Damage Strategies Beyond Back and Front Pay Wage Recoveries and the Role of Expert Witnesses: the Plaintiff s Perspective

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1 ABA EEO Committee National Conference on EEO Law Savannah, GA 2013 Damage Strategies Beyond Back and Front Pay Wage Recoveries and the Role of Expert Witnesses: the Plaintiff s Perspective By: Kathryn Burkett Dickson DICKSON GEESMAN LLP 1999 Harrison, Suite 2000 Oakland, CA kathy@dicksongeesman.com Ms. Dickson is a partner with Dickson Geesman LLP in Oakland, California. She has over thirty-five years experience representing individuals in discrimination, harassment, wrongful termination, and whistleblower actions, and is frequently invited to speak on employment issues. Ms. Dickson is a court-appointed Early Neutral Evaluator and Mediator, a member of the governing Council of the ABA Labor & Employment Section, a Board Member of the National Employment Lawyers Association, and a Fellow of the College of Labor and Employment Lawyers. I. INTRODUCTION. Plaintiffs lawyers need to start considering damages from the inception of a case, which really means at the time of client intake before a case is ever filed. The bases for economic and emotional distress damages must be fully explored. This inquiry obviously will then continue throughout discovery. Plaintiffs counsel and her client need to consider and determine whether to retain and use non-testifying consultants, treating professionals, and/or expert witnesses in preparing and presenting the damages case when the matter is ready for trial. Beyond economic, emotional distress, and punitive damages, in the wake of recent decisions on mixed motives cases, the prospect of significant injunctive and declaratory relief is starting to surface again in a way it has not since the 1970 s and 1980 s. 1

2 II. EXPERTS... OR NOT? The three aspects of damages for which plaintiffs typically consider retaining forensic experts are economic damages, emotional distress damages, and punitive damages. Each case and every aspect of damages should be carefully reviewed on its own to determine whether retained experts are really needed or are economically justified. A. Economic experts. The most typical damages expert for plaintiffs will undoubtedly be an economist. It is certainly possible, however, and may well be the best approach in certain cases, to forego hiring an economic expert. For example, damages evidence for certain low-wage workers earning minimum wage with no benefits, can best be presented without an expert economist. The plaintiff testifies about his or her wages; documents can be presented such as pay stubs; and the calculations can be easily managed. Similarly, for certain union members, the collective bargaining agreement may be clear enough that economic damages can be easily calculated from the information contained in the agreement. The same goes for many public employees where wage and benefit information is clear and already quantified in readily-available documents. In circumstances other than these, it is likely that plaintiff will retain an expert economist. The economist should be retained fairly early on, certainly well before the end of discovery. Counsel should consult with the economist and provide the expert with all the wage, benefit, and mitigation evidence already amassed through document requests, interrogatories, and depositions. The economist can then work with Plaintiff s counsel to ensure that all information needed for the expert s opinion is obtained prior to the time that expert disclosure and expert reports must be produced. An example of the kind of information that is likely to be requested near the end of discovery is information about what wages and benefits the plaintiff would likely have earned if he or she had not been terminated. Generally, plaintiffs need not hire a mitigation expert to opine on the plaintiff s job search. So long as the plaintiff has made a good faith, reasonable effort to obtain comparable employment and, very importantly, has documented this search, no additional expert is needed. Plaintiffs are better off simply cross-examining any socalled mitigation expert in such circumstances. Remember, the burden of proof on this issue remains at all times with the employer. B. Emotional distress experts. A more complicated question is presented by emotional distress damages. The first question for a plaintiff and counsel to consider is the severity of the damages and to 2

3 balance those against the plaintiff s concerns about privacy. The decision about whether to plead and seek simply garden variety emotional distress damages or to make a claim for more severe emotional distress is one that should be carefully explained, discussed, and considered. It is, of course, ultimately the client s call. If plaintiff pleads garden variety, or non-severe, emotional distress, the plaintiff can still recover damages those which would reasonably be experienced by a person subjected to the kind of discrimination or harassment suffered by the plaintiff. Limiting the claim in this manner, coupled with an agreement or stipulation not to present expert testimony on emotional distress damages, can likely prevent an intrusive Rule 35 mental examination, and exploration of areas a plaintiff may prefer to keep private. Another subject plaintiff and her counsel need to discuss early in many cases is whether to assert an eggshell plaintiff claim with regard to damages. This will necessarily entail a more searching inquiry into private, and usually painful, episodes in the plaintiff s history. The decision is really the plaintiff s, and should be explored in depth so the client understands the trade-off between a potentially larger damage award and re-visiting painful memories. In terms of presenting the emotional distress case, plaintiff s counsel needs to decide whether to hire a forensic expert, use any treating professionals, present the evidence through lay witnesses only, or some combination. As federal Judge Mark Bennett, who has tried and presided over many employment cases, is fond of saying, The best emotional distress witness is the plaintiff s bowling partner. There is a lot of wisdom in his comment. Jurors trust most those individuals who are third-party witnesses (although undoubtedly a friend of the plaintiff) who know the plaintiff well and can talk from a common sense, real life perspective about the distress the plaintiff suffered from the termination, harassment, or other workplace problems. As we all know, jurors inherently distrust expert witnesses, generally viewing them little more than hired guns. Jury research has shown that if there are two opposing experts, the jury will often conclude that the experts simply cancel each other out. The best presentation of emotional distress damages can often be made by the plaintiff, friends, and family members, with a strong cross-examination sufficient to neutralize any defense psychiatric expert. In my opinion, after friends and family, treating professionals are often the next best witnesses for the emotional distress damages case, with a few caveats. Plaintiff s counsel must obtain the records from any treating professional and meet with the psychiatrist or psychologist well before the formal expert disclosure date. While such professionals are not required to prepare an expert witness report, under most court rules, the treating professionals must be disclosed as testifying witnesses when the 3

4 expert disclosures are made. As we all know, medical professionals are generally reluctant to testify or to get involved in any legal proceedings. Approaching and preparing such witnesses can be difficult, but once they are in deposition and in court, their testimony can be very persuasive in many cases. They have seen the plaintiff over some period of time (far more than the four hours the defense psychologist and two to four hours the defense psychiatrist is likely to spend evaluating the plaintiff), which is more persuasive to a jury, as long as they can handle the cross-examination. In cases where plaintiff has made the decision not to use a testifying forensic psychologist or psychiatrist, it is often very helpful to retain a knowledgeable psychologist as a consultant when the employer has obtained a Rule 35 or comparable mental examination of the plaintiff and has completed psychological testing. In such cases, it is virtually certain that the employer intends to present expert witness testimony and having the assistance of a highly-qualified psychologist to prepare for deposition and cross-examination of such an expert can be critical. Finally, there clearly are some cases which merit retaining a testifying forensic psychologist or psychiatrist (generally, a psychologist). Examples include cases where the defense has hired a well-known, high-level expert who is particularly persuasive with juries; instances where difficult psychiatric diagnoses are relevant such as bi-polar disorder or disorders on the autism spectrum; and cases where plaintiff will be asserting exacerbation or revival of pre-existing emotional injuries, such as use of an egg-shell plaintiff theory in a sexual harassment case. If plaintiff is going to be using a forensic expert, there are reasons for having plaintiff s expert examine the plaintiff and administer any psychological testing prior to a Rule 35 examination by the defense. It is also critical that plaintiff s expert be familiar with the plaintiff s psychiatric records and, in many cases, have talked with plaintiff s treating professionals as well. III. Motions related to damages issues. A. Motions related to Rule 35 examinations. FRCP Rule 35 mental examinations (and examinations under comparable rules in many other jurisdictions) can only be obtained by either stipulation or court order if the parties do not agree. In other words, if the parties do not agree that an examination should go forward or do not agree on its terms, the party seeking the examination must file a motion with the court. The party seeking to compel the mental examination, of course, bears the burden of establishing good cause for the examination and the proposed scope of the exam. As noted above, absent exceptional circumstances, the plaintiff may avoid a defense mental examination by stipulating to both of the following: 4

5 (1) A stipulation that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed or that there is no ongoing severe emotional distress. (2) A stipulation that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages. Thus, where a plaintiff only suffered garden variety emotional distress from the employer s wrongful act, as opposed to severe emotional distress, and does not plan on presenting expert testimony at trial, such as from his or her treating psychologist, the court may not order a mental examination, absent exceptional circumstances. For example, in Turner v. Imperial Stores (S.D. Cal. 1995) 161 F.R.D. 89, 98, the district court refused to compel a mental examination. The plaintiff in Turner was claiming damages for humiliation, mental anguish and emotional distress, but did not claim to have suffered unusually severe emotional distress, did not bring a cause of action for intentional or negligent infliction of emotional distress, did not allege that she suffered from a specific psychiatric injury or disorder, and did not intend to offer expert testimony regarding her emotional distress at trial. The court found that a party does not place his or her mental condition in controversy simply by claiming emotional distress. (Id. at 97.) See also St. John v. Napolitano (D.C. Washington D.C. 2011) 274 F.R.D. 12 (limiting production of psychiatric records under such circumstances). Where a defendant seeks a stipulation to permit a mental examination, it needs to provide certain basic information to allow the plaintiff to make an educated decision as to whether or not to stipulate to the exam. Rule 35 requires that the proposed time, place, manner, and scope of the examination be provided. Defendant therefore should meet and confer with plaintiff to discuss the following proposed terms for the examination, at a minimum: 1. The time and length of the examination. Obviously, the date and time of the examination must be specified. Other issues include the length of the examination and that reasonable breaks will be allowed, including a lunch break if the examination is expected to last more than a few hours, plus reasonable rest and bathroom breaks. The maximum length of time that the examination will take should be specified. Plaintiff s counsel should discuss with the client whether it is better to divide the psychological testing and the psychiatric interview into two half days, versus getting it all over and done with on one day, which may be tiring. The maximum reasonable examination should be something on the order of 3-4 hours for paper and pencil psychological testing, followed by no more than 3 4 hours of verbal assessment (i.e., interviewing ) by the defense psychiatrist or other forensic expert. From the plaintiff s perspective, I believe it is preferable to ensure that the examination is entirely completed all within one day. 5

6 2. The place of the examination. The location of the examination should be specified and must be reasonable. If the defendant seeks to compel the examination at a farther location, it should show good cause and advance the reasonable costs and expenses for the plaintiff to travel to the more distant location. In such an instance, plaintiff should insist that the entire examination be concluded in one day. 3. The identity and specialty of the person(s) who will perform the examination. The defendant should specify exactly who will be performing the examination and his or her area of specialty. Thus, a generic statement that the members of the psychiatrist s staff will assist in the examination is not sufficient. The specific name of such staff members and their specialty should be specified and plaintiff s counsel should insist on receiving a CV or resume for each person who will be involved. 4. The tests to be administered. Because Rule 35 requires that the manner and scope of the examination be specified, plaintiff s counsel should insist that defendant specify the precise diagnostic tests and procedures to be administered. This will also allow plaintiff s counsel the opportunity to consult with an expert and determine the appropriateness of the proposed tests. The parties can then try to agree on which tests will be conducted, and, if unable to agree, the plaintiff can submit arguments to the court as part of the plaintiff s opposition to the motion to compel the mental examination. If the parties agree, the specific tests should be included in the stipulation, which should then be entered as a court order. 5. The conditions, scope and nature of the examination. Plaintiff s counsel must take steps to ensure that the examiner does not delve into matters protected by the plaintiff s constitutional right to privacy or the attorney client privilege. Thus, for example, in a sexual harassment case, an order compelling a mental examination should specify that the plaintiff cannot be questioned about her sexual history or sexual relationships with individuals other than the alleged perpetrator of the harassment. Plaintiff s counsel may also want the order to specify that the plaintiff cannot be questioned about reproductive history and past medical history unrelated to the claims asserted in the plaintiff s lawsuit, which is governed by the right to privacy. It may also be a good idea to specify that the plaintiff cannot be questioned about his or her conversations with counsel, to ensure that the attorney client privilege is not violated. 6. Whether and by whom the examination may be audio-recorded and who will have access to the recordings. An audio-recording can be a double-edged sword for both parties. Knowledge that the session is being audio-recorded can help ensure that examinations do not become psychologically abusive; can allow for a determination of exactly what was said if the examiner and the plaintiff disagree about what was communicated; can allow for plaintiff s forensic expert to review the session to opine whether it was appropriately conducted; but, on the other hand, provides one more 6

7 opportunity for plaintiff to be cross-examined on the precise details of his or her factual claims. The following are additional ways in which plaintiffs might seek, for example, to appropriately limit such examinations. Either obtain a stipulation or court order with specific limitations on Defendant s retained expert, so that (1) the expert s mental examination must not become a second deposition ; (2) the expert should not inquire into, or attempt to assess, whether Plaintiff has a distorted perception of his interactions with Defendant ; (3) the examination and evaluation should be limited to the nature, cause and extent of Plaintiff s emotional distress; and 4) the examiner is not to opine on Plaintiff s credibility as that is within the purview of the jury. Once the parties have stipulated on the conditions, they should be reduced to a written stipulation and court order. I always have my clients provide a copy of the court order to the examiner at the beginning of the examination to ensure there is no misunderstanding about the court-ordered boundaries. B. Motions to quash over-broad subpoenas for employment and mental health records. With increasing regularity, defendant employers are serving overbroad subpoenas for medical and/or prior employment records. The best practice from the plaintiff s perspective is to deal with these rapidly and firmly in the following fashion. First, immediately review the subpoena in detail to determine if all procedural and substantive requirements are met. For example, in California, special consumer notice statutes must be complied with for these records. Determine if the request for records is overbroad in scope or time, or both. Remember that frequently in our cases, at least some medical records may be relevant or discoverable. It is important to be reasonable, which will put plaintiff in a better position if the matter ends up in front of the Court in a discovery dispute. Then, plaintiff s counsel should immediately send letters to the medical offices (and sometimes to a separate third-party company responsible for obtaining the records) informing them that you represent the plaintiff and they are not authorized to release the records prior to the date in the subpoena. Explain that you believe the subpoena is overbroad and you are working with opposing counsel to narrow the request and, if that is not successful, you will file and serve them with a copy of a motion to quash the subpoena. Depending upon your jurisdiction (and you really need to check this) the filing of a motion to quash will stay the subpoena; while, in other jurisdictions, you need to actually obtain the Order quashing the subpoena before it is blocked. In that event, you will almost certainly need to seek an order shortening time to have your motion heard. The samples attached here deal with this problem. 7

8 Next, plaintiff s counsel should discuss in detail with opposing counsel the scope and time-frame of records to which you would not object. If you reach agreement, you should embody the agreement in a stipulation, and ensure that the existing subpoenas are withdrawn and replaced with appropriately narrowed subpoenas. In this discussion, we always seek to ensure that the subpoena is narrowed to just those records that are directly relevant. Then, we insist on a first look agreement (sometimes also referred to as a quick peek agreement), which ensures that we get the records first and have a brief period to review them to ensure that only properlysubpoenaed records were produced, to redact for third party privacy (very frequently, family members or other third parties medical information is included), and for other proper privacy redactions. A privilege log is then provided to opposing counsel with the records (which come from our office), to explain the basis for any redactions. Then, in any dispute, the Court will only be reviewing in camera, only those records over which there is a genuine dispute. If plaintiffs counsel follows this procedure, the chances of winning a motion to quash are greatly enhanced. C. Motions in limine to exclude or limit experts and their reports. Motions in limine are somewhat frequently filed in an effort to exclude or limit expert witness testimony. Generally, economists whose opinion primarily consists of fairly straightforward calculations of wage and benefits losses are not typically subject to such motions. On the other hand, one of the more common motions relates to excluding so-called mitigation experts. Employers seem to have a tendency to hire accountants or economists who are not really knowledgeable about labor economics or vocational issues and then have them opine on plaintiff s alleged failure to mitigate. Motions to exclude or limit such testimony have a higher degree of success. In terms of forensic psychological or psychiatric experts, Daubert motions may be filed to challenge certain of the tests on which such experts attempt to rely. Other motions in limine with regard to such experts will commonly seek to limit or exclude opinions regarding the plaintiff s credibility, which is up to the jury to assess. Such a determination would assess the Plaintiff s credibility, and it is improper to use expert testimony to impugn a party s psychiatric credibility. Nichols v. Am. Nat l Ins. Co., 154 F.3d 875, 883 (8 th Cir. 1998). A particularly egregious abuse of a Rule 35 examination occurred in one of my cases, where in her Order granting Defendant s motion for a Rule 35 examination, the Magistrate Judge noted Plaintiff s concern that Defendant intended to use the examination as a second deposition. The order made clear that this was not an 8

9 appropriate use of the Rule 35 procedure, and that it was important to ensure that the examination does not become a second deposition. Once the report was prepared, even a cursory review revealed that Plaintiff s concerns were warranted, and that the Magistrate s admonition had been ignored. For example, ten pages of the report revealed an incredibly detailed examination of Plaintiff on virtually every aspect of his job and employment with Defendant, with frequent reference to, and cross-examination on individual s, memos and performance reviews. The examiner even went so far as to ask Plaintiff about privileged communications with an attorney he consulted, and about his communications with the SEC following his termination by Defendant topics that were clearly off limits and of absolutely no relevance to defendant s expert s determination of Plaintiff s emotional distress. Although there were occasional references to psychological symptoms or treatment, the overwhelming focus of this portion of the report was on the factual details of Plaintiff s employment and his interactions with his managers. Similarly, the report revealed an extensive and wholly improper examination of Plaintiff on his past employment, including a detailed cross-examination regarding his employment from 17 years earlier through his employment with Defendant. Indeed, it appeared that the examiner took great pride in his ability to cross-examine Plaintiff in this area. He then devoted another six, full pages of the report to an assessment of employment records prior to employment with the defendant. This assessment consisted of a detailed summary of countless individual employment records from Plaintiff s previous employers, in which the examining psychiatrist noted and highlighted every time anyone said anything negative about Plaintiff s performance, attitude, or communication. The extent to which the examiner used the Rule 35 examination as a second deposition, in violation of the Court s order, was highlighted by comparing the number of pages the examiner devoted to a partisan review of the evidence relating to liability, and the number of pages he devoted to actually discussing Plaintiff s emotional distress. At least 30 pages of the report were devoted, almost exclusively, to discussing the minute details of Plaintiff s employment prior to and at Defendant, and to a detailed analysis of the various s, memos and other documents that form the basis of Defendant s defense on liability in the case. In contrast, the examiner spent only one page discussing Plaintiff s Past Psychiatric History; one and one-half pages reporting the results of his Mental Status Examination; and one and one-half pages discussing the Symptoms and signs of emotional distress during and after his employment with Defendant the purported subject of his expert testimony 9

10 Needless to say, this was an abuse of the Rule 35 examination procedure and did not sit well with the Court when a motion in limine was filed to exclude it. IV. Punitive damages experts. As in other areas, plaintiffs counsel needs to consider carefully whether to use an economist or financial expert for punitive damages. If the company is publically traded, especially if it is a Fortune 500 type company, it may be sufficient to present the necessary financial evidence through the company s annual report, or recent SEC 10-K and 10-Q filings. It also may be possible to present the relevant figures through stipulation by the parties or judicial notice of the SEC filings in the case of such a company. This can expedite the punitive damages phase of the trial and is an economical way to present the evidence. On the other hand, if the company is privately held, it will almost certainly be necessary to retain a forensic accountant, economist, or other financial expert. This is an area where plaintiffs counsel needs to think ahead. It may be difficult in discovery to obtain financial information about a particular company (although the internet is making some of this easier as time goes by). In most jurisdictions, it may be possible near the conclusion of discovery to make a motion to obtain such information by making a showing of some likelihood of being able to obtain punitive damages at trial. If that avenue is not available, it is important to disclose an expert that you can consult with prior to trial and keep on stand-by during the trial to review records and present testimony on the company s financial condition. It is important during discovery to propound interrogatories to force the company to identify the person most knowledgeable (within the subpoena power of the court) about the company s financial condition and the title of the documents that establish the company s financial condition so that you can subpoena both the witness and the financial records for trial. This issue should be raised in the final pre-trial conference so that the records and witness will be available immediately upon a jury finding of the predicate for punitive damages. V. Injunctive and Declaratory Relief. Although injunctive and declaratory relief do not fall within the usual bailiwick of damages, it is worth highlighting that more cases may begin to focus on this kind of relief in light of important recent decisions adopting mixed motives analysis in EEO cases. For example, the California Supreme Court recently decided the case of Harris v. City of Santa Monica, No. S (Cal. Feb. 7, 2013). The court held that a plaintiff can establish a claim of employment discrimination by showing that discrimination was a substantial motivating factor in the decision-making process; but, that the defendant 10

11 is entitled to establish a mixed motive defense by proving that legitimate factors would have been sufficient, absent the discrimination, to produce the same decision. In very strong language, the California Supreme Court made clear that even if the defendant establishes its mixed motive or same-decision defense, that defense does not immunize the employer from liability. Instead, the plaintiff may potentially be entitled to declaratory or injunctive relief, and may recover attorneys fees even though the employer successfully establishes its defense. Certainly this will revive attention to effective injunctive relief in case where plaintiff has proven that unlawful discrimination has infected the decision. As the court stated: [T]the unavailability of damages upon an employer's same-decision showing does not make a finding of unlawful discrimination an empty gesture. Such a finding has several key consequences. First, proof that an adverse employment decision was substantially motivated by discrimination may warrant a judicial declaration of employer wrongdoing. Declaratory relief, where appropriate, may serve to reaffirm the plaintiff's equal standing among her coworkers and community, and to condemn discriminatory employment policies or practices... Second, upon a finding of unlawful discrimination, a court may grant injunctive relief where appropriate to stop discriminatory practices. Harris v. City of Santa Monica (Cal. 2013) 152 Cal.Rptr.3d 392, 414 [294 P.3d 49] Experts are quite likely to play a major role in assisting the court and parties in fashioning such relief. For years now, social psychologists and sociologists have been studying the kinds of remedies and programs that have been put in place in many workplaces and there is considerable information now on what works and what does not work. Plaintiffs who are proposing injunctive relief and the experts assisting them should become familiar with this body of research in proposing to the court the most effective remedies available. * * * * * * * * * * * * * * * * 11