An ongoing case in New Jersey involving a judge who accuses state officials of creating a hostile work environment sheds important light on the potential ramifications of seeking emotional distress damages in an employment case. The legal issues at stake in this case arise in many employment discrimination and whistleblower retaliation cases in which the employee claims the employer’s actions caused severe emotional distress. Law360 has also provided coverage of the Gross-Quattrone v. Mizdol, et al. case, which highlights what type of confidential information an employee may have to turn over if they allege significant emotional distress damages.
What Are Emotional Distress Damages?
There are several types of damages that an employee may recover in an employment discrimination or whistleblower retaliation case, such as lost pay damages, attorney’s fees, and compensatory damages. This includes emotional distress damages, which are a specific subset of compensatory damages. These damages are designed to compensate an employee for the emotional toll of an employer’s unlawful discrimination.
Emotional distress damages can be awarded for a variety of harms, including:
- diagnosed psychiatric conditions (such as depression or anxiety disorder);
- loss of sleep;
- mental anguish;
- reputational harm; and/or
- strained personal relationships.
Proving emotional distress requires the plaintiff to show “specific evidence of actual harm.” Williams v. Trader Pub. Co., 218 F.3d 481, 486 (5th Cir. 2000).
This harm can come in many forms. A plaintiff may introduce testimony from friends and family who can speak to changes in their emotional state. Additionally, they may rely on evidence that discusses their emotional state, including journal entries, email/text communications, or testimony from a doctor or mental health professional. Expert evidence, including professional testimony, is usually necessary to support a larger award.
Plaintiffs who seek emotional distress damages must be prepared for an employer to delve into their personal history. An employer may dig up painful past events (divorce, death in the family, child custody issues) to argue that these factors—rather than the employer’s actions—caused the plaintiff’s emotional suffering. Employers may also seek a plaintiff’s medical records, particularly in cases in which the plaintiff alleges a specific psychological harm.
The release of private medical records is currently at the center of Gross-Quatrone v. Mizdol et al., a case involving a New Jersey judge who alleges she was the victim of discrimination.
The Gross-Quatrone Case Involving Emotional Distress Damages
In 2015, Judge Deborah M. Gross-Quatrone was accused by colleagues of multiple forms of misconduct, including making inappropriate remarks to court officials, using her secretary to perform personal tasks, and allowing her law clerk to begin her position before the permitted start date.
During this time period, Judge Gross-Quatrone alleges that she was subjected to disparaging remarks about her gender and appearance from another judge, Bonnie Mizdol. After a meeting between the parties in which Gross-Quatrone was accused of secretly using a recording device, Mizdol submitted a complaint with the New Jersey Supreme Court’s Advisory Committee on Judicial Conduct, who advised that Gross-Quatrone be suspended for two months without pay.
Judge Gross-Quatrone filed suit in 2017, claiming that she was discriminated against and subject to a hostile work environment on the basis of gender. In her amended complaint and discovery responses, the judge alleges details about her emotional distress, including that she has been diagnosed with specific psychological conditions and suffered from ill health effects such as headaches, sleeplessness, and nosebleeds.
The defendants have denied the allegations.
Defendants Seek Medical Records And An IME
The defendants in the case sought a “complete copy of the patient file” from the plaintiff’s medical care provider. Gross-Quatrone refused to sign a release authorizing them to do so. Likewise, the defendants have requested that Gross-Quatrone be ordered to participate in an independent medical exam (IME). An IME is permitted under certain circumstances under Federal Rule of Civil Procedure 35.
Rule 35 provides that a party may have to undergo a mental examination when the party’s mental condition is “in controversy” and the other side establishes “good cause” for the examination. Fed.R.Civ.P. 35(a). According to the judge in the Gross-Quattrone case, a party’s mental condition is in controversy “where, in addition to a claim of emotional distress, the case involves one or more of the following factors:
- a cause of action for intentional or negligent infliction of emotional distress;
- an allegation of a specific mental or psychiatric injury or disorder;
- a claim of unusually severe emotional distress;
- plaintiff’s offer of expert testimony to support a claim of emotional distress; and/or
- plaintiff’s concession that his or her mental condition is ‘in controversy’ within the meaning of Rule 35.a”
The judge granted the defendants’ request for an IME and Judge Gross-Quattrone has objected to this ruling.
Judge Quattrone is represented by Andrew Dwyer of The Dwyer Law Firm LLC.
Defendants are represented by William M. Tambussi, Kathleen E. Dohn and Kayla L. Louis of Brown & Connery LLP.
When Can An Employer Access An Employee’s Medical Records Related To Emotional Distress Damages?
In Judge Gross-Quatrone’s case, the defendant has argued that the confidential medical records are discoverable/should be turned over, since courts do not recognize a federal common law physician-patient privilege.
Courts differ in their approaches to the discoverability of medical records. While a plaintiff claiming emotional distress does not give the employer “an unfettered right to pursue discovery into [the plaintiff’s] entire medical history,” courts do sometimes compel parties to sign broad medical releases. Manessis v. New York City Department of Transportation, 02 Civ. 359 (SAS), 2 (S.D.N.Y. Feb. 10, 2003).
A court may compel the release of a plaintiff’s medical records when they place a medical condition “squarely at issue” in their case. Barlow v. Dupree Logistics, LLC, No. CIV.A. 1:14-BE-180, 3 (N.D. Ala. Aug. 5, 2015).
Usually, if a plaintiff asserts that they suffered non-specific or “garden variety” emotional distress, courts do not require the plaintiff to release their medical records. But occasionally courts do mandate the release of medical records in cases that do not involve a specific, medically diagnosed harm if the court believes the medical history may be relevant to understanding the factors that led to the plaintiff’s emotional distress. Maurer v. Chico’s FAS Inc., No. 4:13CV519 TIA, 1 (E.D. Mo. Dec. 31, 2013).
This, however, does not mean that employers have unlimited access to an employee’s non-mental health related medical records. Courts have declined to authorize discovery in cases where requested medical records went too far, including:
- requests for complete medical records, including routine appointments;
- requests for contact information from all healthcare providers visited during the course of the plaintiff’s employment.
When Can An Employer Require An IME Of An Employee Who Seeks Emotional Distress Damages?
An employer must prove “good cause” to force an employee to undergo an IME. Each case is different and no “one size fits all” standard applies. Instead a fact-intensive analysis is required. In the Gross-Quatrone case, the judge ordered Judge Quattrone to take the IME and relied among many factors, including:
- the judge put her medical condition in controversy by including an expert psychiatrist witness who would testify about the judge’s specific mental injury, diagnosis, and medications prescribed;
- the judge pled “unusually severe emotional distress” rather than so-called “garden variety emotional distress.” The latter is an imprecise descriptor of a less severe and more generalized form of emotional distress
- even though Judge Gross-Quattrone later clarified she sought garden variety damages, “[i]t would be unfair to allow a plaintiff to plead a garden variety emotional distress claim, and then allow him or her to amplify that claim at trial with testimony regarding extreme anxiety and a formal diagnosis [of a mental disorder] without permitting the defense to conduct a mental health examination.” Bird v. Borough of Moosic, No. 18-2289, 2020 WL 1904454, at *3 (M.D. Pa. Mar. 12, 2010).
Judge Gross-Quattrone has objected to the court’s ruling on this issue. As noted above, while this analysis applies to the Gross-Quattrone case, a different result could be reached in another employment case with distinct facts.
In an employment discrimination or whistleblower retaliation case seeking emotional distress damages, the following concepts often come into play:
- Employees who seek significant emotional distress damages must be prepared for an employer to delve into their personal history;
- A court may compel the release of an employee’s medical records when they place a medical condition “squarely at issue” in their case. But if a plaintiff asserts non-specific or “garden variety” emotional distress, courts usually do not require the plaintiff to release their medical records.
- An independent medical exam (IME) is permitted under certain circumstances under Federal Rule of Civil Procedure 35 but only if the employer proves “good cause” for the exam.
- When addressing the release of patient records or an IME no “one size fits all” approach exists; instead, courts will carefully review the specific facts of each case before making a decision.