EMOTIONAL DISTRESS CLAIMS, DIGNITARY TORTS, AND THE MEDICAL-LEGAL FICTION OF REASONABLE SENSITIVITY.

• Author: Suuberg, Alessandra

TABLE OF CONTENTS INTRODUCTION 116 I. THE HIGHLY SENSITIVE PERSON ACCORDING TO PSYCHOLOGY 118 II. IIED TODAY: CONSIDERATION OF KNOWN OR UNKNOWN VULNERABILITIES 120 A. IIED and the Highly Sensitive Plaintiff 122 B. IIED and Non-Apparent Mental Conditions 124 III. IIED IN THE FUTURE: CONSIDERATION OF INFERRED OR PREDICTED VULNERABILITIES 125 A. Scenario 1: The Privacy-Conscious Plaintiff 127 B. Scenario 2: Exploitation of a Predicted Vulnerability 130 IV. DIGNITARY TORTS AND THE MEDICAL -LEGAL FICTION OF REASONABLE SENSITIVITY 132 V. LESSONS FROM CLINICAL AND CRIMINAL-LAW APPROACHES TO PRIVATE-ACTOR CRUELTY 135 CONCLUSION 137 "Is it not desirable that...individuals and institutions [who] may indulge in overreaching and harassing tactics be restrained by the law--without regard to whether their victims are persons of...resilient nature?" --Willard Pedrick, Pepperdine Law Review, 1985 (1) INTRODUCTION

In 2019, an article in the University of Memphis Law Review asked how a Highly Sensitive Person (HSP) plaintiff would likely fare when suing for intentional infliction of emotional distress (IIED). (2) The author predicted that a highly sensitive plaintiff would be left without a remedy, as IIED contemplates what would be harmful and offensive to the average, "reasonable" person--and an HSP is, by definition in the field of Psychology, more emotionally reactive than average. (3) The author suggested that the IIED tort's reasonableness standard may actually be un-reasonable for around 20% of the human population (4) and that expert witness testimony regarding high sensitivity could play a role in securing remedies for HSP plaintiffs. (5)

The author's analysis with respect to HSPs raises broader questions about IIED claims and plaintiffs with non-apparent emotional vulnerabilities, defined for the purposes of this article as pre-existing, diagnosed mental conditions that are not known to the defendant. (6) What are the prospects for a successful suit when an underlying, formally diagnosed psychiatric disorder heightens the plaintiff's vulnerability to harm? What about a trait or temperament that--similar to high sensitivity--falls short of a diagnosed psychiatric disorder, and what about inferred or genetically predicted vulnerabilities whose significance is not scientifically certain. (7) The purpose of this article is to revisit the medical-legal fiction (8) of reasonable sensitivity with respect to both HSP plaintiffs and plaintiffs with other diagnosed and undiagnosed vulnerabilities, including suspected genetic predispositions to psychiatric illness.

Part I briefly reviews psychological and biological research on the HSP construct, which describes a temperament (personality type), as opposed to a diagnosed psychiatric disorder. While research on this temperament has come a long way as of 2023, and the HSP has gained mainstream attention in popular news outlets, the psychologist who coined the 'HSP' term and first described the trait in the 1990s points out that many studies are flawed, and the trait is subject to misinterpretation.

Part II discusses the reasonable person standard applied in IIED claims, how tort law might account for highly sensitive plaintiffs, and how the law has historically accounted for plaintiffs with mental conditions or other vulnerabilities to mental injury that are either known or unknown to the defendant. Early approaches to IIED reflected the difficulty of evaluating emotional harm and the resulting need to add safeguards to the tort, such as reasonableness and injury-related requirements, to avoid overburdening the courts. Over the years, various commentators have opined that the safeguards historically used to weed out frivolous or falsified claims have resulted in a confused hybrid tort that imperfectly remedies inflicted distress.

Part III addresses considerations that may arise with continued progress in psychiatric genetics and research on the brain, presenting two hypothetical variations on the classic IIED scenario: first, cases where the plaintiff's vulnerability is not known to the defendant, and the plaintiff wishes not to publicize it (even if they could hire experts and make a science-backed argument); and second, where the defendant infers or predicts and strategically exploits the plaintiff's non-apparent vulnerability. I present these scenarios in order to draw attention to potential plaintiff privacy concerns, the increasing potential sophistication of defendants, and the increasing research efforts to predict and infer individuals' health status, which could all be taken into account when deciding how to address intentionally inflicted emotional distress in the future.

Finally, Parts IV and V return to the legal fiction of a "reasonable" or "ordinary" person and its purpose in tort law, (9) raising considerations that embracing the medical-legal fiction of 'reasonable sensitivity' can serve a plaintiff-protecting function; keep IIED true to its roots as a dignitary tort; (10) and mirror trends in the clinical assessment of--and criminal prosecutions related to--private-actor cruelty such as domestic violence and intra-familial child torture. (11)

The purpose of raising these considerations is not to propose or advocate for specific reforms or strategies. Instead, the goal is to encourage readers to think about the impact that shifting the focus of the IIED tort--either toward the experience and biology of the plaintiff or toward the conduct of the defendant--might have on litigants and the way that society views and remedies emotional harms in the interest of individual corrective justice. (12)

1. THE HIGHLY SENSITIVE PERSON ACCORDING TO PSYCHOLOGY

   The Highly Sensitive Person continues to be an imperfectly understood concept in psychology that is subject to misinterpretation, according to Elaine Aron, the researcher who coined the term in the 1990s. (13) However, as of 2023, Aron still unambiguously emphasizes that 'being an HSP' is a personality trait and not a disorder. "High sensory processing sensitivity" is not a psychiatric diagnosis, (14) and it does not appear in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) (15) or the International Classification of Diseases (ICD). (16)

   The HSP construct (17) arose out of research started by Aron, a Stony Brook psychologist, in the 1990s. (18) In 1997, Aron and co-author Arthur Aron published a paper defining the trait and presenting the Highly Sensitive Person Scale, a diagnostic checklist based on a series of exploratory, questionnaire-based studies they had carried out with university students and the general public. (19) Today, Aron offers a "self-test" based on the same checklist on her website, with the caveat that "[t]he contents...are not meant to diagnose or exclude the diagnosis of any condition." (20)

   Aron and her co-authors have long emphasized that when they talk about the HSP, they are talking about a temperament or personality category, (21) not a mental disorder. (22) However, an individual could conceivably both carry a formal diagnosis such as depression or bipolar disorder and identify as an HSP based on taking an online self-test. And although researchers have identified neural correlates of high sensitivity in fMRI studies (23) and proposed genetic associations in a limited number of papers, (24) relatively little is actually known about sensory processing sensitivity or its biological basis. (25)

   Aron and her co-authors explored the possibility of a link between the HSP construct and psychopathology in 2018. They recognized that aspects of the trait, such as environmental sensitivity and hyper-responsiveness to stimuli, seemingly overlap with aspects of clinical disorders including autism, schizophrenia, and post-traumatic stress disorder (PTSD). The authors compared fMRI findings from studies on these disorders to findings from studies on the HSP and concluded that there were observable differences between the highly sensitive brain and the brain in autism, schizophrenia, or PTSD with respect to reward processing, memory, empathy, and other functions. (26) Aron was joined by new co-authors across different disciplines in 2019 and called for further study on the HSP to clarify various biological unknowns. (27)

   Despite relatively limited attention from researchers, the public has embraced the HSP construct with enthusiasm in recent years. Along with introverts, (28) HSPs began to experience a moment in the pop-culture limelight five to ten years ago, gaining widespread coverage in various mainstream outlets such as the Wall Street Journal and Psychology Today, (29) though even now in 2023, it is not clear how many psychologists would actually "diagnose" a client as highly sensitive and treat them on that basis, given that high sensitivity in and of itself is not a mental condition. (30)

2. IIED TODAY: CONSIDERATION OF KNOWN OR UNKNOWN VULNERABILITIES

   "[T]he rule which seems to be emerging is that there is liability ...for conduct exceeding all bounds which could be tolerated by society, of nature especially calculated to cause mental damage of a very serious kind." --William Prosser, Michigan Law Review, 1939 (31) The story of IIED is one of various attempts, over time, to ensure that unacceptable attacks on plaintiffs' mental tranquility do not go unpunished--without leaving too much room for frivolous claims. Striking the right balance has not been easy given the ambiguous and subjective nature of mental harms.

   As a result, just as the science of high sensitivity has been muddled at times, (32) the law of IIED has developed to be somewhat muddled and incoherent over the years. As Russell Fraker wrote in 2008: "[i]n their efforts to cabin the application of IIED while preserving it as a valid cause of action, the [law and the courts] have created a confused tort that means entirely different things to different judges and thus serves disparate functions in the courts...