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APPLIED SEALING TECHNOLOGY INC. V. B & R RUBBER AND SUPPLY CO., INC.
CIVIL PROCEDURE: BIFURCATION AND SEPARATE TRIALS; NEW TRIAL AND ADDITIONAL DEFENDANTS
2006-CA-001351
NOT TO BE PUBLISHED:
DATE RENDERED: 10/05/2007
DAWSON V. JEWISH HOSPITAL
CIVIL: EXPERT WITNESSES, DISCLOSURES, VOIR DIRE
TORTS: LOSS OF CHANCE
2006-CA-001241
PUBLISHED: AFFIRMING
PANEL: THOMPSON PRESIDING; MOORE, GRAVES CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 09/28/2007
This medical negligence claim arose from alleged negligent post-surgery care by the hospital's nursing staff. A jury returned a verdict in favor of Jewish Hospital and this appeal followed in which the appellant alleges the trial court: (1) erroneously excluded relevant and competent evidence concerning Mr. Dawson's bedsores; (2) denied the Dawsons' counsel an adequate opportunity to voir dire the jury; and (3) failed to tender a loss-of-chance instruction to the jury. The Dawsons also appeal from a post-verdict order requiring them to pay Jewish Hospital's expert witness fees. The appeals were consolidated. Finding no reversible error, affirmed'
Dawsons contend that Mr. Dawson experienced pain in his side. He went to Tri-County Baptist Hospital where a CT scan was performed which revealed a 6cm aortic aneurysm in his chest. Mr. Dawson was referred to Dr. Matthew Jung who reviewed the CT films and recommended surgery. He discussed with Mr. Dawson the potential complications from the surgery including paraplegia (paralysis) and death.
Twenty-one months after his initial diagnosis, Mr. Dawson again saw Dr. Lawson but refused a CT scan. Two days after seeing Dr. Lawson, Mr. Dawson's pain became so severe that he returned to Tri-County Hospital. While on the gurney, the aneurysm, which was by then 7.5cm, ruptured. He survived the rupture but was still in need of surgery. After he again refused, he was admitted to the hospital as a terminal patient.
Aware of the risk, Mr. Dawson elected to have the surgery.
Although vital signs were to be recorded every two hours, at 6:00 p.m., the flow sheet does not indicate any recorded vital signs for Mr. Dawson. However, shortly after 6:00 p.m., a nursing assistant drew blood for a glucose test and Mr. Dawson did not indicate that he had any problems. His blood pressure was continuously monitored at the nursing station.
Dr. Ganzel testified that even if the paralysis had been treated earlier, there was no chance of a reversal and success would be “highly unusual.” Dr. Bouvette also testified that the “late onset of paralysis has been known and accepted as a complication well into the second week following surgery.”
Dr. Luis Mispereta testified that although there have been a “few anecdotal reports” of reversal of paralysis caused by “compartment syndrome,” there has not been one instance when paralysis caused by a blood clot such as in Mr. Dawson's case has been reversed. Jewish Hospital also produced the testimony of Dr. Henry Garreston, a neurosurgeon, who testified that once Mr. Dawson was paralyzed, it was irreversible.
With regard to pretrial discovery and expert witnesses, the pretrial order clearly stated - "There must be a literal compliance with the requirements of CR 26.02(4)(a)(i). A party must identify each person whom the party expects to call as an expert witness at trial, and state the substance of the fact and opinions to which the expert is expected to testify and a summary of the grounds of each opinion. . . . Failure to comply with the letter and spirit of the aforesaid civil rule may result in the suppression of the expert's testimony."
Despite the direct order of the court, outside the disclosure deadline, on December 5, 2005, the Dawsons attempted to supplement their expert disclosures to include expert opinions from Dr. Cowles and Nurse Batezel concerning bedsores and itemized medical expenses which included 53 providers different from those previously disclosed.
On December 20, 2005, the trial court sustained Jewish Hospital's motion to exclude any reference during the trial to bedsores.
Thus, if the bedsores were a natural consequence of the paralysis, Jewish Hospital cannot be liable for any damages incurred as a result of the bedsores; any error, therefore, was not prejudicial.
With regard to voir dire, the court permitted each party's counsel to question the jury and, at the close of Jewish Hospital's voir dire, counsel asked, without objection, two questions:
Defense Counsel: Does anybody here think lawsuits are driving up the costs of health care?
Defense Counsel: Does anyone here think that Kentucky is losing doctors as result of lawsuits?
The Dawsons contend that “approximately 50% of the jury panel raised their hands" in response to these questions; and Dawson'sr counsel's request to re-voir dire the jury panel was denied. Thus, they surmise, they “were left with a panel, 50% of which clearly indicated that they personally felt that the Dawsons' lawsuit would drive-up their health care costs and result in physicians leaving the state.”
The Dawsons did not object to a single voir dire question; did not challenge a juror for cause on the basis of bias, and, when asked if they accepted the jury, their counsel responded affirmatively. Any contention that the trial court abused its discretion when it denied the Dawsons the opportunity to have the last word in the jury selection process was waived.
The evidence in this case did not warrant (a loss of chance)...instruction ...under the loss-of-chance doctrine, the plaintiff must still prove that the defendant breached the applicable standard of care and the breach was a substantial factor in causing a diminished chance of recovery or survival from the underlying disease or injury.
Digested by Michael Stevens
CRAWFORD V. PITTMAN
CIVIL PROCEDURE: DEFAULT JUDGMENT
2006-CA-001604
PUBLISHED: VACATING AND REMANDING
PANEL: NICKELL PRESIDING; STUMBO AND WINE CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 09/28/2007
Plaintiff filed suit for various causes of action, and Defendant's attorney filed an answer. Trial court (TC) entered an order setting a trial date for 11/15/05. On 06/17/05, defense counsel moved to reassign the trial date. On 06/28/05, two new attorneys filed a motion to enter appearance as counsel in substitution of previous defense counsel. None of the three defense attorneys appeared at motion hour on this motion, and the TC remanded it due to counsels' non-appearance. On 11/2/05 and 11/8/05, Plaintiff filed his witness list and proposed jury instructions, but he did not effectuate service on any of the three attorneys or on the Defendant. On 11/15/05 the case was called for trial, and the TC noted that neither the Defendant nor any of his counsel appeared. Upon Plaintiff's motion, the TC struck the Defendant's answer, granted a default issue on liability and allowed Plaintiff to present evidence as to damages. Three months later, the TC entered a written judgment in favor of the Plaintiff for some $62K. The second defense counsel moved to set aside the default judgment under CR 55.01, and the TC denied it on the basis of CR 37.02(2)(c). Defense counsel moved to alter, amend or vacate the denial, which was again denied, and this appeal followed.
Three errors alleged:
1. TC erred in awarding default judgment in contravention of CR 55.01, making judgment void ab initio. CA noted the standard of review on default judgments is abuse of discretion, but that where sanctions are imposed, as here, the discretion of TC is not unlimited. It must be supported by a finding of bad faith or willfulness on the part of the party being sanctioned. In the CAs review of a TC's imposition of sanctions, it must consider (a) whether the opponent was prejudiced by dismissed party's actions; (b) whether dismissed party was given a warning that dismissal could result from failure to cooperate and (c) whether other, less drastic sanctions had previously been imposed or considered prior to dismissal. Greathouse v. American Nat'l Bank & Trust Co., 796 S.W.2d 868 (Ky. App., 1990). The CAs found that the record had no evidence of any such findings; CA finds the TC abused its discretion in granting the default. CAs also noted that the TC's reliance on CR 37.02(2)(c) as grounds for granting default, was misplaced, as that rule relates to sanctions available only when a party fails to obey an order tor provide or permit discovery. The rule does not indicate sanctions are available to a party who otherwise violates orders of the Court. CAs agreed with defense counsel that CR 55.01 applies to this situation.
CR 55.01 mandates tat notice of application for a default judgment must be given to alleged defaulting party at least 3 days prior to the heraing on the applciation if the alleged defaulting party has appeared in the action. There was no doubt that the Defendant did appear on this action earlier in its history, and CA held Defendant was therefore entitled to notice of application for default judgment. There being no such notice, the CA vacated it.
Though this holding was sufficient to vacate the default, the CAs discussed the remaining arguments.
2. CA noted that in TC's denial of post-judgment motions for relief, it indicated Defendant had failed to show presence of meritorious defense or good casue sufficient to satisfy the requirements set forth in CR 55.02 to set aside default judgment. However, CA held that as mandatory requirements of CR 55.01 were not present, the presence or absence of a meritorious defense is immaterial. Also, as default judgment was void as a matter of law, the TC had not discretion to exercise when ruling on motion to set aside judgment.
3. CA agreed with defense counsel that TC erred in holding damages hearing without first giving notice of same. In cases involving unliquidated damages where a party has made an appearance, the defaulting party admits liability but not amount of damages. As such, a separate hearing is required, and fundamental fairness requires the defaulting party be given notice of a damage assessment hearing before such is held. Because the Defendant had made an appearance, she was entitled to notice of the damages hearing, and the CAs held that even if it were not vacating the underlying default judgment, it woudl have been required to reverse the damages award for want of notice.
Digested by Cherry Guanieri
KENNEY V. HANGER PROSTHETICS & ORTHOTICS, INC.
CIVIL PROCEDURE: AMENDING COMPLAINT
BUSINESS LAW: BUSINESS TORTS
2006-CA-000939
PUBLISHED: AFFIRMING
PANEL: VANMETER PRESIDING; MOORE, STUMBO CONCUR
FAYETTE COUNTY
DATE RENDERED: 09/21/2007
This Kentucky Court of Appeals decision provides a veritable grocery list of business related causes of action and their elements.
In the case, John M. Kenney had been an employee of Hanger Prosthetics, but ventured out on his own. Kenney and his company, Kenney Orthopedics, LLC, filed a petitioner alleging that Hanger employee Michael Adams made false representations about him, such as that he embezzled from Hanger and was barred from competing with Hanger per a non-compete contract provision, which harmed his business venture. Only Kenney's claim of breach of contract passed summary judgment while the defamation and tortious interference with business claims died there.
Since the litigation souffle made of the claims of tortious interference and defamation claims fell, Kenney attempted to make a stew instead by amending his complaint to incorporate a grocery list of other causes of action. The trial court refused to amend the petition. The breach of contract claim resulted in a hung jury and the trial court granted another summary judgment in Kenney's favor regarding his claim for a 4% commssion from Hanger. Kenney appealed the trial court's refusal to amend its complaint to incorporate the following list of claims accompanied by the definitions given by the Court of Appeals:
A. Interference with Prospective Contractual Relations
[t]he tort of interference with a prospective advantage is plagued with the absence of a uniformly recognized terminology. It has been referred to as the tort of interference with a business relationship, inducing refusal to deal, interference with a prospective economic advantage, interference with advantageous relations, interference with reasonable economic expectancies, or interference with prospective business expectancies. . . . The American Law Institute has named the tort "Intentional Interference with Prospective Contractual Relation."
. . . .
B. Defamation Per Quod
The difference between defamation per se and defamation per quod is that, in the former, damages are presumed and, in the latter, the plaintiff must prove special damages.. . . .
C. Unfair Competition/Trade Practices
[U]nfair competition consists of either (1) injuring the plaintiff by taking his business or impairing his good will, or (2) unfairly profiting by the use of the plaintiff's name, or a similar one, in exploiting his good will. Underlying the whole theory is the matter of actual or intended deception of the public for business reasons. . . . .
D. Slander of Title, Trade Libel/Disparagement, Injurious Falsehood
Corporations and other businesses can and do recover for libel or slander when they have been defamed by charges such as crime or fraud. But defamatory charges commonly made against individuals–adultery, for example–have little relevance to corporations and many of the imputations about corporations are harmful without being defamatory. When the publication asserts that the corporate product is defective, inadequate, or harmful without asserting personal defamation, the traditional view regards the claim as essentially different from the claim for defamation. The same is true if the publication merely says that the plaintiff has gone out of business. This different claim goes under the general name of injurious falsehood. When the publication attacks a product, it is also called trade libel or commercial disparagement. When the publication attacks title to property rather than quality of a product, the claim is likely to be called slander of title. . . . .1. Slander of Title
[T]hat the defendant has knowingly and maliciously communicated, orally or in writing, a false statement which has the effect of disparaging the plaintiff's title to property; he must also plead and prove that he has incurred special damage as a result.
. . . .
2. Trade Libel/Disparagement
Trade libel involves disparaging and false assertions about the quality of one's property rather than title to it.
. . . .
3. Injurious Falsehood
One who publishes a false statement harmful to the interests of another is subject to liability for pecuniary loss resulting to the other if (a) he intends for publication of the statement to result in harm to interests of the other having a pecuniary value, or either recognizes or should recognize that it is likely to do so, and (b) he knows that the statement is false or acts in reckless disregard of its truth or falsity. Restatement (Second) of Torts § 623A (1977). . . . .E. Illegal Restraint of Trade and Commerce
A restraint of trade may be adjudged unreasonable if it is per se unreasonable or violates the rule of reason. . . . Examples of per se unreasonable conduct include price-fixing arrangements, tying arrangements, agreements among competitors to divide markets or to allocate customers, group boycotts, and agreements to limit production. . . . Kenney has clearly not alleged any of these practices or any comparable practices. As for a restraint which violates the rule of reason, "showing merely injury to oneself as a competitor is insufficient." . . . . Thus, the trial court did not err by failing to permit Kenney to amend his claim in this regard.
(internal citations omitted)
The Court of Appeals found this cause of action stew rather bland and rejected each one of these attempts to amend the original complaint to survive summary judgment. The trial courts decision to disallow the complaint to be amended would not be disturbed unless it was an abuse of discretion. The Court of Appeals noted that the interference claim and the defamation per quod claims were so similar to the original claims of tortious interference and plain old defamation that they would not have survived summary judgment either. The other causes of action simply were not sufficiently supported by the facts to be viable.
Gregory A. Napier
http://troutmanhays.wordpress.com/
ELDER V. PERRY COUNTY HOSPITAL
CIVIL PROCEDURE: LONG ARM STATUTE JURISDICTION, MEDICAL NEGLIGENCE & INDIANA HOSPITAL
2005-CA-000591
PUBLISHED: VACATING AND REMANDING
PANEL: COMBS PRESIDING; ACREE, TAYLOR CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 09/14/2007
CA vacates and remands TC dismissals in these two appeals in this medical malpractice case.
CA holds that the TC has both personal and subject matter jurisdiction over PCMH, and the TC abused its discretion in dismissing PCMH on forum non conveniens grounds. Additionally, the TC improperly applied the doctrine of forum non conveniens in its dismissal of both defendants PCMH and Norton.
This case has a long and convoluted history and the opinion contains a timeline in an effort to clarify previous rulings. In 1999, the Elders took their 6-year-old son to Perry County Memorial Hospital (PCMH)for fever and nausea. The Elders lived in Hancock County, KY; PCMH is only 3 miles away in Tell City, IN. An ER physician failed to properly treat the child, his condition worsened, and he was transported to another hospital in Evansville, IN, where he died. They sued in 2001. PCMH and Norton (the management company) remain as defendants. In 2004, PCMH filed motions to dismiss on jurisdictional grounds and responses were filed. The Jefferson Circuit Court dismissed PCMH on the basis of forum non conveniens, citing the doctrine sua sponte without ever addressing the jurisdictional issues raised by the parties. In 2005, the TC amended its order to bar PCMH from raising a statute-of-limitations defense in any other action in any other venue.
The Elders and Norton appealled and, while the appeal was pending, the Elders filed suit in Indiana, deciding to litigate there. They sought to have Norton dismissed from the Kentucky suit as well on forum non conveniens grounds in order to litigate against both in Indiana. The TC dismissed on those grounds with the same statute-of-limitations defense prohibition as the PCMH order. Norton appealed this dismissal; the Elders filed an appeal challenging PCMH's dismissal in order to maintain the option of litigating against both defendants in a single action in Kentucky. The CA vacated the dismissals and remanded. PCMH sought discretionary review, which was granted, and the Supreme Court vacated the CA decision and remanded to the CA in light of Carrico v. Owensboro, 511 S.W.2d 677 (Ky. 1974).
CA holds that the TC has both personal and subject matter jurisdiction over PCMH, and the TC abused its discretion in dismissing PCMH on forum non conveniens grounds. Additionally, the TC improperly applied the doctrine of forum non conveniens in its dismissal of both defendants PCMH and Norton.
Digested by John E. Hamlet
BROCK V. PILOT CORP.
CIVIL PROCEDURE: SUMMARY JUDGMENT AND GENUINE ISSUE OF MATERIAL FACT & 10 DAYS TO RESPOND
PROPERTY: MECHANICS LIEN AND PRE-LIEN NOTICE
TORTS: UNJUST ENRICHMENT
2006-CA-001498
PUBLISHED: AFFIRMING
PANEL: THOMPSON, PRESIDING; VANMETER, PAISLEY CONCUR
COUNTY: BELL
DATE RENDERED: 09/07/2007
Plaintiff was a third-in-line subcontractor hired to perform some hauling of excavated material from a property upon which the Defendant was building a Pilot Food Mart. The party who subcontracted the Plaintiff never paid him for his work, and he brought the instant action against the Defendant. The trial court granted Defendant's Motion for Summary Judgment, which was styled "Memorandum in Opposition to [Plaintiff's] MSJ and In Support of [Defendant's] MSJ."
The CA held that the requirement that a party be given ten days to respond to an MSJ is mandatory "unless waived," according to Storer Communications v. Oldham County, 850 S.W.2d 340, 342 (Ky., 1993) and CR 56. The CA noted that the Plaintiff failed to cite to any place in the record where he objected to the trial court's consideration of the Defendant's MSJ, and the CA deemed his objection waived.
The CA also held that in order for the Plaintiff to recover under the theory of unjust enrichment, he had to show not only that the Defendant benefited from his efforts, but also that it did not pay any person for the work he performed. The evidence proved that the Defendant paid the first-in-line subcontractor for the Plaintiff's work and that the second-in-line subcontractor failed to pay the Plaintiff. The unjust enrichment claim was therefore deemed precluded.
The Plaintiff argued that one of the Defendant's agents assured him the Defendant would pay for his work, and hence there was no need to provide the requisite notice under KRS 376.010(3) to the Defendant within 120 days of his intent to file a mechanic's lien (which he did not provide, by the by). The CA noted that a general contractor is not deemed an agent of a landowner as a matter of law, Middletown Engineering Co. v. Main Street Realty Co., Inc., 839 S.W.2d 274 (Ky., 1974). It examined the factors in Sam Horne Motor & Implement Co. v. Gregg, 279 S.W.2d 755, 757 (Ky., 1985), as to whether one acting for another is a servant or an independent contractor, and held that the Plaintiff failed to establish that the original subcontractor was the Defendant's agent. In that there was not direct contact between the Plaintiff and the Defendant or any of its agents, the CA held his prelien notice was untimely.
Cherry Henault
