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Proof of emotional distress and the FCRA: Eighth Circuit summary.

September 6, 2013 Leave a comment

The Eighth Circuit Court of Appeals has not yet taken a firm position on what sort of evidence a plaintiff must show to establish a right to emotional distress damages for an FCRA claim.  However, the district courts appear to be inclined toward the Third Circuit’s generous approach as opposed to the Seventh Circuit’s skeptical one, as the following passages will show:

The FCRA provides for “damages for humiliation, mental distress or injury to reputation and creditworthiness, even if Plaintiff has suffered no out-of-pocket losses.” Cousin v. Trans Union Corp., 246 F.3d 359, 369, n. 15 (5th Cir. 2001); see also Millstone v. O’Hanlon Reports, Inc., 528 F.2d 829, 834-35 (8th Cir. 1976). A plaintiff must demonstrate a “genuine injury” to recover an award for emotional distress. Carey v. Piphus, 435 U.S. 247, 264 n. 20, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978). Acceptable evidence of a genuine injury includes witness corroboration of any outward manifestation of emotional distress. Forshee v. Waterloo Indus., 178 F.3d 527, 531 (8th Cir. 1999). The Eighth Circuit has not ruled on the standard to be applied to emotional distress damages in a case brought under the FCRA. Other courts have, however, applied the genuine injury test to FCRA claims. See Cousin, 246 F.3d at 371; Murphy, 456 F.Supp.2d at 1093.

In Fahey v. Experian Info. Solutions, Inc., 571 F. Supp. 2d 1082 (E.D. Mo. 2008) the court allowed plaintiff to recover emotional distress damages where plaintiff asserted “he suffered depression and irritability, became uncharacteristically withdrawn, and suffered physical ailments” as a result of defendant’s reporting inaccurate information about him. Plaintiff supported his allegations with an affidavit from a friend who stated “plaintiff became and remained depressed and withdrawn, refused to leave his mobile home to socialize, and appeared like a ‘broken man’ with no motivation to do anything.” Id.

Plaintiff claims she feels violated, devastated, and drained because of the complete loss of control over her own name. Plaintiff also asserts that she has feelings of guilt and responsibility because she believes her family has been burdened by her credit concerns. Plaintiff’s husband has observed a change in her sleep habits during her dispute with the credit reporting agencies. He has seen Plaintiff crying and has witnessed her frustration. Plaintiff’s husband believes she suffers from depression as a result of what has transpired since November 2006. The Court determines this is sufficient evidence of a genuine injury to survive a motion for summary judgment.

Campbell v. Experian Info. Solutions, Inc., No. 08-4217, 2009 U.S. Dist. LEXIS 106045, at **16-18 (W.D. Mo. Nov. 13, 2009).

Most courts within the Eighth Circuit have found that emotional distress qualifies as actual damages. See, e.g., Edeh v. Midland Credit Mgmt., Inc., No. 09-1706, 748 F. Supp. 2d 1030, 2010 U.S. Dist. LEXIS 103888, 2010 WL 3893604, at *10 (D. Minn. 2010); McKinley v. CSC Credit Servs., Inc., No. 05-2340, 2007 U.S. Dist. LEXIS 34528, 2007 WL 1412555, at *5 (D. Minn. 2007); Zean v. Unifund CCR Partners, No. 08-1091, 2009 U.S. Dist. LEXIS 69707, 2009 WL 2461723, at *2-3 (D. Minn. Aug. 10, 2009) (“Relief under the FCRA may also include out-of-pocket damages for emotional distress, even when no out-of-pocket damages have been sustained.” (citing Millstone v. O’Hanlon Reports, Inc., 528 F.2d 829, 834 (8th Cir. 1976) (holding that rule providing no recovery for “mere mental pain and anxiety” is inapplicable in FCRA actions) and Bakker v. McKinnon, 152 F.3d 1007, 1013 (8th Cir. 1998) (holding plaintiffs could recover for emotional distress suffered when their credit reports were unlawfully obtained and their privacy violated based upon testimony regarding how they felt as a result of these acts))).

However, courts are divided on whether the testimony of the plaintiff alone suffices at the summary judgment stage. Compare Edeh, 748 F. Supp. 2d 1030, 2010 U.S. Dist. LEXIS 103888, 2010 WL 3893604, at *10 (“Moreover, HN4Go to the description of this Headnote.emotional distress is, by its nature, extremely subjective, and often the only evidence of emotional distress will be the testimony of the distressed person.”) with McKinley, 2007 U.S. Dist. LEXIS 34528, 2007 WL 1412555, at *5 (“[T]he Supreme Court held that an emotional injury constitutes ‘injury’ . . . only if it would be compensable under the terms of the zone of danger test. [T]he zone of danger test limits recovery for emotional injury to those plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that [*885] conduct.” (internal citations and quotation marks omitted)). In McKinley, the court found that the testimony of the plaintiff with affidavits from family and friends as to his “anger, frustration, loss of sleep, and distraction allegedly caused by his credit dispute” were insufficient as a matter of law to survive summary judgment on the issue of actual damages. 2007 U.S. Dist. LEXIS 34528, 2007 WL 1412555, at *5.

Some courts have utilized a middle ground at the summary judgment stage, “requiring that, when a plaintiff’s testimony is the only evidence of emotional damages, the plaintiff must sufficiently explain the circumstances surrounding his or her emotional injury and may not rely on conclusory statements.” Zean, 2009 U.S. Dist. LEXIS 69707, 2009 WL 2461723, at *2-3.

Here, Meyer has presented no evidence of physical injury under the “zone of danger test” — even less evidence than the plaintiff in McKinley who had affidavits from friends and family as to his emotional distress. Utilizing the middle ground of Zean, Meyer has pointed out no other evidence of her emotional distress than her “humiliation” over having to repeat her story and not being believed. (Licup Aff., Ex. A at 133:4-6, Docket No. 26.) Under the more lenient standard of Edeh, that characterizes emotional distress as “highly subjective,” Meyer’s evidence would suffice. As a result, while the Court is skeptical about this portion of Meyer’s claim, the Court finds that the emotional distress Meyer has alleged is sufficient to survive summary judgment.

Meyer v. F.I.A. Card Servs., N.A., 780 F. Supp. 2d 879, 884-85 (D. Minn. 2011).

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