Proving damages for negligent infliction of emotional distress in small claims

[Jay Sunn]

Jurisdiction

California

I want to argue for emotional distress via the per diem method. Is getting a letter from my therapist (who has a PhD in psychology) a good way to support my argument? Would she basically say – it will take [me] say, one year (just throwing out a length of time, I'll have to talk with her to get her opinion) to recover from the emotional distress? And then I can include an amount per day based on the physical and psychological symptoms of the emotional distress?

 

[adjusterjack]

Made me laugh there.

Not gonna happen.

No judge is going to buy into that scam.

Now tell us about the case and why you want to add emotional stress into it and maybe you'll get some helpful comments.

 

[Jay Sunn]

No judge is going to buy into that scam.
.

What about it is a scam, precisely? I thought NEID is a valid claim to make in small claims. I've already consulted with an attorney (who, granted, doesn't do personal injury) who said it was a totally valid claim and encouraged me to proceed with it.

I'd prefer not to post details about the claim itself for personal reasons.

 

[Zigner]

What about it is a scam, precisely? I thought NEID is a valid claim to make in small claims. I've already consulted with an attorney (who, granted, doesn't do personal injury) who said it was a totally valid claim and encouraged me to proceed with it.

I'd prefer not to post details about the claim itself for personal reasons.

Without more information, there's no way we can answer it. Consult with an attorney if you don't want to explain more here. Good day.

 

[adjusterjack]

Well, correct me if I'm wrong, but what I am reading is that you want your therapist to say that you will be suffering from emotional distress for a year (or some other specific amount of time) going forward.

What happens at the end of that amount of time? Are you miraculously cured?

That's the part that's a scam. And it's not going to work.

If your injury caused you emotional distress you have to pay money for treatment of emotional distress from day one and your therapist will have to write ongoing reports about your treatment and be willing and able to testify in court about your condition. At the point of settlement or judgment, if the therapist testifies that you are still suffering from emotional distress, then an amount might be agreed to or awarded for future therapy. There is often a provision in the settlement or award that you only get future money as you incur the expense and submit the bill for reimbursement.

 

[army judge]

What happens at the end of that amount of time? Are you miraculously cured?

I suspect the purported "per diem" accumulates to the desired amount the alleged victim desires.

Small claims court allows you to sue a person, business, or government agency that you think owes you money. Generally, you can only sue for up to $12,500 in small claims court (or up to $6,250 if you're a business). You can ask a lawyer for advice before you go to court, but you can't have one with you in court.

There are some limits on small claims in California.
You can't have a lawyer represent you.
You have to collect the money if you win your case.
The court does not do it for you.
If you started the case, you can't appeal if you lose your case.
The judge's decision is final.
You can appeal if you are sued, or the other side sues you back, and you lose.
If small claims court limits don't work for you, you may want to think about opening a case in civil court.
That process is much more challenging and expensive, though, especially if you decide to file on your own without an attorney.

https://selfhelp.courts.ca.gov/small-claims-california

 

[Jay Sunn]

Well, correct me if I'm wrong, but what I am reading is that you want your therapist to say that you will be suffering from emotional distress for a year (or some other specific amount of time) going forward.

What happens at the end of that amount of time? Are you miraculously cured?

That's the part that's a scam. And it's not going to work.

If your injury caused you emotional distress you have to pay money for treatment of emotional distress from day one and your therapist will have to write ongoing reports about your treatment and be willing and able to testify in court about your condition. At the point of settlement or judgment, if the therapist testifies that you are still suffering from emotional distress, then an amount might be agreed to or awarded for future therapy. There is often a provision in the settlement or award that you only get future money as you incur the expense and submit the bill for reimbursement.

Thank you, this is helpful. Wrt being healed at the end of that amount of time, of course not, but I thought for the purposes of making an argument for damages caused by NIED, saying something like, "My client will need therapy for, I estimate, another two years before his distress returns to normal levels" would work better than saying, "My client will never truly heal from this and it's impossible to calculate what the damages will really be, but 10k sounds good for now."

 

[adjusterjack]

"My client will need therapy for, I estimate, another two years before his distress returns to normal levels" would work better than saying, "My client will never truly heal from this and it's impossible to calculate what the damages will really be, but 10k sounds good for now."

What caused your emotional distress?
What treatment did you have?
What were the consequences of your emotional distress?

You get nothing for future damages unless you prove causation, treatment, and consequences.

 

[zddoodah]

I want to argue for emotional distress via the per diem method.

Emotional distress for what? Whom are you suing and on what legal basis?

Is getting a letter from my therapist (who has a PhD in psychology) a good way to support my argument?

Meh...since rules of evidence are relaxed in small claims court, it might be accepted.

Would she basically say – it will take [me] say, one year (just throwing out a length of time, I'll have to talk with her to get her opinion) to recover from the emotional distress?

How could we possibly know what she'd say?

And then I can include an amount per day based on the physical and psychological symptoms of the emotional distress?

You don't just get to pick a number. It has to have a basis in reality.

I thought NEID is a valid claim to make in small claims. I've already consulted with an attorney (who, granted, doesn't do personal injury) who said it was a totally valid claim

You certainly can sue for NEID in small claims court. However, (1) you didn't mention NEID in your initial post, you just mentioned emotional distress damages, and (2) if you're suing someone because of a physical injury you suffered, there is no need to include a cause of action for NEID. For a personal injury claim, you may be entitled to non-economic damages (pain and suffering).

Again, tell us what happened that is causing you to (want to) sue.