SCOKY speaks - April - Part II

 Three civil appeals rendered April 17, 2014

Linden v. Griffen, 2011-SC-000422-DG, April 17, 2014

Court of Appeals     2009-CA-000970-MR Unpublished
                                  2009-CA-001917-MR

Arbitration and appeal

Business members of a LLC had a falling out over management and various symptoms of mutual back-stabbing erupted, resulting in litigation alleging fraud, defamation, abuse of process, breach of fiduciary duties, Blue Sky violations, mutual mistake, and/or unilateral mistake coupled with fraud in the inducement. A written agreement provided for arbitration and the Circuit Court stayed the proceeding, except for the claims of defamation and abuse of process, and compelled arbitration on the other issues. Defendants appealed the portion of the stay order that denied arbitration to some issues, under KRS 417.220(1)(a). After the Defendant's notice of appeal was filed, the Circuit Court amend the arbitration order by adding a CR 54.02 certificate of finality, whereupon Plaintiff appealed the grant of arbitration.

Although the arbitration agreement itself was inserted in an amended member agreement the validity of which Plaintiff contested, it was not an issue on appeal. Kentucky law makes if fairly clear that contesting the validity of an arbitration agreement is not a sure-fire way to avoid arbitration. The trial court is authorized to make short work of the issue. Presumably, and I'm just guessing, the validity of the arbitration agreement can be contested in the arbitration itself.

"If the party disputes the existence of said arbitration agreement, the Court may render summary findings on that issue. If an agreement is found to exist, the Court then shall order the parties to arbitrate." Fayette County Farm Bureau v. Martin, 758 S.W.2d 713, 713-14 (Ky.App. 1988)

KRS 417.220(1)(a) allows immediate appeal only for the denial of a motion to compel arbitration, but not for an order that grants compelling arbitration. The Supreme Court held that the Circuit Court lacked jurisdiction to am mend the arbitration order after a notice of appeal had been filed and, anyway, in Commonwealth ex rel. Stumbo v. Philip Morris, USA, 244 S.W.3d 116, 120 (Ky. App. 2007), the Court of Appeals ruled that an interlocutory order compelling arbitration is not certifiable under Civil Rule 54.02.

The court then carefully examine the parties' written agreement to see if it contained any indication the defamation and abuse of process claims should also have been subject to arbitration.

Held: "[W]e agree with the trial court and the Court of Appeals that [Plaintiff's] defamation and abuse of process claims fall outside the scope of the parties' agreement to arbitrate."

"Arbitration is simply a matter of contract between the parties; it is a way to resolve those disputes—but only those disputes—that the parties have agreed to submit to arbitration."

"Any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration."

- ooOoo -

Marson v. Thompson, 438 SW 3d 292 (Ky. 2014)

Court of Appeals 2010-CA-002319-MR Unpublished


Qualified immunity for government employees - ministerial duty vs. discretionary duty

This case involved a accidental personal injury to a twelve year-old middle school student. The student fell off of an improperly extended bleacher in the school gym during normal school hours and routine daily activity. The defendants were sued individually for negligence. The defendants claimed a qualified immunity, which was denied by the Circuit Court and affirmed by the Court of Appeals.

Although the task of extending the bleachers properly was routine and ministerial, and thus as such not a task qualifying for individual immunity, the question remained which of the school's employees had been assigned this ministerial duty. The Supreme Court's analysis of the facts indicated that none of the named defendants had the primary duty of properly extending the bleachers. That job routinely had been assigned to the school's custodial staff, who were not named as defendants. The court determined that two of the three defendants had general supervisory discretionary duties regarding the bleachers and this brought them within the qualified immunity. The remaining defendant had a more direct supervisory duty, of actually entering the gym for a safety inspection, which was ministerial in nature. For this defendant,the qualified immunity did not apply,

Justice Noble's scholarly opinion is quite well written and I will not attempt to summarize her excellent analysis. It is worth reading in its entirety.

- ooOoo -

Fraser v. Miller, 2012-SC-000829-DG, April 17, 2014

COA     2011-CA-000884-MR Published
              2011-CA-000905-MR
Google Scholar Link to COA opinion


Medical ma;practice - Rebuttal and Informed consent


A jury trial for medical negligence ended with a verdict in favor of the defendant. On appeal, Plaintiff argued that the trial court abused its discretion by not allowing him to present expert testimony in rebuttal to respond to a juror's question, and that the trial court committed reversible error by ruling that Plaintiff was not entitled to present to the jury his claim for failure to obtain informed consent on the basis that such claims only arise out of surgical procedures.

The sixteen year-old plaintiff was diagnosed by Defendant as suffering with gastritis. Plaintiff's symptoms of nausea, vomiting and headache were treated by, among other things, an injection of a non-steroidal anti-inflammatory. Plaintiff's symptoms had not abated by the next day when he returned to the same immediate care clinic where he was seen by a different doctor who referred Plaintiff to the emergency room. Ultimately Plaintiff was diagnosed with pancreatitis and cortical necrosis, an irreversible form of kidney failure. Plaintiff claimed that the cortical necrosis was caused by the injected anti-inflammatory prescribed by Defendant. It is not clear if Defendant personally administered the injection.

A day after Plaintiff's medical expert testified during Plaintiffs case in chief and then left town, a juror approached the bench with a question. Plaintiff proposed to depose the medical expert by telephone and present the deposition as rebuttal evidence. The Circuit Court rejected the suggestion and Plaintiff presented the issue on appeal. The court placed the decision within the realm of the trial court's discretion, finding no abuse thereof.

"It is within the sound discretion of the trial court to regulate the order of presentation of proof during a trial."

"The test to determine if the trial court abused its discretion is to ask whether its decision was 'arbitrary, unreasonable, unfair, or unsupported by sound legal principles.' "

"Rebuttal evidence is evidence that 'tends to counteract or overcome the legal effect of the evidence for the other side.' "

"Furthermore, '[r]ebuttal testimony offered by the plaintiff should rebut the testimony brought out by the defendant and should consist of nothing which could have been offered in chief.' "

"To seek answers to questions posed by jurors after a witness has been discharged invites confusion and chaos. Also, while we see value in jurors being allowed to ask questions at trial, such inquiries must be timely. Trial courts allowing such a practice should admonish the jury at the beginning of the trial that any questions for a witness must be posed while the witness is still on the stand."

Plaintiff had made the claim Defendant negligently failed to obtain his informed consent for the use of the non-steroidal anti-inflammatory injection.

"The trial court agreed with Dr. Fraser that Kentucky law does not allow for a separate informed consent claim based on the administration of a therapeutic drug. The trial court also found that Miller had failed to present expert testimony that Dr. Fraser deviated from the standard of care by not obtaining Miller's informed consent. For those reasons, the trial court ruled that Miller could not present to the jury his informed consent claim." The Circuit Court overruled Defendant's motion for a directed verdict on the informed consent claim (?), but Plaintiff failed to tender a proposed jury instruction on the issue.

The Supreme Court stated, "Whether an informed consent claim can be based on the administration of a therapeutic drug is a novel question," but ruled that the issue had not been properly preserved for appeal.

Comment: The standard rubric requiring consent, in general, for medical procedures such as surgery is that any harmful or offensive bodily contact in the absence of consent amounts to a common law battery. KRS 304.40-320 defines what satisfies the giving of informed consent, or, " the claimant's informed consent shall be deemed to have been given," in the enumerated conditions, but it does not inform as to when "informed consent," as opposed to mere consent, is required. The distinction between surgical procedures and therapeutic treatments does not make a lot of sense. Some therapeutic treatments are extremely high risk, and should be undertaken only with a high level of "informed consent." Removing a splinter or lancing a boil involve "touching," with the remote possibility of horrible complications with enough bad luck. The question is not whether the doctor satisfied accepted medical standards for obtaining informed consent, the question is if  the doctor satisfied accepted medical standards for the treatment of gastritis made in ignorance of other underlying complications. If the doctor's ignorance of the other underlying complications was not negligent, then a failure to warn of risks connected to the treatment, or surgery, and the unknown conditions cannot be negligence.

In short, there is a duty to obtain "informed consent" for known risks only if there is a duty to warn of known risks, which can happen only if the risks are known. In my opinion, the focus should shift away from discussing a duty to obtain informed consent as a primary consideration, and to focus instead upon a more meaningful duty to warn. A duty to obtain informed  consent flows from a duty to warn.

SCOKY speaks - April - Part I

The Supreme Court of Kentucky issued twelve published opinions on April 17, and there is a lot of meat on that bone. More meat than I can chew in one meal. This is the first installment.

Three criminal appeals.

Minks v. Commonwealth, 2012-SC-000316-MR, April 17, 2014

Criminal search and seizure - Search warrant probable cause - Judicial ethics & disqualification

1. Held: Judge's participation in probable cause determination to issue search warrant, determination of probable cause and issuance of search warrant does not, per se, disqualify same judge from conducting suppression hearing on evidence discovered upon execution of the search warrant on Due Process fundamental fairness grounds. Abuse of discretion is the standard of review for Circuit Court judge's overruling Defendant's motion to transfer case and refusal to recuse.

Standard of review:

"The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles."

2, The issue of an ethical appearance of impropriety for one judge to determine probable cause for search warrant and also to conduct suppression hearing in the same case is a question of first impression in Kentucky.

Held: "[W]e decline to adopt a rule that any judge must automatically recuse from hearing a challenge to a search warrant which he or she issued. As in other contexts, pursuant to statute and our rules governing judicial ethics, there must be evidence drawing the judge's impartiality into question before an appellate court will find abuse of discretion in the judge's refusal to recuse."

3. Did the affidavit presented support probable cause for the issuance of a search warrant?

a. Appellee's suppression motion did not allege that the deputy who procured the warrant purposefully or recklessly included false statements in, or omitted material facts from, his affidavit. An evidentiary hearing on a motion to suppress may not be necessary when the issue hinges upon only the information contained within the affidavit itself. The fact that the Circuit Court conducted an evidentiary hearing that elicited additional information in support of probable cause, which was not contained within the affidavit, is irrelevant.

"[A]n evidentiary hearing often is not necessary [to rule on a motion to suppress] when a search is based on a warrant, the exception being where the defendant alleges that the issuing judge was presented with an affidavit containing false statements or omitting material facts."

b. The lack of an assertion in the affidavit concerning the reliability of the informants simply factors into the totality of the circumstances assessment. The fact the affidavit in support of search warrant did not contain recitations as to a confidential informant's reliability and basis of knowledge was not conclusive on the question of whether warrant was issued without probable cause.

Note: Well, it seems the defendant did allege the omission of a material fact after all.

"When faced with a motion to suppress, a trial court judge must 'determine whether under the totality of the circumstances presented within the four corners of the affidavit, a warrant-issuing judge had a substantial basis for concluding that probable cause existed.' "

"It is well established that '[s]earch warrants must be supported by probable cause to satisfy the dictates of the Fourth Amendment.' "

"[P]robable cause is a 'practical, commonsense decision' that given all the circumstances set forth in the affidavit" there is 'a fair probability that contraband or evidence of a crime will be found in a particular place.' "

"It is the duty of the judicial officer to issue or deny the warrant based solely on the facts contained within the four corners of the affidavit."

c. That the affiant-officer personally observed marijuana on the premises and included that fact as support for probable cause, in addition to information from a confidential informant, it did not preclude the search for and seizure of methamphetamine production evidence. The search warrant, as requested and as issued, was not limited to a search for any particular controlled substance. 

Standard of review:

"When reviewing a suppression hearing ruling regarding a search pursuant to a warrant, appellate courts must first determine if the facts found by the trial judge are supported by substantial evidence, (in those cases where an evidentiary hearing was necessary) and then determine whether the trial judge correctly held that the issuing judge did or did not have a substantial basis for concluding that probable cause existed."

- ooOoo -

Kavanaugh v. Commonwealth, 2012-SC-000820-DG, April 17, 2014
Court of Appeals: 2012-CA-000185-MR (Unpublished)

Criminal search and seizure - Stop and frisk

During a "Terry" stop and frisk with doubtful justification, the Appellant assaulted the police officer which triggered Appellant's arrest and full search. Crack cocain was located on Appellant's person. Appellant moved to surpress the evidence based upon the illegality of the initial stop and frisk.

Held: "The search of Kavanaugh's person that yielded the cocaine occurred after the arrest, not during the Terry frisk. Therefore, the contraband was obtained from a valid search incident to a valid arrest. . . We conclude that Kavanaugh's assault of Officer Rice constituted an intervening act that purged the taint, if any, that resulted from any detention which may have violated the Fourth Amendment."

Standard of review:

"Our standard of review of the trial court's denial of a suppression motion is twofold. First, the trial court's findings of fact are conclusive if they are supported by substantial evidence; and second, the trial court's legal conclusions are reviewed de novo."

Stop and frisk

"An 'officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond'[cite omitted] Whether a Terry detainee is required, to provide identification to an officer is determined by state law."

"[a] state law requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions . . . in states without such laws, 'a suspect may decline to identify himself without penalty.'"

"[T]he Commonwealth of Kentucky is not a 'stop and identify' jursdiction. Therefore, absent a statute requiring disclosure, Kavanaugh could not have been arrested and prosecuted for failure to provide identification. However, since an officer is constitutionally permitted to request identification, any failure to comply may still be considered along with other sufficient factors demonstrating reasonable suspicion."

"It is well-settled that '[t]here is no right to use self-defense during an arrest.' "

- ooOoo -

Commonwealth v. Goss, 2011-SC-000780-DG, April 17, 2014
COA 2010-CA-000298-MR (Unpublished)


Identity theft - Mutually exclusive crimes - Sufficiency of evidence.

Goss's conviction for identity theft was reversed on two grounds. First, fraudulently obtaining a checking account was combined with fraudulently obtaining credit cards in a single count, and these two aspects were not differentiated in the jury instructions. However, Goss was charged with violating KRS 514.160, identity theft, which specifically excludes credit card fraud.

"Goss, however, cannot be prosecuted for identity theft under KRS 514.160 for obtaining the credit cards because the statute expressly precludes it. The entire statute is subject to KRS 514.160(4), which states: 'This section does not apply to credit or debit card fraud under KRS 434.550 to 434.730.' KRS 434.550 to 434.730 is the Credit and Debit Card Crime Act." 

Second, the evidence was insufficient. The evidence consisted of testimony that Goss had access to another's Social Security number and that fraudulent accounts were addressed to Goss's former residence. This simply was not enough. Also, although not given any significance by the court, the victim of the fraud was an ex-husband.

Personal cynical suspicions: My mind runs to the possibility of a reverse-whammy, or fraudulent set-up, by the ex. I think I'd like to more convincingly eliminate that twist before sending anyone to jail.