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PUBLISHED DECISIONS OF COA:

720.  TORTS. MALICIOUS PROSECTION.
BATES (JAMES L.) SR.
VS.
CURTIS (DANNY), ET AL.
OPINION REVERSING AND REMANDING WITH DIRECTIONS
TAYLOR (PRESIDING JUDGE)
ACREE (CONCURS) AND COMBS
(CONCURS IN RESULT ONLY)
2010-CA-000285-MR
TO BE PUBLISHED
FRANKLIN

TAYLOR, JUDGE: James L. Bates, Sr., brings this appeal from a judgment entered upon a jury verdict on January 15, 2010, in the Franklin Circuit Court in favor of Danny Curtis and Donnetta Curtis (collectively referred to as the Curtises), awarding damages to the Curtises in the amount of $15,000. For the reasons stated, we reverse and remand with directions.

[Facts are:  Bates’ son was found dead hanging in the Curtis’ shed.  Authorities ruled it a suicide.  Bates believed otherwise, opened an estate, and filed a wrongful death action against the Curtises.  The wrongdeath action was dismissed, and the Curtis’s pursued a malicious prosecution against Bates who defended claiming he should be dismissed and the action pursued against the estate instead.  Trial court denied dismissal, matter went to trial, the Curtis’s prevailed but awarded zero damages and $15,000 attorney fees.]

Bates’ primary arguments on appeal are that the trial court erroneously overruled his motion for directed verdict at trial and that Bates, individually, should have been dismissed before the case went to trial. Because we believe the trial court should have granted a directed verdict to Bates due to the flawed nature of the “malicious prosecution” proceedings, we will thoroughly address the directed verdict issue only since it resolves the appeal without resort to any other appellate review.

[N]otwithstanding that the issue [re dismissal]  may have been insufficiently raised or preserved for review if the court determines that manifest injustice has resulted from the error. We believe there were numerous errors by the trial court during these proceedings and at trial, the cumulative effective of which has resulted in a manifest injustice to Bates. This warrants our review of the directed verdict issue and the remand of this action to the Franklin Circuit Court for dismissal of the complaint for the various reasons stated hereafter.

For these reasons [eg., the trial court improperly submitted the determination of probable cause to the jury, the advice of counsel defense, and no apportionment instruction] the judgment of the Franklin Circuit Court is reversed and this cause is remanded with directions for dismissal of the complaint against Bates. It has been almost fifteen years since young James Landon Bates, Jr., tragically lost his life and the parties have been litigating his death now for fourteen years – it is time for finality in these proceedings.

723.  SUMMARY JUDGMENT IN MED MAL CASE.  EXPERT TESTIMONY.
WALKER (LISA), ET AL.
VS.
C. LANCE LOVE, M.D., PLLC, ET AL.
OPINION REVERSING AND REMANDING
STUMBO (PRESIDING JUDGE)
MOORE (DISSENTS AND FILES SEPARATE OPINION) AND LAMBERT (CONCURS)
2010-CA-002150-MR
TO BE PUBLISHED
CHRISTIAN

STUMBO, JUDGE: Lisa Walker and her husband, Larry Walker, appeal from orders of the Christian Circuit Court which granted summary judgment to C. Lance Love, M.D., personally and individually; and C. Lance Love, M.D., PLLC, in this medical malpractice action. The issue on appeal is whether the Walkers’ failure to name a medical expert witness constituted a failure of proof that justified the grant of summary judgment.

In Blankenship v. Collier, 302 S.W.3d 665 (Ky. 2010), the Kentucky Supreme Court outlined the circumstances under which summary judgment may be granted in a medical malpractice action for failure to disclose a medical expert. Due to the specialized nature of the evidence in a medical malpractice action, expert testimony is usually necessary “to show that the defendant medical provider failed to conform to the standard of care.” Id. at 670. An exception to this general rule exists in res ipsa loquitur cases, where “the jury may reasonably infer both negligence and causation from the mere occurrence of the event and the defendant’s relation to it, and in cases where the defendant physician makes certain admissions that make his negligence apparent.” Id. (quotation marks and citations omitted). Thus,

[m]edical malpractice cases can . . . be divided into two categories: cases where the parties do not dispute the need for expert testimony, which encompass the vast majority of medical malpractice claims, and cases where the plaintiff disputes the need for expert testimony because he contends one of the narrow exceptions applies.

Id.

In the first and largest category of cases, where the parties do not dispute the need for expert testimony, the failure to name an expert witness in a timely manner can constitute a failure of proof warranting summary judgment. In the second category, when the need for an expert is legitimately disputed, the trial court must make a separate ruling on that issue before entertaining a motion for summary judgment. Thus, “[i]n cases where there is a real dispute regarding the need for

expert testimony, imposing sanctions on the plaintiff for failing to comply with a scheduling order requiring disclosure of the expert’s name and testimony is a more appropriate remedy than a summary judgment.” Id. at 671.

In this case, there was no specific expert disclosure deadline, although the trial court had set a firm trial date and ordered that all disclosures had to be made “sufficiently in advance” of the pretrial conference, scheduled for September 29, 2010. The summary judgment was granted two months before that date, on July 28, 2010. In their response to the motion for summary judgment, the plaintiffs disputed the need for an expert, arguing that “a jury can understand without a surgical expert that if Lisa Walker did not have thyroid storm that has been confirmed by Dr. Shah, that the proper treatment was to put her in a hospital in the ICU and not to perform surgery and a jury can understand that Lisa Walker was assured that everything would be fine that was not.”

There is a significant discrepancy between the diagnosis of Lisa as suffering from low thyroid prior to the surgery and Dr. Love’s diagnosis of thyroid storm. Furthermore, even if Dr. Love was correct that she was suffering from thyroid storm, his decision to operate was questionable in light of Dr. Shah’s and Dr. Dave’s testimonies that the proper treatment for thyroid storm is immediate hospitalization and consultation with an endocrinologist. “[E]xpert testimony is not necessary ‘where the common knowledge or experience of laymen is extensive enough to recognize or infer negligence from the facts.’” Baylis v. Lourdes Hosp. Inc., 805 S.W.2d 122, 124 n. 3 (Ky. 1991)(citation omitted). In this case, the medical evidence created at least the possibility that a jury could have believed that Dr. Love performed the thyroidectomy without first having made a proper diagnosis. “[S]ummary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor.” Lewis, 56 S.W.3d at 436. At the very least, the evidence was sufficient to create a legitimate dispute about the need for an expert witness. In light of these circumstances, the trial court “improperly attempted to resolve an essentially procedural conflict arising from discovery with a rule founded upon the resolution of legal issues arising upon undisputed facts.” Poe v. Rice, 706 S.W.2d 5, 6 (Ky. App. 1986).

The grant of summary judgment in favor of C. Lance Love, M.D., personally and individually, and C. Lance Love, M.D., PLLC, is therefore reversed, and the matter is remanded for further proceedings.

726. CRIMINAL LAW
ELDERS (QUENTON L.) JR.
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
ACREE (CONCURS) AND CLAYTON (CONCURS)
2011-CA-000299-MR
TO BE PUBLISHED
JEFFERSON

KELLER, JUDGE: Quenton L. Elders, Jr. (Elders) appeals from an order of the Jefferson Circuit Court denying his motion to suppress. Elders also appeals from the Jefferson Circuit Court’s judgment convicting him of one count of sodomy and/or rape in the third degree, one count of distribution of obscene matter to minors, and of being a persistent felony offender in the second degree. For the following reasons, we affirm.

729.  CRIMINAL LAW.  DECISION ADDRESSES EVIDENCE OBTAINED FROM COMPUTERS.
CRABTREE (SAMUEL A.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
DIXON (CONCURS) AND VANMETER (CONCURS)
2011-CA-000452-MR
TO BE PUBLISHED
MADISON

COMBS, JUDGE: Samuel Crabtree appeals his conviction in the Madison Circuit Court of multiple counts of possession of materials portraying a sexual performance by a minor. After our review of the record and the law, we affirm.

731.  BUSINESS LAW.  NONCOMPETE AGREEMENT.  PREMATURE SUMMARY JUDGMENT (ENTITLED TO ADDITIONAL DISCOVERY).
CHARLES T. CREECH INCORPORATED
VS.
BROWN (DONALD E.), ET AL.
OPINION REVERSING AND REMANDING
ACREE (PRESIDING JUDGE)
MOORE (CONCURS) AND VANMETER (CONCURS)
2011-CA-000629-MR
TO BE PUBLISHED
FAYETTE

ACREE, CHIEF JUDGE: This case involves a noncompetition agreement executed by Donald E. Brown while he was an employee of Charles T. Creech, Inc. He later left his employment with Creech, Inc. to work for Standlee Hay Company, Inc., an act Creech, Inc. contends constituted breach of the agreement.

Following preliminary proceedings, the Fayette Circuit Court entered summary judgment in favor of Brown and Standlee Hay on Creech, Inc.’s claims that Brown breached contracts incident to his employment, that Standlee Hay illegally interfered with Brown’s employment-related contracts and the conduct of Creech, Inc.’s business, and that both defendants committed fraud. We conclude that Creech, Inc. was entitled to additional discovery to resolve the dispute and entry of summary judgment was premature.

732.  CRIMINAL LAW.  TRAFFICKING IN DRUGS NEAR SCHOOL.
BAGBY (SHAUNTE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
DIXON (CONCURS) AND VANMETER (CONCURS)
2011-CA-000776-MR
TO BE PUBLISHED
FAYETTE

COMBS, JUDGE: Shaunte Michelle Bagby entered a conditional plea of guilty to: trafficking in controlled substances within 1000 yards of a school, two counts of trafficking in marijuana, one count of possession of controlled substances in the first degree, and four counts of driving on a DUI suspended license. The Fayette Circuit Court sentenced her to serve several terms, all to run concurrently for a total of one-year imprisonment. Her sentence was probated for three years. Bagby now appeals, contending that the trial court erred by failing to grant her motion to suppress evidence related to the drug charges. After our review, we affirm.

742
COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY  ERVICES, DEPARTMENT FOR COMMUNITY BASED SERVICES
VS.
BELL (MARY), BELL (THOMAS E.) (AS NEXT OF FRIEND), AND DAWAHARE (RICHARD)
2011-CA-001482-MR
TO BE PUBLISHED
FRANKLIN

DIXON, JUDGE: Appellant, the Commonwealth of Kentucky, Cabinet for Health and Family Services, Department for Community Based Services (“DCBS”), appeals from an order of the Franklin Circuit Court granting Appellees’ motion for attorney fees and for the production of DCBS’s records pertaining to particular Medicaid patients involved in its program.

In addition to federal law, Kentucky law places restrictions on DCBS’s ability to disclose protected information. KRS 205.175(1) requires that all records of Medicaid recipients be kept confidential. Subsection (2) explicitly states that such records “shall not be published or be open for public inspection,” and while certain “necessary information” may be furnished to specified entities or individuals, a private attorney representing a private party is not among those listed. See KRS 205.175(2)(a)-(e).

The trial court’s order herein purports to require DCBS to disclose the very information it is required to safeguard and without the permission of those recipients. Presumably, the information would be turned over to Bell’s counsel, who is not subject to any sort of confidentiality requirements. Without question, the trial court’s order is erroneous as it directly violates state and federal law. Finally, we find no merit in Bell’s claim that the disclosure is warranted to prevent DCBS from continuing its egregious conduct. Not only does Bell fail to cite legal authority for such proposition, but we would observe that the trial court made no finding in its December 2010 opinion and order that DCBS acted in bad faith. Rather, the issue in the administrative proceedings was simply the correct application of the Pickle Amendment.

Based on the foregoing, the opinion and order of the Franklin Circuit Court awarding Bell attorney fees and ordering the disclosure of DCBS’s records related to the HBCW program is reversed.

748.  FAMILY LAW.  CHILD RELOCATING OUTSIDE STATE.
SAMSON (ROBERT JOSEPH) III
VS.
SAMSON (HEIDI MARIE)
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
LAMBERT (CONCURS) AND STUMBO (CONCURS)
2011-CA-002181-ME
TO BE PUBLISHED
FAYETTE

CLAYTON, JUDGE: This is an appeal from the Fayette Circuit Court, Family Branch’s (Family Court) granting of a leave to relocate brought by the Appellee, Heidi Marie Sampson. The Appellant, Robert Joseph Samson, III, contends that it is not in the best interest of their child to relocate to Washington State and that the Family Court erred in granting Heidi’s request. For the foregoing reasons, we affirm the decision of the Family Court.

TORT REPORT  FOR PUBLISHED/NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

PUBLISHED:

720.  TORTS. MALICIOUS PROSECTION.
BATES (JAMES L.) SR. VS. CURTIS (DANNY), ET AL.

731.  BUSINESS LAW.  NONCOMPETE AGREEMENT.  PREMATURE SUMMARY JUDGMENT (ENTITLED TO ADDITIONAL DISCOVERY).
CHARLES T. CREECH INCORPORATED VS. BROWN (DONALD E.), ET AL.

NONPUBLISHED:

722.  GOVERNMENT IMMUNITY.
OSBORNE (DAVID), ET AL. VS.AULL (GREGORY)
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
CLAYTON (CONCURS) AND VANMETER (CONCURS)
2010-CA-001073-MR
NOT TO BE PUBLISHED
DAVIES

CAPERTON, JUDGE: David Osborne, Vickie Isom and Pam Bartlett appeal from an order denying their motion for summary judgment against Gregory Wayne Aull. Aull had filed suit against Osborne, who is the Daviess County Jailer, and Isom and Bartlett, who are employed as nurses at the jail, alleging gross medical negligence in failing to diagnose and treat his diabetes when he was an inmate atthe jail. The circuit court ruled that the appellants are not entitled to individual immunity from suit. Having reviewed the record and applicable law, we affirm.

728.  CIVIL PROCEDURE.  MULTIPLE ISSUES BUT NOTE MOTION TO ENFORCE SETTLEMENT AGREEMENT.
SEXTON (HARGUS) VS.SAMBRANO (VICTOR)
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
TAYLOR (CONCURS) AND THOMPSON (CONCURS)
2011-CA-000422-MR
NOT TO BE PUBLISHED
WOODFORD

KELLER, JUDGE: Hargus Sexton (Sexton) appeals from the trial court’s orders: denying his request to enforce a settlement agreement; dismissing his claims against Victor Sambrano (Sambrano); assessing to him the entire costs of the proceedings; and denying his motion for reconsideration. On appeal, Sexton argues that there was insufficient evidence to support the trial court’s findings and  that the dismissal of all of his claims was “too harsh.” Sambrano argues to the contrary. Having reviewed the record, we affirm.