Wednesday, May 28, 2008

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:


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

55. McNamee falsely told Pettitte, the Mitchell Commission, and 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 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.

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.


Rob said...

I would pay good money to see Roger Clemens make a public statement that he has, in fact, experienced the vapors because of this outrageous behavior.

Andy said...

For legal geeks, here is a Virginia SCT case (involving a celebrity) on emotional distress where they actually upheld the claim, but it required such evidence as the defendant saying "I really want to make her suffer."
(links to .pdf file)

Chase said...

"Roger Clemens' intentional infliction claim is doomed and he probably knows it."

Do you really think Clemens has ANY familiarity with the chances of this claim being successful or not?

I'm thinking Clemens has very little to do with Hardin's day to day legal strategy. If he were more involved, he probably would have fired this clown a long time ago.

Ryan said...

To any attorneys out there, not just Craig, how bad has Hardin been? This guy had a pretty good rep before this.

Jason said...

Shyster-riffic posting, CC. Well done.

Craig Calcaterra said...

Andy: thanks for the Grisham opinion. I'm assuming that made news when it happened, but I totally missed that when it came around the first time.

Chase: I'm guessing Clemens doesn't actually know, but he should if Hardin is advising him properly. My guess is that he has given Hardin orders to fire everything he can think of and Hardin either can't or won't make him listen to reason.

Ryan: I think Hardin has been really, really terrible on a macro level in that almost all of his moves have been counterproductive to what one would assume to be Clemens' goals (i.e. staying out of trouble; preserving his reputation). Maybe this is because Clemens is a pscycho client, but if that's the case, you'd think Hardin would have found a way to make a graceful exit.

It's been a while since I thought hard about this, but it strikes me that a lawyer in Hardin's position would have, in the first instance, taken the Pettitte (and everyone else named in the Mitchell Report tack and simply advised his client to make a short contrite statement and get it behind him.

Assuming that wasn't possible (i.e. Clemens insisted on clearing his name because, dammit, he didnt do steroids or because he's just fiesty) he should have forbade his man from going on 60 Minutes. He should have waited for McNamee to sue first, because there's a real possibility that he never would have. He should have made sure that his client had a semblance of sanity at the intial news conference and later before Congress before allowing him to spout off like he did. Hardin himself should have not taunted the feds with the "eat your lunch" comment. Hardin should have vetted his client's past for things like the McCreedy/Daly bimbo erruptions before suing to salvage his reputation, and if he did and was lied to, he should have withdrawn as counsel.

Yes, hindsight is 20/20, but there is not a move here that could have seemed like a good idea before he did it, and taken together they have been disastrous.

Anybody wanna defend him?

Ron Rollins said...

How much is Harden making per hour to make a mockery of this whole thing?

Or does that not factor into it?

Craig Calcaterra said...

Roger is paying him out of pocket. I'd guess something like $600/hr.