Kentucky Court of Appeals
Evidence - Daubert
Rossi v. CSX Transportation, Inc., 357 S.W.3d 510, 2010 WL 5128637 (Ky.App. December 17, 2010)

The plaintiff offered the testimony of a biomechanical engineer in a cumulative trauma FELA claim. The trial Court held an extensive Daubert hearing, and excluded part of the proposed testimony. As an engineer, the Court held that the witness to be well qualified to testify as to the plaintiff’s exposure to risk factors consistent with cumulative trauma. However, the trial Court held that since the witness was not a medical doctor and had not examined the plaintiff, he could not testify as to the cause of plaintiff’s carpal tunnel syndrome. The Court of Appeals, using a clear error standard, affirmed the trial Court’s decision. This leaves open the question of whether the opposite conclusion would have also been affirmed. While deference to discretion has its place, it is not al all clear that the Court of Appeals should have applied such a standard here, even though the result certainly seems to be correct.

Kentucky Supreme Court
Apportionment – Empty Chair Defendants
Certainteed Corp. v Dexter, 330 S.W.3d 64 (Ky. December 16, 2010)

This is an asbestos case in which a number of defendants had settled or been dismissed for various reasons. On the first trial, the jury found no liability on the part of the empty chair defendants, and the trial court granted a new trial. The opinion indicates that Certainteed argued that to obtain apportionment it had only to show that it did not cause part of the injury. [We wonder if this accurately reflects the position because it makes little sense to us]. The Court essentially affirmed the longstanding principles that 1) where multiple parties are concerned a prima facie case must be made out against each [they can’t be assessed as a group] and 2) the burden of production for empty chair defendants is the same as for defendants who are present. The only difference is the practical one that in an empty chair situation it is the defendant that must produce the evidence to get the apportionment.

Kentucky Supreme Court
Product Liability - Asbestos
Certainteed Corp. v Dexter, 330 S.W.3d 64 (Ky. December 16, 2010)

The Court discussed in this case the evidence necessary to raise a jury issue against a particular defendant in an asbestos case, and the discussion should be equally applicable to any multiple party case involving an exposure to a product of condition. The Court utilized the following elements: 1) exposure to defendant’s product, 2) causation, and 3) knowledge of danger. Beyond that, the opinion’s discussion of the proof of record is not helpful in drawing any conclusions, perhaps because the trial court failed to indicated his basis for holding that apportionment was required. The opinion seems to rely heavily on the discretion afforded the trial court in ruling on post trial motions, although there should be no discretion in determining sufficiency of the evidence – the evidence is either sufficient or it is not, and credibility, where discretion makes sense, should have little or nothing to do with it. The problem is not the result in this case, but how aspects of this opinion could corrupt well settled legal principles in other cases.

Kentucky Court of Appeals
Damages to Property
Carter v. Coalfield Lumber Company, 331 S.W.3d 271, 2010 WL 4904674 (Ky.App. December 3, 2010)

Two landowners brought suit alleging property caused by excavation on an adjoining hillside. The Sweeneys claimed that rocks fell onto their property, their swimming pool was damaged, and outbuildings were injured because of drainage problems. The Carters claimed that the landslide pushed their mobile home off of its foundation. Both offered the same expert appraiser. He testified that the Sweeney home had lost value in the amount of $25,000.00. He testified that the Carter home was a complete loss and was worth $10,000.00. The trial Court held post-trial that the failure to prove a cost of repair was fatal to the claims. The Court of Appeals affirmed as to the Sweeney claims since the damage claimed was temporary, but held that proof of a total loss did not require proof as to cost of repair since it was by definition a permanent injury.

Kentucky Court of Appeals
Arbitration – Motion to Compel
Kindred Nursing Centers v. Sloan, 329 S.W.3d 347, 2010 WL 4904955 (Ky.App. December 3, 2010)

Where the trial court overrules a motion to compel arbitration it must set forth findings of fact and conclusions of law, and the failure to do so warrants reversal of the order.