COA: July 2, 2015 Court of Appeals Decisions (Minutes) (559-575); 17 decisions; 2 published)

Two published - was decedent married at time of his death? criminal jury and deliberations, unanimity

The Kentucky Court of Appeals announced 17 decisions  on July 2, 2015, with 2 of their opinions designated to be published.

Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.

Click here for all of a listing of the Kentucky Court Report’s posts of the weekly COA minutes(or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).  AOC version of this week’s decisions can be accessed by clicking here.

For the complete set of this week’s minutes listing all decisions (published and not to be published) with links to the full text of each at the AOC, the continue reading below the digested summaries of this week’s published cases.

Published appellate cases for  this week – July 2, 2015:

552.  Was decedent and wife married at time of death? COA said yes.
The Est. of Luther Royce Mills v. Shirley Mills
COA, Pub, 7/2/2015; Jefferson County; Affirming

J. LAMBERT, JUDGE: The Estate of Luther Royce Mills (Luther’s estate) appeals from the Jefferson Circuit Court’s September 13, 2012, order holding that Shirley Mills and Luther Royce Mills were married at the time of Luther’s death in October 2011. After Luther’s Last Will and Testament was submitted for probate, Shirley asked the trial court to rule on the issue of whether she and Luther were married at the time of his death. Both the trial court and the Jefferson Circuit Court ruled that the parties were still in fact married. After careful review, we affirm the ruling of the Jefferson Circuit Court.

564.  Criminal Law.  Unanimous Verdict, Deliberations
Jeffrey King v. Commonwealth of Kentucky 
COA, Pub. 7/2/2015, Madison County, Affirming

Selected not to be published decisions on tort, insurance and civil–

563.  School spanking; Imunity
A.(C. whose interest is represented by her parents) v. Darren Sparkman

568.  Nursing Home Arbitration, Wrongful Death
HBR Brownsville LLC v. Johnny Childress
COA, NPO, Edmonson County

The Appellants contend that all claims set out in the Appellees’ personal injury and wrongful death action against them are subject to an arbitration agreement signed by the Appellees and Elsie Lee Childress prior to her death, and that the Edmonson Circuit Court erred in concluding that the wrongful death claim is excluded from the agreement. We conclude that Ping v. Beverly Enterprises, Inc., 376 S.W.3d 581 (Ky. 2012), disposes of this matter in favor of the Appellees, by virtue of its holding that wrongful death claims belong to statutory wrongful death beneficiaries and not to the decendent’s estate. We also decline the Appellants’ invitation to advocate Ping’s reversal by the Kentucky Supreme Court. Accordingly, we AFFIRM the Order on appeal.

Download (MNT07022015.pdf, PDF, Unknown)

 

 

SC: Attorney Discipline, April 2, 2015 (none for month of March)

Michael R. McMahon, Karl Nelson Truman, James M. Cawood, Christopher G. Stewart, Michael R. McMahon, Clyde F. Johnson, Dennis Michael Ritchey, Michael LInden Meyers, Bethanni Forbush-Moss, Robert Horrell, Roderick A. Tejeda, Michael A. Hamilton, Charles H. Schaffner

Click here for prior pages from the Kentucky Court Report posting attorney disciplinary matters.

Disciplinary matters with links to the full text of the action are below:

KBA vs. Michael R. McMahon
Order Of Suspension From The Practice Of Law For 181 Days.

The Board found Respondent guilty of committing two of the four disciplinary infractions and recommended a 181-day suspension from the practice of law. Neither McMahon nor Bar Counsel has filed a notice for this Court to review the Board’s decision as allowed under Supreme Court Rule (“SCR”) 3.370(8). Moreover, and for reasons set forth more fully herein, we decline the opportunity to review the Board’s decision per SCR 3.370(9) and hereby adopt its recommended sanction.

KBA vs. Karl Nelson Truman
Order of public reprimand.

Recently, the Indiana Supreme Court publicly reprimanded Respondent for committing professional misconduct. Accordingly, this Court must determine whether to impose identical reciprocal discipline upon Respondent pursuant to Supreme Court Rule (“SCR”) 3.435.

The misconduct at issue in this disciplinary action arises from an employment contract Respondent required his new associate attorney to sign as a condition of his hiring. The contract included a “Separation Agreement” (the “Agreement”), which specified that in the event the employment relationship ended, the associate was prohibited from contacting, notifying, or soliciting the clients he obtained while working at Respondent’s law firm. Only Respondent had the luxury of notifying the clients of the associate’s departure. The Agreement further included a fee arrangement which highly deterred the associate from continuing to represent those clients.

The KBA’s motion to impose reciprocal discipline in the form of a public reprimand is granted.

James M. Cawood vs. KBA
Order of suspension from the practice of law for 1 year probated for 3 years with conditions.

Basis of suspension was for attorney’s apparent abandonment of client’s cause and refusal to refund unearned portion of his fees.  A bar complaint ensued. In another matter, attorney was overdrawn on his IOLTA Trust Account, and letters from bar counsel for explanation were returned not deliverable.  In mitigation, attorney presented mitigating factors of intense opiate addiction, rehabilitative services, and a supervision agreement with the Kentucky Lawyers Assistance Program.

Based on this mitigating evidence, and in light of similar discipline imposed for analogous misconduct, this Court finds that the consensual discipline proposed by Movant and agreed to by the KBA is appropriate. Therefore, Movant’s motion for a probated suspension from the practice of law is hereby granted.

KBA vs. Christopher G. Stewart
Order of Public Reprimand

The Board of Governors of the Kentucky Bar Association (“KBA”) recommends that this Court publically reprimand Christophe G. Stewart for violating Supreme Court Rule (“SCR”) 3.130-1.15 (safekeeping property) and 3.130-8.1(b) (knowingly failing to respond to a lawful demand for information from an admissions or disciplinary authority). Finding a public reprimand to be the appropriate discipline for Stewart’s misconduct, we grant the KBA’s motion.

KBA vs. Michael R. McMahon
Order Of Suspension From The Practice Of Law For 181 Days With Conditions.

The allegations of misconduct in this case, KBA File No. 22121, stem from the fact that McMahon was administratively suspended from the practice of law on January 23, 2013 for non-payment of dues. On July 22, 2013, he filed an application for restoration to membership. Part of that application is Question #10 asking whether the lawyer has complied with Supreme Court Rule 3.390, which requires notice of suspension or withdrawal to be sent to all clients. McMahon admitted that he had not done so.

KBA vs. Clyde F. Johnson
Order of Suspension From the Practice of Law for 5 Years With Conditions

The Board’s recommendation stems from three separate charges, all of which involve Johnson’s failure to perform any legal work for clients after entering into retainer agreements and taking retainer fees.  Curator represented the attorney in the disciplinary action.

Dennis Michael Ritchie vs. KBA
Order of Permanent Disbarment From the Practice of Law.
Attorney  was hired to handle custody matter, client died, and attorney kept unearned fee.  Grandparent later hired attorney to put $50,000 into account for grandson.  Instead attorney spent the $50,000 on himself, and when confronted, attorney borrowed money to pay it back.  Attorney pled guilty to possession of forged instrument and theft by deception.

KBA vs. Michael Linden Meyers
Order of Suspension From the Practice of Law for 30 Days Probated for 2 Years With Conditions.

KBA Inquiry Commission issued a four- count Charge against Respondent on October 4, 2013, in KBA File Number 21948. The Charge alleged violations of the following Rules of Professional Conduct: Count I, Supreme Court Rule (“SCR”) 3.130-1.3 (attorney must represent the client with reasonable diligence and promptness); Count II, SCR 3.130-1.4(a)(3) (attorney shall keep the client reasonably informed); Count III, SCR 3.130-•.4(a)(4) (attorney must promptly comply with reasonable requests for information); and Count IV, SCR 3.130-8.4(c) (attorney may not engage in conduct involving dishonesty, fraud, deceit or misrepresentation).

Bethani Forbush v. KBA
Order Of Suspension From The Practice Of Law For 61 Days Probated For 2 Years With Conditions.

Bethanni Forbush-Mossl (Moss) moves this Court to suspend her from the practice of law for sixty-one days, which suspension shall be probated for two years for the following admitted violations: failure to promptly comply with reasonable requests for information, Supreme Court Rule (SCR) 3.130(1.4)(a)(4); failure to deposit client’s refundable funds into an escrow account, SCR 3.130(1.15)(e); failure to keep client’s property separate from the lawyer’s property, SCR 3.130(1.15)(a); and failure to surrender property and fees upon termination, SCR 3.130(1.16)(d).

Robert L. Horrell vs. KBA
Order of suspension revoked with conditions.

Robert L. Horrell, KBA No. 33260, appeals his suspension from the Kentucky Bar Association (the KBA) for failure to pay his bar dues. The KBA asks this Court to grant Horrell’s appeal on the condition that he pay in full his bar dues for 2014-2015 along with any late fees and costs.

Roderick A. Tejeda vs. KBA
Order of suspension from the practice of law for 4 years with conditions.

Based upon his felony conviction of reckless homicide the Inquiry Commission issued a charge against Movant alleging violation of SCR 3.130- 8.4(b) for professional misconduct in committing “a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” Movant admits that he is guilty of the above ethical violation. As punishment, Movant requests a four-year suspension from the practice of law, retroactive to September 11, 2013 (the date of the automatic temporary suspension imposed upon his felony conviction), with the additional conditions that he continue ongoing monitoring by KYLAP and follow any recommendations made by that office, and that he be released from any supervision by Probation and Parole before reinstatement. ‘The KBA presents no objection to Movant’s proposed sanction.

Michael A. Hamilton vs. KBA
Order denying motion for reinstatement.

KBA vs. Charles H. Schaffner
Order of suspension from the practice of law for 180 days.

 

 

SC: Attorney Discipline February 2015 (no minutes or decisions in Jan. 2015)

Suzanne Prieur Land; Steven F. Claypoole: Daniel Warren James; Robert H. Hoskins and Nathaniel T. Pendleton

Click here for prior pages from the Kentucky Court Report posting attorney disciplinary matters.

Disciplinary matters with links to the full text of the action are below:

 

Kentucky Bar Association v. Suzanne Prieur Land
2014-SC-000300-KB
To Be Published Order of Suspension From the Practice of Law Until Respondent Demonstrates That Her Suspension From the Ohio Supreme Court Has Been Lifted

Land mishandled three estates and filed fraudulent amendments in each of them resulting in a felony conviction.  When the Ohio Supreme Court received notification of Land’s conviction, it imposed an interim felony suspension.  During the hearing on her suspension in Ohio, Land testified that, at the time of her misconduct, she was abusing alcohol and prescription anti-anxiety medication in order to deal with the stresses of work. The OLAP social worker testified that Land had undergone an assessment, and Land’s therapist testified about the treatment being provided to Land.

KBA vs. Steven F. Claypoole
Order of suspension from the practice of law for 6 months.

Claypoole failed to comply with the conditions of an earlier probation.  The bar moved for him to show cause, and he did not responde.

KBA vs. Daniel Warren James
Order of permanent disbarment from the practice of law with conditions.

James loss of license followed flagrant non-support convictions and five year prison sentence.

KBA vs. Robert H. Hoskins
Order of suspension from the practice of law for 60 days with conditions.

Hoskins was paid for work and did not do it.  Board unanimously recommends Hoskins: (1) be suspended from the practice of law for sixty days; (2) pay restitution to his former clients in the amount of $1,275.00; (3) attend the Ethics and Professionalism Enhancement Program (EPEP); and (4) pay all associated costs. Neither party filed a notice of review with this Court

KBA vs. Nathaniel T. Pendleton
Order of permanent suspension from practice of law.

Pendleton was suspended for not paying his dues and accepting fees and representing clients and make court appearances while suspended.  In another of those cases, he was terminated and did not return documents to the client.   In another divorce case, Pendleton took a fee, and falsified the petition.

COA: June 26, 2015 Court of Appeals Decisions (Minutes) (547-558); 12 decisions; 1 published)

One published decision dealing with harmless error for failure to do post conviction DNA testing. No tort, insurance civil law decisions.

The Kentucky Court of Appeals announced 12 decisions  on June 26, 2015, with 1 of their opinions designated to be published.

Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.

Click here for all of a listing of the Kentucky Court Report’s posts of the weekly COA minutes(or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).  AOC version of this week’s decisions can be accessed by clicking here.

For the complete set of this week’s minutes listed all decisions (published and not to be published) with links to the full text of each at the AOC, the continue reading below the digested summaries of this week’s published cases.

Published appellate cases for  this week – June 26, 2015:

554.  Criminal Law, Post conviction DNA analysis harmless error
Michael Peak vs. Commonwealth of Kentucky
COA PUB   6/26/2015, Opinion affirming Jefferson County

VANMETER, JUDGE: In 2013, the General Assembly greatly expanded those criminal defendants who could have access to post-conviction DNA analysis. In this case, we must determine whether the Jefferson Circuit Court erred in its determination that it did not have jurisdiction to decide Michael A. Peak’s motion for testing. While we conclude the Circuit Court did err, we nevertheless hold that such determination was harmless error under the facts of this case and therefore affirm.

Selected not to be published decisions on tort, insurance and civil – NONE

Download (MNT06262015.pdf, PDF, Unknown)

SC: June 11, 2015 Supreme Court of Ky Decisions (Minutes 66-82)

17 decisions; 8 published; 4 attorney disciplinary decisions published; and 6 motions for discretionary review (MDRs) granted

Supreme Court of Kentucky announced 17 decisions on June 11, 2015, with 8 Kentucky Supreme Court opinions designated for publication; 4 attorney/judicial ethics and disciplinary matters were announced;  and 6 motions for discretionary review were granted.

Click here for a list of all our posts on Supreme Court of Kentucky decisions posted east month as minutes.    Click here for a link to archived list of minutes posted at the Administrative Office of the Courts official web site.

Selected published decisions:

70.  Defense counsel’s ex-parte communications with injured plaintiff’s treating doctors
Stacey Caldwell vs. Hon. A.C.McCay Chauvin
SC, Published, 6/11/2015
6 motions for discretionary review were granted

Questions Presented:

While no law inhibits litigants from seeking ex parte interviews with the opposing party’s treating physicians, the disclosure of medical information during those ex parte meetings is controlled by HIPAA. Here the trial court failed to satisfy HIPAA but this writ was denied because ex parte disclosure was not authorized.

Here is the PDF with links to all of the decisions (published and not published), as well as the disciplinary decisions.

Download (MNT062015.pdf, PDF, Unknown)

COA: June 19, 2015 Court of Appeals Decisions (Minutes) (515-547; 33 decisions; 2 published)

Police officer get qualified immunity on use of canine dog; COA affirmed auto accident verdict shooting down multiple issues on appeal which contains a lot of black letter law on damages, medical bills, little damage to car, opening and closing, jury not bound to accept the testimony of witness, photographs showing little damage to car

Screen Shot 2015-06-24 at 12.49.19 AM

The Kentucky Court of Appeals announced 33 decisions  on June 19, 2015, with 2 of their opinions designated to be published.

Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.

Click here for all of a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).  AOC version of this week’s decisions can be accessed by clicking here.

For the complete set of this week’s minutes listed all decisions (published and not to be published) with links to the full text of each at the AOC, the continue reading below the digested summaries of this week’s published cases.

Published appellate cases for  this week – June 19, 2015:

529.  Criminal Law, Leaving scene of an accident,
Jeremy Gill vs. Commonwealth of Kentucky
Opinion vacating;  Butler County
Intentional collision not qualify as leaving scene of an accident. Directed verdict for defendant should have been granted.

544.  Criminal Law, Affirmed denial of motion to amend per RCr 11.42
Terry Melcher vs. Commonwealth of Kentucky
Opinion affirming;  Ohio County

Selected not to be published decisions on tort, insurance and civil

Accident and injury lawyers might find the following case of interest:

521.  Qualified immunity, Use of canine dog by police
Brian Luckett vs William Murrell
COA, NPO, 6/19/2015
Opinion reversing and remanding; Jefferson County

CLAYTON, JUDGE: This is an appeal from a decision of the Jefferson Circuit Court denying summary judgment to the Appellant, Brian Luckett, on the issue of sovereign immunity. Based upon the following, we reverse the decision of the trial court and remand the case.  The actions by Officer Luckett did not meet the burden of bad faith under Yanero. Murrell did not show that Officer Luckett’s use of Willie at the scene was “with the malicious intention to cause a deprivation of constitutional rights or other injury….” Haugh v. City of Louisville, 242 S.W.3d 683, 686 (Ky. App. 2007 ) (quoting Yanero, 65 S.W.3d at p. 523). Consequently, it was in error for the trial court to deny Officer Luckett’s Motion for Summary Judgment on the issue of qualified immunity. We, therefore, reverse this action and remand to the trial court for entry on an order granting Luckett’s motion for summary judgment of qualified immunity.

533.  Motor vehicle accident, damages, property damage without expert testimony
Alisha Williams Wallace vs. The Zero Company
COA NPO 6/19/2015
Opinion Affirming; Jefferson County

DIXON, JUDGE: Appellant, Alisha Williams Wallace, appeals from a jury verdict and judgment finding Appellee, Gregory McAuliffe, solely responsible for a motor vehicle accident but only awarding her a small percentage of the damages she claimed as a result of said accident. Wallace also appeals from the Jefferson Circuit Court’s denial of her motion for a new trial on damages. Finding no error, we affirm.

Generally, it is within the province of the jury to determine whether medical expenses, or any part thereof, are necessary, reasonable, and injury- connected. Jones v. Mathis, 329 S.W.2d 55 (Ky. 1959). However, “[t]he question regarding the propriety of medical bills does not become a matter for the jury’s resolution if there is nothing in the record tending to show a dispute about the amount of those bills or their relationship to the alleged injuries underlying the action.” Morgan v. Scott, 291 S.W.3d 622, 643 (Ky. 2009) (Emphasis added).

As noted by a panel of this Court in Carlson v. McElroy, 584 S.W.2d 754, 756 (Ky. App. 1979),

[T]he jury was not bound to accept as the absolute truth the testimony of either Carlson or her doctors relating to her injuries, and having the opportunity to observe Carlson giving her testimony and to hear first hand all the other evidence in arriving at their verdict, the jury could have believed Carlson grossly exaggerated the extent of her injuries, if any, or that her injuries were not as a result of this accident. (Citations omitted).

We are of the opinion that the trial court properly ruled that the jury was entitled to determine whether all of Wallace’s claimed past and future medical expenses were necessary, reasonable and related to the subject accident. As such, the trial court’s denial of a directed verdict as well as its denial of a new trial on this issue was proper.

Wallace now argues that the photographs were irrelevant and prejudicial because the condition of the vehicles did not make her injury more or less probable. Further, she contends that the defense introduced the evidence solely to allow the jury to speculate, without any scientific or technical support, that minor property damage equated to minor physical injuries.

The question of whether McAuliffe was solely at fault in causing the accident was disputed at trial.

We find no merit in Wallace’s claim that McAuliffe was required to present an expert witness to testify as to the relationship between the vehicular damage and the extent of her injuries. Contrary to Wallace’s argument, McAuliffe was not attempting to scientifically prove or disprove Wallace’s injuries by establishing the “vehicle-to-vehicle energy transfer.”

“[T]he admissibility of photographs is within the sound discretion of the trial court, and its ruling . . . will not be interfered with on appeal except upon clear showing of an abuse of discretion.” Gorman v. Hunt, 19 S.W.3d 662, 668 (Ky. 2000). We agree with the trial court that the photographs were relevant to the issue of causation. Furthermore, because Wallace introduced evidence pertaining to her vehicle’s “undrivability,” her subsequent repair bill, and testimony about skid marks on the road in an effort to establish speed, McAuliffe was entitled to introduce the vehicle photographs for impeachment purposes. We find no abuse of discretion herein.

Wallace’s reliance on Kentucky Farm Bureau Mutual Insurance Company v. Rodgers, 179 S.W.3d 815 (Ky. 2005) and Baker v. Hancock, 772 S.W.2d 638 (Ky. App. 1989) are misplaced. Rodgers involved prior bad acts in handling insurance claims and is inapposite to the facts herein. Similarly, Baker simply held that “evidence of other negligent acts should be excluded when offered to prove negligence on a particular occasion.” 772 S.W.2d at 640. Herein, the evidence of Wallace’s other two accidents was not offered to prove her negligence in the subject accident, but rather for the purpose of establishing alternative causes for her claimed medical conditions. “Evidence of a prior and succeeding accident” is clearly relevant to the issue of injury causation. Carlson, 584 S.W.2d at 756. See also Massie v. Salmon, 277 S.W.2d 49 (Ky. 1955).

Furthermore, we must agree with McAuliffe that evidence of the other accidents was admissible for impeachment purposes.

Download (MNT06192015.pdf, PDF, Unknown)

Case Note: Roniesha Adams, Mother and Guardian of Minor Child B.A. v. State Farm Mutual Automobile Ins. Co., COA Published, 6/12/2015

Reparations obligor needed court order for examination under oath on minor's application for PIP benefits

The “EUO” or examination under oath in insurance policies have often been the tools of the SIU or special investigation units.  Or as so aptly stated in the following decision on behalf of Ms. Adams – “EUOs are often used as a tool to harass, annoy, embarrass or oppress claimants in opposition to the purpose of the MVRA. Adams also contends that State Farm is attempting to supersede the MVRA with its policy provisions.”  An even greater abuse would be for the reparations obligor to use the EUO as its basis for getting particular information under threat of loss of benefits for failure to cooperate and in defense of an action should the claimant file suit.  Yes, it is a dark and dirty little tool that is more a post-claims underwriting trick rather than information gathering.

In the following decision,Roniesha Adams, Mother and Guardian of Minor Child B.A. v. State Farm Mutual Automobile Ins. Co., COA Published, 6/12/2015, the Court of Appeals put the brakes on this practice within the context of the motor vehicle reparations act (KRS Sec. 304.39-280(3) which provides that –

In case of dispute as to the right of a claimant or reparation obligor to discover information required to be disclosed, the claimant or reparation obligor may petition the Circuit Court in the county in which the claimant resides for an order for discovery including the right to take written or oral depositions.

Judge Clayton stated it succinctly in one paragraph:

In Miller v. United States Fidelity & Guaranty Co., 909 S.W.2d 339, 341 (Ky. App. 1995), a panel of our Court held that “[t]he circuit court may not enter an order for an examination without rhyme or reason, thereby entitling a reparation obligor to an examination simply upon demand.” In a case such as this, where there were medical reports and police reports indicating injuries and the events that occurred, a policy clause which required an EUO prior to payment of the claim and as a bar to the claim should one not be done, would be in direct opposition to the purpose of the MVRA. Should State Farm wish to obtain a statement from Adams, its remedy would be to seek a court order requiring Adams to submit to discovery. The trial court, therefore, erred in granting declaratory and summary judgment on this issue. We, therefore, reverse the decision of the trial court and remand this action for further proceedings including discovery.

Download (2013-CA-002152.pdf, PDF, 79KB)

 

Case Note: Ronald Eggemeyer vs. Dr. Ted H. Jefferson, COA, Published 6/12/2015

Mistrial granted when insurance defense lawyer repeately disobeys trial judge's order on defenses AND second mistrial in med mal case following defense misconduct

COAPanel.Lambert.Jones.Acree

Court of Appeals Judges Lambert, Jones and Acree

Ronald Eggemeyer vs. Dr. Ted H. Jefferson, COA, Published 6/12/2015

[Editor’s note: This decision reflects a major miscarriage of justice which will result in a third trial on a medical negligence issue.  It is a worthy read and should be an eye-0pener to insurance companies and judges alike on the abusive techniques that a defense lawyer feels free to take.  Judge James Lambert wrote a well-reasoned and clearly delineated opinion, joined by Judge Jones, with a dissent by Judge Acree invoking the name of Henry Clay reading a the new trial standard as unchanged over the years as the starting point that an abuse of discretion is relative and did not occur in the case sub judice.  Of course,  I am reminded of more sound legal thought than Henry Clay simply opening a book; wisdom that can be found in the jurisprudential thought of Oliver Wendell Holmes, to wit:

“It is something to show that the consistence of a system requires a particular resuly, but it is not all.  The life of the law has not been logic; it has been experience.  The felt necessities of the of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.” O.W. Holmes, Jr., The Common Law, 1881, page 1.

Keep in mind further that the events that transpired in this case have broader applicability because at the heart of the order was that the defense could not profit from the taking of proof by a mistrial it had caused and thus use this additional time to build up their defense.  Nothing in this opinion questioned the legitimate ends of the trial judge’s order forbidding the defense to from using new evidence, theories, defenses, etc.

Now compare this to you having a trial date, and you are meeting all the pretrial deadlines, to include expert disclosures, then one side or the other asks for a continuance with a new trial date. Should the person seeking the continuance be allowed a new set of pre-trial deadlines or should those deadlines be frozen in time and/or requiring the party or parties to meet those deadlines as stated based upon the original trial date and the only change being the pretrial and trial dates?  Or your trial date gets bumped by the court’s crowded docket?  Just a thought.]

The appeal was before Chief Judge Acree and Judges Lambert and Jones with Judge Lambert writing the majority opinion, Acree dissenting, and Jones concurring but adding a concurrence. The COA reversed and remanded.

Here we go (with all quotes from the actual opinion):

This is a medical malpractice case arising out of the underlying Defendant, Dr. Ted Jefferson’s, alleged failure to properly repair Eggemeyer’s broken arm by placing enough screws below the fracture site and by failing to diagnose a post-operative infection. The first trial in this case took place in August 2012. During that trial, Dr. Jefferson violated the court’s instructions and orders by repeatedly referring to Eggemeyer’s medical insurance. The trial court declared a mistrial and held Dr. Jefferson in contempt, but did not make a determination of the sanctions until after the second trial.

* * *

Additionally, after the mistrial, the Court instructed counsel that the case would be retried as it now sits. There would be no new experts or theories or anything else that was not disclosed in the first trial. This was in an effort to keep the costs to a minimum and to shorten any delay in retrying the case.

Following the mistrial, Dr. Jefferson replaced attorney E. Frederick Straub with attorneys Scott Whonsetler and Jeffery Thompson.  Plaintiff then renewed the above motion at a pre-trial conference, and the court reiterated its position and the new “Defense counsel stated that they would abide by this ruling.”  Defense counsel did not, and plaintiff submitted a brief address 12 of the most egregious errors etc., and following a hearing the Judge Craig Clymer issued the following oral ruling (followed by a written order):

And I mean not even get up and tiptoeing to the line. Because, this is a pretty egregious violation of the rules, and it’s an ambush. And, particularly I think when we were sitting there yesterday talking about this and saying no new issues of legal liability in this case, I think you’re sitting there and you knew that you were going to do this. And, we couldn’t pull it out of you. And you stand up in front of that jury and tell them that, you completely went against the ruling of the Court, in doing that. And so, I don’t know…I don’t know what the outcome is going to be right now other than I’m going to be watching to make sure we don’t get anywhere near any of that. And, Dr. Jefferson as well. Now, you may be asking some question and, if Dr. Jefferson believes he’s going to bring that in, I have no problem at all with enforcing the Court Order by either a civil contempt, or a criminal contempt. And the civil contempt or criminal, either one can be by imposing fines or it can be jail. And, I don’t tend to try this case another time. And so, ya’ll [indicating Whonsettler and Dr. Jefferson] need to get your act together on this. And, if I hear anything, I don’t have time to go through all of these things and say, “Ok, We can’t do this. We can’t do that.” This is all stuff that should’ve been handled by reputable attorneys, ethical attorneys, a long time ago. That here’s what this trial is going to be about, and we understand. Maybe I just have the luxury of dealing with attorneys who play fairly and by the rules, and I don’t have these problems.

And defense counsel, still failed to follow this order –

During closing arguments, Mr. Whonsetler again referenced Dr. Jefferson placing “three screws below the fracture line.” Eggemeyer again objected and the trial court ruled from the bench, “And I just know now, again, you have violated a Court order in this case.” The court admonished the jury to disregard the statement. Undeterred, Mr. Whonsetler immediately turned to the jury and said, “Ladies and Gentlemen, you will have the x-rays. Take a look and you will see that below the fracture line there are three screws that go from cortices to cortices. The cortices are the white portion of the bone, at either side of the bone and you will see that. You can measure it up against the original film and you will see that it is beneath the fracture line.” Eggemyer objected again, and the objection was sustained; however, counsel was not permitted to approach and no admonition was given. The court stated, “Just go on to something else. I’ll decide how we’ll handle that.”

The jury returned a defense verdict, and the plaintiff appealed claiming the trial court abused its discretion denying his motion for a new trial.  Dr. Jefferson cross-appealed the award of sanctions against him for attorney’s fees of $58,858.82 (and the court stating these were because of Dr. Jefferson’s direct defiance of its orders throughout the first trial).

[Editor’s note: Nothing in the appeal showed defense counsel attempting to preserve these issues by an avowal.]

As the Court of Appeals held:

We agree with Eggemeyer that CR 59.01 is absolutely designed to prevent the conduct that occurred in the instant case. The trial court clearly and unequivocally ruled, after first declaring a mistrial, that the second trial would not be an opportunity for the defense to present new theories or evidence. In fact, the trial court explicitly prohibited the defense from presenting the exact evidence and theories they attempted to get in during the first trial. While Dr. Jefferson attempts to couch this as an innocent mistake of the trial court’s meaning in his brief to this Court, we are not persuaded. Instead, we agree with the trial court that defense counsel attempted to ambush Eggemeyer and directly violated specific repeated orders of the Court. The record reflects a clear intent by defense to proceed however they pleased, in direct contradiction of the trial court’s instructions and in direct contradiction of the promises they made to the court prior to the beginning of the second trial.

To be clear, we hold that the trial court’s failure to grant Eggemeyer a new trial was an absolute abuse of discretion, and we find palpable error under CR 61.02. [emphasis added].

With regard to the sanctions, the Court of Appeals held:

Dr. Jefferson argues that the amount of sanctions was excessive, contending that Eggemeyer’s counsel was likely paid on a contingency basis. A review of the record indicates that the trial court considered the amount of sanctions and lowered the amount from that originally requested by Eggemeyer. We do not find the sanctions to be excessive and will not disturb them on appeal.  * * *

Judge Jones joined in the majority opinion and filed a separate concurring opinion–

I join in the majority opinion, but write separately because I do not believe that it was necessary for the majority to engage in a palpable error review. The palpable error standard is reserved for review of unpreserved errors. I believe that Eggemeyer preserved the new trial issue making palpable error review unnecessary.

Eggemeyer objected throughout the trial to argument and evidence concerning the new theories. Despite being repeatedly instructed to avoid those issues, defense counsel persisted in inserting those issues into the trial from the beginning to the end of the trial. While each isolated incident may not have been enough to warrant a new trial, the cumulative effect of repeatedly hearing those -15- theories referred to throughout trial, without a stronger admonition from the court, cannot be ignored. Indeed, the statements so infected the trial one wonders whether any admonition would have been effective to cure the prejudice.

“This court has condemned, in every instance when it has been brought to its attention, statements made by counsel not supported by the record, and where such statements are persisted in, and a party recovers a verdict when it is reasonably inferable that the improper statements affected the minds of the jury, the judgment should not be allowed to stand.” Connecticut Fire Ins. Co. v. Colker, 16 S.W.2d 761, 762 (Ky. 1929).

Judge Acree’s dissent wiped away the cobwebs from the books as he referenced the statute from the 1851 Code, raised the name of Henry Clay, and compared the code to what was then to what is now with a heavy reliance upon the trial judge’s discretion.  In fact, cases granting the trial judge “wide legal discretion” and “very strong reasons for granting a new trial” from 1984 and 1952, respectively came to the forefront of his analysis.  Judge Acree then states “Nothing in our jurisprudence suggests we are today less reluctant to find abuse of a trial court’s discretion on this issue. That discretion is my touchstone.”

The dissent then gets confusing from this point forward when Acree refers to legal authority stating

Where an attorney “‘deliberately go[es] outside the record in the jury argument and make[s] statements, directly or 3 The motion was made and granted in open court but the order was entered on November 19, 2012, after the jury deliberated following the second trial. -20- inferentially, which are calculated to improperly influence the jury,’ . . . prejudice . . . may be presumed.” Smith v. McMillan, 841 S.W.2d 172, 175 (Ky. 1992) (quoting Louisville & N.R. Co. v. Gregory, 144 S.W.2d 519, 522 (Ky. 1940)). But what, in practice, does this “presumed prejudice” mean?

* * *

Prejudice varies by degree.

* * *

Skilled practitioners make use of the variability of presumed prejudice as part of their trial strategy. While a counsel’s reference to facts not in evidence occurs accidentally from time to time, 4 it would be naïve to presume it is never the result of counsel’s conscious decision and intentional act. How far to push this envelope is trial strategy. How opposing counsel reacts is also trial strategy. While all improper argument will justify sustaining an objection to it, the offense may be so slight that opposing counsel, as a matter of trial strategy, will choose not to object 5 or, if she does object, will choose not to follow up by requesting an admonition.6 Counsel must weigh both the effectiveness and impropriety of an argument before requesting an admonition, knowing that the admonition will repeat and even showcase it.

The remainder of the dissent then seems to bounce around trial strategy and the use of objections and admonitions.  “At this point, again, strategy comes into play. Counsel objecting to the improper closing must decide whether to move for a mistrial, i.e., ask the trial court to discharge the jury before a verdict is ever reached. However, doing so has an effect similar to objecting or seeking an admonition – it brings further attention to the improper comments. Counsel must then undertake an analysis similar to that just outlined. ”

And, the concluding paragraph of the dissent goes – –

Though the case before us may be closer than others, I simply do not see “very strong reasons for granting a new trial [or] reasonable certainty that injustice or wrong would result” by affirming the trial court’s exercise of discretion here. Gray v. Sawyer, 247 S.W.2d 496, 498 (Ky. 1952). Clear it was that the trial court did not appreciate the liberties taken and indiscretions exercised by Dr. Jefferson’s counsel. That is evident from the trial court’s rebukes and admonitions. But while the trial court sanctioned Dr. Jefferson by a separate order, the court did not sanction counsel for improper conduct. Because the trial judge was in a better position to make the determination whether a new trial was justified, and because this is not a case clearly justifying reversal of that determination, I would affirm.

[Editor’s Note:  It would seem that “trial by ambush” and repeatedly ignoring trial court orders goes beyond the pale of inadvertence and, in my opinion, strikes at the very heart of justice.  This is not gamesmanship where counsel’s abuse of the rules amounts to trial strategy which then forces opposing counsel to make trial strategy decisions in response to intentional misconduct.  The insurance lawyer, in this case of the second trial, did more than play fast and loose with the law and trial orders, he exhibited open defiance and disrespect which ambushed plaintiff’s counsel, and should not be characterized as boys will be boys.  Odd and unusual case, and while those on Olympus play, the mere mortals pay because with a third trial on the horizon it is beyond cavil that it now appears that justice delayed is nothing more than justice denied.  Those old equity principles have a moral foundation to them which should not escape their application to achieve the ends of  justice today.

Editor’s Note:  Why weren’t these issues raised by Whonsetler in the second trial raised by Straub in the first trial?]

COA: June 12, 2015 Court of Appeals Decisions (Minutes) (491-514; 24 decisions; 7 published)

Insurance lawyer's failure to follow judge's order in retrial of medical malpractice case results in reversal and remand while his client's repeated actions result in $58,000+ in sanctions

Two decisions deserve careful scrutiny by injury and accident lawyers, as well as insurance lawyers.

In Ronald Eggemeyer vs. Dr. Ted H. Jefferson (D.O.)
COA, Pub. 6/12/2015; McCracken, the COA reversed and remanding the trial court’s decisions on two separate and distinct issues.  This is a medical negligence case claiming the orthopedist failed to properly  place enough screws in an arm fracture followed by his failure to diagnose a post-operative infection.  During that trial, Dr. Jefferson violated the court’s instructions and orders by repeatedly referring to Eggemeyer’s medical insurance. The trial court declared a mistrial and held Dr. Jefferson in contempt, but did not make a determination of the sanctions until after the second trial.  The insurance lawyer defending Dr. Jefferson in trial number one was Frederick Straub.  The insurance lawyer for the second trial was Scott Whonsetler and Jeffery Thompson.  Mr. Eggemeyer was represented on his injury claims by attorneys Hans Poppe and Warner Wheat.

In the second trial, the judge ruled ” Additionally, after the mistrial, the Court instructed counsel that the case would be retried as it now sits. There would be no new experts or theories or anything else that was not disclosed in the first trial. This was in an effort to keep the costs to a minimum and to shorten any delay in retrying the case.”  Interestingly enough, plaintiff’s counsel was concerned enough about the Defense raising new issues and not complying with the court’s order, and Mr. Whonsetler assured the court he would comply with the ruling.  However, he did not.  Despite the trial court’s three separate rulings and orders to Dr. Jefferson’s counsel, Mr. Whonsetler raised over a dozen new medical defenses and theories in his opening statement to the jury. Eggemeyer’s counsel objected and brought the issue to the court’s attention. The court indicated that these sounded like new theories to the court also, and before ruling on the issue, ordered a hearing for the following morning. No admonition was given to the jury at that time.

Eggemeyer alleges that over the course of the trial, Dr. Jefferson and his counsel repeatedly introduced new opinions and testimony in violation of the court’s orders, including testimony from Jefferson and his expert that Jefferson put three screws below the fracture line and that Eggemeyer might have suffered some trauma following Dr. Jefferson’s surgical repair of his arm. Even though Eggemeyer objected to this line of questioning, the inferences and direct references to unsupported evidence and issues ruled inadmissible by the trial court did not stop, even after the final witness.

On appeal, Eggemeyer argues that the trial court abused its discretion by denying his motion for a new trial, to vacate or set aside the judgment, and for default judgment on liability.

We agree with Eggemeyer that CR 59.01 is absolutely designed to prevent the conduct that occurred in the instant case. The trial court clearly and unequivocally ruled, after first declaring a mistrial, that the second trial would not be an opportunity for the defense to present new theories or evidence. In fact, the trial court explicitly prohibited the defense from presenting the exact evidence and theories they attempted to get in during the first trial. While Dr. Jefferson attempts to couch this as an innocent mistake of the trial court’s meaning in his brief to this Court, we are not persuaded. Instead, we agree with the trial court that defense counsel attempted to ambush Eggemeyer and directly violated specific repeated orders of the Court. The record reflects a clear intent by defense to proceed however they pleased, in direct contradiction of the trial court’s instructions and in direct contradiction of the promises they made to the court prior to the beginning of the second trial.

To be clear, we hold that the trial court’s failure to grant Eggemeyer a new trial was an absolute abuse of discretion, and we find palpable error under CR 61.02.

In the instant case, we believe the integrity of the trial court was most definitely at issue, and in fact the trial court directly stated that it was holding Dr. Jefferson in civil contempt and awarding attorney’s fees as sanctions. Given the repeated misconduct of Dr. Jefferson and his attorneys, we find the imposition of sanctions to be completely appropriate in this case.

hat order granted Eggemeyer $58,858.82 in attorney’s fees and stated that the court was awarding such fees because of Dr. Jefferson’s direct defiance of its orders throughout the first trial. The trial court clearly and unequivocally stated that it was awarding the fees as sanctions because, instead of remedying his conduct as instructed by the court, Dr. Jefferson compounded that conduct in the second trial.

The other decision of consequence for tort lawyers addressed the use of examinations under oath and a denial of coverage for failure to cooperate.  This decision is briefly noted below and will be addressed later.

The Kentucky Court of Appeals announced 24 decisions  on June 12, 2015, with 7 of their opinions designated to be published.

Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.

Click here for all of a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).  AOC version of this week’s decisions can be accessed by clicking here.

For the complete set of this week’s minutes listed all decisions (published and not to be published) with links to the full text of each at the AOC, the continue reading below the digested summaries of this week’s published cases.

Tort, insurance and civil decisions links are in bold face!

Published appellate cases for  this week – June 12, 2015:

492.  Medical negligence case with defendant doctor and his counsel committing conduct which resulted in sanctions and a reversal for disobeying court orders
Ronald Eggemeyer vs. Dr. Ted H. Jefferson (D.O.)
COA, Pub. 6/12/2015; McCracken; Reversing and remanding
LAMBERT, J., JUDGE: Ronald Eggemeyer appeals from the McCracken Circuit Court’s denial of his motion for a new trial, to vacate or set aside judgment, and for default judgment on liability. After careful review, we reverse the trial court’s order and remand this case for a new trial.

493.  Open Records Act and Public Agency
Pike County Fiscal Court vs. Utility Management Group LLC
Opinion Reversing and Remanding, Pike

494. Directed Verdict, Wage and Hours, Court costs, witnesses
Velma Hisle vs. Correctcare-Integrated Health, Inc.
Opinion Affirming in part, vacating in part, remanding; Fayette

495.  Parental obligation is joint and several for child’s necessaries (medical expenses)
Jerry Smothers vs. Baptist Hospital East
COA Pub 6/12/2015; Opinion affirming; Jefferson

499.  Dept. of Corrections termination of employment in maintenance following positive urine testing for cocaine
Garnett C. Parrish vs. Commonwealth of Kentucky 

503.  Examination Under Oath and MVRA
Roniesha Adams vs. State Farm Mutual Automobile Ins. Co.
COA Pub 6/12/2015; Reversing and remanding, Jefferson

CLAYTON, JUDGE: This is an appeal from the Jefferson Circuit Court’s granting of declaratory and summary judgment in an automobile accident case. Based upon the following, we reverse the decision of the trial court and remand this action for further proceedings.

In Miller v. United States Fidelity & Guaranty Co., 909 S.W.2d 339, 341 (Ky. App. 1995), a panel of our Court held that “[t]he circuit court may not enter an order for an examination without rhyme or reason, thereby entitling a reparation obligor to an examination simply upon demand.” In a case such as this, where there were medical reports and police reports indicating injuries and the events that occurred, a policy clause which required an EUO prior to payment of the claim and as a bar to the claim should one not be done, would be in direct opposition to the purpose of the MVRA. Should State Farm wish to obtain a statement from Adams, its remedy would be to seek a court order requiring Adams to submit to discovery. The trial court, therefore, erred in granting declaratory and summary judgment on this issue. We, therefore, reverse the decision of the trial court and remand this action for further proceedings including discovery.

514.  Election challenge
Charles  Hardin MD vs. John Montgomery

Selected Tort, insurance, civil decisions:   The following not to be published decisions might be of interest and noteworthy to attorneys practicing injury and accident law, as well as insurance defense law:

497.  Nursing home negligence per se claim and violation of certification rules alleged
Dinah Puckett, Adm’r Est. of Bertha Blanton vs. Salyersville Healthcare Center
COA NPO Affirming; Magoffin
NICKELL, JUDGE: Dinah Puckett, as Administratrix of the Estate of Bertha Blanton, has appealed from dismissal of her claims of negligence per se against Salyersville Healthcare Center (“Salyersville”), and others.  Following a careful review, we affirm.

502.  Premises Liability.  COA affirmed summary judgment dismissing injured plaintiff’s claims against hotel for shower slip and fall
Ralph Goodwin vs.  Al J. Schneider Co. d/b/a Galt House
COA NPO; Opinion affirming; Jefferson

 

The entire minutes are below with links to the full text of each decision.  The “published” decisions are highlighted in the published column.  The tort, insurance and civil decisions are highlighted by the decision number and name (first two columns):

Download (MNT06122015.pdf, PDF, Unknown)

 

Legal News Stories – June 12, 2015

Nelson County Courthouse Penny Postcard

Courts say theres no claim for reverse bad faith. could they be wrong? – Lexology

Last month, in State Auto Property & Casualty Ins. Co. v. Hargis, No. 13-5020 (6th Cir. May 6, 2015), the U.S. Court of Appeals for the Sixth Circuit predicted that the Kentucky Supreme Court would not allow insurers to sue policyholders for the tort of “reverse bad faith.” The court’s analysis drew a distinction between the duty of good faith and fair dealing that is implied by law into contracts and the distinct, common law duty that arises from a “special relationship” between the parties. Only the latter duty gives rise to a tort claim. The court also found that no other state has recognized a tort of reverse bad faith. Yet, given recent interpretations of the contractual duty, it’s arguable that “reverse bad faith” is already here—and what we should be asking is whether it can be of any use.

 

County Attorney Mike O’ Connell suspends Karl Price without pay

LOUISVILLE (WHAS 11) — Karl Price, a prosecutor with the Jefferson County attorney’s office, was suspended without pay following comments he made in a letter to a local business.  He was ordered to undergo sensitivity training for comments he said in the letter, using words like “greedy foreigners” and saying the Hwangs practice under “ancient Asian principles.”

Retirees allowed to keep fighting in GE suit

The seven-page ruling that challenges GE’s decision to drop its Medicare benefit plans and switch salaried retirees to private exchanges in essence delivered victories to the company and retirees and ensured that the litigation will continue for months. The changes, which took effect Jan. 1, have impacted an estimated 65,000 retirees and their families, including several thousand nonunion former workers at GE’s Appliance Park in Louisville. GE officials have said the benefits switch which affects all of the divisions within the company were in the works two years before GE announced plans this fall to sell its appliances division to Sweden-based Electrolux.

Attorney general: Lexington police broke records law by demanding address of man who sought documents | Crime | Kentucky.com

The Open Records Act does not require a person to provide an address unless they want the documents mailed to them. Greenleaf shot the dog six times after it bit him as he ran through the backyard of a Lexington home while pursuing a suspect on foot. The bite did not draw blood and Greenleaf was not hospitalized.

Commonwealth’s Attorney to seek death penalty against 3 suspects – WDRB 41 Louisville News

LOUISVILLE, Ky. (WDRB) – The Jefferson County Commonwealth’s Attorney will seek the death penalty against three people accused of murdering a tourist in town for the Kentucky Derby, according to spokesperson Jeff Cooke.  Cooke says the office filed a notice of aggravating circumstances last week, telling the court the prosecution would be seeking capital punishment in the case against Fahed Abu-Diab, Fatima Abu-Diab and Tyrone Thomas Jr.

Buffalo Trace security guard expected to testify against bourbon – WDRB 41 Louisville News

They say on two difference occasions, between Nov. 1, 2014 and Dec. 31, 2014, Wright allowed Curtsinger to take the stainless steel barrels of bourbon. In April, nine people were indicted for the bourbon thefts. He resigned after being accused of being involved in the bourbon and steroid ring.
On Friday, Wright pleaded guilty to a reduced charge of “Criminal facilitation to receive stolen property over $10,000,” Class A misdemeanor punishable by up to 12 months behind bars.