BRUCE KINNEY, M.D. APPELLANT
ANGELA K. MAGGARD, M.D. APPELLEE
FROM FLOYD CIRCUIT COURT HONORABLE JOHNNY RAY HARRIS, JUDGE
ACTION NO. 09-CI-00239
FOR APPELLANT: Tamela J. White Huntington, West Virginia
FOR APPELLEE: Ray S. Jones, II Pikeville, Kentucky
BEFORE: CLAYTON, NICKELL, AND THOMPSON, JUDGES.
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 creating a private right of action
under KRS 446.070; 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). If the judicial statements privilege
applies, as Dr. Kinney maintains, his words cannot be used to
sustain Dr. Maggard's claims.
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; and had encouraged others to file similar
grievances against her.
& 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.
Kinney and Dr. Maggard are OB/GYNs. In 2005, both treated
patients at Highlands Regional Medical Center (HRMC) in
Prestonsburg, Kentucky. 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.
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 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.
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. 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.
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
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
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; 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.
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.
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.
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
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.
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