Litigation Induced Stress is Not a Recoverable Damage

“Litigation is stressful” is like telling me “the sun rises in the east.”  However, it is important to note that the stress litigation induces is not a recoverable item of damages.  The topic arose locally in Wright v. Watkins & Shepard Trucking, Inc. where defendants moved to preclude recovery of these damages but Plaintiffs argued “they are entitled to show all the emotional suffering they have endured as a result of the accident.”[1]  That flew like a lead balloon.

“Federal court decisions are unanimous in holding that litigation-induced stress may not be recovered as damages.’ Picogna v. Bd. of Educ. of Twp. of Cherry Hill, 143 N.J. 391, 397-99, 671 A.2d 1035, 1038-39 (1996). In a negligence action against a government employer, Judge Posner observed: “It would be strange if stress induced by litigation could be attributed in law to the tortfeasor. An alleged tortfeasor should have the right to defend himself in court without thereby multiplying his damages….” Stoleson v. United States, 708 F.2d 1217, 1223 (7th Cir.1983); see Timms v. Rosenblum, 713 F.Supp. 948, 955 (E.D.Va.1989), aff’d, 900 F.2d 256 (4th Cir.1990) (denying recovery for litigation-induced stress in legal malpractice case because mental anguish attends all litigation); Clark v. United States, 660 F.Supp. 1164, 1200 (W.D.Wash.1987), aff’d, 856 F.2d 1433 (9th Cir.1988) (suggesting that although stress of litigation is caused by the underlying harm, pursuit of litigation is a matter of choice).

[1] No. 2:11-cv-01575, 2016 U.S. Dist. LEXIS 6530 (D. Nev. Jan. 19, 2016).