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Weeds in the Garden

9.25.04

These plaintiffs who showed up in court with their mental health team in tow feigned surprised, however, when defendants sought to challenge their often-outlandish damage claims. As might be expected, defendants, through their own retained mental health experts, sought to obtain plaintiff's medical and psychotherapy records, question them at deposition about their medical and psychiatric histories, and have them undergo mental examinations under Rule 35 of the Federal Rules of Civil Procedure.

So some plaintiff's took a different tack. They claim to have suffered only the "garden variety" of emotional distress that might be assumed to have flowed from the injury at issue. Those plaintiffs who took this approach sought to bar defendants from snooping around in their personal lives and medical histories on the theory that they were not putting their mental condition in issue, and they were largely successful. Potentially relevant prior mental and physical illnesses, suicide attempts, eating disorders, and emotional or sexual abuse could all be kept hidden by a plaintiff who sought only "garden variety" damages.  This article explores the problems using the "garden variety" emotional distress claims.

This article appeared in the Autumn 2004 issue of the Employee Relations Law Journal.

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