Archive for December, 2013

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

December 6, 2013 Leave a comment

We’re getting close to the end of our circuit-by-circuit survey of what evidence a plaintiff must have if he wishes to recover emotional distress damages for an FCRA violation.  This month’s focus is on the Eleventh Circuit, which has never addressed this question.  The district courts are divided, as follows.

One line of reasoning can be found in Moore v. Equifax Information Services, LLC, 333 F.Supp.2d 1360, 1365 (N.D.Ga.2004) and then in Brim v. Midland Credit Mgmt., 795 F. Supp. 2d 1255 (N.D. Ala. 2011).  In Brim, the plaintiff won a jury verdict that included emotional distress damages, and the defendant moved to overturn it.  The court refused to do that and explained:

The Eleventh Circuit has never precisely delineated the factors that a court should consider in determining whether the plaintiff’s evidence of emotional distress is sufficient to support the jury’s award of compensatory damages for emotional distress, particularly where, as here, the plaintiff’s damages evidence consists chiefly of his own testimony. However, other district courts in this Circuit have clearly held that damages for mental distress are recoverable under the FCRA even if the plaintiff has suffered no out of pocket expenses; Moore v. Equifax Information Services, LLC, 333 F.Supp.2d 1360, 1365 (N.D.Ga.2004); and the Eleventh Circuit has cited other Circuit cases for the proposition that “a claim for actual or compensatory damages under FCRA may include compensation for emotional distress in the absence of physical injury or out-of-pocket expenses.” Levine v. World Financial Network Nat. Bank, 437 F.3d 1118, 1125 (11th Cir.2006) (citing Bakker v. McKinnon, 152 F.3d 1007, 1013 (8th Cir.1998) (holding that, even in the absence of “out-of-pocket expenses or costs incurred,” the district court did not abuse its discretion in awarding actual and punitive damages when appellees testified “about how they felt when appellant obtained their credit reports and violated their privacy, thereby causing them some emotional distress”); Philbin v. Trans Union Corp., 101 F.3d 957, 963 n. 3 (3rd Cir.1996) (“Given the amorphous nature of the damages at issue, we do not consider it necessary that [the plaintiff] state his damages with any greater degree of particularity.”); Casella v. Equifax Credit Info. Servs., 56 F.3d 469, 474 (2nd Cir.1995) (“[T]he District Court properly recognized that ‘actual damages’ may include humiliation and mental distress, even in the absence of out-of-pocket expenses.”). See also King v. Asset Acceptance, LLC, 452 F.Supp.2d 1272, 1281 (N.D.Ga.2006)(“In FCRA cases, a plaintiff is not required to produce evidence of emotional distress beyond his own testimony.”) (citation omitted).

The other line of cases suggests that Moore was exceptional, because it did not present the court with the precise question of whether a plaintiff, with no evidence beyond his or her own testimony, can survive summary judgment and take a claim for emotional distress damages to trial.  This other line of cases is set forth in Rambarran v. Bank of Am., N.A., 609 F. Supp. 2d 1253, 1267-68 (S.D. Fla. 2009), which cites authority to suggest that if a plaintiff’s only evidence of emotional distress is his or her own testimony, then that is not enough to survive summary judgment:

An independent review of relevant legal authorities reveals that the parties’ stipulation regarding emotional distress damages is consistent with the case law of this Circuit and other Circuits.

The undersigned begins by recognizing that, in King v. Asset Acceptance, LLC, 452 F. Supp. 2d 1272, 1281 (N.D. Ga. 2006), another Court in this Circuit permitted an FCRA claim to proceed to trial even though the only evidence of emotional distress damages was based solely on the plaintiff’s own testimony. This precedent is not persuasive, however, for the reasons that follow. First, the Court in King relied on Moore v. Equifax Info. Servs. LLC, 333 F. Supp. 2d 1360, 1365 & n.3 (N.D. Ga. 2006), for the proposition that “a plaintiff is not required to produce evidence of emotional distress beyond his own testimony.” King, 452 F. Supp. 2d at 1281. Two other courts faced with the same question since Moore was decided, however, have come out the other way and required more than an FCRA plaintiff’s own testimony to support a claim for emotional distress damages. See Sampson v. Equifax Info. Servs., LLC, No. CV204-187, 2005 U.S. Dist. LEXIS 19240, 2005 WL 2095092, at *5 (S.D. Ga. Aug. 29, 2005) (collecting cases and concluding that an FCRA plaintiff “must produce some form of independent, corroborating evidence of her humiliation and embarrassment at trial to recover compensatory damages for emotional distress”); Jordan v. Trans Union LLC, No. 1:05 CV 305 GET, 2006 U.S. Dist. LEXIS 38785, 2006 WL 1663324, at *7-8 (N.D. Ga. June 12, 2006) (holding, in a case arising under the FCRA, that “[t]he remainder of plaintiff’s complaints such as feeling frustrated and degraded are insufficient, standing alone, to support damages for mental anguish.”). In addition, Moore provides dubious support for the conclusion reached in King, because the plaintiff in Moore did not rely exclusively on his own testimony of emotional distress damages to withstand summary judgment, as there was evidence of actual monetary damage based on “Equifax’s publication of the inaccurate bad check report in plaintiff’s credit file, [which caused] a lender [to] require[ ] plaintiff to pay a higher interest rate on his mortgage loan than he would have otherwise.” Moore, 333 F. Supp. 2d at 1365. Finally, in Moore, unlike the instant case, the emotional distress damages were found to arise from an identifiable instance where the plaintiff was humiliated when incorrect credit information was published to a third party. Id. Here, Plaintiff’s claim for emotional distress damages is not tied to a discrete breach of the FCRA. In sum, it is Plaintiff’s burden to prove that he was injured as a result of an FCRA violation that occurred after March 9, 2006, and Plaintiff’s recitation of distressing economic hardships that he experienced over an eight year period are too vague, too conclusory and too imprecise to meet that burden.

Moreover, the notion that an FCRA plaintiff’s “testimony of emotional distress must be coupled with additional evidence [of] . . . some kind of actual or genuine injury” is consistent with the standard adopted by other courts facing this question. James Lockhart, Annotation, Remedies Available in Private Action Under §§ 616 and 617 (15 U.S.C.A. §§ 1681n, 1681o) of Fair Credit Reporting Act — Other than Attorney’s Fees, 20 A.L.R. Fed. 2d 509, at § 21 (2007) (collecting cases, including Cousin v. Trans Union Corp., 246 F.3d 359 (5th Cir. 2001), and district court cases from the Second, Fifth, Sixth, Eighth, Ninth and Eleventh Circuits); accord Wantz v. Experian Info. Solutions, 386 F.3d 829, 834 (7th Cir. 2004) (“Where . . . the plaintiff’s own testimony is his only evidence of emotional damages, he must explain the circumstances of his 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.”) (internal quotation marks omitted); Sloane v. Equifax Info. Servs., LLC, 510 F.3d 495, 503 (4th Cir. 2007) (holding, in a FCRA case, that plaintiffs may not rely on mere “‘conclusory statements'”; rather, they must “‘sufficiently articulate[ ]’ true ‘demonstrable emotional distress,” including “the factual context in which the emotional distress arose; evidence corroborating the testimony of the plaintiff; the nexus between the conduct of the defendant and the emotional distress; the degree of such mental distress; mitigating circumstances, if any; physical injuries suffered due to the emotional distress; medical attention resulting from the emotional duress; psychiatric or psychological treatment; and the loss of income, if any.”).

In conclusion, there is no settled precedent in the Eleventh Circuit on what evidence a plaintiff must have to press a claim for emotional distress damages.  Some courts say one’s own testimony is enough; others require more.

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