The KTCR Blog

Mixed Verdict Today in the Marriott Sexual Abuse/Dram Shop Case in Louisville

We've got a verdict this afternoon in Sainato v. Marriott after three days of deliberations and it sure looks like a compromise.

Plaintiff, in town for business, retired to the hotel bar for a drink. She met a man and they shared drinks. Maybe he drugged her with a cigarette? In any event while intoxicated they went to a room in the hotel. She says she was raped by the man and others while she was in a state of intoxication. He denies a sexual attack and describes the event as consensual. The woman (the plaintiff) has sued Marriott on a variety of theories (dram shop and negligence) as well as the alleged tortfeasor for outrage and civil battery. The judge granted summary judgment for Marriott on negligent security.

The jury deliberated three days and at one point one juror (with Covid) deliberated by telephone from another room.

Finally this afternoon there was a verdict.

It was for the plaintiff against the assailant on civil battery but not outrage. She took $1.171 million against him including the odd number of $596,000 for her pain and suffering (that's a quotient right?) and $50,000 more in punitive damages. The jury then found her 45% at fault for being sexually assaulted, the remaining 55% to the assailant. [How is one at fault for being raped and . . .how does a rapist violate the standard of care? Is there an ordinary rape standard of care? Anyway. That's what happened.]

The jury rejected the Dram Shop theory against Marriott (see below) and its fully exonerated by the verdict.

The whole mess looks like a compromise to me.

Garry Adams and Laura Landenwich (Adams Landenwich Walton) for the plaintiff

Lee Sitlinger (Sitlinger Law) for the assailant (the jury found he sexually assaulted her)

Anthony Pernice and Jade Stewart (Reminger) for Marriott
Mitch Perry on the bench

The Jury Verdict

Plaintiff Trial Memo

Defense Trial Memo

Published 1-27-23

Med Mal Defense Verdict in Whitley County

The elderly plaintiff (since deceased) alleged a global pattern of nursing home negligent during a 15-month residency. That included multiple falls and pressure sores. Her estate sought $60,000,000 at trial. The defense denied fault and cited the plaintiffs end-stage dementia which prevented fall interventions from being successful and further that the nursing care responded to the pressure sore complications.

The key experts for the plaintiff were Charlotte Shepherd (Nursing) and Dr. Amie Garcia (Geriatrics). The defense relied on Dr. David Carr, Geriatrics, Dr. Jeffrey Sharpe, Wound Care and Joy Schank, Nursing.

After a five-day trial in Whitley County, a defense verdict was returned.

Stephen Garcia and Matthew Coman, Garcia & Artigliere for the plaintiff

Mark Hammond (pictured) and Pete Pullen (O'Bryan Brown & Toner) and Wesley Tipton, Tipton & Tipton, Corbin defending

Judge Ballou was the umpire

Published 1-17-2023

Preview of the January Edition, 27 KTCR 1

The January edition has just been finished and it will be out later today or tomorrow in PDF. We were a little late this month with the Year in Review.
Check your email. It's a good one.

You don't get it? Subscribe to the Kentucky Trial Court Review

A sneak peak at the cover of the January edition

The January Table of Contents

Published 1-13-23

Second verdict of 2023 -- Premises Liability defense verdict in Logan Circuit Court -- Plaintiff fell in a puddle of milk at Dollar General

Plaintiff was shopping at Dollar General on the evening. She was looking for milk. She slipped in a puddle of milk, did the splits and suffered a disc injury. She underwent two surgeries and incurred medical bills of $289,985. She sought $2,000,000 in pain and suffering.

Plaintiff blamed Dollar General and cited another customer had spilled the milk and an employee walked by it right before the plaintiff fell. Dollar General denied any notice and impeached the plaintiff's credibility looking to surveillance video that showed her walking away after the incident at what it called a brisk pace.

A Russellville jury heard the case for three days. Defense verdict on liability.

Brian McClain, Orlando, FL and Lauren Marley and Kelli Lester, Bowling Green, all of Morgan & Morgan

Langdon Ryan Worley (pictured) and Jamie Wilhite Dittert, Sturgill Turner Barker & Moloney, Lexington for Dollar General

Judge Joe W. Hendricks called balls and strikes

The scene where the plaintiff fell - she fell just out of screen in the bottom left and is walking away after the fall.

Published 1-12-23

Aspiring NBA coach alleged he was disabled by a car wreck -- $275,000 verdict in Richmond but no damages for impairment

We've got our first verdict (I think of 2023) and it's an interesting one. Former NBA journeyman, Joe Wolf, age 54 (spent 11 years in the league with 7 teams), was on his way to an NBA coaching job interview with the Charlotte Hornets. Traveling on I-75 a teenager hydroplaned in rainy conditions and spun into Wolf.

Wolf complained of a new herniated disc injury that has limited his opportunities to coach in the NBA. He sought $2.9 million for impairment among other damages. The defense IME, Christopher Stephens, believed Wolf suffered just a temporary injury imposed on chronic pre-existing conditions -- Wolf had no impairment from this wreck.

The impairment question was the heart of the case.

The jury was split on fault. 85% to tortfeasor and the remainder to Wolf.

The damages:

Medicals - $19,000 (of $85,333 claimed) - Pain and Suffering - $256,000 ($500,000 cap)

Future medicals and impairment were both rejected.

Thus a raw verdict of $275,000 less 15% or $233,750 for Wolf less comparative fault.

Adam Goebel and Chadler Hardin (Stoll Keenon Ogden) for Wolf

Graham Barth and Ashley Brown (Ward Hocker & Thornton) defending

Rookie David Ward on the bench in Richmond

Published 1-11-23

Injury Multipliers Updated in the 2022 Year in Review

There's a lot new in the 2022 Year in Review -- we've got new injuries for the Miscellaneous Injury Index, for instance, Breast (non-cancer) and in addition to Catastrophic Brain Injury and Birth Brain Injury, we now have Mild Brain Injury.

But I'm really excited about the injury multipliers. We have the 25 year multiplier for all the injuries as always from 1998 to 2022.

What's new? We also have the multiplier from 2012 to 2012. For instance the 25-year soft-tissue multiplier is 1.866.

What's the 2012-2022 multiplier . . . just for the last 11 years? Well it's different. It is for all the injuries.

We've also updated the Average Pain and Suffering Verdict to include not just the 25-year number, but again, also from 2012 to 2022.

Looking at Shoulder/Rotator Cuff, the average pain and suffering from 1998 to 2022 was $71,945. But from 2012 to 2022, the average is $156,295. We've done that for all 13 injury categories. (See the 2022 Year in Review at page 469). I think this is a pretty significant new look at the data.

Order The 2022 KTCR Year in Review (25th edition) (link to online store)

Use Code "PleaseGoToTexas" at check-out to save 22%.

Published 1-9-23

Who has tried the most civil cases in Kentucky since 1998? Someone new tops the list this year.

Who has tried the most civil cases in KY since 1998. We've traced this for years and Michael Bishop, Bowling Green, had led the list for years with 59 even though his last trial was in 2017. We've got a new leader in the clubhouse. Clayton Robinson leads the 2005-2022 list with 51 verdicts!

The full details (the whole list) are in the 2022 Year in Review.

E. Frederick "Rick" Straub, Whitlow Roberts Houston & Straub, Paducah pictured) has taken the lead with 60 cases! He's tried and defended a variety of complex cases including med mals. And he's a first class guy and a gentleman. Well done Rick!

Order The 2022 KTCR Year in Review (25th edition) (link to online store)
Use Code "MillionDollars" at check-out to save 15%.

Published 1-9-23

Updating the 2022 Million Dollar Verdicts

We added something new to the KTCR 2022 Year in Review (25th edition). There has also been a section summarizing all the million dollar plus verdicts from the past year. There have been 358 since 1998 and of those 358, 111 are med mals.

What's new? Of this year's 16 million dollar plus verdicts, we added a section with an update on the status of the verdict, i.e., on appeal, settled, motions pending, whatever. We also included links to documents in the case including the final post-trial orders. We've posted a sample of that.

What's interesting here for you today? What happened to the 16 million-dollar plus cases in 2022?
Bankruptcy - 1

Post-trial motions pending - 6

Pending on appeal - 5

Resolved - 4

It's all in the 2022 Year in Review which should be out this week in PDF (probably Wednesday) and off to be printed after that.

Order The 2022 KTCR Year in Review (25th edition) (link to online store)

Use Code "MillionDollars" at check-out to save 15%.

Published 1-8-23

Bankrupt Graves-Gilbert Clinic filed Notice of Bankruptcy in the trial court

This week bankrupt Graves-Gilbert Clinic (facing a $21.3 med mal in the case of an elderly woman left blind and disabled by medical error) filed its Notice of Bankruptcy in the trial court. This halts trial proceedings. The "notice" is below.

There is still pending a Bad Faith claim by the plaintiff against the clinic's med mal insurer, State Volunteer. The policy limits are $5,000,000. The clinic had offered "zero" before trial.

Published 1-7-23

Punitive Damages Ascendant in 2022 in Kentucky

What's going on? We wrote last month that med mal plaintiffs did unusually well in 2022.

And working in the 2022 KTCR Year in Review, we're seeing a trend too in punitive damages and you should know about it.

There were more punitive damage awards in 2022 (13 in all) than in any year since 2012. The last year there were more was in 2009! There were nearly $30,000,000 awarded across those 13 cases. Six of the results were more than $1,000,000. Finally there were punitive damages in six medical negligence/nursing home cases.

What's that mean? Maybe it's just a blip. I'm not sure but it's something to be aware of and especially in the context of medical cases.

The full details will be in the Year in Review -- it's out in PDF probably on Wednesday or Thursday. It's almost finish. You can order it at the link below.

Order the 2022 KTCR Year in Review (25th Edition)

Published 12-31-22

Happy New Year -- 2022 Hall of Fame Inductees

A few years ago we introduced the KTCR Trial Lawyer Hall of Fame.

The 2021 class was Thomas Conway and John Phillips. The 2020 inductees were brothers, Tyler Thompson and Todd Thompson. The inaugural class in 2019 was Larry Franklin, Donald K. Brown, Jr., Ann Oldfather, Lee Sitlinger and Gary C. Johnson.

It's a small club. That's just nine lawyers. This year we add two more and they're both legends.

___________________________________________________________________________________________________________________________

Order the KTCR 2022 Year in Review (25th Edition) - Use the code NYE2022 to save 23% at check-out. That expires at midnight . . .

The book will be out in PDF sometime late next week with print to follow.

Best to everyone for the New Year.

Published 12-31-22

The Graves-Gilbert Clinic Bankruptcy Fiasco

Graves-Gilbert Clinic, a multi-speciality clinic in Bowling Green (more than 1,000 employees and some 200 doctors) filed for bankruptcy yesterday. Why? It faces a final judgment in a $21.3 med mal verdict from July of 2022. Let's trace the entire story back to the malpractice all the way forward to today with all the documents. It's a bumpy ride so hang on! It is arranged chronologically in four stages, The Malpractice, The Trial, The Post-Trial Period, and The Bankruptcy.

The Malpractice

Alice Duff, then age 75, underwent an elective hernia surgery in 2013. It was performed by surgeon Tage Haase of the Graves-Gilbert Clinic (GGC). There was proof Haase transected Duff's bowel. This was not caught for 10 days. Duff developed sepsis and a cascade of compilcations that left her legally blind. She was once active but can no longer drive. Her husband became her caretaker.

The Trial

Duff sued the hospital in 2014. The case was tried in July of 2022. The jury found Haase at fault and awarded Duff $12,000,000 for her pain and suffering. Her husband took $8,000,000 for his consortium interest. The verdict with medicals of $1,310,887 totaled $21,310,887. GGC only had $5,000,000 of coverage. It offered the Duffs nothing before trial.

Chad Gardner and Jake Grey for the plaintiffs. Hamp Moore for GGC.

Plaintiff Pretrial Memorandum

GGC Pretrial Memorandum

The Verdict Report  (Link to original verdict report)

The Post-Trial Stage

GGC moved for a new trial and challenged the verdict as excessive.

GGC Motion for a New Trial

Plaintiff moved to amend their complaint to allege bad faith by GGC's insurer, State Volunteer Mutual Insurance. Motion granted.

The parties had a mediation in November with Pete Palmer and the presiding Judge Steve Wilson. The case didn't settle.

Judge Wilson denied all the post-trial motions in an order entered 12-19-22.

The Final Order Denying GGC Motions

The Bankruptcy Stage

GGC filed for bankruptcy 10 days later on 12-29-22. It has annual revenues of $200,000,000 but the $21.3 million dollar verdict was too much.

GGC Bankruptcy Petition

GGC Petition by CFO

GGC has issued two statements in the last 24 hours. GGC is concerned some doctors will leave Kentucky. They also indicate all vendors and debts (except the Duffs) will be paid. The statements:

Chad Gardner for the Duffs replied too. Here is his statement:

That's all for now . . .

Published 12-30-22

2022 Kentucky Trial Lawyers of the Year

Plaintiff Trial Lawyer of the Year: Chadwick N. Gardner, Gardner Law, Prospect

Gardner had an absolute monster year in 2022. It began in June with a $2.76 million dollar nursing home case in Jefferson County. His client suffered a fall while rehabbing a hip replacement which led to the client’s decline and ultimate death. The theory was that the rehab center had a financial incentive to overwork its patients to increase billings. The jury rejected the death element on causation but found for the estate on personal injury. The verdict included $500,000 for the decedent’s pain and suffering, $1.2 million for the wife’s consortium and $700,000 more in punitive damages. See Case No. 5957.

The second case was even more remarkable. Not quite 60 days later, a Bowling Green jury awarded his clients $21,310,887 in a med mal. Plaintiff (then age 75) suffered complications after a hernia surgery gone bad which led to sepsis and blindness. It was devastating injury and dramatically altered her life. The jury awarded her $12,000,000 for pain and suffering (she was 84 at trial) and $8,000,000 more for her husband’s consortium interest. The verdict against Graves-Gilbert Clinic in Bowling Green has reverberated as in late December 2022, the clinic (it has $200,000,000 a year in revenues and 1,000 plus employees) filed bankruptcy. See Case No. 6008. Gardner was assisted in both cases by John “Jake” C. Grey, II.

Gardner’s success this year should come as no surprise. He’s been hitting long balls for many years. His first big one was in 2006 involved a teenage girl whose nose was pulverized in a collision. A Jefferson County jury awarded the plaintiff $2,542,186. Case No. 3237. Four years later in 2010 a woman seriously injured in a water tube incident was awarded $6,000,000 by a Louisville jury. See Case No. 4312.

Defense Trial Lawyer of the Year: David Schaefer of Dinsmore, Louisville

Schaefer is recognized this year not for the numerosity of the cases that he tried (there was just one) but because it was significant and the potential damages were beyond enormous in a jurisdiction not known for being defense friendly. The case itself was a tragedy, three members of the same family (including a young child) being killed in a Christmas Eve head-on collision and two more were seriously hurt. The theory was that their Hyundai Tucson SUV had a defect in the bumper weld which led to its separation and failure – a crashworthiness case. The case was tried two weeks and the instructions were 25 pages long. It involved numerous expert witnesses and complex issues of causation.

There were the damages of the decedents as well as multiple consortium claims (husband and parents) to contend with. The matter was made more difficult as Joe Savage, a dean of the plaintiff’s bar, led the prosecution of the case. Schaefer secured a defense verdict for Hyundai. The verdict survived post-trial motions and is now on appeal. The defense win of 2022. See Case No. 6030.

The prior winners are:

2021 - Ronald E. Johnson and Jay R. Vaughn, Fort Wright for plaintiffs; Melissa T. Richardson, Lexington for defendants

2020 - James “Bo” Bolus, Louisville for plaintiffs, Sean Ragland, Louisville for defendants

2019 - Thomas Clay, Louisville for plaintiffs, Mark Nichols, Lexington for defendants

2018 - Steven R. Romines, Louisville for plaintiffs, James A. Sigler, Paducah for defendants

2017 - Thomas K. Herren, Lexington for plaintiffs, Terri E. Boroughs, Louisville for defendants

2016 - Hans Poppe, Louisville for plaintiffs, Frederick “Rick” Straub, Jr., Paducah for defendants

2015 - David Scott, Louisville for plaintiffs, Mark Nichols, Lexington for defendants

Published 12-28-22

Newly formed Gray Ice Higdon kicks off operations with an $11.4 million patent verdict in Chicago

You'll recall a few weeks ago we learned Middleton Reutlinger went up in smoke (it was founded in 1854) and some partners formed a new firm, Gray Ice Higdon. Lawyers from the new firm (led by Robert Theuerkauf) went to trial as plaintiffs in Chicago, IL for two weeks right after that in a patent infringement case.

Plaintiff, Sioux Steel, it makes steel paddle sweeps that are used in agricultural storage bins alleged that Prairie Land (it does commercial grain installations) infringed its patent. Sioux Steel sought lost profits and an ongoing royalty. Prairie Land denied an infringement and looked to its own patent.

A Chicago jury found for Sioux Steel and awarded it $11,427,720 as claimed plus a 17% royalty. The verdict is not public and a week later there is no final judgment.

Robert Theuerkauf (pictured),  Brian McGraw, Megan Gibson and Matthew Dearmond from Gray Ice Higdon for the plaintiff

Lawyers from Dewitt, LLP in Madison, WI had the defense

The case style:

Sioux Steel v. Prairie Land, Illinois Northern District - Chicago, 1:16-2212

The Proposed Pretrial Order in Sioux Steel

Published 12-19-22

New Trial Motions denied in $21,310,887 Med Mal from Bowling Green

You'll recall the $21,310,887 med mal verdict from Bowling Green. Elderly woman (previously active) left blind and disabled after a surgical misadventure. Verdict included $12,000,000 for her pain and suffering and $8,000,000 more for her caretaker husband's consortium.

A complex flurry of post-trial motions followed.

Late last week Judge Steve Wilson (in one of his last acts -- he's leaving the bench) denied the defense motions. The verdict stands.

It's an unusual order and you'll want to read it.

Defense Motion for a New Trial

Judge Wilson's Final Order

Published 12-19-2022

Previewing the January 2023 edition (27 KTCR 1)

In a few weeks we will start a new year and a new edition -- 27 KTCR 1 -- first issue was June of 1997.

What's the January issue looking like? Here's a preview of what you'll be reading about.

Med Mal -- Jefferson -- Elderly plaintiff fell from her hospital bed which triggered a decline and she was dead a few months later. Defense verdict. PPOA defending.

Auto - Fayette - $282,526 -- Jury assessed fault between two wrecks (separate tortfeasors) that were six months apart. Michael Cox had the plaintiff.

Med Mal - Kenton - Defense - Psychiatric patient suffered injuries when a hospital security guard restrained her. Ryan McLane at Dressman Benzinger defending.

Med Mal - Warren - ER doctor blamed for missing signs of an injury to the plaintiff's renal artery after a kidney biopsy -- Verdict was late Friday (12-16-22)

Bad Faith - Jefferson - Met Life hit with a bad faith verdict (tried on damages) after it defaulted on liability because it failed to answer the lawsuit

Premises Liability - Fayette - Plaintiff fell in a hole on a deck at the defendant's home - Defense verdict. Jane Higgins, Casey Bailey & Maines defending.

Med Mal - Warren - Unnecessary colon surgery linked to ischemic event - Defense verdict. David Broderick defending.

Employment - Floyd - $2.4 million whistleblower verdict against Highlands Regional Medical Center

Defamation - Greenup - $22,815,000 - Doctors defamed by CSX for their opinions about railroad worker disability

Auto - Jefferson - TARC bus driver complained of injuries after the bus was rear-ended - Defense verdict - Marc Breit defending

The KTCR 2022 Year in Review will also roll out in early January -- 25th edition. There's a lot of good and new stuff this.

Order the 2022 Year in Review (link to the online store)

(Hey Clark! Use Code "Holiday22" to save 20% at check-out!)

Published 12-17-22

Northern Kentucky Med Mal Drought

I've almost called it for vacation but was working last night with the regional med mal numbers. There were a couple that jumped out at me.

I had remarked earlier this week that plaintiffs in Med Mals had done very well in 2022. Well Northern Kentucky would like a word.

In that region (Campbell, Boone and Kenton), plaintiffs are struggling. They have 1 of the last 27 med mals going back to 2011. 1-26! That's a 3.7% win rate as compared to the overall 22.2% state win rate. In fact Northern Kentucky from 1998 to 2022 (the full 25-year period), the win rate is 24.0%. From 1998 to 2010, plaintiffs in Northern Kentucky won 19 of 56 for a 33.9% win rate. It's been down hill from there. 33.9% versus 3.7%!

Compare that to Jefferson County which has been 7-9 (7 of 16 plaintiff wins) for a 43.7% win rate from 2020 to 2022. But it can go both ways. While plaintiffs have recently done well in Kentucky, let's not forget from 2015 to 2019, Jefferson County Med Mal plaintiffs were Ofer-26! They lost 26 med mals in a row.

Keep an eye out today on this space. We'll be working on the book and may update this post with interesting revelations that we may come across.

The Year in Review is coming. We extended the 30% sale (it expired at midnight) through Monday with the code 121622.

All the details are coming in the 2022 Year in Review (25th edition) and not just the numbers, but all the reports, Attorneys of the Year, Hall of Fame, Injury Index and who knows what else because we're still working through it.

Order the 2022 Year in Review (Link to the online store)



The referee has signaled there are seven minutes of extra time 
What about punitive damages in med mal cases? Here's a 25 year look at the largest awards.

Penalty Kicks will decide it. This is it. Literally no more updates. You like Ohio County Hospital right?
Here are the 2010 to present Martin v. Ohio County Hospital post-death consortium awards: