• CRIMINAL LAW
  • DOUGLAS V. COMMONWEALTH
    http://162.114.92.72/opinions/2000-SC-000414-MR.pdf
    As modified, Sept. 26, 2002
    Daubert does not apply to criminal sentencing.
  • ROARK V. COMMONWEALTH
    http://162.114.92.72/opinions/2000-SC-000087-MR.pdf
    http://162.114.92.72/opinions/2000-SC-000088-MR.pdf
    Ky. Sept. 26, 2002
    The "totality of circumstances" approach is adopted for evaluating the admissibility of evidence that is the product of an hypnotically induced, refreshed or enhanced recollection which neither automatically admits nor excludes post-hypnosis evidence but determines admissibility on a case-by-case basis from the "totality of the circumstances
• DAMAGES, PUNITIVE
  • WILHITE V. ROCKWELL
    http://162.114.92.72/opinions/2000-SC-000142-DG.pdf
    As modified, Sept. 25, 2002
    Reversal of damage award based on inadmissibility of expert's testimony required remand for new trial rather than directed verdict in favor of defendant because there was other evidence of permanent injury to landowners' properties which might have entitled them to compensation.
• DISCIPLINARY
  • RITALYNN CARTEE
    http://162.114.92.72/opinions/2002-SC-000398-KB.pdf
  • DAVID PAUL CHINN
    http://162.114.92.72/opinions/2002-SC-000505-KB.pdf
  • ARTHUR WILLIAM PULLIAM
    http://162.114.92.72/opinions/2002-SC-000595-KB.pdf
  • BARBARA E.YEAGER
    http://162.114.92.72/opinions/2002-SC-000639-KB.pdf
• JURISDICTION, IN PERSONAM
  • WILSON V. CASE
    http://162.114.92.72/opinions/2000-SC-000142-DG.pdf
    Ky., Sept. 26, 2002.
    Court examined the minimum contacts test for personal jurisdiction arising from out-of-state resident whose only contact with Kentucky was to come to Louisville and fly a plane back to Maryland where he crashed it - Kentucky did not have personal jurisdiction after applying the following tests: (1) whether the defendant purposefully availed himself of the privilege of acting within the forum state or causing a consequence in the forum state (2) whether the cause of action arises from the alleged in-state activities (3)requires such connections to the state as to make jurisdiction reasonable. Each of these three criteria represents a separate requirement, and jurisdiction will lie only where all three are satisfied.
• ZONING
  • LOUISVILLE AND JEFFERSON COUNTY PLANNING COMM. V. SCHMIDT
    http://162.114.92.72/opinions/1999-SC-000542-TG.pdf
    As modified, Sept. 26, 2002
    Held Jefferson County's Innovative Residential Development Regulations unconstitutional and void.

• PRODUCTS LIABILITY AND COMPARATIVE FAULT

FRALEY V. SRECO FLEXIBLE, P. 1

Comparative fault statute was superseded by KRS 411.320 so that contributory negligence is not a complete bar to recovery in products liability case.

• PREMISES LIABILITY - CHRISTMAS IN JULY?

WAL-MART V. PATRICK, P. 3

Customer falls on flat Christmas tree ornament while perusing the Wal-Mart aisles during the holidays - apparently he decks the deck rather than decks the halls with boughs of fally (ugh). Wal-Mart claims it conducted floor 'sweeps'. Therefore, if sweeps were done, then the ornament should have been discovered and plaintiff prevails. Decision on appeal in July; therefore, X-mas in July. Wal-Mart held liable even when no direct evidence its employees had actual knowledge.

• PENSION BENEFITS - DEAD IS DEAD AND SICK LEAVE IS SICK LEAVE

WEBSTER COUNTY BOARD OF ED. V. CHERRY, P. 8

Death does not amount to a retirement so that the school board did not owe the estate the unused sick leave accumulated prior to deceased employee's death and prior to his retirement.

• BREACH OF CONTRACT - NON-COMPETE AND PATIENT LISTS

RETINA ASSOC. V. BURNS, P. 9

Dr. Frank Burns (not formerly of MASH) mashes his former employer when 726 former patients follow him to his new practice. Not breach of contract since patient list was not used until after 1 year (per contract) and he was entitled to the list per the contract. To rub salt in the wound, only 2 of the 726 patients transferred their files because of the letters mailed after the end of the one-year non-compete perior and Dr. Burns recovered $15,000 on his counter-claim because the employer took him out of surgical rotation the last month thus depriving Dr. Burns of income.

• SOVEREIGN IMMUNITY - MUNICIPAL FIRE DEPARTMENTS EMS NOT SOVEREIGN FUNCTION

HAWKINS V. ANCHORAGE FIRE DEPT. P. 16

Ford employee left disabled after EMS run transports him to wrong hospital following heart attack at the Ford plant. Anchorage's providing of EMS services is a local function and not a state function and thererore is a municipal agency and not a state agency and services were not legislative or judicial so that suit against city was not barred by sovereign immunity.

Other interesting issues in this case are:

The claim against Ford for the co-worker who botched the transfer and aggravated the injury was compensable under the Workers Comp act and subject to the exclusive remedy provisions - Ford dismissed.

The claim against the independent contractor security guard was barred by the one-year statute of limitations. Plaintiff's efforts to use the 'unknown defendant' and constructive notice via CR. 4.15 was to no avail and the amendement of the complaint once the guard was identified did not relate back per CR 15.03. The Court of Appeals stated the warning order process is not a substitute for personal jurisdiction and the relation back of amendement, but then added insult to injury by stating the plaintiff did not complete the affidavit and comply with the warning order requirements anyway.

• AUTO NEGLIGENCE - REASONABLENESS OF VERDICT AND CANDID CAMERA SURVEILLANCE

BERRYMAN V. HARDY, P. 17

$66,375 pain and suffering award in bench trial not excessive for plaintiff with disc injury and in spite of being caught on video rowing a boat, lifting heavy object all of which he said he could not do at his deposition. The standard for review under CR 52 is 'clearly erroneous' and not the judge's misunderstanding of the medical evidence of pre-existing degenerative disc disease and causation.

• MEDICAL NEGLIGENCE, DEFENSE VERDICT, P. 2

Defense verdict in ruptured aneurysm of 13 year old. She developed headaches, went to hospital, neurosurgeon believed she had stabilized, and opted for further diagnostic workup before surgery 5 hours later. Patient did not survive.

• UNDERINSURED MOTORIST CLAIM, $360,688 P. 7

Ashby was not having a good day. He was trying to put the moves on a co-worker, and the consumption of beer and the marijuana impeded his personal performance so the frustrated couple left home for more exciting venues.

While traveling on I-64, Ashby was distracted by an unknown motorcyclist (no contact) moving at 90 mph and merging quickly in front of him, as well as the actions of his amorous passenger who was now traveling with her top down and was now flashing truckers. Ashby avoided the motorcyclist and struck an elderly couple. The motorcyclist, either impervious to events or fleeing from his dastardly deed, left the scene and later entered the lawsuit as the 'unknown third party'.

Elderly couple sue Ashby and Farm Bureau (for UM and UIM). Uninsured motorist (UM) claim (which was predicated on the motorcyclist) was dismissed under no contact rule and $600,000 potential UM coverage evaporates - even though it was Farm Bureau who brought in the unknown third-party motorcyclist. Oddly enough plaintiffs get caught in a 'Catch 22' with the UM claim against the unknown motorcyclist being dismissed because there was no contact (as required per the policy and as a protection against insurance fraud), but the jury apportioning half the fault to the unknown motorcyclist at trial - effectively deprived the plaintiffs of half their recovery. Obviously, the jury believed there was no fraud in that allegation. The law of apportionment vs. the law of coverage produced an anomalous and inconsistent result to the detriment of the insured.

Ashby's insurer paid it's policy limits to each of the elderly plaintiffs, and the action proceeded against their underinsured carrier (also Farm Burea) and the unknown third party motorcyclist. Jury only knew Farm Bureau was plaintiff's insurer but nothing about the type of coverage. Jury apportioned fault equally against Ashby & the motorcyclist. $360,688 for the husband (which implicated UIM after apportionment); and $107,332 for the wife (which did NOT implicate UIM after apportionment). Because of the UM "no contact" ruling - plaintiffs could not get their hands on nearly $233,000!

• DOG BITE - $17,159, p. 8

Girl friend obviously does not know jack about a dog being man's best friend. Couple pick up a movie, go home, snuggle on the couch, and fall asleep secure knowing they are safe with boyfriend's Jack Terrier name "Jacks" asleep at their feet. Howeve, girl friend shifts her feet and Jacks springs into action - jumps on her lap, bites her face, and holds on for 20 seconds.

Girl friend receives 150 stitches and has facial scar. Now sues her ex-boyfriend. Jury awarded $3,023 in medicals, $3,576 in future meds, and $10,000 pain and suffering.

• SOME SHORTS
  • Defense verdict - failure to diagnose bowel necrosis and resultant bowel infarction.
  • $15,000 award in soft-tissue rear end MVA.
  • BMW driver threshholded in soft tissue case.
  • $30,000 verdict in excessive force by police officer.
  • UIM coverage not implicated in aggravation of degenerative condition ($25,000 bi policy).
  • Defense verdict against polite guest who goes up a tree on a ladder to help his 70 year old friend place a star on a birdhouse. (No good deed goes unpunished).

  Return to Top

• LARGEST VERDICTS FOR 2002 - Jefferson
  1. Tyler Thompson, Louisville
     $5,783,815 for lacerated lower leg and RSD from defective weed trimmer in product liability case.
  2. Thomas Conway, Louisville
     $3,294,883 against Norton's Hosp. for nurse's failure to note complications from drug administration resulting in infant with permanent brain damage.
  3. Lee Sitlinger & Curt Sitlinger, Louisville
     $1.1 million bad faith case against USAA for handling of UIM claim
  4. Matthew Troutman, Louisville
     $218,326 medical malpractice for doctor failing to stat page which was partially to blame for patient's death.
  5. Peter Perlman, Lexington & Timothy Lange, Louisville
     $218,137 for Mayor David Armstrong's myasthenia gravis from car accident.
  6. Patrick McElhone and Ron Hillerich, Louisville
     $171,500 for herniated disk from mva and against UIM carrier.
• LARGEST VERDICTS FOR 2002 - Kentucky/rest of the state
  1. James M. Gary & Frank Miller, Louisville
     $3,595,000 in maritime negligence case for industrial worker killed falling 20 feet into empty barge.
  2. Phil Stalnaker, Pikeville
     $2,004,700 in case where nurse fired, arrested and fighting to keep her license from off-hand remark abut Columbine.
  3. Lee Huddleston, Bowling Green
     $1,768,584 for outrage in employment case when industrial bakery improperly forced her to be a "snitch" as condition of continued employment.
  4. Gary and Anita Johnson, Pikeville & Masten Children, Lexington
     $1.1 million to seven plaintiffs less comparative fault as result of post-surgical staph infections by seven patients of one orthopodist.
  5. Gary and Anita Johnson, Pikeville
     $842,672 from tractor-trailer rear ending plaintiff; several injuries including bilateral rotator cuff and herniate disc.
  6. Andrew Ruzicho, Lexington
     $790,000 in employment retailiation/sexual harassment claim, including
     $250,000 for humiliation and $500,000 in punitives.
  7. Tom Herren, Lexington
     $746,380 in loss of toe in industrial accident.
  8. Steven O. Thornton, Bowling Green
     $578,336 in wrongful death case of Corvette driver killed by dump truck.
  9. Glenn Denton, Paducah
     $544,794 in MVA from C2 fracture and other symptoms.

These extracts were printed with permission of the Kentucky Trial Court Review. If you are interested in the summaries of all civil jury trials sent to you each month, then call (502) 326--9794 or 1-(877)313-1944. $150.00 per year (includes tax, shipping, and handling). 

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