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					                            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
                                                                                              notably toxicity.]
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
                                                                                              as well.
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
implicated.
                                                    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
Boyd County
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
Fayette County
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
Franklin County
Auto Negligence - Minor soft-tissue injury - Defense verdict        p. 5
Medical Negligence - Plaintiff suffered an infection following an
arthroscopic surgery - Defense verdict                              p. 10
Bullitt County
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
Campbell County
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
Kenton County
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
Oldham County
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
                                                        Juryverdicts.net/kentuckytrial.htm

                                    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
                                                                                            Louisville
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.
                                                                                            Hopkinsville
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
Casualty, 03-2409
                                             $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
Louisville
                                             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.

				
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