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Crook v. Maguire

Court of Appeals of Kentucky

May 11, 2018



          BRIEF FOR APPELLANT: Douglas H. Morris Lea A. Player Louisville, Kentucky J. Todd P'Pool Karey L. Roy Madisonville, Kentucky

          ORAL ARGUMENT FOR APPELLANT: Lea A. Player Louisville, Kentucky

          BRIEF FOR APPELLEE: Ronald G. Sheffer Sarah E. Potter Louisville, Kentucky J. William Graves Thomas L. Osborne Paducah, Kentucky

          ORAL ARGUMENT FOR APPELLEE: Ronald G. Sheffer Louisville, Kentucky



          JONES, JUDGE

         James William Crook appeals an order of the Hopkins Circuit Court summarily dismissing various causes of action he asserted against Dr. Sean M. Maguire for emotional distress damages. For the reasons more fully explained below, we affirm in part, reverse in part and remand for proceedings consistent with this opinion.

         I. Background

         In July 2005, Crook received a call from the Madisonville Police Department requesting an interview. Crook voluntarily went to the police station, and the police questioned him for two or three hours regarding a number of controlled substance prescriptions that had been written for Crook by Dr. Maguire, one of Crook's former treating physicians. Over the course of the interview, the police explained they were investigating Dr. Maguire for obtaining controlled substances by writing fraudulent prescriptions. They questioned Crook regarding the level of his involvement with Dr. Maguire's scheme, if any. Crook responded that he was not involved and had no knowledge of the prescriptions Dr. Maguire had written in his name. Thereafter, the police asked Crook if they could contact him later about this matter. Crook told them they could. Crook then left the station. The police contacted Crook again, for the last time, two weeks later in a five-minute phone call in which they asked Crook if he had any medication in his home, and told him they would call if they needed more help or needed any more questions answered.

         Crook later asserted that his interview with the police was distressing to him, especially because at one point the interviewing officer informed him that if he had been involved in Dr. Maguire's scheme he could be arrested. On this basis, he filed suit against Dr. Maguire in Hopkins Circuit Court seeking emotional distress damages based upon negligent infliction of emotional distress (NIED), intentional infliction of emotional distress (IIED), negligence per se, and violation of Kentucky Revised Statute (KRS) 411.210.

         After a period of motion practice, the circuit court dismissed Crook's claims because (1) Crook's only source of alleged damage under any of these theories was emotional distress and mental anguish; and (2) in its assessment of the record, the circuit court determined Crook failed to present expert medical or scientific proof supporting that his alleged emotional distress and mental anguish significantly affected his everyday life or required significant treatment.[2]

         II. Analysis

         On appeal, Crook first argues the circuit court erred because, in his view, Kentucky law only would have required him to produce this type of expert medical or scientific evidence if he was asserting a theory of NIED.[3]

         Crook is incorrect. IIED and NIED both require a showing of severe emotional distress. See Wilson v. Lowe's Home Ctr., 75 S.W.3d 229, 238 (Ky. App. 2001) (explaining emotional distress in IIED claim must be severe); Osborne v. Keeney, 399 S.W.3d 1, 17 (Ky. 2012) (explaining emotional distress in NIED claim must be severe). Severe emotional distress is only demonstrated through expert medical or scientific proof. In Osborne, 399 S.W.3d at 17-18, the Kentucky Supreme Court explained:

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. Distress that does not significantly affect the plaintiff's everyday life or require significant treatment will not suffice. And a plaintiff claiming emotional distress damages must present expert medical or scientific proof to support the claimed injury or impairment.

(Internal footnotes omitted). Accordingly, a plaintiff's failure to produce expert evidence or scientific proof of severe emotional distress is fatal to claims of IIED and NIED. See Keaton v. G.C. Williams Funeral Home, Inc., 436 S.W.3d 538, 544-45 (Ky. App. 2013).

         This brings us to Crook's claim under KRS 411.210. It is with respect to this claim that we disagree with the circuit court. KRS 411.210(1) provides:

In addition to pursuing any other remedy, anyone who is a victim under KRS 434.872, 434.874, 514.160, or 514.170, shall have a cause of action, either where the victim resides or the defendant resides, for compensatory and punitive damages against anyone who violates KRS 434.872, 434.874, 514.160, or 514.170 and, if successful, shall be awarded reasonable costs and attorneys' fees.

         A claim pursuant to KRS 411.210(1) survives so long as the plaintiff demonstrates that he was a "victim" under "KRS 434.872, 434.874, 514.160, or 514.170[.]" Id. A plaintiff who has a cause of action under KRS 411.210(1) can recover compensatory damages, punitive damages, and reasonable costs and attorneys' fees.[4] Because Crook's claim under KRS 411.210 is grounded in statute, we must consider whether Osborne's expert evidence requirement applies to all claims or only IIED and NIED claims. Until recently, ...

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