Home > Uncategorized > Does the FCRA require proof of emotional distress at summary judgment? Fourth Circuit Summary.

Does the FCRA require proof of emotional distress at summary judgment? Fourth Circuit Summary.

May 3, 2013

This week’s post contains the latest installment in a series on emotional distress damages under the FCRA.  This week, our focus is case law in the Fourth Circuit.

The most current cases on emotional distress damages in the Fourth Circuit are Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235 (4th Cir. 2009) and Sloane v. Equifax Info. Servs., 510 F.3d 495 (4th Cir. 2007).  In both cases, the plaintiff was a woman whose identity was stolen; the credit bureau defendant failed over a series of years to keep the thief’s information off of the plaintiff’s credit reports.  Both cases went to trial, and both plaintiffs testified that:  1) they were denied credit due to inaccurate credit reports; and 2) they suffered severe emotional distress due to the consistent problems they had with the credit bureaus.  A jury awarded Ms. Robinson $200,000 for actual damages including emotional distress; and another jury awarded Ms. Sloane $106,000 in economic loss and $245,000 for emotional distress.  Neither plaintiff appears to have presented medical evidence in support of her emotional distress claims; the plaintiffs instead relied on their own testimony and that of people they knew.

The Fourth Circuit examined these verdicts with hesitation:  the awards were far larger than the typical range of emotional distress awards by juries (which is $25,000 – $75,000).  The Sloane court reduced the emotional distress award to $150,000 and explained:

Our previous cases establish the type of evidence required to support an award for emotional damages. We have warned that “[n]ot only is emotional distress fraught with vagueness and speculation, it is easily susceptible to fictitious and trivial claims.” For this reason, although specifically recognizing that a plaintiff’s testimony can provide sufficient evidence to support an emotional distress award, we have required a plaintiff to “reasonably and sufficiently explain the circumstances of [the] injury and not resort to mere conclusory statements.” Thus, we have distinguished between plaintiff testimony that amounts only to “conclusory statements” and plaintiff testimony that “sufficiently articulate[s]” true “demonstrable emotional distress.”

[The] factors properly considered in determinating the potential excessiveness of an award for emotional distress …. include the factual context in which the emotional distress arose; evidence corroborating the testimony of the plaintiff; the nexus between the conduct of the defendant and the emotional distress; the degree of such mental distress; mitigating circumstances, if any; physical injuries suffered due to the emotional distress; medical attention resulting from the emotional duress; psychiatric or psychological treatment; and the loss of income, if any. 

These decisions – which, again, affirmed large emotional distress awards, but did so with some hesitation – have been interpreted differently by different trial courts within the Fourth Circuit.

In Burke v. Experian Info. Solutions, Inc., 2011 U.S. Dist. LEXIS 28896 (E.D. Va. Mar. 18, 2011), the plaintiff claimed emotional distress damages for an FCRA violation and offered his own testimony as evidence of that distress.  His testimony described “anger, frustration, sleepless nights and upset stomach” but did not include medical records or other evidence to confirm his own account of his experience.  Experian moved for summary judgment and argued that the plaintiff’s uncorroborated testimony was not enough to satisfy the standard in Sloane, but the trial court disagreed and denied summary judgment.

In contrast, in Adam v. Wells Fargo Bank, N.A., 2012 U.S. Dist. LEXIS 141569 (D. Md. Sep. 28, 2012), a trial court granted summary judgment to Wells Fargo, even though the plaintiff in Adam gave testimony very similar to the plaintiff in Burke.  There were a few differences:  the Adam court was considering state-law claims (on issues like, but not identical to, the FCRA claims in Burke) and cited, not Sloane, but a case that quoted the standard set forth in Sloane.  Nevertheless, at the end of the day the trial courts in Adam and Burke looked at uncorroborated testimony about emotional distress in the context of a consumer’s financial experience and came to radically different conclusions about whether it was “conclusory” such that the defendant should be granted summary judgment.

As a result, it seems fairest to say that courts in the Fourth Circuit will allow plaintiffs in FCRA cases to get past summary judgment with nothing more than personal testimony about their own emotional distress … but not always.  The results will differ depending on how “conclusory” the testimony is, and also on which judge is hearing the case.

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