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Kinney v. Maggard

Court of Appeals of Kentucky

February 23, 2018



          BRIEFS FOR APPELLANT: Tamela J. White Huntington, West Virginia

          BRIEF FOR APPELLEE: Ray S. Jones, II Pikeville, Kentucky



          NICKELL, JUDGE:

         Dr. Bruce Kinney challenges an order entered by the Floyd Circuit Court denying his motion to dismiss a complaint filed by Dr. Angela K. Maggard alleging libel and slander; defamation; violation of KRS 311.590[1] creating a private right of action under KRS 446.070;[2] wrongful use of civil proceedings; and abuse of process. Relying on the judicial statements privilege- often referred to as absolute immunity-Dr. Kinney maintains the complaint should have been dismissed because his challenged statements occurred during judicial proceedings which are afforded absolute immunity from suit. Smith v. Hodges, 199 S.W.3d 185, 189 (Ky. App. 2005). Specifically, he claims his words were made:

"preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of a judicial proceeding" and that [they] have "some relation to a proceeding that is contemplated in good faith and under serious consideration." Rogers v. Luttrell, 144 S.W.3d 841, 843-44 (Ky. App. 2004) (quoting General Electric Co. v. Sargent & Lundy, 916 F.2d 1119, 1127 (6th Cir. 1990)). [The judicial statements privilege] applies with equal force to statements in pleadings filed in judicial proceedings. Massengale v. Lester, 403 S.W.2d 701-02 (Ky. 1966).

Halle v. Banner Industries of N.E., Inc., 453 S.W.3d 179, 184 (Ky. App. 2014).[3] If the judicial statements privilege applies, as Dr. Kinney maintains, his words cannot be used to sustain Dr. Maggard's claims.

         This action was initially based solely on Dr. Kinney's appearance as an expert witness during a medical malpractice trial in February 2009. As time wore on, Dr. Maggard added new counts alleging he had also made harmful comments about her to colleagues and patients; had further libeled and slandered her by filing a grievance with the KBML;[4] and had encouraged others[5] to file similar grievances against her.

         Morgan & Pottinger, Attorneys, P.S.C. v. Botts, 348 S.W.3d 599 (Ky. 2011), a case of first impression in Kentucky, held statements concerning an attorney disciplinary hearing-whether made in preparation of filing or in the complaint itself, and whether made before or during a disciplinary proceeding-are privileged under the judicial statements privilege, so long as the statements are material, pertinent and relevant to the proceeding. This case explores another matter of first impression in Kentucky-whether a physician who files a grievance with the KBML against a doctor may successfully assert the same absolute immunity afforded an individual filing a KBA complaint against an attorney. We answer the question in the affirmative.


         Dr. Kinney and Dr. Maggard are OB/GYNs. In 2005, both treated patients at Highlands Regional Medical Center (HRMC) in Prestonsburg, Kentucky.[6] Dr. Maggard was employed by Big Sandy Health Care, Inc.-a federally qualified health care center-and chaired HRMC's OB/GYN Department. An employee of HRMC, Dr. Kinney was critical of Dr. Maggard, blaming her for his lack of patient referrals and for departure of several health care professionals from the area.

         On January 10, 2005, Dr. Maggard performed a hysterectomy on Kathy Harless. Dissatisfied with her post-surgery care, and following another procedure by a urologist, Harless became a patient of Dr. Kinney, ultimately filing a medical malpractice suit[7] against Dr. Maggard's employer in 2007 under the Federal Tort Claims Act. Dr. Kinney testified as the sole expert witness for Harless, stating Dr. Maggard's treatment fell below accepted standards of care. Two experts called by the government expressed a different opinion. Finding Dr. Kinney lacked objectivity and credibility, the federal case was dismissed with prejudice on March 24, 2009.

         On March 4, 2009, Dr. Maggard had filed a complaint in Floyd Circuit Court alleging Dr. Kinney's testimony-both in deposition and at trial- constituted libel and slander.[8] Dr. Kinney moved to dismiss the complaint for failure to state a claim upon which relief could be granted, or alternatively, sought additional time to review the file and respond in full. On April 3, 2009, the motion to dismiss was denied and additional time was given for the filing of a response. The order was not appealed. In answering the single-count complaint, Dr. Kinney asserted absolute privilege because his comments occurred during a judicial proceeding; claimed he did not defame Dr. Maggard by stating his "opinion;" and, averred the complaint did not state a claim upon which relief could be given.

         Other than an occasional request for a status conference, the case idled until 2012 when Dr. Maggard served interrogatories on Dr. Kinney and gave notice of her intent to depose him. Dr. Kinney was ordered to respond to the interrogatories. He still has not been deposed in this litigation. Practically no discovery has occurred leaving us with generalities and few facts.

         In December 2013, Dr. Maggard sought leave to file her first amended complaint to add four new counts. The amended complaint was ordered filed and ten days later, Dr. Kinney moved to dismiss the suit asserting absolute immunity for statements made during a judicial proceeding "and privileges associated with individuals holding professional licenses."

         On April 7, 2014, Dr. Kinney supplemented his motion to dismiss the first amended complaint arguing all his deposition/trial testimony in Harless was privileged; relying on Botts, filing a complaint with the KBML is the same as filing a bar complaint against an attorney to which absolute immunity applies; had he not reported Dr. Maggard to the KBML he would have opened himself to liability for a misdemeanor;[9] KRS 446.080 does not create a private cause of action for his statements; and, having conceded a KBML hearing is a "judicial proceeding, " Dr. Maggard cannot allege wrongful use of civil proceedings and abuse of process.

         Two days later, Dr. Maggard sought leave to file her second amended complaint to allege defamation based on comments Dr. Kinney had made to the KBML, HRMC administrators, Dr. Maggard's colleagues and co-workers, and her current and former patients. Dr. Kinney opposed the amendment saying it merely alleged the same claims using different names. In a single order entered on May 15, 2014, the second amended complaint was ordered filed and Dr. Kinney's motions to dismiss, stay all discovery, and enter a protective order were denied. This order was not appealed.[10]

         On May 29, 2014, Dr. Kinney moved to dismiss the second amended complaint with supporting memorandum. This pleading repeated much of the motion to dismiss denied just two weeks earlier and reasserted absolute immunity.

         After taking the motion to dismiss under submission, on June 25, 2014, the trial court entered a written order overruling the motion to dismiss without offering any explanation and held in abeyance Dr. Kinney's motion to stay all proceedings and strike objectionable terms contained in the second amended complaint. It is from this order that Dr. Kinney appeals.


         While denial of a motion to dismiss is generally interlocutory and unappealable, Dr. Kinney's assertion of absolute immunity for testimony he gave in a judicial proceeding triggers immediate de novo appellate review upon request. Druen v. Miller, 357 S.W.3d 547, 549 (Ky. App. 2011). Were we to deny consideration until after he bears the expense and burden of trial, Dr. Kinney would be denied "meaningful review." Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883, 884 (Ky. 2009). Thus, we have jurisdiction to consider those aspects of the appeal directly related to the claim of judicial statements privilege. Mattingly v. Mitchell, 425 S.W.3d 85, 91 (Ky. App. 2013). Our review, however, will be limited to questions directly related to the claim of absolute immunity. Other alleged errors can be corrected by filing an appeal after entry of final judgment. This approach is consistent with an order entered by a motion panel of this Court on October 17, 2014, granting in part Dr. Kinney's motion for intermediate relief.

         Dr. Kinney moved the trial court to dismiss the second amended complaint for failure to state a claim upon which relief may be granted. Such a motion:

admits as true the material facts of the complaint. So a court should not grant such a motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved. . . . Accordingly, the pleadings should be liberally construed in the light most favorable to the plaintiff, all allegations being taken as true. This exacting standard of review eliminates any need by the trial court to make findings of fact; rather, the question is purely a matter of law. Stated another way, the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief? Since a motion to dismiss for failure to state a claim upon which ...

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