Following the Kentucky Supreme Court's 2012 decision in Osborne v. Keeney recognizing a cause of action for negligent infliction of emotional distress and establishing as an element of that tort that the emotional distress be serious as proved by expert medical or scientific proof, some courts ran away from the narrow and specific holding and concluded that the case established a generally applicable rule of Kentucky law requiring expert medical or scientific proof to sustain any and all claims for emotional distress damages no matter their context. This tendency was particularly pronounced in Kentucky's federal district courts.
The Kentucky Supreme Court's recent decision in Banker v. University of Louisville Athletic Association should put to rest the defense argument that expert medical or scientific proof is necessary to sustain a plaintiff's claim for emotional distress damages in a discrimination or retaliation case. The Court reinstated a jury's award of $300,000 in damages for Banker's emotional distress caused by her wrongful termination and described her proof as follows:
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.
The decision in Osborne v Keeney, although it obviously did not establish a generally applicable rule that emotional distress damages must be supported by expert medical or scientific proof, was an important decision for Kentucky law, as we've discussed in our other blog ... and Justice for All: Kentucky Legal Malpractice: The Case-Within-A-Case Approach; Kentucky Legal Malpractice: Lost Punitive Damages Not Recoverable Kentucky Supreme Court Rules; and Kentucky Abandons The Physical Impact Requirement for Recovery of Emotional Distress Damages.
Banker's lawyer was Bryan Cassis from Louisville, who deserves kudos for his fine work on his client's behalf.
We've also discussed the Banker decision on a post on our website: Retaliation & Discrimination - Proving Emotional Distress.
In a later case, Indiana Insurance Company v. Demetre, the Kentucky Supreme Court made explicit what the Banker case suggests: "Osborne's requirement of expert medical or scientific proof is limited to claims of intentional or negligent infliction of emotional distress."