DAVIS V. FISCHER SINGLE FAMILY HOMES, LTD.
CIVIL PROCEDURE:  JUROR PEREMPTORY CHALLENGES; DEPOSITIONS BY VIDEO
EVIDENCE:  SCIENTIFIC "DAUBERT"; PRIOR ACTS
TORTS: NEGLIGENCE PER SE AND BUILDING CODES
2006-CA-000005
PUBLISHED: AFFIRMING
PANEL: NICKELL PRESIDING; KNOPF CONCURS; ABRAMSON CONCURS WRITING SEPARATE OPINION
COUNTY: KENTON
DATE RENDERED: 8/10/2007

The case involves a family suing its contractor and a subcontractor brick layer after the home developed a mold problem.  The jury apportioned 100% fault to the plaintiff, who argued a hill of issues on appeal.  Some highlights:

CR 47.03(1): coparties having antagonistic defenses get three peremptory challenges each in jury selection.  Sommerkamp v. Linton, 114 S.W.3d 811 (Ky., 2003), has three elements to be considered in this determination: (1) whether the coparties are charged with separate acts of negligence; (2) whether they share a common theory of the case; and (3) whether they’ve filed crossclaims.  Appellate court will not overturn trial court’s determination in this regard absent an abuse of discretion.  Court must weigh all factors in balance with each other.  Also, inherent in law of apportionment, KRS 411.182, is that the interests of codefendants are considered antagonistic.
KRE 407: subsequent remedial measures.  In absence of controversy, the feasability exception to this rule does not apply.
Evidence of prior negligent acts or customary practices offered solely in an attempt to prove negligence on a different occasion is inadmissible, as it offers very little probative value and present the potential for confusion of issues.  Dowell v. Bivins, 586 S.W.2d 297 (Ky. App., 1979).  No testimony of the builder’s other homes was admitted because it had no bearing on the facts of the issues in this case.
The CA refused to recognize a preference for live testimony as opposed to videotaped deposition and said that even if it expressed such a preference, it is within the trial courts’ sound discretion to determine both admissibility of evidence and how it is admitted.
After a Daubert hearing, the trial court excluded future health effects of mold exposure tsetimony.  The CA gives the trial court’s decision on the admissibility of expert witness testimony deference, as it is in the best position to judge the credibility of evidence presented.  Miller v. Eldridge, 146 S.W.3d 909 (Ky., 2004).
Party must mitigate damages.  Howard v. Adams, 246 S.W.2d 1002 (Ky., 1952).  CA held the plaintiff failed to mitigate, and trial court was correct to exclude evidence of exaggerated damages.
KY does not allow for recovery for damages to reputation of real estate.  Morgan v. Hightower’s Adm’r, 291 Ky 58, 163 S.W.2d 21, 22 (Ky., 1942)

Digested by Cherry Henault