Intentional Infliction of Emotional Distress

Rather than take the sane route and dismiss the thing, Roger Clemens has amended his lawsuit against McNamme to add the throw-in claim of all throw-in claims, "intentional infliction of emotional distress." Here is the actual text from the revised complaint:

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

54. Clemens incorporates by reference the facts set forth above.

55. McNamee falsely told Pettitte, the Mitchell Commission, and SI.com that Clemens had used steroids and HGH.

56. McNamee intended to cause Clemens to suffer severe emotional distress by making the false accusations.

57. McNamee’s conduct in making the false accusations to Pettitte, the Mitchell Commission, and SI.com was extreme and outrageous.

58. McNamee’s false accusations proximately caused Clemens to suffer severe
emotional distress. Clemens seeks damages for these injuries from McNamee in an
amount to be determined by a jury.

Every lawyer learns about intentional infliction claims in law school. The concept is usually taught using Victorian era cases in which some scoundrel causes a woman in a whalebone corset to suffer the vapors by falsely telling her that her husband was run down by Phaeton carriage or something. You still see these claims brought all the time of course, but rarely if ever do people recover anything for them.

Why? Because the standard is so damn high. To be found liable for intentional infliction of emotional distress, the defendant's conduct "must be heinous and beyond the standards of civilized decency or utterly intolerable in a civilized society." It used to be called "the tort of outrage," and one old law book way of describing it was to say that the conduct "must be such that it would cause a reasonable person to exclaim 'Outrageous!' in response."

Let's see, in response to an investigation conducted by agents of a body for which he was once and hoped to be again employed, Brian McNamee said something that a lot of people had been saying for years -- that Clemens did steroids -- and repeated it to a reporter. Defamatory? I have my doubts, but let's say it was. Extreme and outrageous? Um, no. Far worse things have been said about folks without rising to that level, legally speaking.

But the real kicker here isn't the conduct, it's the damage suffered. In order to prove the claim, Clemens is going to have to actually set forth evidence that he has, in fact, suffered severe emotional distress. Generally speaking, a plaintiff has to show actual debilitating mental problems as a result of the conduct. Psychiatrist's testimony is almost always required here, and if you don't have that, you had better be a basket case so obvious that a shrink's view of it is unnecessary or redundant. Physical manifestations of the emotional distress -- things like constant barfing and hair falling out -- are usually not required, but they do help.

Let's see here. Since McNamee embarked on his campaign of allegedly extreme and outrageous conduct towards poor Roger Clemens, he has been seen glad handing politicians, talking casually (for him anyway) with Mike Wallace, sipping lattes on his way into testimony, speaking defiantly in open Congress while millions of people watched, working out with the Astros, and building a career as a remote pitching coach.

Clearly the man has been incapacitated with emotion.

Roger Clemens' intentional infliction claim is doomed and he probably knows it. If I'm McNamee's lawyer, however, I hope it sticks around for a while because there would be nothing more fun than to get Clemens in a deposition and ask him -- at length -- to detail the hours he has spent in tears, the mountains of antidepressants he's taking, and just how hard it has been for him to get through each and every day these past several months.

Then we take a short break and I start asking him about his social calendar.