Oct. 27, 2011 SCOKY Minutes posted at AOC Web Site

Oct. 27, 2011 SCOKY Minutes posted at AOC Web Site.  Click on this to access PDF.

Decisions:  169-181
13 decisions with 10 published
Click here for this month's minutes (case names, questions presented for published decisions, and links to full text of each published and nonpublished decision)
Click here for an index to all monthly minutes of SCOKY.

PUBLISHED DECISIONS (Number, NAME, ISSUE AND LINK TO FULL TEXT):

169. CRIMINAL. CRIMES (METH MANUFACTURE)
CHRISTOPER CHAVIES V. COMM OF KY
Questions Presented:
Manufacturing methamphetamine; receipt of stolen property worth $500 or more, but less than $10,000; and PFO II – 50 years. Traffic stop. Warrantless search of automobile. Plain view exception. Sufficiency of evidence. Erroneous introduction of prior amended and dismissed charges did not constitute palpable error.

170.  CRIMINAL.  CRIMES (MURDER).
SEAN CHRISTOPHER NOAKES V. COMM OF KY
Questions Presented:
Murder, attempted murder and PFO I.
Two life sentences. Limited directed verdict does not exist. Language of KRS 504.020(2) properly included in insanity instruction. Error in EED instruction was not reversible because it had been proffered by the defendant.
No prosecutorial conduct.

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

172.  FAMILY LAW. CHILD SUPPORT.
COMM OF KY CAB. FOR HEALTH AND FAMILY SVCS. V.  RENEE IVY
Questions Presented:
Child Support. Contempt of Court. Issues include the amount of child support as well as arrearages to be paid by a non-custodial parent receiving SSI benefits.

173.  DUE PROCESS. STATUTE OF LIMITATIONS.
ST. LUKE HOSPITAL, INV. V. SHANNON STRAUB
Questions Presented:
Violation of State Due Process Rights. Statute of Limitations. Issue preclusion. Torts. Issues include: 1. whether KRS 446.070 creates a cause of action for a violation of state constitutional rights; 2. whether federal litigation in a §1983 action precludes state litigation; 3. whether the statute of limitations was observed; 4. whether KRS 413.270 applies; 5. whether the trial court erred by failing to answer jury questions during deliberations; 6. whether the trial court incorrectly admitted evidence of the plaintiff’s prior drug and profanity use, and 7. whether the plaintiff is entitled to punitive damages.

174. BUSINESS LAW.  CORPORATIONS. DISSENTERS RIGHTS.
SHAWNEE TELECOM RESOURCES, INC. V. KATHY BROWN
Questions Presented:
Dissenter’s Rights. Corporations. The issue is by what method the trial court should value the dissenting shareholder’s stock shares.

175.  CRIMINAL LAW.  PFO.
JEREMY D. LAWTON V. COMM OF KY
Questions Presented:
Second degree escape and PFO II. Sample instruction for second-degree escape from a home as a detention facility in the home incarceration program.

176.  STATUTE OF LIMITATIONS. MVRA. UNLOADING.
INTERLOCK INDUSTRIES V. ROSENMAN'S INC.
Questions Presented:
Statute of Limitations. Personal Injury. MVRA. Issues include whether the KRS 413.140(1) one-year personal injury statute of limitations or the KRS 304.39-230 two-year MVRA statute of limitations applies to the injury suffered by a trucker when he was struck by part of his load of aluminum bundles as he was rolling up tie-down straps beside the flatbed truck being unloaded.

177.  CRIMINAL. SENTENCES. CORRECTIONS.
PETER BARD V. COMM OF KY
Questions Presented:
Department of Corrections cannot correct an error in the calculation of a presentencing custody credit after the calculation is incorporated into the trial court’s final judgment.

178.  FAMILY LAW. CHILD CUSTODY.
CORY KEIFER V. JAYLYNNE KEIFER
Questions Presented:
Child Custody. Modification. Issues include whether factual findings are required in ruling upon post-dissolution motions to modify parental timesharing to accommodate relocation of one joint custodian.

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