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Emotional Distress and Rule 35

February 25, 2011

As I mentioned last week, FCRA plaintiffs nearly always allege that an inaccurate report about them caused them emotional distress, and they seek damages based on that distress.  The courts generally allow such damages without specific proof of treatment, drugs, et cetera.

If the plaintiff has seen a therapist about the emotional distress, the federal patient-psychiatrist privilege may limit a defendant’s ability to take discovery from the therapist.  But there’s another way to get relevant discovery:  move to compel the plaintiff to submit to a mental examination per Rule 35.  To do this, you will need to show that the plaintiff’s mental state is “at issue” and that there is “good cause” for an exam.  If the complaint alleges emotional distress damages, both of these conditions are probably met.  Schlagenhauf v. Holder, 379 U.S. 104, 119 (1964).

Once you have received a report from an examination, the playing field is level between plaintiff and defendant.  Under Rule 35(b), the plaintiff can ask the defendant to provide a copy of the examiner’s report.  But once the report is provided, the plaintiff is obliged to turn over all reports regarding any conditions discussed in the report and has waived any privilege regarding therapy concerning those issues.

Sometimes plaintiffs will describe their “emotional distress” in deposition in a clearly unbelievable way.  In those cases, it may not make sense to seek an exam or additional discovery – the jury won’t buy the claim if there’s a trial.  But if a plaintiff credibly testifies as to emotional distress, Rule 35 is the FCRA defendant’s friend.

Categories: Uncategorized
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