In an action for negligent infliction of emotional distress and retaliatory discharge under Tennessee law, an employee is not required to offer expert testimony to prove the negligent infliction claim because it was “parasitic” to her retaliatory discharge claim, rather than a “stand-alone” claim, the Court of Appeals of Tennessee has ruled. Coleman v. Humane Society of Memphis and Shelby County, No. W2012-02687-COA-R9-CV, 2014 Tenn. App. LEXIS 77 (Ct. App. Tenn. Feb. 14, 2014). Accordingly, the Court reversed summary judgment in favor of the employer and returned the case to the trial court for further proceedings.

Background

The Humane Society of Memphis and Shelby County hired Dr. Rebecca Coleman, a licensed veterinarian, as a part-time staff veterinarian in January 2007. Dr. Coleman’s duties consisted of examining animals brought to the shelter, treating injured animals, performing surgical operations, and performing or supervising euthanasia on animals with multiple severe illnesses or injuries that rendered recovery impossible or highly unlikely. As a staff veterinarian, it was Dr. Coleman’s responsibility to ensure the Humane Society maintained compliance with veterinary standards and procedures.

During her employment, Dr. Coleman complained repeatedly to the Humane Society’s Executive Director about overcrowding in the facility, which caused sanitation and health problems for the animals. The Director repeatedly refused to allow Dr. Coleman to euthanize severely ill animals, which exacerbated the overcrowding problem. In addition, Dr. Coleman discovered that an unlicensed veterinary assistant illegally euthanized numerous animals using controlled substances for which Dr. Coleman was responsible. The veterinary assistant also sold prescription drugs unlawfully to other employees. Dr. Coleman complained to the Director about this and recommended the veterinary assistant be terminated, but the Director declined to do so. Thereafter, Dr. Coleman was terminated.

Dr. Coleman sued the Humane Society for retaliatory discharge and negligent infliction of emotional distress. The trial court granted the Humane Society’s motion to dismiss the negligent infliction of emotional distress claim because Dr. Coleman failed to present expert testimony regarding her alleged emotional injuries and causation. Dr. Coleman appealed.

Applicable Law

Tennessee law recognizes claims for negligent infliction of emotional distress. Camper v. Minor, 915 S.W.2d 437, 446 (Tenn. 1996). To guard against trivial or fraudulent actions, Tennessee courts require plaintiffs asserting such claims alone to offer expert testimony to establish both the distress and causation. However, where a plaintiff asserts a claim for negligent infliction of emotional distress in connection with other claims for damages, the risk of a fraudulent claim is reduced and, therefore, expert testimony is not required.

Expert Testimony Not Required

Dr. Coleman argued that the emotional distress she suffered arose out of her retaliatory discharge claim; therefore, according to the plaintiff, her claim for negligent infliction of emotional distress was “parasitic” and expert testimony was not required. The Humane Society maintained the negligent infliction of emotional distress claim was a stand-alone claim because it could not be “parasitic” to an intentional tort, such as retaliatory discharge.

The appellate court sided with Dr. Coleman. It stated, “Here, Dr. Coleman alleged emotional distress arising out of or flowing from her termination or retaliatory discharge; therefore, her negligent infliction of emotional distress claim was ‘parasitic’ to her claims for retaliatory discharge.” Thus, the Court found the expert proof requirement did not apply. 

The Court further noted that Dr. Coleman did not assert a “stand-alone” claim because she alleged other “independent bases for tort liability, namely statutory and common law causes of action for retaliatory discharge.” These other claims “served the purpose of demonstrating the reliability of Dr. Coleman’s claim for emotional distress.” The Court also found the Humane Society’s argument that a negligent infliction of emotional distress claim could not be parasitic to an intentional support lacked support. 

Accordingly, the Court concluded the trial court erred in granting summary judgment on this claim for the lack of expert testimony, reversed the judgment and remanded the case for further proceedings.

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This case provides significant guidance on negligent infliction of emotional distress claims brought in conjunction with Tennessee statutory and common law retaliatory discharge claims. The Court’s lower standard of proof required of employees makes it more likely that such claims will survive summary judgment.