CIVIL COURT EVALUATIONS: PERSONAL INJURY, EMPLOYMENT BASED CLAIMS (e.g., SEXUAL HARASSMENT, RACE OR AGE DISCRIMINATION)
Claims for “emotional distress” or the “willful infliction of emotional distress” arising out of a personal injury (e.g., car accident, premises liability, etc.) or employment (e.g., sexual harassment, race, or age, discrimination) may be filed in either state court (in Florida, under Florida Rule 1.360. Examination of Persons) or Federal court (under Federal Rule of Civil Procedure 35 (CR 35), a/k/a “CR 35 evaluations”).
Psychological evaluations are conducted when the plaintiff’s mental condition is in controversy. A comprehensive evaluation will include a thorough review of available records and court documents, an extended clinical interview (or interviews), and psychological testing, particularly testing to rule out malingering.
When “emotional distress” is present (or from the defense perspective, when the presence of “emotional distress” is being challenged), a complete evaluation serves to rule out (or in) the presence of malingering, the nature (i.e., symptoms and diagnosis) of the alleged injury or distress, the likely causal factors, and treatment needs and prognosis.
An evaluation may be performed on behalf of a plaintiff, usually under the umbrella of the work product doctrine until such time as a report may be released (or the plaintiff’s attorney understands that there is no significant underlying psychological injury attributable to the facts of the case); or in the context of an IME when the defense can call it’s own expert to assess the plaintiff.
Whether in state of Federal court a forensic psychologist provides one, or more, of the following expert services: (i) conducting an evaluation, (ii) reviewing empirical research related to the issue before the court, (iii) assisting in the preparation of a Q & A of either himself or of the opposing party’s expert, (iv) giving expert testimony, or (v) consulting with other professionals.
See: del Russo, A., and Poliacoff, J. (2004). Mental Examinations in Federal Employment Litigation. The Florida Bar Journal, Vol. LXXVIII, No. 5, p. 60 -64.