Kentucky Court of Appeals
Dram Shop Liability - Effect of Release of Tortfeasor
Butt v. Independence Club Venture, Ltd., ___ S.W.3d ___, 2014 WL 7204395 (Ky.App. December 19, 2014)

Plaintiffs (or their decedents) were passengers in an automobile being driven by Nathan King while intoxicated. Plaintiffs settled with King, and the release specifically reserved any claims the Plaintiffs may have had against any purveyor of alcohol. The release also provided King with a hold harmless agreement should any claims be asserted against him. A suit was then filed against a bar alleging liability under KRS 413.241. In DeStock #14 v. Logsdon, 993 S.W.2d 952 (Ky. 1999), the Court held that the liability of the intoxicated tortfeasor is primary and that the seller of the alcohol was entitled to indemnity. Accordingly, if the plaintiffs demonstrated liability on the part of the seller, the seller would be entitled to indemnity from King, and the plaintiffs would have to reimburse King. While it is not strictly saying correct to say there is no cause of action against the seller, it is correct to say that plaintiffs had no right to collect additional funds.

Kentucky Supreme Court
Causation - Substantial Factor
Branham v. Rock, ___ S.W.3d ___, 2014 WL 7240141 (Ky. December 18, 2014)

This is a medical malpractice case involving an emergency room misdiagnosis. The decedent was sent home where she dies of an aortic rupture. The trial Court gave a jury instruction requiring the jury to find that the negligence was a substantial factor in causing the death. The estate argued that it was entitled to a jury instruction requiring only that the negligence be a substantial factor in causing the misdiagnosis. The argument was predicated on Deutsch v. Shein, 597 S.W.2d 141 (Ky. 1980). But in Miller v. Marymount Medical Center, 125 S.W.3d 274(Ky. 2004), the Court limited the Deutsch to cases where there was a claim of a superseding cause and the trial Court had ruled that the intervening cause was not superseding. Accordingly, the Court held that the instruction given was appropriate.

Kentucky Supreme Court
Professional Liability - Admissibility of Prior Licensure Issues
Branham v. Rock, ___ S.W.3d ___, 2014 WL 7240141 (Ky. December 18, 2014)

Ms. Branham was a passenger in an automobile accident and was airlifted to the University of Kentucky Medical Center due to concerns of potential internal bleeding. She was seen by Dr. Rock, an emergency room physician, and Dr. Britt, an emergency room resident. Ms. Branham was released with instructions to follow up with her primary, and she subsequently died because of a ruptured aorta. A jury found against the estate and the estate appealed.

Dr. Rock had been investigated by the Kentucky Board of Medical Licensure for allegedly prescribing medications to a non-patient. An agreed order was entered. Dr. Rock was less than forthright about the details in his discovery deposition. The trial Court excluded this evidence, and the Supreme Court agreed that the exclusion was within the trial Court's discretion. The foundation for its analysis was its recent holding in Trover v. Estate of Burton, 423 S.W.3d 165 (Ky. 2014)(discussion). The estate argued that the evidence should have been admitted because 1) Dr. Rock was identified as an expert witness and the evidence went to his credibility and knowledge and 2) the evidence went to Dr. Rock's knowledge of the standard of care.

In discovery, Dr. Rock identified himself as an expert witness, and Branham argued that this rendered his knowledge of the standard of care material and that his licensure issues were relevant to his credibility as an expert. The Court held that it didn't matter how he was identified, because he did not testify primarily as an expert witness. He did testify as to his role as supervising physician, the signs and symptoms of an aortic injury, the course of treatment provided to the patient and the reasons they provided it. The Court focused on the fact that he did not testify as to the appropriate standard of care or refer to outside sources to support his treatment choices. It seems that there is a fine line between describing the reasons for the treatment and discussing the standard of care, and it may be in this regard that the Court uses the word primarily so frequently. This may make it harder for a plaintiff attorney to goad a defendant professional into being treated as an expert, but clearly defense counsel with a client having such a history as to make sure the client is prepared to avoid becoming an expert.

Branham also argued that the licensure problems tended to show that Dr. Rock lacked the necessary medical knowledge to understand and follow the standard of care. This argument was rejected because the alleged licensure problems were not connected to the alleged negligence in the case. The opinion could be read to suggest that such a connection might support admissibility, but this view is undercut by the Court's observation that the objective standard of care requires compliance not understanding.

Kentucky Supreme Court
Defamation - Qualified Privilege
Toler v. Sud-Cheme, Inc., ___ S.W.3d ___, 2014 WL 7238202 (Ky. December 18, 2014)

Toler was a supervisory employee accused of making racist comments at work. After an investigation including obtaining statements from the accuser employees, Toler was terminated. He filed this suit against the employer and accusing employees for defamation. The trial Court granted a directed verdict for the employer and one co-worker based on qualified privilege, and the jury found for the remaining co-workers on the ground that the statements were true or made without malice. The Court of Appeals reversed the grant of a directed verdict, essentially holding that a prima facie case of defamation will create an issue as to the qualified privilege. In actuality, the Court of Appeals held that the proof of falsity required as an essential element also creates an issue as malice.

The Court favors the bar with a brief discussion of the law of defamation generally, it may be more misleading than helpful (eg there is no such thing as defamation per se). The point of the opinion, however, is that falsity does not equal malice in all cases where a qualified privilege is concerned. In this regard, the Court referred favorably to the Court of Appeals opinion in Harstad v. Whiteman, 338 S.W.3d 804 (Ky.App. 2011)(discussion). In order to overcome the privilege, the plaintiff must demonstrate that the defendant knew he was lying or made wholly false statements without regard for their truth.

Kentucky Supreme Court
Employment - Policemen's Bill of Rights
Pearce v. University of Louisville, ___ S.W.3d ___, 2014 WL 7226137 (Ky. December 18, 2014)

In 1980, the General Assembly enacted what is commonly referred to as the Policemen's Bill of Rights. KRS 15.520. It is through this legislation that police officers are granted various procedural rights to protect them against the political and other whims of mayors and other leaders. Many cities have taken the position that the rights granted apply only to citizen complaints, and for thirty five years they have routinely circumvented those rights be only charging officers with complaints signed by the chief of police or other officer, even if based on a citizen complaint. This decision brings this abuse to a long awaited end. Police officers will henceforth be protected by the procedural rights long intended for them regardless of the genesis of the complaint or the classification of the person signing the formal complaint.

Kentucky Supreme Court
Employment - Health Care Whistleblower - Damages
In re: MacGlashan v. ABS Lincs Ky, Inc., ___ S.W.3d ___, 2014 WL 7238955 (Ky. December 18, 2014)

This opinion is the answer to a question certified by a United States District Court. That case was brought pursuant to KRS 21B.165 and the question presented was whether front pay could be recovered under that statute. The Court held that front pay could be recovered.