Issue  2002/18 - Dec. 1, 2002   

 
 Kentucky Supreme Court - DEC. 1, 2002
  • No new decisions from the Supremes over the holidays.  However,  I do have five old ones from that prolific period last week that need to be summarized for those patient few.
  • Civil Procedure
    • Roman Catholic Diocese of Lexington v. Noble
      2002-SC-000659-MR.pdf Date: 11/18/2002  
      Courts have inherent authority to deny access to its files.  Trial court had authority to seal stricken portions of the records and files, but will balance the power to seal with the public's right to access those files.  First Amendment right of access was also addressed. "Strike or stricken from the record" does not mean simply to give the words or documents no legal effect, but allows the court to expunge or remove them from the file.  Issue was not mooted by fact that newspaper published stricken documents on its front page.
  • Criminal Law
  • National Guard
    • Jones v. Crittendon
      2001-SC-000761-MR.pdf Date: 11/19/2002
      Dismissed a soldier's Civil Rights claims against Kentucky National Guard alleging discrimination and retaliation since presented a federal question, federal preemption, nonjusticiable (power to regulate and run the military vests with President and Congress and not the courts); Feres doctrine's limitations on soldiers suing solders acting incident to service.
  • Workers Compensation
    • McCreary Bd. of Ed. v. Begley
      2002-SC-000264-WC.pdf Date: 11/18/2002 
      Rejected "mailbox rule" regarding filing of claims (resubmitted claims) and failed to meet statute of limitations.
    • Curry v. Toyota
      2002-SC-000288-WC.pdf Date: 11/18/2002 
      $15,000 cap on attorneys fees applies to both settling with employer and pursuing claim against Special Fund.
  • November 2002 Advance Sheets
  • October 2002 Advance Sheets
  • Want to check out a recent advance sheet by date decision rendered?  
    Go to the AOC Site at KyCourts.Net ; click on searchable opinions; and enter the following search criteria examples:
    • For decisions rendered in October 2002 - 'October **, 2002' without the quotation marks.
    • For a particular date, then just enter the date 'October 23, 2002'.
  • Did you know circuit court dockets are available on line?  Click here.
  • How about editable AOC forms (you'll need Adobe Acrobat Reader ver 5)?  Click here.
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 Kentucky Court of Appeals - Published Decisions 
 KENTUCKY NONPUBLISHED OPINIONS - 
  • None This Week.  
  • IT'S LIKE GETTING A CLE IN YOUR MAIL BOX.
    THESE NON-PUBLISHED CASES GIVE YOU AN IDEA WHAT YOUR OPPONENTS     ARE TRYING OUT THERE TODAY. 
    These extracts were printed with permission of the Kentucky Appellate Non-Published Opinions. If you are interested in the full text of all     the opinions, sent to you bi-monthly, then call (502) 326--9794 or 1-(877)313-1944. $130.00 per year (Ky residents pay 6% sales tax - $137.80).
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 Kentucky TRIAL COURT REVIEW - 6 KTCR 7, July 2002 
  • Med-Mal Defense Verdict in Failure to Diagnose, p. 1
    Several doctors failed to diagnose 38 year old housewife's cancer of the lymph nodes; ER doctors and internist chalked it up to psychological problems.  After 10 months of being told she was crazy, she found out the real diagnosis and that it had spread - she died 13 months later leaving husband and children.  A variety of defendants were targeted who treated a healthy housewife with no history of mental problems as if she had mental problems.  Prior to trial, plaintiff/estate (including consortium claims for husband and children) had settled with three defendants (Dr. George Stacy (ER), Dr. Karen Head and Dr. Kenneth Davis (post misdiagnosis psychiatrists).  Two other doctors were in for apportionment purposes (Dr. Theodore Ivanchak (ER) and Dr. Charles Smith (ER).  Which doctors were left?  Dr. Warren Kemper (internist); Dr. Robert Ellis (internist) and Dr. Lawrence Mudd (psychiatrist).  Psychiatrists were faulted for failure to pursue an organic component of the problems and therefor did an incomplete exam of the patient.  The settlement was unknown to the jury.  Dr. Rex Lagerstrom, Louisville Internist, testified for the Plaintiff criticizing Ellis and Kemper for their incomplete exams.  Mr. John Tierney did a vocational analysis since the decedent was college educated. 
    • Plaintiff experts: Dr. Rex Lagerstrom (Louisville Internist); Dr. Myron Fribush (NY Internist); Dr. Robert Sadoff (PA psychiatrist); Dr. Rene Rubin (PA oncologist for causation); Dr. Howard Rosner (PA cardiologist and internist); Elissa Benedek and Beth Clark (psychology for children's claims); John Tierney (vocational expert)
    • Defendant experts: Dr. William John (Lexington oncologist); Dr. Peter Thurman (Louisville internist); Dr. John McDonald (NY oncologist); Dr. Chester Schmidt (Maryland psychiatrist); Dr. Suzanne Dundon (VA psychiatry).
    • Prior to suit - Dr. Stacy, Head and Davis had settled.
    • Damages?  Estate - $5 million; children- $2.5 mill each; husband - $500,000.
    • Settlement negotiations were spurred at trial after talking to the alternate juror - she had opinions regarding apportionment, fault and damages (millions).  Ellis and Mudd settled  for an undisclosed amount.
    • Verdict - zero - defense verdict.  Jury came back - all three (including Ellis and Mudd) had prevailed.
    • Lawyers
      • Plaintiff - Ann Oldfather; Lea Player.
      • Defendants - Tom Hectus (Kemper); Doug Fanrsley (Ellis); Greg King & Greg Cornett (Mudd).  Only one who did not settle and went with the jury was Hectus!
  • Auto Negligence - Mayor's Myasthenia Gravis Not Worth Mega Dollars, p. 2
    Mayor (for one term) David Armstrong claims bump by Bee Line Courier driver caused him to develop neurological disorder - myasthenia gravis.  Although Mayor Dave was initially ok at the scene, he later went to the ER and saw Dr. Smock who diagnosed Mayor Dave with a concussion and cervical strain.   Mayor later develops fatigue, slurred speech, facial paralysis and vision affects - the diagnosis is myasthenia gravis.  Case hinged on causation of the disorder.  
    • Plaintiff's treating doctors, John Melton and Michael Swenson, of Louisville, claimed the condition was dormant and was brought into disabling reality by the accident.
    • Defendant's experts - Dr. Barry Arnason (IL neurologist)(claimed no connection to MVA trauma)
    • Trial took a week.  Jury asked to questions (but got no answers) regarding definition of a preexisting condition and when was the lawsuit filed?  (I can see #1 not being answered but when suit was filed? Hmmmm).
    • Claimed damages?
      • Medicals were $288,235 (past) and $2,004,281 (future).
      • Impairment to labor and earn - $$833,392 (how does one factor in a political career?).
      • Suffering - $2.5 million
    • Verdict - $72,058 in medicals and $146,078 for suffering, and zero for impairment for a total award of $218,137.
    • Lawyers
      • Plaintiff - Peter Perlman (Lexington) and Tim Lange (Lou)
      • Defense - Mark Osbourn and Carol Petit; Hollis Searcy (all Louisville)
  • Myofascial Pain Syndrome from rear end MVA nets nothing
    Plaintiff struck from rear while moving on interstate (I-64) causing $2,200 in property damages. Fault was not an issue.  Both vehicles were moving approximately 45 mph when collision occurred.  
    • Plaintiff's treating doctors - Dr. Zack Stearns (ortho); Dr. Terry Davis (pain management).  Stearns treated her with PT; Davis did pills and TPI (trigger point injections) for MPS (myofascial pain syndrome).  Click her for more info on MPS - Merck Manual and another web site. or click here for a google search result!
    • Defendant had an IME with Dr. Harkess who indicated pre-existing pain and none of her symptoms were related to MVA (but were more psychological than physical).
    • Note - minor impact; pre-existing pain; and went to Dr. Davis when per Dr. Stearns she was 90% healed; not to mention possible drug-seeking behavior per guilty plea for obtaining Vicodin from Krogers.
    • Damages? $15,287 for past medicals and seeking $395,010 for future meds; Lost wages of $29,880; Impaired earning capacity of $563,078 (Mr. Tierney, vocational expert) but limited to $400,000.
    • Filed in state court, but moved to federal court.
    • Verdict - zero for each element of damages.
    • Lawyers
      • Plaintiff - Jeff Sampson
      • Defense - Doug Kemper
  • Jefferson County
    • Seven verdicts total
    • 4 med-mals; 1 bus accident; and 2 MVA
    • 6 of the 7 were defense verdicts; auto accident (Mayor Dave) had a $218,127 verdict.
    • Can't blame these on the summertime blues because the verdicts were in the spring, but the KTCR came out in July. 
       
  • 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). 

    For the complete "KTCR 2001 Year in Review" - not only do you get in a single copy all of the trial verdict summaries, but indexed by lawyer, region, county, and more, plus additional analysis of largest verdicts, most prolific lawyers, medical examiners, seat-belts, types of injuries, punitive damages, etc.  $185.00, includes tax, shipping and handling
     

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 THE BIG LIST - JURY VERDICTS IN KENTUCKY FOR 2002 (through July 2002)
  • 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 orthopedist.
    5. Gary and Anita Johnson, Pikeville
      $842,672 from tractor-trailer rear ending plaintiff; several injuries including bilateral rotator cuff and herniated disc.
    6. Andrew Ruzicho, Lexington
      $790,000 in employment retaliation/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.

 

 NEWS - LOCAL AND AFAR

  • I normally do not mention much about the news in this LawWire, but the legal system has been taking a bullet in Bullitt County.  The Courier-Journal did a feature entitled "Justice Delayed, Justice Denied".   Paper was a tad hard on Judge Waller, Michael Mann, but had some good things to say about Judge Larry Raikes in Nelson County.  For those who would like to peruse the on-line version, here are some links:

  • Here is a Law.com on-line article about jury verdicts now getting bigger.  Guess what?  Pikeville lawyer, Gary Johnson and his $271 million verdict was favorably mentioned.  
     

    • Click here for the article.
       

    • Here is an extract regarding one of Kentucky's own.  Kudos to Gary Johnson:
       
      Gary Johnson of Pikeville, Ky.'s Gary C. Johnson, recently helped a Kentucky burn victim win a $271 million suit against a gas company -- the state's largest-ever jury award. Johnson v. Equitable Resources Inc., No. 01-CI-00130 (Knott Co., Ky., Cir. Ct.). He also maintains that jurors know best when it comes to seeking justice against big business.

      "These juries are saying, 'Enough is enough, corporate America, it's time to be accountable,' " says Johnson. "If you don't let a jury of 12 decent people make these decisions, and leave it up to the government, it's not going to happen."

  • Friday, December 6 - “How to Find the Courthouse” for 7.5 CLE Hours (Speakers: Brian C. Edwards, Paul R. Schurman, Jr., David W. Son, Olu A. Stevens, and Wayne Wilson)

  • Chief Judge William P. Ryan, Jr. and his fellow District Court Judges invite all interested attorneys to attend an open discussion on District Court Practice and Procedures on Wednesday, December 11. The meeting will take place at the Hall of Justice, Courtroom 103, from 3:00 p.m. to 4:00 p.m.

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