Posts tagged as:

emotional distress

“PTSD Damages For A Non-Event”

by Walter Olson on February 10, 2009

We briefly mentioned the other day the remarkable litigation over a laptop theft which (it seemed at the time) might have led to a data breach imperiling the personal information of military veterans. The feared breach resulted in an emergency request to Congress for $160 million to provide credit counseling to veterans, and, more recently, a $20 million settlement of class-action claims brought against the Veterans Administration, based at least in part on allegations of emotional distress associated with the (unfounded, as it turned out) fear of identity theft. If you’re wondering who the biggest winner will be from all this, Bank Lawyer’s Blog is pleased to provide the answer.

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Intercom announcement mentioned his wheelchair

by Walter Olson on February 6, 2009

So Anthony Faggiani of East Islip, N.Y. is suing the Long Island Rail Road for “serious psychological injuries and distress.”

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“Can the Passengers of Flight 1549 Sue for Emotional Distress?”

by Walter Olson on January 16, 2009

Asks Dan Slater at the WSJ Law Blog.

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Suing rude and sarcastic doctors

by Walter Olson on January 16, 2009

If rudeness and sarcasm are indeed now actionable in Texas, as Amy Modica in her suit seems to be hoping they are, a lot of bloggers will have to stay out of the state.

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Football-keeping neighbor sues parents

by Walter Olson on January 3, 2009

Ohio: “The 88-year-old Blue Ash woman arrested after refusing to give a 13-year-old neighborhood boy his football back after it landed in her yard has sued the youth’s parents, alleging emotional distress. The lawsuit by attorney H. Louis Sirkin on behalf of Edna Jester contends that Paul and Kelly Tanis “and their minor children ‘regularly and without permission’ enter Jester’s yard to retrieve footballs and other play items that have been ‘carelessly tossed’ onto her property, the suit adds. …The Blue Ash city solicitor and city prosecutor later dropped the misdemeanor theft charge filed against Jester after she refused a police officer’s order to return the Tanis boy’s football.” (Barry M. Horstman, “Football keeper files lawsuit”, Cincinnati Enquirer, Jan. 3).

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“Cisco Turns Up Heat in ‘Patent Troll’ Case”

by Walter Olson on November 4, 2008

If, like Eric Albritton, you’re a successful Texas lawyer who wants to claim that critical postings on the Patent Troll Tracker blog caused you “embarrassment, humiliation, mental pain and anguish,” you might actually have to document that. (Molly McDonough, ABA Journal, Nov. 3; earlier).

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Emotional distress from seeing victims in other vehicle

by Walter Olson on August 22, 2008

Ronald Miller (Maryland Injury Lawyer Blog) on a case called Jarrett v. Jones: “The Missouri Supreme Court found [July 29] that a truck driver who was in a truck accident with another driver can sue for the emotional damages he suffered when he saw the dead victim in the other car. I’m not sure the decision is legally wrong. But it would not fly in the court of Moral Justice court.” (Aug. 8).

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More on the 9/11 Victim Compensation Fund

by Ted Frank on June 6, 2008

Rep. Sheila Jackson-Lee posed additional questions to me about my congressional testimony on the legislation to expand the 9/11 Victim Compensation Fund to cover Ground Zero dust litigation and “psychological injury.” I have posted my answers on line.

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Kenneth Mollins, attorney for peanut-suer Tehmina Haque

by Ted Frank on June 3, 2008

Walter’s post about Tehmina Haque‘s lawsuit against American Airlines over her “fear” of an unrealized peanut allergy is not the first time her attorney, Kenneth Mollins, has attempted such a tactic.

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Intentional infliction of emotional distress

by Walter Olson on June 2, 2008

Seems it’s not considered tortious when it’s done for a good cause by Mothers Against Drunk Driving and the local constabulary to a captive audience of public school students. (Balko, Reason “Hit and Run”; Pat Sherman, “El Camino teens face heavy emotions brought about by drunken-driving dramatization”, San Diego Union-Tribune, May 30). P.S. Scott Greenfield apparently has been thinking along similar lines.

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Another thought on Waddah Mustapha v. Culligan of Canada, the fly-in-bottled-water case

by Ted Frank on May 27, 2008

The Canadian Supreme Court overturned the lower court C$341,000 decision in Mustapha v. Culligan of Canada, but it’s worth noting that the result would have been different in the United States. To recap, Waddah “Martin” Mustapha saw (but did not consume) a fly in a bottled water. As Yoni Goldstein memorably recounts:

[Mustapha] proceeded to vomit all over his house, and later experienced problems drinking anything with water in it, showering (because that also involves water) and going to work and having sex (where, presumably, water was involved in some major, incapacitating way).

Culligan did not contest that it was negligent; it did not even contest that the sight of the fly caused Mustapha’s injuries. It simply argued that Mustapha’s idiosyncratic reaction was not its concern, and that it should only be liable for the reaction of the reasonable person who had seen a fly in a bottle of water. In the US, that argument does not fly: basic 1L Torts teaches the “eggshell plaintiff” rule–you take the plaintiff as you find him or her. Canada differs. “The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals.” Canada is thus less prone to the sort of absurd claims that Mustapha raised than the United States is, as, if the courts follow the law, there is less incentive to exaggerate the scope of injury. In a US case, the defendant would have to engage in expensive pre-trial discovery to demonstrate that Mustapha’s psychological disorders were not caused by the incident, and would still have to go to a jury if Mustapha could produce an expert for hire who would testify differently. According to the Canadian Supreme Court, the appropriate approach is to simply use common sense and toss the case. But, as the lower court decision shows, there are certainly some in the judiciary who wish to move the Canadian model closer to the disastrous American one.

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Canadian loses bottled-fly-in-water case

by Walter Olson on May 23, 2008

Martin Mustapha of Windsor, Ont. had won $340,000 over the fly for emotional distress and phobic reaction, though neither he nor any family member had come in contact with the water in question, since they spotted the insect before opening the bottle. Now the Supreme Court of Canada has refused to disturb an appeals court’s reversal of the award, and has ordered that Mustapha pay the water company’s legal costs. (“SCC quashes man’s suit over fly in bottled water”, CTV, May 22; earlier here and here).

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$40 billion demanded over use of newsworthy names on T-shirt

by Walter Olson on May 7, 2008

An Arizona antiwar activist has been much criticized for selling a T-shirt with the slogan “Bush Lied, They Died” along with the names of the more than 4,000 U.S. servicemen killed in the war. Parents of a soldier killed in action in Iraq are suing, saying the use of their son’s name has caused them emotional distress; they want class-action status on behalf of all the parents of other soldiers killed in action, amounting to $40 billion. The suit’s Amended Complaint does little to advance the dignity of its cause with assertions like, “Most respectfully, this is a concept that even a mentally-challenged monkey could grasp.” (Howard Wasserman, Prawfsblawg, May 5; Balko, Reason “Hit and Run”, May 6; The Smoking Gun, Apr. 23).

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Update: “Lawyer Sanctioned for Suing Over Adversary’s Deposition Questions”

by Walter Olson on April 11, 2008

Updating our Jul. 25, 2007 post:

A plaintiffs lawyer who alleged in court that his adversary’s questions at a deposition caused his client emotional distress has been sanctioned for filing a frivolous suit.

New Jersey Superior Court Judge Alfonse Cifelli entered an order March 26, assessing $2,500 in sanctions against Bruce Nagel, of Roseland, N.J.’s Nagel Rice. He must also pay his adversary’s legal fees of $11,630.

However, Cifelli stayed both payments until the Appellate Division rules on a pending appeal of his ruling last October that dismissed Nagel’s suit.

Cifelli, who sits in Newark, had found Nagel failed to state a claim, holding the litigation privilege allowed the adversary, Judith Wahrenberger, to pursue questions she considered relevant without fear of being sued and that the questions were not “extreme or outrageous.”

Nagel says he has received much encouragement from fellow plaintiff’s lawyers for his action; however, any suspension of the usual litigation privilege in favor of personal liability for attorneys would have been very much a double-edged sword, since the asking of emotionally distressing questions during depositions is not exactly a rarity on either side. (Maria Vogel-Short, New Jersey Law Journal, Apr. 9)(link fixed now).

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We were counting on you for favorable testimony!

by Walter Olson on April 8, 2008

A Utah federal court will consider the Pace family’s lawsuit against California anesthesiologist Barry Swerdlow, whom they had earlier hired as an expert witness as part of their medical liability suit against another anesthesiologist, Stephen Shuput, whom they blamed for their late daughter’s death. After agreeing to come on board as an expert for the Paces, Swerdlow examined Shuput’s deposition and concluded that Shuput had met the standard of care; he proceeded to inform Shuput’s lawyers of this, and they quickly got the case dismissed. The Paces then sued Swerdlow for “malpractice, fraud, negligent misrepresentation, breach of fiduciary duty, breach of contract, breach of the implied covenant of good faith and fair dealing, and negligent infliction of emotional distress,” to quote AMNews’s catalogue. Swerdlow conceded that he was new at the expert witness game and that it would probably have been a good idea for him to have read Shuput’s deposition earlier. The EleventhTenth Circuit ruled that a lower court should consider the Paces’s contention that they had suffered legally actionable damages from Swerdlow’s actions. (Bonnie Booth, “Expert who changed mind claims immunity, but plaintiffs still sue”, American Medical News, Apr. 14).

Judge Gorsuch, dissenting from the EleventhTenth Circuit’s ruling, wrote:

Parties already exert substantial influence over expert witnesses, often paying them handsomely for their time, and expert witnesses are, unfortunately and all too frequently, already regarded in some quarters as little more than hired guns. When expert witnesses can be forced to defend themselves in federal court beyond the pleading stage simply for changing their opinions – with no factual allegation to suggest anything other than an honest change in view based on a review of new information – we add fuel to this fire. We make candor an expensive option and risk incenting experts to dissemble rather than change their views in the face of compelling new information. The loser in all this is, of course, the truth-finding function and cause of justice our legal system is designed to serve.

(Decision of the Day, Mar. 5; Karen Franklin, Forensic Psychologist, Mar. 7; The Briefcase, Mar. 7).

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“They need to have equal rights”

by Walter Olson on March 10, 2008

A snapshot from Massachusetts of the campaign (national in scope) to create rights to sue for intangible damages against veterinarians, motorists, and others judged to have negligently killed a pet. Debra Campanile of Haverhill is on a mission to enact such a law, which, along with provisions for unbounded emotional distress damages, would require punitive damages to be awarded in a sum of at least $2,500. The story does not specify whether the $2,500 would be payable per incident or per actual creature whose life was ended, which could make quite a difference in the case of negligently knocking over Billy’s ant farm. (Laurel J. Sweet, “Push for liability in animal deaths would put….”, Boston Herald, Mar. 10).

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“38 lacrosse players sue Duke University”

by Walter Olson on February 21, 2008

Inevitably so? Maybe not. As longterm readers will recall, we were early and vocal among those calling attention to the legal travesty that was the Nifong prosecution, but it’s quite a jump from there to the proposition that the taxpayers of Durham, the university and its president Richard Brodhead personally should fork over money for emotional distress damages to, say, students never prosecuted at all and family members, who comprise the plaintiffs in this new case. (Kristen M. Daum, Newsday, Feb. 21; Bob Van Voris, “Duke Lacrosse Players to Sue School Over Rape Probe”, Bloomberg, Feb. 21; Malkin). The plaintiffs have a website here. (Corrected to fix misstatement on identity of plaintiffs. And broken link now fixed).

More: James Taranto at the WSJ quotes the Raleigh News & Observer under the heading “Yoo Hoo! Over Here! Ignore Us Please!”:

*** QUOTE ***The latest Duke lacrosse suit got off to a big start Thursday with publicists, lawyers of national renown, a media blitz at the National Press Club and a lawsuit with its own Web site.

The 38 members of the 2006 Duke lacrosse team who filed the suit in federal court say their reputations were damaged by their association to an escort service dancer’s phony gang-rape allegations.

The players chose not to appear at the news conference, said Bob Bork Jr., the group’s hired publicist, because they don’t want to attract attention.

*** END QUOTE ***

If they didn’t want to attract attention, it might have made more sense not to call a press conference. Or, if they had already called it and felt they had no choice but to go through with it, maybe they could have created a diversion by having a stripper show up or something.

The News & Observer also notes at the end of its article:

Only three members of the 2006 team have not filed suit — Matt Zash, a former captain; Matt Danowski, the current coach’s son, and Kevin Mayer.

And more: Bob Bork, Jr. writes to say he was misquoted in the News & Observer report, and says the following is a transcript of what he did say about the players’ absence:

One final comment before we start. None of the 38 players who are filing this lawsuit are here today. They considered participating, but many have jobs and some are still students and lacrosse team members at Duke. One is in Army Ranger school preparing to deploy to Iraq.

Know this — the players are united behind this lawsuit. At the same time that they are understandably concerned about retribution and slanderous media coverage. Who can blame them after what they endured for 13 months in 2006 and 2007. They are walking a fine line between trying to live normal lives in the wake of an unspeakable trauma and at the same time trying to get answers to questions that remain unanswered by their university.

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Suit: You kept me from jumping off the Empire State Building

by Ted Frank on January 15, 2008

Jeb Corliss is a professional stuntman and BASE jumper who has parachuted from the Eiffel Tower, the Golden Gate Bridge and the Petronas Towers in Kuala Lumpur, Malaysia, but apparently none of his stunts compared to the trauma of being forbidden from jumping off the Empire State Building in 2006: he’s sued for $30 million, complaining that the stress of being handcuffed to the railing (after security officers pulled him down as he was climbing over the safety railing) has caused “emotional distress” and “adrenal fatigue.” The suit is a counterclaim to a suit the building filed against Corliss (for an only slightly less implausible $12 million) meant to deter other jumpers from endangering third parties; a judge had dismissed reckless endangerment criminal charges on grounds that Corliss wouldn’t actually endanger anyone by jumping, a ruling the city is appealing. [NY Times City Room Blog]

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