Published 9-22-22

$2.395 EMTALA Med Mal returned in Louisville (Federal Court) on 9-13-22 

The plaintiff William "Tully" Williams, a tow truck driver, was having a heart attack on 4-5-15 and was taken to Baptist Hospital Lexington. However that weekend Baptist had a "diversion" plan for cardiac patients because it lacked an on-call cardiothoracic surgeon. When Tully arrived at the hospital, he was turned away. "We can't treat you."Tully was then taken to UK Medical Center he was treated -- he had open heart surgery the next day. Tully alleged medical negligence and an EMTALA violation in being turned away. It was described as a ridiculous comedy of errors that led to a delay in his treatment. The hospital had been prepared to argue the diversion was reasonable. However it admitted fault at trial and the jury considered damages only.

Tully was awarded $545,000 in compensatory damages and $1.85 million more in punitives for a total of $2.395 million.

Hans Poppe and Kirk Laughlin (Poppe Law Firm) tried it. 
Clay Stevens, Kristen H. Fowler and K. Shay Owens (Napier Gault) defending.
Claria Horn Boom did the judging.



Published 9-22-22 
Medicals-No Suffering Rear-ender in Louisville

This week there was a medicals no-suffering rear-ender in Louisville. Plaintiff went to the ER six days later and then followed with a chiropractor. The defense admitted fault and relied at trial on a biomechanics expert, David Porta, who said the wreck was too minor to cause a serious injury. The jury returned the following verdict . . .$8,460 in specials and nothing more.

Sam Aguiar and Trenton Burns for the plaintiff

Charles Walker (Sewell & Neal) defended

Mitch Perry called the balls and strikes

Published 9-23-22
$22,815,000 Defamation Verdict in Greenup County against CSX

There was a big one last night in Greenup. Plaintiffs, two chiropractors (Daniel Carey and Shannon Johnson) alleged CSX's Chief Medical Officer (Craig Heligman) defamed them and tortiously interfered with contracts when Heligman wrote letters to the federal government, insurers and state chiropractic boards that accused Carey and Johnson of creating fraudulent COII (Certificate of Ongoing Illness) for CSX workers. This was happening during a furlough and permitted the workers to receive extended benefits during the furlough. The chiropractors argued the representations in Heligman's letters were false and noted he never examined the employees in question, reviewed their medical records or did anything really at all.

The jury found for the plaintiffs on defamation and tortious interference.

Carey took compensatory damages of $610,000, while Johnson was awarded $805,000.The jury awarded each plaintiff $10.7 million in punitives. The combined verdict totaled $22,815,000.

Plaintiffs represented by Jeff Dingwall (pictured), San Diego, Greg Paul, Pittsburgh and Ken Reed, Ludlow.

CSX represented by Melissa Bird and Shaina Massie, Nelson Mullins, Huntington, WV, Samuel L. Tarry, Tyson, VA and Davis M. Walsh, Richmond, VA, both of McGuireWoodsJudge John F. Vincent tried it.

Case Documents:

Plaintiff Trial Memorandum 

Defense Trial Memorandum

Jeff Dingwall for the plaintiffD



Published 9-24-22
Threshold Verdict in Paducah on 9-20-22

The plaintiff came to his State Farm office in Paducah and parked in front. He was coming to report another wreck. It was the end of the day and the agent was leaving. She was parked at the end of the building and backed out in a three-point turn. She struck the plaintiff's minivan as he was getting out. The plaintiff claimed a rotator cuff injury as he was holding the steering wheel. His medical bills were $16,145 and he sought $136,875 more for a future surgery. The defense argued there was no injury sustained.
The jury returned a threshold verdict following a two-day trial.

Case Documents:
Plaintiff Trial Memo

Brian Katz for the plaintiff
D. Brent Vassuer and Jared Sigler (Keuler Kelly) for the defense
Judge Kaltenbach on the bench

The image is the scene of the collision.

Published 9-27-22
What a week of trials -- There were at least eleven in Kentucky last week

This is maybe pretty close to unprecedented in my experience. There were at least 11 civil jury trials that were heard in Kentucky last week. I'm still tracking them down but here's a quick summary of what we know.

Greenup - $21.8 million defamation verdict for chiropractors against CSX.

McCracken - Threshold verdict. Brent Vasseur defending.

Jefferson - $8,460 medicals/no suffering verdict. Charles Walker defended.

Caldwell - Negligent security trial against the local Elks Club. Still going. David Barber for the plaintiff.

Hardin - Road rage between chiropractor and cybersecurity expert. Jury rejected both claims.

Fayette - Paul Miller Ford sold a new truck as new when it had been wrecked. Tried. Result unknown.

Floyd - Nurse on contract fired for forging a signature. Was it material? Jury said yes and nurse loses.

Scott - UM case where the only issue are wife's consortium. Kicker they got divorced months later. Jury rejected her claim in 20 minutes. Bradford Breeding from London for the defense. Richard Rawdon tried it.

Woodford - UIM case against State Farm involving a drunk driver. Result not yet known. Jesse Shore with Morgan & Morgan tried it. Guy Hughes (Casey Bailey & Maines) defending.

Warren - Commercial case before Judge Grise. Result unknown

Jefferson - Auto Negligence - TARC bus driver -- claimed knee injury. Eric Lamb tried it. Marc Breit defending. 50-50 split on fault but jury rejected any award of damages. Verdict returned at 9:15 last Friday night.

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Published 9-27-22
$120,138 UIM Verdict in Woodford County

Plaintiff collided with a disabled drunk driver's vehicle at 3:00 a.m. that was in the middle of I-64. Plaintiff sustained a C-7 facet fracture and wore a brace for three months. He still reports pain. Plaintiff settled with the drunk tortfeasor for $50,000 and sought UIM coverage (up to $100,000) from his carrier. The plaintiff took a total of $120,138 and the judgment less PIP was for $60,138.

Jesse Shore with Morgan & Morgan tried it. Guy Hughes and Kyle Girouard from Casey Bailey & Maines defended. Rookie Judge Kathryn Gabhart on the bench.

Details on this coming in the October 2022 edition. Subscribe to the KTCR (link to the online store) for all the details.

Published 9-28-22

$19,135,000 Negligent Security Verdict in Princeton, KY (Caldwell Circuit Court)

The verdict is in from the negligent security case in Princeton . . .$19,135,000 including $18 million in punitives.Plaintiff stabbed to death in a bar fight at the local Elks Club by an off-duty bartender after a dispute over how loud the music was on the jukebox. Decedent was stabbed 17 times, there being proof he was conscious (before bleeding to death) for 10-15 minutes. Estate alleged a history of fights at the bar and assailant (he was convicted of manslaughter and is serving 15 years in prison) should have been ejected long before the fatal event.Fault assessed 70% the Elks and the remainder to the decedent. A courtroom observer tells me (it's small-town Kentucky) the jury included a woman who was described as a very close friend in high school of the decedent.

This is easily the largest ever verdict in Caldwell County. The previous largest was from February of 2007 was a $444,253 soft-tissue car wreck verdict, that plaintiff taking $300,000 for pain and suffering. See Case No. 3662.

David Bryce Barber and Elizabeth Downey Barber of Louisville tried it

James Coltharp, Whitlow Roberts Houston & Straub, Paducah defending.

Rookie jurist, James Redd, sorted out the balls and strikes

Published 9-28-22 
Negligent Security Trial in Caldwell County has moved into its second week

There is a negligent security case in trial today (it's now in the second week) in Caldwell County. It involves a negligent security claim against the local Elks Lodge. An unruly customer and Elk (who was also a part-time bartender at the club) fatally stabbed a fellow Elk during a fight. Plaintiff's estate alleged negligent security as the decedent and the assailant were told to "take it outside" in the moments before the stabbing. There are significant fact disputes about what exactly happened and the extent of the decedent's conscious pain and suffering. The assailant was later convicted of manslaughter and sentenced to 15 years in prison.

The case is expected to finish up Friday. UPDATE -- Closings happening this morning.

David Bryce Barber, Elizabeth Downey Barber and Michael Burman for the plaintiff. James Coltharp (Whitlow Roberts in Paducah) defending. Rookie Judge James Redd is on the bench.

The below images are from the Kolins expert report and represent surveillance video in the moments before the stabbing.

Published 10-4-22
Hancock County -- Negligent Grave Disturbance Verdict

There was a unique and heartbreaking verdict in Hancock County last week. I've really never seen anything like. Amy Boarman died in 1985 as a four-day old infant and was buried by her parents, James and Carolyn, in the Lewisport Cemetary. They bought three plots. James died in 2010 and was buried in one of the plots. When Carolyn died in 2020 she was to be buried in the third plot.

D.A. Gibson, the local funeral director, probed the plot to find the right location for Carolyn's burial. A backhoe operator (Martin) dug the grave. As Martin did so, he struck Amy's coffin (the image) and damaged it. Martin wasn't sure what to do so he took the coffin, placed it on an ATV and parked it behind a pile of dirt. His plan was to reinter it later that day.

Before that happened the Boarman family children (Amy's siblings) arrived at the cemetary for their mother's funeral and discovered their little sister's damaged coffin on the back of the ATV. It was broken and rain was falling on it. They were traumatized.

The three siblings sued the funeral home and the grave digger and alleged negligence (and a comedy of errors) in handling the grave location and grave digging. Each sought $500,000 in pain and suffering. The defendants denied fault.

The jury's verdict exonerated the two defendants and the plaintiffs took nothing.

Travis Holtrey and Davis Shaw (Foreman Watson Holtrey, Owensboro) for the plaintiffs
James Sigler and Jared Sigler (Keuler Kelly, Paducah) for the funeral director
Chris Hopgood (Dorsey King, Henderson) for the grave digger
Tim Coleman was on the bench

The coffin at the cemetary as the plaintiffs saw it pictured below



Published 10-12-22
$342,988 Car Wreck Verdict in Pulaski County -- Plaintiff suffered a lumbar disc injury

The defendant, in a commercial box truck, turned into the path of the plaintiff on the Hal Rogers Parkway near Somerset. The plaintiff complained of low-back pain and a treating orthopedist, Dr. Ronald Dubin, indicated she would require a laminectomy to repair multiple herniations. A surgeon at UK identified the injuries, but didn't think a surgery was needed.

Yesterday a Somerset jury awarded the medicals of $25,299 (agreed) and $42,689 for the future surgery. Pain and suffering was $275,000 as claimed. The verdict totaled $342,988. Judgment less PIP expected for $332,988.

The Lineup
David Scott and Cherry Henault, Isaacs and Isaacs, Louisville for the plaintiff
Charles E. English, Jr., ELPO, defending
John Prather on the bench.

Published 10-13-22
$54,502 UIM Verdict in Bell County this week

The plaintiff complained of an L5-S1 disc injury after a rear-end crash. She settled with the tortfeasor for $25,000 and sought UIM coverage from State Farm. The jury awarded the medicals ($14,502) and $40,000 for pain and suffering for a total of $54,502. The net for the plaintiff will be $19,502 after a reduction for the underlying limits and PIP.

The interesting thing . . .the jury didn't write down the amount of the medicals. They just wrote (see below) "Full expenses." This was understood to mean the claimed $14,502 and all accepted it.

Blake Bowling, Bowling Law Office, Middlesboro for the plaintiff
Bradford L. Breeding, Brown & Breeding, London defending (Breeding won a case in Scott Co a few weeks ago too.)
Robert Costanzo was behind the plate
The verdict:

Published 10-13-22
Boyle County Slip and Fall Verdict -- Fall in a bathroom at Cheddars

The plaintiff (age 58) slipped on a wet floor at the Cheddar's restaurant in Danville. She sustained a comminuted knee fracture and underwent a surgical repair. Her pain is now mostly resolved.

A Boyle County split fault down the middle -- 50-50.Plaintiff took her medicals as claimed, $32,546, and $140,000 for pain and suffering.
The raw verdict totaled $172,546. A judgment for $86,273 is expected for the plaintiff reflecting comparative fault.

Ryan Biggerstaff pictured (Gary Johnson Law Office, Lexington) for the plaintiff
Judd Uhl and Morgan Salisbury (Lewis Brisbois, Lexington) for Cheddars
Judge Jeffrey Dotson presided

Published 10-17-22
Pikeville Surgical Med Mal Results in a Defense Verdict

Dr. Oon at the Pikeville Medical Center performed a simple enough procedure -- placing a medi-port for the plaintiff to receive chemotherapy. He instead placed the tip of the port into her chest which led to a bleeding event. The plaintiff alleged she suffered a cerebral perfusion injury because of a loss of blood and has a permanent injury. She sought damages of some $6.4 million at trial.

Dr. Oon called it a complication and denied the event had caused her injury -- it was more likely related to chemotherapy.
It was 9-3 verdict for the doctor on liability. The jury had an interesting question deliberations by the way:What is the standard of care? The court told them to read the instructions.

Full Report coming soon in print.

Truman Chafin from Williamson for the plaintiff
David Latherow and Dustin Haley, Williams Hall & Latherow, Ashland for the doctor
Howard Keith Hall called balls and strikes.

The verdict and Latherow for the defense are pictured

Published 10-19-22
"Orphan" loss of consortium claim presented by wife against UM carrier even AFTER ex-husband settled his case in Scott County

Wife alleged the crash broke up her marriage

This case is somewhat unprecedented. Jon McKinney was involved in a car crash with an uninsured driver. He settled his UM claim with State Farm for $79,938 of the $100,000 limits. After the wreck Jon and his wife (Lisa, the plaintiff) separated and divorced. Lisa then sued in Scott County and presented an "orphan" loss of consortium claim alleging the crash ruined her happy marriage.

Thus at trial the only issue was her so-called orphan claim for loss of consortium.

A Georgetown jury deliberated 20 minutes and answered that the wife had not suffered any damages.

Richard M. Rawdon, Jr., Georgetown for the plaintiff
Bradford Breeding (pic) and Megan Holloway-Jordan defending
Jeremy Mattox on the bench

Published 10-25-22

EMT Med Mal Trial Underway in Henry County

An interesting EMT med mal got underway this week in New Castle (Henry County). The plaintiff (age 48) called local 911 in the middle of the night with signs of a heart attack. The EMTs got lost on the way. Then they walked the plaintiff (in the midst of a heart attack) to the ambulance. He then went into arrest as he climbed in. Then Life Pak in the ambulance wasn't working. Then there was a delay in getting to the hospital. The plaintiff could not be revived at the hospital and was pronounced dead.

Plaintiff alleged a series of errors led to a treatment delay and the plaintiff's death. The EMTs have denied fault and suggested the death was related to the natural course of coronary heart disease.

Hans Poppe and Scarlette Burton Kelty (Poppe Law Firm) for plaintiff

Ed Monarch (McBrayer, LLC) defending

Big Judge Jerry Crosby is on the bench

Published 10-26-22

Paul Miller Ford sold a guy a brand new truck! It turned out the truck had been wrecked by a manager. $100,000 in Punitives

The plaintiff bought a brand spanking new 2019 Ford F-250 Super Duty 4X4 pick-up truck from Paul Miller Ford in Lexington. He paid $62,851.

It turned out this new truck had been wrecked a few months earlier by a dealership manager and the repair cost $6,300. State law requires such repairs on a new vehicle to be disclosed if over $2,000. Paul Miller Ford didn't make a disclosure.

The plaintiff later learned his new truck wasn't "new" and he filed this Consumer Protection Act claim against Paul Miller Ford. It defended as best as it could under the facts, which was essentially that it had made a mistake.

A Lexington jury awarded the plaintiff $8,026 in compensatory damages and imposed $100,000 more in punitives. The verdict was returned 9-21-22.
Full report in the October 2022 edition.

Brad Harville, Louisville (pictured) for the plaintiff

Carroll Redford (Miller Griffin & Marks), Lexington defending

Judge Thomas Travis on the bench

Published 10-31-2022

Plaintiff claimed disc injury after a minor rear-ender -- $525,000 verdict in Murray

The plaintiff, age 67, was rear-ended at a red light. The defendant admitted fault. The crash resulted in minor damage. Plaintiff treated at the ER and then a short course of physical therapy. Then after an eight-month gap, he complained of a disc injury. Plaintiff later underwent a multi-level surgical fusion.

Defendant thought the crash was too minor to have caused this injury and looked to a degenerative condition. Defense IME was Stacie Grossfeld. Plaintiff countered the crash aggravated these conditions.

A Murray jury on 10-28-22 awarded the plaintiff medicals of $175,000 and $350,000 more for pain and suffering. Future medicals rejected. The verdict totaled $525,000.

Daryl Dixon, Dion Moorman and Kelli Lester all of Morgan & Morgan for the plaintiff

Brent Vasseur and Jared Sigler, Keuler Kelly defending

Judge David Buckingham was behind the plate sitting in as a special judge after the presiding Judge James Jameson was told to take a breather by the Judicial Conduct Commission.

The jury verdict form on pain and suffering

Published 11-1-2022

Hung Jury in the Henry County EMT Med Mal

The EMT med mal case went to a jury in Henry County yesterday on Halloween. The deliberations lasted eight hours and concluded at 1:00 in the morning.

The result? The jury was hung and the presiding Jerry Crosby declared a mistrial. He had previously given an Allen charge.

Hans Poppe was for the plaintiff while Ed Monarch (McBrayer) led the defense.

We had previewed the case (Hinkel v. Stone et al) a week ago when it began.

Published 11-1-2022

Judge in his Underwear (temporarily suspended) restored to the bench by the Kentucky Supreme Court

Judge James Jameson (Calloway and Marshall) was temporarily suspended earlier this year by the Judicial Conduct Commission for misconduct. While that suspension was pending, he faced new charges of being the Judge in this Underwear. 

Jameson sought a writ of prohibition at the Supreme Court on the original temporary suspension. Yesterday the Supreme Court (6-0, Nickell not sitting) lifted the suspension according to the case notes at the Supreme Court as shown below. Judge Jameson is back on the bench! This is only from the notes and I haven't seen the Supreme Court's actual order. The Supreme Court MOVED FAST!

Judicial Conduct Commission Page (External Link)

Published 11-2-2022

$126,450 UIM Verdict in Pulaski County -- Plaintiff broke her ankle in two places

The plaintiff (age 69 and a widow) was involved in a t-bone crash and broke her ankle in two places. She settled with the tortfeasor for her $25,000 limits and presented a UIM claim against her insurer, Farm Bureau.

Yesterday after a two-day trial, a Somerset jury awarded the plaintiff lost wages of $26,450 and $100,000 more for pain and suffering, all totaling $126,450. The plaintiff's medical bills (not sought) were approximately $8,000.

Case Documents:
Plaintiff Trial Brief

Ryan Biggerstaff (Law Offices of Gary Johnson), Lexington for the plaintiff

Jonathan R. Baker (Rankin & Baker), Stanford defending

Judge John G. Prather, Jr. on the bench