Discovery work product; common law work product protection applied in this case which is broader thatn CR 2k6.02(3)(a) which is limited to parties by its plain language

Michael J. O’Connell, Et al. v. Honorable Frederic J. Cowan, Et al.

2009-SC-000596-MR        (Original Opinion: May 20, 2010; Modified: December 16, 2010)

Opinion of the Court by Chief Justice Minton.  All sitting. Attorney, who had entered Alford plea to a criminal charge arising from threatening messages sent from his computer, filed a civil action alleging malicious prosecution and other claims against law enforcement officer and municipality after a related tampering with evidence charge was dismissed due to lack of probable cause (no evidence of tampering with computer).  Attorney sought to depose prosecutor, who was not a party to his civil action, and to obtain her entire litigation file relating to the prosecution of criminal charges against him.  Although providing attorney with some written discovery, prosecutor claimed that further discovery (including deposition and provision of remainder of litigation file) was barred due to work product protection.  After trial court ruled that attorney was entitled to the requested discovery, prosecutor unsuccessfully sought a writ to bar the discovery requests from the Court of Appeals. 

Supreme Court granted the writ.  Upon grant of rehearing, Supreme Court’s holdings include: that broader common-law work product protection applied, although facts did not technically support the application of Kentucky Civil Rule 26.02(3)(a), which provides work product protection to parties only by its plain language.

Supreme Court further held that, in light of circumstances unique to prosecutors, discovery of a prosecutor’s opinion work product was permitted only if the requestor met a heightened standard of showing a compelling need for the discovery.  Thus, Supreme Court reversed Court of Appeals, with directions to instruct trial court on remand to re-evaluate the request for discovery of prosecutor’s opinion work product under the heightened “compelling need” standard and conduct an in camera review of the material before permitting discovery of such information. Justice Schroder concurred in result only.

TORTS (defamation, condo association, appeals): Flint v. Stilger (COA 1/22/2010)

Flint
v. Stilger

2009-CA-000475 01/22/2010 2010 WL 199566

Opinion
by Judge Caperton; Judge Dixon and Senior Judge Henry concurred. The
Court reversed and remanded a summary judgment entered in favor of
appellee on appellant’s claim for defamation. The trial court found that
statements made in response to appellant’s appeal for the Attorney
General to prosecute a condominium association’s failure to comply with
KRS 381.990 were entitled to absolute privilege. The Court first held
that appellant’s naming of additional appellees as “Jane and John Does”
was not fatal to the appeal. As members of the Board of Directors of the
association, they were not necessary parties because the defamation
claim was only between appellant and the named appellee, the attorney
for the association. The Court next held that review was confined to one
for manifest injustice, as appellant failed to properly cite to the
record as required by CR 76.12(4)(c)(iv)-(v). The Court ultimately held
that the statements made in the response to the appeal for the Attorney
General to prosecute was not entitled to absolute privilege because the
Attorney General’s office was undertaking an investigation and had not
made known whether it would pursue a judicial remedy. Therefore, the
statements were only entitled to a qualified privilege, which could be
overcome by a showing of malice.

TORTS (Premises liability); JUDICIAL ACMISSIONS: Faller v. Endicott-Mayflower, LLC (COA 11/20/2009)

Faller v. Endicott-Mayflower, LLC
2008-CA-001506 11/20/09 2009 WL 3878062

Opinion by Judge Nickell; Chief Judge Combs and Judge Taylor concurred.

The Court affirmed a summary judgment in favor of appellees on appellant’s claims related to injuries she sustained when she fell while leaving a restaurant. The Court ultimately held that the trial court properly granted summary judgment because appellant could not prove that any act or omission by any of the appellees substantially caused her to fall.

In reaching that conclusion, the Court first held that statements in appellant’s deposition were judicial admissions that the condition of the threshold of the restaurant was known to her.
The Court next held that appellees had no reason to expect appellant would fall at the threshold after her numerous visits without incident and that, based on her admitted knowledge of the condition, she assumed the risk of crossing the threshold and appellees had no duty to warn her of the condition of the threshold.

The Court next held that because no duty was owed and no duty was breached, appellant’s claim that the trial court misapplied the doctrine of contributory negligence was without merit.
The Court next held that summary judgment was appropriate on appellant’s claim that the premises violated the Kentucky Building Code. Appellees’ testimony created a presumption of non-deficiency under KRS 198B.135 and because the building was completed in 1926 and the threshold was unchanged from the time the restaurant was opened in 1992 until the time of appellant’s fall, compliance with the current code provisions was not mandatory.

The Court finally held that summary judgment was not premature when appellant had nearly three years to complete discovery, significant discovery had occurred, and no additional discovery was sought after a notice of submission for final adjudication was filed.

Criminal – Relevance of urinalysis testing re type of intoxicant: Steve Burton v. Commonwealth of Kentucky (SC 10/29/2009)

Steve Burton v. Commonwealth of Kentucky
2006-SC-000784-MR October 29, 2009
Opinion by Justice Scott; all sitting.

After a head-on collision with another vehicle, Burton was convicted of manslaughter, second-degree assault and operating a motor vehicle on a suspended license. On appeal, Burton argued that he was unduly prejudiced by the introduction of his urinalysis results showing trace amounts of cocaine and marijuana. The results did not show intoxication or the time of ingestion. The prosecution argued that the results were relevant to show wanton conduct on the part of Burton. The majority distinguished the case from published opinions where after intoxication was established by other means, urinalysis results were then deemed relevant to show the type of intoxicant. The Court ruled that the relevance of the urinalysis results depended upon “the conclusions compelled by supporting evidence” and held that in this instance the prosecution lacked supporting evidence to make the urinalysis results relevant. The Court reversed the manslaughter and assault convictions and affirmed the driving on a suspended license conviction. The Court also warned the trial court on remand to scrutinize under KRE 702 the proposed testimony of a certain prosecution witness—a “drug recognition” instructor. Chief Justice Minton (joined by Justice Abramson and Justice Cunningham) concurred in part and dissented in part, asserting the majority’s opinion represented a “startling departure from precedent.” The minority contended that Burton’s drug use in the recent past was “a relevant and probative factor from which the jury could have reasonably inferred that Burton was impaired at the time of the tragic accident.” Justice Abramson (joined by Chief Justice Minton and Justice Cunningham) also concurred in part and dissented in part by separate opinion, arguing that the statement of the paramedic who treated Burton provided “supporting evidence” to make the urinalysis results relevant.

TORTS – Punitive damages, impeachment by employment of witness, pain and sufferering prior to death, voir dire, juror signing verdict: Fuel Transport, Inc. v. Gibson (COA 9/25/2009)

Fuel Transport, Inc. v. Gibson
2008-CA-000969 9/25/09 2009 WL 3047578 Rehearing pending

Opinion by Judge Clayton; Judge Thompson and Senior Judge Lambert concurred. The Court affirmed in part and reversed in part a judgment of the circuit court entered subsequent to a jury verdict in favor of an estate in a wrongful death case awarding compensatory and punitive damages.

The Court first held that the trial court did not abuse its discretion in denying a motion for a new trial based on a claim of juror misconduct. During voir dire, appellants failed to ask a proper question to elicit a response they complained was prejudicially omitted by the juror. Further, the juror did not sign the verdict form awarding compensatory damages. The Court next held that, although appellant failed to exercise reasonable care in failing to fix the coal truck that caused the accident, the failure did not rise to the level of wanton or reckless disregard for others so as to prove the gross negligence necessary for an award of punitive damages. Therefore, the trial court erred in overruling appellant’s motion for a directed verdict on the issues of punitive damages. The Court next held that the trial court properly admitted an affidavit regarding the ownership of the coal truck and the employment of the driver, as it affected the credibility of a key witness. The Court next held that appellants waived the right to challenge the award for pain and suffering when they failed to object to the $2 million limit on possible recovery. Even so, the award was supported by evidence that the deceased had intervals of consciousness until her death. The court then held that appellants’ failure to object to jury instruction until immediately prior to the reading of the instructions to the jury, and failure to request an instruction limitation for “conscious” pain and suffering, waived the issue. The Court finally held that the trial court properly denied appellants’ requests for change of venue.

TORTS – TP Negligence claim and workers comp injury, experts, impaired earning capacity, discovery sanctions: Boland-Maloney Lumber Company, Inc. v. Burnett (COA 9/11/2009)

Boland-Maloney Lumber Company, Inc. v. Burnett
2008-CA-000059 9/11/09 2009 WL 2901206 DR pending

Opinion by Judge Wine; Judges Acree and Stumbo concurred. The Court affirmed on direct appeal and reversed on cross-appeal a judgment of the circuit court entered subsequent to a jury verdict in favor of the injured person in a negligence action involving an injury occurring on a staircase.

The Court first held that the trial court did not abuse its discretion in allowing the matter to proceed to the jury absent expert testimony on the defendant’s duty. The uniformity of stair risers on a stairway is an abundantly apparent standard, even among laypersons, so that anyone could interpret the exceptional foreseeability of risk. The Court then held that the trial court did not err in refusing to allow any apportionment of fault to a subcontractor. The right to apportionment did not extend to the subcontractor that had been determined not to be liable as a matter of law. The Court then held that the trial court had the inherent authority to enforce its orders and therefore, did not err in refusing to grant a motion to allow expert testimony when the defendant failed to disclose the experts after an order was entered that no additional discovery would be allowed. The Court then held that the trial court did not abuse its discretion in allowing testimony from an economic expert concerning the injured person’s earning capacity. Although the testimony was not based on actual earnings at the time of injury, nothing precluded testimony on the impairment to earn money or the use of a “proxy” to do so, where current earnings were not indicative of earning power. The Court then held that the trial court did not err in allowing testimony in violation of an order that the plaintiff’s witnesses could not testify that the stairs violated the Kentucky Building Code. The defendant waived the issue when it failed to object to the testimony at trial, defendant’s counsel brought up the reference to the Kentucky Building Code, and the testimony was not in violation of the order. The Court then held that the defendant’s failure to specifically object to the final written instructions precluded review but even so, although the present case was not a premises liability case, the use of the term “unreasonably dangerous” was often found instructed in cases other than products liability when dealing with an ordinary care standard so that the trial court did not abuse its discretion in including the instruction. The Court finally held that the trial court erred in excluding evidence related to plaintiff’s claim for future prescription medication expenses. Although there was no expert testimony as to the amount of medication required or the likely cost of the medication over the remainder of the plaintiff’s lifetime, the plaintiff entered the yearly cost of the prescription drugs by avowal and the doctors testified that the plaintiff suffered from a seizure disorder which would likely require him to take medication for the remainder of his life. The Court reversed and remanded for a determination on the sole issue of future prescription medication expenses.

TORTS – FELA, SOL, judicial admissions: Zapp v. CSX Transportation, Inc. (COA 9/25/2009)

Zapp v. CSX Transportation, Inc.
2008-CA-001362 9/25/09 2009 WL 3047630 Rehearing pending

Opinion by Judge Taylor; Chief Judge Combs and Judge Nickell concurred. The Court reversed and remanded an order of the circuit court granting a motion for directed verdict for an employer on an employee’s claim under the Federal Employers’ Liability Act (FELA).

The circuit court found that the claim was barred by the statute of limitations. The Court held that the circuit court erred by deeming the employee’s testimony a judicial admission and by usurping the prerogative of the jury to decide a disputed issue of fact – when the statue of limitations was triggered. While the employee testified that his hand symptoms worsened while working in 1999, the circuit court erroneously inferred that the employee knew or should have known that the injury was caused by work duties in 1999.

CRIMINAL LAW – Evidence, statements made during plea negotiations admissibility: Raymond Kreps v. Commonwealth of Kentucky (SC 6/25/2009)

Raymond Kreps v. Commonwealth of Kentucky
2007-SC-00814-MR June 25, 2009
Opinion by Justice Abramson. All sitting; all concur.

Kreps appealed his conviction on multiple counts of rape of a 14-year-old girl, arguing the trial court committed reversible error by permitting the prosecution to introduce statements made to police during the course of plea negotiations. The Court agreed and reversed for a new trial, noting that even though the Commonwealth’s Attorney was not physically present when the statements were made, police were in contact with him during the interview with Kreps. The Court concluded that in light of the circumstances, Kreps’ expectation that he and the Commonwealth were engaged in negotiations was reasonable. The Court also held that upon remand, it was not abuse of discretion for the trial court to exclude questions by Kreps to the alleged victim about prior allegation of abuse she made against other persons when she was six years old.

TORTS; EVIDENCE – Rape shield rule in claim against psychiatric hospital for rape by orderly: Ten Broeck Dupont, Inc. (d/b/a Ten Broeck Hospital) v. Artemecia Brooks (SC 5/21/2009)

Ten Broeck Dupont, Inc. (d/b/a Ten Broeck Hospital) v. Artemecia Brooks
2006-SC-000484-DG May 21, 2009

Opinion by Justice Scott. Justice Abramson not sitting.

Patient sued a psychiatric hospital claiming she was raped by an orderly during her in-patient stay. The jury returned a judgment in the patient’s favor for $2,091,000.

The Supreme Court affirmed in part, reversed in part and remanded for a new trial. The Court held that the trial court erred when it excluded the patient’s medical records as well as her relevant sexual history under KRE 412 (Kentucky’s Rape Shield Law). The Court ruled that the excluded evidence should have been allowed since it was highly probative of the issues of consent and patient’s injuries. The Court determined that the danger of harm to the patient from admitting the evidence did not outweigh the hospital’s need for the probative value of the evidence. 9 The Court also held that the trial court committed reversible error by failing to include a definition of “rape” in its jury instructions. In so doing, the Court reasoned, the trial court did not require the jury to determine whether the sexual conduct was non-consensual— effectively denying the hospital a defense to the patient’s claims.

Justice Schroder (joined by the Chief Justice) concurred in result only, contending that the patient’s sexual history was not relevant to the issue of her damages.

CRIMINAL PROCEDURE, EVIDENCE: Child sexual abuse accommodation syndrome: David Paul Sanderson v. Commonwealth of Kentucky (SC 5/21/2009)

David Paul Sanderson v. Commonwealth of Kentucky
2007-SC-000537-MR May 21, 2009
Opinion by Justice Noble; all sitting.

Sanderson was convicted of two counts of second-degree sodomy and three counts of firstdegree sexual abuse of his girlfriend’s minor daughter and was sentenced to 35 years imprisonment and five years conditional discharge. The Supreme Court reversed the conviction and ordered a new trial, holding that the trial court improperly admitted Child Sexual Abuse Accommodation Syndrome (CSAAS) evidence. The CSAAS testimony was offered by a psychologist to explain that victims of childhood sexual abuse often delay disclosure of the abuse for many years and may outwardly appear to be happy, welladjusted children. The Court cited the long standing rule in Kentucky that a party “cannot introduce evidence of the habit of a class of individuals either to prove that another member of the class 5 acted the same way under similar circumstances or to prove that the person was a member of that class because he/she acted the same way under similar circumstances.” The Court further noted that there is “no such thing as expertise in the credibility of children.”

The Court went on to address remaining assignments of error that were likely to occur upon retrial. The Court ruled that Sanderson’s sentence of 36 years exceeded the limit upon consecutive indeterminate sentences under KRS 532.110(1)(c) and 532.080(6) (b), and that if Sanderson was convicted of the same offenses upon retrial his maximum term of imprisonment would be 20 years. Furthermore, the Court held that Sanderson’s term of conditional discharge could not exceed three years since application of the amended version of KRS 532.043 amounted to an unconstitutional ex post facto law. Finally, the Court held that upon retrial, the social worker could not be allowed to give hearsay testimony about the child’s statements and “ultimate issue” testimony about the child’s credibility.

Justice Scott concurred in part and dissented in part, stating that Kentucky should join the majority of states which allow CSAAS evidence as rehabilitative testimony to explain the child’s conduct when the defense raises the issue of the delay in reporting alleged abuse. Justice Abramson concurred in result only, agreeing with Justice Scott’s assertion that it is time to reconsider the Court’s position on CSAAS testimony.