Kentucky Law Review

FEDERAL: Heads up on change to FRE 502 (from Day on Torts Blog!)

Summary of New FRE 502 from JOhn Day on Torts Blog

Here is a summary of FRE 502 which came into effect on September 18, 2009.  The rule - which addresses the attorney client privilege and work product doctrine - is intended to provide increased clarity in this confusing area of the law.

The author explains that "[t]he rule establishes a presumption against subject matter waiver, resolve the issue of inadvertent disclosure, provides for confidentiality orders and supports party agreements, among other issues. "

COURTS: CJ Lambert to propose opening juvenile civil proceedings; not juvenile criminal proceedings

Proposal on child hearings due HERALD LEADER

Chief Justice of Kentucky Joseph E. Lambert will announce Wednesday that legislation will be filed that would open child protection courts to the public. The proposal will not apply to juvenile criminal proceedings, only to cases that involve children deemed by the state to be neglected or abused. Currently, Kentucky courtroom proceedings for both kinds of cases are closed and the records sealed.

TRIAL COURTS: "Trooper cleared of homicide charge"

Trooper cleared of homicide charge HERALD LEADER

State Trooper B.J. Burton was found by a jury that he did not use excessive force when he struck a handcuffed man who then fell and suffered a fatal head injury.  CLICK ON HEADING FOR ENTIRE STORY.

Medical: Can a Chiropractor testify about the AMA Guidelines in personal injury case?

While reviewing some old postings elsewhere on the net at Daubert on the Web , I found an interesting not-for-publication decision from the Sixth Circuit back in 2001 holding it was not an abuse of discretion to exclude chiropractor's testimony on the applicability of the American Medical Association Guidelines for Evaluating Permanent Impairment.

Taulbee v. Wal-Mart Stores, Inc., No. 99-6690 (6th Cir. Feb. 21, 2001) (unpublished).  Jury finds for defendant in slip-and-fall after plaintiff's chiropractor is barred from testifying using AMA guidelines to describe plaintiff's impairment.  Exclusion affirmed.  District court did not abuse discretion in holding that testimony invoking AMA guidelines should come from licensed physicians, not chiropractors.

Of course, the application of this case would provide an interesting contrast to the recent SCOKY ruling that an injured plaintiff can fill the blanks in lost earnings once a expert (doctor) opines he or she has a permanent injury.  See, SCOKY holds permanent injury warrants permanent impairment of earning power instruction and guidelines for required proof .  Although SCOKY favored expert testimony on earnings, that does not mean that Daubert and the qualifications of the experts are to be thrown asunder.

SCOKY Oral Argument on 2/16/07 re: insurance defense lawyer's impeachment of plaintiff's testify doctor with evidence of loss of medical licensure

Click here for post.

Spoliation - Attorney Liability

Spoliation of evidence story with an additional kick to the lawyer from Day on Torts:

Spoliation - Attorney Liability

I have reported on a number of spoliation cases in this blog recently, but this is the first on against an attorney. Plaintiff argued that Plaintiff's counsel had failed to inspect or secure evidence in the possession of the plaintiff's...

Criminal: Pardons and Jurisdiction Addressed by COA

From Lawreader: Court of Appeals says Franklin Cirt. Court exceeded its jurisdiction in dismissing indictments of officials pardoned by Gov. Fletcher. Cases sent to District Court for dismissal.

Blogs: New Blog on Scientific Evidence

Daubert Blog has shown its altruistic and sharing spirit by highlighting a blog on scientific evidence New Blog on Scientific Evidence.  The blog is Science Evidence, and is maintained by Cliff Hutchinson, a partner at Hughes & Luce, LLP.

Some Medical Negligence is so obvious that an expert is not needed

Contrary to convential wisdom, an expert is not always needed in a medical negligence case since there are some deeds that even lay persons know are below the standard of care, and "]i]ndeed, a layperson would have no difficulty in recognizing Dr. Sharpe’s purported deviation from the standard of care in advising and undertaking to remove a gallbladder that he had previously removed. "

MATHENEY V.  SHARPE, MD
TORTS:  Medical negligence (no expert needed when negligent act was well within general knowledge of layperson; reversed trial court's dismissal per summary judgment)
2005-CA-001456
NOT PUBLISHED:  VACATING AND REMANDING (VANMETER)
DATE RENDERED:  10/13/2006

It is well-established that the burden of proof is upon the plaintiff in a medical malpractice case. Morris v. Hoffman, 551 S.W.2d 8 (Ky.App. 1977).

The negligence of a physician generally must be established by medical or expert testimony unless the negligence and “injurious results” are so apparent that a layperson with general knowledge would have no difficulty recognizing it. Id.; Johnson v. Vaughn, 370 S.W.2d 591 (Ky. 1963). See also Perkins v. Hausladen, 828 S.W.2d 652 (Ky. 1992).

In light of this admitted fact, we are of the opinion that the alleged medical negligence of both Dr. Sharpe and Dr. Schwab was well within the general knowledge of a layperson. Indeed, a layperson would have no difficulty in recognizing Dr. Sharpe’s purported deviation from the standard of care in advising and undertaking to remove a gallbladder that he had previously removed.

Moreover, we, likewise, believe that a layperson would have no difficulty recognizing Dr. Schwab’s purported deviation from the standard of care in reading Matheney’s ultrasound as a diseased gallbladder, when, in fact, no gallbladder existed. Simply put, the alleged medical negligence is such that expert testimony was simply unnecessary.

Ky Trial Practice: Experts, Discovery, and Privileges Tip From David Kramer

We previously digested a Sixth Circuit decision and linked to a blog posting on the subject regarding the discoverability of privileged documents provided to your expert.  The Sixth Circuit has come down on the side of disclusure. 

I received the following comment to these postings from David Kramer from Northern Kentucky who is one of the editors of Kentucky Practice, Civil Procedure, which needed to be moved above the comment line and given featured status.

The decision dealth wit affirming the discovery order of the Western District of Kentucky in Regional Airport Authority of Louisville and Jefferson County v. LFG, LLC, Case No. 05-5754 (6th Cir. Aug. 17, 2006), abd the Court expressly relied on the text of Rule 26(a)(2)(B) as amended and on the Advisory Committee Notes from the 1993 amendments to the Civil Rules that added the expert disclosure requirements.

David's comment:

Thanks for pointing this case out. I had prepared some new commentary for the West Kentucky Practice book on work product pointing out the two lines of cases on this issue, and based on my research I had only found one Federal Circuit Court opinion, the Federal Circuit's decision in the Pioneer High-Bred case, that had squarely addressed the issue. The new 6th Circuit case takes the same approach in favoring broad discoverability and finding waiver of work product by producing material to testifying experts. I will try to remember to post the new commentary (with an appropriate copyright disclaimer) when I get some time in the office next week.

These cases highlight the need for attorneys to be cautious in deciding what documents to provide to potential experts. Letters saying "here's what I think about the case, what do you think" should not be sent. Rather, providing pertinent discoverable documents and then following up with verbal consultation and questioning is much more conducive to maintaining confidentiality of the attorney's work product.

Plaintiffs' lawyers providing work product to prelitigation experts may still claim protection under Newsome v. Lowe and Alliant Hospitals v. Benham, though Alliant v. Benham appears to have softened the Newsome holding a little and noted the trend toward discovery.