SC: October 23, 2014 Supreme Court of Ky Decisions (Minutes 162-186): KRE 404(b), child abuse accommodation syndrome; trucker’s liability for trailer; dedication by estoppel; is there an implicit waiver of Fifth Amendment?

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Old Breathitt County Court House, Jackson, Kentucky from a period post card.

The Supreme Court of Kentucky announced a 25 decisions on  October 23, 2014, with 5 Kentucky Supreme Court opinions designated for publication; three attorney/judicial ethics and disciplinary matters;  and seven motions for discretionary review granted.

The above photo is from Keith Vincent’s collection of court house postcards which can be found at

Download (MNT102014.pdf, PDF, 197KB)

COA: Nov. 14, 2014 Court of Appeals Decisions (Minutes) (984-1003): insurance coverage escape clauses; “whiskey fungus” and no federal preemption; attorney arbitration dispute

Breathitt County Historical Marker

Breathitt County Historical Marker

The Kentucky Court of Appeals announced 17 decisions  on November 14, 2014, with two Court of Appeals opinions designated to be published.

The published opinions were Lambe vs. Weber (Jefferson county family law decision dealing with multiple issues – maintenance; child support; attorney fees; with appeal and cross-appeal);  Merrick vs. Brown-Forman Corp. (reversed and remanded Judge McDonald-Burkman’s ruling dismissing claims against Brown-Forman and Heaven Hill Distilleries air quality and nuisance in “whiskey fungus” suit;  COA could not discern from the Clean Air Act a clear and manifest intent in the federal statute to preempt state tort law.)

“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.

COA: Nov. 7, 2014 Court of Appeals Decisions (Minutes) (1-16; 968-983): No published decisions but two nonpublished dealing with qualified official immunity and medical malpractice claim

Small Memorial Park Adjacent to Breathitt County Court House

Small Memorial Park Adjacent to Breathitt County Court House

The Kentucky Court of Appeals announced 16 decisions  on November 7, 2014, with none of the sixteen designated by the Court of Appeals “to be published”.

Click here for links to all the archived Court of Appeals minutes.

“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.

The Tort Report – Selected decisions this week on tort, insurance and civil law (ONE for this week)

11.  Medical negligence
Elizabeth Palmer vs. The Doctors, PLLC and Witold A. Wilk, D.O.
COA, Not published 11/2014 from Hardin County Affirming

DIXON, JUDGE: Appellant, Elizabeth Palmer, appeals from an order of the Hardin Circuit Court denying her motion for a new trial following a unanimous jury verdict in favor of Appellees, The Doctors PLLC and Witold A. Wilk, D.O., in her medical negligence case. For the reasons set forth herein, we affirm.

Plaintiff saw Dr. Wilk for malaria prophylaxis seeking mefloquine for her trip to Uganda.  However, Dr.Wilk explained he did not like Mefloquinine (weekly) but rather prescribed a weekly medication (Chloroquine) and a daily medication (Doxycycline).  Palmer filled the prescriptions and when there were two instead of one she assumed she had a choice of one or the other (and took the weekly drug).  Well, she developed symptoms and on her return, and saw Dr. Dishaw receiving a diagnosis of a viral syndrome, following up with Dr. Wilk who believed she had gastrenteritis or Hepatitis A and prescribed accordingly  She later developed symptoms of malaria and underwent amputation of toes on both feet.

On June 14, 2010, Palmer filed a medical negligence action in the Hardin Circuit Court against Dr. Wilk and Dr. Dishaw. Prior to trial, but after the close of discovery, Palmer settled her claims against Dr. Dishaw. A jury trial was subsequently held in June 2013 on Palmer’s claims against Dr. Wilk. At the close of evidence, the jury returned a unanimous defense verdict and the trial court entered judgment accordingly.

Trial court then overruled motion for new trial noting  “parties are not promised a perfect trial but basically a fair one” and noted further only harmless error and a unanimous verdict.

On appeal, appellant Palmer argued trial judge erred by not removing for cause a juror who noted the justice system was “kind of corrupt” and that plaintiffs “often blow things out of proportion.”  Judge Dixon, COA, stated you look at the totality of the circumstances and not just the isolated remarks appellant’s brief.

COA also rejected argument that it was error to allow defense thru Dr. Wilk to offer an entirely new theory of defense with new testimony.

Other errors raised were knocked down by the COA and the jury verdict affirmed.

[FWIW the reasoning and analysis in the decision to affirm the verdict and the trial court’s ruling followed a torturous path of reason with an “interesting” quip added that “Interestingly, counsel never specifically questioned Dr. Wilk about what the contraindication was” for the basis of the two-drug prescription.  No motion filed as of 11.23.2014 for discretionary review].

12.  Doctrine of qualified official immunity.
Randy Thompson vs Lou Jean Martin
COA Not Published 11/7/2014
Vacating and Remanding
Summary judgment granted dismissing claim against Knott County for injuries when plaintiff fell in hidden hole on county property but not dismissing claims against county employees.  Vacated and remanded as two employees are protected by qualified official immunity.

Download (MNT11072014.pdf, PDF, 112KB)

On this 2014 Veterans Day

A picture from my promotion to Major, United States Army, while stationed in Germany, 1986 with my daughter Erin and son Kevin by my side.

This picture is for you kids.  Looks like we all were young once.

To those no longer with us, I pray for thee.
To those I knew personally who are gone, I shed a silent tear for you and your family.
To those who serve now,  I salute you.
To those  who have served willingly, I honor you.
To those who served with sacrifice, I will not forget you.
To all those who have served or are serving, let us never forget

we in it shall be remember’d; We few, we happy few, we band of brothers . . . .

Henry V | Act 4, Scene 3

Fit for Military Duty in Kentucky Goes from the Fittest a 100 years ago to today with 73% not fit for military service. Ouch.

Fit for military duty in Kentucky.  From best in the nation during World War I as highlighted in my November 9 blog post a Courier Journal op-ed piece by some retired generals with the Kentucky National Guard..

First, the marker:

Marker outside Breathitt County Court House, Jackson,  Kentucky (Photo by M. Stevens. 20140).

Marker outside Breathitt County Court House, Jackson, Kentucky (Photo by M. Stevens. 20140).

Now for a small extract from the Courier-Journal editorial pages on Nov. 9, 2014, styled “Fighting Obesity is a National Security Issue“.

Unfortunately, you can’t make up for a lifetime of poor nutrition and lack of exercise in a few weeks of military training — particularly not in Kentucky, where obesity is the leading medical reason why 73 percent of our young adults cannot qualify for military service.

The problems do not stop there. Nationwide, obesity rates among active-duty service members have also shot up 61 percent in less than 10 years.

We must turn the tide on the obesity epidemic by instilling good eating and exercise habits from an early age. Good nutrition starts at home, but many kids get up to half of their daily calories at school so it just makes sense to ensure they’re eating healthfully there, too.

For these reasons and more, hundreds of retired admirals and generals who are members of Mission: Readiness came out in strong support of the 2010 Healthy, Hunger-Free Kids Act, bipartisan legislation that required healthier school meals and snacks. School foods would no longer be laden with fat, sugar and sodium, and would instead incorporate fruits, vegetables, and whole grains.

From the fittest to the not so fit.  What a difference a century can make.

COA: Oct. 31, 2014 Court of Appeals Decisions (Minutes) (951-967): medical licensure and emergency order; motion to suppress appeal from district court

Marker outside Breathitt County Court House, Jackson,  Kentucky (Photo by M. Stevens. 20140).

Marker outside Breathitt County Court House, Jackson, Kentucky (Photo by M. Stevens. 20140).

The Kentucky Court of Appeals announced 17 decisions  on Oct. 31, 2014, with two Court of Appeals opinions designated to be published.

The published opinions were Neal vs. Commonwealth of Kentucky (affirmed district court’s denial of defendant’s motion to suppress – Hardin); and Kentucky Board of Medical Licensure v. J. Dustin Chaney, D.O. (granted licensing board’s motion for interlocutory relief from an order granting doctor’s temporary injunction of emergency order suspending doctor’s license).

“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.

The Tort Report – Selected decisions this week on tort, insurance and civil law (ONE for this week)

955.  Multiple issues arising from mva collision personal injury claim – defense expert vs. treating physician; causation and pre-existing condition; new trial; “sudden emergency” doctrine
Masterson vs. Siemens Industry, Inc.
COA Not Published 10/31/2014; Affirming in part, reversing in part (Jefferson County, J. McDonald)

COA: Oct. 24, 2014 Court of Appeals Decisions (Minutes) (940-950): compulsory arbitration denied hospital in med-mal; mom ordered to fill out US Passport Paperwork; foreign state custody order falls short of UCCJEA


Newest Breathitt County Court House in Jackson, Kentucky (Photo by Mike Stevens 2014)

The Kentucky Court of Appeals announced 11 decisions  on Oct. 24, 2014, with three Court of Appeals opinions designated to be published.

The published opinions were Pikeville Medical Center v. Bevins (affirmed trial court’s denial of hospital’s motion to compel arbitration in medical malpractice action);  Benton v. Sotingeanu (affirmed trial court’s order directing mother to execute paperwork for ex-husband/child’s father to obtain a passport for their child); Danaher v. Hopkins (Uniform Child Custody Jurisdiction  Enforcement Act and trial court’s denial of his petition for registration of foreign child custody order after finding North Carolina did not act in substantial conformity with the UCJEA).

“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.

The Tort Report – Selected decisions this week on tort, insurance and civil law (None this week).

  • 945.  Denied compulsory arbitration in medical malpractice claim against hospital.
    Pikeville Medical Center, Inc. vs. Bevins, Adm’r of the Estate of Grover Bevins
    COA Not Published 10/24/2014 Affirming  (Pike County)

Lawyer-Author: Linda Y. Atkins’ new book released – “Deadline for Murder”

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From Interview at Great Day Live with Terry Meiners and Rachell Platt

Thomas Atkins is an attorney in Louisville.  His wife Linda Y. Atkins is also his law partner (Atkins & Atkins) AND a legal writer.  Before continuing with this post and in the interest of full disclosure , please note that Tom and I have some non-legal connections.  Tom and I are military retirees, native West Virginians (I’m from Point Pleasant and Tom from Charleston), and graduates of Marshall University (We ARE Marshall!), as well as choosing Louisville as our adopted homes.

Although I knew Linda had written several books over the years, I just learned she has published a FOURTH book – “Deadline for Murder” in the Hillary Adams.

Rather than give my own plug, let me share the remarks and comments of others.  I will purchase this book and read it.  I might even go back and look at the earlier books in this ongoing legal series.

Here is a link to an interview (actually more of a conversation) with Lori Kommor of the Voice-Tribure – “Linda Atkins: Taking Legal Experience Into The World of Fiction

As a prominent Louisville attorney, Linda Atkins has many experiences to draw upon. After working on a particularly intriguing case during the 1990s in eastern Kentucky, she was inspired to take those experiences and apply them to writing fiction. Her mystery series, featuring criminal defense attorney, Hilary Adams, takes readers on a roller coaster ride of suspense and mayhem as they follow Adams and a cast of colorful characters inside and outside of a fictional Louisville courtroom. Her fourth book in the series, “Deadline for Murder,” was released this week. I had a chance to talk to Atkins about her interest in writing, her love of Kentucky and her greatest challenges as an author.
Click here for the actual interview.

Interview (on line video) with Terry Meiners and Rachel Platt on Great Day Live, WHAS 11.

Upcoming book signing by Linda at Norton Commons on November 20, 2014 from 6:00 to 8:00 pm.

Meeting Street Coffeehouse will host a book signing honoring Linda Y. Atkins, author of Deadline for Murder: A Hilary Adams Mystery, on November 20th from 6-8pm. Deadline is Atkins’ fourth novel and was released in print and on ebook on October 28th.  Join us at Meeting Street Coffeehouse and meet the author in person and get your signed copy of her latest legal thriller!

Another meet and signing at the Kentucky Book Fair on November 15, 2014

The 33rd annual Kentucky Book Fair takes place on Saturday, November 15th, 2014 at the Frankfort Convention Center in Frankfort, Kentucky, the Commonwealth’s Capital City.  Web site is above link.  Click here for fact sheet.

Interview with “The Big Thrill”, on-line publication of International Thriller Writers

You can get the book at (Kindle and paper).  

Other books by Linda in the Hillary Adams series are:



Law School Applications Down, Down, Down… at UL, UK and NKU

Recent Courier-Journal story highlights what  most lawyers knew or should have known for years, and that is law school is not the financially rewarding career it once was.  But, if you are in it solely for the money, then maybe the practice of law is not right for  you.


Hmmm. Whatdya think, big guy? Photo by Michael Stevens.

And the numbers are:

Lawyers in Kentucky: 13,292

In Jefferson County: 4,582.

Kentucky law school applications

U of L
2011: 1,495
2012: 1,109
2013: 749
2014: 618
Decline: 59%

2011: 1,114
2012: 1,168
2013: 919
2014: 672
Decline: 39%

2011: 891
2012: 717
2013: 681
2014: 524
Decline: 41%

The story – “Law School applications plummet – at U of L too“, Oct. 20, 2014, by Andrew Wolfson.

Mirroring a national trend, applications to Brandeis plummeted 59 percent over the past three years, to 618 from 1,495, while enrollment of first-year students dipped nearly 30 percent, to 94 from 132.

Nationally, enrollment in law schools has declined 24 percent since 2010 as college graduates realize that law is no longer an automatic ticket to the good life.

“The message out there is that it is not a good investment,” said Susan Duncan, interim dean of U of L’s law school. She disputes that assertion, noting that Brandeis, founded in 1846, has been consistently named a “best value” by National Jurist and other magazines and that law opens doors to many professions.

Louisville grads did slightly better: Eighty-six percent had a job within nine months of graduating while 65 percent had jobs that required a law degree.

Ironically, U of L’s former dean, Jim Chen, may have been the first scholar to scientifically compute the value of a law degree in research and suggest it is at best a marginally worthwhile investment.

In a 2012 law journal article that reverberated through the profession, he wrote that borrowing money to go to law school makes sense only if you can count on earning three times annual tuition. He also said that even paying in-state tuition at a “bargain” school like U of L, graduates who borrow money to attend will find it “precarious” to afford a $100,000 home.

COA: Oct. 17, 2014 Court of Appeals Decisions (Minutes) (913-939): RE- state trooper’s termination of job; sexual harassment claim dismissal; Interstate Agreement on Detainers; Ineffective assistance of counsel; Prevailing wages; Mother couldn’t relocate with two minor children; child support and decreased income; de facto custodian and no jurisdiction; grandparent visitation and modified best interests of child

Breathitt County Courthouses Using a "PostCard" Effect. Photo by Mike Stevens

Breathitt County Courthouses Using a “PostCard” Effect. Photo by Mike Stevens

The Kentucky Court of Appeals announced 27 decisions  on Oct. 17, 2014, with nine (yes! I said nine) opinions designated to be published.  With this many published decisions, I am going to have to do a bullet list:

  • 918.  Government  Employment.  State trooper’s employment termination for misconduct reversed circuit court.
    Kentucky State Police vs. James Conder
    COA Published; Franklin County 10/17/2014 Opinion by J. Vanmeter Reversing and Remanding
  • 922.  Civil Rights.  Affirmed summary judgment dismissing claims of sexual harassment against county  under Ky Civil Rights Act
    Tammy Gray vs. Kenton County, Kentucky
    COA Published; Kenton County 10/17/2014 Opinionby J. Vanmeter Affirming
  • 925.  Criminal. Trial Court failed to comply with IAD (Interstate Agreement on Detainers) by failing to dispose of case (dismiss) prior to returning defendant to Indiana
    Perry Michael Scroggins vs. Commonwealth of Kentucky
    COA Published; Daviess County 10/17/2014; Opinion by J. Clayton Reversing and Remanding
  • 928.  Criminal.  RCr 11.42.  Ineffective assistance of Counsel denied re counsel’s opening the door to admission of hearsay, not requiring Commonwealth to prove he did not act under EED, and not offering alternative perp defense
    Charles Logan vs. Commonwealth of Kentucky
    COA Published; Carter County 10/17/2014; Opinion by J. Lambert Affirming
  • 930.  Prevailing wage law.  Affirmed trial court’s denial of motion to vacate award of prejudgment interest, back wages, and penalties.
    Teco Mechanical Contractor, Inc. vs. Commonwealth of Kentucky
    COA Published; Franklin 10/17/2014; Opinion by J. Combs Affirming
  • 931.  Family Law.  Affirmed father’s motion to modify visitation/timesharing and to prohibit mother from relocating to Mississippi with two minor children
    G.(A.)  vs. B.(T.)
    COA Published 10/17/2014; Jefferson;  Opinion by J. Vanmeter Affirming
  • 935.  Family Law.  Affirmed denial of father’s motion to modify child support claiming decrease in income and child’s age of 4.
    Alvie Deray Shelton vs. Jia Anna-Maria Shelton
    COA Published 10/17/2014; Henderson; Opinion by J. Lambert Affirming
  • 936.   Family Law.  Held family court improperly determined it had jurisdiction in custody matter (Ky not home state; not meet de facto custodian standard; and thus erroneously retained jurisdiction)
    Huong Luu vs. Shelly MUrphy
    COA Published 10/17/2014; Boyd County; Opinion by J. Lambert Reversing and Remanding
  • 938.  Family Law.  Family Court never addressed fitness of sole custodian (mother) who objected to visitation and never applied the “modified best interest” standard in grandparent visitation
    Karen Waddle vs. Thomas Waddle
    COA Published 10/17/2014;  Floyd County; Opinion by J. Clayton Reversing and Remanding

“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.

The Tort Report – Selected decisions this week on tort, insurance and civil law (None this week).