Twenty years ago, emotional distress was not a primary component of damages in defamation cases. Emotional distress damages were usually awarded as a bonus to quantifiable damages claims, such as lost wages or business revenue. Jury verdicts from the early 2000s appear to reflect few punitive damages awards; and in those awards, the defendants engaged in malicious behavior, such as workplace vendettas against plaintiffs, sexual harassment and vulgarity toward plaintiffs, false reports made to plaintiffs’ employers, and public humiliation of plaintiffs by falsely arresting them.
Today, in the era of the Me Too movement and widespread impact of social media trolling and cyberbullying, emotional distress can be a primary component of damages. I first noticed this in a case reported in the Washington Post in 2015 about an anesthesiologist whom the jury determined had defamed a patient while he was sedated in the process of a colonoscopy. Damages totaled $500,000, including $200,000 in punitive damages. According to the Post’s interviews with jurors, one juror initially voted for zero damages. However, as another member of the jury told the reporter, “We finally came to a conclusion that we have to give him something, just to make sure that this doesn’t happen again.”
This article highlights two parts of proving emotional distress damages in defamation cases: (1) how to establish the existence of such damages and (2) how to tie them into additional economic damages. In addition, this article addresses defenses that can be raised.