Education + Advocacy = Change

Click a topic below for an index of articles:

New Material

Home

Depression

Alternative Treatments

Financial or Socio-Economic Issues

Health Insurance

Hepatitis

HIV/AIDS

Institutional Issues

International Reports

Legal Concerns

Math Models or Methods to Predict Trends

Medical Issues

Occupational Concerns

Religion and infectious diseases

State Governments

Stigma or Discrimination Issues

If you would like to submit an article to this website, email us your paper to info@heart-intl.net

 ☼

~

any wordsall words
Results per page:

“The only thing necessary for these diseases to the triumph is for good people and governments to do nothing.”

  ☼

 

Breach of

HIV Confidentiality:

Overview of Emotional Distress Awards

August 2003

Legal Action Center

153 Waverly Place

New York, NY 10014

(212) 243-1313

www.lac.org

 

For more information on this memo, contact:

Sally Friedman, Deputy Legal Director, sfriedman@lac.org.

 

INTRODUCTION

This memo was written in July 2002, and updated in August 2003.  A few additional cases have been added since, but a comprehensive survey has not been performed since August 2003.                                                                   

The goal of the memo was to survey emotional distress awards in all types of confidentiality case and in other comparable areas.  The bulk of the research focused on New York State cases, but we also surveyed some types of cases in other states.  The memo surveys the following categories of cases:

·        HIV confidentiality cases or cases discussing privacy and health in any jurisdiction

·        Cases discussing damages for invasion of privacy and defamation- non-health related.

·        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.

·        Doe v. New York City Dep’t. of Soc. Serv., 1995 U.S. Dist. LEXIS 15547 (S.D.N.Y. 1995)

·        Sally’s case

·        After substantial pre-trial discovery, court approved proposed settlement of $25,000 to be divided equally among three plaintiff children whose HIV status was improperly disclosed to members of their family, other employees of the agency, people living in their building, and private citizens in contact with them.

·        No discussion of emotional distress.

·        Doe v. Roe, 190 A.D.2d 463 (N.Y. App. Div. 1993)

·        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)

·        Psychiatrist published book reporting verbatim on former patient Doe’s feelings, emotions, sexual and other fantasies and biography, intimate personal relationships and the break-up of her marriage. 

·        Court recognized right to confidentiality in all disclosures made by patient to doctor in course of treatment arising from public policy and contract.

·        As consequence of publication, former patient’s well-being and emotional health were significantly impaired for three years; she suffered from insomnia and nightmares, and became reclusive due to shame and humiliation.  

·        Judge awarded $20,000 (which included $1,500 loss in business and $1,400 in medical attention).

Other Jurisdictions:

·        Doe v. American Medical Pharmacies, Inc., 2002 WL 857766 (Mich. Ct. App. 2002

·        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)

·        Plaintiff alleged defendant physician negligently and improperly disclosed her HIV status to third parties, causing her to suffer severe emotional distress.  Plaintiff said defendant’s conduct set off chain of gossip in their small town and she was forced to leave her job due to pain and humiliation and emotional distress.

·        Case tried before judge without jury.  Court awarded $900,000.                      

·                    Doe v. Chand, 335 Ill App.3d 809 (September 4, 2002)

!                                                 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)

·        Doe v. Kokomo, No. IP 96-0235-C-G/T, (S.D. Ind. March 18, 1997):  Police officer in Kokomo, IN, demanded a new waiter because he didn’t want to be served by an AIDS-infested person.  The plaintiff sued the police department and the officer, claiming violations of the right to privacy under the U.S. Constitution and state laws prohibiting disclosure of HIV information.  Doe had revealed his HIV status to his immediate family only and a friend, who later told the officer the information.  Reynolds was on duty at the time of the disclosure.  The city settled the case for $60,000, with part going to the plaintiff and part to his attorneys.  See AIDS Policy and Law, Vol. 12, No. 7 (April 8, 1997)

·                    Dahir v. State of Cal. Dep’t of Transp., Case No. BC079 508 (1995)

·        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).

·        Gatz v. Otis Ford, Inc., 711 N.Y.S.2d 467 (N.Y. App. Div. 2000).

·        Defamation judgment awarding $25,000 compensatory damages and $15,000 punitive damages reversed because counterclaim defendant was limited in cross-examination of witnesses and precluded from introducing mitigating evidence.

·        “In cases involving defamation per se, the law presumes that damages will result, and special damages need not be alleged or proven.  However, although the existence of compensatory damages is presumed, the quantum of such damages is not, and the party who made the defamatory statement and/or publication must be permitted to rebut that presumption and disprove the amount of damages sought to be recovered.”

·                    Liberman v. Gelstein, 80 N.Y.2d 429 (N.Y.,1992)

·        Defendant accused plaintiff, among other things, of bribing a police officer.

·        Plaintiff did not allege special damages but slander claim was sustainable because it fell into one of four exceptions.  “The four established exceptions (collectively ‘slander per se’) consist of statements (i) charging plaintiff with a serious crime; (ii) that tend to injure another in his trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman.”  (Italics added).

·        Above applies to libel and slander (See Wadsworth v. Beaudet, 267 A.D.2d 727, N.Y. App. Div. 1999).

·        Jane Doe v. Merck & Co., 10786/1998 (NYLJ, June 3, 2002)

·        Plaintiff agreed to publication of her photograph in fact sheet about AIDS medication, instead photo was used in brochure for drug accompanied by fake bio suggesting she was sexually promiscuous, and had herpes as well as HIV.

·        Jury awarded $2 million in punitive damages and $1 million in compensatory damages.

·        Judge threw out punitive damage award and reduced compensatory damages to $650,000, stating the brochure’s effect on her “psychological, emotional, and overall well being” warranted a “substantial” award of $650,000

Other Jurisdictions—Federal 

·        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)

·        Plaintiff brought suit alleging that the defendants refused to provide him medical treatment because he was infected with HIV.

·        Plaintiff was allegedly on vacation, took a medication which he had not taken before, and had an allergic reaction.

·        He sought treatment from defendant who referred him elsewhere due to his AIDS/HIV status 

·        Jury awarded HIV-positive patient whom hospital refused treatment and  inappropriately referred elsewhere $62,000 in compensatory damages and a total of $450,000 in punitive damages.

 ·        Minnesota  v. Clausen 491 N.W. 2d 662 (Minn. Ct of App. 1992)

·        Defendant offered general dental services to the public and usually accepted as a patient any person who requested dental services.

·        He refused to provide dental services to the plaintiff after plaintiff tested positive for HIV.

·        Defendant testified that he believed he should refer HIV positive patients in order to protect their health and his lack of knowledge about the disease

·        The court affirmed the award of $10,000 for mental anguish and suffering for refusal of dentist to treat HIV positive patient, plus $5,000 civil penalty.

·        In the Matter of 119-121 East 97th Street Corp. et al., v. New York City Commission on Human Rights, 220 A.D.2d 79 (N.Y. App. Div. 1996)

·        Complainant’s landlords discriminated against him on the basis of sexual orientation and disability (AIDS status) by repeated verbal and written attacks over a period of a year and a half. 

·        Landlords commissioned someone or acted themselves to burglarize complainant’s apartment, disable his locks, and turn off his electricity.  They refused to accept his timely rent checks or renew his lease, and commenced eviction proceedings.  They verbally and physically accosted him and encouraged their employees to do the same, including calling him, in public, “faggot punk,” “male whore,” “sicko,” telling him he had AIDS and they hoped he died, leaving threatening messages on his answering machine, distributing a notice to tenants in his building informing them of his complaint and his HIV status and warning other tenants not to cooperate with him.  Complainant’s testimony was corroborated by his attorney, his employer, and his former superintendent. 

·        Commissioner awarded $100,000 for mental anguish and assessed a $75,000 civil penalty against the defendant.

·        Court found mental anguish award amply supported by record, specifically citing the multiple incidents of discrimination, evidence of maliciousness and existence, duration, and severity of mental distress.  During time of harassment complainant was “suffering with the serious and incurable illness of AIDS.”  During that period he suffered growing anger, sense of outrage and horror, was angry and tired of having such a negative place to live in, already felt sick at the time so the harassment made it worse, made him depressed, heard the landlord’s voice during a hospitalization for his illness, “her voice just kept coming back, that she hopes I would die from AIDS and I really thought that that was what was happening.”  He felt threatened, personally violated, feared for his own personal safety.  When the landlord publicly told him she hoped he would die a slow and painful death, it played with his worst fears of the disease since “I just know that that will be what will happen.” 

·        Complainant’s relationship with employer was damaged after landlords mailed copy of complaint with information contained that he was gay and HIV+ and the added notation that he is “dangerous and vicious.”  Where previously a lot of work would be done out of her personal home, now complainant was no longer invited.  Where previously there was a lot of hugging, after the revelation there was just distance.  Complainant felt like he was dirty and going to spread something by his mere presence. 

·        Employer testified that he was upset, disturbed, couldn’t concentrate, very nervous and disoriented.  (Court characterized this corroborating testimony as unnecessary.)

·        Civil penalty reduced to $25,000. 

·        In the Matter of Club Swamp Annex v. White, 167 A.D.2d 400 (N.Y. App. Div. 1990)

·        Complainant waiter was diagnosed with “AIDS-related complex” and confided his diagnosis to restaurant’s part owner.  Waiter was told he might have to be reassigned to kitchen, “out of sight of the patrons.”  When other part owner found out (court doesn’t say how he found out) he reduced complainant’s work schedule without explanation.  Within a month complainant was discharged because employer “couldn’t face” him in his restaurant since he had ARC. 

·        ALJ found for defendant, commissioner reversed, E.D.N.Y. upheld. 

·        Case does not discuss evidence of emotional distress but only mentions a $5000 award for mental anguish was not disturbed. 

·        Grocery Store Case

·        Grocery store in Westport, Mo agreed to settle HIV discrimination suit filed by former deli worker for $80,000 in back wages and damages.  Employee said the store manages inquired about his HIV status and revealed it to others before discharging him. 

·        Settlement announced March 11, 2002.

·        See AIDS Policy and Law, (exact cite unavailable)

·        Krause v. Quality Foods IGA

·        Krause, a fifteen-year-old with HIV, brought suit against Quality Foods (with the EEOC) for violation of ADA after she was fired because manager feared her HIV presented a danger to customers and other employees.

·        Case settled for $90,000

·        See AIDS Policy and Law, Vol. 17, No. 4 (March 1, 2002).

·                    Rich v. McDonald’s            (Case No: cv 368 481

·        Rich forced to sign medical waiver as condition of employment and revealed he had AIDS.  His award-winning McDonald’s career was subsequently thwarted and he was subjected to discrimination.

·        Jury awarded Rich $5M. 

·        See AIDS Policy and Law, Vol. 16, No. 21 (Nov. 23, 2001).

·                    U.S. v. Neurological Surgery, Inc.

·        DOJ brought suit against a group of privately practicing neurosurgeons in Tulsa for violations of the ADA after one of the doctors refused to provide medical services to an individual because of his HIV. 

·        Case settled for $40,000 damages and $10,000 civil penalty.

·                    “Philadelphia Addresses HIV Discrimination”

·        Philadelphia entered an agreement resolving a complaint alleging that Philadelphia Fire Department EMT’s refused to assist an individual when they learned he had AIDS.

·        $10,000 compensatory damages, plus a written apology to the individual and mandatory training.

·        See Enforcing the ADA—July 26, 2000: Special Tenth Anniversary Edition, 27, available at www.doj.org

·                    George Washington University HIV Discrimination Settlemen

·        Cardiothoracic surgeons at George Washington University Hospital refused to perform heart surgery on a patient with HIV in violation of the ADA.

·        Agreement required GWUH to pay $125,000 to complainant.

·        See Enforcing the ADA—July 26, 2000: Special Tenth Anniversary Edition, 29, available at www.doj.org

·                    New Orleans Dentist Liable for Refusal to Treat Patient with HIV

·        Dentist referred patients with HIV or AIDS to another dentist solely on the basis of the patient’s HIV status. 

·        Under consent order, doctor agreed to pay $60,000 in damages to the family of one deceased patient and $60,000 to another. 

·        See Enforcing the ADA—July 26, 2000: Special Tenth Anniversary Edition, 29, available at www.doj.org

·                    Shead v. Liberty Center, Inc., Case No. 89-1176 (Nov. 15, 1991)

·        Plaintiff contended defendant wrongfully denied him housing and employment in violation of Florida law because he was HIV-positive. 

·        Plaintiff contended violation resulted in humiliation, stress, and negative health effects of living on street for a year. 

·        Jury found plaintiff was discriminated against in both housing and employment by agency that receives state funding, awarded $59,000, including $20,000 punitive. 

·        Gruber v. Washington State Ferry System, Case # 91-2-23074-9 (January, 1994)

·        Plaintiff contended that he was harassed and forced to go on unpaid leave due to his HIV-positive status, and that the defendant failed to find him a suitable transfer when his heath declined so severly that he could not perfom his duties. Plaintiff further contended that his condition was worsened by constant harassment because he was a homosexual

·        Harm alleged, emotional distress

·        The jury awarded $40,000 for lost wages, $10,000 for emotional distress and $55,000 on the discrimination claim (unclear as to whether claim was due to HIV positive status or plaintiff's homosexuality). 

·        Webster v. Broward Casting Foundry, Inc., No. 00-8987 (05) (9/28/01) (Broward County, Florida)

·        Plaintiff was employed by defendant for several years. On Aug 21, 1998, he advised the defendant of his HIV status and state that he would be getting HIV treatment for 3 days at the end of the month.

·        Upon his return to work on September 4th, his employment was terminated. However, the termination was rescinded upon further explaining his absence and explaining that he would be absent periodically because of his reaction to strong medication

·        He was subsequently given a written warning for excessive absences and his employment was terminated.

·        The plaintiff filed a charge under the Florida Civil Rights Act of 1992, claiming that he was placed under greater scrutiny and treated differently than those employees who were not HIV infected.

·        Plaintiff acknowledged that his past attendance record was poor but claimed that prior to his disclosure of his HIV status, the defendant tolerated occasional lateness to work.

·        The jury awarded the plaintiff $50,000 ($10,000 in pain and suffering and $40,000 in lost wages).

·        Doe v. Koh, Commisioner for Dep't of Public Health, Number 97-1724(12/3/99) (Norfolk County, MA)

·        Plaintiff's employment was terminated after working as a manager for the defendant.

·        Plaintiff alleged that defendant terminated him ten days after disclosing to his supervisor that he was HIV positive.

·        Plaintiff was awarded $73,500 ($65,000 compensatory damages, $8,500 punitive damages)

The following cases where referenced in D. B. v. Bloom Civ. No. 2094 (8/15/95) but I could not find the cases on Lexis/Westlaw, therefore not much information included.

·        U.S. v. Castle, No. H-93-3140 (S.D.Tx 1994), reprinted in 1994 AIDS Litigation Reporter 12602 (October 11, 1994) (Consent Order) (respondents agreed to payment of $80,000 in compensatory damages to dental patient allegedly denied services due to HIV-positive status, in addition to $20,000 in civil fines. 

·        Allen v. Brottman, Case No.9K-P-D-88-132330 (New York State Division of Human Rights, January 26, 1993) (dentist denied servies to patient based on patient's sister's AIDS diagnosis, patient awarded $25,000 in compensatory damages).

·        Moloney v. All County Transportation, Docket No. 91-216PA (New York City Commission on Human Rights, July 19, 1991)(damages of $15,000 awarded for invalid coach driver's refusal to assist HIV-positive patient).

Other1

·        Butner v. Commonwealth of Massachusetts, Case # 98-1778E(9/20/02)

·        Plaintiffs were four female state troopers who became pregnant during the course of their employment.

·        Defendant's official policy was to send pregnant women to physicians for evaluations to determine whether they could continue their regular jobs, specifically, an ability to perform all functions on a essential task list provided by the defendant..

·        The doctors determined that the plaintiffs could not perform all the tasks on the list and they were placed on restricted duty.

·        Plaintiffs alleged that the task list was never adopted by the union and the task list was discriminatory in that it was not applied across the board. Further, the tasks included those most troopers never perform in their career, such as roping large animals.

  ☼

·        $1,041,000 was awarded to plaintiff ($1,000,000 in punitive damages; $250,000 to each plaintiff) for pregnancy discrimination resulting in emotional distress.

·        Griffin v. MDK Food Service, Case # 409,555 (07/03/2002)

·        Plaintiff worked as a restaurant manager at two different Denny's locations owned by MDK Food Service Inc.

·        Plaintiff claimed that he was subjected to racial discrimination from his boss and other employees.

·        Plaintiff sought damages for past wages lost and emotional distress from the discrimination and was awarded $600,000 ($500,000 in punitive damages, $100,000 in pain and suffering)

·        Shadinger v. Barram, Case # 99-CV-1743(1/17/02)

·        Plaintiffs, two white males, sought promotions which they did not receive.

·        Plaintiffs alleged they were denied the promtions on the basis of their ages, sex and race since there was a policy in effect that resulted in a pattern of promotion of minorities, females and younger individuals.

·        The jury found for the plaintiffs on the sex and race discrimination claims and awarded $115,000 ($50,000 compensatory damages for emotional distress for one of the plaintiffs; $65,000 for the other including $18,000 back pay and $47,000 compensatory damages for emotional distress.)

·        Kuehn v. Seattle-King County Dep't of Public Health (Case # not avail) (6/02)

·        Plaintiff, female autopsy technician, contented that while working as a technician for defendant, she was subjected to a hostile work environment on account of her gender.

·        Injury alleged was emotional distress and plaintiff was awarded $150,000 (including $95,000 in lost wages).

·        Cox v. Sandusky City Schools, Case # 3:00CV7657 (3/21/02) (Lucas County, Ohio)

·        Plaintiff was an assistant principal at Sandusky High School. The position of principal eventually became vacant and was awarded to another individual, a less experienced Caucasian assistant principal.

·        Plaintiff alleged that he was not given notice of the opening and had been denied an opportunity to compete because of his age and race.

·        The jury found that race was not a motivating factor, but that age was a determining factor when the defendants denied plaintiff the promotional opportunity.

·        $238,000 was awarded to plaintiff. (past and future wage loss)       

·        Robel v. Roundup Corp., 148 Wn. 2d 35 (2002)

·        Robel sued employer for disability discrimination, retaliation for filing a workers' compensation claim, negligent and intentional infliction of emotional distress, and defamation

·        Robel brought suit after sustaining workplace injury and being taunted and harassed by other workers concerning that injury.

·        Trial court awarded Robel $51,902.50 in damages, along with reasonable attorney fees and costs. The Court of Appeals reversed the trial court's judgement on all claims. However, the Washington Supreme Court reversed the Court of Appeals and reinstated the trial court's judgment regarding:(1) Robel's claim of disability discrimination, (2) retaliation for filing a workers' compensation claim and (3) intentional infliction of emotional distress. The reversal of the trial court's judgement for Robel on her defamation claim was affirmed and Robel's request for attorney fees on appeal was denied.

  ☼

·        Allenson v. Norton School Committee, Case # BRCV200001059 (3/10/03) (Bristol County, MA)

·        Plaintiff was an special needs teacher allegedly reinjured by a student after recovering from a disc herniation she suffered in an auto accident.

·        Subsequently, she unsuccessfully interviewed for two vacant special needs positions with defendant and she filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) alleging disability discrimination and retaliation.

·        The MCAD complaint was dismissed after the plaintiff filed a civil action aginst the Norton School Committee.

·        Plaintiff was eventually discharged by the defendant and asserted that she was a qualified handicapped person who was discriminated against and terminated because of her handicap.

·        Plaintiff was awarded $33,363 ($30,000 for loss of employment and $3,363 for emotional distress)                                                                                          

·        Uddin v. New York City/Admin. for Children’s Serv., 2001 U.S. Dist. LEXIS 19373 (S.D.N.Y. 2001)

·        Uddin charged ACS with national origin discrimination in violation of the Civil Rights Act after several of his supervisors subjected him to various adverse employment actions, a hostile work environment and retaliation because he was Bangladeshi.

·        Jury awarded $60,000 compensatory damages.

·        City moved for new trial on grounds that jury should not have been charged on the issue of emotional distress damages because plaintiff failed to present evidence of physical manifestations of his distress, and the $60,000 verdict could not have been reached without some award for emotional damages, and because its impossible to ascertain to portion of the award was for emotional distress.

·        Court upheld the award, pointing out plaintiff pointed to concrete emotional problems having tangible physical consequences, including insomnia and reduced energy due to depression; distress not limited to humiliation. 

·        Fink v. City of New York, 129 F.Supp.2d 511 (E.D.N.Y. 2001)

·        Plaintiff, retired fire marshal, prevailed on claims of discrimination on the basis of military status and perceived disability, a hearing loss.

·        Fink was awarded $300,00 for emotional distress.

·        Evidence consisted of plaintiff’s testimony and that of his wife.  Plaintiff testified that as a result of defendant’s actions he went to work sick to his stomach (where previously he loved his job), he was upset, had headaches, got up in the middle of the night, didn’t look forward to going to work.  He was embarrassed to be thought of as disabled, like he was not a real man.   Court found him credible and a conscientious worker whose work was an essential element of his identity and self-esteem and who had been humiliated by the defendant’s actions.

·        Considering the frequency of plaintiff’s symptoms, the etiology of his emotional distress, which persisted over the course of years and was ongoing as of trial, the court remitted the emotional distress damages to $175,000.

                     Annis v. County of Westchester, 136 F.3d 239 (2nd Cir. 1998). 

                     Plaintiff, a police officer, alleged sex discrimination on the job and brought suit under § 1983.  She prevailed on the question of liability, but the case was remanded on the question of damages.

                     Annis received counseling for her emoitional distress, but did not corroborate this fact with affidavits or other evidence.  Her only evidence was her own testimony, which was insufficient.  No concrete emotional problems were proven. 

                     Evidence of a sexually charged atmosphere and difficulty advancing in the police force for reasons not directly related to sex had been wrongly admitted in the district court.  The evidence of a sexual atmosphere pre-dated defendant's interaction with plaintiff and was unduly prejuducial. 

                     Petramale v. Local No. 17 of Laborers Int'l Union, 847 F.2d 1009 (2nd Cir. 1988). 

                     Plaintiff, a union member, brought suit after he was disciplined for disrupting a union meeting and making allegedly slanderous comments towards union officials. 

                     Jury awarded Petramale $200,000 in emotional damages.  The appellate court remitted the award to $100,000. 

                     Plaintiff became moody and argumentative and had marital problems leading to separation.  Union members refused to speak to plaintiff.  Plaintiff became nervous and experience trouble sleeping. 

                     Plaintiff's testimony regarding physical effects was open to challenge on cross-examination and the jury was entitled to believe him, so district court's judgment n.o.v. was reversed.

                     Plaintiff testified as to nerves and sleeplessness but there was no medical testimony.  Plaintiff did not seek medical help.  Unclear how much of problems were caused by illegal punishment rather than general problems with the union. 

                     The award was excessive given the amount of evidence.

                     Tanzini v. Marine Midland Bank, 978 F.Supp 70 (N.D.N.Y. 1997)

                     Plaintiff alleged age and disability discrimination in a termination decision, bringing suit under the Age Discrimination in Employment Act and the New York Human Rights Law. 

                     The jury awarded $200,000 in compensatory damages.  Appellate court remitted to $30,000. 

                     Plaintiff and wife's testimony provided the evidence of distress.  Plaintiff was in a state of shock and experienced memory loss, loss of sleep, headaches, nervousness and short-temper.                        

                     Plaintiff did not produce evidence regarding duration or magnitude of his j\injuries.  He also did not provide evidence that he sought medical or psychological care. 

                     Federal district courts must apply New York law in determining whether damages awards on diversity claims are excessive.  Courts look at whether the award deviated materially from what is considered reasonable compensation.  Other verdicts are used as comparison. 

                     Binder v. Long Island Lighting Co., 57 F.3d 193 (2nd Cir. 1995)

                     Plaintiff alleged age discrimination under the Age Discrimination in Employment Act and the New York Human Rights Law. 

                     Jury awarded $497,738 for emotional distress.  The district court remitted the award to $5,000. 

                     Evidence consisted of plaintiff's testimony about inability to support his family and his resentment about his treatment. 

                     Overruled on other grounds, Zimmitti v. Aetna Life Ins. Co., 1997 U.S. App. LEXIS 36173

                     Carter v Rosenberg & Estis, No. 95 Civ. 10439 (S.D.N.Y. Mar. 31, 1998)

                     Plaintiff sued for violation of Title VII and the New York Human Rights Law, alleging sexual harassment and discrimination.

                     Jury awarded $75,000 in compensatory damages.  The district court remitted the award to $15,000. 

                     Plaintiff gave the testimony regarding her emotional harm, which consisted of being very upset and crying uncontrollably.  She testified that she attended treatment for a year but did not testify regarding her emotions during therapy or its effects.  Her only phycial harms were minor (unlike drinking, blood pressure, suicidal ideations) and often unfounded and were not proven to relate to her termination or subsequent anguish. 

                     Plaintiff's therapist corroborated testimony of upset, but could not compare her condition to her state before the termination.  An expert witness also corroborated, but spoke to no one other than plaintiff and her attorney in performing his evaluation.  He was not her treating physician but only an expert preparing for trial. 

                     Plaintiff did not indicate magnitude, duration of serverity of distress. The lack of detail forced the jury to speculate, invalidating their award. 

                     Rivera v. Baccarat, 10 F.Supp.2d 318 (S.D.N.Y. 1998)

                     Vacated on other grounds.

                     Plaintiff alleged termination because of national origin.

                     The jury awarded $125,000, which the court reduced to $20,000. 

                     Plaintiff testified that she is nervous and has trouble sleeping.  She is anxious at work and had socializing problems.  Her anxiety causes stomaachaches.  Her two daughters corroborated her testimony of depression and anxiety. 

                     Plaintiff embarked upon major acitivies soon after being fired, including a vacation to Korea.  She did not seek medical or psychological treatment for a year.  When she did see a doctor, it was after termination from another job. 

                     There was no humiliation, as the reasons for termination were not published.  She was also dealing with another firing and her mother's sickness.

                     In a later proceeding at Rivera v. Baccarat, 34 F.Supp 2d 870 (1999), the plaintiff was awarded back pay including fringe benefits which amounted to $104,373.

                     Trivedi v. Cooper, 1996 U.S. Dist. LEXIS 18715 (S.D.N.Y. Dec. 17, 1996)

                     Plaintiff sued for employment discrimination under §§ 1981 and 1983 based on national origin, alleging harassment, failure to promote and retaliation. 

                     Jury awarded $700,000, which the district court remitted to $50,000. 

                     Plaintiff produced no evidence of cousneling, physical injury or other actions associated with emotional distress.  The only testimony offered was statements that plaintiff was starved for professional growth and felt indignant and unhappy

                     Lutnick v New York City Health and Hospitals Corp., 1995 U.S. Dist. LEXIS 12346 (S.D.N.Y. 1995)

                     Plaintiff sued under the Federal Rehabilitation Act.

                     Jury awarded $36,056 without specification, which the defendant claimed was awarded for emotional damage even though the plaintiff did not request damages for that purpose. The court upheld the award. 

                     Plaintiff's doctor testified to her depression and agitation due to her inability to return to work.  He also testified that she could have been reasonably accomodated and that working would have helped.

                     Plaintiff testified to her mental injury, and jury observed her.  She also testified to the "depths of her depression" by describing suicidual ideation.  She attributed her depression to her lack of distraction from physical suffering, which work would have provided.

                     Wade v. Orange County Sheriff's Office, 844 F.2d 951 (2nd Cir. 1988)

                     Plaintiff, a corrections officer, alleged racial employment discrimination under §§ 1981 and 1983 as well as Title VII. He alleged harassment as well as dsicrimination in pay and job asssignments. 

                     The jury awarded $50,000 in emotional damages.

                     More than a dozen witnesses testified, and the case turned on their credibility before the jury.  A jury's credibility assessment is entitled to deference.  

                     Superseded by statute on the ground that Title VII does not provide for recovery of compensatory or punitive damages.  See Natale v. Mount Sinai Medical Ctr., 1993 U.S. Dist. LEXIS 8470.

                     Ginsberg v. Valhalla Anasthesia Assoc., P.C., 96 Civ. 6462 (1997).

                     Plaintiff sued alleging pregnancy discrimination.

                     Jury awarded $500,000 in compensatory damages. 

                     Plaintiff testifed that she felt the worst she had in her life and that she sought psychiatric treatment and was prescribed anti-depressants.  She also lost her career.  She was no cross-examined.

                     While plaintiff can corroborate her testimony by reference to circumstances of misconduct and is not required to produce expert or medical witnesses, the court must consider the absence of corroborating evidence in assessing damages. 

                     Since she did testify to psychiatric treatment and the jury credited her testimony, remitted to $100,000.

                                             New York City Transit Authority v. State Div. of Human Rights, 181 A.D.2d 891 (N.Y. App. Div. 1992)

                                                                     Employee bus driver sued employer New York City Transit Authority (NYCTA) for acts of sex discrimination relating to employee's pregnancy, including refusing to place her on restricted duty during her temporary disability due to pregnancy and refusing to restore her to full-duty after her miscarriage.

                                                                     The Administrative Law Judge (ALJ) found that the NYCTA acted intentionally, and that such acts caused employee anguish, guilt, depression, and anger.

                                                                     Relying on the ALJ's recommendations, the Commissioner held that the NYCTA discriminated against employee on the basis of her pregnancy, and awarded her $450,000 in compensatory damages.

                                                                     On remand, the award was found to be excessive, and the matter was remitted to the respondent for a new award not to exceed $75,000.

 

                                                                     The Supreme Court, Appellate Division found that there is sufficient evidence in the record that the complainant was subjected to repeated acts of intentional sex discrimination, and that such acts will continue in the future, to assure that the damages for the complainant's mental anguish was not excessive, arbitrary or punitive.

                                             Nairn v. Nat'l R.R. Passenger Corps., 837 F.2d. 565 (2d Cir. 1988)

                                                                     Railroad employee sued employer National Railroad Passenger Corporation (Railroad) for work-related injury.  The jury found the Railroad negligent, and awarded employee damages in the amount of $765,000.

                                                                     The Railroad moved for a new trial on the issue of damages, and the district court judge denied the motion.

                                                                     Appeal was taken by the Circuit court, which held that the award to the employee, who had 15% functional impairment and was unable to return to employment with the railroad but had obtained employment elsewhere was excessive, and remanded the case for a new trial on the damages.

                                                                     The Circuit court calculated that $350,000 was a reasonable award for past and future lost earnings, but the $400,000 for pain and suffering was not consistent with the damages awarded in other cases involving similar injuries, even while bearing in mind the unique set of facts and circumstances of the present case.

                                             Shea v. Icelandair, 925 F.Supp. 1014 (S.D.N.Y. 1996)

                                                                     Plaintiff employee sued employee Icelandair for demoting him based on his age, and the jury awarded him $250,000 in damages for pain and suffering, mental and emotional distress, anguish, and humiliation.

                                                                     Employer moved for a new trial on the issue of damages or, in the alternative, for remittitur and employee moved for reinstatement.

                                                                     The district court held that a limited remittitur of $75,000 is appropriate, which reduces the award to $175,000, which is the maximum recovery that would not "deviate materially" from awards in cases with similar characteristics.

                                             Miner v. City of Glens Falls, 999 F.2d 655 (2d Cir. 1993).

                                                                     Former police officer brough § 1983 action againt the City of Glens Falls alleging deprivation of property interest in job  without due process.

                                                                     The district court awarded police officer compensatory damages in the amount of $12,000 for his lost wages, lost pension benefits and emotional distress, with attorney's fees, pre-judgment interest and costs, on the claim that employment was terminated without due process, and appeal was taken.

                                                                     The Court of Appeals held that police officer showed that violation of constitutional right to procedural due process caused actual injury, and affirmed the district court's award of substantial damages because police officer proved the element of causation at the summary judgment stage of the proceeding.                    

·        Shannon v. Fireman’s Fund Insurance, 156 F.Supp.2d 279 (S.D.N.Y. 2001)

·        Plaintiff alleged age discrimination in termination decision and brought suit under the New York Human Rights Law and New York City Human Rights Law.

·        Shannon was in state of shock at termination.  Since that time he experienced anxiety, irritability, sleeplessness, stress and depression, exacerbated by an unsuccessful job search that was humiliating and caused him to lose self-esteem.  Firing also caused him to lose interest in sex and to be unable to have sex, diminished his interest in socializing.  Testimony corroborated by wife and physician.

·        Jury awarded $80,000 for emotional suffering.  Defendants requested award be remitted to $25,000, arguing $80,000 was far greater than awards in discrimination cases with more substantial evidence of emotional suffering.

·        Court remitted to $40,000.

·        In extensive discussion of jury verdicts in discrimination cases, court recounted that with so-called “garden-variety” mental anguish claims (those not requiring medical treatment,) awards hover in the range of $5,000 to $30,000.  Evidence that plaintiff sought medical or psychiatric treatment generally entitles him to greater mental anguish and emotional distress damages.  The court listed recent N.Y. cases where courts remitted excessive jury awards in “garden variety” emotional distress claims under the NYHRL:

·        Fowler v. N.Y. Transit Auth., 2001 WL 838228 (S.D.N.Y. 2001): court remitted jury's award of $ 50,000.00 to $ 25,000.00, where plaintiff complained of headaches, tension, emotional stress, anxiety and vomiting to her treating physician, plaintiff's physician prescribed Ativan to help alleviate her symptoms and recommended her for a psychiatric consultation, and plaintiff's physician relied on her representations regarding her condition and the source of her distress.

·        Kim v. Dial Serv. Int'l, Inc., 1997 U.S. Dist. LEXIS 12544, (S.D.N.Y. 1997), aff'd, 159 F.3d 1347 (2d Cir. 1998): reducing $ 300,000.00 award to $ 25,000.00 after applying "shock the conscience" standard where the plaintiff testified and his wife corroborated that he felt "gloomy," had lost weight, drank more, lost interest in socializing, took sedatives, and had trouble sleeping

·        McIntosh v. Irving Trust Co., 887 F. Supp. 662 (S.D.N.Y. 1995): remitting $ 219,428.00 compensatory damage award to $ 20,000.00 where plaintiff testified that he felt humiliated, shocked, and angry, suffered weakness in his legs, and experienced pains in his stomach and chest, but where plaintiff "did not testify in any detail with respect to the magnitude or the duration of any mental distress" and "there was no evidence that the plaintiff sought any medical or psychological help except for one visit to a doctor while he was still employed"

·        Borja-Fierro v. Girozentrale Vienna Bank, 1994 U.S. Dist. LEXIS 7088, (S.D.N.Y. May 27, 1994): reducing a damage award for mental anguish suffered in connection with a retaliatory discharge from $ 160,000.00 to $ 15,000.00 where plaintiff went to a psychologist in part because of the discrimination by the defendant and was the only witness to testify to his mental anguish -- the court characterized the plaintiff's testimony as "brief" and "not particularly strong.”

·        Walia v. Purmasir & Assoc., 160 F.Supp.2d 380 (E.D.N.Y. 2000)

·        Walia won a default judgment against defendants in suit under the Civil Rights Act and New York Human Rights Law for sexual harassment.

·        In addition to inappropriate touching, Purmasir told “other people” Walia was a whore and a slut.  Though on-the-job harassment lasted only three days, effects were longstanding and disproportionate as result of reaction of plaintiff’s family and community.  Plaintiff testified that in her culture, the woman is blamed for the man's conduct.  This cultural acceptance of Purmasir's lack of responsibility, coupled with his defamatory statements, were perceived by her family and friends to have brought shame on Walia and on her family. She suffered humiliation and was laughed at by her former classmates, colleagues, and friends, felt she was forced to drop out of school, and moved away from her family. She had trouble socially with her relationships with men, and cited one example of a boyfriend who began to abuse her when he learned of the incident.  

·        Court recommended $30,000 in compensatory damages under NYHRL for physical and emotional distress, plus related health care costs. 

·        Court noted compensatory damages in recent cases where plaintiffs complained of similar injuries ranged from $5,000 to $65,000:

·        See Anderson v. Yarp, 1997 U.S. Dist. LEXIS 540 (S.D.N.Y. 1997) (finding $65,000 award appropriate).

·        Town of Lumberland v. New York State Div. of Human Rights, 229 A.D.2d 631 (2d Dep't 1996): reducing $150,000 award for emotional distress and humiliation to $20,000 where plaintiff testified she was '"very, very upset,' 'humiliated,' 'embarrassed to be seen in the town,' she 'couldn't eat,' 'cried' . . . 'a mess,"' but did not present any other evidence of the severity and consequences of her condition.

·        Gleason v. Callanan Industr., Inc., 203 A.D.2d: finding an award of $54,000 to be supported by the evidence that plaintiff suffered from irritable bowel syndrome, migraines, pains in her sides, insomnia, depression, mental shock, and concerns as a single mother about her ability to support herself and her child.

·        New York State Dep't of Correctional Servs. v. State Div. of Human Rights, 207 A.D.2d 586: reducing $25,000 award of compensatory damages for mental anguish and humiliation to $10,000 where there was an absence of proof apart from plaintiff's testimony that she felt depressed and angry, lost sleep, became involved in arguments with her fiancé, and saw a psychiatrist five or six times in 1985

·        City of Fulton v. New York State Div. of Human Rights, 221 A.D.2d 971 (4th Dep't 1995): finding $50,000 in mental anguish damages to be excessive and awarding $10,000 where plaintiff felt "very upset and disappointed," "bad," "lost sleep," and was "mean at home."

·        Port Washington Police Dist. v. State Div. of Human Rights, 221 A.D.2d 640: finding award of $200,000 for compensatory damages for mental anguish to be excessive and reducing the award to not exceed $ 5,000.

·        Anderson v. Yarp Restaurant, Inc., 1997 U.S. Dist. LEXIS 560 (S.D.N.Y.  1997)

·        Plaintiff brought action under Civil Rights Act and New York Human Rights Law for sexual harassment. 

·        Harassment made plaintiff feel like “insides were eaten out.”  She was unable to get job elsewhere because she was afraid of men, afraid if she turned her back she’d be jumped, didn’t feel safe anymore, felt like she could not protect herself, had trouble sleeping and occasional suicidal thoughts.  Her therapist testified that plaintiff suffered delayed emotional trauma as result of harassment. 

·        Jury awarded $65,000 in compensatory damages and $50,000 in punitive.

·        Defendant’s motions for new trial or remittitur denied.

·        McIntyre v. Ford, 669 N.Y.S.2d 122 (N.Y. 1997)

·        Plaintiff subjected to extreme sexual harassment.  Plaintiff felt humiliated, intimidated, and insignificant, like she was being treated as an animal rather than a person.  She went to a psychologist until she could no longer afford his fees.  Psychologist testified that work was central to her life, both financially and emotionally, and that she was torn between the job's importance in her life and having to cope with the behavior that she was subjected to. This caused plaintiff to be "confused, distraught and anxiety ridden." After her termination, she was less distraught because she was no longer in an abusive environment.  However, with regard to her future, the doctor prophesied that plaintiff would have a difficult time because she would be apprehensive about a reoccurrence at any new job and would suffer from anxiety about her performance.

·        Jury awarded $1,600,000 compensatory and $5,000,000 punitive.  Judge remitted to 650,000 for emotional pain and suffering, $ 53,000 for lost wages and $ 3,000,000 in punitive damages.   

·        Broome v. Biondi, 17 F.Supp.2d 211 (S.D.N.Y. 1997)

·        Broome’s filed claims for racial discrimination, intentional infliction of emotional distress and civil rights violations after their application for an apartment was rejected.  Emotional distress claim failed but jury awarded plaintiff’s $230,000 in compensatory damages for emotional injury and economic loss and $410,000 in punitive damages on their discrimination claims. 

·        Wife testified she felt embarrassed and humiliated by the incident, that it was her “worst nightmare.”  She was reduced to tears during the apartment board interview and again upon learning their application was rejected.  She was afraid to tell her husband they were rejected because she knew how much it would hurt him.

·        Husband testified he felt angry and demoralized, and it was difficult for his feelings to go away.  His confidence at work was affected by fear that clients would not trust his advice after they met him.

·        Award upheld.

·        Portee v. Hastava, 1996 U.S. App. LEXIS 27320 (2d Cir. 1996)

·        Portees, an interracial couple with one child, were discriminated against in housing. 

·        White wife testified she felt hurt for her husband, because she thought that the situation was embarrassing to him. She suffered at her job, could not concentrate on simple tasks, and she was very nervous. She made many little mistakes at work. Her co-workers confirmed that for a period of one or two months following the incident she was not herself, was not able to perform even simple tasks adequately.  She appeared to recover fully in a working capacity within a month or two.

·        Husband testified that from the moment realtor refused to speak with him and refused to let him sign the lease, he felt "low, like I was a low-life animal."  Since then he has felt: “[a] deep hurt, very deep hurt. He also testified to other emotional and physical problems as a result of the discrimination, including not wanting to go out, not wanting to be with people, feeling bad and low, drinking to the point of harming his liver and his nerves.  Wife corroborated that he was often drunk, wouldn't talk to anybody and he was angry all the time.  He also experienced turmoil at work and in his marriage: snapping at the people he worked with, not wanting to go to work, yelling at his wife when they talked about the incident.  When asked if he had sought treatment for any of the problems he had experienced, he said, "Well, I spoke to a few doctors and I checked out a few AA's, but I haven't made them yet, but I'm planning on it."

·        Son was five when the events took place. He testified that he was very happy and excited when the family was looking at the house, because he "was finally going to get a backyard to play in". After seeing the realtor take the key from his mother's key ring,  he was "sad" because he "wasn't going to get the basketball hoop and pool and my own room." For a few months after the incident, when his parents argued, he was sad and upset because he did not want them to argue, although he had no idea what they were arguing about. 

·        Jury awarded general compensatory damages for emotional distress: $100,000 each to parents and $80,000 to son.  Punitive damages were also awarded.

·        District court found awards shocked the conscience and ordered partial new trial on issue of compensatory damages.  Jury reduced damages to $50,000 to husband, $30,000 to wife, and $18,000 to son.  Those damages were upheld by the second circuit.

·        In the Matter of New York City Transit Authority v. State Division of Human Rights, 181 A.D.2d 891 (N.Y. App. Div. 1990)

·        Plaintiff bus driver discriminated against on basis of gender for period of fourteen months before, during, and after her pregnancy.  Defendants refused to put her on restricted duty during time of her temporary disability due to pregnancy, refused to restore her to full-duty status after her miscarriage, required her to submit to psychiatric evaluation when she requested reinstatement to full-time duty, and forced her, when she requested restricted duty, to go out on unpaid leave for eight months.

·        Plaintiff suffered anguish, guilt, depression, and anger at the time of each occurrence, and mental anguish persisted for more than six years.  Commissioner concluded mental anguish would continue for rest of her life.

·        Commissioner awarded her $450,000 in compensatory damages arising from the four incidents of sex discrimination.

·Award upheld because, though high, plaintiff had been subjected to repeated acts of intentional sex discrimination and suffered mental anguish over long period of time, which will continue in the future.

EEOC Discrimination Suits Since March, 20002

CHARGE

AGAINST

DATE

AMOUNT & TYPE

Pay discrimination and retaliation

Baltimore Cable Access Corp.

36643

$45,000—Consent decree

ADA violation for firing retarded worker

Chuck. E. Cheese’s

March 15, 2000

$13M jury award punitive reduced by court to $230,000, $70,000 for emotional distress

Racial harassment and race based discrimination

Direct Marketing Services

May 5, 2000

$700,000 consent decree (to be distributed among eleven people)

Sexual harassment

Grace Culinary Systems

June 1, 2000

$1M settlement for class of 22 women

Race discrimination

London International Group

June 12, 2000

$625,000 settlement for class

Same-sex harassment

Burt Chevrolet (Colorado)

August 4, 2000

$500,000 for 10 former employees

Title VII

Mondrian Hotel

August 9, 2000

$120,000 per valet/bellman

 

Racial harassment

Louisiana Car Dealership

August 16, 2000

$200,000 settlement for six individuals

Harassment based on race, sex, religion, and national origin

Josephthal

August 29, 2000

$330,000 settlement for six individuals

ADA violation

Arkansas auto dealership

August 31, 2000

$160,000 settlement plus attorney’s fees

National origin discrimination

Premier Operator Services

September 19, 2000

$50,000 compensatory and punitive per worker, awarded by judge

Sex bias suit

CBS

October 25, 2000

$8 M settlement for class of 200 women

Racial harassment

Sun AG

October 30, 2000

$249,000 settlement

National origin bias

Com-Ed

November 2, 2000

$2.5M settlement for class

Disability discrimination

La Cruz Azul (Blue Cross) of Puerto Rico

December 6, 2000

$200,000 settlement

 

Gender discrimination

Landis Plastics

December 6, 2000

$782,000 settlement for class of 11

Gender Discrimination

Nationwide Trucking

December 7, 2000

$450,000 settlement for six individual

Race and sex bias

Optical Cable

February 21, 2001

$1M settlement for class

Racial harassment

Georgia-Pacific

April 3, 2001

$200,000 settlement for four individuals

Sexual harassment, racial discrimination and retaliation

Charoen Pokphand

April 10, 2001

$485,000 for seven individuals

English-only and national origin discrimination

University of Incarnate Word

April 20, 2001

$2.44 M settlement for four individuals

Age discrimination

University of Wisconsin Press

May 10, 2001

$430,000 for four individuals

Sexual harassment and retaliation

TWA

May 24, 2001

$2.6M for class

Racial harassment

Beverly Enterprises

June 2, 2001

$1.2 M settlement for nine individuals                            

Race and sex discrimination

Ingersoll

July 13, 2001

$1.8 M consent decree for class

National origin bias

Solomon Smith Barney

July 16, 2001

$635,000 for thirteen individuals

Sexual harassment, national origin bias and retaliation

Quality Art LLC

August 8, 2001

$3.5 M settlement for class

Disability discrimination

United Blood

August 21, 2001

$650,000 consent decree

Sex discrimination and retaliation

Outback Steakhouse

September 19, 2001

$2.2 M by jury ($64,000 back wages, $50,000 compensatory, $2.1 M punitive)

Sexual and race harassment

General Motors

September 26, 2001

$1.25 M consent decree for sixteen individuals

Race, gender, age, national origin discrimination and harassment

Global Logistics

October 1, 2001

$9 M consent decree for class

Race discrimination

McKesson

March 6, 2002

$1.2 M settlement for class

Sex bias

Rent-A-Center

March 8, 2002

$47 settlement for class of over 5000

Racial harassment

Apollo Colors

March 27, 2002

$1.8 M settlement for 32 individuals

Age Discrimination

Beverly Hilton Hotel

37677

$220,000 consent decree for 15 individuals

Class Racial Discrimination

The Industrial Company

37718

$2.5 M settlement by consent decree

Racial Harassment

St. Louis Nursing   Home

37073

$1.2 M settlement

Sexual Harassment

Applebee's International  Inc.

37794

$1.55 M (Includes $10,000 to 5 women for emotional pain and suffering and $500,000 each for 3 of the 5 women for punitive damages)

Sexual Harassment

Pizza Hut

37790

$360,000

 

Intentional Infliction of Emotional Distress in New York

Under New York law, a claim for intentional infliction of emotional distress requires a showing of (1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress.  (See Stuto v. Fleishman, 164 F.3d 820 (2d Cir. 1999).  From my brief research, it seems most IIED claims fail, usually because the court finds the conduct complained of not sufficiently outrageous to satisfy the first element.  (See Andrews v. Bruk, 610 N.Y.S.2d 752 (1994), acknowledging that the New York Court of Appeals had dismissed every IIED claim presented to it thus far.)  Extreme and outrageous conduct has been defined in New York as conduct that is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society” (Howell v. New York Post Co., 612 N.E.2d 699 (1993)). 

Examples of conduct considered not sufficiently outrageous include:

·        Defendant doctor obtained two hospital documents showing that the plaintiff underwent vasectomy and used the documents as an exhibit to a motion the defendant made in an action for divorce. The documents were used to support the defendant's contention that his wife was having an affair with the plaintiff.  (Andrews v. Bruk, 220 A.D.2d 376 (N.Y. App. Div. 1995). 

·         Attorney’s fraudulent concealment of a loan that the attorney and client obtained by means of a forged power of attorney used to place a mortgage on plaintiff's property (Vasilopoulos v. Romano, 228 A.D.2d 669 (N.Y. App. Div. 1996));

·        Falsely accusing someone of being  anti-Semitic and biased in her treatment of Jews (Herlihy v. Metropolitan Museum of Art, 214 A.D.2d 250 (N.Y. App. Div. 1995))

·        Destroying a student's exam motivated by personal animus toward the student (Silverman v. New York Univ. School of Law, 193 A.D.2d 411 (N.Y. App. Div 1993))

·        Statement by counsel to an adverse party at trial that the latter would suffer heavily because of his lawyer's failure to settle (Nestlerode v. Federal Ins. Co., 66 A.D.2d 504 (N.Y. App. Div. 1979))

·        Communicating to plaintiffs that they would be prevented from selling their apartment at a profit and that their life in the building would be made miserable (Smukler v. 12 Lofts Realty, 156 A.D.2d 161 (N.Y. App. Div. 1989))

·        Intentionally relaying false information to a hospital that the plaintiff, a nurse, had euthanized a patient (LaDuke v. Lyons, 250 A.D.2d 969 (N.Y. App. Div. 1998))

·        Permitting crude and offensive statements of a sexually derisive nature to occur in the workplace (Shea v. Cornell Univ., 192 A.D.2d 857 (N.Y. App. Div. 1993))

·        Directing religious and ethnic slurs, including "Hebe" and "Kike" against an employee (Leibowitz v. Bank Leumi Trust Co., 152 A.D.2d 169 (N.Y. App. Div. 1989)).

·        Defendant tapped his own home telephone to intercept his wife's calls, for his use or advantage in their matrimonial litigation (Talmor v. Talmor, 712 N.Y.S.2d 833 (N.Y. 2000)

·        Defendant dumped a pile of cement on sidewalk in front of plaintiff’s house, tossed lighted cigarettes into his backyard, threw eggs on his front steps, and threatened once to paint a swastika on his house. (Seltzer v. Bayer, 272 A.D.2d 263 (N.Y. App. Div., 2000)). 

Where claims have been upheld, they are generally “supported by allegations detailing a longstanding campaign of deliberate, systematic and malicious harassment of the plaintiff.”  The following have been held to be sufficiently outrageous or, at least, raise a question of fact for jury:

·        Defendant yelled and gestured obscenely at plaintiff, followed her home, refused to leave the premises, followed her children and family members around and told plaintiff he knew where the children went to school and when they get out of school (Bunker v. Testa, 234 A.D.2d 1004 (N.Y. App. Div. 1996).

·        Defendant, a psychiatrist, persuaded his patient to have a sexual relationship with him for therapeutic benefit and he made numerous harassing telephone calls to her after she terminated the relationship (Sanchez v. Orozco, 178 A.D.2d 391 (N.Y. App. Div. 1991))

·        Threatening bodily harm to seller and purchaser if a house were sold to a "colored" purchaser (Ruiz v. Bertolotti, 37 Misc. 2d 1067 (N.Y. 1962), affd 20 A.D.2d 628 (1963))

·        Destroying windows of a house where a woman and children were staying, thereby exposing them to severe cold, and threatening her life by displaying a bullet (Weisman v. Weisman, 108 A.D.2d 853 (N.Y. App. Div. 1985))

·        Making false charges in a proceeding against a high school principal and spreading false rumors that the principal had also been involved in an affair, had used student funds for his own benefit, and utilized associates to work on his house during school hours, all in order to coerce his resignation (Sullivan v. Board of Educ., 131 A.D.2d 836 (N.Y. App. Div. 1987))

·        Making hundreds of hang-up telephone calls (Doe v. Esposito, 114 A.D.2d 992 (N.Y. App. Div. 1985))

·        Intentional misdiagnosis of HIV (Harvey v. Cramer, 235 A.D.2d 315 (N.Y. App. Div 1997)).

·        Pattern of harassment, intimidation, humiliation and abuse, causing plaintiff unjustified demotions, suspensions, lost pay and psychological harm over a period of years (Shannon v. MTA Metro-North R.R., 269 A.D.2d 218)

·        Deliberately, systematically and maliciously harassing plaintiff through various specified acts over a period of years, so as to injure him in his capacity as a tenant (Warner v. Druckier, 266 A.D.2d 3)

Finally, even where IIED claims are successful, damages vary widely:

·        Defendant found guilty of IIED for sexually touching plaintiff, his eleven-year-old stepdaughter.  Plaintiff submitted no proof of special damages, not even costs incurred for therapy.  Both plaintiff’s and defendant’s experts agreed the abuse adversely affected plaintiff’s capacity to engage in intimate, trusting, satisfactory relationships, and both diagnosed her as suffering from posttraumatic stress disorder and testified she would continue to suffer from nightmares, fears, anxiety, dependency and difficulties in relationships with men. Both said she had improved over time but would probably never fully recover.  Jury awarded plaintiff $200,000 compensatory and $275,000 punitive.  Court reduced compensatory damages to $100,000 in absence of proof of special damages and paucity of proof of permanent psychological damage, noting, “the evidence shows plaintiff was functioning fairly well eight years after the offenses---dating, working, going to school.”  Punitive damages reduced to $100,000.  (Laurie Marie M. v. Jeffrey T.M., 159 A.D.2d 52, 57 (N.Y. App. Div. 1990). 

·        Plaintiff won IIED claim where defendants harassed him and were alleged to have ruined his career because they blamed him for the suicide of a fellow officer, due to his position in the health services division, which required him to make sure that the department's sick leave policy was not being abused.  Defendants told others to get plaintiff transferred out of Health Division “any way you can,” even if it meant framing him, harassed plaintiff and his wife, caused him to be involuntarily transferred, and denied him a recommended promotion and raise.  Awards for emotional distress of $125,000 from one plaintiff and $100,000 from another were upheld.  (Hughes v. Patrolmen’s Benevolent Association of the City of New York, 850 F.2d 876 (2d Cir. 1988).

·        Plaintiff, a man in his mid-60’s, showed continued pattern of harassment by landlord, which included depriving him of essential services, like heat and electricity, for an extended period of time in an effort to force him to vacate a low-rent apartment.  Plaintiff said harassment left him anxious and tense and he had difficulty sleeping.  Plaintiff had become obsessed with his housing dilemma and presented an expert psychiatrist who said his condition was similar to battle fatigue and resulted from the combat-like stress plaintiff experienced as a result of the continued harassment.  Plaintiff also presented witnesses who indicated he had become more nervous and tense during period of harassment.  Jury awarded $50,000 compensatory and $15,000 punitive.  (Clark Operating Corp. v. Yokley, Civil Court Index 63752/82 (1983)). 

·        Plaintiff awarded $60,000 in IIED suit where defendant physician concealed fact that plaintiff did not have cancer and plaintiff continued to believe for thirteen to eighteen months that he was dying of cancer.  (Howe v. Ampil, 185 A.D.2d 520, N.Y. App. Div. 1992)). 

·        Plaintiff, a junior-ranking police officer, had successful IIED claim where defendant, a high-ranking police precinct commander, directed personal campaign of adverse actions designed to silence plaintiff and punish her for complaining about harassment, and to make work conditions intolerable enough so as to cause her to resign from police force or malign her enough to result in termination.  Plaintiff awarded $250,000 for emotional distress and related pain and suffering, as well as punitive damages and attorney’s fees.  (Gonzalez v. Police Commissioner Bratton, 147 F. Supp. 2d 180 (U.S. Dist. June 2001)). 

·        Plaintiff awarded $312,000 in a lawsuit ($50,000 for IIED). Plaintiff was a 17 year old freshman attending Norwich University (D) and was subjected to brutal indoctrinations, rituals, initiations, and hazings that were customary and routine at the University. Plaintiff claimed he received shock to the chest caused by two-fisted punching to the chest to knock the wind out, bloody knuckles and wrists, being hit in the head with heavy graduation rings, plastic hanger beatings, and other rituals. Injuries sustained by the plaintiff included psychological injuries, including emotional distress, humiliation, mental anguish, depression, anger, avoidance, and intrusive behavior; torn deltoid muscle; fractured rib. (Briscoe v. Norwich University  No. 6969 (06/01/01)

·        Plaintiff awarded $6,600,000 (for IIED: $500,000 for past pain and suffering; $200,000 for future pain and suffering; $2,500,000 for punitive damages). Plaintiff was employed as a service advisor by Defendant. She claimed that in 1991, 1992 and 1993, she was subjected to harassment by supervisors and other employees after rebuffing the advances of her supervisor. Plaintiff was subjected to sexually explicit statements carved into her desk, a coworker spat in her face and grabbed her by the throat. She endured this environment for 2.5 years until she was fired  McIntyre v. Manhattan Ford Lincoln Mercury, Inc., No.128889/94 (06/04/97)

Loss of Consortium for Unmarried Individuals

A right to damages for loss of consortium has not been consistently recognized for unmarried individuals. 

In 1980, the District Court for the District of New Jersey denied a motion to dismiss a consortium claim brought by an unmarried plaintiff.  (Bulloch v. United States, 487 F. Supp. 1078 (1980)).    The co-plaintiffs had been married for twenty-three years, and had two children.  They were briefly separated and then divorced, but within three years of the divorce and before the co-plaintiff’s injury, agreed to reconcile, to resume living together, and to remarry.  After the co-plaintiff’s injury he returned to the marital abode, but the couple never remarried since they were advised it would be impossible for them to consummate the marriage act.  Noting, “it seems obvious that a member of a cohabitating couple can suffer identical damage to that suffered by a spouse when his or her mate is injured,” (Id. at 1087) and that the New Jersey policy of compensating the injured “would seem to outweigh the policy favoring marriage,” (Id.) the court let the claim proceed.  Subsequent New Jersey courts declined to follow Bulloch, however.  (See Leonardis v. Morton Chemical Co., 445 A.2d 45 (App.Div. 1982), Sykes v. Zook Enterprises, Inc., 521 A.2d 1380 (Law Div. 1987), Schroeder v. Boeing Commercial, 712 F. Supp. 39 (D.N.J. 1989)). 

Even after Bulloch had been expressly overruled in Leonardis, the California Court of Appeal seized upon its reasoning to deny summary judgment on a consortium claim against an unmarried plaintiff.  (Butcher v. Superior Court of Orange County, 139 Cal. App. 3d 58 (Cal App. 1983).  There, the parties in question were not married but had lived together “as husband and wife” for eleven-and-a-half years prior to the accident, had two children together, filed joint income tax returns, maintained joint bank accounts, and considered themselves to be married.  The woman had taken the man’s last name, and he referred to her as his wife.  After proposing, “the general trend of the law has been to criticize and to change the traditional common law view of nonmarital relations,” the court devised a standard to use in evaluating which cohabitants might recover for loss of consortium  (Id. at 66, 70):

One standard which may be used to evaluate the cohabitation relationship is that the relationship must be both stable and significant.  If the plaintiff can show that the relationship meets both of these criteria, then he or she will have demonstrated the parallel to the marital relationship which will enable the court to find the elements of consortium and the damage to the relational interest (Id. at 70).

Evidence of stability and significance could include duration, degree of economic entanglement and cooperation, exclusivity of sexual relations, and whether there is a “family” relationship with children  (Id.)

Butcher was expressly overruled by Elden v. Sheldon, 758 P.2d 582 (Cal. 1988):

The state’s interest in promoting the responsibilities of marriage and the difficulty of assessing the emotional, sexual, and financial relationship of cohabiting parties to determine whether their arrangement was the equivalent of a marriage, reinforce our conclusion that the trial court did not err in upholding the demurrer to the third cause of action.  We disapprove Butcher insofar as it is contrary to our conclusion (Id. at 589-590).

Later the court added, “Our determination here is not based on a value judgment regarding the morality of unmarried cohabitation relationships” (Id. at 590).

New York has never recognized loss of consortium for unmarried couples. 

CONSTITUTIONAL CASES

·        Doe v.County of Madera, No. Civ. F 00 6026 OWW DL (California)

·        A Plaintiff mother and daughter, alleged that they were illegally arrested and then taken to the Madera County Jail where they were strip-searched and subjected to a visual body cavity search by a female deputy.

·        The plaintiffs filed a lawsuit against the defendant alleging violation of their civil rights under the Fourth, Eigth and Fourteenth Amendments of the U. S. Constitution pursuant to 42 U.S.C. 1983 and 1985. The plaintiffs also made claims for emotional distress and defamation.

·        The plaintiffs settled for a total of $300,000. In addition to the settlement, the County of Madera agreed to change their strip-search policies in compliance with state and federal law.

·        Luckett v. The City of Grand Prairie # 99-CV-1752 (12/11/2001) (Texas)

·        Luckett sued the City for denying him the right to voice his views during public City meetings in 1999.

·        Plaintiff claimed that defendant violated his First and Fourteenth Amendment rights under the U.S. Constitution- the rights to free speech; to peaceably assemble; to petition government for redress of grievances; to equal protection of the laws; and to substantial due process.

·        Additionally, plaintiff included in his complaint, an allegation under state law that the defendants intentionally inflicted emotional distress upon him.

·        The lawsuit settled for $75,000.

·        Motevalli v. Los Angeles Unified School District # BC 254 054 (10/18/02)

·        Plaintiff was an untenured art teacher who opposed the school district's longstanding weapons search policy, speaking out at faculty and advisory committee meetings.

·        Plaintiff also twice blocked random weapons search from being conducted and encouraged her students to join her protest by walking out of the classroom in the middle of the class period.

·        Plaintiff's one year contract was not renewed at the end of the school term and she claimed that she was not rehired because she expressed her opinions on the subject matter.                                                  

·        She charged the defendant with violating her free speech under Article 1, Sect. 2 of the California Constitution. She also claimed emotional distress from the experience and being unable to return to the school and her students.

·        The jury awarded the plaintiff $425,000 ($137,500 wage loss and $287,500 for pain and suffering).

·         Patrolmen's Benevolent Ass'n v. City of New York, 310 F.3d 43 (2002)

·        Lawsuit alleging employment discrimination and violations of their rights to equal protection of the laws arising out of their race based transfers to the 70th Precinct in wake of the beating and torture of Abner Louima.

·        Plaintiffs asserted violations of Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the Equal Protection Clause of the Fourteenth Amendment to the US Const.

·        Following a jury verdict, judgment was entered against the City for discriminating against one police officer and violating the equal protection rights of all the police officers.

·        The jury awarded $50,000 in compensatory damages to each of the 24 plaintiffs for emotional distress, with the damages for nine plaintiffs based on physical symptoms and the damages for the other plaintiffs based on corroborating evidence. The judgment was affirmed upon appeal.                                       

·         Sabir v. Jowett, 214 F. Supp.2d 226 (2002)

·        Plaintiff brought action against Defendant  seeking redress for various civil rights violations.

·        Plaintiff was arrested after incidents which arose from requesting reimbursement of his bus fare because he was unable to play at a casino due to malfunctioning machines

·        Altercations with personel at the casino resulted in undercover state police officers arresting plaintiff.

·        Subsequently, physical altercations occured with the police. Plaintiff testified that he was pushed to the floor and handcuffed, his ankles were twisted, he was choked,  he lost consciousness after being choked a second time. He was eventually taken to a hospital, where he testified to other physical altercations and mis-treatment.

·        Plaintiff testified that he suffered emotional injuries, including the recurring fear he suffers. He testified that every time he sees a police officer he is affected. He also testified that he suffered from horrible, recurring nightmares and sleeplessness as a result of this incident.                                                           

·        Based on the above the jury found pursuant to 42 U.S.C.§ 1983 that plaintiff was unlawfully arrested and that excessive force was used against him. Also. the jury found under Connecticut state common law that defendant intentionally inflicted emotional distress on plaintiff.

·         Sulkowska v. The City Of New York, 129 F.Supp 2d 274

·        Plaintiff brought action against police officer and city under § 1983 and new York state law seeking compensatory and punitive damages arising out of her arrest and detention

·        Plaintiff presented photocopy of bar's valid liquor license prior to presenting the original and defendant thought this was a basis for his belief that plaintiff intended to deceive or defraud him.

·        Plaintiff was subsequently arrested,  placed in handcuffs and detained

·        Plaintiff alleged that she was humiliated during her false arrest and subsequent detention, and sustained a post-traumatic distress disorder, with accompanying symptoms of depression, anxiety, fear, and disturbed sleep.

·        Plaintiff was awarded $275,000 for her emotional injuries, including past and future pain and suffering. 

·         Brabson v. The Friendship House of Western New York

·        Former employee brought Title VII action against employer and former co-worker alleging sexual harrassment and retaliation

·        While plaintiff was working for defendant employer, former co-worker on several occasions directed sexually offensive statements, gestures and physical overtures at her, yelled profanities at her and boasted to her about his prior violent criminal history that included incidents of rape, sodomy and assault- and that defendant, through its inaction in the face of the plaintiff's repeated complaints, ratified and accepted former co-worker's conduct, and ultimately retaliated against plaintiff by terminating her employment after she made reports to the EEOC.

·        The jury found in favor of plaintiff on all claims and assessed the following:

$46,634.75 for financial or economic harm or damages for lost and future income, $31,875 for emotional distress and $275,000 for punitive damages.                                                                                                                         

·         Bender v. City of New York, 78 F.3d 787 (1996)

·        Arrestee brought civil rights action (§ 1983)  against police officers and city on claims of false arrest for disorderly conduct and assault charges, malicious prosecution, battery, and intentional infliction of emotional distress.

·        Plaintiff was riding bicycle through park where demonstration was taking place and at some point had an altercation with the police.

·        The police alleged that she was weaving her bicycle in and out of police barricades. She was then handcuffed and placed in a police van. Subsequently, defendant alleged that plaintiff bit him while refusing to sit in the police van. Plaintiff was charged with disorderly conduct and resisting arrest and felony assault for biting the officer. Plaintiff was then taken to a detention facility and held there for 24 hours. Six months later, all charges against her were dropped.

·         Th jury awarded $300,7000 which was reversed and remanded unless plaintiff accepted remittur of $150,000. (the award was considered to be too excessive in part due to overlapping of damages


1 Limited to New York state and federal courts.

2 More information available at www.eeoc.gov/press