A garden variety emotional distress claim is a request for damages covering the ordinary mental suffering a reasonable person would feel after being wronged: humiliation, anxiety, sleeplessness, a general drop in quality of life. No psychiatric diagnosis is alleged, no mental health expert is called, and no clinical records are put in play. That framing matters because it changes what you have to prove, what the other side can dig into, and how much money is realistically available. Keep the claim in this lane and you get lighter evidence rules, stronger privacy over your therapy history, and protection from a court-ordered psychiatric exam. Step outside it, and all three protections fall away.
Where Garden Variety Ends and a Psychiatric Injury Begins
The line is drawn by what you allege and how you plan to prove it. Everyday reactions to being mistreated (embarrassment, frustration, disrupted sleep, withdrawal) stay on the garden variety side. Once you allege a specific psychiatric injury such as clinical depression or PTSD, produce treatment records to support it, or plan to put a mental health expert on the stand, the case crosses over.
That crossing has consequences that run through the whole lawsuit. Different evidence obligations. Different discovery exposure. A real possibility of sitting for an examination by the defendant’s chosen psychologist. If your distress genuinely is the ordinary kind, framing it that way preserves procedural advantages you cannot easily get back.
Evidence You Need to Prove a Garden Variety Claim
The evidence burden is lighter than most people expect. You testify about what changed after the incident: trouble sleeping, pulling away from friends, irritability, losing interest in things you used to enjoy. No psychiatrist needs to corroborate you. The jury judges your account against their own understanding of how people react to being mistreated.
“Before and after” witnesses do heavy work here. A coworker who watched you go from outgoing to withdrawn. A spouse who saw your routines fall apart. A friend who noticed you stopped showing up. Concrete, observable changes anchor the claim in something a jury can picture. Because the distress falls within common human experience, professional evaluations are not required, which keeps the case simpler and cheaper to bring.
Keep a Journal
Contemporaneous notes about your mood, panic episodes, social withdrawal, and abandoned activities carry more weight than testimony reconstructed months later. A journal creates a timeline the defense has trouble waving off. Start early. Records that begin the day litigation is filed look strategic; records that predate the lawyer read as genuine.
Social Media Will Be Requested
Defendants routinely ask for access to a plaintiff’s social media in emotional distress cases. Courts have generally held that routine status updates are not automatically relevant, but posts that discuss your emotional state, mention treatment, or point to other sources of stress can be discoverable. The practical rule during litigation is simple: anything you post can become evidence. Claiming severe distress while posting carefree vacation content hands the defense a credibility weapon it does not otherwise have.
Your Therapy Records and the Privilege
One of the strongest reasons to keep a claim in garden variety territory is the psychotherapist-patient privilege. In Jaffee v. Redmond, the Supreme Court held that confidential communications with a therapist are generally protected from forced disclosure under Federal Rule of Evidence 501.1Cornell Law Institute. Jaffee v Redmond, 518 US 1 (1996)2Justia U.S. Supreme Court Center. Jaffee v Redmond
When emotional distress is part of a lawsuit, the question is whether the plaintiff has waived that privilege by putting their mental state at issue. Courts split. Under the narrow approach, a garden variety claim does not waive the privilege, because the plaintiff is not relying on a diagnosis, treatment notes, or expert testimony. Therapy records stay private, and the defense cannot subpoena your therapist just because you asked for emotional distress damages.
Under the broad approach, any request for emotional distress damages puts mental condition in controversy and opens therapy records to discovery no matter how the claim is framed. Which approach applies depends on where the case is filed, and the difference is significant. In a broad-approach jurisdiction, even a modest garden variety claim can expose your full mental health history to opposing counsel.
Once a claim moves beyond garden variety, the split disappears. If you allege a psychiatric injury or plan to call a mental health expert, virtually all courts agree the privilege is waived. Therapy records, treatment notes, and potentially your therapist’s testimony are all in play. The garden variety framing is often the only thing keeping that door closed.
Can the Defense Force You Into a Mental Exam
Federal Rule of Civil Procedure 35 lets a court order a party to submit to a mental examination, but only when that person’s condition is genuinely “in controversy” and the requesting party shows good cause. These exams are treated as intrusive, and courts do not order them routinely. A garden variety claim, by itself, generally will not support one. If you are not alleging a disorder and not offering expert testimony, your mental condition is not sufficiently in controversy to justify an evaluation by the defense’s psychologist.
That calculus flips if you claim a diagnosable condition, put on expert psychiatric testimony, or seek damages for ongoing psychological treatment. At that point the defendant has a strong argument that a Rule 35 exam is warranted, because you have affirmatively placed your mental health at the center of the case. A defense-hired psychiatrist writing a report about you is a real tactical cost, and it is worth weighing before deciding to escalate a claim.
What a Garden Variety Claim Is Worth
Valuing this kind of distress is inherently imprecise. There are no medical bills to add up, no wage calculations, no expert reports. Courts look to jury awards in comparable cases to build a range. The older baseline of $5,000 to $35,000 has been criticized by federal appellate courts as outdated and artificially low. More recent decisions have affirmed awards from roughly $30,000 to $125,000 for garden variety distress, depending on how severe and prolonged the underlying misconduct was. Higher awards typically require evidence of something more than ordinary emotional upset.
Juries weigh how long the distress lasted, how much it disrupted daily life, and how egregious the defendant’s conduct was. Months of documented harassment produces a larger recovery than a single discriminatory act. Because there is no objective yardstick, the plaintiff’s credibility and the strength of the corroborating witnesses do most of the work.
Judges can reduce awards they view as excessive through remittitur, ordering a new trial or cutting the number down to what the evidence supports. This keeps garden variety awards inside a recognizable range, though the range has continued to move upward as courts refresh their benchmarks.
The Per Diem Method
Some attorneys value emotional distress by assigning a daily dollar figure and multiplying it by the number of days the distress lasted. Two hundred days of significant anxiety at $100 a day comes to $20,000. Not all courts permit per diem arguments, and the daily figure is always open to challenge, but the method gives a jury a structured way to reach an otherwise abstract number. It works best when the duration is documented through journals, witnesses, or other contemporaneous evidence.
Damages Caps You Need to Know About
Garden variety claims most often show up in employment discrimination cases, and federal law caps recovery there. Under Title VII and the Americans with Disabilities Act, combined compensatory and punitive damages are capped by employer size:3Office of the Law Revision Counsel. 42 USC 1981a – Damages in Cases of Intentional Discrimination in Employment
- 15 to 100 employees: $50,000
- 101 to 200 employees: $100,000
- 201 to 500 employees: $200,000
- More than 500 employees: $300,000
These caps cover compensatory damages (including emotional distress) and punitive damages together. Congress set them in 1991 and has not adjusted them for inflation.
Two important carveouts. Race discrimination claims brought under Section 1981 of the Civil Rights Act of 1866 have no damages cap and no minimum employer-size threshold, which makes Section 1981 a stronger vehicle when racial discrimination is involved.3Office of the Law Revision Counsel. 42 USC 1981a – Damages in Cases of Intentional Discrimination in Employment The Age Discrimination in Employment Act runs the other way: it does not authorize emotional distress damages at all. A federal age discrimination claim, garden variety or otherwise, is limited to back pay, liquidated damages, and equitable relief. This catches many people off guard and can change the entire economics of an age case.
If your claim arises under state law rather than a federal statute, a state cap on non-economic damages may apply instead. State limits vary widely; some states cap non-economic damages, and others do not. An attorney in your jurisdiction can tell you whether a cap applies and what it is.
Taxes on the Award
Damages received for emotional distress that does not stem from a physical injury or physical sickness are taxable income under federal law.4Internal Revenue Service. Tax Implications of Settlements and Judgments That rule catches most garden variety claims, since they typically arise from employment discrimination, harassment, defamation, or similar non-physical wrongs.
The exclusion under IRC Section 104(a)(2) applies only to damages received “on account of personal physical injuries or physical sickness.” A 1996 amendment narrowed the provision, and emotional distress damages from non-physical claims sit outside it.4Internal Revenue Service. Tax Implications of Settlements and Judgments One narrow exception: if part of the award reimburses medical expenses (such as therapy costs) you actually paid and did not previously deduct, that portion can be excluded from gross income.
The practical effect is real. A $50,000 garden variety settlement in an employment case can leave you with roughly $35,000 to $40,000 after federal and state tax, depending on your bracket. If you are negotiating a settlement, working with your attorney and a tax professional on how the payment is allocated between taxable and non-taxable components can meaningfully change your net recovery.