For a constitutional rights violation, a plaintiff is entitled to compensatory damages for resulting intangible harm. Memphis Community School District v. Stachura, 477 U.S. 299, 306, 106 S. Ct. 2537, 2543, 91 L. Ed. 2d 249 (1986); Carey v. Piphus, 435 U.S. 247, 264, 98 S. Ct. 1042, 1052, 55 L. Ed. 2d 252 (1978). Cf. Gunby v. Pennsylvania Electric Co., 840 F.2d 1108, 1121 (3d Cir. 1988), cert. denied, 492 U.S. 905, 109 S. Ct. 3213, 106 L. Ed. 2d 564 (1989). While the standard of proof for emotional distress has been problematical, SEPTA's contention that the evidence in this case was legally insufficient is not well founded.
SEPTA refers to Spence v. Board of Education, 806 F.2d 1198, 1201 (3d Cir. 1986) (remittitur upheld where evidence of emotional distress was speculative, without deciding whether a verdict for such harm may rest solely on plaintiff's own testimony).
In the present case, plaintiff's portrayal of himself as a broken man was supported by the testimony of four other witnesses. Moreover, the unconstitutional administration of the drug test undeniably brought about extremely stressful consequences - the loss of a job, the lack of pay, the realization that SEPTA and, in turn, the union and others considered plaintiff to be a drug user. In the previous year, he had undergone a lengthy grievance procedure and had just been conditionally reinstated. As it turned out, in insisting on the drug test, SEPTA violated plaintiff's constitutional rights. Factors such as these, which objectively demonstrate a strong probability of stress, were conspicuously missing in Spence.
In Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 527 A.2d 988 (1987), the Pennsylvania Supreme Court considered the legal standard of proof for emotional distress in a special, nontraditional context. In affirming the nonsuit of an action for intentional infliction of emotional distress brought under section 46 of the Restatement (Second) of Torts, Chief Justice Nix concluded that if that section were to be adopted in Pennsylvania "at the very least, existence of the alleged emotional distress must be supported by competent medical evidence." Id., 515 Pa. at 197, 527 A.2d at 995. This requirement of superior proof, however, is occasioned by the subjective and amorphous nature of the tort itself. Analytically, as with intentional torts generally, it is difficult to separate the injury from the offensive conduct. Yet in the case of intentional infliction, it is even harder to define in a concrete and objective way the liability predicate of "outrageousness." Id., 515 Pa. at 197, 527 A.2d at 994-95. The reluctance to allow compensation for emotional distress based on subjective perception and unconfirmed testimony has much less application to a constitutional violation.
"The starting point for analyzing damages for violations of constitutional rights is the common law." Parrish v. Johnson, 800 F.2d 600, 606 (6th Cir. 1986). If Kazatsky is at one extreme of the compensatory damages spectrum, the present case, which is closely akin to common law defamation, is at the other. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S. Ct. 2997, 3012, 41 L. Ed. 2d 789 (1974) ("The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss."). As explicated in Carey, "those forms of defamation that are actionable per se are virtually certain to cause serious injury to reputation, and . . . this kind of injury is extremely difficult to prove." 435 U.S. at 262, 98 S. Ct. at 1051. The intentional infliction cases are not helpful to defendant's position on proof of damages.
In remanding this case for a new trial limited to damages, the opinion of the Court of Appeals discusses the effect of the grievance settlement in two passages:
Consequently, we conclude that Bolden was bound by the terms of the settlement and that Bolden's rejection of reemployment on these terms cut off his right to damages for lost wages following that date. Because it is impossible to determine how much of the jury verdict was based on lost wages and emotional distress occurring after this settlement, we must reverse the award of damages and remand for a new trial on this issue.