USCA1 Opinion
September 20, 1995 [NOT FOR PUBLICATION]
U.S. COURT OF APPEALS FOR FOR THE FIRST CIRCUIT
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No. 94-2211
WILLIAM HAMILTON AND CHARLENE HAMILTON,
Plaintiffs, Appellants,
v.
BAYSTATE MEDICAL EDUCATION, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael Ponsor, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Wendy Sibbison for appellants.
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Toby G. Hartt, with whom Jay M. Presser and Skoler, Abbott &
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Presser, P.C. were on brief for appellees.
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CAMPBELL, Senior Circuit Judge. This appeal arises
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from the termination of employment of Dr. William Hamilton, a
pathologist at Baystate Medical Center ("Baystate") in
Springfield, Massachusetts. Dr. Hamilton brought a diversity
action in the district court against Baystate, Baystate
Medical Education and Research Foundation ("BMERF"), and
Baystate Health Systems ("BHS"), alleging breach of contract,
negligent infliction of emotional distress, and intentional
infliction of emotional distress.1 In addition, Dr.
Hamilton's wife, Charlene Hamilton, sued for loss of
consortium. The district court granted Defendants' motion
for summary judgment on all counts. Hamilton v. Baystate
________ ________
Medical Educ. & Research Found., 866 F. Supp. 51 (D. Mass.
________________________________
1994). We affirm.
I.
I.
Dr. Hamilton worked as a pathologist at Baystate
from 1970 to 1989. In 1986, BHS created BMERF, a corporation
which employs doctors to work at Baystate.2 At that time,
Dr. Hamilton, along with all full-time pathologists at
Baystate, entered into a series of annual BMERF employment
contracts.
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1. We note Plaintiffs' statement that "no claim of handicap
discrimination was brought."
2BHS is the parent corporation of both Baystate (a
hospital) and BMERF.
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2
In 1986, Dr. Hamilton's performance as a
pathologist began to deteriorate. Over the next two and a
half years, his performance became progressively worse, and
he made a number of errors in diagnoses and the labeling of
specimens. In early 1989, Dr. John Sullivan, Chairperson of
the Baystate Pathology Department, learned that Dr. Hamilton
had made an egregious error in November of 1988. Dr.
Hamilton had incorrectly diagnosed breast cancer, resulting
in a patient receiving unnecessary surgery, a potentially
carcinogenic dose of radiation therapy, and a toxic course of
chemotherapy. On January 19, 1989, Dr. Sullivan met with Dr.
Hamilton and suggested that Dr. Hamilton resign. At that
meeting, it was agreed that Dr. Hamilton would take some
vacation time to determine whether he was ill. Dr. Hamilton
soon learned that he had been suffering from Graves Disease
for roughly the previous three years. Graves Disease is a
severe disease of the thyroid gland which, if untreated,
results in the impairment of a person's memory and ability to
concentrate. Dr. Hamilton's treating physician, Dr. Haag,
Chief of the Endocrine/Metabolic Division at Baystate,
characterized Dr. Hamilton's condition as severe. He
suggested that it was probably responsible for Dr. Hamilton's
poor performance. Dr. Hamilton took approximately five
months of sick leave and paid vacation.
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3
By the summer of 1989, Dr. Hamilton's thyroid gland
was functioning normally, but he continued to experience
episodes of cardiac arrhythmias. In August, Dr. Hamilton
wrote to Dr. Sullivan stating that although he was not in a
position to make long-term decisions and he did not think he
was completely cured, he wanted to return to work on a part-
time basis in September. In early September, Dr. Hamilton
twice reiterated his desire to return to Baystate, but each
time his request was denied.
Shortly thereafter, Dr. Hamilton retained an
attorney to negotiate a severance agreement with Defendants.
In January 1990, a medical malpractice tribunal found Dr.
Hamilton negligent in the case of the misdiagnosed breast
cancer, and Dr. Sullivan filled out a terminal evaluation
form that was back dated to September 1, 1989. In February
1990, settlement negotiations between Dr. Hamilton's attorney
and Defendants broke down, and Dr. Hamilton was asked to
retrieve his belongings from Baystate.
II.
II.
Discussion
Discussion
We review the district court's grant of summary
judgment de novo. Goldman v. First National Bank, 985 F.2d
_______ ___________________
1113, 1116 (1st Cir. 1993); Velez-Gomez v. SMA Life Assurance
___________ __________________
Co., 8 F.3d 873, 874 (1st Cir. 1993). Summary judgment will
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be affirmed only if "no genuine issue of material fact exists
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and the moving party is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(c); O'Connor v. Steeves, 994 F.2d
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905, 906-907 (1st Cir. 1993). A genuine issue of material
fact exists "if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Oliver v.
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Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir. 1988)
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(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
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(1986)).
In determining whether a factual dispute exists,
all reasonable inferences are made in favor of the nonmoving
party, in this case, the Hamiltons. See O'Connor, 994 F.2d
___ ________
at 907. Nevertheless, the Hamiltons must provide evidence of
an issue of material fact, and may not rely "merely upon
conclusory allegations, improbable inferences, and
unsupported speculation." Medina-Munoz v. R.J. Reynolds
____________ ______________
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
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A. Breach of Contract
A. Breach of Contract
Dr. Hamilton had two separate relationships with
Defendants: an employee-employer relationship with BMERF3
and a professional staff appointment with Baystate. Dr.
Hamilton argues that Defendants (1) violated the BMERF
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3The relevant employment contract between Dr. Hamilton
and BMERF was between January 1, 1989, and January 31, 1990.
Although no signed contract was produced by either of the
parties, Defendants do not object, for purposes of this
appeal, to the district court's finding that an implied
contract existed for the above period with the same terms as
the standard 1989 BMERF physician employment contract.
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employment contract by discharging him without cause and (2)
violated the BMERF and Baystate contracts by disregarding
pre-termination procedural requirements. We address each of
these contentions.
1. Substantive Breach of Contract
1. Substantive Breach of Contract
Dr. Hamilton alleges that he was discharged without
cause in violation of his BMERF employment contract. Summary
judgment was correctly allowed if the evidence, viewed in a
light most favorable to Dr. Hamilton, was such that no
reasonable juror could find that his termination violated
either the express terms of his contract or the common law
standard of "just cause." Under either standard, Defendants
were justified in terminating Dr. Hamilton if they reasonably
believed that he was unable to fulfill the duties of a full-
time pathologist at Baystate.4 Based on the record before
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4The employment contract provided in relevant part:
The Foundation [BMERF] may terminate this
Agreement promptly . . . if the
Foundation learns of circumstances which
the Foundation reasonably believes
substantially and adversely affect the
Member's ability to fulfill the duties
hereunder . . . .
The common law standard of "just cause" has been defined by
Massachusetts courts to mean:
[T]here existed (1) a reasonable basis
for employer dissatisfaction with a[n]
. . . employee, entertained in good
faith, for reasons such as lack of
capacity or diligence, failure to conform
to usual standards of conduct, or other
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the district court, we affirm the district court's grant of
summary judgment.
Dr. Hamilton correctly states that, in order to
satisfy the terms of his employment contract, Defendants must
have had a current belief at the time of termination that Dr.
Hamilton was unable to perform his duties. All the
admissible evidence here points to such a belief: there is
little or nothing to the contrary. Dr. Hamilton had suffered
from untreated Graves Disease for approximately three years.
This illness most affected his brain, causing him to make
repeated, serious mistakes. Dr. Hamilton submitted no
evidence directly from his treating physicians that he was
fit to return to work in September of 1989. He tendered,
instead, only his own hearsay statements that his treating
physician said he was cured of Graves Disease,5 statements
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culpable or inappropriate behavior, or
(2) grounds for discharge reasonably
related, in the employer's honest
judgement, to the needs of his business.
(emphasis omitted).
Goldhor v. Hampshire College, 25 Mass. App. Ct. 716, 521
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N.E.2d 1381, 1385 (1988) (quoting Klein v. President &
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Fellows of Harvard College, 25 Mass. App. Ct. 204, 517 N.E.2d
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167, 169 (1987)).
5Dr. Hamilton alleges that his statements are persuasive
evidence that he was capable of returning to work. Although
a party with the requisite degree of expertise may sometimes
offer opinion evidence on his own behalf, see Shane v.
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Shane, 891 F.2d 976, 982 (1st Cir. 1989); Von Henneberg v.
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Generazio, 403 Mass. 519, 531 N.E.2d 563, 566 (1988); Foley
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v. Foley, 27 Mass. App. Ct. 221, 537 N.E.2d 158, 160 n.4,
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review denied, 405 Mass. 1202, 541 N.E.2d 344 (1989), we need
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which must be read in conjunction with his treating
physician's deposition statement that, in his opinion, as of
September 1, 1989, he did not know whether Dr. Hamilton's
cognitive function had returned to normal, that he was very
concerned by the slowness of his recovery, and that Dr.
Hamilton "was not able to return to a full-time post, doing
everything that a general pathologist had to do to perform
all of his duties." Moreover, given the debilitating effects
of Graves Disease, it could reasonably be surmised that Dr.
Hamilton was unlikely to have kept abreast of the medical
knowledge within his field during the period of his illness.
We see no basis in this record for concluding anything but
that Defendants' discharge of Dr. Hamilton was prompted by
their reasonable belief that his condition "substantially and
adversely" affected his ability to perform as a pathologist
at Baystate in September of 1989.
Dr. Hamilton cautions against the granting of
summary judgment when "state of mind" is a critical issue.
See Stepanischen v. Merchants Despatch Transp. Corp., 722
___ ____________ __________________________________
F.2d 922, 928-29 (1st Cir. 1983). However, the fact that
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not decide whether a physician can provide medical evidence
as his own expert witness because Dr. Hamilton was not an
expert in endocrinology nor did he base his statements on his
own medical opinion but rather on the purported opinions of
his treating physicians. Dr. Hamilton's hearsay
representation of these opinions was not competent evidence
within Fed. R. Civ. P. 56(e). See Garside v. Osco Drug,
___ _______ __________
Inc., 895 F.2d 46, 50 (1st Cir. 1990).
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"state of mind" or motivation is an element of proof does not
necessarily preclude summary judgment in an otherwise
appropriate case. Id. Accord White v. Hearst Corp., 669
___ ______ _____ ____________
F.2d 14, 17 (1st Cir. 1982); Hahn v. Sargent, 523 F.2d 461,
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468 (1st Cir. 1975), cert. denied, 425 U.S. 904 (1976).
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Dr. Hamilton argues that there is a triable issue
as to whether Defendants were honest in their asserted belief
that he was unable to perform his duties at Baystate. Under
Massachusetts law, an employer's reasons for termination
cannot be given in bad faith. See Klein v. President &
___ _____ ____________
Fellows of Harvard College, 25 Mass. App. Ct. 204, 517 N.E.2d
__________________________
167, 169-170 (1987). Defendants should have known, plaintiff
argues, that his thyroid gland was functioning normally as of
September 1989. But, as pointed out above, Dr. Hamilton
presented no objective medical evidence that he was fully fit
to perform his duties then and, indeed, did not even himself
claim that he was cured. Dr. Hamilton urges that Defendants'
failure to report him to the Massachusetts Board of
Registration in Medicine as an "impaired physician," and
their failure to warn other hospitals where he was working in
December of 1989, shows that they did not honestly believe
that he was unfit to return to work, and, therefore, that
they terminated him in bad faith. We think these omissions
were insufficient, by themselves, to establish bad faith.
While believing that Dr. Hamilton was unfit to return to work
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at Baystate, Defendants may, at the same time, have not
wanted to destroy his medical career by reporting him to
other hospitals and to the Registration Board.
Dr. Hamilton argues that Defendants were not
reasonable in believing that he was unable to perform his
duties at Baystate. He points to their failure to consult
his physicians in September of 1989 in order further to
ascertain his medical condition. Given, however, the
seriousness of Dr. Hamilton's prior mistakes, his hiatus from
practicing medicine, his own admission that he was not fully
"cured," and his own failure to have presented supporting
letters or the like from his physicians attesting to his
fitness to practice, we do not think that more was required.
Dr. Hamilton further argues that a jury could find
Defendants' belief was not reasonable because he was current
in his continuing medical education credits. Yet,
notwithstanding such credits, Defendants could reasonably
surmise that his medical knowledge could not have progressed
at the normal rate during the three years he suffered acutely
from Graves Disease.
2. Violation of Procedural Safeguards
2. Violation of Procedural Safeguards
Dr. Hamilton argues that Defendants violated
relevant procedural safeguards by not affording him notice or
a hearing. It is undisputed that certain procedures must be
followed upon suspension of medical staff privileges or any
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other specified "adverse action" at Baystate.6 An "adverse
action," as defined in Baystate's Fair Hearing Plan,
includes: revocation of medical staff membership, reduction
in staff category,7 special limitation of the right to admit
patients, or reduction of clinical privileges.
Dr. Hamilton argues that he suffered a suspension
of staff privileges and a reduction in clinical privileges.
Defendants respond that they did not suspend Dr. Hamilton's
staff privileges at Baystate. They point to the affidavit of
Michael Kujath, Executive Director of BMERF, which stated
that Dr. Hamilton's "medical staff membership and clinical
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6The procedural protections set forth in the Medical
Staff Bylaws, the Medical Staff Credentialing Procedure
Manual, and the Fair Hearing Plan include: (1) review of
suspension within 72 hours by a Medical Staff Summary
Suspension Review Committee, (2) written notice to the doctor
of the suspension or "adverse action," and (3) a hearing.
7Dr. Hamilton argues that he suffered a reduction in
staff category because he lost his appointment as Co-Director
of Microbiology at Baystate. Defendants respond in two ways.
First, they point to Baystate's Fair Hearing Plan which
states that "the removal of a practitioner from a medico-
administrative office within the Medical Center" does not
entitle the practitioner to a hearing. Second, they argue
that the reduction in staff category argument is waived
because Dr. Hamilton failed to raise it in the district
court. Defendants were given no opportunity to present
evidence as to the meaning of "reduction in staff category"
and "medico-administrative office." We hold that Dr.
Hamilton has waived this line of argument. See Playboy
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Enters., Inc., v. Public Serv. Comm. of Puerto Rico, 906 F.2d
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25, 40 (1st Cir.), cert. denied, Rivera Cruz v. Playboy
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Enters., Inc., 498 U.S. 959 (1990) ("Issues not raised before
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the trial court are waived on appeal . . . absent unusual
circumstances or plain error suggesting that a 'clear
miscarriage of justice' has occurred.")
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privileges at Baystate Medical Center, were not, in fact,
ever suspended." Suspension of staff privileges would affect
Dr. Hamilton's ability to practice medicine not only at
Baystate, but at any facility. Dr. Hamilton relies on
Defendants' statement of intent to "remove him from the
staff" made at the January 1989 meeting where Dr. Sullivan
and Dr. Hamilton discussed what should be done about Dr.
Hamilton's slipping performance. But the outcome of that
meeting was a decision that Dr. Hamilton should take some
vacation time to determine if he was ill and that nothing
would be done with respect to Dr. Hamilton's employment
status at that time.
Dr. Hamilton also relies on the fact that his name
was omitted from a list of pathology department members in
the House Staff Recruitment Brochure. However, given that
this omission was made at a time when Dr. Hamilton was on
medical leave, and given Executive Director Kujath's
affidavit that Dr. Hamilton was not removed from the staff,
we find the omission of Dr. Hamilton's name from the
recruitment brochure insufficient, by itself, to create a
triable issue as to whether Dr. Hamilton's medical privileges
were reduced or suspended. There is no probative evidence in
the record that Dr. Hamilton's staff privileges were in fact
ever suspended.
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Dr. Hamilton argues that even if his privileges
were not formally reduced or suspended, they were
constructively suspended as a necessary consequence of his
termination because all full-time Baystate pathologists must
be BMERF members. However, in St. Louis v. Baystate Medical
_________ ________________
Center, Inc., 30 Mass. App. Ct. 393, 568 N.E.2d 1181, 1186
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(1991), the court noted that physicians who no longer could
perform services at Baystate could still have staff
privileges.8 Termination of BMERF employment does not
constructively result in a change in Baystate staff
privileges.
Dr. Hamilton also argues that the Baystate
procedural safeguards should apply to the termination of his
BMERF contract. BMERF's bylaws provide that all its members'
"professional activities"
shall be subject to and in compliance
with the medical staff review procedures,
bylaws, rules, and regulations
established by the hospital or facility
in which Foundation members are
practicing.
Dr. Hamilton argues that because his professional activities
were governed by Baystate's rules, he is entitled to
Baystate's procedural protections upon termination from
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8The court stated "[The] doctors no longer performed any
professional services at Baystate, even though they continued
to enjoy clinical privileges there." St. Louis, 568 N.E.2d
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at 1186. (The St. Louis case involved a different issue than
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this case since there Baystate proceeded to formally suspend
the clinical privileges of the doctors in question.)
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BMERF. This argument fails because Baystate's procedural
protections expressly apply only to "adverse actions," and
the exhaustive list of "adverse actions" does not include
termination of a physician's contract with BMERF. Hence
termination of Dr. Hamilton's BMERF employment contract did
not trigger Baystate's hearing process.
B. Tort Claims
B. Tort Claims
Dr. Hamilton alleges that Defendants both
negligently and intentionally inflicted emotional distress
upon him because of their callous treatment during his
termination. Defendants allegedly failed to notify Dr.
Hamilton of his termination for several months. As a result,
Dr. Hamilton asserts, he suffered emotional distress from the
uncertainty of not knowing when, if ever, he would return to
his job. The district court held that both the negligent and
intentional infliction of emotional distress claims were
barred by the Massachusetts Workers' Compensation Act, and,
in addition, that Dr. Hamilton had not alleged facts
sufficient to make out a claim for either negligent or
intentional infliction of emotional distress.
Under Massachusetts law, common law actions are
barred by the state's workers' compensation act where (1) the
Plaintiff is an employee of the Defendant, (2) the condition
is a "personal injury," and the injury arises "out of and in
the course of . . . employment." Foley v. Polaroid Corp.,
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381 Mass. 545, 413 N.E.2d 711, 713-714 (1980); Mass. Gen. L.
ch. 152, 26.9 "Personal injury" includes "mental or
emotional disabilities only where a significant contributing
cause of such disability [is] an event or series of events
occurring within the employment." Mass. Gen. L. ch. 152, 1
(7A). This bar applies to claims of intentional infliction
of emotional distress, see Tennaro v. Ryder System, Inc., 832
___ _______ __________________
F. Supp. 494, 500 (D. Mass. 1993); Anzalone v. Massachusetts
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Bay Transp. Auth., 403 Mass. 119, 526 N.E.2d 246, 249 (1988);
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Mullen v. Ludlow Hosp. Soc'y, 32 Mass. App. Ct. 968, 592
______ ___________________
N.E.2d 1342, 1345, review denied, 413 Mass. 1103, 598 N.E.2d
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1133 (1992), and claims of negligent infliction of emotional
distress, see Clarke v. Kentucky Fried Chicken of California,
___ ______ _____________________________________
Inc., 57 F.3d 21, 27-29 (1st Cir. 1995); Catalano v. First
____ ________ _____
Essex Savings Bank, 37 Mass. App. Ct. 377, 639 N.E.2d 1113,
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1115-16, review denied, 419 Mass. 1101, 644 N.E.2d 225
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(1994).
Dr. Hamilton argues that the Workers' Compensation
Act is not applicable because he was no longer an employee at
the time Defendants caused his injuries. However, under
Massachusetts law, injuries that arise out of the termination
process are considered to have arisen "in the course of
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9There is an exception to preemption if the employee
expressly reserves his right to bring common law causes of
action. Mass. Gen. L. c. 152, 24. However, Dr. Hamilton
does not assert that he reserved his right to sue outside the
Workers' Compensation Act.
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employment" for purposes of the Workers' Compensation Act.
See Bertrand v. Quincy Mkt. Cold Storage & Warehouse Co.,
___ ________ __________________________________________
728 F.2d 568, 572 (1st Cir. 1984) (holding that injuries
caused in part by a letter that may have been sent to
plaintiff after termination were nonetheless barred by
Workers' Compensation Act because it was part of a single
course of conduct begun when plaintiff was still an
employee); Presto v. Sequoia Sys., Inc., 633 F. Supp. 1117,
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1120-21 (D. Mass. 1986); Flynn v. New England Tel. Co., 615
_____ _____________________
F. Supp. 1205, 1209-10 (D. Mass. 1985) (holding that a claim
for emotional injury arising out of termination process was
barred by Workers' Compensation Act). The conduct that
allegedly injured Dr. Hamilton was part of a series of
actions that resulted in his termination. We conclude that
Dr. Hamilton's personal injury claims against his employer
were barred by the Workers' Compensation Act.
After deciding that the emotional distress claims
were statutorily barred, the district court went on to find,
in addition, that Dr. Hamilton had failed to set forth facts
sufficient to make out a claim of negligent or intentional
infliction of emotional distress. The court was also correct
in this determination.
The Supreme Judicial Court of Massachusetts has
held that the negligent infliction of emotional distress
requires physical harm "manifested by objective
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symptomatology." Payton v. Abbott Labs, 386 Mass. 540, 437
______ ___________
N.E.2d 171, 181 (1982). There must be "objective
corroboration of the emotional distress alleged." Sullivan v.
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Boston Gas Co., 414 Mass. 129, 605 N.E.2d 805, 809 (1993)
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(quoting Payton, 437 N.E.2d at 175). Dr. Hamilton alleges
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that he suffered severe stomach pains, frequent headaches,
and insomnia as a result of Defendants' actions.
Dr. Hamilton argues that under Massachusetts law
his symptoms suffice to sustain a claim for negligent
infliction of emotional distress. Sullivan, 605 N.E.2d at
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806-07, 810-11. The Sullivan court found that plaintiffs'
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showing satisfied the physical harm requirement of a claim of
negligent infliction of emotional distress. In that case,
one plaintiff suffered from tension headaches, muscle
tenderness, insomnia, gastrointestinal distress, upset
stomach, nightmares, depression, despair, difficulty in
driving and working, and concentration and reading problems.
The second plaintiff suffered from severe physical symptoms
associated with clinical post traumatic stress disorder
including diarrhea, heart palpitations, insomnia, depression
and despair. Both plaintiffs provided expert medical
evidence of their physical harm. Id. Dr. Hamilton's alleged
___
symptoms were less severe than those in Sullivan, were not
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treated, resulted in no related expenses, and were
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corroborated by no medical testimony. The Sullivan court
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stated that
plaintiffs must corroborate their mental
distress claims with enough objective
evidence of harm to convince a judge that
their claims present a sufficient
likelihood of genuineness to go to trial.
Expert medical testimony may be needed to
make this showing . . . . The judge will
consider each case in its particular
factual context . . . . [T]he judge will
use his or her discretion to evaluate the
evidence.
Id. at 810. The record here supports the district court's
___
conclusion that Dr. Hamilton "is unable to prove the physical
harm that is required." Hamilton, 866 F. Supp. at 57.
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The district court also ruled that Dr. Hamilton had
not set forth facts sufficient to meet the requirements of a
claim of intentional infliction of emotional distress. The
standard for this cause of action is "extreme and outrageous"
conduct, "beyond all possible bounds of decency" and "utterly
intolerable in a civilized community." Redgrave v. Boston
________ ______
Symphony Orchestra, Inc., 557 F. Supp. 230, 236 (D. Mass.
_________________________
1983); Foley v. Polaroid Corp., 400 Mass. 82, 508 N.E.2d 72,
_____ ______________
82 (1987); Agis v. Howard Johnson Co., 371 Mass. 140, 355
____ ___________________
N.E.2d 315, 318-19 (1976). We agree with the district court
that none of the Defendants' actions, viewed in a light
favorable to Dr. Hamilton, rises to this level.
Dr. Hamilton argues that Defendants mislead him
into believing that he might be able to return to work and
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withheld notice of his termination for a period of several
months. Whatever Defendants' motivation, the actions alleged
were not extreme, outrageous or intolerable. We see no
evidence of behavior sufficient to sustain a claim for
intentional infliction of emotional distress.
C. Loss of Consortium
C. Loss of Consortium
Mrs. Hamilton appeals from the grant of summary
judgment for Defendants on her loss of consortium claim.
Mrs. Hamilton's claim fails for two reasons. First, spousal
loss of consortium claims based on injuries compensable under
the Workers' Compensation Act are specifically barred. Mass.
Gen. L. ch. 152, 24. Second, Mrs. Hamilton's claim fails
because summary judgment was appropriately granted against
the underlying tort claims of emotional distress. Any
recovery for loss of spousal consortium requires proof of a
tortious act causing injury to the spouse. See Mouradian v.
___ _________
General Electric Co., 23 Mass. App. Ct. 538, 503 N.E.2d 1318,
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1321, review denied, 399 Mass. 1105, 507 N.E.2d 1056 (1987).
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Affirmed.
Affirmed
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