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Web/Tech: Louisville Company That is Leader in Audio-Visual Court-reporting technology featured in Courier-Journal story. This post is found at www.KentuckyLawBlog.com and lets you know what a local firm's foray in the techno world can do for you!
Should a party, client, or someone you need to contact in a case as a witness, heir, etc. pass away, you have some online resources available rather than a google (tm) search by name.
However, there are two useful and free web sites to get started - the "death" index from Kentucky and Social Security.
Claims by the defense and insurance companies that the claimant possesses "drug seeking" behavior are a common and aggressive defense. Medical and pharmacy records are the obvious sources of documentation. However, the KASPER report may also be noted in those records. Kentucky has recently passed legislation expanding the reporting requirements for KASPAR.
Although attorneys are not in the group to obtain a KASPER report (for obvious reasons), personal injury attorneys need to be alert to the term and its presence in patients' records.
What is KASPER? The Kentucky All Schedule Prescription Electronic Reporting System (KASPER) tracks controlled substance prescriptions dispensed within the state. A KASPER report shows all scheduled prescriptions for an individual over a specified time period, the prescriber and the dispenser. Enhanced KASPER (eKASPER) provides Web-based access to KASPER data.
Here are some KASPER FAQ's.
Here are the legislative changes:
2007 Senate Joint Resolution 48 (Upgrade, expand KASPER to other states)
[History, Amendments & Comments] [Text and Analysis]
Introduced by Sen. Ray S Jones, II on February 6, 2007, to direct the Cabinet for Health and Family Services to enter into reciprocal agreements with other states relative to the KASPER drug monitoring program and to upgrade the system to allow users real-time access to its data, with a report on progress toward these objectives being made to the Legislative Research Commission.
- Passed in the Senate (37 to 0) on February 20, 2007. [Vote Details and Comments]
- Received in the House on February 21, 2007.
- Passed in the House (99 to 0) on March 7, 2007, to direct the Cabinet for Health and Family Services to enter into reciprocal agreements with other states relative to the KASPER drug monitoring program and to upgrade the system to allow users real-time access to its data, with a report on progress toward these objectives being made to the Legislative Research Commission. [Vote Details and Comments]
- Received in the Senate on March 8, 2007.
- Signed by Gov. Ernie Fletcher on March 19, 2007.
Thanks to www.KentuckyVotes.org for this update.
The North Carolina Trial Law Blog has some useful pages on the post-Arkansas v. Ahlborn world of Medicaid subrogation. The post entitled "NC Injury Lawyers: Ahlborn Resources for Medicaid" contains links to the decision, briefs, other posts from the blog and elsewhere addressing the implications of the decision which allows an attorney to argue that Medicaid should not receive full reimbursement of a lien for payment of medical bills if the lien exceeds the portion of the settlement "allocated" for medical costs. Another post at the site addressing the case's implications can be found at NC Trial Law Blog on Ahlborn.
When you have personal injury case with Medicaid subrogation and your client has not been fully compensated (eg., you obtained limits which are not enough to cover all the damages, or when the Medicaid lien is greater than the recovery), the you need to read Ahlborn decision plus the insights from this blog. This decision provides a plan for a pro-rata reduction of the Medicaid lien based upon the total damages and limited recovery!
He even found a "company" memo (one from the feds themselves) which might help you apply their own rules to your advantage since typical administrative law requires an agency to be bound by their own regulations:
This highly useful memo from the Department of Health and Human Services dated July 3, 2006, provides the summary of how DHHS (The Fed. department charged with overseeing Medicare and Medicaid) interprets the Ahlborn decision in light of their own statutes. This is a GREAT memo because it is the Fed's own instructions to "All Associate Regional Administrators for Medicaid and State Operations". (a copy is below the fold of this post).
This is not the only site with a quality post of resources. See,
Judge Abramson writing for the Court of Appeals has extended the SCOKY decision of Earle v. Cobb (2000-SC-000818-DG.pdf) to require the identification of the underinsured motorist carrier (UIM) at trial even when the UIM carrier has not advanced the liability limits of the at-fault driver. See, digest of decision at UIM (TRIAL IDENTIFICATION): STINSON V. MATTINGLY (COA 3/2/2007). I commend Judge Abramson and this panel of the Court of Appeals by standing firm on a belief that if named a party, then welcome to the party - you will be identifed and cannot hide.
In Earle v. Cobb, the SCOKY held that the UIM company was the real party in interest and cannot be permitted to hide when it advances the liability limits since any verdict in excess of the liability limits would be the financial obligation of the individually named and at-fault defendant as an indemnity claim for the amounts paid to the plaintiff by the UIM carrier.
In Stinson v. Mattingly, a published decision in which discretionary review will probably be sought, the plaintiff had filed suit against the at-fault driver and the plaihtiff's own UIM carrier. There was no settlement between the plaintiff and the at-fault driver/defendant, so there was no tender or advancement of the UIM limits per Coots (although Coots v. Allstate is the case on point, its procedures for UIM and liability settlements was codified in KRS 304.39.320) . Prior to Earle v. Cobb (and apparently even afterwards as evidenced by the decision in Stinson), many insurance defenses lawyers subscribed to the view that if the UIM carrier does not participate at trial and agrees to be bound by the verdict, then the jury need not be told of the UIM claim or of the UIM presence and potential secondary liability. In Stinson, the trial court ordered the case to be tried without mention of liability insurance or underinsured motorists coverage.
The matter was highly contested and involved an intersection collision. Stinson and Mattingly had claims against each other, and the Mattingly claims settled prior to trial. Stinson, however, was seriously injured with over $500,000 in medicals and brain injuries; he could not recall the accident. Experts testified aplenty, and the trial judge granted a defense motion not to identify UIM or KFBM at trial. A defense verdict ensued, followed by this appeal by Stinson. Judge Abramson and COAKY reversed and remanded the trial court decision.
In sum, in Earle v. Cobb, our Supreme Court ruled that it is reversible error not to inform the jury that a plaintiff’s UIM carrier is a named defendant to the plaintiff’s suit. Although this case does not involve a Coots settlement with the alleged tortfeasor, as did Earle, that difference does not allow for a different result given the rule and rationale Earle announced. Under Earle, the trial court’s failure to apprise the jury of Stinson’s claim against his UIM carrier, Kentucky Farm Bureau, was an error, and under Earle and Hughes v. Lampman that error requires reversal for a new trial because the error cannot be deemed harmless, despite a defense verdict.
With regard to the mention of insurance, Judge Abramson noted:
It is true, of course, as Mattingly and KFB point out, that under this post-Earle approach trials may also be tainted by gratuitous references to insurance when insurance should have absolutely no bearing on the jury’s findings as to liability and damages. If Earle is truly, as it appears to be, the harbinger of a new era of disclosure regarding insurance in our courts, then to guard against this countervailing taint, trial judges may increasingly find it necessary to admonish the jury that they must completely disregard insurance when determining whether liability and damages have been proven. Such admonitions, perhaps, will remind the jury that they are fact finders and should not be swayed by who will pay the bill.
Ed Brutscher at the Kentucky Tort and Insurance Law Blog (click here for post) takes issue with Judge Abramson's opinion in his post on two points. First -
What I [Ed Brutscher] do disagree with is the language used to circumvent the clear rule against mentioning liability insurance at trial. Claiming that the failure to identify the UIM carrier is akin to tainting our court system with "deception" or "subterfuge" is ridiculous. Our entire Rules of Evidence are based on "deception" and "subterfuge." Here is a book dedicated to keeping information from the jury.
Ed is correct that the Kentucky Rules of Evidence do keep information from the jury, but they also control that information which is relevant to the inquiry. And the exclusion of evidence in many of these rules is based on policy decisions (as many rules are). For example, the various privileges keep out incredibly reliable and relevant information. Otherwise, we could short circuit the trial and ask the defense lawyer "did your client admit to you he committed the crime". Attorney client relationships and other privileges are in the Kentucky Rules of Evidence to protect higher values, and thus keep certain information from the jury. See Article V, KRE.
However, the rule against insurance taint is not based upon the mere mention of the word, but rather upon using "insurance" to prove liability. KRE 411 - "Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness."
The next area of concern raised by Ed in his post is:
I also disagree that this is the "harbinger of a new era of disclosure regarding insurance in our courts." Health and disability insurance are still prohibited from being mentioned by the collateral source rule. What about the "deception" or "subterfuge" of this rule [?]
Well, Earle v. Cobb would have been the "harbinger" or sign of things to come, and this honor does not rest solely on Simpson v. Mattingly (see two decisions below the fold that are post-Earle).
However, when it comes to the mention of insurance at trial, I am always surprised by this juxtaposition - liability insurance in Kentucky is mandatory and UIM and UM must be offered to insureds versus the selection of competent and fair jurors who are unbiased.
Do we really want a jury of the unaware, the ignorant, or the uninsured? Those who are either unaware of the insurance law requirements or are able to avoid the requirements of being insured?
The problem with insurance is not its mention, but how all the lawyers, judges and rules try to spoonfeed the jury on the effects of insurance and avoid its mention because we think its not relevant (but the real reason is undue prejudice) and thus permit the jury to their own vices or devices. Then when the juror asks the question on insurance such as "are his/her bills paid by insurance?", the judge refuses to answer the question and the juror wonders what did he/she say that was wrong.
The collateral source rule is not a deception but rather a policy decision by the courts that a tortfeasor does not benefit from the injured party's foresight in being insured; bills are bills, and who pays them is not a benefit to be reaped by the party who caused the injuries. How would you admonish the jury? Surely, this is a collateral rule on a collateral consequence that confuses the issue. For example (and in jest):
The jury is advised that the plaintiff's medical bills have been paid, all or in party, by his health insurance and this recovery will be forked over to his insurer to the extent of any subrogation and reimbursement rules in that policy which may very well have a priority over any recovery for other damages and without compensating the plaintiff's lawyers for his time and efforts in effecting this recovery?
All in all a good issue and analysis by Ed, but as can be plainly seen, we are in disagreement in principal. Iwill admit that I am somewhat surprised that the Court of Appeals would go this way in a non-advancement situation. However, I can fully appreciate that the intricate rules created to favor of the insurance companies, and we have seen the "harbinger" in Earle v. Cobb and the signs of the times are now here.
This will be a tough call for SCOKY. It's a new group, and they now have to apply an old but recent development in the law that they did not write. I can see them going either way on Stinson, but sooner or later the prediction/concerns of Judge Abramson will need to be addressed - not just in the UIM/Coots situation - but when will we accept the fact that "insurance" is not a dirty little word to be kept in the trial clost.
Insurance is a fact of life in indemnifying all of us for major losses. There is disability, health, life, UIM, UM, liability, excess, umbrella, commercial, government, and other types of insurance that can pop up in litigation. Time to deal with it.
In the form of a "by the way on this case", I submit to you that the legal cast from Stinson was noteworthy as Stinson was represented by Jason Bell from a firm (Derrick Stivers and Coyle) which also does significant insurance defense and represents Hardin Memorial Hospital in medical negligence matters. The trial judge was Judge Janet Coleman whose husband is Jerry Coleman who has a significant insurance defense practice in Hardin County with the firm of Quick and Coleman. The attorney representing Kentucky Farm Bureau was James Howard who was appointed to the Court of Appeals to fill the vacant seat of Judge Robert Dyche and is up for election in 2007 and was formerly associated with an insurance defense firm. And finally, Mattingly was represented by Waye Carrol from the firm of McKenzie and Peden an insurance defense firm.
This goes to show you that even though all the counsel had strong insurance defense ties, Jason Bell represented his client aggressively and forcefully on this issue. Or another way is "All the insurance lawyers and all the insurance men, could not put the word insurance back into the hidden bin."
For background on these issues, see Earle v. Cobb and the UIM Conundrum and Trial Practice: Paradigm Shift and Jury Trials After Earl v. Cobb.
SCOCKY has ruled in Reece v. Nationwide Ins. Co. that "the plaintiff need only prove with reasonable probability that the injury is permanent in order to obtain an instruction on permanent impairment of earning power".
This decision is significant for several reasons. First, SCOKY was unanimous with all concurring in Justice Schroder's majority opinion. Second, the rule is now clear when the plaintiff is entitled to instructions on what are typically referred to as "future wages" or "impaired capacity to labor and earn money."
A permanent injury entitles plaintiff to an instruction on capacity to earn money in the future. . . . period. No requirement for a vocational expert of other expert to connect any permanent restrictions to employment; no requirement for an AMA impairment rating. The jury is trusted to handle the decision based upon the doctor stating a permanent injury, and the plaintiff can simply testify how he or she is affected.
Of course, what is required to present the matter to the jury is not necessarily what will be sufficient to persuade the jury on the value of those damages for an award. The family doctor testifying the neck strain is permanent may run counter to the jury's common sense understanding such that they might simply ignore it and award nothing.
Should the jury disbelieve the minimal proof, then presumably the jury's verdict will not be upset on appeal. When it comes to pain and suffering (and mental anguish and inconvenience), the appellate courts have yet to disturb a verdict which awarded nothing for the pain and suffering in the face of awarding medical expenses for the injuries.
When you trust a jury of your peers to make the decision, it seems the courts are trusting the jury's decision since they are in the best position to evaluate all the evidence (but subject to the judge's ruling on any new trial motions which is then subject to an abuse of discretion standard - again which has not been reversed on appeal yet).
In the Reece v. Nationwide case at trial, the expert testimony of the treating physicians centered on a car accident injury which was sandwiched in between two well-documented accidents with disc injuries and whether or not the plaintiff's attorney had asked the right question and obtained the right answer as to how the injury from THIS accident (as opposed to her cumulative injuries) were permanent and impacted earnings capacity. One treating physician testified the accident caused a permanent strain/sprain and had referred the plaintiff to a neurosurgeon who opined the accident made the prior disc heriation worse. The plaintiff did not offer any expert testimony at trial on how the injuries affected her future earnings capacity, but she did testify herself about her career plans were affected by her accident injuries and restrictions. At trial, the judge granted defense counsel's motion for a directed verdict on permanent injury and permanent impairment on earnings - no instructions and not submitted to the jury.
In addition to the permanency issues at trial, the defense counsel offered testimony that one of the plaintiff's treating physicians had his medical license suspended after the trial deposition had been taken. SCOKY held it was error to allow in evidence of the medical license suspension of one of appellant's treating physician witnesses. However, the issue on the medical license was addressed on grounds of relevancy and prejuce; and not under KRE 608 regarding impeachment which the court noted was not raised by counsel at trial and would not be resolved by SCOKY on appeal.
Here is some language from the decison:
We hold that evidence of permanent injury alone is sufficient for an instruction on permanent impairment of earning power, and that the jury can through their common knowledge and experience make the determination if there has been a permanent impairment of earning power, the extent of such impairment, and the amount of damages for such impairment.
* * *
While specific expert witness testimony on permanent impairment of earning power is helpful and often persuasive, see Louisville Metro Hous. Auth . v. Burns, 198 S .W.3d 147, 151 (Ky.App. 2005), it is not necessary to submit the issue of permanent impairment of earning power to the jury. See Pickard Chrysler, Inc. v. Sizemore , 918 S.W.2d 736, 739-40 (Ky.App. 1995) (upholding award of damages for permanent impairment of earning power where there was no expert testimony on how plaintiff's earning power was affected and little evidence of past job history and earnings) . The plaintiff need only show with reasonable probability that the injury sustained is permanent. Rogers v. Sullivan, 410 S.W.2d at 628 . This Court recognizes that a permanent injury may not always result in permanent impairment of earning power. Like the Chesapeake Court, we believe jurors are capable of determining, from the evidence and their common knowledge and experience, whether there has been a permanent impairment, the extent of such impairment, and the value of such impairment.
When reading the cross-examination of the treating physician, it is and was obvious there were issues pertaining to what injuries were caused by the accident versus before and after (since she injured a disc in a cheerleading fall). With those issues raised in the testimony, defense counsel at the time was placed in the dilemma of how far to pursue the questioning since the burden was perceived to be on the plaintiff to prove permanency and permanent impairment. What has now been resolved on appeal is that the standard for a permanent impairment instruction is minimal, and defense counsel will vigorously cross-examine on those limitations and might even ask the question of the doctor if he/she believes the patient's ability to work has been affected. Do not forget that the AMA Guidelines on Permanent Impairment may be relied on heavily in workers compensation proceedings to calculate the economic loss of future wages, they have no such correlation in a personal injury case. But testimony of no permanent impairment by the guidelines will offer an interesting, if not devastating, counter to any general opinion of a permanent injury or strain - the injury is permanent but they are not impaired by it.
I suspect cross-examinations in the future on these topics will go further than what we have previously become accustomed to since the concerns over proving the plaintiff's case are removed once the doctor says "permanent injury".
Tort report of decisions from Louisville LawWire vol. 2007:13, Mar. 16, 2007 decisions of COA (no SCOKY):
PUBLISHED COA TORT DECISIONS: None.
NOT TO BE PUBLISHED TORT DECISIONS:
RULE V. CAPITAL ONE BANK
CIVIL PROCEDURE: DEFAULT JUDGMENT AND 'APPEARED' DEFINED PER CR 55.01 AND CONSEQUENCES AND RIGHTS FROM 'APPEARING'
2006-CA-000241
NOT TO BE PUBLISHED:
DATE RENDERED: 3/15/2007KENNEY V. ARNOLD
DAMAGES: No physical contact means no award for fright, shock, or mental anguish (pro se appeal)
2006-CA-000302
NOT TO BE PUBLISHED:
DATE RENDERED: 3/15/2007The Kentucky Supreme Court has explained that “an action will not lie for fright, shock or mental anguish which is unaccompanied by physical contact or injury.
The reason being that such damages are too remote and speculative, are easily simulated and difficult to disprove, and there is no standard by which they can be justly measured.”
Deutsch v. Shein, 597 S.W.2d 141, 145-46 (Ky. 1980) (citing Morgan v. Hightower's Adm'r, 291 Ky. 58, 59-60, 163 S.W.2d 21, 22 (1942)). Thus, “it is necessary that the damages for mental distress sought to be recovered be related to, and the direct and natural result of” some minimal amount of physical contact or injury. Id. at 146.N.B. This issue is currently pending argument at SCOKY in Congleton v. Steel Technologies for Mar 2007.
T.A. BLAIR INC. V. FIDELITY CONSTRUCTION CO.
DAMAGES: overhead expenses and lost profits in contract breach
2005-CA-001189
NOT TO BE PUBLISHED:
DATE RENDERED: 3/15/2007LOCKARD, A MINOR, V. NORTON HOSPITALS, INC.
EVIDENCE: Judge precluded introduction of evidence under KRE 403 on basis of untimely notice; this evidence went to the heart of the medical negligence claim as to onset of symptoms
2005-CA-001824
NOT TO BE PUBLISHED:
DATE RENDERED: 3/15/2007UNITED PROPAGE GAS, INC. V. THE LAW FIRM OF RENDIGS, FRY, KIELY & DENNIS LLP
INSURANCE: Bad faith; insured cited not contractual provision violated by insurer and covenant of good faith does not preclude insurer from exercising its contractual rights; insured was not happy with insurer who settled claim for amount it thought was excessive and had not purchased provision on approving settlement;
TORTS: Legal negligence against firm representing insurer; no expert testimony needed if sufficiently apparent for laymen to recognize
2005-CA-001101
NOT TO BE PUBLISHED:
DATE RENDERED: 3/15/2007
Event data recorders or crash data recorders contain useful information on events leading up to a crash.
The site at Harris Technical Services has a good explanation of the value of a CDR or EDR with a list of those vehicles which them installed. They also have a few other useful links to speed skid calculator, as well as case law, statutes, and regulations on the CDR.
The Tort Report
Court of Appeals decided Feb. 23, 2007 with links to the full text:
Published:
SCHROERING V. JUDGE HICKMAN
CIVIL: CONTEMPT
2005-CA-002511
PUBLISHED: AFFIRMING IN PART AND REVERSING IN PART; DIXON (W/EMBERTON AND PAISLEY CONCURRING)
DATE RENDERED: 2/23/2007
This case involves a direct contempt proceeding conducted in Anderson Circuit Court against Appellant, Jacqueline Schroering. The underlying facts are that Attorney Schroering represented a defendant in a criminal proceeding before Judge Hickman, and apparently during a court hearing twice accused Judge Hickman of calling her a liar. Judge found her in contempt of court, and jailed her for part of the day before she returned to complete the hearing. Thereafter, Judge Hickman decided to hold a separate hearing on the contempt charge, which was held before Special Judge, Rebecca Overstreet.
Before this contempt hearing could be held, Judge Hickman issued a Finding of Summary Imposition of Contempt holding Appellant in contempt and setting a sentencing date before Judge Overstreet. At this hearing, the judge advised Appellant that her only function was to impose sentencing for the contempt finding, and subsequently issued a $250 fine. Appellant subsequently appealed, arguing that her due process rights were violated since she was not given a chance to be heard before the imposition of contempt by Judge Hickman, and further arguing that double jeopardy applied since she was both jailed and later fined for the same offense in violation of both the US and state Constitution.
On appeal, the COA conducted an analysis of civil v. criminal contempt, and found the present case to involve the latter. The COA then analyzed whether the contempt was direct or indirect, holding in this case it was direct and is of the type that may be summarily punished by the court without any fact finding done. Thus, had Judge Hickman’s finding of contempt and sanction by way of jailing Appellant ended there, the COA held that no due process issue would arise. However, once the Judge delayed the matter for a later hearing, due process attaches and Appellant’s rights were therefore violated by Judge Hickman’s entry of his Finding of Contempt before that scheduled hearing could even take place. The COA found this to be especially true when the sentencing judge (Overstreet) is not the fact-finding judge (Hickman).
On the double jeopardy claim, the COA noted that double jeopardy applies to non-summary criminal contempt prosecutions, but has never been extended to direct contempt proceedings. The COA worked around this by noting that the delay in sentencing Appellant transformed this case into a non-summary proceeding to which double jeopardy principles apply. The COA had no trouble determining that the initial jailing and subsequent fine issuance were both forms of punishment stemming from the same offense, and that Appellant’s rights were violated. As such, the COA reversed the court’s imposition of the $250 fine, but did affirm the initial entry of contempt.
NOT PUBLISHED:
TORTS: Res ipsa loquitor
2005-CA-002157
NOT PUBLISHED:
DATE RENDERED: 2/23/2007
TORTS: Medical negligence and expert witness proof
2006-CA-000029
NOT PUBLISHED:
DATE RENDERED: 2/23/2007
TORTS: Apportionment instruction requires fault first
TORTS: Premises liability and is there a duty for invitee to inspect premises?
2006-CA-000419
NOT PUBLISHED:
DATE RENDERED: 2/23/2007
TRIALS: Weight and credibility of evidence vests exclusively with jury
2005-CA-002624
NOT PUBLISHED:
DATE RENDERED: 2/23/2007
The Court of Appeals in a nonpublished decision applied the doctrine of res ipsa locquitor in a case where injuries occurred when an elderly lady's wheelchair was supposedly strapped down but flipped when driving down the road. The decision was Mainstream Transportation Co. v. Estate of Martha Rankin, COA, 2/23/2007.
The doctrine of res ipsa loquitur dates from the late 19th century. See Byrne v. Boadle, 2 H. & C. 722, 159 Eng. Rep. 299 (1863). Literally translated it means “the thing speaks for itself.” Black’s Law Dictionary 1336 (8th ed. 2004). In modern usage it is used when, in some circumstances, the facts alone raise an inference of negligence.
There are three essential elements needed to prove res ipsa loquitur. First, the cause of the injury must be under the control of the defendant. Second, circumstances, according to common knowledge and experience, must create a clear inference that but for the negligence, the injury would not have happened. Third, the injury must have resulted from the situation caused by the negligence. See J.C. Penny Co. v. Livingston, 271 S.W.2d. 906 (Ky. 1954).
The central question in the current matter is the issue of control of the instrumentality that caused the injury. The facts are clear and unclouded. Ms. Rankin was in a wheelchair and was loaded and strapped into Appellant's van by Appellant's employee. Eventually the straps holding her wheelchair came loose, and Ms. Rankin's wheelchair flipped over backwards causing injury to Ms. Rankin.
The jury found Appellant's employee had control of the situation. While there are a myriad of extreme possibilities that may have caused the wheelchair to come loose, those options were for the jury to determine. The jury viewed the evidence of other possible intervening causes and determined that it was reasonable to believe that the acts or failures of Appellant's employee were negligent and caused the incident. It remained possible for a different person, such as Ms. Rankin, to exert control over the wheelchair straps; however, the jury concluded that the ultimate control rested in Appellant's employee. We cannot say this conclusion is unreasonable.
