The Supreme Court of Kentucky announced a 32 decisions on August 21, 2014, with 14 of the Kentucky Supreme Court cases designated for publication addressing: federal plea agreements with waivers of ineffective assistance of counsel fatal for conflicts of interest; preserving argument for appeal with offers of proof under KRE 103; SC takes a bite out of Patient Safety and Quality Improvement Act of 2005 (“PSQIA”) privilege; estate recovers for death of confidential informant when state police use him knowing his cover was blown.
View of the Boyle County Court House and the circle of stones announcing the “firsts” of Danville. Diane and I enjoyed our walk through the history and beauty of this lovely college town, architecture, the people and the sites.
Each of the cases, whether published and not to be published, can be found in the official “minutes” below organized by number, parties, county, and links to the full text of each (with the published decisions’ issue noted as “questions presented.” I have highlighted in yellow those cases of interest to Kentucky and Louisville injury attorneys.
Click here for links to all the archived Supreme Court of Kentucky minutes.
“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.
The Tort Report – Selected decisions this week on tort, insurance and civil law.
113. Conflict of Interest and Plea Agreements with the US Attorney’s Office Wanting Waivers of ineffective Assistance of Counsel
United States vs. Kentucky Bar Association
SC Published 8/21/2014
Affirming KBA Ethics Opinion E-435; Opinion by CJ Minton
Questions Presented: KBA Ethics Opinion E-435. Use of ineffective-assistance-of- counsel (IAC) waivers in plea agreements violates the Kentucky Rules of Professional Conduct.
“[O]urs is for the most part a system of pleas, not a system of trials[.]” 1 is the Plea bargaining is”not some adjunct to the criminal justice system; it is the criminal justice system.”2The pervasiveness of plea bargain agreements in the Courts of the Commonwealth cannot be overstated. Today, we deal with the ethical ramifications of one aspect of this “horse trading between prosecutor and defense counsel[1″3
[This decision went national, click here for more on the story.]
116. Evidence, KRE 103 Offer of Proof, Bad Acts Evidence, and Preservation of Issue for Appeal
Eric Henderson vs. Commonwealth of Kentucky
SC Published 8/21/2014; Opinion by Minton Affirming]
Questions Presented: Criminal Law. KRE 103. Issues include whether defendant’s proffer of evidence was sufficient to preserve his argument on appeal under KRE 103.
Although a criminal law case, the proffer rule should be of use to civil practitioners, as well. However, SC affirmed the COA holding that counsel failed to make an adequate offer of proof.
119. Workers Compensation, Attorneys Fees and Percentage Limits per KRS 342.320(2)
Jackson W. Watts vs. Danville Housing Authority
SC Published 8/21/2014; Opinion of the Court Affirming COA
Questions Presented: Workers’ Compensation. Issues presented include whether the percentage and limits of the attorney fee statute, KRS 342.320(2), allows for a separate and distinct attorney fee on an interlocutory award in addition to an attorney fee on a final settlement.
122. Board of Claims,Immunity and Wrongful Death Claim based upon State Police’s failure to protect a confidential informant
Virginia Gaither, Estate of Lebron Gaither vs. Justice & Public Safety Cabinet
SC, Published 8/21/2014; Opinion by Justice Venters Reversing and Remanding
Questions Presented: Board of Claims. Immunity. Wrongful Death. Issues include whether state police are immune from a wrongful death claim based on their failure to protect a confidential informant.
125. Medical Malpractice and “incident” or “event” reports to be produced
Phillip Tibbs, MD vs. Judge Kimberly Bunell and Est. of Luvetta Goff
SC Published 8/21/2014; Opinion by Justice Scott Rerversing and Remanding COA
Questions Presented: Medical Malpractice. Production of an “incident” or “event” report created by a surgical nurse on the day of the patient’s death. Scope of federal privilege for patient safety workproduct, created by the Patient Safety and Quality Improvement Act of 2005 (“PSQIA”), 42 U.S.C.A. Sec. 299b-21, et seq.
126. Negligence, FELA (Federal Employees Labor Act), Railway Employee and Expert Testimony
Jeffrey T. Canniff vs. CSX Transportation, Inc.
SC Published 8/21/2014; Opinion by Justice Scott Reversing and Remanding
Questions Presented: Negligence. FELA. Expert Testimony. Issues include whether plaintiff’s failure to present expert testimony regarding railroad practices was fatal to his FELA claim.
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