What is Garden Variety Emotional Distress Anyway? Understanding When a Plaintiff Places His or Her Physical or Mental Health at Issue in the Context of an Employment Litigation.

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By Kegan Andeskie, Esq.

It is generally accepted that a plaintiff who files a lawsuit places his or her mental and physical health in controversy by claiming emotional distress or physical damages, but at what point can a court require that litigant to produce or authorize the release of otherwise confidential medical records, or submit to an independent medical evaluation?  

Under New Jersey law, a plaintiff who alleges only “garden variety” emotional distress may not have placed his or her mental health in controversy, especially if that plaintiff did not treat with any medical professionals.  On the other hand, if a plaintiff does seek professional treatment, obtains a diagnosis, or is prescribed medication, and attributes the condition to the defendant, that plaintiff will likely be found to have placed his or her mental (and in some occasions, physical) condition in controversy, and may be compelled to produce or authorize the release of treatment records and/or attend an independent medical examination.

To compel a plaintiff to attend an independent medical evaluation, both federal and state courts in New Jersey have generally applied the five-factor Bowen analysis:

1) a cause of action for intentional or negligent infliction of emotional distress; (2) an allegation of specific mental or psychiatric injury or disorder; (3) a claim of unusually severe emotional distress; (4) plaintiff’s offer of expert testimony to support a claim of emotional distress; and/or (5) plaintiff’s concession that his or her mental condition is “in controversy”

Bowen v. Parking Auth. of City of Camden, 214 F.R.D. 188, 193 (D.N.J. 2003).   Similarly, in Flecker v. Statue Cruises, LLC, No. A-4390-10T4, 2012 WL 5499894 (N.J. Super. Ct. App. Div. Nov. 14, 2012), the New Jersey Appellate Division affirmed an order compelling an independent medical evaluation, over objections that plaintiff’s distress was garden variety, where the plaintiff’s allegations for emotional distress accompanied physical sequelae in the form of “sleeplessness, anxiety, increased stress, humiliation, and loss of self-esteem,” and “panic” that came “like an attack.” 

Recently, in Gross-Quatrone v. Mizdol, et al., No. 2:17-CV-13111 (D.N.J. June 2021), Magistrate Judge Leda D. Wettre compelled the plaintiff (a former New Jersey Superior Court Judge), to produce a copy of her psychiatrist’s patient file in the context of hostile work environment lawsuit.  In doing so, Judge Wettre found that the plaintiff “clearly put her emotional and psychological injuries in issue” and rejected plaintiff’s counsel’s argument that the psychiatrist had also been designated as expert, finding that the rules would only shield production of a draft report or communications with counsel.  

With these cases in mind, practitioners should be mindful to accept representations that claims of emotional distress are “garden variety” with a grain of salt.  Instead, counsel should evaluate each claim independently, with careful consideration to the specific nature of the emotional distress claims, including whether the plaintiff received treatment with a medical provider and whether the plaintiff was diagnosed with any conditions or prescribed medications attributed to defendant’s conduct.  Otherwise, a litigant could attempt to have their cake and eat it too by characterizing emotional distress claims as “garden variety” to limit the defense’s ability to obtain discovery on them, which is particularly concerning since there is no cap on garden variety emotional distress verdicts in New Jersey.  

Please contact me or another member of NFC’s litigation team if you have any questions.


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