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 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 - www.CourtHouseHistory.com.

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

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:

 COA:
http://www.aoc.state.ky.us/coa_public/CaseInfo.aspx?case=2013CA000147
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”.

SC:  http://162.114.92.78/dockets/CaseDetail.asp?CaseNumber=2014SC000008
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: Looking at Res Ipsa Loquitur and Breach of Duty in the context of a one-car collision – Gilbert v. U-Haul (COA NPO 1/9/2015)

Photo is for blogging purposes and is NOT a photo involving this collision.  Photo from Depositphotos.com.

Photo is for blogging purposes and is NOT a photo involving this collision. Photo from Depositphotos.com.

It would be so much easier to prevail in personal injury cases if we did not have to worry about evidence to show duty and breach.  Negligence is usually not that difficult.  Oftentimes, we think that res ipsa loquitur may prove to be our salvation.  Bleachers just don’t fall unless someone did something wrong,  or a scalpel is left in following surgery.

Res ipsa Loquitur and breach of duty take center stage in this nonpublished decision from the Scott Circuit Court – Peggy Gilbert vs. U-Haul International Inc., Judd Road Storage and U-Haul and Thomas Gilbert, COA, NPO, 1/9/2015 which affirmed the trial court Judge Robert Johnson’s granting of summary judgment dismissing her claims against her husband.

This case will show that res ipsa loquitur (aka res ipsa) is not an easy solution for problems of proof of negligence (duty and breach).

A little background on how this case ended up with a dismissal of the wife’s claims against her husband.  Well, it was a single vehicle collision, with husband driving a truck with a U-Haul attached.  After filing suit, Peggy’s claims against the two U-Haul defendants settled, leaving the claim against Tom Gilbert, Peggy’s husband.

The hurdle was that Peggy had previously testified  in her deposition that she did not observe Tom driving incorrectly or inappropriately.  Now, she is trying to collect some money from her husband, or should I say, her husband’s liability insurance policy, but unable to offer her own evidence or observations on negligence what is she going to do?

The trial court gave her four months to obtain additional evidence, and the only thing she had was an affidavit from an accident reconstructionist that after reviewing the records who opined that the only way this accident could have been caused by was by error on the part of Tom, U-Haul, or both.

I present this case as a case note to demonstrate the issues that develop when you have a claim against your spouse and can’t give any evidence that your spouse was negligent other than res ipsa loquitur, aka “the think speaks for itself”.  We often bandy about the doctrine in a short-hand manner thinking its common sense approach will fill in the blanks.  However, it’s not that easy as this case details.  Briefly, it is a doctrine that states that the elements of duty of care and breach can sometimes be inferred from the very nature of an accident or other outcome, even without direct evidence of how any defendant behaved.

For more detailed analysis, then “continue reading” below.

TRIAL PROCEDURE & EVIDENCE: Proffer of expected testimony found by SCOKY to be too vague to preserve error on appeal (Eric Henderson vs. Commonwealth of Kentucky SC Published 8/21/2014)

From the former practice of preserving testimony with an avowal to the KRE 103 proffer of expected testimony, a trap is laid  for the need for specificity and clarity  falling short of the actual avowal of the testimony of yesteryear being abandoned for the cause of convenience and time.  Here the judge made a clearly erroneous trial ruling excluding testimony but for want of a good enough proffer of the expected testimony the error remains.  Practitioners be forewarned, and do not let time and inconvenience thwart your efforts to preserve the error, even in the midst of the trial because after the trial there is the appeal.

Historical marker for the "Great Dissenter", Justice John  Harlan, outside the Boyle County Court House in Danville, KY.

Historical marker for the “Great Dissenter”, Justice John Harlan, outside the Boyle County Court House in Danville, KY.

Evidence, KRE 103 Offer of Proof, Bad Acts Evidence, and Preservation of Issue for Appeal
Eric Henderson vs.  Commonwealth of Kentucky
SC Published 8/21/2014; Opinion by Minton Affirming
Questions Presented:  Criminal Law. KRE 103. Issues include whether defendant’s proffer of evidence was sufficient to preserve his argument on appeal under KRE 103.

Appealing to the Court of Appeals, Henderson challenged the trial court’s exclusion of prior-bad-acts evidence and hearsay testimony. Regarding the prior-bad-acts evidence, the Court of Appeals—while acknowledging the trial court erred by excluding the evidence—concluded Henderson did not properly preserve the issue for appellate review under Kentucky Rules of Evidence (KRE) 103(a)(2). Specifically, the Court of Appeals held it could not determine with any degree of certainty what the content of the excluded testimony would have been, making it impossible to assess the impact of the error. Going further, the Court of Appeals held Henderson similarly failed to preserve his challenge to the trial court’s ruling excluding Harris’s hearsay testimony but noted that, in any event, the excluded hearsay testimony would have been cumulative. The Court of Appeals affirmed the judgment. 

We accepted discretionary review of this case primarily to consider whether, in light of the trial court’s adverse evidentiary ruling excluding proposed testimony, Henderson’s counsel’s use of imprecise, general language satisfied KRE 103(a)(2)’s offer-of-proof requirement sufficiently to preserve this issue for appellate review. We affirm the decision of the Court of Appeals because we agree that counsel failed to make an adequate offer of proof.

Before this Court, Henderson raises two allegations of error: (1) the trial court erroneously excluded testimony of Henderson’s prior altercation withHarris and, additionally, the Court of Appeals improperly held the issue was unpreserved for review under KRE 103(a)(2); and (2) the trial court improperly excluded Harris’s hearsay testimony regarding turning Henderson in to thepolice. Because of these errors, Henderson argues he was denied the opportunity to present a complete defense. Of course, the Commonwealth agrees with the holding of the Court of Appeals that the initial issue wa sunpreserved and, moreover, argues any error associated with Harris’s excluded hearsay testimony was harmless. For the reasons stated below, we agree withthe Commonwealth and affirm the Court of Appeals.

At trial, Henderson attempted to testify about an altercation he had with Harris approximately two weeks before the club incident. The Commonwealth timely objected, and the trial court excluded the evidence because Henderson had not provided notice of the prior-bad-acts evidence to the Commonwealth as required by KRE 404(c). At the outset, we should be clear: this ruling was erroneous. By its plain language, KRE 404(c) requires notice to be provided only by the Commonwealth, not the defense.3 Our caselaw’s mandate that only the Commonwealth provide notice is manifest. 4That being said, we are unable to determine the extent of the trial court’s error because of Henderson’s vague characterization of the excluded testimony.

Historically, to preserve for review a trial court’s ruling excluding evidence, a party was required to present avowal testimony. 5From the stand, outside the presence of the jury, the witness would provide the testimony he would have given had the trial court allowed it. Of course, this provided a clear record for review; but perhaps more importantly, as much as the practice was justified for sake of clarity, it was equally cumbersome and time-consuming. nd the practice of presenting avowal testimony was out of step with both the federal courts and the vast majority of state courts.

In 2007, this Court amended several of our evidentiary rules, 6with the explicit purpose of bringing the rules into uniformity with their federal counterparts. The case before us today revolves around the alteration made to KRE 103(a)(2). In its current state, the entirety of KRE 103 reads:

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and

(1) Objection. If the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of proof. If the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Read as a whole, to preserve a trial court’s ruling for appeal, a substantial right7of the party must be affected and, relevant to the present case, the substance of the excluded testimony must be provided to the trial court. Notably, KRE 103(a)(2) now allows an offer of proof rather than requiring “the witness [] make a specific offer of his answer to the question.” An offer of proof, generally described as a lawyer “adducing what that lawyer expects to be able to prove through a witness’s testimony[, ]” 8serves dual purposes. First, the offer of proof provides the trial court with a foundation to evaluate properly the objection based upon the actual substance of the evidence. And, of equal importance, an offer of proof gives an appellate court a record from which it is possible to determine accurately the extent to which, if at all, a party’s substantial rights were affected.

The problem with Henderson’s offer of proof and his reliance on Weaver is the absence of any meaningful description of the content of the excluded testimony. 14By name, an offer of proof must contain some modicum of proof Here, Henderson’s counsel simply made vague references to the general theory of defense but did not highlight what Henderson would actually say if given the chance to testify.

Generally speaking, an offer of proof must not be “too vague, general, or conclusory.” Typically, the context of questioning adequately indicates the substance of the excluded testimony in situations where the answer to the question is known, e.g. defense asks the defendant whether he was at the scene of the crime on a particular night, or where testimony has been received, but subsequently stricken.

In its current form, KRE 103(a)(2) is intended to be flexible but that flexibility does not diminish the fact that its compliance is mandatory. A proper offer of proof is vital, not only to the trial court, but also in providing the opportunity for sound appellate review. To this end, Henderson’s offer of proof highlights why KRE 103(a)(2) requires what it does. As we stated before, the trial court undoubtedly erred in excluding the testimony on the specified grounds. Sympathetic as we may be to Henderson’s plight, we are left with little indication of how this error affected Henderson’s trial because the recordfails to show what the other-altercation evidence would have been. As a result,we are simply unable to determine if the error is reversible, harmless, orotherwise.

Standard of Care and Negligence Per Se (Moloney vs. Becker, COA, PUB, 4/19/2013)

The published decision by the Court of Appeals in Moloney vs. Becker is just chock full of stuff.  In addition to the standard of review law on motions for JNOV and directed verdict, we have a little legal rif on negligence per se and the “standard of care”.

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. ***

A claim of negligence per se merely substitutes the common law standard of care with a statutory standard of care. Young v. Carran, 289 S.W.3d 586, 588-89 (Ky. App. 2008) (quoting Real Estate Marketing, Inc. v. Franz, 885 S.W.2d 921, 926-27 (Ky. 1994)). Whether John violated his common law standard of care or the statutorily-imposed standard of care found in KRS 524.130 is immaterial since “the violation ‘must be a substantial factor in causing the result.’” Isaacs v. Smith, 5 S.W.3d 500, 502 (Ky. 1999) (quoting Britton v. Wooten, 817 S.W.2d 443, 447 (Ky. 1991)). The issue in the underlying case is whether substantial evidence supported the jury’s finding that John’s negligence was not a substantial factor in causing an injury to the Estate. Thus, the Estate’s argument that John’s actions violated KRS 542.130 is not germane to the issue.

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Evidence: Experts, inconsistent statements, Daubert and closings – Wilson v. Madzhitov, COA, NPO 3/29/2013

Evidence rulings on prior inconsistent statements; expert witnesses; closing argument
Wilson vs. Madzhitov
COA, Not Published 3/29/2013
Jefferson

VANMETER, JUDGE: Alisha Wilson appeals from the Jefferson Circuit Court judgment ruling in favor of Mikail Madzhitov following a jury trial on her claim of negligence. Mikail cross-appeals from the same judgment. Based on the following, we affirm.

SCOKY: TORTS. PERSONAL INJURY. SPOLIATION OF EVIDENCE. UNIVERSITY MEDICAL CENTER (UofL) V. MICHAEL G. BEGLIN, ETC.

171.  TORTS. PERSONAL INJURY. SPOLIATION OF EVIDENCE.
UNIVERSITY MEDICAL CENTER (UofL)  V.  MICHAEL G. BEGLIN, ETC.
Questions Presented:
Personal Injury. Jury Instructions. Missing evidence. Issues include propriety of giving spoliation instruction and other evidentiary and instructional rulings.

ON REVIEW FROM COURT OF APPEALS
CASE NOS. 2007-CA-000018-MR AND 2007-CA-000133-MR
JEFFERSON CIRCUIT COURT NO. 04-CI-001605
OPINION OF THE COURT BY JUSTICE VENTERS AFFIRMING IN PART AND REVERSING IN PART

We granted discretionary review in this matter to examine when it is
proper for the trial court to give a missing evidence instruction, and whether it was permissible here to hold an employer liable for punitive damages based upon the gross negligence of an employee. University Medical Center, Inc. d/b/a University of Louisville Hospital (“University Hospital”), appeals from an opinion of the Court of Appeals which affirmed a judgment entered by the Jefferson Circuit Court in favor of Appellee, Michael G. Beglin. 1Based upon a jury verdict, the trial court entered judgment awarding the following
compensatory damages: $1,922,102.00 for the destruction of Jennifer Beglin’s power to labor and earn money; 367,358.09 for her medical expenses; 7,543.00 for her funeral and burial expenses; and $3,000,000.00 for her children’s loss of parental consortium. The jury also awarded $3,750,000.00 in punitive damages, resulting in a total award of $9,047,003.09.

The damages were based upon a finding of the jury that the hospital, through its employees and agents, acted negligently in causing the death of Jennifer Beglin.2Codefendants, Dr. Susan Galandiuk (the surgeon) and Dr. Guy M. Lerner (the anesthesiologist), were found not liable by the jury.

University Hospital3presents the following three issues: (1) the trial court erred by giving a missing evidence instruction; (2) the trial court erred by giving a punitive damages instruction; and (3) the giving of the missing evidence and punitive damages instructions violated its due process rights. For the reasons stated below, we determine that the trial court properly gave a missing evidence instruction, and we affirm the judgment awarding compensatory damages. However, we hold that the trial court erred in giving a punitive damages instruction under the circumstances of this case. We therefore reverse the punitive damages award and remand for entry of a new judgment. By these determinations, University Hospital’s due process arguments relating to punitive damages are moot, and it is not otherwise entitled to relief under these claims.

HE MISSING EVIDENCE INSTRUCTION WAS PROPERLY GIVEN University Hospital first argues that the trial court erred by giving the missing evidence instruction in connection with the unexplained disappearance of the occurrence report that Cantrall testified she prepared immediately following the operation pursuant to normal hospital procedures. Although University Hospital had exclusive care, custody, and control of the report (if it existed), it is unable to offer any explanation to account for its disappearance. University Hospital contends that it was fundamentally improper and contrary to Kentucky law for the trial court to give the missing evidence instruction when -there was no evidence to show that it had intentionally and in bad faith lost or destroyed the document. It further argues that the instruction improperly influenced both the general verdict of liability and the punitive damages award by insinuating that the hospital covered-up adverse evidence. For the reasons stated below, we conclude that the instruction was properly given.

Following the form approved in Sanborn v. Commonwealth, 754 S.W.2d 534, 539-540 (Ky. 1988), overruled on other grounds by Hudson v. Commonwealth, 202 S.W.3d 17 (Ky. 2006), the trial court gave, over the hospital’s objection, this missing evidence instruction:
If you find from the evidence that an incident report was in fact prepared by Nurse Barbara Cantrell recording material information about Mrs. Beglin’s surgery, and if you further find from the evidence that University Medical Center, Inc. d/b/a University of Louisville Hospital, intentionally and in bad faith lost or destroyed the incident report, you may, but are not required to, infer that the information recorded in the incident report would be, if available, adverse to University Medical Center and favorable to the plaintiffs.

This remains the approved instruction in both criminal and civil cases.    See Monsanto Co. v. Reed, 950 S.W.2d 811, 815 (Ky. 1997) (“Where the issue of destroyed or missing evidence has arisen, we have chosen to remedy the matter through evidentiary rules and ‘missing evidence’ instructions.”) All agree that the Sanborn instruction accurately sets forth the elements necessary to permit a jury to draw an adverse inference from missing evidence. 6

Instructions: Missing Evidence Instruction aka Spoliation of Evidence

UNIVERSITY MEDICAL CENTER (UofL)  V.  MICHAEL G. BEGLIN, ETC.
Questions Presented:
Personal Injury. Jury Instructions. Missing evidence. Issues include propriety of giving spoliation instruction and other evidentiary and instructional rulings.

ON REVIEW FROM COURT OF APPEALS
CASE NOS. 2007-CA-000018-MR AND 2007-CA-000133-MR
JEFFERSON CIRCUIT COURT NO. 04-CI-001605
OPINION OF THE COURT BY JUSTICE VENTERS AFFIRMING IN PART AND REVERSING IN PART

We granted discretionary review in this matter to examine when it is
proper for the trial court to give a missing evidence instruction, and whether it was permissible here to hold an employer liable for punitive damages based upon the gross negligence of an employee. University Medical Center, Inc. d/b/a University of Louisville Hospital ("University Hospital"), appeals from an opinion of the Court of Appeals which affirmed a judgment entered by the Jefferson Circuit Court in favor of Appellee, Michael G. Beglin. 1Based upon a jury verdict, the trial court entered judgment awarding the following
compensatory damages: $1,922,102.00 for the destruction of Jennifer Beglin's power to labor and earn money; 367,358.09 for her medical expenses; 7,543.00 for her funeral and burial expenses; and $3,000,000.00 for her children's loss of parental consortium. The jury also awarded $3,750,000.00 in punitive damages, resulting in a total award of $9,047,003.09.

THE MISSING EVIDENCE INSTRUCTION WAS PROPERLY GIVEN

University Hospital first argues that the trial court erred by giving the missing evidence instruction in connection with the unexplained disappearance of the occurrence report that Cantrall testified she prepared immediately following the operation pursuant to normal hospital procedures. Although University Hospital had exclusive care, custody, and control of the report (if it existed), it is unable to offer any explanation to account for its disappearance. University Hospital contends that it was fundamentally improper and contrary to Kentucky law for the trial court to give the missing evidence instruction when -there was no evidence to show that it had intentionally and in bad faith lost or destroyed the document. It further argues that the instruction improperly influenced both the general verdict of liability and the punitive damages award by insinuating that the hospital covered-up adverse evidence. For the reasons stated below, we conclude that the instruction was properly given.

Following the form approved in Sanborn v. Commonwealth, 754 S.W.2d 534, 539-540 (Ky. 1988), overruled on other grounds by Hudson v. Commonwealth, 202 S.W.3d 17 (Ky. 2006), the trial court gave, over the hospital's objection, this missing evidence instruction:
If you find from the evidence that an incident report was in fact prepared by Nurse Barbara Cantrell recording material information about Mrs. Beglin's surgery, and if you further find from the evidence that University Medical Center, Inc. d/b/a University of Louisville Hospital, intentionally and in bad faith lost or destroyed the incident report, you may, but are not required to, infer that the information recorded in the incident report would be, if available, adverse to University Medical Center and favorable to the plaintiffs.

This remains the approved instruction in both criminal and civil cases.    See Monsanto Co. v. Reed, 950 S.W.2d 811, 815 (Ky. 1997) ("Where the issue of destroyed or missing evidence has arisen, we have chosen to remedy the matter through evidentiary rules and 'missing evidence' instructions.") All agree that the Sanborn instruction accurately sets forth the elements necessary to permit a jury to draw an adverse inference from missing evidence. 6

EVIDENCE: Hearsay, Excited Utterance Exception KRE 803(2)

From Jackson v. Commonwealth, COA, Published, July 8, 2011

The “excited utterance” hearsay objection under KRE 803(2) is defined as “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or the condition.” In Noel v. Commonwealth, 76 S.W.3d 923, 926 (Ky. 2002), the Kentucky Supreme Court articulated the following analysis for the excited utterance exception:
The premise for the exception is that statements made under the stress of the excitement caused by a startling occurrence are more likely the product of that excitement and, thus, more trustworthy than statements made after the declarant has had an opportunity to reflect on events and to fabricate. Morgan v. Foretich, 846 F.2d 941, 946 (4th Cir. 1988); Mounce v. Commonwealth, 795 S.W.2d 375, 379 (Ky. 1990); Robert G. Lawson, The Kentucky Evidence Law Handbook § 8.60, at 454–56 (3d ed. Michie 1993). For an out-of-court statement to qualify for admission under KRE 803(2), “it must appear that the declarant's condition at the time was such that the statement was spontaneous, excited, or impulsive rather than the product of reflection and deliberation.” United States v. Iron Shell, 633 F.2d 77, 86 (8th Cir. 1980) (gathering cases), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981). We have identified the following factors as relevant to a determination of whether an out-of-court statement is admissible under KRE 803(2):
(i) lapse of time between the main act and the declaration, (ii) the opportunity or likelihood of fabrication, (iii) the inducement to fabrication, (iv) the actual excitement of the declarant, (v) the place of the declaration, (vi) the presence there of visible results of the act or occurrence to which the utterance relates, (vii) whether the utterance was made in response to a question, and (viii) whether the declaration was against interest or self-serving.
Jarvis v. Commonwealth, 960 S.W.2d 466, 470 (Ky. 1998) (quoting the pre-code case of Souder v. Commonwealth, 719 S.W.2d 730, 733 (Ky. 1986)). We have also clarified that these factors do not pose a true- false test for admissibility but, rather, are guidelines to be considered in determining admissibility. Jarvis, supra, at 470 (citing the pre-code case of Smith v. Commonwealth, 788 S.W.2d 266, 268 (Ky. 1990), cert. denied, 498 U.S. 852, 111 S.Ct. 146, 112 L.Ed.2d 112 (1990)). Finally, we have held that, in a close case, “the trial court's decision to admit or exclude the evidence is entitled to deference.” Souder, supra, at 733.

After careful review of the applicable caselaw above and the factors as set forth by the Commonwealth, we agree that the trial court did not abuse its discretion in admitting Officer Johnson’s testimony as admissible hearsay under KRE 803(2). S.N.’s statements were given immediately after the attack and the physical evidence supported the details she had provided to the police. Further, the statements were given in close proximity to where the attack occurred, and there was little to no time for S.N. to fabricate any story. Finally, S.N. was clearly excited and upset when she gave her statement to Officer Johnson, perhaps the most convincing argument that her statements were in fact excited utterances. Accordingly, we find no error in the trial court’s evidentiary rulings admitting Officer Johnson’s testimony about S.N.’s statement as acceptable hearsay pursuant to KRE 803(2).

EVIDENCE: Collateral source rule in FELA case

From Leighton v. CSX, COA, Published 3/11/2011

Kentucky’s Supreme Court recently explained the collateral source rule as follows.

It is improper to reduce a plaintiff's damages by payments for medical treatment under a health insurance policy if the premiums were paid by the plaintiff or a third party other than the tortfeasor. The collateral source rule, as this rule is commonly known, allows the plaintiff to (1) seek recovery for the reasonable value of medical services for an injury, and (2) seek recovery for the reasonable value of medical services without consideration of insurance payments made to the injured party. The collateral source rule has long been followed in Kentucky.

Baptist Healthcare Systems, Inc. v. Miller, 177 S.W.3d 676, 682-83 (Ky. 2005) (emphasis supplied)(footnotes omitted). By this definition, if the premiums were paid by the tortfeasor-employer in this case, the collateral source rule would not apply. Although Baptist Healthcare was not a FELA case, it is consistent with § 5 of the Act. But federal courts interpreting FELA do not end the analysis there. Instead, “[a]pplication of the collateral source rule depends more upon the character of the benefits than upon the source of the funds.” Patterson v. Norfolk and Western Ry. Co., 489 F.2d 303, 308 (6th Cir. 1973) (FELA case).