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KTCR Blog. . . Older Reports
A quick look at verdicts, trial news or other stories of interest to Kentucky litigators.
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Published 3-15-24
$601,853 Auto Negligence Verdict in Clark County -- Plaintiff suffered both physical and emotional injuries
The plaintiff was driving on the Mountain Parkway (it was raining) at slower than normal speed and was rear-ended by the defendant. It was a moderate hit.
The plaintiff has complained of ongoing physical pain (shoulder and hip) as well as an emotional injury. She has PTSD and difficulty sleeping. She has also been unable to return to her job. Timothy Allen, Psychiatry, Lexington, testified live at trial. The defense psychology expert, Richard Edelson, thought the plaintiff was malingering, exaggerated her injuries and was motivated by secondary gain.
This week a jury in Clark County awarded the plaintiff lost wages of $101,853 and $500,000 more for pain and suffering. The verdict totaled $601,853. The medical bills (not sought) were $61,077.
Cherry Henault and David Scott, Isaacs & Isaacs, Louisville for the plaintiff
R. Sean Quigley and Lee A. Rosenthal, Casey Bailey & Maines, Lexington for the defense
Judge Cole Maier presiding in Winchester
A picture of the plaintiff's vehicle depicting moderate vehicle damage and the broken rear window
The verdict form on pain and suffering
Published 3-14-24
Plaintiff claimed $15 million plus in damages following a red light crash (detached retina and disc injury) involving a Fed Ex tandem truck -- Defense verdict on liability
Early in the morning the plaintiff was on the way to work and drove on Blankenbaker Parkway near Plantside drive in J'Town. As he went through a green light intersection (he'd seen two Fed Ex trucks turn left in front of him) and struck a third Fed Ex tandem truck that he alleged ran the light. Plaintiff struck the rear corner of the defendant's trailer. The defendant replied he had a green light at all times. It could not have been green for both. There were no independent witnesses.
While there was no injury at the scene, plaintiff has since treated for an L4-S1 disc injury (surgery) and a detached retina (it was also surgically repaired) and claimed $15.7 million dollars at trial. That represented future medicals of $500,000, $1,282,485 for impairment (diminished career) and $14,000,000 for pain and suffering.
A Louisville jury returned a defense verdict on liability last Thursday and the plaintiff took nothing.
Full Report (experts and everything else) coming in the April edition of the Kentucky Trial Court Review (28 KTCR 4)
Kyle R. Salyer, Morgan Collins Yeast & Salyer, Paintsville for the plaintiff
Aletha N. Thomas (pictured), Kopka Pinkus Dolin, Louisville defending
The plaintiff's truck depicts moderate damage
Case Document:
Published 3-13-24
More on the Lung Cancer Med Mal last Friday in Louisville
Jefferson County - A radiologist was blamed for misreading a chest x-ray and was subsequently diagnosed with Stage IV lung cancer nine months later. The theory at the time of alleged misread was that it was then Stage I cancer. Plaintiff also alleged vicarious liability against Norton Hospital. The defendants replied that the read was within the standard of care and the culprit was the cancer which likely didn't exist at the time of the initial read. After a two-week a defense verdict was returned in this complex case last Friday (March 8, 2024).
Case Documents:
Lee Tucker of the Tucker Firm and Kirsten Daniel for the plaintiff.
Craig L. Johnson and Robert L. Whitmer, Steptoe & Johnson, for the doctor.
Ashley J. Butler and Beth H. McMasters, Stoll Keenon Ogden, for the hospital
Published 3-11-24
Double Verdict Friday
We'll update this space a bit later today with reports on two interesting verdicts on Friday, 3-8-24.
Full Report coming in the April 2024 edition of the Kentucky Trial Court Review. The March 2024 edition (28 KTCR 3) was out today.
Oldham - Horse Trail Negligence - $3,380,921 - Plaintiff (age 18) suffered a TBI after a fall from a horse
Jefferson - Medical Negligence - Defense - Failure to diagnose lung cancer
Published 2-27-24
Rupp Arena bigwig has filed a lawsuit to protect his floor seat status
As any basketball fan knows, Rupp Arena is the most intimidating place to play in all of college basketball. The fans are right on top of the floor and they are into it. They stand. They cheer. They chant. They sway.
The privilege of being a Rupp Crazy doesn't come cheap and it has led to a lawsuit.
Yesterday a Rupp Arena bigwig filed a lawsuit alleging a breach of contract by UK in trying to force him out of his prized floor seats at the University of Kentucky. The complaint (linked below) lays out the scheme by the university, but essentially the bigwig believes he's being moved out so that UK can get more money from an even bigger bigwig, all in violation of his bargain made years before.
Plaintiff's Motion for a Permanent Injunction
Published 2-27-24
$359,144 verdict in Covington -- plaintiff complained of post-concussive symptoms after a collision with a trucker
The plaintiff, a sales executive from MN, landed at the airport in Northern Kentucky on a business trip. He rented a car and was driving to Cincinnati when a trucker suddenly changed lanes and struck his vehicle. It was a moderate impact. Plaintiff struck his head on the B-pillar in his vehicle and has since complained of a mild brain injury, tinnitus, post-concussive syndrome and a post-trauma vision disorder.
The case was tried in federal court before Magistrate Atkins in Covington last week. The plaintiff took a total of $359,144 which included medicals of $64,644 and $294,500 for pain and suffering. That represented a 4.59 injury multiplier for this wide-ranging but mild brain injury.
Jerome P. Prather and Jared C. Niceley, Garmer & Prather, Lexington for the plaintiff
Michelle L. Burden and Jessica C. Harlow, Garvey Shearer Nordstrom, Ft. Mitchell defending
The Plaintiff Trial Memorandum
Published 2-26-24
$456,964 verdict (less 25%) fault in Shelbyville -- serious ankle injury in crash with a cement truck
An IMI cement truck backed out and struck the plaintiff. It was a hard hit. Plaintiff, a woman, age 49, suffered a complex ankle fracture and has complained of a thrombotic ankle injury that results in swelling. She made need a future surgery.
Plaintiff blamed the cement truck driver for pulling into her path. He implicated her look-out and cited proof the sun was in her eyes.
The case was tried to a Shelby County jury. It assessed fault 75% to the defendant and the remainder to the plaintiff.
The raw verdict was $456,964 that included medicals of $17,749, $63,000 for in the future and $375,000 for pain and suffering. The verdict (after apportionment) totaled $342,723 and presumably the final judgment will be in that sum less PIP.
A picture of the crash.
Danielle Reesor Blandford (pictured below), Adrian Mendiondo and Tanner Shultz (Morgan & Morgan) for the plaintiff
Jane Higgins (Casey Bailey & Maines) defending
Judge Melanie Brummer on the bench
Published 2-21-24
$100,000 car wreck verdict in Fayette County -- however jury apparently disbelieved fusion surgery caused by the crash
The plaintiff was rear-ended (it was a hard hit) when the defendant "misjudged" when a light was going to turn green. The plaintiff had a long history of chronic back pain and then eight months later she underwent an L4-5 fusion surgery.
Plaintiffs settled with her UIM (State Farm) for $100,000 and sought damages from the tortfeasor, a Kentucky National insured. He had $100,000 limits. Ultimately the defense tendered the limits but the plaintiff refused them in a ploy to set up a bad faith claim.
The case was then tried, the defense relying on an IME expert (Timothy Kriss, Neurosurgery) who believed the surgery was not only unrelated to the crash, but also that it was malpractice.
The jury found the defendant at fault and awarded medicals of $25,000 (far less than the claimed $252,625, apparently disbelieving causation on the surgery) as well as $10,000 for future care and $1,500 for lost wages. The non-economic damages were $63,500 and equaled a tidy $100,000. That represented an injury multiplier of 2.54, which is a little below (but not far off) the 26-year 2.74 herniated disc multiplier.
Full report coming in the March 2024 edition.
David Noble and Joseph Rugg (Morgan & Morgan) led the plaintiff's team.
William J. Baird IV (Baird & Baird) defending.
Judge Julie Goodman called the balls and strikes.
A picture of the plaintiff's vehicle
Published 2-19-24
$1,432,501 failure to diagnose cancer verdict on 2-8-24 in Paducah
The snip below summarizes the case. Brian Brownfield (pictured) of Brownfield Dufour led the plaintiff's team.
The full report (with experts and verdict details) is contained in the February 2024 edition, 28 KTCR 2.
Published 1-29-24
$250,000 UIM Verdict in Louisville against Farm Bureau on Friday
Plaintiff alleged the aggravation of a T6-7 protruding disc as well as other soft-tissue symptoms after a minor rear-ender. Plaintiff had extensive physical therapy and medicals of $21,126 (not sought at trial).
Plaintiff settled with the tortfeasor for his $25,000 limits and sought UIM coverage from Farm Bureau.
Farm Bureau first diminished that the plaintiff changed lanes in front of the tortfeasor. It also diminished damages as, (1) the wreck resulted in minor damage, (2) there was no injury at the scene, and (3) the plaintiff didn't seek care for 90 days.
The jury was split on fault, assessing it 30% to tortfeasor and the lion's share to the plaintiff. The damages were $250,000 ($100,000 for past suffering and $150,000 more for the in future) all less 70% comparative fault. That left a raw verdict of $75,000 to be further reduced by the underlying limits and PIP.
William D. Nefzger and Patrick E. Markey, Bahe Cook Cantley & Nefzger, Louisville for the plaintiff
Defense: Valerie W. Herbert, Travis Herbert & Stempien, Louisville defending
Judge Eric Haner on the bench
Report coming in the February edition, 28 KTCR 2.
The plaintiff's vehicle after the wreck
Published 1-22-24
$17,000,000 at stake in a Graves County roadway way case -- Defense verdict returned after 11 days of trial -- Plaintiff the granddaughter of a state representative
I hope everyone has thawed out. With the New Year's holiday and MLK, Jr. Day, trials have few and far between. There was an interesting trial that was conducted over 11 days in Mayfield (Graves County) and which concluded 1-19-23.
The plaintiff, a teenage girl with a driver's permit, was driving her grandmother. Grandmother is the wife of Ky. State Representative Richard Heath of Mayfield. The girl came to a T-intersection controlled by a stop sign and a flashing red light. An RV dealership was on the left.
The girl rolled through the intersection and ran the stop sign. She would later claim her view was obstructed by a camper in the RV parking lot that was too close to the road. A moment later a drunk driver (BAC .219) crashed into the girl's car from the superior highway. It was a VERY hard hit and the girl suffered multiple fractures and life threatening injuries. Her medical bills were $684,350. Grandma was hurt but less seriously. Both were airlifted to Vanderbilt.
The plaintiffs (girl and grandma) sued the RV dealership and alleged negligence in having a camper too close to the road which blocked their view. Plaintiffs sought a total of $17 million in damages including $12,000,000 for the girl's pain and suffering. The dealership replied that, (1) the girl was to blame for running the stop sign, (2) the drunk driver was at fault, and (3) finally grandma was negligent in supervising the new driver. Drunk driver by the way sentenced to 10 years in prison although at least in terms of the wreck itself (not criminal liability), he had a fair argument the teenager was to blame for running the stop sign.
The case was tried for 11 days (it ended 1-19-24) and the jury deliberated an hour.
It was a defense verdict for the dealership and the plaintiffs took nothing.
Matthew Durham and Wesley Durham, Miller and Durham, Elizabethtown and Radcliff for the teenager; Craig Housman and Michael Mann, Paducah for grandma.
Melissa Thompson Richardson and Colin Buckner, Richardson Law Group, Lexington defending.
Judge Timothy Langford on the bench.
The verdict form on liability that described the defendant's specific duty in operating its business and as related to blocking the view of traffic.
Full report coming in the February edition, 28 KTCR 2. Subscribe to the KTCR in the online store. Use code "Kentucky2024" to save 20%. That's deal!
Published 1-8-24
Slip and Fall Monday -- Defense verdict in Warren County
The plaintiff slipped on a wet floor at McDonald's (it was being mopped) after walking past several big yellow caution cones. She suffered a comminuted knee fracture and underwent an emergent repair followed by a subsequent knee replacement. The scene is depicted below.
Plaintiff alleged that while there were warning cones, they essentially directed patrons to walk through the wet area of the floor.
Case tried for three days last week in Bowling Green. Defense verdict.
Report coming in the January 2024 edition.
The KTCR 2023 Year in Review is out TODAY in PDF. Order it today and you'll be reading it a few minutes later. It is out in print in a few weeks.
Justin May and John M. Ritter (Dixie Law Group) for the plaintiff
Jeremy Faulk (Boehl Stopher & Graves) for McDonald's (It's Faulk's first jury trial)
Judge Christopher Cohron on the bench
Published 1-5-24
KTCR Hall of Fame Inductees -- There are three for 2023
We have three new inductees into the KTCR Trial Lawyer Hall of Fame today. First off . . .Richard Hay, Somerset.
Hay has a long history of trying complex cases (products liability and med mal)(he’s tried more than 60 to a jury in his career) and taking exceptional results. We first saw Hay in our first year in a $3.471 million products liability case against Chrysler where is client died because of a defective door latch in a 1992 Dodge Ram Truck. The award included $3,000,000 in punitives. The Sixth Circuit reversed nine years later in Chrysler v. Clark, 436 F.3d 544 (6th Cir. 2006) and reduced the punitives to equal the compensatory damages on a 1-1 ratio.
Hay’s other notable results over the years:
1999 Martin County - Electrocution injury - $570,328 - Case No. 1025
2001 Jefferson County - Fatal Med Mal - $829,744 - Case No. 1619
2005 Whitley County - Med Mal (Missed cancer) - $4,776,261 - Case No. 3160
2005 Laurel County - Products Liability (Lawnmower defect) - $2,673,159 - Case No. 3173
2011 Lawrence County - Med Mal - $1,183,638 - Case No. 4810
2011 Lincoln County - Products Liability (Defect in Nissan seat belt) - $6,182,000 - Case No. 4866
Hay is a lawyer’s lawyer and when you see him roll up to the courthouse in his pick-up truck, most likely in Somerset or London (but could be anywhere), you’ve got a serious case on your hands.
The second inductee of the day . . .E. Frederick "Rick" Straub, Jr. from Paducah.
Straub, the lion of his law firm, Whitlow Roberts Houston & Straub, is first and foremost always a gentleman in and out of court. But he’s a workhorse too. Straub has tried the most recorded civil cases in Kentucky since we began publishing in 1998 – Sixty! That’s not softball rear-end car wreck defense either. His practice has focused on complex med mal defense with heavy damages at stake. In the period since 2005, that represented the defense of 34 med mals to a jury. Of those 34, 29 resulted in defense verdicts. While he has patrols far Western Kentucky,
Straub is not just limited to Paducah. He’s successfully defended cases to trial in Marshall, Graves, Trigg, Hopkins, Calloway as well as several in Christian County and even as far east as Bowling Green. In a 2016 trial in Warren County, No. 5413, some $20,000,000 was on the line in a med mal with a plaintiff who was in a persistent vegetative state because of purported medical error. It was a defense verdict.
When you show up for trial against “Rick” as he is known to all, you can be sure of a couple of things. He’s going to be very nice. And he’s probably going to win.
The final inductee, James "Bo" Bolus of Louisville.
Bolus has recorded five million-dollar plus verdicts since the KTCR began in 1998. Most recently in December he represented a set of plaintiffs (they took $26.74 million, Case No. 6080) in a negligence arising from a high speed police pursuit in downtown Louisville. One of the plaintiffs (struck while riding a moped) died at the scene after suffering gruesome injuries. The jury awarded that decedent a record $20,000,000 for his pain and suffering.
Bolus also notched notable verdicts in 2008, Fayette County, $9.864 million, paralysis after spinal cord injury during minor cardiac procedure, Case No. 3868, and then 11 years later in 2019, a $10.5 million result in Louisville. That plaintiff (Case No. 5830) had sustained complications after a sponge was forgotten in a surgery that was not discovered until years later.
A Bolus jury trial is characterized by a few things. Technology and Tenaciousness. He uses technology (particularly video cuts) with great effectiveness both in cross-examination as well as opening and closing. Bolus has a relentless tenacity. When he gets his teeth into an issue or a witness, he’s not letting go. That may trace back to his high school days as a champion wrestler. Bo is not going to give up.
Published 1-4-24
Kentucky's Largest Pain and Suffering Awards
We are finishing the 2023 Year in Review (26th edition) this week and today we looked at the largest pain and suffering awards of all time. This is the list of those that exceed $5,000,000. We also have a new list this year of those attorneys who have more than one "$1,000,000" result in their career. Eighteen lawyers made that list which is pretty exclusive. You'll see it in 2023 Year in Review.
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Full report in the KTCR 2023 Year in Review, 26th edition. The book should be out in PDF later this week, and then in a few weeks in print.
Published 1-2-24
Chadwick N. Gardner repeats as the KTCR 2023 Plaintiff Trial Lawyer of the Year
Back to Back!
Chadwick "Chad" Gardner goes back-to-back after running away with this award in 2022. The Fairdale Destroyer first took a $50.5 million verdict in June in a case where an industrial worker was crush at a cement plant. The verdict included $10,000,000 for the widow’s consortium interest and $25 million in punitives. Case No. 6079.
Exactly two months later Gardner led a team that took a $44,490,345 med mal (less 60%) fault for a young mother who died because of the failure to treat a stem cell transplant risk. That award included $37.5 million in consortium damages ($7.5 million for widower and $10,000,000 for each of the three children), which besides being Kentucky’s largest ever med mal, Gardner illustrated that consortium damages are becoming the most important damage element in death cases. Case No. 6073. It is also noteworthy that Gardner’s reputation (and skill) have become so well-known, he was “parachuted in” just to try this case. This is the sixth million-dollar plus verdict the KTCR has recorded for Gardner.
Full report in the KTCR 2023 Year in Review, 26th edition. The book should be out in PDF later this week, and then in a few weeks in print.
The headings on Gardner's two 2023 verdicts:
Published 1-2-24
Rod Payne of Steptoe & Johnson named Defense Trial Lawyer of the Year
Payne made a long career defending FELA and other tort cases at Boehl Stopher before moving in 2023 to Steptoe & Johnson. His selection this year is interesting because while his work was exceptional, it was not in securing a flat-out defense verdict, but keeping the damages in the ballpark of reasonableness when the exposure was enormous.
In a first case against a daycare, a four-year old girl was tied up for 40 minutes when she would not settle down. It was all on video The plaintiff sought damages of $55 million. The verdict? $55,000. The plaintiff 1% of the claimed amount.
In the second difficult case, Payne defended an LMPD officer who instituted a high speed chase (over 100 mph) in downtown Louisville for a minor traffic offense, the pursued then running a red light and crashing into several vehicles. Multiple innocent persons were hurt and one was killed. Making the case even tougher, the LMPD police chief seemed to be deceptive when she testified at trial. The claimed damages were large, but in this case, Payne’s challenge was less damages than dealing with comparative fault. The jury awarded the plaintiffs a total of $30.7 million, however fault was assessed just 3% to the police officer. The remainder was to the fleeing driver, thus Payne kept the net damages under $1,000,000 when the plaintiff had sought $90 million. The jury also rejected the imposition of punitive damages.
The headings on those two trials are reproduced below.
Full report in the KTCR 2023 Year in Review, 26th edition. The book should be out in PDF later this week, and then in a few weeks in print.
Published 12-28-23
$88,227 phlebotomy injury verdict in Louisville in Federal Court
The plaintiff was in the midst of a blood draw (in a chair just like the one below) when he told his phlebotomist he was feeling faint. She went to get water. The plaintiff then passed out and slumped in the chair. He suffered a T8-9 compression fracture in the slumping event.
Plaintiff sued LabCorp and alleged negligence by the phlebotomist in leaving him alone despite a warning he was feeling faint. LabCorp denied fault and linked the injury from such a low-energy event to the plaintiff's underlying bone density disorder.
The jury found LabCorp solely at fault and awarded the plaintiff total damages of $88,227 which included $72,000 for pain and suffering.
Report coming in the January 2024 edition, 28 KTCR 1.
Brennan Soergel and Bo Bolus for the plaintiff
David Domene and Gregory Smithkier, Blackburn Domene & Burchett, Louisville for LabCorp
Judge Rebecca Jennings on the bench
The verdict on liability is below. It was also interesting the trial judge described the plaintiff's comparative fault as contributory negligence. The jury rejected that in any case.
Published 12-18-23
$1.5 million verdict in Pulaski County on ancillary forgotten episiotomy gauze claim -- Defense verdict on primary death claim regarding a delivery error
There was a rare Saturday afternoon verdict in Somerset. It was an extremely complex Ob-Gyn/Hospital case and it stretched over three weeks.
The infant was in a breech position and the Ob-Gyn (Dale Rutledge) proceeded with a vaginal delivery and utilized forceps. The baby was born with several broken bones and significant trauma. Two hours after birth the child was air-flighted to UK. While resuscitation efforts were undertaken and the baby died 10 hours later. The cause of death was a hypoxic injury secondary to a forceps-assisted delivery for breech presentation.
The estate alleged error by the Ob-Gyn and the hospital nurses (Lake Cumberland Regional Medical Center) in attempting a vaginal delivery in the first place. The plaintiff's expert (see the disclosure below) believed it was an egregious error and failure of the systems at the hospital. The mother also presented a negligence claim alleging the Ob-Gyn left behind gauze while performing an episiotomy. This led to an additional surgical procedure. The plaintiff sought both compensatory and punitive damages for both the death claim and the mother's personal injury claim. The instructions (they were lengthy and complex) limited the plaintiff's damages to $38,000,000. As the instructions were constructed, the plaintiffs could prevail separately either on the death claim or the episiotomy claim, or both or neither.
The defendants replied that they appropriately handled the delivery, and particularly, the Ob-Gyn exercised good judgment. The fractures at birth were blamed on a genetic defect. Thus there was competing expert genetic proof at trial. The Ob-Gyn essentially admitted the episiotomy error but contested damages.
The complex case was tried for three weeks. The jury was instructed last Saturday afternoon (12-16-23) and closings followed. The deliberations lasted some three hours. The verdict was mixed.
The hospital and Rutledge both fully prevailed on the death claim related to the delivery.
The mother prevailed against Rutledge on the ancillary gauze claim and took $500,000 in compensatory damages and $1,000,000 more in punitives. Ultimately it is $1.5 million verdict against Rutledge on that claim alone and a defense verdict for both defendants on the death claim.
Ann Oldfather and Michael Hasken (Oldfather Law Firm) led the plaintiff's team. Eleanor M.B. Davis (Thompson Miller & Simpson), joined by Todd Thompson, for the hospital. Clayton Robinson (Robinson & Weber) for Rutledge.
Kaelin Reed presided as special judge.
Plaintiff Expert Disclosure (Landon)
LCRH Hospital Expert Disclosure
LCRH Hospital Summary Judgment Motion on Punitives
Plaintiff Summary Judgment Response
Portions of the verdict are reproduced below.
Full report on this case and others coming in the January 2023 edition of the Kentucky Trial Court Review.
It's also time to order the 2023 Year in Review (26th edition) which is on sale now.
Use Code "Holiday23" in the online store through Friday December, 22, 2003.
Best to all for the holidays. We'll see you in a week.
Published 12-16-23
Pulaski County Med Mal in closing arguments right now
We expected the med mal case in Somerset to go to the jury yesterday. Instead they argued instructions most of the day and there wasn't time to do closings and deliberate. So they are doing closings right now. They kicked off about 9:00 a.m.
Ann Oldfather for the plaintiff. Clayton Robinson for the Ob-Gyn. Todd Thompson and Ellie Davis for the hospital. Kaelin Reed is on the bench. The plaintiffs are seeking some $28,000,000 in damages.
A verdict is expected later today.
Published 12-12-23
JNOV Motion Denied in $50,500,000 Industrial Negligence Verdict on 11-14-23
Readers will recall Snyder v. Kosmos Cement from this summer (6-29-23) in Louisville. The headings on the case was as follows:
A union iron worker (working for a third-party making repairs) was killed in an industrial incident while at the Kosmos Cement facility when he was caught between a wire that suddenly tensioned and he asphyxiated – the jury awarded the estate $25,500,000 in compensatory damages (including $10,000,000 for the wife’s consortium and $3,000,000 for the consortium interests for each of the decedent’s three children ) and $25,000,000 more in punitive damages
The defendant moved for JNOV relief. Judge Tracy Davis denied the motion on 11-14-23. The link to the motion is below. Kosmos has appealed.
The Opinion and Order Denying JNOV Relief
Published 12-12-23
Med Mal Numbers are in for 2023
This is interesting. We've tabulated the 2023 Med Mal numbers in Kentucky and across the sample from 2023 of 1,080 results.
This year plaintiffs won 6 of 26 cases, a 23.0% win rate. For the 26-year sample, the win rate is 22.2% or 263 plaintiff verdicts of 1,180 total results. I think we can zero on 22% or so as the win-rate in these cases, representing plaintiffs on average win one in five trials.
How did plaintiffs do? This year (buttressed by a $44 million result), the average plaintiff's verdict was $12.8 million. This compares to the 26-year total of $2.6 million. However the trend from 2020 to 2023 for the average plaintiff's verdict was $6.013 million. The average by contrast from 1998 to 2010 was $1.991 million. The import is that plaintiffs do as well in terms of winning as they did a quarter-century ago (20% win rate or so), but the verdicts when they win are much larger. The biggest element of this seems to be the large child consortium damage awards which of course didn't even exist as a right until 1998.
Full results and all the rest of the reports coming in the 2023 Year in Review which is out in PDF at the first of the year, and in print a few weeks later.
KTCR 2023 Year in Review (26th Edition) Thanksgiving Code "Turkey" extended and effective through the end of today to save 20% in the online store.
Published 12-11-23
Potpourri Updates and News
We have a mix of updates to start the week. First off the Colonel Sanders dog case (the post below) did not go off. A new trial date has not been set.
What is going? There is a complex birth injury med mal that will start its second week on Monday in Pulaski County. There are heavyweights on all sides. If you watch some of that trial, you should get CLE credit. Ann Oldfather for the plaintiff. Clayton Robinson for the Ob-Gyn. Todd Thompson has the hospital. Kaelin Reed is on the bench. The plaintiffs are seeking some $28,000,000 in damages.
There was also a verdict Friday in Shelby County automobile accident involving a crash on I-64. Here's a picture of the vehicles at the scene. Details coming in the January 2024 edition, 28 KTCR 1.
The December 2023 edition was out this week and features a $14,000,000 negligence/false light verdict from Perry County as well as the $30.3 million negligent police pursuit case from Louisville.
Finally it's time to Pre-Order the KTCR 2023 Year in Review. Save $70.00 on orders received before the end of the year. Link is to the store:
Order the 2023 KTCR Year in Review
Happy Holidays all.
Published 11-20-23
Interesting Veterinary Negligence set for trial in Kenton County -- Pro se plaintiffs are well-known plaintiff attorneys
Colonel Sanders, a five-year old Labrador Retriever, became lame in his legs and his owners, Northern Kentucky lawyers, Delana and Robert Sanders, took him to Erlanger Veterinary Hospital. The dog underwent a grueling course and it turned out he'd suffered fractures in his legs related to a bacterial infection. The dog underwent surgery (it was expensive) and ultimately enjoyed a good recovery.
The dog's owners sued the clinic and alleged veterinary negligence in failing to properly diagnose and treat the infection, all of which led the infection to lead to the fracture injury. The clinic has denied fault.
What is interesting is the damages. What are the damages? The dog enjoyed a nearly complete recovery and as dogs are personal property, Colonel Sanders doesn't have compensable pain and suffering. His owners don't have a dog consortium interest.
The vets have argued the measure of damages is the diminution in fair market value, which in this case is negligible. Plaintiffs have countered they are entitled to their medical bills as well as punitive damages for gross negligence. They've argued if just limited to the dog's fair market value, that would suggest they simply should have put the dog down rather than save his life.
The case is set for a jury trial net Tuesday in Covington. It will be interesting to see if it goes off.
Delana Sanders is pro se. Jerome Rolfes, Rolfes Henry, Cincinnati defending
Judge Mary Molloy on the bench.
FYI . . .The 2023 Year in Review sale is still running. Use code "Turkey" at check-out to save 20%. Sale ends today.
The Complaint (external link)
Published 11-20-23
Negligent Police Pursuit (one fatality and multiple injuries) jury trial underway in Louisville
A police officer initiated a stop in as a part of a "violent crime" detail in the California neighborhood. The suspect had not signaled a turn. When the officer turned on his blue lights, the suspect fled. The chase (it only lasted 20 seconds) reached speeds over 100 mph. Again the crime was a turn signal violation.
The suspect ran through an intersection (Broadway and Hodge) and killed a man on a moped. Several others were injured in the fiery crash.
The plaintiffs have sued Louisville and presented a negligent pursuit theory against LMPD, citing that the pursuit violated its own policies. LMPD has replied it was a short chase and the rules were suspended in the "violent crime" district.
The case began last week and moves into week two today.
A team of lawyers for the several plaintiffs includes Nick Naiser, Bo Bolus, Ben Pittenger and Jeffrey Sampson
Rod Payne and Darryl Lavery, Steptoe & Johnson and Gregory Scott Gowen from the County Attorney's Office defending
Judge Clay on the bench
And as a heads up, the 2023 Year in Review (26th edition) is on pre-sale for a January delivery. It's $399.00 ($70.00 off the regular $469.00 price) at the link:
Order the 2023 Year in Review
A look at the crash from surveillance video from a nearby food mart
A preview from the defendant's trial brief
Published 11-13-23
Plaintiff was rear-ended and knocked across the road by an empty truck trailer on a jack-knifing big rig -- $728,268 verdict in Louisville
The plaintiff was slowing in rush hour traffic on the Gene Snyder. Behind him a tractor-trailer didn't appreciate traffic was slowing and hit the brakes hard. This caused his big rig to jack-knife. The truck's trailer (it was empty) struck the plaintiff's cargo van and knocked it across several lanes.
The plaintiff has since treated for cervical, lumbar and hip injuries, the proof indicating he suffers from chronic pain. The defense postured that while there was an injury, it was only temporary. The defense IME was Dr. Christopher Stephens, Orthopedics, Lexington.
The plaintiff prevailed at trial and took medicals of $78,218 as claimed, $250,000 for in the future and $400,000 for pain and suffering. The verdict totaled $728,218.
There will be no Hi-Lo agreement. Why? The parties entered a secret Hi-Lo agreement. The verdict is apparently within the Hi-Lo limits.
Full report coming this week in the November 2023 edition of the Kentucky Trial Court Review.
Jonathan Hollan, Sam Aguiar Injury Lawyers, Louisville for the plaintiff
Daniel C. Mack and R. Craig Reinhardt, Reinhardt & Associates, Lexington defending
Judge Susan Gibson on the bench
Published 10-25-23
Southern Indiana Med Mal Death Case recently tried in Jeffersonville, IN involving Louisville lawyers
At the Indiana Jury Verdict Reporter Blog we are writing this morning about a recent med mal death verdict in Jeffersonville, IN. It was tried for seven days in Clark County before Judge Williams.
You can check it out the blog report here:
Indiana Jury Verdict Reporter Blog
Full report coming in the November edition of the Indiana Jury Verdict Reporter (link to subscribe)
Published 10-19-23
Slip and Fall Thursday -- Plaintiff tripped on hospital stairs and suffered a broken arm - $66,201 verdict less 50% comparative fault
The plaintiff tripped on a partition (for a wheelchair lift) on a set of stairs at a hospital surgery suite and suffered complex upper arm fracture. It was a serious injury and she essentially lost the use of her arm. She blamed her fall on protruding partition separating the wheelchair lift from the stairs.
A Louisville jury assessed fault evenly between the plaintiff and the hospital. The damages totaled $66,201 which represented the medicals of $16,201 and $50,000 for pain and suffering. The net result for the plaintiff was $33,100.
Interestingly the plaintiff is the mother of famed jockey Robby Albarado.
Full report coming in the November edition of the Kentucky Trial Court Review (27 KTCR 11).
Matthew W. Stein and Rob Astornio, Jr., Louisville for the plaintiff
Clay M. Stevens, Kristen H. Fowler and Rachel S. McLaughlin, Napier Gault Schupbach & Stevens, Louisville
Judge Melissa Bellows on the bench
The stairs where the plaintiff fell depicting the partition
Published 10-18-23
$7,004,835 Ophthalmology Verdict in Knoxville in case against Daughter-Father Doctors
The plaintiff, age 79, suffered an infection after a cataract surgery and sustained a bacterial infection. He later lost the eye. The injury was devastating because his vision was already in his remaining eye.
Plaintiff sued his ophthalmologist (Lauren Harris) who failed to appreciate the infection and her father (David Harris, also an ophthalmologist) who consulted, this error leading to the infection becoming worse. The defendants denied fault.
The jury found against Lauren (daughter) but exonerated David (father). Plaintiff took medicals of $4,835 as stipulated and $6,000,000 in non-economic damages. His wife took $1,000,000 for her consortium interest for a total of $7,004,835. The final judgment (consistent with Tennessee's tort scheme) reduced the verdict to $754,835 (by almost 90%) and was entered against Lauren. In Tennessee non-economic damages are limited in most cases to $750,000. It is theorized that limiting damage recovery to plaintiffs creates jobs.
Full report coming in the November 2023 edition of the Tennessee Jury Verdict Reporter. We've been publishing there since 2004.
Robert E. Pryor, Jr., Pryor Priest Harber Floyd & Coffey, Knoxville for the plaintiff
James H. London and Andrew S. Roskind, London & Amburn, Knoxville
Special Judge Carter Moore
Published 10-10-2023
$39,500 Auto Verdict in Boyd County this week
The plaintiff complained of initial soft-tissue injuries after a right-of-way crash at the Town Center Mall in Ashland with a municipal vehicle. There was then a 10-month gap in care and he subsequently underwent a cervical fusion and complained of a mild TBI. He claimed significant damages (medicals of $238,714, future care of $302,050) as well as impairment, and pain and suffering.
The key issue was causation. The defense argued the plaintiff's radiating symptoms were actually a peripheral neuropathy that were related to his drinking. There was proof the plaintiff 12 beers a day, had Budweiser in his e-mail, and that the neuropathy was related to alcohol.
The jury awarded the plaintiff a total of $39,500, representing medicals of $12,500, future care of $10,000, lost wages of $12,000 and $5,000 for pain and suffering. Implicitly the jury rejected the ongoing care as being crash-related but it is interesting they did award some of the future medicals.
Details coming in the November issue of the Kentucky Trial Court Review.
There was also an unusual negligent security verdict last Friday in Greenup County. A woman alleged she was sexually assaulted while taking a bath at the now-defunct Our Lady of Bellefonte Hospital. Details coming next week.
Have a good weekend all. I'm signing off for parents weekend!
If you're scoring the Boyd County case at home, these were the lawyers.
David Noble, Kelli Lester and Jarrod Bentley, all of Morgan & Morgan, for the plaintiff
Scott Sennett, Campbell Woods, Ashland defending for the City of Ashland
Judge John F. Vincent on the bench
Published 10-9-2023
Costco slip and fall verdict in Lexington, KY on 10-4-23
The plaintiff slipped on a wet floor at a Costco food court in Lexington on a busy Sunday at lunchtime. She suffered a PCL injury to her already fragile knee -- the PCL was holding together a knee replacement. Thus the fall led to a revision of the first knee replacement and ongoing pain.
Plaintiff sued Costco and alleged it had failed to police or patrol the high-risk slip and fall area (it was near the soda dispenser) and thus was a substantial factor in causing the fall. Costco denied fault.
The case was tried before Judge Goodman for three days last week in Lexington. A defense verdict was returned.
The jury verdict itself (its linked below) reflects exceptionally awkward instructions from the court. Even though Costco was exonerated by the initial finding on liability, Judge Goodman instructed the jury to then consider the plaintiff's duties, apportionment and damages.
Melissa Thompson Richardson and Summer Burgess, Walters Richardson, Lexington for the plaintiff
Noel Halpin and Morgan Mottley, O'Bryan Brown & Toner, Louisville defending
Judge Julie Goodman presided
Published 10-1-2023
$7,568,452 Fleming County breast cancer oncology med mal on 9-27-23
There was a $7,568,452 breast cancer med mal in Fleming County last night after a two-week trial. It arose from a suspicious mammogram and a purported miscommunication with the plaintiff as to that result. This led to a nine month diagnosis delay and proof that the delay led to the cancer having metastasized.
The case was complex and involved three defendants, (Family Practice, Radiology and Hospital) -- there were also complex proof as to causation, i.e., the defendants argued the cancer had already metastasized before the mammogram and thus the result would have been the same.
The jury's award included $4.8 million in non-economic damages.
Fault was assessed 50% to Radiology, 30% to Family Practice and the remaining 20% to the since-settled local hospital.
Laraclay Parker and Dale Golden and Alexandra DeMoss-Campbell all of the Golden Law Office for the plaintiff.
There are more details to come in the full edition including all the lawyers (there were a lot) and the experts (lots of those too) and a discussion of the very intense pre-trial litigation.
Published 9-21-2023
Colonoscopy Med Mal in London -- Defense verdict
The plaintiff underwent a routine and non-emergency colonoscopy that was performed by his surgeon. It was uneventful. The next day he was back at the hospital with abdominal pain. He'd suffered a cecum perforation. The surgeon performed a repair surgery and the plaintiff lost part of his bowel.
Plaintiff alleged error by the surgeon in performing the colonoscopy when the colon was not adequately prepped and visualization was limited. The surgeon replied that he met the standard of care and the plaintiff's injury most likely occurred after the plaintiff was discharged and was a known complication of the surgery.
Yesterday a London jury returned a verdict (unanimously) for the defendant as pictured below. Also pictured is Todd Thompson who led the defense team.
The details are coming in the October 2023 edition of the Kentucky Trial Court Review.
John F. Kelley (Williams and Towe) London for the plaintiff
B. Todd Thompson (pictured), Lon S. Hays and Elizabeth F. Ousley (Thompson Miller & Simpson) Louisville for the surgeon
Judge Gregory Lay called balls and strikes
Published 9-20-2023
Pike County Med Mal -- Ventilator-dependent patient died during an ambulance transfer
The elderly plaintiff was ventilator-dependent and an ICU patient at Pikeville Medical Center (PMC). A transfer was arranged to a rehabilitation hospital in Lexington so the plaintiff could be weaned from the ventilator.
A short time into the ambulance trip the plaintiff's vitals dropped and the ambulance siren wasn't working. The ambulance returned to the hospital 26 minutes after leaving. The plaintiff had no pulse upon arrival and while resuscitated, he died two days later.
Plaintiff's estate settled with the ambulance service and went to trial against PMC, an intensivist and an APRN, alleging they'd botched the transfer. The defendants (all jointly represented) denied fault and blamed it on a multitude of errors by the ambulance company.
A Pikeville jury jury rejected the case against the three defendants and thus didn't reach apportionment to the ambulance company or damages. Plaintiff had sought $2,000,000 for the decedent's suffering and $1,000,000 more for his wife's consortium interest. They'd been married 46 years at the time of the plaintiff's death.
Kevin Smith, London for the plaintiff
David Gazak and Daniel Brown (Gazak Brown) Louisville defending
Judge Howard Keith Hall presided
The count was 10-2 for PMC and 11-1 for the other two defendants.
Published 9-14-2023
America's Sweetheart, Kentucky's own Kim Davis, back in court -- Loses $100,000 verdict for violating civil rights in failing to issue marriage licenses
In June of 2015 the U.S. Supreme Court in Obergefell recognizes that same sex couples enjoyed a constitutional right to marry. Back in Kentucky Kim Davis, the clerk in Rowan County, refused marriage licenses to two gay couples. The famously defiant Davis told them she acted on God's Authority.
When Davis was jailed for her contempt, her deputies issued the licenses weeks later. (Davis pictured below celebrating her release from jail)
The two couples filed a civil rights lawsuit and alleged Davis violated their constitutional rights in failing to issue the marriage licenses.
Davis moved to dismiss. Denied. She appealed. Loser at the 6th Circuit. Cert denied. Loser again.
Davis moved for summary judgment. Denied. Loser at the 6th Circuit.
Plaintiffs moved for summary judgment on liability. They won. Davis loses again. She appealed. Loser again.
The trial began this week in Ashland before federal judge David Bunning on damages.
One set of plaintiffs (Moore and Ermold) took $50,000 each for a total of $100,000. The second set (Yates and Smith) were denied damages. The case was tried before two separate six-person jury panels. The plaintiffs are expected to seek attorney fees.
The still defiant Davis has promised an appeal to the Supreme Court and hopes Obergefell is overturned. She also thought the case was just about the plaintiff's having hurt feelings.
Moore and Ermold repped by Joseph Buckles and Michael Gartland of Lexington. Yates & Smith represented by Rene Heinrich and Kash Stilz
Daniel Schmid and Horatio Mihet (Liberty Counsel-FL) and A.C. Donahue, Somerset for Davis.
Full report coming in the October edition. The Moore/Ermold verdict is below. The other verdict looks the same except the jury wrote "0" for damages.
Published 9-7-2023
$250,000 medical transport verdict in Campbell County -- elderly patient suffered spinal fractures when her wheelchair tipped over in a transport van
The plaintiff, Loretta Hunt, age 92, was being transported from a hospital to a nursing home via a transport van. She was not properly secured in the van and her wheelchair tipped over. She suffered a serious cervical fracture and died two months later after a painful decline.
A Campbell County jury found the medical transport company violated the highest standard of care (common carrier) and awarded the estate $250,000 for Hunt's two months of pain and suffering. She had sought $8,000,000. The jury also rejected a death claim which would have triggered funeral expenses.
Charles M. Rittgers and Justin A. Sanders, Rittgers Rittgers & Nakajima, Cincinnati, OH and Craig A. Schlapprizzi, St. Louis, MO for the plaintiff
Matthew A. Taulbee and Lauren M. Spuzzillo, Reminger, LLP, Ft. Mitchell defending
Judge Daniel Zalla tried it
Details coming in the September 2023 edition next week.
Published 9-5-2023
Judge Haner recognizes own instruction error and orders new trial after defense verdict
There was an interesting case tried in June in Louisville. The plaintiff, a pedestrian, was struck crossing Bardstown Road and flipped over the defendant's hood. The plaintiff suffered cuts to his arm and a torn labrum.
The plaintiff alleged he was in the crosswalk and had the right of way. The defendant conceded he ran the light but it turned red very quickly. The defense also thought the plaintiff stepped into the road too quickly.
The presiding Judge Haner gave the following instruction that required the plaintiff to prove that when the plaintiff left the sidewalk, the defendant (even if he ran the light) was already in the intersection. The jury returned (predictably) a defense verdict.
Plaintiff moved for a new trial and cited instruction. Last week Judge Haner agreed and ordered a new trial. He wrote his instruction was not technically not a misstatement of law but it failed to fully instruct the jury on the state of the law. The motion for the new trial was granted.
Andrew Epstein (Bahe Cook Cantley & Nefzger) for the plaintiff. Jace Martin with Dilbeck Myers defending.
Judge Haner's New Trial Opinion
Published 8-31-2023
Complex Med Mal death case is underway in Louisville -- Chad Gardner has parachuted in for trial
There is a complex med mal that began this week before Judge Eric Haner in Louisville. The plaintiff, age 30 and the young mother of 3, died of pneumocystis pneumonia after a stem cell transplant. She blamed her medical team for failing to prescribe a prophylaxis (Bactrim) treat the infection and otherwise prevent her death.
Mark Alcott (Harlin Parker) Bowling Green had led the plaintiff team -- the decedent is from Morgantown. Just last week in advance of trial, Chad Gardner, he's been hitting some trial home runs (out of the park and rolling down the street), parachuted in and made an appearance for the plaintiffs.
The defense team includes Ashley Butler (Stoll Keenon Ogden) and James Grohmann (O'Bryan Brown & Toner).
There is some extremely high quality lawyering going on there and I'd expect some lawyers will be stopping by to watch the action.
Details coming in the October 2023 edition of the Kentucky Trial Court Review
Save 15% this week (through Friday) on anything in the Online Store with the code "Chadwick"
Case Document:
Defense Trial Memorandum (U of L Physicians)
Published 8-23-2023
Franklin County Med Mal Mistrial -- Juror proclaimed to several persons (after the first day of trial) that the defendant was GUILTY!
A med mal proceeded to trial in June of 2023 before Judge Thomas Wingate, Wiedo v. Capital Family Physicians, 20-CI-174. The medicine was interesting but not extraordinary. The plaintiff, age 35, died because of a purported serotin syndrome (related to her use of anti-anxiety medicine) and she blamed her family practice for failing to monitor her serotin levels. The defense blamed a sudden cardiac event.
At the close of the first day of a proof, a male juror approached a woman in the courtroom. She was a representative from the med mal insurer. He asked her: Are you with the defendants? She said yes. He purportedly replied the doctors were "GUILTY." He repeated similar remarks outside the courtroom to anyone that would listen.
The court was alerted the next day to the "guilty" outburst. Judge Wingate described the outburst as "improper behavior" and promptly declared a mistrial. The case has been reset for October of 2023.
Escum "Trey" Moore, III, Moore & Moore, for the plaintiff
Stephen Burchett, Jackson Kelly, Lexington defending
The judge's order on the mistrial is excerpted below:
Published 8-22-2023
Title IX Blockbuster Lawsuit against the University of Kentucky tried before Judge Caldwell two weeks ago
Riley Gaines, a swimmer at the University of Kentucky tied for 5th at the NCAA championships in 2022 with a transgender swimmer, Lia Ford, from Penn. Gaines was incensed she shared her coveted 5th place title with a person she considered to masquerading as a woman. She then began a crusade to Save Women's Sports which led to legislation in Kentucky that prohibits transgender children (it was already not allowed at the high school level) from playing sports. The law, as far as anyone can tell, applies only to one transgender girl (Fisher Wells) who started a middle school field hockey team at her school. Fisher is admittedly terrible and the team was too. But Riley worked hard and now little Fisher can't play with her friends.
Riley (pictured in at the NCAA tournament with Lia) for her part has continued to Save Women's Sports which has led her on a crusade with far right-wing political figures including Herschel Walker and Donald Trump to stop other little transgender children from playing sports. While Riley was doing this, a class action of women at UK was actually doing something to advance the interests of women in sports.
The plaintiffs, all students at the University of Kentucky, sued and alleged UK's athletic department was not in compliance with Title IX because it lacked enough athletic opportunities for women. The plaintiffs wanted UK to add a lacrosse team or perhaps an equestrian team, horses being a big thing in Kentucky. UK said there just wasn't enough interest. Numerically it was conceded that UK has less varsity athletic opportunities available to men than women.
That is not the end of the story. A three-part test applies (see the opinion below) as to whether a university is in compliance. The three components are:
(1) Numerical proportion, i.e., the athletic opportunities should match the gender population (UK conceded it failed this part of the three-part test)
(2) A history and pattern of opportunity, and
(3) Full and effective accommodation of athletes in the interests of women.
The lawsuit proceeded to a bench trial over three days in Lexington before Judge Karen Caldwell (8-7, 8-8 and 8-9). The plaintiffs (representing a class of UK women) alleged the university failed the three-part test. UK argued the opposite. The case has been submitted to Judge Caldwell and an opinion is not expected before at least the end of November as her scheduling order permits the party to continue to supplement the record until that time. We have included a link to the trial memorandums as well as Judge Caldwell's opinion describing the three-part test.
Lori Bullock, Bailey Glaser, Des Moines, IA, leads the plaintiff's team
Bryan H. Beauman and Carmine G. Iaccarino, Sturgill Turner Barker & Moloney, Lexington represent UK
Documents from Niblock v. University of Kentucky
Court Opinion Describing Applicable Three-Part Test
Published 8-21-2023
Plaintiff complained of an L5-S1 disc protrusion and pinched nerve after a collision with a dump truck -- $90,230 verdict Friday in Louisville
A dump truck merged into the plaintiff's lane and forced him off the road. Plaintiff treated for an L5-S1 disc protrusion and complained of a pinched nerve. A Louisville jury found the defendant solely at fault and awarded the plaintiff his medical bills of $10,230 as claimed. That represented chiropractic care and two ESIs.
The past suffering was $30,000 and the plaintiff took $50,000 more for in the future. The verdict totaled $90,230, the pain and suffering multiplier for this disc injury being 7.82. Report coming in the September 2023 edition.
The plaintiff's Honda sedan after the collision
Adrian Mendiondo, Danielle Blandford and Paul Chumbley, Morgan & Morgan, Louisville for the plaintiff
Ashley K. Brown and James P. Freel, Ward Hocker & Thornton, Lexington defending
Judge Tracy Davis presiding
Published 8-16-2023
Plaintiff suffered a knee injury in a very serious head-on crash -- he was cut out with the Jaws of Life - $261,520 verdict (as claimed) for plaintiff at trial
The plaintiff was struck head-on on River Road in Prospect. It was a very serious collision and the plaintiff (retired but working part-time as a florist) had to be cut out of the car with the Jaws of Life. He's treated for a fractured rib, broken kneecap and a torn meniscus. Fault was no issue.
The plaintiff's vehicle . . .
The plaintiff settled with the tortfeasor for $25,000 and sought UIM coverage above that floor. The jury deliberated just 8 minutes and awarded the plaintiff everything he sought. That was his lost wages of $11,520 and $250,000 for pain and suffering for a total of $261,520. Teh final judgment is expected to be for $228,059, representing the verdict less the underlying limits and a portion of lost wages paid by PIP.
There was also an interesting (and odd) issue preclusion summary judgment order by Judge Kaelin. The full verdict report will address that issue in more detail.
Cara Stigger and Kerstin Schuhmann, Kaufman & Stigger, Louisville for plaintiff
Bradley Harville, Louisville defending the UIM
Judge Julie Kaelin tried it
Published 8-10-2023
$356,893 verdict (less 35% fault) where plaintiff crashed into a big white box truck (illegally parked) and sustained broken ribs and an SI joint injury $200,000 for pain and suffering
The defendant (a driver for All My Sons Moving) illegally parked a box truck on the side of the road. A big white one. The plaintiff didn't appreciate the truck and crashed into it. He sustained broken ribs (they healed in eight weeks) and a persistent SI joint injury.
Plaintiff sued and alleged negligence regarding the parked truck. All My Sons Moving replied it was a BIG. WHITE. TRUCK. And you should have seen it.
Jury in Louisville mixed on fault today. It was assessed 65% to All My Sons Moving and the remaining 35% to plaintiff. The damages totaled $356,893.
That represented the medicals of $56,893, $100,000 for future care and $200,000 for pain and suffering. The net (after apportionment) is $231,980.
The Verdict
Verdict coming in the September 2023 edition (27 KTCR 9).
Chauncey Hiestand and Joseph Longmeyer, Winton & Hiestand, Louisville for the plaintiff
Barry A. Rudell, II, Markesberry & Richardson, Cincinnati, OH defending
Judge Jennifer Wilcox tried it.
Published 8-8-2023
$2,768,996 trucking verdict in Pikeville on 8-4-23 -- Plaintiff crashed into a poorly lit trailer that blocked the roadway - $1.5 million in pain and suffering
It was a dark and lonely night on Ky 194 in Meta (Pike County). The defendant (a scrap metal operator) backed his tractor-trailer across the roadway. The trailer blocked the road. There was no ambient lighting and his trailer (it didn't look that good) had inadequate reflective tape and was not lit.
The defendant's truck trailer:
The plaintiff came upon the scene in his Ford F-150 and crashed hard into the trailer -- he wasn't wearing a seatbelt. The plaintiff didn't remember the impact and suffered very serious injuries, to his aorta, internal injuries, assorted fractures, lumbar injury, mild brain injury and was hospitalized several months. His medical bills were $1,015,996. The crash scene:
Plaintiff sued the trucker and prevailed at trial, the jury finding the defendant solely at fault. Plaintiff took $2,768,996 which included the medicals as claimed, $222,000 for in the future and $1.5 million for pain and suffering. The plaintiff's wife's consortium was rejected. The final measure of damages was punitive damages of $25,000.
Images of the plaintiff's truck:
There's a lot more to this one and we'll have it in the August 2023 edition of the Kentucky Trial Court Review.
And the details below if you're scoring at home:
William R. Johnson, Brittney N. Schaeffer and Julie A. Sharp-Johnson, Johnson Law Firm, Pikeville for plaintiff
T. Scott Sennett and Rhese D. McKenzie, Campbell Woods, Ashland defending
Judge Eddy Coleman called balls and strikes
Published 8-7-2023
Defendant admitted fault in his Answer -- Prevails on liability at trial
There was an interesting verdict last week in Louisville. Plaintiff stopped at a crosswalk in front of Okolona Elementary. The defendant rear-ended him. It was a minor crash and the plaintiff didn't treat until two weeks later. He's since complained of a soft-tissue injury.
Plaintiff filed suit. The defendant admitted fault (in whole or in part) per the answer below. However at trial the defendant contested fault and suggested the plaintiff wasn't at a crosswalk and suddenly stopped. Plaintiff objected that fault was admitted in the answer (and in request for admissions) and that moreover, he should be able to cross-examine the defendant on that subject.
The court permitted the liability defense and would not allow the cross-examination. Plaintiff took proof on this by avowel.
The jury returned a defense verdict on liability and didn't reach the plaintiff's duties, apportionment or damages. The plaintiff has promised an appeal on the admission of fault issues.
Richard Head for the plaintiff
Eric Rice and Daniel Gumm (Gumm and Rice) defending
Judge Melissa Bellows tried it
Published 8-3-2023
You're the Cut and Paster for a Day! What was the pain and suffering verdict?
Yesterday we invited you, the reader, to be our Guest Cut and Paster. For one day you could do our job. In this case we asked what was the pain and suffering award? To refresh your memory, the set-up was this:
Plaintiff, nice lady, late 60s, rear-ended by a drunk driver. A hard hit. T-12 burst fracture. Hospitalized two weeks.
Rotator cuff injury too and resulting frozen shoulder.
Settled with drunk driver who had $250,000 limits. This is UIM against State Farm in Jefferson County. Verdict on 6-8-23.
Medicals are $127,826.
What was the pain and suffering we asked?
Picture of the Crash
The pain and suffering was $75,000. Thus this case ($150,000 total for the plaintiff) is below the floor of UIM coverage against the insurer.
Grover Cox for the plaintiff
Jared Downs (Boehl Stopher & Graves) defending
Judge Mitch Perry on the bench
Report coming in the August edition (27 KTCR 8).
Published 7-31-2023
A new complaint alleges Norton Hospital turned away a young immigant patient at an immediate care -- he was asked for "his papers" -- the boy was delayed care for 28 minutes and died from a hypoxic event related to a ruptured appendix
Norton Hospital was in the news last week with a complaint alleging a monstrous course of care in treating a little boy who had a heart defect.
Norton is back this week. A new complaint alleges a teenage immigrant from Guatemala presented to a Norton immediate care center. When his older brother explained the teenager was very ill, the desk worker said the teenager would not receive care unless he had "his papers.
This led to a 28 minute delay in the teenager receiving care at another hospital. By that time the boy had already suffered a hypoxic injury related to a ruptured appendix and was pronounced.
The complaint alleged negligence by Norton in failing to treat the teenager, the cause of death allegedly being that he had brown skin and spoke broken English.
John K. Spalding and Alex R. White (Alex R. White, PLLC) Louisville filed the complaint
Vazquez v. Norton (link to the complaint)
Published 7-28-2023
Plaintiff complained of a TBI after a right-of-way crash -- $45,000 verdict yesterday in Scott County which is below the $50,000 floor of coverage
There was a UIM verdict in Georgetown that concluded yesterday. Plaintiff, a manager at a research facility at UK, complained of a TBI after a right-of-way collision. She settled with the tortfeasor for her $50,000 limits and sought UIM coverage (up to $250,000) from her carrier, CSAA General. Her only claimed damages were pain and suffering which were capped at $4,000,000. The medical bills were $41,592.
The insurer conceded fault and an injury -- it just contested the severity. The defense IME was Dr. Timothy Allen, Neuropsychiatry, Lexington.
The jury awarded the plaintiff $45,000 and failed to implicate the UIM floor of coverage and a defense judgment is expected.
The plaintiff's vehicle
Justin B. May and Lindsey C. Goetz, The Dixie Law Group, Louisville for the plaintiff
Ashley E. Brown and Jared M. Hudson, Ward Hocker & Thornton, Lexington defending
Kathryn Gabhart on the bench
The Jury Verdict
Published 7-25-2023
Complaint in Jefferson County alleges monstrous and unconscionable behavior by hospital in end-of-live care for a child in need of a heart transplant
There was a remarkable complaint filed last week that makes truly astonishing claims. A little boy, Finnley McCullum, age 8, was born with a congenital heart defect. He underwent a heart transplant in August of 2022 but it failed within hours. Thereafter he relied on life-support for the next 8.5 months which included the use of a Berlin Heart -- it is a medical device that is a bridge until a transplant can be found. The boy also relied on dialysis, a tracheotomy and a ventilator. He was at Norton Hospital.
In April of 2023, the suit alleges, Norton informed the family that Finnley was no longer a candidate for a heart transplant. His parents (Sally and Christopher) were also informed that the hospital was going to remove life-saving treatment. The McCullums were given 24 hours to get a court order to stop the hospital. The McCullums felt pressured and manipulated by the tight and arbitrary deadline. They elected to spend the time with their child.
The hospital also failed to provide end-of-life care to Finnley. He was conscious and cognitively aware what was happening to him as the machines were shut down. His parents could do nothing but lie to him that everything was okay. It was not. He died a painful death and his parents grieved as they watched it happen. Their boy cried for help as he suffered intense pain for hours before he died.
His parents have sued (the complaint) and alleged two tortious counts against the hospital. They are, (1) negligent infliction of emotional distress, and (2) loss of consortium. They seek compensatory and punitive damages.
The allegations in the complaint reflect a monstrous and unconscionable course of conduct by the hospital. At the time of this post, the hospital had not yet answered the complaint.
Ann B. Oldfather and Benjamin F. Hachten (Oldfather Law Firm) Louisville are the attorneys for the plaintiff
Finnley McCullum (8/27/14 - 4/19/23)
McCullum v. Norton Healthcare (The Complaint)
Published 7-24-2023
Positioning Injury (13-hour Whipple Surgery) Med Mal Tried in Lexington last week -- Defense verdict
The plaintiff underwent a 13-hour Whipple (pancreatic) surgery and when he awoke he had suffered median nerve injury that affected his elbow. The plaintiff sued the anesthesiologist and alleged a positioning error during the surgery led to the injury. The doctor replied that the plaintiff's were properly crossed on arm boards and that is sort of injury is an extremely rare complication.
A Lexington jury heard the proof last week and returned a unanimous verdict for the doctor. The only claimed damages were $1,000,000 for pain and suffering.
Escum L. Moore, III for the plaintiff
Melanie Marrs (pictured) and Tonya Rager (Kinkead & Stilz) defending
Judge Diane Minnifield presided
Report coming in the August 2023 edition of the Kentucky Trial Court Review -- Save 15% in the Online Store with code July2023 through the end of the month.
Published 7-20-2023
Interesting "Adult Day Care" Verdict last Friday in Boone County
There was an interesting case that was tried last week. An adult woman with Downs (age 51) was on a field trip as a part of an adult day care. She fell exiting a transit bus and suffered a skull fracture and brain injury. There was proof this led to early onset dementia (this is common for Downs persons) and led to her decline.
The woman (she died after the suit was filed) alleged negligence by her daycare in failing to supervise her in exiting the bus and including having a spotter to help her on the steps. Day care replied the plaintiff could ambulate without assistance and used the steps on the bus many times. It also contested causation on the ongoing injury.
A Boone County jury heard the case last week and returned a 10-2 verdict on liability. The only claimed damages were pain and suffering which the instructions capped at $3,000,000. Full report coming in the August 2023 edition.
Ryan Turner, Dallas & Turner, Florence for the plaintiff
Mark E. Hammond and Rachel D. Dearmond, O’Bryan Brown & Toner, Louisville defending
Richard A. Brueggemann presided
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Published 7-17-2023
Bonkers Nursing Home Med Mal from Whitley County -- Defense Verdict -- Five months post-trial the judge interrogated a juror and ordered a new trial
There was a bonkers post-trial result in Whitley County. The underlying case wasn't remarkable as far as nursing home neglect cases go. Elderly patient with dementia alleged global nursing home neglect. Her estate sought $60,000,000 in damages. A defense verdict was returned in January.
Stephen M. Garcia and Matthew M. Coman, Garcia & Artigliere, Louisville for the plaintiff
Mark E. Hammond and A Pete Pullen, O’Bryan Brown & Toner, Louisville and Wesley R. Tipton, Tipton & Tipton, Corbin defending.
Plaintiff moved for a new trial (it was wide-ranging) and alleged the jury was rigged (the foreperson was connected to the defense law firm) and yet another juror (it was an 8-4 count and she switched to make it 9-3) was pressured by the foreman and felt rushed.
The presiding Judge Dan Ballou (a self-described humble referee and pictured below) interrogated the pressured juror under oath five months after the trial. She indicated under oath she was pressured in the case, was stressed about her sick child the night before and her vote was not based on the evidence.
Judge Ballou concluded:
"This is not a fair trial. That's not a fair trial when you have a juror who does not make a decision based on the evidence."
In a barebones order Judge Ballou granted the new trial. Wow!
Hillcrest has since moved to reconsider the New Trial Order (linked below) and that motion is pending. Full report in the July 2023 edition.
Subscribe to the Kentucky Trial Court Review (save 15% with the code July2023 at check-out)
Links to documents from Morgan v. Hillcrest . . .
Plaintiff's Motion for a New Trial
Defense Response to Motion for a New Trial
Defense Motion to Reconsider New Trial Order
Published 7-13-2023
$18,793 soft-tissue verdict yesterday in Louisville in a case involving a very minor rear-ender
The plaintiff was stopped at a red light (he's a taxi-driver) when he was rear-ended by the defendant. The crash was VERY minor and the visible was virtually invisible on the plaintiff's taxi.
Plaintiff went to the ER and complained of soft-tissue low-back pain. He then treated with a chiropractor.
The case was tried on damages and the plaintiff took medicals of $8,793 and $10,000 for pain and suffering for a total of $18,793. That represents a 1.13 injury multiplier.
Joseph Gaines and Nicholas Naiser for the plaintiff
Eric Rice and Daniel Gumm, Rice Gumm, defending
Judge Jessica Green was the umpire.
Save 15% in the Online Store with code July2023. Good on everything. A book. A subscription. Whatever. Runs until 7-31-23.
The plaintiff's vehicle
Published 7-10-2023
$27,901 Auto Negligence/UIM verdict in Louisville fails to implicate $35,000 floor of UIM coverage
The defendant crossed the centerline on Brownsboro Road in Prospect and struck the plaintiff. The defendant was dead at the scene. The plaintiff, a businessman in his 50s has complained of a disc injury. The treating Dr. Mark Barrett confirmed the injury. The defense aggressively cross-examined Barrett about his medical lien.
Plaintiff settled with tortfeasor for her $24,500 of the $25,000 limits and sought UIM coverage. UIM carrier advanced the limits. Thus at trial plaintiff had to exceed $35,000 to implicate UIM coverage and $1,035,001 to exhaust it.
The jury awarded the medicals of $12,901 and $15,000 for pain and suffering. [The plaintiff claimed $1,000,000 for suffering.] The jury also rejected loss wages.
The $27,901 verdict failed to implicate the UIM coverage and a defense judgment is expected. The insurer will also get back the $24,500 it Coots-advanced.
Full Report in the July 2023 edition out next week.
The plaintiff's Jeep showing the damage to the wheels
David W. Son, The Son Law Firm, Louisville for the plaintiff
Steven B. Lowery, Reminger, Louisville for tortfeasor
Charles A. Walker and Cash Collins, Sewell & Neal, Louisville for UIM
Judge Melissa Bellows on the bench
Published 7-5-2023
$240,000 employment verdict last week in Frankfort -- High school teacher fired from the Kentucky School for the Deaf after making complaints
Last week a former language arts teacher at the Kentucky School for the Deaf (KSD) advanced to trial on retaliation counts. She had alleged the school didn't have enough deaf counselors to serve the students among other complaints. Despite her stellar record, the plaintiff's contract was not renewed. KSD's reasons for non-renewal were thin and bogus.
The plaintiff prevailed on KY 344 retaliation as well as on a whistleblower count at a Frankfort jury trial last week. She was awarded $55,000 in economic damages and $10,000 more for mental anguish. The lion's share of the $240,000 verdict was $175,000 in punitive damages.
Report coming in the July 2023 edition of the KTCR, 27 KTCR 7.
JoEllen Combs (Brooks & McCombs) and Jeffrey Walther (Walther Gay & Mack) for the plaintiff
Ashley Lant and Todd Allen (Ky. Board of Education) defending the government
Judge Phillip Shepherd tried it
We've got some other news. This week we've got a little sale going on.
An annual subscription is just $299.00 (regular is $349.00) and the 2022 Year in Review is $379.00 versus $449.00. If your subscription is current . . .you can still take advantage and we'll simply advance your subscription a year. This is a good deal. It lasts all day if you're in the office on July 5th!
The Expert Encyclopedia (8th edition) is also brand new and you can order it here: (Expert Encyclopedia).
I hope everyone enjoyed a fun and safe 4th of July.
Published 7-4-2023
Happy Fourth of July! -- Bonus Freedom Content!
Prominent Kentucky attorneys (Tad Thomas and Brian Jasper) recently tried a novel nursing home negligence in Seattle related to the beginnings of the corona outbreak in 2020 at a Kirkland, WA nursing home
In preparing the Federal Jury Verdict Reporter (a sister publication), we came across the case of Hamrick et al v. Life Care Centers of America. It is extremely interesting. The two plaintiffs died of corona in March of 2020 at a Kirkland, WA nursing home. This was the initial outbreak in the U.S. and perhaps the first nursing home to be struck by the disease.
The estates sued the nursing home and alleged in the lead-up to corona going wild across the world, they should have appreciated an uptick in respiratory infections and instituted protocols to prevent the spread, even if the parameters of Covid-19 were not yet known. The nursing home replied that this was an unprecedented event, there was no federal guidance and no one knew of the dangers or what was to come.
A defense verdict was returned after a six-day trial.
What is interesting about this for purposes of Kentucky? The plaintiff's lawyers who brought this interesting and novel case are Kentuckians: Tad Thomas and Brian Jasper of the Thomas Law Offices in Prospect. They didn't win this one but they are serious lawyers with a record of winning large verdicts in consequential cases.
See Dreyfus v. Life Care Centers, 2:21-740, Washington Western District -- Seattle.
An excerpt from the defendant's trial brief is below.
Published 6-30-2023
$50.5 million industrial death verdict returned in Louisville Thursday night
Joey Snyder was working at Kosmos Cement (for an independent contractor) in southern Jefferson County on 8-9-16 and making repairs on its load-out chute. The chute allows Kosmos to load powdered cement onto barges in the Ohio River. Because of a multitude of maintenance and repair errors, the chute failed as Snyder was working and he suffered fatal injuries.
Snyder's estate targeted Kosmos for negligence and gross negligence and separately a products claim against the chute manufacturer, Pebco. The defendants denied fault and implicated both the decedent and his employer on a third-party claim.
The jury assessed fault 95% to Kosmos and 5% to Snyder. It exonerated Pebco and the third-party defendant.
The damages were enormous. $5,000,000 for Snyder's destruction, $1.5 million for pain and suffering (he asphyxiated) and $10,000,000 for his wife's consortium interest. Each of his children took $3,000,000 for their consortium interest. Finally the jury imposed punitive damages of $25 million, the raw verdict totaling $50,500,000.
Chadwick Gardner, Gardner Law, Louisville and Jeremiah Byrne, Frost Brown Todd, Louisville for the plaintiff (both pictured)
Richard Edwards, Boehl Stopher & Graves, Louisville and David Cooney, Fort Lauderdale, FL for Kosmos Cement
John Martin, Landrum & Shouse, Louisville for Pebco on products claim
Rookie Judge Tracy Davis presiding
Published 6-28-2023
Late Breaking -- Judge David Hale has struck down part of SB 150 (the anti-transgender bill passed by the General Assembly) as it pertains to gender-affirming care
Today in a 15-page opinion, Judge David Hale (pictured) struck down portions of SB 150 (passed this year by the General Assembly and which targets transgender children) as it pertains to those children receiving gender-affirming medical care. The legislature was adamant (even in the face of the virtual entirety of the medical profession that this was a bad idea) that parents should not be able to provide gender-affirming care to their transgender children.
A set of plaintiffs (including the ACLU and Jane Does) targeted that lawsuit as unconstitutional. Judge Hale granted a preliminary injunction against the new law (it would go into effect Friday) and held it improperly singled out transgender children from receiving medically appropriate care. He noted the virtual entire body of medical evidence supported the use of gender-affirming care and that these treatments have a long history of being safe. The link to the opinion is below.
Attorney General Cameron has promised an appeal to ensure these children do not receive the medical care which their parents and doctors indicate they need. Members of the General Assembly have also called Judge Hale an Obama liberal.
Judge Hale's Opinion (15 pages in pdf)
Live Look-in -- Breast cancer diagnosis case is happening now in Georgetown -- verdict expected Thursday
There is a med mal going on in Georgetown right now that began last week, Fryman v. Johnson et al, before Judge Gabhart. The plaintiff saw her PCP in October of 2014 who palpated a 2 mm lump in the plaintiff's breast. Plaintiff referred to a radiologist for an ultrasound and mammogram. Radiologist concludes it is a cyst. Plaintiff told to follow in six months.
Plaintiff does so in nine months (not six) and now the lump is 5.5 mm. Testing reveals cancer. Plaintiff had a mastectomy and other complications but has since been cancer free.
Plaintiff alleges her doctors erred in not further ruling out cancer at the initial ultrasound and mammogram, including a referral to a breast cancer specialist or a biopsy. Defendants reply they met the standard of care and they've also implicated the plaintiff's standard of care in not following within six months.
Verdict expected Thursday and look for a report in the July 2023 edition of the Kentucky Trial Court Review (subscribe at the link).
H. Philip Grossman and Frederick W. Moore, III, Grossman and Moore, Louisville for plaintiff
Clayton L. Robinson and Jonathan Weber, Robinson & Havens, Lexington for Johnson (Family Practice)
Benny C. Epling, II and Charles D. Aaron, Jr., Law Offices of Benny Epling, Lexington for Scalf (Radiology)
Judge Kathryn Gabhart on the bench
Read from the trial memorandums from the case . . .
Defense (Scalf-radiology) Trial Memo
Defense (Johnson-PCP) Trial Memo
New this week from the KTCR:
The Expert Encyclopedia (8th edition) has been updated. Ships out in PDF this week. Print coming soon.
Published 6-25-2023
Court of Appeals affirms a medicals ($12,302) no suffering in a case involving a contested rotator cuff injury
The plaintiff fell at a rental cabin in Burnside near Lake Cumberland and later treated for soft-tissue injuries as well as to her shoulder which resulted in a surgery. However she did not initially report shoulder pain. The defense contested the injury and suggested the case was attorney-created, the plaintiff consulting a lawyer after her ER visit.
A Somerset jury was mixed on fault in October 2021, assessing 70% to the defendant and the remainder to the plaintiff. Plaintiff took $12,302 in medical bills but nothing for pain and suffering. The net verdict was $8,611.
Plaintiff moved for a new trial and argued among other things that the improper and salacious argument her case was "attorney-created" had deprived her of a fair trial. The motion was denied. The plaintiff appealed.
The Court of Appeals (Judge Combs writing and joined by McNeil and Taylor) in a non-published opinion affirmed at the rendition date on Friday. The court noted the injuries were vigorously contested and the defense was free to cast doubt on the credibility of the plaintiff's claim.
We have a link to our original verdict report below as well as the appellate opinion.
It is interesting the modern era that plaintiffs don't even make medicals-no suffering arguments anymore. That used to be the rule of thumb until the Miller v. Swift (42 S.W.3d 599 , Ky. 2001) revolution some 22 years ago.
Original KTCR Jury Verdict Report (KTCR Case No. 5939 -- 10-26-21 jury verdict)
The Court of Appeals opinion (external link -- rendered 6-23-2023)
Michael Johnson and Justin Noble (Law Office of David Johnson) Hazard for the appellant (plaintiff)
Bridget L. Dunaway, (Tooms Dunaway & Webster) London for appellee (defendant)
New this week:
The Expert Encyclopedia (8th edition) has been updated.
Published 6-25-2023
Plaintiff, a high-schooler, suffered a broken leg when his teacher allowed him to drive a homemade motorcycle on the school's track -- the boy filed a lawsuit last week
The plaintiff, V.R.R., age 16 and the son of Kendra Reed, was a student at Fern Creek in the class of a teacher, Daniel Trahan. Trahan constructed a homemade motorcycle and permitted V.R.R. to ride it on the school's track. V.R.R. didn't have a learner's permit or a driver's license or any business at all driving a motorcycle of any kind.
The boy drove and the motorcycle on the track at Fern Creek. He crashed and broke his leg.
This week through his mother, V.R.R., has sued Trahan in his official and individual capacity. He is not still working at Fern Creek.
A. Nicholas Naiser (Naiser Law Office) Louisville filed the lawsuit last week. The complaint is below as is an image of the homemade motorcycle.
In other news, the Expert Encyclopedia (8th edition) is out this week.
Published 6-23-2023
The Expert Encyclopedia (8th edition) and the first in four years is back
Good lawyers tell us the Expert Encyclopedia is the book they use the most. It's serious business and chronicles more than 20 years of expert appearances.
How is it organized? It has three parts. The first is the main expert index . . .
The second part is the index by expertise. Looking for say . . .Neo-Natology or Nephrology. Here is a sample . . .
The third part is the index by attorney. What experts has an attorney used?
The book is out next week. You can order it at the link below. Have a good weekend!
Published 6-21-2023
The plaintiff lost at a UIM trial on causation regarding a knee injury -- the Supreme Court reversed at the June rendition date finding error in allowing a biomechanical engineer to discuss medical causation
The plaintiff complained of a knee injury after a relatively minor crash. She settled with the tortfeasor for his $50,000 limits and sought UIM coverage from her carrier. The insurer hired a biomechanics expert, David Porta, to contest the claimed injury. Porta testified both as to biomechanical issues and medical causation.
The case ended in a defense verdict on causation in November of 2019. The plaintiff appealed and cited among other things that the trial court erred in allowing Porta to discuss medical causation. The case made it to the Kentucky Supreme Court.
At the June rendition date the court reversed on the Porta testimony question finding he "impermissibly invaded the province of the physicians." A new trial was ordered. Justice Nickell authored the 5-1 opinion and was joined by Justices Bisig, Conley, Keller and Lambert. Justice VanMeter was not sitting.
Justice Thompson dissented that the error was harmless and in any event the testimony in question was elicited on cross-examination.
Supreme Court Opinion (External link) (Rendered 6-15-23)
Original Verdict Report (verdict returned 11-21-19)
Sandra M. Varellas, D. Todd Varellas and Preston Cahill, Varellas & Varellas, Lexington for the appellant (underlying plaintiff)
Ashley K. Brown and Graham D. Barth, Ward Hocker & Thornton, Lexington for the appellee (UIM carrier)
Lucy VanMeter was on the bench at trial
Relevant excerpt of the Supreme Court Opinion
Published 6-19-23
Dog Attack/Fraztke Special
Holy Cow! Fratzke. You'd of thought that wasn't a thing in 2023 but it is. The insane genius of Fratzke is almost 25 years old!
Here's how it went down. The plaintiff riding his Harley on a rural road when a dog ran into the road. Plaintiff crashed and suffered an injury to his finger and road rash. He sued the dog's owner for failing to constrain him.
Then at trial . . .the plaintiff had not submitted CR 8.01(2) answers on pain and suffering. The court directed a verdict against him and thus the case went to the jury on medical bills only. Ouch.
And adding insult to injury the jury's verdict was for the defendants on liability.
Report coming in the June 2023 edition which is out first thing Wednesday.
Published 6-5-23
ER/Hospital Med Mal in Harrodsburg -- Defense verdict
Factory worker, age 28, came to the ER in the middle of night with back pain. ER doctor diagnoses a strain and releases him within an hour. Plaintiff back to work and collapses soon thereafter. Plaintiff back to the ER by ambulance and does not survive a code. Death blamed on a cardiac event
Plaintiff alleges ER doctor and hospital staff fail to perform a complete exam and rule out all reasonable possible causes for his symptoms. It is also alleged hospital faked records and a spoliation instruction went to the jury.
Defense replied that plaintiff properly evaluated based on his presentation and death is caused by a sudden and unpredictable cardiac event.
Harrodsburg jury (Mercer Circuit Court) rejects the case on liability (5-31-23) and doesn't reach spoliation or damages.
Laraclay Parker and Alexandra DeMoss-Campbell, Golden Law Office, Lexington for plaintiff
Daniel Brown, Gazak Brow), Louisville for Sadek (ER Doctor)
Barbara J. Bowers and Joshua D. Johnson, Piper & Bowers, Lexington for Haggin Memorial Hospital
Benny Epling, Lexington, for Sadek's third-party employer on a bifurcated negligent credentialing claim
Judge Jeffrey Dotson behind the plate
Full report coming in the Kentucky Trial Court Review.
Published 6-2-23
$61,655 rotator cuff injury verdict this week in Morehead -- Medicals of $47,340 as claimed -- Pain and suffering was $10,000
Plaintiff was riding with her mom when they were struck in a parking lot by a third-party. Plaintiff sustained a rotator cuff tear and it was surgically repaired three months later. Plaintiff's medicals were $47,340.
It was a complex journey but by trial, all that was left at trial was Plaintiff versus Mother and a secondary UIM against State Farm standing in the shoes of the third-party who had settled. State Farm $100,000 of UIM coverage available.
The jury split fault 50-50 between Mother and tortfeasors. The damages were the medicals, lost wages of $4,215 and $10,000 for pain and suffering, all totaling $61,555. [That's an anemic pain and suffering multiplier of .211.]
The final judgment will be reduced less comparative fault and PIP and assessed $25,777 to Mother and just $777 to State Farm. Why just $777 and not $25,777 as to the insurer? Plaintiff had settled with the third-party for $25,000.
Blake Nolan, Jarrod Bentley and Joseph Rugg from Morgan & Morgan for the plaintiff
John J. Ellis, Dehner & Ellis, Morehead for Mother
Robert B. Cetrulo, Cetrulo Mowery & Hicks, Edgewood for State Farm
Judge David Barber on the bench
Full report coming in the June 2023 edition of the Kentucky Trial Court Review. There's quite a bit more to the case, a summary judgment, a summary judgment that wasn't, amended complaints and well, lot's more.
The verdict form on damages
Published 6-1-23
Child Care Abuse Verdict in Jefferson County -- Provider taped a little girl's hands together for 41 minutes when she wouldn't settle down - $55,000 Verdict
Willa Colvin, age 4 and autistic, was at the Outer Loop Child Care (it's a daycare) and it became naptime. Willa was reluctant to go down and when her caregiver, Ramiah Douglas, came to her wits end, Douglas tied the girl's hands together with blue painter's tape for FORTY-ONE minutes. Douglas explained the girl had on a fluffy sweater and didn't think it would hurt.
The abuse (it was on video) was discovered. Douglas was promptly fired and pled guilty to felony charges. The little girl has since treated for PTSD and other emotional symptoms. A defense IME (Timothy Houchin, Psychiatry, Lexington) thought Willa had a good prognosis and should lead a happy life.
Willa sued Outer Loop and Douglas and advanced negligence and false imprisonment as to Douglas. It was a negligent training case against Outer Loop. Her only damages at trial were pain and suffering, capped at $5.5 million. The court directed a verdict on future medicals and there was a summary judgment on punitive damages.
There was a coverage detour in federal court along the way. The day care had a $1,000,000 policy and a $100,000 molestation rider.
Verdict last Friday in Louisville: the jury found against both defendants and assessed fault 60% to Douglas and 40% to Outer Loop.
The damages? Willa's pain and suffering valued at $55,000.
Full details (there is a lot more) will be in the June 2023 edition. You're subscribing right? Subscribe to the Kentucky Trial Court Review.
Jeffrey Sexton and John Byrnes, Louisville for the plaintiff
Rod Payne (Boehl Stopher & Graves), Louisville for Outer Loop Child Care
Matthew Cook (Kerrick Bachert), Bowling Green for Douglas
Rookie Judge Melissa Bellows gets her big league call-up
The jury verdict on liability (as to the tortfeasor) and the damages award
Published 5-30-23
Fatal Train Crossing Case Tried to a Jury Verdict in Grayson County
Phyllis Minton, age 63 and a long-time beloved math teacher in Grayson County approached a rural rail crossing. There was no lights or signal. Minton was struck by a Paducah & Louisville Railway train. Minton was killed instantly.
Her estate alleged the crossing was dangerous, poorly marked and the trainman had not sounded the horn. The estate sought Minton's destruction as well as her husband's consortium interest. They had been married 45 years at the time of her death.
The railroad countered that Minton failed to appreciate the train. There were significant pre-trial issues, (change of venue, removal, remand and motion for mistrial) that will be described in the full report in the June 2023 edition of the KTCR.
A Leitchfield jury returned a defense verdict on Friday for the railroad.
Timothy Gaardner, Kansas City, MO and Thomas Goff, Leitchfield for the plaintiff.
Miller Grumley and David Riley, Grumley Riley & Stewart, Paducah defending
Judge Bruce Butler presided.
Published 5-25-23
Glenna Bevin has filed for divorce from former Kentucky Governor Matt Bevin (2015-2019)
Former Kentucky First Lady Glenna Bevin has filed for divorce from Gov. Matt Bevin. They were married in 1996 and have nine children. The link is to her petition for divorce. Her attorney is Mark Dobbins of Dobbins Tilford Schmidt.
Published 5-19-23
Rowan County Schools sued after teacher/coach sexually abused and raped a student for years -- suit alleges school turned a blind eye -- teacher/coach since indicted
In a complaint filed this week by a Jane Doe plaintiff (identified as K.L. -- graduating senior at Rowan County), a grim and harrowing picture of sexual grooming is presented. It alleges a teacher/coach Andrew Zaheri (pictured) targeted the teenage girl from her freshman year on and then began an illegal and abusive sexual relationship with her. She was a multi-sport athlete and Zaheri, is is alleged, abused his position as a coach and teacher to abuse her. Making matters worse, school officials had been warned and did nothing to protect K.L. K.L. finally broke free this year and Zaheri has been indicted.
The plaintiff (it is not clear if she is 18 or not) filed the lawsuit yesterday.
Jonathan B. Hollan and Sam Aguiar (Aguiar Injury Lawyers) for the plaintiff. The complaint is linked below. Zaheri and school officials have not yet answered.
Published 5-19-23
Mega Cavern death verdict from 2021 affirmed Friday at the Kentucky Court of Appeals rendition date
You will recall the June 2021 fatal death case where the plaintiff died of suspension trauma while at the Mega Cavern underground ropes course in Louisville. A defense verdict was returned. The estate of the plaintiff appealed from Judge O'Connell's final order.
The Court of Appeals affirmed (Appellate Rookie Eckerle writing) at the Friday rendition date. The plaintiff had argued that as the court had ruled the pre-release was unenforceable, it was also inadmissible. The trial court had allowed as evidence the decedent knew of the risks. The appellate court held there was a risk of confusion by the introduction of the release, but it was not a "palpable error" that justified reversal.
The full opinion is below. The underlying plaintiff has indicated they will seek discretionary review at the Supreme Court.
Brenton Stanley from Morgan & Morgan led the case for the plaintiffs. Maxwell Smith and Ashley Brown (Ward Hocker & Thornton) defending.
Appellant's Brief
Appellee's Brief
Court of Appeals Opinion (external link)
Published 5-19-23
King of Torts Melvin Belli tried a case a celebrated case in Kentucky in 1959! Here's the story
In the 1950s attorney Melvin Belli gained national fame as the King of Torts. Incredibly Belli would try a case in Kentucky of all places before the decade was over.
It started, just as improbably in Lyndon (eastern Louisville) at a rail crossing in February of 1958. Marvin Fischer, a tax attorney, was driving his new Nash Rambler when it was struck by a 61-car L&N train. Fischer was dead at the scene. Fischer's estate alleged negligence by the train engineer who not only hadn't seen the vehicle but didn't even realize he'd struck it. There were also issues regarding the crossing being obstructed by vegetation. The impact threw Fischer from the Rambler.
A lawsuit was filed and a year later before Judge Alex Humphrey in Louisville, the case would be tried. Melvin Belli was for the plaintiffs. Joseph Stopher of Boehl Stopher Graves & Deindorfer represented L&N. It was a huge trial and the courtroom was packed. The below description from Shannon Ragland's book, The 7th in Kentucky, describes the trial.
The verdict wouldn't stand. L&N appealed and the Court of Appeals reversed. Judge Watson Clay wrote that the evidence pointed to the unerring conclusion that Fischer had failed to yield. L&N Railroad v. Fisher, 357 S.W.2d 683 (1962).
Belli had come to Kentucky (some 64 years ago) and taken a verdict. But he couldn't keep it. It was the only case Belli would ever try in Kentucky.
Published 5-19-23
In a fatal child drowning case from Rowan County (defense verdict) the plaintiff has moved for a new trial and cited juror misconduct
A little boy (age 9) was playing near a creek (this was in the wake of an historic rain storm) behind his apartment in Morehead when he fell in a concrete drainage flume (installed to remediate erosion) and drowned as he was carried away by the waters – his estate (representing his mother) blamed the City of Morehead (it dedicated the sewer system) and the Housing Authority of Morehead (it added the concrete flume) for having created a dangerous attractive nuisance – the defendants denied fault and it was argued among other things that the incident was an Act of God.
A jury in Morehead returned a defense verdict on liability although it did reject the Act of God defense. Case reported in the March 2023 edition.
Plaintiff has moved for a new trial and cited among other things, juror misconduct, a witness at trial who after testifying heard two jurors pre-judging the case, i.e., the mother should have been watching the child. The motion is pending.
Mickey Webster (Wyatt Tarrant & Combs) Lexington for the plaintiff.
Plaintiff's Motion for a New Trial
Published 5-18-23
Plaintiff's have moved for Judge Hall (Pike County) to recuse on the eve of the post-trial motions in the $10,000,000 Mistrial Med Mal
There's a lot going on in this one but you'll recall the $10,000,000 verdict reached by a jury that deliberated after a mistrial was declared. The jury didn't know about the mistrial. The plaintiff has since sought to enter a judgment on the verdict. The hospital has opposed that. The motion is set for hearing tomorrow at 2:00 p.m.. See our post-below.
Late today the plaintiff's moved for Judge Hall to recuse. The gravamen of the matter is that the judge conducted an ex parte interrogation of a juror during the trial and the parties then relied on the judge's description of that interrogation. The motion explains that the representation was not completely accurate, Hall is likely now a material witness and thus his impartiality can be reasonably brought into question. Moreover had the interrogation been properly described, the plaintiff would have sought an extraordinary writ at the Court of Appeals. The motion includes an affidavit from plaintiff's counsel (Ross Mann) and transcript of the part of the proceedings.
How does this motion affect tomorrow's substantive hearings? The record is not clear.
Other Case Documents:
Plaintiff's Motion for a New Trial
Defense Response to Plaintiff New Trial Motions
KTCR Original Verdict Report (Published in the March 2023 edition, 27 KTCR 3)
Published 5-17-23
State Volunteer, facing bad faith in the $21 million Duff v. Graves-Gilbert case, has moved to dismiss the case -- hearing today at 2:30 (CST) in Bowling Green
You will recall the $21,310,887 med mal verdict in Bowling Green last summer against the Graves-Gilbert Clinic. The result far exceeded the clinic's $5,000,000 policy limits with its insurer, State Volunteer.
Graves-Gilbert appealed the final judgment and filed for bankruptcy. The plaintiffs also filed a new complaint against State Volunteer that alleged bad faith.
State Volunteer has moved to dismiss and argued there was a "wealth" of evidence that liability was in dispute and it was reasonable to reject the plaintiffs' settl. The plaintiffs have replied that despite liability being reasonably clear, State Volunteer never made an offer in the case (ever, not even through today) and thus the motion should be denied.
The hearing on the motion is today at 2:30 (CST) in Bowling Green before neophyte Judge Christopher Cohron.
Christopher G. Johnson and Samuel W. Wardle (Frost Brown Todd) Louisville are for State Volunteer.
Chad Gardner and Jake Grey (Gardner Law) Prospect for the plaintiffs.
Published 5-16-23
$10,000,000 Med Mal verdict then declared mistrial is coming up for the hearing on post-trial motions this Thursday in Pikeville
Remember Gauze v. Pikeville Medicine Center which was tried on 2-10-23 before Judge Hall in Pikeville? It was a big mess. The jury returned a $10,000,000 verdict for the plaintiff but . . . unbeknownst to the jury, Judge Hall had already declared a mistrial because of juror misconduct. This thing went so off the rails that even Andy Wolfson at the Courier-Journal wrote about it!
This led to a flurry of motions. Judge Hall ultimately sealed the verdict. It's a secret! Plaintiff moved to enter a judgment on the verdict as returned. The hospital has since opposed that motion and that response is posted below.
The hearing on these motions is set for Thursday in Pikeville at 2:00 p.m. before Judge Hall. I'd think that will be an interesting hearing.
Ross Mann and Brian Jasper for the plaintiff. Daniel G. Brown and James E. Smith (Gazak Brown) for the hospital.
We accumulated below the original verdict, our report on it, the plaintiff's post-trial motion and the hospital's response. The hospital argued it was agreed by all the verdict would be advisory, confidential, off-the-record and have no binding effect. The hospital in its motion also explained it is very concerned that the confidentiality of the verdict (we published it) was ever leaked.
KTCR Original Verdict Report (Published in the March 2023 edition, 27 KTCR 3)
Plaintiff's Motion for a New Trial
Defense Response to Plaintiff New Trial Motions
Published 5-16-23
Kentucky Court of Appeals affirms $3.913 million med mal at last Friday's rendition date
This med mal arose from a case where the plaintiff suffered a massive brain injury, code event and death after his tracheotomy tube became dislodged -- his estate alleged Jewish Hospital erred in failing to note the issue immediately especially as the plaintiff was just 11 feet from a nurse's station. The plaintiff also received a spoliation instruction at trial.
A Louisville jury found for the plaintiff and awarded damages of $3,913,178 including $1.529,583 for the wife's consortium interest. It was a quotient verdict incidentally although this issue was never raised by the parties. There were also punitive damages of $391,666.
The hospital appealed after its JNOV/New Trial Motions were denied. It cited instruction and evidence errors. The Court of Appeals affirmed the verdict last Friday at its rendition date in a non-published opinion. The panel consisted of Judges Thompson, Cetrulo and Eckerle. Thompson authored the opinion and Eckerle concurred. Cetrulo concurred in result only and issued her own concurrence where she wrote that while the instructions could have had "better language," the lack of "better language" did not rise to the level of an abuse of discretion.
Jack Conway (Dolt Thompson Shepherd & Conway) represented the plaintiff at trial and did the oral arguments on appeal. He was joined on appeal by Kevin Burke and Jamie Neal.
The hospital's trial attorneys were Todd Thompson and Eleanor M.B. Davis. They were joined on appeal by Joseph Wright (he did the oral argument) and all are of Thompson Miller & Simpson.
Judge Mitch Perry was on the bench for the March 2022 jury trial.
The Court of Appeals opinion (external link)
Original Verdict Report (3-10-22 -- Case No. 5956)
Published 5-3-23
Slip and Fall Wednesday -- Verdict Federal Court in Ashland
We're looking east to Ashland for our traditional Slip and Fall Wednesday!
Plaintiff shopping at Wal-Mart in Cannonsburg slipped on a tube of ChapStick and suffered a broken finger, broken ribs and other injuries. He cited a store employee (Leonard) was in the area stocking gravy for some 40 minutes and should have seen the red and white ChapStick container. Wal-Mart denied fault and suggested if the ChapStick was so obvious, the plaintiff should have seen it too.
Defense verdict on 5-2-2023.
Jason Greer, Grayson, had the plaintiff
Kyle Bunnell (pic) and Christopher Jackson (Dinsmore) Lexington defended
Judge Karen Caldwell kept everyone honest
Published 5-1-23
Med Mal Nursing Home Verdict Friday in Barbourville
A two-week nursing home med mal wrapped up on Friday in Barbourville. Elderly resident, dependent on a feeding tube, aspirated because of a misplaced tube among other errors which led to pneumonia and death. Nursing home defended that the resident was properly cared for, the feeding tube managed and that aspiration is a complication of the feeding tube. The plaintiff claimed some $15,000,000 in damages.
A defense verdict was returned in Knox County Friday night.
Key expert for the defense was Mark Elam, MD, Geriatrics, Chattanooga, TN.
Laraclay Parker and Alexandra DeMoss-Campbell (Golden Law Office) Lexington for the plaintiff
Mark Hammond and Pete Pullen (O'Bryan Brown & Toner) Louisville defending
Judge Gregory Lay behind the plate.
Details coming in the Kentucky Trial Court Review.
Published 4-25-23
$55,687 rear-ender in Hardin County - Pain and suffering valued at $40,0000
We're taking a trip down I-65 to Elizabethtown today. Plaintiff pulled from a yield and was rear-ended by the defendant. It looks like a mild to a moderate impact? She subsequently treats for wide-ranging soft-tissue symptoms with a chiropractor and incurs medical bills of $13,203.
Jury finds for plaintiff and awards the medicals and $2,664 in lost wages plus a surprising (for a chiropractic case) of $40,000 in pain and suffering. Verdict totals $55,867 and a consistent judgment entered less PIP. The suffering to medicals ratio was a tidy 3.02.
Andrew White, Louisville for the plaintiff
Eric Rice and Daniel Gumm, Rice Gum, Louisville defending
Judge Simcoe on the bench.
Full report coming in the May 2023 edition
Published 4-25-23
Med Mal Closing Arguments happening now in Louisville
We've got a live look-in at a jury trial today in Louisville. It's a complex med mal where the plaintiff suffered a fatal and rare Bactrim-induced meningitis. That's Timothy Napier (Napier Gault Schupbach & Stevens for the defense) giving his very "reasonable" closing argument. The plaintiff is asking for $10-plus million in damages.
Verdict expected today.
John Cox (Lynch Cox) is for the plaintiff and Judge Patricia Morris (rookie calling balls and strikes) on her first civil jury trial.
Published 4-24-23
Sainato Final Judgment Entered
After nearly three months there is finally by Judge Perry . . . a final judgment in the Sainato v. Marriott Dram Shop/Civil Battery Case. In that case the plaintiff alleged she was raped at the downtown Louisville Marriott by a fellow travelers. The Dram Shop element included that Marriott served either her or the assailant after they were intoxicated. She also alleged battery against the assailant.
The jury exonerated Marriott but found against the assailant and awarded the plaintiff damages of $1.171 million. Interestingly those damages were subject to a 55-45% split on comparative fault, the assailant being held to the very unusual rapist standard of care. The verdict itself is linked and the report will be in the May 2023 edition, 27 KTCR 5.
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Published 2-2-2023
Pike County Urology Med Mal Results in a Defense Verdict
Plaintiff treated with a urology for testosterone replacement therapy in 2015. Two years later the plaintiff suffered a pulmonary embolus and blamed it on error by the urologist in prescribing testosterone therapy in the first place and then in failing to monitor the plaintiff's condition in the intervening period. Doctor defended the therapy was reasonable and blamed the PE on the plaintiff's co-morbidities including obesity, smoking, COPD and black lung.
Michael Hallet, New Albany, OH, Urology was the expert for the plaintiff. Edward Kim, Urology, Knoxville, in for the defense.
A Pikeville jury returned a defense verdict on both negligence and informed consent (11-1 on both counts) on 1-23-23.
Miller Kent Carter and Phillip Wheeler, Pikeville for plaintiff
David Gazak and Courtney Justice, Gazak Brown, Louisville defending
Judge Howard Keith Hall was behind the plate
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Published 2-1-23
Black History Month -- N.R. Harper -- Kentucky's First Black Lawyer with a case report from 1885
Let's kick off Black History Month with a story from 1885 about N.R. Harper, Kentucky's first black lawyer (pictured), and his interesting (and maybe even timely today) defense of a black man charged with murder. Even back then race was an issue in the composition of jury panels in Louisville.
To the case of the Commonwealth v. Paul King:
The defendant, Paul King, shot and killed Louis Young in a barroom brawl at Kruse's Saloon on 11th and Madison just after midnight on 9-12-1885. Both King and Young were black.
King was described as a "tough" who regularly went "fixed" which meant he carried a six-shooter wherever he went.
King was arraigned weeks later and Harper "appeared as his counsel, waived and examination and entered a plea of not guilty."
Harper also sought to quash the indictment because there were no blacks on the grand jury panel. At motion hour Harper called the reasons given by the Jury Commissioners to be insufficient -- it had been five years since a black had served on a grand jury. The commissioners explained they didn't know any black citizens that were qualified, namely that were "sober and discreet housekeepers" [That was obviously a load of shit and Harper had exposed it.]
The presiding Judge Jackson denied Harper's motion in this case but at the next grand jury sitting a week later with Jackson presiding and giving an emphatic instruction that was race should play no role in the selection process, two blacks were called and seated: A.J. Catlin, a barber and Moses Lawson, a furniture dealer.
That didn't help Paul King who still faced murder charges.
The trial was conducted a week before Christmas in 1885, just three months after the murder.
Harper was described as "ably defending" King and putting up "the best fight possible" for his client.The jury convicted King of 2nd degree murder. It imposed a sentence of two years in the penitentiary after an hour of deliberations.
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Published 1-30-23
Med Mal Monday
This morning we are looking down to Danville for a med mal that concluded Friday. The plaintiff presented to the ER with a two-day history of a a floater in his eye, a headache and other symptoms. The ER doctor ordered a CT scan that was normal.
The diagnosis from the doctor? The plaintiff had hypotension and a complicated migraine.
Some 32 hours later the plaintiff was treated for a stroke. In this lawsuit he blamed the ER doctor for a diagnosis error, all of which prevented the opportunity to begin tPA therapy and otherwise lead to a more complex stroke event. The doctor replied the CT scan was normal, there were no signs of a stroke and even if the stroke event was occurring, the die was cast as the symptoms begin two days earlier and beyond the window for beginnning tPA therapy.
The case was tried five days. The jury's verdict exonerated the doctor after 35 minutes.
Ephraim Helton and Brendon Shevlin for the plaintiff
John Parker and Colleen Davis (Phillips Parker)(pictured below) defending
Judge Jeffrey Dotson on the bench
Verdict Report coming in the February edition of the Kentucky Trial Court Review . . . Subscribe to the KTCR
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Published 1-28-23
Update on the Graves-Gilbert Clinic Bankruptcy
The Graves-Gilbert Clinic, the medical clinic in Bowling Green (with $200,000,000 a year in revenues) that recently filed for bankruptcy in the face of a $21 million med mal verdict, has filed its Form 202 listing its assets. The clinic indicates it has $3.5 million in cash, $16 million in receivables, an office building worth $9.5 million, another worth $11.7 million (the real estate totals $24 million) and even a pick-up truck with 180,000 miles worth $3,700. Its assets also include a prospective bad faith claim against its own insurer. The bankrupt clinic's lists its overall property value at $57.253 million.
In terms of liability the clinic also lists several pending liability claims (other than the Duff judgment) as liabilities.
Some of the directors are well paid too. Kirk Fee, a Director, made $1.14 million last year. Marc Moore in just under a million at $998,374. It's all in the Form 202.
The Form 202 is linked below.
The underlying plaintiff, Alice Duff, the clinic's largest unsecured creditor, has also moved the bankruptcy court of an examination of the debtor. The clinic has objected and the motion to examine is set for hearing on 2-8-23. The documents sought include getting into the clinic's discussions to resolve the case including with its insurer as shown in this image. The full document request is below.
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Published 1-27-23
Mixed Verdict Today in the Marriott Sexual Abuse/Dram Shop Case in Louisville
We've got a verdict this afternoon in Sainato v. Marriott after three days of deliberations and it sure looks like a compromise.
Plaintiff, in town for business, retired to the hotel bar for a drink. She met a man and they shared drinks. Maybe he drugged her with a cigarette? In any event while intoxicated they went to a room in the hotel. She says she was raped by the man and others while she was in a state of intoxication. He denies a sexual attack and describes the event as consensual. The woman (the plaintiff) has sued Marriott on a variety of theories (dram shop and negligence) as well as the alleged tortfeasor for outrage and civil battery. The judge granted summary judgment for Marriott on negligent security.
The jury deliberated three days and at one point one juror (with Covid) deliberated by telephone from another room.
Finally this afternoon there was a verdict.
It was for the plaintiff against the assailant on civil battery but not outrage. She took $1.171 million against him including the odd number of $596,000 for her pain and suffering (that's a quotient right?) and $50,000 more in punitive damages. The jury then found her 45% at fault for being sexually assaulted, the remaining 55% to the assailant. [How is one at fault for being raped and . . .how does a rapist violate the standard of care? Is there an ordinary rape standard of care? Anyway. That's what happened.]
The jury rejected the Dram Shop theory against Marriott (see below) and its fully exonerated by the verdict.
The whole mess looks like a compromise to me.
Garry Adams and Laura Landenwich (Adams Landenwich Walton) for the plaintiff
Lee Sitlinger (Sitlinger Law) for the assailant (the jury found he sexually assaulted her)
Anthony Pernice and Jade Stewart (Reminger) for Marriott
Mitch Perry on the bench
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Published 1-27-23
Med Mal Defense Verdict in Whitley County
The elderly plaintiff (since deceased) alleged a global pattern of nursing home negligent during a 15-month residency. That included multiple falls and pressure sores. Her estate sought $60,000,000 at trial. The defense denied fault and cited the plaintiffs end-stage dementia which prevented fall interventions from being successful and further that the nursing care responded to the pressure sore complications.
The key experts for the plaintiff were Charlotte Shepherd (Nursing) and Dr. Amie Garcia (Geriatrics). The defense relied on Dr. David Carr, Geriatrics, Dr. Jeffrey Sharpe, Wound Care and Joy Schank, Nursing.
After a five-day trial in Whitley County, a defense verdict was returned.
Stephen Garcia and Matthew Coman, Garcia & Artigliere for the plaintiff
Mark Hammond (pictured) and Pete Pullen (O'Bryan Brown & Toner) and Wesley Tipton, Tipton & Tipton, Corbin defending
Judge Ballou was the umpire
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Published 1-17-2023
Preview of the January Edition, 27 KTCR 1
The January edition has just been finished and it will be out later today or tomorrow in PDF. We were a little late this month with the Year in Review.
Check your email. It's a good one.You don't get it? Subscribe to the Kentucky Trial Court Review
A sneak peak at the cover of the January edition
The January Table of Contents
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Published 1-13-23
Second verdict of 2023 -- Premises Liability defense verdict in Logan Circuit Court -- Plaintiff fell in a puddle of milk at Dollar General
Plaintiff was shopping at Dollar General on the evening. She was looking for milk. She slipped in a puddle of milk, did the splits and suffered a disc injury. She underwent two surgeries and incurred medical bills of $289,985. She sought $2,000,000 in pain and suffering.
Plaintiff blamed Dollar General and cited another customer had spilled the milk and an employee walked by it right before the plaintiff fell. Dollar General denied any notice and impeached the plaintiff's credibility looking to surveillance video that showed her walking away after the incident at what it called a brisk pace.
A Russellville jury heard the case for three days. Defense verdict on liability.
Brian McClain, Orlando, FL and Lauren Marley and Kelli Lester, Bowling Green, all of Morgan & Morgan
Langdon Ryan Worley (pictured) and Jamie Wilhite Dittert, Sturgill Turner Barker & Moloney, Lexington for Dollar General
Judge Joe W. Hendricks called balls and strikes
The scene where the plaintiff fell - she fell just out of screen in the bottom left and is walking away after the fall.
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Published 1-12-23
Aspiring NBA coach alleged he was disabled by a car wreck -- $275,000 verdict in Richmond but no damages for impairment
We've got our first verdict (I think of 2023) and it's an interesting one. Former NBA journeyman, Joe Wolf, age 54 (spent 11 years in the league with 7 teams), was on his way to an NBA coaching job interview with the Charlotte Hornets. Traveling on I-75 a teenager hydroplaned in rainy conditions and spun into Wolf.Wolf complained of a new herniated disc injury that has limited his opportunities to coach in the NBA. He sought $2.9 million for impairment among other damages. The defense IME, Christopher Stephens, believed Wolf suffered just a temporary injury imposed on chronic pre-existing conditions -- Wolf had no impairment from this wreck.
The impairment question was the heart of the case.
The jury was split on fault. 85% to tortfeasor and the remainder to Wolf.
The damages:
Medicals - $19,000 (of $85,333 claimed) - Pain and Suffering - $256,000 ($500,000 cap)
Future medicals and impairment were both rejected.
Thus a raw verdict of $275,000 less 15% or $233,750 for Wolf less comparative fault.
Adam Goebel and Chadler Hardin (Stoll Keenon Ogden) for Wolf
Graham Barth and Ashley Brown (Ward Hocker & Thornton) defending
Rookie David Ward on the bench in Richmond
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Published 1-11-23
Injury Multipliers Updated in the 2022 Year in Review
There's a lot new in the 2022 Year in Review -- we've got new injuries for the Miscellaneous Injury Index, for instance, Breast (non-cancer) and in addition to Catastrophic Brain Injury and Birth Brain Injury, we now have Mild Brain Injury.
But I'm really excited about the injury multipliers. We have the 25 year multiplier for all the injuries as always from 1998 to 2022.
What's new? We also have the multiplier from 2012 to 2012. For instance the 25-year soft-tissue multiplier is 1.866.
What's the 2012-2022 multiplier . . . just for the last 11 years? Well it's different. It is for all the injuries.
We've also updated the Average Pain and Suffering Verdict to include not just the 25-year number, but again, also from 2012 to 2022.
Looking at Shoulder/Rotator Cuff, the average pain and suffering from 1998 to 2022 was $71,945. But from 2012 to 2022, the average is $156,295. We've done that for all 13 injury categories. (See the 2022 Year in Review at page 469). I think this is a pretty significant new look at the data.
Order The 2022 KTCR Year in Review (25th edition) (link to online store)
Use Code "PleaseGoToTexas" at check-out to save 22%.
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Published 1-9-23
Who has tried the most civil cases in Kentucky since 1998? Someone new tops the list this year.
Who has tried the most civil cases in KY since 1998. We've traced this for years and Michael Bishop, Bowling Green, had led the list for years with 59 even though his last trial was in 2017. We've got a new leader in the clubhouse. Clayton Robinson leads the 2005-2022 list with 51 verdicts!The full details (the whole list) are in the 2022 Year in Review.
E. Frederick "Rick" Straub, Whitlow Roberts Houston & Straub, Paducah pictured) has taken the lead with 60 cases! He's tried and defended a variety of complex cases including med mals. And he's a first class guy and a gentleman. Well done Rick!
Order The 2022 KTCR Year in Review (25th edition) (link to online store)
Use Code "MillionDollars" at check-out to save 15%.
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Published 1-9-23
Updating the 2022 Million Dollar Verdicts
We added something new to the KTCR 2022 Year in Review (25th edition). There has also been a section summarizing all the million dollar plus verdicts from the past year. There have been 358 since 1998 and of those 358, 111 are med mals.
What's new? Of this year's 16 million dollar plus verdicts, we added a section with an update on the status of the verdict, i.e., on appeal, settled, motions pending, whatever. We also included links to documents in the case including the final post-trial orders. We've posted a sample of that.
What's interesting here for you today? What happened to the 16 million-dollar plus cases in 2022?
Bankruptcy - 1Post-trial motions pending - 6
Pending on appeal - 5
Resolved - 4
It's all in the 2022 Year in Review which should be out this week in PDF (probably Wednesday) and off to be printed after that.
Order The 2022 KTCR Year in Review (25th edition) (link to online store)Use Code "MillionDollars" at check-out to save 15%.
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Published 1-8-23
Bankrupt Graves-Gilbert Clinic filed Notice of Bankruptcy in the trial court
This week bankrupt Graves-Gilbert Clinic (facing a $21.3 med mal in the case of an elderly woman left blind and disabled by medical error) filed its Notice of Bankruptcy in the trial court. This halts trial proceedings. The "notice" is below.
There is still pending a Bad Faith claim by the plaintiff against the clinic's med mal insurer, State Volunteer. The policy limits are $5,000,000. The clinic had offered "zero" before trial.
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Published 12-31-22
Happy New Year -- 2022 Hall of Fame Inductees
A few years ago we introduced the KTCR Trial Lawyer Hall of Fame.
The 2021 class was Thomas Conway and John Phillips. The 2020 inductees were brothers, Tyler Thompson and Todd Thompson. The inaugural class in 2019 was Larry Franklin, Donald K. Brown, Jr., Ann Oldfather, Lee Sitlinger and Gary C. Johnson.
It's a small club. That's just nine lawyers. This year we add two more and they're both legends.
___________________________________________________________________________________________________________________________Order the KTCR 2022 Year in Review (25th Edition) - Use the code NYE2022 to save 23% at check-out. That expires at midnight . . .
The book will be out in PDF sometime late next week with print to follow.
Best to everyone for the New Year.
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Published 12-31-22
The Graves-Gilbert Clinic Bankruptcy Fiasco
Graves-Gilbert Clinic, a multi-speciality clinic in Bowling Green (more than 1,000 employees and some 200 doctors) filed for bankruptcy yesterday. Why? It faces a final judgment in a $21.3 med mal verdict from July of 2022. Let's trace the entire story back to the malpractice all the way forward to today with all the documents. It's a bumpy ride so hang on! It is arranged chronologically in four stages, The Malpractice, The Trial, The Post-Trial Period, and The Bankruptcy.
The Malpractice
Alice Duff, then age 75, underwent an elective hernia surgery in 2013. It was performed by surgeon Tage Haase of the Graves-Gilbert Clinic (GGC). There was proof Haase transected Duff's bowel. This was not caught for 10 days. Duff developed sepsis and a cascade of compilcations that left her legally blind. She was once active but can no longer drive. Her husband became her caretaker.
The Trial
Duff sued the hospital in 2014. The case was tried in July of 2022. The jury found Haase at fault and awarded Duff $12,000,000 for her pain and suffering. Her husband took $8,000,000 for his consortium interest. The verdict with medicals of $1,310,887 totaled $21,310,887. GGC only had $5,000,000 of coverage. It offered the Duffs nothing before trial.
Chad Gardner and Jake Grey for the plaintiffs. Hamp Moore for GGC.
The Verdict Report (Link to original verdict report)
The Post-Trial Stage
GGC moved for a new trial and challenged the verdict as excessive.
GGC Motion for a New Trial
Plaintiff moved to amend their complaint to allege bad faith by GGC's insurer, State Volunteer Mutual Insurance. Motion granted.
The parties had a mediation in November with Pete Palmer and the presiding Judge Steve Wilson. The case didn't settle.
Judge Wilson denied all the post-trial motions in an order entered 12-19-22.
The Final Order Denying GGC Motions
The Bankruptcy Stage
GGC filed for bankruptcy 10 days later on 12-29-22. It has annual revenues of $200,000,000 but the $21.3 million dollar verdict was too much.
GGC has issued two statements in the last 24 hours. GGC is concerned some doctors will leave Kentucky. They also indicate all vendors and debts (except the Duffs) will be paid. The statements:
Chad Gardner for the Duffs replied too. Here is his statement:
That's all for now . . . -
Published 12-30-22
2022 Kentucky Trial Lawyers of the Year
Plaintiff Trial Lawyer of the Year: Chadwick N. Gardner, Gardner Law, Prospect
Gardner had an absolute monster year in 2022. It began in June with a $2.76 million dollar nursing home case in Jefferson County. His client suffered a fall while rehabbing a hip replacement which led to the client’s decline and ultimate death. The theory was that the rehab center had a financial incentive to overwork its patients to increase billings. The jury rejected the death element on causation but found for the estate on personal injury. The verdict included $500,000 for the decedent’s pain and suffering, $1.2 million for the wife’s consortium and $700,000 more in punitive damages. See Case No. 5957.
The second case was even more remarkable. Not quite 60 days later, a Bowling Green jury awarded his clients $21,310,887 in a med mal. Plaintiff (then age 75) suffered complications after a hernia surgery gone bad which led to sepsis and blindness. It was devastating injury and dramatically altered her life. The jury awarded her $12,000,000 for pain and suffering (she was 84 at trial) and $8,000,000 more for her husband’s consortium interest. The verdict against Graves-Gilbert Clinic in Bowling Green has reverberated as in late December 2022, the clinic (it has $200,000,000 a year in revenues and 1,000 plus employees) filed bankruptcy. See Case No. 6008. Gardner was assisted in both cases by John “Jake” C. Grey, II.
Gardner’s success this year should come as no surprise. He’s been hitting long balls for many years. His first big one was in 2006 involved a teenage girl whose nose was pulverized in a collision. A Jefferson County jury awarded the plaintiff $2,542,186. Case No. 3237. Four years later in 2010 a woman seriously injured in a water tube incident was awarded $6,000,000 by a Louisville jury. See Case No. 4312.
Defense Trial Lawyer of the Year: David Schaefer of Dinsmore, LouisvilleSchaefer is recognized this year not for the numerosity of the cases that he tried (there was just one) but because it was significant and the potential damages were beyond enormous in a jurisdiction not known for being defense friendly. The case itself was a tragedy, three members of the same family (including a young child) being killed in a Christmas Eve head-on collision and two more were seriously hurt. The theory was that their Hyundai Tucson SUV had a defect in the bumper weld which led to its separation and failure – a crashworthiness case. The case was tried two weeks and the instructions were 25 pages long. It involved numerous expert witnesses and complex issues of causation.
There were the damages of the decedents as well as multiple consortium claims (husband and parents) to contend with. The matter was made more difficult as Joe Savage, a dean of the plaintiff’s bar, led the prosecution of the case. Schaefer secured a defense verdict for Hyundai. The verdict survived post-trial motions and is now on appeal. The defense win of 2022. See Case No. 6030.
The prior winners are:
2021 - Ronald E. Johnson and Jay R. Vaughn, Fort Wright for plaintiffs; Melissa T. Richardson, Lexington for defendants
2020 - James “Bo” Bolus, Louisville for plaintiffs, Sean Ragland, Louisville for defendants
2019 - Thomas Clay, Louisville for plaintiffs, Mark Nichols, Lexington for defendants
2018 - Steven R. Romines, Louisville for plaintiffs, James A. Sigler, Paducah for defendants
2017 - Thomas K. Herren, Lexington for plaintiffs, Terri E. Boroughs, Louisville for defendants
2016 - Hans Poppe, Louisville for plaintiffs, Frederick “Rick” Straub, Jr., Paducah for defendants
2015 - David Scott, Louisville for plaintiffs, Mark Nichols, Lexington for defendants
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Published 12-28-22
Newly formed Gray Ice Higdon kicks off operations with an $11.4 million patent verdict in Chicago
You'll recall a few weeks ago we learned Middleton Reutlinger went up in smoke (it was founded in 1854) and some partners formed a new firm, Gray Ice Higdon. Lawyers from the new firm (led by Robert Theuerkauf) went to trial as plaintiffs in Chicago, IL for two weeks right after that in a patent infringement case.
Plaintiff, Sioux Steel, it makes steel paddle sweeps that are used in agricultural storage bins alleged that Prairie Land (it does commercial grain installations) infringed its patent. Sioux Steel sought lost profits and an ongoing royalty. Prairie Land denied an infringement and looked to its own patent.
A Chicago jury found for Sioux Steel and awarded it $11,427,720 as claimed plus a 17% royalty. The verdict is not public and a week later there is no final judgment.
Robert Theuerkauf (pictured), Brian McGraw, Megan Gibson and Matthew Dearmond from Gray Ice Higdon for the plaintiff
Lawyers from Dewitt, LLP in Madison, WI had the defense
The case style:
Sioux Steel v. Prairie Land, Illinois Northern District - Chicago, 1:16-2212
The Proposed Pretrial Order in Sioux Steel
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Published 12-19-22
New Trial Motions denied in $21,310,887 Med Mal from Bowling Green
You'll recall the $21,310,887 med mal verdict from Bowling Green. Elderly woman (previously active) left blind and disabled after a surgical misadventure. Verdict included $12,000,000 for her pain and suffering and $8,000,000 more for her caretaker husband's consortium.
A complex flurry of post-trial motions followed.
Late last week Judge Steve Wilson (in one of his last acts -- he's leaving the bench) denied the defense motions. The verdict stands.
It's an unusual order and you'll want to read it.
Defense Motion for a New Trial
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Published 12-19-2022
Previewing the January 2023 edition (27 KTCR 1)
In a few weeks we will start a new year and a new edition -- 27 KTCR 1 -- first issue was June of 1997.
What's the January issue looking like? Here's a preview of what you'll be reading about.
Med Mal -- Jefferson -- Elderly plaintiff fell from her hospital bed which triggered a decline and she was dead a few months later. Defense verdict. PPOA defending.
Auto - Fayette - $282,526 -- Jury assessed fault between two wrecks (separate tortfeasors) that were six months apart. Michael Cox had the plaintiff.
Med Mal - Kenton - Defense - Psychiatric patient suffered injuries when a hospital security guard restrained her. Ryan McLane at Dressman Benzinger defending.
Med Mal - Warren - ER doctor blamed for missing signs of an injury to the plaintiff's renal artery after a kidney biopsy -- Verdict was late Friday (12-16-22)
Bad Faith - Jefferson - Met Life hit with a bad faith verdict (tried on damages) after it defaulted on liability because it failed to answer the lawsuit
Premises Liability - Fayette - Plaintiff fell in a hole on a deck at the defendant's home - Defense verdict. Jane Higgins, Casey Bailey & Maines defending.
Med Mal - Warren - Unnecessary colon surgery linked to ischemic event - Defense verdict. David Broderick defending.
Employment - Floyd - $2.4 million whistleblower verdict against Highlands Regional Medical Center
Defamation - Greenup - $22,815,000 - Doctors defamed by CSX for their opinions about railroad worker disability
Auto - Jefferson - TARC bus driver complained of injuries after the bus was rear-ended - Defense verdict - Marc Breit defending
The KTCR 2022 Year in Review will also roll out in early January -- 25th edition. There's a lot of good and new stuff this.
Order the 2022 Year in Review (link to the online store)
(Hey Clark! Use Code "Holiday22" to save 20% at check-out!)
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Published 12-17-22
Northern Kentucky Med Mal Drought
I've almost called it for vacation but was working last night with the regional med mal numbers. There were a couple that jumped out at me.
I had remarked earlier this week that plaintiffs in Med Mals had done very well in 2022. Well Northern Kentucky would like a word.
In that region (Campbell, Boone and Kenton), plaintiffs are struggling. They have 1 of the last 27 med mals going back to 2011. 1-26! That's a 3.7% win rate as compared to the overall 22.2% state win rate. In fact Northern Kentucky from 1998 to 2022 (the full 25-year period), the win rate is 24.0%. From 1998 to 2010, plaintiffs in Northern Kentucky won 19 of 56 for a 33.9% win rate. It's been down hill from there. 33.9% versus 3.7%!
Compare that to Jefferson County which has been 7-9 (7 of 16 plaintiff wins) for a 43.7% win rate from 2020 to 2022. But it can go both ways. While plaintiffs have recently done well in Kentucky, let's not forget from 2015 to 2019, Jefferson County Med Mal plaintiffs were Ofer-26! They lost 26 med mals in a row.
Keep an eye out today on this space. We'll be working on the book and may update this post with interesting revelations that we may come across.
The Year in Review is coming. We extended the 30% sale (it expired at midnight) through Monday with the code 121622.
All the details are coming in the 2022 Year in Review (25th edition) and not just the numbers, but all the reports, Attorneys of the Year, Hall of Fame, Injury Index and who knows what else because we're still working through it.
Order the 2022 Year in Review (Link to the online store)
The referee has signaled there are seven minutes of extra time
What about punitive damages in med mal cases? Here's a 25 year look at the largest awards.
Penalty Kicks will decide it. This is it. Literally no more updates. You like Ohio County Hospital right?
Here are the 2010 to present Martin v. Ohio County Hospital post-death consortium awards:
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Published 9-22-22
$2.395 EMTALA Med Mal returned in Louisville (Federal Court) on 9-13-22
The plaintiff William "Tully" Williams, a tow truck driver, was having a heart attack on 4-5-15 and was taken to Baptist Hospital Lexington. However that weekend Baptist had a "diversion" plan for cardiac patients because it lacked an on-call cardiothoracic surgeon. When Tully arrived at the hospital, he was turned away. "We can't treat you."Tully was then taken to UK Medical Center he was treated -- he had open heart surgery the next day. Tully alleged medical negligence and an EMTALA violation in being turned away. It was described as a ridiculous comedy of errors that led to a delay in his treatment. The hospital had been prepared to argue the diversion was reasonable. However it admitted fault at trial and the jury considered damages only.
Tully was awarded $545,000 in compensatory damages and $1.85 million more in punitives for a total of $2.395 million.
Hans Poppe and Kirk Laughlin (Poppe Law Firm) tried it.
Clay Stevens, Kristen H. Fowler and K. Shay Owens (Napier Gault) defending.
Claria Horn Boom did the judging.
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Published 9-22-22
Medicals-No Suffering Rear-ender in LouisvilleThis week there was a medicals no-suffering rear-ender in Louisville. Plaintiff went to the ER six days later and then followed with a chiropractor. The defense admitted fault and relied at trial on a biomechanics expert, David Porta, who said the wreck was too minor to cause a serious injury. The jury returned the following verdict . . .$8,460 in specials and nothing more.
Sam Aguiar and Trenton Burns for the plaintiffCharles Walker (Sewell & Neal) defended
Mitch Perry called the balls and strikes
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Published 9-23-22
$22,815,000 Defamation Verdict in Greenup County against CSX
There was a big one last night in Greenup. Plaintiffs, two chiropractors (Daniel Carey and Shannon Johnson) alleged CSX's Chief Medical Officer (Craig Heligman) defamed them and tortiously interfered with contracts when Heligman wrote letters to the federal government, insurers and state chiropractic boards that accused Carey and Johnson of creating fraudulent COII (Certificate of Ongoing Illness) for CSX workers. This was happening during a furlough and permitted the workers to receive extended benefits during the furlough. The chiropractors argued the representations in Heligman's letters were false and noted he never examined the employees in question, reviewed their medical records or did anything really at all.The jury found for the plaintiffs on defamation and tortious interference.
Carey took compensatory damages of $610,000, while Johnson was awarded $805,000.The jury awarded each plaintiff $10.7 million in punitives. The combined verdict totaled $22,815,000.
Plaintiffs represented by Jeff Dingwall (pictured), San Diego, Greg Paul, Pittsburgh and Ken Reed, Ludlow.
CSX represented by Melissa Bird and Shaina Massie, Nelson Mullins, Huntington, WV, Samuel L. Tarry, Tyson, VA and Davis M. Walsh, Richmond, VA, both of McGuireWoodsJudge John F. Vincent tried it.
Case Documents:
Jeff Dingwall for the plaintiffD
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Published 9-24-22
Threshold Verdict in Paducah on 9-20-22
The plaintiff came to his State Farm office in Paducah and parked in front. He was coming to report another wreck. It was the end of the day and the agent was leaving. She was parked at the end of the building and backed out in a three-point turn. She struck the plaintiff's minivan as he was getting out. The plaintiff claimed a rotator cuff injury as he was holding the steering wheel. His medical bills were $16,145 and he sought $136,875 more for a future surgery. The defense argued there was no injury sustained.
The jury returned a threshold verdict following a two-day trial.
Case Documents:
Plaintiff Trial MemoBrian Katz for the plaintiff
D. Brent Vassuer and Jared Sigler (Keuler Kelly) for the defense
Judge Kaltenbach on the benchThe image is the scene of the collision.
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Published 9-27-22
What a week of trials -- There were at least eleven in Kentucky last week
This is maybe pretty close to unprecedented in my experience. There were at least 11 civil jury trials that were heard in Kentucky last week. I'm still tracking them down but here's a quick summary of what we know.
Greenup - $21.8 million defamation verdict for chiropractors against CSX.McCracken - Threshold verdict. Brent Vasseur defending.
Jefferson - $8,460 medicals/no suffering verdict. Charles Walker defended.
Caldwell - Negligent security trial against the local Elks Club. Still going. David Barber for the plaintiff.
Hardin - Road rage between chiropractor and cybersecurity expert. Jury rejected both claims.
Fayette - Paul Miller Ford sold a new truck as new when it had been wrecked. Tried. Result unknown.
Floyd - Nurse on contract fired for forging a signature. Was it material? Jury said yes and nurse loses.
Scott - UM case where the only issue are wife's consortium. Kicker they got divorced months later. Jury rejected her claim in 20 minutes. Bradford Breeding from London for the defense. Richard Rawdon tried it.
Woodford - UIM case against State Farm involving a drunk driver. Result not yet known. Jesse Shore with Morgan & Morgan tried it. Guy Hughes (Casey Bailey & Maines) defending.
Warren - Commercial case before Judge Grise. Result unknown
Jefferson - Auto Negligence - TARC bus driver -- claimed knee injury. Eric Lamb tried it. Marc Breit defending. 50-50 split on fault but jury rejected any award of damages. Verdict returned at 9:15 last Friday night.
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Published 9-27-22
$120,138 UIM Verdict in Woodford County
Plaintiff collided with a disabled drunk driver's vehicle at 3:00 a.m. that was in the middle of I-64. Plaintiff sustained a C-7 facet fracture and wore a brace for three months. He still reports pain. Plaintiff settled with the drunk tortfeasor for $50,000 and sought UIM coverage (up to $100,000) from his carrier. The plaintiff took a total of $120,138 and the judgment less PIP was for $60,138.Jesse Shore with Morgan & Morgan tried it. Guy Hughes and Kyle Girouard from Casey Bailey & Maines defended. Rookie Judge Kathryn Gabhart on the bench.
Details on this coming in the October 2022 edition. Subscribe to the KTCR (link to the online store) for all the details.
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Published 9-28-22
$19,135,000 Negligent Security Verdict in Princeton, KY (Caldwell Circuit Court)The verdict is in from the negligent security case in Princeton . . .$19,135,000 including $18 million in punitives.Plaintiff stabbed to death in a bar fight at the local Elks Club by an off-duty bartender after a dispute over how loud the music was on the jukebox. Decedent was stabbed 17 times, there being proof he was conscious (before bleeding to death) for 10-15 minutes. Estate alleged a history of fights at the bar and assailant (he was convicted of manslaughter and is serving 15 years in prison) should have been ejected long before the fatal event.Fault assessed 70% the Elks and the remainder to the decedent. A courtroom observer tells me (it's small-town Kentucky) the jury included a woman who was described as a very close friend in high school of the decedent.
This is easily the largest ever verdict in Caldwell County. The previous largest was from February of 2007 was a $444,253 soft-tissue car wreck verdict, that plaintiff taking $300,000 for pain and suffering. See Case No. 3662.
David Bryce Barber and Elizabeth Downey Barber of Louisville tried it
James Coltharp, Whitlow Roberts Houston & Straub, Paducah defending.
Rookie jurist, James Redd, sorted out the balls and strikes
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Published 9-28-22
Negligent Security Trial in Caldwell County has moved into its second week
There is a negligent security case in trial today (it's now in the second week) in Caldwell County. It involves a negligent security claim against the local Elks Lodge. An unruly customer and Elk (who was also a part-time bartender at the club) fatally stabbed a fellow Elk during a fight. Plaintiff's estate alleged negligent security as the decedent and the assailant were told to "take it outside" in the moments before the stabbing. There are significant fact disputes about what exactly happened and the extent of the decedent's conscious pain and suffering. The assailant was later convicted of manslaughter and sentenced to 15 years in prison.The case is expected to finish up Friday. UPDATE -- Closings happening this morning.
David Bryce Barber, Elizabeth Downey Barber and Michael Burman for the plaintiff. James Coltharp (Whitlow Roberts in Paducah) defending. Rookie Judge James Redd is on the bench.The below images are from the Kolins expert report and represent surveillance video in the moments before the stabbing.
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Published 10-4-22
Hancock County -- Negligent Grave Disturbance VerdictThere was a unique and heartbreaking verdict in Hancock County last week. I've really never seen anything like. Amy Boarman died in 1985 as a four-day old infant and was buried by her parents, James and Carolyn, in the Lewisport Cemetary. They bought three plots. James died in 2010 and was buried in one of the plots. When Carolyn died in 2020 she was to be buried in the third plot.
D.A. Gibson, the local funeral director, probed the plot to find the right location for Carolyn's burial. A backhoe operator (Martin) dug the grave. As Martin did so, he struck Amy's coffin (the image) and damaged it. Martin wasn't sure what to do so he took the coffin, placed it on an ATV and parked it behind a pile of dirt. His plan was to reinter it later that day.
Before that happened the Boarman family children (Amy's siblings) arrived at the cemetary for their mother's funeral and discovered their little sister's damaged coffin on the back of the ATV. It was broken and rain was falling on it. They were traumatized.
The three siblings sued the funeral home and the grave digger and alleged negligence (and a comedy of errors) in handling the grave location and grave digging. Each sought $500,000 in pain and suffering. The defendants denied fault.
The jury's verdict exonerated the two defendants and the plaintiffs took nothing.
Travis Holtrey and Davis Shaw (Foreman Watson Holtrey, Owensboro) for the plaintiffs
James Sigler and Jared Sigler (Keuler Kelly, Paducah) for the funeral director
Chris Hopgood (Dorsey King, Henderson) for the grave digger
Tim Coleman was on the benchThe coffin at the cemetary as the plaintiffs saw it pictured below
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Published 10-12-22
$342,988 Car Wreck Verdict in Pulaski County -- Plaintiff suffered a lumbar disc injuryThe defendant, in a commercial box truck, turned into the path of the plaintiff on the Hal Rogers Parkway near Somerset. The plaintiff complained of low-back pain and a treating orthopedist, Dr. Ronald Dubin, indicated she would require a laminectomy to repair multiple herniations. A surgeon at UK identified the injuries, but didn't think a surgery was needed.
Yesterday a Somerset jury awarded the medicals of $25,299 (agreed) and $42,689 for the future surgery. Pain and suffering was $275,000 as claimed. The verdict totaled $342,988. Judgment less PIP expected for $332,988.
The Lineup
David Scott and Cherry Henault, Isaacs and Isaacs, Louisville for the plaintiff
Charles E. English, Jr., ELPO, defending
John Prather on the bench.
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Published 10-13-22
$54,502 UIM Verdict in Bell County this weekThe plaintiff complained of an L5-S1 disc injury after a rear-end crash. She settled with the tortfeasor for $25,000 and sought UIM coverage from State Farm. The jury awarded the medicals ($14,502) and $40,000 for pain and suffering for a total of $54,502. The net for the plaintiff will be $19,502 after a reduction for the underlying limits and PIP.
The interesting thing . . .the jury didn't write down the amount of the medicals. They just wrote (see below) "Full expenses." This was understood to mean the claimed $14,502 and all accepted it.
Blake Bowling, Bowling Law Office, Middlesboro for the plaintiff
Bradford L. Breeding, Brown & Breeding, London defending (Breeding won a case in Scott Co a few weeks ago too.)
Robert Costanzo was behind the plate
The verdict:
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Published 10-13-22
Boyle County Slip and Fall Verdict -- Fall in a bathroom at Cheddars
The plaintiff (age 58) slipped on a wet floor at the Cheddar's restaurant in Danville. She sustained a comminuted knee fracture and underwent a surgical repair. Her pain is now mostly resolved.A Boyle County split fault down the middle -- 50-50.Plaintiff took her medicals as claimed, $32,546, and $140,000 for pain and suffering.
The raw verdict totaled $172,546. A judgment for $86,273 is expected for the plaintiff reflecting comparative fault.
Ryan Biggerstaff pictured (Gary Johnson Law Office, Lexington) for the plaintiff
Judd Uhl and Morgan Salisbury (Lewis Brisbois, Lexington) for Cheddars
Judge Jeffrey Dotson presided
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Published 10-17-22
Pikeville Surgical Med Mal Results in a Defense Verdict
Dr. Oon at the Pikeville Medical Center performed a simple enough procedure -- placing a medi-port for the plaintiff to receive chemotherapy. He instead placed the tip of the port into her chest which led to a bleeding event. The plaintiff alleged she suffered a cerebral perfusion injury because of a loss of blood and has a permanent injury. She sought damages of some $6.4 million at trial.Dr. Oon called it a complication and denied the event had caused her injury -- it was more likely related to chemotherapy.
It was 9-3 verdict for the doctor on liability. The jury had an interesting question deliberations by the way:What is the standard of care? The court told them to read the instructions.Full Report coming soon in print.
Truman Chafin from Williamson for the plaintiff
David Latherow and Dustin Haley, Williams Hall & Latherow, Ashland for the doctor
Howard Keith Hall called balls and strikes.
The verdict and Latherow for the defense are pictured
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Published 10-19-22
"Orphan" loss of consortium claim presented by wife against UM carrier even AFTER ex-husband settled his case in Scott CountyWife alleged the crash broke up her marriage
This case is somewhat unprecedented. Jon McKinney was involved in a car crash with an uninsured driver. He settled his UM claim with State Farm for $79,938 of the $100,000 limits. After the wreck Jon and his wife (Lisa, the plaintiff) separated and divorced. Lisa then sued in Scott County and presented an "orphan" loss of consortium claim alleging the crash ruined her happy marriage.
Thus at trial the only issue was her so-called orphan claim for loss of consortium.
A Georgetown jury deliberated 20 minutes and answered that the wife had not suffered any damages.
Richard M. Rawdon, Jr., Georgetown for the plaintiff
Bradford Breeding (pic) and Megan Holloway-Jordan defending
Jeremy Mattox on the bench
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Published 10-25-22
EMT Med Mal Trial Underway in Henry County
An interesting EMT med mal got underway this week in New Castle (Henry County). The plaintiff (age 48) called local 911 in the middle of the night with signs of a heart attack. The EMTs got lost on the way. Then they walked the plaintiff (in the midst of a heart attack) to the ambulance. He then went into arrest as he climbed in. Then Life Pak in the ambulance wasn't working. Then there was a delay in getting to the hospital. The plaintiff could not be revived at the hospital and was pronounced dead.
Plaintiff alleged a series of errors led to a treatment delay and the plaintiff's death. The EMTs have denied fault and suggested the death was related to the natural course of coronary heart disease.
Hans Poppe and Scarlette Burton Kelty (Poppe Law Firm) for plaintiff
Ed Monarch (McBrayer, LLC) defending
Big Judge Jerry Crosby is on the bench
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Published 10-26-22
Paul Miller Ford sold a guy a brand new truck! It turned out the truck had been wrecked by a manager. $100,000 in Punitives
The plaintiff bought a brand spanking new 2019 Ford F-250 Super Duty 4X4 pick-up truck from Paul Miller Ford in Lexington. He paid $62,851.
It turned out this new truck had been wrecked a few months earlier by a dealership manager and the repair cost $6,300. State law requires such repairs on a new vehicle to be disclosed if over $2,000. Paul Miller Ford didn't make a disclosure.
The plaintiff later learned his new truck wasn't "new" and he filed this Consumer Protection Act claim against Paul Miller Ford. It defended as best as it could under the facts, which was essentially that it had made a mistake.
A Lexington jury awarded the plaintiff $8,026 in compensatory damages and imposed $100,000 more in punitives. The verdict was returned 9-21-22.
Full report in the October 2022 edition.Brad Harville, Louisville (pictured) for the plaintiff
Carroll Redford (Miller Griffin & Marks), Lexington defending
Judge Thomas Travis on the bench
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Published 10-31-2022
Plaintiff claimed disc injury after a minor rear-ender -- $525,000 verdict in Murray
The plaintiff, age 67, was rear-ended at a red light. The defendant admitted fault. The crash resulted in minor damage. Plaintiff treated at the ER and then a short course of physical therapy. Then after an eight-month gap, he complained of a disc injury. Plaintiff later underwent a multi-level surgical fusion.
Defendant thought the crash was too minor to have caused this injury and looked to a degenerative condition. Defense IME was Stacie Grossfeld. Plaintiff countered the crash aggravated these conditions.
A Murray jury on 10-28-22 awarded the plaintiff medicals of $175,000 and $350,000 more for pain and suffering. Future medicals rejected. The verdict totaled $525,000.
Daryl Dixon, Dion Moorman and Kelli Lester all of Morgan & Morgan for the plaintiff
Brent Vasseur and Jared Sigler, Keuler Kelly defending
Judge David Buckingham was behind the plate sitting in as a special judge after the presiding Judge James Jameson was told to take a breather by the Judicial Conduct Commission.
The jury verdict form on pain and suffering
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Published 11-1-2022
Hung Jury in the Henry County EMT Med Mal
The EMT med mal case went to a jury in Henry County yesterday on Halloween. The deliberations lasted eight hours and concluded at 1:00 in the morning.
The result? The jury was hung and the presiding Jerry Crosby declared a mistrial. He had previously given an Allen charge.
Hans Poppe was for the plaintiff while Ed Monarch (McBrayer) led the defense.
We had previewed the case (Hinkel v. Stone et al) a week ago when it began.
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Published 11-1-2022
Judge in his Underwear (temporarily suspended) restored to the bench by the Kentucky Supreme Court
Judge James Jameson (Calloway and Marshall) was temporarily suspended earlier this year by the Judicial Conduct Commission for misconduct. While that suspension was pending, he faced new charges of being the Judge in this Underwear.
Jameson sought a writ of prohibition at the Supreme Court on the original temporary suspension. Yesterday the Supreme Court (6-0, Nickell not sitting) lifted the suspension according to the case notes at the Supreme Court as shown below. Judge Jameson is back on the bench! This is only from the notes and I haven't seen the Supreme Court's actual order. The Supreme Court MOVED FAST!Judicial Conduct Commission Page (External Link)
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Published 11-2-2022
$126,450 UIM Verdict in Pulaski County -- Plaintiff broke her ankle in two places
The plaintiff (age 69 and a widow) was involved in a t-bone crash and broke her ankle in two places. She settled with the tortfeasor for her $25,000 limits and presented a UIM claim against her insurer, Farm Bureau.
Yesterday after a two-day trial, a Somerset jury awarded the plaintiff lost wages of $26,450 and $100,000 more for pain and suffering, all totaling $126,450. The plaintiff's medical bills (not sought) were approximately $8,000.
Case Documents:
Plaintiff Trial BriefRyan Biggerstaff (Law Offices of Gary Johnson), Lexington for the plaintiff
Jonathan R. Baker (Rankin & Baker), Stanford defending
Judge John G. Prather, Jr. on the bench
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