The opinion of the court was delivered by: Joseph A. DiClerico, Jr. United States District Judge
Kaitlin Hudson brought state and federal claims against her former employer, Dr. Michael J. O'Connell's Pain Care Center, Inc. ("Center"), and Dr. Michael J. O'Connell, arising from her relationship with O'Connell and the conditions of her employment at the Center. Hudson's claims for battery, negligent infliction of emotional distress, and sexual harassment have been dismissed. The Center moves for judgment on the pleadings in its favor on Hudson's claims of invasion of privacy and intentional infliction of emotional distress. Hudson objects.
The standard for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is the same as that used for a motion under Rule 12(b)(6). Collins v. Univ. of N.H., --- F.3d ---, 2011 WL 6350429, at *4 (1st Cir. Dec. 20, 2011). Under that standard, the court "accept[s] all well-pleaded facts as true and draw[s] all reasonable inferences in favor of the non-moving party." Id. "To survive a motion for judgment on the pleadings, the complaint must plead facts that raise a right to relief above the speculative level, such that entitlement to relief is plausible." Id. (internal quotation marks omitted).
The Center contends that Hudson's invasion of privacy and intentional infliction of emotional distress claims are barred by the exclusivity provision of the Workers' Compensation Law under RSA 281-A:8 and RSA 281-A:2, IX. Hudson responds that her invasion of privacy claim is based on her status as a patient, not as an employee of the Center. She contends that her intentional infliction of emotional distress claim is not barred by the exclusivity provision because the claim is based on the same conduct that supports her constructive discharge claim. In its reply, the Center argues that Hudson should be judicially estopped from asserting an invasion of privacy claim based on her patient status and disputes Hudson's theory as to her intentional infliction of emotional distress claim.
In New Hampshire, "[a]n employee of an employer subject to [the Workers' Compensation Law] shall be conclusively presumed to have accepted the provisions of [workers' compensation], and . . . to have waived all rights of action whether at common law or by statute or provided under the laws of any other state or otherwise: (a) Against the employer . . . ." RSA 281-A:8, I. The Workers' Compensation Law covers injuries "arising out of and in the course of employment . . . ." RSA 281-A:2, XI. The Workers' Compensation Law does not cover "a mental injury if it results from any disciplinary action, work evaluation, job transfer, layoff, demotion, termination, or any similar action, taken in good faith by an employer." Id. The effect of the cited parts of the Workers' Compensation Law is that employees cannot bring claims against their employers that arise out of their employment, with certain exceptions, including a claim that arises from a personnel action that was taken in good faith.
Hudson alleges claims of invasion of privacy against
O'Connell and the Center. In support, Hudson alleges that "[a]s a patient of O'Connell, [Hudson] had a reasonable expectation of privacy in her medical records," that "O'Connell and Pain Care failed to properly safeguard [Hudson's] medical records as required," and that "[her] privacy was invaded because her personal medical information was not protected." Am. Compl. doc. no. 9, ¶¶ 68-70. She alleges that she suffered injury related to the disclosure of her medical records.
The Center contends that Hudson's invasion of privacy claim is barred by the Workers' Compensation Law because her claim is against her employer, arose in the course of her employment, and does not fall within the exception for good faith personnel actions. Hudson responds that her claim for invasion of privacy is based on her status as a patient of O'Connell and the Center, not as an employee. In support, Hudson points out that the Center maintained her medical records because she was O'Connell's patient, not because she was an employee, and that the Center's employees were authorized to have access to her medical records in relation to her medical treatment, not because she was an employee.
The Center does not dispute that to the extent Hudson were deemed to be a patient, rather than an employee, her claim would not be barred by the Workers' Compensation Law. Instead, the Center argues that Hudson should be judicially estopped from relying on her status as a patient because she addressed the invasion of privacy claim as an employee in her objection to the defendants' prior motion to dismiss.
The doctrine of judicial estoppel "generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase." New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (internal quotation marks omitted). Although no exact standard applies, [s]everal factors typically inform the decision whether to apply the doctrine in a particular case: First, a party's later position must be 'clearly inconsistent' with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position, ...