Published 11-3-2022

$1,566,869 Mixed Products Liability (Crashworthiness)/Auto Negligence Verdict in Laurel County

The plaintiff suffered severe facial injuries (broken jaw, nose and teeth) as well as fractures to her hand after a head-on collision. The purported cause of the injury was a too-forceful airbag deployment in the plaintiff's Kia automobile.

Plaintiff sued Kia in Laurel County and advanced a products case to trial. Kia defended that airbag system was state of the art and the facial injuries were caused not by the airbag but rather the plaintiff's hand itself which was on the steering wheel. The plaintiff also sued the other driver.

Thus at trial there were several issues, (1) Was the Kia defective?, (2) What damages had the airbag caused to her face? (those were attributable to Kia if "yes" to the first, and (3) What were the damages to her hand, those being attributable to other driver only? This created an interesting causation dichotomy in the instructions. It was not contested at trial that the hand injuries were NOT related to the airbag deployment.

The jury found for the plaintiff on liability and found the facial damages were solely caused by the airbag. Those damages (against Kia only) were $1,211,197. The hand damages (against the other driver) were $355,671. The combined verdict was $1,566,869. See the verdict form below.

There have been two prior airbag deployment products verdicts in Kentucky. Both were defense verdicts, the first in 2000 involving a Toyota Corolla and a second in 2002 that concerned a Mercury sedan.

Full report coming in the monthly edition. Subscribe to the Kentucky Trial Court Review for the full details.

John Blevins and Brandon Baird of Baird Blevins & Lowe, Corbin for the plaintiff joined by lawyers from the Lexington, MO firm, Langdon & Emison

Anne Guillory, Dinsmore, Louisville and Derek Whitefield (Los Angeles) and Michael Carey (Minneapolis), both of Dykema Gossett for Kia

Ashley Hoover (Taylor Keller & Oswald) London for the tortfeasor

Judge Caperton called balls and strikes

The plaintiff's vehicle (2016 Kia Sorrento)

The verdict form on damages



Published 11-4-22
Judge Underwear permanently suspended today by Judicial Conduct Commission days after Supreme Court reinstated him

Judge James Jameson (Marshall/Calloway), known as Judge Underwear, has had quite a week. On Halloween the Supreme Court overturned his temporary suspension by the Judicial Conduct Commission. He was back on the bench the next day.

Today the Judicial Conduct Commission recommended his permanent removal from the bench because he is unfit. The opinion is at the link below.

Case Documents:

Order of Permanent Suspension

The order at page 39.

Published 11-8-22

$376,000 verdict in Louisville last night in hotel shower fall with a claimed TBI

The plaintiff was taking a shower in the Baymont Inn (a local hotel) when the tub suffered a sudden crack. This caused her to fall back and strike her head on the side of the tub. She has since complained of a mild traumatic brain injury. There was competing expert proof on the extent of the injury. A key defense expert, Dr. Timothy Allen, Psychiatry, Lexington, thought the TBI was possible, and if there was one at all (there probably wasn't), it resolved in 90 days.

The hotel admitted fault. Last night a Louisville jury awarded the plaintiff $76,000 in medicals and $300,000 more for pain and suffering. She had claimed $10,000,000 for her pain and suffering.

Plaintiff Trial Memo

Defense Trial Memo

The Jury Verdict

Nicholas Naiser Louisville for the plaintiff

Lisa Fauth and Guy Hughes (Casey Bailey & Maines), Lexington defending

Judge Jessica Green on the bench

The crack in the tub that led to the fall:

Published 11-10-22

Med Mal Defense Verdict in Bowling Green for Surgeon and Gastroenterologist

Plaintiff, age 67, died after a colon surgery. Her estate blamed her surgeon (Chambers) and a gastroenterologist (Tiwari) for attempting the risky and unnecessary surgery in light of her prior condition. The defendants denied fault.

After a trial that spanned two weeks, a defense verdict was returned yesterday in Bowling Green. I haven't seen the verdict but the docket sheet so indicates.

Report coming in the full issue.

Kevin P. Weis, Thomas Law Office, Louisville for the plaintiff

David Broderick (pictured), Broderick & Davenport, Bowling Green defending

Judge John R. Grise on the bench

Published 11-16-22

$21,310,887 Med Mal Verdict in Bowling Green

There was a $21,310,887 verdict in Bowling Green. Plaintiff, age 75, suffered sepsis after a bowel injury during a hernia surgery. The sepsis led to an optical injury and she is now blind. She blamed her surgeon for the initial injury and a second doctor (who was doing rounds) for failing to identify it sooner.

The jury awarded medicals of $1,310,887, $12,000,000 for plaintiff's suffering and $8,000,000 more for her husband's consortium interest.

What is interesting is the verdict was against the medical clinic alone which employed the doctors. It is even more complex as one of the doctor was not sued. Since the trial the defendants have argued there should have been apportionment between the doctors, among other errors. The doctor (the one sued) now has his own attorney. At the same time the plaintiff has moved to amend her complaint to allege bad faith against the insurer, State Volunteer Mutual.

All the motions are pending and a mediation is scheduled tomorrow, Judge Wilson and Mediator Pete Palmer conducting it.

Full report coming in the November 2022 edition. Subscribe to the KTCR.

Chad Gardner and John Grey (Gardner Law) Prospect for the plaintiff

Frank Hampton Moore, Jr., (Cole & Moore) Bowling Green defending

Judge Steven Wilson on the bench

The verdict:

Published 11-17-22

Urogynecological Med Mal Defense Verdict in Louisville

Secondary to a pelvic floor reconstruction the plaintiff's urogynecologist (Dr. Susan Tate) removed the plaintiff's fallopian tubes as a cancer mitigation issue. The plaintiff alleged the doctor didn't remove them all which led to leakage, an ovarian cyst and a second surgery. The doctor replied she removed of the fallopian tubes that were visible and to have done more would have been risky. She also contested causation.

The case was tried for four days to a Louisville jury. It was a unanimous verdict for the doctor.

Kenneth Baker for the plaintiff

Michael Dailey (pictured) and Joseph Klausing (O'Bryan Brown & Toner) defending

Judge Eric Haner was on the bench.

Subscribe to the KTCR for the full report coming in the November Issue



Published 11-17-22

$1.1 million personal injury settlement today on the third day of a jury trial in Jefferson County -- Plaintiff shot through the hand at a pawn shop

As a personal injury trial moved into its third day in Louisville, it settled for $1.1 million. The plaintiff was helping out a friend at a pawn shop (S.E. Davis Company, it's now defunct) in downtown Louisville. The boss asked the plaintiff to watch the store while he went to the bathroom.

A customer asked to see a gun. The plaintiff got it (a Glock 23) from behind the counter and was demonstrating it when it fired. The bullet fully went through the plaintiff's hand and caused nerve damage. Plaintiff has also complained of PTSD.

Plaintiff sued the pawn shop and alleged negligence in displaying a loaded gun. Plaintiff was prepared to seek punitive damages. Pawn shop sought to impose comparative fault on the plaintiff for violating the so-called universal rule of guns, i.e., assume they are loaded.

Case settled and the pawn shop paid $1.1 million.

Steve Romines (pictured) and Mark Weis (Romines Weis & Young) for the plaintiff

John G. McNeill, Landrum & Shouse, defending

Judge Annie O'Connell on the bench

Published 11-22-22

Thanksgiving Verdict Roundup!

Happy Thanksgiving all! We've got a quick verdict roundup and then it's turkey time. Let's go!

Most Recent

Last week there was a $586,000 FELA verdict in Louisville before Judge Gibson. Rail conductor suffered a broken ankle walking alongside a track. He blamed the fall on "large" ballast which is subject to rolling as opposed to smaller ballast. Verdict included $500,000 for pain and suffering.

There was also a med mal verdict in Boyd County, plaintiff alleging a nurse practitioner missed a PE in the ER. Tad Thomas for the plaintiff, Jeffrey Darling defended.

There is also a motorcycle versus car case (broken collarbone) that was tried in Woodford County. We're still waiting on the result. Kirsten Daniel for the plaintiff and Bradford Breeding defending.

The November 2022 edition is out too and it's a good one! Subscribe to the KTCR. It includes the $21 million med mal from Bowling Green, $525,000 UIM from Murray, Grave Disturbance trial from Hancock County, an interesting urogynecological med mal from Louisville and an interesting "wheelchair" tipping incident against a hospital in Prestonsburg.

Coming Soon

The December issue (26 KTCR 12) is loaded. Buckle up. It will include:

$750,000 Pike County podiatry med mal

$2.4 million Floyd County wrongful discharge against a local hospital

Defense verdict in Scott County surgical med mal

Defense verdict in Warren County surgical med mal

$1,211,197 products liability from Laurel County against Kia

$19,135,000 negligent security shooting case in Caldwell County against the local Elks Club

$22,815,000 defamation case against CSX from Greenup County

Published 11-23-22

Cut and Paste Wednesday

We're cutting and pasting around here in advance of Thanksgiving and we are looking to Lexington for an interesting result. By the way the 2022 KTCR Year in Review is now on sale and you can save 30% with the code "PasteStick" at check-out.

Order the 2022 Year in Review (25th Edition)

To the case . . .

The defendant pulled across busy Alumni Drive into the path of the plaintiff. Plaintiff was broadsided and then crashed into a tree as pictured. It was a hard hit. The plaintiff suffered broken ribs, a broken sternum and and other soft-tissue injuries.

A Lexington jury awarded the plaintiff (age 57 and a school custodian) $126,956. That represented medicals of $25,331, $60,000 for lost wages, $36,000 for pain and suffering and $5,625 more for his wife's consortium. The judgment was for $116,956 less PIP.

While this is a solid plaintiff's verdict, in light of the hard hit, the recent trend for plaintiffs and the quality of this plaintiff (hardworking grandpa), this one could have gone a little more sideways for the defense.

Kendra Rimbert and Megan Ziegman, Louisville for the plaintiff

Bradford L. Breeding and Megan F.H. Jordan, Brown & Breeding, London defending

Lucy VanMeter did the judging

The image below is of the plaintiff's vehicle



Published 11-27-22

$350,000 Whistleblower Verdict in Whitley County

The long-time accountant for the local utility in Corbin alleged she was fired in retaliation for opposing utility policy that reconnected business customers who were delinquent on their bills. The utility explained the accountant was let go because of poor customer service.

A Whitley County jury found for the plaintiff and awarded her damages of $350,000. The plaintiff has since sought attorney fees of $200,141 and those motions are pending.

Tyler Korus and Robert Roark for the plaintiff

John McNeill and Seth Fawns (Landrum & Shouse) defending

Judge Paul Winchester presided

Details coming in the December 2022 edition . . .



Published 11-28-22

Med Mal Monday -- Plaintiff (a few weeks post-partum) died of a pulmonary embolus -- her estate blamed a nurse practitioner in the ER

Plaintiff, a few weeks post-partum, presented to the ER at King's Daughters Medical Center with shortness of breathness and dizziness. She was suffering from a pulmonary embolus. The nurse practitioner in the ER suspected positional dizziness. She never considered a PE.

Plaintiff admitted by a hospitalist and two days later an angiogram showed the PE. While plaintiff being prepped she coded and died. The estate first settled with the hospitalist. The case was tried against the nurse practitioner alone regarding her care in the ER. Plaintiff alleged classic risk factors and signs of a PE present. Nurse Practitioner (LeRoy) denied fault and alleged her diagnosis was proper. She also noted 40 hours passed between ther ER presentation and the PE diagnosis, and if there was an error, the hospitalist (who managed her care that 40 hours) was more to blame.

A Boyd County jury was unanimous for the nurse practitioner and the plaintiff (husband and two young children each seeking $5,000,000 for their consortium interest) took nothing.

Report coming in the December 2022 edition. Subscribe to the KTCR

Case Documents:

Plaintiff Trial Memorandum

Tad Thomas and Brian Jasper, Thomas Law Offices, Louisville for plaintiff

Jeffrey Darling (pictured) and Carl Walter, Nichols Walter, Lexington defending

Judge George Davis presided

Published 12-5-22

Premises Liability verdict in Fayette County

The plaintiff had over a truss contractor in preparation for building a roof over an outdoor deck. In advance of the contractor coming over, homeowner cut a hole in the deck to determine how the footers would be placed.

The contractor and the homeowner looked around a bit and then the contractor walked backwards into the hole. He suffered a comminuted arm fracture and claimed a disc injury as well. Contractor sued the homeowner and alleged the premises were unsafe and he'd failed to warn him of the hazard. Plaintiff sought $500,000 for pain and suffering. Defendant implicated the plaintiff's own look-out.

A Lexington jury returned a defense verdict on liability for the homeowner last week and rejected the plaintiff's case.

Fred Peters and Rhey Mills for the plaintiff

Jane Higgins and Elizabeth Arrick (Casey Bailey & Maines) defending

Judge Lucy VanMeter presided

It's time to buy the 2022 KTCR Year in Review -- 25th edition. On sale in the store. . . use code 2022YIR to save 25% off in the online store.

The image is of Ms. Higgins (prevailing defense counsel) and the deck in question with the hole

Published 12-6-22

Med Mal Numbers for 2022 are in . . .

This is pretty interesting. I'm digging into the 2022 numbers as I've begun the KTCR Year in Review (25th edition).

There were 29 med mals this year in Kentucky that went to verdict. Plaintiffs prevailed in 12 of 29 for a 41.3% win rate.

That's the highest plaintiff win rate ever . . .and tops the highest previous from 1998 which was 32.7%. Wow. That also compares to the 25-year plaintiff win average of 22.2%. 41.3% versus 22.2%. 

And eight of those 12 plaintiff verdicts were $1,000,000 or more including the one below (the image) the $21,310,887 result from Warren County. Plaintiffs won more often and when they won, they won big. I'm not sure what that says just yet . . .but it says something.

All the details will be in the 2022 Year in Review. Order your copy now -- should be ready the first week of January.

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

Published 12-7-22

ER Med Mal trial underway in Bowling Green

Plaintiff suffered a bleed complication after a kidney biopsy. He turned to the hospital two days later with evidence of bleeding. He died the next day of a cardiac event. His estate blamed the ER doctor (upon the return to the hospital) for failing to intervene promptly in the so-called "window of opportunity" to manage the bleed and prevent the fatal event. Plaintiff settled with the nephrologist who purportedly caused the injury.

ER doctor replied that he appropriately managed the patient, has refuted the window of opportunity theory and contested causation.

Trial began Tuesday (12-6-22) in Bowling Green and is proceeding before Judge John Grise.

Edward Cooley, Ryan Robey and Nicole Iuliano (Cooley Iuliano Robey) for the plaintiff

Colleen Davis, Hayley Abbott and David Thompson (Phillips Parker) defending

Case Documents:

Complaint

Plaintiff Trial Memorandum

Defense Trial Memorandum

Published 12-8-22

Dispute over $13,000 of short-term benefits turns into a $7.125 million verdict after insurer (MetLife) fails to answer and a default is entered

Plaintiff worked at the Red Cross which funded a short-term (26 week) disability policy through MetLife. Plaintiff took disability for depression and was paid for 13 weeks. MetLife then got a medical review and cut him off.

Plaintiff sued (provided a courtesy copy to in-house counsel) and alleged bad faith among counts. MetLife FAILED TO ANSWER.

This led to a default judgment and a $6.4 million bench verdict on damages. This was set aside (and there was a trip to the Court of Appeals too) but as the case came to trial in Louisville, the only issue was damages and the imposition of punitive damages. The jury awarded the plaintiff $1.625 million for his emotional distress (in having his benefits taken away) and $5.5 million more in punitives for a total of $7.125 million. And it all started over $13,061 in short-term disability benefits.

MetLife has a JNOV motion pending.

Subscribe to the Kentucky Trial Court Review (link to online store) for all the details including the trial experts -- coming in the January 2023 edition.

December 2022 is out later this week.

Published 12-8-22

Judge Underwear will not go quietly into the night -- he's sued his judicial opponent and seeks to set aside the will of the voters

Judge Underwear (James Jameson -- Calloway/Marshall), removed by the Judicial Conduct Commission and then defeated by the voters, is not done. Yesterday he filed a lawsuit in Marshall Circuit Court that seeks declarative and injunctive relief and to set aside the election.

His opponent, Andrea Moore, defeated him by a 54-46% margin on election day.

The complaint is not efiled nor is there any attorney of record listed for Judge Underwear.

Update: We've got Judge Underwear's pro se lawsuit and oh boy, it's something:

Judge Underwear versus All Y'all

Published 12-9-22

Negligent Security Friday

Good negligent security verdict from Kenton County. Plaintiff in the midst of a psychotic episode and a 72-hold was ordered. She was belligerent and threatening to walk out of the hospital. A hospital security guard (a woman) restrained the woman. A few minutes later the woman complained of ankle pain. Her ankle was broken in the melee. She underwent a surgical repair.

Plaintiff sued and alleged a negligent security by the hospital security guard. Hospital defended that she acted reasonably deescalate the situation and to restrain the plaintiff.

Case tried four days in Covington. A juror got sick so 11 decided it. 11-0 for the hospital. Final judgment entered this week.

Peter Tripp and Meagan Tate (Lawrence & Associates, Ft. Mitchell) tried it

Ryan McLane (pic) and Olivia Keller (Dressman Benzinger LaVelle) defending

Judge Summe oversaw the action

Order the 2022 Year in Review (link to store)

It's time to the order the 2022 Year in Review (25th edition).

Published 12-12-12

Monday Potpourri

Updating the Med Mal Bowling Green trial -- Unusual $282,526 Auto Negligence/UIM/UM trial in Lexington

We're looking at two stories today. The first is to update the Med Mal in Bowling Green. We previewed it last Wednesday. The basic facts are:

Plaintiff suffered a bleed complication after a kidney biopsy. He turned to the hospital two days later with evidence of bleeding. He died the next day of a cardiac event. His estate blamed the ER doctor (upon the return to the hospital) for failing to intervene promptly in the so-called "window of opportunity" to manage the bleed and prevent the fatal event. Plaintiff settled with the nephrologist who purportedly caused the injury. ER doctor replied that he appropriately managed the patient, has refuted the window of opportunity theory and contested causation.

Rich v. Isaac, Warren Circuit Court

Complaint

What's going on with the case? The plaintiff finished their presentation of the case Friday. The defense starts their proof tomorrow and it is expected to go through the week. What's interesting is that the presiding Judge Grise fell ill during the trial. Judge Tyler Gill from Russellville was appointed and jumped in the case mid-trial.

___________________________________________________________________________________________________________________________

The second case is from Lexington. The plaintiff was injured in two car wrecks five months apart. She sued Driver 1 from the first crash. She also sued State Farm as Driver 2 didn't have insurance. Finally the plaintiff made a UIM claim as to the Driver 1. Plaintiff complained of chronic soft-tissue pain.
This set up interesting and long jury instructions (see below) where the jury was asked to apportion damages (they did it for each category of damages) between the two wrecks. 

The verdict came in Thursday night. All told the plaintiff took a total of $282,526 split between the two wrecks and thus the plaintiff will take damages against the first driver, recover on the UIM claim and the UM claim too. I don't think I've ever seen instructions like this or an Auto Negligence/UIM/UM case all at once.

Tortfeasor (Allstate) had $100,000 limits and plaintiff had State Farm for both a $50,000 UIM and a $50,000 UM.

Michael Cox (Cox Law) had the plaintiff. We're still working on the full report but the result will be published in the January 2023 edition.

Published 12-13-22

Med Mal Tuesday - Elderly patient falls in hospital recovering from hip replacement surgery and breaks her arm

It's all about Med Mal on Tuesday. You may have seen last week we previewed that plaintiffs won 12 of 29 med mals this year for a remarkable (and unprecedented 41.% win percentage! And eight of the 12 were $1,000,000 plus. That's some kind of a shift!

All the details will be in the 2022 Year in Review (25th edition). Order your copy now -- should be ready the first week of January.
Order the 2022 Year in Review (link to online store)

To the case . . .

Plaintiff, age 86, suffered a fall at home and broke her hip. She was taken to Norton Hospital where she underwent a hip replacement surgery. A few days later she got out of her hospital bed and fell. She broke her arm. There was proof this interfered with her ability to participate in her rehabilitation for her hip injury. She died of a stroke a few months later.

The woman's estate sued the hospital and alleged it had failed to appreciate the fall risk and protect her with either a bed alarm and/or a sitter, among other errors. It sought $500,000 for her pain and suffering. The hospital defended that the fall was not foreseeable, the plaintiff had not engaged in unsafe conduct and in fact was believed to not even be strong enough to get out of bed on her own.

Case tried four days before Judge Cunningham. It was a 9-3 verdict for the hospital.

The jury had asked two questions in deliberations about the standard of care as shown below.

Tad Thomas, Brian Jasper and Nick Thompson (Thomas Law Offices) for the plaintiff

Joseph Effinger and Matthew Piekarski (Phillips Parker) defended

Judge Charles Cunningham on the bench in what may be his last jury trial

Case report coming in the January edition.