SC: February 2018 Oral Arguments before Ky Supreme Court

Dates: Feb. 7, 8 and 9, 2018

Click here for link to table of all monthly oral argument calendars at Kentucky’s Administrative Office of the Courts (AOC) from 2005 to date.

Click here for a link to all of the Kentucky Court Report’s postings on Supreme Court argument calendars.

Click here to catch live web streaming oral arguments on the date and time of the argument.  They are not saved for later viewing.

Issues:

Feb 7

*  “Whistleblower Act. Issues involve evidentiary sufficiency to support a jury verdict for violation of the Kentucky Whistleblower Act.”

*   “Qualified Immunity. Summary Judgment. Negligence. Slip and Fall. The issue is whether Court of Appeals’ analysis usurped the role of the jury, in deciding the issue of negligence on this interlocutory appeal, when the trial court denied a motion for summary judgment and determined that qualified immunity did not apply to these circumstances, but had not yet addressed the issue of negligence of school employees.”

*  “Criminal Law. RCr 11.42 and CR 60.02. Issues involve application of Montgomery v. Louisiana, 136 S. Ct. 718 (2016) to a 1998 sentence of life without parole for crimes including multiple murders committed before the offender’s 18th birthday.”

Feb. 8

*  “Torts. Punitive Damages. Issues include the propriety of the Court of Appeals panel’s remittitur of $60 million of the $80 million awarded in punitive damages in addition to compensatory damages of $19.315 million for fraudulent and grossly negligent tax and accounting services. Issues presented in the cross-motion concern the compensatory damages award as well as the punitive damages.”

Feb. 9

*  “Contract. Quantum Meruit. Unclean Hands. Federal HUBZone Program. Issues include whether a subcontractor who allegedly performed more work than allowed on a bridge construction project governed by the Federal HUBZone Program may recover for the value of that work from the prime contractor under quantum meruit.”

*  “Products Liability. Medical Malpractice. Federal Preemption. Off-Label Use of Medical Devices. Informed Consent. Hospital Standard of Care. An issue of first impression in Kentucky is whether the trial court properly dismissed the state products liability claims against the hospital on the basis of express federal preemption in circumstances involving the off-label use of a medical device. Another issue is the standard of care applicable to the hospital when a medical device is being used off-label. Did the Court of Appeals err when it determined that the hospital had a duty to inform the patient of the regulatory status of the device and its off-label use and the risks attendant thereto?”

 

SCOFEB18

 

 

COA: February 2, 2018 Court of Appeals Decisions (Minutes)

Nos. 66-96: Thirty-one Decisions Posted with 7 decisions designated for publication

PUBLISHED DECISIONS:

73.  Judgement Lien and Sale of Real Property.
Newman v. Estate of Joseph K. Hobbic
Affirmed circuit order for sale of real estate to enforce judgement lien

75.  Kentucky Civil Rights Act.  Claims for racial and gender discrimination.
Lindsey v. Board of Trustees of the University of Kentucky

80.  Divorce.  Separation agreement and whether canopy bar on property was a fixture
Scanlon v. Scanlon

82.  Criminal Law.  Ex parte orders without presence of prosecutors and subsequent requests for production of documents.
Commonwealth of Kentucky  v. Cambron

83. Costs of receivership.
Commonwealth of Kentucky, Energy and Environment Cabinet v. Bowling

85.  DVO amendments.
Benson v. Lively

92.  Underinsured motorist benefits.  Commercial policy and named insured.
Isaacs v. Sentinel Insurance Company d/b/a The Hartford
Policy language in commercial policy providing underinsured motorist benefits did not include individual owner of corporation even if sole owner.

Selected cases that were not designated for publication in tort, insurance and civil law. None.

66.  Sovereign Immunity.
Martin v. Parking Authority of River City, Inc.
PARC is not entitled to governmental immunity and is not immune from liability in the action herein.

68.  Medical Negligence/malpractice.
Estate of Roger Burton v. Brown, MD

69.  Failure to Prosecute Dismissal affirmed.
Sanders v. Wal-Mart Stores East,LP

79.  Medical negligence.
Allmän v. Syed 

84.  Negligence. Patient fall.
Day v. Appalachian Regional Healthcare, LLC

88.  False imprisonment.
Kinner v. Wal-Mart Stores, Inc.
“The tort of false imprisonment requires the plaintiff to establish that she was detained unlawfully.” Birdsong v. Wal-Mart Stores, Inc., 74 S.W.3d 754, 757 (Ky. App. 2001) (citing Wal–Mart Stores, Inc. v. Mitchell, 877 S.W.2d 616, 617 (Ky. App. 1994)). “ʻ[A]ny deprivation of liberty of one person by another or detention for however short a time without such person’s consent and against his will, whether by actual violence, threats, or otherwise, constitutes’ . . . false imprisonment.” Great Atlantic & Pacific Tea Co. v. Smith, 281 Ky. 583, 136 S.W.2d 759, 767 (1939)(quoting Great Atlantic & Pacific Tea Co. v. Billups, 253 Ky. 126, 69 S.W.2d 5, 6 (1934)); see also Mitchell, 877 S.W.2d 616.

90.  Uninsured motorist benefits.  Owned but not scheduled insurance and conflict of laws between  Tennessee UM policy and Kentucky where collision occurred.
Henry v. Travelers

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You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.   Click Court of Appeals Minutes for entire listing of weekly minutes.

All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)

 

MNT02022018

2018-02 Amended Order, Dated Jan. 10, 2018

Guidelines for the Temporary Assignment of Retired Judges . Program

The following Supreme Court addresses the Temporary assignment of retired judges to sit in any court other than the Supreme Court because the prompt disposition of  causes. Please note that this is not the same program  As the special status judgesfrom  a few years back when retired judges not only got paid for their services, but accrued substantial increases in retirement benefits, especially in the form of retirement pay.

Under Section 110(5)(b) of the Kentucky Constitution, the Chief Justice is granted authority to assign “temporarily any justice or judge of the Commonwealth, active or retired, to sit in any court other than the Supreme Court when he deems such assignment necessary for the prompt disposition or’ causes.” The Supreme Court has determined that the need exists for qualified, retired justices and judges (hereafter referred to collectively as “judge” or . “judges”) to be available on a temporary basis for active recall to judicial service throughout the state.

6. Compensation

a. Program judges will be paid actual expenses and compensation on a per diem basis in accordance with Supreme Court Rule (SCR)1.070 and Administrative Procedures of the Court of Justice Part VII, Reimbursement for Official Travel.

b. Program judges will not be eligible for benefits nor will they accrue additional service credits towards retirement.

7. Practice of Law, Mediation, and Elected Office

A Program judge may not be assigned in any district or circuit wheremhe or she is currently practicing law; conducting private mediation; or is a candidate for any elected partisan or non-partisan office.

[emphasis added]

201802

COA: January 26, 2018 Court of Appeals Decisions (Minutes)

Nos. 49-65: 17 Decisions Posted with 3 decisions designated for publication

PUBLISHED DECISIONS:

50.  Real property.  Partial ummary judgement was reversed since issues still existed on voiding the deed for champerty
Coblenz v. Day

57.  Torts.  Liability of horse owner and status of injured party as trespasser or tenant  and “open and obvious” doctrine examined with appellate court affirming summary judgement dismissing claims.
Groves v. Woods

64.  Child abuse and neglect.  Burden of proof and custody examined.
B.(C.) v. Cabinet for Health and Family Services, Commonwealth of Kentucky
Court of Appeals reversed Circuit Court’s finding that a minor was abused and neglected by the father finding that the state had failed to meet its burden of proof by a preponderance of evidence and that the father never had unsupervised custody of the child.

Selected cases that were not designated for publication in tort, insurance and civil law. None.

51.  Appeal of pro se claim against physician and hospital for administration of Coumadin following hip surgery with usual issues on the brief’s compliance with the civil rules and raising of issues.  Nursing expert from Mexico did not qualify as expert.
McBrearty v. Lukins

59.  Qualified official immunity and claims against defendant in his individual capacity. Decent rundown on the law of official and qualified official immunity.
Johnson v. Hutcherson

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You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.   Click Court of Appeals Minutes for entire listing of weekly minutes.

All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)

MNT01262018

 

 

Attorney Sidebar: Peter Perlman on a Simple Approach to Opening Statements

~ Peter Perlman

I am straightforward and use everyday language. I make a conscious effort to avoid analogies like “the opening statement is like a roadmap” and “the opening statement is like a jigsaw puzzle, and as a case develops you’ll be able to see how the various pieces fit into this puzzle.” I prefer to use a direct approach and to simplify complicated or technical issues as much as possible. The roadmap and jigsaw puzzle references suggest that the case is complicated, and the average person is likely to be turned off by complicated explanations

~ Peter Perlman, “Opening Statements”, ATLA Press, 2007, page 41.

Comment:

In this small paperback, renown trial attorney Peter Perlman, addresses several of his opening statements by annotating them with comments and analysis.  Revelations into the inner workings of the law are rarely this specific and even more rarely memorialized in print.

This particular case dealt with a farm employee’s injuries when his arm was trapped in a corn-picker that had little to no modifications in design for 50 years.  However, the guidance of talking like a person, a real person, is critical.  Use simple terms if possible and don’t waste time on a long windup about roadmaps and puzzles which talk down to them (and most think this is adding clarity when it is potentially insulting, and even more insulting if involving matters within their common experiences and understanding such as automobile collisions or slip and falls.

Attorney Sidebar: Clarence Darrow on Fighting Power, Injustice and Oppression

~ Clarence Darrow

When Clarence Darrow was tried for subornation of perjury, he told jury in his own defense —

I have committed one crime… Which cannot be forgiven. I have stood for the weak and the poor. I have stood for [those] who toil.… I have lived my life, and I fought my battles, not against the weak and the poor – anybody can do that – but against power, against injustice, against oppression.…

~ Clarence Darrow, Attorney for the Damned, pages 496-497.

Commentary:

Recent events now remind us now more than ever of the critical role played by juries, lawyers, and the right to a jury trial.  Not only their criticality in affording justice for every person who is equal before the law, but their place in our Constitutional government.  The judiciary is a separate and equal branch of our government.  It is no less important than the other two branches.  The judiciary is not just the appellate judges in robes handing out opinions from on high, but includes the judges toiling day to day in our court administering the rule of law faithfully, dispassionately, and fairly.

Trial judges do this  not just with opinions and rulings from the bench, but in their roles at jury trials as one of the three legs that hold up the separate but equal branch of our government — the Constitutional Right to a trial by jury.  The other two legs of a jury trial are the trial lawyers’  and the individual jurors who make up the jury.  Their roles are  a reminder all of us of the protections required and afforded to ALL of our citizens in keeping liberty and freedom secure.  Not just criminal and civil defendants.  When justice is afforded to an individual defendant in the exercise of their right to a jury trial, we ALL benefit from those blessing of liberty and freedom from injustices.

The Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ….

The Seventh Amendment:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

And the right to a jury trial is composed of three key players:

  • Judge
  • Jury/jurors
  • Lawyers

Without these three supporting foundations, then our protections against an overreaching law enforcement agency (eg., FBI), denials of equal justice and rights, government oppression or passage of laws violating our Constitution would be vastly different.

So, all of us should protect their independence, their role and and their place in a free society.  This is not just me, it’s the law.  Constitutional Law.

Postscript on special prosecutors.

Some argue that the Founding Fathers committed a misstep by placing the criminal investigator powers of the federal government in the executive branch.  I disagree.  The other two branches are not well-suited, and a check and balance was provided against the executive/President via impeachment and removal if necessary.  Also the Fourth Estate (a free and honest press, not the entertainment arm of the cable news channels but an investigator press that ferrets out the facts and reports on these facts, and of course I would prefer facts and not anonymous sources) should provide a check.

Thus, there are two enigmatic situations that have developed:

First, we should all be thankful about the press and media breaking of stories of potential corruption, biased investigation for/or against citizens, and Fourth Amendment violations and crimes.  It is too soon to tell, but the risk of ignoring and sweeping under the rug is a recipe for chaos and disaster.

Second, the special prosecutor should not be investigating anything associated with the president. I say this because the risk of the FBI crossing the political lines and being used as a usurpation of Congressional authority and their role in impeachment and removal of the president is disingenuous and also violates the Constitution.  The President is the executive. He can remove any person appointed in the executive department for any reason.  POTUS nominates, supervises, and removes those whose nominations have been approved by the Senate (and those not requiring Senate approval).

Any investigation into the Presidency by any government entity is an abuse of power and irresponsible.  The House can investigate, bring a bill of impeachment, and if passed, it goes to the Senate for the removal decision.

 

 

Attorney Sidebar: The Importance of Trial by Jury to Constitutional Accountability

~ Thomas Jefferson

I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.

and

Trial by jury is part of the bright constellation which leads to peace, liberty and safety.

Thomas Jefferson reminds us that our right to trial by jury is critical to our Constitution, our government, our peace, our liberty and our safety.

Think about the negative implications when the accountability afforded by a jury trial is impinged by the acts of the government whether by legislation or rule making.  This would include legislation to cap jury verdicts which distrusts a jury of one’s peers, the conscience of the community, and deprives those suffering losses to bear the cost of another’s negligence.

Bushell’s Case decided back in 1670 demonstrates how government treated juries as rubber stamps of the Crown’s decision and those of the presiding judge, the controls on peaceful assembly, free speech and pursuit of religious liberty all wrapped up in one when Quakers speaking in front of Grace Street Church in London.  Jurors died for the preservation of this right, and withstood physical confinement and deprivations rather than be told to render a verdict that was unjust simply because that was what the presiding judge directed they do!

The above link is to the facts, but if you want a telling and spell-binding recitation that goes in to the events and the travails of the jurors, then read “I Remember Atticus: Inspiring Stories Every Trial Lawyer Should Know” by Jim M. Perdue.

Decision: Statute of Limitations and Relation Back Doctrine Applied to Amended Complaint to Include Estate Romano v. Estate of Ben Johnson

Romano v. Estate of Ben Johnson, COA, Not Published Opinion, Jan. 19, 2018

Gailor v. Alsabi  distinguished on its facts to permit the original complaint to be amended and relate back when defendant driver died before service, but an Administrator was appointed within the statute of limitations.  This occurred even though the statute of limitations had expired at the time of the amendment.

Appellant/plaintiff did not obtain service on defendant driver in car accident prior to defendant driver’s death.  An administrator was appointed for the estate before statute of limitations expired.  Appellant plaintiff amended complaint in original service and argued the amended complaint related back. Trial court applied Alsabi v. Gailor, but Court of Appeals REVERSED and REMANDED holding the amended complaint related back and not filed untimely in violation of statute of limitations.

“Contrary to the trial court’s interpretation herein, Gailor did not hold that a suit originally filed against a deceased defendant could never be amended past the limitations period. Rather, it held that CR 15.03 does not permit relation back where the proper party did not exist during the limitations period. However, the facts herein are clearly distinguishable. Unlike the administrator in Gailor, the executrix of Johnson’s estate had been appointed almost one year prior to the date Romano filed his original complaint. Thus, this is not a case of a non-existent party at the time suit was originally filed. In fact, the trial court’s conclusion that Gailor supports dismissal even where the Estate (the proper party) actually exists would act to vitiate the specific purpose of the relation back rule. Therefore, unlike Gailor, there remains a question as to whether the Estate knew or should have known about Romano’s action during the limitations period. Accordingly, Romano was entitled to conduct further discovery on the issue of whether the Estate “(a) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (b) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him” so as to satisfy the requirements of the relation back rule under CR 15.03.”

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