COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT CASE NO. SJC-12329 ______________________________________ DZUNG DUY NGUYEN, as Administrator of The Estate of HAN DUY NGUYEN Plaintiff/Appellant v. MASSACHUSETTS INSTITUTE OF TECHNOLOGY, BIRGER WERNERFELT, DRAZEN PRELEC, and DAVID W. RANDALL, Defendants/Appellees __________ ON APPEAL FROM THE MIDDLESEX COUNTY SUPERIOR COURT __________ BRIEF OF AMICI CURIAE AMHERST COLLEGE, BENTLEY UNIVERSITY, BERKLEE COLLEGE OF MUSIC, BOSTON COLLEGE, BOSTON UNIVERSITY, BRANDEIS UNIVERSITY, COLLEGE OF THE HOLY CROSS, EMERSON COLLEGE, ENDICOTT COLLEGE, HARVARD UNIVERSITY, NORTHEASTERN UNIVERSITY, SIMMONS COLLEGE, SMITH COLLEGE, STONEHILL COLLEGE, SUFFOLK UNIVERSITY, TUFTS UNIVERSITY, WILLIAMS COLLEGE, AND WORCESTER POLYTECHNIC INSTITUTE IN SUPPORT OF BRIEF OF DEFENDANTS-APPELLEES __________ Alan D. Rose (BBO# 427280) B. Aidan Flanagan (BBO# 675667) Antonio Moriello (BBO# 685928) One Beacon Street, 23rd Floor Boston, Massachusetts 02108 Tel: (617) 536-0040 Fax: (617) 536-4400 [email protected] [email protected] [email protected] September 7, 2017 Counsel for Amici Curiae Table of Contents TABLE OF AUTHORITIES............................... iii STATEMENT OF INTEREST OF THE AMICI................... v SUMMARY OF ARGUMENT.................................. 1 ARGUMENT............................................. 4 I. THIS COURT SHOULD NOT EXPAND MASSACHUSETTS TORT LAW TO CREATE A DUTY THAT REQUIRES NON-CLINICIAN UNIVERSITY EMPLOYEES TO SECURE STUDENTS AGAINST SELF-INFLICTED HARM ............................... 4 A. Imposing a Common Law Duty on Non-Clinician Employees is Incompatible with the Common Law Underlying the Relationship between Universities and Students .................... 4 B. Imposition of a Duty is Contrary to Massachusetts and Federal Statutory Law ...... 9 1. Imposition of a Duty Exposes Universities and their Non-Clinician Employees to the Risk of Liability Under Massachusetts Statutory Law ............ 10 2. Imposition of a Duty Exposes Universities to the Risk of Liability Under Federal Law ...................... 11 C. Imposing a Duty Will Unreasonably Require Non-Clinician Employees to Exercise Judgment on Matters for Which They Do Not Have the Requisite Expertise ......................... 15 D. Imposing a Duty Will Discourage Students from Coming Forward for Assistance with Mental Health Conditions ........................... 18 E. Imposing a Duty Will Create a Conflict Between Non-Clinician Employees and Clinicians .................................. 19 II. THIS COURT SHOULD NOT RECOGNIZE A “VOLUNTARILY ASSUMED” DUTY TO PREVENT STUDENT SUICIDE SIMPLY BECAUSE UNIVERSITIES PROVIDE CERTAIN MENTAL HEALTH SERVICES ......................................... 21 i A. The Duty Advanced By Plaintiff is Inconsistent with Massachusetts Common Law .. 22 B. The Duty Advanced by Plaintiff is Contrary to Public Policy ............................ 25 CONCLUSION.......................................... 26 ii TABLE OF AUTHORITIES Cases Baldwin v. Zoradi, 176 Cal. Rptr. 809 (Cal. Ct. App. 1981). . . . . 6, 8 Bash v. Clark Univ., No. 06745A, 2006 WL 4114297 (Mass. Super. Nov. 20, 2006) . . . . . . 5, 6, 7, 8, 9 Bogust v. Iverson, 10 Wis.2d 129 (1960) . . . . . . . . . . . . . . . . 7 Bradshaw v. Rawlings, 612 F.2d 135 (3d Cir. 1979). . . . . . . . . . . .6, 8 Cremins v. Clancy, 415 Mass. 289 (1993). . . . . . . . . . . . . . . . .5 Davis v. Westwood Group, 420 Mass. 739 (1995). . . . . . . . . . . . . . . . 22 Doe v. Emerson Coll., 153 F. Supp. 3d 506 (D. Mass. 2015). . . . . . . .7, 9 Jain v. State, 617 N.W.2d 293 (Iowa 2000). . . . . . . . . . . . . .7 Luoni v. Berube, 431 Mass. 729 (2000) . . . . . . . . . . . . . . . .5 Mullins v. Pine Manor Coll., 389 Mass. 47 (1983) . . . . . . . . . . . . . . .7, 22 Shin v. Mass. Inst. of Tech., No. 02-0403, 2005 WL 1869101 (Mass. Super. Ct. June 27, 2005). . . . . . . . . vii iii Statutes M.G.L. c. 112, § 2. . . . . . . . . . . . . . . . . 16 M.G.L. c. 112, § 80B . . . . . . . . . . . . . 16, 17 M.G.L. c. 112, §§ 118-129 . . . . . . . . . . . . .17 M.G.L. c. 112, §§ 130-137 . . . . . . . . . . . . .17 M.G.L. c. 123, § 12 . . . . . . . . . . . . . . . .10 M.G.L. c. 123, § 22 . . . . . . . . . . . . . . . . 11 20 U.S.C. § 1232g . . . . . . . . . . . . . . . 8, 20 29 U.S.C. § 794 . . . . . . . . . . . . . . . . 12, 13 42 U.S.C. § 1320d-6 . . . . . . . . . . . . . . . . 19 28 C.F.R. § 36.208 . . . . . . . . . . . . . . .14, 15 Other Authorities December 22, 2004 Letter to Bluffton University re: OCR Complaint # 15-04-2042 . . . . . . . . . . . . . . . . . . . .12 March 6, 2003 Letter to Guilford College re: OCR Complaint # 11-02-2003 . . . . . . . . . . . . . . . . . . . .13 Jan. 18, 2013 Letter to Princeton University re: OCR Complaint No. 02-12-2155 . . . . . . . . . . . . . . . . . . .15 iv STATEMENT OF INTEREST OF THE AMICI Amici Amherst College, Bentley University, Berklee College of Music, Boston College, Boston University, Brandeis University, College of the Holy Cross, Emerson College, Endicott College, Harvard University, Northeastern University, Simmons College, Smith College, Stonehill College, Suffolk University, Tufts University, Williams College, and Worcester Polytechnic Institute (the “Amici”) submit this Brief in support of defendants Massachusetts Institute of Technology (“MIT”) and administrator/faculty members Birger Wernerfelt, Drazen Prelec, and David W. Randall. Amici are eighteen Massachusetts educational institutions. They range from small, liberal arts colleges in rural areas to large, urban universities. Collectively, they enroll over one hundred thousand undergraduate students and nearly seventy thousand graduate students. Like colleges and universities across the country, Amici have experienced increases over the last several years in both the number of students with mental health conditions and the severity of those conditions. To keep up with student need and demand for mental health services, all Amici v employ, provide referrals to, or otherwise have access to, psychiatrists and other medical professionals who are trained and licensed to diagnose and treat mental health conditions. The Amici also provide, to varying degrees, on-campus mental health services, which range from referral and counseling services to on-campus mental health treatment. Nevertheless, many of Amici’s non-clinician employees routinely interact with students who may have mental health conditions. These non-clinician employees include faculty members, deans of students and undergraduate life, deans of residential life, graduate residents, residential assistants, athletic coaches, academic and thesis advisors, and others. The Amici’s non-clinician employees are an extremely varied group, with a range of education, training, and expertise covering everything from English literature to coaching basketball. Amici provide guidance to their non-clinician employees to help them identify students who may have mental health conditions and refer those students to mental health professionals. In doing so, Amici and their non-clinician employees defer — as they must — to the mental health professionals on questions concerning the diagnosis vi and treatment of students with mental health conditions. Amici have serious concerns about Plaintiff’s position that under some vague and ill-defined circumstances, universities1 and their non-clinician employees have, or may have, a legal duty to secure students against self-inflicted harm. Amici submit that the duty described for the first time in Shin v. Mass. Inst. of Tech. – a case involving a very different set of facts – is contrary to Massachusetts law, is impractical, and does not serve the interests of students. Amici, therefore, respectfully request that the Supreme Judicial Court apply to the instant case the well-settled standard that non-clinician third parties have no duty to prevent a person from committing suicide or otherwise harming herself, except in certain limited circumstances not present here, and affirm the Middlesex Superior Court’s decision to grant summary judgment for defendants in Nguyen v. MIT. 1 Amici use the terms “university” and “universities” hereafter to refer collectively to all institutions of higher education. vii SUMMARY OF ARGUMENT Plaintiff argues that this Court should find that a special relationship exists between universities and their students such that non-clinician employees owe a duty to secure students against self-inflicted harm. The Court should reject Plaintiff’s position for several distinct reasons. First, Plaintiff’s position is incompatible with the common law underlying the relationship between universities and students. Courts in Massachusetts and other jurisdictions have determined that there is no special relationship between universities and students such that universities owe a duty to constantly supervise and prevent their students from engaging in self-injurious or risky behavior. Second, the duty advanced by Plaintiff would require non-clinician employees to take actions that would be contrary to existing state and federal statutory law. Unlike clinicians, non-clinician university employees have no authority under Massachusetts law to restrain or apply for the involuntary hospitalization of students who may commit self-harm. Similarly, if a non-clinician university employee is required to take immediate steps to secure 1 a student against self-inflicted harm, and does so in a manner that excludes that student from a university program or activity, such actions may expose the university to liability under federal discrimination laws. Third, unlike clinicians, non-clinicians do not have years of graduate education, clinical training, professional experience, and licensure upon which to base judgments about a student’s mental health. Therefore, Plaintiff’s position would unreasonably require non-clinician employees to exercise judgment on matters for which they do not have the requisite education, expertise, or training. Fourth, the imposition of a duty could have a chilling effect on students with mental health conditions and other concerns. If a non-clinician university employee is duty-bound to secure students against self-inflicted harm, she may be incentivized, in an effort to avoid liability, to take the most immediate and most restrictive measures available. Students who witness such conduct may be driven underground for fear of overreaction. Fifth, the duty advanced by Plaintiff will create a conflict between clinicians and non-clinicians, 2