· Cases discussing damages for violations of Constitutional right to privacy and state privacy torts in any jurisdiction

· Damage awards under New York and New York City Human Rights laws

· Cases discussing presumed damages for defamation or slander in New York

· Damages treatises

· Damages for violation of privacy under the ADA in any jurisdiction

· Damages for emotional distress from discrimination in New York

· Intentional infliction of emotional distress in New York

· EEOC, DOJ and HHS settlements and victories that use the word “HIV” or “AIDS” nationally

· Loss of consortium extended to non-married individuals in any jurisdiction

· Cases discussing damages for emotional distress stemming from Constitutional violations

· Nothing found for damages awarded under the Privacy Act -- except Roe v. Social Security Adm. settlement (Confidentiality cases -- NY).

SURVEY

Breach of Confidentiality/Health:

Since the last update to this memo (dated 6/14/02), there is still little discussion of damages for emotional distress. Also of note, New York has not recognized a common law right of privacy. (See Andrews v. Bruk, 610 N.Y.S.2d 752 (1994). However, the 2nd Circuit has held that there is a recognized constitutional right to privacy in personal information, such that the constitution protects the individual interest in avoiding disclosure of personal matters. (Doe v. City of New York, 15 F.3d 264, 267 (1994)

New York:

• Roe v. Social Security Adminsitration, 03-CIV-3812 (settled 2004).

• Plaintiff sued Social Security Administration (SSA) and an SSA employee (Claims Representative) for disclosing plaintiff's HIV status to a third party without her consent.

• Plaintiff had applied for disability benefits, and the SSA employee who conducted the application interview elicited Plaintiff's health history and other details of her personal life and recognized the name of Plaintiff's roommate and partner. Her partner was one of the few trusted confidantes to whom Plaintiff had disclosed her HIV status. Immediately after the interview, the SSA worker told a mutual friend that Plaintiff Roe had AIDS. That person in turn spread the news to others in their social circle.

• The SSA’s breach of her privacy emotionally devastated Plaintiff. She immediately sought emergency psychiatric care and eventually underwent psychiatric hospitalization to address the trauma associated with the disclosure. She had two suicidal episodes and for months, isolated herself from virtually all social activities.

• Plaintiff charged SSA with violating the Privacy Act, and charged the employee with violating the Constitutional right to privacy.

• Defendants paid plaintiff a $65,000 settlement for her emotional distress.

• Doe v. Courtien, CV 01-1655 (SJ)(VVP) (settled 2003).

• Plaintiff sued New York City police officer for disclosing her HIV status to her sisters and nephew after she was arrested in a domestic dispute.

• Claim was based on the violation of the Constitutional right to privacy

• After discovery, case settled for $35,000 in damages and $5,000 in attorneys' fees.

• Emotional harm: at least two of plaintiff's siblings cut her off following the disclosure, which greatly upset plaintiff. She did seek mental health counseling.

• Doe v. Mobile Health Management Services, settled 2002

• Pre-litigation settlement of $50,000, covering emotional distress and about $1,000 in lost wages due to medical office's disclosure of patient's HIV status to employer

• Plaintiff had gone to medical office for pre-employment examination, during which he revealed his HIV medications after obtaining assurances of that the information would not be redisclosed to his new employer

• Medical office disclosed HIV status to employer without written release and in contravention of verbal assurances of non-disclosure.

• Word spread around plaintiff's new workplace, causing him tremendous emotional distress for which he had to take several days off, unpaid.

• Plaintiff became depressed -- crying often, withdrawing from friends and family, and isolating himself. He did not seek mental health treatment but confided in his primary care doctor.

· Powell v. Schriver, 175 F.3d 107 (2d Cir. 1999)

o Plaintiff, an inmate at Albion Correction Facility, sued a correction officer, his supervisor and the facility for disclosing to other inmates and staff members that she was an HIV positive transsexual, alleging § 1983 violations of constitutional right to privacy and Eighth Amendment right to be free from cruel and unusual punishment.

o Plaintiff complained that after disclosure she became the target of regular harassment by both inmates and guards.

o Plaintiff’s privacy claim proceeded to trial and a jury, holding only the supervisor liable, awarded plaintiff $5,000 in compensatory damages and $25,000 in punitive damages.

o The district court held that a verdict absolving the actor and holding the supervisor liable was “fatally inconsistent” and set the verdict aside, holding in favor of both the CO and supervisor. On appeal, the court held that the doctrine of qualified immunity protected both the CO and his supervisor from liability. The appeals court vacated the district court’s judgment dismissing plaintiff’s Eighth Amendment claim and remanded the case for reconsideration of this issue.

· Plaintiff saw doctor about an ear and sinus problem, and told doctor he had HIV in course of medical examination. He specifically asked doctor to keep that information confidential, and she orally agreed. Plaintiff filed for workman’s compensation asserting that the ear and sinus problem was a work-related injury, and the medical record was subpoenaed. Doctor was authorized to reveal medical information about the “above referenced claim,” but the file she sent included information about the plaintiff’s HIV.

· Plaintiff sued for compensatory and punitive damages for defendant's disclosure of his HIV status on different theories: negligence, breach of confidentiality, breach of oral contract, breach of implied contract, and invasion of privacy.

· Court affirmed that there was a cause of action for the improper disclosure of the patient's HIV status, and compensatory and punitive damages were appropriate. Damages issue reserved for trial and is not reported.

· Nolley v. County of Erie, 802 F.Supp. 898 (W.D.N.Y. 1992)

· Defendants’ Red Sticker Policy disclosed to non-medical prison staff that Nolley was HIV+ in violation of her Constitutional privacy right and New York’s Public Health Law.

· Nolley was upset by disclosure, but did not expressly link her emotional distress to the disclosures. However, she did provide ample evidence of emotional distress resulting from facility’s segregation policy, a due process violation.

· Reasoning from presumed damages in defamation per se, Court found that presumed damages are appropriate in a cause of action founded on the unwarranted disclosure of one’s HIV status, since the revelation is virtually certain to cause injury and mental distress, yet injury is difficult to prove.

· Nolley was awarded $9,300 in compensatory damages for violation of privacy: $6,200 for emotional distress, $3,100 presumed damages.

· An unrelated punitive damage award was later thrown out.

· I could not find another case discussing or awarding presumed damages for privacy violation.

· Doe v. Roe, 400 N.Y.S.2d 668 (N.Y. Sup. Ct. 1977)

· Unpublished opinion

· HIV-positive plaintiff had altercation with pharmacy employee at a medical clinic in his community. Employee stated, “you’re the m____ f___ with AIDS” three times in a loud voice in presence of twenty-five to forty people seated in waiting room.

· Plaintiff’s mother and two of his nieces were in waiting room. Before this, they did not know he was HIV-positive, as plaintiff had only told his partner and probation officer. Plaintiff did not know anyone else in the waiting room personally, but knew a few generally from around the neighborhood.

· A few days later, one of the men from the waiting room referred to plaintiff as “the one from the doctor’s office with AIDS,” and in the ensuing months continued to verbally harass plaintiff, culminating in severe physical beatings. Plaintiff suffered public humiliation, social ridicule, and significant deterioration in relationship with his mother.

· Jury awarded plaintiff $100,000. Trial court granted defendant’s motion for JNOV, Michigan Court of Appeals reversed.

· Doe v. Chand, Case No. 99-L-738-A (March, 2001)

! Doctor (Chand) and medical office appealed the judgment of the Circuit Court (Case No. 99-L-738-A, March 2001).

! Appellate court found that they were not entitled to a jury trial because the claim against them was not the required claim at common law.

! Even though it was found that the patient had shown ACA (AIDS Confidentiality Act) violations, the court stated that ACA cases did not permit punitive damage awards, therefore the award for $300,000 punitive damages was reversed.

! The court concluded that the record did not support the finding that Doe's actual damages were $600,000, since, even though there were numerous violations of the ACA, there was no mention of what the violations were, how many there were, which violations were negligent and which were intentional or reckless, and that Doe did not submit any evidence of or seek compensation for any medical bills, lost wages, or other out-of-pocket expenses.

! Based on the above, the case was remanded for a new trial on actual damages.

! Doe v. Medlantic Healthcare Group, Inc., 814 A.2d 939 (2003 D.C. App. LEXIS 2)

! Plaintiff awarded $250,000 after hospital employee gained access to his confidential medical records and spread news of his HIV diagnosis to friends and co-workers.

! As result of disclosure, plaintiff had been teased about his sexual orientation, subjected to remarks about his condition, and avoided by some co-workers.

! Even though the jury awarded the patient $250,000, the trial court granted the healthcare group's motion for JNOV.

! Upon appeal, the court reversed the trial court's judgment and remanded the case with instructions that the jury's verdict for the patient be reinstated.

· Pharmacy case: A California man sued Longs Pharmacy for invasion of privacy and violations of state regulations regarding the confidentiality of medical information after a pharmacist revealed to the man=s ex-wife and sons that the medicine the man was taking was for AIDS. The case settled before trial and the settlement remains confidential. See AIDS Policy and Law, Vol. 13, No. 18 (Oct. 2, 1998)

! Paddie v. Costales, No. CV 792049 (Superior Ct. of Santa Clara Cty., CA 2002)

Facts: Plaintiff underwent medical exam for future employer pursuant to FAA regulations. Defendant doctor revealed to future employer plaintiff's specific medical condition of Hepatits C, instead of just informing employer of satisfactory certification as required by law.

Cause of action: CA Confidentiality of Medical Information Act

Verdict: Compensatory: $650,000; punitivie: hung jury. Post-trial, judge reduced conmpensatory to $250,000 and set new trial date for punitive damages (no further information available).

Settlement: Demand for punitives: $2,000,00

! Banks v. Charter Medical - Long Beach (L.A. County Superior Court, 1992)

Facts: Defendant (hospital, parent corp., and hired writer) published advertising brochure using names and pictures of plaintiff, disclosing her medical condition.

Cause of action: common law invasion of privacy

Settlement: Demand for $500,000; Offer $200,000

Verdict: Compensatory: $274,000; punitives: $100,000 (against hospital and writer

· Ozer v. Borquesz, 940 P.2d 371 (Colo. 1997

· Borquesz told Ozer, president of his law firm, that his partner had HIV and he needed to leave work to be tested. Ozer revealed the information to wife, firm’s office manager, and two secretaries, and soon whole office knew. Borquesz was fired a week later.

· Borquesz brought wrongful discharge and invasion of privacy claims, seeking compensatory and exemplary damages.

· Jury awarded $90,841: $30,841 compensatory damages for wrongful discharge and $20,000 for invasion of privacy, and $40,000 exemplary damages.

· On appeal, CO Supreme Court affirmed recognition of tort of invasion of privacy but remanded for new trial because jury was given wrong instructions.

· Case eventually settled for $106,000 in damages and interest. (See AIDS Policy and Law, Vol. 13 No. 6 (Sept. 4, 1998)).

· Doe v. High-Tech Institute, Inc.: Former medical student won a $12,000 award from a Colorado jury on claim that the school invaded his privacy by publicly disclosing confidential medical information to third parties. The student had told his instructor that he was HIV positive and later, after a blood test for rubella, which was required of all students, the instructor marked the student=s blood sample as HIV positive. The lab that performed the test reported the result to the State Department of Health. The student sued the school and the lab for invasion of privacy. While the lab settled out of court, the school took the case to trial. Originally, the jury awarded the student $15,000, but that award was reduced by $3,000 when the jury decided that both the lab and the student were each ten percent responsible for the disclosure. See AIDS Policy and Law, Vol. 13, No. 16 (Sept. 4, 1998)

· Plaintiff’s HIV status wrongfully disclosed to his supervisors and fellow worker. Information leaked out all over office. Plaintiff claimed violation of right to privacy, which caused him to lose his job.

· Plaintiff awarded $950,000 plus attorneys fees.

· Multimedia WMAZ, Inc. v. Kubach, 443 S.E.2d 491 (Ga. Ct. App. 1994).

· Kubach agreed to participate in defendant’s live call-in show on the topic of AIDS and drug use on the condition that his face would not be recognizable to the television audience. For the first seven seconds of the show, however, defendant’s digital distortion was inadequate and plaintiff’s face was recognizable.

· Plaintiff became withdrawn, extremely depressed and almost suicidal. He refused to leave home out of fear of being recognized as an AIDS patient, and on the one occasion when he did go out he was recognized and harassed. He was unable to continue working for fear of interacting with public. Plaintiff’s doctor testified that the stress and emotional upset had a detrimental effect on his physical condition, manifested in shingles and damage to his immune system.

· Georgia Court of Appeals upheld jury award of $500,000 in general damages for invasion of privacy but wrote off punitive damage award of $100.

· Vassiliades v. Garfinkel’s, 492 A2d 580 (D.C. 1985)

· Vassiliades’ plastic surgeon used before and after photographs of her at a department store presentation and on television. On television, her face was visible for less than a minute and her name not used, but former co-worker recognized her and told friends. Store presentation was made to seventy-nine people, none of whom recognized her.

· After Vassiliades learned of disclosure, she was devastated, shocked, and felt terrible. She went into depression and would not go out in public because she thought everyone was talking about her surgery. She sought recovery only for a sixty-day period.

· Jury awarded $100,000 for the television presentation and $250,000 for the department store presentation.

· Trial judge granted JNOV on grounds the verdict was against weight of evidence, contrary to evidence, and excessive.

· Appellate court found error in granting doctor’s JNOV motion on invasion of privacy claim. It acknowledged room for large verdicts for emotional distress:

“A plaintiff whose private life is given publicity may recover damages for the harm to her reputation or interest in privacy resulting from the publicity and also for the ‘emotional distress or personal humiliation . . . if it is of a kind that normally results from such an invasion and it is normal and reasonable in its extent.’ …Actual harm need not be based on pecuniary loss, and emotional distress may be shown simply by the plaintiff's testimony… Proof of special damages is not required…Because the damages arising from the tort constitute psychic and emotional harm and the tort is defined in terms of the mores of the community… mental distress lawsuits offer the potential for large verdicts, although little objective evidence is available to test the size of a jury award for mental distress.”

· Noting the great deference due trial courts in reviewing for abuse of discretion, the court found verdict for a sixty-day period of $350,000 was at least at the outer limits of the maximum range of a reasonable verdict, and remanded for new trial on damages.

INVASION OF PRIVACY & DEFAMATION/ NON-HEALTH RELATED

· Margan v. Niles 250 F. Supp. 2d 63 (2003)

· First case brought under the federal Driver's Privacy Protection Act which not only protects the person (whose personal information was revealed), but anyone in the household.

· After obtaining benefits for an allegedly job-related injury, defendant's employer launched an investigation.

· The investigators filmed Mr. Niles, who had complained of a back injury, performing activities that were inconsistent with the alleged injury.

· Defendant obtained the motor vehicle license numbers of the investigators, then asked a friend, a Police Officer, to obtain the investigators names by cross-referencing their license data.

· That information was used to harass the plaintiff and their families

· In a settlement agreement, $325,000 was paid to 16 plaintiffs

· Anonymous 13 year old female v. McVittie Case No. 01-18487-NZ (2/7/03) (Livingston County, Michigan)

· Plaintiff, a 23 year old Aspiring model, was secretly videotaped as she was changing clothes at the talent agency where she worked.

· Plaintiff sued defendant and sought emotional distress damages for humiliation and loss of trust in people and for destroying her dream of becoming a model.

· $575,250 was awarded to the plaintiff

· Breakdown: $250,000 for IIED ($125,000 emotional distress and $125,000 examplary damages), $325,000 for invasion of privacy ($75,000 invasion of privacy and $250,000 exemplary damages)

· Faulkner v. Blackford, Case No. 02-05015-J (06/19/02) (Dallas County, Texas)

· Plaintiff, Faulkner, and defendant Blackford, ended a relationship in April 2002. Communications became hostile and plaintiff requested that defendant have no further contact with him.

· Plaintiff alleged that defendant sent emails to his supervisors at work and the president of the company. He later sent explicit photographs of the plaintiff

· Plaintiff also alleged that the defendant had admitted placing "spyware" software on the plaintiff's personal computer, and stated that he believed this software to still be operating at the time of the suit. This included stalking the plaintiff's computer use on the internet.

· The plaintiff filed suit for defamation and invasion of privacy

· Plaintiff was awarded $50,900

· Varian Medical Systems v. Delfino, Case No. 780187 (12/17/01) (San Jose, California)

· Plaintiff claim that the defendants, Delfino and Day- research scientists formerly employed by the plaintiff businesses, posted more than 14,000 defamatory and sometimes vulgar messages on more than 100 internet message boards as well as their own web site.

· Plaintiff alleged these defamatory and vulgar statements on the Internet included accusations of having extramarital affairs, videotaping office bathrooms, chronically lying and hallucinating.

· Defendants denied responsibility for some of the postings and claimed that the statements they did post were true or merely constituted opinion and hyperbole protected by the First Amendment.

· Plaintiff filed suit for libel and invasion of privacy

· Jury awarded $775,000 ($425,000 compensatory damages; $350,000 punitive damages)

· Internet Texoma v. Morales, (8/7/97) (Grayson County, Texas)

· Plaintiff, an ISP (Internet Service Provider), sued defendant to protect electronic mail and other data sought in a Republic of Texas lien investigation.

· Defendant sought email, passwords, logs, billing and other information on 17 individuals alleging the separatists had used the internet to communicate with members.

· Plaintiff contended that providing information to the state would violate the federal Electronic Communications Privacy Act and alleged that the attorney general attempted to force them to violate federal law and subscriber's privacy.

· The case settled for $12,630.

Defamation/Slander/Libel and Other Related Claims

New York recognizes presumed damages for claims of defamation, libel, or

slander per se. Given that Nolley reasoned from damages for defamation per se to find presumed damages for privacy violation, it’s worth noting that an accusation that someone had a “loathsome disease” is slander per se.

New York

· Doe v. Shields, Case No. 6410/00 (11/12/2002)

· Plaintiff, a 22 year old student, was at a social gathering at a private residence when the alleged incident occured.

· Plaintiff sued defendant, Shields, for defamation/ breach of confidentiality for telling several people at the gathering that she, plaintiff, was taking Valtrex to treat genital herpes.

· Three independent witnesses testified that defendant made such statements

· Injuries alleged: emotional distress, loss of appetite; $15,000 awarded for compensatory damages.

· Frederick v. Fried, Case No. 1017/89 (09/24/2002)

· Plaintiff brought action for defamation and slander per se against defendant, with whom he had a business relationship for over 25 years. Defendant told people that plaintiff was a thief, a crook and a crooked lawyer who stole trust funds, escrow funds and tenant's security, as well as stealing from the defendant.

· Plaintiff contended that his business interests suffered because defendant made false statements to colleagues and friends with whom he did business.

· Plaintiff was awarded $1,000,000 ($500,000 for compensatory damages; $500,000 for punitive damages).

· Simpson v. Burrows, 90 F.Supp.2d 1108 (D. Ore. 2000)

· Simpson and her partner purchased and ran a restaurant. Over the course of a year, beginning two weeks after plaintiff’s purchase of the restaurant, defendant sent twelve letters, some to the plaintiff and some to other residents of the area. The letters referred to homosexuality as an “immoral abomination” and threatened violence against plaintiff, her partner, and their supporters.

· Plaintiff suffered severe emotional distress: she and her partner broke up due to friction in the relationship caused by fear generated by the letters; she bought a gun because she was afraid all the time and felt her life was in jeopardy; she was afraid to go anywhere in the dark; she had trouble sleeping and was afraid of noises; she suffered nightmares, embarrassment, loss of dignity, and various physical problems such as stomach aches, headaches, and crying fits. In addition, business declined.

· Plaintiff filed claim under the Violence Against Women Act. Claim dismissed, but federal court retained jurisdiction over state law claims of intentional infliction of emotional distress, intimidation, invasion of privacy and libel.

· Jury trial waived. Judge awarded $200,000 in compensation for the harm to plaintiff’s emotional health and state of mind, $52,500 for loss of business, and $5000 in punitive damages. Punitive damages appropriate under state constitution because prohibition on such damages excepted for “true threats.” Additionally, judge indicated higher punitive award might have been appropriate, but plaintiff failed to introduce evidence of defendant’s financial position.

Other Jurisdictions—State

· Cable v. Todisco, 2001 WL 1555372 (Cal. Ct. App. 2001)

· Cable’s former business partner told several people he was dying of AIDS and had been practicing bad medicine. Cable’s patient referral base began to dwindle and he sought psychological treatment for depression and anxiety.

· Cable brought action for defamation and infliction of emotional distress.

· Only evidence of emotional distress mentioned in case was when Cable was asked whether he sought psychological counseling as result of what Todisco had been saying about him, he replied “yes.”

· Award for $27,000 in counseling costs (from a requested $53,760) and $250,000 for loss of business upheld.

Discrimination Cases

New York awards for emotional distress from discrimination, where plaintiff did not require medical treatment, generally range from $5,000 to $65,000. Three cases involving workplace discrimination based on disability and one based on racial discrimination in housing were higher (See Fink v. City of New York, McIntyre v. Ford, and Broome v. Biondi). Awards for emotional distress when discrimination was based on HIV status are significantly higher, as much as $5 million. Perhaps juries associate greater emotional pain with HIV than age or race discrimination. Additionally, suits for HIV discrimination may arise under statutes with no or higher caps on damages.

HIV

· D.B. v. Bloom Civ. # 93-2094 (8/15/95) (New Jersey)

· Plaintiff was refused service after dentist discovered he was tested positive for HIV.

· The refusal of treatment, the doctor's open discussion of his medical condition with other staff, and the inappropriate referral to another provider caused the plaintiff great pain and emotional trauma.

· He stopped eating and exercising, and his weight dropped from 155 to 126 pounds. His consumption of alcoholic beverages increased, and he resumed drug therapy for depression.

· He experienced suicidal urges, which manifested themselves in reckless driving, and dangerous, aggressive behavior in his work with inmates in state prisons.

· The experience also caused his relationship with his partner to end and strained his relationship with others.

· The experience left the palintiff permanently scared and "absolutely terrified" that others would react to his HIV status as the defendants did.

· Plaintiff's motion for default judgement was granted and he was awarded $31,967.61 for fees and costs in action against dentist and dental office under the Americans with Disabilities Act (ADA) and New Jersey Law Against Discrimination (NJLAD).

· Howe v. Hull 873 F. Supp. 72 (N.D. Ohio 1994)

Breach of Confidentiality/Health:

New York:

Other Jurisdictions:

Defamation/Slander/Libel and Other Related Claims

New York

Other Jurisdictions—Federal

Discrimination Cases

HIV