Decision: Statute of Limitations and Relation Back Doctrine Applied to Amended Complaint to Include Estate Romano v. Estate of Ben Johnson

Romano v. Estate of Ben Johnson, COA, Not Published Opinion, Jan. 19, 2018

Gailor v. Alsabi  distinguished on its facts to permit the original complaint to be amended and relate back when defendant driver died before service, but an Administrator was appointed within the statute of limitations.  This occurred even though the statute of limitations had expired at the time of the amendment.

Appellant/plaintiff did not obtain service on defendant driver in car accident prior to defendant driver’s death.  An administrator was appointed for the estate before statute of limitations expired.  Appellant plaintiff amended complaint in original service and argued the amended complaint related back. Trial court applied Alsabi v. Gailor, but Court of Appeals REVERSED and REMANDED holding the amended complaint related back and not filed untimely in violation of statute of limitations.

“Contrary to the trial court’s interpretation herein, Gailor did not hold that a suit originally filed against a deceased defendant could never be amended past the limitations period. Rather, it held that CR 15.03 does not permit relation back where the proper party did not exist during the limitations period. However, the facts herein are clearly distinguishable. Unlike the administrator in Gailor, the executrix of Johnson’s estate had been appointed almost one year prior to the date Romano filed his original complaint. Thus, this is not a case of a non-existent party at the time suit was originally filed. In fact, the trial court’s conclusion that Gailor supports dismissal even where the Estate (the proper party) actually exists would act to vitiate the specific purpose of the relation back rule. Therefore, unlike Gailor, there remains a question as to whether the Estate knew or should have known about Romano’s action during the limitations period. Accordingly, Romano was entitled to conduct further discovery on the issue of whether the Estate “(a) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (b) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him” so as to satisfy the requirements of the relation back rule under CR 15.03.”



Causes of Action: Parental Duty to Supervise Children

Thomas v. Bottoms, COA, NPO, 12/22/2017

In this case, the COA has a tight summary and analysis of claims for negligent parental supervision of their children.  Briefly, the plaintiff was guest at an outside party and was hit in the back of her head by a water balloon thrown by a five year-old and the other child ducked.  Boom she was hit.

Here are excerpts from the case:

The general rule with respect to a parent’s duty to supervise a child is as follows:

A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent

(b) knows or should know of the necessity and opportunity for exercising such control.

The existence of a parent’s duty to control a minor child largely turns on the foreseeability of the child’s injurious conduct. For a child’s act to be foreseeable, it is not necessary that the child have committed that same act before. A duty to control the child may also arise where the child previously has committed a very similar act and there are circumstances making it foreseeable that the child might later commit the specific act at issue.

Hugenberg v. W. Am. Ins. Co./Ohio Cas. Grp., 249 S.W.3d 174, 181- 82 (Ky. App. 2006) (quoting Restatement (Second) of Torts § 316 (1965)).

. . .

“The essence of a negligent supervision claim is that the parent’s ‘failure to exercise due care has made it possible and probable that the child would injure another.’” Hugenberg, 249 S.W.3d at 181 (citing Moore, 418 S.W.2d at 248). In the present case, no evidence in the record supports that E.B. had previously engaged in conduct that had the potential to cause harm. See generally, James v. Wilson, 95 S.W.3d 875, 887 (Ky. App. 2002) (The minor child went to his high school and shot and killed three students and injured five more. This Court affirmed the granting of the summary judgment as to the parents regarding negligent supervision because there was no evidence that the child had ever exhibited violent tendencies toward anyone.) Therefore, the Breiners were under no duty to take precautionary measures that would have prevented Linda from getting hit with a water balloon.

Regarding Linda’s negligence claims against Nelson Bottom, it is well settled in Kentucky that a social guest is considered a licensee. Shipp v. Johnson, 452 S.W.2d 828 (Ky. 1969); Restatement (Second) of Torts, § 330 cmt. H.3

(1965). “[A] premises owner or occupant owes a duty to a licensee not to willfully or wantonly injure the licensee and to warn of dangerous conditions known by the owner/occupant.” Klinglesmith v. Estate of Pottinger, 445 S.W.3d 565, 567 (Ky. App. 2014). 1 It was not foreseeable that a five-year old child playing with a water balloon would injure an adult at the party, and E.B. had not engaged in similar injurious conduct in the past. Accordingly, there was nothing of which to warn Linda. Moreover, the children were playing out in the open. Accordingly, Linda cannot create a genuine issue of material fact sufficient to survive summary judgment against Nelson Bottoms.

Regarding Linda’s claims against Dixie Bottoms, the landlord, “[a] long line of cases in this Commonwealth hold that when a third person is injured on rented premises his cause of action, except for certain situations, lies against the tenant rather than the landlord.” Rogers v. Redmond, 727 S.W.2d 874, 875 (Ky. App. 1987). Consequently, summary judgment was correctly granted for any claims against Dixie.

In light of the above-stated reasons, the circuit court’s grant of summary judgment to all appellees in this case was warranted. Therefore, we AFFIRM.

From Thomas v. Bottoms

Torts: Breach of Fiduciary Duty

Elements of Case

The common law tort of breach of fiduciary duty requires the plaintiff to plead and prove four basic elements: “(1) the existence of a fiduciary duty; (2) the breach of that duty; (3) injury; and (4) causation.” Baptist Phys. Lexington, Inc., 436 S.W.3d at 193.

Whether a fiduciary duty exists by virtue of the relationship between various actors is generally a question of law for the courts to decide as it essentially involves a policy determination. Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 248 (Ky.1992).

A fiduciary duty is “the highest order of duty imposed by law.” Abbott v. Chesley, 413 S.W.3d 589, 600 (Ky. 2013)

A fiduciary duty is “the highest order of duty imposed by law.” In re Sallee v. Fort Knox Nat’l Bank, N.A., 286 F.3d 878, 891, 893 (6th Cir.2002), Henkin, Inc. v. Berea Bank and Trust Co., 566 S.W.2d 420 (Ky.App.1978). It is not to be lightly required. In an arms-length commercial transaction, where each party is assumed to be protecting its own interest, no such duty arises. Id. at 894.

If a fiduciary relationship does exist between the parties, the question of whether one party breached that duty is one of fact. See Priestley v. Priestley, 949 S.W.2d 594 (Ky.1997).

See, Conlon v. Haise, Court of  Appeals, To Be Published, 2014-CA-001581, Sept. 30, 2016.  Note that WestLaw has this not be be published, but the designation on the opinion says “To Be Published”)

“A fiduciary duty requires more than the generalized business obligation of good faith and fair dealing.” Ballard v. 1400 Willow Council of Co–Owners, Inc., 430 S.W.3d 229, 242 (Ky.2013). “A fiduciary duty is ‘the highest order of duty imposed by law.’ ” Abbott, 413 S.W.3d at 600 (quoting In re Sallee, 286 F.3d at 891). It goes “beyond the standard duty of reasonable care we ordinarily impose.” Associated Ins. Serv., Inc. v. Garcia, 307 S.W.3d 58, 63 (Ky.2010). “It exists where a special confidence is reposed in another who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence.” Lappas v. Barker, 375 S.W.2d 248, 251 (Ky.1963). If a fiduciary relationship exists, the fiduciary must place the other party’s interests ahead of his own. Ballard, 430 S.W.3d at 242. “The fiduciary cannot profit from the relationship without the knowledge and permission of the principal.” Id. at 241–42. When conflict is unavoidable the fiduciary must place the interests of the other above his own. Id.

Such onerous, self-sacrificing duties dictate that the fiduciary relationship “is not to be lightly required.” Snow Pallet, Inc. v. Monticello Banking Co., 367 S.W.3d 1, 5 (Ky.App.2012). Fiduciary relationships arise only when it can be determined that nature of the relationship between the parties is such that the fiduciary “has expressly undertaken to act for the plaintiff’s primary benefit.” Flegles, Inc. v. TruServ Corp., 289 S.W.3d 544, 552 (Ky.2009). “The fact that one businessman trusts another, and relies upon his promise to perform a contract, does not rise to a confidential relationship. … Neither is the fact that the relationship has been a cordial one, of long duration, evidence of a confidential relationship.” Ballard, 430 S.W.3d at 242 (quoting In re Sallee, 286 F.3d at 891–92). “Although fiduciary relationships can be informal, a fiduciary duty does not arise from the universal business duty to deal fairly nor is it created by a unilateral decision to repose trust and confidence; it derives from the conduct or undertaking of the purported fiduciary.” Flegles, Inc., 289 S.W.3d at 552.3


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


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?]

Case Notes: Masterson vs. Siemens Industry, Inc., COA NPO 10/31/2014

An interesting read on the complexity of multiple issues and need to keep on your toes in a car accident case with issues involving causation, pre-existing, burdens, expert testimony, laying foundation for medical bills, vicarious liability, burdens, and more.

Masterson vs. Siemens Industry, Inc.
COA Not Published 10/31/2014; Affirming in part, reversing in part (Jefferson County, J. McDonald)

In this nonpublished decision by the Kentucky Court of Appeals, a multitude of issues were addressed within the context of a motor vehicle collision personal injury claim. We had a defense expert versus a treating physician,  introduction and proof of the medical bills, causation and pre-existing conditions, vicarious liability,  motion for a new trial and the application of an affirmative defense the sudden emergency doctrine.

Case Note – When common law medical negligence instruction given, no need for separate failure to consent instruction (Horsley vs. Dr. Kenneth Smith and KS Eyeworks, COA Published, 2/13/2015)

New Adair County Judicial Center, Columbia, Kentucky.

New Adair County Judicial Center, Columbia, Kentucky.

COA affirmed jury verdict in favor of defendant, Dr. Kennth R. Smith and KS Eyeworks in a medical negligence and informed consent claim. The basic facts were that Dr. Smith advised he should have cataract surgery on both eyes, explained the risks, and indicated he would anesthetize the eyes either with eye drops or an injection. Surgery on right eye was successful with Dr. Smith injecting the anesthetic which was his usual practice. Surgery on the second eye did not go so well when the needle ruptured a blood vessel in Horsley left eye resulting in blindness in the left eye.

The allegation in the complaint were common law negligence and informed consent. The informed consent claim was based upon Dr. Smith not explaining the alternative risks of eye drops versus injections.  After a 3-day trial, the jury returned a defense verdict.

The complaint stated:

4. [I]t was the duty of [Dr. Smith] to exercise that degree of learning, skill, ability, care, attention, diligence, prudence, common sense and vigilance ordinarily possessed by physicians, surgeons and ophthalmologists, practicing under the same or similar circumstances and to obtain [Horsley’s] informed consent regarding the surgical procedures to be performed . . . .

5. [Dr. Smith was] negligent in the care and treatment of [Horsley] in that [he] failed to use the same degree of skill, diligence and care as is possessed by prudent, skillful, careful and knowledgeable physicians, surgeons and ophthalmologists under the same or similar circumstances and otherwise deviated from the standard of care applicable thereto.

6. [Dr. Smith] failed to obtain [Horsley’s] informed consent regarding the surgical procedures performed upon [Horsley].

7. As a direct and proximate result of [Dr. Smith’s] negligence, deviations from the standard of care and lack of informed consent, [Horsley] sustained severe, permanent and disabling injuries . . . .

The case culminated in a three-day jury trial. Horsley argued both that Dr.
Smith negligently administered the anesthesia, and that he failed to adequately
explain the anesthesia could have been administered by using numbing drops
instead of injection. Horsley claimed that had Dr. Smith made him aware of these alternative methods, his decision to undergo surgery may have been different.

On cross-examination, Horsley’s counsel presented Dr. Smith with a page
from the American Medical Association (AMA) website. Dr. Smith agreed with
the statement there that, depending on the situation, it is appropriate to inform a patient of alternatives to the proposed course of treatment and associated risks.

Dr. Smith admitted further that although there are several ways to administer
anesthesia before cataract surgery, his standard practice was to perform an
injection. While Dr. Smith recalled discussing with Horsley the different ways of
administering anesthesia, he conceded that he did not give Horsley the option of selecting his choice of anesthesia.

Horsley also tendered a second instruction which he attributed to Palmore,
Kentucky Instructions to Juries, Fifth Ed., § 23.10. The instruction stated: “With
respect to disclosing to [Horsley] the risks of the surgical operation he proposed to perform on him, it was the duty of [Dr. Smith] to exercise the degree of care and skill expected of a reasonable competent practitioner specializing in ophthalmology and acting under similar circumstances.” (Plaintiff’s Tendered
Instruction No. 2). Except for the introductory clause regarding disclosing risks, the two proposed instructions are substantively identical. However, Horsley did
not offer this instruction as an alternative, but in addition to the first instruction.

Largely consistent with Horsley’s first instruction and paragraph 4 of his complaint, the circuit court instructed the jury as follows:

It was the duty of Dr. Kenneth Smith in treating Wilbert Horsley to exercise the degree of care and skill of a reasonably competent ophthalmologist acting under similar circumstances. If you are satisfied from the evidence that Dr. Smith failed to comply with this duty, and further satisfied that such failure was a substantial factor in causing the injuries complained of by Wilbert E. Horsley, then you will find Dr. Smith at fault.

The jury found for Dr. Smith. Horsley’s motions for a new trial or judgment notwithstanding the verdict were denied, and the trial court entered judgment in accordance with the verdict. Horsley now brings this appeal.

The COA disagreed with Horsley’s claim the doctor had a duty to alert his patient to alternative anesthesia methods and then the duty to obtain consent.

Specifically, the COA “*conclude[d] that informing the patient of risks and options and obtaining consent to surgery are just a few of the many medical responsibilities expected of physicians who must abide by a standard of care defined by the medical profession itself, the failure of which constitutes the breach of a legal duty. All such medical responsibilities can be adequately addressed in a single duty instruction. They always have been and they were in this case.”*

With but one exception which we shall discuss later [Oghia v. Hollan, 363 S.W.3d 30 (Ky. App. 2012)], we have never deviated from the approach in VanMeter, but followed it through an evolving jurisprudence and despite legislative tinkering (as also discussed infra). As discussed below, we have steadfastly applied the bare-bones approach and stuck with a single instruction defining the whole duty of the physician to his patient whether the breach alleged was a physician’s:

(1) “failure to consider the history given by the patient[,]” Mackey v. Greenview Hosp., Inc., 587 S.W.2d 249, 254 (Ky. App. 1979);

(2) “failure to timely diagnose and treat” the patient’s disease, Dennis v. Fulkerson, 343 S.W.3d 633, 634 (Ky. App. 2011);

(3) “improperly administer[ing] anesthesia[,]” Cohen v. Alliant Enters., Inc., 60 S.W.3d 536, 538 (Ky. 2001) (citing Copeland v. Humana of Kentucky, Inc., 769 S.W.2d 67 (Ky. App. 1989);

(4) “failure adequately to inform the patient” of risks associated with treatment, Keel v. St. Elizabeth Medical Ctr., 842 S.W.2d 860, 862 (Ky. 1992);

(5) “negligence . . . in performing the surgery[,]” Engle v. Clarke, 346 S.W.2d 13, 15 (Ky. 1961).

(6) “improper treatment[,]” Johnson v. Vaughn, 370 S.W.2d 591, 597 (Ky. 1963);

(7) “get[ting] beyond the field of the operation and injur[ing] some sound portion of the patient’s body not involved in the operation,” Fields v. Rutledge, 284 S.W.2d 659, 661 (Ky. 1955); or

(8) “negligence . . . in postoperative care[,]” Engle v. Clarke, 346 S.W.2d 13, 15 (Ky. 1961).

In none of these cited cases did the court give a separate jury instruction, specific to the identified medical responsibility, to supplement the general legal duty instruction. A second, more specific instruction risks improperly “giv[ing] undue prominence to certain facts and issues.” Fields, 284 S.W.2d at 662.

However, Horsley points us to a particular passage in Campanell “that instructions should not blend distinct legal concepts. Liability can be premised separately based on lack of informed consent and deviation from the standard of care.” Id. We interpret this bit of unpublished dicta consistently with established case law and our analysis that lack of informed consent is not a separate tort. At most, this passage is an unartful way of saying what was first said more than a hundred years ago in VanMeter, supra.

The COA spent a significant portion of their efforts in affirming the defense verdict addressing what some refer to as a malpractice crisis and Defendant’s expert Dr. Smith who sent newspaper articles to Horsley anonymously and then testified falsely at trial.  The Trial Court’s sanction of denying a default judgment but ordering the disclosure of the false testimony was admissible at trial.

COA affirmed the defense verdict.

Click on “continued reading” for the full text of the opinion.

Case Notes: Plaintiff prevails in excluding evidence at trial but loses $1.9 million verdict on appeal when it should have come in – Motorists Mutual Ins. Co. vs. Gypsie Thacker (COA, NPO 2/6/2015)

Adair Court House, built 1886 but with enlarged portion.  Image provided courtesy of Keith Vincent -

Adair Court House, built 1886 but with enlarged portion. Image provided courtesy of Keith Vincent –

Trying cases is tough.  You are in the arena which can seem like a war zone, making decisions in a blink of an eye, but always keeping the other eye looking to preserve errors for appeal so when the case is “tried” again on appeal.

However, this preservation of error can, and does, carry with it the potential of cutting both ways.  Plaintiff’s attorney, in this case, kept out the unfavorable evidence, the trial judge agreed, but the three judge panel from the Court of Appeals deemed otherwise, and ruled against the Plaintiff.

With nearly $2 million at stake, this is not over at the appellate level.  A petition for rehearing has been filed as of February 24, 2015 with no decision made as of the time of this post, and after that, let us not forget a Motion for Discretionary Review (MDR).

For those curious about the appellate jousting, click here for the case information page at the Court of Appeals on this case.

For the techno-curious and who might even be interested in some shape or fashion including links to case information at the COA or SC in their own web sites or blogs, here are two little behind the scene tricks I am willing to share with you:

All you need do is insert the case number minus the hyphens for your case at the point noted by italics above and copy into your browser or in your “link”.

Ditto for the insertion of case number.

Here is a squib of the decision followed by extracts, then links to the full text at the AOC.  Click on continue reading to, uh uh, continue reading.

In Motorists Mutual Ins. Co. vs. Gypsie Thacker (NPO), the Court of Appeals reversed and remanded a $1.9 million verdict for an uninsured motorist benefits suit from a Florida car accident when the trial court ruled in Plaintiff’s favor and denied defendant insurer access to plaintiff’s psychotherapy records after judge’s in camera review.  The trial judge ruled there was no information relevant to injury plaintiff’s claims nor would it lead to discovery of relevant evidence.   Thus, you can win the battle but lose the war.

Case Notes: Of bad faith and duties to defend, investigate and indemnify – Demetre vs. Indiana Insurance Co., COA Published, Jan. 30, 2015

Bad faith synonyms in a non-legal context should help provide context for this delict.

Bad faith synonyms in a non-legal context should help provide context for this delict. Screen capture from

Is a reservation of rights and providing the insured counsel, a defense to statutory and contractual bad faith claims?  The Court of Appeals basically said – nope, it ain’t.  The following opinion by Judge Thompson provides not only a tight and succinct analysis of bad faith law, with a little bit of history Justice Leibson’s dissent in Federal Kemper, but one of the best explanations I have read on how emotional damages in the Osborne v. Keeney, 399 S.W.3d 1 (Ky. 2012) decision fit in to all of this.

The COA referenced the crux of Indiana’s defense – “Indiana Insurance argues it cannot be liable as a matter of law under any theories advanced because it provided defense counsel to Demetre and indemnification in compliance with the insurance policy provisions. To the extent it relies solely on its satisfaction of the express policy provisions, Indiana Insurance’s argument misses the mark. This is not a breach of contract action but is premised on three theories of bad faith, two based on statutory law and one on common law.”

Please look closely at the bad faith analysis and how Indiana Insurance Company treated its insured poorly by its conduct upon filing the claim by Demetre and its lack of investigation into the claim while hiding under a reservation of rights.  Briefly, “We have previously held an insurer cannot shield itself from its own bad faith actions by retaining legal counsel for its insured. “[I]t remains ultimately responsible for its own non-delegable statutory duty to properly investigate claims -19-and adjust them in harmony with the terms and conditions of its policy.” Hamilton Mut. Ins. Co. of Cincinnati v. Buttery, 220 S.W.3d 287, 294 (Ky.App. 2007). It was the conduct of Indiana Insurance, not the adequacy of Schenkel’s representation, that evidenced bad faith.”

However, I wish to highlight for you the emotional damages analysis of Osborne v. Keeney, 399 S.W.3d 1 (Ky. 2012) in the context of this decision.  No experts needed if the mental anguish and anxiety are damages from the cause of action, but experts ARE needed if the mental anguish and anxiety is an element of proof in the cause of action.  That makes a lot of sense to me.

The question is whether the heightened proof requirements in Osborne extends to bad faith claims under the Unfair Claims Settlement Practices Act where damages for mental anguish and anxiety have been traditionally permitted without an impact and without expert testimony. As noted in FB Ins. Co. v. Jones, 864 S.W.2d 926, 929 (Ky.App. 1993), the Unfair Claims Settlement Practices Act prohibits behavior that is egregious. Consequently, damages are available as permitted by KRS 446.070 which states: “A person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation, although a penalty or forfeiture is imposed for such violation.” In FB Insurance, the Court held those damages include damages for anxiety and mental anguish in claims pursuant to KRS 304.12-230. FB Insurance, 864 S.W.2d at 929.

In Motorists Mutual Ins. Co. v. Glass, 996 S.W.2d 437, 454 (Ky. 1997), the Court not only confirmed that damages for anxiety and mental anguish are recoverable in statutory bad faith claims, but it also set forth the proof required: 1 Indiana Insurance cites unpublished federal decisions applying Osborne in contexts other than statutory bad faith claims. We are not bound by those decisions predicting how Kentucky appellate courts would rule and do not find them persuasive on a factual basis. -26-“[E]ntitlement to such damages requires either direct or circumstantial evidence from which the jury could infer that anxiety or mental anguish in fact occurred.” Id.

Although written in the context of a violation of the Kentucky Civil Rights Act, our Supreme Court has distinguished between statutory actions where emotional distress damages are recoverable and the elements of the tort of IIED which requires the distress be severe. In Childers Oil Co., Inc. v. Adkins, 256 S.W.3d 19, 28 (Ky. 2008), the Court expressly rejected any requirement that the plaintiff prove her emotional distress was severe. It pointed out the action was not filed as an IIED claim but was an action under the Kentucky Civil Rights Act. It held the plaintiff’s testimony alone supported an award for anxiety and mental anguish and, because such damages were permissible, the question was simply whether the damages were excessive. Id.

Osborne did not alter the law cited. A claim brought under the Unfair Claims Settlement Practices Act is not a NIED or an IIED claim; it is a claim under the Act for compensatory damages, which include damages for emotional distress. In other words, emotional pain and suffering, stress, worry, anxiety or mental anguish are not elements of the cause of action but are consequences of the insurer’s violation of the Act for which the insured is entitled to be compensated.


Case Notes: Wrongful death claim accrued from date no later than defendant’s indictment (Flick vs. Estate of Christina Wittich; COA Published 2/6/2015)

Harlan County Court House, 1886. Photo from old postcard captured by Keith Vincent.  These and others can be found at his web site for all 50 states!

Harlan County Court House, 1886.
Photo from old postcard captured by Keith Vincent. These and others can be found at his web site for all 50 states!

COA, Published 2/6/2015

MAZE, JUDGE: Michael Joseph Flick appeals from a judgment of the Fayette Circuit Court finding him liable for the wrongful death of Christina Wittich andawarding compensatory and punitive damages to Wittich’s Estate. Flick primarily argues that the trial court erred by denying his motion to dismiss because the complaint was filed beyond the one-year statute of limitations for wrongful death provided under KRS 1 413.140(1). We conclude that the cause of action against Flick accrued no later than the date of his indictment, and, by operation of KRS 413.180, the Estate had two years from that date to bring the complaint. Since this action was not brought within that time, the trial court erred by denying the motion to dismiss. Hence, we reverse the judgment and remand for entry of an order dismissing the complaint.

* * *

As noted above, it is well-established that an action for wrongful death is subject to the one-year statute of limitations in KRS 413.140(1). Conner, 834 S.W.2d at 653-54. Under KRS 413.180, the action must have been brought within one year from the appointment of the personal representative, but not more than two years from the date the cause of action accrued. KRS 413.190 allows the limitations period to be tolled for any period that the defendant “abscond[s] or conceal[s] himself or by any other indirect means obstructs the prosecution of the action ….” Thus, the statute of limitations did not accrue until the Estate knew or had reason to know of both the injury (Wittich’s death), and that it may have been caused by Flick’s conduct. Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 819 (Ky. 1991).

* * *

Given the facts of the current case, we need not decide the precise date when the cause of action accrued. But under the circumstances, we conclude that the Estate had to know of its claim against Flick no later than the date of the indictment. At that point, the grand jury found probable cause to charge Flick with the murder. Furthermore, the grand jury was not bound by any prior probablecause determination in district court. Commonwealth v. Yelder, 88 S.W.3d 435, -7-437 (Ky. App. 2002). Thus, the Estate had until no later than July 18, 2007, to bring this action. The court in DiGiuro reasoned that the limitations period should be tolled because any civil claim would have to be stayed until the defendant was convicted of the murder. However, the Kentucky Supreme Court has recognized that certain civil claims may have to be brought before the related criminal charges are resolved. See Dunn v. Felty, 226 S.W.3d 68 (Ky. 2006), holding that the statute of limitations for false imprisonment accrues upon termination of the wrongful imprisonment, rather than on the date when the criminal charges are dismissed. Id. at 73-74. In such cases, the civil claim should be held in abeyance pending the outcome of the criminal trial. Id. at 74. We also note that Lambirth filed his civil claim against Flick within one year of the assault, although the action was held in abeyance until after Flick was convicted. Flick v. Lambirth, 2010 WL 4740292 (Ky. App. 2010)(2009-CA-001679-MR), at *3. We see no reason to apply a different standard to the current case.

Continue reading below for full text of this decision.

Case Notes: Another Court of Appeals, Post-Shelton, “open and obvious”, slip and fall, jury question, question – Ward vs. JKP Investments LLC and James Kevin Porter, COA Published 1/23/2015

Attorneys representing the injured claimants on the appeals in the Shelton v. Kentucky Easters Seals and Dicks Sporting Goods vs. Webb, both argued on same date. From Left to right - Kelly Spencer &  Brad Slutskin for Betty Webb, Joe Pepper for Wilma Jean Shelton, and Kevin Burke on Amicus Brief for Kentucky Justice Association

Attorneys representing the injured claimants on the appeals in the Shelton v. Kentucky Easters Seals and Dicks Sporting Goods vs. Webb, both argued on same date.
From Left to right – Kelly Spencer & Brad Slutskin for Betty Webb, Joe Pepper for Wilma Jean Shelton, and Kevin Burke on Amicus Brief for Kentucky Justice Association

The title of this post says it all, and to put it in perspective, I will lead with Judge Maze’s dissent from the majority in this decision (Judges Vanmeter and Kramer (formerly Moore)).  I was present during the oral arguments before the Supreme Court of Kentucky, have read the triad of decisions by SCOKY, and most unabashedly must confess Judge Maze, in my humble opinion, got it right.

And, when it comes to the human mind and foreseeability, I refer you to the book “the invisible gorilla” by Christoper Chabris and Daniel Simons.

Chief Justice Minton said it best, as follows, in Shelton:

We alter the analysis performed in this and future cases of this sort such that a court no longer makes a no-duty determination but, rather, makes a nobreach determination, dismissing a claim on summary judgment or directed verdict when there is no negligence as a matter of law, the plaintiff having failed to show a breach of the applicable duty of care. This approach places the reasonable-foreseeability analysis where it belongs—in the hands of the factfinders, the jury. This approach continues Kentucky’s, along with a growing number of states’, slow, yet steady, progress to modernize our tort law and eliminate unfair obstacles to the presentation of legitimate claims. And this approach brings transparency and consistency to the decision-making and reasoning of Kentucky’s judges.

Here are the three decisions from SCOKY:

I would suspect this issue will go up to the Supreme Court for a third time.  Especially, since attorney Joe Pepper was arguing for the injured party in both Shelton vs. Kentucky Easter Seals and Janice Ward vs. JKP Investments.  And come heck or high water, my wife, Diane and I will be present again.

Janice Ward vs. JKP Investments, LLC
COA Published 1/23/2015
Opinion affirming; Jefferson Cir. Ct. (Judge James M. Shake)
VANMETER, JUDGE: Janice Ward appeals from the Jefferson Circuit Court’s order dismissing via summary judgment her personal injury action against JKP Investments, LLC. Upon review of the record and applicable law, we affirm.

* * *

The Jefferson Circuit Court’s order is affirmed.



MAZE, JUDGE, DISSENTING: I respectfully dissent. Though I find no fault with my colleagues’ summation of current premises liability law in Kentucky, I nevertheless believe that law compels a different result in the present case.

Following an initial attempt in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), our Supreme Court recently continued its efforts to square Kentucky’s premises liability law with the Commonwealth’s adherence to the doctrine of comparative negligence. Most notably, in Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901, 904 (Ky. 2013), the Supreme Court stated its intention to “alter the analysis performed in this and future cases of this sort such that a court no longer makes a no-duty determination but, rather, makes a no-breach determination” and to place “the reasonable-foreseeability analysis where it belongs-in the hands of the fact-finders, the jury.” The impact of the Court’s reasoning in Shelton, and even Dicks Sporting Goods, Inc. v. Webb, 413 S.W.3d 891 (Ky. 2013), on summary judgment in premises liability cases could hardly have been greater.

In its opinion in the present appeal, the majority contends that because the condition of the stair was not concealed, and because the plaintiff failed to observe its condition throughout her previous trips up and down the stairs, the risk posed by the crumbling step was not unreasonable. Hence, my colleagues conclude that “reasonable minds cannot differ or it would be unreasonable for a jury to find breach or causation” and that summary judgment was appropriate.

Due to the aforementioned changes in premises liability law, I must disagree with my colleagues, as I believe the case requires a jury’s determination.

The Supreme Court’s decision in Shelton expressly eliminated much of the emphasis on a condition’s “open and obvious” nature, removing it as a fact which, if shown, would absolve a defendant of his duty and placing it as a mere factor to be considered in determining breach and causation. This shifted the analysis from one of legal calculation to one of factual determination only to be summarily ended when reasonable minds could not differ as to breach and causation. I proffer that this is not the case.

Rather, in light of our Supreme Court’s decision in Shelton, I contend that the questions of foreseeability, Janice’s attention or inattention to the condition of the step and where she was stepping, and the open and obvious nature of the step must remain to inform a jury’s analysis of the defendant’s breach and even the comparative fault of the parties in this case. While the Supreme Court announced that summary judgment remains a viable possibility in premises liability cases, it is undeniably more difficult to obtain after Shelton. This being the case, and on these facts, I believe it was inappropriate for the trial court to grant summary judgment, and that the matter must proceed to a jury.

Continue reading for the entire text of the COA decision.