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KENTUCKY APPELLATE DECISIONS
October 20-24, 2003
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- Kentucky SUPREME COURT Decisions - 12
Decisions
PUBLISHED - Oct. 23, 2003
| AOC LINKS |
SUMMARIES OF DECISIONS |
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1999-SC-000259-MR.pdf
Size: 2702 kb
Date: 10/16/2003
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GARLAND
V. COM.
CRIMINAL - Death Penalty
In 4-3 opinion, SC affirmed convictions and
death sentence for 3 counts of murder. Majority rejected
Defendant's 39 claims of error. Dissent stated they
would reverse due to admission of irrelevant evidence
and evidence of prior bad acts in violation of KRE 404. |
2001-SC-000813-DG.pdf
Size: 1493 kb
Date: 10/16/2003
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MASON
V. CITY OF STERLING
MUNICIPAL LIABILITY, SEWER SYSTEM COMPONENTS
This is a wrongful death
action against the city and private landowners when a
child drowned when floodwaters swept him through
submerged and non-visible storm sewer system.
Summary judgment was reversed and remanded for fact
questions on city's knowledge of runoff, met duty to properly maintain sewer system, and whether city's crushed catch basin pipe contributed to floodwaters on private property where child was sucked into sewer
system. Fact questions also existed as to whether property owner
had reason to know of child trespassers and attractive
nuisance. |
2001-SC-000830-DG.pdf
Size: 542 kb
Date: 10/16/2003
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SIXTY-EIGHT
LIQUORS V. COLVIN
NEGLIGENCE, DRAM SHOP, ALCOHOL SALES LIABILITY
Wrongful death action against liquor store
claiming store sold alcohol to minor and was therefore
responsible for decedent's injuries and death from
minor's car accident. The Supreme Court,
held the estate had valid claim against liquor
store and the liquor store had right of indemnity from minor's estate relative to claims made by injured third persons against
liquor store (dram shop liability). |
2001-SC-000870-MR.pdf
Size: 431 kb
Date: 10/16/2003
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TAYLOR V. COM.
CRIMINAL - Directed Verdict
SC reversed Defendant's
convictions for manufacturing methamphetamine,
driving on DUI suspended license, and fleeing 1st
degree.
TC erred when it sua sponte directed
a verdict of guilty for the Commonwealth on the
charges of driving on a DUI-suspended license
and fleeing police. "It is never proper for a
trial court to direct a verdict of guilty where
there is a plea of not guilty, despite the fact that
the evidence of his guilt may be convincing and
wholly uncontradicted. Commonwealth v. Durham
, Ky., 57 S.W.3d 829 (2001). See also Sullivan
v. Louisiana , 508 U.S. 275, 113 S .Ct. 2078,
124 L.Ed .2d 182 (1993). No principle is more
fundamental and the case law on this point is not
distinguishable by the fact that the defendant
testified in his own defense and admitted his guilt.
Defendant did not possess all of
the chemicals or equipment for manufacturing
methamphetamine, and therefore, was entitled to
a directed verdict on this charge.
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2001-SC-00890-MR.pdf
Size: 2319 kb
Date: 10/16/2003
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BEATY V. COM.
CRIMINAL - Due Process; Double Jeopardy
SC affirmed Defendant's convictions
and sentences for DUI, trafficking in marijuana, and
possession of drug paraphernalia - 2nd offense,
but reversed and remanded for a new
trial Defendant's convictions of manufacturing
methamphetamine, possession of a controlled
substance in the first degree, and possession of
anhydrous ammonia in an unapproved container with
the intent to manufacture methamphetamine.
(1) no reversible error when TC
allowed a prosecution witness to testify despite the
untimely production of the witness's statement in
violation of RCr 7.26; (2) there was sufficient
evidence to convict Defendant of
"knowingly" manufacturing methamphetamine;
(3) error in jury instruction re: manufacturing
methampheta- mine and proof of scienter not
preserved for review; (4) however, TC
failed to allow Defendant to present his
defense that the crime was committed by another
person, thereby violating his right to due process;
(5) jury instructions for manufacturing
methamphetamine and possession of a controlled
substance in the first degree violated
double jeopardy; and (6) Defendant failed
to preserve issue concerning allegation that TC
failed to properly address the jury's error in
returning verdicts sentencing him for both a first
and second offense of possession of drug
paraphernalia.
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2002-SC-000117-DG.pdf
Size: 1271 kb
Date: 10/16/2003
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BELL
V. COM.
CRIMINAL - Fleeing & Evading
SC reversed Defendant's conviction for 1st
Degree Fleeing and Evading. The evidence
presented at trial was in sufficient to support a
finding that Defendant's flight created a
"substantial risk of serious physical injury or
death" that will support liability under KRS
520.095(1)(b)(2). Accordingly, Defendant was
entitled to a directed verdict on this charge. This
decision provides an in-depth examination of the
legislative history of the statute. |
2002-SC-000372-MR.pdf
Size: 1677 kb
Date: 10/21/2003
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BISHOP V. CAUDAL
CRIMINAL - Writ of Prohibition; Competency
Evaluation
In 5-2 decision, SC granted writ of
prohibition requested by Defendant concerning
Commonwealth's motion for independent competency
evaluation. SC held that an independent
examination by the Commonwealth would be warranted
if the Defendant were asserting a defense of
insanity or mental illness; however, such an
examination solely for the purpose of ascertaining
competency to stand trial is not authorized by the
Kentucky Revised Statutes or our Rules of Criminal
Procedure. " The inquiry into a
defendant's competency to stand trial is very
different and distinct from an inquiry into whether
the defendant is criminally responsible for the acts
with which he is charged."
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2002-SC-000405-MR.pdf
Size: 358 kb
Date: 10/16/2003
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BURKHART
V. COM.
CRIMINAL
SC affirmed Defendant's convictions and
sentence for criminal mischief and PFO 1. TC did
not abuse its discretion or create undue emphasis
by permitting slow motion replay of video or letting
the jurors assemble closely around the video monitor.
Both acts merely allowed more careful observation of
the events depicted on the surveillance video, and
were but an extension of what the jury could have done
for itself within the confines of the jury room. |
2002-SC-000455-WC.pdf
Size: 1216 kb
Date: 10/16/2003
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GARRETT
MINING CO. V. NYE
WORKERS COMP, REOPENED CLAIM
Although substantial evidence supported determination of total occupational
disability in reopening of a previous award of benefits to workers' compensation claimant, which increased the previous award of 50% permanent partial disability benefits to 100% total disability
benefits, the ALJ exceeded his authority by increasing workers' compensation award in response to a petition for
reconsideration and cannot change apportionment of
causation established in original award due to res
judicata. SC affirmed in part, reversed in part. |
2002-SC-000462-DG.pdf
Size: 290 kb
Date: 10/16/2003
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HUTTON
V. HUTTON
DIVORCE, Maintenance Reinstatement
SC overruled McCord v.
McCord, Ky.App., 558 S.W.2d 624 (1977) and held remarriage that ends in annulment terminates a former spouse's obligation to pay future maintenance, where the parties' separation agreement does not provide otherwise.
Commentary: The follows
the rule that you can't put mercury back in the
thermometer. Maintenance ended on remarriage,
and annullment of the remarriage does not put spouse
in status quo ante in relation to the remarriage.
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2002-SC-000544-MR.pdf
Size: 446 kb
Date: 10/16/2003
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SPEARS V. COM.
CRIMINAL - Double Jeopardy
SC affirmed Defendant's convictions and 60
year sentence following guilty plea to two counts of
first-degree robbery, one count of first-degree
rape, and one count of first-degree burglary.
TC did not abuse its discretion in denying Defendant's
motion for a continuance to allow for the
preparation and submission of an alternative
sentencing plan. Defendant was not eligible
for probation, and therefore, granting a continuance
would have been an act of futility.
Next, Defendant waived any double jeopardy claim
concerning the two counts of robbery by pleading
guilty.
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2002-SC-000699-DG.pdf
Size: 2591 kb
Date: 10/22/2003
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BOARD
OF TRUSTEES OF JUDICIAL RETIREMENT SYSTEM V. ATTORNEY
GENERAL OF COM. OF KY
GOVERNMENT RETIREMENT, LEGISLATION
SC held that that amendment
to retirement system regarding the assumed values for
pensions purposes which was enacted in contravention to procedural rule requiring an actuarial analysis did not render amendment
invalid. However, the amendment was void for vagueness as it was intentionally
unintelligible and was an unconstitutional delegation of legislative power to the executive branch. |
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- Kentucky SUPREME COURT Decisions
NOT TO BE PUBLISHED - None
| AOC LINKS |
SUMMARIES OF DECISIONS |
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2001-SC-000353-MR.pdf
Size: 1545 kb
Date: 10/16/2003
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MCGOFFNEY
V. COM.
CRIMINAL
SC affirmed Defendant's convictions and 35 year
sentence for
murder and tampering with physical evidence. (1)
there was insufficient evidence to support
contention that Defendant received ineffective
assistance of counsel because his trial attorney had a
conflict of interest; (2) police officer's reading
from a police report containing hearsay was harmless
error; (3) there was no prosecutorial misconduct in the
closing argument; (4) there was sufficient evidence to
convict him of tampering with physical evidence; and (5)
KRS 439.3401(3) is not unconstitutional. "We
affirm, but reiterate in accordance with Hughes v.
Commonwealth, Ky., 87 S.W.3d 850 (2002), that
Appellant will be eligible for parole after serving
twenty years of his sentence." |
2001-SC-000457-MR.pdf
Size: 1645 kb
Date: 10/22/2003
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BERRY
V. COM.
CRIMINAL
SC affirmed Defendant's convictions and life
sentence without parole for 25 years for murder,
tampering with physical evidence, first-degree
stalking, and two counts of violating an emergency
protective order (EPO).
(1) Defendant was not entitled to a dismissal
with prejudice on double jeopardy grounds after his
first trial resulted in a mistrial because a
Commonwealth's witness violated an in limine order;
(2) Defendant was not entitled to a second
mistrial because of testimony by a Commonwealth's
witness that violated a discovery order. TC's
admonition cured any error; (3) TC did not err in
refusing to strike three jurors who had prior
exposure to domestic violence; (4) no reversible
error in allowing the Commonwealth to introduce the
videotaped testimony of two witnesses without proving
their unavailability; (5) no error in allowing a
government witness to testify that the victim's
mother suffered from chest pains following the murder;
and (6) the instruction on first-degree manslaughter
should not have required the jury to find the
presence of extreme emotional disturbance. |
2001-SC-000570-MR.pdf
Size: 1165 kb
Date: 10/16/2003
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MADDING V. COM.
CRIMINAL
SC affirmed in part and vacated in part
Defendant's convictions and sentence for possession
of anhydrous ammonia in an unapproved container,
manufacturing methamphetamine, wanton endangerment
in the first degree, and of being a persistent
felony offender in the first degree. (1)
TC did not err by refusing to suppress his
written confession. " Generally speaking,
no constitutional provision protects a drunken
defendant from confessing his crimes. The fact
that a person is intoxicated does not necessarily
disable him from comprehending the intent of his
admissions or from giving a true account of the
occurrences to which they have reference." (2)
TC properly admitted evidence, albeit for the wrong
reason, that Defendant's blood sample tested
positive for controlled substances; (3) Defendant
was entitled to a directed verdict on the
charge of manufacturing methamphetamine;
(4) TC did not err in failing to dismiss anhydrous
ammonia conviction on double jeopardy grounds; (5)
there was no "manifest injustice"
resulting from the trial court's failure to comply
with KRS 532.055(2), or instructing the jury to
recommend whether sentences should run
concurrently or consecutively; and (6) TC did not
err in refusing to declare KRS 218A.1432(1)(b)
unconstitutional.
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2001-SC-001010-MR.pdf
Size: 561 kb
Date: 10/21/2003
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MILLER
V. COM.
CRIMINAL
SC affirmed Defendant's convictions and 20
year sentence for 2 counts of Manslaughter 2nd.
Defendant was not denied his constitutional right to a
fair trial due to improper comments made by the
prosecutor during closing argument in the guilt phase
of the trial. The Commonwealth was properly
allowed to present testimony from the mothers of both
victims as victim impact evidence during the penalty
phase of his trial. |
2002-SC-000097-MR.pdf
Size: 430 kb
Date: 10/17/2003
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JACKSON
V. COM.
CRIMINAL
SC affirmed Defendant's convictions for
murder and first-degree wanton endangerment, but case
remanded for new sentencing. Failure to
comply with subsection (2) of RCr 9.54 prohibited
appellate review of claimed error in the jury instructions. Presence of teddy bear for short
period of time with witness did not create
prejudice sufficient to warrant mistrial. TC
erred by imposing a sentence of life without the
benefit of probation or parole for twenty-five years
given the Commonwealth did not file notice of an
aggravator or introduce any proof of such during the
penalty phase that would authorize the imposition of
aggravated punishment. |
2002-SC-000209-MR.pdf
Size: 796 kb
Date: 10/16/2003
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HURT
V. COM.
CRIMINAL
SC affirmed Defendant's convictions and life
sentence for 1st Degree Sodomy and 1st Degree Sex
Abuse. TC did not err by
finding the victim competent to testify at trial.
TC properly denied Defendant's motions for a
directed verdict and for a judgment
notwithstanding the verdict. Commonwealth's
attorney did not commit prosecutorial misconduct in
her closing argument. |
2002-SC-000293-MR.pdf
Size: 550 kb
Date: 10/17/2003
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SMITH
V. COM
CRIMINAL
SC affirmed Defendant's conviction and life
sentence for wanton murder. Defendant was not
entitled to directed verdict. Defendant waived
any objection to jury instruction concerning Extreme
Emotional Disturbance. TC did not err in
permitting prior bad act evidence under KRE 404.
No error in admission of photograph. |
2002-SC-000378-MR.pdf
Size: 428 kb
Date: 10/16/2003
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BOWDEN
V. COM
CRIMINAL
SC affirmed Defendant's convictions and 40
year sentence for
kidnapping, first-degree sexual abuse, resisting
arrest and being a second-degree persistent felony
offender. TC properly refused to dismiss the kidnapping charge pursuant to
KRS 509.050. The
restraint used in this case clearly exceeded the
restraint usually incident to first-degree sexual
abuse. |
2002-SC-000482-MR.pdf
Size: 530 kb
Date: 10/17/2003
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BRUCE
V. COM.
CRIMINAL
SC affirmed Defendant's convictions and
30 year sentence following guilty pleas to criminal
attempt to commit murder, first-degree robbery, and
theft by unlawful taking over $300. TC did
not fail to hold a competency hearing as mandated by
KRS 504.100. Defendant's guilty plea was knowingly,
voluntarily, and intelligently made. |
2002-SC-000600-MR.pdf
Size: 450 kb
Date: 10/17/2003
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REYES
V. COM
CRIMINAL - EED Instruction
SC affirmed Defendant's convictions and life
sentence for murder and tampering with physical
evidence. Any objection to TC's
instruction on extreme emotional disturbance
(EED) was not preserved, and any error was not
palpable. Defendant was not entitled to a
directed verdict on the tampering with physical
evidence charge. Prior bad act testimony was
properly admitted under KRE 404. |
2002-SC-000774-MR.pdf
Size: 938 kb
Date: 10/16/2003
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KENTUCKY
FARM BUREAU MUT. INS. CO. V. HOPPER, JUDGE
DISCOVERY, PRIVILEGE, TRADE SECRETS, CONFIDENTIALITY
Former KFBM employee brought action against
KFBM for age discrimination, breach of contract, and unconscionability, and claimed unpaid
commissions and moved to compel KFBM to disclose document which detailed program which allegedly provided the basis for former employee's termination.
SC held former employer was required to produce document, despite claim that document contained trade secrets.
SC believed "the trial court properly addressed the issue and took appropriate account of
[employee's] entitlement to discovery and Farm Bureau's entitlement to protection from oppressive disclosure of confidential
information" and affirmed the Court of Appeals' denial of the writ of prohibition. |
2002-SC-000826-WC.pdf
Size: 413 kb
Date: 10/17/2003
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RAWL
SALES AND PROCESSING CO. V. WOLFORD
WORKERS COMP
SC affirmed Workers Comp Board's
award of enhanced partial disability benefit based upon physical and psychiatric changes
caused by work-related injury concluding claimant gave
timely notice of psychiatric injury and just because
claimant still did his job after being injured did not
mean continued to be physically capable to do the job
by the time his claim was decided. |
2002-SC-000852-MR.pdf
Size: 859 kb
Date: 10/22/2003
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COM.
V. RYAN, JUDGE & JAMES (REAL PARTY IN INTEREST)
CRIMINAL - Writ of Prohibition
SC affirmed CA's partial grant of writ of
prohibition against Jefferson Circuit Judge Stephen
Ryan. You may have read about this high profile
dispute involving the Jefferson County Commonwealth's Attorney office, Jefferson County
Circuit Court, and a local attorney and his ex-wife
(who works for the Jefferson County Attorney's
Office). Judge Ryan properly disqualified an
Assistant Commonwealth's Attorney, but improperly
disqualified the entire office. |
2002-SC-000856-MR.pdf
Size: 350 kb
Date: 10/17/2003
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LONDON
V. COM.
CRIMINAL
SC affirmed Defendant's convictions and 20
year sentence for
Robbery in the First Degree (KRS 515.020) and for the
status offense of Persistent Felony Offender in the
Second Degree (KRS 532.080). Defendant was not
entitled to a directed verdict. Defendant waived
objection to improper bolstering testimony by police
officer and testimony did not create palpable error. |
2002-SC-000912-WC.pdf
Size: 457 kb
Date: 10/17/2003
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WHITE
V. KRIS ELECTRIC MANUFACTURING INC.
WORKERS COMP
SC held claimant's post-award motion for change in disability
alleging his medical condition had worsened was untimely
filed and properly dismissed. The four-year statute of limitations
under KRS 342.125(8) for reopening a workers' compensation award applied to claimant's motion for change in
disability, and none of the exceptions applied to recipients of total disability award who returned to work or where period of total disability occurred within period of partial disability award. |
2002-SC-000929-WC.pdf
Size: 503 kb
Date: 10/17/2003
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J.
CRESS COAL CO. V. HALL
WORKERS COMP
SC would not apply 12/12/96 version of KRS
342.125(1)(d) for reopening claims in a hearing to
reopen a claim filed after that date for a shoulder
injury incurred on 4/6/95 with a 25% occupation
disability awarded based upon
the earlier law. |
2002-SC-000999-MR.pdf
Size: 399 kb
Date: 10/17/2003
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HUNT
V. COM.
CRIMINAL
SC affirmed Defendant's convictions and 50
year sentence for Sodomy 1st and Sex Abuse 1st.
Evidence of prior bad acts was not properly noticed
pursuant to KRE 404(c); however, issue was not
preserved for review and error was not palpable.
TC properly allowed introduction of divorce order by
Commonwealth. |
2002-SC-001070-MR.pdf
Size: 550 kb
Date: 10/17/2003
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WENTWORTH
V. COM.
CRIMINAL
SC affirmed TC's order denying Defendant's
motion to set aside his guilty plea to various felony
offenses. TC properly used a clear and
convincing standard in determining the Defendant
violated the terms of the plea agreement and properly
imposed 20 year sentence. |
2002-SC-001072-MR.pdf
Size: 514 kb
Date: 10/17/2003
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FITTS
V. COM.
CRIMINAL
SC affirmed in part and vacated in part
Defendant's convictions and 30 year sentence for two
counts of trafficking in a controlled substance in the
first-degree, second offense. (1) No Batson
violation when the TC allowed the Commonwealth to
strike several African-Americans from the jury panel
based on information obtained outside of voir dire;
(2) Harmless error in TC's refusing to allow a
defense witness to testify based on a violation of RCr
9.48 without first holding a hearing to determine if
the violation was prejudicial; (3) however, case
remanded for new sentencing because the jury was
improperly instructed to find Defendant guilty of
trafficking in a controlled substance in the
first-degree, second offense, without first requiring
the jury to make a finding that Appellant was a
subsequent offender. |
2003-SC-000002-WC.pdf
Size: 616 kb
Date: 10/17/2003
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WHITTAKER
V. GLASS
WORKERS COMP, Electronic filing and statute of
limitations
SC held claimant's filing to
reopen claim was untimely and the Department of Workers' Claims'
interpretation of its regulations that receipt of the actual letter requesting leave to reopen claim, rather than earlier fax
transmission of the letter, established date of filing, for purposes of statute of limitations, was neither clearly erroneous nor inconsistent with Department's regulations. |
2003-SC-000074-WC.pdf
Size: 342 kb
Date: 10/17/2003
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CHARLES
CLEARING CONTRACTORS V. WEBB
WORKERS COMP
SC affirmed ALJ's determination that a 1992 settlement accurately reflected the claimant's occupational disability at that time
which awarded claimant a permanent total disability at
reopening and rejected the employer's position that the claimant's actual disability at settlement was total and, therefore, that there could be no greater disability at reopening.
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2003-SC-000121-MR.pdf
Size: 507 kb
Date: 10/17/2003
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BROWN,
M.D. V. J. CLAYTON & GEORGE AND KNORPP
MEDICAL NEGLIGENCE, EXTRAORDINARY RELIEF
Two separate medical negligence claims for
cosmetic surgery were consolidated on plaintiff's
motion by Judge Clayton. Both parties allege that
their doctor was overly aggressive with the use of the laser and failed to adequately inform each of them of the risks involved with such a
procedure and would be using the same expert witness
at trial. Doctor claimed he would be prejudiced
and filed writ of prohibition objecting to
consolidation, but SC denied his writ holding he had
an adequate remedy through appeal.
"In order to prevail upon an application for a writ of prohibition, a petitioner in the circumstances at bar must first establish that he or she has no adequate remedy by appeal or otherwise, and that he or she would suffer "great and irreparable injury" if the writ is denied.
Bender v. Eaton, Ky., 343 S.W.2d 799, 801 (1961). Appellant contends that he does not have an adequate remedy by appeal because the trial court's order of consolidation was not a final and appealable order adjudicating the rights of the parties pursuant to CR 54.01."
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2003-SC-000158-WC.pdf
Size: 483 kb
Date: 10/16/2003
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UNITED
PARCEL SERVICES V. GOUGH
WORKERS COMP
SC held objective medical testimony supported determination that claimant had an
impairment under AMA Guidelines and substantial evidence
was found in the record to support finding that claimant could not compete in competitive economy. |
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