Archive for October, 2013

Proof of emotional distress and the FCRA: Ninth Circuit Summary

October 4, 2013 Leave a comment

This month’s most is the latest in a continuing series on what sort of evidence a plaintiff must have to convince a court that he or she has a credible claim for emotional distress damages due to an alleged FCRA violation.  We focus here on the Ninth Circuit.

The Ninth Circuit itself has never decided a case in which this exact question was presented.  But it has said the following about emotional distress damages in general:

“The holding of [Price v. City of Charlotte, 93 F.3d 1241, 1251 (4th Cir. 1996)] that “the evidence of the emotional distress must be demonstrable, genuine, and adequately explained,” [] is not the law of this Circuit:  While objective evidence requirements may exist in other circuits, such a requirement is not imposed by case law in . . . the Ninth Circuit, or the Supreme Court….

Zhang’s testimony alone is enough to substantiate the jury’s award of emotional distress damages. Zhang testified that the job at American Gem was “my dream, working in this country,” and that when he was terminated, he was “troubled,” and “couldn’t believe” it….

Despite the fact that his testimony was hampered by language and translation problems, the jury obviously could have gleaned that he was greatly hurt and humiliated by his termination and the manner in which it was carried out.  Under [Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 513 (9th Cir. 2000)], this testimony is more than sufficient to support a substantial compensatory damage award for emotional distress.”

Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1040-41 (9th Cir. 2003) (several citations omitted).

A number of district courts in the Ninth Circuit have been confronted with the question of how much evidence a plaintiff must have to support a claim for emotional distress damages for an FCRA violation.  Those courts have generally noted the absence of controlling circuit court authority but cited Zhang and concluded that detailed testimony from the plaintiff is enough.  See, e.g., Johnson v. Wells Fargo Home Mortg., Inc., No. 3:05-cv-00321-RAM, 2011 U.S. Dist. LEXIS 92718, at **19-20 (D. Nev. Aug. 17, 2011) (stating that “Importantly, while the Ninth Circuit has not explicitly addressed what type of evidence is necessary to support an award of emotional distress damages under the FCRA, in other contexts, it has declined to follow the Fifth Circuit’s more stringent requirements for emotional distress damages,” and citing Zhang for the applicable standard); Acton v. Bank One Corp., 293 F. Supp. 2d 1092, 1101 (D. Ariz. 2003) (same).

In summary, a plaintiff can survive summary judgment on a claim for emotional distress damages under the FCRA if he or she provides reasonably detailed testimony that explains the distress.

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