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During the past year, the Texas Supreme Court has issued few opinions that affect plaintiffs attorneys. In light of the perception that the current state Supreme Court is a bit defense-oriented, this is probably welcome news for the plaintiffs bar. But the court did make law in one area of great interest to plaintiffs lawyers: intentional infliction of emotional distress (IIED). Not surprisingly, the new law as articulated by the court favors defendants. In Hoffman-La Roche Inc. v. Zeltwanger (2004), the court reversed a $9.5 million intentional infliction of emotional distress award. Here’s how the Texas Supreme Court laid out what happened: Joan Zeltwanger worked as a sales representative for pharmaceutical giant Hoffmann-La Roche. Zeltwanger sued Hoffmann-La Roche in Dallas County district court, asserting three theories of recovery: a claim for sexual harassment in violation of the Texas Commission on Human Rights Act, a claim for retaliation under Texas Labor Code 21.055, and a common-law claim for IIED. She also sued her supervisor, Jim Webber, alleging IIED. The trial court entered judgment against Hoffmann-La Roche and Webber on all claims except the retaliation claim. The trial court awarded Zeltwanger $847,036 for her sexual harassment claim and $9,504,706 against Hoffman-La Roche for her IIED claim. It awarded Zeltwanger $50,160 against Webber for IIED. Hoffmann-La Roche and Webber appealed to the 5th Court of Appeals in Dallas, which transferred the case to the 13th Court of Appeals in Corpus Christi, Texas. In 2002, the Corpus Christi Court of Appeals affirmed the trial court’s judgment against Hoffmann-La Roche and Webber. Hoffmann-La Roche appealed to the Texas Supreme Court, which reversed the $9.5 million IIED award. The court held that a plaintiff may not recover for IIED when the same facts are or could be the basis for another theory of recovery, such as a sexual harassment claim. The court opined that IIED is a “gap-filler” tort, applicable only when the plaintiff could assert no other viable theory of recovery based upon the facts alleged. Justice Harriet O’Neill filed a concurring opinion that could guide plaintiffs attorneys in asserting IIED claims in the post- Zeltwanger world. Specifically, O’Neill noted that a plaintiffs attorney could simply “choose to forego pleading other available remedies in hopes of obtaining a potentially more lucrative intentional-infliction recovery.” If the plaintiffs attorney chose to do so, he or she would be wise to frame factual allegations in such a way that they could not fall within any other theory of recovery, such as a sexual harassment claim. Otherwise, a court likely would hold as a matter of law that, even though the plaintiff did not assert an alternative theory of recovery (such as a sexual harassment claim), she could have. If the court made such a matter-of-law ruling, under Zeltwanger, the IIED claim would fail. However, if the plaintiffs attorney can avoid the matter-of-law ruling, the defendants would bear the burden of proving to the jury that the defendants’acts were actionable under the alternative theory of recovery, had the plaintiffs pleaded that theory of recovery. O’Neill suggested that, in the Zeltwanger case, this would have required Hoffmann-La Roche to present evidence that the acts of Zeltwanger’s supervisor were sexually motivated and, consequently, could have been brought as a sexual harassment claim. ABOLISH IIED? This year, the court issued another IIED opinion, Creditwatch Inc., et al., v. Jackson, which had a similar unfortunate ending for the plaintiff. According to the state Supreme Court’s opinion, Denise Jackson worked for Creditwatch Inc. In 1996, she sued Creditwatch and its CEO, Harold E. “Skip” Quant, in Tarrant County district court. Her amended pleading alleged only one theory of recovery — IIED. Jackson alleged that Quant had threatened to fire another Creditwatch manager — at whose house Jackson was staying for free after moving out of corporate housing due to financial difficulties — if the Creditwatch manager did not evict Jackson. Had Jackson filed suit after O’Neill issued the Zeltwanger concurrence, Jackson may well have limited her factual allegations to this one. Not having the benefit of the guidance contained in the concurrence, Jackson made additional allegations that Quant took some actions — listed in the 2nd Court of Appeals’ opinion — which, by anyone’s standards, were sexual in nature. Creditwatch filed a motion for summary judgment, arguing, among other things, that Jackson’s IIED claim was “really a sexual harassment claim in disguise,” according to the 2nd Court’s opinion. The trial court granted Creditwatch’s motion for summary judgment. Jackson appealed to the 2nd Court in Fort Worth, Texas, which in 2002 held that, to the extent that the trial court’s summary judgment was based on Jackson’s IIED claim being grounded on allegations of sexual acts, the summary judgment was reversible. However, the court of appeals affirmed a part of the summary judgment that could have been properly granted on other grounds. Creditwatch appealed to the Texas Supreme Court. The court held that all of Jackson’s factual allegations were grounded in the CEO’s alleged sexual acts and, consequently, the court of appeals erred in reversing any part of the summary judgment. The state Supreme Court reversed the court of appeals’ judgment and entered an order that Jackson take nothing. In his concurring opinion to Zeltwanger, Justice Nathan L. Hecht suggested that the court should abolish the tort of IIED. Both Zeltwanger and Jackson contain dicta suggesting that, even if the plaintiff had not made any factual allegations related to sexual acts, the court would have held that the nonsexual allegations were not outrageous enough to constitute IIED. Consequently, for a plaintiff whose intentional infliction claim is being reviewed, it may seem that the court has already abolished the tort. Chad Ruback formerly was a briefing attorney with the 2nd Court of Appeals in Fort Worth, Texas. His practice focuses on assisting small firms with their appeals and trial court motions. After several years working in the appellate section at Godwin Gruber, Ruback recently opened the Ruback Law Firm. His e-mail address is [email protected]

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