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Stress. Anxiety. Paranoia. Anger. Fear. Depression. Angst.
These are the types of words you would expect to hear from a plaintiff seeking compensatory damages (damages for alleged pain and suffering) in a discrimination or harassment case.
How does a plaintiff prove the existence of pain and suffering? Often times, a plaintiff simply takes the stand and explains to the jury how the discriminatory or harassing conduct has impacted his (or her) life. Perhaps he’ll call his treating physician to the stand to describe the symptoms and diagnosis in fancy medical terms.
As the plaintiff recounts the impact of the discrimination or harassment on his emotional well-being, how is the jury to know if he’s telling the truth? Stress is subjective. It’s not something that can observed and verified, like a broken bone. Right?
I attended a conference in Seattle last week with a group of management attorneys from the Employers Counsel Network. During one of the conference sessions, Professor Lea Vaughn, from the University of Washington School of Law, explained how medical developments may help a plaintiff prove (or an employer disprove) the existence of emotional damage.
For example, doctors can now use functional magnetic resonance imaging (fMRI) and positron emission tomography (PET) scans to measure and visibly observe the effects of emotional distress on the brain. This medical development may enable a plaintiff’s attorneys to show the jury pictures of the plaintiff’s brain as proof of emotional damage. This could decrease the need to accept the plaintiff’s testimony as the sole evidence of emotional damage.
While at least one court has recognized the results of a PET scan as evidence of psychological harm, this is by no means universally accepted. As science continues to develop, evidentiary questions and objections will continue to mount. For example, even if an fMRI or PET scan shows abnormality in a plaintiff’s brain, how will a plaintiff be able to prove that the alleged discrimination or harassment caused, or even contributed to, the abnormality? Could the abnormality have been caused by an unrelated life event, like a childhood trauma?
It’s too soon to tell whether an fMRI or PET scan may become widely recognized as evidentiary tools to prove emotional harm, but the concept certainly brings new meaning to the phrase “a picture is worth a thousand words.” In this case, the picture may be worth thousands of dollars in damages.
A special thanks to Professor Vaughn for getting me to think about compensatory damages in an entirely new way.