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ColA e..r CotM!'ETIT/6/'j

/t c_ ~C( ~ I ~Otn 7' "0 r'!? () otA---1 d -.J

IN THE

Sh~ &coy-

CATATONIA COURT OF APPEALS

October Term, 1980

80-21

RUN N. HYDE,

Plaintiff,

Against

DR. HEKYLL P. JEKYLL and

THE YO-YO CLINIC,

Defendant.

On Appeal from the D~strict Court

for the County of Rockabye

. BRIEF FOR PLAINTIFF

Team If: 21 P

Authorities Cited

Cases:

Barton v. Owen, 71l Cal. App. J'd 481,, 139 Cal. Rptr. L,94 (lq77)

Hates v. State Bar of llrizonr~, 1,33 U.S. 350 (1977) ............ .

llerry v. t1oench, 8 Ut<:~h 2d 191, 331 P. 2d 814 (1958) .......... .

Bigelow v. Virginia, 421 U.S. 809 (1975) •••••••••••••••••••••••

Buckl~y v. Valeo; 421~ lJ.S. 1 (1976) ........................... .

Chicago Council <>f Lnwycrs v. Bauer, 522 F.2d 242 (7th Cir. 1975), cert. denied, 427 u.s. 912 (1976) •••.•••••••••••••••••••

Estes v. Texas, 381 U.S. 532 (1965) ••••••••••••••••••••••••••••

First National Rank of Roston v. B~llotti, 435 U.S. 765 (1978).

Friedman v. Rogers, 440 U.S. 1 (1979) .......................... .

G:wnett-Co. Inc.·v. DePasquaJc, 433 TJ.S. 368 (1979) ........... .

Goldberg v. Kelly, 397 u.r.;. 254 (1970). ....................... .

Hague v. Hllllams, 37 N.J. 328, 13111. 2d 345 (1%2) ••••••••••••

Hammonds v. Aetna Casualty & Surety Co., 243 F. Supp. 793 (N.D. Ohio 1965) ..••...••••....•••••.•••.•.•••••••...•..••••...•••.•.

In Re Primus, 436 U.~. 412 (1978) •••••••••••••••••••••.•••..•••

Lahti v. l-kMenamin, 268 P. 644 (Cal. S11p. Ct. 1928) .......... ..

Linmark Associate~, Inc. v. Willingboro, ~31 U.S. 8 5 (J977) ••••

Lipari v. Se;Jrs, 49 USU.I 2120 (D.C. Neb. 1 ~80) •••••••• , ••••••••

Merchants National Bank & Trust Co. v. Urited States, 272 F. Supp. 409 (D.N.D. 1967) ••••••••••••••••••••••••••••••••••••••••

Milano v. 1-'lclncosh, 168 N.J. Super 466, 403 II. 2d 500 (1979).~.

Nebraska Press Association v. StuCJrt:, 4 '2. 7 TJ.S. 539 (1976) ......

Ohralik v. Ohin State Har llssocic>_tio!1_, 436 U.S. 447 (1978) •••••

Patterson v. Colorado, 205 U.S. 454 (1007) .................... .

Quinn v. A ~ t'.' .. :t Life & Casualty Co., 482 F. Supp. 27 (E.D.N.Y. 1979),

Page

11

5, 13, 14

19

5

7

7, 10, 14

7

6

l3

l3

7

18' 19

19

9

15

5, 7

23

17

27.

5, 10, 12

) ' 7

7

a f [ t1-E£..C~ r i :1~, 616 F • 2 d 3 8 ( 2 d C i r • 1 9 8 0) ••••••••••••••••••••••

Rutledge v. Liability Insurance Industry, 5 Media L~w Rep. 1153 ( V1 • D • La . 19 7 9 ) •••.•• o •••• o ••• o •••• , •••••••••••••••••••••••••••••

Sheppard v. Naxwe11, 384 U.S. 333 (1966)•••••••••••••••••••••••••

Simonsen v. Swenson, 104 Ncb. 22l,, 177 N.\.-t, 331 (1920) •••••••••••

Smi~h v. Driscoll, 94 Wash. 441, 162 p. 572 (1917) •••••••••••••••

State v. Tarbutton·, __ I>el. __ , 407 A.2d 538 (1979) ••••••••••••••

T8rasoff v. Regents of Lhe University of California, 17 Cal. 3d 435, 131 Cal Rptr. 14, 551 P.2d 334 (1976)••••••••••••••••••••••••••••

Virgini;, State Bo.'lrd of Pharmacy v. 1/ir_ginia Citizens Consumer · Council, fnc., 425 U.S. 74H (1976) •••••••••••••••••••••••••••••••

Vistica v. Presbyterian Hospit ~ l, 67 Cal. 2d 465, 62 Cal. Rplr. 577, 432 P.2d 193 (1967)••••••••••ooo•••••••o•••••••••••••••••o••

Young v • .i\mericcin Nini Theatres, 4'?7 lJ.S. 50 (1976) ........... ooo

Constitutional frovisions:

Amendment I ..................................................... Amendn1en t XIV ••••••••••• , ••• , •••••••.••••••••••••••••.••.. .......

Other Authorities:

A1'1A Princ-iples of. Nedical Y.thics ••••••••••••••••••••••••••••••.•.

Gurcvitz, Tarnsoff: Protective Privilege Versus Public Peril, 114 Am. J. Psychology 289 (!' ,arch 1977) •••••••••••••••••••••••••••••••

Harper & Kime, Th-e Duty to Control the Conduct of Another, l,J Yale L.J. t~86 (1934) •••••••••••• ···•••••••••••••••••••••••••••••••••••••

Hatchell, Insur~nce Advcrtisinp --Much Ado About Nothing, 10 St. Mary's Law Journal 439 (1979)•••••••••••••••••••••••••••••••••••••

Kroner, _Jury Tampering-- 1.978 Style, 10 St. Mary's l.a\-7 Journal

399 (1979). ·•·••••·••••••••••••••• •••••••••••••••••••••••.........•

Loftus, Insur<>nce /ldvertisine <mel Jury i\"r;:~rc1s, 65 Al'leric<m Rar Assoc-iation Jnurn ~ l 68 (1979)••••••••••••••••••••••••••••••••••••••••·••·

Prosser, lAW OF TORTS, (4th ed. 1971). ·••••••••••••••••• •••••••••••

Restatement. Seco~d of Torts •••••••••••••••••••••••••••••••• : •••••.

Stone, Suing Psychother<>pists, 90 Harv. L. Rev. 258 (1976) ......... ...

12, 13, 14

12

7

20

21

23

passim

passi~

17

5

passim

7

17

18

16

11, 12

1.4, 15

9

16

20

18

INDEX

AUTHORITIES CITES

QUESTIONS PRESENTED

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

Argument:

I. THE PLAINTIFF WAS ENTITLED TO INJUNCTIVE RELIEF PROHIBITING YO-YO CLINIC'S ADVERTISING CAMPAIGN IN THE IMMEDIATE VICINITY OF THE TRIAL.

A. Plaintiff's Interest In A Fair And Impartial Trial Outweighed The First Amendment Interests At Stake.

1. The Supreme Court has articulated a balancing approach to

PAGE

1.1.

1

2

4

4

4

determine when first amendment speech can be restricted. 4

B.

2 .. The pl~intiff's right to a fair and impartial trial is a compelling state interest. 7

3. Yo-Yo Clinic's advertisements had a serious effect on the plaintiff's right to a fair and impartial trial. 8

4. There were no viable alternatives to an injunction that could preserve the plaintiff's right to a fair and im-partial"trial. 10

Alternatively, The Yo-Yo Clinic's Advertisements Were False And Misleading And Therefore Not Entitled To First Amend­ment Protection.

1.

2.

False and mislead~ng advertisements are not entitled to constitutional protection.

Yo-Yo Clinic's advertisements were false and misleading.

13

13

14

II. THE TRIAL JUDGE· ERRED WHEN HE INSTRUCTED THE JURY THAT A PSYCHIATRIST . . HAS A LEGAL DUTY TO WARN A THIRD PARTY ENDANGERED BY THE PSYCHIA-TRIST'S PATIENT'S BEl~VIOR. 16

A.

B.

Adoption Of The Tarasoff Rule Will Undermine The Psychiatric Relationship.

1.

2.

The Tarasoff duty to disclose requires an unwarranted breach of the psychiatrist-patient confidential relation­ship.

The rationale of the Tarasoff decision is reLarded by its creation of a legal duty to disclose.

Absent A Tarasoff Duty To Disclose, Hyde Has A Claim For Breach Of Implied Contract Of Confidentiality Against Dr. Jekyll.

III. ASSUMING TARASOFF IS ADOPTED BY THE STATE OF CATATONIA, THE TRIAL JUDGE CORRECTLY INSTRUCTED THE JURY AS TO THE STANDARD OF CARE

16

16

17

18

REQUIRED OF DR. JEKYLL. 20

A.

B.

Tarasoff Expressly Requires A Psychiatrist To Satisfy The Negligence Standard Before Disclosing A Patient's Con­fidences.

Other States Which Have Addre~sed The Tarasoff Legal Duty To Warn Have Adopted The Negligence Standard.

QUESTIONS PRESENTED

I.

Whether the trial judge erred when he denied the plaintiff's motion for injunctive relief prohibiting the Yo-Yo Clinic's advertising campaign against high jury awards in the immediate area of the trial.

II.

Whether the trial judge erred when he adopted the Tarasoff legal duty to warn holding in the St'ate of Catatonia.

IIL

20

22

Whether the tria1 judges, assuming that Tarasoff is adopted in the State of Catatonia, correctly instructeq the jury that Dr. Jekyll was liable to Mr. Hyde if Dr. Jekyll fail ed to exercise reasonable care when he determined Mr. Hyde was dangerous and disc]~sed his confidences.

CONCLUSION 24

-1-

STATEMENT OF THE CASE

This case originated as a medical malpractice suit brought by plaintiff Run

N. Hyde against co-d"efendants Dr. Hekyll Jekyll and the Yo-Yo Clinic in the

district court for the County of Rockabye. Dr. Jekyll is a psychiatrist prac­

ticing in Catatonia and a member of the Yo-Yo Clinic. Yo-Yo Clinic is a partner­

ship of psychiatrists and psychologists specializing in the treatment of mental

disorders. Hyde has been the second-choir violinist for the Rockabye Symphony

Orchestra for the past five years.

Two years ago Hyde was adjudged a danger to himself and others and civilly

committed to the Rockabye Repositor. Hyde's case was assigned to Dr. Jekyll.

After six months of treatment, Hyde was released from full-time confinement and

resumed his musical career. Several months ago, when the first-choir violinist

position was vacated, Hyde was passed over in favor of Ludwig Vivaldi. Subse­

quently, Hyde went into a severe depression and confided to Dr. Jekyll that he

was considering a suicide attempt or harming Vivaldi. Dr. Jekyll was not alarm­

ed by this disclosure until Hyde missed his next therapy session. Dr. Jekyll

then decided Hyde wa~ a serious threat to Vivaldi.

Dr. Jekyll decided to consult Dr. Wellbe, Chief of Psychiatrists at the

Rockabye Repositor. ·.·Dr. Well be reviewed Hyde's case and concluded Hyde posed no

danger to himself or to Vivaldi. Dr. Wellbe strongly urged Dr. Jekyll not to

issue a warning that Hyde was at large and potentially dangerous.

Dr. Jekyll ignored Dr. Wellbe's advice and notified Vivaldi and the

director of the Orchestra of Hyde's threat. At Jekyll's request 1 the Lushland

Police Force apprehented Hyde and questioned him. The police decided Hyde was

harmless and released him.

-2-

Hyde reappeared at the Orchestra only Lo find he was ostracized. Subse­

quently, Hyde became. severely depressed and attempted suicide by driving off the

unfinished Luten Bridge. Although Jiyde survived the crash, the entire left side

of his body is now paralyzed. The paralysis is permanent, and Hyde will never

be able to play the violin again. In his suit for damages, Hyde requested 1.75

million dollars.

In~ediately prior to Hyde's trial, the Yo-Yo Clinic initiated an adver­

tising campaign designed to alert the public, and potential jurors, to the

alleged effect of h1gh jury awards in malpractice cases on the costs of medical

treatment. Hyde moved the trial court for injunctive relief prohibiting the

Yo-Yo Clinic from undertaking its advertising campaign in the immediate area of

the trial. Judge Ereund denied the motion on the ground that less restrictive

alternatives than injunctive relief could be used to protect Hyde's right to a

fair trial. The advertising campaign proceeded as planned . . The trial judge instructed the jury on the standard of care required of Dr.

Jekyll under Tarasoff v. Regents of the University of California. The jury

returned a general verdict for Hyde, but only awarded him $51,000. The plain­

tiff moved for a new trial on the ground the jury award was unreasonably low, . due to the prejudice on the part of jurors who read or heard the Clinic's adver-

tisements. Judge Freund denied the motion. Plaintiff appeals for a new trial

on the ground Judge Freund ennoneously denied the plaintiff's pretrial motion

for injunctive relief.

SUMMARY OF ARGUMENT

I.

Hyde's right to a fair ' and impartial trial is a compelling state interest.

-3-

Pursuant to the constitutionally mandated balancing approach, Hyde's right to a

fair trial must be ~eighed again~t the first amendment interest of Yo-Yo Clinic

to publish advertisements dealing with hjgh jury awards in malpractice cases.

When this test is applied, Hyde's right to a fair trial prevails.

First, the Clinic's advertisements had a serious effect on Hyde's right to

a fair trial before an impartial jury. More importantly, it was obvious prior

to the trial that the advertisements were likely to have a serious effect on the

neutrality of the jury. Second, there were no less restrictive alternatives to

an injunction that could have been utilized to protect Hyde's constitutional

right. Hence, the court was obligated to issue a limited injunction to prevent

interference with the integrity of the judicial process. Because of the trial

court's failure to·issue an injunction, justice can only be served if a new

trial is ordered.

Alternatively, false and misleading advertisements are not protected by the . first amendmenl. Yo-Yo Clinic's advertisements were not entitled to constitu-

tional protection because they were false and misleading. The trial court

should have issued an injunction to interdict the prejudicial effect of the

advertisements.

II.

The trial judge erred when he adopted the decision of Tarasoff v.

Regents of the University of California into Catatonia law. Under Tarasoff, a

psychiatrist has ~ legal duty to warn a third party endangered by the

psychiatrist's patient's behavior. The State of Catatonia should not adopt

Tarasoff because: 1) it encourages violations of the confidential relationship

between a psychiatrist and his patient, 2) it relies on predictions of dan-

-4-

gerousness which are unreliable, 3) it will deter psychiatric patients from

seeking help and thereby increas~ the risk of harm to society and 4) the concept

of a duty to warn and a standard for · the reasonable therapist to follow are

difficult to define.

III.

Assuming that the trial judge correctly adopted Tarasoff, he properly

instructed the jury .as to the standard of care required of Dr. Jekyll. Tarasoff

requires a psychiatrist to exercise that reasonable degree of skill, knowledge

and care ordinarily possessed and exercised by members of the psychiatric pro-

fession under similar circumstances. .Additionally, the jurisdictions adopting

Tarasoff have opted for the negligence standard because it strikes a better

balance between the privacy interests of the patient and the psychiatrists duty

to protect the public from violent or dangerous individuals.

ARGUMENT

I. THE PLAINTIFF WAS ENTITLED TO INJUNCTIVE RELIEF PROHIBITING YO-YO CLINIC'S ADVERTISING CAMPAIGN IN THE IMMEDIATE VICINITY OF T}lli TRIAL.

A. Plaintiff'~ Interest In A Fair And Impartial Trial Outweighed The First Amendment Interests At Stake.

1. The Supreme Court has articulated a balancing approach to deter­mine ~hen first amendment speech can be restricted.

The Supreme Court recently established a balancing test for .determining

when speech protected ·by the first amendment can be regulated. This balancing

approach ap~lies to both political and commercial speech. However, the strict-

~ss of the balancing approach varies according to the type of speech involved.

-5-

The Supreme CourL has consistently denied that the first amendment right to

free speech is absoiute. Nebraska Press Association v. Stuart, 427 U.S. 539,

570 (1976). For example, reasonable regulations of time, place, and manner of

protected speech are permitted where those regulations are necessary to further

significant governmental interests. Bates v. State Bar of Arizona, 433 U.S.

350, 384 (1977); Young v. American Mini Theatres, 427 U.S. 50, 63 (1976). The

type of regulation of protected speech that will be validated depends, in many

instances, on whether the speech can be classified as commercial speech.

In 1975 the Court ruled that speech is not stripped of first amendment

protection merely because it appears in the form of a paid advertisement.

Bigelow v. Virginia, 421 U.S. 809, 818 (1975). Later, the Court found that even

pure commercial speech enjoys a degre~ of first amendment protection.

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.,

425 u.s. 748, 762 (1976).

Even though commercial speech is protected by the first amendment, there is

a serious question as to the extent and dimension of this protection. As a

general rule, commercial speech is afforded a limited measure of protection

commensurate with i~~ subordinate position in the scale of first amendment

values. Ohralik v. Ohio State Bar Association, 436 U.S. 447, 456 (1978);

Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 98 (1977). Thus, modes of

regulation that might be impermissible in the realm of noncommercial expression

· may be permissible when the protected speech contains elements of commercial

expression. Ohralik, 436 U.S. at 456.

More importantly, there is no clear dividing line between commercial speech

and speech conveying a political or social message. The diverse motives, means,

and messages of advertising make speech "commercial in widely varying degrees."

Bigelow, 421 U.S. at 826. Because of the difficulty in drawing stri~t guide-

-G-

l j' 90 . ' , .... u

';if') / .:! 9 -.~ ~ t..t~~J u t

lines as to the level of constitutional protection to be granted to different

types of commercial ·and quasi-co~mercial expression, the Courl declined to

decide the extent to which protection is afforded commercial advertising under

all circumstances. Id. Instead, the Court held that in any case involving

freedom of speech a court must weigh the first amendment interest at stake

against the public interest allegedly served by the regulation. Consequently,

advertising, like all public expression, may be subject to reasonable regulation

that serves a legitimate public interest. Id.

The Supreme Court elaborated upon the balancing test in Virginia

State Board of Pharmacy, stating it would approve of restrictions on commercial

speech provided the restrictions: (1) are justified without reference to the

content of the regulated speech, (2) ~erve a significant governmental interest,

and (3) leave ample alternative channels for the communication of information.

425 U.S. at 771. Therefore, two requirements must be satisfied before an in-

junction can be issued. First, the challenged speech must pose an actual threat

to a compelling state interest. Second, the opponents of the advertisements

must demonstrate that no less restrictive alternatives exist. First

Nationa+ Bank of Boston v. Bellotti, 435 U.S. 765, 787-788 (1978).

To determine what impact the Yo-Yo Clinic's advertisements had on the

plaintiff's trial, it is necessary to evaluate the commercial and nonco~nercial

nature of those advertisements. The advertisements in question do not represent

·pure co~nercial speech because they convey a message of some social and

political importanc~. For example, some readers might not have previously

understood the alleged relationship between jury awards and insurance premiums.

In addition, the advertisements do not propose a mere economic transaction.

Nevertheless, the advertis ements do contain commercial components and must be

viewed as a combination of commercial and noncommercial speech.

-7-

The expression in this case takes the form of a paid advertisement. Al-

though the degree of· protection accorded the advertisemenls is not lessened by

this fact alone, Buckley v. Valeo, 424 U.S. 1, 51 (1976), this fact suggests

that the advertisements were designed to serve the economic purpose of convin-

cing the public, and particularly the jurors who were to decide the plaintiff's

recovery, it would be in their best interest to reach a low jury award. In

short, the defendant's economic i~terests were served by implying to the public

and potential jurors that the costs of insurance premiums could be reduced if

there was a correlated reduction in jury awards. As a result, the Clinic's

advertisements also cannot be viewed as pure commercial speech. They are there-

fore not entitled to the full protection afforded political or social expression

since commercial speech in any form is entitled to only a limited measure of

protection. Ohralik, 436 U.S. at 456; Linmark Associates, Inc., 431 U.S. at 98.

2. The plaintiff's right to a fair and impartial trial is a compel­ling state interest.

The due process clause of the fourteenth amendment requires that a jury,

when employed, be im~artial. Chicago Council of Lawyers v. Bauer, 522 F.2d 242,

248 (7th Cir. 1975), cert. denied, 427 U.S. 912 (1976). Hence, an individual

before a court posse~ses a fundamental right to have all decisions made by an

impartial decision-maker. Goldberg v. Kelly, 397 U.S. 254, 271 (1970);

Patterson v. Colorado, 205 U.S. 454, 462 (1907). This fundamental right is

predicated on the theory that conclusions reached in a case must rest only on

Lhe evidence adduced at trial. Patterson, 205 U.S. at 262.

Courts have a duty to insure fair and impartial trials. Estes v. Texas,

381 U.S. 532, 540 (1965). In cases where there is a serious likelihood of

prejudicial outside interference, courts must take steps to protect these

processes. Sheppard v. Maxwell, 384 U.S. 333, 363 (1966).

Applying these standards to the case at bar, the Clinic's advertisements

were an outside influence that m~y have had a serious effecL on the plaintiff's

right to a fair trial. Since the fairness of a trial depends upon the main-

tenance of impartiality, the preservation of neutrality at trial is a compelling

governmental interest within the meaning of the Virginia State Board of Pharmacy

standard. The trial court was therefore obligated to apply the Supreme Court's

balancing test when deciding whether to issue an injunction.

In the present case, Hyde's fundamental right to a fair trial must be

weighed against the ·first amendment interests of boLh the Yo-Yo Clinic and the

public. Virginia State Board of Pharmacy, 425 U.S. at 756-757. Accordingly,

the trial court could issue the injuction only upon a showing that the

advertisements were likely to have a serious effect on Hyde's right to a fair

trial.

3. Yo-Yo Clinic's advertisements had a serious effect on the plaintiff's right to a fair and impartial trial.

The Clinic's advertisements denied Hyde his right to a fair trial by

implanting a prejudicial attitude against the plaintiff in the minds of the

potential jurors, thereby inducing jurors to award damages in an amount less

than that proved by the trial evidence.

In 1977, Dr. Elizabeth Loftus conducted an experiment in which half her 86

·subjects were exposed to advertising equating high jury awards with increased

insurance premiums .. The subjects were then asked to sit as mock jurors and

award damages in an automobile accident case. The subjects who had been exposed

to the advertisements awarded a lower amount than those who had not been

exposed. Dr. Loftus concluded than even a single exposure to the insurance

companies' advertisements dramatically lower the amount of award a j~ror is

-9-

willing to give. Loftus, Insurahce Advertising and Jury Awards, 65 American Bar

Association Journal "68, 69 (1979).

llyde originally demanded money damages in the amount of 1.75 million

dollars. Yet, even ~hough the jury found the defendants were liable for the

plaintiff's injuries, they returned a verdict for only $51,000. The large

discrepancy between the damages sought by Hyde and the award granted by the jury

indicates that the advertisements. had a prejudicial effect. In fact, the

$51,000 award barely covered the plaintiff's actual medical expenses of $48,000.

As a result, the defendant has only received $3,000 as compensation for the

complete paralysis of the left side of his body. The damage award is extra-

ordinarily inadequate to recompense the plaintiff.

Moreover, the-advertisements in question here were published in an attempt

to influence potential jurors and to harm the plaintiff's chances for equitable

compensation. Although the advertising campaign was originally scheduled to

begin four weeks after the date of Hyde's trjal, the Clinic decided to accele-

rate its campaign so that the advertisements might influence jurors at Hyde's

trial. In addition, one advertisement appeared on the billboard located

directly across the street from the Rockbridge County Courthouse. Obviously, . the Clinic's motive was to prejudice potential jurors against awarding Hyde his

large, but just, compensation.

Normally, the purpose or motive of the speaker is not central to first

amendment protection. Nevertheless, motive does bear on the distinction between

conduct that is protected and other activity that is subject to regulation.

In Re Primus, 436 U.S. 412, 438 n. 32 (1978). The motive of the speaker should

be considered when drawing a line between protected speech and speech subject to

regulation. Id. Thus, Yo-Yo Clinic's motive is a factor to be considered under

the Virginia State Board of Pharmacy equation.

-10-

The Supreme Court has so far declined to spell out which constitutional

right will prevail ~hen free spe~ch rights conflict with an individual's right

to a fair trial. See, Nebraska Press Association v. Stuart, 427 U.S. 539

(1976). Other courts have ruled the right of free speech must give way to the

right of a fair trial when there is a irreconcilable conflict. In

Chicago Council of Lawyers, 522 F.2d at 248, the Seventh Circuit held that when

irreconcilable conflicts arise, the right to a fair trial must take precedence

over the right of lawyers to make comments about pending litigation if such

comments are apt to severely threaten the integrity of the judicial process.

Thus, when a court examines less restrictive alternatives to an injunction,

special attention must be paid to the fact that the right to a fair trial

prevails over the right of a party to .comment on pending litigation.

4. There were no viable alternatives to an injunction that could preserve the plaintiff's right to a fair and impartial trial.

Prior to his trial, Hyde sought an jnjuction proscribing Yo-Yo Clinic's

advertising in the immediate vicinity of the Rockabye County Courthouse. The

barrier to such a pr~or restraint on expression remains high, and any prior

restraint carries with it a heavy presumption against its constitutional

validity. Nebraska Press Association, 427 U.S. at 558. Nonetheless, the

Supreme Court has consistently rejected the proposition that a prior restraint

can never be employed. Id. at 570.

In Nebraska Press Association, the Court listed the alternatives to prior

restraint: (1) ch_ange of venue, (2) postponement of the trial to allow public

attention to subside, (3) searching questions of prospective jurors (voir dire),

and (4) the . use of emphatic and clear jury instructions. 427 U.S. at 563. None

of these alternatives safeguarded or would have safeguarded Hyde's right to a

fair trial.

-.I l-

The trial court did not o~der a change in venue or a postponement of the

trial. Regardless, ·neither of these measures would have sufficed under the

circumstances. If a change of venue ·occurred, it would have been just as easy

for the Yo-Yo Clinic to advertise in the vicinity of the new trial location as

il would for them to advertise near the Rockabye County Courthouse. A post­

ponement would have been ineffectual because public attention was brought to

bear on high jury awards by the c~lculated advertising of the defendant. In

short, the Clinic could seek to raise the issue of high jury awards and their

effect on medical costs wherever and whenever it wanted.

The trial court permitted voir dire examination concerning the possible

prejudical effect of the defendant's advertising. This voir dire was

inadequate. All the veniremen stated.they had seen or heard local

advertisements regarding high jury awards and that they all thought jury awards

generally had an effect on the cost of insurance premiums. More importantly, . all but three veniremen indicated they believed a high jury award in Hyde's case

would affect their insurance premiums or the price charged by Dr. Jekyll for his

services. Even though all the jurors responded that they would render a verdict

based solely on the ~vidence produced at trial, the prior responses of the

veniremen raise serious doubt as to the impartiality of their verdict.

In cases involving calculated insurance company advertising, voir dire does

not protect a party from the prejudicial effect of the advertising. Questioning

· about the advertisements may only serve to reinforce their content to the

veniremen. By broaohing the subject with the jury panel the plaintiff's counsel

risks implanting in the jurors' minds the very attitude he seeks to ferret out.

Barton v. Owen, 71 Cal. App. 3d 484, 508, 139 Cal. Rptr. 494, 508 (1977);

Hatchell, Insurance Advertising -Much Ado About Nothing, 10 St. Mary's Law

Journal 439 (1979). Also, people are generally reluctant to admit openly,

-12-

particularly in a crowded courtroom, that their prior attitudes could cause them

to be unfair to one ·party or the' other. Hatchell, supra, at 439. For similar

reasons, an instruction by the judge telling jurors to disregard the advertis~­

ments is prejudicial to the plaintiff. In the final analysis, the only possible

course of action that would have preserved Hyde's right to a fair trial was an

injunction forbidding Yo-Yo Clinic's advertising near the Rockbridge County

Couthouse.

At this point two recent cases denying injunctive relief must be

distinguished. In Quinn v. Aetna Life & Casualty Co., 482 F. Supp. 22, 25

(E.D.N.Y. 1979), aff'd per curiam, 616 F.2d 38 (2d Cir. 1980), the district

court refused to enjoin two advertisements which the defendant published in

Newsweek and New Yark Magazine. Simi~arly, in Rutledge v. Liability

Insurance Industry, 5 Media Law Rep. 1153, 1155 (W.D. La. 1979), advertisements

published in the Wall Street Journal and the Business Insurance Journal were not . enjoined. In both these cases the courts relied on the Supreme Court opinion in

Nebraska Press Association to deny injunctive relief. The courts reasoned the

speech involved was fully protected political expression. What the courts

failed to do was apply the constitutionally mandated balancing test . . In addition, the plaintiff's in Quinn and Rutledge attempted to enjoin

advertising in national publications. Equitable relief of this type would

involve a substantial infringement on the first amendment righls of the in-

. surance companies and the public. In Hyde's case, the injunction was only

sought with respect .to advertising in the immediate area of the Courthouse. The

injunction enlailed an extremely limited infringement upon the first amendment

rights of the Clinic and the public. Even if the injunction was issued, ample

channels for communication of information to the general public were left open.

Virginia State Board of Pharmacy, 425 U.S. at 771. The limited regu~ation of

the Clinic's advertisements ·was therefore justified.

-13-

Further, the Quinn court stated . the case before it only involved adver-

tisements directed at the genera'l public and not at Lhe jurors in a particular

case. The Court asserted it need not consider the case where injunctive relief

is sought to preclude insurance companies from advertising directly to people

called for jury duty. 428 F. Supp. at 29, n. 4.

Finally, a recent Supreme Court case suggests that where there is a direct

assault upon the jurors, the balapcing between free speech and a fair trial

weighs heavily on the side of a fair trial. Gannett Co. Inc. v. DePasquale,

443, U.S. 368 (1979). In Gannett, the Court found a trial judge has a constitu-

tional duty to safeguard the due process rights of an accused to a fair trial.

Id. at 378-379. Although the Gannett case involved a criminal defendant, the

rationale of the case can logically b~ extended to the civil context.

In conclusion under the constitutionally mandated balancing standard the

only feasible remedy was an injunction. As a result of the trial court's

failure to issue an injunction, Hyde is entitled to a new trial betause he was

denied his right to a fair trial at the initial adjudication.

B. Alternatively, The Yo-Yo Clinic's Advertisements Were False And Mis­leading And Therefore Nor Entitled To First Amendment Protection.

1. False and misleading advertisements are not entitled to constitu­tional protection.

Untruthful speech is not protected by the Constitution. Friedman v.

Rogers, 440 U.S. 1, 13 (1979); Virginia Stale Board of Pharmacy, 425 U.S. at

771. Specifically, the State may regulate any advertising or commercial speech

that is false, dec~ptive, or misleading. Friedman, 440 U.S. at 9; Bates

v. State Bar of Arizona, 433 U.S. 350, 383 (1977). The difference between

government regulation of misleading commercial speech and misleading political

speech is that greater latitude is given to misleading noncommercial speech.

-14-

The people in our democracy are entrusted with the responsibility of judging and

evaluating the relative merits o1 conflicLing arguments. FirsL National

Bank of Boston v. Bellotti, 435 U.S. 764, 791 (1978). The rules of the game

change when commercial speech is involved.

A greater degree of regulation is needed to insure the flow of truthful

commercial speech. The truth of commercial speech is more easily verifiable by

its disseminator than is poli tica.l commentary. Ordinarily an advertiser seeks

to disseminate information about a specific service or product within his field

of expertise. Virg{nia State Board of Pharmacy, 425 U.S. at 771 n. 24. Since

laymen lack the sophistication and information required to determine whether an

advertisement is misleading, a higher degree of regulation is appropriate in the

area of advertising. Bates, 433 U.S. at 383 n. 37.

2. Yo-Yo Clinic's advertisements were false and misleading.

As already stated, the Yo-Yo Clinic's advertisements contained elements of

both commercial and noncommercial speech. However, the fact that the speech

appeared in the form of a paid advertisement. subjects the speech to closer

examination than if the speech was political or purely noncommercial. Bates,

433 U.S. at 383 n. 37; Virginia State Board of Pharmacy, 425 U.S. at 771 n. 24.

The advertiseme·nts were misleading and deceptive in several ways. First,

the advertisements were designed to deceive potential jurors into believing the

present toit compensation system is in a state of crisis. Careful omissions

misled the jurors into believing the tort system provides windfall verdicts to

undeserving parties. Quinn v. AeLna Life & CasualLy Co., 96 Mis~. 2d 545, 409

N.Y.S. 2d 474, 478 (Sup. Ct. 1978). There is no basis for making such an out­

rageous claim. Large judgments are not necessarily excessive. In most in­

stances large judgments are just compensation for grievous injuries suffered by

-15-

Lhe plaintiff. Lahti v. McMenamin, 268 P. 644; 646-47 (Cal. Sup. Ct. 1928);

Kroner, Jury Tampering- 1978 SLyle, 10 St. Mary's Law Journal 399, 413 (1979).

Second, the insurance advertise~ents are misleading to the extent they

imply safeguards do AOt exist. Quinn, 409 N.Y.S. 2d at 478. The judicial

system has adequate safeguards to prevent a plaintiff from receiving more than

is fair and just. The Court may order a remittitur or a new trial if it be­

lieves the verdict was based on sympathy or prejudice rather than the plain­

tiff's actual injuries. Id., Kroner, supra at 413.

Finally, the advertisements were misleading in their implication that

increases in jury verdicts have necessitated higher premiums and medical costs.

The only people with the statistical information available to reach such a

conclusion are the 'insurance companies, and they are unwilling to part with any

of their valued knowledge. It is therefore impossible for the public to judge

for itself whether ~here is a correlation between large jury awards and

increased medical costs and insurance premiums. Thus, it becomes necessary for

the government to intervene on behalf of the public to ascertain whether the

advertisements in question should be regulated.

In conclusion, ~he Yo-Yo Clinic's advertisements were misleading and not

entitled to complete first amendment protection. This alone allows the govern­

ment to regulate th~ . advertising. Moveover, when the constitutional balancing

test is applied, the plaintiff!s right to a fair trial clearly otitweighs the

defendant's first amendment right to promulgate misleading advertisements. An

injuction should ha~e been issued by the trial court to negate the effect of the

misleading advert~sements.

-HJ-

II. THE TRIAL JUDGE ERRED WHEN liE INSTRUCTED THE JURY THAT A PSYCHIATRIST HAS A LEGAL DUTY TO WARN A Tl!IRD PARTY ENDANGERED BY THE BEHAVIOR OF THE PSYCHIATRIST'S ·PATIENT.

A. Adoption Of The Tarasoff Rule Will Undermine The Psychiatric Relation­ship

1. The Tarasoff duty to disclose requires an unwarranted breach of the psychiatrist-patient relationship.

In Taraso££ v. Regents of the University of California, 17 Cal.3d 425, 131

Cal. Rptr. 14, 551 P. 2d 334 ·(1976), the California Supreme Court held that a

psychotherapist owes an affirmative duty to use reasonable means to protect

third parties endangered by a patient under the psychotherapist's treatment. In

reaching this conclusion, the Tarasoff court balanced a patient's right to

confidentiality against the likelihood of harm which society will suffer if the

patient is dangerous and determined ttiat the former should yield to the latter.

551 P.2d at 347. The Tarasoff decision is erroneous and should not have been

adopted by.the tria} court in the instant case.

At common law, one was under no duty to control the conduct of another or

to warn another of danger. PROSSER, LAW OF TORTS, §56 at 348 (4th ed. 1971);

See Harper & Kime, The Duty to Control the Cpnduct of Another, 43 YALE L.J. 886,

887 (1934). Because•of the moral questionability of not encouraging one member

of society to act to benefit others, an exception to the common law rule

developed. Id. § 56'· at 348. This exception hinged on a "special relationship"

between an individual and the party whose conduct needed to be controlled or an

individual and the foreseeable victim of that conduct. Id. § 56 at 349. If

this special relationship existed one could be held liable for failing to act

when reasonable standards dictated he should have acted. RESTAT~MENT, SECOND OF

TORTS , § 314 .

The California court in Tarasoff determined that the psychiatrist-patient

relationship satisfies the "special relationship" exception to the common law

-17-

rule. Accordingly, Tarasoff held that liability may be imposed upon a psychia-

trist when he fails 'to determine', pursuant to the standards of the profession

that a third party is endangered by the behavior of the psychiatrists' patient

and should be warned. 551 P.2d at 343. The Tarasoff court failed to consider

properly the nature of the psychiatrist-patient relationship in reaching this

conclusion.

The pyschiatrist-patient rel~tionship is one which requires honesty, truth

and confidentiality. A psychiatrist must obtain all the information available

concerning a patient. Often this information is humiliating, embarrassing and

anxiety provoking to the patient. In order to allay a patient's fears regarding

the dissimination of this information the psychiatrist, pursuant to AMA Princi-

ples of Ethics pro~ises conditionally .not to reveal these confidences. AMA

P~inciples of Medical Ethics § 9 (1957).

The court in Tarasoff seized upon this conditional covenant not to disclose

and reasoned that a legal duty to warn arises. 551 P.2d at 345. The problem

with their reasoning is that the cases which they cite to support a duty to

disclose involve verifiable physical diseases, actual knowledge on the part of

the physician that t~e patient was ill or dangerous, or cases where the defen­

dant had actual physical control over the patient. See, Merchants

National Bank & Trust Co. v. United States, 272 F. Supp. 409 (D.N.D. 1967);

Vistica v. Presbyterian Hospit~l, 67 Cal.2d 465, 62 Cal. Rptr. 577, 432 P.2d 193

· (1967). Neither in Tarasoff nor the instant case are these conditions

satisfied. Thus, the Tarasoff court erred in finding a legal duty to warn and

the trial court in this case committed reversible error by applying Tarasoff.

2.. The rationale of the Tarasoff decision is retarded by its crea­tion of ·a legal duty to disclose.

-18-

The California Supreme Court's rationale for determining that a psychia-

trist owes an affirmative duty tb a third party was protection of the third

party or the public. Tarasoff, 551 P.2d at 347. However, there is considerable

controversy over whether the Tarasoff duty to warn accomplishes this end. Among

the negative factors which a Tarasoff duty to disclose engenders are: 1)

over-predictions of dangerousness by psychiatrists to save themselves from tort

liability, 2) an increase in the number of violent people on the streets because

these people will not seek medical assistance when they know their psychiatrist

has a legal duty to disclose confidential information, and 3) difficulties

connected with setting up a standard to judge the reasonabl eness of a psychia-

trist's actions. Gurevitz, Tarasoff: Protective Privilege Versus Public Peril,

134 AM. J. PSYCHOLOGY 289 (March 1977~; Stone, Suing Psychotherapists, 90 HARV.

L. REV. 258 (1976). It appears from a survey of psychotherapists taken subse-

quent to Tarasoff that many of these fears concerning imposing a legal duty to

warn on psychiatrists have been borne out. For example, 25% of the

psychiatrists reported that some of their patients were reluctant to speak when

they were told by the psychiatrist that he had a duty to disclose their

confidences in some situations. Note, Where the Public Peril Begins, 31 STAN.

L. REV. 165 (Nov. 1978). For these reasons Tarasoff should not be adopted in

Catatonia.

B. Absent A Tarasoff Duty To Disclose, Mr. llyd e Ha s A Claim For Breach Of An Implied Contract Of Confidentiality Against Dr . Jekyll.

Several jurisdictions, in addition to Ca t a tonia have recognized that a

patient has a cause of action against his psychiatrist for breach of the con-

fidential relationship. The case of Hague v. Williams, 37 N.J. 328, 181 A.2d

345 (1962) is illustrative. In Hague the plaintiff's child was examined by a

--- ~-,~~ ~~ ---

-19-

doctor and found to have a pathological heart defect, from which she later died.

As a result of the death, the plaintiff attempted to recover on a life insurance

policy on the child, but was defeated because the doctor informed the insurance

company about the pathological heart problem. This defect barred recovery under

the policy. As a result of this disclosure by the doctor, plaintiff sued the

doctor for breach of the confidential relationship between physician and

patient. The New Jersey Supreme ~ourt recognized a cause of action for breach

of the confidential relationship but denied the plaintiff recovery because the

doctor was required by law to give the information to the insurance company.

Hague and the other cases which recognize an action for breach of the

confidential relationship illustrate that the confidentiality of the

psychiatrist-patient relationship is GOnditional, not absolute, and may be

breached when the safety of an individual or the public is endangered.

Han~onds v. Aetna Casualty & Surety Co., 243 F. Supp. 793 (N.D. Ohio 1965),

(action for breach of confidentiality recognized, but denied due to testimonial

privilege:); Berry v. Moench, 8 Utah 2d 191, 331 P.2d 814, (1958), (action for

breach of confidentiality recognized, but denied due to intervening societal

interest which excus~s disclosure); Simonsen v. Swenson, 104 Neb. 224, 177 N.W.

331 (1920), (action for breach of of confidentiality recognized, but denied

because doctor was required pursuant to statute to disclose contagious

diseases.) However, Dr. Jekyll's disclosure of Hyde's confidence to Vivaldi,

the orchestra leader and the police was not privileged because Dr. Jekyll: 1)

did not have actual·knowledge of Hyde's dangerousness, 2) was not required by

law to disclose and 3) did not have control over l~de.

The standard by which these disclosures are measured was set forth in

Simonsen. .In that case the Nebraska court held tha the doctor was not liable

for his disclosure that the patient had syphillis because, "he made p.o further

-20-

disclosure than was reasonably necessary under the circumstances and he acted in

good faith and wilhout malice." · 177 N.W. at 833. Commenl (e) of Section 314 of

the RESTATEMENT SECOND OF TORTS also ·opts for the negligence standard. Applying

these standards to the instant case reveals that Dr. Jekyll's breach of the

confidential relationship was not privileged because he failed to limit his

disclosure to those people who had a legitimate reason to know Lhe confidence:

he revealed the confidence to the orchestra director. Any interest which the

orchestra leader had in knowing Mr. Hyde's condition is reasonably outweighed by

the confientiality 6f the psychialrist-patient relationship. Accordingly, the

disclosure fails to meet the test set up in Simonsen v. Swenson, supra and §

314(e) of the Restatement. Thus, Dr. Jekyll is liable to Mr. Hyde for breach of

the confidential relationship and Mr. _Hyde can recover damages from Dr. Jekyll

to the extent of his injuries from the disclosure.

III. IF THE STATE OF CATATONIA IS TO ADOPT TARASOFF, THE TRIAL JUDGE CORRECTLY INSTRUCTED THE JURY REGARDING Trill STANDARD OF CARE REQUIRED OF DR. JEKYLL.

A. The Language In Tarasoff Expressly , Requires A Jury To Apply The Standard Of Care Of The Reasonable Psychiatrist In The Community.

In discussing the standard of care required of a psychiatrist before he is

permitted to disclose a patient's confidence, the Taraso££ court is explicit.

The court states:

"the therapist need only exercise that reasonable ledge and care ordinarily possessed and exercised fessional specialty under similar circumstances.:

degree of skill, know­by members of the pro-

551 P.2d at 345.

This standard is clearly objective. Good faith or lack of malice is simply not

enough to satisfy this standard. The psychiatrist must exercise jud~ment which

-2.1-

is reasonable when measured against other psychiatrists practicing under similar

circumstances. Only if a psychi~trist can satisfy this objecLive standard, is

he privileged to disclose a patient's confidence. If the psychiatrist fails to

satisfy this objective standard, he is liable to his patient for damages to the

extent the disclosure harmed his patient. See, Smith v. Driscoll, 94 Wash. 441,

162 P. 572 (1917) (court held that breach of confidentiality by physician gives

rise to action for damages by pat~ent).

This objective standard applies regardless of whether the psychiatrist did

in fact determine that his patient was dangerous or reasonably should have

determined that his patient was dangerous.

In this regard Tarasoff states:

''Once a therapist does in fact determine, or under applicable pro­fessional standards reasonably should have determined that a patient poses a serious danger of violence to others, he bears a duty to exercise reason­able eare to ptotect the foreseeable victim of Lhat danger.'' 551 P.2d at 345.

Dr. Jekyll determined that Mr. Hyde was dangerous. Accordingly, Dr. Jekyll

breached his confidential relationship with Mr. Hyde and notified the alleged

victim and others that Mr. Hyde was dangerous. There was sufficient evidence at

trial from which the jury could have concluded that this determination by Dr.

Jekyll did not meet ·~he objective standard required by Tarasoff. For example,

Dr. Jekyll only made a few telephone calls in his attempt to locate Mr. Hyde.

Dr. Jekyll went to see Dr. Wellbe, Head of the Psychiatry Department, to ask his

opinion on what to do about Mr. Hyde. Dr. Wellbe told Dr. Jekyll that Mr. Hyde

was harmless and that no warings should be given. In spite of tqis recommenda-

tion Dr. Jekyll went ahead and breached Mr. Hyde's confidence. Further, Dr.

Jekyll failed to be as 'discreet as he reasonably should have been once he deter-

mined that Mr. Hyde was dangerous. Dr. Jekyll could have lefL a message wiLh

-2:2-

Lhe arches tra leader to call him if he located Mr. Hyde. He needn't have

informed the orchestra leader or Mr. Hyde's dangerousness. This disclosure to

the orchestra leader violates the language and spirit of Tarasoff.

Specifically, the California court stated:

''the therapists obligation to his patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others and even then that he do so discreetly and in a fashion that would preserve the privacy of his patient to the fullest extent ... " 551 P.2d at 347.

From all the evidence adduced at trial it is clear that the jury could

reasonably have found that Dr. Jekyll failed to meet the negligence standard.

Thus the jury's findings of liability should stand.

B. Other States Which Have Addressed The Tarasoff Legal Duty To Warn Have Adopted The Negligence Standard ..

Few courts have addressed the issue of a psychiatrist's legal duty to warn.

However, every decision which addressed the issue, adopted the same standard as

Tarasoff adopted: namely the negligence standard. The New Jersey case of

Hilano v. Mcintosh, 168 N.J. Super. 466, 403 A.2d 500 (1979) is germane as the

facts are similar to those in Tarasoff.

In Milano, a psychiatrist's patient killed a girl who the psychiatrist knew

was the object of his patient's anxiety. In discussing whether or not the

·psychiatrist had a duty to disclose to the victim the court noted:

"A psychiatrist or therapist may have a duty to take whatever steps are reasonably n~cessary to protect an intended or potential vi~tim of his patient when he determines or should determine in accordance with standards established at ttial that his patient is dangerous. 403 A.2d at 503.

T~ language employed by the Milano court is clearly negligence lang~age which

is in accord with the objective standard set forth in Tarasoff.

-24-

CONCLUSION

For the reasons· set forth above, the plaintiff respectfully requests that

the judgment of the district court for the County of Rockabye be vacated, and

the case be remanded for a new trial.