Shop talk: A brief explanation of the premises behind my psychological interpretations

[Some edits done 10/1/12 and 10/5/12.]

Here is a casual explanation; I had thought of linking to a pdf copy of my college diploma and other such documents, to back up some of what I say. But that would involve expense and such I can’t afford right at the moment; and more generally, enough “discussion,” “linking to blog pages,” and such go on online—whether regarding my own blog or regarding anything else—without always bona fides being readily available that could provide a sense of credibility to readers; so, practically speaking, I think I can forgo providing such bona fides for now.

Every credible media source sometimes has its faulty writers (e.g., in the case of The New York Times, for one, consider Jayson Blair of recent years; or, longer ago, Walter Duranty). And sometimes a random blogger can provide insights that a big New York–media writer may be “out of the loop” on. Plus, so much Internet content is free; so I don’t think you’ll have much ground for displeasure if proof of my bona fides is not presented yet.

I have a bachelor’s with a double major in philosophy and psychology. I had a 4.0 grade-point average just in my psychology courses, and I received awards at graduation for work in both my majors (graduation with distinction in each major, plus awards comprising the Psi Chi award for my psychology work and the Gauss award for my philosophy work). I never became a psychological counselor. I write on psychological topics as ancillary to, or otherwise important components of, other topics I write on, whether these be human-interest stories related to people I was involved with informally, or movie reviews, or something else. I think psychological issues are important health (and personal-realization) issues that often provide important sides to many people’s lives, and need not get discussed only in clinical, formally public-education, or established-media contexts.

However, because of the stigma that has perpetually been attached to psychological problems, I present my discussion of this in a context with other areas of life. For instance, a person’s credible story can be looked at not simply as if the person “only has a psychological problem” but also as a testament to that person’s contribution to society in terms of raising a family, being involved in a profession, helping out in community endeavors, or whatever else. And of course, putting stock in psychological matters as I do, I strongly believe that anyone who thinks that a psychological “status”—e.g., “That person is bipolar,” or “This person has suffered from episodes of anxiety and a period of alcoholism”—thereby discredits that person in some wholesale way is thinking like a peasant, shows a clear lack of enlightenment, and is not contributory to intelligent discussion of whatever issue is at hand. It is to be noted that, anecdotally, not a few people who try to discredit someone via some “stigmatizing” psychological “status” the person has have their own relatively debilitating psychological issues, often with a clear lack of insight into the same.

1. A super-condensed history of psychology

In my view, psychology is one of the oldest disciplines in Western society. It traditionally had been a “subset” of philosophy, which goes back at least to the ancient Greeks, including Plato and Aristotle. Aristotle, in his Nicomachean Ethics, had a subsection on an issue called akrasia, which means weakness of will. I studied this a bit when in graduate school in 1987. Akrasia as Aristotle spelled it out seems like a crude conception, empirically derived in a way, that does not seem to cohere with many modern ideas of psychological issues, but it is suggestive as a forerunner of later concepts of psychological problems. Essentially it addresses—in mere descriptions of the issues, not in any attempt at broad resolution of them—the problems of “Why do I not do what I know I should?” and “Why do I do what I know I shouldn’t do?”

A similar problem turns up in later philosophers’ work, in conceptual forms more recognizable to us today—for instance, in Thomas Hobbes and in Arthur Schopenhauer (the latter deals with this in, I believe, The World as Will and Representation).

Meanwhile, actual displays of psychological problems were identified as long ago as during ancient Roman times. Rufus of Ephesus, a physician alive in the second century after Christ, noted that hand-washing of the type that is associated today with obsessive-compulsive disorder occurred as part of depression (New York Review of Books, February 12, 1987, 5). Also, Ross J. Baldessarini, M.D., in an article from 2000, “A plea for the integrity of the bipolar disorder concept,” in the journal Bipolar Disorders 2 (2000), pp. 3-7, refers to an ancient Roman physician, Aretaeus of Cappadocia, who described what we would today call bipolar disorder (Baldessarini references this with a 19th century British publication).

Of course, by the early 1800s, the rise of psychology as a separate science had begun. There is too much to say to give a sketchy history here. As one example of how far things had come by the late 1800s, it is noted in one 2002 book, “It remained for German psychiatrist Emil Kraepelin to provide a definitive clinical description [of what we would call bipolar disorder] in his 1896 textbook and to baptize the disorder manic-depressive insanity—a name that, in slightly different form, is widely used to this day...” (Torrey and Michael B. Knable, Surviving Manic Depression: A Manual on Bipolar Disorder for Patients, Families, and Providers [New York: Basic Books, 2002], p. 12).

Of course, Sigmund Freud is still widely known about today; his work started in the late 1800s. Another psychologist, William James, who has influenced me quite a bit, published his long-developed and monumental The Principles of Psychology in 1890.

2. My own “disposition”

I consider my own “disposition” as one who understands psychological issues on the individual level, and how I would assess or relate to more general schools of thought, in line with the phenomenological and existential schools of thought. Phenomenological, in the area of psychology, means looking at problems as the person with insight into him or herself would, and having an eye for seeing this sort of thing in others [that is, seeing the problems in them, with hopefully the ability in these people to recognize the problems themselves]—in patterns of behavior, with a reference to empathizing with the other person. Existential has to do with personal choice, with taking control of own’s life to the extent possible. I am more of a phenomenologist than an existentialist, I think.

I also do not think that as a psychologist, regardless of how insightful our readings of someone might be, (1) we either understand everything we can about a person in the given context, for the purposes at hand, or (2) we understand a subset, ethnic group, or other group of people so very well. We do the best we can under ongoing circumstances, and we keep in mind Aristotle’s premise spelled out in the Nicomachean Ethics that it is the mark of an educated person to understand something via a system of knowledge only to the extent possible (implying limitations). An un-elegant paraphrase, of course.

It has taken me many years, starting in the 1970s, to gain what idiosyncratic education in psychology I have, from both formal academic training and autodidactic means, the latter from reading and from dealing with others. I obviously am not going to spill, for free, a whole lot of this material in my blog.

3. Psychology versus psychiatry

A note on terminology: Most people with much interest in this area know the difference between psychology and psychiatry. Psychology is the original, purer area of the field, having started as a sort of sub-area of philosophy. Today, in a clinical sense, it means the field as dealt with by talking counselors, who typically have Ph.D.s; some social workers (with an M.S.W., A.C.S.W., or the like) can do talking therapy too. Psychiatry is a narrower concept, meaning essentially psychological issues as dealt with by medical doctors (usually, those with M.D.s), and the professional practice of dealing with same. Another type of medical doctor, the osteopath, who has a D.O., can also prescribe medication for psychiatric problems (particularly if that D.O. is trained in psychiatry); meanwhile, some state-licensed non-M.D.s like nurse practitioners and physician assistants, who are empowered to prescribe medication, can possibly, I believe, prescribe psychiatric drugs.

All this is not meant to constitute any sort of medical advice.

4. Tidbits of info, for your possible use

Here are a few little tidbits that may be of interest (reference styling will not all be consistent, due to how I derived these from electronic files of mine):

On how the diagnoses of schizophrenia and bipolar disorder have been confused as long ago as the 1960s:

Ross J. Baldessarini, “Frequency of diagnoses of schizophrenia versus affective disorders from 1944 to 1968,” in American Journal of Psychiatry 127 (6), (1970), pp. 759-63.

An example of phenomenological interpretation by a writer on the history of phenomenology, Herbert Spiegelberg, whom I saw in the philosophy-departmental office in 1987 when at graduate school but did not formally meet:

From phenomenological psychologist Alexander Pfander, who gives a rather extreme example of such a thing in an extracted quote in Herbert Spiegelberg, The Phenomenological Movement: A Historical Introduction (Boston: Martinus Nijhoff Publishers, 1982), p. 182:

When a person feels extremely insecure, weak, and valueless in his innermost being, when he is filled with diffidence,...he lives on the whole only provisionally.

He goes to sleep and gets up, always only provisionally; for: "This is still not the proper and real thing." He washes, combs his hair, and dresses, but only provisionally. ... He unites with his clothes, his rooms, his furniture only quite provisionally....

On how, even in William James’ time, the issue of whether psychological problems have a purely emotional basis or a physical basis was an intriguing and not entirely settled area:

[from a writing of mine] There is also the debate between genetic determinism and the factor of the patient’s own will in one's state of personality. On the side that says will is primary, there is this suggestive quote from the father (Henry James, Sr.) of the philosopher and psychologist William James, made with respect to William, that is excerpted in Erik H. Erikson's Identity: Youth and Crisis (New York: W.W. Norton & Company, Inc., 1968), p. 154, on whether a sheer physiological basis is the sole cause for mental illness:

[William] came in the other afternoon while I was sitting alone, and after walking the floor in an animated way for a moment, broke out: “Bless my soul, what a difference between me as I am now and as I was last spring at this time!” ... He had a great effusion. ... He said several things...but more than anything else, his having given up the notion that all mental disorder requires to have a physical basis. This had become perfectly untrue to him....

An example of phenomenological interpretation in a fairly-widely misunderstood psychologist, R.D. Laing:

R.D. Laing, in The Divided Self (New York: Penguin Books, 1960/1969): Here is a glimpse of an introduction to his project: “The mad things said and done by the schizophrenic will remain essentially a closed book if one does not understand their existential context. In describing one way of going mad, I shall try to show that there is a comprehensible transition from the sane schizoid way of being-in-the-world to a psychotic way of being-in-the-world” (p. 17). Despite whatever is today's prevailing view about schizophrenia as a level of illness or regarding its understandability (from a patient's view), I think Laing's interpretations, particularly in The Divided Self, are a high-water mark of psychiatric phenomenological interpretation of a certain kind, and this is true whether you love or hate Laing, and think him relevant or a cultural artifact.

A paper (from 1970) on the issues tied to long-term use of psychiatric medication, looking at the idea favorably:

H. E. Lehmann, “The Philosophy of Long-acting Medication In Psychiatry,” Diseases of the Nervous System 31, supplement (1970): pp. 7-8.

An article (from 1981) on the ethics of assigning psychiatric diagnoses:

Walter Reich, “Psychiatric diagnosis as an ethical problem,” in the book Psychiatric Ethics, edited by Sidney Bloch and Paul Chodoff (New York: Oxford University Press, 1981).

On the misconception on the background of issues noted in a recent obituary of Thomas Szasz, the famous anti-psychiatry doctor; New York Times writer Benedict Carey notes him as if he featured in a debate as if it was only between Freudianism and a medical approach to psychiatric issues, but actually the debate in the 1960s and 1970s was within the area of psychology in general (there was not yet a hard practical and philosophical divide between psychology and psychiatry, as there seems to be today); the debate, more specifically, was between Freud’s deterministic approach and more patient-centered, will-based, and other such non-deterministic approaches)  [see 10/1/12 blog entry for clarification of the foregoing statements]; here, for example, is a definition of humanistic psychology:

For a general characterization of humanistic psychology as written about [in the 1970s], see John B.P. Shaffer, Humanistic Psychology (Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1978), in which he states that humanistic psychology “identified with the human potential movement of the 1960s and 1970s, a movement that attempts to liberate people from a dehumanizing culture through a series of specific techniques” (p. 1). Shaffer quotes another source, namely the American Association of Humanistic Psychology, in an extract, describing humanistic psychology in a general way:

Humanistic psychology is primarily an orientation toward the whole of psychology rather than a distinct area or school. It stands for the respect for the worth of persons, respect for differences of approach, open-mindedness as to acceptable methods, and interest in exploration of new aspects of human behavior. As a “third force” in contemporary psychology, it is concerned with topics having little place in existing theories and systems: e.g., love, creativity, self, growth, organism, basic need-gratification, self-actualization, higher values, being, becoming, spontaneity, play, humor, affection, naturalness, warmth, ego-transcendence, objectivity, autonomy, responsibility, meaning, fair play, transcendental experience, peak experience, courage, and related concepts.... [p. 2]

An indication of how psychological topics, not least the “scary type” like paranoia, can be used in creative cultural ways:

Leo Bersani, a professor of French, writes in The Culture of Redemption (Cambridge, Mass.: Harvard University Press, 1990), on paranoia, a state of mind sometimes related to schizophrenia [and bipolar disorder], in particular as playfully represented in Thomas Pynchon's 1973 novel Gravity's Rainbow: “...Pynchon is less interested in vindicating his characters' suspicions of plots than in universalizing and, in a sense, depathologizing the paranoid structure of thought” (p. 181).

An example of the mental illnesses of famous people; here, Vincent van Gogh, who through the years has been variously assessed to have suffered, as his main problem, from schizophrenia, or bipolar disorder, or (in a recent 60 Minutes report) epilepsy:

E. Fuller Torrey and Michael B. Knable in Surviving Manic Depression: A Manual on Bipolar Disorder for Patients, Families, and Providers (New York: Basic Books, 2002) make some comment on van Gogh as if he’d suffered from bipolar disorder, on p. 268. There is also a study on van Gogh that I haven't read (D. Blumer, “The illness of Vincent van Gogh,” American Journal of Psychiatry 159 (2002), pp. 519-26), an abstract for which on PubMed says that “there are clearly bipolar aspects to his history.”

A bit of history of the danger of tardive dyskinesia (TD) (a side effect of various medications, including the category known as neuroleptics, or antipsychotic medication), as acknowledged by medical science:

[multi-paragraph passage is from a draft of an article I didn’t have published] (1) Researchers have known about TD as a possible consequence of long-term neuroleptic use since the 1950s. But (2) a set of suggested guidelines for warnings (to be offered by psychiatrists) to patients about TD was adopted by the American Psychiatric Association only in 1980. One could speculate that it took decades for the APA to issue a warning in the public interest about TD because there was a more hermetic, closed attitude surrounding medical use of such drugs, unlike today, when the FDA requires so many black-box warnings and such extensive “productive information” copy that include a widely variegated set of possible side effects.

One point on the history of knowing about TD: Daniel E. Casey, in “Tardive Dyskinesia” (Western Journal of Medicine 153 [November 1990], p. 535), refers to European studies on TD that were published in 1957 and 1959. The first English-language report was from Denmark in 1960, he says.

Also, I have a copy of a document titled “ ‘Tardive Dyskinesia, Summary of Task Force Report’ - American Psychiatric Association - dated Oct. 10 [and 11?], 1980, American Journal [of] Psychiatry 137: 10” (italics added). This set of guidelines says that patients and families should be advised about risks and benefits, and they—in concert with the doctor, I would think—should “arrive at mutual decision when use of neuroleptic exceeds 1 year.”

Psychological books I have worked on in some way as an editor:

Irving Solomon, A Primer of Kleinian Therapy (Northvale, N.J.: Jason Aronson Inc., 1995).

Part of the multi-volume set The Psychology of Terrorism (Westport, Conn.: Praeger, 2002).

Movie break: An “adult picture” on an issue that concerns everyone—corporate malfeasance affecting nationally distributed products and health: The Insider (1999), Part 1 of 2

A drug-delivering business acting like a Mafia

Today, in other industries, the financial stakes might not be as great, but the challenge to conscience for “insiders” could be the same

[Slight edits done 10/3/12.]

This is not to say I have anything as important to reveal, or with as much financial consequence, as did Jeffrey Wigand, but bear with me on a look at a very good portrait of a professional man and his tortured conscience. (Also, this Part 1 looks at general issues, while Part 2 will look more at details.)

The Insider is, roughly speaking, a button-down version of the kind of drug-related-conspiracy story to which adhering to the facts is so crucial. The real-life stakes of what the source story is about show why The Insider could only have benefited from being true to life, while it’s a little unfortunate that the more recent American Gangster (2007; see my August 28 review) could have adhered more closely to the truth (though perhaps its not doing so was not entirely the fault of its producers). Another reason that American Gangster’s makers may have felt less compunction about inserting (rather large) fictional elements and an overall dose of alluring style is that the real-life relevance of the story lay in the heroin-using population within reach of distributors in the New York metropolitan area—a large number of souls, true, but not as large, or accounting for as much of the economy, as the American cigarette-smoking public in about 1995. Since the 2007 film’s story was about an old time and a limited place, a little jazzing up may have been seen as excusable. Also, blame for its fictional side, possibly, lies in difficulties that were unwittingly encountered in pinning down the full, true story on the parts of those producing the initial New York magazine story, and even the screenplay.

The Insider isn’t totally exempt from the Hollywood treatment. A few story details (minor, apparently) were fictionalized for the sake of confidentiality or the like, and apparently Wigand did not participate closely in the writing of the story (see the film page of his Web site). The 1999 film has its own way of being slick, while it provides more “grit” in its star Russell Crowe, who portrays a mercurial, “uptight” biochemist, while in the 2007 film, Crowe plays a cop who is professionally disciplined but is personally carefree and slobbish—and both types of roles inadvertently reflect the styles of both movies.

But the story portrayed by The Insider has every responsibility to be correct in its main features. It involves, in the 1990s, biochemist Jeffrey Wigand’s whistleblowing on Big Tobacco’s way of producing cigarettes so they were a more effectively addictive product (from the perspective of his work at Brown & Williamson, or B&W), while tobacco CEOs (including that of B&W) had lied about this fact to Congress.

Wigand’s exposé played a role in lawsuits shepherded by state attorneys general against the tobacco companies (the movie focuses on a suit by the Mississippi A.G.), to recover damages in relation to smoking-related illnesses that caused a drain on federal/state health-insurance funds (as in Medicaid, in which states ordinarily play a key role). Because (if I’m reading this particular matter right) Big Tobacco’s lying to a federal-government body became a component of their being held to defraud health-insurance programs that are government funded and administered, Wigand’s participation in the public holding of these firms to account was a very crucial component indeed.

This story first appeared in Vanity Fair magazine as “The Man Who Knew Too Much,” by Marie Brenner, in 1996. And part of its interest is in the novel way the exposé unfolded—with Wigand first linking up with a TV news organization, then being led to testify in a deposition for the Mississippi suit (partly to justify the TV news broadcast), and this leading to the larger multi-state set of lawsuits that ended in a massive judgment against the tobacco companies.

Numerous factors would comprise a story of corporate malfeasance with tremendous financial, legal, and even social implications: these factors include Wigand’s story of being fired (prior to his even considering exposing B&W’s perfidy); his being pressed to adhere to a corporate confidentiality agreement with B&W—the company seeking to make this requirement even tighter, apparently in light of certain developments; the Mafia-like threats the company appears to have subjected him to; and his torturous, conscience-searching process of deciding to be interviewed by the TV newsmagazine 60 Minutes.

Ironically, Wigand’s ad hoc connection with 60 Minutes—after dogged, circumspect, and conscientious work by the producer behind the story, Lowell Bergman—led at first to 60 Minutes giving the story an editorial butchering at the behest of corporate interests, because one CEO of a fellow Big Tobacco company was the son of none other than Laurence Tisch, the chairman and a controlling shareholder (?) of corporate CBS, who, as it happened, wanted to sell CBS; Tisch didn’t want its value hurt by repercussions from Big Tobacco’s reactions to the story. This situation, centered on compromising the original Wigand story, itself became a nationally distributed news story (at the hands of The New York Times); this print coverage was facilitated (in surreptitious phone calls and the like) by Mr. Bergman, who wanted to break the logjam-of-sorts that held up the full story. (The censored 60 Minutes story ran in November 1995, and the full story eventually ran in February 1996. I remember having paid attention to something about this at the time, but given my very busy personal life at the time, I didn’t follow it nearly as closely or with as much fascination as the movie The Insider justifiably attracts.)

Not only was this a remarkable story of super-heavy-duty “office politics” (about as bad as corporate manipulations might go in the U.S. outside the defense industry, perhaps), but, as I said, it comprises an important story about corporations’ implications for tremendously expensive national health issues. It also involves, in Wigand, a fascinating story of a lone, somewhat eccentric, but ultimately courageous whistleblower, aided by a tenacious news producer (and with the story presented by 60 Minutes star Mike Wallace). Wigand did his part at cost to his career options and the integrity of his own family. The exposé Wigand played a role in, historically (as I said), ended up representing a watershed in how Big Tobacco has changed its way of doing business in this country, with consequences seen in the past 15 or so years (though I understand that, today, China and other foreign countries supply the many millions of smokers that keep Big Tobacco’s coffers filled, while in the U.S., Big Tobacco engages in “public service” education about the dangers of smoking).

The story seems—both in terms of plot description and in how it appears on screen—like almost a spy story that involves high-tension-inducing issues of national security. And yet this story still has relevance, because today, it is amazing how the entity of Big Pharma can be substituted for Big Tobacco in this scenario, and you would have a corporate-arrogance story that would be amazingly the same—in the case of Big Pharma, involving such things as improperly marketing drugs to the wrong patients, with implications for billions of dollars in sales and roughly equivalent billings to the Medicare program. See, for example, this story (beware of a pop-up).

A corporate-intrigue story gets the thriller touch, despite what may seem dry premises

Michael Mann directed this film, which was produced by Spyglass Entertainment and distributed by Touchstone Pictures. Mann was a creative force (director, writer, producer) behind TV’s Miami Vice in the 1980s, and he has directed such sleek thrillers as Collateral (2003?), starring Tom Cruise playing against type and Jamie Foxx. Mann’s “smooth” style seems to give The Insider a trademark “surface-style” quality—in keeping with its mildly noir/intrigue flavor, it includes a lot of dim lighting that suits privacy-providing interiors, nighttime scenes, and occasional circumstances of mystery—but this suggestively atmospheric side seems both to make this film “go down” more easily, and to be excusable (for its shallowness) in this case.

As may amuse you, I was given an extra hurdle in viewing this film (though many of my reviews on this blog devolve out of tricky viewing experiences, which usually help me concentrate on the films): a problem with a library’s film-viewing capacity on a computer led me to watch the visuals (of the first hour and a half of this long movie, two times, on different days!) with hearing-impaired subtitles because there was no sound, and this affirmed an interesting thing: this is very much a verbal picture, one whose main meaning comes across in all the dialogue as you might seen written, with only occasional need for help in seeing how faces are helping convey the story (while I would usually assert that movies importantly represent an alchemy that gets a story across by combining, as if each were key, all the media of words, visuals, and often music).

In this film, the words are such as you might see in court transcripts—and in a sense the whole story is this sort of thing. What it has to convey could almost entirely be a bunch of “bloodless” accounts of conversation as you might see in court discovery documents, with little quirky-behavior touches added for realism. And when I first watched the last hour or so of the film with sound (thanks to a resourceful library worker) and with the film’s music, I was surprised at how “slick” and overly sugaring the music was—approximately on a par with, I don’t know, Duran Duran’s “Come Undone,” fairly inconsequential “cream” for the roughage. (The second time I watched the last hour, it was again with subtitles, and this seemed helpful for cutting out the extraneous.)

The Insider gets described as an “adult” film (as in Leonard Maltin’s compendium), and with its usually deliberate pace, and its spelling out of adult-like interpersonal processes (discussions about a confidentiality agreement, anxiety-tinged family discussions about the implications of loss of health-care benefits, a court deposition), today it seems to be overly obvious about what have become, to some of us, fairly familiar lonely “footprints” to walk in, given all the corporate messes and loss of jobs that have spilled across out lives in recent years. (Better than a “perp walk,” but not much.) For those who are too young, or lucky, to have experienced this yet, the film may serve as a sort of public-education “video,” or an equivalent to the type of videos an H.R. department might have you sit through when newly hired, so you understand what to do when someone engages in sexual harassment, or stealing from the office, or such. But in the case of The Insider, it teaches lessons that I think a lot of companies would just as soon have you miss: how to be a whistleblower (and that this is by no means easy). To my mind, in this day and age, this isn’t a bad lesson to have.

The film stars Russell Crowe, relatively early in the successful part of his career, as Jeffrey Wigand, a technician conscientious enough in his work, with a few shadowy things in his past, and his family very much to heart; Al Pacino as Bergman, a sort of gravel-voiced, earthy-and-edgy mensch who loves nothing more than a big story that brings to account some high-power malefactor; and British actor Christopher Plummer in an amusingly imitative portrayal of 60 Minutes senior correspondent Mike Wallace.

The story flows on with craft typical of late-’90s films, with no one of the film’s technicians trying to be especially clever in terms of story clarity (or, on the other hand, obscurantism) and careful editing. And though it may not catch the fancy of many young viewers today, I think it is accessible enough on a passing-technical-matter level, in how it both unfolds the abstract issues (medical and legal) and lays out the ways encounters and decisions unfolded, over what seems in real life to have been an laboriously long (or anguished) process.

A basically sympathetic aside about Wallace: Plummer’s portrayal comes complete with slightly simpering/mincing smile in off-moments; mannered wrinkled forehead when more serious; a pompously direct way of broaching ordinarily-rude questions in interviews; and occasional back-office grand pronouncements, such as citing with embarrassment The New York Times’ invoking Edward R. Murrow’s golden standards of the old CBS, or avuncularly delivering more personally-interested asides such as what he should get mixed up in in the late afternoon of his career. The real-life Wallace complained about how he was portrayed in this film, according to its Wikipedia article; indeed, the film makes him out to be a shallow, self-absorbed type, even adaptable to the rather broad comedy of being hypocritical in remarking to Don Hewitt, the storied producer of 60 Minutes, that he “f**ked up” in editing the first broadcast version (in November 1995) of the Wigand report, after the Times’ coverage of the mess led to 60 Minutes’ being obliged to run the full report (in February 1996). Wallace’s character in the movie has most of the melodramatic lines, memorable enough to be easy to transcribe.

In real life, Wallace was indeed, as fellow 60 Minutes correspondent Morley Safer remarked when Wallace died this year, as the single correspondent most responsible for the success of the program. Wallace had started working on the show when he was all of 50, an age at which many people today would start to think of retirement (50 is old enough to allow the AARP to try getting you to subscribe to its magazine), and in 1968 indeed old for starting a career. Even those who didn’t like Wallace’s brute way of handling some interviewees, i.e., those critics who thought he was arrogant and a grandstander, should still admit that Wallace gave the most pointed “spin”—the bluntest quintessence—of what could be done with a 60 Minutes interview, the prime-time, in-depth, different-sides-acknowledging news profile (when it was at its best) that the program generally made into a trademarked product; such a profile was capable of being “hard” in terms of bringing people to account or of being “nice” for facilitating simple candid revelations by the famous. And of course, in this form of journalism, Wallace did at least as much as the other correspondents on the show to keep its ratings so high for many years, to the point that now, even as a reduced form of what it was, it is starting a 45^th season, unheard-of for a prime-time, non–soap opera program. However, if the Wallace of The Insider seemed awfully concerned about his memory after he was gone, the real-life Wallace could have done so too, with a point; his obituaries (see this one) duly mentioned the Wigand story as an unfortunate episode in his long, remarkable career when he, as the press likes to say, stumbled.

I would also like to say it’s regrettable the film makes producer Don Hewitt look like something of a mere suit (with old-man face) who falls stooge-like under the sway of the corporate heads who want to evade the highest news standards. Rather like George Martin, the producer of The Beatles, whose large contribution to the band’s work only became more obvious late in his life, Hewitt was the one other single person who was an important force behind 60 Minutes, equal to if not surpassing Wallace in influence, though this seemed only to be recognized late in his life and in the show’s history.

Wigand starts as a potential hero circumstance-wise, but a rather unlikely hero in personality

Not hearing sound for the first 60 percent of the film, I wasn’t sure if Crowe was a little awkward in handling the role, or if Wigand really was as much of a defensive noodge as Crowe makes him seem. But Wigand, with a Ph.D. in biochemistry (his bachelor’s and master’s were in the same field), worked for several large companies, Union Carbide, Johnson & Johnson, and Pfizer among them, in health-related capacities. Then he ended up at B&W, where on a health-related level he seems to have been faced with an unavoidable requirement to prostitute himself (“Tobacco is a sales culture,” he points out to Bergman at one point; yes, those sales types will kill the scientific/idealistic man every time). (In Part 2 I will try to comment more on my understanding, speculative of course, on Wigand’s personality as conditioning his difficult role in the overall story.)

Wigand (according to the film) was fired in light of, as is explained well into the film’s story, his discovering that bosses were considering replacing coumarin, an additive to cigarettes meant to make nicotine better absorbed by the body and hence more addictive, with another, chemically similar substance that happened to be carcinogenic. He was required to sign a confidentiality agreement—there’s nothing so strange about this in general—as he received a severance package that included medical benefits that were essential at least to the extent that one of his two daughters needed regular treatment for severe asthma (the film page of Wigand’s Web site notes that the real-life daughter’s health issue is disguised in the film). He was now in a bit of a pickle: having left B&W under something of a cloud, he seemingly could no longer work for big corporations as a sort of biochemical engineer; he would seek work as a teacher in public schools. As long as his family was provided for, he seemed relatively satisfied. But of course his conscience, one would surmise, was bothered by what his confidentiality agreement helped keep under wraps: B&W’s being willing to add a carcinogenic chemical to cigarettes to assure their sales (via addictive properties).

A news-story producer becomes a key catalyst

Enter Bergman and his employer 60 Minutes (and we go to the present tense and dramatic vitality). In a detail I had to work to get surer about, given my no-sound viewing, Bergman is put in touch with Wigand (by a third party) in order to have interpretive help with some anonymously dropped-off sheaf of papers relevant to a story on another issue, fire-safety liability in relation to products of another Big Tobacco player, Phillip Morris. When Bergman meets Wigand, Wigand lets drop that he can say only so much, due to his confidentiality agreement, though he gives a portentous hint in remarking that fire safety is only the tip of the iceberg when it comes to cigarette liability. He seems, to judge from Crowe’s performance and/or as implied by the way the larger story is unfolded, to be a compelling mix (maybe unsurprising in the circumstances) of two interesting traits: a conformist noodge who never really wanted to do anything but be a good professional in his technical field, while supporting a loving family; and someone whose sense of professional pride and conscience makes him a borderline beans-spiller who is on the cusp of saying “f**k the confidentiality agreement,” but would take some hugely uneasy work to really get there. (As I said, I’ll say more in Part 2.)

(In a later scene, when Wigand is finally talking quite forthcomingly to Bergman for the first time, Bergman in one casual moment, and showing his more general down-to-earth personality, gives Wigand the typical “litmus test to an apparently uninviting nerd”—which I’ve been subjected to in some form also—of being asked a sports-related question, as if to see if Wigand follows this sort of thing like a good American. [This is a sort of folk-cultural test to see, roughly speaking, if someone is “oriented X 3”—to person, place, and time.] Wigand—no pun intended—drops the ball in a way. This is generally as I myself would, though I have a little “competence” in sports trivia because picking this up from ambient noise from the radio and other media—like being an information “grease trap”—is like knowing even what Lady Gaga is up to even if you’re by no means a fan.)

Bergman and his at-first rather-chance exchanges are interesting in showing how such a story can have very “random,” almost unpromising beginnings, not least due to the characters involved (Bergman has his own pride that seems apt at one point to threaten the apple cart of what he’s trying to set up with Wigand). While Bergman tries to encourage, with a fair amount of patience, Wigand to reveal what he knows, spelling out the public interest in such a story without being downright prostitute-ish in his entreaties, Wigand shows it is not easy to break his agreement, especially with his family’s well-being at stake.

But a few things tip the balance in favor of his spilling the beans: first B&W, especially in the form of CEO Thomas Sandefur, a smarmy sort, tries to beef up Wigand’s confidentiality agreement, with none-too-subtle hints of the consequences of Wigand’s doing otherwise that, in a shadowy office, seem in the league of Mafia machinations. As sometimes happens with employers trying to strong-arm a former associate, this backfires on them, when Wigand shows that even a conformist like himself reaches a point where his sense of pride, not least tied to his protectiveness for his family, has an absolute limit for being offended. (As I needed help from the Wikipedia article on the film to understand, Wigand at first hypothesizes that Bergman, with some sort of tipoff to B&W, has triggered B&W into threatening him, and thus he confronts Bergman harshly on the phone on the assumption this hypothesis is correct.)

Later as the story unwinds, Wigand is at first shocked, then emboldened, by such truly crude moves as a grossly threatening e-mail being sent (which his wife sees) and a bullet being left in his mailbox. Still later, at night, footprints in Wigand’s garden—after one of his daughters has alerted him to a man lurking outdoors—with Wigand finding that his newly planted tomato plants (symbols of hopes for the future) are damaged, further galvanize him to turn on his former employer.

In stages, Wigand gets to a point where he is ready for his interview with Mike Wallace, he of the face as pretty as a rusty ship hull. People today, given more egregious corporate situations, would have probably reached that point sooner, and with less moral torture. But this whole process is fascinatingly depicted in the movie, maybe even a little too deliberately so.

The film’s value as something to “empathize with,” or “have catharsis with”

And on first viewing it, I was creeped out enough (and on the other hand touched) by the film in this way: I could understand so much of Wigand’s crisis of conscience and trouble in deciding to publicize his story, and the related creative, painstaking strategizing by Bergman on how to create a legal foundation for justifying Wigand’s breaching his former employer’s confidentiality agreement by testifying in a state lawsuit, where a court could be said to have compelled his revealing a company secret. I am different from the Wigand of the film, but I understand him to a large degree and salute him; and in some ways I suppose he’s bigger than I am, not simply because of the many billions of dollars in liabilities the total tobacco industry would eventually face, in good part based on his testimony, which dwarfs by a lot the liability faced by any other large industry in product-harm lawsuits or criminal investigations in recent times.

This is a story that couldn’t be more relevant now, as we hear news of white-collar breakdown all the time: giant banks failing (in 2008), mortgage-based security mishaps (with consequences insidiously spread over years and across millions of U.S. citizens), Ponzi schemes (big and small) uncovered left and right, and Big Pharma fined and penalized to the tune of, sometimes, billions for defrauding federal and state (Medicaid-related) government health-care programs.

To be continued.

Update on the status of The Folder Hunt, specifically the Alternative B edition

[Edits 5/28/13. Edit 9/3/13.]

In my blog entry of May 31, if you’ve seen it, there is reference to an alternative edition of my novel The Folder Hunt: Annotated Edition (FH hereafter). [Update: This offer in some general sense still stands, but content as listed below could change.]

The second version, Alternative B, which had been on hold, was meant to be more edgy and variable. It is what I call the “flower box” edition. It is not the full, regular-edition FH, which has balloon annotations on a certain subset of pages; these pages with annotations are excluded in Alternative B. In this version, the first 161 pages will be the text, with preface and end notes, as with the regular edition.

But the latter 120 pages will contain a variety of different “flowers in the flower box,” in different amounts, with the amounts of each changing as time goes on.

The “flower box” edition of The Folder Hunt—which had been on hold—is closer to being available, and now has a few minor selections lined up for inclusion, as “flowers in the flower box.” The following could be offered in some combination (all or some of them), and the balance of the latter 120 pages (whatever doesn’t flesh out the total “flower box” section to 120 pages) will comprise FH pages with balloon annotations:

1. There is a part from my book manuscript on the Bauer v. Glatzer lawsuit, alternatively titled Second Thoughts and The Representative:

Interlude: The September 12 Court Hearing and the September 19 Decision: Not Again!—Then, Blessed Relief   (This is an important, and culminating, part of the “plot” of that book’s story.)  (roughly 22 pages; probably will shrink)

Also, nonfiction material that is thematically apropos to The Folder Hunt:

2. A section is related to my autobiography How My Gyroscope Started, and it happens to have been a stand-alone piece I made available online in 2010. It will be reproduced in the FH package virtually as it was in 2010, and is titled:

Ugly Business Dealings and Lingering Hard Feelings: Glimpses of Growing Pains of [the Community of] Barry Lakes Starting About 45 Years Ago—Including Family Drama  (7 pages)

3. Paired with this is a section I had originally meant to be part of it, but is related in an intriguing way to my memoir of support-group “adventures” (with pseudonyms used, of course), A College Try that Courted Trouble. This is (provisionally titled):

[A “Small World” Story: A Man I Met Unexpectedly in a Support-Group Setting, Who Had Worked for a Developer of the Community of Barry Lakes about 25 Years Before, and Whose Memory of the Trials of That Work Still Lingered]  (6 or 7 pages)  [Update: A version of this story can be seen later in this entry.]

4. Another section related to A College Try that Courted Trouble, which I also posted online in 2010, which may be adapted, cut, or deleted from this set of FH items [Update: This section, in fact, will be cut.]:

Did an Employer Miscalculate? Cheryl’s Experience in How She Was Handled in Her Depressive Crisis at Work in April 2002  (~5 pages)

5. There will be some medical-science-related material (6 pages), reflecting years of informal research (reading, locating references), related to some fictionalized content of FH. Along with this will be a copy of a letter I received in 1990 from Ross J. Baldessarini, M.D., a longtime clinical researcher at Harvard Medical School and the Mailman Research Center. This was among the first such letters I’ve received from research psychiatrists in my years of writing-related research. (Dr. Baldessarini and I had several exchanges, usually by mail, from 1990 through 2003.)  (8 pages total)

6. A section of various material headed Outtakes, Leftovers, and Epilogues: Items Related to Entries in my Blog, which can include blog parts that were not posted online, further thoughts on certain issues I discussed (which I feel are not necessary to include on the blog), or other similar material. (page count could vary a lot) [Update: This section seems like a good idea, but its content is not settled at all, and what is offered for sale to individual consumers could vary by consumer.]

The “flower box” edition is in flux, so this “menu” may change.

Movie break: American Gangster (2007), Part 2 of 2: A drug Mafia acting like a business

[This follows up my first part, posted August 28.]

I am sorry if this seemed to take too long, but you may not care much anyway.

On this movie and the questions that were raised about its fidelity to real life, I think most of what I need to say, to address what I felt was pending, I already said in the August 28 posting.

Tough questions linger

No doubt, the story on which the movie is based is complex, and deals with matters of serious crime, multiple deaths by weapons or drug use, and the pain of drug-wrecked lives among people still living.

As one measure of the complexity, it is puzzling to me that the federal judge in Lucas’ 1970s trial, Sterling Johnson, Jr., is quoted in the Wikipedia article on the movie (and this is referenced to a January 17, 2008, Toronto Star article—see the end notes in my August 28 entry) as saying harshly that the film is “1 percent reality and 99 percent Hollywood.” He added that the real-life Lucas is “illiterate…vicious, violent…[and] everything Denzel Washington was not” (quoted as in the Toronto Star article). This suggests that the film, on balance, goes to wild lengths to fabricate.

Yet Judge Johnson commuted Lucas’ 1970s sentence to 15 years after his help with obtaining convictions, according to remarks on the DVD by film producer Nicholas Pileggi. This doesn’t mean that the judge was unreasonable to entertain views that varied quite a bit in attitude over a long time, given the enormity of Lucas’ malfeasance and the different views that a reasonable person can have about such things as a movie’s distortions of a matter in which one had been deeply involved. And, true, commuting a sentence is a legal determination, a professional decision, based on merits, and does not reflect that the judge need like or admire the person whose sentence is commuted. But when we assess this film and see such widely varying views from one person, a judge, who ought to have had relatively cool head and sophisticated judgment in the matter, how can we as laypeople, who see the wealth of information and the spectrum of strong emotions on Lucas, reach some kind of balanced viewpoint?

This may seem a rickety way to show the trouble with reaching a balanced viewpoint. My August 28 blog entry (Part 1) shows the difficulty in another way: so many accomplished professionals involved in the project, from Brian Grazer to Nicholas Pileggi to law professional Richard Roberts (see below) to many others—this plus the range of sources I cite (not an exhaustive list)—and still the story can be so far from the truth?

I think Part 1 of my review was fair to what information I could get, which was available on the DVD and online. I worked unexpectedly hard to be fair to a complex film.

A gracious viewpoint on Lucas came from a man who helped snare him, then helped him

Attorney Richard Roberts, in a summer 2012 court action concerned with Frank Lucas in Newark, N.J., said probably what is one chief thought to put to rest the issue of the truth about Lucas’ story: “There are a lot of people that love him and a lot of people that hate him. […] He’ll always have the stigma of heroin distribution. Let’s face it, a lot of people died because of what he sold.” (The article can be seen here.)

The newspaper article adds that, according to Roberts, “…Lucas paid his debt and served his time….” Roberts: “He also did good by helping put a lot of people behind bars. It was a hell of a run.”

This, plus similar comments by Roberts on the DVD extra, suggest that a key part of the story of Frank Lucas—how he helped bring a wealth of others to justice, in effect bringing a sort of dignity and expiation to his own personal position—is true (for instance, Roberts says on the DVD that over 150 convictions were obtained because of Lucas’ cooperation with law enforcement). This, of course, makes the overall story worth viewing (and, for one person’s view, was an enticement to Denzel Washington to play Frank’s part, which Washington comments on in the DVD making-of doc).

How much fiction?

The one remaining question, when we watch the elaborate movie, is how much of it—of a relatively macroscopic sort, never mind little details like who wore what and where a car was situated—is fictional, and how much is true to life? The lawsuit brought by members of the drug enforcement community may reflect the beef of only a segment of the total participants in Lucas’ overall scheme, both on the criminal and on the law side. (And the attempts to question the film’s truthfulness on both the Wikipedia article of the film and that on Lucas alone are quite similar, and seem in subtle ways, such as the not-full carefulness of scholarship, a slightly ham-handed way to “set things straight.”)

Sometimes a little common sense helps us. Say someone made a film of Josef Stalin that was “based on a true story” but had Stalin working in drag as a chorus girl for five years, and had him composing sonatas in Italy at another point? We would question the veracity of this film in general. With American Gangster, did Lucas do what it alleges he did in Southeast Asia to get his heroin supply going? It’s not totally implausible, but given complaints, hard to be definitive about.

I think Part 1 of my review gives enough food for thought about how the film shouldn’t be taken as gospel but draws a picture that in some broad respects is true enough and worth the time of those interested in mob-level crime.

If I have any further remarks to make that are worth making available, they could be included in the section that can be added to Alternative B of The Folder Hunt: Annotated Edition, “Outtakes, Leftovers, and Epilogues: Items Related to Entries in my Blog.” (See following September 24 blog entry on this.)

Case law peek: Judges’ seeming obliviousness to degrees of workplace abusiveness: Ingraham v. Ortho-McNeil et al. (2011), a provisional Part 1 of 2

[A pdf of the appeals-court decision can be seen here. Slight edit done 9/24/12; another, important edit done 10/1/12, between asterisks; another edit 10/3/12, also between asterisks. 10/5/12: the "cite" for this case is Ingraham v. Ortho McNeil Pharma, 422 N.J. Super. 12 (2011). ]

Subsections in this entry:

The facts at the trial level of the case

The plaintiff’s argument about “power dynamics” falls flat

How “egregious” does distress-making workplace behavior need to be?

A case involving anti-Semitic remarks, against a Gentile

This appellate court decision within the New Jersey court system may show, I think, the limitations of the justice system to deal with certain kinds of workplaces. Indeed, we can adduce many anecdotal examples of lawyers’ (and judges’) not seeming to know how the real world works. But when it comes to dealing with how some workplaces pose worse problems (in terms of culture, the type of power employed there, etc.) than do others, and the legal system responds by citing legal strictures that prevent a case from going to trial before a jury—even when an appellate court notes in its finding that a jury may be sympathetic with a plaintiff—this suggests that the justice system is flawed, or perhaps “constitutionally” unapt to deal with the more complex types of problems in the work world.

I would suggest that a medical-media firm’s sense of self-importance, paranoia, and self-delusion about its mission, etc., tend to make it different from other workplaces, and therefore it would be willfully ignorant or naïve to consider such a company as about the same as any other workplace in terms of cultural bad attitudes there (or the potential for same under corporate stress).

But let’s look at Ingraham v. Ortho-McNeil et al. to see how a New Jersey appellate court dealt with a plaintiff’s appeal in seeking to collect damages for “intentional infliction of emotional distress” when a manager pressed her to remove decorations from her work cubicle that attested to her daughter’s early death.

The facts at the trial level of the case

Cecelia Mavica Ingraham was an administrative assistant in a marketing department at the Raritan facility of the pharmaceutical company Ortho-McNeil, whose school-age daughter had died from leukemia. Undergoing a long grieving process, she kept a display celebrating her daughter in her cubicle, including photographs and her daughter’s ballet shoes. She also spoke along the lines of her grief with coworkers…but coworkers apparently felt uneasy with this after a while, and some complained to a human resources manager. This manager in turn spoke to Carl DeStefanis, a manager in Ingraham’s department with whom she did not have close work relations, about their concerns.

DeStefanis eventually talked to Ingraham about these issues, in a half-hour talk in his office that included his requirement that she remove the slippers and pictures, and that if she felt a need to talk about her daughter in the future, she should do it with him in his office behind closed doors. She left his office upset, and shortly after, had a health crisis that resulted in, among other things, angioplasty. She resigned from her job and later filed a lawsuit against Ortho-McNeil, parent company Johnson & Johnson, and DeStefanis, alleging violation of the New Jersey Law Against Discrimination (LAD), “constructive discharge,” and intentional infliction of emotional distress. A full course of discovery was pursued, then the defendants made a motion for summary judgment (MSJ), meaning, in this instance, dismissal of the suit. In a stipulation as part of her response to this, Ingraham agreed to dismissal of all claims/counts except for intentional infliction of emotional distress. The trial court granted the defendants’ MSJ on the emotional-distress count. Ingraham appealed.

Some passages from the appeals-court transcript, which is public property, are worth reviewing.

Ingraham was employed by the company from 1994 to 2006 (12 years). “Plaintiff’s immediate supervisors reported to defendant Carl DeStefanis, the director of the [marketing] department. Plaintiff had infrequent contact with DeStefanis, [quotes are apparently from the trial court transcript] ‘usually a simple “Hello, how are you” type of interaction.’

“In 2003, plaintiff’s only child, Tatiana, then in her third year of high school, was diagnosed with acute lymphocytic leukemia. Tatiana was an excellent student with bright prospects. She was a member of the National Honor Society, National Latin Society, and National Art Society. She was accepted to Cornell University and planned to study biology as a pre-med student. She had also studied at the New Jersey School of Ballet, but was unable to continue dancing when her illness occurred. After several months in remission, Tatiana relapsed in April 2005. She developed an incurable infection and…passed away in May 2005. Her high school graduated her posthumously with top honors.

“Plaintiff’s mourning was deep and enduring. To honor the memory of her daughter, plaintiff kept pictures of Tatiana and her ballet slippers displayed in her cubicle at work.

“About one-and-a-half years after Tatiana’s death, a human resources manager at Ortho-McNeill [sic], [person’s name], met with DeStefanis to convey complaints she had received about plaintiff’s conduct and interaction with co-workers. Several of those complaints were unrelated to Tatiana, but administrative staff in the department had also remarked about plaintiff’s tendency to speak to them about Tatiana’s tragic passing. The co-workers said they sympathized with plaintiff, but they felt uncomfortable and at a loss for ‘what else that we can say that we have not said already.’ The co-workers said they tended to avoid contact with plaintiff and to take work or questions elsewhere. [Previously named H.R. staffer] suggested that DeStefanis talk to plaintiff to get her side of the complaints and to discuss her initiating conversations about Tatiana and its [sic] effect on her co-workers. DeStefanis agreed to speak with plaintiff.

“On Friday, November 17, 2006, DeStefanis met with plaintiff at four o’clock in the afternoon. They were alone in a human resources conference room. Once seated, DeStefanis told plaintiff he had several complaints concerning her speaking of her daughter and displaying pictures, and that the pictures needed to be removed. Upon hearing this, plaintiff became very upset. She testified in deposition that she started shaking. Plaintiff said to DeStefanis that she did not understand, and DeStefanis repeated that there were complaints about plaintiff’s pictures and her daughter’s ballet slippers, and they had to be taken down from her cubicle.

“Plaintiff protested that she works with highly educated people and did not understand that they could not tolerate pictures of her daughter or the fact that she [Ingraham] was a depressed, grieving mother. DeStefanis said again that the pictures had to be taken down because it [sic] was a disruption in the workplace, and people were avoiding her. DeStefanis also said that plaintiff could ‘no longer speak of [her] daughter because she is dead.’ Plaintiff felt hysterical. She told DeStefanis that ‘Tatiana was a very beautiful human being and everyone that met her was honored and blessed.’ She asked if DeStefanis was telling her to ‘act [as] if she did not exist.’ DeStefanis answered ‘yes.’

“Plaintiff was in shock and disbelief. She asked DeStefanis who was complaining, but he would not give names. She asked if the problem was her work performance, and he replied it was not. DeStefanis then said: ‘If you have the need or urge to talk about her[,] you can come into my office and speak of her behind closed doors.’

“In addition to the discussion about Tatiana, DeStefanis asked plaintiff about the unrelated complaints reported to him, and plaintiff denied that the incidents were as described, or she otherwise explained her version of the incidents.

“The conversation ended in a half hour or less, but to plaintiff it seemed to have lasted ‘forever.’ Plaintiff’s phone rang, her husband calling to see where she was, and she left the meeting. Plaintiff perceived DeStefanis as having been ‘cold’ but not angry. She also did not feel angry; rather, she was ‘extremely distraught and upset’ and ‘outraged’ and ‘hurt.’ [footnote indicated, but omitted here]

“Plaintiff left work that afternoon ‘crying’ and ‘sobbing.’ She never returned. Over the next few days, she went to her cardiologist for heart palpitations and subsequently was treated with an angioplasty procedure and medication. She took short-term disability leave and eventually resigned from her job.

“Plaintiff filed a three-count complaint in Middlesex County in April 2008. The complaint alleged violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49 [underscore omitted, italics added], intentional infliction of emotional distress, and constructive discharge. The parties engaged in a full course of discovery. Defendants moved for summary judgment in October 2010. In response, plaintiff stipulated to dismissal of her LAD and constructive discharge claims and opposed only defendants’ motion for summary judgment on her claim for intentional infliction of emotional distress. After hearing oral argument, the trial court granted defendants’ motion and dismissed that remaining count. This appeal followed.” (pp. 2-6)

The opinion went on to describe necessary components to a finding of intentional infliction of emotional distress: “First, plaintiff must prove that defendant acted intentionally or recklessly. … Defendant must intend ‘both to do the act and to produce emotional distress.’ … A defendant may also be liable when he ‘acts recklessly in deliberate disregard of a high degree of probability that emotional distress will follow.’” (p. 7; references to cite are omitted)

I won’t focus on the specifics of how the appeals court built up its argument, but will look more at the conclusion and some important points that the court embraced to support it, including in regard to some key aspects of Ingraham’s position.

The plaintiff’s argument about “power dynamics” falls flat

The plaintiff, Ingraham, argued, as the judge said in his opinion, “that the ‘power dynamics of the workplace’ lessen plaintiff’s burden in demonstrating extreme and outrageous conduct that satisfies the threshold for intentional infliction of emotional distress” (p. 11). Perhaps the plaintiff did not argue this point well enough, with facts and/or an interpretation of what they mean in this kind of situation—to persuasively show that a pharmaceutical-company workplace is different in terms of some of the power issues there (though I’m not sure that Ingraham was so specific about this aspect; I only know details of the case from the appeals-court decision). This is true not least (in my opinion) because the dynamics devolve from the huge financial implications of what is produced there.

Obviously the appellate court did not buy Ingraham’s argument about the “power dynamics.” It wrote, with opinion delivered by Justice Victor Ashrafi, “The employer-employee relationship is no more special and conducive to emotional distress than, for example, a doctor-patient relationship, the relationship of a decedent’s family to a funeral home, the tense relationship of a precarious tenancy where homes might be lost, or the relationship of a husband and wife in a hostile divorce” (p. 12; that’s some variety of examples, huh?).

“Indeed,” the opinion goes on, “the workplace has too many personal conflicts and too much behavior that might be perceived as uncivil for the courts to be used as the umpire for all but the most extreme workplace disputes. We have previously said that conduct in the workplace will rarely be so egregious as to give rise to a claim of intentional infliction of emotional distress” (p. 12).

The opinion later concludes, “…although plaintiff’s version of the meeting [between her and a manager, where the latter demanded she remove her signs of her deceased daughter] would allow the jury to view DeStefanis [the manager at issue] as insensitive and perhaps negligent [sic] of plaintiff’s vulnerability in her continuing bereavement, the conduct described does not meet the requisite standard to support a claim of intentional infliction of emotional distress. The trial court correctly determined that plaintiff could not prove the second essential element of her cause of action” (p. 15). *(Pardon me for being in error in my recent addition on "the second essential element of her cause of action." It turns out the second element, from the opinion at p. 7, is "Second, plaintiff must prove that defendant's conduct was 'extreme and outrageous.' The conduct must be 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.' ")*

How “egregious” does distress-making workplace behavior need to be?

What type of behavior would be sufficiently egregious to allow a plaintiff to go to trial to collect damages? The appeals-court opinion says, “Like Taylor, but unlike this case, the employers’ sexually harassing conduct in Leang, supra…and Wigginton, supra…was also characterized by outrageous acts otherwise prohibited by the LAD [New Jersey’s Law Against Discrimination] and other anti-discrimination laws” (p. 13; underscores removed, italics added; cites omitted).

The judge then refers to a case in which, a summary says, “damages are recoverable for emotional distress arising out of claim of discrimination under the LAD where the distress does not rise to the level of severity required for the separate tort [cause of action] of intentional infliction of emotional distress” (p. 13).

What kind of sexually harassing behavior was an adequate basis for finding in favor of a plaintiff in Leang (which case I mentioned above)? “…[A] supervisor and two co-workers at a military facility surrounding the plaintiff and making comments and gestures to suggest that she was to perform a sexual act on the supervisor while the others watched, followed by a threatening telephone call implying that the Mafia would become involved if the plaintiff pursued the investigation [sic]…” (p. 9).

That does sound pretty nasty.

I could allude to a specific example from my own life, with many colorful details, to show how some instances of workplace “high-handedness” may accord with the Leang case surprisingly closely, yet still may fall a little short of what would lead a court to apply sanctions. But let’s wait on that.

One thing should be noted, however—at least from my experience. Just because someone brings up an issue of workplace misuse of power, some kind of tortious conduct on the part of management, or the like, doesn’t mean that everyone (in the “victim” seat) would feel the same way about the same kind or instance of phenomena, or that people (“victims”) happen to complain about the same kinds or levels of abusiveness across the history of a company, or across companies or industries. Often, this is because workers are letting such abusiveness “slide” quite a lot, to be practical, to keep their head down and not make waves, to keep their jobs.

And in my own case, for every workplace issue in this vein I might bring to light, there are several others of (somewhat) lesser egregiousness that I let pass. You pick and choose your fights. You realize that a lot of particular fights on this sort of thing, on their respective merits, would be an uphill battle at best. And my experience in workplaces in New Jersey—compared to, say, when I had fine work experiences in Washington, D.C., or in Arlington, Virginia—is that New Jersey is an especially tough jungle for workplace abusiveness, mismanagement, “assault,” and so on.

Moreover, lawyers won’t always help you with this (because they are, at bottom, businesspeople who assess what risks they will take on, they are not “doctors” who are obliged to help everyone who is “harmed”). You are on your own. And amid all this, you sometimes ask yourself, When do I draw the line? When do I say, “Enough’s enough!”? When do I try to hold some individuals to account, to say nothing of what use the case may serve within the “case law” realm where it becomes a sort of reference point for future legal cases filed by others?

A case involving anti-Semitic remarks, against a Gentile

Here is an example, concerning someone else’s case. Within the past year, a lawsuit was filed against a company in Sussex County, N.J., by a plaintiff who alleged that a supervisor and/or another coworker made anti-Semitic slurs about him. He sought legal relief under an approach utilizing hate-speech laws. Yet the plaintiff is not Jewish. Does this sound weird?

Not to me. First of all, the attorney who filed the case for the plaintiff, Robert Scirocco, has seemed, from what I’ve gleaned, to have long had a reputation for dealing with certain kinds of tougher workplace issues. He was suggested to me in 1995 by a work supervisor when I worked at a branch of MetLife, concerning some legal matter of mine that had nothing to do with MetLife. She, the supervisor, said he had done well by her. Turned out, I didn’t use him then.

More recently, when I’ve seen his Web site, I find he seems to focus mainly on pretty standard workplace cases, which in New Jersey (at least) mostly comprise New Jersey Law Against Discrimination (LAD) cases and whistle-blower cases. (I have never communicated with Mr. Scirocco directly, though I have written to him for various reasons, including other than seeking representation, without his responding. Herewith, in the interests of discretion, I don’t vouch for him, nor does he for me, beyond what I write here.)

You could say that, to judge at least from the recent anti-Semitic remarks case, he would take on some of the workplace cases that are subtler, and weirder, than an average LAD or whistle-blower case. I am interested to see how this one concerning the Gentile alleging anti-Semitic slurs turns out. Why? Well, when I worked at a publishing firm in the mid-1990s, I also was subjected to anti-Semitic remarks.

This was one of the weirder instances of workplace “abusiveness” I’ve experienced over a 30+-year work life. I was among a set of temps on a high-pressure, tedious project. Generally, when young people in such situations have some “bug up their ass” about me—in the publishing realm, bitterly hyper-competitive and “identity-focused” issues are not uncommon—and if they are apt to sum me up as being a member of some ethnic group, it is usually Jewish. I always take this as a negative, because it is typically done in a jumping-to-conclusions way, and is hinted to me in a not entirely friendly manner. And in general, if people really want to “nail what type” I am, if they were honest about it, they could (in a way not showing their agenda to “get what I am”) ask sincere, respectful questions and get solid answers. If the best they can do is jump to the conclusion that I’m Jewish, it is not done with unadulterated respect for me (or for Jews).

In the mid-1990s instance I’m discussing, the remarks against Jews—made in weirdly “creative” passing remarks among several people—seemed a way of “commenting on me” for a while, as if to release or express “pressure” or annoyance…then, when I revealed something (not expressly to counter this “anti-Jewish” array of remarks) that showed my ethnic background included German not Jewish, then the spray of ethnically-oriented remarks by the coworker weasels became anti-German, not anti-Jewish. Overall, that was such a weird set of behaviors that it became an important segment of my long memoir The Temps, an early version of which I copyrighted in 1998.

Did I complain to the company’s human resources department about this specific, ethnically oriented set of behaviors? Not on that specific set, I think, but I did (for some specific purpose) “complain” to, or at least consult with, H.R. on other things among the coworkers, some of which were distinctly worse in some ways. Ultimately, H.R. showed pretty clearly there was only so much it could do, and (in effect) that I would have to put up with some of the subtle, deviant, insulting behavior. (This would accord with a similarly “cavalier” attitude I would find at at least one other large workplace I was at, in later years.) In the mid-1990s instance, certainly I did not see fit to file a lawsuit alleging violation of hate-speech laws. We didn’t even have those laws then, I think.

So when I hear of the Scirocco-shepherded lawsuit, I am definitely intrigued. Let’s see how far it goes. I am not sure it will go too far; but when it comes to deviant workplace behaviors, whether deeply insulting, sexually provocative, “distress-inflicting,” and other types, there can always be hope, can’t there?

[This entry to be continued, re-developed, or otherwise changed.]