Seeking damages for pain and suffering? Harsh lessons from playing hide-the-ball

Melissa Schilling Iowa Employment & Labor Law Dickinson Law Des Moines Iowa

Posted on 03/28/2016 at 12:00 AM by Melissa Schilling

In employment lawsuits, pain and suffering damage awards (sometimes referred to as emotional distress damage awards) have come to play an increasingly prominent role over the last 15 years, due in large part to the enactment of the Americans with Disabilities Act in 1990 and the Civil Rights Act of 1991, as well as the increase in statutory and tort-based causes of actions under Iowa law that allow the recovery of damages for pain and suffering. In fact, pain and suffering awards often make up the lion’s share of judgments in employment lawsuits in Iowa.

Given the large role that these damage awards play, state and federal courts have implemented rules that require plaintiffs to disclose the specific figure of damages that they seek at the outset of the lawsuit.  Despite these rules, plaintiffs frequently refuse to disclose a computation of pain and suffering damages until they present their case to a jury. For example, during discovery, plaintiffs frequently claim that they cannot prove such damages with “mathematical certainty.” But such a claim is disingenuous. After all, if a plaintiff presents a specific amount to the jury for pain and suffering damages, then presumably s/he has a basis and means for arriving at the amount s/he is seeking. And, such a “hide-the-ball approach” leaves defendant employers at a disadvantage because they are unable to discover the basis for the computation and rebut that basis during trial.

At this point, you may be asking yourself: is there any penalty for failing to comply with state and federal disclosure requirements? According to a recent decision from the Iowa Court of Appeals, the answer to this question is YES!

In T.D. Il. v. Des Moines Indep. Cmty. Sch. Dist., No. 14-2166 (Iowa Ct. App. Jan. 27, 2016), the Iowa Court of Appeals upheld perhaps the harshest sanction after the plaintiff failed to disclose his computation of pain and suffering damages during discovery. The Court affirmed the District Court’s decision to preclude the plaintiff from submitting any proof of pain and suffering damages to the jury. As a result, the jury did not award plaintiff any damages for pain and suffering. In reaching its decision to impose such a severe sanction, the District Court highlighted the plaintiff’s blatant failure to follow Iowa law and Iowa’s rules of civil procedure regarding the disclosure of damages, and emphasized the importance of affording the defendant the opportunity to discover the information before trial.

Take Aways: While harsh, the decision to exclude the plaintiff from submitting any proof of pain and suffering damages in the T.D. Il. case represents a likely outcome for a failure to comply with the disclosure requirements of state and federal court. Therefore, it is well advised for defense attorneys to request a computation of damages during discovery, insist on the plaintiff providing such a computation, and to file a motion in limine when the plaintiff refuses to do so.

If you have any questions regarding discovery and the duty to disclose damage computations, please contact a member of Dickinson’s employment law group or litigation group.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.


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