Supreme Court
No. 2022-42-Appeal. (PC 12-6232)
Jordan Nissensohn, Administrator of : the Estate of Michael Nissensohn
v. :
CharterCARE Home Health Services : a/k/a Roger Williams Medical Center, et al.
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone 222-3258 or Email opinionanalyst@courts.ri.gov of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court
Jordan Nissensohn, Administrator of : the Estate of Michael Nissensohn
CharterCARE Home Health Services : a/k/a Roger Williams Medical Center, et al.
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Lynch Prata, for the Court. The plaintiff, Jordan Nissensohn,
Administrator of the Estate of Michael Nissensohn,1 appeals from a judgment of the
Superior Court entered in favor of the defendants, University Medical Group
(UMG), Alan Epstein, M.D., and Steven Sepe, M.D. (collectively the UMG
defendants), granting summary judgment in their favor. The plaintiff asserts that the
Superior Court erred by finding that: (1) the plaintiff did not engage in protected
conduct under the Rhode Island Whistleblowers’ Protection Act (RIWPA), G.L.
1 Michael Nissensohn, M.D., litigated this case until his death in March 2023. This Court granted a motion to substitute Jordan Nissensohn, Administrator of the Estate of Dr. Nissensohn, as the appellant on August 23, 2023. Throughout this opinion, we refer to Dr. Nissensohn and Jordan Nissensohn, Administrator of the Estate of Dr. Nissensohn, interchangeably as plaintiff. No disrespect is intended. -1- 1956 chapter 50 of title 28; (2) Dr. Epstein and UMG’s allegedly defamatory
statements were substantially true or were made outside of the statute of limitations;
(3) teaching was not covered by the plain language of the plaintiff’s employment
agreement; (4) the breach-of-contract claim was preempted by the Payment of
Wages Act, G.L. 1956 chapter 14 of title 28; (5) the plaintiff failed to establish his
claim for tortious interference with contractual relations; (6) Dr. Epstein’s alleged
interference was not causally connected to the plaintiff’s failure to set up a new
practice; and (7) the plaintiff did not provide sufficient nonhearsay evidence to
support his conversion claim. For the reasons set forth herein, we affirm the
judgment of the Superior Court.
Facts and Travel
The plaintiff, Michael Nissensohn, M.D., began working for UMG as a
gastroenterologist in 2003. His employment was governed by a Physician
Employment Agreement with UMG. Pursuant to the agreement, plaintiff was
“employed on a full-time basis actively to practice medicine, provide medical
education and/or conduct biomedical research on behalf of [UMG] * * *.” He was
required to devote “[forty] hours per week of clinical patient hours inclusive of
teaching and administrative activities.”
During plaintiff’s tenure, he was supervised by Dr. Epstein, the head of the
gastroenterology division. The plaintiff shared teaching responsibilities with the
-2- other doctors in gastroenterology. To offset the burden of these responsibilities, Dr.
Epstein secured administrative money from the hospital each year with the
understanding that the gastroenterology doctors would split this so-called “teaching
money” between the four of them. Nevertheless, from “almost day one,” plaintiff
took issue with the discrepancies between the amount of “teaching money” that Dr.
Epstein promised and the amount that plaintiff actually received.
The plaintiff further clashed with Dr. Epstein when he requested a brief leave
of absence from work. The plaintiff was depressed and told Dr. Epstein that, “[i]f I
don’t get better, I am going to McLean Hospital.”2 Subsequently, a rumor spread
that plaintiff had attempted suicide and had been involuntarily committed to McLean
Hospital. 3 The plaintiff was informed that the rumor originated in the UMG
endoscopy unit. At this time, plaintiff suspected that Dr. Epstein was in an
inappropriate relationship with the head endoscopy nurse, Audrey Kennedy.
Accordingly, believing that Dr. Epstein shared information regarding plaintiff’s
mental health with Ms. Kennedy, plaintiff confronted Dr. Epstein. According to
plaintiff, Dr. Epstein confirmed that he was the source of the information.
At some point during his tenure, plaintiff obtained a permit to carry a
concealed weapon. The plaintiff began showing doctors and other employees his
2 McLean Hospital is a mental health facility within Mass General Brigham. 3 The plaintiff denied that these rumors were true; nevertheless, it was undisputed that these rumors existed. -3- shooting targets “to spur interest in the sport.” He also began carrying his firearm
into the hospital. Some UMG employees knew that plaintiff brought his firearm to
work, but Dr. Epstein and Dr. Sepe, the Chief of Medicine, were not aware of that
fact.
In February 2012, plaintiff met with Kenneth Belcher, the hospital CEO, and
Dr. Sepe to discuss his unhappiness with Dr. Epstein. The plaintiff reported Dr.
Epstein’s disclosure of his mental health information, anger issues, inappropriate
relationship with Ms. Kennedy, and inconsistent promises regarding “teaching
money.” Mr. Belcher agreed that Dr. Epstein’s behavior was inappropriate and that
plaintiff should have a follow-up meeting with Dr. Sepe.
On March 29, 2012, plaintiff met with Dr. Sepe and Dr. Epstein. They
discussed plaintiff’s issues with Dr. Epstein. The meeting was productive, and
plaintiff believed the matter was resolved. However, the next day, Jodi Siegelman,
a physician’s assistant, who was supervised by plaintiff and Dr. Epstein, reported an
incident regarding plaintiff. She reported to Merritt Brown, CEO of UMG, that
about two weeks earlier, plaintiff “came into [her] office, showed [her] three
carboard bulls eye targets with shots clearly fired into them and claimed that these
were depictions of Dr. Epstein, including how they were supposed to be [his] head,
heart, and eyes.”
-4- The plaintiff conceded that he may have shown Ms. Siegelman a target, but
he denied telling her that the display depicted Dr. Epstein. Ms. Siegelman told her
mother and another physician’s assistant about the alleged incident. She hesitated
to relate the incident to anyone else because she was new at UMG, but she eventually
told Karen Romano, the office manager. Ms. Romano subsequently informed Dr.
Epstein.
Doctor Epstein immediately went to Ms. Siegelman and asked her to explain
what happened, promising her that it would not impact her job. That same day, Ms.
Siegelman sent her report to Mr. Brown, and Dr. Epstein informed Dr. Sepe of the
incident. Doctor Sepe contacted the hospital and met that afternoon with Dr.
Epstein, Mr. Brown, the hospital human resources department, and the hospital’s
attorney to discuss the Siegelman report. After the director of human resources
informed Mr. Belcher of the situation, he called the Providence Police Department
and was advised that the hospital should take the report seriously. The police wanted
to speak with plaintiff as soon as possible and agreed to approach him during his
next scheduled shift, the following Tuesday.
The next Tuesday, April 3, 2012, plaintiff arrived at work and went straight
to the endoscopy suite. He had his loaded firearm with him. At approximately 8:00
a.m., plaintiff was told that there was an emergency and that Mr. Belcher needed to
-5- see him. He stowed his firearm in his briefcase, put the briefcase under the desk,
and went to the lobby.
When plaintiff entered the lobby, two police officers approached him and
asked him if he was Dr. Nissensohn. When he said yes, the officers pushed him
against the wall, spread his legs, and conducted a pat-down. During the pat-down,
the officers found an empty holster. They asked him if he was carrying a firearm,
and plaintiff responded no. The plaintiff directed the officers to remove his wallet
so that they could see his permit. He falsely informed the officers that his firearm
was locked in his car.
The officers took plaintiff to an office where Mr. Belcher, Dr. Sepe, and
members of the human resources department were waiting. The officers asked
plaintiff again if he had a firearm, which he again denied. The plaintiff was informed
that the hospital had a no-firearm policy, and, at some point, one of the officers left
to search plaintiff’s endoscopy suite for the firearm. The officer discovered
plaintiff’s loaded firearm in his briefcase in his office and returned to the meeting.
Mr. Belcher informed plaintiff that he was not allowed to return to his patients, and
the officers escorted him off the premises. Later that day, Dr. Sepe sent plaintiff a
letter informing him that UMG was placing him on paid administrative leave.
Doctor Sepe further instructed plaintiff to contact the Physicians Health Program to
-6- set up an appointment. While plaintiff was on leave, Dr. Epstein performed
plaintiff’s scheduled procedures and billed plaintiff’s patients directly.
The next day, plaintiff was served with a no-trespass order. He subsequently
sent Mr. Brown an email asking him to lift the order. The plaintiff wanted the return
of some personal items, including a laptop, which he had left in his office. However,
plaintiff testified that, when his attorney went to retrieve his laptop, his attorney was
informed that he was not allowed to have it back. However, after some delay, the
laptop was returned.
The plaintiff maintained that during his leave, he kept receiving requests from
Dr. Sepe for further psychological evaluations. He met with three forensic
psychiatrists and a psychologist. Despite his compliance, the letters that plaintiff
received in response were “unpleasant” and were interpreted by plaintiff as “being
indicative that they were going to terminate” his employment. Two weeks after the
April 3 incident, the human resources manager informed plaintiff that his leave was
being extended. Subsequently, plaintiff resigned.
The plaintiff’s resignation letter provided that he would “resume and continue
[his] practice at 50 Summerfield Street, Fall [R]iver, Massachusetts.” The Fall River
address was a temporary drop-off location where patients could send their records.
His patients were informed of his new mailing address should they wish to make
contact. However, several patients emailed plaintiff representing that they had
-7- received conflicting information about his whereabouts. Specifically, they stated
that UMG or Dr. Epstein informed them that plaintiff was on administrative leave,
that he was no longer affiliated with UMG, or that he had gone back to Fall River.
The plaintiff did not reply to his patients’ emails because he was “too upset to
respond * * *.” He subsequently decided to “never get up and running again because
of the trauma from [the] whole thing.”
On December 4, 2012, plaintiff filed his original complaint against the UMG
defendants as well as CharterCARE Home Health Services a/k/a Roger Williams
Medical Center; CharterCARE Health Partners, and Mr. Belcher (collectively the
hospital defendants). On October 16, 2017, plaintiff filed an amended complaint.
The amended complaint asserted eight counts: (1) intentional infliction of emotional
distress against the hospital defendants; (2) defamation against Dr. Epstein; (3)
defamation against UMG; (4) breach-of-contract against UMG; (5) tortious
interference with prospective business relations and contractual relations against Dr.
Epstein; (6) false imprisonment against the hospital defendants; (7) conversion
against CharterCARE Home Health Services a/k/a Roger Williams Medical Center,
CharterCARE Health Partners, and UMG; and (8) constructive discharge/violations
of the RIWPA against UMG.4
4 The amended complaint contained two additional claims: one for breach-of- contract arising out of UMG’s failure to pay plaintiff for patient care and another for constructive discharge and violations of the RIWPA. Although plaintiff asserted a -8- Thereafter, the UMG defendants filed a motion for summary judgment. In a
subsequent bench decision, the trial justice granted the UMG defendants’ motion for
summary judgment as to each remaining count of plaintiff’s amended complaint. 5
The trial justice granted summary judgment as to plaintiff’s defamation claims
because some of the alleged defamatory statements were made outside of the statute
of limitations and the remaining statements were substantially true or were protected
by a qualified privilege. Summary judgment as to plaintiff’s breach-of-contract
claim was granted because plaintiff’s teaching duties were voluntary and because
plaintiff’s claim for unpaid wages was required to be brought under the Payment of
Wages Act. Therefore, his claim, although styled as one for breach-of-contract, was
barred by the applicable statute of limitations pursuant to § 28-14-19.2(g) and § 28-
14-20(a). The trial justice found that plaintiff’s claim for tortious interference with
prospective business relations failed because he did not demonstrate that Dr.
Epstein’s comments to plaintiff’s former patients were causally connected to
plaintiff’s failure to resume his practice.
breach-of-contract claim against UMG as part of his original complaint, the original claim was solely for UMG’s failure to compensate him for teaching money. When plaintiff amended his complaint, he added another claim based on UMG’s failure to compensate him for patient care. 5 Concurrent with the UMG defendants’ motion for summary judgment, the hospital defendants filed their own motion for summary judgment. However, before the trial justice ruled on the hospital defendants’ motion, they reached a settlement agreement with plaintiff, leaving only the UMG defendants’ motion to be decided. -9- Summary judgment was granted as to plaintiff’s conversion claim because
plaintiff provided no competent evidence that he, or his attorney, had demanded his
laptop’s return. The trial justice granted summary judgment as to plaintiff’s RIWPA
claim because plaintiff testified that he believed he was reporting Dr. Epstein for
unethical, but not unlawful, conduct. The trial justice reasoned that the RIWPA
requires a reporter to hold a good-faith belief that the conduct said reporter is
reporting is illegal. Because plaintiff did not hold such a belief, he was not protected
by the RIWPA. Final judgment entered in favor of the UMG defendants on October
21, 2021. The plaintiff filed a timely notice of appeal.
Standard of Review
“This Court reviews a decision granting a party’s motion for summary
judgment de novo.” Citizens Bank, N.A. v. Palermo, 247 A.3d 131, 133 (R.I. 2021)
(quoting Boudreau v. Automatic Temperature Controls, Inc., 212 A.3d 594, 598
(R.I. 2019)). We assess the matter “from the vantage point of the trial justice[,]
* * * view[ing] the evidence in the light most favorable to the nonmoving party, and
if we conclude that there are no genuine issues of material fact and that the moving
party is entitled to judgment as a matter of law, we will affirm * * *.” Id. (quoting
Boudreau, 212 A.3d at 598). “Although summary judgment is recognized as an
extreme remedy, * * * to avoid summary judgment the burden is on the nonmoving
- 10 - party to produce competent evidence that proves the existence of a disputed issue of
material fact.” Id. (quoting Boudreau, 212 A.3d at 598).
Discussion
RIWPA
The plaintiff argues that the trial justice erred in finding that he did not engage
in protected conduct under the RIWPA because, in his view, he reported actual
violations of the law. The plaintiff asserts that, under the plain language of § 28-50-
3(4), an employee is protected from retaliation if they report a violation of the law
that they reasonably know has occurred. He contends that the statute does not
require the employee to know which law was violated to be afforded protection. The
plaintiff argues that to hold otherwise would undermine the purpose of the RIWPA
because laypeople do not see things in terms of illegal or legal, but rather right or
wrong.
In response, the UMG defendants argue that plaintiff did not engage in
protected conduct because he did not believe that Dr. Epstein’s conduct was
unlawful. Instead, plaintiff believed that the conduct was unethical. They further
argue that, even if we were to accept plaintiff’s interpretation of the RIWPA, he did
not engage in protected conduct because he did not report actual violations of the
law.
- 11 - “This Court reviews questions of statutory interpretation de novo.” Balmuth
v. Dolce for Town of Portsmouth, 182 A.3d 576, 580 (R.I. 2018). “If a statute is
clear and unambiguous, ‘we must interpret the statute literally and must give the
words of the statute their plain and ordinary meanings.’” Athena Providence Place
v. Pare, 262 A.3d 679, 681 (R.I. 2021) (quoting Balmuth, 182 A.3d at 580).
The RIWPA provides in pertinent part:
“An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment:
“* * *
“Because the employee reports verbally or in writing to the employer or to the employee’s supervisor a violation, which the employee knows or reasonably believes has occurred or is about to occur, of a law or regulation or rule promulgated under the laws of this state, a political subdivision of this state, or the United States, unless the employee knows or has reason to know that the report is false.” Section 28-50-3.
The clear and unambiguous language of the statute provides that an employee is
protected when he reports a violation of a law, regulation, or rule that he “knows or
reasonably believes has occurred * * *.” Id. (emphasis added). Accordingly, the
employee need only have knowledge, or a reasonable belief, that conduct that
violates the law has occurred, rather than knowledge that the conduct is actually
- 12 - illegal. See id. Nevertheless, plaintiff has failed to produce evidence that he engaged
in such protected conduct.
The plaintiff argues that he reported violations of the law because (a) Dr.
Epstein’s anger issues “would eventually lead to a hostile work environment claim”;
(b) adultery is still a crime; (c) the disclosure of protected health information violated
the Health Insurance Portability and Accountability Act (HIPAA); and (d) failing to
pay an employee violates “Rhode Island’s Wage and Hour” laws.
The plaintiff did not report to his supervisors that Dr. Epstein was engaged in
“illicit sexual intercourse” while married. See G.L. 1956 § 11-6-2. Instead, he
reported to Mr. Belcher and Dr. Sepe that Dr. Epstein was in an “inappropriately
close relationship” with Ms. Kennedy. Moreover, plaintiff has not provided this
Court with any meaningful discussion, analysis, or citations to explain how the
remainder of his reports amounted to reports of “a violation * * * of a law or
regulation or rule promulgated under the laws of this state, a political subdivision of
this state, or the United States * * *.” Section 28-50-3. He failed to explain how Dr.
Epstein’s reported “anger issues” violated any state or federal employment laws.6
6 Notably, although plaintiff argues that he was reporting conduct that might lead to a hostile work environment claim, such claims are typically dependent on membership in a protected class, rather than simply being subject to a supervisor’s anger issues. See 14A C.J.S. Civil Rights § 224 (Nov. 2023 Update); see also DeCamp v. Dollar Tree Stores, Inc., 875 A.2d 13, 22 (R.I. 2005) (noting that in order to prove a gender-based hostile work environment claim, a plaintiff must prove membership in a protected class). - 13 - He provided no explanation as to how Dr. Epstein’s purported lying about obtaining
$25,000 in “teaching money,” when Dr. Sepe conveyed that Dr. Epstein had in fact
obtained $13,000, violates any of “Rhode Island’s Wage and Hour” laws. Further,
he has not explained how Dr. Epstein’s disclosing to Ms. Kennedy, a fellow health
care provider, that plaintiff was depressed and thinking about going to McLean
Hospital violated HIPAA.
Much time at oral argument was devoted to the alleged HIPAA violation.
Nevertheless, plaintiff did not articulate how Dr. Epstein’s conduct violated HIPAA.
Instead, he rested on the conclusory assertion that Dr. Epstein’s conduct “was in
violation of [HIPAA],” and his personal belief that HIPAA applies to information
disclosed to physicians in their capacity as administrators, rather than as health care
professionals. Without further explanation as to how the disclosure violates any of
HIPAA’s broad and sweeping regulations, we must consider this issue waived.7
Horton v. Portsmouth Police Department, 22 A.3d 1115, 1130 (R.I. 2011).
“[S]imply stating an issue for appellate review, without a meaningful discussion
thereof or legal briefing of the issues, does not assist the Court in focusing on the
legal questions raised, and therefore constitutes a waiver of that issue.” Terzian v.
Lombardi, 180 A.3d 555, 558 (R.I. 2018) (quoting Horton, 22 A.3d at 1130). “Nor
7 The plaintiff’s argument that this conduct was in violation of the Rhode Island analogue to HIPAA was never raised below and is therefore waived. See Bouchard v. Clark, 581 A.2d 715, 716 (R.I. 1990). - 14 - may the requesting party now advance new theories or raise new issues in order to
secure a reversal of the lower court’s determination.” Nedder v. Rhode Island
Hospital Trust National Bank, 459 A.2d 960, 963 (R.I. 1983) (brackets omitted)
(quoting Ludwig v. Kowal, 419 A.2d 297, 302 (R.I. 1980)).
The plaintiff’s arguments distort the evidence in a retrospective attempt to
mold the facts into an RIWPA claim. Accordingly, plaintiff failed to provide
evidence that he engaged in protected conduct under the RIWPA; as such, the trial
justice did not err in granting summary judgment as to plaintiff’s RIWPA claim.
Having determined that plaintiff failed to engage in protected conduct, we need not
address his arguments as to constructive discharge and causation.
Defamation
Next, plaintiff argues that the trial justice erred in finding that he failed to
establish his defamation claims against Dr. Epstein and UMG. However, plaintiff’s
defamation claim abated at his death. “At common law, causes of action for slander
and for libel do not survive the death of either the wrongdoer or the person injured
by the wrongdoer.” 1 Am. Jur. 2d Abatement, Survival, and Revival § 79 (Oct. 2023
Update); see Young v. Aylesworth, 35 R.I. 259, 262, 86 A. 555, 556 (1913); see also
Cant v. Bartlett, 440 A.2d 388, 392-93 (Md. 1982); Bissette v. University of
Mississippi Medical Center, 282 So.3d 507, 519 (Miss. Ct. App. 2019); Village of
Oakwood v. Makar, 463 N.E.2d 61, 64 (Ohio Ct. App. 1983). Therefore, plaintiff’s
- 15 - defamation claim can survive, if at all, only by virtue of the survival statute. Young,
35 R.I. at 262, 86 A. at 556. Our survival statute provides in pertinent part:
“In addition to the causes of action and actions which at common law survive the death of the plaintiff or defendant therein, the following causes of action or actions shall also survive.
“(3) Causes of action and actions for damages to the person or to real and personal estate.” General Laws 1956 § 9-1-6.
The phrase “damages to the person * * * [does] not extend to torts not directly
affecting the person, but only the feelings and reputation.” 8 Young, 35 R.I. at 262,
86 A. at 556. Accordingly, plaintiff’s defamation claim does not survive his death
and is abated. Id. at 262-65, 86 A. at 556-57.
8 Other jurisdictions interpreting their own survival statutes have taken a contrary view and determined that any distinction between damages for emotional distress and physical injury is arbitrary. Moyer v. Phillips, 341 A.2d 441, 444-45 (Pa. 1975); see Canino v. New York News, Inc., 475 A.2d 528, 531-32 (N.J. 1984). However, we clearly expressed our view in Young v. Aylesworth, 35 R.I. 259, 86 A. 555 (1913), when we determined whether a claim for conspiracy to defame survived the death of a defendant. Young, 35 R.I. at 262-63, 86 A. at 555-56. In Young, this Court held that the plaintiff’s claim was not a claim for “damages to the person” because we interpreted that phrase as referring to bodily or physical injury rather than damages to feelings and reputation. Id. at 262, 86 A. at 556. For that reason, we held that the plaintiff’s claim for conspiracy to defame could survive only if the plaintiff alleged that the tort directly damaged her estate itself under the “damages to * * * personal estate” language of the survival statute. Id. at 262-63, 86 A. at 556-57. Because the plaintiff was claiming injury to her reputation and because she failed to allege a direct injury to her personal estate, her claim did not survive. Id. at 262-65, 86 A. 556-57. - 16 - Breach-of-Contract
The plaintiff next argues that the trial justice erred in determining that he
failed to establish his claims for breach-of-contract. The plaintiff asserted two
breach-of-contract claims: one based on UMG’s failure to pay him “teaching
money” and one based on its failure to compensate him for patient care. We shall
first address the latter.
The plaintiff argues that the trial justice erred in finding that his breach-of-
contract claim arising from UMG’s failure to compensate him for patient care should
have been brought under the Payment of Wages Act. He contends that he need not
have brought his claim under the Payment of Wages Act because the remedies
provided by this act were cumulative, rather than exclusive of his timely claim for
breach-of-contract. Alternatively, plaintiff argues that his breach-of-contract claim
relates back to his original complaint.
The UMG defendants note that plaintiff alleged for the first time in his 2017
amended complaint that UMG breached his employment contract by failing to pay
him for patient care. Accordingly, they argue that this claim for lost wages is barred
by the three-year statute of limitations established by the Payment of Wages Act.
Ordinarily, the ten-year statute of limitations applicable to “all civil actions” is
applied to breach-of-contract claims. Bisbano v. Strine Printing Company, Inc., 135
A.3d 1202, 1209 (R.I. 2016) (quoting § 9-1-13(a)). The generally applicable statute
- 17 - of limitations provides that “[e]xcept as otherwise specially provided, all civil
actions shall be commenced within ten (10) years next after the cause of action shall
accrue, and not after.” Section 9-1-13(a). By contrast, civil actions brought to
recover wages under the Payment of Wages Act must be filed “within three (3) years
after the cause of action accrued.” Section 28-14-19.2(g). The generally applicable
statute of limitations applies “[e]xcept as otherwise specially provided.” Section 9-
1-13(a) (emphasis added). Accordingly, we have previously held that the more
specific three-year limitations period contained in the Payment of Wages Act applies
to breach-of-contract claims that are, in substance, claims brought under this act.
Bisbano, 135 A.3d at 1209-10.
The Payment of Wages Act provides that “[a]ny employee or former
employee * * * aggrieved by the failure to pay wages and/or benefits or
misclassification in violation of chapter 12 of this title and/or this chapter may file a
civil action in any court of competent jurisdiction to obtain relief.” Section 28-14-
19.2(a). This act defines “wages” as “all amounts at which the labor or service
rendered is recompensed, whether the amount is fixed or ascertained on a time, task,
piece, commission basis, or other method of calculating the amount.” Section 28-
14-1(4).
Although plaintiff styled his claim for unpaid wages as one for breach-of-
contract, his claim arises from UMG’s failure to pay him “monies for services
- 18 - rendered as a full-time employee of UMG in the months leading up to his resignation
on April 24, 2012.” Accordingly, his claim is one for failure to pay wages in
violation of the Payment of Wages Act, and the three-year statute of limitations
contained in § 28-14-19.2(g) is controlling. Bisbano, 135 A.3d at 1209; see §§ 28-
14-1(4), 28-14-19.2(a). The plaintiff’s breach-of-contract claim arising out of the
failure to compensate him for patient care was not raised until he filed the amended
complaint in 2017. Consequently, the claim was clearly filed more than three years
after UMG allegedly failed to pay him for services rendered in 2012. Moreover,
plaintiff failed to raise any argument that his patient services breach-of-contract
claim relates back to the filing of his original complaint below, and it is therefore
waived. Bouchard v. Clark, 581 A.2d 715, 716 (R.I. 1990). Accordingly, we discern
no error in the trial justice’s grant of summary judgment as to plaintiff’s breach-of-
contract claim arising out of UMG’s failure to compensate him for patient care.
The plaintiff’s breach-of-contract claim based upon UMG’s failure to pay him
for teaching duties, however, was filed on December 4, 2012, as part of his original
complaint. Summary judgment was granted as to that claim because plaintiff
testified that his teaching duties were voluntary rather than a requirement of his
employment. The plaintiff argues that the trial justice erred because under his
employment agreement, he was required to work “[forty] hours per week of clinical
patient hours inclusive of teaching and administrative activities.” The UMG
- 19 - defendants contend that UMG was not contractually required to compensate plaintiff
for teaching because this obligation appears in the “scheduling” section of the
agreement. They further argue that Dr. Epstein’s promise to pay plaintiff teaching
money was not an enforceable contract because Dr. Epstein made it after plaintiff
started teaching.
“In a breach-of-contract claim, the plaintiff must prove both the existence and
breach of a contract, and that the defendant’s breach thereof caused the plaintiff’s
damages.” Fogarty v. Palumbo, 163 A.3d 526, 541 (R.I. 2017). Even assuming that
teaching was a requirement under plaintiff’s employment agreement, he did not
provide evidence of a breach of the written agreement. Instead, plaintiff testified
that Dr. Epstein had breached a “verbal[]” promise to provide plaintiff with
“teaching money”—the additional administrative money that Dr. Epstein obtained
from the hospital each year to offset the burden of teaching. This verbal promise is
not by itself enforceable because the undisputed facts show that Dr. Epstein made
that promise after plaintiff started teaching.
Under the preexisting duty rule, “an agreement modifying a contract is not
supported by consideration if one of the parties to the agreement does or promises
to do something that he is legally obligated to do * * *.” Angel v. Murray, 113 R.I.
482, 489, 322 A.2d 630, 634 (1974). Such a modification will be enforceable only
when “(1) the promise modifying the original contract was made before the contract
- 20 - was fully performed on either side, (2) the underlying circumstances which
prompted the modification were unanticipated by the parties, and (3) the
modification is fair and equitable.” Id. at 494-95, 322 A.2d at 637.
Doctor Epstein promised plaintiff additional teaching money after plaintiff
entered into the employment agreement. Therefore, even assuming that teaching
was one of plaintiff’s contractual responsibilities, Dr. Epstein’s promise to provide
plaintiff with additional “teaching money” was not supported by consideration. See
Angel, 113 R.I. at 493-95, 322 A.2d at 636-37. The trial justice did not err by
granting the UMG defendants’ motion for summary judgment as to plaintiff’s
“teaching money” breach-of-contract claim.
Tortious Interference
Next, plaintiff argues that the trial justice erred in finding that he did not
establish his claims for tortious interference with contractual relations. Furthermore,
plaintiff argues that Dr. Epstein was a “stranger” to plaintiff’s employment contract
because he acted in his individual capacity. In response, the UMG defendants argue
that Dr. Epstein was not a “stranger” to plaintiff’s employment agreement and that,
therefore, he cannot be liable for tortiously interfering with it. They further note that
plaintiff has offered no evidence to show that Dr. Epstein’s interference was in his
own interests.
- 21 - “To prevail on a claim of tortious interference with contractual relations, a
plaintiff must show ‘(1) the existence of a contract; (2) the alleged wrongdoer’s
knowledge of the contract; (3) his [or her] intentional interference; and (4) damages
resulting therefrom.’” Tidewater Realty, LLC v. State, 942 A.2d 986, 993 (R.I. 2008)
(quoting Smith Development Corp. v. Bilow Enterprises, Inc., 112 R.I. 203, 211, 308
A.2d 477, 482 (1973)). “[T]o establish a prima facie case of intentional interference
with contract, aggrieved parties must allege and prove not only that the putative
tortfeasors intended to do harm to the contract but that they did so without the benefit
of any legally recognized privilege or other justification.” Belliveau Building
Corporation v. O’Coin, 763 A.2d 622, 627 (R.I. 2000).
Although the parties vigorously contest Dr. Epstein’s status as a “stranger” to
the employment agreement, we need not reach this issue because plaintiff did not
provide any evidence that Dr. Epstein intended to do harm to plaintiff’s contract,
which is an essential element of his claim. See Doe v. Brown University, 253 A.3d
389, 398 (R.I. 2021) (dismissing the plaintiff’s intentional interference claim
because the plaintiff failed to allege that the defendant’s actions were an intentional
interference with her contract). The plaintiff argues that Dr. Epstein tortiously
interfered with plaintiff’s employment contract by withholding “teaching money”
and by taking over plaintiff’s procedures while he was on leave, thereby
“misappropriating accounts receivable.” However, plaintiff offers no explanation as
- 22 - to how these actions were intended to harm plaintiff’s employment contract with
UMG. Further, plaintiff’s argument that Dr. Epstein interfered by “advis[ing]
[plaintiff’s] patients that he was no longer available to care for them, [and] * * * that
Dr. Epstein, himself, would take over their care” is unavailing. Based on the
undisputed facts, this alleged interference occurred on May 20, 2012, after plaintiff
resigned. Accordingly, there was no longer an employment contract with which Dr.
Epstein could interfere.
The plaintiff argues that the circumstantial evidence surrounding Ms.
Siegelman’s report could create an inference that Dr. Epstein coerced her to fabricate
the report that interfered with plaintiff’s employment contract, but he made no such
arguments to the trial justice. Therefore, this argument is waived on appeal, and we
find no error in the trial justice’s grant of summary judgment as to plaintiff’s claim
for tortious interference with contractual relations. Nedder, 459 A.2d at 962-63.
Additionally, plaintiff contends that Dr. Epstein tortiously interfered with his
prospective business relations with patients because he inaccurately advised patients
that plaintiff was no longer practicing and allegedly orchestrated the April 3, 2012
police investigation. In response, the UMG defendants argue that Dr. Epstein could
not have interfered with plaintiff’s prospective business relationships because he
never resumed the practice of medicine, so there were no prospective business
relationships with which to interfere. Furthermore, they argue that plaintiff cannot
- 23 - show that but for Dr. Epstein’s alleged interference, plaintiff would have set up his
practice in Fall River because plaintiff testified that he decided not to practice due
to the trauma he associated with hospital administration.
“The elements required to establish a claim for intentional interference with
prospective economic relations ‘are identical to those required for a claim based on
intentional interference with contractual relations, except for the requirement in the
latter that an actual contract exists.’” Lomastro v. Iacovelli, 126 A.3d 470, 474 (R.I.
2015) (brackets omitted) (quoting Avilla v. Newport Grand Jai Alai LLC, 935 A.2d
91, 98 (R.I. 2007)). Therefore, the plaintiff must show both “an intentional act of
interference * * * [and] proof that the interference caused the harm sustained * * *.”
Burke v. Gregg, 55 A.3d 212, 222 (R.I. 2012) (quoting L.A. Ray Realty v. Town
Council of Cumberland, 698 A.2d 202, 207 (R.I. 1997)). In order to show causation,
the plaintiff must show “either that but for the interference there would have been a
relationship or that it is reasonably probable that but for the interference the
relationship would have been established.” Id. at 222 (quoting L.A. Ray Realty, 698
A.2d at 207).
The plaintiff has provided no evidence that but for Dr. Epstein “inaccurately
advising client[s] that [plaintiff] was no longer practicing[,]” plaintiff would have
continued his practice in Fall River. Instead, plaintiff’s undisputed testimony
established that he did not resume practice “because of the trauma from this whole
- 24 - thing.” Despite Dr. Epstein’s alleged interference, patients still emailed plaintiff to
inquire when he would resume practice, but plaintiff never replied because he was
“too upset to respond * * *.” Therefore, it is not reasonably probable that plaintiff
would have resumed practice but for Dr. Epstein informing plaintiff’s patients that
he was no longer practicing. Burke, 55 A.3d at 222.
The plaintiff’s argument that Dr. Epstein coerced Ms. Siegelman to write the
report and took advantage of the hospital’s no-gun policy by setting up Dr. Epstein
similarly fails. There is no evidence that Dr. Epstein “orchestrat[ed]” the police pat-
down and subsequent interrogation because he did not know that plaintiff would
bring his weapon to work, then lie about it when the police and the hospital
administration investigated Ms. Siegelman’s report. As such, we deem no error in
the trial justice’s grant of summary judgment as to plaintiff’s claim for tortious
interference with prospective business relationships.
Conversion
Finally, plaintiff argues that the trial justice incorrectly concluded that he did
not establish his claim for conversion because the trial justice improperly weighed
evidence in determining that there was no nonhearsay testimony to support
plaintiff’s claim. For their part, the UMG defendants argue that summary judgment
was appropriate because plaintiff failed to offer nonhearsay evidence that he made a
demand for his personal laptop.
- 25 - “It is well-established that a demand and refusal are usually required before
an action for conversion can be brought against the possessor of a chattel who has
rightfully obtained possession from one not its owner.” Fuscellaro v. Industrial
National Corporation, 117 R.I. 558, 561, 368 A.2d 1227, 1230 (1977). In such a
case, the plaintiff’s demand for the chattel and the defendant’s refusal to surrender
it are prima facie proof of conversion. Goodbody & Co., Inc. v. Parente, 116 R.I.
437, 440, 358 A.2d 32, 34 (1976).
The trial justice found that the plaintiff failed to provide any nonhearsay
evidence to prove his demand and refusal and thus granted summary judgment as to
the plaintiff’s conversion claim. Nevertheless, on appeal, the plaintiff relies upon
the same evidence that the trial justice determined to be hearsay. In the absence of
any argument as to why disregarding the plaintiff’s evidence was in error, we see no
reason to set aside the decision of the trial justice. Nuzzo v. Nuzzo Campion Stone
Enterprises, Inc., 137 A.3d 711, 717 (R.I. 2016). Accordingly, we shall not disturb
the trial justice’s grant of summary judgment as to the plaintiff’s conversion claim.
Conclusion
For the reasons stated herein, we affirm the judgment of the Superior Court.
The papers shall be returned to the Superior Court.
- 26 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET
Jordan Nissensohn, Administrator of the Estate of Title of Case Michael Nissensohn v. CharterCARE Home Health Services a/k/a Roger Williams Medical Center, et al. No. 2022-42-Appeal. Case Number (PC 12-6232)
Date Opinion Filed January 16, 2024
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.
Written By Associate Justice Erin Lynch Prata
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Richard D. Raspallo
For Plaintiff:
James A. Ruggieri, Esq. Attorney(s) on Appeal For Defendant:
Jessica Schacher Jewell, Esq.
SU-CMS-02A (revised November 2022)