In 2012, the Kentucky Supreme Court adopted as a matter of Kentucky law in Osborne v. Keeney the tort of negligent infliction of emotional distress. However, the Court limited its application only to those instances where the emotional distress was shown by expert medical or scientific proof to be "serious" or "severe." So far, so good, the Court recognizes a cause of action  but includes a substantial proof element to weed out minor and/or inconsequential claims.

But Osborne led other courts to misapply its rule by concluding that Kentucky law required expert or scientific proof to support any and all claims for emotional distress damages. An excellent article detailing these misapplications, mostly by federal district courts is Emotional Distress Claims In a Post-Impact World: Gauging the Impact of Osborne v. Keeney by Chris Jackson and Lucas Humble published last year in the Bench & Bar. Here's but one example from U.S. District Judge Thapar granting summary judgment against the plaintiff in Farmer v. Dixon Electric:

Farmer has not pointed the Court to evidence in the record that her emotional distress required significant treatment, nor has she presented expert evidence regarding the severity of her injuries.

The assertion and holdings of many courts that Kentucky law requires expert medical or scientific proof to sustain a claim for emotional distress damages have been shown wrong by the Kentucky Supreme Court's recent decision in Banker v. University of Louisville Athletic AssociationBanker was an assistant track coach, and she claimed that she was fired after complaining of some discriminatory practices and doings. A jury awarded her $300,000 in emotional distress damages.  In reinstating this award, here's how the Court analyzed and described Banker's proof of emotional distress:

In support of her claim of emotional distress damages, Banker testified that she suffered significant stress with accompanying loss of appetite, weight loss, depression, and sleep disturbance. Banker testified that she had not sought any treatment for her symptoms because she lost her health insurance and could not afford her COBRA payments. In addition to her own testimony, Banker offered testimony from her mother that Banker seemed stressed and lost weight during her time at the University and that Banker was devastated when she lost her job.

Absent from the Court's analysis was any suggestion whatever that expert medical or scientific evidence was presented or necessary to sustain Banker's claim for emotional distress damages. Indeed, the Court acknowledged that she had not sought treatment for these symptoms, although she had a reason - poverty caused by loss of her job - for not doing so. Coming as it does some three years after the Osborne decision and being unanimous, it shows the gross error by the numerous courts that misapplied Osborne's holding and should put to rest the defense argument that Kentucky law requires expert medical or scientific proof to sustain a claim for emotional distress damages.  

Lexington, Kentucky discrimination lawyer Robert Abell represents individuals and employees in employment discrimination and retaliation cases; contact him at 859-254-7076. 

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