Bench & Bar

SEP 2014

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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cerning any 'severe emotional distress' its members had experi- enced or were suffering. As this failure was fatal to their negligence claim, it is likewise fatal to their IIED claim." 35 The implication of Keaton is far from clear. Perhaps the Keaton court was merely applying the elements of an IIED claim, which, it- self requires evidence of severe emotional distress. 36 It could be ar- gued, however, that the court applied Osborne's requirement of se- vere emotional distress to both the negligence and the IIED claims. If the latter is true, attorneys and courts may begin extending Os- borne, including its expert evidence requirement, to intentional torts, such as IIED. However, focusing solely on the context and lan- guage of Osborne, it seems the more reasoned conclusion is that the rule is limited to negligence claims. Does Osborne provide a means of summarily dismissing • claims for emotional distress? Readers beware - Osborne has teeth! Indeed, one need not look far for an abundance of cases where courts have granted defen- dants' dispositive motions on emotional distress claims based upon plaintiff's running a foul of the holding in Osborne. Relying on Osborne, Kentucky courts have granted summary judgment based upon plaintiff's failure to provide evidence of emotional distress rising to the level of "severe." 37 Kentucky courts have also granted summary judgment based upon plaintiff's failure to provide expert evidence in sup- port of their emotional distress claims. 38 Osborne has even been the basis for granting motions to dismiss. 39 Clearly, attorneys who ignore Osborne do so at great risk to their clients. INTEGRATING OSBORNE INTO YOUR CASE. The careful advocate on both sides of the "v" will certainly wonder how to use Osborne, and avoid its pitfalls, as they develop and practice their current and future tort cases. Hopefully, Osborne's game-changing impact on the landscape of Kentucky law has be- come evident. At a minimum, then, given the consequences of ig- noring Osborne, attorneys must be aware of Osborne and atten- tive to its sweeping effects. However, more can be done to further your client's interests. The following presents some basic, and non-exclusive, ways Os- borne should be employed in your next tort case. For the Plaintiff's bar: Figure Osborne into the value of your cases, both when • screening potential clients and negotiating settlement – can you prove severe emotional distress and does the value of the case warrant expert costs? Remember, physical impact is no longer required – claims for • negligent infliction of emotional distress may be viable where, in the past, they would not. Be conscious of Osborne when drafting your complaint so as • to not invite a motion to dismiss by inartful pleading. Draft discovery responses and prepare your clients for depo- • sitions with Osborne in mind – use these opportunities to evidence the severity of any emotional distress by focusing on its impact on plaintiff's daily lives and the extent of treatment they have received. Secure expert proof, through either a retained expert or a • qualified treatment provider, to support your client's emotional distress claim and properly and timely dis- close experts to avoid motions for summary judgment. For the Defense bar: Draft written discovery requests and depose plaintiffs • with an eye toward dismissal of emotional distress claims by focusing on the lack of severity of the plain- tiffs' emotional distress. Get a scheduling order in place with a clear expert • disclosure deadline. Depose the plaintiff's expert with a focus on Os- • borne. Think beyond Daubert and get conces- sions on how the emotional distress interferes with the plaintiff's life and the extent of treat- ment. Move for dismissal if plaintiff cannot present • evidence of severe emotional distress or has failed to timely obtain an expert witness to support emotional distress claims. Consider whether a rebuttal expert to con- • tradict plaintiff's expert is necessary for trial. Figure Osborne into the price you are • willing to pay to settle plaintiff's claims, in terms of increased costs to both plaintiff and defendant. 14 F E AT U R E : T O R T S B&B; • 9.14

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