That’s what Section 104(a)(2) exclusion of damages is all about, and it gets expensive for Estate of Roman J. Finnegan, Deceased, Kevin C. Tankersley, Personal Representative, and Lynnette Finnegan, et al., T. C. Memo. 2024-42, filed 4/10/24.  But it’s even more expensive for the State of IN, whose governmental child protectors were found to have trampled upon the Constitutional rights of the late Roman and Lynnette and their children to the tune of $31.35 million by the jury in USDCNDIN (reduced to $25 million by post-trial stip).

There’s no medical evidence on the trial or thereafter of specific physical injury, only a conclusory doctor’s report that maybe the late Roman and Lynnette and children had PTSD as a result, and a deposition question or two, and one on the trial.

The late Roman’s and Lynnette’s trial attorney did a great job, but the evidence of physical injury, if there was any, never made it into the record.

But if anyone built a record in this case, it’s Judge Nega. He goes over every pleading, every  interrogatory, every deposition, the bill of particulars, pretrial and post-trial motions, the expert report, the request for jury instructions, the jury instructions as given, the opening statements and closing statements, the proposed jury charge, the charge as given, the jury verdict, defendants’ motion for judgment as a matter of law, the judgment as entered, the Settlement Agreement, the general release…everything but the menu in the USDCNDIN judges’ cafeteria…to find any trace of physical injury or the physical effects of PTSD.

And he takes up 28 (count ’em, 28) pages to show it.

Judge Nega finds only “(T)he jury verdict did not mention PTSD specifically or physical injury or physical sickness generally.

“Of the plaintiffs, only Roman had a known diagnosis of PTSD at the time of the district court litigation and subsequent execution of the Settlement Agreement, and, across 14 witnesses’ testimony, Roman’s PTSD was referenced only once.” T. C. Memo. 2024-42, at p. 35.

“With the vast ocean of evidence before us concerning the district court litigation, references to PTSD make barely a drop in the bucket. Rather, the image that overwhelmingly emerges is that the damages were paid not as compensation for PTSD but for violations of plaintiffs’ constitutional rights stemming from defendants’ conduct and the emotional pain caused therefrom.” T. C. Memo. 2024-42, at p. 36. (Footnote omitted, but it says that even if PTSD were a factor, petitioners put in no evidence to show how great a factor).

I offer Judge Nega’s analysis as a template for PI lawyers who want to build a record for Section 104(a)(2) exclusion. Ya gotta get physical.