Risking Privacy in Emotional Distress Claims

Lawsuits involving emotional distress claims under the Fair Employment and Housing Act (FEHA) can expose plaintiffs to possible violations of their privacy.

Emotional distress claims are filed when the plaintiff has alleged that he/she has suffered significant personal damages like emotional distress and even physical injury resulting from any unlawful misconduct that the defendant has directly, or indirectly, committed against them.

Prosecutors in an emotional distress claim should inform their clients about how “independent” medical and psychological exams may be required and how these tests may possibly violate their privacy.

By subjecting plaintiffs to independent medical and psychological tests, the defense would be able to downplay the emotional distress charges presented before the court. The defense could argue that based on the independent exams, the plaintiff may have done several acts that can justify why they were treated wrongly or that the plaintiff’s mental state is questionable.

Several emotional distress claims would include an Intentional Infliction of Emotional Distress (IIED) claim. IIED claims would often result to the defense demanding for the plaintiff’s medical records as well as additional medical and psychological testing to discredit the accuser.

Facts presented for an IIED claim are often the same with the emotional distress claim. Unless one has hard evidence to support an IIED claim, prosecutors may offer to dismiss this claim to avoid the intrusion of the plaintiff’s medical privacy. A common argument is that the IIED claim was a duplicate of the original distress claim and would just be dismissed during the summary judgment phase.

In order to avoid potential privacy violations, it would be best if the prosecution would ask the plaintiff to present a normal emotional distress claim rather than an “unusual” distress claim.

Normal emotional distress claims are also known as “garden-variety” claims and this includes any type of non-physical injury associated with the claim. Unusual or special emotional distress claims are filed when a plaintiff suffers serious personal injuries and seeks professional treatment for it.

A number of federal authorities have acknowledged that a “garden-variety” emotional distress claim can exclude plaintiffs from presenting their medical and/or psychological records.

In one particular lawsuit, Fitzgerald v. Cassil (N.D. Cal 2003) 216 F.R.D. 632, 635, the court decided that the plaintiff’s medical records are not relevant because the emotional distress claim that was filed did not include any claim for bodily injuries.

It was noted in the same lawsuit that the court also decided that the psychological records are arguably relevant but the facts presented during the trial was not sufficient to override the confidentiality privilege between a psychologist and the patient. It therefore quashed the subpoenas that the defense requested for the procurement of the psychological records.

Generally, a claim for emotional distress alone does not qualify for the “exceptional circumstance” requirement under defense psychological testing as emotional distress does not necessarily mean that the plaintiff’s mental condition is questionable.

The California Code of Civil Procedure, Section 2032.320 stipulates that a mental examination cannot be requested if: “(1) no claim is being made for any mental injury above and beyond that usually associated with the physical injuries claimed, and (2) no expert testimony concerning such emotional distress will be represented at the trial concerning the distress.”

If a plaintiff is ordered to undergo a defense medical/psychological testing, the prosecution should ensure that the Notice for Independent Medical Examinations satisfy the requirements of the California Code of Civil Procedure, Section 2032.320. The defense must provide the place, the schedule and the nature of the examination as well as the identity of the person who will conduct the information. The time and place for the examination should also be convenient to the plaintiff and their legal counsels.

Special considerations should be employed when resolving FEHA emotional distress claims to ensure that the plaintiff’s privacy is protected and that they are not subjected to further emotional trauma.

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