NJ Court Denies Employer’s Request for IME of Plaintiffs Alleging Race Discrimination

Employers and their counsel should expect plaintiffs who seek damages for emotional distress in discrimination cases to utilize a recent New Jersey Law Division decision to challenge defense requests for Independent Medical Exams (IME) and for plaintiffs’ medical and psychological records. In the unpublished decision of McGhee v. Pathmark Stores, Inc. et al., the Law Division rejected the defendant employers’ application to conduct IMEs of the plaintiffs who were alleging severe and continuing pain and suffering over a 3-1/2 year period as a result of alleged race-based employment discrimination. The court concluded that “[e]motional distress is a recognized byproduct of discrimination” and, therefore, the plaintiffs did not put their mental state in issue — a requirement for obtaining an IME under the New Jersey Court Rules — when they pled severe pain and suffering.

In reaching its decision, the court essentially rejected all of the defendant employers’ arguments for allowing IMEs of each plaintiff in order to explore whether their alleged pain and suffering could have been caused by other stressors or underlying mental issues, and instead emphasized the following:

• The Findings, declarations section section of the New Jersey Law Against Discrimination (LAD), under which the McGhee plaintiffs brought their claims, expressly states: “because of discrimination, people suffer personal hardships, includ[ing] … physical and emotional stress; and in some cases severe emotional trauma, illness, homelessness or other irreparable harm resulting from the strain of employment controversies; … anxiety caused by lack of information, uncertainty, and resultant planning difficulty; career, education, family and social disruption; and adjustment problems, which particularly impact on those protected by this act. Such harms have, under the common law, given rise to legal remedies, including compensatory and punitive damages. The Legislature intends that such damages be available to all persons protected by this act and that this act shall be liberally construed in combination with other protections available under the laws of this State.”

• In Tarr v. Ciasulli, the New Jersey Supreme Court held that an LAD plaintiff can recover monetary damages for emotional distress without “corroborative proof, permanency of response, or other physical or psychological symptoms rendering the emotional distress severe or substantial.”
• The other factors that potentially contribute to the plaintiffs’ pain and suffering — plaintiffs’ current criminal history, domestic abuse charges and court-ordered anger management treatments — neither provide the defendant employers with a defense to the LAD claims nor offer an alternate explanation for the pain and suffering allegedly caused by the purported race discrimination.
• The criminal and behavioral histories of the plaintiffs, if exposed through IMEs, would confuse the jury and/or cause them to judge the plaintiffs for their “moral turpitude” rather than judge the evidence as to whether they endured race discrimination in violation of the LAD.
• There is nothing to preclude the defendant employers from retaining a rebuttal expert to counter the plaintiffs’ expert psychological witness’s testimony that a typical African American will endure pain and suffering as a result of certain racially-motivated activities.

It is clear that the McGhee court’s opinion was influenced, at least in part, by the nature of the information the IMEs would have highlighted about the plaintiffs — that is, their criminal and domestic abuse charges and anger management issues. Had the other potential contributing stressors sought to be explored through the IMEs been less unflattering — for example, the untimely death of a spouse — perhaps the court would have ruled more consistently with the broad scope of discovery permitted by the New Jersey Court Rules, under which the defendants sought the IMEs.

Whether the McGhee decision ultimately will be embraced as the new standard and whether courts will routinely deny defense applications for IMEs of LAD plaintiffs alleging “garden variety” emotional distress remains to be seen, particularly in light of the fact-sensitive nature of employment cases, and the overall dearth of case law on this issue in New Jersey. In the meantime, employers and their counsel should expect to see the McGhee case utilized by LAD plaintiffs to challenge requests for IMEs, as well as requests for other medical information.