Experian's Arguments re Injury: Toler v. PPHH,et al, WD Ark

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Experian's Arguments re Injury: Toler v. PPHH,et al, WD Ark

Postby Administrator » Fri Nov 21, 2014 3:09 am

B. Plaintiffs Failed to Show Genuine Injury of Emotional Distress
In the Eighth Circuit, "emotional distress damages must be supported by competent
evidence of genuine injury, which may be evidenced by one's conduct and observed by others."
Taylor v. Tenant Tracker, Inc., 710 F.3d 824, 828 (8th Cir. 2013) (citations and quotations
omitted). "Such evidence includes evidence of physical injury, medical treatment for any
psychological or emotional injury, or other witness corroboration of any outward manifestation
of emotional distress." Murphy v. Midland Credit Management, Inc., 456 F. Supp. 2d 1082,
1093 (E.D. Mo. 2006). Unsupported statements of physical symptoms, absent physical injury,
are not sufficient evidence of a genuine injury. See McKinley v. CSC Credit Servs., No. 05-2340,
2007 U.S. Dist. LEXIS 34528, at *17 (D. Minn. May 10, 2007) (finding evidence insufficient
when, "[a]lthough he testified to physical symptoms, [plaintiff] did not testify to any physical

Case 6:12-cv-06032-RTD Document 262 Filed 11/20/14 Page 5 of 17 PageID #: 7168
injury."). Likewise, evidence of outward manifestations must show that the emotional distress is
both "concrete" and "severe." See Edeh v. Equifax Info. Servs., LLC, 974 F. Supp. 2d 1220,
1244 (D. Minn 2013); McKinley, 2007 U.S. Dist. LEXIS 34528, at *18. Conclusory statements
of emotional distress are also legally insufficient absent physical injury or legitimate treatment
for the claimed distress. See Edeh, 974 F. Supp. 2d at 1244.
At trial, Plaintiffs failed to present any evidence that Mr. or Mrs. Toler suffered actual
physical injury beyond mere "symptoms" as a result of their claimed emotional distress. Further,
Plaintiffs' evidence showed that their only "treatment" for claimed emotional distress was
through the visitation of Dr. Counts in preparation for this trial, years after the allegedly
distressing events supposedly occurred. Dr. Counts further prescribed no "treatment" for either
Mr. or Mrs. Toler but simply evaluated them for the purposes of alleging emotional damage
claims in this lawsuit. Moreover, Mr. Toler himself admitted that he was not seeking these
damages against Experian and did not believe until recently that he suffered genuine or
compensable emotional distress.
In the absence ofphysical injury or legitimate treatment, the evidence and testimony from
Plaintiffs' corroborating witnesses, even if given full credibility by the Court, fails to meet
Plaintiffs' burden of showing a concrete and sever outward manifestation of emotional distress
required to find a genuine injury. See Edeh, 974 F. Supp. 2d at 1244; McKinley, 2007 U.S. Dist.
LEXIS 34528 at *17. In McKinley, the court rejected similar conclusory allegations of
emotional distress-purportedly verified by others-as a matter oflaw, stating:
. . . McKinley testified that his emotional distress manifested itself in the form of insomnia, distraction, anger, a short-temper, feelings of low self-worth, disappointment, and disillusionment. Although he testified to physical symptoms, McKinley did not testify to any physical injury. McKinley also testified that he has not taken any medication and has not seen any physician, psychologist, or other health care professional for his emotional distress. McKinley has provided four

Case 6:12-cv-06032-RTD Document 262 Filed 11/20/14 Page 6 of 17 PageID #: 7169
affidavits from his girlfriend, brother, friend of more than 35 years, and former co­ worker who all testify to McKinley's anger, frustration, loss of sleep, and distraction allegedly caused by his credit dispute. However, McKinley's testimony and that ofhis corroborating witnesses simply does not identify and describe severe emotional distress that warrants an award of actual damages. McKinley's evidence is insufficient as a matter oflaw ....
2007 U.S. Dist. LEXIS 34528 at *17-18 (citations omitted). Likewise, because Plaintiffs failed
to show that any claimed emotional distress by Mr. and Mrs. Toler rose to the severity and
concreteness needed to find a "genuine injury," Experian is entitled to judgment as a matter of
law on Plaintiffs' § 1681e(b) and § 1681i claims for this independent reason.
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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