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Demurrers to emotional distress claims sustained

Plaintiff’s lack of specificity in pleading her emotional distress claims requires the court to sustain defendant’s demurrers but she will have leave to file an amended complaint.

Plaintiff’s allegation of sexual battery does not relieve her of “the obligation to plead severe emotional distress with specificity.” 

“This action came to be heard June 30, 2022, on demurrers and motions. The plaintiff appeared by counsel, Carlton F. Bennett, Esq. and John G. Baker, Esq. The defendant Montalvo appeared by counsel, Tia-Marie Lane, Esq. The Bon Secours defendants appeared by counsel, Thea Pitzen, Esq. The Court had previously received briefs and that day received argument of counsel.

“It is ordered:

“1. The Court sustains Montalvo’s demurrer to the plaintiffs claim for negligent infliction of emotional distress, assuming it was pled. The plaintiff has failed to allege a specific physical injury that was the result of fright or shock caused by Montalvo’s negligence. Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125, 138, 523 S.E.2d 826, 834 (2000). The plaintiff there also alleged a sexual battery.

“2. The Court sustains Montalvo’s demurrer to the plaintiffs claim for intentional infliction of emotional distress as the plaintiff has only alleged in a conclusory manner that his decedent suffered ‘severe emotional distress.’ This does not suffice. Russo v. White, 241 Va. 23, 28,400 S.E.2d 160, 163 (1991). 

“The plaintiff cites two circuit court cases that appear to hold a plaintiff need not plead the specifics of severe emotional distress when she pleads it was caused by a sexual assault. Padilla v. Silver Diner, 63 Va. Cir. 50 (Virginia Beach 2003); Hygh v. Geneva Enterprises, Inc., 47 Va. Cir. 569 (Fairfax 1997). The Court declines to follow these decisions. 

“It is true, as Judge Lowe observed in Padilla, that Russo and many cases of intentional infliction of emotional distress did not involve a battery, and that batteries occurred in Padilla and Hygh, and are alleged to have occurred here.

“Nonetheless, the Supreme Court of Virginia has never held that a plaintiff who alleges a sexual battery is relieved of the obligation to plead severe emotional distress with specificity. That Court continues to hold that intentional infliction of emotional distress is a ‘disfavored’ tort, A.H v. Church of God in Christ, 297 Va. 604,632 n. 18, 831 S.E.2d 460,476 (2019), and this Court therefore ought not loosen its pleading requirements.

“The Court defers any ruling on Montalvo’s motions to exclude prior bad acts and to bifurcate until another day.

“3. The Court GRANTS Montalvo’s motion in limine to exclude the order of the Virginia Board of Nursing on the ground of relevance. The Court does not find the order inadmissible under Code of Virginia§ 54.1-2400.2 (B), as the order is not ‘confidential information,’ and subsection (H) of that statute requires it to be disclosed. 

“However, the results of collateral proceedings arising out of the same incident that gives rise to a civil action are usually not admissible in the civil action. The reasons for the rule are the differences in the parties, the objects of the proceedings, the procedures, and the degree of proof. Godbolt v. Brawley, 250 Va. 467,463 S.E.2d 657 (1995); K. Sinclair, The Law of Evidence in Virginia,§ 7-18 (8th ed. 2018). 

“The degree of proof in a civil trial and an administrative hearing may be the same, Goad v. Virginia Board of Medicine, 40 Va. App. 621,635 n. 10,580 S.E.2d 494, 501 (2003), but the other reasons for the rule apply. The rule is usually applied with respect to a prior criminal proceeding involving a party to the civil action, but there is no reason the rule ought not to apply when the prior proceeding was an administrative one instituted by a state agency.

“4. The Rules of the Supreme Court do not require it, but the common, and better, practice is to identify clearly each right of action being pled.

“5. The plaintiff will be given leave to file an amended complaint after the hearing on the demurrer of and motions concerning the Bon Secours defendants.”

Blottner v. Montalvo, et al., Case No. CL21-11260, July 12, 2022, (Order) City of Norfolk Circuit Court (Martin). VLW 022-8-046, 3 pp.

VLW 022-8-046