Weeds in the garden.(mental health experts' psychological evaluation on plaintiffs)

Publication: Employee Relations Law Journal

Publication Date: 22-SEP-04

Bookmark this article Print this article Link to this article Email this article Digg It! Add to del.icio.us RSS

COPYRIGHT 2004 Aspen Publishers, Inc.

A decade ago, just about every harassment or discrimination lawsuit came with at least two psychiatrists, one on either side of the case. The plaintiff's expert typically would testify that as a result of being harassed or discriminated against the plaintiff suffered major depression, post-traumatic stress disorder, and a variety of other ailments that would require years of expensive therapy to correct and that quite possibly, the plaintiff might never be able to work again. The defendant's expert would testify that the plaintiff was faking or grossly exaggerating her symptoms and that no diagnosable mental disorder existed. Some plaintiffs, in the apparent hope that the jury might actually buy the story if it heard it enough times, put on additional mental health professionals to document the torment suffered by the plaintiff--a treating therapist, perhaps, or even a psychologist whose battery of "tests" might provide further pseudo-objective "proof" of the plaintiffs suffering. Implicit in all of this was the assumption that a plaintiff whose mental suffering was cast in terms of diagnosed mental disorders might score a larger damage award than a plaintiff who relied just on her own testimony describing the impact of workplace events on her.

These plaintiffs who showed up in court with their mental health team in tow feigned surprise, however, when defendants sought to challenge their often-outlandish damage claims. As might be expected, defendants, through their own retained mental health experts, sought to obtain plaintiffs' medical and psychotherapy records, question them at deposition about their medical and psychiatric histories, and have them undergo mental examinations under Rule 35 of the Federal Rules of Civil Procedure. This brought squeals of outrage from the plaintiffs' bar: "Blaming the victim!" "Adding insult to injury!" "Using psychiatry to further abuse the already abused!" Plaintiffs began resisting defendants' subpoenas for medical records, and they opposed requests for Rule 35 mental examinations. Eventually a body of law developed that can be summarized essentially as the courts saying to plaintiffs: "You cannot have it both ways." If plaintiffs wanted to attempt to maximize their damage recovery via use of psychiatrists and other mental health witnesses, they' could not complain that their privacy was invaded by defendants' efforts to defend themselves by arguing that the damages suffered--if any--were the result of some other cause.

So some plaintiffs took a different tack. They claimed to have suffered only the "garden variety" of emotional distress that might be assumed to have flowed from the injury at issue. Those plaintiffs who took this approach sought to bar defendants from snooping around in their personal lives and medical histories on the theory that they were not putting their mental condition in issue, and they were largely successful. Potentially relevant prior mental and physical illnesses, suicide attempts, eating disorders, and emotional or sexual abuse could all be kept hidden by a plaintiff who sought only "garden variety" damages.

There are two problems with this, however. One is that the concept of "garden variety" emotional distress was born out of the concept of the pain and suffering that attends a physical injury. Obviously a plaintiff who suffers a broken leg does not need a psychiatrist to establish that the broken leg was painful and the recovery involved a certain amount of inconvenience and loss of enjoyment of life. These consequences are in the common knowledge and experience of most jurors, even jurors who never broke a leg. But the same cannot be said for the amount of emotional distress that may result from discrimination or harassment. Acts of discrimination might range from devastating (loss of a job after a long tenure) to picayune (denial of a preferred work assignment). Harassment might consist of sexual assault or, depending on where the plaintiff lives, "funny looks." (1) The impact of these nonphysical "injuries," moreover, varies widely from person to person and is not likely to be within the common knowledge and experience of most jurors.

The second problem is that a growing number of plaintiffs who rely on the "garden variety" theory are nonetheless seeking to have it both ways again. They are seeking to bolster their damage claims by using experts to testify not about their own suffering (because such would open the door in the defendant's probing...

Read the full article for free courtesy of your local library.