Kentucky Supreme Court
Experts - Daubert
Oliphant v. Ries, ___ S.W.3d ___, 2015 WL 737392 (Ky. February 19, 2015)

In this medical malpractice case, a central issue was whether the maternity patient's blood loss occurred before or after admission to the hospital. The defense offered expert testimony from Dr. Goldsmith, who said he could calculate the rate of blood loss, and that based on his calculations the significant blood loss occurred at home. The trial Court did not conduct an actual Daubert hearing. Goldsmith's opinion was based on a mathematical formula based on 1) the total blood volume, 2) hematocrit level and 3) the rate of equilibrium of a human fetus in utero. The plaintiff challenged his opinion on the ground that Goldsmith used the equilibrium rate for an adult or child human, as opposed to a fetus in utero. The Court of Appeals reversed but the Supreme Court upheld the admission of the expert testimony.

In general, the Court has identified four factors to be considered in determining scientific reliability, which are as follows:

(1) whether the theory or technique can be and has been tested;

(2) whether the theory or technique has been subjected to peer review and publication;

(3) the known or potential rate of error in using a particular scientific technique and the existence and maintenance of standards controlling the technique's operation; and

(4) whether the theory or technique has been generally accepted in the particular field.

Dr. Goldman's extrapolation of data involving human adults and children to a fetus could not meet this test. The Court emphasized that testing in humans was not possible. In this situation, the Court noted that the Court should determine whether the theory is otherwise supported by the evidence. First, the Court noted that there were articles dealing with the equilibrium rate with sheep fetuses. Apparently no expert established that these studies translated into evidence that would be applicable to a human fetus, but the Court said the court could read the articles to see if they supported Dr. Goldsmith's theory. Other than that, the Court just gave reasons why the theory should not be automatically excluded. Just because the theory is an extrapolation it should not be automatically excluded. Other experts disagree, but that should not automatically exclude the theory. None of this explains how the theory is scientifically reliable. One can read the entire opinion and have no idea whether the extrapolation of adult and child data to fetuses is appropriate or just the expert's ipse dixit. It seems clear that the Court didn't know, and there is no way the jury would have known. If the point is to limit trial to provable fact this evidence should have been excluded. It does seem clear that the reliability of this theory was not critical to the result, so the only harm done is to open the door a little wider for the transfer of wealth by judicial fiat to be based on bought and paid for junk science.

Kentucky Supreme Court
Employment - Public Employee Whistleblower
Pennyrile Allied Community Services, Inc. v. Rogers, ___ S.W.3d ___, 2015 WL 736827 (Ky. February 19, 2015)

The plaintiff was an employee of the defendant, Pennyrile Allied Community Services, Inc., as a consumer educator coordinator. She claimed that she was terminated in retaliation for her having "reported" a crime to the local sheriff. The crime was that her supervisor visited her house to make sure she was doing her job, and in doing this apparently came upon her property. She also claimed that she mentioned this conduct to the supervisor at a staff meeting and threatened her supervisor with legal action if he did it again. The trial Court dismissed the claim because the "report" did not involve a matter of public concern. The Court of Appeals reversed, finding that there was no requirement in the statute that such a report be of public concern. The Supreme Court agreed with this finding, based simply on the absence of such an express requirement in the statute. KRS 61.102(1). The Court could have found intent in the phrase "mismanagement, waste, fraud, abuse of authority, or a substantial and specific danger to public health or safety", but instead allowed a claim as to any violation of law.

The Court nonetheless reversed the Court of Appeals on the ground that the employee's conduct did not amount to a report or disclosure. While the employee discussed the issue with the sheriff, the discussion was actually a request for legal advice. The Court further found that the staff meeting comments were not a report for two reasons. To the extent the comments were addressed to the supervisor they could not be a disclosure since he was already aware of the conduct. As to others in the meeting, there was no one at the meeting that had the authority to do something about it.

Kentucky Court of Appeals
Professional Liability - Medical - Informed Consent
Horsley v. Smith, ___ S.W.3d ___, 2015 WL 602813 (Ky.App. February 13, 2015), motion for discretionary review filed May 8, 2015 (2015-SC-232-D)

Horsley was scheduled for cataract surgery to be performed by Dr. Smith. The procedure included a local anesthetic to the eye by injection. Among other things, Dr. Smith explained that a risk of the injection was that a blood vessel could be hit. Horsley signed a consent form which stated that loss of vision was a risk of the surgery and mentioned that anesthesia could be administered by injection or by drops. Surgery on the right eye was successful and without incident. Horsley was not so lucky when the procedure was repeated on the left eye, as a blood vessel was hit and he lost vision in that eye. Horsley filed suit claiming negligence in the performance of the surgery and lack of informed consent based on his failure to explain that there was an alternative to injection. A jury found for Dr. Smith. Horsley appealed asserting that he was entitled to a separate instruction on informed consent. The Court held that a single ordinary care instruction covered both theories.

Kentucky Court of Appeals
Limitations - Death - Special Rule for Murder
Flick v. Estate of Wittich, ___ S.W.3d ___, 2015 WL 495537 (Ky.App. February 6, 2015), motion for discretionary review filed March 9, 2015 (2015-SC-114-D)

Flick shot and killed the decedent on May 20, 2005. The personal representatives were appointed on November 16, 2006. The wrongful death action was filed on August 22, 2008. The limitations period as defined by KRS 413.180 would have expired on November 16, 2007, well before the filing of the suit. However, the estate sought relief from the limitations based on Digiuro v. Ragland, 2004 WL 1416360 (Ky.App.2004). In that case, the murder was unsolved for a lengthy period of time, and a split panel crafted a special rule that began the limitation period upon conviction. The Supreme Court ordered the opinion depublished. This panel suggested that the time might instead be indictment or arrest, but in any event the rule did not apply because the identity of the murdered was almost immediately known.