A Valuation of Emotional Distress

Saturday, December 17, 2005 | 0

IN ABSENCE OF PHYSICAL INJURY, EMOTIONAL DISTRESS IS WORTH NO MORE THAN $50,000, RULES COURT

Rainone v. Potter, NYLJ 9/26/05 (USDC - EDNY)

Plaintiff filed this discrimination action against his employer, the United States Postal Service, claiming that he was not promoted due to his gender and in retaliation for protected activity. At the conclusion of the jury trial, the jury rendered a verdict in favor of the Defendant on the claim of gender discrimination and in favor of the Plaintiff on the retaliation claim. The jury awarded the Plaintiff the sum of $11,166, representing the five year differential in salary between his original position and the promotion that he was denied. In addition, the jury awarded the Plaintiff the sum of $175,000 as damages for emotional distress caused by the Defendant's failure to promote him. The Defendant moved for a new trial on the ground that the award for the Plaintiff's emotional distress was excessive.

The Court stated that "In the employment discrimination context, there appears to be a 'spectrum' or 'continuum' of damage awards for emotional distress.... The spectrum of damage awards ranges from $5,000 to more than $100,000, representing 'garden- variety,' 'significant,' and 'egregious' emotional distress claims."

"At the low end of the continuum are what have become known as 'garden-variety' distress claims in which district courts have awarded damages for emotional distress ranging from $5,000 to $35,000. 'Garden-variety' remitted awards have typically been rendered in cases where the evidence of harm was presented primarily through the testimony of the plaintiff, who describes his or her distress in vague or conclusory terms and fails to describe the severity or consequences of the injury."

"The middle of the spectrum consists of 'significant' ($50,000 up to $100,000) and 'substantial' emotional distress claims ($100,000). These claims differ from the garden-variety claims in that they are based on more substantial harm or more offensive conduct, are sometimes supported by medical testimony or evidence, evidence of treatment by a healthcare professional and/or medication, and testimony from other, corroborating witnesses."

"Finally, on the high end of the spectrum are 'egregious' emotional distress claims, where the courts have upheld or remitted awards for distress to a sum in excess of $100,000. These awards have only been warranted where the discriminatory conduct was outrageous and shocking or where the physical health of plaintiff was significantly affected."

After citing examples of the garden-variety and significant forms of emotional distress, the Court stated that "Courts have awarded damages for emotional distress in the sum of $100,000 only in cases where the employer's discriminatory conduct has caused plaintiff stress which manifested itself in the form of severe emotional or physical reactions. For example, in Bick v. City of New York, No. 95- 8781, 1998 WL 190283, at 20 (S.D.N.Y. Apr. 21, 1998), a female sergeant succeeded against the New York City Police Department on her claims of harassment, gender discrimination, and retaliation. The jury awarded the plaintiff $750,000 in compensatory damages. The evidence at trial included testimony from the plaintiff, her therapist, and a supervising officer, who all suggested that her distress was 'far more than minimal injury.' In fact, the corroborated testimony showed that the plaintiff was 'devastated' and at times 'hysterical.' The Plaintiff also received treatment from a certified social worker trained in psychotherapy and medication from a psychiatrist. She was diagnosed as suffering from anxiety, depression and feelings of powerlessness and 'suicidal ideation.' In addition, at the time of trial the plaintiff continued to receive treatment, although she was described as improved. Based on this evidence, the court reduced the jury award from $750,000.00 to $100,000.00."

"At the high end of the spectrum are awards that are well in excess of $100,000, in cases that generally contain evidence of debilitating and permanent alterations in lifestyle. See, e.g., Ramirez v. Off Track Betting, 112 F.3d 38 (2d Cir. 1997) (award of $500,000 appropriate where the plaintiff's psychiatric difficulties had become so severe after his discharge that he was unemployable); Shea v. Icelandair, 925 F. Supp. 1014, 1021 (S.D.N.Y. 1996) (awarding damages of $175,000 for mental anguish exacerbated by Parkinson's disease and a heart condition); see also Town of Hempstead v. State Div. of Human Rights, 233 A.D.2d 451, 649 N.Y.S.2d 942 (2d Dep't 1996) (awarding $500,000 for 'pervasive and relentless' sexual harassment of a former victim of child sex abuse under New York state law under the 'deviates materially' standard). The New York 'deviates materially' standard is less deferential to a jury verdict than the federal 'shock the conscience' standard."

"The cases cited above that have upheld awards for emotional distress in excess of $100,000 illustrate the shocking nature of the award in this case. Here, there was no evidence of permanency, debilitation, or physical manifestations of distress. At the trial Rainone, his wife, and Doctor Gary Springstubb, who is a psychologist, testified as to the emotional distress the Plaintiff suffered after not being selected for a promotion from his position as a supervisor to manager in the United States Postal Service's Long Island Computer Forwarding Service."

"The sole testimony that the Plaintiff provided with regard to his non-selection was that immediately thereafter his mind was 'swimming;' that his 'future looked extremely grim;' and that he had developed sleeping and 'other manifestations.' As a result, the Plaintiff requested sick leave for approximately six months until he had used all of his leave. Remarkably, the Plaintiff emphatically testified that he did not consider himself incapacitated in 'any way, shape, or form.' Further, the Plaintiff commented that he was enjoying a 'productive life,' had published two books, and sold collectibles such as comic books on the internet auction website known as 'Ebay.'"

"The Plaintiff's wife Anne Rainone testified that after learning about the non-selection the Plaintiff was depressed, had difficulty sleeping, was 'completely distraught,' 'frustrated,' and 'completely shattered.' However, the Plaintiff's testimony indicates that he made a good recovery."

"In these circumstances, it is appropriate that Rainone's damages be reduced to an amount that does not materially deviate from the sum that would be reasonable compensation for his emotional injuries. In comparing the evidence presented on the Plaintiff's emotional distress to similar cases, it is apparent that this case falls squarely in the low end of the 'significant' range. The Plaintiff suffered from a level of emotional distress after the non-selection to the supervisor position that was more than mere 'garden variety.' The evidence of emotional distress was corroborated by the testimony of his wife. Rainone also received treatment from a psychologist for four years and was diagnosed with major depression. However, there was no evidence of physical manifestations of emotional distress or debilitating alterations in lifestyle, and no evidence of permanency. A review of comparable cases which address verdicts for emotional distress damages show that, absent serious psychological injuries, such awards generally result in less than $50,000."

"Accordingly, based on the testimony and the non-permanent emotional distress sustained by the Plaintiff as a result of the retaliation, the Court finds that the jury award for emotional distress shocks the conscience of the Court. The award for emotional distress should be reduced from $175,000 to $50,000. There will be a new trial on damages, unless the plaintiff agrees to the reduction to the sum of $50,000 for his emotional distress damages. If this remittitur is accepted, the Plaintiff would be entitled to the total sum of $50,000 in compensatory damages, and the sum of $11,166 in back wages for a total sum of $61,166."

Comment: Emotional distress is, I think, a very interesting concept in tort law. Some people can take stress and adversity better than others, just as some people can withstand and recover from physical injury better than others. But, I suppose, just as with physical injury, a tortfeasor takes a plaintiff "as he finds him." However, I can't help but feel that some of the people who claim emotional distress, were already emotionally distressed before the incident that sparked the lawsuit.

This was a Federal case. In New York State court cases, generally there must be a physical injury in order to sustain a claim of emotional distress. Otherwise, the tortfeasor must commit an act of an "outrageous" nature. What is the definition of outrageous? Whatever the jury says it is, generally, unless the act falls so far outside range of typical behavior that everyone can agree it is outrageous. And of course the goalposts are constantly moving; what was outrageous in 1960 may be considered ordinary these days; what was scandalous in 1910 might be considered laughable today. Lenny Bruce was arrested and convicted for obscenity in the early 1960s for saying things that are now routinely spoken on television.

Article by Larry Rogak. Lawrence N. Rogak is an insurance defense attorney in New York. He writes The Rogak Report, a daily insurance law newsletter, and his insurance law articles appear in several industry publications. For more information see www.Rogak.com.

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