Kentucky Court Report - SCOKY & COAKY

Judge's direction to defendant to answer prosecutor's question did not violate Fifth Amendment and opening door by defendant did not require notice per KRE 404(c): DILLMAN V. COM (COA 6/6/2008)

DILLMAN V. COM
CRIMINAL:  Fifth Amendment; KRE 404(b)
2007-CA-000455
PUBLISHED: AFFIRMING
PANEL: THOMPSON PRESIDING; KELLER, GRAVES CONCUR
PULASKI COUNTY
DATE RENDERED: 6/6/2008

Defendant's Fifth Amendment privilege against self-incrimination was not violated when the TC ordered him to respond to the prosecutor's question while testifying. In this drug trafficking prosecution, Dilman testified that he was merely an uncompensated middleman for a friend. When asked who was the supplier, Dilman invoked the Fifth Amendment. Given that Dillman’s own testimony placed the prosecutor’s question within the scope of relevancy, TC properly ordered him to respond.

Dillman’s assertion of an entrapment defense was not sufficient to support the introduction of his prior unsworn out-of-court statement. Dillman’s prior statement was made several years prior to the dates he committed the charged offenses. The introduction of the prejudicial prior statement substantially outweighed its probative value. However, CA concluded that Dillman “opened the door” for the introduction of his prior statement, and therefore, affirmed the trial court. Under the circumstances, the Commonwealth did not violate the notice requirement of KRE 404(c). As demonstrated to the trial court, the Commonwealth acted in as prudent a manner as possible under the circumstances. The Commonwealth disclosed the prior statement at the earliest feasible time in which it believed the evidence was relevant. Finally, Defendant was not entitled to a facilitation instruction.

Digested by Scott C. Byrd
www.OlginandByrd.com

No time limitations for appealing open records denial to attorney general: WYRICK V. DEPARTMENT OF REVENUE, FINANCE, AND ADMINISTRATION CABINET (COA 5/30/2008)

WYRICK V. DEPARTMENT OF REVENUE, FINANCE, AND ADMINISTRATION CABINET
GOVERNMENT:  Open Records Request
2007-CA-000089
PUBLISHED: REVERSING IN PART, VACATING IN PART, AND REMANDING
PANEL: KELLER PRESIDING; THOMPSON, GRAVES CONCUR
FRANKLIN COUNTY
DATE RENDERED: 5/30/2008

In this open records request case, the Department of Revenue sought review of the Attorney General's decision, requiring disclosure of certain records requested by taxpayer's attorney, Mitzi D. Wyrick, who appealed the circuit court order which barred her from inspecting the documents.

COA held there was no time limitation to appeal open records denial to the attorney general and declined the DOR’s request there be a 30-day time limitation for seeking review before the Attorney General and hold that pursuant to the plain language of the statute, Wyrick’s appeal to the Attorney General would have been timely whenever she chose to file it.

With regard to the records requested, the DOR cannot on the one hand argue, successfully, that the material sought in the tax appeal case is irrelevant to that litigation to defeat the discovery request, and then on the other hand argue in the Open Records proceeding that it is pertaining to that litigation and therefore subject to the limitation. The DOR is not “permitted to feed one can of worms” to the Board of Tax Appeals and another to the circuit court in the Open Records action.  COA then rejected the DOR’s argument that just because a record requested in discovery is deemed irrelevant, does not mean that it is not related to that litigation. The public agency bears the burden of establishing that a requested record is exempt from release. When ruling on party litigation defense to Open Records Act request, trial court was required to first determine whether a listed exemption applied.  However, the party litigation limitation was inapplicable because underlying litigation  in this was case was a tax appeal and was administrative, not civil.

Digested by Michael Stevens

 

"Other acts" evidence that defendant struck/shook child were admissible as well as autopsy photos: DANT V. COM (SC 5/22/2008)

DANT V. COM
CRIMINAL:  Hearsay; Prior Bad Acts
2006-SC-000505-MR.pdf
PUBLISHED: AFFIRMING
OPINION BY ABRAMSON
COUNTY: HANCOCK
DATE RENDERED: 5/22/2008

SC affirmed Dant's conviction and life sentence for wanton murder. TC did not violated the hearsay rules nor KRE 404(b) when it admitted incriminating testimony. Because the evidence of Dant previously smacking Addryana on the head when she did not mind him could support a "reasonable probability" that Dant also struck Addryana on the head and/or used violence to stop her from crying on the night of her death, SC found that the trial court did not abuse its discretion when it determined that this evidence was relevant under KRE 404(b). Since the probative value of this evidence is not outweighed by its prejudicial effect, SC affirmed the trial court's ruling on the admissibility of Dant's prior abuse of Addryana. The evidence strongly reveals a common element that precedes each act of physical abuse-a crying baby. Despite the fact that each physical act was not identical, because each action was prompted by a crying child, Hall's testimony regarding Dant's prior abuse of Katilyn and Isaac fits within the pattern of conduct exception and was properly admitted at trial. Since Dant was given actual notice of the Commonwealth's intent to introduce KRE 404(b) evidence in time to adequately challenge its admissibility, SC concluded that he did not suffer any prejudice and the trial court did not err in finding that the notice requirement of KRE 404(c) was satisfied.

Digested by Scott C. Byrd
Olgin and Byrd

Multiple issues addressed in medical negligence case dealing with evidentiary challenges and denial of mistrial; evidence of decedent child's genetic defect admissible on earning capacity: WOOLUM, M.D. v. HILLMAN (COA 5/2/2008)

WOOLUM, M.D. V. HILLMAN
MEDICAL NEGLIGENCE: EVIDENTIARY CHALLENGES, DENIAL OF MISTRIAL
2007-CA-000376 - 516
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
PANEL: STUMBO PRESIDING; ACREE CONCURS, GRAVES DISSENTS FILING SEP. OP.
BELL COUNTY
DATE RENDERED: 5/2/2008

This appeal and cross-appeal stem from a medical negligence wrongful death action. Lisa Ann Hillman was the patient of Dr. Jerry Woolum during her pregnancy with Caitlynn Hillman. Complications occurred during her pregnancy and Caitlynn was stillborn. A jury found medical negligence on the part of Dr. Woolum and awarded Mr. and Mrs. Hillman a total of $500,000 for their loss of companionship claims ($250,000 each) and $600 for funeral expenses, but chose to award $0 for the child's permanent earnings impairment. The TC later ordered a new trial on the issue of the $0 verdict for permanent impairment. Following the court's ruling on motions in limine in regard to certain evidentiary issues concerning the second trial, the parties entered into an agreement stipulating that the loss to Caitlynn's estate was $475,000 and this appeal followed.

On appeal, Dr. Woolum argued that the TC made several evidentiary mistakes and errors in certain rulings, most notably as follows: 1) it erred in denying his motion for directed verdict; 2) it erred in not declaring a mistrial during the first trial, and 3) it erred by granting the Hillmans a new trial on the issue of damages. The Hillmans cross-appeal and raise two additional issues to be considered by the COA: 1) TC erred by not excluding the testimony of two of Dr. Woolum's experts during the first trial, and 2) it erred by not preventing the jury of the proposed second trial from being informed about the damages awarded to them at the first trial.

TC's Failure to Exclude Evidence of Liability Insurance

Woolum first argued to the COA that the TC erred by admitting evidence of a common med mal insurer between himself and one of his experts, Dr. Butcher. The COA felt that the TC did not abuse his discretion in this admission, noting that Dr. Butcher had shown "extreme bias" toward med mal cases that the jury should be allowed to consider. The COA described Dr. Butcher's "hostility" to med mal cases as extreme (Butcher testified during his depo that be believed there was a direct link between med mal cases and insurance rates and that he had left one state because of alleged collusion between judges and lawyers in med mal cases) and when considering his personal relationship with Woolum (they had practiced together at the same hospital for over 20 years) the TC had sufficient basis to admit the testimony concerning the common malpractice insurer.

TC's Failure to Exclude Introduction of Ultrasound Video

Woolum next argued error in the TC permitting the video of Hillman's ultrasound to be shown to the jury during Hillman's testimony on the basis that it was not properly authenticated by a medical professional. Woolum also alleged that permitting the video to play while Hillman cried on the stand during her testimony was extremely prejudicial, and finally that the video was unnecessary and cumulative since the ultrasound report had already been introduced as evidence. The Hillman's countered that the video was necessary to show that at 7 months the child was healthy and moving around, and to demonstrate the love and affection the Hillman's had for their deceased child.

The COA begins notes that a video is considered a photograph per KRS 1001(2), and that for such evidence to be introduced it must satisfy 3 factors on admissibility per Gordon v. Hunt (2000): it shall be properly authenticated, it must be relevant by tending the make the existence of any fact in question more or less probable, and it's probative value must not be substantially outweighed by the danger of undue prejudice or be considered needless presentation of cumulative evidence. The COA held that the ultrasound video satisfied all 3 factors and therefore was not an abuse of discretion for the TC to permit its introduction even if it could be considered cumulative.

TC's Failure to Grant Motion for Directed Verdict

Dr. Woolum next argued the TC erred by denying his motion for a directed verdict since the Hillman's failed to present proof of the viability of the deceased child (Woolum's defense was that the death was due to an unknown genetic defect). After briefly setting out relevant testimony from one of Hillman's experts that the child was viable had she been born during the month time period preceding the stillborn birth, the COA held that there was sufficient evidence of viability to submit to the jury.

TC's Failure to Grant Mistrial

Woolum contended on appeal that the TC erred by not declaring a mistrial due to inadvertant jury misconduct stemming from two of the jurors becoming ill from high blood pressure and heart problems and having to be transported to the hospital during the deliberations. Woolum felt that since the nature of the juror's problems were due to the very same issue in the case (high blood pressure), these two jurors could have become biased against him as well as the other jurors who witnessed the two jurors' illnesses. The COA noted that the judge gave admonitions to the jury on a daily basis throughout the trial as well as immediately after the jurors fell ill and again before deliberations resumed several days later, and that juries are presumed to follow a court's admonitions. Without some specific evidence to the contrary, the COA ruled that a mistrial was not warranted.

TC's Grant of New Trial

Woolum argued that the TC erred by overruling the jury's verdict and granting the Hillman's a new trial on damages (concerning the wrongful death claim) since evidence presented in regard to the child's genetic defect could have permitted the jury to find that the child had no ability to earn money. In response, the COA reiterated the Supreme Court's decision in Turfway Park Racing Ass'n v. Griffin (1992) that only evidence of a disability so profound as to render the child incapable of earning money can defeat a permanent impairment claim. While Woolum contended that the unknown genetic abnormality prevented the placenta from developing properly thereby resulting in stillbirth, the COA noted that none of its experts had any evidence to indicate that the child would grow up to be anything but normal. The COA thus concluded that the TC's grant of a new trial on impairment damages was not clearly erroneous.

TC's Refusal to Permit Evidence of Lack of Earning Capacity

Woolum finally argued that the TC erred in ruling in limine that Woolum could not present evidence that the child had no earning capacity on the basis that the "law of the case doctrine" precluded such evidence since none was presented at the first trial. The COA agreed with Woolum and determined that the doctrine was inapplicable since the jury in the first trial was not asked to determine whether a genetic defect existed or whether it caused the child's death, only whether Woolum was negligence in his care of Hillman and the child. Further, this doctrine applies to rulings of law, not issues of evidentiary admission, and the TC never made a ruling that could be construed as determinative on the issue of the child's earning capacity. Thus, the COA concluded Woolum could present evidence of genetic defect and the child's lack of earning capacity at the new trial on damages.

CROSS-APPEAL

TC's Failure to Exclude Proffered Testimony of Genetic Defect

On cross-appeal, the Hillman's argued that the TC erred by permitting Woolum's two experts to offer their theory that the child's death was proximately due to an unknown genetic abnormality in violation of Daubert. The COA discusses the factors a trial court must consider in weighing the reliability and relevancy of proffered testimony, and its ruling is not clearly erroneous so long as the decision is supported by substantial evidence. The COA stated that just because the genetic defect in this case fell in the "unknown" category did not mean it should be automatically excluded, and determined that the qualifications of Woolum's two experts along with the medical evidence presented by Woolum was sufficiently reliable to be heard by the jury. Without question, the proffered expert testimony was relevant since it was the heart of Woolum's defense. Thus, the testimony was properly allowed by the TC.

TC's Refusal to Preclude Evidence of Awarded Damages at Second Trial

The Hillman's last argued that it was error for the TC to deny their motion to limine to exclude the introduction of damages awarded in the first trial at the second damages trial. The COA ruled that the Supreme Court in Turfway Park has recognized that the jury at a second retrial should be informed of damages for loss of companionship awarded at an earlier trial involving the same event and allegations, and thus the TC's ruling on this issue was proper.

Conclusion

The COA affirmed the TC in all respects except that it held that Woolum should be permitted to present evidence of the child's lack of earning capacity at the new trial on damages concerning the wrongful death claim.

Digested By Chad Kessinger
Schiller Osbourn Barnes & Maloney 

Daubert hearing, findings of fact, sufficiency of causation in scientific evidence, and learned intermediary instruction in medical negligence and products liability case involving punitives: HYMAN & ARMSTRONG PSC V. SANDOZ PHARM. (SC 4/24/2008)

HYMAN & ARMSTRONG, P.S.C. & SANDOZ PHARMACEUTICALS V. GUNDERSON, ET AL.
MEDICAL NEGLIGENCE & PRODUCTS LIABILITY: DAUBERT CHALLENGES OF MEDICAL DATA; LEARNED INTERMEDIARY INSTRUCTION
http://opinions.kycourts.net/SC/2006-SC-000175-DG.pdf
PUBLISHED: OPINION AFFIRMING
AUTHORED BY JUSTICE SCHROEDER
COUNTY: JEFFERSON
DATE RENDERED: APRIL 24, 2008

In this well-publicized case, a Jefferson County jury awarded Gunderson's estate, her surviving husband and two minor children a total of almost $19.1 million ($6 million for loss of parental consortium and approx. $1.85 million for loss of earning power and services along with $11.25 million in punitives) in February 2004 against Dr. Lynn Armstrong and Sandoz Pharmaceuticals (90% of compensatorys and all of punitives assessed to Sandoz) stemming from the sudden death of Gunderson in October 1993 while taking Parlodel postpartum (to stop lactation) as prescribed by Dr. Armstrong and manufactured by Sandoz. On appeal, the COA affirmed the compensatory damages award, but vacated the punitives award based on its determination that the TC failed to instruct the jury that punitives could not be based on conduct of Sandoz that occurred outside Kentucky. By opinion dated October 21, 2005, the COA remanded for a new trial on the amount of punitives only. Dr. Armstrong and Sandoz filed separate motions for discretionary review, which were granted and consolidated for the Supreme Court's review.

In its 48-page opinion, the SC addresses a number of issues raised by one or both Appellants as follows:

Lack of Daubert Hearing by TC

Both Appellants argue that the TC never conducted a formal Daubert hearing per their request to determine the admissibility of Gunderson's causation experts, which was error. The SC makes note that a hearing is only required if the record is not complete enough to measure the proffered testimony against the proper standards of reliability and relevance. In this case, the SC notes that the TC had a "mountain" of discovery material, reports, affidavits, scientific studies, etc. as well as extensive briefing by the parties, and devoted an entire day addressing the parties' motions in limine, many of which related to the admissibility of the same scientific evidence being challenged. Thus, the Court felt that the TC did not abuse its discretion in conducting its review of the Daubert motions without a formal hearing.

Lack of Express Findings of Fact on Daubert Ruling by TC

While acknowledging the lack of any written findings of fact to support the TC's decision, the Court reiterated recent Kentucky decisions determining that the only requirement is that the record clearly show the TC effectively conducted a Daubert inquiry. While the SC would prefer trial courts to include findings of fact in their rulings, the failure to do so does not automatically render the rulings arbitrary, unreasonable or unfair and is not grounds for reversal. An appeals court's review standard is clear error to see if the TC's ruling is supported by substantial evidence in the record.

Reliability and Relevance of Causation Evidence

The general basis for the Appellants' challenges to the various pieces of scientific evidence (case reports, animal studies, chemical analogies) relied upon by Gunderson's causation experts was that they were unreliable and/or irrelevant because the evidence failed to prove that Parlodel causes seizures in women taking the drug specifically for postpartum lactation suppression (PPLS). Instead, the Appellants suggested that the only reliable method of proving this theory is an epidemiological study, and since the only 2 such studies done found no significant link between the drug and such seizures the evidence cited by Gunderson's experts was unreliable. In response, the SC spends a good deal of time in tracing the history of Parlodel, the reported cases of new mothers suffering seizures, strokes and heart attacks while taking the drug (especially those women who had hypertension during the pregnancy), and pointing out the bias and unreliability of the two referenced epidemiological studies. The Court acknowledged the fact that the great majority of courts from other jurisdictions addressing the same Daubert issues relating to the same scientific evidence presented by the Gunderson's have ruled that such evidence was inadmissible. However, the Court felt the reasoning expressed by the U.S. District Court in Alabama was more on point in its determination that the majority courts had created too high a standard of admissibility under Daubert by equating reliability with scientific certainty. The SC highlighted the Alabama court's view that while an epidemiological study may be the best evidence on the issue at hand, Daubert requires only that reliable evidence be presented and that the evidence at issue (animal studies, case reports, medical literature reviews) met that standard as being routinely used by scientists. In the end, the Court reiterated the TC's view that while any one of the individual pieces of evidence may not definitely prove that the drug causes postpartum seizures, when considered together as an aggregate body of evidence all of it was reliable enough to put before the jury.

Sufficiency of Causation Evidence

Dr. Armstrong next argued that the Appellants were entitled to a direct verdict because there was insufficient reliable evidence that Parlodel caused the decedent's alleged seizure (there was some issue about the exact cause of her death since the state medical examiner found no anatomic cause of death initially and only after further research into Parlodel and its reported effects on PPLS women concluded that death was attributed to seizure ). The SC again highlights generally the nature of the pieces of evidence relied upon by Gunderson's expert and agreed with the TC that when viewed together they tend to show that the drug can cause seizures in women taking it for PPLS, and even referenced Sandoz' internal memos from 11 years pre-death that acknowledged a connection between the drug and postpartum hypertension and seizures.

The second part to this issue was whether the Gunderson's presented enough evidence of specific causation - that death was actually caused by a seizure due to the ingestion of Parlodel. The SC noted that all 3 of their medical experts used the differential diagnosis methodology to reach their independent conclusions that the drug caused the seizures that led to Gunderson's death, and analyzed the respective investigations and bases for the opinions of each of the experts before concluding that the Gunderson's had met their burden of proof on this issue submit for a jury to determine.

Failure of TC to Give Learned Intermediary Instruction

3 months after the trial in this case, the SC adopted the learned intermediary doctrine from the Restatement (Third) of Torts in Larkin v. Pfizer, Inc., which relives a drug manufacturer from liability to the ultimate consumer if it provides adequate warning about the drug to the prescribing physician. Sandoz argued information in the package insert for Parlodel and the PDR, as well as direct letters to doctors, sufficiently noted the risks and seizure and hypertension for postpartum patients and therefore constituted an adequate warning entitling it to the instruction. Despite acknowledging the evidence presented of Sandoz's alleged deception and continued marketing of Parlodel even after the FDA asked it to withdraw its indicated use for PPLS, the SC held that the TC erred in its failure to give the instruction since Sandoz had presented enough evidence of an adequate warning to Dr. Armstrong of the risks of the drug. However, the SC ruled that the Gunderson's had met their burden of demonstrating no prejudice resulted from the error given the "abundant" evidence they presented of Sandoz's efforts to deliberately conceal or downplay the drug's risks and when considering the jury's assessment of almost all of the liability to Sandoz, a fact that severely undercut Sandoz's argument on the drug warning's adequacy.

Failure of TC to Grant Directed Verdict on Medical Malpractice Claim

Dr. Armstrong next argued the TC erred by not directing a verdict on the medical malpractice claim filed against him since the Gunderson's failed to show his treatment of the decedent violated the applicable standard of care. The SC agreed that something more than mere injury from a drug must be shown in order to have a viable med mal claim, but noted that Gunderson's experts had presented sufficient evidence that it was a deviation of the standard of care for Dr. Armstrong to prescribe Parlodel in 1993 (even though it was not when he prescribed it to the deceased after her first pregnancy in 1989) because of the additional information about the known risks of the drug when used for PPLS that had come forth during those four years and the fact that she had suffered from gestational hypertension during the second pregnancy.  The SC reaffirmed the majority view among courts that while information about the drug in the package insert and PDR is relevant and useful information regarding the prescribing doctor's standard of care, it is not the sole determinant of this standard. The Court therefore concluded that the Gunderson's had presented enough evidence for the jury to consider this claim.

Mitigation Evidence on Loss of Parental Consortium Claim

Appellants attempted unsuccessfully to present evidence of the two surviving sons' close relationship with their father's girlfriend of 4 years (at trial time) to mitigate the damages on their loss of parental consortium claims, and argued on appeal that it was an abuse of the TC's discretion to deny the proffered evidence. The TC had felt that the evidence could not be presented on the parental consortium claim where it was arguably admissible without running the risk that it would be considered in connection with the estate's wrongful death claim where it clearly was not admissible. The COA agreed with the TC since the relationship between the decedent's husband and new girlfriend was not of sufficient duration and stability to be admissible.

The SC began its review by noting that the admissibility of such relationships on a parental consortium claim was one of first impression in Kentucky, and then traced the distinctions between spousal and parental consortium claims through Kentucky case law. While not wanting to minimize the loss of a spouse's consortium, the SC held that it is undeniable that a child's loss of parental consortium is often greater and more difficult to recover from over time. The SC thus concluded that the proffered evidence in this case was not admissible on the parental consortium claims (even though it would be on a spousal consortium claim).

Admissibility of Gunderson's Mental Health Counselor Testimony

Appellants challenged the admissibility of any testimony from Dr. Bower, a mental health counselor who had performed a psychological assessment on both children in the lawsuit and concluded that both had been deeply affected by their mother's death. Her testimony included the showing of drawings the children had made and their significance to their mother's death. Appellants filed a motion in limine on grounds that her testimony was too speculative, subjective and inflammatory, and not based on good science or methodology as required by Daubert (since Bowers had not performed any form of objective, standardized testing during her analysis). The SC concluded that Bowers' extensive education and experience in child counseling and the limited purpose of her testimony rendered her testimony sufficiently reliable and therefore admissible on the parental consortium claims under KRE 702.

Admissibility of Evidence of Dr. Armstrong's Cross-Claim against Sandoz

In 1998, Dr. Armstrong's estate (he passed away while the case was pending) filed a cross-claim against Sandoz alleging fraudulent misrepresentation and gross negligence in its marketing of Parlodel and sought damages for injury to his reputation and for indemnification on the Gunderson's claims. Prior to trial, Sandoz entered an indemnification agreement with Dr. Armstrong settling his claims and taking over his defense. The cross-claim was dismissed and Dr. Armstrong offered no evidence against Sandoz. However, the TC ruled that the cross-claim could be introduced as evidence of the Defendants' non-adverse relationship per KRE 408. The Gunderson's discussed the cross-claim during their opening and closing statements and was mentioned during voir dire. Sandoz cites error in the TC's decision since the cross-claim was inadmissible hearsay introduced as substantial evidence against it in violation of KRE 801. The SC notes that while Gunderson had argued at trial that the cross-claim was admissible to show Dr. Armstrong's change in position and the collusive nature of his relationship with Sandoz while on appeal it was argued that the cross-claim was non-hearsay as an admission of a party-opponent (KRE 801A(b)) since Dr. Armstrong admitted therein that the drug was unsafe and caused Gunderson's death, which contradicted his position at trial.

The SC held that while the settlement agreement between the Defendants was admissible per KRE 408 to show the potential bias of the Defendants who were previously adversaries, the cross-claim was not. Although KRE 801A(b)(1) allows introduction of an adverse party's admissions, such evidence can only be used against the declaring party. Here, the SC noted that the Gunderson's clearly used the cross-claim to try and prove Sandoz's liability instead, and even conceded to the TC that the cross-claim tended to exculpate Dr. Armstrong. Thus, the SC ruled that the TC erred in admitting the cross-claim. However, the SC determined the error was not palpable and that no manifest injustice resulted in light of the other voluminous and "quite damning" evidence that certainly was persuasive to the jury.

Punitive Damages

Sandoz appealed the TC's refusal to tender a jury instruction pursuant to the US Supreme Court's decision in State Farm v. Campbell (2003) that specifically precluded the jury from using punitive damages to punish Sandoz for conduct outside Kentucky. The COA ruled this was error and remanded for a new trial on the amount of punitive damages only. On appeal to the SC, Sandoz argued that the COA's decision deprived it of the right to a fair trial because it improperly presumed the Gunderson's were entitled to such damages in the first place. In response, the SC agreed with the COA that the Gunderson's had presented sufficient evidence that Sandoz acted with wanton or reckless disregard for the decedent thereby justifying a punitive damage instruction. However, in accordance with its earlier decision in Sand Hill Energy v. Smith (2004), the SC ruled that Sandoz was entitled to a new trial on liability for punitive damages rather than just a determination of the amount of such damages to be awarded.

CONCLUSION

While the Supreme Court deemed it error for the TC to not give a learned intermediary instruction and to allow the cross-claim's admission, it adjudged both to be harmless errors. It therefore affirmed the COA decision. All Justices concurred (except Justice Abramson who did not sit), with Justice Scott concurring in result only since he did not believe Sandoz was entitled to a learned intermediary instruction.

Digested By Chad Kessinger

Schiller Osbourn Barnes & Maloney

Multiple issues in medical negligence case re: specialists standard of care, mention of health insurance not violate KRE 411, and production of documents prepared by doc to testify: BARKMAN V. OVERSTREET, M.D. (COA 4/11/2008)

BARKMAN V. OVERSTREET, M.D.
MEDICAL NEGLIGENCE: Standard of care is based upon the physician's specialty of practice.
MISTRIAL MOTION:  Mention of health insurance as opposed to liability insurance as prohibited by KRE 411 is not grounds for mistrial
EVIDENCE:  Document prepared by expert witness but not read or relied upon by him to testify is not to be produced to counsel on grounds of past recollection recorded or present memory refreshed
2006-CA-001279
PUBLISHED:  AFFIRMING
PANEL: MOORE PRESIDING; ACREE, KELLER CONCUR
BOYLE COUNTY
DATE RENDERED: 04/11/2008

The patient suffered permanent paralysis of all four limbs after an automobile crash and brought a claim for medical malpractice against her treating internal medicine doctor who treated her at the hospital. The jury returned a verdict in favor of the physician, and the patient/Barkman argued on appeal that the trial court used the wrong standard of care in the jury instructions, erred in not granting a mistrial when Overstreet (the doctor) mentioned insurance during his testimony and erred when it denied Barkman's request to produce a document prepared by Overstreet in anticipation of litigation. Finding no error, the COA affirmed.

With regard to the standard of care, the COA stated physician had a duty, in care and treatment of patient, to exercise that degree of care and skill expected of a reasonable and prudent internal-medicine physician acting under the same or similar circumstances rejecting the proposed instruction which would have used language regarding emergency care (eg., "exercise that degree of care and skill expected of a reasonably competent physician specializing in the care and treatment of emergency patients acting under similar circumstances"). Relying upon SCOKY precedent, the COA stated “[i]t is our conclusion that the jury should be instructed that the defendant was under a duty to use that degree of care and skill which is expected of a reasonably competent practioner [sic] in the same class to which he belongs, acting in the same or similar circumstances.”

"Insurance" was mentioned at trial by the defendant doctor and the trial court overruled the motion for mistrial and refused to give an admonitory instruction. The exchange was:

Barkman's attorney: OK, so you are saying that you just made up this loss of consciousness?

Dr. Overstreet: I didn't make it up. I didn't make it up. But, uh, you know, the insurance companies and you guys are the ones that force us into these pigeon holes.

Under KRE 411 "Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness."

The COA then parsed the words used by Dr. Overstreet and noted the precepts behind KRE 411 - "First, the rule, obviously, applies only to liability insurance. Second, the rule only prohibits liability insurance evidence when it is offered regarding the issue of whether or not a party acted negligently or wrongly. Third, the rule does not prohibit evidence about liability insurance if it is offered for other purposes. Consequently, KRE 411 only applies to Overstreet's testimony if he was referring to liability insurance and if he was referring to such insurance to comment upon whether a party to the litigation had somehow acted negligently." "Placing Overstreet's remark into its proper context, it becomes apparent that Overstreet was referring to health insurance not liability insurance. Because KRE 411 applies only to liability insurance, we conclude the trial court did not abuse its discretion when it denied Barkman's motion for a mistrial and her request for an admonition."

At trial, the plaintiff called the treating Dr. Overstreet to testify. Overstreet had several documents with him to refresh his memory, to include a timeline prepared by him. Plaintiff's counsel examined this timeline and a copy was attached to the record to be reviewed in camera by the court. No objection was made until 8 days later, when plaintiff's counsel wished to examine the timeline document. The COA then brushed aside the different positions of counsel regarding the document as past recollection recorded versus present memory refreshed by stating "neither concept applies to this present case. After reviewing the record of Overstreet's testimony, we find that when Overstreet initially took the stand, he had the document in question with him. However, he did not review it while on the stand nor did he refer to it during his testimony. In short, Overstreet did not use the document at trial. Accordingly, Barkman was not entitled to review the document under the concept of present memory refreshed or past recollection recorded."

Digested by Michael Stevens

Judge not bound by parties agreement of modification of child support for change of circumstances: HOOFRING v. FITE (COA 3/28/2008)

HOOFRING V. FITE
FAMILY LAW:  Child support modifications, agreements, arrearages; judge not bound by parties agreement of modification of child support for change of circumstances
2007-CA-001466
PUBLISHED: AFFIRMING
PANEL: DIXON PRESIDING; COMBS, KNOPF CONCUR
KENTON COUNTY
DATE RENDERED: 3/28/2008

The parties, never married, entered into a series of child custody and support agreements. The last agreement in February 2005 provided that Fite have physical custody of the child again. Hoofring was not to pay any child support, but he was to maintain health insurance for the child until the end of 2005. The agreement also released Fite from any liability regarding the child support arrearages she owed to Hoofring.

In 2006 Hoofring insisted that Fite obtain health insurance for the child. Fite then pursued a modification of child support. The TC ordered that Hoofring pay $672.14 per month in child support, retroactive to the February 2005 agreed order, and maintain health insurance for the child. The TC also ordered Fite to pay $5,183.07 in arrearages. Hoofring filed a motion to vacate the order or, in the alternative, hold an evidentiary hearing. In May 2007, after a full evidentiary hearing on all issues, the TC ordered that Hoofring pay $646 per month in child support, retroactive to October 2006, and maintain the child’s health insurance. The TC did not address Fite’s arrearages, but noted that the February 2005 agreed order was an enforceable order. Hoofring appealed.

The COA noted that a party is entitled to modification of child support if he/she can show a material change in circumstances that is substantial and continuing. KRS 403.213. The child support obligation of $646 per month is clearly a 15% increase over the prior amount of $0. Moreover, while parties may enter agreements regarding child support, the terms are not binding on the trial court under KRS 403.180(2). In addition, KRS 403.180(6) prohibits any attempts to preclude modification of agreements concerning child support, custody, or visitation. Therefore, the TC retained jurisdiction over the child support and is not bound by the parties’ agreement. COA held that TC properly exercised its discretion to modify the child support obligation, while properly enforcing the other provisions of the 2005 agreed order, which release Fite from liability for her past arrearage. AFFIRMED.

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Open records request and privileged documents: COMMONWEALTH OF KY V. SCORSONE (COA 1/18/2008)

COMMONWEALTH OF KY V. SCORSONE
GOVERNMENT:  Open records request
EVIDENCE:  Attorney client privilege
2006-CA-001704
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
PANEL: LAMBERT PRESIDING; TAYLOR CONCURS; WINE CONCURS IN PART, DISSENTS IN PART, AND FILES SEP. OPINION
COUNTY: FRANKLIN
DATE RENDERED: 01/18/2008

In this open-records case, representatives from various agencies in Governor Fletcher's Administration appeal the decision of the Franklin Circuit Court regarding disclosure of attorney billing statements prepared by non-government lawyers retained by the Fletcher Administration in connection with the Attorney General's recent investigation of the Administration's hiring practices. For the reasons set forth herein, we affirm the decision of the circuit court. In this case, Senator Ernesto Scorsone of Lexington issued open-records requests to various agencies within the Fletcher Administration seeking all attorney billing statements from non-government lawyers retained by the Administration in connection with the Attorney General's recent investigation of the Fletcher Administration's hiring practices. Senator Scorsone's request sought “the date of each service performed, a description of the service, the identity of the attorney performing such service, the hourly rate charged for that attorney, the time spent by that attorney on that service, any reimbursable expenses, total amounts incurred and total amounts due for their services.”

The Fletcher Administration partially complied with Senator Scorsone's request by tendering its attorney billing statements relating to the investigation, but redacting from them the descriptions of the particular services rendered on the grounds that they are protected by attorney-client privilege. Dissatisfied with the Administration's redactions, Senator Scorsone appealed to the Attorney General. The Attorney General rendered an open records decision ruling that the Fletcher Administration's blanket redaction of descriptions of particular services rendered from the billing statements was improper. The Attorney General ruled that redaction is only proper where a particular description of a service rendered would disclose privileged matters.

In turn, the Fletcher Administration unsuccessfully appealed to Franklin circuit court, which generally agreed with the Attorney General's opinion. The circuit court, however, additionally ruled that, when the Administration was in doubt whether a particular description contained protected material, the description in question should be submitted to the circuit court for an in camera review.

Finally, the circuit court also awarded attorney fees to Senator Scorsone on the ground that the Fletcher Administration's redactions had been “willful.”

The primary issue presented here is to what extent, if any, must descriptions of particular legal services rendered to the Fletcher Administration by non-government counsel be disclosed as open records

The attorney-client privilege does not apply to all communications between an attorney and a client. Indeed, to fall under the attorney-client privilege, a communications must be confidential, relate to the rendition of legal services, and not fall under certain exceptions. See KRE 503. In the case at bar, the burden of proof of demonstrating that a requested public record falls within the attorney-client privilege falls upon the Administration. See KRS 61.882(3). And, like the Attorney General and the circuit court before us, we cannot imagine that each and every description of services rendered contained in billing statements prepared by non-government lawyers during the Attorney General's investigation falls under the attorney-client privilege

Thus, the COA found the Attorney General and the circuit court are both correct in rejecting the Administration's blanket redaction of all descriptive portions of the disclosed billing records without particularized demonstration that each description is privileged. We further find that the circuit court's decision to allow the Administration to tender those portions of the billing records it believes to be privileged for in camera review to be in accordance with the Open Records Act and an excellent device for balancing the Administration's interest in the confidentiality of privileged materials and the public interest in the disclosure of nonconfidential government records. Therefore, we affirm the circuit court's decision regarding disclosure. Although the COA did affirm the circuit court's disclosure ruling, it reversed its award of attorney's fees to appellee.

Because the attorney-client privilege was favored by the circuit court to be a valid exception to at least a portion of the billings records, and because the circuit court's in camera review solution appears to be novel and therefore not readily available to appellants at the time of appellee's record request, the circuit court erred in finding that appellant willfully withheld records in violation of KRS 61.870 to 61.884. Accordingly, we hold each party should bear its own costs of litigation in this matter.

Michael Stevens

Disqualify defense expert who was previous consulting expert for plaintiff: SOWDERS V. HON. THOMAS LEWIS (SC 12/20/2007)

SOWDERS V. HON. THOMAS LEWIS
CIVIL PROCEDURE: EXPERT DISQUALIFICATION AND CONSULTING EXPERTS
WRIT OF MANDAMUS
2007-SC-000043-MR.pdf
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART
OPINION: SCOTT; CUNNINGHAM DISSENTS BY SEP. OP.
DATE RENDERED: 12/20/2007

The Supreme Court reversed the COA's denial of a petition for a writ of mandaus to disqualify a defendant's expert witness (Dr. Bonnarens) in a medical negligence action finding that the Dr. Bonnarens had been contacted by the plaintiff's attorney and the attorney-client privilege attached to those communications.

The "Sowders" had filed a medical malpractice action on behalf of their son alleging the doctor failed to properly diagnose and treat their son's septic hip.
Attorney Lee Turner represented Appellants (Sowders) in the case and had prior to suit obtained and reviewed medical records, performed legal research, consulted with experts, and prepared work product--including a memorandum summarizing the records, his research, and his mental impressions. Attorney Paul Casi was working with Turner and claimed he contacted Dr. Bonnarena to review "confidential attorney work product information, including information concerning the mental impressions and conclusions of Attorney Turner including his work product memoranda." The defense later retained Bonnarens as their expert.

With regard to the denial of the write, the issue whether Dr. Bonnarens should be allowed to testify at trial--falls within the second class of writ cases . The Court of Appeals denied the writ, finding that Appellants failed to satisfy their burden of proof that Dr. Bonnarens received work product. Upon review of the matter, SC found Court of Appeals abused its discretion in refusing to compel the circuit court to disqualify Dr. Bonnarens. Accordingly, SC reversed the part of the Court of Appeals' denial of the writ of mandamus concerning the disqualification of Dr. Bonnarens.

The attorney-client privilege applies to a confidential communication "made to facilitate the client in his/her legal dilemma and made between two of the four parties listed in [KRE 503]: the client, the client's representatives, the lawyer, or the lawyer's representatives." 'Where the privilege applies its breach undermines confidence in the judicial system and harms the administration of justice." In this matter, the attorney-client privilege attached to any confidential communications between Casi and Dr. Bonnarens. There is evidence that Casi, plaintiffs' prospective co-counsel, provided Dr. Bonnarens, a consulting medical expert, with work product. In his affidavit, Casi stated that he asked Dr. Bonnarens to review "confidential attorney work product information, including information concerning the mental impressions and conclusions of Attorney Turner including his work product memoranda." Thus, there is great risk that Dr. Bonnarens' testimony could violate the attorney-client privilege. In addition, any work product Casi provided to Dr. Bonnarens is protected from discovery. See CR 26 .02(4)(b) . Although Dr. Bonnarens insists he was not given work product, the circumstances suggest otherwise.

It is evident, that petitioners are without an adequate remedy by appeal or otherwise. Once the information is furnished it cannot be recalled. It may or may not be used at the trial, and the injury suffered by petitioners will be complete upon compliance with the order and such injury could not thereafter be rectified in subsequent proceedings in the case . Petitioners have no other adequate remedy.

Moreover, under the unduly narrow interpretation of the work product doctrine adopted by the Court of Appeals, attorneys will be reluctant to disclose confidential information to non-testifying consulting experts, because of the risk that they might testify on privileged matters for the opposing party. This will surely result in a chilling effect on the use of pre-litigation consultative evaluations.

The SC declined to employ a rule of inclusion / exclusion for expert witnesses in this instance that requires a finding of fact (which was never made in this case) as to exactly what the expert reviewed for the opposing party. A simple finding that the expert did review the case for the opposing party and gave an opinion is sufficient. No one disputes that this occurred here . Litigation experts understand this rule and it is not difficult to comply with. This resolution protects the spirit of Newsome and facilitates continued pre-litigation consultation. Appellants are thus without an adequate remedy by appeal or otherwise and allowing Dr. Bonnarens to testify would result in a substantial miscarriage of justice. Additionally, this result removes any possibility of circumstances occurring at trial where Dr. Bonnarens might inadvertently blurt out, "I reviewed the case for the plaintiffs before it was filed and told them there was no claim."

Michael Stevens

Need for experts in medical malpractice: NALLEY V. BANIS, M.D. (COA 11/9/2007)

NALLEY V. BANIS, M.D.
TORTS: Medical negligence and expert witnesses
2005-CA-001334
PUBLISHED: AFFIRMING
PANEL: MOORE PRESIDING; THOMPSON, GRAVES CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 11/09/2007

COA affirmed summary judgment dismissing medical negligence claims filed against physician.

Dr. Banis performed elective chin implant and brow lift procedures on Mrs. Nalley at Norton Hospital. Several days later, she developed a staphylococcus infection near her chin implant, requiring Dr. Banis to remove the implant. Thereafter, Mrs. Nalley and her husband filed their complaint in the circuit court.

Despite the general rule that expert testimony is necessary in most medical malpractice cases, the Nalleys premised their entire case on the exceptions to this general rule and maintain that expert testimony is not needed to meet their burden.

Kentucky recognizes two exceptions to this requirement, both of which permit the inference of negligence even in the absence of expert testimony. See Perkins v. Hausladen, 828 S.W.2d 652, 654-55 (Ky. 1992).  Expert testimony is not required if “'any layman is competent to pass judgment and conclude from common experience that such things do not happen if there has been proper skill and care.'” Id. at 655

Regarding the second exception, if the defendant physician makes admissions of a technical character from which the jury can infer that he acted negligently, a plaintiff would not have to present expert testimony. Id. A "trial court's ruling with regard to the necessity of an expert witness [is] within the court's sound discretion."

The circuit court did not abuse its discretion in rejecting Nalleys' arguments that the exceptions to the necessity for expert witnesses apply to the case at hand. Laypeople do not have sufficient general knowledge to recognize that infection is the result of negligence.

Digest by Michael Stevens