Supreme Court Rules on IIED and Spoliation

The Supreme Court of Nevada has clarified the evidence necessary to present an intentional infliction of emotional distress (“IIED”) claim while also clarifying the implications of a rebuttable presumption jury instruction arising from spoliation of evidence. Franchise Tax Bd. of Cal. v. Hyatt has a very, very long history that I will not bother repeating here.[1] Instead, I focus on the discovery implications from two parts of the decision.

Burden of Proof for IIED

IIED was one of many causes of action the plaintiff alleged. However, he “refused to disclose his medical records. As a result, he was precluded at trial from presenting any medical evidence of severe emotional distress.”[2] Despite that, he was allowed to present “evidence designed to demonstrate his emotional distress in the form of his own testimony regarding the emotional distress he experienced, along with testimony from his son and friends detailing their observation of changes in Hyatt’s behavior and health during the audits.”[3] The jury found in his favor and awarded $82,000,000 on that cause of action. To the surprise of no one, that generated an appeal.

To prove IIED, the plaintiff must demonstrate “(1) extreme and outrageous conduct on the part of the defendant; (2) intent to cause emotional distress or reckless disregard for causing emotional distress; (3) that the plaintiff actually suffered extreme or severe emotional distress; and (4) causation.”[4] This evidence must contain “‘objectively verifiable indicia’ to establish that the plaintiff actually suffered extreme or severe emotional distress.”[5] The question on appeal was whether an IIED cause of action may be proven without medical expert testimony.

[W]e now specifically adopt the sliding-scale approach to proving a claim for IIED. Under this sliding-scale approach, while medical evidence is one acceptable manner in establishing that severe emotional distress was suffered for purposes of an IIED claim, other objectively verifiable evidence may suffice to establish a claim when the defendant’s conduct is more extreme, and thus, requires less evidence of the physical injury suffered.[6]

The plaintiff’s evidence was sufficient to meet that burden.

Adverse Inference Jury Instructions

The original complaint was filed in 1998. In 1999 the defendant replaced an email server and later destroyed the backup tapes from that server. The district court concluded this was action merited an adverse inference jury instruction, meaning it was rebuttable. At trial, the defendant “sought to introduce evidence explaining the steps it had taken to preserve any relevant emails before the server change.”[7] The district court refused, concluding this was an attempt to re-argue the propriety of the jury instruction. This was error. “The district court should have permitted FTB to explain the steps that it took to collect the relevant emails in an effort to demonstrate that none of the destroyed information contained in the emails was damaging to FTB.”

Lessons?
1) Whether a given fact pattern will require expert testimony to prove IIED is highly fact specific.
2) A district court cannot give a rebuttable presumption jury instruction and then exclude the very evidence to rebut it. However, this means the litigant had the foresight to gather this information and disclose it during discovery.

[1] 133 Nev. Adv. Rep. 57, 401 P.3d 1110 (2017).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id. at 1134.
[7] Id. at 1137.
[8] Id. at 1138.