Intentional Tort of Last Resort Alert: Clemens Adds "Outrage" Claim to McNamee Suit

Yesterday, Roger Clemens added a claim for "Intentional Infliction of Emotional Distress" to his lawsuit against former trainer Brian McNamee. Prior to this, Clemens claim was based on defamation (false statements harming his reputation).

Intentional infliction of emotional distress ("IIED"), also known as the tort of "Outrage", is the new kid on the intentional tort block. A defendant can be liable for IIED if she intentionally (or recklessly) engages in extreme or outrageous conduct causing severe emotional harm to a plaintiff. Conduct meets the requirements of the tort if, when recounting what happened to an average member of "the community", one would produce the following response: "OUTRAGEOUS!" This is essentially a "oh no he didn't" standard for imposing tort liability. Such conduct must be more than mere insult or "petty oppression", but must be the sort that is utterly intolerable to a civilized society.

This is the first good piece of lawyering I've seen out of the Clemens team. His defamation claim is both a loser and a disaster. A loser because even if Clemens never used steroids (i.e., it really was B12 vitamin McNamee injected into his all-star client), the Constitutional dimension of defamation requires a showing that McNamee was at least reckless as to the truth or falsity of the statements he made (since Clemens is clearly a "public figure"). In addition, many of McNamee's statement's, made in the context of government investigations, would be subject to a privilege and could not lead to liability. The defamation claim was also a strategic disaster, because by claiming McNamee harmed his reputation, Clemens made his own character and reputation an issue. Apparently underage mistresses, mental stability, and the like, all become an issue. And in the defamation case, Clemens could be called to the stand to answer frank questions about performance enhancing substances, and, if he lied, prosecuted for perjury.

The IIED claim, however, avoids many of these pitfalls. Was the anything "OUTRAGEOUS!" about what McNamee did? Certainly there is nothing unusual, or intolerable, about alleging that a professional baseball player was on the juice. They all were, whether there was anything wrong with that or not. But here's what McNamee did that is so odd that I might be inspired exclamation: He kept dirty bandages, and Roger's bodily fluids, in sealed bags for years, just in case he might need them later. This is Monica Lewinsky not taking the blue dress to the cleaner, and it is shocking. If I learned that my doctor or trainer had kept my medical waste for years, well, I would have something to say about it.

Put on the stand in an IIED case, Clemens would not have to testify about whether he used steroids or not (assuming the defamation claim is by that point dismissed, which I think is a safe assumption). His reputation would not be an issue. The only major hurdle would be demonstrating that he did in fact suffer the "severe" emotional distress IIED requires. But on that issue, he would likely get to a jury.

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