Plaintiffs' Trial Memorandum*

Preliminary Statement

This action, alleging malpractice, infliction of emotional distress and defamation, arises out of the incompetent attempts in 1985 of defendant Mary Smith, a marriage and family therapist in training, to provide "family therapy" to Jane Doe and her family, Elizabeth Doe, her mother, and John Doe, her father.  As a result of Smith's negligence, Jane, then five years old, lost her father, and John his only child.  Jane and her mother disappeared over six years ago and her present whereabouts are unknown.

Despite Smith's admitted lack of training and experience in diagnosing, investigating, validating or treating child sexual abuse, she prematurely and without adequate professional basis concluded that Jane had been sexually abused by John Doe and improperly "treated" Jane for that alleged abuse.  She knew that she was not qualified to handle the case, yet failed to turn the case over to someone else with the requisite qualifications and experience to handle it.  She knew that the "concerns" that Jane may have been sexually abused or molested in some vague and undefined way had come from the mother first, not the child, in the context of a difficult divorce situation between the parents, yet she immediately and most prematurely, made a report to DCYS before either she or anyone else had even interviewed the child.

Moreover, Smith knew that because of a difficult divorce in her own personal history, and the fact that she had lost two young children shortly after birth, that she was likely to become overly personally involved and overly protective of the child and overly identified with the mother in the case; yet, not only did she not get out of the case, she resisted efforts to have her so-called "therapy" terminated.  She failed to seek out, or blithely ignored, other evidence suggesting that there had been no abuse, including the fact that Jane's pediatrician had examined her shortly after Smith's premature report to DCYS and had concluded that there was no physical evidence suggestive of sexual abuse nor, in his opinion, did Jane exhibit any sensitivity about his examination of her private parts that, in his experience, a sexually abused child might exhibit.

Having improperly stayed in the case and drawn an erroneous premature conclusion, Smith began to subject Jane to repeated leading and suggestive interrogations designed to elicit from Jane statements supporting the mother's allegations of abuse.  Although she had had several sessions with Jane alone before the allegations surfaced, and knew that the questioning should be done with Jane alone thereafter, she acquiesced in the mother's presence during the sessions after the allegations of abuse were made.  The tape recordings that Smith was making of her sessions because she was still in training — at least those tape recordings that still exist — show clearly that it was the mother and Smith who suggested what Jane should say, and who subtly led and pretty much taught Jane what to say.

As a result of Smith's malpractice and defamatory conduct, Jane was taught to hate her father.  Smith influenced the mother and Jane to believe that no contact between Jane and John was beneficial to Jane.  As a consequence, Jane was spirited from the jurisdiction by her mother in February, 1986, just before a custody hearing was to take place.  The whereabouts of Jane and her mother have been unknown to John Doe, and ostensibly to defendant as well, since February, 1986.  As a result, Jane has lost the love and nurturing of her father, and John has lost the joys of watching and participating in his five-year-old daughter growing up.  The horrendous rift in the father/daughter relationship caused by Mary Smith can never be undone.

The Complaint

The Complaint alleges eight separate causes of action.  Counts 1, 3, 6 and 8 allege breach of contract, malpractice, infliction of emotional distress and slander, respectively, as to plaintiff Jane Doe.  Counts 2, 4, 5 and 7 allege breach of contract, malpractice, infliction of emotional distress and slander as to plaintiff John Doe.

The contract claims assert that Mary Smith failed in her duty to provide family therapy under her agreement to provide family therapy to Jane Doe and John Doe.

The malpractice claims assert that Mary Smith deviated from accepted standards of care in a variety of ways, causing egregious harm to Jane and John.  Plaintiffs contend that defendant Smith committed malpractice in a myriad of ways, the principal ones as follows:

(a) she held herself out as experienced and qualified in dealing with child sexual abuse and related therapy, when she was not, and continued to provide "therapy" in a context admittedly beyond her competence;

(b) she confused her roles and crossed boundaries between the roles of therapist, investigator and family friend in violation of professional standards of care;

(c) her interrogation and "play therapy sessions with Jane improperly included the mother's participation and involved leading and suggestive questioning and interrogation by the mother and the defendant;

(d) the defendant taught five year old Jane about deviant sexual conduct, and taught Jane to believe that she had been abused by her father, and taught Jane to hate her father and say that she did not want to see him;

(e) Smith advocated a total lack of visitation and contact between Jane and her father from as early as April, 1985 and continuing throughout 1985;

(f) defendant Smith facilitated the mother fleeing the jurisdiction with the child to avoid a custody hearing,

1. By teaching her that Jane had been abused and that a total loss of contact with her father was in Jane's interest; and

2. By agreeing to retain and store the personal possessions of the mother and child.

Counts 5 and 6 of the Complaint, alleging infliction of emotional distress against John and Jane, assert that defendant Smith caused emotional distress by committing malpractice and by counseling and advocating a total lack of visitation and contact between Jane and John, when she knew or should have known that such acts involved an unreasonable risk of causing emotional distress which might result in illness or bodily harm to both Jane and John.

Counts 7 and 8 allege that between February 1, 1985 and the date of the Complaint, Smith slandered each plaintiff by stating to others that John Doe had sexually abused animals and his daughter and by stating that Jane was unchaste by having engaged in sexual activity with her father.

Answer to the Complaint/Special Defenses

Defendant Smith's answer to the complaint, dated November 7, 1987, admits that Smith was a mental health professional, engaged in providing counseling and therapy for her patients and that she held herself out to the public as a qualified and skilled family therapist.  The answer also admits that during 1985, she provided therapy to Jane Doe.  The answer generally denies all allegations of wrongdoing.

The answer to the complaint asserts two special defenses, but only with respect to the slander counts of the complaint, counts seven and eight.  The first special defense asserts immunity from liability pursuant to Connecticut General Statute Sections 17-38a, 17-38b and/or 17-38c (now, section 17a-101).  The second special defense claims that if Smith made allegedly defamatory statements, that they were made with the consent of plaintiffs and/or their authorized agents, guardians, parents or representatives.

The defendants have not asserted truth as a defense.  Nor have they asserted a qualified or conditional privilege.  Since those are defenses which must be specially pleaded, (Donaghue v. Gaffy, 53 Conn. 43, Atunter v. Morning News Co., 67 Conn. 504, 520; Monczport v. Csonqradi, 102 Conn. 448; Johnson v. Whipple, 117 Conn. 599), defendants may not seek to defend Counts 7 and 8 of this action with evidence of truth or privilege.

Invalidity of the Special Defenses

a) Slander Per Se

Charging the commission of a crime involving moral turpitude constitutes slander per se. Yakavicze v. Valentukevicious, 84 Conn. 350; Ventressica v. Kissner, 105 Conn. 533,; Moriarty v. Lippe, 162 Conn. 371, 384 (1972).  Moral turpitude involves an act of inherent baseness, vileness or depravity in the private and social duties which man does to fellow man or to society in general, contrary to the accepted rule of right and duty between man and law.  Moriarty v. Lippe, supra.  Smith's statements that John Doe sexually abused his daughter, a hamster and a German shepard, fall within the category of slander per se.

b) Publication

The tort of defamation becomes actionable upon publication.  Publication of defamatory material to the spouse of the one defamed constitutes sufficient publication.  Fitzgerald, Wright & Ackerman, Connecticut Law of Torts; 1991 Revision, p. 411.  If defamatory material is delivered in such a manner that in the ordinary course of events it will come to the sight or hearing of a third party, such an eventuality would be sufficient publication. Id.

Malice is not an element of a slander action unless the person slandered is a public figure or a public official. Id. pt. 416.  Mr. Doe was a private citizen, so malice is not part of his burden of proof.

Here Smith frequently communicated to the child's mother the "fact" that the child had been sexually abused by the father.  Such statements constitute slander per se.

Mary Smith also spoke to others including the Anytown Police Department and gave a voluntary statement to the police detailing Smith's claims of sexual abuse against the father.  The Anytown Police Department issued a press release advising the public of the father's arrest on charges of sexual abuse.  This resulted in several newspaper articles in the Anytown Gazette which detailed Smith's statements that John had sexually abused "a girl under six" and had tortured animals in her presence.  The newspaper articles and Smith's voluntary statement to the police confirm Smith's oral statements and are evidence of them.

a) The immunity defense

Connecticut General Statutes Section 17a-101, formerly 17-38a, is generally known as the "mandated reporting" section of the statutory scheme to protect children from abuse.  Pursuant to Section 17a-101 (b), a mental health professional or a Connecticut certified marital and family therapist "who has reasonable cause to suspect or believe that any child under the age of eighteen has had physical injury or is in a condition which is the result of sexual abuse shall report or cause a report to be made in accordance with the provisions of Subsection (c) of this section."

Pursuant to Section 17a- 101(c) "an oral report shall be made immediately by telephone or otherwise, to the State Commissioner of Children and Youth Services or his representatives, or the local police department or the state police, to be followed within 72 hours by a written report to the Commissioner of Children and Youth Services or his representative.

Plaintiffs contend that defendant is not entitled to immunity for several reasons.  First, it is contended that Smith at the time she made her report to the Department of Children and Youth Services ("DCYS") on January 26, 1985, did not have "reasonable cause to suspect or believe" that Jane had been sexually abused by anyone, let alone her father.  Plaintiffs contend that Smith did not have the requisite reasonable cause, since there were no facts in her knowledge to satisfy the reasonable cause requirement and because any conclusion that such reasonable cause existed on Smith's part was the result of malpractice by Smith, therefore making it "unreasonable."  Smith admits to having reported orally to DCYS based only upon statements made by the child's mother over the telephone to Smith.  At the time Smith made the report to DCYS she had not interviewed the child regarding the issue of sexual abuse, had not had the child examined physically or psychologically, and indeed had no information to support the allegations, other than the unreliable and uncorroborated words of the child's mother.

Secondly, Smith failed to file a written report within 72 hours of her oral report by DCYS, which is required by the statute.  Time-honored rules of statutory construction require that statutes depriving citizens of rights in derogation of common law must be strictly construed.  Concomitantly, a person seeking to obtain the protection of those statutes, must have strictly adhered to and complied with the statute.  Since 17a- 101 of the Connecticut General Statutes by its terms deprives a citizen of a right to sue which he otherwise would have, in order for Smith to benefit from statutory immunity, she must have strictly adhered to the requisites of that statute.  Since Smith failed to fulfill the statutory requirement of filing a written report within 72 hours of her oral report, she did not comply with the statute, and therefore is not entitled to the protection it affords to those who do comply.

Section 17a-101 (h), which grants the immunity, states:

Any person, institution or agency which, in good faith, makes the report required by this section shall be immune from any liability, civil or criminal, which might otherwise be incurred or imposed and shall have the same immunity with respect to any judicial proceeding which results from such report.

Plaintiff contends that Smith is not entitled to immunity under this Section because her report was not made in good faith.  Since her report was predicated on an absence of factual data, or as a result of her malpractice, the report to DCYS was not made in good faith.

Even if, for the sake of argument, it is assumed Smith reported to DCYS in good faith, the complaint in this case does not implicate the two categories of immunity granted by the statute.  The first category is civil liability which might otherwise be incurred or imposed as a result of making the report.  The second category is civil liability with respect to any judicial proceeding which results from such report.  Here, the complaint does not assert claims of slander with respect to the report made to DCYS; the Complaint asserts slander with respect to statements made to others beyond the scope of the reporting obligation.  Similarly, the complaint does not seek to assert civil liability against Smith for judicial proceedings resulting from the report.  Rather, the complaint seeks to impose civil liability for events and judicial proceedings that resulted from activities and statements made by Smith outside of her reporting obligation.

b) The "authorized slander" defense

Defendant's special defense to the slander counts alleging that slanderous statements, if made, were made with the consent of the plaintiffs, is without merit.  As a minor, Jane did not have the capacity to consent.  John never consented to any slanderous statements being made about him or about Jane.  To the extent Jane's mother or attorney "consented" to Smith making defamatory statements, that consent was necessarily predicated on the conclusion of Smith, derived from her malpractice.  Since whatever "consent" to making slanderous statements was falsely premised on Smith's misdiagnosis and other malpractice, any consent of Jane's mother or attorney to Smith making slanderous statements about Jane's lack of chastity is invalid.  Furthermore, neither Elizabeth Doe (the mother) nor Jane's attorney, had the capacity to consent to Smith making defamatory statements about John Doe.

Failure to retract constitutes malice.  In addition, the allegations which were published constitute slander per se and require no proof beyond their publication.  Defendant did not assert the defense of "truth" to the slander allegations, and therefore may not assert that defense to the slander claims at trial.

Infliction of Emotional Distress Claims

Counts 5 and 6 of the complaint assert claims of negligent infliction of emotional distress by Mary Smith on Jane and John Doe, respectively.  These counts incorporate the allegations of malpractice.  Essentially it is the claim of both plaintiffs that it was reasonably foreseeable to Mary Smith that if she attempted to treat Jane negligently, in a situation way beyond her competence, skill, training and judgment, it was reasonable to expect that she would cause emotional harm to John and Jane, and that in fact, she has caused such emotional harm to John and Jane.  To the extent Smith seeks to claim that her therapeutic relationship was with Jane only, it is certainly clear that John was within the zone of danger of people who Smith could reasonably foresee would be affected by Smith's negligent conduct.  Regardless of issues of therapeutic relationship, Smith knew, and indeed her code of ethics makes clear, that family therapists are in a unique position to affect the lives of family members and must therefore act with special care in their public and private pronouncements.  Smith failed to exercise special care or even any minimum degree of care and competence.


Mary Smith labeled John Doe as a sexual abuser of his daughter and Jane Doe as a victim of child abuse without any legitimate basis for those labels.  Smith subjected Jane to nine months of destructive interrogation under the guise of "play therapy."  Smith subjected John Doe to emotional distress and public ridicule, as a result of her negligent treatment of John and Jane, defamatory statements to Elizabeth Doe, the Police Department and ultimately, all of Anytown as a result of republication of Smith's statements in the Anytown Gazette.  Ultimately, Smith's conduct led to the disappearance of Jane Doe and Elizabeth Doe and a total lack of contact between John and Jane since 1986.

By Smith's own testimony a child that is a victim of sexual abuse will need years of therapy.  Since the only sexual abuse that took place in this case was Smith's promulgation of sex abuse ideas on Jane, resulting in the destruction of this family, it will take years to provide any semblance of normalcy to John or Jane.  Indeed, in Jane's absence it is difficult to assess the full extent of her injuries. However, by Smith's own testimony, the Doe family has suffered greatly.  Indeed this Court can take judicial notice that the mere separation of a father and daughter from a loving relationship would produce untold anxiety and distress in any parent.  No sum of money can ever restore what John and Jane have lost.  However, since money is the only thing that can begin in any way to redress the grievous wrong done in this case, the Court should sustain whatever verdict is rendered, no matter how high.


The foregoing trial memorandum is designed to give the Court guidance as to the nature and extent of the testimony that will be offered in this case and some of the legal issues that may arise.  Counsel for the plaintiffs will be happy to enlighten the Court on any additional topics should the Court so request.

Respectfully submitted,

Attorney for Plaintiffs

* Readers who want more information regarding this article may contact Robert L. Herbst, Esquire at Herbst & Greenwald, 122 East 42nd Street, Suite 2500, New York, New York 10168. [Back]

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