Medical damages not necessary to prove emotional distress

St. Louis Daily Record & St. Louis Countian, Aug 30, 2007 by Donna Walter

Missouri plaintiffs alleging intentional infliction of emotional distress do not have to prove medical damages, the 8th U.S. Circuit Court of Appeals said Wednesday.

The decision was the 8th Circuit's interpretation of what the Missouri Supreme Court would say if it were faced with the question. In arriving at its decision, the 8th Circuit relied on a footnote in the state Supreme Court's 2006 decision in State ex rel. Dean v. Cunningham even though that case didn't deal directly with the issue before the federal appeals court.

"The state Supreme Court answered the question, but it was in dicta, and so the question was did they really mean it or not. The 8th Circuit says essentially, 'Well, we'll take them at their word, and we'll assume they meant what they

said,'" said Sanford J. Boxerman of Capes, Sokol, Goodman & Sarachan, who represented plaintiff Carolyn Bogan in her employment lawsuit against General Motors Corp.

The footnote in Dean concerned the 8th Circuit's 1992 decision in Glover v. McDonnell Douglas Corp., in which the appellate court said Missouri law requires expert medical testimony in all types of emotional distress claims. That was a wrong interpretation, the state Supreme Court said in the footnote, making a distinction between claims of negligent infliction of emotional distress, which do require medical proof of damages, and claims of intentional infliction of emotional distress, which don't.

GM relied on decisions from the state appellate court and the federal district court for its argument in support of requiring medical testimony for intentional infliction claims. But the 8th Circuit reminded the corporation that its task is to predict "how the Missouri Supreme Court would resolve this issue, not how the intermediate state courts have resolved it."

The federal appeals court also held the plaintiff's claim for intentional infliction of emotional distress is not pre-empted by Section 301 of the Labor-Management Relations Act - another argument advanced by GM.

Bogan's claim isn't based on the management rights clause of the collective bargaining agreement, nor is it "inextricably intertwined" with the terms of the labor contract, the court said, citing the U.S. Supreme Court's decision in Allis-Chalmers Corp. v. Lueck.

The 8th Circuit's decision reverses the decision by U.S. District Judge Jean C. Hamilton to grant GM's motion for summary judgment.

Bogan was fired as a result of an investigation into alleged drug sales at GM's assembly plant in Wentzville. Dwayne Harrell, an employee of the private security firm North American Security Solutions, reported he observed Bogan and other GM employees selling or using drugs in the workplace. An article in the St. Louis Post- Dispatch identified Bogan as one of eight GM employees charged with selling marijuana at work. The criminal charges against Bogan were later dismissed, and she was rehired after she challenged her termination.

Bogan sued GM and NASS. On July 5, 2006, Hamilton granted GM's motion for summary judgment on Bogan's claims for intentional infliction of emotional distress, negligent infliction of emotional distress, libel and malicious prosecution. Hamilton dismissed the case against NASS a few weeks later. Bogan sought $225,000 in damages from the companies.

On appeal, Bogan challenged only the dismissal of her claim against GM for intentional infliction of emotional distress. The claim will now proceed to trial.

GM's attorneys, Bridget B. Romero and David C. Vogel of Lathrop & Gage's Kansas City office, could not be reached for comment.