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Does the FCRA require proof of emotional distress damages at summary judgment? Fifth Circuit summary.

June 7, 2013 Leave a comment

This week, we look at whether plaintiffs who file FCRA lawsuits in the Fifth Circuit must, to prove that they are entitled to emotional distress damges, provide proof of those damages to overcome a defendant’s summary judgment motion.  The law in the Fifth Circuit is that yes, plaintiffs must provide such proof.

In Cousin v. Trans Union Corp., 246 F.3d 359 (5th Cir. 2001), plaintiff Terry Cousin’s ne’er-do-well brother Richie repeatedly stole Terry’s identity and tried to apply for credit.  This caused Terry’s Trans Union consumer reports to contain negative credit entries that didn’t belong to him.  Terry sued Trans Union and won a jury verdict of $50,000 in actual damages for emotional distress and over $4 million in punitive damages.  The Fifth Circuit held that the emotional distress damages award had to be reversed, because:  1) it wasn’t clear whether Terry’s emotional distress was actually caused by Trans Union; and 2) Terry’s proof of emotional distress was insufficient as a matter of law.  On the latter point, the Fifth Circuit said:

Upon being questioned about how he felt when he saw the November 15, 1996 credit report, Cousin testified:

 A: Very upset, angry. And it just was that, you know, all things I had done, the company to not – they didn’t hear me. I had told them over and over again but they didn’t listen to me, you know. So that’s how I felt.

 Q: You felt like nobody was listening?

 A: Felt like nobody was listening.

 As for the January 17, 1997 disclosure, Cousin stated:

 A: I felt like, if you know anything about a maze, it’s like being trapped inside of something that you can’t get out of.

In Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042, 1052, 55 L. Ed. 2d 252 (1978), the Supreme Court required proof of actual injury for compensatory damages to be awarded for mental or emotional distress in an action brought under 42 U.S.C. § 1983. It concluded that a jury’s award for emotional distress must be supported by evidence of genuine injury, such as the evidence of the injured party’s conduct and the observations of others. Id. at n.20. We extended Carey’s holding and reasoning to other cases involving federal claims for emotional harm in Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 938 (5th Cir. 1996), a case concerning claims for racial discrimination and retaliatory discharge. There, we recognized that to establish intangible loss, Carey requires “a degree of specificity which may include corroborating testimony or medical or psychological evidence in support of the damage award. Id. at 940. In Patterson, we were confronted with the following evidence of emotional distress by one of the plaintiffs.

He testified that he felt “frustrated” and “real bad” for being judged by the color of his skin. He explained that the work environment was “unbearable” and was “tearing his self-esteem down.” He also stated that it “hurt” and made him “angry” and “paranoid” to know that his supervisor referred to him as a “porch monkey” or a “nigger” and generally though that he was inferior to white employees.

Id. at 939. That plaintiff’s testimony was much more concrete than Cousin’s; yet, we vacated the district court’s $ 40,000 emotional distress award, finding that his testimony of mental distress was insufficient. Id. Because Cousin presented no more than what was offered in Patterson, we likewise vacate the award for emotional distress in the present case for insufficient evidence of actual damages.

Cousin, 246 F.3d at 370-372.

In short, if a plaintiff wants to get emotional distress damages in an FCRA claim in the Fifth Circuit, he or she must offer more than vague testimony about hurt, anger, or frustration:  he or she must also show an actual injury (e.g., being denied credit or being offered credit on unfavorable terms) plus “a degree of specificity which may include corroborating testimony or medical or psychological evidence in support of the damage award.”

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