The Sixth Circuit posted its oral argument docket for the weeks beginning September 30 and October 7, which is of interest to me because I have a criminal case on for argument the second week on October 9, United States v. Jafari Moore, which is an appeal from a trial verdict in which the defendant was not permitted to have the jury instructed on or consider his justification defense (Brief for Appellant Jafari T Moore Nos 12-6437-38 and Reply Brief for Jafari T Moore Cases Nos 12-6437-6438).
A review of the docket for these two weeks shows that 190 cases will be taken under submission; most will be argued but more than a few will be submitted on the briefs. These 190 cases include only 11 criminal cases where there was a trial.
In further evidence of the death of the federal civil trial, there are only two (2) civil appeals where there was a jury trial. One is Kay v. United Omaha Life Insurance, No 12-2092, where the plaintiff obtained a jury verdict that requires payment of benefits under a life insurance policy, and the other is Mengelkamp v. Lake Metropolitan Housing Authority, No. 12-4468, where the plaintiff prevailed at trial on her claim that she had been retaliated against for reporting gender discrimination in the workplace.
The Court will also set en banc the afternoon of October 9 for arguments in the case United States v. Blewett, which regards whether the Fair Sentencing Act of 2010 should be applied retroactively to ameliorate the unjust and racially discriminatory crack cocaine sentencing law.
The attorney-client privilege in Kentucky with regard to statements by a corporation's employees turns on whether the employees' statements regard matters within the scope of their employment. This point the Kentucky Supreme Court again emphasized recently in Collins v. Braden, No. 2011-SC-770 (October 25, 2012).
The case was a medical malpractice case. The principal defendant, Baptist Healthcare Systems, had outside counsel investigate the incident in question and claimed the attorney-client privilege applied to two documents: an "Investigative Case Report" and a "Risk Occurrence Report." The trial court ordered the documents produced; the hospital corporation obtained a writ of prohibition from the Court of Appeals.
The Supreme Court, in an unanimous decision written by Deputy Chief Justice Mary C. Noble, reversed the Court of Appeals and vacated the writ. First, while an assertion of privilege is presumed valid, it is burden of the party claiming its privilege to establish its application. Second, while statements of employees to the corporation's lawyers can be privileged, the statements must be within the scope of the employee's employment and must regard matters within the scope of employment.
This second point is critical and provides a critical limitation under KRE 503(a)(2)(B)(ii) on the attorney-client privilege as applied to corporations under Kentucky law:
The limitation under KRE 503(a)(2)(B)(ii) is even more important. It distinguishes between employees who are "mere eyewitnesses" to an alleged tort by happenstance, and those who are witnesses because of their employment (and, more often than not, are alleged to have been involved in the tortious conduct). As Professor Lawson notes, this requirement is perhaps the most important because it "distinguishes between those employees who qualify as clients and those who must be viewed as mere witnesses." The distinction is perhaps best illustrated by an example used in the commentary that was included when the rules were first proposed in the 1990s:
Suppose, in a suit for personal injuries sustained when the client's truck entering the client's loading yard struck a pedestrian, the lawyer for the client interviews the driver of the truck and a secretary who happened to be looking out the window when the accident occurred. The interview with the driver would be privileged but not so the interview with the secretary because the accident was not a matter within the course and scope of her employment.
Evidence Rules Study Committee, Commentary to Proposed KRE 503(a)(2), Final Draft (November 1989), quoted in Lexington Public Library v. Clark, 90 S.W.3d 53, 60 (Ky. 2002).
Ultimately, the Court resolved that it could not determine how or whether the attorney-client privilege did or did not apply to the documents in question, because the hospital had not created a record sufficient for review of the question. Accordingly, the case was remanded to the circuit court for further proceedings.
The leading case cited by the Court was Lexington Public Library v. Clark, 90 S.W.3d 53 (Ky. 2002), where Robert L. Abell represented the plaintiff and real party in interest.
Countrywide Financial was among the most pernicious and reckless lenders that caused the economic downturn under which our Nation continues to labor. Their practices gave rise to a proposed class action lawsuit filed in federal court in Louisville to consist of "all African-Americans and Hispanic borrowers to whom Countrywide originated a residential-secured loan, including correspondent loans, between January 1, 2002, and the present." The district court ruled the proposed class failed the commonality rule of Fed.R.Civ.Pro 23; the Sixth Circuit affirmed in Miller v. Countrywide Lending, No 12-5250 (January 15, 2013).
Countrywide empowered loan officers and mortgage brokers to increase or decrease a borrower's interest rate within a specified range of the borrower's par rate, a rate used through application of objective factors. Loan officers and brokers received extra compensation from Countrywide "when a loan had a higher interest rate or additional fees." As a result, according to the suit, Countrywide charged African-American borrowers on average 11.64 basis points and Hispanic borrowers 12.50 basis points over the APR paid by white borrowers. The plaintiffs pleaded disparate impact claims under the Equal Credit Opportunity Act, the Fair Housing Act and the Civil Rights Act seeking damages, injunctive relief and declaratory relief. The district court denied class certification.
The Sixth Circuit held that class certification was properly denied under the rule drawn from Wal-Mart v. Dukes, 131 SCt 2541 (2011), explaining as follows:
Both cases challenge policies to grant broad discretion to local agents: Countrywide to local agents who varied home-loan prices[.] ... In both cases, the exercise of discretion is cabined inside clear boundaries: ... Countrywide agents could vary home loans only within a specified range of the predetermined par rate. ... in neither case is it asserted that, for acts of discretion taken within these boundaries, a uniform policy or practice guides how local actors exercise their discretion, such that the corporate guidance caused or contributed to the alleged disparate impacts. ... class members must unite acts of discretion under a single policy or practice, or through a single mode of exercising discretion, and the mere presence of a range within which acts of discretion take place will not suffice to establish commonality.
A landlord can be liable for a tenant's injuries caused by a leaky roof the Kentucky Court of Appeals ruled recently in Warren v. Winkle, No 2012-366 (May 24, 2013). The decision reversed a summary judgment granted the landlord by Judge Susan Schultz Gibson of the Jefferson Circuit Court.
Roslyn Warren rented a one-bedroom apartment from the Warrens in a seven-unit apartment complex. All seven units were in a one-story building and shared a common roof. Each unit had ceiling tiles suspended by wires hung from the rafters, which meant, as the court pointed out, "the area between the ceiling and roof ... consisted only of rafters and was not a space usable by tenants." The parties disputed whether Warren informed the Winkles that the roof appeared to be leaking because the ceiling tiles appeared to sag when it rained. In any event, part of the bedroom ceiling in Warren's unit collapsed while she was in bed and caused her serious injuries. She filed suit claiming that the Winkles had negligently failed to maintain the roof in reasonably safe condition causing moisture to accumulate between the roof and ceiling resulting in the collapse of the ceiling and her injuries. The circuit court granted summary judgment to the Winkles "holding that, as a matter of law, the Winkles had no duty to maintain the roof or the area between it and the ceiling."
The general rule in Kentucky is that a landlord is "not liable for to the tenant of his property because of defects in the leased premises," that the "tenant takes the premises for better or worse." But there is an exception where the property had multiple tenants and with regard to its common areas. As to such properties and their common areas, "the landlord must exercise ordinary care to keep common areas in a reasonably safe condition." "A landlord is presumed to have retained control over premises used in common by different tenants."
Warren claimed that her injuries were caused by the landlord's failure to maintain the roof. The Court of Appeals reviewed cases from other states and concluded that the "prevailing view is that a 'roof is necessary for all the tenants; and, no provision being made for a transfer of its possession to any tenant, the control over it remained in the owner.'" Accordingly, the Court held that "a landlord can be responsible for dangerous conditions in areas not demised to a tenant and that remain in the landlord's exclusive control. In this case, Warren did not have the right to use or enjoy the roof and had no responsibility to maintain it in a reasonably safe condition. Furthermore, the area between the roof and ceiling was not useable and was, in fact, merely a part of the roof structure."
The Court also rejected the landlord's argument that it could not be liable for the tenant's injuries under the "open and obvious doctrine", because the tenant had testified in deposition that she had noticed the ceiling sagging before it fell on her. The open and obvious doctrine does not preclude the landlord's liability, whose actions are subject to a reasonableness test the relevant factors including the landlord's actual or constructive notice of the defect, the landlord's opportunity to remedy it and the reasonableness of the tenant's actions as well. Davis v Coleman Management Co, 765 SW2d 37 (Ky App 1989).
Finally, the Court rejected the landlord's argument that it could be liable to the tenant only for the cost of repairs, noting that the tenant's action was for negligence not breach of contract or warranty.
Conflicts of interest among proposed class action member was a proper basis to deny class action certification the Sixth Circuit ruled recently in Schlaud v. Snyder, No 12-1105 (May 22, 2013). Because of these conflicts the proposed class representatives could not assure the adequacy of representation required by FRCivPro 23(a).
The case and the proposed class action challenged the deduction of union dues or agency fees from state subsidy payments to home childcare providers in Michigan. The class representatives claimed these deductions violated their First Amendment rights.
The proposed class was to consist of any home childcare providers who had the union dues or agency fees deducted. Alternatively, the plaintiffs proposed a subclass of any home childcare provider who did not vote in any union-related elections.
The Sixth Circuit found the class certification issued to turn on whether the named plaintiffs could provide adequacy of representation as required by FRCivPro 23(a). "A class representative must be part of the class and possess the same interest and suffer the same injury as the class members." Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625-26 (1997).
The proposed class presented two issues regarding adequacy of representation: (1) conflict of interests; and, (2) different alleged injury. The court explained as follows:
Plaintiffs, who alleged that they were compelled to pay the fees under the CBA, have divergent interests from other potential class members, who voted in favor of that same CBA. Further, those who voted for the CBA did not suffer the injury alleged by plaintiffs because they were not compelled to support the Union financially – they voted to do so. Finally, plaintiffs' lawsuit would impair the ability of the Union to represent its members and is, therefore, not in the interest of those proposed class members who voted in favor of using collective action to improve the conditions of [the union members]."
Plaintiffs argued that the proposed subclass cured the conflict of interest issue "because no one in the proposed subclass expressed support for the Union." The court observed that this assertion required it to "assume that any home childcare provider who did not vote in any election related to the Union is opposed to supporting the Union financially", which it refused to do for two reasons: (1) a high turnover rate among home childcare providers supported the conclusion that many of the potential subclass members had not voted in union elections because they were not at the time home childcare providers; and, (2) in each union election a majority of voters supported the union.
Elisabeth Jensen, a long-time and diligent education advocate, has announced that she will challenge incumbent Andy Barr for Kentucky's Sixth Congressional district seat. The Lexington Herald-Leader reports, Education Advocate Elisabeth Jensen To Challenge U.S. Rep Andy Barr.
Krystal Meredith was only 20 years old, 37 weeks pregnant and suffering from severe abdominal pain; three times she went to Norton Hospital, where she was treated first by Dr. James Haile and then by her regular OB/GYN, Dr. Luis Velasco. On her third visit, blood work was done and it revealed an ongoing infection. Labor was induced and a healthy baby delivered. However, Krystal continued her decline and exploratory surgery revealed the source of her abdominal pain: a ruptured appendix and abscess. From this she developed acute respiratory distress syndrome and passed away.
A Jefferson County jury returned a verdict in the medical malpractice case that followed Krystal's death. But was the jury fairly constitute? The Kentucky Supreme Court ruled it was not and ordered a new trial in Grubb v Norton Hospital, No 2010-SC-532 (May 23, 2013).
During jury selection one prospective juror indicated that his son had an employment relationship with the parent Corporation of Norton Hospital and expressed doubt about his ability to be impartial. Another prospective juror indicated that she had been a patient of an expert witness for the defense and indicated reservations and reluctance about her ability to fairly serve as a juror. The court also ruled that this juror should have been excused for cause.
The court ruled that harmless error analysis was inapplicable. Also, the plaintiffs had properly and fully made the record as to the issue by identifying to sitting jurors whom they would have removed had any peremptory strikes remained. Accordingly, the case was remanded to Jefferson Circuit Court for another trial.
This case is the latest installment in the Court's jurisprudence regarding jury selection. In Shane v. Commonwealth, 243 SW3d 336 (Ky 2007), it held that "exercise of peremptory strikes is a substantial right and ... that harmless error analysis is inapplicable where a peremptory strike is used to remove a juror who should have been excused for cause." Subsequently, in Gabbard v. Commonwealth, the court held that a party must indicate on their strike she the additional juror whom it would have removed have the motion to strike been granted. "Together, Shane and Gabbardreinstated the rule which had been briefly overruled" by the court's decision in Morgan v. Commonwealth, 189 SW3d 99 (Ky. 2006). Grubb advises this rule applies alike to civil cases.
Does BRB coverage come before med pay coverage in an auto policy? The answer made a difference to whether the statute of limitations had lapsed on a tort claim in Cole v. Fagin, No 2012-CA-797 (April 19, 2013), where the Court of Appeals ruled that BRB coverage came first and reversed a summary judgment.
Susan Cole was wise and bought plenty of auto insurance; she had a policy with Grange Insurance that included $10,000 in basic reparations benefits (BRB) coverage, $5000 in Med Pay as well as underinsured and uninsured motorist coverages. She was injured in an auto accident on July 1, 2009, and received treatment for injuries at a hospital. Grange mailed her a BRB application the next day. A week later, Grange's adjuster wrote Cole's lawyer and informed him that "payment for her medical expenses" would be under the Med Pay coverage "since there is a one year statute on that coverage." Cole later mailed the adjuster her completed BRB application. There was some further correspondence between Cole and Grange but, according to the Court of Appeals, "nothing else in the record ... indicates what coverage the parties was being utilized while Grange was paying Cole's medical expenses from August 6, 2009 to October 22, 2009, which totaled $3,976.57."
Cole filed suit on October 13, 2011, against Fagin for negligence and against Grange for only partially paying her claim for Med Pay and BRB benefits under her policy. Both Fagin and Grange moved to dismiss on statute of limitations grounds where the circuit court sustained.
The Court of Appeals framed the issue as follows: "whether Cole received $3,976.57 from Grange for her medical expenses due to her Med Pay or BRB coverage." The Court of Appeals reversed the circuit court finding that BRB coverage applied before Med Pay coverage and explained as follows:
An auto accident tort claimant "has no tort claim whatsoever for any element of damages to the extent that those damages have been paid, or could have been paid, through BRBs under her existing coverage." ... Because the MVRA requires Cole's accrued medical expense reimbursements of $3,976.57 to be considered BRBs at the end of any tort litigation, (i.e., for the purpose of determining her damages), to avoid absurdity it follows that the MVRA likewise requires Cole's accrued medical expense reimbursements of $3,976.57 to be considered BRBs at the beginning of any tort litigation (i.e., for the purpose of the statute of limitations codified at KRS 304.23-230)."Robert L. Abell
It sure seems that Richie Farmer has made a real mess of the practically limitless goodwill that comes from being a UK basketball player and having your jersey hung from the Rupp Arena rafters. The federal criminal indictment is the latest shoe to drop.
That said, though, one can see the potential mischief possible in using the federal criminal statute under which Farmer is charged, one that makes it possible to criminally charge a government or elected official who "misapplies" government funds. This would seem a point subject to endless argument, and one best resolved at the ballot box.
So I discussed these concerns in greater length in a column published in the Lexington Herald-Leader, In Farmer Case, We Could Push So Far As to Criminalize Politics.