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.

Court Costs. Trial Court’s Discretion. Video and transcript of deposition reimbursable; Costs of Trial Exhibits Reimbursable (Occidental Fire and Casualty Co. vs. Moore COA Not Pub. 9/6/2013)

Occidental Fire and Casualty Co. vs. Moore
COA Not Pub. 9/6/2013
Court costs included transcript and video of same deponent and costs of trial exhibits.  COA affirmed both awards by the trial judge.

Depositions.  The award of costs to the prevailing party is within the discretion of the trial court. Lewis v. Charolais Corp., 19 S.W.3d 671 (Ky. App. 1999).  Costs are recoverable for depositions “whether taken stenographically or by other than stenographic means.” This means the costs for the original written and videotaped depositions are recoverable.

Exhibit costs.  Occidental also claims that Moore’s counsel is not entitled to recover the costs for trial exhibits. KRS 453.050 states in relevant part: The bill of costs of the successful party shall include, in addition to other costs taxed, the tax on law process and official seals, all fees of officers with which the party is chargeable in the case, postage on depositions, the cost of copy of any pleading or exhibit obtained, the cost of any copies made exhibits and the allowance to witnesses, which the court may by order confine to not more than two (2) witnesses to any one (1) point.  This statute specifically allows for the recovery of the costs related to exhibits; therefore, there is no abuse of discretion or error.

Damages. Impairment (Occidental Fire and Casualty Co. vs. Moore COA Not Pub. 9/6/2013)

Occidental Fire and Casualty Co. vs. Moore
COA Not Pub. 9/6/2013
Impaired earning capacity.

With regard to permanent impairment, the COA noted that Dr. Heilig testified that Moore suffered a permanent impairment due to the injuries he received in the accident. Dr. Heilig testified that Moore sustained a 12% permanent whole body impairment. Dr. Heilig utilized the AMA Guide to the Evaluation of Permanent Impairment to come to this conclusion. This evidence of permanent injury was sufficient to make this an issue for the jury.

“[E]vidence of permanent injury alone is sufficient for an instruction on permanent impairment of earning power, and … the jury can through their common knowledge and experience make the determination if there has been a permanent impairment of earning power, the extent of such impairment, and the amount of damages for such impairment.” Reece v. Nationwide Mut. Ins. Co., 217 S.W.3d 226, 229 (Ky. 2007).

Damages. Future Medical Expenses (Occidental Fire and Casualty Co. vs. Moore COA Not Pub. 9/6/2013)

Occidental Fire and Casualty Co. vs. Moore
COA Not Pub. 9/6/2013
Future Medical Expenses.  Impaired earning capacity.
Physician testified to $5,000 in future medicals, and his medical records identified the need for two MRI’s.  Plaintiff claimed both as items of future medicals, the trial court admitted the evidence, and the COA found no error.

“Evidence of future medical expenses must be ‘positive and satisfactory.’ ” Ellison v. Kentucky Farm Bureau Mut. Ins. Co., 2010 WL 2696289, 5 (Ky. App. 2010), quoting Howard v. Barr, 114 F.Supp. 48, 50 (W.D. Ky. 1953).4 Here, we have the medical records of Dr. Wheeler which ordered two MRI’s and physical therapy. Specific orders for these future medical expenses are “positive and satisfactory” evidence. In addition, Occidental did not introduce evidence demonstrating they were not medically necessary. We find no error.  Note that the plaintiff did not follow through with those orders because he could not afford the cost, hence why it was presented as future medical expenses.

CAUSATION: “Substantial factor” and causation of harm in negligence cases (Moloney v. Becker, COA, PUB 4/12/2013)

The Court of Appeals addresses causation and substantial factor in making the link from negligence to harm:

ESTATE OF MABEL C. MOLONEY VS. BECKER
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
NICKELL (CONCURS) AND TAYLOR (CONCURS)
2011-CA-001773-MR
TO BE PUBLISHED 4/19/2013
BRACKEN

VANMETER, JUDGE: The Estate of Mabel C. Moloney (“Estate”) appeals from the Bracken Circuit Court judgment, as well as its order denying the Estate’s motion for a judgment notwithstanding the verdict (JNOV), resulting in the dismissal of its complaint alleging negligence against John Becker. For the following reasons, we affirm. ***

Causation is a question of fact when “‘the jury may reasonably differ as to whether the conduct of the defendant has been a substantial factor in causing the harm to the plaintiff.’” Pathways, Inc. v. Hammons, 113 S.W.3d 85, 92 (Ky. 2003) (citation omitted). In a negligence case such as this one, “the jury resolves any conflicts in the testimony and also any conflicts in the reasonable inferences to be drawn from the testimony[.]” Horton v. Union Light, Heat & Power Co., 690 S.W.2d 382, 385 (Ky. 1985) (citations omitted).

Kentucky has adopted the “substantial factor” test to establish causation, which was explained in Deutsch v. Shein, 597 S.W.2d 141 (Ky. 1980), as follows:

“In order to be a legal cause of another’s harm, it is not enough that the harm would not have occurred had the actor not been negligent. (T)his is necessary, but it is not of itself sufficient. The negligence must also be a substantial factor in bringing about the plaintiff’s harm.

The word ‘substantial’ is used to denote the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called ‘philosophic sense,’ which includes every one of the great number of events without which any happening would not have occurred. Each of these events is a cause in the so-called ‘philosophic sense,’ yet the effect of many of them is so insignificant that no ordinary mind would think of them as causes.”

Id. at 144 (quoting Restatement of Torts, Second sec. 431, Comment a.) In determining whether an event is a substantial factor in causing an injury, courts should consider:

(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;

(b) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible;

(c) lapse of time.
Restatement (Second) of Torts § 433 (1965).

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Prejudgment Interest: Oliver vs. Hilliard, COA, NPO, 3/1/2013

OLIVER (ROBERT C.)
VS.
HILLIARD (J.J.B.), ET AL.
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING
CLAYTON (PRESIDING JUDGE)
COMBS (CONCURS) AND THOMPSON (DISSENTS)
2010-CA-001138-MR
2010-CA-001236-MR;
2010-CA-001428-MR;
2010-CA-001479-MR
NOT TO BE PUBLISHED
JEFFERSON

Note that in addition to addressing prejudgment interest, COAKY took a look at emotional distress not being admissible for punitive damages and the propriety of the tender following the verdict and judgment.

CLAYTON, JUDGE: The Appellant/Cross-Appellee, Robert Oliver, appeals several rulings by the trial court and Appellee/Cross-Appellant J.J.B. Hilliard, W.L. Lyons, Inc. (Hilliard Lyons) also appeals the decision of the trial court. Based upon the following, we affirm in part, reverse in part and remand.

In Church & Mullins Corp. v. Bethlehem Minerals Co., 887 S.W.2d 321, 325 (Ky. 1992), the Kentucky Supreme Court held that “[t]he determination as to whether or not to award prejudgment interest is based upon the foundation of equity and justice. It is a determination to be made by the trial court and to be disturbed by an appellate court only upon a showing of an abuse of discretion.” In Nucor Corp. v. Gen. Elec. Co., 812 S.W.2d 136, 144 (Ky. 1991), the Court set forth that the determination of prejudgment interest was a decision the judge would make, not a jury. The Court went on to cite the Restatement (Second) of Contracts § 354 as follows:

Id.

The award of prejudgment interest, as it would apply to the contract theory in this case, is covered in the Restatement (Second) of Contracts § 354, “Interest as Damages,” as follows:

(1) If the breach consists of a failure to pay a definite sum in money or to render a performance with fixed or ascertainable monetary value, interest is recoverable from the time for performance on the amount due less all deductions to which the party in breach is entitled. (2) In any other case, such interest may be allowed as justice requires on the amount that would have been just compensation had it been paid when performance was due.

Thus, where the subject matter of the breach of contract claim falls under subsection (1) above, interest is due as a matter of course, and where, as in this case, it falls under subsection (2) above, interest “may be allowed as justice requires.” Both subsections presuppose the trier of fact, judge or jury, has decided both the question of breach of contract and the amount due for the breach before reaching the question of interest as damages.

Subsection (1) is applicable in this situation. Oliver was terminated from his position of employment. His agreement with his employer was that he would continue on with his employment for the transition period for a specific sum of money. The jury found that Hilliard Lyons did not fire Oliver for cause and that he was entitled to the monies the parties had agreed to. Thus, we conclude that the trial court abused its discretion in failing to award prejudgment interest in this case.

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Damages: Punitive Damages addressed in Crutcher v. Harrod Concrete, Pub. COA, 3/22/2013

CRUTCHER (B. TODD), ET AL.
VS.
HARROD CONCRETE AND STONE CO.
OPINION AFFIRMING IN PART, REVERSING AND VACATING IN PART, AND REMANDING
NICKELL (PRESIDING JUDGE)
COMBS (CONCURS) AND MOORE (CONCURS)
2010-CA-001750-MR
2010-CA-001801-MR
TO BE PUBLISHED
FRANKLIN

Kentucky courts award punitive damages “to punish and to discourage

[the defendant] and others from similar conduct in the future.” KRS 411.184(1)(f); see also Schneider, 15 S.W.3d at 375. They are an option only upon a clear and convincing showing that a defendant acted with “oppression, fraud or malice.”9 KRS 411.184(2). They “are allowed because the injury has been increased by the manner it was inflicted.” Chiles v. Drake, 59 Ky. (2 Metc.) 146, 151, 74 Am.Dec. 406 (1859). They are “not awarded for mere inadvertence, mistake, errors of judgment and the like, which constitute ordinary negligence.” Restatement (Second) of Torts § 908 cmt. b. (1979).

One may fail to exercise slight, or any care, resulting in an accident, which will not make him liable for punitive damages; but in order to justify the assessment of such damages there must be the element, either of malice or willfulness, of such an utter and wanton disregard of the rights of others as from which it may be assumed he was acting either maliciously or willfully.

W.T. Sistrunk & Co. v. Meisenheimer, 205 Ky. 254, 265 S.W. 467, 468 (1924). Unlike the goal of compensatory damages, which is to make an injured party whole by allowing him to recover all the actual damage he has sustained, punitive damages are not intended to make the plaintiff whole. They serve a broader function; they are aimed at deterrence and retribution. State Farrm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). “[A]lthough usually awarded at the same time by the same decisionmaker, (they) serve different purposes.” Campbell, 538 U.S. at 416, 123 S.Ct. 1519 (citing Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 432, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001)). When awarded, punitive damages provide a windfall to a plaintiff who has already been fully compensated and a punishment to the defendant whose outrageous conduct society seeks to prevent from recurring.

Harrod’s actions were particularly reprehensible because the encroachment and taking were hidden from view and could have been avoided had Harrod verified its aboveground boundaries and correlated them to its underground mining activities. We heard no testimony at trial that technology was nonexistent to accomplish that feat in 2002, only that techniques subsequently employed were “cutting edge.” It seems curious that the Kentucky Office of Surface Mining Regulation and Enforcement, not Harrod, discovered the encroachment and apprised Harrod he had mined Crutcher’s land without a permit by issuing a citation. Thus, Harrod should expect no praise for its confession of error to Crutcher. But for issuance of that citation and the subsequent events associated with this case, Harrod may still be blissfully unaware of its precise underground location and Crutcher’s ground could be minus even more limestone.

As expressed in the Restatement (Second) of Torts § 908(2) (1979), “[p]unitive damages may be awarded for conduct that is outrageous, because of the  defendant’s evil motive or his reckless indifference to the rights of others.” See also Hensley v. Paul Miller Ford Inc., 508 S.W.2d 759, 762 (Ky. 1974). In a tort case, the threshold for determining whether punitive damages are authorized is not whether the injury was inflicted negligently or intentionally, but whether it had “the character of outrage[.]” Id. A proper instruction defines this as “a wanton or reckless disregard for the lives, safety or property of other persons.” Horton v. Union Light, Heat & Power Co., 690 S.W.2d 382, 389 (Ky. 1985) (citing Fowler v. Mantooth, 683 S.W.2d 250 (Ky. 1984)). The instruction given on punitive damages in this case required jurors to find that Harrod “acted in reckless disregard for the property of others.” However, before reaching this instruction, jurors had already found Harrod had committed a trespass10—the equivalent of failing to exercise reasonable care. States Corporation v. Shull, 216 Ky. 57, 287 S.W. 210 (1926) (Evidence of a trespass tends “to show the want of reasonable care[.]”).

As further explained in Horton,

to justify punitive damages there must be first a finding of failure to exercise reasonable care, and then an additional finding that this negligence was accompanied by “wanton or reckless disregard for the lives, safety or property of others.” This bears an element not distinguishable from malice implied from the facts.

The concept of punitive damages represents more than mere blind adherence to ancient precedent. It is as just a principle and as fair to the litigants today as it ever was. Improperly applied, it may indeed be nothing more than a windfall or a double recovery. But there are few if any principles of law which could not be criticized as sometimes misapplied.

It would be simplistic to characterize this virtual unanimity [among the states in adhering to the concept of punitive damages] as mere blind adherence to an outmoded principle. Rather, the doctrine of punitive damages survives because it continues to serve the useful purposes of expressing society’s disapproval of intolerable conduct and deterring such conduct where no other remedy would suffice. Mallor and Roberts, Punitive Damages Toward a Principled Approach, 31 Hastings L.J. 639, 641 (1980).

Horton, 690 S.W.2d at 389-90.
According to the proof developed at trial, Harrod knew its mining operation was headed toward Crutcher’s land, but rather than confirming its proximity to Crutcher’s land, it assumed—always a dangerous strategy—it was well within its own sizeable acreage and continued mining. Harrod’s actions were unacceptable and can be neither condoned nor encouraged.

In Holliday v. Campbell, 873 S.W.2d 839, 841-42 (Ky. App. 1994), “not tak[ing] the trouble to locate” a property line marked by a partial wire fence was sufficient evidence on which to award punitive damages for trespass and unauthorized logging. The similarities in Holliday, involving logging, and the case sub judice, involving unobservable underground mining, are too compelling to ignore. Harrod’s conduct in not bothering to confirm its precise location was outrageous and, therefore, an award of punitive damages was appropriate.

Having determined an award of punitive damages was authorized in this case, we cannot, however, agree that an award of $902,000.00 was appropriate.

In Kentucky, the assessment of punitive damages requires consideration of not only the nature of the defendant’s act, but also the extent of the harm resulting to the plaintiff. Fowler v. Mantooth, Ky., 683 S.W.2d 250, 253 (1984). In other words, the jury is to consider not only the defendant’s conduct, but the relationship of that conduct to the injury suffered by this particular plaintiff.

Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 412 (Ky. 1998). It was appropriate for jurors to know the market value of the limestone Harrod removed, both to determine the award of compensatory damages, and to quantify the nature of Crutcher’s harm. However, it was erroneous to award Crutcher the market value of the limestone as punitive damages because there is no direct correlation between punitive damages and Crutcher’s loss, Campbell, 538 U.S. at 416.

More importantly, punitive damages cannot be transformed into compensatory damages without negating the specific purpose of the award. While there is no standard for setting punitive damages, Kentucky’s legislature identified five factors in KRS 411.186(2) that jurors are to consider:

(a) The likelihood at the relevant time that serious harm would arise from the defendant’s misconduct;

(b) The degree of the defendant’s awareness of that likelihood;

(c) The profitability of the misconduct to the defendant;

(d) The duration of the misconduct and any concealment of it by the defendant; and

(e) Any actions by the defendant to remedy the misconduct once it became known to the defendant.

Since we are vacating and remanding the case for a new determination of punitive damages, we need not address whether the trial court correctly reduced the jury verdict from $902,000.00 to $144,000.00 other than to say an award of punitive damages at a rate 25 times the award of compensatory damages could easily “cross the line into the area of constitutional impropriety” when it has been recognized that a ratio of just 4:1 “might be ‘close to the line[.]’” McDonald’s Corporation, 309 S.W.3d at 300 (quoting BMW of North America, Inc. v. Gore, 517 U.S. 559, 581, 116 S.Ct. 1589, 1602, 134 L.Ed.2d 809 (1996) (citing Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23-24, 111 S.Ct. 1032, 1046, 113 L.Ed.2d 1) (1991)).

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Damages: Compensatory damages, willful trespass; Cruther v. Harrod Concrete, Published COAKY, 3/22/2013

CRUTCHER (B. TODD), ET AL.
VS.
HARROD CONCRETE AND STONE CO.
OPINION AFFIRMING IN PART, REVERSING AND VACATING IN PART, AND REMANDING
NICKELL (PRESIDING JUDGE)
COMBS (CONCURS) AND MOORE (CONCURS)
2010-CA-001750-MR
2010-CA-001801-MR
TO BE PUBLISHED
FRANKLIN

 

NICKELL, JUDGE: This appeal determines the measure of damages for underground removal of limestone by a willful trespasser. We write on a clean slate. For the following reasons, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

Compensation is always the aim of the law. It is ‘the bottom principle of the law of damages. To restore the party injured, as near as may be, to his former position is the purpose of allowing a money equivalent of his property which has been taken, injured, or destroyed.’  Hughett, 313 Ky. at 91, 230 S.W.2d at 96 (quoting Cincinnati, N. O. & T. P. Ry. Co. v. Falconer, 30 Ky.L.Rptr. 152, 97 S.W. 727, 728 (1906)). As has been stated more recently, “[t]he object of compensatory damages is to make the injured party whole to the extent that it is possible to measure his injury in terms of money.” Ky. Cent. Ins. Co. v. Schneider, 15 S.W.3d 373, 374 (Ky. 2000) (citing 22 Am.Jur.2d Damages § 26 (1988)). Because Harrod admits the encroachment and the unauthorized removal of 164,000 tons of limestone from Crutcher’s land, the crux of this appeal is what amount of money will fairly compensate Crutcher for the trespass to its property and the limestone removed from its land.

Throughout the pendency of this case, Crutcher vigorously urged the trial court to measure compensatory damages for a willful encroachment and taking of limestone by the value of the material at the time of removal—without reduction for the expense of mining—coincidentally, the same measure that would apply to the removal of coal. Griffith v. Clark Mfg. Co., 212 Ky. 498, 279 S.W. 971, 972 (1926). “Where the trespass is willful, and not the result of an honest mistake, the measure of damages is the value of the coal mined at the time and place of its severance, without deducting the expense of severing it.” North Jellico Coal Co. v. Helton, 187 Ky. 394, 219 S.W. 185 (1920). Where the taking is due to an honest mistake, the owner is entitled to recover the value of the coal “in place”. Griffith, 279 S.W. at 972. A similar measure has been applied to the taking of fluorspar. Hughett v. Caldwell County, 313 Ky. 85, 92, 230 S.W.2d 92, 96-97 (1950). Consistent with this approach and citing Griffith as authority, Crutcher further contended that any evidence of the value of its land, its “condition, nature, accessibility or use[,]” or “the ability or inability . . . to remove marketable stone from said property” was irrelevant and should be excluded from trial.

With equal vigor, Harrod argued Kentucky courts have held limestone is not a mineral, Little v. Carter, 408 S.W.2d 207, 209 (Ky. 1966), and therefore, the measure of damages could not be the formula applied to the taking of valuable coal, Kentucky’s state mineral. KRS2 2.094. Harrod asserted the proper measure of recovery was the difference in the fair market value (FMV) of Crutcher’s land immediately before and after the encroachment/removal—the traditional measure of damages applied in non-coal/non-mineral cases. Ellison v. R & B Contracting, Inc., 32 S.W.3d 66, 69 (Ky. 2000) (Kentucky courts have affirmed two types of damages in injury-to-property cases: for permanent injury, “the amount by which the fair market value of the property decreased immediately prior to and after the trespass”; and for temporary injury, “the cost to return [the property] to its original state.”).

Errors require us to reverse those portions of the trial dealing with the measure of damages. While jurors were not required to explain how they calculated the damages awarded, it appears they may have given Crutcher the full FMV of its land plus a royalty as compensatory damages, and then awarded Crutcher the market value of the limestone in punitive damages. Such a result is inconsistent with the law for the reasons that follow. Therefore, reversal, vacation and remand on the issue of damages, both compensatory and punitive, is necessary.

Our decision leaves intact, however, two of the jury’s findings— chiefly, that Harrod committed a trespass and that it occurred with reckless disregard—both of which are supported by sufficient evidence. Harrod admitted encroaching upon Crutcher’s land and removing 164,000 tons of limestone without authority. While Harrod maintained the encroachment was an honest mistake, there was sufficient evidence to lead jurors to believe otherwise, including the lack of a boundary survey for at least six years5 despite Harrod’s request for a proposal for such a survey in 1996 from HMB Professional Engineers, a company whose forte appears to be mapping underground progression of mining activity—not surface boundaries. Pursuant to Sandlin v. Webb, 240 S.W.2d 69, 70 (Ky. 1951),

An intentional or reckless omission to ascertain the rights or the boundaries of land of his victim, for the purpose of maintaining ignorance regarding them, or a reckless disregard of them, is as fatal to the claim of a trespasser to limit the recovery of damages against him to the lower measure, as is an intentional or willful trespass or taking.

(quoting Central Coal & Coke Co. v. Penny, 173 F. 340, 345 (8th Cir. 1909)). Continuing to mine for several years without knowing its precise underground

location in relation to the surface was careless, unreasonable and reckless— especially since there was evidence indicating this was not Harrod’s first encroachment. A reasonable landowner would confirm the breadth of its holdings —both for itself and for all the world to see. Harrod did at least part of this by posting No Trespassing signs and maintaining them for several years, although it could not be certain those signs were accurately placed since they were posted long before Harrod obtained a survey of its surface boundary lines. Under the evidence developed, jurors properly found Harrod committed an intentional trespass. Thus, we affirm the trial court’s denial of a directed verdict and the jury’s verdict on these two points.

Zero pain and suffering verdict affirmed in auto case (Turner v. Stone, NPO, COA, 6/22/2012)

Miller v. Swift was applied by the COA in the following decision.  In affirming the trial court decision, the COA stated in support of its conclusion, that

Sufficient probative evidence was presented which directly challenged Turner’s claims that she had undergone additional pain and suffering as a result of the automobile collision with Stone. Evidence suggested that Turner failed to indicate a knee injury at the time of the accident, that her knee injury may have been aggravated by other circumstances, and that she may have exaggerated the severity of the automobile accident. Accordingly, we cannot hold that the trial court exhibited clear error by denying Turner a new trial.

The COA then summarized the testimony,

In the case presently before us, a significant portion of Turner’s trial was devoted to determining the cause of her injuries. Dr. Michael Gilhuly testified that Turner sought treatment on December 27, 2007. However, this was approximately one month after the automobile accident and for a knee injury related to a slip and fall. Dr. William Moss testified that he had performed successful knee surgery on Turner and that she had required no additional treatment. Multiple witnesses, including the police officer who investigated the accident and the claims adjuster for Shelter Mutual, testified that there was only minor damage to Turner’s vehicle. Furthermore, Turner’s credibility was called into question when her testimony regarding airbag deployment and her physical ability to perform her job were contradicted by other witnesses.

The lay testimony about the minor impact and it’s negation of a physical injury or aggravation of a prior injury is of some concern (even though it could be said the remaining evidence was sufficient to support no pain and suffering) is of some concern to me.  No mention was made by the COA that scientific evidence was offered to address body mechanics, injury, etc.

And another concern, I always have is that the no-fault statute mentions not only pain and suffering but “inconvenience”.  Although inconvenience may not be high on the pain scale, one might think that medical treatment, follow up visits, diagnostic testing, and possibly physical therapy would qualify as suffering and at least inconvenience.   This is simply why once upon a time, verdicts such as these, were considered inconsistent – medical expenses ruled as caused by the accident but pain, suffering and inconvenience associated with that treatment is not.

Basically, this analysis is disingenuous, and what I seem to hear is that not all pain and suffering is considered compensable.  Not a question of an inconsistent verdict, but some damages are to be borne by the claimant in an imperfect world.  Here the testimony summarized by the COA negated an injury, an aggravation, and thus causation.  But, the jury awarded the medicals and basically said that was enough.  However, if there is health insurance, then who accrued the bulk of the benefit (and if so, by way of the collateral source rule, then some of that award potentially inured to the benefit of the plaintiff, but for the costs of prosecution may have offset that entirely).

Here, is the decision:

531.  DAMAGES.  ZERO PAIN AND SUFFERING IN AUTO ACCIDENT (MILLER V. SWIFT ISSUE)
TURNER (VICTORIA)
VS.
STONE (AMBER), ET AL.
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
ACREE (CONCURS) AND VANMETER (CONCURS)
2011-CA-000177-MR
NOT TO BE PUBLISHED
FAYETTE

CAPERTON, JUDGE: Victoria Turner appeals from the January 13, 2011, judgment of the Fayette Circuit Court which denied Turner’s motion for a new trial in her personal injury action against Amber Stone and Shelter Mutual Insurance Company (“Shelter Mutual”). Because we find no error with the trial court’s judgment, we affirm.

It is well established that “[t]he law in Kentucky … does not require a jury to award damages for pain and suffering in every case in which it awards medical expenses.” Miller v. Swift, 42 S.W.3d 599, 600 (Ky. 2001). It has further been held that a jury’s failure to award pain and suffering, when preexisting conditions may have been aggravated by the accident at issue, did not warrant a new trial. Id. Our focus, in a case of this nature, is on the relevance of the underlying evidence as it relates to the jury’s failure to award for pain and suffering, and not on the actual award itself. See Dennis v. Fulkerson, 343 S.W.3d 633, 635 (Ky.App. 2011).

Sufficient probative evidence was presented which directly challenged Turner’s claims that she had undergone additional pain and suffering as a result of the automobile collision with Stone. Evidence suggested that Turner failed to indicate a knee injury at the time of the accident, that her knee injury may have been aggravated by other circumstances, and that she may have exaggerated the severity of the automobile accident. Accordingly, we cannot hold that the trial court exhibited clear error by denying Turner a new trial.

Damages: Increased risk of harm and lost opportunity of recovery in medical negligence cases: Gill v. Burress, COA, 4/13/2012, Published

In medical negligence cases, a misdiagnosis creates two difficult problems for the injured claimant which do not appear to be fully appreciated by our appellate courts, usually under the misguided belief that it would be speculative or too speculative.  These two area are:

(1) lost chance or opportunity to be cured or even have their pain, suffering reduced or diminished.  I have always been amazed at the lack of realistic appraisal, if not naivite’, of the jurists in failing to comprehend that a misdiagnosis resulting in smaller chance of recovery is a wrong that should be compensated.  Whether the lost opportunity or reduction is 90% or 10%, patients/claimants are entitled to all of the chances and all the opportunity that should have been afforded to them to physically recover, have their life physically improved, have their pain mitigated or ameliorated in quantity or quality, and just to be simply free of the worry caused by bad medicine.

(2) in the following decision, the COA further buttresses Kentucky law on the damages of increased likelihood of future complications.

 

345. MEDICAL NEGLIGENCE. DAMAGES (INCREASED LIKELIHOOD OF FUTURE COMPLICATIONS)
GILL (PAULA K.)
VS.
BURRESS (SUSAN M.)
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
MOORE (PRESIDING JUDGE)
ACREE (CONCURS) AND VANMETER (CONCURS)
2011-CA-000332-MR
TO BE PUBLISHED
FAYETTE

MOORE, JUDGE: Paula K. Gill, D.M.D., appeals a summary judgment entered by the Fayette Circuit Court in favor of Susan M. Burress, M.D., after the circuit court determined that Burress conclusively proved that Gill would be unable to establish damages arising out of Burress’s alleged professional negligence in failing to detect a mass in Gill’s breast consistent with ductal carcinoma for a period of approximately eighteen months. We find that issues of material fact exist relating to certain elements of damage properly recoverable by Gill, but that other damages claimed by Gill are not recoverable in this case as a matter of law. Therefore, we affirm in part, reverse in part, and remand for further proceedings.

We begin our analysis by identifying Gill’s injury. Gill has had cancer. Burress makes the point in her brief of stating that her negligence, if any, did not cause the cancer. Gill argues, however, that she can prove that the virulent and life-threatening effect of the disease has been exacerbated by Burress’s negligent treatment and diagnosis. Specifically, Gill alleges that due to Burress’s negligence, her tumor grew unchecked for a period of approximately eighteen months and required stronger and more expensive treatment to cure.

In sum, Gill’s claim against Burress is not based upon the infliction of an injury, but upon the aggravation of an existing condition. Kentucky has long recognized the negligent aggravation of an existing condition as a cognizable injury in its own right. See, e.g., Louisville Taxicab & Transfer Co. v. Hill, 304 Ky. 565, 201 S.W.2d 731, 733 (1947). The same is true in other jurisdictions, like Kentucky, that refuse to recognize a loss of chance at a better outcome, or an increased risk of future harm, as an injury. See, e.g., Kilpatrick v. Bryant, 868 S.W.2d 594, 603 (Tenn. 1993) (holding that a plaintiff must prove it was more probable than not that medical negligence was the cause of her injuries, but “[t]his is not to say that a plaintiff could not recover for an aggravation of his physical condition if he proves by a balance of probabilities that the negligent act or omission caused the harm when there was a better than even chance of recovering to begin with.”)

A fair reading of Gill’s complaint reflects that she sought the following categories of damages relating to her injury: 1) mental anguish, emotional distress, and a loss of ability to enjoy life due to an increased fear of cancer recurrence or death; 2) compensatory damages arising as a result of her chemotherapy treatment and the surgical removal of her ovaries (which Gill did, purportedly, upon her physician’s advice to mitigate complications relating to chemotherapy); 3) a five to twenty-five percent decreased chance of remaining cancer-free; and 4) future medical treatment relating to a potential recurrence of cancer. As she did before the circuit court, Gill argues that summary judgment was inappropriate because evidence exists in the record indicating that she suffered these damages within a reasonable degree of medical certainty and as a proximate result of Burress’s alleged negligence in allowing a malignant tumor to improperly remain in her breast for approximately eighteen months. Upon review, we find that the trial court erred in granting summary judgment as to the first and second of the above-referenced categories of damages, but properly granted summary judgment with respect to the latter two.

In sum, Gill’s claim against Burress is not based upon the infliction of an injury, but upon the aggravation of an existing condition. Kentucky has long recognized the negligent aggravation of an existing condition as a cognizable injury in its own right. See, e.g., Louisville Taxicab & Transfer Co. v. Hill, 304 Ky. 565, 201 S.W.2d 731, 733 (1947). The same is true in other jurisdictions, like Kentucky, that refuse to recognize a loss of chance at a better outcome, or an increased risk of future harm, as an injury. See, e.g., Kilpatrick v. Bryant, 868 S.W.2d 594, 603 (Tenn. 1993) (holding that a plaintiff must prove it was more probable than not that medical negligence was the cause of her injuries, but “[t]his is not to say that a plaintiff could not recover for an aggravation of his physical condition if he proves by a balance of probabilities that the negligent act or omission caused the harm when there was a better than even chance of recovering to begin with.”)

A fair reading of Gill’s complaint reflects that she sought the following categories of damages relating to her injury: 1) mental anguish, emotional distress, and a loss of ability to enjoy life due to an increased fear of cancer recurrence or death; 2) compensatory damages arising as a result of her chemotherapy treatment and the surgical removal of her ovaries (which Gill did, purportedly, upon her physician’s advice to mitigate complications relating to chemotherapy); 3) a five to twenty-five percent decreased chance of remaining cancer-free; and 4) future medical treatment relating to a potential recurrence of cancer. As she did before the circuit court, Gill argues that summary judgment was inappropriate because evidence exists in the record indicating that she suffered these damages within a reasonable degree of medical certainty and as a proximate result of Burress’s alleged negligence in allowing a malignant tumor to improperly remain in her breast for approximately eighteen months. Upon review, we find that the trial court erred in granting summary judgment as to the first and second of the above-referenced categories of damages, but properly granted summary judgment with respect to the latter two.

As to the first category of damages, Kentucky recognizes that where substantial evidence of probative value supports an increased likelihood of future complications resulting from a negligently inflicted injury and that increased likelihood, in turn, initiates serious mental distress, the resulting mental distress is compensable. See, e.g., Kemper v. Gordon, 272 S.W.3d 146, 150-51 (Ky. 2008) (citing Davis v. Graviss, 672 S.W.2d 928 (Ky. 1984)). Moreover, the increased likelihood of recurrence that is responsible for the ensuing mental distress need not be anything more than a mere possibility. See Davis, 672 S.W.2d at 931, and at 933-34, J. Vance dissenting (“The drastic consequences which may befall movant are only possibilities and, according to the medical testimony, not very great possibilities, certainly nothing even approaching a probability.”).

We are mindful of Burress’s contention that it would be difficult for Gill to attribute any specific part of her existing mental anguish that is specifically related to her five to twenty-five percent increased likelihood of having cancer again, as opposed to what her mental anguish would have been even if she had been timely diagnosed with cancer. Nevertheless, this difficulty should not preclude Gill from presenting her case to the finder of fact. In this respect, we are persuaded by the logic of our sister court illustrated in Swain v. Curry, 595 So.2d 168, 172 (Fla. 1st DCA), rev. denied, 601 So.2d 551 (Fla. 1992). There, the failure to timely detect a breast tumor resulted in a radical mastectomy, whereas earlier detection would have resulted in a lumpectomy. Testimony was presented that Mrs. Swain had a sixty-five percent probability that she would develop a recurrence of the cancer, whereas a timely diagnosis would have resulted in only a five to ten percent possibility of recurrence. In addressing the issue of recoverable damages, the Swain Court noted:

Mrs. Swain is entitled to attempt to prove that her emotional damages are presently greater as a result of such increased fear of recurrence of cancer as has resulted from any provable negligence. Such damages are recoverable, not as a separate cause of action, but as an element of personal injury damages. . . . Claimant in this case certainly faces a formidable obstacle in attempting to demonstrate to the satisfaction of the finder of fact that her emotional distress is of a demonstrably and quantifiably different degree now, as compared to the case of prompt diagnosis and treatment. Difficulty of proof will not, however, deprive a plaintiff of the opportunity to present her case.

Id. at 173 (citation omitted). Importantly, the analysis set forth in Swain was in no way dependent upon that increased risk of recurrence being greater than fifty percent.

As to Gill’s claim that she suffered damage resulting from her chemotherapy treatment and the surgical removal of her ovaries in anticipation of chemotherapy, we likewise find the evidence is sufficient to present a question for the jury. Generally speaking,

[a]ll recoverable damages are subject to some uncertainties and contingencies, but it is generally held that the uncertainty which prevents a recovery is uncertainty as to the fact of damage and not as to its amount. Where it is reasonably certain that damage has resulted, mere uncertainty as to the amount does not preclude one’s right of recovery or prevent a jury decision awarding damages. Johnson v. Cormney, 596 S.W.2d 23, 27 (Ky. App. 1979) (emphasis added), overruled on other grounds by Marshall v. City of Paducah, 618 S.W.2d 433 (Ky. App. 1981); see also Hanson v. American Nat’l Bank & Trust Co., 865 S.W.2d 302, 309 (Ky.1993) (to the same effect), overruled on other grounds by Sand Hill Energy, Inc. v. Ford Motor Co., 83 S.W.3d 483, 495 (Ky. 2002).

We find no error, however, in the circuit court’s determination that any future medical treatment relating to a potential recurrence of cancer is non- compensable. As noted above, Kentucky law allows a plaintiff to recover for damages only where the fact of damage is reasonably certain. See Cormney, 596 S.W.2d at 27. Here, according to the evidence of record, Gill is currently cancer- free and it is at least seventy percent likely, e.g., more likely than not, that she will suffer no recurrence of cancer and, therefore, require no future medical treatment for it.

Similarly, we find no error in the circuit court’s determination that Gill’s purportedly five to twenty-five percent decreased chance of remaining cancer-free is non-compensable. Without laboring the point, a majority of jurisdictions consider a decreased chance for long-term survival, or lost chance for recovery or a better medical result (due to negligence), as a compensable injury,5 a

[[fn 5 A review of the reported cases that have considered the doctrines of “increased risk of harm” and “lost chance” indicates a wide disparity in acceptance and application. See, e.g., Causation- Loss of Chance, 54 A.L.R.4th 10 (1987); Damages-Loss of Chance, 81 A.L.R.4th 485 (1990). Nevertheless, we believe, like the Supreme Court of Delaware, that “Since loss of chance and increased risk of harm both rely on similar theoretical underpinnings . . . it would not be coherent to adopt increased risk without also adopting loss of chance.” United States v. Anderson, 669 A.2d 73, 75-76 (Del. 1995).]] minority of jurisdictions do not,6 [[fn 6 For a fairly recent breakdown of these jurisdictions, as well as an extensive analysis of the policies behind allowing for this type of recovery, see Matsuyama v. Birnbaum, 890 N.E.2d 819 (Mass. 2008). Notably, Tennessee, Delaware, and Florida, whose law we have briefly surveyed as persuasive authority, are among the jurisdictions noted in Matsuyama that either do not recognize this doctrine, or find it otherwise incompatible with existing precedent. See id. at 829 (citing Gooding v. University Hosp. Bldg., Inc., 445 So.2d 1015 (Fla. 1984)); Kilpatrick v. Bryant, 868 S.W.2d 594, 602-603 (Tenn. 1993); United States v. Cumberbatch, 647 A.2d 1098, 1102-1104 (Del. 1994))]] .and Kentucky is in the minority. See Kemper, 272 S.W.3d 146. Kentucky law also prohibits the possibility of future harm from constituting an element of damages if that possibility is considered outside the realm of damages for mental anguish. Id. at 150-151 (distinguishing Davis, 672 S.W.2d 928); but see United States v. Anderson, 669 A.2d 73, 78 (Del. 1995) (declining to regard fifteen percent increased risk of cancer as a legally recognized injury, but allowing increased risk, in and of itself, to be considered as an element of damages as demonstrative of a significantly greater injury).

In rebuttal, Gill argues that Kemper represents a gross misapplication and misinterpretation of Kentucky precedent, and urges this Court to overrule the Supreme Court on a variety of grounds. Suffice it to say, however, that “[t]he Court of Appeals is bound by and shall follow applicable precedents established in the opinions of the Supreme Court and its predecessor court.” Rules of the Supreme Court (SCR) 1.030(8)(a). We find that the circuit court did not misapply the Kemper holding in this respect and we therefore find no error because we “cannot overrule the established precedent set by the Supreme Court[.]” Smith v. Vilvarajah, 57 S.W.3d 839, 841 (Ky. App. 2000) (citing Special Fund v. Francis, 708 S.W.2d 641, 642 (Ky. 1986)).