COAM 2014:07 – Court of Appeals Minutes of Decisions Posted for February 14, 2014 – 36 decisions (131-166)

The Court of Appeals of Kentucky (COAKY) announced 36 decisions on February 14, 2014 numbered  131-166.  Four (4)  decisions were designated “to be published”.  Click here for complete list of all archived Court of Appeals’ Minutes that you can download from the Administrative Office of the Courts’ web site.

The published decisions for 2/14/2014 are:

  • 138.  Jury instructions and evidentiary issues.
    McGuire Estate vs. Lorillard Tobacco Co.
    COA affirmed defense verdict on estate’s claims of negligence following death from asbestos exposure after being diagnosed with mesothelioma. 
  • 141.  Rule 11 sanctions against local counsel for not signing pleadings they prepared.
    Persels & Associates LLC v. Capital One Bank
    COA affirmed trial court’s granting of Rule 11 sanctions against defendants arising from debt collection case. Persels was a national law firm and hired local counsel, and trial judge ordered local counsel to show cause why they should not be held in contempt for failure sign pleading and enter an appearance (limited retention of local counsel per agreement did not require them to sign pleading, enter an appearance or attend a court hearing).  The $1.00 sanction was not considered onerous.
  • 142. Judicial Sale of Real Property.
    Lerner v. Mortgage Electronic Sysems, Inc.

    STUMBO, JUDGE: Shawn Lerner appeals from an order of the Jefferson Circuit Court vacating a judicial sale of real property. We find that the trial court did not abuse its discretion and affirm.

  • 154.  Daubert hearing no rquired
    Borboa & Travelers Ins. Co. vs. Starsiak, D.O.

    JONES, JUDGE: Appellants Lisa Marie Borboa and Travelers Insurance Company filed a medical malpractice negligence action against Appellees Casey  Collectively referred to herein as Appellants.

    Starsiak, D.O., and Twin Lakes Medical Foundation, Inc.,2 in Ohio Circuit Court asserting that Dr. Starsiak injured Borboa’s shoulder during surgery. Over Appellants’ objection, the trial court allowed Appellees’ medical expert, Dr. Frank O. Bonnarens, to testify that a cortisone shot administered by another physician prior to the surgery caused the shoulder injury. On August 30, 2012, the trial court entered a judgment upon a jury verdict in favor of Appellees and dismissing Appellants’ claims.

    On appeal, Appellants assert that the trial court abused its discretion by failing to conduct a preliminary Daubert hearing and proper Daubert analysis and then compounded the error by allowing Dr. Bonnaren’s to testify before the jury about his unreliable “cortisone theory.” For the reasons more fully explained below, we AFFIRM the Ohio Circuit Court’s judgment.

    This week’s photo highlights Breckinridge County.

TORT, INSURANCE AND PROCEDURE HIGHLIGHTS:

  • 137.  Propriety of Closing Arguments and Opinions.
    COA NPO (NonPublished Opinion) 2/14/2014
    Warsow v. Don Mohler and Kentucky Farm Bureau

    The question presented for our review is whether certain statements made by the defendant’s attorney during his closing argument impermissibly introduced information outside the record, thereby prejudicing the jury and resulting in an unfavorable verdict for the plaintiff. Finding they did not, we affirm.

    The argumentative language and opinion from the Insurance Defense lawyer representing Mohler attacked the bias of Plaintiff’s examining physician:

    There, in my opinion, there are serious issues with Dr. Rayes-Prince’s credibility, not the least of which is that she – I won’t say she’s on staff with [the law firm representing Warsow], but her testimony is that she evaluates people . . . that [the] firm is representing three times a year, not much more than that, she testified, and has done so for the last seven years. [The law firm representing Warsow] uses Dr. Rayes-Prince a lot. . . .

  •  138.  Jury instructions and evidentiary issues.
    COA PUB 2/14/2014
    McGuire Estate vs. Lorillard Tobacco Co
    COA affirmed defense verdict on estate’s claims of negligence following death from asbestos exposure after being diagnosed with mesothelioma.
  •  141.  Rule 11 sanctions against local counsel for not signing pleadings they prepared.
    Persels & Associates LLC v. Capital One Bank
    COA PUB 2/14/2014
  • 145. Medical Malpractice
    Lisa Borboa vs. Dr. Casey R. Starsiak
    COA NPO 2/14/2014
  • 146.  Battery
    Kimberlyn Carpenter vs. Jeffrey Reister
    COA NPO 2/14/2014
  • 150.  Qualified Immunity
    Kim Rasche vs. Dr. Sheldon Berman, Jefferson County School Superintendent
    COA NPO 2/14/2014
    COA affirmed summary judgment dismissal of claims against various employees of JCPS in slip and fall in school parking lot which was visibly icy.

156. Motion To Dismiss.  Slip and Fall
Angela McCoy vs. Dalton Homes, Inc.
COA NPO 2/14/2014

COA affirmed trial court’s order denying the appellants CR 12 motion to dismiss based on qualified official immunity until a reasonable opportunity is allowed for discovery. As indicated by the trial court, at that time any motions for summary judgment may be properly considered.

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