Monday, April 11, 2016

How do we put a dollar value on pain and suffering? (Part I)

The courts routinely tell us what civil rights cases are worth, but you have to go out of your way to see the trends in compensatory damages (as opposed to lost wages and other out-of-pocket damages that are easier to calculate). How do you put a price on pain and suffering? This recent EDNY case offers some guidance.

The case is Styka v. My Merchants Services, 14 Civ. 6198, 2016 U.S. Dist. LEXIS 34238 (E.D.N.Y March 15, 2016). Plaintiff sued her former employer for sexual harassment and other violations. The employer defaulted, so the court found liability for the plaintiff. The trial court then heard evidence on damages. The Magistrate Judge summarizes the evidence as follows:

After Plaintiff started working for Defendant My Merchants Services, Mr. Valerios began making racially discriminatory comments, saying that Plaintiff was his "white Polish girl" and "whitey reddish girl," and calling her a "Polack."  He made these comments every day and in front of Plaintiff's coworkers and the company's clients. One month into her employment, Mr. Valerios began directing sexual comments at Plaintiff, including saying that he wanted to touch and have sex with Plaintiff. Plaintiff testified that he made these comments daily. At one point, Mr. Valerios offered to pay Plaintiff more money if she would agree to have sex with him once per week. Mr. Valerios also made sexual comments daily to Plaintiff via text message, when she was at work and home. Plaintiff testified about many explicit texts that Mr. Valerios sent.
Plaintiff told this guy to leave her alone, but the harassment continued. She threatened to call the police. In addition, "Plaintiff explained that his behavior made her feel vulnerable, and that she was careful not to wear 'inappropriate' clothing to work. Plaintiff was also going through a divorce at the time, which Mr. Valerios knew, and she was unable to leave her position for financial reasons. Mr. Valerios told Plaintiff that he knew she needed him and could not leave her job." As to pain and suffering, she further testified:

she also began seeking treatment for symptoms that Plaintiff states are a result of Defendants' discrimination and sexual harassment. Her symptoms had begun in February and March 2014. Plaintiff described being unable to get out of bed in the morning and not wanting to be around her daughter and her boyfriend during that time. She also reports that her new employer told her that she has trouble looking into people's eyes, and that it was difficult to have meetings and conversations with her. She still sees a psychiatrist once per month to treat her symptoms. She takes the prescription drug, Lexapro, to treat her anxiety and depression. Plaintiff also experiences fluctuations in her weight and feelings of helplessness, hopelessness and worthlessness; she has trouble sleeping through the night; and she has fatigue and loss of energy. Plaintiff testified that she did not have these symptoms and diagnoses before she worked for Defendants. Although Plaintiff was going through a divorce around the same time that she worked for Defendants, Plaintiff testified that she felt strong when she was leaving her husband, but that Mr. Valerios's behavior made her feel violated and as if she were "nothing" or a "piece of meat."
What is her pain and suffering worth? The court provides the framework for these damages:
"Cases in the Second Circuit involving awards for emotional distress can generally be grouped into three categories of claims: 'garden-variety,' 'significant' and 'egregious.'" In garden-variety claims, in which appropriate damages range from $5,000 to $35,000, "the evidence of mental suffering is generally limited to the testimony of the plaintiff, who describes his or her injury in vague or conclusory terms, without relating either the severity or consequences of the injury." In significant claims cases, in which appropriate damages range from $50,000 to $100,000, the claims "are based on more substantial harm or more offensive conduct, are sometimes supported by medical testimony or evidence, evidence of treatment by a healthcare professional and/or medication, and testimony from other, corroborating witnesses." Id. (internal quotation omitted). "Finally, 'egregious' emotional distress claims, where courts have upheld awards of over $100,000, have only been warranted where the discriminatory conduct was outrageous and shocking or where the physical health of plaintiff was significantly affected.'"
The court finds that plaintiff suffered significant pain and suffering, and it recommends that the district judge award her $120,000. This takes into account her significant distress but also the fact that she had other stressful events taking place in her life. The work-related distress continues after two years. In fixing the damages, courts will review other cases to ensure that the damages are not too high. The magistrate judge summarizes damages awards in other sexual harassment cases, as follows:

Equal Emp't Opportunity Comm. v. Suffolk Laundry Svcs., Inc., 12 Civ. 409 (MKB) (ARL), Order on Consent Decree, ECF No. 88 (E.D.N.Y. Nov. 30, 2015) (defendant agreed to pay $582,000 to seven plaintiffs who complained that defendant's manager physically and verbally sexually harassed them, including allegedly regularly touching them on their buttocks, hips, and backs, forcibly kissing them and making comments about their appearance and body parts); Echevarria v. Insight Med., P.C., 72 F. Supp. 3d 442, 445 (S.D.N.Y. 2014) (upholding jury award of $50,000 in compensatory damages where plaintiff was sexually harassed over a two-month period via text and in-person by her supervisor and then fired when she rejected his sexual advances; plaintiff's social worker testified at trial that plaintiff was subsequently diagnosed with post-traumatic stress disorder and major depressive disorder); Offei v. Mahmoud Abdel-Salam Omar, 2012 U.S. Dist. LEXIS 80171, 2012 WL 2086294, at *7 (S.D.N.Y. May 18, 2012) (awarding $250,000 in damages for one-time incident of sexual assault where plaintiff experienced severe emotional distress that required her to take anti-anxiety medication on a daily basis); Manzo v. Sovereign Motor Cars, Ltd., No. 08 Civ. 1229 (JG) (SMG), 2010 U.S. Dist. LEXIS 46036, 2010 WL 1930237, at *1 (E.D.N.Y. May 11, 2010), aff'd 419 F. App'x 102 (2d Cir. 2011) (upholding jury award of $50,000 in compensatory damages where plaintiff was sexually harassed by her supervisor over a five-month period, fired for rejecting his sexual advances and suffered significant psychological and emotional distress; evidence was also introduced at trial that plaintiff's supervisor used plaintiff's "precarious financial situation" to exert power over her); Becerril v. E. Bronx NAACP Child Dev. Ctr., 08 Civ. 10283 (PAC) (KNF), 2009 U.S. Dist. LEXIS 76376, 2009 WL 2611950, at *6 (S.D.N.Y. Aug. 18, 2009), adopted by 08 Civ. 10283 (PAC) (KNF), 2009 U.S. Dist. LEXIS 85383, 2009 WL 2972992 (S.D.N.Y. Sept. 17, 2009) (awarding $50,000 in compensatory damages in pregnancy discrimination case  where plaintiff's symptoms of emotional distress lasted a few months after defendants terminated her employment); Boodram v. Brooklyn Developmental Ctr., 2 Misc. 3d 574, 773 N.Y.S.2d 817, 835 (Kings Cty. Civ. Ct. 2003) (upholding jury award of $172,000 in pain and suffering damages where plaintiff was grabbed sexually at least 20 times by her employer); see also Rodriguez, 2014 U.S. Dist. LEXIS 47978, 2014 WL 1347369, at *7 (awarding $10,000 in emotional distress damages where plaintiff was sexually harassed by her employer for one day before quitting her job); Jowers v. DME Interactive Holdings, Inc., 00 Civ. 4753 (LTS) (KNF), 2006 U.S. Dist. LEXIS 32536, 2006 WL 1408671, at *13 (S.D.N.Y. May 22, 2006) (awarding $15,000 in pain and suffering where plaintiff was discriminated against over several months but did not seek medical treatment for her injuries); Laurie Marie M. v. Jeffrey T.M., 159 A.D.2d 52, 53, 559 N.Y.S.2d 336 (1st Dep't 1990), aff'd, 77 N.Y.2d 981, 575 N.E.2d 393, 571 N.Y.S.2d 907 (1991) (upholding jury award of $200,000 in compensatory damages for plaintiff's battery and intentional infliction of emotional distress claims where plaintiff was sexually touched as a child by her stepfather).
Bear in mind that other judges use a different three-tiered damages schedule, offering the plaintiffs much more money. See, e.g., Olsen v. Cty. of Nassau, 615 F. Supp. 2d 35, 46-47 (E.D.N.Y. 2009) ("'Garden variety' emotional distress claims 'generally merit $30,000 to $125,000 awards'").

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