Issue  2002/19 - Dec. 8, 2002   

 
 Kentucky Supreme Court - DEC. 8, 2002
  • No new decisions from the Supremes.  
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 Kentucky Court of Appeals - Published Decisions 
 KENTUCKY NONPUBLISHED OPINIONS - 

 
 Kentucky TRIAL COURT REVIEW - 6 KTCR 11, Nov 2002 
  • Auto Negligence - UIM carriers by the car load and mentioning of the "I" word at trial, p. 3
    This is an interesting case of the interplay of underinsured benefits and a virtual who's who of experts.  The accident involved car vs. motorcycle with the parties disagreeing on fault.  The plaintiff motorcyclist claimed the defendant car driver turned in front of him out of his driveway, and the defendant said the motorcyclist lost control on the gravel and hit his car while parked in the driveway.  Case involved the insured driver and three underinsured carriers who bifurcated the claim electing not to participate at trial.   Now the plot thickens:
    • The battle of the accident reconstructionists:
      • Defendant hires Jerry Pigman, Lexington saying the car's turn was proper
      • Plaintiff counters with one of the state's premier accident reconstructionists, Vince Sayre, saying no way it could've happened that way.
      • Jury apparently agreed with Vince - apportioning fault against plaintiff (80/20)
    • The battle of the shrinks - or close quarters on closed head injuries:
      • Plaintiff hires Dr. Granacher of Lexington saying no malingering here - the symptoms are real.
      • Defendant hires Dr. David Shraberg, Lexington, for an IME saying these sort of head injuries usually get better, not worse, over time.
      • Jury apparently agreed with the G-man (Granacher) awarding $248,383 less 20% for apportionment.
    • But here comes the interesting part as one of the UIM carriers attorneys who elected to hide and wait (Dale Golden, Lexington for Progressive Northern) goes head to head on  Granacher focusing on remarks made by Granacher at a conference where he called litigation a game and compared to billing based on the thickness of the medical records.
      • Although the UIM carriers wished to hide, Golden's cross-examination was considered participation with the insurer's resultant identification.  Oops.  Talk about asking one question too many on cross!
    • Jury awarded $248,313 prior to apportionment.  Note plaintiff did not get all of his claimed medicals and wages.
    • Post-trial motions sound as if everyone was trying to put mercury back in the thermometer, but alas the deed had been done.
      • Defendant driver claimed among other errors that the judge botched the UIM issues.
        • Progressive did not participate, and therefore should not have been identified to the jury.
        • Plaintiff's attorney told the jury not to worry about a large verdict since insurance would pay it.
        • The mention of the "i" word resulted in an excess verdict.
        • Following the defendant's lead, came the three insurers crying foul.
      • Plaintiff's attorney held his course
        • First, the insurer's elected not to participate and had no standing to object.
        • Second, Progressive did participate by cross-examining Dr. G at the deposition which was read to the jury at trial.
        • Third, insurance was mentioned only to counter the damage caused by the defendant's attorney who argued not to award a verdict so high that it would take ten years to pay.
    • Post-script
      • Judge overruled defendants' motions.
      • Case is on appeal.
      • Plaintiff has now sued his UIM carriers for bad faith.
    • The Players:
      • Plaintiff lawyer - Don Piscano, Lexington
      • Defendant driver's lawyer - Caywood Metcalf, Lancaster
      • UIM Lawyers - Progressive Northern (Dale Golden, Lexington); Kentucky Farm Bureau and State Farm (not identified in the KTCR).
    • Some of my thoughts for what it is worth and no cases to back me up.
      • The defendant has a right to a trial free of the mention of insurance.  He was sued out of tort, and the plaintiff's UIM claim may sound of tort but it is a contract claim.  Mentioning the UIM carrier throws the skunk into the jury box - the defendant has insurance.  The Defendant is the one ultimately responsible and has to pay any verdicts in excess of his/her liability policy (be it to the plaintiff or to the UIM carriers).  If so, then why should the plaintiff be allowed to waft the insurance perfume throughout the trial when it's his/her own insurance.  
      • If you're going to hide, then don't sneak a peek into the trial.  Discovery is discovery, but trial depositions are the trial.  If asking questions of the witness on the stand constitutes participation at trial, then the deposition used for trial is no different.  Discovery depositions of the parties and witnesses are a different matter, but you do run the risk.  
      • If the UIM carrier elects to hide, then enter an order clarifying what can and cannot be done.  However, being bound by a verdict does not mean you have no standing to raise any legal issues.  What happens if the defendant rolls over?  Coverage issues?  Errors by the plaintiff?
  • The Agony of De Feet Results in a DeFense Verdict in Med-Mal Claim, p. 9
    Plaintiff alleged substandard podiatry care resulted in a permanent foot injury.  51 year old nurse complained of chronic hammertoes, and Dr. Unroe attempted three repair surgeries, followed by more surgeries after infections.  Defendant's toe expert was subjected to a discovery deposition, but updated his report 11 days before trial and thus a motion to strike same by Plaintiff's attorney.  Overruled by Judge Conliffe, and the defense expert's testimony stood toe to toe with Plaintiff's expert witness.  Defense verdict resulted - no deviation from standard of care.
    • Defendant Doctor - Dr. Bradford Unroe, Louisville
    • Defendant Expert - Dr. Gerald Yu, Ohio
    • Plaintiff Expert - Dr. Stephen Weissman, PA (and patholigist Dr. J. Snyder, Louisville)
    • Plaintiff's attorney - Erwin Sherman
    • Defendant's attorney - John F. Parker
    • Commentary on the CR 26 disclosures
      • J. Confliffe ruled the disclosure defective but no motion to compel made.
        • How do you compel a proper disclosure after a defective disclosure?  Usually this pops up when the attorney provides only the medical records or an incomplete report such that you should be able to limit the testimony to that which has been disclosed.
        • But if a belated but complete and last-minute disclosure is made, then what are the remedies?  Well, LaFleur v. Shoney's recently ruled that there is no need to compel disclosure of CR 8.01 damages may be insightful to damages but not experts. The remedy is not compelling the information, but striking testimony if the information is incomplete.  We no longer have trial by ambush (or do we?).  In any event, it would seem the remedy would be striking the 'new' information or a trial continuance.  KTCR referred to LaFleur, but the analogy falls short.
  • Myofascial Pain Syndrome from rear end MVA nets nothing 
    Oops.  I had the counsel wrong on this last week.  Mea culpa.  It's now corrected.
    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
    •  
  • 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 (KTCR 1-6; 11)
  • Issues 1-6 and 11.  Sorry, for the Swiss Cheese method, but if you want them all, buy em from KRCR at (502) 326--9794 or 1-(877)313-1944 for $150 per year.
  • 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. Robert Elliott and Joe Savage, Lexington (but case tried in Jefferson)
      $450,000 med mal  against Kosair's Hospital
    5. Matthew Troutman, Louisville
      $218,326 medical malpractice for doctor failing to stat page which was partially to blame for patient's death.
    6. Peter Perlman, Lexington & Timothy Lange, Louisville
      $218,137 for Mayor David Armstrong's myasthenia gravis from car accident.
    7. 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. Teddy L. Flynt, Stanton
      $3,666,500 in drunk driving fatality with only minimum limits UM benefits and unrepresented defendant showing up with a pass from the reformatory.
    2. James M. Gary & Frank Miller, Louisville
      $3,595,000 in maritime negligence case for industrial worker killed falling 20 feet into empty barge.
    3. Phil Stalnaker, Pikeville
      $2,004,700 in case where nurse fired, arrested and fighting to keep her license from off-hand remark abut Columbine.
    4. 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.
    5. 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.
    6. Gary and Anita Johnson, Pikeville
      $842,672 from tractor-trailer rear ending plaintiff; several injuries including bilateral rotator cuff and herniated disc.
    7. Andrew Ruzicho, Lexington
      $790,000 in employment retaliation/sexual harassment claim, including
      $250,000 for humiliation and $500,000 in punitives.
    8. Tom Herren, Lexington
      $746,380 in loss of toe in industrial accident.
    9. James D. Holliday, Hazard
      $632,384 from disputed head on crash with fuel truck and chronic soft tissue and concussive symptoms.
    10. Steven O. Thornton, Bowling Green
      $578,336 in wrongful death case of Corvette driver killed by dump truck.
    11. Glenn Denton, Paducah
      $544,794 in MVA from C2 fracture and other symptoms.

 

 NEWS - LOCAL AND AFAR

  • Former U.S. Attorney Joseph Famularo dies

  • Restaurateur Gavi dies at age 71

  • Henry pulled out of Medicare settlement
    Comment:  Why would a settlement be conditioned on the filing of a complaint after the settlement and an acknowledgement of liability and/or culpability in the release?  Most releases have a stipulation that the parties do not acknowledge liability which is specifically disputed.  Here the US had a chance to prosecute the case criminally but did not;  then had the opportunity to settle the case but insisted in adding gas to the fire with this language.  Politics?  Surely not.

  • 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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 TORT REFORM IN KENTUCKY?

On Dec. 6, 2002 (last Friday), the following bill was filed in the Kentucky Senate by Senate President David Williams.  It addresses 'tort reform' type issues in Kentucky.  This bill has also been the subject of a recent KATA Legislative Alert.  Click on BR 448 for a link to the bill itself at the LRC site maintained by the Commonwealth.

BR 448 - Senator David L. Williams (12/06/02)

     AN ACT proposing amendments to the Constitution of Kentucky relating to health care matters.
     Propose amending the Constitution of Kentucky to add a new section permitting the General Assembly to limit noneconomic damages, limit punitive damages, provide statute of limitations on actions, and require alternative dispute resolution in cases involving health care providers licensed or certified by the Commonwealth; amend Section 14 relating to access to the courts, 54 relating to prohibiting limits on damages, and 241 relating to the right to sue in death and injury cases, to conform; provide for submission to the voters in the normal manner.

If you want to see some other sites addressing tort reforms, check out the following:

 LIST MAINTENANCE