Vassiliades v. Garfinckel's, Brooks Bros.

580 Moreover, Green, reason, Clay v. 404 A.2d

wrong thus not reverse we do Irish, (D.C.1979), moot the ground. Marinopoliski on that v. this court determined (D.C.1982) (citing A.2d Helver a tenant had waived question whether Gowran, ing quit 302 U.S. right to to where the tenant her notice Holtzman, (1937)); 82 L.Ed. 224 Inc. premises. Max remanded had vacated the n. v. K & T 375 A.2d case for a determination of rent due. that (D.C.1977) Liberty Insur- Mutual bar, longer case the tenant is no In the ance Co. v. District re- living and of rent has been the issue (D.C.1974); Wynn, Wells v. solved. (D.C.1973)). A.2d 829 n. 2 Affirmed. III. of Notice Issue of Daniels’ Waiver Quit

To is Moot appeal

The final issue whether could a clause in

Walter Johnson enforce purported which to waive Daniels’ lease right quit premises.

her to notice to

Appellant assigns as error the trial court’s enforceable conclusion that the waiver was VASSILIADES, Appellant, Mary assignee

by appellee as Johnson’s Carl grantee. Specifically, appellant contends appellee prove to at trial that failed that BROTHERS, GARFINCKEL'S, BROOKS assigned prior the lease to initia Rhoades, Inc., and Csaba Miller & Appellant tion of suit. also contends this M.D., Appellees. Magassy, lease the covenant the Daniels’ No. 83-1255. waiving right quit to her notice convenanting parties, personal as to the Appeals. Court Columbia Johnson, Ms. and Carl it Daniels Argued Oct. 1984. by appellee. was therefore unenforceable May 1985. Decided Although poses interesting issue this it is moot.

questions, we are convinced that appellant

The relief seeks relates to by the trial money judgment awarded possession premis-

court not to Consequently, the that we

es.21 issues addressed, relating Daniels’

have to Ms. rent, level of are

counterclaims However,

properly this court. before appellant not waive her

conclusion that did open quit notice would remedy.

door to an additional See Gaddis A.2d Realty Company,

v. Dixie (D.C.1969) concept of (discussing

mootness), grounds, on other remanded F.2d 245 U.S.App.D.C. court, death, money judgment awarded the trial Upon ap- ordered Daniels' this court solely why appeal pellant should related cause this is no need to address issues to show there 3, 1984, February argument, moot. possession. not be dismissed as On counsel At oral appellee’s to dismiss this court denied motion possession appellant conceded issue explanation. appeal Hav- as moot without is moot. ing concern now those issues which addressed Vizzini, Washington, D.C., for

Charles S. appellant. Greene, D.C., Washington,

James W. appellee Garfinckel’s. Bonner, D.C., Washington,

Keith for M. appellee Magassy. PRYOR, Judge, NEW-

Before Chief and ROGERS, Judges. Associate MAN and ROGERS, Judge: Associate Vassiliades, Appellant, Mary sued Mrs. M.D., plastic surgeon, Magassy, her Csaba Garfinckel’s, Brothers, Brooks Miller & Rhoades, (Garfinckel’s),for Inc. invasion privacy theories because the on several photo- doctor and “after” used “before” surgery graphs cosmetic at a Gar- of her presentation and department finckel’s store promoting pre- program on a television Magassy denied liabili- sentation. Dr. ty grounds on the Mrs. Vassiliades consent- photographs ed to and the disclosure of publication privileged as a matter of was legitimate as- public interest. Garfinckel’s privilege and serted the First Amendment Mrs. claimed disclosure of Vassiliades’ good photographs was made faith and lack of consent. without notice of case, plaintiff’s At the close of granted defendants’ for trial court motion punitive damages directed on the verdicts Magassy’s motion direct- claim and Dr. possi- Magassy Dr. to discuss the contacted ed on the claims for breach verdicts surgery; having perform him bility of duty portrayal of Mrs. Vassi- fiduciary surgery successfully the performed the light. the close of all he liades in a false At surgical Before and after for di- next month. the evidence the defendants moved Magassy photographs Dr. took remaining procedure, on the issues. rected verdicts face. Mrs. Vassiliades Vassiliades’ ruling these motions of Mrs. The court reserved being photographs were jury. jury understood case to the sent the regular rou- $100,000 the doctor’s against part taken as Dr. returned a verdict patients. Dr. Ma- for use with other presentation tine Magassy for television photographs as he also took $250,000 gassy Dr. Ma- testified against a verdict patient measure the event jointly protective for the de- gassy and Garfinckel’s improve- had been no a hear- later claimed there partment presentation. store After granted appearance. mo- ment in ing, the trial court defendants’ judgment notwithstanding the tions for after Mrs. Vassiliades’ Several months trial, alternatively for a new verdicts and visit, Magassy Dr. postoperative last 50(c), grounds that Super.Ct.Civ.R. on the public relations by the director of invited against weight the verdict in a participate store for Garfinckel’s evidence, evidence, contrary and ex- to the during promotion the month of March cessive. compensa- agreed participate without He entitled, evidence, versus program in a “Creams Upon review of the we hold tion topic by chosen Gar- Surgery,” Plastic presented Mrs. sufficient evi- Vassiliades publici- partly as a result of recent jury reasonably for a to find her finckel’s dence plastic surgery operations of Magassy ty about the privacy was invaded Dr. be- of Presidents Ford and Carter. publicity private facts and the wives cause promotion prior its fiduciary by physician, In connection with duty breach of but Garfinekel’s, presentation at Gar- present sufficient of an failed evidence arranged Magassy privacy plac- to have publicity invasion of based on finckel’s the “Pano- participants appear on ing light appellees’ appro- her in a false or and other WTTG, program on Chan- priation her commercial rama” television of likeness for 5, Washington, in D.C. gain. We further hold that Garfinckel’s nel held it had ob- cannot be liable because Dr. presentation, During his television Magassy from Dr. of Mrs. tained assurance photographs of several Magassy used slide photograph. Vassiliades’ consent to use her including “before” and patients, his two of Therefore, judgment not- we reverse the Although “after” of Mrs. Vassiliades. two Magassy withstanding the verdict as to Dr. appeared the tele- face on Mrs. Vassiliades’ privacy publicity of for invasion based and less than one minute vision screen for private facts and the directed verdict mentioned, a former was not her name fiduciary duty by physician. In breach Brooks, coworker, recognized her. Beatrice respects judgment be- other we affirm previous- she had not Mrs. Brooks testified low. surgery Mrs. ly known about Vassiliades’ photo- seeing after Mrs. Vassiliades’ and

I she program, graphs during the television at work to that, immediately called a friend in con- The evidence established coworker The this information. undergoing plastic surgery, share templation em- told another Vassiliades, Brooks called secretary, whom Mrs. Mrs. housewife Woo, neighbor of Mrs. mother, ployee, Elliott resigned from her secretarial and Vassiliades, already Three he knew. but Department of Health position at the U.S. a similar Magassy made days later Dr. age in at the and Human Services department presentation at Garfinckel’s thereafter assisted her husband store; people were in the audi- seventy-nine April conducting his business. In she ence, but presented no evidence was or that directed verdicts on the pri- invasion of anyone recognized there vacy Mrs. Vassiliades’ cause of action must be reversed. photographs. judgment A directed verdict and a

Mrs. pre- notwithstanding appropriate Vassiliades learned about the the verdict are April sentations on to jury “remove from consideration those She testified facts, when she cases which most fa learned of the disclosure viewed she “devastated,” vorably party, permit to the nonmoving but “absolutely shocked” proper one reasonable “felt conclusion as everyone terrible” that at her judgment.” former office Columbia Cas knew her about face-lift. (D.C.1983); sidy, Papan She “went depression,” into a terrible Inc., Group Hospitalization, icolas v. did not go public anymore. want to out in (D.C.1981); A.2d Faniel v. Chesa virtually She claimed she hiding went into peake Telephone & Potomac A.2d accompany refused to her husband to (D.C.1979). appeal, this On court many places because everyone she knew apply must as the the same standard trial talked about her surgery. cosmetic jury considering court whether could key issue at trial was whether Mrs. reasonably reach a verdict in favor of the Vassiliades had consented to the use of her opponent of the motion. District Co photographs by Magassy. Dr. She cate- 397; A.2d Cassidy, supra, lumbia v. gorically denied that Magas- she had. Dr. Chesapeake Faniel v. Potomac Tele sy contended that he had obtained her ver- phone 404 A.2d at 150 bal consent: on two occasions she had ex- Inc., System, Baker v. D.C. Transit pressed willingness her help any him in (D.C.1969)). A.2d way she patients could with other who Opinion In its Memorandum might be contemplating plastic surgery, Judgment right the trial court held that the and on her last visit she had told him that that, in privacy is not absolute and bal he could photographs use her in his lec- ancing right the individual’s to be let alone tures or in way help other other know, public’s right and the there are patients. Magassy’s former assistant public right occasions on which the must manager office testimony corroborated his prevail. agree. agree We also about Mrs. Vassiliades’ verbal consent. precise boundaries of the inter define, exceedingly est be difficult to II subject plastic surgery, matter of alleged noted, Mrs. Vassiliades her as the time trial court “at a when privacy was many violated because men highly unreasonable well-known and visible publicity given life, private to her objects and women were the of news arti photographs were used for plastic commercial cles about face-lifts and other sur defendants, gain by interest, the por- gery” general public and she was was of and trayed light. in a professional false Her additional presentation photo that a with claim for breach of fiduciary duty graphs public would enhance the interest part however, also privacy subject. of her invasion of disagree, claim. with § 652A, at the trial court’s conclusions that “reason (Second) Restatement of ToRts (1977)(although plaintiff may 377-78 finding main- able minds could not differ in privacy tain invasion of publication photo cause of action on Mrs. Vassiliades’ [of theories, interest,” several only graphs] legitimate public she is entitled to one to be of recovery damages). Accordingly, of “certainly, subject if the and that of face-lifts ruling against trial court erred in plastic surgery longer subject Mrs. Vas- was no grounds siliades on of alleges generate persons she calculated to to offense as a basis for privacy, entry ordinary invasion of sensibilities.” We hold Mrs. judgment notwithstanding expect photo- the verdicts Vassiliades was entitled to

587 graphs surgery publi- Co., of her would not be Broadcasting stein v. National su- cized (same); without her consent. pra, F.Supp. Peay 129 at 826 v. Co., Publishing F.Supp. Curtis 78 at 309 concept The of a cause of action for (same). This court has relied on the Re- privacy generally invasion of is considered formulation of the (Second) statement’s having originated as with a law review applicable privacy” law “invasion of article written in 1890 Samuel D. War- determining appropriate contours of a ren and Louis D. Brandéis. generally, See right, cause of action for invasion of that Brandéis, Warren Right Privacy, The Co., Washington Harrison v. 391 Post article, 4 Harv.L.Rev. 193 In their (D.C.1978) (citing A.2d 784 the authors described the cause of action Restate- § supra, 652D comment b and com- ment, right then, as “to be let alone.” Since facts), publicity private ment and we the tort privacy of invasion of has been f— do so here. expanded considerably, but as Professor noted, Prosser much always debate has existed over the scope definition and A. “right privacy.” generally, See W. § 652D, supra, Restatement, Torts, § (4th Prosser, 117 ed. Law of recognizes publicity private of a mat 1971). Professor categorized Prosser four privacy.1 ter constitute an invasion of (1) distinct kinds of invasions: intrusion contemplated “any The drafters broad upon physical seclusion; one’s solitude or radio, cast over the or statement made in (2) public facts; private (3) disclosure of audience, large an address to is sufficient publicity places someone in a false give publicity” private life of a light public (4) eye; appropria- Id., person. comment a. The determina tion of one’s name or likeness for another’s tive factor is whether the communication is benefit. Id. This formulation has been opposed private. as Mrs. Vassi- widely accepted by adopted by courts and that, agoniz liades offered evidence after (ALI) the American Law Institute as its ing losing youthful appearance over her general statement of the law. See Re- contemplating plastic surgery 652A. statement, many years, plastic surgery she underwent The District of long recog- Columbia has secret, kept surgery telling only nized the common law tort of invasion of family very intimate friends. privacy. Publishing Co. Afro-American jurisdiction, In this a cause of 70, 74, Jaffe, U.S.App.D.C. v. 125 366 F.2d privacy “repre action for the invasion of (1966) (en banc); Bernstein v. right private sents a vindication of the Co.,

National Broadcasting F.Supp. personality security.” and emotional (D.D.C.1955), 829-31 aff'd, U.S.App. Afro- American, supra, U.S.App.D.C. at denied, D.C. 232 F.2d cert. photo 366 F.2d at 653. Publication of a 267, 1 U.S. S.Ct. L.Ed.2d 239 graph nonpublic person of a his without Peay Publishing F.Supp. Curtis (D.D.C.1948). right. consent Peay is a violation of that doing, In so adopted F.Supp. Publishing courts have Curtis for- Restatement recognize “right mulation of the at 309. While we privacy.” Afro- absolute, Publishing agree Supreme American is we with the Jaffe, supra, Co. v. U.S.App.D.C. “[cjertainly at 74 n. 366 F.2d Court of Missouri that if there at 653 all, n. 5 any right privacy it should Restatement of Torts (1938), Privacy); Interference with Bern include the to obtain medical treat- 652D, (a) supra, provides: highly 1. The § would be offensive to a reason- Restatement, person, gives and publicity One able who to a matter concern- (b) ing private legitimate pub- subject the life of another is is not of concern to the to liability priva- to the other for invasion his lic. cy, publicized if the matter is of a kind that ment hospital plastic at home or in a for an indi- witnesses who learned of sur personal (at vidual gery condition least if it is from the television show and none others) not contagious dangerous or presentation to who saw the store does not personal publicity.” without Barber v. defeat her claim. Nor need her name have Time, Inc., 1199, 1206, 348 Mo. Peay S.W.2d been mentioned. See v. Curtis Pub (inva lishing supra, F.Supp. sion of used privacy photograph where analysis find the in Barber v. Time in article on without name as illustration persuasive, although the issue that case drivers). taxicab differed from the issue before us. The Supreme question Missouri Court faced the privacy The tort of invasion media, enjoys whether the which however, requires, publicity also the protection broader average per- than the “highly be offensive.” su Restatement, son, plaintiffs right § had invaded the to pra, 652D c. claimant comment “[T]he privacy publishing photographs certain suffered an unreasonable [must have] plaintiff privacy her. The claimed her protected serious interference inter with magazine had been invaded because had ests.” Jackson v. District of article, published using an her name and (D.C.1980)(citing 412 A.2d Afro- picture, physical about an unusual ailment U.S.App. Jaffe, supra, American v. hospitalized 654). for which she had been The trial D.C. at 366 F.2d at being upholding jury’s was treated. In photographs were not court found that the finding plaintiffs privacy nothing highly had been there was offensive because invaded, Supreme unsavory” about “uncomplimentary Missouri Court held or “[wjhile plaintiffs Although photographs may ailment have them. unsavory, been a matter of uncomplimentary some interest be- have or been unusual, certainly identity publicity cause Mrs. the issue is whether person surgery highly who suffered this ailment was not.” offensive Vassialiades’ was decision, however, question Id. The court’s person, did not to a a factual reasonable turn on plaintiff by usually given jury the identification of to determine. See to a name; Time, Inc., primarily supra, the court was concerned 348 Mo. at Barber v. patient’s right priva- protection with the individual 159 S.W.2d at 295. “The cy, recognizing physician plaintiff’s that for a effec- interest in his afforded to the tively patient, patient to treat a fre- customs of privacy must be relative to the quently required divulge occupation place, “information the time and to the neighbors which it embarrassing plaintiff would be both of his to the habits generally harmful to have circulated Restatement, and fellow citizens.” throughout community.” jury Id. 652D The was instruct comment c. highly publication ed that it had to find the precisely happened This is what person in order to offensive to a reasonable Mrs. Vassiliades. Medical information liability; finding for Mrs. Vas- establish embarrassing which emotionally specifically jury siliades the must have distressing to her was broadcast on tele the evi finding. made such a In view of large Publicizing vision and to a audience. find no presented jury, dence we photographs part presentation as of a that it did not follow the basis to conclude plastic surgery private communicated Randolph, 442 instruction. Parker v. See facts about Mrs. Vassiliades’ life. na 2139 n. U.S. 74 n. publicity ture of the ensured that it would v. United L.Ed.2d 713 Christian public. reach the Restatement, See States, (D.C.1978). (any 652D comment a over broadcast contend, publication large and the Appellees television or audience also found, give publicity). publicity sufficient to Thus the fact trial court legitimate presented only protected that Mrs. Vassiliades two because there was a

589 Co., supra, public Economics publication. in the It is a 665 F.2d at 307. interest privacy private person defense to a claim of invasion of facts about a should Certain general publicized, that if facts con- publicized the matter is of never be even the Dodd, are, interest. Pearson v. public per- 133 cern matters or relate to U.S. which 279, 281, 701, 703, are, cert. App.D.C. legitimate public interest.3 410 F.2d sons who denied, Time, Inc., 947, 2021, 1122, Virgil v. 527 F.2d 1131 U.S. S.Ct. denied, (9th Cir.1975), 998, supra, cert. Restatement, L.Ed.2d 465 U.S. § Moreover, privi- 652D. this defense or 48 L.Ed.2d 823 96 S.Ct.

lege persuasive is not limited to dissemination of news thus find the distinction Mrs. affairs, public private about current events or draws fact but Vassiliades between protects concerning surgery also her reconstructive and the fact “information inter- esting phases activity plastic surgery legit of human and em- that is a matter of public braces all about information is interest. issues which imate appropriate needed or so that that individu- pub The conflict between exigencies may cope al with the of their right lic’s to information and the individu Press, period.” Campbell Seabury v. right privacy requires balancing al’s to Time, (5th Cir.1980) (citing F.2d competing jurisdic interests. In this Hill, Inc. v. 374, 388, 385 U.S. 87 S.Ct. high privacy tion stands on a “[t]he (1967) and Thornhill v. 17 L.Ed.2d 456 ground, cognate to values concerns Alabama, 88, 102, 310 U.S. by guarantees.” protected constitutional (1940)); see also 84 L.Ed. 1093 Re- Publishing Jaffe, Co. v. Afro-American supra, (invol- statement, j 652D comment supra, U.S.App.D.C. n. at 75 & untary public figure properly subject to 8; see Gilbert v. Medical F.2d at 654 & n. interest). public privilege, which Co., supra, 665 F.2d at 307. Economics law, originally on common Restate- based Accordingly, upon balancing the two inter d, ment, 652D comment now also ests, had we hold that Mrs. Vassiliades stems from the First Amendment which protected. Although to be higher interest protects what otherwise would be an ac- Magassy and Garfinckel’s well Dr. Gilbert v. privacy.2 tionable invasion of making performed public by service have Medical Economics 665 F.2d surgery, presentations plastic about (10th Cir.1981); Campbell Seabury v. public undoubtedly has an interest Press, supra, 614 F.2d at 397. This broad unnecessary plastic surgery, it was privilege deny remedy would even to Magassy publicize to Mrs. Vassiliades’ persons sought who have not or at- have photo photographs. Publication of her Campbell tempted publicity. See avoid impact strengthened the nor graphs neither Press, Seabury supra, 614 F.2d at 397 nor oth credibility presentations § 118, 825-26). Prosser, at general public’s erwise enhanced Nevertheless, and facts concern privilege pub of the issues awareness Medi Gilbert v. See legitimate plastic surgery. public ing licize matters of interest supra, 665 F.2d at Economics is not absolute. See Gilbert v. Medical cal society at some generally of our protection each member [b]ecause 2. The First Amendment is media; by fairly publication activity be engages limited to others who could time in an protection published legitimate public claim because the matter as a matter of characterized legitimate public generally concern are limit- concern, activity open the permit protection See Gil ed to the common law. exposure truthful secret door Co., supra, bert v. Medical Economics 665 F.2d meaningless person render would about therein; Logan at 307 and authorities cited private facts. disclosure of the tort of F.Supp. 1333-34 require such a Amendment does The First (D.D.C.1978) law). (applying common result. in Gilbert v. Medical 3. The Tenth Circuit noted Co., supra, Economics 665 F.2d 308: supra, Magassy permission com- Dr. if had obtained 652D he Restatement, h). Magassy’s presentations patients Dr. from his use the slides.

ment to Based just by had, as on Dr. that Magassy’s could have been informative assurance he patients inquire of using photographs either other the director did not about consent prior presentation. or photographs department from medical textbooks. store suggest The that “logical presented nexus” courts have relied No evidence was to upon determining no liability in exists Garfinckel’s had reason to Dr. doubt legitimate public Magassy’s of interest where a matter statement. here, the nexus between the concerned— circumstances, these Under we subject photo- matter and Mrs. Vassiliades’ justified rely hold that was in Garfinckel’s graphs missing. v. Double Dresbach —is ing on Magassy’s Dr. assurances that he 1285, 1290-91 (D.D. day F.Supp. & had Mrs. consent and Vassiliades’ that Mrs. C.1981) Press, (citing Campbell v. Seabury failed to meet her Vassiliades has burden supra, 897). hold, there 614 F.2d prove liability for invasion Garfinckel’s fore, Magassy that Dr. invaded Mrs. Vassi- privacy. of her Dresbach Double See giving publicity pri privacy by liades’ F.Supp. day Co.,& at 1292. vate trial in facts and the court erred judgment not Accordingly, we affirm granting judgment motion for a not his Garfinckel’s, for withstanding the verdict

withstanding the verdict. although grounds than the tri on different Columbia, al court. Jones v. finding liability This of does not (D.C.1956). compel respect a like result with to Gar- undisputed is that finckel’s. evidence B. Dr. Magassy unqualifiedly had assured that, pa Mrs. claimed in dis- Garfinckel’s that he had obtained his Vassiliades also per- playing photographs without her consent. Clear evidence of consent tients’ mission, Magassy Dr. breached the confi- party liability. will insulate a from Ander relationship. doctor-patient dential This Housing son Rent v. Low Commission of (Iowa), privi- Muscatine, jurisdiction has not ruled whether the 304 N.W.2d relationship denied, lege physician-patient cert. U.S. gives Logan rise to a cause of action. See 70 L.Ed.2d 621 PROSSER, supra note cases therein. v. District at 817 and cited jurisdictions, in Thus, F.Supp. at 1335. In other the issue is whether Garfinckel’s was legislation, courts have justified on Dr. oral the absence of relying Magassy’s in found the for a of action ask Dr. basis assurance. Garfmckel’s decision to confidential physician-patient in its Magassy participate program breach understanding relationship public main sources he four based on its statutes, licensing reputable policy: physician di state professional; Garfinckel’s privileged communi- evidentiary Dr. rules and public rector of relations testified about exp prohibit physician cation which Magassy’s prior complimentary statutes judicial proceedings, testifying from program, Before the television osure.4 trust, and the principles common each of the law Garfinckel’s director examined and, of medical Hipprocratic principles upon finding oath on a view finder slides See, v. Aetna pleasant, e.g., ethics.5 Hammonds particularly asked some to be not Surgeons, College American Magassy the American was recommended to Garfinck- Surgery, Society Reconstructive Magazine, of Plastic and by el’s un- Garfinckel’s Dossier organizations. and other medical recently had in a derstood that he been featured performing article and on television Newsweek states, pertinent part: Hippocratic 5. The oath by operation. an He is certified the American knowledge my in the Surgery the American Board of AH that come Board of my my profession or outside of Surgery and is a exercise of profession and Reconstructive Plastic men, Association, daily commerce with or in American Medical member of the 793, merely Casualty Surety F.Supp. because the information learned (N.D.Ohio 1965); Patton, Horne v. legitimate public constitutes a matter of Ala. 287 So.2d 827-32 interest. 1468. generally Id. at See Doe Humphers Bank, 68 v. First Interstate Roe, 93 Misc.2d 400 N.Y.S.2d 668 —, Or.App. 573, 684 P.2d 585-87 (1977). (1984). jurisdiction There in this evidence exists The tort of breach of confiden strong public policy of a in favor of confi- relationship generally tial is as described dentiality relationships. of physician-patient “unconsented, consisting unprivi of the statute, licensing The District’s D.C.Code leged party nonpub a disclosure to third of §§ 2-1302, (1981), prohibits re- -1325 the lic information that the defendant has treatment, porting patient except of in learned relationship.” within a confidential § wounds, 2-1361, involving gun cases id. Note, Emerg Breach An of Confidence: § child 2-1355. neglect. Id. The Dis- 1426, 1455 ing Tort, (1982) 82 Colum.L.Rev. trict of also Columbia Code excludes the It arises from the lim [hereinafter Note]. testimony physicians in-court of about their duty "nonpersonal ited that attaches to re patients except in limited situations not rel- customarily lationships carry understood here. evant Id. 14-307. See also id. obligation an of confidence.” Id. at 1460 § 6-2002(a). Logan v. see But of omitted). (emphasis duty That limited con (tes F.Supp. at supra, 447 veys a standard that is more the strict than prohibition judicial timonial limited to con provides reasonable man test and fair text). suggest poli These statutes warning potential defendants that “for jurisdiction encourage incy this is to can palpable wrong, provides so a the law a by patients confidentiality by phy dor remedy.” Humphers v. First Interstate profession recog has sicians. The medical Bank, —, Or.App. at supra, 68 684 P.2d a relationship physi nized that between Driscoll, at 587 (quoting Smith patient requires that cian and confi “[t]he (1977)). Wash. 162 P. The a dences ... be held as trust and should object of the cause of action based on the except when im should never be revealed confidentiality breach of is not to fulfill peratively required by the laws of the expectations, compensate but to the result Principles state.” Medical Ethics ing injuries. Note, supra, at of of 1451. And A.M.A., II, (1943), Ch. cited Ham contrast of privacy, to the tort invasion of Casualty Surety monds v. Aetna subject privileges which is to traditional Moreover, in F.Supp. at 803.6 (such fraud, crime, as public safety, self-de situation, court held analogous this has an fense, person), third and interest of a fiduciary occupy rela persons a who public’s right First Amendment and tionship scrupulously honor trust must know, public-right-to-know privilege of reposed in them because and confidence this tort more restrictive than the broad relationship, and that special exception to interest the common fiduciary duty warrants the of a privacy. law A not breach defendant is Lee, obligation imposition damages. Wagman v. released from an confidence Dorland’s (26th In which keep but of trust not tion and the [the] results Hammonds, ed. in his into the secret and will never patient ought therefrom, 1981). Illustrated expectation discretion as well. only relationship necessarily reposes not to the court observed: in the skill imposes the be Medical spread confidentiality of this reveal. Dictionary fiduciary abroad, aura of great physician introduc- which I trust, obli- deal will cestui wrongdoer would exist very gation upon ship” arises, F.Supp. a] trustee’s definition, imports que new doctrine the same at 802-03 trust." against on behalf duties the notion the term doctor.... remedy exists a trustee upon (citations omitted). America, “fiduciary that ”[i]f physician [T]he on behalf of the principal [for] against imposition relation- [b]y wrong ... its [is as (D.C.) (escrow A.2d agent has C. fiduciary relationship of trust and confi We affirm judgment not dence prospective buyer property with withstanding the verdict on Mrs. Vassi- damages upon liable for breach of fidu liades’ claim appellees used her like — ciary denied, relationship), cert. U.S. ness for their commercial benefit and the -, 78 L.Ed.2d 145 directed verdict on her claim pho that her tographs publicized were in a manner that Surely it should be no less true place would her in a light.7 false Inciden patients receiving medical treatment in tal use of publication name or or likeness the District of Columbia than for those in purpose for taking other advantage than other jurisdictions person’s reputation of a or the value associ ated with his name will not result in action by patient confidences made physi- to a appropriation. Moglen able Varsity v. Pa may cian not be disclosed without the Inc., 114, 115, jamas, 13 A.D.2d 213 N.Y. permission patient. of the Patients ... 999, S.2d supra, 1001 Restatement, rely have the on this common § 652Ccomment d. the record While clear understanding require- of the ethical ly appellees establishes that used Mrs. Vas- placed ments which have been on the benefit, photographs siliades’ for their own profession medical and to obtain dam- Mrs. Vassiliades has not shown there was ages against physician if he violates public interest or other value in her like confidentiality. such § ness. com Restatement, 652C Humphers Bank, v. First Interstate su- Therefore, ments a appellees’ and b. use pra, —, Or.App. 68 at 684 P.2d at 587. photographs of Mrs. Vassiliades’ We hold that the physician-pa- breach of a appropriation an for commercial benefit relationship tient is an actionable tort. meaning within the of this tort. This conclusion is consistent the with light respect With to the false policy jurisdiction in this in favor of confi- claim, presented Mrs. Vassiliades no evi dentiality of physician-patient relation- appellees misrepresented dence that her ship and principle in Wag enunciated character, beliefs, activities or see Harri Lee, supra, man v. 457 A.2d at 404. How Co., supra, son v. 391 Washington Post ever, since Mrs. Vassiliades maintained 8; A.2d at 783-84 & n. su Restatement, that she did not assert her claim of breach pra, c, Magas- 652E comment or that Dr. of the relationship confidential an as inde sy any place took action to Mrs. Vassiliades pendent action, cause of only but as a light meaning in a false within the of this separate theory privacy, of invasion of tort. No claim was the use of made that directing error in the verdict for Dr. Ma- photographs gave impression the false gassy is harmless because she recovered on endorsing appellees that she was or antici her other only theories and is entitled to a pating personal financial from the benefit recovery wrong alleged. presentations, photographs for the did nor that the ^single Bros., Inc., Appellees (D.C.1983); improperly contend the trial court 467 A.2d Gor- 474 present Research, allowed Mrs. Vassiliades to evidence on Systems don v. Raven & 462 A.2d 10 light the false claim. (D.C.1983). Mrs. Vassiliades first al- generally Parties are bound leged init complaint, which the record does not indicate a motion for leave to file an amended pretrial order. Clarke v. District of (D.C.1973); Redding Capitol 311 A.2d v. However, granted. view manner (D.C.1971). Appellees Cab 284 A.2d judge in which the trial allowed this case to surprised by any privacy were not invasion of proceed, impliedly we conclude that he either trial, theory presented during upon re- and granted original the motion or viewed the com- verdict, judgment notwithstanding view of a plaint sufficiently encompass as broad to liberally pleadings. this court will construe the light theory, broadly interpreted false Washington Berry, App.D.C. Co. v. Herald liability pretrial theories of stated in the order. 15; Super.Ct.Civ.R. See Goldkind v. Snider Rather, award supra, 443 A.2d not resemble her. Mrs. Vassiliades by the photographs punitive damages supported did not accu- must be testified that the rately way her hair portray Biggs she wore v. evidence of record and the law. Magassy manipu- makeup (D.C.1976). because A Stewart, 361 A.2d lighting taking lated the while the “before” court, therefore, determine trial must pictures. and “after” Even if these facts legal exists sufficient foundation whether a proven, they were would not serve as damages. punitive Mark Keshis to award light claim. basis for an actionable false Sons, Square, Washington hian & Inc. v. Co., su Washington See Harrison v. Post (D.C.1980). Di Inc., 842-43 783-84; pra, 391 A.2d at Dresbach v. Dou intent is not re rect of malicious evidence F.Supp. at 1291- bleday supra, wrongful motive quired; malice and 92; 652E. Restatement, party acts of a be inferred from the evidence. Franklin Invest

circumstantial Ill Homburg, 252 A.2d ment Co. (D.C.1969); Washington Herald Co. v. Mrs. also contends the Vassiliades App.D.C. (quoting at 341 directing Berry, supra, trial court erred a verdict punitive damages, Holland, App.D.C. in find appellees Bailey damages granting ing the excessive and (1895))(“malice doing intention consists trial, in the alternative motion for a new which ally justification and without judgment for defendants event another”). injury must work appeal, should be reversed on basis there weight The trial court found that against that the verdicts were evidence, evidence, the is contrary to submit was insufficient evidence jury, and excessive.8 punitive damages to the sue of that Dr. agree. There was no evidence we outrageous or that Magassy’s conduct was A. a careless or he an evil motive or evidenced purpose punitive dam Mrs. Vassiliades’ indifference for reckless outrageous ages punish person is to for Lee, rights. supra, 457 A.2d Wagman v. wanton, malicious, conduct which is reck § 908(2). 405; In supra, at Restatement, less, disregard another’s or willful for stead, suggests Mrs. Vassi- the evidence rights. Group Hospitalization, Sere v. mutually not Magassy did liades and Inc., 33, denied, (D.C.), 443 A.2d 37 cert. limits of Mrs. Vassiliades’ understand the 912, 221, 459 103 74 L.Ed.2d 176 U.S. S.Ct. photo show her statement that he could Johnson, 781, A.2d Mendes v. 389 we patients. Since graphs prospective (en (D.C.1978) banc) (citing 793-93 PROSSER, for an award was no basis hold that there § 2, 9-10); v. supra, Wagman at see also damages against Gar- compensatory Lee, (breach supra, 405 457 A.2d at punitive finckel’s, no basis for there is also fiduciary duty may imposition of warrant Industries, Inc. v. damages. Bay General Coates, punitive damages) Brown v. (D.C. 1050, 21 Johnson, 1058 n. 418 A.2d 304, 36, 300, F.2d 40 U.S.App.D.C. 102 253 Smith, v. 1980); Co. Franklin Investment (1958)). punitive not favor dam Courts do 355, (D.C.1978). Inc., 383 A.2d 358 ages, Group Hospitalization, v. Sere cited; 1174, (D.C.1978)and authorities 1176 conten- A.2d 8. We no merit to Mrs. Vassiliades’ find Co., supra, 120 A.2d at Pennsylvania R.R. ruling v. on both Cox tion that the trial court erred in notwithstanding judgment the ver- notwithstanding When a judgment 217. the motion for a reversed, may also reverse and, this court dict is alternatively, for a new the motion verdict McNeal, grant trial and direct 50(c); of the new Spain conditional Super.Ct.Civ.R. v. trial. Super. 507, judgment the verdict. (D.C.1975); Pennsylva- be entered on v. A.2d 511 Cox 337 50(c); & A. Co., (D.C.1956). C. see 9 Ct.Civ.R. Wright A.2d 217 nia R.R. 120 Miller, 11 Civil 2540 n. § may on both the action of the trial court review Procedure: Practice Federal Inc., Stores, (1971). Safeway 379 v. motions. Hines 594

B. humiliation if it ... is of a kind that nor- mally results from such an invasion and it In determining whether a verdict is normal and reasonable in its extent.” excessive, the trial court must consider § supra, 652H comment b. Restatement, whether the passion, verdict resulted from Actual harm pecuni- need not be based on prejudice, mistake, oversight, or considera loss, ary and emotional distress be tion of improper Spar elements. v. Obwo simply by plaintiff’s shown testimony. ya, (D.C.1977); 369 A.2d May De Id., special damages comment a. Proof of partment Devercelli, Stores Co. v. required. A.2d See Bernstein National (D.C.1973). Alternatively Co., stated, F.Supp. Broadcasting the test is whether the verdict is “ damages arising ‘beyond reason, Because the from all great or ... is so as to ” psychic shock tort constitute and emotional Wingfield conscience.’ v. Peo ples Inc., harm and Drug Store, the tort is defined terms of the 379 A.2d (D.C.1977) community, mores of the (quoting su- Williams v. Steuart Restatement, h, 155, 166, pra, Motor 652D comment mental U.S.App.D.C. distress (1974)). potential large F.2d lawsuits In offer the ver- reviewing a grant dicts, of a although objective new trial for an little evidence is excessive ver dict, apply we do not jury same standard. available to test the size of a award Taylor Washington Terminal 133 for mental distress. See PROSSER, 110, 114, U.S.App.D.C. 145, 149, Compare 409 F.2d at 815. Co- denied, cert. 396 U.S. Gandy, lumbia v. 901-02 L.Ed.2d 85 (D.C.1982), denied, reh’g A.2d en banc (D.C.1983).

In jurisdiction appellate this Although great courts we hold Mrs. Yassiliades accord deference to a trial presented judge’s sufficient evidence of an invasion view that a verdict is outside the proper range, Stores, privacy, necessarily of not Safeway it does follow Inc. v. Kel 856, (D.C.1982); ly, 448 A.2d that the trial court abused its discretion in Taylor 864 v. Washington ruling contrary were Terminal 133 verdicts U.S.App.D.C. 114, 149, weight at 409 the F.2d at of the evidence. See Baber v. 265, grant (D.C.1974). will reverse the of Buckley, a new trial for an 322 A.2d 267 In “only event, excessive verdict quantum any question where the the remains whether damages by jury of found the clearly was the in trial court abused its discretion within ‘the maximum limit of a granting grounds reasonable a new trial on the ” range.’ Taylor v. Washington Terminal Phillips the verdict was excessive. Cf. 114, U.S.App.D.C. 133 722, at 724-25 of (D.C.1983) 149, quoted F.2d at Safeway in Hines v. n. 2 in (damages & excessive Stores, Inc., supra, 379 A.2d at 1176. appellant presented false arrest case where scrutiny grant Close of the trial court’s of anguish no evidence of mental and humilia- a by appellate new trial the court is re tion). quired protect litigant’s in order to the relating The evidence at trial to the ex- 13, to a jury trial. Id. at 113 n. injury tent of the suffered Mrs. Yassi- F.2d at 148 n. Schenley Lind v. photograph was on liades showed that her

Industries, Inc., (3d Cir.), 278 F.2d seconds, her television for less than 40 denied, cert. 364 U.S. 81 S.Ct. person in name not mentioned and the was (1960)). L.Ed.2d 60 only a photograph the was referred to as plaintiff private patient Only person

A in one whose life is her forties. given publicity may damages program the television identified recover for who saw reputation person the harm to or in told of Mrs. her interest her and that one Vassi- privacy resulting publicity from the liades’ former coworkers about her sur- personal gery. Although also for the most of Mrs. Yassiliades’ “emotional distress or beyond presen- grant on court’s of a new trial was so testimony focused the television tation, require as range she also offered evidence that sev- the of reason reversal. enty-nine photograph $350,- at people sixty-day period saw her the The verdicts for a department presentation. However, $250,000 against Magassy store Dr. mentioned; only her name was one against at Garfinckel’s are least her, person presentation at the store knew range limits of a outer maximum anyone and there was no evidence that reasonable verdict.

recognized photographs. There her was Accordingly, judgment is affirmed neighbor, also a who was also evidence that part, is part, reversed case re- coworker, knew her former about sur- damages for a new on to be manded trial gery Magassy’s presentations. before Dr. against Magassy. assessed Mrs. Vassiliades did not offer evidence of impact publicity persons NEWMAN, Judge, concurring: Associate photographs, only who saw her but describ- ed mental and judge her own behavioral reac- of the trial What role deciding grant Her tions. husband corroborated beha- is when or denial court reactions, grounds vioral but no medical evidence on the of motion for new trial support was her claim of light offered to severe an excessive verdict the Seventh depression. Constitution, jury instructed that far from Amendment to Wright sought recovery only Mrs. Vassiliades A. 11 C. Miller, clear. See Fed- period,9 sixty-day was cautioned to base its 2818-2820 eral Practice and Procedure it, solely (1976); verdict on the evidence before 6A J. Moore, J. Lucas & G. Grot- specu- (2d that it could not award told 1159.08 heer, Federal Practice Moore’s damages. 1984). appellate lative court is ed. The role an Supreme murky. even more Id. The Viewing this most favor evidence opaque. has left the matter rather Court Vassiliades, ably Mrs. see 6A J. Moore, Co. Compare Metropolitan Railroad J. Lucas & G. Geotheer, Jr., Fed Moore’s Moore, 30 L.Ed. S.Ct. U.S. 1984), (2d ed. we 11 59.08[6] eral Practice (1887); Railway v. Ben Southern Co. give still “considerable deference” to must nett, 233 U.S. 34 S.Ct. 58 L.Ed. 860 finding the trial court’s that the verdict is v. Cub Fairmount Glass Works proper range. outside the Such deference Co., 287 U.S. Fork Coal is founded on the fact that trial courts have (1933), v. New with 77 L.Ed. Affolder given great weight historically jury ver Co., York, R.R. 339 U.S. & St. L. C. dicts, granting only a new trial where there (1950). Neese v. 94 L.Ed. 683 S.Ct. are unusual circumstances which convince Railway 350 U.S. Southern judge, the trial who has also heard the 131, 100 (1955), L.Ed. 60 and Grunen S.Ct. witnesses, evidence and seen Co., 393 U.S. Long thal v. Island Railroad jury improperly influenced had been 331, 21 L.Ed.2d 309 S.Ct. nongermane factors or that its verdict is judges All should thing is clear to me. One ques clearly Thus when the unreasonable. jury to set aside reluctant exceedingly be close, appellate tion of excessiveness to remit them as excessive or verdicts give every doubt to courts the benefit jury right to of the constitutional the face judgment. Dagnello court’s the trial law in current state trial. Given F.2d Island Railroad Long area, day I leave to a later will this whole Cir.1961). (2d Upon consideration case, exploration of the sub- further of Mrs. Vassiliades’ evidence nature ject. stipulated on her claim and her limitation judgment of the court. I in the say concur damages, for cannot the trial we following department May By stipulation, dam- 1979 to Mrs. Vassiliades claimed presentation. ages only sixty-day period, March store

Case Details

Case Name: Vassiliades v. Garfinckel's, Brooks Bros.

Court Name: District of Columbia Court of Appeals

Date Published: May 13, 1985

Citation: 492 A.2d 580

Docket Number: 83-1255

Court Abbreviation: D.C.