With respect to plaintiff's attempt to show clear cut proof of severe emotional distress which must be distress so severe no reasonable person could be expected to endure it plaintiff relies on her own testimony, the testimony of her two best friends and her husband, and a freshly minted declaration of a supposed "sex addiction" expert, Carnes, purporting to opine that plaintiff suffers from post traumatic stress syndrome as evidenced by, inter alia, "sexual aversion." Carnes Decl. at ¶ 4.
Our opening brief already fully demonstrated that the plaintiff's conclusory testimony of generalized feelings, and the testimony of her two best friends and her husband essentially parroting plaintiff's testimony, fails to satisfy the requisite clear cut proof necessary to proceed to trial. Mem. in Supp. of Mot. for Summary Judgment at 48-50. The alleged kinds of distress such as plaintiff, her friends and relations describe has been
rejected consistently by Arkansas courts. See Angle v. Alexander, 945 S.W.2d 933, 936-37 (Ark. 1997) ("emotional distress" including thoughts of death, fear, anger and worry, was insufficient); Hamaker v. Ivy, 51 F.3d 108, 110-11 (8th Cir.1995) (anger, increased heart rate and blood pressure, trouble sleeping and medical consultation requiring medication merely reflected common symptoms of anger and did not constitute outrage). In particular, an affidavit intended to cure deficiencies in plaintiff's deposition testimony on this issue, has been held to be insufficient to defeat summary judgment, particularly where it alleged only "mental anguish" and other generalized symptoms. Crenshaw v. Georgia Pac. Corp., 915 F.Supp, 93, 96-97, 99 (W.D. Ark. 1995).
The Carnes declaration cannot fill the chasm in plaintiff's record. Indeed, his "expert" opinion is nothing more than the same type of conclusory allegations that plaintiff already has submitted. Moreover, as fully demonstrated above, Carnes was not timely identified as an expert witness on this subject, has no apparent expertise concerning emotional distress claims, did not "examine" plaintiff until nearly seven years after the alleged incident, and based his opinion solely on the plaintiff's recounting of her symptoms in a brief interview of plaintiff and her immediate family. The Carnes declaration also is defective because it actually contradicts plaintiff's own testimony that she does not seek damages related to her marriage. See supra Part I(C), and cases cited therein.
Plaintiff's analysis of the cases she cites further undercuts her position. For example, plaintiff contends that she has suffered the requisite severe emotional distress because in Davis v. Tri-State Mack Distributors, Inc., 981 F.2d 340, 341 (8th Cir. 1992) the plaintiff "only" demonstrated evidence of medical problems a month-long medical leave of absence from her job which an expert testified was the result of the alleged conduct. Pl. Opp. at 69. Plaintiff thus identifies the very deficit of her case she has no such evidence here.
Plaintiff's outrage claim also fails to satisfy the conduct element. The Opposition cites no case permitting an outrage claim to proceed to trial based on a single proposition. Instead, plaintiff mistakenly contends that the facts here are "far more egregious" than other cases in which the conduct element was satisfied. Pl. Opp. at 65. Plaintiff's argument, however, requires the Court simply to ignore the substantially distinct facts of the cited cases, which allege repeated, in some cases daily, pervasive harassing conduct. See, e.g., Manning, 127 F.3d at 688-89 (supervisor-defendant described and fondled genitals on an almost daily basis, accused employees of sleeping with clients to obtain business and suggested he would have employees killed for complaining about his behavior).
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