Archive for July, 2013

Proof of emotional distress damages for FCRA claims: Sixth Circuit Summary.

July 5, 2013 Leave a comment

The Sixth Circuit set forth a succinct explanation of what a plaintiff must do to prove emotional distress damages for an FCRA violation.  In Bach v. First Union Nat’l Bank, 149 Fed. Appx. 354 (6th Cir. 2005), it stated that:

Actual damages for a FCRA violation may include humiliation and mental distress …. An injured person’s testimony alone may suffice to establish damages for emotional distress provided that she reasonably and sufficiently explains the circumstances surrounding the injury and does not rely on mere conclusory statements.

Sixth Circuit case law addresses what makes for sufficient (or insufficient) evidence of emotional distress under this standard.  For example:

* In Bach, the plaintiff stated that because she was elderly and widowed, she was particularly vulnerable to the defendant’s FCRA violations and therefore experienced emotional distress because of them.  The Sixth Circuit found that testimony to be sufficient under its standard.

* In Boris v. Choicepoint Servs., 249 F. Supp. 2d 851, 859-60 (W.D. Ky. 2003), the trial court approved a jury’s award of emotional distress damages because “to prove her humiliation, mental distress, and embarrassment, Plaintiff relied on her own testimony and that of her two co-workers in support of her damages claim” and the testimony was “very credible.”

* In Ferrarelli v. Federated Fin. Corp. of Am., No. 1:07cv685, 2009 U.S. Dist. LEXIS 7286, at *22 (S.D. Ohio Feb. 2, 2009), the trial court found that the plaintiff established a dispute of fact regarding his entitlement to emotional distress damages because “Ferrarelli has provided independent medical evidence along with his own testimony.”

* In Kaplan v. Experian, Inc., No. 09-10047, 2010 U.S. Dist. LEXIS 60098, *16 (E.D. Mich. May 26, 2010), the trial court granted a defense motion for summary judgment because “Plaintiff’s affidavit does not reasonably or sufficiently explain how Experian’s one-day delay in providing its report to Plaintiff caused him to incur emotional distress. Rather, Plaintiff has provided vague and conclusory statements that do not raise any genuine issue of material fact on the issue of whether Experian’s violation caused Plaintiff to incur any compensable emotional distress damages.”

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