COA 2010 Minutes for December 17 , 2010 (Nos. 1185-1201)

COA 2010 Minutes for December 17  , 2010 (Nos. 1185-1201)

  • Click on the above link for the full text of minutes with link to full text of each decision.
  • Link to AOC Page with current minutes and archived minutes links
  • Total number of decisions:  17
  • Published Decisions:  4 (1189; 1194; 1197; 1198)

Other actions by COA:

  • Published Sangster v. Ky Bd of Medical Licensure; Taylor v. Elsie Carter, Mayor LaGrange
  • Denied petition for rehearing in State Auto v. Occidental Fire & Casualty
  • Denied FIVE mandamus petitions against Judges A.C.McKay Chauvin (Jefferson); DAn Ballou (Whitely); Craig Z. Clymer(McCracken) Bruce Butler (Breckenride); Andrew Self (Cristian)
  • Opinions ordered Published by SCOKY
    • Danielle Johnson v. UPS
    • Frank Harscher v. Comm.
    • Stephen Leeds v. Muldraugh

PUBLISHED DECISIONS (with link to full text at AOC):

1189. FELA. DAUBERT.
ROSSI (MICHAEL A.)
VS.
CSX TRANSPORTATION, INC.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
LAMBERT (CONCURS) AND MOORE (CONCURS)
2009-CA-001234-MR
2009-CA-001285-MR
TO BE PUBLISHED
PERRY

NICKELL, JUDGE: Michael A. Rossi has appealed from the Perry Circuit Court’s May 27, 2009, entry of judgment in favor of CSX Transportation, Inc., following a jury trial on his claims under the Federal Employer’s Liability Act (FELA)1 of work-related cumulative trauma resulting in bilateral carpal tunnel syndrome and trigger finger in two fingers. He contends the trial court erred in various rulings on evidentiary issues made throughout the trial and in its instructions to the jury. CSX has cross-appealed from the same judgment alleging a different error in the jury instructions. We affirm.

fn1    45 U.S.C. § 51, et seq. See CSX Transp., Inc. v. Begley, 313 S.W.3d 52, 57-60 (Ky. 2010), for an excellent discussion of the history and purpose of the FELA.

** Some Daubert Analysis from Rossi decision:

Trial courts act as gatekeepers whose function is to ensure that only scientifically reliable evidence is presented by expert witnesses. This function requires the trial court to first assess whether methodology or reasoning underlying the evidence is scientifically reliable, and then determine whether such evidence will assist the trier of fact in understanding or determining a fact in issue. Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796. We review a trial court’s determination of the reliability of an expert’s testimony for clear error, Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky. 2004), and its determination of relevancy of such testimony for abuse of discretion. Id. at 922. This is so because the question of the reliability of an expert’s testimony is a factual determination to be made by the trial court which is entitled to deference as the trial court is in the best position to evaluate the proposed testimony, and the question of relevancy falls within the discretionary function of the trial court.

Here, the trial court found Kress did not have the qualifications to give a medical diagnosis or an opinion as to the causation of Rossi’s injuries. Thus, the trial court made its determination solely on the reliability of the evidence and did not reach the question of relevancy. Because the trial court made only a factual determination, our review must be limited to an inquiry of clear error. Errors in the exclusion of evidence do not justify reversal unless the failure to do so appears “inconsistent with substantial justice.” CR3 61.01. We are unable to
discern such an error.

Kress was clearly qualified to testify as to the risk factors for developing carpal tunnel syndrome and trigger finger. His credentials were impressive and uncontroverted on the subject. The trial court conducted a thorough Daubert hearing and concluded Kress possessed the requisite knowledge, skill and training to reliably testify as to those risk factors present in Rossi’s work environment, but did not have the necessary credentials to offer causation testimony. It is undisputed Kress is not a medical doctor and did not physically examine or test Rossi. The trial court concluded these missing factors were sufficient to preclude Kress from testifying as to a causal connection between Rossi’s exposure to the risk factors and his injuries. The court went on to state that even if Kress were a medical doctor, the fact that he had not “done the work” of examining Rossi would preclude him from being able to give causation testimony. We cannot say the trial court clearly erred in making this decision.

Further, we discern no harm from the exclusion of Kress’s testimony because Rossi was able to offer the testimony of his treating physician, Dr. Muffly, that the repetitive movements of his hands and fingers on the job at CSX caused Rossi’s injuries. Therefore, we are unable to conclude the trial court’s decision ran afoul of substantial justice.

1194.  DVO; EPO. 
TELEK (JOHN STEPHEN)
VS.
DAUGHERTY (NOW BUCHER) (SAMANTHA)
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
STUMBO (CONCURS) AND SHAKE (SENIOR STATUS JUDGE)(CONCURS)
2009-CA-001993-ME
TO BE PUBLISHED
KENTON
1195

LAMBERT, JUDGE: John Stephen Telek has appealed from the Kenton Family Court’s October 21, 2009, domestic violence order (DVO) granted to Samantha Bucher. John challenges the family court’s jurisdiction to enter the DVO in this case, as a hearing was held and the DVO was entered more than fourteen days after the emergency protective order (EPO) was entered in violation of KRS 403.740(4) and 403.745. John also challenges the family court’s impartiality due to his filing of a petition for writ of prohibition related to this matter as well as the sufficiency of the evidence supporting the entry of the DVO. Because we agree with John that the family court lacked jurisdiction to hold a hearing or enter the DVO, we reverse and remand.

1197.  JUVENILES.  STATUS OFFENDER. FAMILY COURT JURISDICTION.
H. (B.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION VACATING AND REMANDING
MOORE (PRESIDING JUDGE)
CAPERTON (CONCURS) AND VANMETER (CONCURS)
2010-CA-000259-ME
TO BE PUBLISHED
FAYETTE

MOORE, JUDGE: B. H., a child, appeals the order of the Fayette Family Court finding that he violated KRS1 630.020(3), and committing him to the Cabinet for Families and Children (Cabinet) as a status offender. After a careful review of the record, we vacate the court’s order because the court did not have jurisdiction over the matter; we remand with instructions for the court to dismiss the action from its docket.

1198. TERMINATION OF PARENTAL RIGHTS.
CABINET FOR HEALTH AND FAMILY SERVICES
VS.
W. (I.) JR., ET AL.
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
STUMBO (CONCURS) AND SHAKE (SENIOR STATUS JUDGE)(CONCURS)
2010-CA-000301-ME
TO BE PUBLISHED
CLARK

LAMBERT, JUDGE: This is a termination of parental rights case in which the Cabinet for Health and Family Services appeals from a judgment of the Clark Family Court denying the petition to terminate the parental rights of Appellee, I.W., Jr. For the reasons stated herein, we reverse the family court’s order and remand this matter for termination of the parental rights of Appellee, I.W., Jr.

 

 

 

 

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