Hartman v. Perler-Tomboly (In re Perler-Tomboly)

Full title: In Re SAMUEL E. PERLER-TOMBOLY Debtor TIFFANY HARTMAN Plaintiff v. SAMUEL…

Court: UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Date published: Jun 12, 2014

Case No. 13-11565 (Bankr. S.D. Ohio Jun. 12, 2014)

Opinion

Case No. 13-11565 Adversary Case No. 13-1076

06-12-2014

In Re SAMUEL E. PERLER-TOMBOLY Debtor TIFFANY HARTMAN Plaintiff v. SAMUEL E. PERLER-TOMBOLY Defendant

Jeffery P. Hopkins United States Bankruptcy Judge

Chapter 7 Judge Hopkins

MEMORANDUM OF DECISION

After a jury trial, the plaintiff, Tiffany Hartman ("Hartman"), received a judgment ("Judgment") against the defendant, chapter 7 debtor Samuel E. Perler-Tomboly ("Perler-Tomboly") in Ohio state court. This is an action to determine the dischargeability of the debt arising from the Judgment pursuant to 11 U.S.C. § 523(a)(6)("A discharge under section 727 . . . does not discharge an individual debtor from any debt . . . for a willful and malicious injury by the debtor to another entity[.]").

Hartman filed a motion for summary judgment ("Motion")(Doc. 39), and Perler-Tomboly, representing himself, filed a written response ("Response")(Doc. 47) in opposition. The Motion and response are now ripe for decision.

ISSUE

The threshold issue presented is whether the Judgment precludes Perler-Tomboly, under the doctrine of issue preclusion, from contesting whether the debt arises from a willful and malicious injury.

HOLDING

The Judgment precludes litigation of whether the debt arises from a malicious injury. However, the Judgment does not preclude litigation of whether the debt arises from a willful injury. Nevertheless, independent of issue preclusion, the summary judgment record warrants a finding that the debt arises from a willful injury.

FACTS

Perler-Tomboly's answer to Hartman's complaint in this action establishes the following facts.¹

1 Fed. R. Civ. P. 8(b)(6) provides, in relevant part: "An allegation [in a complaint] . . . is admitted if a responsive pleading is required and the allegation is not denied." The facts before this Court include allegations in Hartman's complaint that Perler-Tomboly's answer did not deny.

On October 9, 2007, Hartman went to the emergency room with complaints of abdominal pain. Perler-Tomboly was the physician on duty. Perler-Tomboly administered narcotics and drugs to Hartman which rendered her unable to react to her surroundings or protect herself. Thereafter, Perler-Tomboly sexually molested Hartman on two separate occasions. On January 16, 2008, Perler-Tomboly pled guilty to the criminal charges of sexual battery and gross sexual imposition.

Subsequently, Hartman sued Perler-Tomboly and obtained the Judgment. Perler-Tomboly admitted that he caused Hartman to be impaired by medication and then had sexual contact with her. The issues of damages and causation were submitted to a jury. The jury concluded that Perler-Tomboly's actions caused injury to Hartman, awarding compensatory damages of $205,000 and punitive damages of $25,000 plus attorney's fees.

ISSUE PRECLUSION

The doctrine of issue preclusion enjoins relitigation of certain issues of fact or law decided in a prior action between the parties based upon a different cause of action. In re Markowitz, 190 F.3d 455, 461 (6^th Cir. 1999). The party invoking the preclusive effect of a judgment bears the burden of proving the elements of issue preclusion. Wilmers v. Yeager (In re Yeager), 500 B.R. 547, 552 (Bankr. S.D. Ohio 2013).

If a state court decided the prior action, federal courts apply that state's law to determine the preclusive effect of the judgment in federal court. Markowitz, 190 F.3d at 461; In re Sweeney, 276 B.R. 186, 189 (B.A.P. 6^th Cir. 2002)(Ohio law governs the preclusive effect of Ohio judgments in federal court.). Under Ohio law, issue preclusion applies if the fact or issue "(1) was actually and directly litigated in the prior action, (2) was passed upon and determined by a court of competent jurisdiction, and (3) when the party against whom [issue preclusion] is asserted was a party in privity with a party to the prior action." Thompson v. Wing, 637 N.E.2d 917, 923 (Ohio 1994).

In the instant action, the only question is whether the elements of Hartman's § 523(a)(6) claim were decided in the state court civil action.² This determination requires a comparison of the issues decided under § 523(a)(6) with the issues decided in the state court action.

2 The issues decided in the criminal action are not the same issues decided under § 523(a)(6). The applicable criminal statutes provide, in relevant part:

ISSUES UNDER § 523(A)(6)

Debts for "willful and malicious injury" are nondischargeable under § 523(a)(6). A debt is discharged unless both willfulness and maliciousness are established. Markowitz, 190 F.3d 455, 463 (6^th Cir. 1999). Willfulness requires proof that the actor intended to cause the injury. Id. at 464. Maliciousness requires an act done "in conscious disregard of one's duties or without just cause or excuse." Wheeler v. Laudani, 783 F.2d 610, 615 (6^th Cir. 1986).

ISSUES DECIDED IN STATE COURT

The Judgment does not identify the issues decided in state court. It merely provides:

This action came on for trial before the Court and a jury, and the issues having been duly tried and the jury having duly rendered its verdict,



IT IS ORDERED AND ADJUDGED that the plaintiff, Tiffany Hartman, recover from the defendant Samuel Perler-Tomboly the sum of:

a) $205,000.00 in compensatory damages;
b) $25,000.00 in punitive damages;
c) Plaintiff's reasonable attorney's fees in an amount to be determined by the court;



with interest on the above sums from the date of judgment until paid, as provided by law, and her costs of this action.

The attorneys for Hartman contend that she obtained a judgment for civil battery. The Judgment, however, makes no reference to battery.

Unfortunately, it appears the state court did not issue findings of fact or conclusions of law to clarify the issues effectively decided. If there are such findings, neither party produced evidence of them, and the record on summary judgment in this Court is silent regarding what claims the verdict rendered in state court actually rests upon.

However, the record does contain a jury verdict for compensatory damages, a jury verdict for punitive damages, and a transcript of jury instructions. With no express findings by the state court, this Court must carefully scrutinize the jury instructions and verdict forms to determine the issues decided, if possible. See Quadrangle Enters., Inc. v. Harper (In re Harper), 378 B.R. 836 (Bankr. E.D. Ark. 2007)(extensive analysis of jury instructions, verdict form, and judgment entry to determine preclusive effect of state court judgment for purposes of § 523(a)(6)); see also 18 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4420 (2013)("The major practical problem posed by the actual decision requirement lies in the need to discover what it was that has been actually decided. In cases tried to a judge, express findings of fact and conclusions of law often show clearly what has been-and what has not been-decided. Special verdicts or interrogatories may bring equal clarity to decisions reached by a jury. . . . In other cases, a prior judgment may not indicate clearly what issues were resolved. . . . [T]his problem [is] most common with respect to a jury's general verdict[.]").³

3 The Motion contains exhibits offered into evidence in state court, as well as partial transcripts of trial testimony. This evidence merely tells this Court what evidence the jury heard, not what the jury decided. See In re Porter, 375 B.R. 822, 827 (B.A.P. 8^th Cir. 2007)("Although both parties ask us to review the evidence from the district court when reaching our decision, that is not part of our inquiry. We are not reviewing the propriety of that judgment. Rather we, like the bankruptcy court, must determine whether the jury verdict precluded the bankruptcy court from finding that Porter's actions were not willful and malicious. Thus, we turn to the jury's verdict and its answers to interrogatories."), aff'd, 539 F.3d 889 (8^th Cir. 2008). However, for purposes other than issue preclusion, this evidence serves as an alternative basis for summary judgment (i.e., independent evidence upon which this Court may make a finding of a willful or malicious injury).

A. Compensatory Damages

1. Jury Instructions

The jury instructions regarding compensatory damages provide, in relevant part:

The Court: All right. I get to function now. I'm going to read these jury instructions to you. . . .



Claims of the plaintiff. The plaintiff claims that she was sexually abused by defendant, a physician[.] Defendant admits that he caused to be administered medication that substantially impaired the judgment or control of the plaintiff and then had sexual contact with her. . . . Defendant asserts that plaintiff suffered emotional damage prior to [the incident] and for which he is not responsible. Thus the issues before you are the issues of, guess what, causation and damage. We discussed that before the trial started.
Proximate causation. In her cause of action, plaintiff must prove by a preponderance of the evidence not only that Samuel Perler-Tomboly M.D. was at fault, which he has already admitted, but also that his actions were a proximate cause of the injury. . . . A party such as plaintiff who seeks to recover from injury, emotional injury in this case, must prove not only that the other party was at fault - which in most cases you have to do; not this one because he admitted he was at fault - but also that the defendant's behavior was "a" not necessarily "the" cause of the emotional injury to plaintiff.

2. Verdict Form

With respect to compensatory damages, the jury completed the following verdict form:

We the Jury, being duly empaneled, do hereby find that Samuel Perler-Tomboly, M.D.'s actions directly caused injury to Plaintiff, Tiffany Hartman. We therefore find in favor of the Plaintiff, and against the Defendant, in the amount of $205,000.00.

B. Punitive Damages

1. Jury Instructions

The jury instructions regarding punitive damages provide, in relevant part:

The Court: Plaintiff is asking for an additional award of punitive damages. . . . You are not required to award punitive damages and may not do so unless you find by clear and convincing evidence that the defendant acted with malice, which is defined as a state of mind characterized by hatred, ill will or a spirit of revenge or a conscious disregard for the rights and the safety of another that has a great probability of causing substantial harm. . . . If you decide that the defendant is liable for punitive damages, you must also decide whether or not the defendant is liable for the reasonable and necessary attorney fees of counsel employed by the plaintiff in the prosecution of this action.

2. Verdict Form

With respect to punitive damages, the jury completed the following verdict form:

We the jury, in the exercise of our sound discretion, do award punitive damages in favor of Plaintiff against Defendant in the amount of $25,000.00
and further decide that Defendant should pay the reasonable and necessary attorney fees of Plaintiff's counsel.

C. Complaint

When viewed in light of the jury instructions and verdict, Hartman's state court complaint clarifies the issues decided in state court.

Hartman's state court complaint is not the most artful complaint. It asserts one cause of action against Perler-Tomboly, which is not expressly identified. The complaint's only reference to the term "battery" is a single reference to Perler-Tomboly's guilty plea to the criminal charge of sexual battery. Notwithstanding, it appears that the state court treated it as a complaint for battery.

The elements of civil battery under Ohio law are: (1) harmful or offensive contact; (2) intent; (3) causation; and (4) damages. See Love v. City of Port Clinton, 524 N.E.2d 166, 167 (Ohio 1988); see also Anderson v. St. Francis - St. George Hospital, Inc., 671 N.E.2d 225, 227 (Ohio 1996).

The complaint alleges the following: (1) Perler-Tomboly "sexually molested" Hartman ("First Allegation"); (2) Perler-Tomboly's actions "were committed with conscious disregard of [Hartman's] rights and safety and with great probability of causing substantial harm" ("Second Allegation"); and (3) "[a]s a direct and proximate result of [Perler-Tomboly's] actions . . . [Hartman] experienced . . . pain and suffering . . . lost earnings . . . [and] medical and psychological expenses" ("Third Allegation"). These allegations mirror, for the most part, the elements of battery. The First Allegation mirrors the element of harmful or offensive contact. The Third Allegation mirrors the elements of causation and damages. The Second Allegation does not necessarily mirror the element of intent, but it does mirror the definition of malice provided in the jury instructions on punitive damages.

Consequently, it appears that the Judgment found Perler-Tomboly liable for battery, which necessarily included findings of (1) harmful or offensive contact; (2) intent; (3) causation; and (4) damages. The first two findings were based upon Perler-Tomboly's admissions, according to the jury instructions. The last two findings were made by the jury. The jury also made a finding of malice, necessary to award punitive damages.

PRECLUSIVE EFFECT OF STATE LAW

A. Malicious Injury

The jury awarded punitive damages to Hartman based upon a finding of "malice." "When punitive damages are determined by the state court, there can be no question that 'actual malice' was determined under the standard used for 11 U.S.C. § 523(a)(6)." S.L. Pierce Agency, Inc. v. Painter (In re Painter), 285 B.R. 662, 668 (Bankr. S.D. Ohio 2002). Consequently, an Ohio judgment for punitive damages precludes a debtor from litigating the malicious injury prong under § 523(a)(6). See In re Sarff, 242 B.R. 620, 627 (B.A.P. 6^th Cir. 2000). Therefore, Perler-Tomboly is precluded from contesting the existence of a malicious injury.

B. Willful Injury

An injury is willful if the debtor intended to cause the injury. Markowitz, 190 F.3d at 464. The Judgment included a finding of intent. However, was it the same intent required under § 523(a)(6)?

Section 523(a)(6) does not apply to intentional acts that cause unintended injury. Kawaauhau v. Geiger, 523 U.S. 57, 61 (1998). The debtor must intend to cause the injury. Id.

Ohio courts are divided on the level of intent required to prove civil battery. See Yeager, 500 B.R. at 553 (collecting cases). Some require intent to cause injury. Id. Others require only an intentional act. Id. If a judgment is entered against a debtor under the former standard, the debtor is precluded from litigating the issue of willfulness under § 523(a)(6). Id. at 554. If a judgment is entered against a debtor under the latter standard, the debtor is not precluded from litigating the issue of willfulness under § 523(a)(6). Id. ⁴

4 Murray v. Wilcox (In re Wilcox), 229 B.R. 411, 418 (Bankr. N.D. Ohio 1998) provides that "an Ohio state court's finding of willful conduct, as it pertains to an intentional tort, will collaterally estop a party from relitigating that issue in a subsequent proceeding." Hartman cites this language for the proposition that an Ohio civil battery judgment always precludes litigation of willfulness under § 523(a)(6).
Hartman may be reading Wilcox too broadly. The state court in Wilcox expressly found the debtor's conduct to be willful. Id. at 414. The narrow issue in Wilcox was whether a state court finding of willfulness precluded litigation of willfulness under § 523(a)(6). If Wilcox stands for the broader proposition that all Ohio judgments for civil battery-regardless of whether the state court made a finding of willfulness-preclude litigation of willfulness under § 523(a)(6), such a proposition is dicta and this Court finds Yeagar to be the better reasoned analysis.
At the very least, the facts of Wilcox are distinguishable. The state court judgment in Wilcox found the debtor liable for battery and assault. Perler-Tomboly was not found liable for civil assault. Perhaps because of the assault claim, the state court in Wilcox expressly found the debtor's conduct to be willful. The Judgment against Perler-Tomboly did not include an express finding of willfulness.
Hartman also cites a couple of bankruptcy decisions from other states for the same proposition (i.e., a judgment for battery always precludes litigation of willfulness under § 523(a)(6)). These decisions are irrelevant because the preclusion issue is governed by the elements of battery and issue preclusion under Ohio law, not the law of other states.

In this case, it is unclear which level of intent the state court applied. Therefore, Hartman is unable to sustain her burden of proving that Perler-Tomboly is precluded from litigating the issue of willfulness in this action. See Yeager, 500 B.R. 547 (Bankr. S.D. Ohio 2013)(Ohio judgment for civil battery not entitled to preclusive effect concerning willfulness under § 523(a)(6) where judgment did not indicate level of intent applied by state court).⁵

5 Incidentally, the award of punitive damages did not decide the issue of willfulness. See Hinze v. Robinson (In re Robinson), 242 B.R. 380, 388 (Bankr. N.D. Ohio 1999)("[T]he mere fact that an Ohio state court awards punitive damages does not, standing alone, automatically denote that a person's conduct was 'willful' for purposes of a nondischargeable debt under § 523(a)(6).").

I NDEPENDENT E VIDENCE OF A W ILLFUL I NJURY

In addition to Hartman's reliance upon the doctrine of issue preclusion, she also submitted independent evidence (i.e., evidence other than the state court findings) in support of her Motion. Therefore, the Court must consider whether this evidence warrants a finding of a willful injury. Perler-Tomboly is entitled to contest this evidence because issue preclusion does not apply to the issue of a willful injury.

Summary judgment is appropriate only if "there is no genuine issue of material fact[.]" See Fed. R. Civ. P. 56(a). Instead of offering his own evidence to demonstrate a genuine issue of material fact, Perler-Tomboly's Response simply denies that he intended to injure Hartman. See Doc. 47 at 3 ("[Whether Perler-Tomboly committed a willful injury] has not been addressed by the state court, nor has it been demonstrated by [Hartman] in her briefs."). As discussed hereafter, the Court finds that Hartman's uncontested evidence establishes a willful injury.

Intent to injure exists if the debtor believed that the consequences of the act were substantially certain to result. Markowitz, 190 F.3d at 464. Medical professionals that engage in sexual misconduct with a patient know that the consequences of their actions are substantially certain to result. See e.g., Taylor v. Fechnay (In re Fechnay), 425 B.R. 212, 230-231 (Bankr. E.D. Pa. 2010); In re Fors, 259 B.R. 131, 137 (B.A.P. 8^th Cir. 2001). They receive training about their ethical obligations to patients and the harm that sexual misconduct causes. Id. Perler-Tomboly acknowledged as much.

In an interview conducted by the sheriff's office, Perler-Tomboly admitted that he went "too far" from a professional perspective. Motion at Ex. H.

Q: You just said that you know you went too far and you inappropriately touched her. Did you not?



A: Yes sir.



Q: Explain that to me please or explain that to us.
A: Umm, at that point . . . everything I did was wrong because I had known her from before. I had found her physically attractive from before, and I should [have] brought someone in the room with me or had another physician take care of her . . . and instead I let my feelings cross the line [of] my professional demeanor.



. . .



Q: Before you left the room did she make any statements to you? Was she crying? Was she able to say stop, get off of me?



A: She never said anything like that. No sir. But that doesn't really matter does it, because it was inappropriate anyway.



Q: She definitely never gave you consent.



A: She could not give me consent to do that.



Q: Why is that?



A: Because again . . . I was there in a professional capacity, and I broke that professional demeanor.

Motion at Ex. H. By his own admissions, Perler-Tomboly knew that his actions violated his ethical obligations as a physician.

Indeed, the State Medical Board of Ohio requires Ohio physicians to comply with the American Medical Association's Code of Medical Ethics,⁶ which prohibits sexual contact with a current patient. See American Medical Association, Code of Medical Ethics, Current Opinions: Opinion 8.14-Sexual Misconduct in the Practice of Medicine ("Opinion 8.14").⁷ Opinion 8.14 characterizes such contact as "sexual misconduct." Id. The opinion further states that it is based upon a report entitled "Sexual Misconduct in the Practice of Medicine" (JAMA. 1991; 266: 2741-2745). This report addresses the effects of sexual contact between patients and physicians:

6 http://www.med.ohio.gov/professional_guidelines_med_ethics.htm

7 http://www.ama-assn.org//ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion814.page

Despite some early attempts to show that sexual contact between patient and physician is or could be beneficial to the patient, most researchers agree that the effects of physician-patient contact are almost universally negative or damaging to the patient. Similar to the reactions of women who have
been sexually assaulted, female patients who had sexual contact with their physicians tended to feel abandoned, humiliated, or mistreated at the hands of their physician.⁸

Consequently, as a result of his ethical training, Perler-Tomboly knew that prohibited sexual contact is "almost universally . . . damaging to the patient."⁹

8 http://66.199.228.237/boundary/boundary_violations_and_physician_impairment/physician_sexual_misco nduct.pdf

9 Perler-Tomboly's Response states that he mistakenly believed that his "sexual advances and acts were desired and encouraged by Ms. Hartman." See Doc. 47 at 5. According to his Response, he believed he was embarking upon an affair, not a sexual assault. See Doc. 47 at 7. Consequently, he reasons, he did not intend to injure Hartman.
There is one problem with Perler-Tomboly's reasoning. Opinion 8.14 applies to non-consensual and consensual sexual contact. See Opinion 8.14 ("romantic interactions between physicians and patients detract from the goals of the physician-patient relationship"). So even if Perler-Tomboly thought that Hartman desired the sexual contact, he still knew that such contact was ethically prohibited and detrimental to the patient. He conceded as much to the sheriff, acknowledging that his conduct was inappropriate even if Hartman consented. In his words: "She never [objected] . . . [b]ut that doesn't really matter does it, because it was inappropriate anyway. . . . She could not give me consent to do that . . . [b]ecause . . . I was there in a professional capacity." Motion at Ex. H.

Therefore, Perler-Tomboly's ethical training and his admissions in the sheriff's interview reveal that he knew that the consequences of his actions were substantially certain to result. Accordingly, Perler-Tomboly willfully injured Hartman. See Fechnay, 425 B.R. at 230-31 ("[T]he Psychology Board's regulations have made it unethical to engage in sexual intimacies with a patient[.] . . . The Debtor, an experienced clinical psychologist, surely was aware . . . that engaging in the sexual intimacies or misconduct that he did on December 28^th would cause (as it did) emotional injury to the Plaintiff. The Debtor's conduct . . . had a substantial certainty of causing injury to the Plaintiff."); Fors, 259 B.R. at 137 ("Fors . . . had taken continuing education courses since graduating from chiropractic school regarding appropriate boundaries between chiropractor and patient. . . . Fors' conduct was . . . certain or almost certain to cause [Plaintiff] harm.").

PUNITIVE DAMAGES AND ATTORNEY'S FEES

Because Hartman's compensatory damages constitute a nondischargeable debt for a willful and malicious injury under § 523(a)(6), the next question is whether the punitive damages and attorney's fees are likewise nondischargeable. The answer is yes.

Punitive damages arising from the same conduct addressed by the underlying judgment are nondischargeable under § 523(a)(6). In re Abbo, 168 F.3d 930, 931 (6^th Cir. 1999). Similarly, liability for attorney's fees traceable to a willful and malicious injury are nondischargeable under § 523(a)(6). HER, Inc. v. Barlow (In re Barlow), 478 B.R. 320, 333-34 (Bankr. S.D. Ohio 2012).

CONCLUSION

For the foregoing reasons, the Motion will be GRANTED and the trial, currently set for September 3, 2014, at 9:00 a.m., will be VACATED. The entire amount of the Judgment is nondischargeable under § 523(a)(6). The Court will enter a judgment to this effect.

This document has been electronically entered in the records of the United States Bankruptcy Court for the Southern District of Ohio.

IT IS SO ORDERED.

Dated: June 12, 2014

/s/_________

Jeffery P. Hopkins

United States Bankruptcy Judge
Copies to: Robert A. Klingler
rak@klinglerlaw.com
Samuel E. Perler-Tomboly
5709 Chestnut Ridge Drive
Cincinnati, OH 45230

###

2907.03 Sexual Battery

(A) No person shall engage in sexual conduct with another . . . when . . .

. . .



(6) The other person is . . . a patient in a hospital . . . and the offender has supervisory or disciplinary authority over the other person.

2907.05 Gross Sexual Imposition

(A) No person shall have sexual contact with another . . . when . . .

. . .



(3) The offender knows that the judgment or control of the other person . . . is substantially impaired as a result of the influence of any drug or intoxicant administered to the other person with the other person's consent for the purpose of any kind of medical . . . examination, treatment, or surgery.

Neither malice nor intent to injure, both necessary elements under § 523(a)(6), appear to be required in order to prove the commission of either of these offenses. "Moreover, Ohio courts generally frown upon the use of criminal proceedings to estop parties in subsequent civil proceedings." Boone v. Spurgess, 385 F.3d 923, 928 n.4 (6^th Cir. 2004)(citing State ex rel. Ferguson v. Court of Claims of Ohio, 786 N.E.2d 43, 48 (Ohio 2003)); see also Ohio Crime Victims Reparations Fund v. Harwell (In re Harwell), 349 B.R. 502 (Bankr. N.D. Ohio 2006)(debtor's guilty plea in Ohio criminal action not entitled to preclusive effect in § 523(a)(6) action because creditor was not a party to the criminal action or in privity with the state prosecutor).