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2021 Jan Feb Advocate Flipbook PDF
2021 Jan Feb Advocate
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The KENTUCKY JUSTICE ASSOCIATION
Richard Hay, Past President, presents the gavel to Rhonda Hatfield-Jeffers, KJA President 2021. January/February 2021 • Volume 49, Number 1
We fight for the fighters. For more information call us at 502-568-6100 or Submit for a quick quote at www.LMICK.com
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Volume 49, Number 1 January/February 2021 10602 Timberwood Circle, Suite 8 Louisville, Ky. 40223-5358 (502) 339-8890 Fax: (502) 339-1780 www.KentuckyJusticeAssociation.org Publisher Kentucky Justice Association Editors Jeff Adamson Scarlette Burton Kelty Mike Schafer Managing Editor Pat Edelen The members of the Kentucky Justice Association work to ensure that any person who is injured by the misconduct and negligence of others can get justice in the courtroom, even when taking on the most powerful interests. KJA Staff Maresa Fawns, Chief Executive Officer MTFawns@KentuckyJustice Association.org Monica Daley, Information Systems Manager MDaley@KentuckyJustice Association.org Pat Edelen, Publications Director PEdelen@KentuckyJustice Association.org Cheryl Guyton, Financial Manager CGuyton@KentuckyJustice Association.org Amy Preher, Director of Education APreher@KentuckyJustice Association.org Griffin Gillis, Public Affairs Coordinator GGillis@KentuckyJustice Association.org
Contents Goodbye 2020, Hello 2021! ................................................................................... 4 Rhonda Hatfield-Jeffers, KJA President We’re Here for You in 2021—Just Reach Out....................................................... 6 By Maresa Taylor Fawns, Chief Executive Officer Induction of 2020 KJA Board................................................................................. 7 Compensation to Business Owners for Lost Time............................................... 8 By Larry Hicks Sourcing and Maintaining a Diverse Workforce................................................ 10 By Falin McKenzie Why Protecting the Seventh Amendment Should Be a Conservative Priority...................................................................... 12 By Benjamin Hatchen KJA Welcomes New Members.............................................................................. 15 The Short-and Long-term Effects of TBI and CTE in Full Contact Sports...................................................................... 16 By Jordan Halperin Making a Difference Through Community Service While Building Your Practice............................................................................... 20 By Flora Templeton Stuart 2021 Friends of KJA.............................................................................................. 23 League of Justice............................................................................................ 24, 25 Kentucky Supreme Court and Court of Appeals Key Decisions for October and November 2020................................................ 26 By Scarlette Kelty
About the Cover: A gavel is usually presented to the incoming president by the outgoing president. As things had to be different this year, friends and colleagues of incoming president Rhonda Hatfield-Jeffers passed on good wishes and virtual gavels in short videos played during the ceremony. The real gavel was presented to Rhonda by her friend and mentor, Richard Hay, who lives nearby. The Advocate (USPS 017-946) is published bi-monthly by the Kentucky Justice Association, 10602 Timberwood Circle, Suite 8, Louisville, Ky. 40223-5358. The subscription rate of $125 is included in KJA membership dues. Periodical postage is paid at Louisville, KY. POSTMASTER: send address changes to The Advocate, 10602 Timberwood Circle, Suite 8, Louisville, Ky. 40223-5358. January/February 2021
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By Rhonda Hatfield-Jeffers, KJA President
Goodbye 2020, Hello 2021! Let’s Make This a Year of Unity for the Preservation of the 7th Amendment
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ho is happy to say goodbye to 2020? I know I sure am. Although the legal profession and judiciary quickly adapted to meetings, depositions, and hearings via Zoom, we faced a near halt in jury trials in 2020. Without jury trials, we often cannot effectively defend the 7th Amendment rights of our clients. However, 2021 is looking brighter with at least two viable vaccines on the horizon and promises of mass vaccination by next summer or fall. With these vaccines, better access to the courts and resumption of jury trials should be in tow. Like many of you, I am both hopeful and anxious about 2021. I am privileged by the opportunity to serve as the President of the Kentucky Justice Association in 2021. I am looking forward to seeing how each of our members will use their talents creatively to become even more effective in serving their clients in the coming year. I encourage each of you to think outside the box and to continue to communicate your suggestions to each other and the judiciary on how we may safely proceed with our clients’ cases—including jury trials. I am also looking forward to increasing the involvement of women and minorities in a meaningful way in KJA. We need to strive to be an organization whose consistency represents the diversity of our nation and to promote the practice of diversity, equity, and inclusion. As we look forward to the 2021 session, we face many unique challenges. What will it be like not to be able to walk down the halls in Frankfort interacting with legislators? When and how will we be notified of what is on the legislative agenda? Never fear, we have a super advocate for KJA and the 7th Amendment in Maresa Fawns. Maresa will be in Frankfort daily, if not physically, then virtually. Nathan Williams, Griffin Gillis, and KJA’s executive committee members will also be on hand daily to provide input and advocacy. Keep in mind, this is not the first time KJA has faced drastic change. KJA has demonstrated the ability to be flex-
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ible and adapt to change. Over the past few years, KJA has seen sweeping change in the legislature’s consistency and has remained relevant because our issues are not partisan. They deal with preserving basic constitutional rights that should be important to each citizen, regardless of party. KJA has formed solid relationships and bonds with legislators in both parties—not in small part—due to Maresa’s efforts and foresight.
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o, I give you a challenge and a charge. Remember that each of you is important to our association, and your efforts, regardless of what part of the commonwealth you are from, are crucial to our success in protecting the 7th Amendment and the right to trial by jury. We especially need our members in the rural areas to step up and become more involved. Considering the great divide that is occurring in our nation between urban and rural America, we can no longer rely so heavily on urban attorneys to advocate for the preservation of our practices—we must rise to the call. Most of legislative leadership is from rural Kentucky, so we especially need those of you who practice in rural Kentucky to reach out to your legislators, bend their ears, develope relationships with them, so when important legislation is coming down the pipeline, you can be a resource to them on how it will affect their constituents and advocate for the preservation of the 7th Amendment. Don’t rely on others to preserve your practice and your client’s right to trial by jury. Do your part and take action. I’ll leave you with a quote from the late Supreme Court Justice Ruth Bader Ginsburg, “Fight for the things that you care about, but do it in a way that will lead others to join you.” Let’s all do our part to lessen the divide in our country, to find common ground so that we can fight together for the preservation of the 7th Amendment for all.
Did you miss any of KJA’s seminars? We Have the Solution.
Board of Governors Executive Committee President: Rhonda Hatfield-Jeffers, Somerset President Elect: Robert Mattingly, Louisville Vice President: Paul Kelley, Louisville Secretary: Jay R. Vaughn, Louisville Treasurer: Vacant Immediate Past President: Penny Unkraut Hendy, Ft. Wright
District Vice Presidents First District: Jeffery Roberts, Murray Second District: Matthew McGill, Bowling Green Third District: Bruce Bentley, London Fourth District: Scarlette Kelty, Louisville; Mike Schafer, Louisville; Jared Smith, Louisville Fifth District: Jay Prather, Lexington; Christopher Goode, Lexington Sixth District: Sarah Emery, Ft. Wright; Jennifer Lawrence, Covington Seventh District: Will Wilhoit, Grayson
AAJ Governors Kevin Monsour, Louisville Jennifer Moore, Louisville Will Nefzger, Louisville * Joe Satterley, Louisville AAJ Past President * Peter Perlman, Lexington AAJ Delegates * Penny Unkraut Hendy, Ft. Wright Jared Smith, Louisville Chandrika Srinivasan, Louisville AAJ Vice President Tad Thomas, Louisville
Governors-at-Large
Buy the materials and audio and Zoom video conference files. It’s the next best thing to being there. “The Experts seminar was the single best seminar that I have been to in years, maybe even 10 years.” — Daniel Dotson Download the speaker materials and audio files at: http://bit.ly/KJASeminarMaterials (This is a safe shortcut to the
KJA store.)
John Abaray, Louisville David H. Abney II, Frankfort Jeff W. Adamson, Louisville Lonita K Baker, Louisville * Deedra Benthall, Danville * Richard M. Breen, Louisville Gregory J. Bubalo, Louisville Kevin C. Burke, Louisville * Andre Busald, Florence Natasha Camenisch Little, Madisonville * Vanessa Cantley, Louisville * Paul A. Casi, II, Louisville Lisa E. Circeo, Lexington Tony Colyer, Louisville * A.V. Conway II, Hartford Nicholas Craddock, Louisville * Steve D. Downey, Bowling Green Katherine Ann Dunnington, Louisville * William R. Garmer, Lexington * J.T. Gilbert, Richmond Seth A. Gladstein, Louisville Michael D. Grabhorn, Louisville Abby Rhodes Green, Louisville Wilson W. Greene, Louisville * H. Philip Grossman, Louisville * Michael R. Hance, Louisville * Richard W. Hay, Somerset * Sheila Hiestand, Louisville Jonathan B. Hollan, Lexington Travis Leon Holtrey, Owensboro Stacy Hullett Ivey, Bowling Green
* Ronald E. Johnson Jr., Fort Wright William R. Johnson, Pikeville * William J. Kathman, Florence Justin May, Louisville Chad McCoy, Bardstown Bryan Meader, Louisville * Charles E. Moore, Morganfield Frederick Moore III, Louisville * Douglas H. Morris II, Louisville * Gregg Y. Neal, Shelbyville Ann B. Oldfather, Louisville Hans G. Poppe Jr., Louisville Jessica Powell, Cincinnati Rhett Ramsey, Monticello * Richard M. Rawdon Jr., Georgetown Kelly Reeves, Louisville Kevin J. Renfro, Louisville Christopher Rhoads, Owensboro * Jerry P. Rhoads, Madisonville Taylor K. Richard, Louisville Justin Sanders, Louisville * Gary Schaaf, Paducah * Liz J. Shepherd, Louisville Kathleen Coffey Thompson, Louisville * Tyler Smyth Thompson, Louisville James Ryan Turner, Florence Kevin P. Weis, Louisville Nathan D. Williams, Campbellsville * Indicates Past President
January/February 2021
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By Maresa Taylor Fawns, Chief Executive Officer
We’re Here for You in 2021—Just Reach Out
Corey Fannin It was a sad Christmas day in 2020 as we learned that Corey Fannin, KJA’s Treasurer, was no longer with us. Corey began joining our Executive Committee conference calls in August to prepare himself for his new role starting in December. Corey was quiet, taking everything in and learning from others on the Executive Committee. From the tributes I’ve seen, I’m so sorry I didn’t have the chance to get to know Corey better. Normally, we have an Executive Committee retreat in August where that would have happened. Because of COVID, we did the retreat through Zoom, and it just wasn’t the same. Corey was funny. Several said he made their sides split every day. It was clear that Corey was smart—“the smartest person in the room.” I am sorry for his wife, Liz, and their two boys, Henry and Owen. I send my sincere condolences out to them and the lawyers and staff at Circeo Fannin. If you would like to contribute to a fund set up for Corey’s family, ask us for the link or send a check to KJA with Fannin family in the subject line. It was clear that Corey was loved by many, and we will miss him. Legislature The 2021 General Assembly started on January 5 and the legislature immediately began passing bills. This is the “short” session of 30 days. We will keep you up to date on
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what is happening each week. COVID immunity appears to be the biggest issue at this point in the Session. Among other bills introduced was a bill to put a constitutional amendment on the ballot allowing the legislature to limit damages and a bill to abolish the collateral source rule. Please stay alert to our Legislative Updates so you can contact your legislators at a moment’s notice. Your lobbying staff cannot be in the Capitol due to COVID restrictions, and your calls may become more important than ever over the coming weeks. Friends of KJA We certainly can’t forget to thank our Friends of KJA sponsors who provide many valuable services to you and also support KJA. Thank you to all who returned for another year. We welcome some new “Friends” this year: Case Status, Page Medical-Legal Consulting, Smart Advocate, and The Solutions Team. A list of sponsors and their contact information is on page 23. Please check them out. CLE The KJA Seminar Committee planned a great lineup this year to get your continuing education (as well as credits for same). See page 15 for details. We will conduct the spring seminars via Webinar/Zoom, but expect to hold the Convention this coming September in Nashville. Won’t it be nice to see one another in person? As always, feel free to reach out to me with your concerns, your ideas, or if you need anything. We are here to serve you and your clients, and are always open to new ideas you may have. Thank you.
Induction of 2021 KJA Board
The Finis Price Outstanding Board Member of the Year to Kevin Weis.
As in most 2020 meetings, the KJA annual board meeting and induction of officers ceremony were held virtually. The screenshot below shows some of the members during the swearing-in ceremony conducted by Justice Debra Lambert.
Extraordinary Service Award to KJA Past President, Deedra Benthall.
Extraordinary Service Award to KJA Past President, Gregg Neal.
Penny Hendy, KJA President 2020.
January/February 2021
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By Larry Hicks
Compensation to Business Owners for Lost Time
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sually, in personal injury cases, there is a claim for “lost wages.”1 The jury instruction itself is titled “Loss of Time.”2 These terms are considered synonymous and refer to temporary lost earning capacity.3 But understanding the difference between “lost wages” and “lost time” can be important when the plaintiff is a business owner. Lost time is the actual claim, and it is usually called “lost wages” because the damage typically is wages missed due to absence from work. But you can have a temporary loss of earning capacity and have no lost wages, particularly if the plaintiff is a business owner. In such a case, the loss is the loss of time, not lost wages. When the owner or partial owner of a business is injured, he may continue to receive a share of the profits of the company and may even continue to receive a salary. In this instance, the exact nature of the loss of time claim becomes important. If the plaintiff did not work at his business, but still received a salary or profits from the business, it may seem that there are no “lost wages.” The plaintiff’s company may have had expenses to replace the services of the plaintiff to the company, but the loss incurred by the company is not the plaintiff’s loss. It is the company’s loss. And the company has no claim against the defendant for lost profits in the usual scenario.4 The plaintiff cannot claim the company’s loss, assuming that the company is a corporation or an LLC. This is true even if the plaintiff owns the entire company.5 And the company can’t claim the loss, even if it is made a party to the case.6 This is when it makes a difference that the real claim is loss of time and not lost wages. Since the plaintiff actually loses time to earn money when she is incapacitated by an injury, there will always be a claim, in spite of continued salary or receipt of company profits. The time lost causes compensation to be due. The question then is the value of the lost time. In lost wages cases, it is usually fairly straightforward; if the plaintiff misses a week of work, the plaintiff misses a paycheck. The 8
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amount of the paycheck missed is the value of the lost wage claim. But the paycheck is not actually being replaced, it is just a measure of the value of the time lost. In fact, if one is underemployed at the time of the incident, she is entitled to compensation in excess of the normal weekly wage.7 And if the plaintiff is unemployed at the time of the incident, and can prove it, she is still entitled to the value of her lost time.8 The principles above come into play when the plaintiff owns all or part of a business. Then the distinction between the company’s loss versus the plaintiff’s loss is important in determining what proof is necessary and what instructions are proper. The arguments in the case of Chesapeake and O. Ry. Co. v. Shanks, 86 S.W.2d 128 (Ky. 1935), illustrate how these matters may be litigated in a typical case. Mr. Shanks was injured in a railroad crossing collision. He and his father were owners and partners in a farm. The evidence was that he was incapacitated for four months and he would have made $75 per month farming during that time. He also testified that the market value of his services as a farmer was $75 per month. The jury awarded $300, and the defendant appealed.
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he railroad’s argument on appeal shows why a full understanding of the law on lost time is important for plaintiff’s attorneys. The defense argued that the $75 per month would include the profits from the farm and that was not recoverable. That argument is true as far as it goes. The company’s losses are not recoverable, first of all because the company is not a party, and even if it were, businesses’ losses are not recoverable by a shareholder of a business.9 At first blush, this would seem to be a compelling argument. But the argument misses the point: plaintiffs who own businesses are entitled to compensation for their own lost time, not the company’s lost profits.10 The Court first noted that workers at a fixed wage have a very straightforward claim, the time missed multiplied by the rate of their wage. But the Court said that a business
owner may submit proof of “…his occupation or profession, its nature and extent, his ability to engage therein, and the antecedent pecuniary rewards for his personal skill and services…”11 It further stated these facts are not admitted as a “measure of damages but to aid the jury in estimating a fair and just compensation for being prevented by the injury from engaging in or prosecuting such business or work.”12 The plaintiff’s testimony had two parts. He testified that he lost $75 per month on his farm and that the fair market value of his services was $75 per month.The Court of Appeals found that the fair market value testimony properly supported the instructions and the award of $300 for lost time, without trying to figure out if his actual loss at his farm was simply the value of his time or if it also included some profits. A similar defense argument was presented in Schulz v. Chadwell.13 In that case, the plaintiff owned a restaurant with her daughter and continued to receive a share of profits during her convalescence. The defense claimed that the plaintiff would have a double recovery if she got her profits and received compensation for the time away from the business. The Court found that the damages are the value of the services plaintiff would have provided to her business. In determining that value, payments made to the plaintiff would only be relevant if they tended to show that the value of services was minimal.In other words, that the company did just as well without the services.14 In this particular case, the business paid the daughter additional compensation for the extra work she did while the mother was incapacitated, and the court concluded that the lost time award was appropriate.15 By making a claim for lost time, plaintiffs who own businesses can get compensation based upon the value of
the time they could not perform business activities, even if they still received company profits or a salary during their time away from work. The proof of the value could be the replacement services cost the company paid or the market rate for the plaintiff’s services, taking into account his skill and experience. And the claim would be the plaintiff’s claim, not the company’s. — Larry Hicks is a partner at Cetrulo, Mowery & Hicks in Northern Kentucky. He has been representing injured clients since 1984 and has been a KJA member since 2001. _______________ 1 Kentucky Instructions to Juries, Fifth Edition, Sec. 39.07 by William S. Cooper and John S. Palmore, revised by Donald Cetrulo. 2 Id.
3 William S. Haynes, Kentucky Jurisprudence, Torts, Sec. 30-15(e) (1987). 4 The exception being in cases where the circumstances of the incident cause the loss to the company to be foreseeable. See Edward F. Heimbrock v. Marine Sales and Service, Inc., 766 S.W.2d 70, 72, (Ky.App., 1989). 5 Turner v Andrew, 413 S.W.3d 272 (Ky. 2013). 6 Edward F. Heimbrock, 766 S.W.2d at 72. 7 Andler v. Clear Channel Broadcasting, Inc., 670 F.3d 717, 727(6th cir. 2012) (applying Ohio law); see also, 29 Am. Jur. Proof of Facts 3d 259 (originally published in 1995).. 8 William S. Haynes, Kentucky Jurisprudence: Torts, Sec. 30-15(e) (1987). 9 Turner, 413 S.W.3d at 276. 10 Schulz v Chadwell, 558 S.W.2d 183 (Ky. App. 1977). 11 Chesapeake and O. Ry. Co. v. Shanks, 86 S.W.2d 128, 130 (Ky. 1935) 12 Id. 13 Schulz, 558 S.W.2d at 186. 14 Id at 186, 187. 15 Id at 187.
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By Falin McKenzie
Sourcing and Maintaining a Diverse Workforce The Why and the How—A Practical Guide for Law Firms
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n 2019, I took an enormous career jump by moving from a small firm in Louisville to a much larger firm in Washington. One of the first cases I worked on in my current role was not one that a brand-new hire would typically be involved in but, it turned out, I was the only person of 125 employees who could speak to the relative size and general operation of a 90 horsepower John Deere 6230; and in fact, had a photo of one in my phone with my dad and daughter in it, for size comparison. (See photo at right.) The visual was helpful for the mediator to get an understanding of the facts of the case. That clarity of scale and understanding of operation helped my team secure a $200,000 settlement at mediation. This is an example of diverse backgrounds being helpful on a legal team. Did GLP hire me because I knew about farming equipment? I would think not, but it turned out to be pretty helpful. This is the kind of benefit that comes from having a staff with diverse backgrounds. Varied perspectives aren’t the only benefit to a diverse workplace. Research tells us that diversity of teams leads to more innovation, higher morale, and more creative problem solving.1 Whether you are looking to increase your knowledge of farm equipment or you just need some more perspectives, this article discusses some practical steps and guidance for sourcing great talent and limiting expensive turnover. Recruiting Where are you looking when you start a candidate search? If you are like most firms, the first thing you do is ask around. You ask for an internal referral, you send out an email to your network, or you post on LinkedIn. “I am looking for a bright, hard-working paralegal to join my team. Must have 3-5 years of probate experience and be a team player.” Does that sound familiar? Maybe the next thing you do is post the job online. Maybe you use LinkedIn, Indeed, or the job board at your local university or bar association. You gather resumes for a few weeks and call your favorite ones to come in for an in-person interview. 10 The Advocate
If your goal is to find the best person for the job with an eye toward diversity, then the first change you can make to your recruiting practice is to source candidates from diverse places. The right person for the job may not have your network, and in fact, sourcing from your network may perpetuate lack of diversity. The right person for the job may not know people who are in the industry either because they are a first-generation college graduate, they are from out of state, or they didn’t spend much time networking because they were raising children, caring for parents, or working full time in their first career while their cohorts were meeting new people. Consider using an outside party that specializes in sourcing diverse candidates or working with a recruiter who specializes in that space. Alternatively, you can seek to post at schools that are in diverse geographies or on job boards that attract diverse candidates.You should not feel limited to the state or city in which your firm is headquartered. Additionally, you can include in your job descriptions that you value and promote diversity at your firm. You may also consider offering workplace flexibility. Flexible hours are attractive to working parents. Flexible office arrangements may alleviate long commute times to downtown office locations, which are often correlated with more diverse neighborhoods. Lastly, evaluate and recognize your own “pedigree bias.” Ask yourself if you prefer to hire people whose parents are lawyers, people who went to a certain school, or people who live within a certain distance of your firm. Language Matters The language of your job posting matters. Look carefully at the language you use to source candidates. Women and minorities tend to selfselect out if they do not check 100 percent of the listed boxes. If you list a skill or qualification in your job posting, be sure that skill or qualification is actually a requirement. If it is a preference, identify it as such, or better yet, remove it completely.
As you prepare to interview candidates, evaluate your procedures for selection. Do you have a written policy that indicates to interviewers how they should rank or prefer candidates? Do you have unwritten policies? Your process for selecting candidates from a pool of interviewees should address all of the required job skills as well as “intangibles” such as kindness, empathy, and willingness to ask for help. I find behavioral-based-interview questions to be the most useful in my practice.2 The best indicator of future behavior is past behavior. As an added bonus, you get a sneak peek into your candidate’s ability to engage in storytelling. The more subjective the criteria, however, the more prone it is for unconscious bias to creep in. Find mechanisms to build into your processes to check for bias and train your interviewers. Carefully vet your job descriptions, review your hiring practices, and create initiatives around removing unconscious bias from your practices. Often it is difficult to self diagnose where bias is infused in your practices. Get feedback from your staff and consider hiring outside auditing resources. Retention Great job! You hired a fantastic candidate! Now what? Building a diverse and inclusive workforce is meaningless if you cannot retain your talent. Not only do you want to keep your candidates for continuity of service, but turnover is expensive. The number one way to keep your talent is to train them. People like to be good at what they are doing. People like to feel competent and valued. You must onboard your new employee and immediately connect them with a mentor. Post onboarding, consider other strategies to support retention of diverse candidates:
This photo of a 90 horsepower John Deere 6230 was used to show relative size in a mediation. • Take steps to minimize unconscious bias. Evaluate the language you and others in your firm use both in written communications and in verbal ones. • Measure and reward: Make maintaining a diverse workforce a measurable expectation for management teams. • Support and work with affinity and diversity-based groups. • Communicate, communicate, communicate. Have frequent one-onone check ins to reinforce training and expectations both of and from the employee. Be proactive about concerns that come up in these communications. Diversity and inclusion is a journey. It is not a percentage, it is not a quota, it is using processes free from bias against (or for) any particular group. Whether that group is men, women or University of Kentucky graduates. Diversity and inclusion do not get accomplished by check the box training or putting out a mission statement. It is done by investing in reviewing your practices and policies, training, and
implementing conscious choices to alter the status quo. Candidates from diverse backgrounds can mean gender differences, racial differences, socioeconomic differences, cultural differences, age differences, and a host of other differences.The more diversity that makes up your team, the more perspectives you have to draw from. Not only will varied perspectives help you build the absolute best case for your client, it helps you connect with your jury. If these outcomes sound appealing to you, but you still don’t know where to start, that’s okay! Most firms are not expert in this area. If you want to learn more or hire an expert to help you devise and execute a plan, check out these resources: The Conscious Inclusion Company (https://www.theconsciousinclusioncompany.com/). They help develop initiatives in the diversity space for law firms, implement trainings, review job descriptions, help source diverse employees, and much more. This website has a phenomenal collection of resources and articles, https://drjohnsullivan.com/. — Falin McKenzie is an Associate Attorney for GLP Attorneys, PS. Inc., the largest plaintiff’s firm in the State of Washington. Falin is licensed in Washington and in Kentucky. In her current role, Falin is a fierce advocate for her clients as well as advising the firm on probate matters. _______________ 1 7 Studies That Prove the Value of Diversity in the Workplace (capterra.com). 2 More information about behavioral based interview methods can be found at https://www.thebalancecareers.com/. I recommend giving your candidates a heads up about your interview process so they may prepare.
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By Benjamin Hatchen
Why Protecting the Seventh Amendment Should Be a Conservative Priority
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lthough one would think the right to a civil jury trial would have widespread bipartisan support, this issue, like many others in today’s hyperpolarized political climate, is marked by staunch division along partisan lines. Although there are some exceptions, the unfortunate political reality is that conservatives—generally known for supporting individual liberty and limited government—coalesced with tort reform advocates on several occasions to erode and undermine the Seventh Amendment and her state corollaries, which are designed to protect an American’s right to a trial before a civil jury of their fellow citizens. As a conservative myself, I contend that the right to a civil jury trial not only aligns well with conservative principles, but also, that protecting this right should be a key priority for conservative legislators and judges. In this article, I touch on the points I believe conservatives will find most persuasive, and I suggest that it is time to rethink the conservative allegiance to unlimited and unbounded tort reform that can sometimes protect big business or big government at the expense of the individual. Jury trials protect and preserve individual liberties from invasion by powerful interests, including the State. At the top of any conservative priority list is preserving individual liberties from State encroachment. To that end, conservatives remain vigilant for any government action that infringes on historically embedded constitutional rights, such as the First Amendment’s right to freedom of association or the Fifth (and Fourteenth) Amendment’s rights to due process under the law. The Seventh Amendment should be treated no differently: the history of this important right makes clear the Founders viewed it as fundamental to rule of law and the American way of life. The American justice system’s emphasis on jury trial rights traces its roots back to before the nation’s founding. Even before the American Revolution, colonists—still British subjects at the time—declared that a “[t]rial by jury is the inherent and invaluable right of every British subject 12 The Advocate
in these colonies.” After facing repeated restrictions on the right to a jury trial in the colonies by English administrators, the demand for jury trials, understood as a vital check against a tyrannical government, featured preeminently in the Declaration of Independence. It is no stretch to say that the colonists went to war to protect their access to jury trials. Following the Revolution, the Founding Fathers recognized the need to protect individual freedoms from invasion by powerful interests. Hence came the Bill of Rights, the first ten constitutional amendments that guarantee personal freedoms vis-à-vis the government. It is in this foundational list of individual rights that the Seventh Amendment of the United States Constitution finds its home. At its core, the Seventh Amendment and related state laws aim to protect individuals against powerful interests. Tort reform—particularly arbitrary caps on damages that bind the hands of jurors and shield the government and corporations from being held fully responsible for their conduct—is fundamentally opposed to the Founders’ vision of robust constitutional protection for individual jury trial rights enshrined in the Bill of Rights and in many state constitutions. The Founders understood that without the codification of a clear and unmistakable individual right to a civil jury trial and the vigilant preservation of this right, private citizens would be largely unable to hold the government and big corporations accountable for their wrongdoing. We conservatives would do well to heed their timeless wisdom. Not only should conservative legislators restrain from the systematic erosion of common law tort remedies, but likeminded jurists should also remain on the lookout for legislative overreach into the province and purview of the civil jury trial system as the ultimate guardian of individual liberties. Jury trials are the smallest form of government. Most people would agree the United States government was at least founded on the principle of federalism—the idea that the federal government should exercise only its enumerated powers and that almost all remaining government activity is reserved to states and localities via the
Tenth Amendment. Today’s advocates of federalism, generally conservatives, maintain this undergirding principle should, as a normative ideal, still be the primary driver of how American government operates—that as a composition of fifty states with diverse interests, the citizens of a given locality know better what their community needs than politicians in Washington, D.C. Put differently, federalists assert that the more local the government action, the better the results. Whether or not one agrees with this ideological framework, the implication is clear: conservatives should openly embrace jury trials, the smallest and most local form of government. There is something uniquely intimate about two or more citizens taking their dispute in front of a small group of their community peers for consensus adjudication. Indeed, there is arguably nothing more democratic than jury deliberations, in which a group of Americans with different beliefs and values must reach agreement on an issue affecting members of their community. It is difficult to imagine this process—private citizens unencumbered by special interest groups reaching a consensus—playing out in any other setting today. One might even reasonably take the position that preserving jury trials is pivotal to preserving democracy itself. Regardless of whether one takes the argument that far, the uniquely democratic nature of jury trials is undeniable. Conservatives, as staunch defenders of federalism and local rule, should recognize this fact and seek to preserve the civil jury trial system from legislative attack.
tem is the best way a civilized society can hold individuals and corporations (treated as “citizens” in other areas of law) accountable for the full extent of harm their wrongdoing causes others. Anything short of full accountability shifts the burden from the wrongdoer to the wronged and even to the taxpayer, both of whom must now foot the bill for someone else’s misconduct. In this vein, it is easy to see how legislatively imposed caps on damages merely encourage more misconduct by allowing wrongdoers to escape responsibility for their harmful actions, an outcome I doubt many conservatives would eagerly support. Not only do jury trials hold wrongdoers accountable for their own actions, they encourage everyone in society to act in a more personally responsible manner. Given the public nature of trial proceedings and any surrounding
media attention, private citizens are made aware of the consequences for acting irresponsibly. Assuming people wish to avoid being sued themselves, we can reasonably expect them to act more responsibly, thus increasing the overall level of personal responsibility in society—what should be a major positive for conservatives. Jury trials are an efficient form of free market regulation. Conservatives generally disavow excessive governmental regulation of corporate behavior, particularly the overbroad regulations that create market inefficiencies, perverse incentives, and unintended consequences. And many conservatives argue that regulations often fail to change corporate behavior, either because they are inadContinued on following page
Jury trials encourage personal responsibility. The principle of personal accountability is often lauded in conservative circles—a principle at the very heart of jury trials. The civil jury trial sysJanuary/February 2021
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Protecting the Seventh Continued from page 13 equately enforced or because the cost of behavioral change from the corporate perspective outweighs the monetary penalties for violating the regulation. Both of these arguments against regulations should, in fact, weigh in favor of jury trials. Jury trials are an efficient, marketdriven solution to correcting and ultimately preventing corporate misconduct.Whereas broad, industry-wide regulations can impose significant costs on those companies already acting appropriately, lawsuits are narrowly focused endeavors that hone in on a specific behavior of a specific wrongdoer. When this wrongful behavior is acknowledged by a jury as such and their verdict is substantial, the atfault party is incentivized to change their behavior in a very targeted way. And this behavior change reduces the deadweight loss on society from both preventable injuries and overbroad regulations. As a matter of principles, conservatives should thus view jury trials as a major win for policing corporate misconduct, while avoiding the out-ofcontrol kudzu-growth of an unelected bureaucracy. What, then, do we make of the frequent rallying cry by some conservative politicians and corporate lobbyists that tort reform is “good for business”? I find no empirical data to suggest tort reform leads to any sort of economic growth. And businesses themselves do not appear to have much concern at all about the cost or frequency of lawsuits. According to the National Federation of Independent Business’s 2020 small business survey, small business owners rated this issue near the bottom (69 out of 75) in the list of possible small business concerns.5 At its heart, this 14 The Advocate
idea that businesses are heavily scrutinizing a state’s tort law before deciding whether or not to conduct business there seems to be merely a creature of political speak—one that conservatives should see past. In sum, conservative principles are entirely in line with the right to civil jury trials, and we should all fight tooth and nail for the preservation of this fundamentally important right.There is no time like the present to rethink past alliances and commit to making civil justice a legislative and judicial priority. — Ben Hachten is an associate at Oldfather Law Firm and a recent graduate of The Ohio State University Moritz College of Law. He may be reached at bhachten@ oldfather.com.
_______________ 1 https://www.miamiherald.com/news/ state/article1961331.html; https:// thehill.com/policy/healthcare/273965gop-committee-halts-tort-reform-billafter-conservative-backlash. 2 Journal of the First (of the American Colonies, in the Opposition to the Tyrannical Acts of the British Parliament), New York (1845) at 27-29. 3 Eric Grant, A Revolutionary View of the Seventh Amendment, and the Just Compensation Clause, 91 Nw. U. L. Rev. 144, 155-6 (1996). 4 Eisenberg, Theodore, The Empirical Effects of Tort Reform (April 1, 2012). Research Handbook on the Economics of Torts, Forthcoming; Cornell Legal Studies Research Paper No. 12-26. Available at SSRN: http://ssrn.com/ abstract=2032740. 5 https://assets.nfib.com/nfibcom/NFIBProblems-and-Priorities-2020.pdf.
Talk to us about LEGAL MALPRACTICE And learn why lawyers throughout Kentucky refer their legal Malpractice cases to William F. McMurry and Associates
Building referral relationships based on confidence and trust.
William F. McMurry is Board Certified
as a Legal Malpractice Trial Specialist
By the American Board of Professional Liability Attorneys (ABPLA.org) The ABPLA is accredited by the ABA to certify specialist in the field of Legal malpractice — SCR 3.130(7.40)
Email [email protected] Call 502-326-9000 William F. McMurry will personally handle each case while some services may be provided by others.
KJA Welcomes New Members as of January 7, 2021 Attorneys Megan Adkins Circeo Fannin, PSC Lexington, Ky. G. Trenton Burns Aguiar Injury Lawyers PLLC Louisville, Ky. Matthew Dusing Law Offices of Shannon C. Smith Covington, Ky.
Sandra Freeburger Deitz Shields & Freeburger, LLP Henderson, Ky.
Andrew Weeks Lawrence & Lawrence, PLLC Louisville, Ky.
Ashlea Nicole Hellmann Fernandez Haynes & Moloney PLLC Louisville, Ky.
Law Student
Keith A. Stonecipher Jr. Louisville, Ky.
Legal Support Daryl C. Osborne The Law Office of David H. Abney Frankfort, Ky.
Philip Taliaferro, IV Taliaferro Law, PLLC Covington, Ky.
Date
Scott Coleman Cox Jr. Louisville, Ky.
Chair
Subject of Seminar
Friday, April 16
Wilson Greene
Experts
Wednesday, April 21
Jay Prather
Ethics
Friday, April 23
Abby Green
Litigation Skills and Civil Rules
Friday, May 7
Jay Vaughn
Invisible Injuries
Friday, June 4
Hans Poppe
Trucking
Thursday, June 10 and Friday, June 11 Thursday, June 24
Jon Hollan
Auto
Richard Hay
Insurance Claims Handling
Wednesday, June 30
Lindsay Cordes
Technology
Wednesday, September 22 to Friday, September 24
Rhonda Hatfield-Jeffers
Annual Convention
January/February 2021
15
By Jordan Halperin
The Short-and Long-term Effects of TBI and CTE in Full Contact Sports Chronology of TBI and CTE When a person is struck in the head, the force of the blow to the skull and the brain tucked inside may result in what is known as a traumatic brain injury (TBI). TBIs can occur from any number of activities and incidents, including vehicular crashes, assaults, and full contact sports. Athletes participating in many sports, particularly contact sports such as football, hockey, and soccer, are consistently exposed to hard hits to their heads. There is an extended history of athletes, both professional and amateur, who have experienced such material injuries. While efforts continue to reduce the number and severity of TBIs in sports through advanced helmet technology and rule changes, these injuries still occur at frightening levels. At the time of impact, these injuries are damaging to the brain and skull and may additionally cause long-term damage on the brain. In particular, Chronic Traumatic Encephalopathy (CTE) is often diagnosed, which is caused by repeated head traumas. CTE is characterized by long-lasting, intense alterations of the function and structure of the brain. The occurrence of CTE and its effects and severity are highly variable. While there is much to be learned about CTE, it is believed that this variability may be due to genetics, lifestyle, and other factors. Some of our childhood sports heroes suffered after their professional careers ended due to the repeated brain trauma they experienced in their playing days. Football players have been most notably identified as being hugely affected after they move past the gridiron. These athletes may endure hundreds of thousands of head traumas over the course of their careers. The head traumas themselves do not necessarily need to be dramatically jarring, and even seemingly non-violent blows to the head have an effect when occurring with frequency. For example, one study suggested that a football player can be subjected to around ten unique head traumas during one individual game. A 2017 article published in The New York Times titled “110 NFL Brains” cited a study conducted by a neuropa16 The Advocate
thologist who examined the brains of 111 deceased NFL players. Amazingly, 110 of them were found to have CTE. While the sample of brains examined in the study were subject to some selection bias, there is no doubt that retired athletes are experiencing the symptoms of CTE in large numbers. At present, CTE can only be formally diagnosed as part of an autopsy but it can be suspected based on symptoms that one is exhibiting. Lawsuits, past and present, tie to the causation and liabilities related to TBI and CTE injuries that have befallen athletes. At High Impact LLC, we have extensive experience in reviewing brain scans, both healthy and damaged, and have been called upon by attorneys from around the country to create visual representations that clearly show the danger and seriousness of traumatic brain injuries to varied audiences.
A Healthy Brain A healthy brain is pictured above, showing a simplified version of all the structural components. The healthy brain has good, age-appropriate gyri-folds within it. The grey and white matter differentiation is apparent, and the ventricles are normal in size. Grey matter has numerous functions in the brain including cleaning the brain of excess chemicals and transporting glucose. Tau proteins, which naturally exist
Traumatic Brain Injury: Hemorrhage
Brain as Injuries Evolve Over Time
in the brain, are connected to brain cells to allow for communication within the brain. The image above is reflective of a brain following a significant impact—the initial stage of first-time brain trauma. This brain shows extra-axial (outside the brain) and intraaxial (inside the brain) hemorrhages. It also includes scattered contusions. There is increased intra-cranial pressure and brain swelling evidenced by the compressed ventricle. Some of the physical symptoms that one may experience following a TBI include loss of consciousness, vomiting, loss of coordination, headaches, seizures, infections, altered
cognitive abilities, profound confusion, and weakness in extremities. The next image in the series shown above, is reflective of a brain injury that has evolved over time. There are hemorrhagic contusions throughout the brain, and there is increased intra-cranial pressure and brain swelling indicated by the compressed ventricle and loss of sulci. Frequently, the brain injury evolves days after the initial trauma. Continued on following page
Be Part of the 7th Amendment Team Your contributions, when combined with others, allows your voice to be heard. Help KJA’s legislative efforts to keep the 7th Amendment safe and your clients’ access to the courts open by donating today. “I give to KJA’s political efforts because we have to show strength to protect the 7th Amendment. Our nonpartisan issue requires political participation on both sides of the aisle.” — Tyler Thompson
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TBI and CTE in Full Contact Sports Continued from previous page
Brain After Multiple Injuries: CTE Progression This last image, above, illustrating CTE, shows decreased brain volume and atrophy demonstrated by the enlarged ventricles and the continued loss of sulci. The grey and white matter junction is less distinct and shows thinning of the cortex. The elements of CTE are exhibited by all of those that are afflicted with the disease, but the presentation and degree of CTE varies by subject. Symptoms of CTE These symptoms vary from person to person, however there are some common issues that someone with CTE may suffer: • Short-term memory loss • Mood swings, including anxiety, depression, and severe frustration • Difficulty focusing • Disorientation and confusion (long-term: dementia) • Future progression of CTE can result in long-term cognitive and behavioral deficits including severe memory loss, muscle tremors, and slurred speech. Demonstrating TBI and CTE Damages in Legal Proceedings Based on the nature of the case, the way it is being presented, and the preferences of the presenting attorney, High Impact has collaborated on and designed countless custom visual solutions for attorneys across North America, highlighting the effects of TBI and CTE. These examples may be made available in hard copy (hand-outs or large boards) and/ or digital form. The digital solutions are often animated for increased understanding. As part of a collaborative consulta18 The Advocate
tion, High Impact can be sure the resulting visual solution is developed cohesively with the rest of one’s legal materials. Recent projects developed by High Impact frequently include what is referred to as a Brain Injury Animation Series. This animation paints a clear picture of everything an audience might need to know about the mechanism of TBI, as most people have little or no familiarity with the severity of these injuries. Other animated solutions that have been successfully applied by High Impact clients in TBI cases include these deliverables: Diagnostic Slice Chooser An interactive self-contained software solution that enables the presenter to break down the depth and magnitude of physical brain damage. The “slices” shown allow an audience to see the effects of the damage at all levels of the brain. 3D Brain Map An animated representation of an individual’s physical damages which associates those injuries with the neuropsychological deficits they are experiencing and may expect to experience for the duration of their lives as a result. Mechanism of Injury An animation showing how the damages occurred for purposes of showing causation and liability. High Impact has available on their blog a representative example of this in football, showing how a single hit between two football players results in damage to the brain.
High Impact’s team of visual strategists, artists, and developers can build and customize your digital presentation for any case involving personal injury, medical malpractice, birth trauma—or any subject involving complex information. For more information, please visit www.highimpact. com or call (800) 749-2184. Jordan Halperin is the CEO of High Impact LLC, where he — is focused on guiding the leading visual litigation service provider to new heights. As both a leader of investor-led businesses and as a middle-market Private Equity executive, Jordan has helped develop innovative client-focused solutions that have resulted in repeated massive growth. His passion for visual solutions has resulted in his being sought as an adviser and lecturer on effective communication messaging to varied audiences.
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The Kentucky Justice Association stands for excellence in trial advocacy and for the protection of individual rights through the civil justice system. KJA stands for you and for your commitment to the quality of legal education in Kentucky. The best in Continuing Legal Education KJA members receive discounts on outstanding seminars, chaired and taught by the finest practitioners and speakers from around the state and across the country. Now you can earn CLE anytime, anywhere at www. KentuckyJusticeAssociation.org.
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Invaluable professional services Defense Medical Expert research (included withmembership), Focus Groups, Amicus Curiae Committee, Case Advisory Panels, Document Bank, Thousands of searchable documents and briefs are online through a link to TrialSmith, Free access to large meeting rooms at KJA’s headquarters is available for members.
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19
Making a Difference Through Community Service While Building Your Practice By Flora Templeton Stuart
M
aking a difference in the lives of others, particularly my clients, has been the cornerstone of my practice. I attended law school as a single mother in a male-dominated field. Upon graduating from law school in 1976, I became the first female attorney in my hometown of Bowling Green, where I began the long road of building my own practice. During that time, I used several opportunities to make a difference for others, establishing my reputation as an attorney who cares about her clients and community. Community Service Offer Pro Bono Services A great way to develop a practice is to offer free consultations in a broad spectrum of legal services. In my first few years of practice, I accepted cases without charge. This was a win-win because it gave the clients legal services and gave me the experience I needed. One day, a young woman named Marla Pitchford sought my help when she had been turned away by numerous attorneys because she couldn’t afford to pay to defend herself in a criminal trial. I accepted the case, which brought me national and international recognition with appearances on Good Morning America and Phil Donahue. Additionally, Ms. Pitchford was acquitted, and the Court appointed me to serve as a Public Advocate. I served as Public Advocate in Warren County for several years before launching my private practice where I represent clients facing the death penalty. Because of my work as a public defender, my reputation spread throughout the community. Run for Office Early in my career, I put my hat in the ring in a run for U.S. Senate. Following my unsuccessful Senate campaign— which was anticipated—I ran for the City Commission. The experience brought me into the community, knocking on doors and meeting hundreds of people. It was then that I realized my true passion was in community service. So, I transformed my practice in order to focus on personal injury. 20 The Advocate
Join Charitable Organizations Contributing to charitable groups is rewarding and provides the opportunity to meet community leaders and expand your opportunities for service. Over the years, I received many awards that have afforded me the opportunity to make important connections. I served as a past president of the local Lions club, as a past president of a local youth theater, and I currently serve as Vice-Chair of the International Center of Kentucky. Leadership and active participation are critical in developing a reputation of service and allow you to meet people with common interests and goals. Create Fundraiser Events Music can also be a way to make connections. I sing in my church choir and enjoy the violin. My yearly fundraiser, “Band Together BG,” brings musicians together to raise funds for various charities. For example, we have raised thousands of dollars for local school safety, school supplies, and hurricane relief. Currently, our law firm is partnering with our local CBS/NBC stations and food banks to distribute food to needy families. Be a Leader… Be a Founder Throughout the years, my law firm has been the founder of numerous community organizations including a 501c charity, BG On Stage, where we performed for hundreds of teachers and kids throughout our ten-county region. Recently BG On Stage merged with SKYPac, our local performing arts center, bringing theater arts to schools and youth throughout south central Kentucky. Create a Community Mascot Perhaps the most successful outreach our firm has done recently has been my creation of “Poppy,” our raccoon mascot. Poppy can be seen at events at schools, festivals, parades, and charitable events. Poppy is popular with kids in the community. His wife, Pixie, recently joined our team. With Covid, we launched the “Poppy Wave Parade” January/February 2021
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where Poppy and members of my law firm deliver much-needed food and supplies to first responders and local charities. We are invited to neighborhoods for the “Poppy Wave Parade” through our social media and website link. With “Poppy’s Random Act of Kindness” you never know where he may “pop” up. He may pay for your donuts in the drive through or drop off food to a nursing home. This has been highly successful and loads of fun! Recognize Local Heroes and Schools My law firm created several sponsorships with local television and radio stations to recognize heroes in our community who have made a difference in the lives of others. These include “Flora’s Hidden Heroes,” “Poppy’s Teacher of the Month,” and “Positive People.”These programs are running at this time on television and radio. Lecture and Publish As a former teacher, I frequent schools, libraries, and events to give lectures about constitutional law. As an attorney, I have also published in books and magazines. Recently, I was invited to speak by the Marine Corps, a major sponsor of Toys for Tots.
From left, Poppy, Flora Templeton Stuart, Kent Brown and Pixie in front of their tent at a music event in which they participated. Media The Law Firm of Flora Templeton Stuart is known throughout the ten-county region for our passionate service to community. For more than forty-four years, I’ve used television, radio, newspaper, the internet, and social media to enhance this reputation. With “Poppy Field Trip” each week, Poppy, the local ABC, and I station recognize schools throughout the region for leadership.We travel to schools to meet with
teachers, students, and parents. More recently, we created “Poppy’s Teacher of the Month” where we recognize teachers for exceptional service. “Poppy’s Wave Parade” became part of the news on local television stations along with radio stations. The purpose of “Poppy’s Wave Parade” is to serve the community but it also resulted in recognition for our firm. Do not wait Continued on following page
January/February 2021
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Making a Difference Continued from previous page for a local television or radio station to contact you about a sponsorship—create one of your own by making a difference in the lives of others. Office Tent Having a tent with your office logo gives you the opportunity to take part in festivals, music events, and parades. At our tent we give away toys, ID Kits for parents, and sign up people on our Facebook page. We serve hot chocolate and donuts on holidays. Staff participates with our branded shirts and our tent serves as an advertisement for our practice while making a difference in our community. Occasionally, we loan our tent to charitable organizations,
22 The Advocate
which gives us a presence at their events. Social Media Our law firm is active on Facebook and Twitter with regular posts such as “Throwback Thursdays” where we post interesting stories about our past. These personal stories and community activities have helped grow our social media following. Satellite Offices As the reputation of my law firm grew with my visits to schools, festivals, and events, I have been successfully opening satellite offices in these communities. Being well known throughout the region afforded me the opportunity to put my shingle out. Our satellite offices are primarily for meeting clients when they call.
Community service for me has evolved naturally as I have been active since childhood making a difference in the world around me. Further, with my background as a single parent working her way through law school on food stamps, I understand the struggles of the clients in my personal injury practice. Giving back to my community has not only been rewarding, but I am often hired by clients because of my reputation for service. I can now use my personal injury practice to impact my community. What better way to build a personal injury practice while serving a greater need? — Flora Templeton Stuart is dedicated to making a difference in the lives of others. She may be reached at florat@florastuart. com or florastuart.com.
2021 FRIENDS OF KJA These supporters of KJA provide many different services for the legal profession. Please consider them when you need one of these services.
PLATINUM SPONSOR
SILVER SPONSORS (CONTINUED)
RINGLER ASSOCIATES
Ric Perez • (866) 821-6108 • [email protected] • www.strategiccapital.com
Cindy Chanley • (502) 569-9339 • Louisville Brad Cecil • (502) 499-2086 • Louisville Gayle Christen • (859) 581-3709 • Covington www.RinglerAssociates.com
At Ringler, we utilize a well-rounded portfolio of settlement solution products and services so that we may offer the best options to protect and secure, whatever the future may hold – for your clients and for you. Our goal is to maximize wealth and deliver peace-of-mind. Please call upon your Kentucky Ringler teams, captained by Gayle, Cindy and Brad.
STRATEGIC CAPITAL Strategic Capital works with attorneys and financial professionals to help clients deal responsibly with unanticipated financial situations, after the settlement. Strategic Capital purchases structured settlement payments and other future payments to provide liquidity and flexibility when needed most.
ZIPLIENS Nathan Parkey • (502) 890-7705 • [email protected] Cost-effective subrogation solutions — Teaming up with plaintiff attorneys nationwide to even the subrogation battle for injured claimants.
BRONZE SPONSORS APTIVA HEALTH
2021 Friends of KJA DIAMOND SPONSOR LAWYERS MUTUAL OF KENTUCKY Angela Edwards • [email protected] Jane Broadwater Long • [email protected] (502) 568-6100
Lawyers Mutual Insurance Company of Kentucky provides legal professional liability insurance to practicing Kentucky lawyers. The Board of Directors is composed exclusively of practicing Kentucky lawyers, and the company is run by Kentucky lawyers. Lawyers Mutual is the only malpractice provider available in Kentucky approved by KJA, the KBA and the LBA.
Eric Lowe • (502) 509-7529 • [email protected] • www.aptivahealth.com Aptiva Health is a physician-owned multi-specialty group focusing on the treatment and rehabilitation of acute onset injuries.
CASE STATUS James Davidson • 717-413-6474 • [email protected] • www.casestatus.com We help lawyers spend their time and resources where they want to. How do we do this? We streamline client updates and automate touchpoints through a mobile app branded with your firm logo and colors. We reduce your time managing clients, so you can focus on being a lawyer.
DONAN Emily Faith, JD • 800-482-5611,1156 • www.donan.com Donan provides conclusive, unbiased and accurate forensic investigation services with the fastest turnaround time and best customer service in the industry.
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PHYSICIAN LIFE CARE PLANNING
HIGH IMPACT LLC
Michael Cox (866) 888-7352 • www.PhysicianLCP.com
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Certified Physician Life Care Planners, with requisite capacity to independently formulate and independently defend recommendations for on going future medical care requirements and opinions on life expectancy.
The nation’s premier provider of legal animations, medical illustrations, demonstrative exhibits and interactive presentations.
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David Prater (800) 410-0656 www.counselorcapital.com
FHF provides expert human factors and engineering services nationwide.
David Fulton • (317) 228-9080 • www.i-r.com Image Resources, Inc. is an Emmy® award-winning legal video company focusing on the video needs of law firms. We pioneered the production of Settlement Documentaries and Day-in-the-Life presentations, and have strategically influenced the recovery for plaintiffs across the country.
KENTUCKIANA COURT REPORTERS
Counselor Capital, LLC offers a variety of services to help you grow your practice and maximize its profitability. We can assist your firm in a variety of way: with legal expense financing, structured settlement services, retirement planning and investment advisory. We also have a insurance services to help protect your practice.
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FINDLAW
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Michael Brown (513) 349-9259,
Kentuckiana Court Reporters offers court reporters, court reporting services and legal video deposition services.
NATIONAL HEALTHCARE INNOVATIONS Dr. Carol White • (260) 224-6161 • www.nationalhi.com NHI provides a highly-trained nurse practitioner consultant and many other services to assist you on a case.
C. Mitchell Page, JD, RN, BSN • (502) 777-0765 • [email protected] • www.pagemlc.com
Mike Sheehan (502) 396-2071 • www.FindLaw.com FindLaw is the legal industry’s most effective provider of online marketing, providing Web sites and other online marketing services that generate new business with qualified prospects.
Mitchell Page combines his experience as a nurse, attorney, and medical-malpractice insurance adjuster to assist the legal community with a full range of services, including merit review and case evaluation, chronology/timeline development, expert witness retention, deposition preparation, and more.
FORGE CONSULTING
Jody Elliott • (614) 519-5634 • www.rayfc.com
Spooner Phillips (706) 856-2535 • www.forgeconsulting.com FORGE is a national consulting firm challenging the status quo in the settlement industry. Our plaintiff-focused approach and full-market access ensures our clients receive the best possible settlement, individually structured to meet their financial needs.
KENTUCKY PAIN ASSOCIATES Kurt Reibling (502) 855-3911 • www.KYPainAssociates.com Kentucky Pain Associates (KPA) is the low cost provider and the number 1 choice for auto accident injury and workers’ compensation patients, providers and attorneys in the Louisville Metro and surrounding areas.
ROBSON FORENSIC Matt Kemp • (423) 605-2983 • www.robsonforensic.com
Robson Forensic is a leader in expert witness consulting, providing technical expertise across many fields within engineering, architecture, and science. We provide investigations, reports, and testimony where technical and scientific answers are needed to resolve litigation and insurance claims.
RAY FORENSIC CONSULTANTS, LLC Forensic expertise for attorneys & the insurance industry. Proudly serving the Midwest since 2001 with timely, trustworthy, reliable expert services. Put one of our 95+ experts to work for you!
SMART ADVOCATE Allison Rampolla • 877-438-7672 • [email protected] • www.smartadvocate.com SmartAdvocate is a fully integrated case management system with continual software enhancements to meet the evolving needs of today’s fast-paced, highly competitive, and technologically demanding world. As a fully browser-based system, SmartAdvocate is available as either Cloud- or Server-based. With these options, paired with SmartAdvocate mobile app, you can access your caseload from virtually anywhere.
THE SOLUTIONS TEAM
William V. (Bill) Wiltshire • 601) 919-6937 •[email protected] Claire Harris • (601) 724-4063 • [email protected] • www.mysolutionsteam.com/legal-home
The Solutions Team is a Managed Service company that provides Information Technology support for Legal practices specializing on Plaintiff Attorneys allowing our clients to focus on their practices without being distracted or interrupted by technology issues. The Solutions Team is unique in our service delivery methodology by providing support at a flat monthly fee with no Time & Material fees, Project Fees, or selling equipment as a problem solution.
VOCATIONAL ECONOMICS Mike Swift • (502) 589-0995 • www.vocecon.com We are a national, forensic consulting firm, specializing in defining economic damages. Our analysts work2021 directly 23 with January/February attorneys to define objectively economic damages with special emphasis on loss of earning capacity, future health and medical care costs (life care plans), and business and commercial damages.
League of Justice These generous members give more than is required to help KJA pursue its goals of protecting the health and safety of Kentucky’s families by fighting to keep Kentucky juries strong and Kentucky’s courts accessible to all.
PROTECT THE 7th FUND Tyler Thompson Liz Shepherd Joe Satterley Sheila Hiestand ADVOCATE’S CLUB
(Yearly contribution: $6,000) No charge for CLE seminars and material. No charge for dinner meetings.
Paul Casi, II, Louisville Michael Hance, Louisville Richard Hay, Somerset Darryl Isaacs, Louisville Billy Johnson, Pikeville Gary C. Johnson, Pikeville Paul Kelley, Louisville Matthew Minner, Lexington Gregg Y. Neal, Shelbyville Joseph D. Satterley, Louisville Tad Thomas, Louisville
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HONORARY LIFETIME KJA MEMBERS Peter Perlman, Lexington Erwin Sherman, Louisville
24 The Advocate
PRESIDENT’S CLUB
(Yearly contribution: $3,600 - $6,000) No charge for CLE seminars and material. No charge for dinner meetings.
David Abney, Frankfort Bryan Armstrong, Louisville David Barber, Louisville Gregory J. Bubalo, Louisville Andre’ Busald, Florence A.V. Conway, Hartford John Doyle, Louisville William Garmer, Lexington Michael Grabhorn, Louisville Mark K. Gray, Louisville H. Philip Grossman, Louisville Sheila Hiestand, Louisville Travis Holtrey, Owensboro Eric Jacobi, Louisville Rhonda Hatfield-Jeffers, Somerset Ron Johnson, Fort Wright Ray Jones, Pikeville William Kathman, Florence Jennifer Lawrence, Covington Jerry Miniard, Florence Douglas H. Morris, Louisville David Oakes, Paducah Stephen M. O’Brien, III, Lexington Ann Oldfather, Louisville Hans Poppe, Louisville Richard Rawdon, Jr., Georgetown Jerry P. Rhoads, Madisonville Kyle Salyer, Paintsville Gary Schaaf, Paducah Mike Schafer, Louisville Liz Shepherd, Louisville Tim Stevenson, Bowling Green Tyler Thompson, Louisville Ryan Turner, Florence Ron Wilt, Louisville
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Sam Aguiar, Louisville Andrew AsBridge, Paducah John Bahe, Louisville Thomas E. Carroll, Monticello Lee Lawrence Coleman, Bowling Green Roy Collins, Manchester Brian Cook, Louisville Daniel Dotson, Whitesburg Steven D. Downey, Bowling Green Mark Edwards, Paducah Michael Eubanks, Richmond James T. Gilbert, Richmond Katie Gilliam, London Seth Gladstein, Louisville Wilson Greene, Louisville Mike Hawkins, Frankfort William Hayes, Middlesboro Penny Unkraut Hendy, Fort Wright Larry Hicks, Edgewood Andrew Horne, Louisville Vince Johnson, Louisville Lindsey Lawrence, Cincinnati Rob Mattingly, Louisville Matt McGill, Bowling Green Charles E. Moore, Owensboro Jennifer Moore, Louisville Fred Peters, Lexington Jay Prather, Lexington Erwin Sherman, Louisville John Spainhour, Shepherdsville Jay Vaughn, Louisville Kevin Weis, Louisville Damon Willis, Louisville
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By Scarlette Kelty
Kentucky Supreme Court and Court of Appeals Key Decisions for October and November 2020 Kentucky Court of Appeals Opinions Bad Faith Bowlin Group, LLC v. Christina Rebennack, Individually, as the Personal Representative of the Estate of Joel Rebennack, and as Mother and Next Friend of Elijah Rebennack; Melanie Rebennack; and Arianna Rebennack 2018-CA-1494-MR and 2019-CA0078-MR, Nov. 20, 2020, To Be Published In 2015, Joel Rebennack died after being struck by a vehicle driven by an intoxicated Brenda Amerson. Joel was working when he was struck, so Bowlin Group, LLC paid workers’ compensation to his estate, and pursuant to a settlement, is obligated to pay substantial future benefits. Joel’s widow, Christina, on behalf of herself and their children, sued Amerson, an Elks Lodge where Amerson drank alcohol prior to the collision, and some individuals associated with the lodge. Bowlin Group intervened to assert its subrogation rights. Christina settled with the Elks defendants, and the trial court denied Bowlin Group’s request to use that settlement to receive a credit against its future obligations, and instead, granted a summary judgment to Christina. Bowlin Group then appealed in 2018-CA-1494-MR. Christina had also filed bad faith claims against Westchester Fire Insurance Company, the Elks 26 The Advocate
defendants’ excess insurance provider. However, without allowing an opportunity to engage in discovery on the bad faith claims, the trial court granted summary judgment to Westchester. Christina then filed appeal 2019-CA0078-MR, and the two appeals were combined and resolved in this Opinion. In analyzing Bowlin Group’s claim to a credit, the Court found no controlling precedent, so it analyzed the language of KRS 342.700(1) to decide the issue. KRS 342.700(1) provides in relevant part that if an employee is awarded workers’ compensation, the employer “may recover … from the other person in whom legal liability for damages exists” an amount “not to exceed the indemnity paid and payable to the injured employee, less the employee’s legal fees …” In this situation, however, it would allow Bowlin to get a dollar-for-dollar reduction in future funds Christina would receive. The Court found that reducing the funds paid to an injured worker’s estate does not serve the public policy of providing benefits to workers. The Court found the plain language of KRS 342.700(1) weighed in Christina’s favor. The Court reasoned there was no language in the statute which would logically lead to a conclusion that the entirety of Christina’s substantial legal fees should not apply to Bowlin Group’s subrogation rights. Instead, the statute said amounts paid and payable must be reduced by the employee’s legal fees. And, in this
case, the legal fees are so large they eliminated Bowlin’s entire subrogation right. The Court also rejected Bowlin’s argument that the trial court allowed Christina to have a “double recovery.” Because the subrogation was wiped out by legal fees, there was no double recovery to Christina. As for Christina’s appeal, because the Court found summary judgment should not have been granted without allowing discovery to be conducted, it did not attempt to address the record before it. The Court stated, “[B]ecause a premature summary judgment inevitably leads the record to be fatally incomplete, we do not address whether the embryonic record supports granting summary judgment to Westchester.” The Court pointed out that the onemonth time period Christina had to perform discovery was, in practical effect, no opportunity to conduct discovery. In that period of time, Christina did send discovery requests to Westchester, but they did not answer. The Court analyzed Westchester’s arguments that Christina did not meet the three elements of bad faith: (1) that the insurer was obligated to pay the claim under the policy; (2) the insurer lacked a reasonable basis in law or fact for denying the claim; and (3) the insurer either knew there was no reasonable basis for denying the claim or acted with reckless disregard for whether such a basis existed.Westchester argued it was not obligated to pay the claim
until the underlying insurance was exhausted, which did not occur until soon before Christina settled with the Elks defendants. However, the Court found that the circumstances in this case indicate that Westchester was controlling the whole defense during the litigation, including when the underlying policy would be exhausted. The Court took note of the trial court’s apparent belief that Christina’s settlement for an amount below Westchester’s policy limits somehow precluded her bad faith claim. However, the Court notes that Westchester did not argue that undisputed fact inherently doomed Christina’s claim, and the Court located no authority so holding. The Court specifically went on to state prohibiting a bad faith claim when there was a settlement for less than policy limits “would be antithetical to the goals of the KUCSPA.” The Court, given all the facts and circumstances of this case, could not say it would have been impossible for Christina to show, after being afforded reasonable discovery, that Westchester acted in bad faith. Finally, the Court noted the Westchester claims file would “almost certainly” show when Westchester first believed liability became clear. Therefore, Christina would have been entitled to receive at least some of the claims filed in discovery. Common Carriers Andria Kendall v. Community Cab Company, Inc., and NK Management LLC 2019-CA-1074-MR, Oct. 2, 2020, To Be Published On October 10, 2010, Andria Kendall accompanied friends to a retail and entertainment center known as “Newport on the Levee.” She decided to take a cab home. She and a friend entered a cab owned and/or operated by Community Cab and driven by Mohamud
Abukar. During the drive, Kendall and her friend fell asleep. Kendall awoke to Abukar brutally raping her. Abukar was later convicted of first-degree rape in Kenton Circuit Court. Kendall hired attorney, Mark Godbey, to represent her in a civil suit against the cab company, but Godbey failed to file suit on her behalf. Kendall then filed a legal malpractice claim against Godbey. She also filed suit against Community Cab on a theory of breach of contract of safe passage because the statute of limitations had not yet expired for a breach of contract claim. Community Cab filed a motion to dismiss. The trial court granted the motion, ruling that while Kendall had labeled her claim a contract claim, it was really a claim for personal injury, and therefore, the one-year statute of limitations applied as opposed to the five-year statute of limitations for contract claims. The Court of Appeals held the trial court erred in summarily dismissing Kendall’s claim. The court stated that the damages sought, i.e., for personal injuries, is not determinative of the claim. The court stated Kendall had a right to present her proof to support her cause of action for breach of contract, and if she is able to prove such breach, the trier of fact may determine appropriate compensatory damages, including those for physical injury. Joinder Brayden Michael Jones, a minor, by and through his mother and duly appointed Conservator, Bobbie Jean Jones v. IC Bus, LLC, et. al. 2018-CA-1440, et. al., Oct. 9, 2010, To Be Published, Rehearing Pending A tragic school bus collision on October 29, 2012 involved a bus manufactured by IC Bus, LLC. The school bus driver inexplicably left the
roadway, over corrected, and careened off the road, causing the bus to turn on its side and strike a large tree. The crash killed two of its preschool occupants and injured several others. Two weeks after the crash, the parents of two injured children, Cruz and Hollingsworth, filed suit against the bus driver and various school officials. In the summer of 2013, the Tuttles and Deitzes, parents of the two children killed in the crash, and the Robles and Landas, parents of two more injured children, each separately filed suit for negligence only against the bus driver. The driver subsequently filed a thirdparty complaint against IC Bus and moved to consolidate the separate actions brought against her. The trial court granted the motion to consolidate “for discovery purposes.” Eventually, all of the parties filed amended complaints, suing IC Bus for various claims. In March 2014, the driver moved the trial court to join Brayden Jones as a necessary party pursuant to CR 19.01. The trial court granted the motion and ordered Jones to file an intervening complaint. Prior to trial, all claims against every defendant except IC Bus were resolved. A jury trial commenced on the claims against IC Bus. At the close of plaintiffs’ proof, IC Bus moved for directed verdict, which the trial court granted on all claims except the product liability claim for defective bus clips. At the end of the trial, the jury returned a defense verdict and the court entered judgment consistent therewith. The trial court also ordered plaintiffs to pay IC Bus’s costs. The trial court denied JNOV or a new trial and plaintiffs appealed. First, the Court of Appeals considered Jones’s appeal, alleging the trial court erred by joining him as a party and ordering him to file an intervening Continued on following page January/February 2021
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Court Decisions Continued from previous page complaint. The court dealt with this as an issue of first impression. When the trial court first ordered Jones to file a complaint, he tried to appeal the trial court’s order, but it was dismissed as interlocutory. Jones continued to dispute his joinder throughout the litigation. The issues the Court of Appeals considered on Jones’s appeal are: (1) under what circumstances may a trial court join a non-party, against their will, in pending litigation; (2) in what capacity may they be joined; and (3) how the infancy of the party sought to be joined might affect these decisions. The driving force behind the trial court’s joinder of Jones was the bus driver’s motion, arguing that any cause of action Jones might have would involve “a common issue of negligence,” and that failure to join Jones would “impair and impede her ability to defend herself.” She also argued she would suffer undue prejudice by having to sit for multiple depositions and potentially have multiple trials on the same factual issues. She argued this “would likely result in inconsistent judicial rulings and financial and personal hardship.” However, the Court of Appeals noted neither the driver’s nor the court’s convenience constitutes a factor for proper joinder under CR 19.01. The Court of Appeals held Jones was not a necessary party because he did not have rights which must be settled before the rights of the parties could be settled, nor did he have an interest that would be legally affected by a judgment rendered in the litigation without him. Moreover, the court found even if Jones were a necessary party, the trial court clearly exceeded its authority by requiring Jones to file suit. Nothing in the Rule permits a 28 The Advocate
court to order the joined party to file a complaint as part of the litigation. Further, the court noted that Jones was only four years old at the time of the crash, and six when ordered to file suit. His statute of limitations would not run for another thirteen years; yet the trial court “ran roughshod” over these considerations in favor of the defendant’s and the court’s own. The remaining issues the Court considered were claims of error in: (1) granting IC Bus’s motion for directed verdict concerning claims of defective bus roof design, failure to warn, and dismissal of their punitive damages claims; (2) denial of their motion for directed verdict; (3) dismissal of their claims of breach of warranty and violation of the KCPA; (4) instructional error; (5) exclusion of admissible evidence; (6) juror misconduct; and (7) the ward of IC Bus’s costs. However, several were not ultimately decided. Of note, the Court held the trial court erred in granting IC Bus’s motion for summary judgment because plaintiffs’ expert’s testimony created questions of fact as to whether there was an alternative feasible bus roof design, and the extent of injuries sustained had the feasible design been used— i.e., elements of crashworthiness. The court also held, because the plaintiffs failed to establish the required privity of contract with IC Bus, the claims of breach of warranty and violation of the KCPA were properly dismissed by the trial court. The Court also held the trial court erred in its jury instructions. Specifically, the plaintiffs allege the trial court should not have used the phrase “substantial factor in increasing the plaintiffs’ injuries.” Instead, the plaintiffs argued if the court was going to use “increasing” at all, the instruction should have read “causing or increasing.” The reason for this relates back to
the crashworthiness arguments—that plaintiffs would have sustained no or fewer injuries had the proposed feasible alternative design been used on the bus roof. The court found the use of the term “increasing” without qualification in the jury instruction was inappropriate and was reversible error. All That N More, LLC v. Kusyo 2019-CA-0928-MR Oct. 30, 2020, To Be Published All That N More, a construction company, appealed orders of the Jefferson Circuit Court which granted default judgment against the company to Roman and Natalie Kusyo based on a home construction contract. The Kusyos signed a contract drafted by All That N More for the construction of a new home in Louisville. All That agreed to construct the home for $228,500 payable in a series of installments based on specific milestones achieved during the construction process. On the third day of excavating the foundation, All That encountered rock. Paragraph 6.5 of the contract was a “rock clause.” The Contractor is not responsible for subsurface or latent physical conditions at the site or in an existing structure that differ from those (a) indicated or referred to in the contract documents or (b) ordinarily encountered and generally recognized as inherent in the work of the character provided for in this contract. After receiving notice of the conditions, the Owner shall investigate the condition within five (5) working days. If the parties agree that the condition will increase (a) the Contractor›s cost of performance of any part of the work under this contract
or (b) the time required for that work, the parties may sign a change order agreement incorporating the necessary revisions, or the Owner may terminate the contract. If the Owner terminates the contract, the Contractor will be entitled to recover from the Owner payment for all work performed, including normal overhead, and a reasonable profit. All That told the Kusyos’ agent, their daughter Oksana, they had encountered the rock. Oksana testified she was informed of the rock, but that All That informed her there would not be added cost, it would only change how the house would be built. From September 2016 through January 2017 the Kusyos paid All That $203,500. Then, they noticed the house did not appear to be progressing, and it did not appear the funds were being spent on intended purchases. The final $15,000 on the contract price was not due until completion. However, All That began invoicing Oksana $81,340 and claiming the new balance owed was $107,840, over and above the $203,500 the Kusyos had already paid. Oksana declined to pay the invoice and All That walked away from the job. The Kusyos eventually hired a second contractor, Jeremy Murphy, to finish the house. Murphy testified the house was approximately fifty percent complete when he began work, and it contained incorrect or poor-quality construction. Murphy estimated it would take more than $76,000 to repair the prior work and approximately another $200,000 to complete the construction. On May 11, 2017, the Kusyos filed suit against All That in Jefferson Circuit Court alleging breach of express con-
tract, breach of express and implied warranty, negligent or reckless misrepresentation, and violation of the KCPA. All That did not answer the complaint within twenty days and the summonses were returned undeliverable. However, on May 15, 2017 All That was successfully served. On June 21, 2017, the Kusyos moved for default judgment and the trial court granted the motion on June 23. Several days later, an attorney entered an appearance for All That and moved to alter, amend or vacate the default judgment because All That previously had to acquire funds to retain counsel. The circuit court granted All That’s motion and allowed them to answer. Marty Nilest, of All That N More, LLC and Matt Nilest of All That N More, LLC filed answers, but All That did not. On July 31, 2017, the circuit court reinstated its default judgment. Less than two weeks later, All That again moved to set the default aside. The circuit court denied. Discovery on damages ensued and the court had a damages hearing over two days in December 2018. Matt Nilest testified that hitting rock changed the scope of the project and he handed Oksana what amounted to a change order under paragraph 6.5 f the contract. He also denied walking off the job but stated that the Kusyos had not allowed All That to finish the construction. Following the hearing, the circuit court entered its findings of fact, conclusions of law and judgment on March 5, 2019. The court found there were only two valid change orders on the contract, one for $5,000 and one for $320. The court found All That had walked off the job, and therefore, breached the contract. The court awarded the Kusyos $76,045.40 for repairs, $101,500.00 in overpaid draws, $200,000 for the cost to complete the house, and $5,605.47 relating to the release of a brick subcontractor’s
lien. Total, the Kusyos were awarded $383,150.87, plus $24,601.18 in costs and attorney’s fees. First, the Court of Appeals held it was not an abuse of discretion by the trial court to refuse to set aside the default judgment. The Court noted that neither raising money to hire an attorney nor carelessness of an attorney drafting pleads are sufficient grounds to set aside a default. As for damages, the Court of Appeals overturned the trial court’s award of $200,000 to the Kusyos, as it was a double recovery.The Court found that since the lower court refunded the Kusyos $101,500 of their payments to All That, adding another $200,000 in damages would actually be giving them more than the value of the home and a double recovery. The Court of Appeals also considered the trial court’s award of the Kusyos’ attorney’s fees. Originally, the Kusyos pled a violation of the Kentucky Consumer Protection Act, which provides a statutory basis for attorney’s fees. However, the parties dismissed that count by agreement when they discovered it does not apply to real estate transactions or construction contracts. With that count gone, the only specific mention of attorney’s fees in the complaint was in the ad damnum clause. The Court of Appeals agreed with Appellants that placing a prayer for attorney’s fees in the ‘prayer for relief’ is insufficient to create a separate claim for relief. See Nesselhauf v. Haden, 412 S.W.3d 213 (Ky. App. 2013); O’Rourke v. Lexington Real Estate Co., LLC, 365 S.W.3d 584 (Ky. App. 2011). A party must also state why he or she is legally entitled to that which is being requested. Accordingly, the Court of Appeals reversed the trial court’s award of attorney’s fees. Continued on following page
January/February 2021
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Court Decisions Continued from previous page Workers Compensation Louisville Gas & Electric Co. v. Galvan, 2019-CA-0961-MR Oct. 16, 2020, To Be Published LG&E contracted with Petrochem Insulation, Inc., the direct employer of Jose Galvan, to erect scaffolding necessary to maintain and repair the interior of its boilers during a 2015 scheduled outage. LG&E also contracted with Thompson Industrial Services, LLC to perform maintenance inside the boiler where Galvan suffered a workplace injury. As part of the contract, LG&E required Petrochem to provide workers’ compensation coverage to all its employees. On October 11, 2015, both Petrochem and Thompson were given authority by LG&E to begin their respective work. While Petrochem began erecting scaffolding at the interior base of the boiler, Thompson worked from above. Thompson workers dislodged a large piece of refractory from the boiler, and it fell and struck Galvan. He suffered severe injuries and received workers’ compensation benefits from Petrochem. In addition, Galvan filed a negligence claim against both LG&E and Thompson. LG&E moved for summary judgment, arguing the Kentucky Workers’ Compensation Act provided it with “up-the-ladder” immunity from tort claims.The circuit court denied the motion, concluding LG&E waived the affirmative defense by failing to provide sufficient proof that it carries workers’ compensation insurance as required by KRS 342.340 and the scaffolding work was not a “regular and recurrent” part of LG&E’s business, and therefore, it did not qualify as a “contractor” under KRS 342.610.
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The Cour t of Appeals found LG&E had workers’ compensation coverage and the erection of large scaffolding is a regular or recurrent part of its business, thereby qualifying it as a “contractor” with up-the-ladder immunity. Moreover, the Court found whether or not LG&E had coverage was not material to this issue because, as an up-the-ladder contractor, it is immune from tort liability of subcontractor’s employee if it proves the immediate employer of the injured worker had secured coverage for the employee. Therefore, it was enough to win summary judgment that LG&E submitted proof to the trial court that Petrochem had coverage. The trial court had determined that this scaffolding work was not a “regular and recurrent” part of LG&E’s business because LG&E had hired a contractor to perform it. However, the Court of Appeals held LG&E’s direct performance of the work was not disqualifying as a “regular and recurrent” part of their business.Therefore, LG&E had up-the-ladder immunity and the circuit court erred in failing to grant summary judgment to LG&E. MVRA Sandra Porter v. Evan Hunter Allen 2019-CA-0115-MR, Oct. 9, 2020, To Be Published On November 6, 2014, Allen rear-ended a vehicle stopped in traffic, propelling that vehicle into Porter’s vehicle. Porter filed suit against Allen in 2016. Allen stipulated fault but contested damages. The case went to trial in November 2018. Allen’s counsel moved to exclude physician testimony as to an American Medical Association (AMA) permanent impairment rating. Counsel argued that because Porter had returned to work and was not making a claim for impairment or
destruction of earning capacity, the impairment rating would mislead the jury. The trial court granted the motion to exclude the impairment rating, finding it would confuse the jury and be unfairly prejudicial to Allen. The jury returned a verdict awarding Porter only her medical expenses of $3,259.25, nothing for lost wages and nothing for physical and mental pain and suffering. Allen was entitled to a basic reparations benefits setoff of $10,000, so judgment was entered in favor of Allen and Porter did not recover any costs. The trial court denied Porter’s motion for a new trial and Porter appealed. Porter claimed on appeal that the trial court erred by granting the motion in limine to exclude an impairment rating, as well as by giving a thresholds instruction. Porter’s brief, in violation of CR 76.12, gave no cites to the record to show her claims had been preserved. However, Allen’s brief did. The irony should not be lost on practitioners, or jurists, that in this case it was the appellee’s restraint in not moving to strike the appellant’s brief, combined with the appellee’s own compliance with the rules, that avoided the higher, manifest injustice standard of review of the appellant’s argument. We shall undertake our review as though Porter did comply with CR 76.12, this time. The Court went ahead and reviewed the trial court’s decision regarding the motion in limine on an abuse of discretion standard.The Court held the trial court did not abuse its discretion in excluding the impairment rating. Porter also argued the trial court erred by inContinued on page 32
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Court Decisions Continued from page 30 structing the jury regarding thresholds under the MVRA. She believes the evidence did nothing but confuse the jury and was unnecessary. The Court was unpersuaded. The Court pointed to conflicting evidence regarding the medical bills Porter presented, and whether they were all caused by the collision. The Court concluded there was sufficient conflicting evidence upon which a jury could have concluded that medical bills attributable to Allen’s collision totaled less than $1,000. Therefore, the trial court was not in error to give a threshold instruction.
body. The Commonwealth introduced a position paper created by Gill’s superiors at KSP which detailed how THC affects a person’s ability to drive. The position paper essentially summarized multiple published works concerning THC levels in the body. This document was created specifically for us by forensic lab witnesses at trial. The Court of Appeals overturned the DUI conviction, holding Gill should not have been allowed to testify as to the effects of THC. She had only reviewed the position paper to be able to testify about it at trial; she did not indicate it was based on sufficient data or reliable methods; and she was not qualified to give that testimony. Kentucky Supreme Court Opinions
Qualification of an Expert in DUI Case
Products Liability/Preemption
Regan Lyons v. Commonwealth of Kentucky 2019-CA-0952-DG, Nov. 13, 2020, To Be Published Regan Lyons was pulled over and arrested for driving under the influence of marijuana. She was taken to a hospital for a blood test. At trial, the Commonwealth introduced testimony from Bailey Gill, a forensic chemist from the KSP Central Laboratory. Ms. Gill was the forensic chemist who examined the blood sample, and she testified about her results. She also testified generally about the effects of marijuana on a person. Lyons argued on appeal Gill should not have been qualified as an expert for the purposes of testifying about the effects of marijuana on a person’s ability to drive. Gill is a chemist trained to perform extractions of drugs from blood and urine samples. She has a bachelor’s degree in forensic chemistry and a master’s degree in chemistry. Defense counsel objected to her testifying as to the effects THC has on the human
Clifford Russell, Sr. and Jeanene Russell v. Johnson & Johnson, Inc., et. al. 2019-SC-0118-DG, Oct. 29, 2020, To Be Published Russell underwent a cardiac ablation procedure to treat his heart condition, and a Class III, FDA approved medical device, the ThermoCool SmartTouch SF Catheter was used. During the ablation procedure, electrical energy was delivered through the SF Catheter to the heart tissue, which resulted in burning and destroying heart tissue to achieve the desired result. The SF Catheter perforated Russell’s pulmonary vein, resulting in numerous life-threatening injuries. Approximately fourteen months after Russell’s surgery, the SF Catheter received full premarket approval, but the SF Catheter was only at the investigational device exemption stage at the time of surgery. The Medical Device Amendments of 1976 (MDA) to the Federal Food, Drug, and Cosmetic Act classifies medical devices among three categories depending on their risk levels. 21
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U.S.C. § 360(a)(1). A Class III medical device has the most potential for danger. Class III medical devices have the most oversight and must generally receive premarket approval from the FDA, a rigorous process. The MDA contains a limited preemption clause: Except as provided in subsection (b), no State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement – (1) which is different from, or in addition to, any requirement applicable under this Act to the device, and (2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this Act. 21 U.S.C. § 360(k)(a). Mr. and Mrs. Russell filed suit against Biosense, the developer, manufacturer, and marketer of the SF catheter, and others. The Russells brought claims of strict liability, negligence, lack of informed consent, failure to warn, breach of express and implied warranties, fraud, unjust enrichment, and violation of Kentucky’s Consumer Protection Act. Biosense moved for judgment on the pleadings based upon federal preemption of all claims. The trial court granted the defendants motion to dismiss and the Court of Appeals affirmed. The Kentucky Supreme Court reversed, noting at the outset that even if a device has received FDA premarket approval and federal preemption applies, parallel state claims are allowed to proceed in state court. “If a state tort standard imposes a higher duty than Continued on following page
federal regulations, the state standard is only preempted to the extent it imposes a more stringent duty; as long as the state cause of action seeks to vindicate a claim within the boundaries of the federal regulation, it survives. Further, even with a fully premarket approved device, if a state claim is premised on a violation of a federal regulation, it is not a federally preempted claim.” Biosense argued a complaint must include the specific federal regulations violated in order to survive a judgment on the pleadings; however, the Court refused to mandate a heightened pleadings standard in Kentucky, i.e., barebones notice pleading is the standard in Kentucky. Part of the defendant’s motion to dismiss was the Russells claims of negligence in manufacturing and failing to inform/warn. The Court held those claims are not preempted as long as they are being used within the boundaries of the applicable federal regulations. Therefore, the Court held, the motion for judgment on the pleadings should have been denied. Fourth Amendment Commonwealth of Kentucky v. LeeCole Mitchell 2019-SC-0087-DG, Oct. 29, 2020, To Be Published Lexington police stopped a car at a red light in which LeeCole Mitchell was the backseat passenger. Two minutes after the stop, a second officer arrived as backup. The second officer obtained driver’s licenses from all three occupants of the car while the first officer began filling out a citation for the driver. Approximately twelve minutes into the stop, officer two had completed his background check on the occupants, and the officers had a discussion for another two or three minutes about whether to request a canine unit. Officer two encountered the driver before and recalled he had 33 The Advocate
been involved in narcotics activities. The background check revealed that Mitchell had a criminal history, including firearm-related offenses. The officers ultimately made the request for the canine unit. Initially, the officers were told there was no canine unit available, but approximately a minute later, they were told one was available and en route to their location. Immediately after that, officer two told officer one to take his time filling out the citation for the driver. This exchange occurred approximately sixteen minutes after the stop had been initiated. The canine unit arrived approximately twenty-eight to twenty-nine minutes after the stop, contemporaneous with the completion of the citation. The officers then removed the occupants from the vehicle. Upon exiting the vehicle, Mitchell told the officers the vehicle contained his firearms. The officers found two pistols and a rifle in the vehicle. Mitchell was arrested and charged with possession of a handgun by a convicted felon. Mitchell filed a motion to suppress the evidence seized
during the stop, arguing the traffic stop was impermissibly prolonged beyond its original purpose and violated his Fourth Amendment rights. The trial court held the initial traffic stop was lawful and the court did not believe the stop was extended to allow for the canine’s arrival. The court found the resulting delay was not unreasonable and denied Mitchell’s motion to suppress. The trial court’s order contained no discussion of whether reasonable, articulable suspicion existed to justify extending the stop. LeeCole Mitchell entered a conditional guilty plea to the charge of felon in possession of a handgun, reserving the right to appeal the trial court’s denial of his motion to suppress. The Court of Appeals unanimously reversed the trial court. The Court of Appeals held it was unrefuted that the officers deferred completion of the stop beyond its original purpose to discuss and then request the canine search, a purpose totally unrelated to the original stop. The Kentucky Supreme Court reContinued on following page
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Court Decisions Continued from previous page views a trial court’s denial of a motion to suppress under a two-prong test. First, the Court reviews the trial court’s findings of fact under the clearly erroneous standard—under this standard, the trial court’s findings of fact will be conclusive if they are supported by substantial evidence. Second, the Court reviews the trial court’s application of law to the facts de novo. Here, neither party argued the trial court’s limited findings of fact are clearly erroneous, so the issue turned on the second prong—did the trial court properly apply the facts to the law? The Court held it did not. The Court affirmed the Court of Appeals’ holding that the discussion regarding summoning the canine unit impermissibly delayed completion of the stop. When pursuing unrelated investigative issues, officers must be able to do so while simultaneously completing the purpose of the stop. Because the trial court did not make findings of fact or conclusions of law regarding the officers’ reasonable suspicion, the Court remanded the case to the trial court for further proceedings consistent with its Opinion. Rickey Allen Rhoton v. Commonwealth of Kentucky 2019-SC-0298-DG, Oct. 29, 2020, To Be Published A Kentucky State Police Trooper observed a blue Toyota Camry with an unbelted passenger. The trooper executed a traffic stop of the vehicle, which Rhoton was driving. The trooper observed through the cars window a small, screw-top metal canister, approximately two inches long by oneand-a-half inches wide, in the center console. The canister was of a type that, in the trooper’s experience, was 34 The Advocate
often used to conceal illegal narcotics. Rhoton declined the trooper’s request to search the vehicle. The trooper returned to his vehicle with Rhoton’s and the passenger’s information and began writing a citation. The trooper radioed for assistance from a nearby canine unit. The trooper ran ordinary records checks on Rhoton and the passenger, and found the passenger had an active unrelated arrest warrant. The canine unit arrived twenty-five minutes after the initial traffic stop and while the trooper was still in his vehicle preparing Rhoton’s citation and confirming information regarding the passenger’s warrant. Then the trooper and canine officer removed Rhoton and his passenger from the vehicle. The canine officer conducted an external sweep of Rhoton’s car, and the dog alerted at the driver’s door. Once the door was opened, the dog also alerted at the driver’s seat. Upon search of the vehicle, drugs and paraphernalia were found. Rhoton was arrested and subsequently charged with various drug crimes. Rhoton moved the trial court to suppress the evidence seized during the traffic stop, arguing the trooper impermissibly prolonged the stop to facilitate the dog sniff search. The trial court denied Rhoton’s motion because it found the trooper’s extension of the stop was not excessive given the need to take Rhoton’s passenger into custody pursuant to his outstanding warrant, and even absent the need to take the passenger into custody, the trooper’s observation of the metal canister in conjunction with the stop occurring in a high drug activity area provided reasonable articulable suspicion of ongoing criminal activity sufficient to prolong the traffic stop. The Court of Appeals affirmed. The Kentucky Supreme Court granted discretionary review and af-
firmed the lower courts’ rulings. Because the allowable routine warrants check returned a warrant on Rhoton’s passenger, there was independent probable cause to extend the stop for an amount of time reasonably necessary to address the outstanding warrant. Further, the trooper did not abandon the purpose of the initial stop and the warrant provided an independent reason to maintain control of the scene. The Court explicitly held, “discovery of an outstanding warrant as part of a traffic stop provides new probable cause for the resulting increased duration of such stop.” Further, “such increase does not impermissibly delay the individuals subjected to the stop, and, in the interest of officer safety, all those involved in the stop may be detained until the stop is complete.” COVID-19 Hon. Andrew Beshear, in his Official Capacity as Governor of the Commonwealth of Kentucky, et. al. v. Hon. Glenn E. Acree, Judge, Kentucky Court of Appeals, et. al. 2020-SC-0313-OA, Nov. 12, 2020, To Be Published In March and April 2020, Governor Andy Beshear issued numerous emergency orders and emergency regulations to address the public health and safety issues created by COVID-19. In late June, three Northern Kentucky businesses filed suit in the Boone Circuit Court challenging various orders affecting the reopening of their businesses as well as the Governor’s authority generally in emergencies. Attorney General Daniel Cameron intervened as a plaintiff, and the plaintiffs obtained a restraining order from the Boone Circuit Court that prohibited enforcement of certain of the emergency orders. The Kentucky Supreme Court analyzed five questions in this Opinion. First, did the Governor properly
declare a state of emergency and validly invoke the emergency powers granted to him in KRS Chapter 39A. The Court found that he did because KRS 39A.100 authorizes the Governor to declare a state of emergency in the event of the occurrence of any of the situations or events contemplated by KRS 39A.010, which includes biological and etiological hazards. Thus, the Governor was authorized to act without deference to any determination by a local authority or emergency management agency. Second, in KRS Chapter 39A with its provisions regarding the Governor’s powers in the event of an emergency an unconstitutional delegation of legislative authority in violation of the Separation of Powers provisions of Sections 27 and 28 of the Kentucky Constitution? The Court answered “no.” Third, was the Governor required to address the COVID-19 emergency solely through emergency regulations adopted pursuant to KRS Chapter 13A? The Court answered “no” because the General Assembly has specifically authorized the Governor to act in KRS Chapter 39, et. seq., and KRS Chapter 13A is not controlling. Fourth, do the challenged orders or regulations violate Sections 1 or 2 of the Kentucky Constitution because they represent the exercise of “absolute and arbitrary power over the lives, liberty and property” of Kentuckians? The Court found one subpart of one order, no longer in effect, was violation of Section 2. The Court held the Governor’s orders were not arbitrary, i.e., lacking a rational basis. Finally, did the Boone Circuit Court properly issue injunctive relief prohibiting enforcement of the Governor’s orders or regulations? The Court answered “no.” Injunctive relief requires the plaintiff to prove irreparable injury, establish that the equities favor 35 The Advocate
issuance of the injunction and raise a substantial question on the underlying merits, defined as a substantial possibility that the plaintiff will ultimately prevail. Even if some businesses had arguably established irreparable harm to their businesses, that alone is insufficient to justify an injunction precluding enforcement of these emergency regulations to protect all Kentuckians. Qualified Immunity Upper Pond Creek Volunteer Fire Dept., Inc. v. Ronnie Kinser, et. al. 2019-SC-0563-DG, Nov. 12, 2020, To Be Published On October 19, 2016, a Kentucky State Trooper responded to a call in Pike County. When he arrived on the scene, he found Kinser lying beside his car, with his right arm pinned beneath the car’s front tire. Kinser was conscious and explained he had been beneath the car all night. Members of the Upper Pond Creek Volunteer Fire Department responded, as well as a private ambulance provider, Appalachian First Response Emergency Services. Kinser was freed and transported to Pikeville Medical Center, where his right arm was ultimately amputated. On June 9, 2017, Kinser and his wife filed a lawsuit against Pond Creek and unknown employees of the fire department, as well as the private ambulance provider and unknown employees of that service. Count II alleged the fire department “either intentionally or negligently failed to ensure that its employees followed their training and protocols when administering medical treatment or other assistance to its patients in accordance with the standards of medical care,” and “either intentionally or negligently failed to hire and retain qualified and properly trained employees to provide care or other assistance for its patients in accordance with the standards of medical care.”
Count IV alleged that the employees of the fire department “either intentionally or negligently failed to follow their training in providing care or other assistance to Ronnie Kinser” and “either intentionally or negligently failed to provide proper care or other assistance to their patient, Ronnie Kinser, within the standards of medical care.” Count V was a loss of consortium claim. The couple also sought punitive damages for the “gross negligence and malice” of the defendants. Pond Creek filed a motion to dismiss, asserting governmental immunity under KRS 75.070. KRS 75.070(1) deems a volunteer fire department an agent of the commonwealth when “answering any fire alarms, performing fire prevention services, or other duly authorized emergency services.” KRS 75.070(2) then provides, a volunteer fire department “shall not be liable in damages for any omission or act of commission or negligence while answering or returning from any fire or reported fire or doing or performing any fire prevention work under and by virtue of this chapter.” In response, the Kinsers argued at least some of their claims fell outside the scope of the statute. On October 4, 2017, the circuit court granted Pond Creek’s motion to dismiss. The Kinsers filed a motion to alter, amend, or vacate, conceding the department was likely immune under KRS Chapter 75 for certain actions; however, they argued KRS 75.070 does not expressly apply to their other claims, such as negligent hiring and training, and the “unnamed employees” would only be entitled to qualified official immunity and the facts would need to be further developed to see if such immunity applied. The circuit court entered an order allowing the Continued on following page
Court Decisions Continued from previous page Kinsers 120 days to conduct discovery regarding the immunity of Pond Creek and its employees. The circuit court entered an order finding the fire department entitled to statutory immunity for “any actions or omissions to act or negligence while answering an alarm, performing fire prevention services, or other duly authorized emergency services,” but that it could not make a determination as to the employees or other claims so the parties had to continue to conduct discovery on those issues. Pond Creek appealed the circuit court’s order, but the Court of Appeals dismissed, finding it an improper interlocutory appeal. It subsequently denied Pond Creek’s Motion to Reconsider, and the Kinsers sought discretionary review with the Kentucky Supreme Court. The Court granted discretionary review, vacated the Court of Appeals’ decision, and remanded the matter back to the Court of Appeals “for consideration of whether there was sufficient evidence to warrant a summary judgment on immunity grounds.” On remand, the Court of Appeals reviewed the record and “conclude[d] that there is no evidence in the record whatsoever to warrant entry of summary judgment on the issue of immunity.” As a result, the Court of Appeals dismissed the appeal for lack of jurisdiction. In doing so, the Court acknowledged that a circuit court’s denial of immunity, to the extent that decision turns on an issue of law, is immediately appealable. However, the circuit court did not conclusively resolve the immunity issue or make a finding as a matter of law on the issue of immunity; rather, the Court denied the claim of immunity pending fur36 The Advocate
ther discovery. The Court of Appeals, therefore, concluded the interlocutory order was not immediately appealable and, as a result, the Court of Appeals lacked jurisdiction. The Kentucky Supreme Court then granted discretionary review to determine whether the immunity provided under KRE 75.070 for the performance of emergency services also applies to the training, supervision, hiring, and retention of the personnel who perform those emergency services. The Court, however, never got to that issue because, upon review of the record and arguments of the parties, the Court held this was an improper interlocutory appeal. The Court noted a trial court’s order is not immediately appealable simply because immunity is at issue. “If the trial court’s decision leaves the immunity question unresolved, that order is not immediately appealable.” The Court agreed with the trial court’s conclusion that additional factual development was necessary because the plain language of KRS 75.070 did not expressly provide statutory immunity for claims of intentional or negligent training, supervision, hiring, and retention. Therefore, the Court found, two questions remained—one, whether the fire department’s actions (training, supervision, etc.) were governmental as opposed to proprietary functions entitling the department to immunity and; two, whether the employees’ actions were discretionary as opposed to ministerial entitling them to immunity. The Court declined to definitively hold KRS 75.070 conferred immunity on the fire department for training, supervision, hiring or retention. Instead, the Court agreed factual development is necessary to answer that question. For that reason, the Court held the trial court’s order was interlocutory, not subject to immediate review, and the
Court of Appeals properly concluded it lacked appellate jurisdiction. Not To Be Published Right to Jury Trial Morgan R. Petty v. Kentucky Farm Bureau No. 2019-CA-1150-MR, Nov. 6, 2020, Not To Be Published Morgan Petty was involved in a car wreck in her father’s car, which was uninsured. The other car was insured by Kentucky Farm Bureau (KFB). KFB paid for the damages to the second vehicle and filed suit against Petty to recoup the money. Petty was pro se throughout the entire proceedings. Both she and KFB sought a jury trial. On August 22, 2018, KFB filed a motion to set a trial date and again requested a jury trial. On August 28, 2018, the trial court entered an order setting a bench trial for April 26, 2019. It is unclear from the record why the trial court ordered a bench trial. When the parties appeared before the court on April 26, 2019, the trial court judge informed them she was in a jury trial and could not hear them that day. She also briefly discussed how it was going to be a bench trial. Petty did not raise any objection at that time. A new trial was scheduled for May 6, 2019. On that day, Petty objected to the lack of a jury trial several times, but indicated she was ready to proceed if the court was going to have a bench trial. The court found Petty at fault and awarded $5,000 in damages. The Court of Appeals reversed. To waive a constitutional right effectively, it must be clear that there was an intent to waive. Asking for a jury trial in a pleading is enough to preserve it, even if you don’t object at the time a bench trial goes forward.
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