The KTCR Blog

Rowan County Schools sued after teacher/coach sexually abused and raped a student for years -- suit alleges school turned a blind eye -- teacher/coach since indicted

In a complaint filed this week by a Jane Doe plaintiff (identified as K.L. -- graduating senior at Rowan County), a grim and harrowing picture of sexual grooming is presented. It alleges a teacher/coach Andrew Zaheri (pictured) targeted the teenage girl from her freshman year on and then began an illegal and abusive sexual relationship with her. She was a multi-sport athlete and Zaheri, is is alleged, abused his position as a coach and teacher to abuse her. Making matters worse, school officials had been warned and did nothing to protect K.L. K.L. finally broke free this year and Zaheri has been indicted.

The plaintiff (it is not clear if she is 18 or not) filed the lawsuit yesterday.

Jonathan B. Hollan and Sam Aguiar (Aguiar Injury Lawyers) for the plaintiff. The complaint is linked below. Zaheri and school officials have not yet answered.

The Complaint

Mega Cavern death verdict from 2021 affirmed Friday at the Kentucky Court of Appeals rendition date

You will recall the June 2021 fatal death case where the plaintiff died of suspension trauma while at the Mega Cavern underground ropes course in Louisville. A defense verdict was returned. The estate of the plaintiff appealed from Judge O'Connell's final order.

The Court of Appeals affirmed (Appellate Rookie Eckerle writing) at the Friday rendition date. The plaintiff had argued that as the court had ruled the pre-release was unenforceable, it was also inadmissible. The trial court had allowed as evidence the decedent knew of the risks. The appellate court held there was a risk of confusion by the introduction of the release, but it was not a "palpable error" that justified reversal.

The full opinion is below. The underlying plaintiff has indicated they will seek discretionary review at the Supreme Court.

Brenton Stanley from Morgan & Morgan led the case for the plaintiffs. Maxwell Smith and Ashley Brown (Ward Hocker & Thornton) defending.

Appellant's Brief
Appellee's Brief

Court of Appeals Opinion (external link)

King of Torts Melvin Belli tried a case a celebrated case in Kentucky in 1959! Here's the story

In the 1950s attorney Melvin Belli gained national fame as the King of Torts. Incredibly Belli would try a case in Kentucky of all places before the decade was over.

It started, just as improbably in Lyndon (eastern Louisville) at a rail crossing in February of 1958. Marvin Fischer, a tax attorney, was driving his new Nash Rambler when it was struck by a 61-car L&N train. Fischer was dead at the scene. Fischer's estate alleged negligence by the train engineer who not only hadn't seen the vehicle but didn't even realize he'd struck it.  There were also issues regarding the crossing being obstructed by vegetation. The impact threw Fischer from the Rambler.

A lawsuit was filed and a year later before Judge Alex Humphrey in Louisville, the case would be tried. Melvin Belli was for the plaintiffs. Joseph Stopher of Boehl Stopher Graves & Deindorfer represented L&N. It was a huge trial and the courtroom was packed. The below description from Shannon Ragland's book, The 7th in Kentucky, describes the trial.

The verdict wouldn't stand. L&N appealed and the Court of Appeals reversed. Judge Watson Clay wrote that the evidence pointed to the unerring conclusion that Fischer had failed to yield. L&N Railroad v. Fisher, 357 S.W.2d 683 (1962).

Belli had come to Kentucky (some 64 years ago) and taken a verdict. But he couldn't keep it. It was the only case Belli would ever try in Kentucky.

In a fatal child drowning case from Rowan County (defense verdict) the plaintiff has moved for a new trial and cited juror misconduct

A little boy (age 9) was playing near a creek (this was in the wake of an historic rain storm) behind his apartment in Morehead when he fell in a concrete drainage flume (installed to remediate erosion) and drowned as he was carried away by the waters – his estate (representing his mother) blamed the City of Morehead (it dedicated the sewer system) and the Housing Authority of Morehead (it added the concrete flume) for having created a dangerous attractive nuisance – the defendants denied fault and it was argued among other things that the incident was an Act of God.

A jury in Morehead returned a defense verdict on liability although it did reject the Act of God defense. Case reported in the March 2023 edition.

Plaintiff has moved for a new trial and cited among other things, juror misconduct, a witness at trial who after testifying heard two jurors pre-judging the case, i.e., the mother should have been watching the child. The motion is pending.

Mickey Webster (Wyatt Tarrant & Combs) Lexington for the plaintiff.

Plaintiff's Motion for a New Trial

The affidavit of the witness in support of the motion is below as is an image from the scene of the fatal drowning

Plaintiff's have moved for Judge Hall (Pike County) to recuse on the eve of the post-trial motions in the $10,000,000 Mistrial Med Mal

There's a lot going on in this one but you'll recall the $10,000,000 verdict reached by a jury that deliberated after a mistrial was declared. The jury didn't know about the mistrial. The plaintiff has since sought to enter a judgment on the verdict. The hospital has opposed that. The motion is set for hearing tomorrow at 2:00 p.m.. See our post-below.

Late today the plaintiff's moved for Judge Hall to recuse. The gravamen of the matter is that the judge conducted an ex parte interrogation of a juror during the trial and the parties then relied on the judge's description of that interrogation. The motion explains that the representation was not completely accurate, Hall is likely now a material witness and thus his impartiality can be reasonably brought into question. Moreover had the interrogation been properly described, the plaintiff would have sought an extraordinary writ at the Court of Appeals. The motion includes an affidavit from plaintiff's counsel (Ross Mann) and transcript of the part of the proceedings.

How does this motion affect tomorrow's substantive hearings? The record is not clear.

Plaintiff's Motion to Recuse

Other Case Documents:
Plaintiff's Motion for a New Trial

Defense Response to Plaintiff New Trial Motions

KTCR Original Verdict Report (Published in the March 2023 edition, 27 KTCR 3)

Published 5-17-23 

State Volunteer, facing bad faith in the $21 million Duff v. Graves-Gilbert case, has moved to dismiss the case -- hearing today at 2:30 (CST) in Bowling Green

You will recall the $21,310,887 med mal verdict in Bowling Green last summer against the Graves-Gilbert Clinic. The result far exceeded the clinic's $5,000,000 policy limits with its insurer, State Volunteer.

Graves-Gilbert appealed the final judgment and filed for bankruptcy. The plaintiffs also filed a new complaint against State Volunteer that alleged bad faith.

State Volunteer has moved to dismiss and argued there was a "wealth" of evidence that liability was in dispute and it was reasonable to reject the plaintiffs' settl. The plaintiffs have replied that despite liability being reasonably clear, State Volunteer never made an offer in the case (ever, not even through today) and thus the motion should be denied.

The hearing on the motion is today at 2:30 (CST) in Bowling Green before neophyte Judge Christopher Cohron.

Christopher G. Johnson and Samuel W. Wardle (Frost Brown Todd) Louisville are for State Volunteer.

Chad Gardner and Jake Grey (Gardner Law) Prospect for the plaintiffs.

The snip is of Judge Cohron's order setting the hearing.

$10,000,000 Med Mal verdict then declared mistrial is coming up for the hearing on post-trial motions this Thursday in Pikeville

Remember Gauze v. Pikeville Medicine Center which was tried on 2-10-23 before Judge Hall in Pikeville? It was a big mess. The jury returned a $10,000,000 verdict for the plaintiff but . . . unbeknownst to the jury,  Judge Hall had already declared a mistrial because of juror misconduct. This thing went so off the rails that even Andy Wolfson at the Courier-Journal wrote about it!

This led to a flurry of motions. Judge Hall ultimately sealed the verdict. It's a secret! Plaintiff moved to enter a judgment on the verdict as returned. The hospital has since opposed that motion and that response is posted below.

The hearing on these motions is set for Thursday in Pikeville at 2:00 p.m. before Judge Hall. I'd think that will be an interesting hearing.

Ross Mann and Brian Jasper for the plaintiff. Daniel G. Brown and James E. Smith (Gazak Brown) for the hospital.

We accumulated below the original verdict, our report on it, the plaintiff's post-trial motion and the hospital's response. The hospital argued it was agreed by all the verdict would be advisory, confidential, off-the-record and have no binding effect. The hospital in its motion also explained it is very concerned that the confidentiality of the verdict (we published it) was ever leaked.

The Original Jury Verdict

KTCR Original Verdict Report (Published in the March 2023 edition, 27 KTCR 3)

Plaintiff's Motion for a New Trial

Defense Response to Plaintiff New Trial Motions

The order below seals the jury verdict

Kentucky Court of Appeals affirms $3.913 million med mal at last Friday's rendition date

This med mal arose from a case where the plaintiff suffered a massive brain injury, code event and death after his tracheotomy tube became dislodged -- his estate alleged Jewish Hospital erred in failing to note the issue immediately especially as the plaintiff was just 11 feet from a nurse's station. The plaintiff also received a spoliation instruction at trial.

A Louisville jury found for the plaintiff and awarded damages of $3,913,178 including $1.529,583 for the wife's consortium interest. It was a quotient verdict incidentally although this issue was never raised by the parties. There were also punitive damages of $391,666.

The hospital appealed after its JNOV/New Trial Motions were denied. It cited instruction and evidence errors. The Court of Appeals affirmed the verdict last Friday at its rendition date in a non-published opinion. The panel consisted of Judges Thompson, Cetrulo and Eckerle. Thompson authored the opinion and Eckerle concurred. Cetrulo concurred in result only and issued her own concurrence where she wrote that while the instructions could have had "better language," the lack of "better language" did not rise to the level of an abuse of discretion.

Jack Conway (Dolt Thompson Shepherd & Conway) represented the plaintiff at trial and did the oral arguments on appeal. He was joined on appeal by Kevin Burke and Jamie Neal.

The hospital's trial attorneys were Todd Thompson and Eleanor M.B. Davis. They were joined on appeal by Joseph Wright (he did the oral argument) and all are of Thompson Miller & Simpson.

Judge Mitch Perry was on the bench for the March 2022 jury trial.

The Court of Appeals opinion (external link)

Original Verdict Report (3-10-22 -- Case No. 5956)

Doctor secures $3.736 million verdict against his former employer for breach of contract and tortious interference due to failure to follow written policy for handling allegations of drug or alcohol impairment at work – award included $3.5 million for the doctor’s humiliation, mental anguish, and embarrassment

The plaintiff, a third-year resident in a family medicine program, was accused of being "on something" at work. This set of a chain of events including the doctor being referred to the Kentucky Physicians Health Foundation, all of which impaired his career. The doctor alleged the hospital breached its contract and tortiously interfered with future employment opportunities. The hospital denied it had done anything wrong or that the plaintiff suffered any damages.

The case was tried for six days and the plaintiff prevailed on all counts. He took damages of $3.736 million as described below including $3.5 million for humiliation and emotional distress. 

Kathleen Delaney and Christopher Stake (DeLaney & DeLaney) Indianapolis and Marvin Coan (Hummel Coan & Sage) Louisville for the plaintiff

Robert Benvenuti, Jeffrey Barnett and Holly Iaccarino (Barnett Benvenuti & Butler) Lexington defending

Judge Gibson kept it fair from the bench.

Case Documents:

Plaintiff Trial Brief

Defense Trial Brief

Summary Judgment Order

The verdict form on damages below. Full report coming in the June 2023 edition.

Today Judge Boom denies hospital's JNOV motion challenging a federal $2.395 million EMTALA verdict from last fall

Last fall (9-13-22) in an EMTALA case there was a $2.395 million dollar verdict before Judge Claria Horn Boom. Plaintiff, in the middle of a heart attack, alleged he was turned away from Baptist Health Lexington without being seen and directed to another hospital. The hospital admitted fault at the close of proof and the jury only considered damages. The plaintiff took $545,000 in compensatory damages and $1.850 million more in punitives.

Hans Poppe, Poppe Law Firm, for the plaintiff at trial. Clay Stevens, Napier Gault, led the defense. See Case No. 5960 in the 2022 Year in Review.

The hospital moved for JNOV relief and challenged the award of damages as improper and excessive.

Today Judge Boom (5-8-23) entered an order denying the hospital's JNOV motion. It is linked below.

Defense JNOV Motion

Judge Boom's Opinion (Entered 5-8-23)

The May 2023 edition is out next week -- 27 KTCR 5
Sneak Peak at the Table of Contents

The May issue is out next week. Here's what you can expect to read about.

Subscribe to the Kentucky Trial Court Review

Slip and Fall Wednesday -- Verdict Federal Court in Ashland

We're looking east to Ashland for our traditional Slip and Fall Wednesday!

Plaintiff shopping at Wal-Mart in Cannonsburg slipped on a tube of ChapStick and suffered a broken finger, broken ribs and other injuries. He cited a store employee (Leonard) was in the area stocking gravy for some 40 minutes and should have seen the red and white ChapStick container. Wal-Mart denied fault and suggested if the ChapStick was so obvious, the plaintiff should have seen it too.

Defense verdict on 5-2-2023.

Jason Greer, Grayson, had the plaintiff

Kyle Bunnell (pic) and Christopher Jackson (Dinsmore) Lexington defended

Judge Karen Caldwell kept everyone honest

Med Mal Nursing Home Verdict Friday in Barbourville

A two-week nursing home med  mal wrapped up on Friday in Barbourville. Elderly resident, dependent on a feeding tube, aspirated because of a misplaced tube among other errors which led to pneumonia and death. Nursing home defended that the resident was properly cared for, the feeding tube managed and that aspiration is a complication of the feeding tube. The plaintiff claimed some $15,000,000 in damages.

A defense verdict was returned in Knox County Friday night.

Key expert for the defense was Mark Elam, MD, Geriatrics, Chattanooga, TN.

Laraclay Parker and Alexandra DeMoss-Campbell (Golden Law Office) Lexington for the plaintiff

Mark Hammond and Pete Pullen (O'Bryan Brown & Toner) Louisville defending

Judge Gregory Lay behind the plate.

Details coming in the Kentucky Trial Court Review.

$55,687 rear-ender in Hardin County - Pain and suffering valued at $40,0000

We're taking a trip down I-65 to Elizabethtown today. Plaintiff pulled from a yield and was rear-ended by the defendant. It looks like a mild to a moderate impact? She subsequently treats for wide-ranging soft-tissue symptoms with a chiropractor and incurs medical bills of $13,203.

Jury finds for plaintiff and awards the medicals and $2,664 in lost wages plus a surprising (for a chiropractic case) of $40,000 in pain and suffering. Verdict totals $55,867 and a consistent judgment entered less PIP. The suffering to medicals ratio was a tidy 3.02.

Andrew White, Louisville for the plaintiff

Eric Rice and Daniel Gumm, Rice Gum, Louisville defending

Judge Simcoe on the bench.

Full report coming in the May 2023 edition

Are you not subscribing? Use Code "HardinCounty" through Friday to save 25% on anything in the online store.

Verdict in Smith v. Arnold (Jefferson Circuit Court -- Judge Morris presiding)

Yesterday we had a live look-in at the closing arguments in this case that involved a plaintiff who died of bactrim-induced meningitis. The estate blamed his infectious disease doctor for failing to make this very rare diagnosis. The doctor's defense among other things was this condition was EXCEPTIONALLY rare.

The trial concluded yesterday. 

It's a defense verdict.

The defense was led by Timothy Napier, Victoria Boggs and Sarah Clark of Napier Gault Schupbach & Stevens.

John Cox (Lynch Cox) joined by Matthew Cox and Peterson Cox for the plaintiff. I'm told Cox made a very persuasive closing argument.

It was Judge Patricia Morris' first civil jury trial.

The Plaintiff's Trial Brief

The Defense Trial Brief

Med Mal Closing Arguments happening now in Louisville

We've got a live look-in at a jury trial today in Louisville. It's a complex med mal where the plaintiff suffered a fatal and rare Bactrim-induced meningitis. That's Timothy Napier (Napier Gault Schupbach & Stevens for the defense) giving his very "reasonable" closing argument. The plaintiff is asking for $10-plus million in damages.

Verdict expected today.

John Cox (Lynch Cox) is for the plaintiff and Judge Patricia Morris (rookie calling balls and strikes) on her first civil jury trial.

The Plaintiff's Trial Brief

The Defense Trial Brief

Sainato Final Judgment Entered

After nearly three months there is finally by Judge Perry . . . a final judgment in the Sainato v. Marriott Dram Shop/Civil Battery Case. In that case the plaintiff alleged she was raped at the downtown Louisville Marriott by a fellow travelers. The Dram Shop element included that Marriott served either her or the assailant after they were intoxicated. She also alleged battery against the assailant.

The jury exonerated Marriott but found against the assailant and awarded the plaintiff damages of $1.171 million. Interestingly those damages were subject to a 55-45% split on comparative fault, the assailant being held to the very unusual rapist standard of care. The verdict itself is linked and the report will be in the May 2023 edition, 27 KTCR 5.

The Jury Verdict

• Published 2-2-2023

  Pike County Urology Med Mal Results in a Defense Verdict

  Plaintiff treated with a urology for testosterone replacement therapy in 2015. Two years later the plaintiff suffered a pulmonary embolus and blamed it on error by the urologist in prescribing testosterone therapy in the first place and then in failing to monitor the plaintiff's condition in the intervening period. Doctor defended the therapy was reasonable and blamed the PE on the plaintiff's co-morbidities including obesity, smoking, COPD and black lung.

  Michael Hallet, New Albany, OH, Urology was the expert for the plaintiff. Edward Kim, Urology, Knoxville, in for the defense.

  A Pikeville jury returned a defense verdict on both negligence and informed consent (11-1 on both counts) on 1-23-23.

  Miller Kent Carter and Phillip Wheeler, Pikeville for plaintiff

  David Gazak and Courtney Justice, Gazak Brown, Louisville defending

  Judge Howard Keith Hall was behind the plate

  

• Published 2-1-23

  Black History Month -- N.R. Harper -- Kentucky's First Black Lawyer with a case report from 1885

  Let's kick off Black History Month with a story from 1885 about N.R. Harper, Kentucky's first black lawyer (pictured), and his interesting (and maybe even timely today) defense of a black man charged with murder. Even back then race was an issue in the composition of jury panels in Louisville.

  

  To the case of the Commonwealth v. Paul King:

  The defendant, Paul King, shot and killed Louis Young in a barroom brawl at Kruse's Saloon on 11th and Madison just after midnight on 9-12-1885. Both King and Young were black.
  King was described as a "tough" who regularly went "fixed" which meant he carried a six-shooter wherever he went.
  
  King was arraigned weeks later and Harper "appeared as his counsel, waived and examination and entered a plea of not guilty."
  Harper also sought to quash the indictment because there were no blacks on the grand jury panel. At motion hour Harper called the reasons given by the Jury Commissioners to be insufficient -- it had been five years since a black had served on a grand jury. The commissioners explained they didn't know any black citizens that were qualified, namely that were "sober and discreet housekeepers" [That was obviously a load of shit and Harper had exposed it.]

  

  
  The presiding Judge Jackson denied Harper's motion in this case but at the next grand jury sitting a week later with Jackson presiding and giving an emphatic instruction that was race should play no role in the selection process, two blacks were called and seated: A.J. Catlin, a barber and Moses Lawson, a furniture dealer.
  That didn't help Paul King who still faced murder charges.
  The trial was conducted a week before Christmas in 1885, just three months after the murder.
  Harper was described as "ably defending" King and putting up "the best fight possible" for his client.The jury convicted King of 2nd degree murder. It imposed a sentence of two years in the penitentiary after an hour of deliberations.

  

• Published 1-30-23

  Med Mal Monday

  This morning we are looking down to Danville for a med mal that concluded Friday. The plaintiff presented to the ER with a two-day history of a a floater in his eye, a headache and other symptoms. The ER doctor ordered a CT scan that was normal.

  The diagnosis from the doctor? The plaintiff had hypotension and a complicated migraine.

  Some 32 hours later the plaintiff was treated for a stroke. In this lawsuit he blamed the ER doctor for a diagnosis error, all of which prevented the opportunity to begin tPA therapy and otherwise lead to a more complex stroke event. The doctor replied the CT scan was normal, there were no signs of a stroke and even if the stroke event was occurring, the die was cast as the symptoms begin two days earlier and beyond the window for beginnning tPA therapy.

  The case was tried five days. The jury's verdict exonerated the doctor after 35 minutes.

  Ephraim Helton and Brendon Shevlin for the plaintiff

  John Parker and Colleen Davis (Phillips Parker)(pictured below) defending

  Judge Jeffrey Dotson on the bench

  Verdict Report coming in the February edition of the Kentucky Trial Court Review . . . Subscribe to the KTCR

  

• Published 1-28-23

  Update on the Graves-Gilbert Clinic Bankruptcy

  The Graves-Gilbert Clinic, the medical clinic in Bowling Green (with $200,000,000 a year in revenues) that recently filed for bankruptcy in the face of a $21 million med mal verdict, has filed its Form 202 listing its assets. The clinic indicates it has $3.5 million in cash, $16 million in receivables, an office building worth $9.5 million, another worth $11.7 million (the real estate totals $24 million) and even a pick-up truck with 180,000 miles worth $3,700. Its assets also include a prospective bad faith claim against its own insurer. The bankrupt clinic's lists its overall property value at $57.253 million.

  In terms of liability the clinic also lists several pending liability claims (other than the Duff judgment) as liabilities.

  Some of the directors are well paid too. Kirk Fee, a Director, made $1.14 million last year. Marc Moore in just under a million at $998,374. It's all in the Form 202.

  The Form 202 is linked below.

  

  The underlying plaintiff, Alice Duff, the clinic's largest unsecured creditor, has also moved the bankruptcy court of an examination of the debtor. The clinic has objected and the motion to examine is set for hearing on 2-8-23. The documents sought include getting into the clinic's discussions to resolve the case including with its insurer as shown in this image. The full document request is below.

  

  Graves-Gilbert Form 202

  Request for Debtor Examination

• Published 1-27-23

  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 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: