Many of the pundits (me included) have made a play on Allstate's slogan "Good hands" in response to the allegations made against its claims handling procedures. Most of the remarks have been something to the effect of "good hands" to "boxing gloves".
Well, the verdict is in and should the next round of remarks include "sleight of hand" or "thumbs up" or "out of hand" or just simply jury gives Allstate a "clap of hands" in finding no improprieties in claims HANDling procedures? See, story at Herald Leader by Brandon Ortiz entitled Jury finds in favor of Allstate.
In light of the remarks made by at least one juror, asking for big numbers can cause some big problems for a jury. This, of couse, is an enigma since the only remedy a jury can provide and make a person whole for their injuries and potentially punish a wrongdoer is to award money, then where is the line drawn? Where is that tipping point where the amount is too much?
To put it another way - all jury trials are about money since noone can turn back the clock and give someone a good back after it has been broken.
Interestingly enough, I submit to you that if you ask those lawyers familiar with the companies claims handling practices (insurance defense lawyers, claimants' lawyers, and judges), the answers might have been contrary to this jury's determination.
Here's the story:
Jury finds in favor of Allstate
Allstate Insurance Co., under siege by trial lawyers who say it drags out insurance claims, won a major legal victory yesterday after a Fayette County jury unanimously found it was not responsible for a two-year delay in settling a Richmond woman's claim.Trial lawyer J. Dale Golden had alleged that Geneva Hager, 60, was the victim of an illegal, systematic scheme by Allstate to bully car accident victims into accepting lowball offers for their pain and suffering. He had sought $1.425 billion in the seven-day trial in Fayette Circuit Court because, he said, it was the only way of ending a corporate culture of greed.
But two jurors said Golden's arguments rang hollow with jurors, who voted 11-1 just minutes after beginning their deliberations. After only 35 minutes of discussion, another juror changed her mind and the verdict became unanimous, juror Betty Sherwood said.
"I thought the figure that Mrs. Hager was asking for was outrageous," said Sherwood, who is retired and lives in Lexington. "I thought that when I first went into the trial two weeks ago. But I didn't make a decision, I didn't read anything and I just made up my own mind that it was so obnoxious of her to ask for so much money -- for any money."
The verdict calls into question whether the so-called McKinsey documents are the dynamite evidence of systematic bad faith that trial lawyers across the country have claimed them to be. The documents, which are actually 12,500 pages of PowerPoint slides, were produced by consulting firm McKinsey & Co. as it overhauled Allstate's claims-handling in the 1990s.
The jury's verdict was announced today in which Louise Ogburn was awarded $1 million in pain and suffering damages and $111,312 on medicals and $5 million in punitive damages.
I understand that Donna Summers was awarded $100,000 in compensatory damages to be apportioned and $1 million in punitive damages.
One of the legal issues post-verdict is whether or not the compensatories will be apportioned between McD's and the caller since Ogburn prevailed on two of the counts which are not typically apportioned. However, Ann Oldfather seems confident that this will not be apportioned, but also confident McD's will appeal the verdict if past behavior is any predictor of future actions.
For all those who know the lawyers in this case, Ann Oldfather, Pat Patterson, Glenn Cohen - all are first class advocates, and this trial showed the jury system does work and does work well.
More importantly, this trial was and win-win for the judicial system and corporate accountability. The cost to McD's to pay its share of the verdict ($5,550,000) might simply be one less nationwide commercial or two over a new happy meal and to some concerned mothers a little less calories is not a bad thing.
However, a message was sent regarding corporate profits over people. Although corporate culpability in the handling of these hoaxes was a far cry from the calculated disregard behind the Ford Pinto decision, it is a reminder to all that when corporate and shareholder accountability fail to reign in large corporations, one lawyer and twelve jurors can step in where the angelic regulators fail to tread.
Only in America can twelve ordinary people in a small rural community be picked off the street and then hear all of the evidence, follow the court's instructions on the law, and render a fair and reasonable verdict.
This was no runaway jury, no hot coffee case, no Enron, no Ford Pinto.
But one cannot help but wonder in the greater scheme of things what is happening to corporate America when the internal workings of a corporation nullify individual and corporate accountability. In the coffee case, hotter than necessary but albeit tastier coffee devised in the minds of those in white coats in the research laboratory resulted in major burns to a customer.
Now hoaxes across the nation resulting in a surprising response in human behavior failed to reach the corporate consciousness. And when the corporation got caught, the decisions by McD's continued to go awry as the trial judge held the company accountable for failure to honor discovery and pierced the attorney client privilege. Then it was acknowledged that time records were altered which woulda/coulda changed the very outcome of this case by invoking the exclusive remedy provisions of the Workers Compensation Act.
This case, this hoax is not a tipping point in corporate accountability, but this plaintiff, this lawyer, this case, and this jury was and is a tipping point on corporate accountability for the dangers from unknown callers and hoaxes. Hopefully, others will be spared the humiliation, and companies will be more concerned and cautious. In this case, McD's defense of no accountability was shot down by the jury and 11 years of denial of 40+ hoaxes was rejected by this jury. For the post verdict press conference by Louise Ogburn and her attorneys then go to RAW VIDEO: Ogborn discusses verdict at WHAS11.com.
Here is the story. I have the instructions here. For the verdict as read by Judge Tom McDonald go to RAW VIDEO: Verdict found at WHAS11.com.
A jury awarded $6.1 million Friday to a woman who said she was forced to strip in a McDonald's back office after someone called the restaurant posing as a police officer.Louise Ogborn, 21, had sued McDonald's Corp., claiming the fast-food giant failed to warn her and other employees about the caller who already struck other McDonald's stores and other fast-food restaurants across the country.
Ogborn had been seeking $200 million but was awarded $5 million in punitive damages and about $1.1 million in compensatory damages.
"There's nobody in the world worth $200 million," juror Kay Parrish told reporters, adding the amount awarded will enable Ogborn to "live well the rest of her life" and "put all this behind her."
McDonald's attorneys argued the company was not responsible.
W. R. Patterson, the attorney for the company, told a jury that the restaurant chain was sued because it has deep pockets. Patterson said that Louise Ogborn, the former employee who was searched, did not sue the man who sexually assaulted her or the person who directed the strip search over the phone.
"I think the reason is obvious, McDonald's has money and they want you to give it to them," Patterson said. "That's why they're shooting at McDonald's."
Courier Journal story on continuing trial in Bullitt County. McD's lawyers may finish up case today.
A McDonald's executive testified yesterday that Louise Ogborn should have known she had the right to stop a humiliating strip search at its Mount Washington restaurant under a company policy that prohibits offensive conduct in its stores.
Lawyers in the "know" on the relationship of "exclusive remedy" provisions, "intentional conduct", and tort liability established by Kentucky's Workers Compensation Act were probably disturbed by this bit of cross-examination in the Strip Search Hoax lawsuit against McDonald's being tried in Bullitt County.
Disturbed to the extent of how a law designed to protect injured workers could possibly be manipulated by an employer to deprive a claimant of the full protection of the laws!
The story found in the Courier-Journal was entitled Testimony could hurt McDonald's. Although the story by Andrew Wolfson contains excerpts of excellent cross-examination by Kirsten Daniel on behalf of the injured Plaintiff Ogburn showing how there is always "more to the story", there was one bit of cross-examination which should have been a wake-up call to those who are considering changes to the workers compensation laws and the need for it to achieve its purpose and PROTECT the injured workers by plugging a possible hole in the system. Here is an extract of that cross-examination:
Area supervisor Jacque Heck, who was in charge of the Mount Washington store and several others, acknowledged on cross-examination that a manager altered Ogborn's time records to show that she was working at the time of her ordeal.
After initially claiming she didn't know why anyone at the company would do that, she conceded that one of McDonald's defenses is that Ogborn was on duty and cannot sue because her damages would be covered by worker's compensation.
"Louise wasn't working when she was stripped, spanked and sexually assaulted, was she?" one of Ogborn's lawyers, Kirsten Daniel, asked Heck.
"No, ma'am," she answered.
Obviously this is only one witness's testimony which may or may not be an accurate acknowledgement of the existence of a fact involving the actual altering of records, since a few questions and answers does not paint a complete picture of the defense or the evidence. However, it is nonetheless a damning acknowledgement to the extent that employers do know the workers compensation laws and the advantages and disadvantages of the benefits to the employer.
Whether or not any employee was "on the clock" at the time of an incident is a critical and technical component of any analysis as to potential remedies for an injury. For example, the "exclusive remedy" provisions of the Workers Compensation Act can be used by both employers and third parties to lock a claimant into a single source of recovery under the Workers Compensation Act for some or all of the injuries' consequences and damages.
What is noteworthy from these few questions are the implications and recognition that the potential harm that can be perpetrated on an employee by those in the know with an employer who might alter the evidence to deprive the employee of a remedy.
The Workers Compensation Act is designed to protect workers injured on the job and not workers off the job. To get these workers compensation protections, the workers give up rights to sue an employer or fellow worker for negligence in return for some compensation for their injuries regardless of negligence. Most would agree that workers compensation benefits are totally inadequate to make a worker whole following an injury, but the legislature nearly a century ago struck a balance between employer and employee to afford these protections. Making sure that balance is checked is important.
The Workers Compensation Act does NOT deprive a worker OFF the job who is injured by the employer from suing the employer just like any other person or customer of the establishment. Nor does it deprive the worker from suing third parties (those who are not also employed by the employer) for injuries. For example, the worker is driving a company car and is injured in a car wreck caused by another's negligence can sue this third party for damages not covered under workers compensation. In this example, the employer's medicals and wages are handled through workers compensation, but those damages which are not paid by workers compensation (excess wages, some medicals, and pain, suffering, anguish and inconvenience) could be recoverable from this negligent third party motorist.
Again, this post does not claim the statement by Jacque Heck is true or not true or go any further on how it relates to the trial, but simply addresses a potential for abuse exists in workers compensation law, and recognition that this legal nuance is apparently not a stranger in the house of the employer.
For what it is worth, this is not the only area for potential abuse in depriving a worker of compensation and bringing them within the forced umbrella of protection of the Workers Compensation Act. Eg.,
From Today's Courier-Journal is
Testimony could hurt McDonald's
Opening its defense in Louise Ogborn's strip-search lawsuit, McDonald's Corp. yesterday presented two employees who refused to go along with some of a hoax caller's demands at its Mount Washington store in April 2004.
McDonald's opens defense
Opening its defense in Louise Ogborn's strip-search lawsuit, McDonald's Corp. today presented two employees who refused to go along with some of a hoax caller's demands.
Ann Oldfather, who represents Louise Ogborn in a lawsuit against the fast-food giant, told jurors in opening statements that McDonald's withheld or hid evidence of someone pretending to be a police officer calling a restaurant and walking employees through a strip search and sexual abuse of female employees.
Ogborn sued the restaurant chain, claiming the company failed to warn her and other employees about a hoax caller who had already struck other McDonald's stores and other fast-food restaurants across the country.
David Stewart of Fountain, Fla., was acquitted last year on charges of impersonating an officer, soliciting sodomy and soliciting sexual abuse after Ogborn was searched, forced to strip and do calisthenics in a back room at the restaurant.
McDonald's didn't tell anyone about the other incidents during Stewart's trial, Oldfather said.
We posted stories yesterday on the current medical negligence trial against Dr. James Michael Guiler on claims he performed unnecessary hysterectomies, the UK branding incident, and the earlier published decision of the Kentucky Supreme Court in which the dismissal of a child's loss of consortium claim for the death of the child's mother was dismissed and eventually resulted in a change in the law recognizing loss of parental consortium claims. See, Ky Trials: Lexington Medical Negligence Trial Continued Following Claims of Juror Coercion.
But alas, the rest of the story has been provided to us compliments of Shannon Ragland and the Kentucky Trial Court Review on the eventual medical negligence trial of Dr. Guiler from the allegations arising from his actions in 1992 and the Kentucky Supreme Court Decision of Guiliana v. Guiler (parental consortium case).
For a little procedural history and epilogue on that earlier incident. The medical negligence allegations arose from a mother's death during a delivery in 1992 and which resulted in a wrongful death lawsuit against the obstetrician, anesthetist, and hospital. Among the various claims was a claim by the surviving children for a loss of parental consortium which was dismissed at trial and appealed to the Court of Appeals and discretionary review granted by the Supreme Court. The Kentucky Supreme Court reversed precedent and recognized in Kentucky a claim for a child's loss of parental consortium resulting in the claim being returned to the trial court for disposition. The trial result as reported in the Kentucky Trial Court Review was a favorable defense verdict for him and the other defendants.
260 - Medical Negligence
Guiliani v. Guiler et al, 93 CI 0223Plaintiff: Ann Oldfather, Louisville & Jeffrey Darling, Lexington
Defense: David Trimble, Lexington for Guiler; Greg Jenkins, Lexington for Central Baptist; Ken Smith, Lexington for BennettVerdict: Zero Verdict
Circuit: Fayette (4), J. Adams, 6-25-98On 1-21-92, Mary Guiliani, age 24, and the mother of three children, was admitted to Central Baptist Hospital at the direction of her Ob-Gyn, Dr. Michael Guiler to induce labor. Shortly after her fourth child was born, Guiliani died at the hospital of ambiotic fluid embolism (AFE), a condition in which the fluid enters the blood stream and causes severe respiratory problems, and which has a high rate of death. Her estate sued Guiler, Richard Bennett, an anesthesiologist, and the hospital for negligence. The four minor children sought loss of consortium damages, while the estate sought destruction of power to earn money and conscious suffering.
As to Guiler, plaintiff was critical of his choice to induce labor and the failure to proceed with a vaginal delivery instead of a caesarian section. As well, estate contended that he should not have left the hospital after the induction of labor. There was also a complaint that a thyroid medication contributed to her death. Dr. Hugh Miller, Ob-Gyn, Tucson, AZ, testified that plaintiff was in thyroid storm as a result of the medication, and further he was the only doctor not to blame AFE; Tom Barden, Ob-Gyn, Cincinnati, also testified as to the standard of care. Bruce Waller, Pathology, Indianapolis, discussed the role of the thyroid medication. Dr. Dennis Kotelko, Anesthesiology, Aurora, CO, testified as to causation, to wit, if a c-section were attempted earlier, the AFE would not have occurred. The complaint against Bennett concerned his failure to intubate the plaintiff when he arrived on the scene. As to Central Baptist, it was the failure to note Guiliani’s worsening condition and the administration of the thyroid drug.
Plaintiff’s vocational proof was provided by John Tierney, Louisville who valued her economic destruction at $1,594,800. Larry Raskin, Psychologist, testified about the effect of the mother’s death on the children, and their need for psychotherapy.
Guiler responded through his expert, Stephen Clark, Ob-Gyn, Salt Lake City, that the care was good, and that AFE is an unpredictable and highly fatal condition. Regarding the failure to abort vaginal delivery, and leaving the hospital, Guiler contended that there were no indications of problems. Dr. Michael Ehrie, Pulmonology, Ashland, testified about the role of the AFE in plaintiff’s death; further, the administration of the thyroid drug played an unimportant role in light of the AFE. An IME, Dr. Lee Haller, Psychiatrist, Rockville, MD, testified the children were doing as well as could be expected, but noted that the father’s inability to deal with his severe depression because of the loss was part of the problem.
Bennett, utilized William Witt, Anesthesiologist, Louisville, who testified that there was no signs that he intubate plaintiff, and that when there was, he tried, but that the AFE was already full-blown. The hospital’s experts were Dr. Gary Hankins, Ob-Gyn, Galveston, TX, and William Baldwin, Vocational Expert. Baldwin valued the destruction claim at closer to $500,000.
The thrust of the defense was that AFE was the causal factor which pulled together and explained what happened, and which was more probable than the series of events about which the plaintiff complained.
The trial of this matter began on June 1 and did not end until 24 days later. The jury found Guiler, Bennett and the hospital all not at fault, and awarded nothing. Plaintiff had sought funeral expense, destruction as noted, and $3,000,000 for pain and suffering. Each of the four children also claimed $3,000,000 for loss of consortium. The Guiliani case was previously appealed to the Kentucky Supreme Court, which first recognized herein, a child’s right to loss of consortium.
See also, Ky Jury Verdicts: A taste of the Kentucky Trial Court Review.
Ky Trials: Lexington Medical Negligence Trial Continued Following Claims of Juror Coercion
Kentucky's premier (and one of the most complete services in the nation) jury verdict reporter - Kentucky Trial Court Review - is posting each issue's cover page, table of contents (brief summary of the jury trials in a short sentence) and a verdict digest or two at its web site. http://www.juryverdicts.net/kentuckytrial.htm.
If you try cases in Kentucky, then you should already be getting this product each month which has complete digests of the case, litigants, lawyers, issues, court, judge, facts, and the verdict for every state and federal civil jury trial in the Commonwealth.
Better yet, all of the cases are analyzed each year in the "Year in Review" with incredible summaries of the data. The "injury" multipliers are probably the single most useful settlement tool you can buy. Why? Nine years (and broken down yearly, too) of pain and suffering multipliers and impairment multipliers for each general category of injury in relation to the medicals provides a sufficient numerical base to project the values of the cases rather than the anecdotal verdict or two that each side can use to pump up or shoot down the value of a case. The large number of verdicts provides a strong statistical base in years, venues, and number of verdicts to weed out the highs and lows and provide the averages. An actual "mean" might be useful in the future (mid point between the high and the low rather than the average).
The price is right, and well-worth the investment. Back issues of the "Year in Review" may still be available, and some of the issues are now in Adobe PDF format (with its expanded search capabilities).
Some of our readers may remember the running list I used to maintain a few years back of the biggest verdicts for the year. Unfortunately, that took too much time. Maybe the KTCR will be doing this independently, and if so, we will link to it. It's always an interesting read on who's getting the big verdicts.
If this whets your appetite, then check the following links for subscribing to the monthly editions and obtaining the annual reviews:
The estate of a man who died in September 2006 after he was shot with a Taser sued two police officers and the Louisville Metro government, saying he was naked and posed no threat to police or the public. The suit, filed in U.S. District Court on behalf of the survivors of Larry Noles, alleges that officers Michael Campbell and Matthew Metzler were not properly trained in using the Taser or in dealing with people who are mentally ill.
Today's Herald Leader has an AP story in which the civil trial against Dr. Guiler alleging unnecessary hysterectomies was continued due to protests outside of the courtroom. Fayette Circuit Court Judge Pamela Goodwine "postponed the trial until June 23, 2008, because of "pretrial publicity," including a letter circulated around the medical community."
In a subsequent (and much more detailed story than that of the AP) Brandon Ortiz at the Herald Leader reported that Judge Goodwine "said she will sanction a Lexington obstetrician and gynecologist, accused of performing unnecessary hysterectomies, over concerns by lawyers suing the doctor. The lawyers say that the physician's wife and employees attempted to taint potential jurors in a malpractice trial that was scheduled to start this week."
This medical negligence trial is centered on claims that Dr. Guiler performed unnecessary hysterectomies. Among the plaintiffs in this lawsuit were those claiming the "UK" branding a few years back.
This is not the first medical negligence case against Dr. Guiler that has made news. Lawyers will recall that Dr. Guiler was the defendant in the lawsuit Louisville attorney Ann Oldfather took up to the Kentucky Supreme Court (Guiliani v. Guiler) several years ago which held that minor children could maintain claim for loss of parental consortium for the wrongful death of their mother.
We were also able to locate on-line videos at the Smoking gun blog claiming a depiction of the UK marking - click here for video and story.
Here are the stories.
Dr. James Michael Guiler stirred national attention in 2003 after a woman accused him of branding in her uterus with the letters "UK" - for his University of Kentucky alma mater - before a routine hysterectomy.
The trial scheduled to begin Tuesday was to deal not with that case but with allegations by several women that he had performed unnecessary surgeries.
Fayette Circuit Judge Pamela Goodwine told The Associated Press by phone Tuesday that she postponed the trial until June 23, 2008, because of "pretrial publicity," including a letter circulated around the medical community.
The letter, signed by 14 people, encouraged Guiler's supporters to show up en masse outside the courthouse with "signs that best represent Dr. Mike's Christian practice and demeanor." * * *
The letter asks recipients to bring signs to the courthouse "that best represent Dr. Mike's Christian practice and demeanor."
It also encourages supporters to attend the trial and speak to reporters.
"It would be wonderful to express your reasons for choosing to become Dr. Mike's patient, how he has made your health and quality of life better, and why you feel this trial is ludicrous and frivolous," the letter states.
The letter is signed by 14 of "Dr. Mike's grateful employees" at Women's Care Center, including Guiler's wife, Sherry. The center is a defendant in the lawsuit. * * *
Judge to sanction doctor for letters
LAWYERS CALL THEM ATTEMPT TO TAINT MALPRACTICE JURY
Dr. J. Michael Guiler has been accused of removing healthy uteri unnecessarily. 2003 file photo by Frank Anderson | StaffA Fayette judge said she will sanction a Lexington obstetrician and gynecologist, accused of performing unnecessary hysterectomies, over concerns by lawyers suing the doctor. The lawyers say that the physician's wife and employees attempted to taint potential jurors in a malpractice trial that was scheduled to start this week.
A lawsuit by five women accuses Dr. J. Michael Guiler of unnecessarily removing healthy uteri. Guiler has previously been in the national spotlight because of other lawsuits filed in 2003 alleging he had branded "UK" -- for University of Kentucky, his alma mater -- on uteri before he removed them.
Giuliani v. Guiler
951 S.W.2d 318
Ky.,1997.
This appeal is from a decision of the Court of Appeals which affirmed the circuit court judgment denying the four minor children of Mary K. Giuliani, deceased, who died during childbirth, a claim for loss of parental consortium for the loss of love, affection, guidance, care, comfort and protection of their mother.
The question presented is whether this Court should overrule previous decisions of this Court and recognize the right of a minor child for the loss of parental consortium.
Mary K. Giuliani, age 33, died during the birth of her fourth child. Her other children were 9, 7 and 3 years of age respectively. Their father filed a claim for wrongful death as administrator, his own claim for loss of consortium and a claim for loss of consortium as next friend for each of the four minor children. The principal wrongful death case is still in the discovery stage at the circuit court level. The trial judge dismissed the claim for loss of consortium of the three minor children in a one-page partial summary judgment. The Court of Appeals affirmed the dismissal but invited this Court to revisit the question of parental consortium. Both the circuit court and the Court of Appeals indicated a constraint on them as a result of the case of Brooks v. Burkeen, Ky., 549 S.W.2d 91 (1977). Later, Adams v. Miller, Ky., 908 S.W.2d 112 (1995), also refused to recognize such a claim on the basis that no other legislature or court had done so. The Court of Appeals stated in its opinion denying the claim that “We can only encourage our Supreme Court to revisit this issue in the light of modern developments in this area of the law.” This Court accepted discretionary review.
Dr. Guiler was the obstetrician but was not present at the time of delivery. He instructed the nurses at the hospital to induce labor. After seeing Mary at 6 p.m., the doctor decided he was not needed and left for dinner at the home of a friend. The record indicates that the nurses apparently became more concerned about the situation and unsuccessfully attempted to reach the doctor by numerous calls. Ultimately, Dr. Bennett, an anesthesiologist, an obstetric resident and members of the CODE team, none of whom were familiar with the case, attempted to aid the mother. The mother suffered a cardiac and respiratory collapse shortly after the child's birth and died.
Kentucky currently recognizes loss of consortium claims between husband and wife and the claim of a parent for the loss of the child's affection and companionship upon the death of a child. The question presented here is whether this Court should now recognize a child's loss of parental consortium as well. The Giuliani children through counsel argue that the loss of the parent's love and affection is devastating to any child. Children should be able to bring a loss of consortium claim to recover from the wrongdoer whose negligent acts have caused the harm. Such a cause of action does not currently exist in Kentucky but it should. The loss of consortium is a judge-made common law doctrine which this Court has the power and duty to modify and conform to the changing conditions of our society. When the common law is out of step with the times, this Court has a responsibility to change that law. Development of the common law is a judicial function and should not be confused with the expression of public policy by the legislature.
* * * *
It is the holding of this Court that Kentucky recognizes the claim of minor children for loss of parental consortium. The proof of such loss and the necessary proof of monetary loss resulting therefrom are factors to be considered by the trier of fact separate from any wrongful death claim pursued under the wrongful death statute. A claim for loss of parental consortium arises from a recognition of the common law as distinguished from statutory law.
Federal District Court Judge Joseph Hood dismisses several part of the lawsuit by Michael Duncan against Fletcher administration over his claim of a politically motivated firing.
The claims against the governor were dismissed based upon the defense of executive immunity for his official acts. However, the Plaintiff’s freedom of speech and freedom of association claims can continue to go forward. To that extent, Plaintiff will be seeking to depose the governor as a witness.
Here is the Court's analysis of the executive immunity defense pled by the governor's lawyers:
Governor Fletcher - Executive Immunity
Governor Fletcher argues that he is entitled to executive immunity from Plaintiff’s state law claims. Citing Baker v. Fletcher, 204 S.W.3d 589 (Ky. 2005), Governor Fletcher states that Kentucky’s highest court has recently indicated that the Governor of the Commonwealth holds the same absolute executive immunity for official acts as did the President in Nixon v. Fitzgerald, 457 U.S.
731 (1982).In Baker, Kentucky’s high court briefly re-visited its opinion in Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001) which favorably cited Nixon v. Fitzgerald for the proposition that “a chief executive enjoys absolute immunity for official acts taken while in office.” Baker, 204 S.W.3d at 595 n.16. To the extent that Governor Fletcher was involved in any decision regarding the termination of Plaintiff’s employment, such a decision would have been an official act; therefore, Governor Fletcher is entitled to executive immunity for such acts.
Plaintiff also seeks monetary relief against Fletcher in his individual capacity for allegedly defamatory statements regarding the termination of Plaintiff’s public employment which were made by Governor Fletcher on The Dave Baker Show. While Plaintiff disputes Fletcher’s argument that the comments were official actions for which Fletcher should be granted immunity, the Court finds otherwise. Governor Fletcher was acting in his official capacity when discussing Plaintiff’s termination, which was, and continues to be, a matter of public interest; therefore, Governor Fletcher is entitled to executive immunity against Plaintiff’s state law claims of defamation and false light. Accordingly, Governor Fletcher’s motion for summary judgment is granted as to Plaintiff’s defamation and false light claims.
Case 3:06-cv-00034-JMH Document 66 Filed 08/31/2007 Page 18 of 19
Click here for Judge Hood's ORDER.
Story from wave3: Judge allows case against Fletcher administration to go forward.
Story from Herald Leader:
A U.S. District Court judge ruled Friday that portions of a federal lawsuit against Gov. Ernie Fletcher and members of his administration can go forward.Though Judge Joseph M. Hood dismissed several parts of the lawsuit filed by Transportation Cabinet member Michael Duncan, Hood said there is an issue over whether Duncan's right to free speech and freedom of association were violated.
Duncan claims he was illegally fired because he supported Democrat Ben Chandler in the 2003 gubernatorial election.
Though Hood said there is "scant" evidence that Duncan was fired for supporting Chandler, "there is sufficient evidence to create genuine issue of material fact regarding the reason for Plaintiff's termination," Hood wrote in his 19-page ORDER.
Courier-Journal story by Andrew Wolfson reports on legal malpractice verdict in case tried in Jefferson Circuit Court in front of Judge Martin McDonald. Jury awarded $5 million in compensatory and punitive damages to Middlesboro woman against local attorney Steven Keeney. Lee Sitlinger represented Brenda Osborne. Mathew Breetz represented the attorney sued, Steven Keeney. Click on heading or entire story.
A Jefferson Circuit Court jury yesterday walloped Louisville lawyer Steven Keeney with a $5 million verdict after finding he bungled a lawsuit filed by a Kentucky woman who lost her home and possessions in a small-plane crash.
Sunday's Courier-Journal contains a story by Andrew Wolfson regarding a legal negligence trial in Jefferson County. Plaintiff's lawyer is Lee Sitlinger, and the defendant is being represented by Matthew Breetz.
The 1990s true crime best-seller "Death Benefit" depicts Louisville lawyer Steve Keeney as a heroic figure who exposed what seemed to be an accidental death in California as a murder-for-profit and brought the killer to justice.
Eleven members of the jury, composed of four men and eight women, found that school district officials in the late 1970s and early 1980s ignored allegations Maner was sexually abused by four teachers, a guidance counselor and an assistant principal at Beaumont Junior High School and Lafayette High School.
click on heading for entire story at www.kentucky.com
In another story relating to insurance and satisfaction of the judgment -
The Fayette school district hopes a 1970s-era insurance policy that was in effect at the time of the alleged sexual abuse will cover the $3.7 million verdict in the Carol Lynne Maner case. But district attorneys must review the policy before knowing for sure.
Andrew Wolfson for the Courier Journal reports State settles boxer Page's suit for $1.2 million. The settlement signed this week also calls for new boxing regulations enacted last year to be called the "Greg Page Safety Initiative."
We have just learned that Jack Conway obtained a $232,000.00 verdict in a dental malpractice case in Jefferson Circuit Court (Division 7, Judge Mershon).
The jury announced its verdict on Apr. 20, 2007.
It was a female plaintiff who went to defendant Leslie Davis, DMD for restorative dental implants and received treatment that left implant threads exposed poor fitting crowns, etc. All work had to be re-done by subsequent dentists.
The jury found the dentist negligent, and awarded $32,000 for dental/medical expenses and $200,000 for pain and suffering.
Style of case: Probst v. Davis, No. 05-CI-06230
De facto tort reform or what?
Of course, the real question is why has the Chamber of Commerce and other business and tort reform advocates targeted Kentucky this past year when since 1995 and 120 top ten verdicts nationwide, only ONE (1) came from Kentucky.
Story by Bill Ibbel at Lawyers USA entitled "Top Ten verdicts plummet for second year in a row" notes that "[m]aybe it's just a 24-month coincidence, but for the second year in a row, the nation's largest verdicts to individual plaintiffs have fallen dramatically. This past year's total is one third of the total for the previous year, which was half the total of the year before."
Jason Riley with the Courier Journal posted story on jury verdict against the Louisville and Indiana Railroad Company. Although the net verdict was $8.4 million dollars after reduction for 10 per cent comparative fault, the parties settled the case after the verdict, with the railroad agreeing to pay Baird $7.9 million within 30 days and not appeal the case, according to Joe Satterley, an attorney for Baird.
Jury awards Indiana man in train accident
A Jefferson Circuit Court jury awarded an Indiana man about $8.4 million in damages yesterday after he claimed he was run over by three train cars and lost his left leg as a railroad worker in October 2004
The KTCR 2006 Year in Review is now released
Another year has passed and the one-of-a-kind text Kentucky litigators have relied upon since 1998 is back with its ninth edition. At nearly 600 pages, the KTCR 2006 Year in Review includes the complete verdict summary from every reported case in 2006, statewide from Paducah to Pikeville, Covington to London and all points in between.
Each of the detailed verdict summaries describes the relevant facts, the experts, the arguments and the results. But beyond the verdict reports, the 2006 Book makes the individual verdict reports meaningful. In one source, the reader can learn how frequently plaintiffs win medical verdicts. Then when plaintiffs win, what are the verdict reports. The medical results are also sorted by medicine type. Need cardiology cases. Turn to the Verdict by Case Type summary within the Medical Negligence Report.
What else is included in 2006?
Detailed won-loss percentages for every variety of case with average results by category.
How many were there in 2005? In what sort of cases were they returned? The report also summarizes all 127 million dollar results since 1998.
The Bad Faith Report
Since 1998, Kentucky has featured twenty-six bad faith results. This year’s report summarizes each verdict in detail.
The Products Liability Report Need products liability verdicts? In our nine-year study, the KTCR has chronicled sixty-three such results. The 2006 Book summarizes all the verdicts.
The Medical Negligence Report summarizes six years worth of results. What kinds of cases prevail at trial? Who wins the cases.
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This decision puts a face on tort reform,
While U-Haul described itself as "very disappointed with this verdict," Christopher Burke said, "It's because of the jury system, that nine ordinary people can see through what goes on, to give some justice to injured people."
Here is a link to the courier journal story:
$10.4 million awarded in crash [ Courier Journal]
Christopher and Corry Burke and their infant son, Ryan, were driving through Kentucky in 2002 on their way from their old life in Indianapolis to a new life in Florida, when life as they knew it came to a sudden, horrible end.
The car they were towing with their Ford Explorer began to fishtail. Then the combination of cars jackknifed, and bounced into and over a guardrail -- injuring all three; Corry Burke, then 25, most seriously so, with a crushing injury to her lower spine. Today, she is a paraplegic.Now a jury in U.S. District Court in Louisville has said that a substantial cause of that accident was a U-Haul towing device, known as a tow dolly, that the Burkes had rented in Indianapolis.
The jury awarded the Burkes $10.4 million.
Christopher Burke, a 54-year-old JetBlue pilot, reached by phone at his home in Hobe Sound, Fla., declined to discuss details of the accident and the case, but did say that "it's been a long 41/2 years of pain, struggle and horror."
"Life before (such an accident) is when you have unlimited possibilities, that you can achieve your dreams … to the extent of your imagination and drive to accomplish. After that day, your life is a life of limitations, daily frustration and pain," he said.
U-Haul International Inc., in a statement, and its Louisville lawyer, Charles S. Cassis, defended the safety of the dolly, which has undergone no changes in its design or use because of the case.
"It was state of the art, and it was our position that it was properly designed, manufactured and sold," and "absolutely" remains a safe product, Cassis said.
The company's statement said it "will vigorously defend this case through the appeals process." * * *
While U-Haul described itself as "very disappointed with this verdict," Christopher Burke said, "It's because of the jury system, that nine ordinary people can see through what goes on, to give some justice to injured people."
A federal jury awarded three plaintiffs (Chris, Corry and Ryan Burke) over $11.6 million in damages in a towing accident against U-Haul for its negligence and an unreasonably dangerous tow dolly.
The tow-dolly that the Burke's rented from U-Haul to pull their car began to fishtail and caused a wreck in which the Burke's vehicle flipped over the guardrail. Injuries included the driver's wife's spine being crushed and his son sustaining a skull fracture.
Representing the plaintiffs were Lexington attorney Pete Perlman and Louisville attorney Tyler Thompson.
Defendant U-Haul was represented by out-of-state attorneys who conducted the principal defense, and local counsel included lawyer, Charles S. Cassis with Frost Brown Todd.
The case was tried in federal court in Louisville beginning on Jan.29th and the jury returned a verdict on February 13th for $11.6 million and allocated fault 90 percent to U-Haul. The damage award was reduced 10 percent due to some of the fault being allocated to the Burkes over seat belt issues.
The case involved a 1993 Ford Explorer towing a Ford Contour on a rented U-Haul tow dolly. The towing combination swayed and jackknifed forcing the Explorer to strike and roll over a guardrail. The passenger’s wife was in the rear seat, and sustained a crushing injury to her spine and paralysis.
Plaintiffs claimed U-Haul initially placed its tow dollies on the market in 1982 and required that the towing vehicle weigh at least twice as much as the vehicle in tow plus the tow dolly. In addition, sport utility vehicles or SUVs were prohibited. Over the years, U-Haul made some changes in its rental policy which increased its rental market by cutting back on the weight ratio and the SUV prohibition.
In 1998, the current tow dolly model was placed on the market, and there was a 1 to 1 weight ratio and SUVs were permitted.
At trial, U-Haul defended claiming the fishtailing and loss of control were the result of excessive steering by the driver of the Explorer and offered expert and scientific evidence in support of this contention. Eyewitness testimony, however, refuted those conclusions and the fishtailing occurred first.
The jury found that U-Haul had failed to exercise ordinary care and the tow dolly was an unreasonably dangerous product placing 90 % of the fault for causing this accidnet on U-Haul.
Ten percent of the fault was placed on the driver Chris Burke and the passenger Corry Burke regarding the driver's failure to ensure that his passengers were wearing seatbelts.
Corry Burke, the wife of Chris Burke, was awarded:
Chris Burke, the driver, was awarded the following damages from the accident:
Ryan Burke who sustaned a skull fracture was awarded:
Today's WAVE3 on-line news reported on Jefferson Circuit Court Judge Geoffrey Morris granting a new trial after it was discovered that one of the jurors had been consuming vodka from that water bottle rather than water. Although the jury had found 9-3 for the plaintiff and awarded the plaintiff damages (subject to comparative fault), Judge Morris granted a new trial anyway.
This was the correct decision. The insurance defense lawyer apparently was relying on, among other arguments, two nearly 100-year-old decisions in support of his objection to the new trial as a little nip was not a problem back then, but plaintiff's lawyer also remarked that in one of those very old cases that the tenor of the times even permitted the lawyers to sip a little drink with those same jurors.
Times have changed, and if the right to a jury trial is to be preserved as an inalienable right, then it must be treated with the utmost respect. Again, Judge Morris did the right thing. If this is appealed, I would appreciate someone sharing the word as the standard for denying a motion for new trial is "abuse of discretion."
Here is a link to the story:
Even though Kentucky's high court ruled 100 years that it's OK for jurors to have a drink while they make up their minds about a case, a Jefferson County judge has ordered a new trial in a case in which one juror sipped vodka throughout the trial.
This juror wasn't tipsy. She was trashed. Falling down-stinking-can't talk-drunk.
Mathew Heller who wrote the post at ONPOINT LEGAL NEWS noted thatThe decision is consistent with other precedent. “The fact that a juror drank intoxicating beverages during a trial or deliberation of a verdict is not grounds for a new trial unless the beverages were consumed in such quantities or at such time to incapacitate the juror from performing his duties,” the Alabama Supreme Court ruled in Alabama Power Co. v. Henderson, 342 So. 2d 323 (1976).
U.S. Supreme Court Justice Thurgood Marshall also once wrote that the “general effect” of an intoxicated juror “would not be conducive to the careful and objective deliberations upon which our criminal justice system relies.” McIlwain v. U.S., 464 U.S. 972 (1983)
Jason Riley's story in the Courier-Journal this past Sunday entitled 'Slip-and-fall' trials becoming fewer addressed statistically what most of us trial lawyers already knew anecdotally - fewer cases are being tried today than a decade ago; and in the case of this story fewer cases involving business premises liability.
However, I would caution drawing any conclusions beyond that statistical fact alone because sometimes a cigar is simply a cigar with no deeper Freudian connotations or oblique conclusions on cause and effect. Most experienced lawyers know the basic truth of the tendency for good cases to settle, weak cases to be tried and those in the middle mediated.
So to conclude anything from the simple number of jury trials in the absence of total "slip and falls" suits filed compared with jury trials and alternate dispute resolutions (mediation, arbitration) is incomplete. Remember, Benjamin Disraeli once said, "There are three kinds of lies: lies, damned lies, and statistics. " Watch out for those statistics.
When it comes to cases described as "slip and fall" (or premises liability), the hard statistics reveal fewer trials today than a decade ago. This is consistent with a general trend already noted regarding fewer cases all-around being tried now.
What conclusions should NOT be drawn from the fact of fewer jury trials?
It just means fewer slip and fall cases are being tried. That's all.
More importantly, this 10 year trend of statistics does not mean the value of a slip and fall case is less today than yesterday. The value of a case is dependent upon the nature of the injuries and the extent of the damages sustained. The value of a case is not dependent so much on "how" the injury occurred. Look at the "what" and not the "how." Of course, sometimes the "why" may increase the value when drinking is involved and punitive damages are involved.
For example, a car accident case involving a herniated disc and resultant fusion of a young wage earner with an 8 percent impairment rating and no longer able to perform his former job is probably worth more (a lot more) than the car accident case in which there are no permenent injuries, wage loss, medical bills, or impairment. This is so in spite of the fact that both injuries were sustained in a "car accident". The value of a case typically follows the injuries and the hard numbers that can be put on the blackboard in front of a jury.
For these reasons, the injury "multiplier" and the impairment "index" from the Kentucky Trial Court Year In Reviews are probably much more useful in your case analysis than number of jury trials and an occasional verdict. The injury multiplier is based upon pain and suffering verdicts for specific injuries for the year and a cumulative multiplier including all of the prior years. It's not scientific but when you have certain injuries with a statistically high and signicant amount of cases to even out the aberrant data, then your have a starting point for which to look at your case.
Lawreader has already ventured a guess on the values of these verdicts and their causes in What is a Slip and Fall Case Worth? Lanier decision appears to have increased the value by 25%.
However, I do not reach that same conclusion that the verdicts have increased (based upon just two jury verdicts!) or that the cause stems from Lanier v. Wal-Mart (link to actual decision not included as AOC Site case search engine was 'down').
All Lanier did was shift the burden in retail store trip and fall cases to the defendant to prove that the tripping object (oil on the floor or other hazard) had not been present for a sufficient period for it to have discovered and removed. Prior to Lanier, the store owner could escape responsibility for hazards on the premises by making the plaintiff prove it had caused by the store or that the hazard had been present long enough that the store should have known about it and cleaned up the mess. Of course, this was oft-times nearly impossible to meet when you had to figure out the how and when of the spill which was probably cleaned up immediately after the accident by store employees with no independent witness and no documentation or pictures. With Lanier, the store has a reason to find out the why, what, and how of the fall.
I apologize to those who practice injury law who might say these conclusions are self-evidence and not the product of any in-depth analysis. And they would be correct in drawing that conclusion from my remarks. But when these conclusions and numbers become the core product of a news story which is read by the public as possible unalterable truths, then we have a potential problem since this is the public and citizenry that will sit as future jurors.
Does anyone recall the ill-fated defense motion a few months ago involving an insurance defense lawyer representing CSX who sought a mistrial based upon remarks made by a claimant's lawyer to a reporter which were published later (the motion was not granted however!)? However, once the bell has been rung with the earlier remarks found in the Courier-Journal story, then we have an obligation to "unring" it the best way we can.
This blending and sharing of liability concepts, insurance, damage values, and trials from one year to the next obscures the trials of today and taint the jurors of tomorrow. Each case is to be decided upon the facts of that case.
I drew the following conclusions from the statistical facts contained over the years in Shannon Ragland's Kentucky Trial Court Review.
Oh yeah, here is a link to the Courier-Journal story:
In January 1996, Anthony Juckett was shopping at the Hopkinsville Wal-Mart when he slipped on some cookie crumbs and fell, tearing ligaments in his knee. The result was a $264,000 jury verdict in Juckett's favor five years later.
Jury sets $1.7 million for London couple [Herald Leader]A Fayette jury awarded more than $1.7 million yesterday in the case of a London woman who sued Central Baptist Hospital, saying a sponge was left inside her body after surgery.
UPDATE: A Northern Kentucky jury returned a defense verdict in a case against a local hospital and doctor for negligence. Plaintiff's lawyer Geoffrey Fieger was seeking $120 million, and the defendants represented by David Kramer were found in a 9-3 vote that the hospital and doctor were not negligent.
Doctor, hospital cleared by jury
By Paul A. Long
Post staff reporter
A Kenton County jury on Wednesday ruled in favor of a Cincinnati doctor and St. Elizabeth Medical Center, finding they acted properly during the birth of an Independence girl.
The child, now 8, suffered severe injuries when she was deprived of oxygen when her mother's placenta broke off from her uterine wall. The family had sought more than $120 million in damages - one of the largest amounts ever asked for in a Northern Kentucky malpractice case - from the doctor and hospital, including $75 million for pain and suffering.
But after deliberating all day Wednesday, jurors voted 9-3 in favor of the hospital and Dr. Jerald Furer.
"This was a tragic case," said David Kramer, the attorney for St. Elizabeth.
During closing arguments Tuesday, Kramer said the hospital and its nurses did everything they could for Candice Emro during her birth on Sept. 12, 1998. He said her injuries were caused by a "sudden, massive, total placenta abruption" that was both rare and unpredictable.
"I compliment the jury for their long service," Kramer said. "They listened attentively. They got it. They understood the medicals."
A key issue in the case was whether the fetal monitor detected abnormalities in the heart rate of the fetus, and whether the changes in the heart rate were normal or a sign of major problems. A second issue was whether Furer and the hospital nurses provided the "standard of care" required of them.
Jurors began deliberating at 9:30 a.m. Wednesday, and by 4:30, it seemed like they would go well into the night. They sent Kenton Circuit Judge Patricia Summe a question, asking her to define "prudent" as used in their instruction. The word is significant in determining if the nurses and doctor were at fault. But after consulting with attorneys, Summe told jurors to give the word its ordinary meaning.
Case against Allstate won't be class action
Big win for insurer, but woes not over
By Brandon Ortiz
HERALD-LEADER STAFF WRITER