Emotional distress claims are tricky because they are so easily faked. Anyone can assert that they suffered unbearable pain and suffering as the result of a defendant’s wrongful act, regardless of the degree of humiliation actually felt. It’s kind of hard to disprove another person’s subjective emotions. The Fourth Circuit has criticized emotional-distress cases for being “easily susceptible to fictitious and trivial claims” and has warned that awards of emotional-distress damages can be set aside when based solely on the plaintiff’s own conclusory, unsupported, subjective assertions. (See Hetzel v. County of Prince William, 89 F.3d 169, 171-72 (4th Cir. 1996); Price v. City of Charlotte, 93 F.3d 1241, 1250 (4th Cir. 1996)). In Virginia state court, however, the Virginia Supreme Court has clarified that corroborating evidence of emotional injury is not a prerequisite for obtaining such damages. And emotional-distress damages can be substantial.
Not every claim allows for the recovery of emotional-distress damages. In fact, as a general rule, emotional-distress damages are not recoverable absent accompanying physical harm or wanton and willful conduct. (See Fairfax Hosp. By & Through INOVA Health Sys. Hosps., Inc. v. Curtis, 254 Va. 437, 445–46 (1997)). An exception to this rule is where a cause of action exists independently of the emotional distress, such as when compensatory damages are expressly permitted by statute. (See Sea-Land Serv., Inc. v. O’Neal, 224 Va. 343, 354 (1982) (“[W]e have approved the recovery of damages for humiliation, embarrassment, and similar harm to feelings, although unaccompanied by actual physical injury, where a cause of action existed independently of such harm.”) Earlier this month, the Supreme Court of Virginia dealt with such a case and held that emotional distress damages were recoverable even in the absence of monetary damages or physical injuries.