Kentucky Trial Court Review
The Most Current and Complete Summary of Kentucky Jury Verdicts
January 2006 Published in Louisville, Kentucky 10 K.T.C.R. 13
Comprehensive Statewide Jury Verdict Coverage
Civil Jury Verdicts The verdict on liability was for operative care, Heuer prescribed
Complete and timely coverage of civil Werner on the products claim, Hopkins Amiodrone, a drug with anti-arrythmic
jury verdicts including circuit, division, taking nothing. A defense judgment properties.
presiding judge, parties, case number, followed and Hopkins has appealed. Crisp stayed in the hospital for another
attorneys and results. nine days, her care being supervised by a
Medical Negligence - While one second cardiologist, Dr. David Bush –
Products Liability - A remodeler doctor admitted fault in a drug while Bush did not initially order the
toxicity case, he still prevailed on Amiodrone, he didn’t end its use. [The
suffered a serious heel injury when his
drug has a significant risk of side effects,
aluminum stepladder allegedly causation (a second doctor won at trial
collapsed under him on liability)
On 9-6-01, Crisp was transferred to
Hopkins v. Werner Co., 5:02-121 Crisp v. Bush et al, 02-1272
the KDMC rehabilitation unit. There her
Plaintiff: David V. Oakes, Saladino Plaintiff: Arden J. Curry, II, Curry &
admitting doctor was an internist, Dr.
Oakes & Schaaf, Paducah Tolliver, Charleston, WV and Ralph T.
Hazel Yang. While managing Crisp’s
Defense: John G. McNeill, Landrum & McDermott, Ashland
overall care, Yang did not alter her
Shouse, Lexington Defense: Richard P. Schiller, Schiller
cardiac prescription for Amiodrone.
Verdict: Defense verdict on liability Osbourn & Barnes, Louisville for Bush
Crisp remained on the drug while in
Federal: Paducah, J. Russell, 11-10-05 James P. Grohmann and Andie Brent
rehabilitation until her discharge on 9-
Danny Hopkins was working on 5-30- Camden, O’Bryan Brown & Toner,
21-01 – she stayed on it after discharge
01 as a self-employed exterior remodeler Louisville for Yang
in Murray. He was experienced and Verdict: Defense verdict on causation
By December of 2001, Crisp had
owned a variety of ladders. On this day, for Bush; Defense verdict on liability for
become very ill. She was admitted to the
he was placing seamless guttering on a Yang
hospital on 12-26-01 and her symptoms
house on the campus of Murray State. Circuit: Boyd, J. Rosen, 9-27-05
were linked to Amiodrone toxicity. She
He had ascended an eight foot Model Shirley Crisp, then age 65, suffered
suffered several injuries including, (1) to
368 aluminum stepladder manufactured chest pain on 8-27-01. An emergency
her thyroid, (2) diminished vision in one
by Werner Company. On the top step, coronary artery bypass grafting surgery
eye linked to an optic nerve injury, and
Hopkins was busy installing the was performed at Kings Daughter
(3) pulmonary fibrosis. Crisp developed
guttering. In one hand, he had a cordless Medical Center by a cardiologist, Dr.
drill – in the other, he held the gutter. Richard Heuer. As a part of her post-
Suddenly the ladder collapsed
under him. Hopkins fell hard and
sustained a calcaneus heel fracture.
He later underwent a bone graft * * * The Book is Back - The Eighth Edition Has Arrived * * *
surgery. Released from his doctor in Also Available in a PDF Format
February of 2002, he has continued to
complain of pain. Order The KTCR 2005 Year in Review
In this lawsuit, he alleged the
ladder had both a design and
Another year has passed and around here, that means it’s time to ship out the
manufacturing defect that caused it to
collapse. His expert, Campbell Laird, 2005 Year in Review Volume. The 2005 edition, the eighth in the series, is the best
Engineer, Philadelphia, PA (Professor ever, topping out at more than 500 pages. This year it is available not just in the print
at Penn), implicated the ladder’s edition, but also separately as a PDF file. [Search the entire document from your
tactile strength. If prevailing, computer. No more carpal tunnel claims sifting through the pages.] Both versions,
Hopkins sought medicals, lost wages, with different utilities, cost the same.
impairment and suffering – all Besides all the jury verdicts, readers have access to eight years of
categories were uncapped. encyclopedic data on medical verdicts, car wrecks, slip and fall trials, bad faith and
Werner Company defended the on and on. Need data on consortium? It’s in the Book. Punitive damages? Ditto. If
case that there was no defect in the it’s important to lawyers that try or settle civil tort cases, it’s in the Book.
ladder. Its expert, Robert Collins, Don’t guess the value of a case or a particular claim.
Tampa, FL, explained the ladder was
well-designed and far exceeded the Read the Book and know what it’s worth.
state of the art. Plaintiff’s own See page three for more details
comparative fault was also
Kentucky Trial Court Review
January 2006 Table of Contents
Verdicts Verdicts Revisited
Jefferson County Damages/Fratzke - Punitive damages are unliquidated damages
Underinsured Motorist - A teenage girl sustained a serious fracture to and may be properly supplemented as general damages in a
her finger in 1995 – now a doctor, she continues to complain of pre-trial memorandum p. 14
impairment - $660,280 p. 5 Legal Negligence - A lawyer who badly botched a criminal
Medical Negligence - Plaintiff died of sepsis related to a twisted arson representation and then lost a malpractice trial appealed
bowel following bariatric surgery - Defense verdict p. 6 the verdict and cited a Daubert challenge to plaintiff’s legal
Auto Negligence - Minor sideswipe crash - Threshold p. 7 standard of care experts p. 15
Premises Liability - Plaintiff tripped on a protruding MSD Auto Negligence - In a case where the defendant suddenly
grate - Defense verdict p. 8 stopped in an intersection, leading to a chain-reaction rear-ender,
Auto Negligence - CR 8.01(2) snafu - Fratzke dismissal p. 9 it was not error to give barebones instructions that did not
Auto Negligence - There were fact disputes in a crash involving implicate the defendant’s duty to not suddenly stop p. 15
a motorcyclist - Defense verdict p. 10 Employment Retaliation - A $164,920 retaliation was reversed
Race/National Origin Discrimination - Two cardiac on claim preclusion as plaintiff first filed an untimely
anesthesiologists alleged they were forced out of their group whistleblower action – he then filed a separate retaliation claim
because of their race and national origin - Defense verdict p. 11 and received a verdict – the appellate court held that the
Federal Court - Paducah retaliation suit was precluded by the plaintiff’s failure to sue first
Products Liability - Stepladder failure - Defense verdict p. 1 (albeit untimely) and allege a whistleblower claim p. 15
False Arrest - While his wife was being arrested on a warrant,
plaintiff alleged he was improperly arrested - Defense verdict p. 4
Medical Negligence - In a drug toxicity case, one doctor admitted
fault and he still prevailed on causation - Defense verdict p. 1
Race Discrimination - A black man was turned away from a hotel
because there were no rooms – his friend with a neutral voice called
back and got a room right away - Defense verdict p. 6
Underinsured Motorist - A serious crash left plaintiff with a mild
brain injury - $180,000 p. 8
Premises Liability - Fall in a hole outside a pizza joint and
aggravated a disc injury - $73,747 p. 4
Premises Liability - Plaintiff fell on a wet floor in her own apartment
– it had been created by a carpet cleaner - Defense verdict p. 9
Auto Negligence - Minor soft-tissue injury - Defense verdict p. 5
Medical Negligence - Plaintiff suffered an infection following an
arthroscopic surgery - Defense verdict p. 10
Premises Liability - Plaintiff tripped as she exited her
veterinarian’s office and broke her arm - Defense verdict p. 6
Abuse of Process - Neighbor v. Neighbor - $1,450 p. 9
Medical Negligence - Plaintiff sustained a bladder injury during a
hysterectomy - Defense verdict p. 6
Federal Court - Lexington
Sex Discrimination - A female civilian employee at the Bluegrass
Depot alleged her demotion was sex-based - Defense verdict p. 7
Home Construction Negligence - Plaintiffs not only suffered a
diminution in property value due to faulty construction, the mold also
caused physical injuries - Defense verdict p. 8
Federal Court - London
Excessive Force - An angry drunk criticized cops in two arrests who
failed to appreciate she was just drunk, not violent - Zero p. 9
Quantum Meruit - Plaintiff worked on a bid process and wanted to be
paid for work when the bid fell through - $22,903 p. 11
Supreme Court Tort Opinions
Medical Negligence - A verdict of medicals but no pain and suffering
is proper in a case of a missed diagnosis of a broken wrist – because
of the delay, the plaintiff endured a painless surgery where bone was
grafted from his thighbone and inserted into his wrist p. 12
Medical Negligence - In a medical case, Kentucky recognizes a
continuous course of treatment, a plaintiff being able to sue a
year after the treatment ends, not a year after the injury
becomes known p. 13
Discretionary Review at the Supreme Court p. 13
The KTCR 2005 Year in Review
Available in both a Print and PDF Format (Adobe)
Another year has passed and the one-of-a-kind text Kentucky litigators have relied upon since 1998
is back with its eighth edition. At more than 500 pages, the KTCR 2005 Year in Review includes the
complete verdict summary from every reported case in 2005, statewide from Paducah to Pikeville,
Covington to London and all points in between. Beyond the full text of the 292 verdict summaries, the Year
in Review has all the reports that makes the individual cases useful – even better for this year, all the reports
bring together eight years of data in an encyclopedic format.
What else is included in 2005?
Combined Verdict Summary Detailed won-loss percentages for every variety of case with average
results by category.
Million Dollar Verdicts How many were there in 2005? In what sort of cases were
they returned? The report also summarizes all 115 million
dollar results since 1998.
The Bad Faith Report Since 1998, Kentucky has featured twenty-three bad faith results. This
year’s report summarizes each verdict in detail.
The Products Liability Report Eight years worth of products verdicts – we’ve chronicled a total of 56
since 1998. Who won? Who tried the cases? Verdicts by defect? It’s
all in the Products Liability Report.
Other One-of-A-Kind Analysis Beyond the articles above, the 2005 Book has a detailed review of all
the death cases. Does your case involve punitives? We’ve got all the
results since 1998 sorted by tortious conduct. How have loss of
consortium claims been valued? Are you aware of the Consortium
Rule? It’s in the Book.
For more details on the 2005 Book, see samples online at
If it’s important to litigators, It’s in the Book
How to Order - The 2005 Volume is just $225.00, tax and shipping included
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January 2006 10 KTCR 1 4
appropriate proof of her injury from Mark Wheeler, Internist, Louisville, judgment had been entered.
Daniel Hilleman, Pharmacology, Omaha, provided a standard of care defense. A Ed. Note - This is the first case in
NE and Dr. Angelo Licata, Toxicology, second expert, Dr. Nancy Newman, Kentucky we’ve chronicled where
Cleveland, OH. Ophthalmology, Atlanta, GA, developed counsel did not make an appearance in
She blamed her permanent condition there was no link between the optical the record on a pleading. While attorney
on a combination of negligence by Bush injury and the toxicity. Key in this Riehlmann was admitted pro hac vice,
and Yang. [She also sued Heuer, but analysis was that Crisp’s vision the record is silent as to his location.
later volitionally dismissed him.] Bush impairment was unilateral – had it been [The only attorney in the U.S. with a
was blamed for failing to discontinue the related to toxicity, Newman explained, matching name practices in New
Amiodrone – Yang too was criticized for the condition would have been bilateral. Orleans, LA.]
mismanaging Crisp by continuing to The proof completed, the jury was
keep her on the drug through instructed that Bush was negligent, the False Arrest - While his wife was
rehabilitation and beyond. court asking if his failure to discontinue
being arrested on a bench warrant,
Experts for Crisp on liability were Dr. the drug caused injury. The answer was
plaintiff alleged he was falsely arrested
Jeffrey Kluger, Cardiology, Hartford, CT no, the jury also rejecting a claim that
and beaten in the process
and Dr. Kushagra Katriya, Cardiology, Yang violated the standard of care.
Lamar v. Hopkinsville Police, 5:02-289
Miami, FL. She did not have an internist A defense judgment followed. Crisp
Plaintiff: Ninamary Buba Maginnis,
expert. If prevailing on liability, she filed a JNOV, citing a variety of
sought medicals of $70,201, plus evidentiary errors. The motion was
Defense: Robert T. Watson and David
$513,858 for future care. Pain and denied. At the time the case was
P. Bowles, Landrum & Shouse,
suffering was capped at $1.9 million. reviewed by the KTCR, the time for
Louisville and Stephen E. Underwood,
As the proof came in, no one on the appeal had not yet run.
planet disputed that Crisp should not
Verdict: Defense verdict on liability
have been on Amiodrone as long as she Premises Liability - Arriving at a Federal: Paducah, J. Russell, 10-12-05
was or in as high a dose. Bush pizza store, plaintiff tripped in a hole On 1-30-02, Kenneth Beymer, a
apparently recognized that reality and in the parking lot Hopkinsville police officer, went to serve
conceded he violated the standard of Hardin v. Donatos Pizza, 01-3362 a bench warrant on Mercedes Lamar.
care. Yang continued to defend that as Plaintiff: Joe F. Childers, Lexington Mercedes was charged with theft by
an internist, she wasn’t about to interfere Defense: Michael G. Riehlmann, deception. Arriving at the Lamar,
with the ongoing prescription that began Undisclosed Location Mercedes was taken into custody without
with Heuer and was continued by Bush. Verdict: $73,747 for plaintiff less 40% incident.
Bush’s concession left his defense comparative fault As Mercedes was taken outside,
focusing on causation – that process
Circuit: Fayette, J. Clark, 12-20-05 Beymer turned his attention to her
placed him on equally thin ice. His
On 9-7-00, Gladys Hardin, then age husband, Carlos – from Beymer’s
retained pulmonary expert, Dr. Judah
55, drove with her daughter to Donatos perspective, Carlos was dangerously
Skolnick, Louisville, was apparently not
Pizza. In the parking lot, Hardin got out moving his hands. The officer told
clear who hired him – he gave causation
of the car. Near the door, she tripped in Beymer to cease the unruly hand
proof that was favorable to the plaintiff.
a hole. She landed hard. movements.
Bush then wisely made a decision to
Hardin has since treated for wide- When Carlos didn’t, Beymer had little
not use Skolnick at trial and thus while
ranging injuries, including, (1) the choice but to effectuate an arrest. He did
his discovery deposition was taken, there
aggravation of prior disc conditions, just that, pulling Carlos from the young
was no trial deposition. At trial, Crisp
leading to a surgical repair, (2) an ankle child that he was holding and taking him
read Skolnick’s discovery deposition in
sprain, and (3) other soft-tissue injuries. outside in a choke hold. While in the
her case-in-chief, buttressing her
Her medical bills were $43,747 and she front yard, Carlos alleged he was kicked
causation proof. However as soon as the
sought $30,000 for pain and suffering. and beaten repeatedly.
deposition was over, the court told the
Donatos defended and called the hazard In this lawsuit and focusing on the
jury to disregard Skolnick’s testimony.
open and obvious. facts aforesaid, Carlos alleged two
Why? No foundation for his expertise
The court’s prefatory instruction theories, (1) false arrest, Beymer lacking
had been laid, plaintiff failing to ask
explained that Donatos had a duty to probable cause to arrest, and (2) the
prefatory questions regarding his
maintain the premises free from negligent application of excessive force.
education and training.
unreasonably dangerous conditions, but If prevailing, Carlos sought
To experts who didn’t stray from the
that there was no duty to warn of open compensatory and punitive damages.
reservation, Bush had two – they were
and obvious hazards. Then to the Beymer defended that his conduct was
Dr. Leonard Lichtenstein, Internist,
interrogatory, a deviation was found, the proper – to the decision to arrest, he
Charleston, SC and Dr. George Stacy,
jury also finding fault with plaintiff. noted plaintiff’s perilous hand jive.
Cardiology, Louisville. While a
Comparative fault was assigned 60% When he would not cease the gestures,
cardiologist, Stacy focused on
to Donatos, the remainder to Hardin. Beymer acted reasonably to make an
pulmonary proof, linking Crisp’s
Turning to damages, she took her arrest. That the arrest was rough,
respiratory condition to other factors,
medicals as claimed, plus $30,000 for Beymer pointed to Carlos having resisted
including smoking. He also identified
pain and suffering. The verdict totaled – notably, he rolled over and kicked the
that Crisp’s lung tissue did not have the
$73,747 less 40% comparative fault. officer.
tell-tale indicia of Amiodrone toxicity.
When reviewed by the KTCR, no The jury’s verdict was for Beymer on
Yang had two experts. The first, Dr.
January 2006 10 KTCR 1 5
(1) the false arrest claim, and (2) the American National Property and Maupin’s suffering claim was not
second negligent excessive force claim. Casualty (ANPAC). The UIM limits capped.
Having so found, Carlos took nothing. A were $400,000, Lorch exhausting Momenpour defended the case and
defense judgment followed and Carlos coverage with any award exceeding relied on an IME, Dr. Joseph Zerga,
has since appealed. $500,000. Neurology, Lexington. The expert noted
Ed. Note - This is the very unusual ANPAC defended the case on the wreck was apparently minor,
excessive force case where plaintiff damages only – it relied on an IME, Dr. Maupin’s husband, not an ambulance,
alleged a negligence theory. Frank Wood, Orthopedics, Louisville. taking her to the ER. The doctor also
The expert identified just a 1% pointed to a sideswipe crash just a few
Underinsured Motorist - A high impairment from the broken finger – months before as the likely source of her
Wood further concluded that Lorch’s persistent pain. It was conceded by
school student suffered a broken
ongoing pain related to the thoracic Zerga that Maupin likely had a
finger in a interstate rear-ender ten
outlet syndrome was not caused by this temporary soft-tissue injury.
years ago – while she is now a
crash. Tried on damages only, Maupin took
physician, the injury (1) ended her
Tried on damages only, Lorch took nothing for all three claimed elements of
college diving career, and (2) has
her medicals as claimed, plus $334,680 damage. A defense judgment followed
impaired her medical practice
for impairment. Suffering was an even and there was no appeal.
Lorch v. American National Property &
$100,000. Lorch’s verdict totaled
$660,280, far exceeding the floor and Premises Liability - Carrying her
Plaintiff: Bixler W. Howland,
ceiling of UIM coverage. A judgment chihuahua out of her veterinarian’s
for $400,000 was entered on her behalf. office, plaintiff tripped over the door
Defense: Robert C. Ewald, Wyatt
Tarrant & Combs, Louisville threshold and broke her arm
Verdict: $660,280 for plaintiff Auto Negligence - While even a Penick v. Schaaf, 01-0664
Circuit: Jefferson, J. McDonald- defense IME conceded a soft-tissue Plaintiff: John E. Spainhour, Givhan &
Burkman, 11-30-05 injury, a Frankfort jury rejected Spainhour, Shepherdsville
On 12-20-95, Susan Lorch, then age plaintiff’s claim on damages Defense: Eric G. Farris, Buckman
17 and a high school senior at Ballard, Maupin v. Momenpour, 03-0613 Farris & Rakes, Shepherdsville
traveled on I-64. She stopped in traffic. Plaintiff: David Stuart, Stuart & Mills, Verdict: Defense verdict on liability
An instant later in a moderate crash, she Versailles Circuit: Bullitt, J. John Potter,
was rear-ended by Elmore Willets. That Defense: Bridget L. Dunaway and 7-25-05
initial impact knocked Lorch forward Amanda Lester Hill, Taylor Keller It was 7-21-00 and Loretta Penick,
into the next vehicle. Dunaway & Tooms, London then age 57, took her chihuahua to her
In the crash, Lorch sustained a broken Verdict: Defense verdict on damages veterinarian, Dr. Raymond Schaaf, to
third finger. It turned out to be more Circuit: Franklin, J. Graham, have the dog’s nails trimmed. That task
than just a broken finger, affecting 10-25-05 completed, Penick exited Schaaf’s office.
dexterity and leading to a thoracic outlet On the evening of 1-22-02, Joseph In one arm she had a heavy purse – in
syndrome. Her injuries were confirmed Travillion traveled on I-64. Suddenly his the other she carried the dog.
by Dr. Erdogan Atasoy, Hand Surgery, pick-up became disabled – it was Penick tripped over the door threshold
Louisville and Dr. Michael Moskal, stopped in the right lane of traffic. and fell forward. She stuck her arm out
Orthopedics, Louisville. Her medicals Behind Travillion, Tina Maupin, then to break the fall. It took the brunt of her
were $215,600. age 32, came to a stop. She was unable fall and it was broken. The fracture had
The effect of these injuries has also to pass because of traffic. a non-union complication and Penick
affected her academic and professional The third car on the scene was later had surgery to place a pin in her
career. After Ballard she attended North Hooshang Momenpour. He failed to arm. Her medicals were $10,669 and she
Carolina in Chapel Hill and dove for one appreciate that Maupin was stopped – sought lost wages of $904. Pain and
year on the varsity team. Pain in her Momenpour rear-ended Maupin. A suffering was capped at $100,000.
hand ended her diving career. Lorch moderate collision resulted. While fault Penick blamed her fall on the
graduated from North Carolina and then was initially in issue, Travillion being dangerous condition of the threshold.
went to medical school in Louisville. implicated as a third-party defendant, by Schaaf defended the case and raised fact
She now practices physical medicine, the time of trial, this case was about disputes. Notably, Penick didn’t trip
but does so with impairment. Her damages only. over the threshold – instead she hooked
vocational loss was quantified by John From the scene of the crash, Maupin her heavy purse on the door handle and
Tierney, Louisville at $1,336,568. as taken to the ER – her husband came then lost her balance.
Tierney survived a spirited Daubert and drove her away. Beyond the ER, she The court’s single liability instruction
challenge led by Luca Conte, Louisville, has complained of radiating neck pain. asked if the door threshold was in an
Vocational Expert – Conte thought Maupin has since had injection unsafe condition. The jury said no and
Tierney’s methods and conclusions were treatments with a pain management that ended the deliberations, Penick
flawed. doctor. taking nothing. A defense judgment
In this litigation, Lorch first moved A plaintiff’s IME, Dr. James Owens, followed and there was no appeal
against Willets and took his $100,000 Lexington, linked her persistent pain to a
policy limits. Above that sum, she C5-6 disc injury. Her medicals totaled
sought UIM coverage from her carrier, $12,475 and lost wages were $38,000.