Sept. 23, 2011 COA Minutes — Nos. 843-873 (31 decisions; 6 published)

Sept. 23, 2011 COA Minutes — Nos. 843-873 (31 decisions; 6 published)

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PUBLISHED DECISIONS OF COA:

843. CRIMINAL LAW. PFO
BOYD (DONNA)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
NICKELL (CONCURS) AND LAMBERT (CONCURS IN RESULT ONLY)
2008-CA-001714-MR
TO BE PUBLISHED
FAYETTE

BEFORE: NICKELL AND VANMETER, JUDGES; LAMBERT,1 SENIOR JUDGE.
VANMETER, JUDGE: Donna Boyd appeals from the Fayette Circuit Court judgment convicting her of criminal possession of a forged instrument in the first degree (two counts), possession of drug paraphernalia, and of being a persistent felony offender (“PFO”) in the second degree. For the following reasons, we affirm.

845. APPEALS OVER GOVERNMENT IMMUNITY AND INTERLOCUTORY. MOTION TO DISMISS.
SOUTH WOODFORD WATER DISTRICT
VS.
JOHN C. BYRD
OPINION REVERSING
ACREE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND COMBS (DISSENTS BY SEPARATE OPINION)
2009-CA-000854-MR
TO BE PUBLISHED
WOODFORD

BEFORE: TAYLOR, CHIEF JUDGE; ACREE AND COMBS, JUDGES.
ACREE, JUDGE: South Woodford Water District appeals the Woodford Circuit Court’s order denying its motion to dismiss John C. Byrd’s negligence claim. The water district asserts that the circuit court erred when it rejected its claim of governmental immunity. We find that we have jurisdiction to review this interlocutory order and we further find that the water district is entitled to the protection of governmental immunity. Therefore, and for the following reasons, we reverse the circuit court’s order with instructions to dismiss the case.

In sum, governmental immunity frees government entities named as defendants “from the burdens of defending the action, not merely . . . from liability” – an entitlement that “cannot be vindicated following a final judgment for by then the party claiming immunity has already borne the costs and burdens of defending the action.” Prater, 292 S.W.3d at 886 (internal quotation marks and citation omitted). For that reason, the collateral order doctrine, as articulated in Cohen, as applied in Nixon and Mitchell, and as adapted in Prater, justifies appellate review of interlocutory orders denying motions to dismiss and for summary judgment motions by which common law immunity is claimed.

STANDARD OF REVIEW – CIVIL MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM.

The standards which govern denial of a motion to dismiss, and those governing our review, have been repeated often. They are as follows:
A motion to dismiss for failure to state a claim upon which relief may be granted admits as true the material facts of the complaint. So a court should not grant such a motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved. . . . Accordingly, the pleadings should be liberally construed in the light most favorable to the plaintiff, all allegations being taken as true. This exacting standard of review eliminates any need by the trial court to make findings of fact; rather, the question is purely a matter of law. Stated another way, the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief? Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court's determination; instead, an appellate court reviews the issue de novo.
Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010), reh’g denied (Aug. 26, 2010) (citations and quotations omitted).

846. FAMILY LAW. PATERNITY ACTION. JURISDICTION.
B. (S.)
VS.
C. (M.)
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
CLAYTON (CONCURS) AND COMBS (CONCURS)
2009-CA-000966-ME
TO BE PUBLISHED
SCOTT

BEFORE: CLAYTON, COMBS, AND LAMBERT, JUDGES.
LAMBERT, JUDGE: This matter originated in the Scott Family Court when S.B. filed a suit seeking to establish paternity of L.R.C., a minor child born to M.C. This suit was subsequently dismissed by the Scott Family Court for lack of subject matter jurisdiction. Because we believe the Scott Family Court had jurisdiction to determine paternity and custody, we reverse and remand for proceedings consistent with this opinion.

859. BUSINESS LAW. INJUNTIONS.
BRADLEY (MARILYN KLEE)
VS.
SAMMET (BETH)
OPINION REVERSING
SHAKE (PRESIDING JUDGE)
STUMBO (CONCURS) AND THOMPSON (CONCURS)
2010-CA-000770-MR
TO BE PUBLISHED
OLDHAM

BEFORE: STUMBO AND THOMPSON, JUDGES; SHAKE,1 SENIOR JUDGE.
SHAKE, SENIOR JUDGE: Marilyn Klee Bradley appeals from the February 8, 2010, March 1, 2010, and March 26, 2010, orders of the Oldham Circuit Court. Those orders denied Bradley’s motion for a temporary injunction against Beth Sammet, denied Bradley’s motion for reconsideration, and granted Sammet’s motion for summary judgment, respectively, in Bradley’s action against Sammet for the alleged violation of a noncompetition agreement. Because we hold that the trial court improperly granted summary judgment in favor of Sammet, we reverse.

864. DAMAGES. Lost corporate compensation.
BUDA (ZACHARY S.)
VS.
SCHULER (MARK J.)
OPINION AFFIRMING
SHAKE (PRESIDING JUDGE)
KELLER (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001087-MR
TO BE PUBLISHED
CAMPBELL

BEFORE: KELLER AND LAMBERT, JUDGES; SHAKE,1 SENIOR JUDGE.
SHAKE, SENIOR JUDGE: Zachary Buda (Buda) appeals from a Campbell Circuit Court summary judgment in favor of Mark Schuler (Schuler). In its judgment, the trial court found that Buda was liable for injuries sustained by Schuler and awarded Schuler damages in the amount of $468,281.14. Buda bases his appeal on two grounds: (1) that there was a material issue of genuine fact concerning his liability; and (2) that the trial court erred by awarding Schuler damages for lost profits to his corporation and punitive damages. Following a careful review of the record and applicable case law, we affirm the circuit court summary judgment.

A. Lost Corporate Compensation
Buda claims that the trial court erred by awarding $50,000 to compensate Schuler for his inability to earn income for Family Chiropractic Center, Inc., a for-profit corporation, solely owned by Schuler. While Schuler received his base salary of $5,000 per month during the time he was unable to work as a result of the injuries inflicted upon him by Buda, he claimed that he was additionally entitled to sums which would have been earned had he been able to work during the time he was recuperating.

Under Kentucky law, corporations are viewed as separate and distinct legal entities. Daniels v. CDB Bell, LLC, 300 S.W.3d 204, 211 (Ky. App. 2009).

That said, whether an injured person may recover damages for the loss of time devoted to their own business depends upon the nature of the business loss. As stated in the Restatement (Second) of Torts, § 924, cmt. c:

When the injured person was not receiving a salary, but owned and was operating a business that was deprived of his services by the injury, his damages are the value of his services in the business during the period. If his services, rather than the capital invested or the services of others, were the predominant factor in producing the profits, evidence of the diminution of profits from the business will be received as bearing on his loss of earning capacity. . . . If, however, the income of the business is chiefly the result of capital invested or the services of others, the damages are determined by the market value of the services that the plaintiff was prevented from giving, that is, the amount commonly paid for the services in businesses of like nature. In this case evidence as to the extent of the business and the nature of his services is admissible, but not evidence as to the amount of profits before and after the loss.
Although Schuler continued to receive some salary, the salary received was a fraction of what the income would have been to the corporation and concomitantly to him. His labor was the sole source of income for his business. Therefore, the trial court correctly concluded that Schuler was entitled to such damages.

Buda argues that Schuler failed to prove the amount of his lost profits with reasonable certainty and failed to plead “special damages” in his complaint. Schuler testified that his corporation has net revenues of $15,000 per month. As the finder of fact, the trial court is vested with the responsibility of weighing and evaluating the credibility of witnesses and the reliability of evidence. Kentucky Rules of Civil Procedure (CR) 52.01. An appellate court will not disturb the trial court’s findings unless those findings are clearly erroneous and unsupported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Substantial evidence is evidence that contains “sufficient probative value to induce conviction in the minds of reasonable men.” Id. (citations omitted). Although Schuler could have presented documentation to support his calculations, the trial court found his testimony to be reliable and sufficient. The court’s findings were based upon sufficient evidence.

Buda also claims that Schuler failed to specifically plead lost profits. However, Schuler’s amended complaint stated, “As a result of the assault and battery, the Plaintiff lost income and lost business from his practice.” The complaint also advised that Schuler intended to seek damages in the amount of $95,000 in lost profits to his business. Buda had ample notice of Schuler’s claims. The trial court did not err in its conclusion.

Punitives. The record contains significant evidence indicating that Buda viciously attacked Schuler, severely beating him with an object. This conduct constitutes an egregious display of total disregard for the safety of others. Therefore, the trial court’s decision to award punitive damages is supported by the record.

865. JURISDICTION. AOC TERMINATION OF EMPLOYMENT.
TRAVIS (SHARON)
VS.
ADMINISTRATIVE OFFICE OF THE COURTS
OPINION AFFIRMING
SHAKE (PRESIDING JUDGE)
KELLER (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001165-MR
TO BE PUBLISHED
FRANKLIN

BEFORE: KELLER AND LAMBERT, JUDGES; SHAKE,1 SENIOR JUDGE.
SHAKE, SENIOR JUDGE: Sharon Travis appeals from the May 20, 2010, order of the Franklin Circuit Court dismissing Travis’s wrongful termination action against the Administrative Office of the Courts (“AOC”) for lack of subject matter jurisdiction. We affirm.

TORT REPORT FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
FAMILY LAW UPDATES, I RECOMMEND YOU GO TO Diana Skaggs' Divorce Law Journal at http://www.divorcelawjournal.com

847
CARROLL (ROBERT)
VS.
UNIVERSITY MEDICAL CENTER, INC. , ET AL.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
MOORE (CONCURS) AND STUMBO (DISSENTS AND FILES SEPARATE OPINION)
2009-CA-001116-MR
2009-CA-001211-MR
NOT TO BE PUBLISHED
JEFFERSON

KELLER, JUDGE: Robert Carroll (Carroll) appeals from a jury verdict and judgment in favor of University Medical Center (UMC) and Emily Chan, M.D. (Dr. Chan). UMC cross-appeals from the trial court's denial of its pre-trial motion for partial summary judgment.
On appeal, Carroll argues that the trial court erred when it would not permit him to introduce certain medical literature or evidence that UMC violated accreditation standards. He also argues that the court improperly permitted UMC to use exhibits and to call a witness when neither had been identified or disclosed prior to trial. Finally, Carroll argues that the trial court prevented him from playing portions of testimony during his closing argument, which fatally hindered his ability to argue his theory of the case.

On cross-appeal, UMC contends that it could not be held liable for the actions of a physician who had been dismissed by summary judgment. Therefore, according to UMC, the trial court erred when it failed to grant summary judgment to it on that issue.

Having reviewed the record, the briefs, and the arguments of the parties, we affirm the jury verdict and the trial court's judgment. Because we affirm, we do not address UMC's cross-appeal.

1. Exclusion of Medical Literature
This avowal testimony by Dr. Camazine goes primarily to the issue of standard of care, not to the issue of causation. Furthermore, Dr. Camazine admitted that the first article did nothing to add to his opinion. Dr. Camazine stated that the second article would "be of benefit" in establishing and formulating his opinion as to causation; however, he did not state that the article was key to his opinion or how it would have been useful. Nor did he state how the information in that article differed from any other articles he had reviewed. These articles appear to be duplicative and, because they primarily appear to address the standard of care, the appellees' argument that they would confuse the jury is well taken. Therefore, we discern no abuse of discretion by the trial court in excluding testimony regarding these two articles.

2. Exclusion of JCAHO Guidelines
Carroll argues that the trial court erred by excluding evidence about the JCAHO standards. JCAHO is a national organization that surveys and accredits hospitals and health care organizations on a voluntary basis, and provides national standards for patient care. According to Carroll, under JCAHO standards, UMC was required to: (1) ensure that his surgeon, a resident, was supervised by an attending surgeon; (2) inform him of the identity of his surgeon(s); (3) ensure that the attending physician was "immediately available" during surgery; and (4) adequately plan for the surgery. Carroll's experts did not identify the JCAHO standards as a basis for their opinions in their discovery responses or in their discovery depositions. In the absence of any evidence that Carroll's experts relied on, or even reviewed, the JCAHO standards, the court properly granted the Appellees' motion to exclude them. Finally, we note that Carroll's argument as to causation was that he was kept in the lithotomy position for too long. There is no evidence that, had UMC complied with the JCAHO standards, the surgery would have taken less time. Therefore, UMC's non-compliance with the standards was of little relevance and would only have served to confuse the jury.

4. Introduction of Undisclosed Exhibits

Carroll argues that the trial court erred by permitting Dr. Chan and UMC to introduce photographs of the operating room and surgical equipment that had not been identified in mandatory pre-trial disclosures. According to Carroll, he was unduly prejudiced by the surprise introduction of these photographs. The Appellees note that Carroll did not object to their use of the photographs during their opening statements and did not object to their use of the photographs during trial. In fact, as noted by the Appellees, Carroll used some of the photographs during trial. Furthermore, Carroll asked the Appellees if the parties should move to introduce the photographs as a group exhibit. The Appellees did not agree; however, Dr. Chan subsequently moved for admission of the photographs, and Carroll did not object.
The Court of Appeals is without authority to review issues not objected to and not ruled on by the trial court. Fischer v. Fischer, 197 S.W.3d 98, 102 (Ky. 2006). Because Carroll did not object, we cannot address the issue he raises on appeal regarding the introduction of the photographs. Furthermore, based on Carroll's use of the photographs and his suggestion that they be introduced as a group exhibit, his argument that the photographs unduly prejudiced him is disingenuous at best.

5. Testimony from Undisclosed Witness
On November 25, 2008, after the close of evidence for the day, counsel for UMC advised the parties that she would be calling Dr. McMasters the next day. Counsel for Carroll indicated that he had not previously heard of Dr. McMasters and counsel for UMC stated that she had listed “a representative from the University of Louisville School of Medicine residency program” in UMC’s witness list. No further discussion of substance took place that day. After hearing arguments of counsel and after admittedly struggling with the issue, the court ruled that UMC could call Dr. McMasters as a witness. Dr. McMasters, the head of the residency program and a physician at University Surgical Associates, testified regarding the relationship between UMC and the School of Medicine. According to Dr. McMasters, UMC and the School of Medicine are separate entities. Dr. McMasters testified that resident surgeons, who are in post-medical school training, are employed by the School of Medicine and receive their training at UMC. Residents are supervised by attending surgeons, who are employed by the School of Medicine and/or University Surgical Associates. The residency program is operated through the School of Medicine and policies related to the residency program are developed and implemented by the School of Medicine, not UMC.
Dr. McMasters testified that, prior to undertaking surgery; a resident should consult with an attending surgeon. The attending surgeon may, depending on the type of surgery, simply consult, either in person or over the telephone, or may assist the resident with the surgery.
Carroll argues that, because he had not had the opportunity to depose Dr. McMasters, he was significantly prejudiced by Dr. McMasters’s testimony. Having reviewed Dr. McMasters's testimony, we discern no significant prejudice. In fact, Dr. McMasters’s testimony did not differ significantly from Dr. Cheadle’s testimony, which Carroll presented. At its worst, Dr. McMasters’s testimony was cumulative of Dr. Cheadle’s and its admission by the trial court was not an abuse of discretion.

6. Restrictions on Closing Argument
Finally, Carroll argues that the trial court improperly restricted his ability to argue his theory of the case during his closing. The trial court is vested with wide discretion in controlling the scope and nature of closing argument. Hawkins, 17 S.W.3d at 120. Carroll maintains that he should have been permitted to argue to the jury that: an attending physician was unavailable to perform Carroll's surgery; he should have been permitted to play portions of the testimony for the jury; and the jury should have heard that important information was lost when UMC was unable to produce medical records regarding Carroll's care in the post-anesthesia care unit. We address each issue in turn below.

STUMBO, JUDGE, DISSENTING: I respectfully dissent from the majority on two issues. First, I would hold that the circuit court improperly excluded Carroll’s usage of post-2003 literature. While the circuit court correctly determined that post-2003 literature could not be introduced for the purpose of demonstrating the standard of care as it existed in 2003, UMC and Dr. Chan opened the door to the introduction of post-2003 literature for other purposes by arguing that the extended use of the lithotomy position could not have caused Carroll’s hypotension and resultant loss of his lower left leg. The defense argued both in opening argument and by way of its inquiry of expert witness Dr. Camazine that Dr. Chan’s extended usage of the lithotomy position could not have proximately resulted in the loss of Carroll’s leg, and they sought to attribute Carroll’s post-operative hypotension to his then undiagnosed peripheral vascular disease. By barring Carroll from introducing post-2003 literature on the issue of causation, Carroll was prevented from effectively rebutting the defense assertion that the lithotomy position was not the cause of Carroll’s post-operative hypotension and resultant amputation. Additionally, I am also persuaded that the jury could be admonished on remand to consider the standard of care as it existed in 2003, and that any literature published after 2003 could be considered only as it related to the issue of whether the extended use of the lithotomy position causes hypotension in the legs. I would reverse on this issue.
I would also hold that the circuit court erred in allowing Dr. McMasters to testify at trial. Dr. McMasters was not identified in UMC’s pre-trial compliance nor identified as a witness in discovery. Carroll contends that he had never heard of Dr. McMasters until the evening before McMasters took the stand, when UMC stated that it would be calling him the next day.

863. FELA.
NEISZ (WAYNE)
VS.
CSX TRANSPORTATION, INC.
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
LAMBERT (CONCURS) AND SHAKE (CONCURS)
2010-CA-000935-MR
NOT TO BE PUBLISHED
JEFFERSON

Sept. 23, 2011 COA Minutes — Nos. 843-873 (31 decisions; 6 published)

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