Kentucky Court Report - SCOKY & COAKY

Discretionary Review Grants - November 2009

Discretionary Review Grants - October 2009 [updated]

The discretionary review grants have been updated as follows based upon the discretionary review list from SCOKY.  Previously, we had simply posted the names of the cases.  The issues are included here:

  

Discretionary Review Grants - October 1, 2009 (September minutes): NONE

No motions for discretionary review were granted in September per Oct. 1, 2009 minutes.

Discretionary Review Grants - Pending - As of Aug. 19, 2009

Discretionary Review Grants - Aug. 19, 2009

Discretionary Review Grants - Pending - As of Aug. 19, 2009

Davis et al . v. Scott et al . ,
2009-SC-159-DG & 2009-SC-391-DG
Assignment of proceeds from legal malpractice claim . Summary Judgment.

The issues are: 1 . whether Kentucky should allow parties to assign a portion of the proceeds from a legal malpractice claim ; 2 . whether the trial court properly grants summary judgment where the parties present conflicting evidence as to whether the assignment was an assignment of a legal malpractice claim or an assignment of a portion of the proceeds and who controls the litigation, and 3. even if a party cannot assign a portion of the proceeds from the claim, can the party proceed with the malpractice litigation? On cross-motion, Scott raised the following issues : 1 . did the trial court err by denying summary judgment on "corrective" attorney's fees ; 2. did the trial court err by failing to grant summary judgment on Davis's claim for emotional distress damages ; 3. did the trial court err by failing to dismiss the case based on the fundamental disagreement between Davis's expert witnesses as to when and how Scott violated the standard of care, and 4. whether one of Davis's expert witnesses can testify Scott violated SCR 3 .130 regarding competency .


Kentucky Public Service Comm v. Commonwealth of Kentucky,
7 2009-SC-134-DG, 2009-SC-150-DG
Public Utilities. Rate Riders.

This is a public utilities case concerning the Public Service Commission's authority to approve a rider; the proper procedure for approving said rider, and the constitutionality of KRS 278 . 509.


Crouch v . Commonwealth,
2009-SC-129-DG
Criminal Law. Prosecutorial Discretion . Rule of Lenity. Equal Protection .

Issues include whether providing a false name to a police officer may be prosecuted as identity theft, a Class D Felony, even though same actions arguably constitute the more specific offense of giving a false name to a peace officer, which is only a Class B misdemeanor.


DISCRETIONARY REVIEW GRANTED WITHOUT ORAL ARGUMENT 8/19/09


Reinstedler v . Reinstedler,
2009-SC-88-DG
Dissolution . Nonmarital Property. Gifts.

Issue is whether Court of Appeals erred in reversing family court's decision that a gift of property from one spouse's parents was intended as a gift to both spouses.

Kentucky Farm Bureau Ins. Co. v. Young,
2008-SC-333-DG
Automobile Insurance. Underinsured Motorist Coverage . Settlements . Notice. Subrogation .

Issues include whether plaintiff insured's KRS 304 .39-320 "Coots notice" to UIM carrier was insufficient to preserve U IM claim, where: notice overstated amount plaintiff was to receive from tortfeasor's liability insurer; notice was not sent by registered or certified mail ; UIM carrier did not substitute payment of settlement amount within thirty days after notice; and plaintiff proceeded with settlement.

Discretionary Review Grants - NO DISCRETIONARY GRANTS OF REVIEW FOR JULY 2009

Discretionary Review Grants - NO DISCRETIONARY GRANTS OF REVIEW FOR JULY 2009

SCOKY COURT ORDERS GRANTING MOTION FOR DISCRETIONARY REVIEW – June 21, 2009

DISCRETIONARY REVIEW GRANTED 6/17/09

Davis et al . v. Scott et al . , 2009-SC-159-DG
Assignment of proceeds from legal malpractice claim . Summary Judgment.
The issues are: 1 . whether Kentucky should allow parties to assign a
portion of the proceeds from a legal malpractice claim ; 2. whether the trial
court properly grants summary judgment where the parties present
conflicting evidence as to whether the assignment was an assignment of a
legal malpractice claim or an assignment of a portion of the proceeds and
who controls the litigation, and 3 . even if a party cannot assign a portion of
the proceeds from the claim, can the party proceed with the malpractice
litigation?

Commonwealth of Kentuckv v . Wanda Combs, 2009-SC-143-DG
Criminal Law. Complicity. Variance. Can the jury convict a defendant as a
principal where the indictment only charges the defendant with complicity?


Baston v. County of Kenton, Kentucky, ex rel . Kenton County Airport
Board, 2008-SC-319-DG
Eminent Domain . Compensation . Evidence. Issues include whether trial
court properly admitted condemnee's evidence regarding change in fair
market value of condemned property pursuant to KRS 416 .660(2), and
whether condemnee presented sufficient evidence to permit jury to award
compensation based upon potential industrial use of property.


Blackstone Mininq Co. v . The Travelers Ins . Co., 2009-SC-15-DG
Workers Compensation . Rejection Notices . Summary Judgment. Burden
of Proof. In controversy between employer and workers' compensation
insurer concerning payment of premiums, issues include whether
employee's filed notice of rejection is presumed to be voluntary, placing on
the insurer the burden to present evidence that it is not, or whether the
employer must prove that the notice is voluntary even in the absence of
contrary evidence.

DISCRETIONARY REVIEW GRANTED WITHOUT ORAL ARGUMENT
6/17/09

Commonwealth v. Pride, 2008-SC-730-DG
Criminal Law. Search and Seizure. Issues include the consideration of
allegedly comparable electrical usage records as part of the totality of the
circumstances in a decision that

SCOKY COURT ORDERS GRANTING MOTION FOR DISCRETIONARY REVIEW – MAY 21, 2009

LOUISVILLE METRO HEALTH DEPARTMENT V. HIGHVIEW MANOR ASSOCIATION, LLC;
2008-SC-000599-DG JEFFERSON

CROMWELL LOUISVILLE ASSOCIATES, LIMITED PARTNERSHIP V. COMMONWEALTH OF KENTUCKY
2008-SC-000644-DG JEFFERSON

JEFFERSON COUNTY PROPERTY VALUATION ADMINISTRATOR STEVEN LICHTENSTEIN V. ROBERTA J. BARBANEL
2008-SC-000661-DG JEFFERSON

CHRISTOPHER SHILOH GAMBLE V. COMMONWEALTH OF KENTUCKY
2008-SC-000669-DG FAYETTE

ORLANDO SAXTON V. COMMONWEALTH OF KENTUCKY
2008-SC-000899-DG GRAVES

RACING INVESTMENT FUND 2000, LLC V. CLAY WARD AGENCY, INC.
2009-SC-000007-DG FAYETTE

GLEN AVERY BRYANT V. PULASKI COUNTY DETENTION CENTER AND BRIAN BISHOP
2009-SC-000036-DG PULASKI

TAMMY SIZEMORE V. KENTUCKY RETIREMENT SYSTEMS
2009-SC-000174-DG FRANKLIN

Saxton v. Commonwealth of Kentucky, 2008-SC-899-DG
Criminal Law. Trafficking in a Controlled Substance within 1,000 Yards of
a School . Culpable Mental State . Entrapment. Issues include whether
conviction under KRS 218A.1411 requires proof that defendant knew drug
transaction was occurring within 1,000 yards of a school; and whether
conviction reflected palpable error and manifest injustice because police
informants designated location of transaction, although issue of
entrapment was not raised at trial .

Bryant v . Pulaski County Detention Center, 2009-SC-36-DG
Qualified Official Immunity. Issues include whether a governmental
employee may assert qualified immunity in a lawsuit brought by a prisoner,
where the prisoner was physically injured by the governmental employee's
acts of "horseplay" or teasing of the prisoner while supervising him on work
release detail .

Racing Investment Fund 2000 v . Clay Ward Agency, 2009-SC-7-DG
Contempt. Limited Liability Companies . Satisfaction of Judgment. Issues
include the trial court's authority to use its contempt power to compel
satisfaction of a judgment against an L.L.C., forcing the L.L.C .'s to make a
capital call for the amount of the judgment per the Operating Agreement
executed by the L.L.C . members.

Gamble v. Commonwealth, 2008-SC-669-DG
Criminal Law. Robbery, First-Degree. The issue is whether a defendant's
written and verbal statements about having a gun, without brandishing it or
pointing to unidentifiable bulges on the defendant's person constitutes
Robbery, First-Degree.

Louisville Metro Health Dept. v. Highview Manor Assoc., LLC . , 2008-SC-
599-DG
Administrative Law. District Court's Jurisdiction. The issue involves the
scope of the district court's authority to review a decision of a local code
enforcement board pursuant to KRS 65.8831 .

Lichtenstein v. Barbanel, 2008-SC-661-DG
Family Law. Wage Garnishment. The issue is whether the trial court can
issue an Income Withholding Order to enforce a judgment based on
property division.

Kentucky Retirement Systems v. Sizemore, 2008-SC-898-DG & 2009-SC-
174-DG
Disability Claims. Pre-existing Condition . Burden of Proof. Retirement
Disability. Total and Permanent Incapacity . The issues are 1 . whether the
courts below have improperly shifted the burden of proof regarding proof of
a pre-existing condition ; 2 . whether multiple sclerosis qualifies as a preexisting
condition ; 3 . whether the courts have improperly substituted their
judgment as to the weight of the evidence for that of the fact finder, and 4 .
whether substantial evidence supports the Retirement System's decision
that Ms. Sizemore failed to establish total and permanent incapacity as
related to her request for retirement benefits based on "relapsing-remitting"
multiple sclerosis.

Cromwell Louisville Assoc. Limited Partnership v. Commonwealth of
Kentucky, Jefferson County Property Valuation Adm. 2008-SC-644-DG
Property Taxes. Administrative Law. The issue is whether the taxpayer
loses the right to a refund if he fails to appeal a Property Valuation
Administration assessment by failing to conference with PVA during the 13
day inspection period held during the same tax year.

SCOKY Discretionary Review Grants for March 11, 2009 (a little late. sorry)

 

SCOKY Discretionary Review Grants for April 2009

DISCRETIONARY REVIEW GRANTED WITHOUT ORAL ARGUMENT

Kentucky Associated General Contractors Self-Insurance Fund v. Music
Construction, Inc. , 2008-SC-795-DG
Contracts. Workers Compensation Reimbursement. In a case in which
the workers' compensation insurer remits all benefits as increased by 30%
pursuant to KRS 342 .165(1) to the employee, is the carrier's
reimbursement action pursuant to the contract with the insured employer
barred by AIG/AIU Insurance Company v. South Akers Mining Company,
192 S .W.3d 687 (Ky. 2006)?

DISCRETIONARY REVIEW GRANTED 4/15/09

Commonwealth Cabinet for Health and Family Services v . L.J.P . , 2008-SC-
950-DGE
Termination of Parental Rights . Intervention . Issues involve an attempt by
paternal grandparents to intervene in an involuntary termination of parental
rights action .
Oral argument-August 2009

Ky. River Medical Center, et. AI. v. McIntosh , 2008-SC-464-DG
Open and Obvious Doctrine. Slip and Fall. The issue is whether a hospital
is liable for injuries to a paramedic who tripped over an unpainted curb
while transporting a patient into the hospital .

The Kroger Co./Country Oven Bakery v . Buckley, 2008-SC-415-DG
Intentional Infliction of Emotional Distress. Disability Discrimination . Law of
the Case doctrine. The issue is whether an appellate court can resurrect a
claim dismissed as pre-empted by a previous panel of the appellate court
in light of the "law of the case" doctrine.

Sajko v. Jefferson County Board of Education ., et. AI. , 2009-SC-21-DG
Notice . The issue is whether a teacher's fax to general counsel for the
school board followed by certified letters mailed on the tenth day but
received on the eleventh day complies with the provisions of KRS 161 .790
(3) which affords school teachers the right to appeal their termination .

Thrasher v. Durham , 2008-SC-809-DG
Evidence . Admissibility and Authentication of Documents. Issues include
whether documents produced during discovery are deemed authenticated
by virtue of their production or whether additional authentication is required
where documents were part of the file compiled by the defendant's former
attorney in a prior lawsuit.

Coomer v. CSX Transportation, Inc. , 2008-SC-784-DG
FELA. Res Judicata. Issue Preclusion . Issues include whether FELA
claim is barred by virtue of plaintiff's prior FELA claim against same
defendant where different injuries and different mechanisms of injury are
asserted .

The Public Service Commission of Kentucky v. Commonwealth of
Kentuckv, 2008-SC-483-DG
AND
The Union Light, Heat, and Power Company, n/k/a Duke Energy Kentucky,
Inc. v. Commonwealth of Kentucky, 2008-SC-489-DG
Utilities .
Public Service Commission. Tariffs. Issues include whether
economic-development riders to utility's rate schedule are lawful under
KRS 278.170 and KRS 278.030.

Machniak v. Commonwealth, 2008-SC-352-DG
Criminal Law. Sentencing . Finality of Sentences. Double Jeopardy. At
issue is plea agreement in which defendant agreed to increasing sentence
if probation terms were violated.

Louisville Gas and Electric Co. v, Hardin & Meade County Property
Owners for Co-location , 2008-SC-348-DG to be heard with Kentucky
Public Service Commission v. Hardin & Meade County Property Owners for
Co-location , 2008-SC-354-DG
Public Utilities . Civil Procedure. Issues include requirements for
enlargement of ten-day time period for designation of record under KRS
278.420 .

SCOKY Discretionary Review Motions Granted on Feb. 2009

In February 2009, the SC granted 13 motions for discretionary review while denying 39 motions. Click here for Minutes.

SCOKY also DEPUBLISHED the following COA decisions:

• Leonard Michael Jamieson  et alo v. Eagle Road & Gun Club
• Ashley Edmunds v. Ronald Fetchko
• Jeffrey Charles Morris v. Com. of Kentucky
• Peggy Sue Rogers v. Com. of Kentucky
• Robert Lynn v. Digital Lifestyles

Here are the 13 MDR grants with links (if available) to lower court decision, and the 'opening paragraph' from the decision to give you an idea of the issue in the case:

COURT ORDERS GRANTING MOTION FOR DISCRETIONARY REVIEW –  FEBRUARY 11, 2009

DR. GHASSAN HAJ-HAMED V.  OHIC INSURANCE COMPANY
2008-SC-00127-DG CAMPBELL
2006CA000200
BEFORE:  STUMBO AND VANMETER, JUDGES; GUIDUGLI, SENIOR JUDGE. VANMETER, JUDGE:  OHIC Insurance Company appeals from a judgment entered by the Campbell Circuit Court after a jury found that OHIC negligently failed to comply with its duties toward Ghassan Haj-Hamed and Husam Hamed.  Haj-Hamed, Hamed, and the Riverside Medical Center (cross-appellants) cross-appeal from the same judgment. For the reasons stated, on direct appeal we affirm in part, and we reverse and remand in part.  We affirm on cross-appeal.

LILA FAYE SPENCER V. ESTATE OF CHARLES SPENCER
2008-SC-000191-DG MCCRACKEN
2007CA000277
BEFORE:  NICKELL, THOMPSON AND VANMETER, JUDGES. THOMPSON, JUDGE:  Charles Spencer and Lila Faye Spencer (Faye) were married on November 4, 1995.   Both parties had been previously married, with children and premarital property.  The majority of Charles' assets were inherited from his first wife. To provide for the disposition of their respective property upon the termination of their pending marriage either by dissolution or death, prior to their marriage, Charles and Faye executed a document entitled “Antenuptial Agreement.”  Charles' estate argues that the agreement prevails over Faye's interest in an Edward Jones brokerage account registered as a joint account in Charles' and Faye's names.  We agree with the circuit court's finding that the antenuptial agreement did not preclude Charles from giving Faye an interest in the account; however, we disagree that a joint account with a right of survivorship was created.  We, therefore, reverse and remand.

ESTATE OF CHARLES SPENCER V. LILA FAYE SPENCER
2008-SC-000196-DG MCCRACKEN

CINCINNATI INSURANCE CO. V. MOTORISTS MUTUAL INSURANCE CO.
2008-SC-000293-DG JEFFERSON
2007CA000818

BEFORE:  LAMBERT AND VANMETER, JUDGES; KNOPF,1 SENIOR JUDGE. VANMETER, JUDGE:  Motorists Mutual Insurance Company appeals from a Jefferson Circuit Court order granting summary judgment in favor of The Cincinnati Insurance Company.  We vacate and remand to that court. In 1994-95, Elite Homes, Inc. built and sold a house to Lawrence and Jennifer Mintman.  At the time, Elite was covered under a comprehensive general liability policy issued by Motorists.  Effective July 1, 1996, Elite procured a commercial liability policy from Cincinnati.  In 2001, the Mintmans brought this action against Elite alleging serious latent structural defects as a result of substandard work performed by Elite and/or its subcontractors.  The defects included cracks in the drywall and exterior brick walls, defective windows and doors, sagging floors, separation of brick veneer from exterior walls, and leaning walls.  Ultimately, construction experts determined that subcontractors hired by Elite to perform framing and foundation work had done the work improperly.  Elite notified both Motorists and Cincinnati of the action.  Cincinnati refused to investigate or defend Elite.  In its letter declining coverage, Cincinnati informed Elite: In review of this matter, It [sic] would appear that the damage in part or all may fall prior to the policy period.  We must note that even if part of the damage falls within our policy it would appear that there is a question if all claims fit the definition of property damage in the policy.  The allegations do not appear to have arisen from an occurrence as defined in the policy. We also note the above-cited exclusions are on point for the allegations, as the damages are claimed for the house itself and do not involve damage to other property.  Therefore in light of the information obtained, we have determined there to be no coverage under our policy for this claim. Motorists defended Elite and paid $130,000 to settle the case with the Mintmans.  Motorists also took an assignment from Elite and the Mintmans for any claim they might have against Cincinnati, and filed a third-party complaint against Cincinnati to recover the settlement payment plus fees and costs of approximately $62,000 incurred in defending Elite.

KENTUCKY RETIREMENT SYSTEMS V. DILLARD WAYNE BROWN, INDIVIDUALLY  AND AS EXECUTOR OF THE ESTATE OF  BARBARA FAYE REED BROWN, DECEASED
2008-SC-000326-DG FRANKLIN
2006CA000296
BEFORE:  ACREE, DIXON, AND KELLER, JUDGES.  ACREE, JUDGE:  Kentucky Retirement Systems (the Systems) appeals from the Franklin Circuit Court’s reversal of a decision of the Disability Appeals Committee of the Board of Trustees of the Kentucky Retirement Systems (the Board) that Barbara Brown did not qualify for disability retirement benefits under KRS1 61.600.  Mrs. Brown passed away from her disabling condition, chronic obstructive pulmonary disease or COPD, before the 1 Kentucky Revised Statutes.Franklin Circuit Court rendered its decision in this case.  Her husband, Dillard Wayne Brown, chose to continue this action as executor of her estate.  Because the evidence in Mrs. Brown's favor is so compelling that no reasonable person could have failed to be persuaded by it, we affirm the Opinion and Order of the Franklin Circuit Court.

AUTO OWNERS INSURANCE CO. V. OMNI INDEMNITY COMPANY
2008-SC-000606-DG
JEFFERSON
2007CA001165
BEFORE:  COMBS, CHIEF JUDGE; KELLER JUDGE; HENRY, SENIOR JUDGE. HENRY, SENIOR JUDGE:  The tort victim’s underinsured motorist carrier, Auto Owners Insurance Co., appeals from an order of the Jefferson Circuit Court determining that Auto Owners is not entitled to restitution from the tortfeasor’s insurer, Omni Indemnity Company, for funds advanced to the tort victim pursuant 1 Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.to Coots v. Allstate Insurance Company, 853 S.W.2d 895 (Ky. 1993).  Subsequent to the advancement, the tortfeasor filed bankruptcy and Auto Owners failed to file proof of its claim with the bankruptcy court, resulting in the tortfeasor’s dismissal from the lawsuit with no finding of liability against him.  For the reasons stated below, we affirm.

ROBERT HOLLON V. COMMONWEALTH OF KENTUCKY
2008-SC-000618-DG  FRANKLIN 
2007CA001053
BEFORE: CLAYTON, MOORE, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Robert Hollon brings this appeal from an April 18, 2007, order of the Franklin Circuit Court denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion for postconviction relief. We affirm.

CSX TRANSPORTATION V. JOHN X. BEGLEY
2008-SC-000643-DG
PERRY
2007CA001380
BEFORE: DIXON, LAMBERT, AND STUMBO, JUDGES. DIXON, JUDGE: CSX Transportation, Inc., appeals from a judgment of the Perry Circuit Court following a jury verdict awarding damages to CSX’s former employee, John X. Begley, pursuant to the Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60 (hereinafter “FELA”). Begley, who was born in 1942, began working for CSX at its railroad yard in Hazard, Kentucky, in June 1970. For twenty years, Begley’s job duties required him to jump out of slow-moving train cars, landing on the large gravel, or ballast, surrounding the tracks.1 Begley retired from CSX in 1998, and thereafter sought treatment for pain in his knees, hips, and back. In March 2003, Begley filed suit against CSX pursuant to FELA, alleging CSX failed to provide a safe working environment, which caused Begley to develop debilitating osteoarthritis in his knees and hips. Following a lengthy discovery period, a jury trial commenced on April 9, 2007.

MEMBERS CHOICE CREDIT UNION, ET AL. V. HOME FEDERAL SAVINGS AND LOAN ASSOCIATION
2008-SC-000877-DG FRANKLIN
2007CA002353
BEFORE: KELLER AND WINE, JUDGES; LAMBERT,2 SENIOR JUDGE.
WINE, JUDGE: The Commonwealth of Kentucky, ex rel. The Office of Financial Institutions (OFI), appeals from a declaratory judgment of the Franklin Circuit Court which rejected the agency’s interpretation of Kentucky Revised Statutes (KRS) 286.6-107 as allowing community or geographic charters for state credit unions. OFI and the intervening credit unions now appeal, arguing that Home Federal Savings and Loan (Home Federal) lacked standing to bring this action and failed to exhaust its administrative remedies. We agree with the trial court that Home Federal had standing to bring this action and was not required to pursue this matter through administrative proceedings. We further find Home Federal is not barred from bringing this action by the doctrine of laches, and that there were no relevant issues of fact which precluded summary judgment. On the substantive 2 Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580. -2-issue, we conclude that the trial court’s interpretation of KRS 286.6-107 is more consistent with the plain language of the statute than OFI’s interpretation. Therefore, the trial court correctly found that OFI is not authorized to grant community- or geographic-based charters to state credit unions. Hence, we affirm.

COMMONWEALTH OF KENTUCKY V. NABRYAN MARSHALL
 2008-SC-000894-DG FAYETTE
2007CA002518
COMBS, CHIEF JUDGE: On October 15, 2007, Nabryan Marshall entered a conditional guilty plea in Fayette Circuit Court to one count of trafficking in a controlled substance and one count of bail jumping. He appeals an order of the trial court denying a motion to suppress evidence that was obtained through a strip search. He also contends that he should have received a competency hearing. After carefully reviewing the record and examining the law, we vacate in part and remand and affirm in part.

BRANDI CHIPMAN V. COMMONWEALTH OF KENTUCKY
2008-SC-000895-DG KENTON
2007CA000690
KELLER, JUDGE: The issue presented is the proper disposition of a juvenile who was charged with Robbery in the First Degree,2 was transferred to circuit court as a as use of a firearm, in the commission of the offense. Kentucky Revised Statute (KRS) 515.020. youthful offender, and pled guilty to the lesser offense of Robbery in the Second Degree. For the reasons set forth below, we affirm.

WILLIAM BUCK V. COMMONWEALTH OF KENTUCKY
2008-SC-000896-DG CAMPBELL2007CA001481
2007-CA-001481-MR
WINE, JUDGE: William Buck entered a conditional guilty plea in the Campbell Circuit Court to one count of failing to register as a sex offender. Buck was sentenced to three years in prison in accordance with the plea agreement. Buck now appeals that conviction, arguing the General Assembly and the trial court violated the ex post facto clauses of the United States and Kentucky Constitutions applying the sex offender registration law to him. Finding no error, we affirm.

TROY MOODY V. CSX TRANSPORTATION, INC.
2009-SC-000048-DG JEFFERSON
2005CA001494
THOMPSON, JUDGE: This is an appeal from a judgment following a jury verdict finding CSX Transportation liable under the Federal Employer's Liability Act, 45 U.S.C.A.§ 51-60, (FELA), for a permanent psychiatric neurological injury sustained by pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580. Troy Moody as a result of his exposure to solvents during the course of his employment with CSX. The jury returned a verdict for Moody awarding him damages as follows: future medical expenses, $200,000; impairment of his earning capacity, $540,000; past pain and suffering, $1,000,000; and future pain and suffering, $1,000,000. CSX alleges that: (1) the evidence was insufficient to submit the issue of foreseeability to the jury; (2) the trial court should have given a specific foreseeability instruction; (3) the evidence was insufficient to prove causation; (4) it was error to allow Moody to introduce evidence of other dissimilar claims filed by workers against CSX; (5) the evidence was insufficient to support the jury's award for future medical expenses and lost wages; (6) the trial court erroneously failed to instruct the jury that lost wages and future medicals are non-taxable; and (7) the trial court should have instructed the jury to discount the award to present value.