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

August 2, 2013 Leave a comment

The Seventh Circuit looks at emotional distress claims with a jaundiced eye.*  Here’s Judge Posner on emotional distress claims generally:

The law has always been wary of claims of emotional distress, because they are so easy to manufacture. For a long time damages for such distress were generally limited to cases in which the plaintiff was able to prove some other injury. See Restatement (Second) of Torts § 46 comment b, § 436A (1965); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 54, pp. 361-65 (5th ed. 1984); Archibald H. Throckmorton, “Damages for Fright,” 34 Harv. L. Rev. 260 (1921). The courts have grown more confident of their ability to sift and value claims of emotional distress, and the old limitations have largely been abandoned; but suspicion lingers, as illustrated by two recent Supreme Court decisions, Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424, 428-38, 138 L. Ed. 2d 560, 117 S. Ct. 2113 (1997), and Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S. Ct. 2396, 129 L. Ed. 2d 427 (1994), and by cases, most recently our decision in Alston v. King, 231 F.3d 383, 388-89 (7th Cir. 2000), where we set a high threshold for proof of damages for emotional distress caused by a denial of due process of law. Buckley and Gottshall were both cases under the Federal Employers Liability Act, and the Court emphasized that the Act was passed before the modern era of receptivity to claims of damages for purely emotional injury.

Aiello v. Providian Fin. Corp., 239 F.3d 876, 880-881 (7th Cir. 2001).

Accordingly, the Seventh Circuit has expressly rejected the Third Circuit’s approach to emotional distress claims under the FCRA (which, again, states that courts should treat them liberally because Congress intended the FCRA to help plaintiffs) and taken a skeptical view.  The best summary that I found comes from the unpublished decision of Bagby v. Experian Info. Solutions, Inc., 162 Fed. Appx. 600 (7th Cir. 2006), but there are plenty of published decisions (some cited in Bagby) which do the same.  Here’s Bagby:

Bagby next argues that she is entitled to damages for emotional distress. She urges us to follow the Third Circuit’s approach in FCRA cases, in which a plaintiff need not present evidence of emotional damages with a great degree of specificity. See Philbin v. Trans Union Corp., 101 F.3d 957, 963 n. 3 (3d Cir. 1996). However, we have declined to follow this reasoning. See Ruffin-Thompkins, 422 F.3d at 609 (stating our disagreement with the Third Circuit’s approach to emotional damages in FCRA cases). Instead, “we have maintained a strict standard for a finding of emotional damage” because this type of harm is “‘so easy to manufacture.'” Sarver, 390 F.3d at 971 (quoting Aiello v. Providian Fin. Corp., 239 F.3d 876, 880 (7th Cir. 2001)). Where the plaintiff’s own testimony is the only evidence of emotional damages, she must explain her injury “‘in reasonable detail’ and not rely on conclusory statements, unless the ‘facts underlying the case are so inherently degrading that it would be reasonable to infer that a person would suffer emotional distress from the defendant’s action.'” Wantz, 386 F.3d at 834 (citing Denius v. Dunlap, 330 F.3d 919, 929 (7th Cir. 2003)).

Bagby’s allegations, that she “stresses,” gets tension headaches, and clashes with her fiance over her credit problems, are, at most, self-serving and conclusory statements about her emotional distress. Id.; see also Ruffin-Thompkins, 422 F.3d at 607.  According to the record before us, Bagby did not seek any medical or psychological treatment for the emotional distress she claims resulted from Experian’s actions. Moreover, she has failed to describe her emotional distress in “reasonable detail” or with any certainty, even going so far as to testifiy that she is “not sure” if Experian’s reporting of the Sears and Discover accounts caused her emotional distress. Wantz, 386 F.3d at 834. Although Bagby argues that whether Experian’s actions were inherently degrading or humiliating is a question of fact, she has failed to satisfy our “‘high threshold for proof of damages for emotional distress.'” Ruffin-Thompkins, 422 F.3d at 610 (quoting Aiello, 239 F.3d at 880). As we have stressed before, damages are not presumed under the FCRA; rather, the consumer must affirmatively establish that she is entitled to damages. Wantz, 386 F.3d at 833. Since Bagby has failed to produce evidence of either out-of-pocket or emotional damages that can be attributed to Experian, she has not met her burden.

Bagby, 162 Fed. Appx. at 604-605.**

In short, plaintiffs who seek damages for emotional distress for FCRA claims in the Seventh Circuit must meet that Circuit’s “strict standard” and supply compelling, non-conclusory evidence of the distress, or their damages claims will be rejected.

*  Meaning it looks at them skeptically.  “All seems infected that the infected spy, As all looks yellow to the jaundiced eye.” (Alexander Pope, An Essay on Criticism, 1709)

Bagby makes a reference to Ruffin-Thompkins v. Experian Info. Solutions, Inc., 422 F.3d 603, 610 (7th Cir. 2005)that is worth following, because Ruffin-Thompkins deals with an interesting and specific question:  can emotional distress damages be presumed in cases where the defendant subjected the plaintiff to inherently humiliating or degrading treatment?  Here’s the Seventh Circuit on that precise and narrow issue:

Ruffin-Thompkins does not explain her injury in any reasonable detail. Quoting caselaw, she argues instead that because Experian’s actions were “inherently degrading or humiliating,” it is reasonable “to infer that a person would suffer humiliation or distress from that action; consequently, somewhat more conclusory evidence of emotional distress [should] be acceptable to support an award for emotional distress.” United States v. Balistrieri, 981 F.2d 916, 932 (7th Cir. 1992).

Despite Ruffin-Thompkins’s insistence that a jury should decide whether Experian’s actions were inherently degrading or humiliating, she simply does not raise any genuine issue of material fact on that point. See Wantz, 386 F.3d at 834 (finding that plaintiff’s testimony that he was “humiliated and embarrassed” and that dealing with credit reporting agencies is “mentally and emotionally distressful” was “not one of the few cases in which the facts are so inherently degrading that a jury could infer the existence of emotional distress.”).

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