The KTCR BLOG

A quick look at verdicts, trial news or other stories of interest to Kentucky litigators.

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Published 11-20-23

Interesting Veterinary Negligence set for trial in Kenton County -- Pro se plaintiffs are well-known plaintiff attorneys

Colonel Sanders, a five-year old Labrador Retriever, became lame in his legs and his owners, Northern Kentucky lawyers, Delana and Robert Sanders, took him to Erlanger Veterinary Hospital. The dog underwent a grueling course and it turned out he'd suffered fractures in his legs related to a bacterial infection. The dog underwent surgery (it was expensive) and ultimately enjoyed a good recovery.

The dog's owners sued the clinic and alleged veterinary negligence in failing to properly diagnose and treat the infection, all of which led the infection to lead to the fracture injury. The clinic has denied fault.

What is interesting is the damages. What are the damages? The dog enjoyed a nearly complete recovery and as dogs are personal property, Colonel Sanders doesn't have compensable pain and suffering. His owners don't have a dog consortium interest.

The vets have argued the measure of damages is the diminution in fair market value, which in this case is negligible. Plaintiffs have countered they are entitled to their medical bills as well as punitive damages for gross negligence. They've argued if just limited to the dog's fair market value, that would suggest they simply should have put the dog down rather than save his life.

The case is set for a jury trial net Tuesday in Covington. It will be interesting to see if it goes off.

Delana Sanders is pro se. Jerome Rolfes, Rolfes Henry, Cincinnati defending

Judge Mary Molloy on the bench.

FYI . . .The 2023 Year in Review sale is still running. Use code "Turkey" at check-out to save 20%. Sale ends today.

The Complaint (external link)

A snip from the defense trial memorandum on damages (below) describes some of the facts . . .

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Published 11-20-23

Negligent Police Pursuit (one fatality and multiple injuries) jury trial underway in Louisville

A police officer initiated a stop in as a part of a "violent crime" detail in the California neighborhood. The suspect had not signaled a turn. When the officer turned on his blue lights, the suspect fled. The chase (it only lasted 20 seconds) reached speeds over 100 mph. Again the crime was a turn signal violation.

The suspect ran through an intersection (Broadway and Hodge) and killed a man on a moped. Several others were injured in the fiery crash.

The plaintiffs have sued Louisville and presented a negligent pursuit theory against LMPD, citing that the pursuit violated its own policies. LMPD has replied it was a short chase and the rules were suspended in the "violent crime" district.

The case began last week and moves into week two today.

A team of lawyers for the several plaintiffs includes Nick Naiser, Bo Bolus, Ben Pittenger and Jeffrey Sampson

Rod Payne and Darryl Lavery, Steptoe & Johnson and Gregory Scott Gowen from the County Attorney's Office defending

Judge Clay on the bench

And as a heads up, the 2023 Year in Review (26th edition) is on pre-sale for a January delivery. It's $399.00 ($70.00 off the regular $469.00 price) at the link:
Order the 2023 Year in Review

A look at the crash from surveillance video from a nearby food mart

A preview from the defendant's trial brief

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Published 11-15-23

November 2023 edition (27 KTCR 11) is out

Another month. Another issue. The November 2023 edition is out, 27 KTCR 11. The link is to the  preview:
KTCR November 2023

It features the $44.49 million med mal -- the image is from the jury's verdict form on liability

Subscribe to the Kentucky Trial Court Review

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Published 11-13-23

Plaintiff was rear-ended and knocked across the road by an empty truck trailer on a jack-knifing big rig -- $728,268 verdict in Louisville

The plaintiff was slowing in rush hour traffic on the Gene Snyder. Behind him a tractor-trailer didn't appreciate traffic was slowing and hit the brakes hard. This caused his big rig to jack-knife. The truck's trailer (it was empty) struck the plaintiff's cargo van and knocked it across several lanes.

The plaintiff has since treated for cervical, lumbar and hip injuries, the proof indicating he suffers from chronic pain. The defense postured that while there was an injury, it was only temporary. The defense IME was Dr. Christopher Stephens, Orthopedics, Lexington.

The plaintiff prevailed at trial and took medicals of $78,218 as claimed, $250,000 for in the future and $400,000 for pain and suffering. The verdict totaled $728,218.

There will be no Hi-Lo agreement. Why? The parties entered a secret Hi-Lo agreement. The verdict is apparently within the Hi-Lo limits.

Full report coming this week in the November 2023 edition of the Kentucky Trial Court Review.

Jonathan Hollan, Sam Aguiar Injury Lawyers, Louisville for the plaintiff

Daniel C. Mack and R. Craig Reinhardt, Reinhardt & Associates, Lexington defending

Judge Susan Gibson on the bench

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Published 10-25-23

Southern Indiana Med Mal Death Case recently tried in Jeffersonville, IN involving Louisville lawyers

At the Indiana Jury Verdict Reporter Blog we are writing this morning about a recent med mal death verdict in Jeffersonville, IN. It was tried for seven days in Clark County before Judge Williams.

You can check it out the blog report here:

Indiana Jury Verdict Reporter Blog

Full report coming in the November edition of the Indiana Jury Verdict Reporter (link to subscribe)

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Published 10-19-23

Slip and Fall Thursday -- Plaintiff tripped on hospital stairs and suffered a broken arm - $66,201 verdict less 50% comparative fault

The plaintiff tripped on a partition (for a wheelchair lift) on a set of stairs at a hospital surgery suite and suffered complex upper arm fracture. It was a serious injury and she essentially lost the use of her arm. She blamed her fall on protruding partition separating the wheelchair lift from the stairs.

A Louisville jury assessed fault evenly between the plaintiff and the hospital. The damages totaled $66,201 which represented the medicals of $16,201 and $50,000 for pain and suffering. The net result for the plaintiff was $33,100.

Interestingly the plaintiff is the mother of famed jockey Robby Albarado.

Full report coming in the November edition of the Kentucky Trial Court Review (27 KTCR 11).

Matthew W. Stein and Rob Astornio, Jr., Louisville for the plaintiff

Clay M. Stevens, Kristen H. Fowler and Rachel S. McLaughlin, Napier Gault Schupbach & Stevens, Louisville

Judge Melissa Bellows on the bench

The stairs where the plaintiff fell depicting the partition

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Published 10-18-23

$7,004,835 Ophthalmology Verdict in Knoxville in case against Daughter-Father Doctors

The plaintiff, age 79, suffered an infection after a cataract surgery and sustained a bacterial infection. He later lost the eye. The injury was devastating because his vision was already in his remaining eye.

Plaintiff sued his ophthalmologist (Lauren Harris) who failed to appreciate the infection and her father (David Harris, also an ophthalmologist) who consulted, this error leading to the infection becoming worse. The defendants denied fault.

The jury found against Lauren (daughter) but exonerated David (father). Plaintiff took medicals of $4,835 as stipulated and $6,000,000 in non-economic damages. His wife took $1,000,000 for her consortium interest for a total of $7,004,835. The final judgment (consistent with Tennessee's tort scheme) reduced the verdict to $754,835 (by almost 90%) and was entered against Lauren. In Tennessee non-economic damages are limited in most cases to $750,000. It is theorized that limiting damage recovery to plaintiffs creates jobs.

Full report coming in the November 2023 edition of the Tennessee Jury Verdict Reporter. We've been publishing there since 2004.

Robert E. Pryor, Jr. (pictured), Pryor Priest Harber Floyd & Coffey, Knoxville for the plaintiff

James H. London and Andrew S. Roskind, London & Amburn, Knoxville

Special Judge Carter Moore

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Published 10-10-2023

$39,500 Auto Verdict in Boyd County this week

The plaintiff complained of initial soft-tissue injuries after a right-of-way crash at the Town Center Mall in Ashland with a municipal vehicle. There was then a 10-month gap in care and he subsequently underwent a cervical fusion and complained of a mild TBI. He claimed significant damages (medicals of $238,714, future care of $302,050) as well as impairment, and pain and suffering.

The key issue was causation. The defense argued the plaintiff's radiating symptoms were actually a peripheral neuropathy that were related to his drinking. There was proof the plaintiff 12 beers a day, had Budweiser in his e-mail, and that the neuropathy was related to alcohol.

The jury awarded the plaintiff a total of $39,500, representing medicals of $12,500, future care of $10,000, lost wages of $12,000 and $5,000 for pain and suffering. Implicitly the jury rejected the ongoing care as being crash-related but it is interesting they did award some of the future medicals.

Details coming in the November issue of the Kentucky Trial Court Review.

There was also an unusual negligent security verdict last Friday in Greenup County. A woman alleged she was sexually assaulted while taking a bath at the now-defunct Our Lady of Bellefonte Hospital. Details coming next week.

Have a good weekend all. I'm signing off for parents weekend!

If you're scoring the Boyd County case at home, these were the lawyers.

David Noble, Kelli Lester and Jarrod Bentley, all of Morgan & Morgan, for the plaintiff

Scott Sennett, Campbell Woods, Ashland defending for the City of Ashland

Judge John F. Vincent on the bench

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Published 10-10-2023

The October edition (27 KTCR 10) is out . . .

The preview is out. There is a lot of med mal, but we've got a good Costco verdict and free this month, we've even got some Kim Davis. Seriously.

Subscribe to the Kentucky Trial Court Review

KTCR October Preview

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Published 10-9-2023

Costco slip and fall verdict in Lexington, KY on 10-4-23

The plaintiff slipped on a wet floor at a Costco food court in Lexington on a busy Sunday at lunchtime. She suffered a PCL injury to her already fragile knee -- the PCL was holding together a knee replacement. Thus the fall led to a revision of the first knee replacement and ongoing pain.

Plaintiff sued Costco and alleged it had failed to police or patrol the high-risk slip and fall area (it was near the soda dispenser) and thus was a substantial factor in causing the fall. Costco denied fault.

The case was tried before Judge Goodman for three days last week in Lexington. A defense verdict was returned.

The jury verdict itself (its linked below) reflects exceptionally awkward instructions from the court. Even though Costco was exonerated by the initial finding on liability, Judge Goodman instructed the jury to then consider the plaintiff's duties, apportionment and damages.

The Jury's Verdict

Melissa Thompson Richardson and Summer Burgess, Walters Richardson, Lexington for the plaintiff

Noel Halpin (pictured) and Morgan Mottley, O'Bryan Brown & Toner, Louisville defending

Judge Julie Goodman presided

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Published 10-1-2023

$7,568,452 Fleming County breast cancer oncology med mal on 9-27-23

There was a $7,568,452 breast cancer med mal in Fleming County last night after a two-week trial. It arose from a suspicious mammogram and a purported miscommunication with the plaintiff as to that result. This led to a nine month diagnosis delay and proof that the delay led to the cancer having metastasized.

The case was complex and involved three defendants, (Family Practice, Radiology and Hospital) -- there were also complex proof as to causation, i.e., the defendants argued the cancer had already metastasized before the mammogram and thus the result would have been the same.

The jury's award included $4.8 million in non-economic damages.

Fault was assessed 50% to Radiology, 30% to Family Practice and the remaining 20% to the since-settled local hospital.

Laraclay Parker and Dale Golden (both pictured) and Alexandra DeMoss-Campbell all of the Golden Law Office for the plaintiff.

There are more details to come in the full edition including all the lawyers (there were a lot) and the experts (lots of those too) and a discussion of the very intense pre-trial litigation.

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Published 9-21-2023

Colonoscopy Med Mal in London -- Defense verdict

The plaintiff underwent a routine and non-emergency colonoscopy that was performed by his surgeon. It was uneventful. The next day he was back at the hospital with abdominal pain. He'd suffered a cecum perforation. The surgeon performed a repair surgery and the plaintiff lost part of his bowel.

Plaintiff alleged error by the surgeon in performing the colonoscopy when the colon was not adequately prepped and visualization was limited. The surgeon replied that he met the standard of care and the plaintiff's injury most likely occurred after the plaintiff was discharged and was a known complication of the surgery.

Yesterday a London jury returned a verdict (unanimously) for the defendant as pictured below. Also pictured is Todd Thompson who led the defense team.

The details are coming in the October 2023 edition of the Kentucky Trial Court Review.

John F. Kelley (Williams and Towe) London for the plaintiff

B. Todd Thompson (pictured), Lon S. Hays and Elizabeth F. Ousley (Thompson Miller & Simpson) Louisville for the surgeon

Judge Gregory Lay called balls and strikes

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Published 9-20-2023

Pike County Med Mal -- Ventilator-dependent patient died during an ambulance transfer

The elderly plaintiff was ventilator-dependent and an ICU patient at Pikeville Medical Center (PMC). A transfer was arranged to a rehabilitation hospital in Lexington so the plaintiff could be weaned from the ventilator.

A short time into the ambulance trip the plaintiff's vitals dropped and the ambulance siren wasn't working. The ambulance returned to the hospital 26 minutes after leaving. The plaintiff had no pulse upon arrival and while resuscitated, he died two days later.

Plaintiff's estate settled with the ambulance service and went to trial against PMC, an intensivist and an APRN, alleging they'd botched the transfer. The defendants (all jointly represented) denied fault and blamed it on a multitude of errors by the ambulance company.

A Pikeville jury jury rejected the case against the three defendants and thus didn't reach apportionment to the ambulance company or damages. Plaintiff had sought $2,000,000 for the decedent's suffering and $1,000,000 more for his wife's consortium interest. They'd been married 46 years at the time of the plaintiff's death.

Kevin Smith, London for the plaintiff

David Gazak and Daniel Brown (Gazak Brown) Louisville defending 

Judge Howard Keith Hall presided

An image of the verdict form is below. The count was 10-2 for PMC and 11-1 for the other two defendants.

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Published 9-14-2023

America's Sweetheart, Kentucky's own Kim Davis, back in court -- Loses $100,000 verdict for violating civil rights in failing to issue marriage licenses

In June of 2015 the U.S. Supreme Court in Obergefell recognizes that same sex couples enjoyed a constitutional right to marry. Back in Kentucky Kim Davis, the clerk in Rowan County, refused marriage licenses to two gay couples. The famously defiant Davis told them she acted on God's Authority.

When Davis was jailed for her contempt, her deputies issued the licenses weeks later. (Davis pictured below celebrating her release from jail)

The two couples filed a civil rights lawsuit and alleged Davis violated their constitutional rights in failing to issue the marriage licenses.

Davis moved to dismiss. Denied. She appealed. Loser at the 6th Circuit. Cert denied. Loser again.

Davis moved for summary judgment. Denied. Loser at the 6th Circuit.

Plaintiffs moved for summary judgment on liability. They won. Davis loses again. She appealed. Loser again.

The trial began this week in Ashland before federal judge David Bunning on damages.

One set of plaintiffs (Moore and Ermold) took $50,000 each for a total of $100,000. The second set (Yates and Smith) were denied damages. The case was tried before two separate six-person jury panels. The plaintiffs are expected to seek attorney fees.

The still defiant Davis has promised an appeal to the Supreme Court and hopes Obergefell is overturned. She also thought the case was just about the plaintiff's having hurt feelings.

Moore and Ermold repped by Joseph Buckles and Michael Gartland of Lexington. Yates & Smith represented by Rene Heinrich and Kash Stilz

Daniel Schmid and Horatio Mihet (Liberty Counsel-FL) and A.C. Donahue, Somerset for Davis.

Full report coming in the October edition. The Moore/Ermold verdict is below. The other verdict looks the same except the jury wrote "0" for damages.
 

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Published 9-7-2023

$250,000 medical transport verdict in Campbell County -- elderly patient suffered spinal fractures when her wheelchair tipped over in a transport van

The plaintiff, Loretta Hunt, age 92, was being transported from a hospital to a nursing home via a transport van. She was not properly secured in the van and her wheelchair tipped over. She suffered a serious cervical fracture and died two months later after a painful decline.

A Campbell County jury found the medical transport company violated the highest standard of care (common carrier) and awarded the estate $250,000 for Hunt's two months of pain and suffering. She had sought $8,000,000. The jury also rejected a death claim which would have triggered funeral expenses.

Charles M. Rittgers and Justin A. Sanders, Rittgers Rittgers & Nakajima, Cincinnati, OH and Craig A. Schlapprizzi, St. Louis, MO for the plaintiff

Matthew A. Taulbee and Lauren M. Spuzzillo, Reminger, LLP, Ft. Mitchell defending

Judge Daniel Zalla tried it

Details coming in the September 2023 edition next week.

The verdict form on damages -- the plaintiff had claimed $8,000,000 -- the verdict was for $250,000

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Published 9-5-2023

Judge Haner recognizes own instruction error and orders new trial after defense verdict

There was an interesting case tried in June in Louisville. The plaintiff, a pedestrian, was struck crossing Bardstown Road and flipped over the defendant's hood. The plaintiff suffered cuts to his arm and a torn labrum.

The plaintiff alleged he was in the crosswalk and had the right of way. The defendant conceded he ran the light but it turned red very quickly. The defense also thought the plaintiff stepped into the road too quickly.

The presiding Judge Haner gave the following instruction that required the plaintiff to prove that when the plaintiff left the sidewalk, the defendant (even if he ran the light) was already in the intersection. The jury returned (predictably) a defense verdict.

Plaintiff moved for a new trial and cited instruction. Last week Judge Haner agreed and ordered a new trial. He wrote his instruction was not technically not a misstatement of law but it failed to fully instruct the jury on the state of the law. The motion for the new trial was granted.

Andrew Epstein (Bahe Cook Cantley & Nefzger) for the plaintiff. Jace Martin with Dilbeck Myers defending.

Judge Haner's New Trial Opinion

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Published 8-31-2023

Complex Med Mal death case is underway in Louisville -- Chad Gardner has parachuted in for trial

There is a complex med mal that began this week before Judge Eric Haner in Louisville. The plaintiff, age 30 and the young mother of 3, died of pneumocystis pneumonia after a stem cell transplant. She blamed her medical team for failing to prescribe a prophylaxis (Bactrim) treat the infection and otherwise prevent her death.

Mark Alcott (Harlin Parker) Bowling Green had led the plaintiff team -- the decedent is from Morgantown. Just last week in advance of trial, Chad Gardner, he's been hitting some trial home runs (out of the park and rolling down the street), parachuted in and made an appearance for the plaintiffs.

The defense team includes Ashley Butler (Stoll Keenon Ogden) and James Grohmann (O'Bryan Brown & Toner).

There is some extremely high quality lawyering going on there and I'd expect some lawyers will be stopping by to watch the action.

Details coming in the October 2023 edition of the Kentucky Trial Court Review

Save 15% this week (through Friday) on anything in the Online Store with the code "Chadwick"

Case Document:

Plaintiff Trial Memorandum

Defense Trial Memorandum (U of L Physicians)

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Published 8-23-2023

Franklin County Med Mal Mistrial -- Juror proclaimed to several persons (after the first day of trial) that the defendant was GUILTY!

A med mal proceeded to trial in June of 2023 before Judge Thomas Wingate, Wiedo v. Capital Family Physicians, 20-CI-174. The medicine was interesting but not extraordinary. The plaintiff, age 35, died because of a purported serotin syndrome (related to her use of anti-anxiety medicine) and she blamed her family practice for failing to monitor her serotin levels. The defense blamed a sudden cardiac event.

At the close of the first day of a proof, a male juror approached a woman in the courtroom. She was a representative from the med mal insurer. He asked her: Are you with the defendants? She said yes. He purportedly replied the doctors were "GUILTY." He repeated similar remarks outside the courtroom to anyone that would listen.

The court was alerted the next day to the "guilty" outburst. Judge Wingate described the outburst as "improper behavior" and promptly declared a mistrial. The case has been reset for October of 2023.

Escum "Trey" Moore, III, Moore & Moore, for the plaintiff

Stephen Burchett, Jackson Kelly, Lexington defending

The judge's order on the mistrial is excerpted below:

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Published 8-22-2023

Title IX Blockbuster Lawsuit against the University of Kentucky tried before Judge Caldwell two weeks ago

Riley Gaines, a swimmer at the University of Kentucky tied for 5th at the NCAA championships in 2022 with a transgender swimmer, Lia Ford, from Penn. Gaines was incensed she shared her coveted 5th place title with a person she considered to masquerading as a woman. She then began a crusade to Save Women's Sports which led to legislation in Kentucky that prohibits transgender children (it was already not allowed at the high school level) from playing sports. The law, as far as anyone can tell, applies only to one transgender girl (Fisher Wells) who started a middle school field hockey team at her school. Fisher is admittedly terrible and the team was too. But Riley worked hard and now little Fisher can't play with her friends.

Riley (pictured in at the NCAA tournament with Lia) for her part has continued to Save Women's Sports which has led her on a crusade with far right-wing political figures including Herschel Walker and Donald Trump to stop other little transgender children from playing sports. While Riley was doing this, a class action of women at UK was actually doing something to advance the interests of women in sports.

The plaintiffs, all studentsat the University of Kentucky, sued and alleged UK's athletic department was not in compliance with Title IX because it lacked enough athletic opportunities for women. The plaintiffs wanted UK to add a lacrosse team or perhaps an equestrian team, horses being a big thing in Kentucky. UK said there just wasn't enough interest. Numerically it was conceded that UK has less varsity athletic opportunities available to men than women.

That is not the end of the story. A three-part test applies (see the opinion below) as to whether a university is in compliance. The three components are:
(1) Numerical proportion, i.e., the athletic opportunities should match the gender population (UK conceded it failed this part of the three-part test)

(2) A history and pattern of opportunity, and

(3) Full and effective accommodation of athletes in the interests of women.

The lawsuit proceeded to a bench trial over three days in Lexington before Judge Karen Caldwell (8-7, 8-8 and 8-9). The plaintiffs (representing a class of UK women) alleged the university failed the three-part test. UK argued the opposite. The case has been submitted to Judge Caldwell and an opinion is not expected before at least the end of November as her scheduling order permits the party to continue to supplement the record until that time. We have included a link to the trial memorandums as well as Judge Caldwell's opinion describing the three-part test.

Lori Bullock, Bailey Glaser, Des Moines, IA, leads the plaintiff's team

Bryan H. Beauman and Carmine G. Iaccarino, Sturgill Turner Barker & Moloney, Lexington represent UK

Documents from Niblock v. University of Kentucky

Plaintiff Trial Memorandum

Defense Trial Memorandum

Court Opinion Describing Applicable Three-Part Test

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Published 8-21-2023

Plaintiff complained of an L5-S1 disc protrusion and pinched nerve after a collision with a dump truck -- $90,230 verdict Friday in Louisville

A dump truck merged into the plaintiff's lane and forced him off the road. Plaintiff treated for an L5-S1 disc protrusion and complained of a pinched nerve. A Louisville jury found the defendant solely at fault and awarded the plaintiff his medical bills of $10,230 as claimed. That represented chiropractic care and two ESIs.

The past suffering was $30,000 and the plaintiff took $50,000 more for in the future. The verdict totaled $90,230, the pain and suffering multiplier for this disc injury being 7.82. Report coming in the September 2023 edition.

The plaintiff's Honda sedan after the collision

Adrian Mendiondo (pictured), Danielle Blandford and Paul Chumbley, Morgan & Morgan, Louisville for the plaintiff

Ashley K. Brown and James P. Freel, Ward Hocker & Thornton, Lexington defending

Judge Tracy Davis presiding

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Published 8-16-2023

Plaintiff suffered a knee injury in a very serious head-on crash -- he was cut out with the Jaws of Life - $261,520 verdict (as claimed) for plaintiff at trial

The plaintiff was struck head-on on River Road in Prospect. It was a very serious collision and the plaintiff (retired but working part-time as a florist) had to be cut out of the car with the Jaws of Life. He's treated for a fractured rib, broken kneecap and a torn meniscus. Fault was no issue.

The plaintiff's vehicle . . .

The plaintiff settled with the tortfeasor for $25,000 and sought UIM coverage above that floor. The jury deliberated just 8 minutes and awarded the plaintiff everything he sought. That was his lost wages of $11,520 and $250,000 for pain and suffering for a total of $261,520. Teh final judgment is expected to be for $228,059, representing the verdict less the underlying limits and a portion of lost wages paid by PIP.

There was also an interesting (and odd) issue preclusion summary judgment order by Judge Kaelin. The full verdict report will address that issue in more detail.

Cara Stigger and Kerstin Schuhmann, Kaufman & Stigger, Louisville for plaintiff

Bradley Harville, Louisville defending the UIM

Judge Julie Kaelin tried it

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Published 8-10-2023

$356,893 verdict (less 35% fault) where plaintiff crashed into a big white box truck (illegally parked) and sustained broken ribs and an SI joint injury                    $200,000 for pain and suffering

The defendant (a driver for All My Sons Moving) illegally parked a box truck on the side of the road. A big white one. The plaintiff didn't appreciate the truck and crashed into it. He sustained broken ribs (they healed in eight weeks) and a persistent SI joint injury.

Plaintiff sued and alleged negligence regarding the parked truck. All My Sons Moving replied it was a BIG. WHITE. TRUCK. And you should have seen it.

Jury in Louisville mixed on fault today. It was assessed 65% to All My Sons Moving and the remaining 35% to plaintiff. The damages totaled $356,893.

That represented the medicals of $56,893, $100,000 for future care and $200,000 for pain and suffering. The net (after apportionment) is $231,980.

The Verdict

Verdict coming in the September 2023 edition (27 KTCR 9).

Chauncey Hiestand (pictured) and Joseph Longmeyer, Winton & Hiestand, Louisville for the plaintiff

Barry A. Rudell, II, Markesberry & Richardson, Cincinnati, OH defending

Judge Jennifer Wilcox tried it.

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Published 8-8-2023

$2,768,996 trucking verdict in Pikeville on 8-4-23 -- Plaintiff crashed into a poorly lit trailer that blocked the roadway - $1.5 million in pain and suffering

It was a dark and lonely night on Ky 194 in Meta (Pike County). The defendant (a scrap metal operator) backed his tractor-trailer across the roadway. The trailer blocked the road. There was no ambient lighting and his trailer (it didn't look that good) had inadequate reflective tape and was not lit.
The defendant's truck trailer:

The plaintiff came upon the scene in his Ford F-150 and crashed hard into the trailer -- he wasn't wearing a seatbelt. The plaintiff didn't remember the impact and suffered very serious injuries, to his aorta, internal injuries, assorted fractures, lumbar injury, mild brain injury and was hospitalized several months. His medical bills were $1,015,996. The crash scene:

Plaintiff sued the trucker and prevailed at trial, the jury finding the defendant solely at fault. Plaintiff took $2,768,996 which included the medicals as claimed, $222,000 for in the future and $1.5 million for pain and suffering. The plaintiff's wife's consortium was rejected. The final measure of damages was punitive damages of $25,000.

Images of the plaintiff's truck:

There's a lot more to this one and we'll have it in the August 2023 edition of the Kentucky Trial Court Review.

And the details below if you're scoring at home:

William R. Johnson, Brittney N. Schaeffer and Julie A. Sharp-Johnson, Johnson Law Firm, Pikeville for plaintiff

T. Scott Sennett and Rhese D. McKenzie, Campbell Woods, Ashland defending

Judge Eddy Coleman called balls and strikes

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Published 8-7-2023

Defendant admitted fault in his Answer -- Prevails on liability at trial

There was an interesting verdict last week in Louisville. Plaintiff stopped at a crosswalk in front of Okolona Elementary. The defendant rear-ended him. It was a minor crash and the plaintiff didn't treat until two weeks later. He's since complained of a soft-tissue injury.

Plaintiff filed suit. The defendant admitted fault (in whole or in part) per the answer below. However at trial the defendant contested fault and suggested the plaintiff wasn't at a crosswalk and suddenly stopped. Plaintiff objected that fault was admitted in the answer (and in request for admissions) and that moreover, he should be able to cross-examine the defendant on that subject. 

The court permitted the liability defense and would not allow the cross-examination. Plaintiff took proof on this by avowel.

The jury returned a defense verdict on liability and didn't reach the plaintiff's duties, apportionment or damages. The plaintiff has promised an appeal on the admission of fault issues.

Richard Head for the plaintiff

Eric Rice and Daniel Gumm (Gumm and Rice) defending

Judge Melissa Bellows tried it

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Published 8-3-2023

You're the Cut and Paster for a Day! What was the pain and suffering verdict?

Yesterday we invited you, the reader, to be our Guest Cut and Paster. For one day you could do our job. In this case we asked what was the pain and suffering award? To refresh your memory, the set-up was this:
Plaintiff, nice lady, late 60s, rear-ended by a drunk driver. A hard hit. T-12 burst fracture. Hospitalized two weeks.
Rotator cuff injury too and resulting frozen shoulder.
Settled with drunk driver who had $250,000 limits. This is UIM against State Farm in Jefferson County. Verdict on 6-8-23.
Medicals are $127,826.

What was the pain and suffering we asked?
Picture of the Crash

The pain and suffering was $75,000. Thus this case ($150,000 total for the plaintiff) is below the floor of UIM coverage against the insurer.

The Verdict Form

Grover Cox for the plaintiff

Jared Downs (Boehl Stopher & Graves) defending

Judge Mitch Perry on the bench

Report coming in the August edition (27 KTCR 8).

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Published 7-31-2023

A new complaint alleges Norton Hospital turned away a young immigant patient at an immediate care -- he was asked for "his papers" -- the boy was delayed care for 28 minutes and died from a hypoxic event related to a ruptured appendix

Norton Hospital was in the news last week with a complaint alleging a monstrous course of care in treating a little boy who had a heart defect.

Norton is back this week. A new complaint alleges a teenage immigrant from Guatemala presented to a Norton immediate care center. When his older brother explained the teenager was very ill, the desk worker said the teenager would not receive care unless he had "his papers.
This led to a 28 minute delay in the teenager receiving care at another hospital. By that time the boy had already suffered a hypoxic injury related to a ruptured appendix and was pronounced.

The complaint alleged negligence by Norton in failing to treat the teenager, the cause of death allegedly being that he had brown skin and spoke broken English.

John K. Spalding and Alex R. White (Alex R. White, PLLC) Louisville filed the complaint

Vazquez v. Norton (link to the complaint)

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Published 7-28-2023

Plaintiff complained of a TBI after a right-of-way crash -- $45,000 verdict yesterday in Scott County which is  below the $50,000 floor of coverage

There was a UIM verdict in Georgetown that concluded yesterday. Plaintiff, a manager at a research facility at UK, complained of a TBI after a right-of-way collision. She settled with the tortfeasor for her $50,000 limits and sought UIM coverage (up to $250,000) from her carrier, CSAA General. Her only claimed damages were pain and suffering which were capped at $4,000,000. The medical bills were $41,592.

The insurer conceded fault and an injury -- it just contested the severity. The defense IME was Dr. Timothy Allen, Neuropsychiatry, Lexington.

The jury awarded the plaintiff $45,000 and failed to implicate the UIM floor of coverage and a defense judgment is expected.

The plaintiff's vehicle

Justin B. May and Lindsey C. Goetz, The Dixie Law Group, Louisville for the plaintiff

Ashley E. Brown and Jared M. Hudson, Ward Hocker & Thornton, Lexington defending

Kathryn Gabhart on the bench

The Jury Verdict

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Published 7-25-2023

Complaint in Jefferson County alleges monstrous and unconscionable behavior by hospital in end-of-live care for a child in need of a heart transplant

There was a remarkable complaint filed last week that makes truly astonishing claims. A little boy, Finnley McCullum, age 8, was born with a congenital heart defect. He underwent a heart transplant in August of 2022 but it failed within hours. Thereafter he relied on life-support for the next 8.5 months which included the use of a Berlin Heart -- it is a medical device that is a bridge until a transplant can be found. The boy also relied on dialysis, a tracheotomy and a ventilator. He was at Norton Hospital.

In April of 2023, the suit alleges, Norton informed the family that Finnley was no longer a candidate for a heart transplant. His parents (Sally and Christopher) were also informed that the hospital was going to remove life-saving treatment. The McCullums were given 24 hours to get a court order to stop the hospital. The McCullums felt pressured and manipulated by the tight and arbitrary deadline. They elected to spend the time with their child.

The hospital also failed to provide end-of-life care to Finnley. He was conscious and cognitively aware what was happening to him as the machines were shut down. His parents could do nothing but lie to him that everything was okay. It was not. He died a painful death and his parents grieved as they watched it happen. Their boy cried for help as he suffered intense pain for hours before he died.

His parents have sued (the complaint) and alleged two tortious counts against the hospital. They are, (1) negligent infliction of emotional distress, and (2) loss of consortium. They seek compensatory and punitive damages.

The allegations in the complaint reflect a monstrous and unconscionable course of conduct by the hospital. At the time of this post, the hospital had not yet answered the complaint.

Ann B. Oldfather and Benjamin F. Hachten (Oldfather Law Firm) Louisville are the attorneys for the plaintiff

Finnley McCullum (8/27/14 - 4/19/23)

McCullum v. Norton Healthcare (The Complaint)

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Published 7-24-2023

Positioning Injury (13-hour Whipple Surgery) Med Mal Tried in Lexington last week -- Defense verdict

The plaintiff underwent a 13-hour Whipple (pancreatic) surgery and when he awoke he had suffered median nerve injury that affected his elbow. The plaintiff sued the anesthesiologist and alleged a positioning error during the surgery led to the injury. The doctor replied that the plaintiff's were properly crossed on arm boards and that is sort of injury is an extremely rare complication.

A Lexington jury heard the proof last week and returned a unanimous verdict for the doctor. The only claimed damages were $1,000,000 for pain and suffering.

Escum L. Moore, III for the plaintiff

Melanie Marrs (pictured) and Tonya Rager (Kinkead & Stilz) defending

Judge Diane Minnifield presided

Report coming in the August 2023 edition of the Kentucky Trial Court Review -- Save 15% in the Online Store with code July2023 through the end of the month.

The Complete Jury Verdict

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Published 7-20-2023

Interesting "Adult Day Care" Verdict last Friday in Boone County

There was an interesting case that was tried last week. An adult woman with Downs (age 51) was on a field trip as a part of an adult day care. She fell exiting a transit bus and suffered a skull fracture and brain injury. There was proof this led to early onset dementia (this is common for Downs persons) and led to her decline.

The woman (she died after the suit was filed) alleged negligence by her daycare in failing to supervise her in exiting the bus and including having a spotter to help her on the steps. Day care replied the plaintiff could ambulate without assistance and used the steps on the bus many times. It also contested causation on the ongoing injury.

A Boone County jury heard the case last week and returned a 10-2 verdict on liability. The only claimed damages were pain and suffering which the instructions capped at $3,000,000. Full report coming in the August 2023 edition.

The verdict form describing the adult day care standard:

Ryan Turner, Dallas & Turner, Florence for the plaintiff

Mark E. Hammond (pictured below)and Rachel D. Dearmond, O’Bryan Brown & Toner, Louisville defending

Richard A. Brueggemann presided

Save 15% off anything in the Online Store (Expert Encyclopedia, Year in Review, Subscription) with code July2023 through the end of the month.

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Published 7-17-2023

Bonkers Nursing Home Med Mal from Whitley County -- Defense Verdict -- Five months post-trial the judge interrogated a juror and ordered a new trial

There was a bonkers post-trial result in Whitley County. The underlying case wasn't remarkable as far as nursing home neglect cases go. Elderly patient with dementia alleged global nursing home neglect. Her estate sought $60,000,000 in damages. A defense verdict was returned in January.

Stephen M. Garcia and Matthew M. Coman, Garcia & Artigliere, Louisville for the plaintiff

Mark E. Hammond and A Pete Pullen, O’Bryan Brown & Toner, Louisville and Wesley R. Tipton, Tipton & Tipton, Corbin defending.

Plaintiff moved for a new trial (it was wide-ranging) and alleged the jury was rigged (the foreperson was connected to the defense law firm) and yet another juror (it was an 8-4 count and she switched to make it 9-3) was pressured by the foreman and felt rushed.

The presiding Judge Dan Ballou (a self-described humble referee and pictured below) interrogated the pressured juror under oath five months after the trial. She indicated under oath she was pressured in the case, was stressed about her sick child the night before and her vote was not based on the evidence.

Judge Ballou concluded:
"This is not a fair trial. That's not a fair trial when you have a juror who does not make a decision based on the evidence."

In a barebones order Judge Ballou granted the new trial. Wow! 

Hillcrest has since moved to reconsider the New Trial Order (linked below) and that motion is pending. Full report in the July 2023 edition.

Subscribe to the Kentucky Trial Court Review (save 15% with the code July2023 at check-out)

Links to documents from Morgan v. Hillcrest . . .

Plaintiff's Motion for a New Trial

Defense Response to Motion for a New Trial

Defense Motion to Reconsider New Trial Order

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Published 7-13-2023

The July KTCR Preview -- 27 KTCR 7

The July edition is doozy and features some very interesting cases. A pedestrian got run over in the crosswalk and its a defense verdict. A nursing home med mal defense verdict was set aside because a juror (under oath five months after the trial) said she felt pressured.
Good stuff.

Subscribe to the KTCR - the issue is out in PDF tomorrow.

July 2023 edition preview

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Published 7-13-2023

$18,793 soft-tissue verdict yesterday in Louisville in a case involving a very minor rear-ender

The plaintiff was stopped at a red light (he's a taxi-driver) when he was rear-ended by the defendant. The crash was VERY minor and the visible was virtually invisible on the plaintiff's taxi.

Plaintiff went to the ER and complained of soft-tissue low-back pain. He then treated with a chiropractor.

The case was tried on damages and the plaintiff took medicals of $8,793 and $10,000 for pain and suffering for a total of $18,793. That represents a 1.13 injury multiplier.

Joseph Gaines and Nicholas Naiser for the plaintiff

Eric Rice and Daniel Gumm, Rice Gumm, defending

Judge Jessica Green was the umpire.

Save 15% in the Online Store with code July2023. Good on everything. A book. A subscription. Whatever. Runs until 7-31-23.

The plaintiff's vehicle

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Published 7-10-2023

$27,901 Auto Negligence/UIM verdict in Louisville fails to implicate $35,000 floor of UIM coverage

The defendant crossed the centerline on Brownsboro Road in Prospect and struck the plaintiff. The defendant was dead at the scene. The plaintiff, a businessman in his 50s has complained of a disc injury. The treating Dr. Mark Barrett confirmed the injury. The defense aggressively cross-examined Barrett about his medical lien.

Plaintiff settled with tortfeasor for her $24,500 of the $25,000 limits and sought UIM coverage. UIM carrier advanced the limits. Thus at trial plaintiff had to exceed $35,000 to implicate UIM coverage and $1,035,001 to exhaust it.

The jury awarded the medicals of $12,901 and $15,000 for pain and suffering. [The plaintiff claimed $1,000,000 for suffering.] The jury also rejected loss wages.

The $27,901 verdict failed to implicate the UIM coverage and a defense judgment is expected. The insurer will also get back the $24,500 it Coots-advanced.

Full Report in the July 2023 edition out next week.

The plaintiff's Jeep showing the damage to the wheels

David W. Son, The Son Law Firm, Louisville for the plaintiff

Steven B. Lowery, Reminger, Louisville for tortfeasor
Charles A. Walker and Cash Collins, Sewell & Neal, Louisville for UIM

Judge Melissa Bellows on the bench

The jury's verdict on damages

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Published 7-5-2023

$240,000 employment verdict last week in Frankfort -- High school teacher fired from the Kentucky School for the Deaf after making complaints

Last week a former language arts teacher at the Kentucky School for the Deaf (KSD) advanced to trial on retaliation counts. She had alleged the school didn't have enough deaf counselors to serve the students among other complaints. Despite her stellar record, the plaintiff's contract was not renewed. KSD's reasons for non-renewal were thin and bogus.

The plaintiff prevailed on KY 344 retaliation as well as on a whistleblower count at a Frankfort jury trial last week. She was awarded $55,000 in economic damages and $10,000 more for mental anguish. The lion's share of the $240,000 verdict was $175,000 in punitive damages.

Report coming in the July 2023 edition of the KTCR, 27 KTCR 7.

Portions of the jury verdict (it ran 18 pages in all)

JoEllen Combs (Brooks & McCombs) and Jeffrey Walther (Walther Gay & Mack) for the plaintiff

Ashley Lant and Todd Allen (Ky. Board of Education) defending the government

Judge Phillip Shepherd tried it

We've got some other news. This week we've got a little sale going on.

An annual subscription is just $299.00 (regular is $349.00) and the 2022 Year in Review is $379.00 versus $449.00. If your subscription is current . . .you can still take advantage and we'll simply advance your subscription a year. This is a good deal. It lasts all day if you're in the office on July 5th!

The Expert Encyclopedia (8th edition) is also brand new and you can order it here: (Expert Encyclopedia).

I hope everyone enjoyed a fun and safe 4th of July.

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Published 7-4-2023

Happy Fourth of July! -- Bonus Freedom Content!

Prominent Kentucky attorneys (Tad Thomas and Brian Jasper) recently tried a novel nursing home negligence in Seattle related to the beginnings of the corona outbreak in 2020 at a Kirkland, WA nursing home

In preparing the Federal Jury Verdict Reporter (a sister publication), we came across the case of Hamrick et al v.  Life Care Centers of America. It is extremely interesting. The two plaintiffs died of corona in March of 2020 at a Kirkland, WA nursing home. This was the initial outbreak in the U.S. and perhaps the first nursing home to be struck by the disease.

The estates sued the nursing home and alleged in the lead-up to corona going wild across the world, they should have appreciated an uptick in respiratory infections and instituted protocols to prevent the spread, even if the parameters of Covid-19 were not yet known. The nursing home replied that this was an unprecedented event, there was no federal guidance and no one knew of the dangers or what was to come.

A defense verdict was returned after a six-day trial.

What is interesting about this for purposes of Kentucky? The plaintiff's lawyers who brought this interesting and novel case are Kentuckians: Tad Thomas and Brian Jasper of the Thomas Law Offices in Prospect. They didn't win this one but they are serious lawyers with a record of winning large verdicts in consequential cases.

See Dreyfus v. Life Care Centers, 2:21-740, Washington Western District -- Seattle.

An excerpt from the defendant's trial brief is below.

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Published 6-30-2023

$50.5 million industrial death verdict returned in Louisville Thursday night

Joey Snyder was working at Kosmos Cement (for an independent contractor) in southern Jefferson County on 8-9-16 and making repairs on its load-out chute.  The chute allows Kosmos to load powdered cement onto barges in the Ohio River. Because of a multitude of maintenance and repair errors, the chute failed as Snyder was working and he suffered fatal injuries.

Snyder's estate targeted Kosmos for negligence and gross negligence and separately a products claim against the chute manufacturer, Pebco. The defendants denied fault and implicated both the decedent and his employer on a third-party claim.

The jury assessed fault 95% to Kosmos and 5% to Snyder. It exonerated Pebco and the third-party defendant.

The damages were enormous. $5,000,000 for Snyder's destruction, $1.5 million for pain and suffering (he asphyxiated) and $10,000,000 for his wife's consortium interest. Each of his children took $3,000,000 for their consortium interest. Finally the jury imposed punitive damages of $25 million, the raw verdict totaling $50,500,000.

Chadwick Gardner, Gardner Law, Louisville and Jeremiah Byrne, Frost Brown Todd, Louisville for the plaintiff (both pictured)

Richard Edwards, Boehl Stopher & Graves, Louisville and David Cooney, Fort Lauderdale, FL for Kosmos Cement

John Martin, Landrum & Shouse, Louisville for Pebco on products claim

Rookie Judge Tracy Davis presiding

A look at an excerpt from the plaintiff's trial memorandum and the  verdict form (partial damages, punitives, liability and apportionment)

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Published 6-28-2023

Late Breaking -- Judge David Hale has struck down part of SB 150 (the anti-transgender bill passed by the General Assembly) as it pertains to gender-affirming care

Today in a 15-page opinion, Judge David Hale (pictured) struck down portions of SB 150 (passed this year by the General Assembly and which targets transgender children) as it pertains to those children receiving gender-affirming medical care. The legislature was adamant (even in the face of the virtual entirety of the medical profession that this was a bad idea) that parents should not be able to provide gender-affirming care to their transgender children.

A set of plaintiffs (including the ACLU and Jane Does) targeted that lawsuit as unconstitutional. Judge Hale granted a preliminary injunction against the new law (it would go into effect Friday) and held it improperly singled out transgender children from receiving medically appropriate care. He noted the virtual entire body of medical evidence supported the use of gender-affirming care and that these treatments have a long history of being safe. The link to the opinion is below.

Attorney General Cameron has promised an appeal to ensure these children do not receive the medical care which their parents and doctors indicate they need. Members of the General Assembly have also called Judge Hale an Obama liberal.

Judge Hale's Opinion (15 pages in pdf)

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Live Look-in -- Breast cancer diagnosis case is happening now in Georgetown -- verdict expected Thursday

There is a med mal going on in Georgetown right now that began last week, Fryman v. Johnson et al, before Judge Gabhart. The plaintiff saw her PCP in October of 2014 who palpated a 2 mm lump in the plaintiff's breast. Plaintiff referred to a radiologist for an ultrasound and mammogram. Radiologist concludes it is a cyst. Plaintiff told to follow in six months.

Plaintiff does so in nine months (not six) and now the lump is 5.5 mm. Testing reveals cancer. Plaintiff had a mastectomy and other complications but has since been cancer free.

Plaintiff alleges her doctors erred in not further ruling out cancer at the initial ultrasound and mammogram, including a referral to a breast cancer specialist or a biopsy. Defendants reply they met the standard of care and they've also implicated the plaintiff's standard of care in not following within six months.

Verdict expected Thursday and look for a report in the July 2023 edition of the Kentucky Trial Court Review (subscribe at the link).

H. Philip Grossman and Frederick W. Moore, III, Grossman and Moore, Louisville for plaintiff

Clayton L. Robinson and Jonathan Weber, Robinson & Havens, Lexington for Johnson (Family Practice)

Benny C. Epling, II and Charles D. Aaron, Jr., Law Offices of Benny Epling, Lexington for Scalf (Radiology)

Judge Kathryn Gabhart on the bench

Read from the trial memorandums from the case . . .

Plaintiff Trial Memo

Defense (Scalf-radiology) Trial Memo

Defense (Johnson-PCP) Trial Memo

New this week from the KTCR:

The Expert Encyclopedia (8th edition) has been updated. Ships out in PDF this week. Print coming soon.

Order the Expert Encyclopedia

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Published 6-25-2023

Court of Appeals affirms a medicals ($12,302) no suffering in a case involving a contested rotator cuff injury

The plaintiff fell at a rental cabin in Burnside near Lake Cumberland and later treated for soft-tissue injuries as well as to her shoulder which resulted in a surgery. However she did not initially report shoulder pain. The defense contested the injury and suggested the case was attorney-created, the plaintiff consulting a lawyer after her ER visit.

A Somerset jury was mixed on fault in October 2021, assessing 70% to the defendant and the remainder to the plaintiff. Plaintiff took $12,302 in medical bills  but nothing for pain and suffering. The net verdict was $8,611.

Plaintiff moved for a new trial and argued among other things that the improper and salacious argument her case was "attorney-created" had deprived her of a fair trial. The motion was denied. The plaintiff appealed.

The Court of Appeals (Judge Combs writing and joined by McNeil and Taylor) in a non-published opinion affirmed at the rendition date on Friday. The court noted the injuries were vigorously contested and the defense was free to cast doubt on the credibility of the plaintiff's claim.

We have a link to our original verdict report below as well as the appellate opinion.

It is interesting the modern era that plaintiffs don't even make medicals-no suffering arguments anymore. That used to be the rule of thumb until the Miller v. Swift (42 S.W.3d 599 , Ky. 2001) revolution some 22 years ago.

Original KTCR Jury Verdict Report (KTCR Case No. 5939 -- 10-26-21 jury verdict)

The Court of Appeals opinion (external link -- rendered 6-23-2023)

Michael Johnson and Justin Noble (Law Office of David Johnson) Hazard for the appellant (plaintiff)

Bridget L. Dunaway, (Tooms Dunaway & Webster) London for appellee (defendant)

New this week:

The Expert Encyclopedia (8th edition) has been updated.

Order the Expert Encyclopedia

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Published 6-25-2023

Plaintiff, a high-schooler, suffered a broken leg when his teacher allowed him to drive a homemade motorcycle on the school's track -- the boy filed a lawsuit last week

The plaintiff, V.R.R., age 16 and the son of Kendra Reed, was a student at Fern Creek in the class of a teacher, Daniel Trahan. Trahan constructed a homemade motorcycle and permitted V.R.R. to ride it on the school's track. V.R.R. didn't have a learner's permit or a driver's license or any business at all driving a motorcycle of any kind.

The boy drove and the motorcycle on the track at Fern Creek. He crashed and broke his leg.

This week through his mother, V.R.R., has sued Trahan in his official and individual capacity. He is not still working at Fern Creek.

A. Nicholas Naiser (Naiser Law Office) Louisville filed the lawsuit last week. The complaint is below as is an image of the homemade motorcycle.

The Trahan Complaint

The homemade motorcycle and the football helmet

In other news, the Expert Encyclopedia (8th edition) is out this week.

Order the Expert Encyclopedia

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Published 6-23-2023

The Expert Encyclopedia (8th edition) and the first in four years is back

Good lawyers tell us the Expert Encyclopedia is the book they use the most. It's serious business and chronicles more than 20 years of expert appearances.

How is it organized? It has three parts. The first is the main expert index . . .

The second part is the index by expertise. Looking for say . . .Neo-Natology or Nephrology. Here is a sample . . .

The third part is the index by attorney. What experts has an attorney used?

The book is out next week. You can order it at the link below. Have a good weekend!

Order the Expert Encyclopedia

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Published 6-21-2023

The plaintiff lost at a UIM trial on causation regarding a knee injury -- the Supreme Court reversed at the June rendition date finding error in allowing a biomechanical engineer to discuss medical causation

The plaintiff complained of a knee injury after a relatively minor crash. She settled with the tortfeasor for his $50,000 limits and sought UIM coverage from her carrier. The insurer hired a biomechanics expert, David Porta, to contest the claimed injury. Porta testified both as to biomechanical issues and medical causation.

The case ended in a defense verdict on causation in November of 2019. The plaintiff appealed and cited among other things that the trial court erred in allowing Porta to discuss medical causation. The case made it to the Kentucky Supreme Court.

At the June rendition date the court reversed on the Porta testimony question finding he "impermissibly invaded the province of the physicians." A new trial was ordered. Justice Nickell authored the 5-1 opinion and was joined by Justices Bisig, Conley, Keller and Lambert. Justice VanMeter was not sitting.

Justice Thompson dissented that the error was harmless and in any event the testimony in question was elicited on cross-examination.

Supreme Court Opinion (External link) (Rendered 6-15-23)

Original Verdict Report (verdict returned 11-21-19)

Sandra M. Varellas, D. Todd Varellas and Preston Cahill, Varellas & Varellas, Lexington for the appellant (underlying plaintiff)

Ashley K. Brown and Graham D. Barth, Ward Hocker & Thornton, Lexington for the appellee (UIM carrier)

Lucy VanMeter was on the bench at trial

Relevant excerpt of the Supreme Court Opinion

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Published 6-19-23

Dog Attack/Fraztke Special

Holy Cow! Fratzke. You'd of thought that wasn't a thing in 2023 but it is. The insane genius of Fratzke is almost 25 years old!

Here's how it went down. The plaintiff riding his Harley on a rural road when a dog ran into the road. Plaintiff crashed and suffered an injury to his finger and road rash. He sued the dog's owner for failing to constrain him.

Then at trial . . .the plaintiff had not submitted CR 8.01(2) answers on pain and suffering. The court directed a verdict against him and thus the case went to the jury on medical bills only. Ouch.

And adding insult to injury the jury's verdict was for the defendants on liability.

Report coming in the June 2023 edition which is out first thing Wednesday.

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Published 6-6-23 

The June 2023 edition is almost finished -- Sneak peak

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Published 6-5-23 

ER/Hospital Med Mal in Harrodsburg -- Defense verdict

Factory worker, age 28, came to the ER in the middle of night with back pain. ER doctor diagnoses a strain and releases him within an hour. Plaintiff back to work and collapses soon thereafter. Plaintiff back to the ER by ambulance and does not survive a code. Death blamed on a cardiac event

Plaintiff alleges ER doctor and hospital staff fail to perform a complete exam and rule out all reasonable possible causes for his symptoms. It is also alleged hospital faked records and a spoliation instruction went to the jury.

Defense replied that plaintiff properly evaluated based on his presentation and death is caused by a sudden and unpredictable cardiac event.

Harrodsburg jury (Mercer Circuit Court) rejects the case on liability (5-31-23) and doesn't reach spoliation or damages.

Laraclay Parker and Alexandra DeMoss-Campbell, Golden Law Office, Lexington for plaintiff

Daniel Brown, Gazak Brow), Louisville for Sadek (ER Doctor)

Barbara J. Bowers and Joshua D. Johnson, Piper & Bowers, Lexington for Haggin Memorial Hospital

Benny Epling, Lexington, for Sadek's third-party employer on a bifurcated negligent credentialing claim

Judge Jeffrey Dotson behind the plate

Full report coming in the Kentucky Trial Court Review.

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Published 6-2-23 

$61,655 rotator cuff injury verdict this week in Morehead -- Medicals of $47,340 as claimed -- Pain and suffering was $10,000 

Plaintiff was riding with her mom when they were struck in a parking lot by a third-party. Plaintiff sustained a rotator cuff tear and it was surgically repaired three months later. Plaintiff's medicals were $47,340.

It was a complex journey but by trial, all that was left at trial was Plaintiff versus Mother and a secondary UIM against State Farm standing in the shoes of the third-party who had settled. State Farm $100,000 of UIM coverage available.

The jury split fault 50-50 between Mother and tortfeasors. The damages were the medicals, lost wages of $4,215 and $10,000 for pain and suffering, all totaling $61,555. [That's an anemic pain and suffering multiplier of .211.]

The final judgment will be reduced less comparative fault and PIP and assessed $25,777 to Mother and just $777 to State Farm. Why just $777 and not $25,777 as to the insurer? Plaintiff had settled with the third-party for $25,000.

Blake Nolan, Jarrod Bentley and Joseph Rugg from Morgan & Morgan for the plaintiff

John J. Ellis, Dehner & Ellis, Morehead for Mother

Robert B. Cetrulo, Cetrulo Mowery & Hicks, Edgewood for State Farm

Judge David Barber on the bench

Full report coming in the June 2023 edition of the Kentucky Trial Court Review. There's quite a bit more to the case, a summary judgment, a summary judgment that wasn't, amended complaints and well, lot's more.

The verdict form on damages

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Published 6-1-23 

Child Care Abuse Verdict in Jefferson County -- Provider taped a little girl's hands together for 41 minutes when she wouldn't settle down - $55,000 Verdict

Willa Colvin, age 4 and autistic, was at the Outer Loop Child Care (it's a daycare) and it became naptime. Willa was reluctant to go down and when her caregiver, Ramiah Douglas, came to her wits end, Douglas tied the girl's hands together with blue painter's tape for FORTY-ONE minutes. Douglas explained the girl had on a fluffy sweater and didn't think it would hurt.

The abuse (it was on video) was discovered. Douglas was promptly fired and pled guilty to felony charges. The little girl has since treated for PTSD and other emotional symptoms. A defense IME (Timothy Houchin, Psychiatry, Lexington) thought Willa had a good prognosis and should lead a happy life.

Willa sued Outer Loop and Douglas and advanced negligence and false imprisonment as to Douglas. It was a negligent training case against Outer Loop. Her only damages at trial were pain and suffering, capped at $5.5 million. The court directed a verdict on future medicals and there was a summary judgment on punitive damages.

There was a coverage detour in federal court along the way. The day care had a $1,000,000 policy and a $100,000 molestation rider. 

Verdict last Friday in Louisville: the jury found against both defendants and assessed fault 60% to Douglas and 40% to Outer Loop.

The damages? Willa's pain and suffering valued at $55,000. 

Full details (there is a lot more) will be in the June 2023 edition. You're subscribing right? Subscribe to the Kentucky Trial Court Review.

Jeffrey Sexton and John Byrnes, Louisville for the plaintiff

Rod Payne (Boehl Stopher & Graves), Louisville for Outer Loop Child Care

Matthew Cook (Kerrick Bachert), Bowling Green for Douglas

Rookie Judge Melissa Bellows gets her big league call-up

The jury verdict on liability (as to the tortfeasor) and the damages award

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Published 5-30-23 

Fatal Train Crossing Case Tried to a Jury Verdict in Grayson County

Phyllis Minton, age 63 and a long-time beloved math teacher in Grayson County approached a rural rail crossing. There was no lights or signal. Minton was struck by a Paducah & Louisville Railway train. Minton was killed instantly.

Her estate alleged the crossing was dangerous, poorly marked and the trainman had not sounded the horn. The estate sought Minton's destruction as well as her husband's consortium interest. They had been married 45 years at the time of her death.

The railroad countered that Minton failed to appreciate the train. There were significant pre-trial issues, (change of venue, removal, remand and motion for mistrial) that will be described in the full report in the June 2023 edition of the KTCR.

A Leitchfield jury returned a defense verdict on Friday for the railroad.

Timothy Gaardner, Kansas City, MO and Thomas Goff, Leitchfield for the plaintiff.

Miller Grumley and David Riley, Grumley Riley & Stewart, Paducah defending

Judge Bruce Butler presided.

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Published 5-25-23 

Glenna Bevin has filed for divorce from former Kentucky Governor Matt Bevin (2015-2019)

Former Kentucky First Lady Glenna Bevin has filed for divorce from Gov. Matt Bevin. They were married in 1996 and have nine children. The link is to her petition for divorce. Her attorney is Mark Dobbins of Dobbins Tilford Schmidt.

The Petition for Divorce

Published 5-19-23 

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Published 5-16-23 

Published 5-9-23 

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