For these Pinkerton’s, 474 at 443 jury. from the uphold appeal, arguments fendants’ Indeed, spe this n. court Pinkerton’s judg- and affirm the justice’s rulings, trial theory cifically rejected “poison pill” ad ment below. by the defendants here and stated vanced findings, special it has made “[i]f unnecessary for court to reverse may be may it judgment, even in event that one support evidence to insufficient

find liabili the alternative theories more [of added.) Here, ty].” ‍​​‌​‌​‌​‌​‌​​​‌​​‌‌​‌‌‌​​‌​‌‌‌​​​​‌​‌​​​​​‌‌‌‌‌​‍because (Emphasis Id. battery jury’s concerning the verdict

Case Details

Case Name: Vallinoto v. DiSandro

Court Name: Supreme Court of Rhode Island

Date Published: Feb 11, 1997

Citation: 688 A.2d 830

Docket Number: 93-379-Appeal

Court Abbreviation: R.I.