Free: Employment Evidence
Strategies, Forms & Cases
Employment cases frequently present difficult evidence issues.
Now you can anticipate and circumvent problems in admitting your evidence and exclude or limit what the opposition throws at you with these chapters from Eugene Hollander’s Employment Evidence.
These chapters deliver dozens of 10-12 page strategic guides to virtually every employment evidence battleground – from after-acquired evidence through discriminatory remarks to past sexual conduct. For each evidentiary issue the chapters deliver:
- Foundational elements, with citations
- Key objections, with corresponding responses
- Tactics for plaintiffs and defendants
- Jury instructions
- Motions in limine
- Checklists of arguments
- Supporting cases and statutes
To have your free Employment
Evidence chapter e-mailed to you, fill in the
blanks below and press Submit. The chapters available are listed below.
You may select one of the following
chapters and have it e-mailed to you at no charge:
PRELIMINARY MATTERS
Chapter 1.
Summary Judgment
Chapter 2.
Administrative Decisions and Materials
LIABILITY
Chapter 3.
Plaintiff’s Prior Acts
Chapter 4.
Defendant’s Prior Acts
Chapter 5.
Statistical Evidence
Chapter 6.
Defendant’s Documents
Chapter 7.
Testimonial Evidence
DAMAGES
Chapter 8.
Financial Evidence
Chapter 9.
Plaintiff’s Medical and Psychological Evidence
Chapter 10. Expert
Evidence
DEFENSES
Chapter 11. Employer
Responses
PRESENTING EVIDENCE TO JURY
Chapter 12. Demonstrative
Evidence
Chapter 13. Electronic
Evidence
Chapter 14. Attorney’s
Fees and Costs
Here are the first 7 pages of a 27-page
chapter:
Chapter 9
Plaintiff’s Medical and Psychological Evidence
I.
Plaintiff’s Medical and Psychological History
§9:10
Introduction
§9:20
Common Fact Pattern
§9:30
Foundation
§9:40
Objections
§9:50
Defendant’s Tactics
§9:60
Form: Defendant’s Subpoena for Medical Records
§9:70
Form: Defendant Motion to Compel
§9:80
Plaintiff’s Tactics
§9:81
Form: Motion for Protective Order—Plaintiff—Request for Independent
Medical Examination
§9:90
Form: Plaintiff’s Motion to Quash
§9:100 Form:
Plaintiff’s Motion in Limine to Exclude Psychological or Medical
Treatment
§9:110 Cases
on Key Issues
§9:110.1
Cases Involving Plaintiff’s Medical and Psychological History
§9:110.1.1 Discovery Not Allowed
§9:110.1.2 Discovery Allowed
§9:110.2
Cases Involving ADA C laims
§9:110.2.1 Evidence Admitted
§9:110.2.2 Evidence Excluded [Reserved]
§9:110.3
Cases Involving Lay Opinion Testimony
§9:110.3.1 Evidence Admitted
§9:110.3.2 Evidence Excluded [Reserved]
II.
Independent Medical or Psychological Exams (Rule 35)
§9:120
Introduction
§9:130 Form:
Plaintiff—Request for Rule 35 Exam Results
§9:140 Common
Fact Pattern
§9:150
Foundation
§9:160
Objections
§9:170
Defendant’s Tactics
§9:180 Form:
Defendant’s Motion for Psychological Exam
§9:190 Form:
Defendant’s Notice for Psychological Exam
§9:200
Plaintiff’s Tactics
§9:210 Form:
Stipulation Regarding Rule 35 Exam
§9:220 Cases
Involving Rule 35 Independent Medical Exams
§9:220.1
Exam Permitted
§9:220.2
Exam Not Permitted
III.
MMPI-II AND OTHER PSYCHOLOGICAL TESTS
§9:230
Introduction
§9:240 Common
Fact Pattern
§9:250
Foundation
§9:260
Objections
§9:270
Defendant’s Tactics
§9:280
Plaintiff’s Tactics
§9:290 Cases
Involving Use of MMPI-II and Other Psychological Tests
§9:290.1
Testing Not Allowed
§9:290.2
Testing Allowed
I. Plaintiff’s Medical and Psychological History
§9:10 Introduction
A frequent battleground over Plaintiff’s damages is the
disclosure, and subsequently the admissibility, of the Plaintiff’s
medical and psychiatric records. Plaintiff may be claiming emotional
distress damages arising out of her unlawful termination. In turn,
Defendant may seek discovery concerning all of the Plaintiff’s
psychiatric records. Defendant may argue that the evidence is relevant
not only to damages, but as to causation.
If Plaintiff is pursuing a sexual harassment
claim, Defendant will want to know whether Plaintiff registered any
complaints to her doctors concerning a hostile working environment.
Plaintiff may resist on the basis that much of the clinical history is
unrelated to her case or is overly intrusive. Whether the court allows
the discovery or admits the evidence usually depends on whether
Plaintiff’s medical and psychological condition is “in issue.”
Plaintiffs can put this condition in issue by
simply making reference to “emotional distress” or “psychological
injuries” either in the body of the complaint or in the prayer. Once
that has occurred, or if plaintiff cites that as an issue in written
discovery or a deposition, the defense is off to the races to secure the
data which will either corroborate or contest plaintiff’s statements.
§9:20 Common Fact Pattern
The Plaintiff may claim that she was subjected to a
sexually hostile work environment or that her termination from the
Defendant employer proximately caused her to suffer emotional distress
injuries. She may claim that in the former case, she made
contemporaneous complaints to her psychiatrist of the unlawful conduct,
and in the latter, that she suffered as a proximate result of being
terminated. Under certain circumstances, this may have the effect of
waiving privileges, such as privacy [Vinson v. Sup.
In order to test the waiver of these privileges,
Defendant may propound interrogatories requesting the identities of all
treating physicians, serve document production requests for all medical
and psychological records, or in the alternative, issue subpoenas to the
treating doctors for records.
If they cannot agree by stipulation, the parties
will attempt to resolve waiver issues at trial by in limine motions
before the trial begins or, during trial, by asserting the privilege if
the judge has held back on ruling until the issue presents itself. Since
all sides like to avoid surprises, these evidentiary issues are
typically addressed and resolved during the pretrial procedures in
almost all federal and state courts.
§9:30 Foundation
To be probative, Plaintiff’s medical or psychological
condition must be relevant and “in issue.” F.R.C.P. 26; Rankin v.
-
The information sought would invade the psychotherapist-patient privilege, and Plaintiff does not intend to introduce such medical testimony. Vanderbilt v. Town of
-
The request is overbroad. Vasconcellas v. Cybex Internt’l., Inc., 962 F. Supp. 701 (D.
-
The medical evidence is not germane to the issues in dispute. Bottomly v. Leucadia Nat., 163 F.R.D. 617 (D.
§9:40 Objections
Common objections by Plaintiff to Defendant’s discovery
requests for medical and psychological records include:
-
Plaintiff’s medical or psychological condition is not “in issue”
-
Overbroad
-
Physician-patient privilege
-
Privacy
-
Relevance (particularly where plaintiff has self-treated and is doing better than when the action was filed)
-
Cumulative (i.e., where plaintiff testifies about his/her emotional condition, and then puts on testimony from an internist, social worker, psychiatrist and friends who attempt to corroborate plaintiff’s testimony).
-
Prejudice (particularly effective when plaintiff has experienced multiple stressors in his/her life having nothing to do with the subject of the lawsuit. Defense counsel can have a field day exploring the emotional ramifications, in front of a jury, of plaintiff’s divorce, extra-marital affairs, drug abuse, poor performance at work, serious illness/death of close friends/family members, child disciplinary problems, domestic abuse/violence and a barrel of other possibilities.)
§9:50 Defendant’s Tactics
In any case in which Plaintiff’s medical or
psychological condition is at issue, Defendant should serve
Interrogatories requesting the identity of all treating doctors,
psychologists, therapists, counselors, etc. Defendant also should serve
requests for all medical and psychological records, and should
simultaneously issue subpoenas to all health care providers for the
production of such documentation.
In the early stages of the case, it is good
practice to retain, even if just for consulting purposes only, a medical
professional who will assist the defendant in evaluating the information
which is gleaned from discovery responses provided by plaintiff. This
will assist the defense in not only crafting a more tailored approach in
both written discovery and depositions but will also go a long way in
streamlining trial strategy with an eye toward what is, from a medical
and psychological standpoint, vulnerable and what can be attacked to the
defense’s advantage.
Given the fact that the entire spectrum of
emotional distress evidence cannot be neatly placed into a pallet which
is either black or white, the defense should seize on plaintiff’s
attempts to color his or her case this way. No medical professional can
credibly testify that the sole source of their client’s ills derives
exclusively from anything defendant did or did not do. Take great care
to extract from both the medical examiners and the plaintiff what
stressors, separate and apart from the gravamen of the lawsuit, existed
at the time of the incidents or preceded or followed them. Such an
approach will create doubt in a jury or judge’s mind as to the
credibility of plaintiff’s case and the witnesses’ testimony.
The defendant who can score these kinds of points
during plaintiff’s case-in-chief will gather fodder for an effective
closing argument as well as ammunition for its own case when plaintiff
rests.
Defendant Tips:
1. Before serving a subpoena for medical or psychiatric
records, defense counsel should check applicable state law for specific
procedures regarding disclosure of information that may be subject to
the physician-patient privilege. Particularly where psychiatric records
are sought, state law may require the Plaintiff to execute a release
before Defendant may obtain these records. Otherwise, unless Plaintiff
voluntarily produces the records in discovery, Defendant may have to
seek a court order requiring disclosure.
2. If Defendant chooses to depose one or more
doctors, Defendant must first obtain leave of court to do so.
3. At Plaintiff’s deposition, ask the Plaintiff
whether she ever complained about the emotional distress over her job
loss or being subjected to sexual harassment on the job. Compare her
answers to the medical records. Are they consistent? Can the physician
be used to impeach by omission?
4. Move in limine to exclude evidence of
Plaintiff’s mental anguish in an age discrimination case. See,
e.g., Walker v. Pettit Construction Co., 605 F.2d 128 (4th Cir.
1979) (While the Court correctly noted that pain and suffering were not
recoverable damages under the ADEA, it rejected Defendant’s argument
that the entire verdict should be reversed; rather, the district court
could cure the error by setting aside the $50,000 portion of the verdict
for those damages).
5. Explore Plaintiff’s family and personal background.
Find out if Plaintiff’s emotional distress was caused by the hostile
work environment, or if Plaintiff underwent a divorce, lost a family
member, had an abortion (but see Nichols v. American National Ins. Co.,
154 F.3d 875 (8th Cir. 1998) (abuse of discretion to allow evidence of
Plaintiff’s abortion)) or experienced some other personal trauma
unrelated to the hostile work environment.
§9:60 Form: Defendant’s Subpoena for Medical Records
IN THE UNITED STATES DISTRICT
COURT
FOR THE ___________ DISTRICT OF ___________
______________ DIVISION
| [name of Plaintiff], | ) | |
| ) | ||
| Plaintiff, | ) | |
| ) | ||
| v. | ) | |
| ) | Case No.: _________________ | |
| ) | ||
| ) | Judge: ____________________ | |
| [name of Defendant], | ) | |
| ) | Magistrate: ________________ | |
| Defendant. | ) |
SUBPOENA IN A CIVIL CASE
To: [name of doctor,
Address,
City and state]
YOU ARE COMMANDED to produce and permit the inspection and copying of the following documents or objects at the place, date, and time specified below:
Any and all documents regarding or relating to the medical or psychiatric treatment of [Plaintiff], social security number [_____________], including, but not limited to: emergency room records, hospitalization case reports, histories, all chart entries, progress notes, nurses notes, prescription records, test results, x-rays, laboratory reports, correspondence, and billing records.
Place: _________________________ Date and Time: ______________________
[Defense counsel’s address]
Defendant,
By: ________________________
[Defendant’s attorney]
[Defendant’s Attorney,
address, and telephone number]
Dated: __________________
§9:70 Form: Defendant Motion to Compel
IN THE UNITED STATES DISTRICT
COURT
FOR THE ___________ DISTRICT OF ___________
______________ DIVISION
| [name of Plaintiff], | ) | |
| ) | ||
| Plaintiff, | ) | |
| ) | ||
| v. | ) | |
| ) | Case No.: _________________ | |
| ) | ||
| ) | Judge: ____________________ | |
| [name of Defendant], | ) | |
| ) | Magistrate: ________________ | |
| Defendant. | ) |
MOTION TO COMPEL
NOW COMES the Defendant, ____________ [name], by and through its attorney, ____________________ [name], and for its Motion to Compel, states as follows:
1. This case involves a claim of __________ [describe cause of action].
2. As part of Plaintiff’s alleged damages, Plaintiff seeks emotional distress damages due to the alleged conduct of the Defendant.
3. On _____________ [date], Defendant served upon Plaintiff the following discovery concerning her emotional distress damages: _____________ [describe, i.e., Notice to Produce psychiatric and psychotherapeutic records; Interrogatories concerning psychiatric treatment; demand that Plaintiff execute a release for her psychological records].
4. Plaintiff has not produced such discovery in that: ________________ [time has elapsed to respond, or Plaintiff has raised objections].
5. Defendant has attempted to resolve said discovery dispute by: ____________ [calling Plaintiff’s counsel—check local rule, or corresponding with Plaintiff’s counsel].
6. This evidence is relevant to: ___________________ [describe—i.e., Plaintiff’s claim that he was damaged to the alleged unlawful conduct].
7. Without the benefit of said discovery, Defendant cannot adequately discover Plaintiff’s alleged emotional distress damages and otherwise prepare for trial.
WHEREFORE, Defendant respectfully prays that this Honorable Court enter an Order:
A. Ordering Plaintiff to tender said discovery by a date certain;
B. Awarding Defendant its reasonable attorney’s fees for preparing and bringing the instant Motion;
C. Ordering any and all other relief this court deems fair and just.
Defendant,
By: ________________________
[Defendant’s attorney]
[Defendant’s Attorney,
address, and telephone number]
§9:80 Plaintiff’s Tactics
Plaintiff should object to any request for
discovery of medical and psychiatric information if her medical or
psychiatric condition is not at issue. For example, in an ADEA case or
FMLA case, Plaintiff’s suffering over her job loss is not compensable as
damages. If Plaintiff’s medical or psychiatric condition is at issue,
she should make objections designed to limit the disclosure of overly
intrusive information.
Plaintiff should file a Motion for a Protective
Order, barring the examination from taking place at all, or limiting its
scope. See §9:81 Form: Motion for Protective
Order—Plaintiff—Request for Independent Medical Examination.
If Defendant subpoenas Plaintiff’s treating
doctors or psychiatrists for records, and her condition is not at issue,
or disclosure would be overly intrusive, Plaintiff should file a Motion
to Quash in accordance with F.R.C.P. 45(c)(3)(A)(iii) prior to the
return date on the subpoena. See §9:90 for form.
Assuming Plaintiff’s condition has been put in
issue or, if not in issue, Plaintiff has not been successful in blocking
defense efforts to secure evidence of Plaintiff’s emotional health,
Plaintiff should make the best of what has come out by putting a
positive spin on what will be admitted. Plaintiff’s treating
professionals should craft their testimony with an eye toward what they
can expect on cross-examination. Statements such as: “The sole and
exclusive reason for Plaintiff’s ills was the abominable conduct of the
Defendant” belong in a complaint, not on the witness stand. Such a
proclamation, in front of skilled defense counsel, is tantamount to
drawing a bulls-eye on the witness box and hanging a sign saying:
“Hunting Season Opens after Direct Examination.”
Plaintiff Tip:
Designate records confidential. If Plaintiff is forced
to comply with discovery concerning her medical and psychological state,
designate the records as either “confidential” or “confidential—for
attorney’s eyes only” to limit their disclosure.
Plaintiff Tip:
Plaintiff may wish to put her medical or psychiatric
condition in issue where she has suffered severe emotional distress at
the hands of the Defendant. By doing so, Plaintiff may be able to plead
and prove a claim for intentional infliction of emotional distress. Such
a claim, if proved, would not be subject to the federal statutory caps
on compensatory or punitive damages. See Naeem v. McKesson
Drug Company, 444 F.3d 593 (7th Cir. 2006).
§9:81 Form: Motion for Protective
Order—Plaintiff—Request for Independent Medical Examination
IN THE UNITED STATES DISTRICT
COURT
FOR THE ___________ DISTRICT OF ___________
______________ DIVISION
| [name of Plaintiff], | ) | |
| ) | ||
| Plaintiff, | ) | |
| ) | ||
| v. | ) | |
| ) | Case No.: _________________ | |
| ) | ||
| ) | Judge: ____________________ | |
| [name of Defendant], | ) | |
| ) | Magistrate: ________________ | |
| Defendant. | ) |
MOTION FOR A PROTECTIVE ORDER
NOW COMES Plaintiff, ______________ [name of Plaintiff], by and through her attorneys, ________________ [name of Plaintiff’s attorney], and for its Motion for a Protective Order, states as follows:
1. Plaintiff has brought a claim against Defendant under _________________ [name of statute].
2. Defendant has sought to have Plaintiff examined by ____________ [name of physician or psychiatrist], and further plans to have Plaintiff submit to the following tests: ______________ [describe].
3. The proposed examination of the Plaintiff should not proceed because it is intrusive due to: _____________ [explain].
4. Further, the following tests: ______________ [list] are inapplicable to Plaintiff’s psychological condition because: ______________ [describe].
5. Additionally, certain testing procedures proposed by the Defendant would not be permitted during the normal course of discovery: ______________ [list].
6. Lastly, the following tests would not be probative of Plaintiff’s mental condition in the past, and should not be allowed under Federal Rule of Evidence 403: ______________ [list].
WHEREFORE, Plaintiff ____________ [name of Plaintiff], respectfully prays that this Honorable Court enter the following Order:
A. Barring Defendant from conducting an examination of the Plaintiff;
B. Alternatively, limiting the examination to the following tests: _____________ [list]
C. Ordering any and all other relief this court deems fair and just.
Plaintiff,
By: ________________________
[Plaintiff’s attorney]
[Plaintiff’s Attorney,
address, and telephone number]
§9:90 Form: Plaintiff’s Motion to Quash
To have your free
Employment Evidence chapter e-mailed to you, fill in the
blanks below and press Submit. The
chapters available are listed above.
