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Comparing the arbitrary distinctions between Wilhoite and Deutsch, the Court noted that "[i]n reality, the bright line of im- pact establishing liability is not so bright." 11 In its place, the Court established a new standard. The Court first reiterated that a plaintiff asserting a claim for negligent infliction of e motional distress "must present evidence of the recognized ele- ments of a common law negligence claim: (1) the defendant owed a duty of care to the plaintiff, (2) breach of that duty, (3) injury to t he plaintiff, and (4) legal causation between the defen- dant's breach and the plaintiff's injury. "12 Recognizing "that emotional tranquility is rarely attained and that some degree of emotional harm is an unfortunate reality of living in a modern society," the Court stated "that recovery should be pro- vided only for 'severe' or 'serious' emotional injury." 1 3 Addressing what was required to satisfy this standard, the Court explained that "[a] 'serious' or 'severe' emotional injury occurs where a reasonable person, normally constituted, would not be expected to endure the mental stress engendered by the circumstances of the case." 14 Sug- gesting a floor for what constitutes severe emotional distress, the Court continued, "[d]istress that does not significantly affect the plaintiff's everyday life or require significant treatment will not suf- fice." 15 Arguably, however, the most important, and controversial, aspect of the Court's decision was its holding that "a plaintiff claiming emo- tional distress damages must present expert medical or scientific proof to support the claimed injury or impairment," explaining that this rule was appropriate "in light of societal advancements in men- tal health treatment and education." 16 The Court wasted no time in applying its new standard, holding that "the new rules espoused today governing claims involving emotional distress . . . shall apply to: (1) the present case; (2) all cas- es tried or retried after the date of filing of this opinion; and (3) all cases pending, including appeals, in which the issue has been pre- served." 1 7 Therefore, Osborne applies to all cases pending as of Dec. 20, 2012, the date the Court issued the opinion. WHERE ARE WE NOW - CLARIFYING OSBORNE. While the Court's derogation of the old rule included its lack of a bright line standard, Osborne also raised several new questions. For example, is expert testimony required in situations where physi- cal impact unquestionably occurred, or was it a test intended to ap- ply only in the absence of physical contact? The opinion, likewise, left open the question of whether the new standard applies to all claims for emotional distress, including those for intentional inflic- tion of emotional distress, an entirely separate tort. Yet another unanswered question: does Osborne provide grounds for dismissal of emotional distress claims that fail to satisfy its requirements? More generally, attorneys and scholars were left to wonder about the import of this drastically different rule and how it would affect the future of Kentucky tort litigation. In the two years since Os- borne came down, Kentucky courts have provided some guidance. Is expert proof required for all emotional distress claims • based on negligence? It is well settled in Kentucky that, unless the subject matter is within the common knowledge of a layman and does not involve any technical matters, expert testimony is required. 18 Recognizing the complex subject matter in certain areas of the law, courts have held that expert evidence is required in cases such as product liability claims for failure to warn 19 or medical malpractice cases. 20 Does Os- borne present a comparable rule and require expert evidence in all negligence cases seeking emotional distress damages? Relying on the general rule above, one could argue that expert evi- dence is not required in all negligence cases claiming emotional d istress. Surely a jury is equipped to determine whether emotional distress occurred in cases involving catastrophic accidents, such as a car or plane crash, or horrific injury, such as amputation or disfig- u rement. Perhaps, then, Osborne only applies to negligence claims where there is no physical impact and, thus, a more enigmatic emotional injury. The language in Osborne seems to mandate a sweeping rule, re- quiring expert evidence in all negligence cases seeking damages for emotional distress. Indeed, the court specifically directed its new rule at "emotional-distress plaintiffs," without limitation. 21 Like- wise, the court plainly and broadly stated that "a plaintiff will not be allowed to recover without showing, by expert or scientific proof, that the claimed emotional injury is severe or serious" 2 2 and "a plaintiff claiming emotional distress damages must present expert medical or scientific proof to support the claimed injury or impair- ment." 23 Apparently, the Osborne Court did not equivocate. The question regarding the scope of Osborne's application in negli- gence cases was considered by the federal court in Sergent v. ICG Knott County, LLC. 24 Sergent involved a mineworker who suffered a "serious injury" when the mine in which he was working collapsed, ultimately requiring amputation of his leg. 25 Plaintiff sued, alleging negligence in the maintenance of the mine and seeking damages, including emotional distress. 26 In granting the defendant's motion for summary judgment as to the emotional distress claims, the court turned to the clear language of Osborne and stated, "[r]ead plainly, Osborne announced a generally applicable rule that applies to all claims for emotional damages." 27 The court soundly rejected plaintiff's argument that Osborne only required expert evidence in cases where there was no physical impact. 28 Indeed, such an inter- pretation of Osborne would require application of the impact rule to determine whether expert evidence was required – frustrating the Court's abrogation of the old rule. 29 Relying on Osborne, the court held that expert evidence was required for all negligence claims seeking emotional distress. Impact or no impact, expert evidence is required. Does Osborne apply to all claims for emotional distress • damages no matter the tort? The facts and context of Osborne seem to limit its application to negligence claims. Osborne, after all, was a negligence case. More- over, the Court abrogated the physical impact rule, a rule tradition- ally limited to negligence claims and not applicable to other torts. 30 Likewise, the Court repeatedly framed its holding within the con- text of a prima facie negligence case, requiring plaintiffs to first show duty, breach, and causation, and then severe emotional dis- tress supported by expert evidence. 31 Nonetheless, does Osborne require expert evidence of severe emotional distress for every tort seeking damages for emotional distress, such as intentional inflic- tion of emotional distress ("IIED") claims? In Keaton v. G.C. Williams Funeral Home, Inc., 32 plaintiff sued a fu- neral home for negligence, and IIED, alleging mishandling of a family member's remains. 33 The Court of Appeals affirmed the trial court's grant of summary judgment to the defendant on the negli- gence claim because, under Osborne, the plaintiffs failed to pres- ent affirmative evidence that they suffered severe emotional dis- tress. 34 Likewise, the court affirmed summary judgment for the fu- neral home on the IIED claim. The court held, "as previously stated, the [plaintiff] failed to present sufficient affirmative evidence con- 13 B&B; • 9.14