Sorry, playing a little catchup here in the interest of having a complete set of SCOKY Minutes available on the Kentucky Court Report.

Click here for the September 2012 summaries of published decisions from the Supreme Court of Kentucky (SCOKY).

Click here for list of all summaries for SCOKY by year and month at AOC.

TORT REPORT (the following are summaries of selected decisions from this month dealing with torts, insurance, and civil procedure):

Medical Negligence:

Raza Hashmi, M.D. v. Linda Kelly, Administratrix of the Estate of Rosalie Stamper
2009-000843-DG September 20, 2012
Opinion of the Court by Justice Noble. All sitting. Minton, C.J.; Abramson, Cunningham, Schroder, and Venters, JJ. concur. Scott, J., concurs in part and dissents in part by separate opinion.

At issue was a discovery violation question about the use of deposition testimony of a treating physician, Dr. Johnstone. At trial, Dr. Johnstone’s deposition testimony was being offered by Appellant Hashmi as expert testimony about the standard of care. Appellee asked Dr. Johnstone whether Appellant violated the standard of care and he responded, “I think it was fine,” but his deposition indicated that he had never seen Appellant’s actual, detailed medical records and did not have them in his possession. Instead, he had only reviewed a summary of Appellant’s medical records prepared by his attorney. Appellee asked to review what the treating physician had reviewed, which was refused as work-product, and thus had no basis to cross-examine the doctor.

However, Dr. Johnstone was never specifically identified as an expert witness by Appellant going into trial, but had been identified as a trial witness. Appellee filed a motion to exclude the standard of care testimony portion of Dr. Johnstone’s deposition because he had not been identified as an expert witness and the testimony was not admissible because it was not based on decedent’s records.

The trial court overruled the motion and allowed Dr. Johnstone’s deposition to be played in its entirety. The jury found for the Appellant. The Court of Appeals reversed, simply finding that Appellant had not complied with the language or spirit of CR 26, Kentucky’s discovery rules.

This Court reversed. Although the Court found that the trial court erred in allowing that portion of Dr. Johnstone’s deposition to be played to the jury without providing Appellee notice, such error was deemed to be harmless because it amounted to five words uttered in an eight day trial.

Scott, J., agreed with the Court that the trial court erred in allowing Dr. Johnstone’s deposition to be played, but dissented on the ground that the testimony may have swayed the jury’s verdict, and was therefore not harmless.

Negligence (premises Liability; building code violation)

Benjamin Wright, Jr. v. House of Imports, INC. D/B/A In Style
2011-SC-000264-DG September 20, 2012
Opinion of the Court by Justice Scott. All sitting; Minton, C.J.; Cunningham, Noble, Schroder and Venters, JJ., concur. Schroder, J., also concurs by separate opinion. Abramson, J., concurs in result only.

A jury awarded Appellant $120,863.75 in his common-law negligence action after he fell down a set of stairs at Appellee’s retail business establishment. The Court of Appeals reversed and remanded for a new trial, holding that the trial court committed palpable error in permitting expert testimony of building code violations without instructing the jury as to the applicability of the code. The Supreme Court reversed the Court of Appeals’ judgment and reinstated that of the trial court. First, it held that because this was a common-law negligence cause of action, and not a negligence per se claim, testimony concerning the building codes was irrelevant and therefore erroneously admitted. However, the trial court’s failure to instruct the jury on the applicability of the building code did not constitute palpable error because the allegedly fatal instructions were tendered by the defendant/Appellee. The Court held that “[w]hen a trial court adopts a party’s proposed jury instructions, that party cannot be heard to complain that its ‘substantial rights’ have been affected by said instructions, nor that a ‘manifest injustice has resulted from the error.'”

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