Politi v. Tyler
Annotate this Case
Politi v. Tyler (98-245); 170 Vt. 428; 751 A.2d 788
[Filed 07-Apr-2000]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 98-245
Francis Politi Supreme Court
On Appeal from
v. Chittenden Superior Court
Janet L. Tyler, PhD May Term, 1999
Linda Levitt, J.
Thomas C. Nuovo of Bauer, Anderson & Gravel, Burlington, for Plaintiff-Appellee.
Patricia S. Orr of Wilson Powell & Lang, Burlington, for Defendant-Appellant.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
AMESTOY, C.J. Defendant Dr. Janet Tyler appeals a Chittenden
Superior Court decision denying her motion for dismissal and for judgment
on the pleadings, as well as her summary judgment motion against plaintiff
Francis Politi in this suit for malpractice and intentional infliction of
emotional distress. Defendant argues that it was error for the court to
reject her motions to dismiss and for judgment on the pleadings because she
had judicial immunity or, in the alternative, witness immunity. Defendant
also argues that she is entitled to summary judgment against plaintiff's
malpractice claims because the statute of limitations has expired, or in
the alternative, because she owed plaintiff no duty of care. Plaintiff
cross-appeals, arguing that the court erred in dismissing her
intentional-infliction-of-emotional-distress claims because it incorrectly
measured the discovery date of her injury. We affirm.
Plaintiff and her husband, David Alexander, were divorced in 1990
pursuant to an order Chittenden Family Court order. In early 1993,
plaintiff was involved in a custody and visitation dispute with her
ex-husband regarding their minor child. On March 18, 1993, the Chittenden
Family Court issued an order that read: "Forensic evaluation will be done.
. . . Counsel to let us know [within] a week who to engage for a forensic
evaluation." The evaluation was intended to assist the court in
determining the best interests of the child pursuant to 15 V.S.A. § 667(b).
Defendant, a licensed psychologist, contracted with plaintiff and Mr.
Alexander to conduct the evaluation, with all fees to be paid equally by
the parties. During May and June 1993, defendant met with plaintiff, the
child, the ex-husband, and others whom the parties identified as having
information relevant to the custody proceeding. In June 1993, defendant
prepared a report detailing her psychological evaluation, which she
distributed to the parties in September 1993. Defendant testified about
her evaluation and recommendation before the family court on March 22,
1994. On May 5, 1994, plaintiff and her ex-husband stipulated to a
modified custody agreement.
On May 5, 1997, plaintiff brought suit against defendant for slander,
malpractice, and intentional infliction of emotional distress. Plaintiff
alleged that as a result of defendant's breach of her duty to
professionally perform the forensic evaluation and defendant's subsequent
testimony based on that evaluation, plaintiff was forced to stipulate to
joint custody with David Alexander of her youngest son and forced to
continue to fight for the custody of her son.
Defendant filed a motion to dismiss and for judgment on the pleadings
or, in the alternative, a motion for summary judgment. Defendant claimed
she had absolute judicial immunity as a court appointed expert. In the
alternative, defendant contended that she had immunity as a witness in a
judicial proceeding; that all of plaintiff's claims were barred by the
statute of limitations; that her
testimonial privilege precluded plaintiff's claim for slander; and that she
did not owe any duty to plaintiff that would support a malpractice claim.
The court rejected defendant's judicial immunity defense. The court
declined to dismiss the malpractice claim, concluding that defendant owed a
duty of care to plaintiff and that the claim included economic damages
governed by a six-year statute of limitations. The court dismissed
plaintiff's intentional-infliction-of-emotional-distress claim because the
statute of limitations had expired. Plaintiff agreed to dismissal of her
slander claim.
Defendant now appeals, arguing that the superior court erred in
rejecting her claim of judicial immunity. Defendant further contends that
the court failed to consider her argument that witness immunity precludes
plaintiff's claims even if the court correctly concluded that defendant was
not entitled to judicial immunity. Defendant also asserts that the court
erred in holding that she owed a duty of care to plaintiff. Finally,
defendant argues that the court erred in determining that the applicable
statute of limitations for plaintiff's claim is six years. Plaintiff
cross-appeals, arguing that her
intentional-infliction-of-emotional-distress claim was filed within the
applicable three-year statute of limitations.(FN1)
For defendant's claims that she is entitled to judgment as a matter of
law on the pleadings, we consider all the factual allegations in the
pleadings of the nonmoving party and all reasonable inferences that can be
drawn from them to be true and allegations to the contrary by the moving
party to be false. See In re Estate of Gorton, 167 Vt. 357, 358, 706 A.2d 947, 949 (1997). Similarly, for defendant's claims that she is entitled
to summary judgment, as well as plaintiff's cross-appeal
that summary judgment on her intentional-infliction-of-emotional-distress
claim was improper, we apply the same standard as the trial court: summary
judgment is appropriate when the record clearly indicates there is no
genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law. See Lane v. Town of Grafton, 166 Vt. 148,
150, 689 A.2d 455, 456 (1997). In determining whether a genuine issue of
material fact exists, we regard as true all allegations of the nonmoving
party supported by admissible evidence, and we give the nonmoving party the
benefit of all reasonable doubts and inferences. See id.
I. Defendant's Immunity Arguments
Defendant makes two immunity claims, either of which she asserts bars
plaintiff's lawsuit: first, defendant argues that she is entitled to
judicial immunity; in the alternative, she claims that she is entitled to
witness immunity.
A. Judicial Immunity
A determination of whether judicial immunity exists is a question of
law. See Lavit v. Superior Court, 839 P.2d 1141, 1444 (Ariz. Ct. App.
1992); LaPlaca v. Lowery, 134 Vt. 56, 57, 349 A.2d 235, 235 (1975)
(stating that review inquires "whether the lower court committed error in
finding that the doctrine of judicial immunity sheltered the words
complained of"). Vermont has long recognized the doctrine of judicial
immunity. See LaPlaca, 134 Vt. at 57-58, 349 A.2d at 236 ("Vermont law
has included a doctrine of judicial immunity which applies to judges,
attorneys, and witnesses, since [1838.]"). However, judicial immunity
extends only during the performance of an act which was judicial, and
within the claimant's general authority. See id. at 58, 349 A.2d at 236;
Polidor v. Mahady, 130 Vt. 173, 174, 287 A.2d 841, 843 (1972) ("This
immunity does not reach beyond judicial acts.").
Defendant asserts that each of plaintiff's claims arise from
allegations related to defendant's conduct as a court appointed expert.
Defendant points to other jurisdictions that have held court appointed
psychiatrists and psychologists in custody matters are entitled to absolute
immunity when fulfilling quasi-judicial functions. See Lavit, 839 P.2d at
1144-45 (cases cited therein regarding such immunity issues). Observing
that Vermont "has not yet addressed the issue of immunity for experts who
perform court ordered evaluations," defendant asserts that the facts of
this case squarely present us with the issue. We disagree because we
conclude that defendant was not a court appointed expert. The superior
court correctly decided that the duties imposed on defendant arose from her
contract with the parties, not from a quasi-judicial function performed
pursuant to a family court order.
We begin by noting that the evaluation performed by defendant was not
ordered by the family court pursuant to its authority under Rule 5(a) of
the Rules for Family Proceedings, which provides:
[I]n any proceeding of the family court the court may order a physical
or mental evaluation of a party or of a person who is in the custody or
legal control of a party or may order a home study. The court shall
select the physician or other expert who will perform the evaluation
or home study, and shall consider the names of persons submitted by
the parties. The court shall determine who pays the cost of such
evaluation and may order a party, the parties, or the court or some
combination thereof to pay.
V.R.F.P. 5.(FN2) The court's March 18, 1993 order, which simply states
that a "[f]orensic evaluation will
be done" and that "counsel to let us know within a week who to engage for a
forensic evaluation," is not a sufficient order under those rules to
categorize defendant as a court appointed expert entitled to
immunity.(FN3) Contrary to defendant's current characterization of her
role as a "court appointed expert," the language of defendant's contract
with the parties is devoid of any suggestion that defendant was acting as
an arm of the family court. Three excerpts from defendant's contract
suffice to demonstrate that she did not view herself as an expert assigned
by the court to perform the evaluation. First, the contract states that
defendant "ha[s] been requested to do an evaluation and a written report"
and makes no reference to a court appointment. Second, the contract states
"I am willing to be retained by both of you to perform the evaluation and
furnish a report in connection with Court proceeding upon the following
conditions, which must be accepted by you." Third, the contract
explicitly states that defendant's evaluation and testimony is predicated
not upon the authority granted by a court order, but instead upon payment
by the parties:
I will not be called upon to furnish my report to any person nor to file
the same in Court or discuss its contents in any way until all of my
fees for services and the services of any consultants I may have
retained have been paid in full.
In denying defendant's claim of judicial immunity, the superior court
observed that the duties required of defendant "were imposed by a contract
with the parties for her professional services and [are] comparable with
what is expected of any expert witness jointly selected by litigants." The
public policy arguments advanced by defendant for granting immunity to a
court appointed psychologist may have persuasive force, but the facts of
this case do not provide a basis upon which to conclude defendant was
performing a judicial or quasi-judicial function pursuant to a court
directive.
B. Witness Immunity
While conceding that the superior court found nothing in defendant's
performance that would set her apart as a judicial officer, defendant
argues that the court failed to address the issue of witness immunity.
Defendant's witness immunity claim relies primarily on Briscoe v. LaHue,
460 U.S. 325, 345-46 (1983), where the U.S. Supreme Court held that a
lawsuit against police officers based on their alleged perjured testimony
could not be brought because witness immunity protected the officers.
Defendant is correct in arguing that such an immunity protects the actual
testimony she gave in family court on March 22, 1994, and plaintiff
concedes that she may not predicate a claim on witness testimony. See
Deatherage v. Examining Bd. of Psychology, 948 P.2d 828, 830 (Wash. 1997)
("The defense of absolute privilege [of witness immunity] generally applies
to statements made in the course of judicial proceedings and acts as a bar
to any civil liability.").
To the extent that defendant's assertion of witness immunity was
intended to insulate her from liability for statements she made on the
witness stand, the trial court's dismissal of the slander and
intentional-infliction-of-emotional-distress claims render the issue moot
as to those claims. Defendant argues that as to the malpractice claim,
witness immunity should preclude a complaint
based on defendant's actions in conducting a forensic evaluation and
preparing a report. Defendant's expansive interpretation of witness
immunity would extend the doctrine to nontestimonial acts outside a
judicial proceeding. Neither the decision of the United States Supreme
Court in Briscoe nor the precedents of this Court provide a foundation for
doing so. See, e.g., Torrey v. Field, 10 Vt. 353, 414 (1838) ("This
privilege, or immunity, for words spoken, extends equally to . . . parties,
witnesses, jurors, judges and counsel, in courts of justice.") (emphasis
added).
II. Defendant's Duty of Care Argument
Defendant also argues that her only duty was to assist the family
court in its determination of the best interest of the child in connection
with custody and visitation, and that she thus owed no duty of care to
plaintiff. Defendant owed whatever duties of care to plaintiff - and, for
that matter, plaintiff's ex-husband - the contract provided. See Peters
v. Mindell, 159 Vt. 424, 429, 620 A.2d 1268, 1271 (1992) ("Accompanying
every contract is an implied duty to perform with care, skill, reasonable
expedience and faithfulness."). A determination on plaintiff's negligence
claims stemming from defendant's alleged breaches of this duty should
proceed accordingly. Thus, defendant's summary judgment motion on
plaintiff's malpractice claim was properly denied.
III. Defendant's Statute of Limitations Argument
Defendant asserts that the superior court erred in its application of
a six-year statute of limitations to plaintiff's malpractice claim.
Plaintiff's malpractice claim included the following allegation:
As a proximate cause of the Defendant's actions the Plaintiff was
forced to seek counseling and was unable to continue in her career as
a real estate broker, and was unable to work for long periods of time.
Defendant argues that the court erred by looking to the nature of the
damages claimed by
plaintiff rather than the nature of the harm done. See Kinney v. Goodyear
Tire & Rubber Co., 134 Vt. 571, 575, 367 A.2d 677, 680 (1976). The court
relied on our decision in Fitzgerald v. Congleton, 155 Vt. 283, 583 A.2d 595 (1990), in which we held that claims resulting in "mental anguish,
emotional distress, and personal humiliation" were covered under 12 V.S.A.
§ 512 (4)'s three-year statute of limitations, id. at 291, 583 A.2d at
599-600, but that damages sought by plaintiff for "economic losses that do
not constitute personal injuries" fell under 12 V.S.A. § 511's six-year
limitation. Id. at 293, 583 A.2d at 601.
In Fitzgerald, as in the case before us, the plaintiff's claim of
malpractice sought personal injury damages for emotional distress but
"[s]ome of the damages sought by plaintiff . . . [were] for economic
losses . . . that do not constitute personal injuries." Id. We determined
that the plaintiff's claim included costs incurred by her to secure the
return of her child. Here, to the extent plaintiff's claim of damages for
work interruption is for economic losses incurred in the effort to retain
custody of her child, they fall within the limitations of 12 V.S.A. § 511,
and the court did not err in its application of a six-year statute of
limitations to those economic losses.
IV. Plaintiff's Cross-Appeal
Plaintiff cross-appeals the court's dismissal of her
intentional-infliction-of-emotional-distress claim. She argues that the
statute of limitations did not begin until May 5, 1994, when she stipulated
to the family court's order expanding her ex-husband's custody and
visitation of the minor child because that is when she suffered her
injury. Plaintiff concedes that her claim falls under 12 V.S.A. §
512(4)'s three-year statute of limitations, and we have held that a cause
of action under § 512(4) accrues when a party discovers or reasonably
should have discovered her injury. See University of Vermont v. W.T.
Grace & Co., 152 Vt. 287, 290-91, 565 A.2d 1354, 1356-57 (1989).
In the presence of plaintiff, defendant testified in the custody
proceeding before the family court on March 22, 1994. Plaintiff's theory
of defendant's liability for the intentional infliction of emotional
distress is premised on defendant's responsibility for plaintiff losing
sole custody of her son. Plaintiff's own pleadings allege that "as a
direct result of [defendant's] testimony" in favor of the ex-husband
having custody over the child, plaintiff "was forced to modify her parental
rights and responsibilities." An action accrues on the date an individual
discovers the cause of action. See Cavanaugh v. Abbot Laboratories, 145
Vt. 516, 526, 496 A.2d 154, 160 (1985). Here, the trial court correctly
concluded that plaintiff should have reasonably discovered the injury on or
before March 22, 1994. Indeed, the significance of the date of
defendant's testimony to the computation of the three-year statute of
limitations was implicitly recognized by plaintiff, who mistakenly alleged
the critical date of defendant's testimony to be May 5, 1994, and then
filed the complaint on May 5, 1997, exactly three-years later.
Plaintiff's attempt to minimize the significance of defendant's testimony
to the accrual of the intentional-infliction-of-emotional-distress claim is
belied by plaintiff's pleading. The court correctly concluded that
plaintiff's claim for the intentional infliction of emotional distress is
barred by § 512(4)'s statute of limitations.
Affirmed.
FOR THE COURT:
_______________________________________
Chief Justice
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Footnotes
FN1. Each party filed a "supplemental appendix" after the time for the
filing of the printed case and supplemental appendix had expired. See
V.R.A.P. 30 (a), (b). We grant plaintiff's motion to exclude defendant's
supplemental appendix and defendant's motion to exclude plaintiff's
supplemental appendix.
FN2. We agree with the dissent that the consequences of not having
defendant appointed by court order are "painfully apparent." Post at 3.
We disagree that the "oversight" is irrelevant. Id. In each of the cases
cited by the dissent in support of extending quasi-judicial immunity, the
expert was appointed by court order. See Lavit, 839 P.2d at 1142 ("This
case involves an issue of statewide importance for court-appointed
psychologists. . . .") (emphasis added); Lythgoe v. Guinn, 884 P.2d 1085,
1086 (Alaska 1994) (court appointed independent investigator in custody
dispute); Howard v. Drapkin, 271 Cal. Rptr. 893, 894 (Cal. Ct. App. 1990)
(parties' stipulation for use of expert signed by court and converted into
an order); Seibel v. Kemble, 631 P.2d 173, 174 (Haw. 1981) (court
appointed psychiatrists to serve on sanity commission); S.T.J. v. P.M., 556 So. 2d 244, 245 (La. Ct. App. 1990) (court appointed psychologists to
perform evaluations in custody dispute); LaLonde v. Eissner, 539 N.E.2d 538, 539 (Mass. 1989) (court appointed psychiatrist to evaluate family in
visitation dispute); Duff v. Lewis, 958 P.2d 82, 84 (Nev. 1998) (court
appointed psychologist to assess children in custody dispute); Delcourt v.
Silverman, 919 S.W.2d 777, 779 (Tex. App. 1996) (court appointed
psychologist to evaluate family in custody dispute); Parker v. Dodgion, 971 P.2d 496, 497 (Utah 1998) (court appointed psychologist to evaluate family
in custody dispute).
FN3. The parties entered into a contract with defendant in May 1993.
Neither the parties' counsel, nor defendant, informed the family court of
the agreement.
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Dissenting
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 98-245
Francis Politi Supreme Court
On Appeal from
v. Chittenden Superior Court
Janet L. Tyler, PhD May Term, 1999
Linda Levitt, J.
Thomas C. Nuovo of Bauer, Anderson & Gravel, Burlington, for Plaintiff-Appellee.
Patricia S. Orr of Wilson Powell & Lang, Burlington, for Defendant-Appellant.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
MORSE, J., dissenting. The Court's conclusion that Dr. Tyler, a
licensed clinical psychologist, served as a privately retained expert
witness rather than as a neutral adjunct of the trial court contradicts
the overwhelming weight of the record evidence. The facts demonstrate
that all of the principals - the court, the parties, and Dr. Tyler -
understood the latter's role in this case to be that of a judicially
appointed neutral evaluator. Courts have uniformly held that such experts
perform a function integral to the judicial process, and therefore, like
judges, are entitled to immunity from suit. Accordingly, I respectfully
dissent.
While acknowledging that the arguments for granting immunity to court
appointed mental health experts "may have persuasive force," ante, at 7,
the Court declines to address the issue
because the "facts of this case do not provide a basis upon which to
conclude that defendant was performing a judicial or quasi-judicial
function pursuant to a court directive." Id. I submit that the record
supports precisely the opposite conclusion.
First, although not mentioned by the Court, Dr. Tyler's participation
in this custody dispute was initiated by a motion, filed by plaintiff's
husband, requesting that "the court order a forensic evaluation to be
paid for by the parties in proportion to income and adjusted in
consideration of their assets." (Emphasis added). The motion conformed
with the rule providing for the appointment of experts in family court
proceedings, including the specific provision that the court may
"determine who pays the cost of such evaluation and may order a party, the
parties, or the court or some combination thereof to pay." V.R.F.P. 5(a).
The trial court responded with a handwritten order stating, in part,
that "[d]efendant's request for a forensic evaluation shall be scheduled
for a hearing." Following the hearing, the court issued a brief
handwritten order stating: "Hearing held. Forensic evaluation will be
done. Mary Kehoe to be appointed as a GAL. Parties to file Form 813.
Counsel to let us know within a week who to engage for a forensic
evaluation."
The order's meaning is unmistakable. The first operative phrase,
"[f]orensic evaluation will be done," although couched in the passive
voice, indicates that an evaluation will be done pursuant to the order.
Although it is possible to construe the sentence as merely indicating that
an evaluation will occur without the added implication that it be done
pursuant to court order, any doubt is dispelled by the subsequent
sentence: "Counsel to let us know within a week who to engage for a
forensic evaluation." The only possible meaning of this sentence is that
the parties submit to the court (who else could the "us" refer to?) the
name of an expert agreed upon by the parties for
appointment as an expert. The order tracked the Family Court rule
governing appointment of experts, which provides that the court "shall
consider the names of persons submitted by the parties." V.R.F.P. 5(a).
As noted, the family court hearing that resulted in this order was held
specifically in response to a motion for appointment of an expert.
Viewed in retrospect, it is painfully apparent that this lawsuit could
have been avoided through the simple expedient of submitting Dr. Tyler's
name, as the court directed, and having her appointment formalized in
another order. This neglected final step, however, was undoubtedly an
oversight, as the underlying intent, derived from the record summarized
above, is clear. The parties and the court plainly understood Dr. Tyler's
role to be that of a court appointed expert. Indeed, in her subsequent
complaint against Dr. Tyler for malpractice and infliction of emotional
distress plaintiff candidly acknowledged Dr. Tyler's status as a
court-appointed expert, stating: "In a handwritten order . . . the
Family Court . . . ordered a forensic evaluation."
Dr. Tyler's conduct after the appointment is entirely consistent with
this conclusion. In her contract for services, she informed the parties
that her function would be to "perform the evaluation and furnish a report
in connection with [the] Court proceeding," that her "sole responsibility
[was] to evaluate and report what, in my professional opinion, is in the
best interest of the minor," and that they must agree to waive
confidentiality in order for her to "serve[] optimally as an evaluator."
(Emphasis added). Dr. Tyler's subsequent written evaluation, submitted to
the court, was a model of disinterested psychological analysis. Her
evaluation contained negative and positive assessments of both plaintiff
and her husband. The report addressed in detail each of the factors set
forth in 15 V.S.A. § 665 for determining the best interests of the child,
and concluded with a list of specific custody and visitation
recommendations that "[t]he court may wish to consider," as well as a final
note stating that it had "been a most difficult and distressing case"
because of the apparent emotional distress suffered by the minor.
(Emphasis added).
It is impossible to view this report as anything other than a neutral
psychological assessment intended to advise and assist the court in
rendering its decision. The Court's conclusion to the contrary is based
upon several aspects of the previously mentioned contract of services.
None is persuasive. First, the Court notes that the contract stated that
Dr. Tyler had been "requested to do an evaluation and report" without
referencing a court appointment. Ante, at 6. Common sense suggests,
however, that a privately retained expert would have addressed the
employing party in words such as "You have requested an evaluation,"
whereas the neutral "I have been requested" very likely referenced the
trial court.
The Court also finds significance in the contractual provision
stating, "I am willing to be retained by both of you to perform the
evaluation . . . upon the following conditions which must be accepted by
both of you," as well as the subsequent condition that the parties split
the payment. Again, the court derives too much from these terms. The
rule providing for appointment of experts expressly authorizes payment by
the parties, as occurred here, and the contract's reference to being
"retained by both of you" merely reflects that contractual relationship.
The existence of a contractual relationship, and the parties' payment
obligation, is entirely consistent with Dr. Tyler's court appointment.
(FN1)
Considered in light of the overwhelming evidence of the court and the
parties' intentions, and the unmistakable tenor of the analysis and
recommendations contained in Dr. Tyler's report, the conclusion is
inescapable that she functioned in this case as a court-appointed neutral
evaluator. The only remaining question, therefore, is whether her
service in that capacity entitled her to immunity from suit under the
doctrine of quasi-judicial immunity. (FN2)
That question is easily answered. With virtual uniformity courts have
granted absolute immunity to persons who perform functions similar to
those performed by Dr. Tyler in this case. See, e.g., Lythgoe v. Guinn,
884 P.2d 1085, 1088-89 (Alaska 1994) (independent custody investigator
appointed to provide advice and expertise granted absolute immunity);
Lavit v. Superior Court, 839 P.2d 1141, 1144-45 (Ariz. Ct. App. 1992)
(psychologist who performed child-custody evaluation exercised judicial
function requiring absolute immunity); Howard v. Drapkin, 271 Cal. Rptr. 893, 902 (Cal. Ct. App. 1990) (psychologist who performed neutral
evaluation in custody dispute entitled to same immunity given others who
function as neutrals in resolving disputes);
Seibel v. Kemble, 631 P.2d 173, 177 (Haw. 1981) (psychiatrist who rendered
opinion regarding defendant's mental condition functioned as "arm of
court" entitling him to absolute judicial immunity); S.T.J. v. P.M., 556 So. 2d 244, 247 (La. Ct. App. 1990) (psychologists appointed to aid in
resolving custody dispute performed quasi-judicial function entitling them
to absolute immunity); LaLonde v. Eissner, 539 N.E.2d 538, 541-42 (Mass.
1989) (psychiatrist who performed independent evaluation in visitation
dispute "entitled to immunity because of the function he performed and its
essential connection to the judicial process"); Duff v. Lewis, 958 P.2d 82,
86-87 (Nev. 1998) (psychiatrist appointed to perform child assessments in
custody dispute performed "integral function in assisting courts"
entitling him to absolute quasi-judicial immunity); Decourt v. Silverman,
919 S.W.2d 777, 782 (Tex. App. 1996) (psychologist appointed to evaluate
children in custody dispute entitled to absolute immunity by fulfilling
"quasi-judicial functions intimately related to the judicial process");
Parker v. Dodgion, 971 P.2d 496, 499 (Utah 1998) (psychologist appointed as
evaluator in custody dispute entitled to immunity from suit).
Each of the foregoing decisions relied on the common law doctrine of
judicial immunity, a venerable principle designed to protect the integrity
of the judicial process by ensuring that judicial officers exercise their
functions unconstrained by fear of reprisal. Indeed, as this Court early
noted, "[i]t is a privilege not primarily designed for the protection of
the judge, but for the protection of the public, by making the judges
free, independent and fearless in the discharge of their duties." Vaughn
v. Congdon, 56 Vt. 111, 128 (1883) (Powers, J., dissenting) (quoted with
approval in LaPlaca v. Lowery, 134 Vt. 56, 58, 349 A.2d 235, 236 (1975)).
This and other courts have extended the doctrine to so-called
quasi-judicial officers, participants in the judicial process whose
functions are closely associated with or comparable to judges. See, e.g.,
Butz v. Economou, 438 U.S. 478, 508-
513 (1978) (participants in federal administrative adjudication entitled to
quasi-judicial immunity); Muzzy v. State, 155 Vt. 279, 280, 583 A.2d 82,
83 (1990) (quasi-judicial immunity extends to state's attorney to extent
that actions complained of are associated with judicial phase of criminal
process); Black v. Clegg, 938 P.2d 293, 296-97 (Utah 1997) (quasi-judicial
immunity applies to state bar officers and counsel in performance of
attorney discipline functions).
As noted earlier, those courts that have considered the issue have
also - with virtual unanimity - extended the doctrine of quasi-judicial
immunity to mental health experts appointed to assist the court in child
custody proceedings. The reasoning of these decisions is unassailable. As
cogently stated by the court in Parker:
[C]ourts that have addressed this issue have uniformly held that
psychologists appointed by the court to conduct psychological
evaluations of parties involved in custody disputes perform a function
integral to the judicial process and are therefore immune from suit.
Several reasons support this conclusion. First, if these individuals are
subject to suit, they will be much less willing to serve the court in
such a capacity. Second, a psychologist who agrees to fill the role of
court-appointed evaluator will be less likely to offer the disinterested,
objective opinion the court seeks in making such an appointment if he
or she is subject to suit.
971 P.2d at 498-99.
These policies apply with equal force in Vermont, and amply support
the conclusion that Dr. Tyler was entitled to immunity from suit.
Adequate safeguards against negligent or inaccurate evaluations exist in
the form of deposing and cross-examining the expert at trial to bring to
the court's attention any alleged deficiencies, or reporting the expert's
behavior to the appropriate professional board for review. See Lythgoe,
884 P.2d at 1091; LaLonde, 539 N.E.2d at 542; Seibel, 631 P.2d at 177 n.8;
see also Note, Absolute Immunity for the Negligent Expert Witness, 26
Willamette L. Rev. 1051, 1076 (1990).
Except for the final step of an order memorializing the parties'
choice of Dr. Tyler as the expert to be appointed by the court, every
objective fact in this case - from the initial motion seeking a
court-appointed expert, to the court's order directing the parties to
submit an agreed-upon name, to Dr. Tyler's independent evaluation and
recommendations to the court, to plaintiff's complaint explicitly
acknowledging that the family court had ordered a forensic evaluation -
points to no other conclusion but that Dr. Tyler functioned as a
court-appointed neutral evaluator. Indeed, in fulfilling that role,
defendant left herself vulnerable to precisely the kind of lawsuit which
the doctrine of quasi-judicial immunity is designed to forestall. It is
an injustice and a disservice to her, and to the family court and the
judicial system as a whole, to deprive Dr. Tyler of the protection to
which she was entitled.
_____________________________________
Associate Justice
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Footnotes
FN1. Indeed, several state courts that have considered the issue of
immunity for mental health professionals in custody proceedings have
explicitly rejected the notion that payment for an expert's services by
the affected parties, or their contractual relationship with the expert, is
inconsistent with the expert's quasi-judicial role as neutral evaluator.
In Lythgoe v. Guinn, 884 P.2d 1085 (Alaska 1994), for example, the court
held that the fact the parties had each paid half the costs of a custody
investigator was "irrelevant to the quasi-judicial issue, as courts have
uniformly held that the determinative question is not how the
court-appointed expert is selected or paid, but whether his or her
'activity is an integral part of the judicial process.'" Id. at 1093 n.6
(quoting Lavit v. Superior Court, 839 P.2d 1141, 1144 (Ariz. Ct. App.
1992)). Lythgoe relied on Lavit, where - as here - the parties in a
custody dispute had stipulated to an expert and contracted for his
services. As the court there explained, "[t]he question becomes not how
the psychologist was first chosen but whether his activity is an integral
part of the judicial process so that to deny immunity would disserve the
broader public interest that non-judicial officers act without fear of
liability." 839 P.2d at 1144; see also LaLonde v. Eissner, 539 N.E.2d 538, 542 n.9 (Mass. 1989) (payment of expert's services by party did "not
affect [his] status as a quasi judicial officer entitled to immunity.");
Duff v. Lewis, 958 P.2d 82, 86 (Nev. 1998) (psychiatrist appointed by
court in custody dispute was not an advocate for either parent, even if
paid by them).
FN2. Although Dr. Tyler raised several other defenses, including witness
immunity and the statute of limitations, it is unnecessary to reach these
claims in view of the absolute immunity from suit afforded her under the
doctrine of quasi-judicial immunity.
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