JOHN DEVLIN VS. SALLY GORSKI (L-2243-15, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0281-17T1
JOHN DEVLIN,
Plaintiff-Appellant,
v.
SALLY GORSKI (Individually
and in her capacity as a LCSW),
and FAMILY EMPOWERMENT
ASSOCIATES, LLC,
Defendants-Respondents.
___________________________________
Submitted October 22, 2018 – Decided October 29, 2018
Before Judges Fasciale and Rose.
On appeal from Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-2243-15.
Law Offices of Riley and Riley, attorneys for appellant
(Tracy L. Riley and Rachel M. Conte, on the briefs).
Marshall, Dennehey, Warner, Coleman & Goggin,
attorneys for respondent Sally Gorski, LCSW (Walter
F. Kawalec, III, on the brief).
Bonner, Kiernan, Trebach, & Crociata, LLP, attorneys
for respondent Family Empowerment Associates, LLC
(Suzanne M. Utke, on the brief).
PER CURIAM
Plaintiff appeals from two June 9, 2017 orders granting summary
judgment to Sally Gorski and Family Empowerment Associates (Family
Empowerment) (collectively defendants), and an August 4, 2017 ord er denying
plaintiff's motion for reconsideration. We affirm.
Plaintiff filed suit against defendants 1 alleging negligence for breaching
the duty of confidentiality and duty of candor, intentional infliction of emotional
distress, malpractice, and fraud/legal misrepresentation stemming from
plaintiff's single meeting with Gorski. Gorski, a licensed clinical social worker
(LCSW), treated plaintiff's two children during plaintiff and his ex-wife's
divorce. On October 7, 2010, plaintiff met with Gorski, without the children,
but accompanied by his sister.
Three years later, on October 5, 2013, Gorski wrote to the family court, in
connection with the divorce, stating that she met with plaintiff, and he
1
Testimony presented before the judge demonstrated that Gorski was not
employed by Family Empowerment, but instead was a solo practitioner who co-
leased office space with others, including Family Empowerment, and shared the
administrative expenses.
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"presented as very anxious and upset about the end of his marriage and spoke
mostly about his soon to be ex-wife." When Gorski "redirected the session
towards [her] concerns about the children[, plaintiff] became argumentative with
[her]." Gorski received authorization from the children's mother – plaintiff's ex-
wife – to write the court because one of the children reported abuse by plaintiff.
Subsequently, the Division of Child Protection and Permanency (DCPP) was
contacted. On March 16, 2014, Gorski wrote plaintiff's ex-wife about her
recommendations for the children's visitation with plaintiff, and forwarded a
copy to plaintiff.
Plaintiff's complaint against defendants relates specifically to the October
5, 2013 and March 16, 2014 letters (the letters). On appeal, plaintiff alleges that
the judge erred by finding that plaintiff was not Gorski's client/patient; applying
the litigation privilege; and prematurely granting summary judgment.
When reviewing an order granting summary judgment, we apply "the
same standard governing the trial court . . . ." Oyola v. Xing Lan Liu, 431 N.J.
Super. 493, 497 (App. Div. 2013). We owe no special deference to the motion
judge's conclusions on issues of law. Manalapan Realty, LP v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995). We therefore look at the facts in the light
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most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
523 (1995).
Plaintiff maintains that he approached Gorski for counseling, forming a
therapist-patient relationship that bound Gorski to the duty of confidentiality,
which she breached by writing and distributing the letters. He asserts that the
judge made an inappropriate finding of fact that plaintiff was not Gorski's
client/patient, evidenced in the judge's memorandum of decision wherein the
sentence, "[l]astly, the [c]ourt does not find that a rational jury could find that
[p]laintiff was himself a patient of Gorski['s] from the facts presented," is
crossed out. Plaintiff fails to elaborate. Although plaintiff asserts that this
redacted sentence was an inappropriate finding of fact, the sentences that follow,
which were not crossed out, specifically state, "[t]he [c]ourt also finds that
[d]efendant Gorski's clients were [plaintiff's] children and [plaintiff's ex-wife].
Plaintiff was not a client . . . ." The redacted sentence has no bearing on the
judge's final ruling, especially because he reiterates his findings in the following
sentences. The judge did not make an inappropriate finding.
We disagree with plaintiff's contention that Gorski's recommendation for
family counseling in her March 16, 2014 letter establishes that plaintiff was
Gorski's client/patient. The letter recommended a future of family counseling,
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and did not state that plaintiff's meeting with Gorski constituted family
counseling. Neither the children nor plaintiff's ex-wife was present at his
meeting with Gorski, and an October 11, 2012 letter from Gorski to plaintiff,
which referenced the 2010 meeting, stated, "I am hoping to include you in your
children's . . . therapy."
Before plaintiff's meeting with Gorski, in September 2010, Gorski wrote
to plaintiff's ex-wife providing an overview of the children's counseling up to
that date, and explaining that she attempted to contact plaintiff and was "hopeful
that [plaintiff would] agree to come to [her] office in the near future." She also
"strongly encourage[d] all efforts to engage him." Plaintiff did not seek Gorski's
counseling for himself, but instead Gorski contacted him in an effort to benefit
his children's counseling. At plaintiff's deposition, he stated that he met with
Gorski for his ex-wife and for the sake of his children.
We are unconvinced by plaintiff's assertion that he was Gorski's
client/patient because his insurance was billed, and he paid a co-pay for a
counseling session. As defendants assert in their merits briefs, plaintiff provided
insurance coverage for his children, and Gorski required payment for her
services. His payment for services rendered does not classify him as a
client/patient.
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Plaintiff failed to provide the judge, and now us, with any basis to
determine that he was Gorski's client/patient. The judge properly considered all
of the evidence and concluded that plaintiff was not Gorski's client/patient.
Plaintiff next asserts that the judge improperly applied the litigation
privilege to shield Gorski from liability with regard to the letters. The litigation
privilege applies to "any communication (1) made in judicial or quasi-judicial
proceedings; (2) by litigants or other participants authorized by law; (3) to
achieve the objects of the litigation; and (4) that have some connection or logical
relation to the action." Hawkins v. Harris, 141 N.J. 207, 216 (1995). The
litigation privilege immunizes any participant to a judicial proceeding from civil
liability for any statements made in the course of the proceeding. Loigman v.
Twp. Comm., 185 N.J. 566, 579-80 (2006). The purpose of the privilege is "to
ensure that participants in the judicial process act without fear of the threat of
ruinous civil litigation when performing their respective functions." Id. at 581;
accord Hawkins, 141 N.J. at 214.
Plaintiff argues that had the judge viewed the dispute about whether
plaintiff was Gorski's client/patient in a light most favorable to plaintiff, then
the judge would have found that plaintiff was Gorski's client/patient and that the
therapist-patient privilege applied. He further asserts that the judge failed to
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apply the analysis set forth in Runyon v. Smith, 163 N.J. 439 (2000), which is
employed when there are conflicting privileges – here the litigation privilege
and the therapist-patient privilege.
The judge did not complete the analysis under Runyon because he found
that plaintiff was not Gorski's client/patient, which eliminated any reliance on
the therapist-patient privilege. We agree that the therapist-patient privilege is
inapplicable. Without conflicting privileges, there was no need for an analysis
under Runyon, and the judge properly only considered the litigation privilege.
The judge found the litigation privilege applicable to the letters due to the
ongoing family litigation between plaintiff and his ex-wife. The judge explained
that the October 5, 2013 letter "clearly addressed a matter under a judicial
proceeding while Gorski was also clearly a party knowledgeable to testify in
that matter had she been called to do so, and submission of the letter to that
[c]ourt by [p]laintiff's ex-wife was by a party to that proceeding." He further
explained that "once the privilege covers the October 5, 2013 letter, the [c]ourt
finds that it extends to the March 16, 2014 letter. . . . Additionally, the record
shows that [plaintiff's ex-wife] executed an authorization on behalf of the
children/patients for the letter to the [c]ourt while the other letter was to
[plaintiff's ex-wife]."
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The judge relied on P.T. v. Richard Hall Cmty. Mental Health Care Ctr.,
364 N.J. Super. 561 (Law Div. 2002), aff'd, 364 N.J. Super. 460 (App. Div.
2003), in finding that the litigation privilege applied. The judge found that the
facts here were substantially similar to the facts in P.T. In P.T., the plaintiffs
were the non-custodial parent of a minor child and the child's paternal
grandparents. Id. at 566-67. They alleged that the child's psychologist made an
incorrect diagnosis that the child had been abused; campaigned with the child's
mother in "a grossly negligent effort" to intervene in the matrimonial litigation
involving the child's parents; and destroyed "any hope" for a relationship
between the child and the plaintiffs. Id. at 568. The judge in P.T. held that the
defendants were entitled to immunity from liability arising from their
communications and statements. Id. at 583-84. He found that the defendants'
communications and statements were "cloaked in the litigation privilege"
because they were "made in the context of the litigation." Id. at 583. He then
stated:
Similar to the status of a court-appointed expert,
although admittedly not identical to the position
enjoyed by a court-appointed expert, it is clear that
recommendations made by [the therapist] either to the
court system, or in the context of the order directing
that she make her recommendations to the parties, fall
within the litigation privilege. The rationale underlying
the litigation privilege itself would be undercut were we
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to conclude that a therapist . . . in a setting such as this
is not entitled to rely on that privilege. The privilege
rests on the need to ensure complete candor and
forthright, open and honest communication of [the
therapist's] views based upon her evaluation and
therapy with this child, all of which would be severely
compromised were we to determine that the privilege
does not apply here.
[Id. at 583-84.]
Here, the October 5, 2013 letter to the family court and the March 16,
2014 letter to plaintiff's ex-wife concerned the judicial proceeding of plaintiff's
divorce and the children's welfare. Gorski wrote the October 5, 2013 letter to
the family court at the request of plaintiff's ex-wife because DCPP had been
called after one of the children reported abuse by plaintiff. The March 16, 2014
letter to plaintiff's ex-wife anticipated court proceedings, and Gorski noted that
"[r]equesting the court return to the old [visitation] schedule is both
inappropriate and unreasonable."
Gorski's letters were "cloaked in the litigation privilege" because they
were "made in the context of the litigation." Id. at 583. Additionally, this State
"has a strong policy designed to protect children from . . . abuse and to require
the reporting of suspected abuse . . . ." Id. at 580. To determine that the
litigation privilege did not apply would severely undercut the rationale of the
litigation privilege to promote candor and honest communication. See id. at
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584. We agree with the judge's application of the litigation privilege to shield
Gorski and Family Empowerment from liability.
Lastly, plaintiff asserts that the judge prematurely granted summary
judgment because plaintiff was not yet in receipt of his expert's report, and he
intended to depose several additional individuals – including other clinicians
with knowledge of Gorski's relationship with Family Empowerment. We find
that this argument lacks sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). We only add the following brief comments.
Additional discovery would not have changed the judge's proper
application of the litigation privilege. With the litigation privilege applicable ,
plaintiff had no recourse, and continuing discovery would not have changed this
fact. Plaintiff presented an expert opinion – at the motion for reconsideration –
to show that Gorski's conduct fell below the standard of care for a LCSW; yet,
the judge properly determined that plaintiff was not Gorski's client/patient and
that the litigation privilege applied. The litigation privilege precluded the action
against defendants.
Affirmed.
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