Kentucky Court of Appeals
Insurance – No-Fault – Statute of Limitations
Frost v Dickerson, 2012 WL 592193 (Ky.App. February 24, 2012), motion for review denied September 12, 2012, opinion ordered de-published.

About two months after an automobile accident, Frost began experiencing numerous symptoms, which went undiagnosed until two years later.  At that time, her physician advised that the condition was the result of the accident.  The Court held that the discovery rule does not apply to actions arising out of an automobile accident, declining to re-write the applicable statute of limitations.

Kentucky Court of Appeals - Unpublished
Conversion – Right to Possession
Atkinson v Billings, 2012 WL 592221 (Ky.App. February 24, 2012)

Three tracts of land were to be sold at public auction, but prior to the sale Atkinson obtained permission to cut hay and rolled the hay into 110 large circular bales.  At the sale the hay’s presence on the land was mentioned and it was stated Atkinson had thirty days to remove it.  The time passed and the purchaser, Billings, contracted to have the bales removed and was paid the market value of the hay.  Atkinson’s claim for conversion was denied because, once the 30 days expired, he did not have the right to possession of the hay.

Kentucky Court of Appeals
Proof – Res Ipsa Loquitor
Ryan v. Fast Lane, 360 S.W.3d 787, 2012 WL 413684 (Ky.App. February 10, 2012)

Plaintiff claimed that gasoline splashed in her eye when the gas pump nozzle malfunctioned.  The defense offered expert proof that if the pump malfunctioned there was no way for the station owner to have anticipated it, and that the fill guard would have prevented it from spraying high enough to get in plaintiff’s eyes.  The defense also offered testimony that no defect was found after the incident and other used the same nozzle without incident.  Since the appeal was premised on res ipsa loquitor, the Court assessed the case in that vein.  The Court initially observed that the nozzle was not in the exclusive control of the defendant at the time of the incident.  However, the interesting part is that the Court held that there was no evidence of a defect.  Common sense would suggest that uncontroverted expert testimony that the nozzle could not fail as described would be conclusive, and this panel applied that common sense.  But in effect this Court held that plaintiff’s testimony did not create an issue of fact, while the Kentucky Court has often refused to yield to such expert proof, as though, to paraphrase Vinnie Gambini, “the laws of physics don’t apply to Kentucky stovetops”.  This panel fulfilled its gatekeeping function properly, and should be followed in the future.  One cautionary note, though.  The Court quotes from a prior case which conflates inferences with presumptions, and res ipsa loquitor has nothing to do with presumptions.

Kentucky Court of Appeals
Procedure – Class Actions – Predomination of Common Issues
Merck and Co. v. Ratliff, ___ S.W.3d ___, 2012 WL 413522 (Ky.App. February 10, 2012), motion for discretionary review granted November 14, 2012.

The Pike Circuit Court certified a class action relating to Vioxx claims.  Ratliff claimed that he suffered chest pains, labored breathing, lethargy, bleeding and other side effects after using Vioxx.  He sustained no bodily injury, but sought to recover the uninsured portion of his checkup to rule out drug related injury. The complaint alleged that Merck deceived the class concerning the safety of the drug, and the legal theories asserted were 1) violations of the Consumer Protection Act, 2) fraudulent concealment, 3) negligent misrepresentation and 4) unjust enrichment.  An attempt to remove was defeated because Merck could not show that Ratliff’s claim exceeded $75,000. The Pike Circuit Court granted class certification under CR 23.02(c), and Merck took an interlocutory appeal.

The opinion can be read to suggest that class certification would have been appropriate had the only theory been a violation of the CPA.  However, since the Complaint also asserted fraud claims, the Court found applicable the general principle that the element of reliance requires individual determination and therefore is generally unsuited to class treatment.  To avoid this result, the Plaintiff asserted that the Court should borrow the doctrine of “fraud on the market” from securities fraud precedent.  The Court rejected this extension of the doctrine to drug product liability cases, and requiring individualized proof of reliance.  While the Plaintiff will undoubtedly seek review by the Kentucky Supreme Court, and the issues are such that the Court might accept the case, it appears that the plaintiff could proceed by dismissing all claims but the CPA.  After all, a case of this type rarely generates any real benefits for the class, and is really a mechanism to generate attorney fees anyway.  So whatever benefits might arises from the common law fraud claims, we would think the attorney fees would be the same.