Northern Kentucky attorney David Kramer is an author of the new pocket parts for Thomson/ West Publishing Co. Dave is a highly respected attorney, and is the author of numerous articles on a number of legal topics. He has been kind enough to provide us a copy of one of his updates for American’s largest legal publishing company.
The comment he has written will be included in the forthcoming pocket part to vol. 7 of West’s Kentucky Practice series. It is obviously not meant to be comprehensive treatment of the subject (which is what you typically do), just an update on a change in the law. We think this may be of interest. The books are available in print from West (see the link at the end of the disclaimer) or on Westlaw (though not part of the basic subscription package) under the database acronym “kyprac-rcp.”
Kramer is a member in the law firm Dressman Benzinger LaVelle psc (formerly Deters, Benzinger & LaVelle, P.S.C.), Crestview Hills, Kentucky. (Associate, January 1986 – February 1994.) Practicing primarily in areas of health-care law and litigation, medical malpractice defense, and insurance litigation. Martindale-Hubbell rating: AV.
Kramer’s latest pocket-part update: Challenge for Cause – Grounds and Appellate Review
On appeal, the standard of review of a trial court’s ruling on a litigant’s challenge of a prospective juror for cause is one of abuse of discretion. In a recent civil case that was not designated for publication, the Kentucky Court of Appeals noted that the Kentucky Supreme Court had remanded the case with direction to consider the Supreme Court’s holding in a criminal case, Shane v. Commonwealth, 243 S.W.3d 336 (Ky. 2007), in deciding the issues whether the trial court had erred in overruling a party’s challenges to several jurors for cause and if so whether such error was reversible. Under prior case law, the trial court’s erroneous failure to strike a juror for cause was held not to be reversible error as long as the juror in question did not ultimately sit on the jury (usually because the objecting party used a peremptory challenge after the challenge for cause was overruled). Shane v. Comm. overruled the prior case law and held that forcing a party to use a peremptory challenge to remove a juror whom the trial court should have removed for cause is a violation of a substantial right and automatically constitutes reversible error. In light of this principle, trial lawyers should be careful to preserve the record on any jury challenges for cause and should strive to explore during voir dire whether any of the prospective jurors have prior knowledge of the case or have a relationship with any of the litigants, legal counsel, or the lay and expert witnesses who will testify in the case that may give rise to a basis to challenge for cause. Such bases include the following:
- a close relationship, either familial, financial, or situational.
- other acquaintance such that reasonable grounds do not exist to believe the juror can render a fair and impartial verdict based solely on the evidence. However, a mere social acquaintanceship between the prospective juror and a party, attorney or witness is not cause for striking a juror unless there is some other indication that the relationship is so close as to indicate the probability of partiality.
- a business relationship that is more than “casual.”
- considerable prior knowledge of the facts of the case such that the prospective juror has formed an opinion about the main issue in the case. However, it is not required that jurors be totally ignorant of facts and issues in the case.
- involvement in a case with similar issues.
 Maxie v. Commonwealth, 82 S.W.3d 860 (Ky.2002).
 O’Hair v. Wells, 2008 WL 2610164 (Ky.App. 2008). It appears that the case may be cited as authority under CR 76.28(4)(C) as amended and effective January 1, 2007.
 See generally Osborne, “Trial Handbook for Kentucky Lawyers,” 2d ed., Sections 17.18-17.26 (Thomson West 1992).
 Ward v. Commonwealth, 695 S.W.2d 404 (Ky. 1985).
 Maxie v. Commonwealth, 82 S.W.3d 860 (Ky. 2002).
 Sholler v. Commonwealth, 969 S.W.2d 706 (Ky. 1998).
 Sanders v. Commonwealth, 801 S.W.2d 665 (Ky. 1990), cert. denied, 502 U.S. 831 (1991).
 Marsch v. Commonwealth, 743 S.W.2d 830 (Ky. 1987)
 Jacobs v. Commonwealth, 870 S.W.2d 412 (Ky.1994).
 Comm., Dept. of Highways v. Ginsburg, 516 S.W.2d 868 (Ky. 1974).
Web address http://www.dbllaw.com/profiles/david_v_kramer.asp,
University of Kentucky College of Law, Lexington, Kentucky, J.D., 1983. Associate Justice, U.K. Student Government Judicial Board, 1982; Phi Alpha Delta Law Fraternity.
Xavier University, Cincinnati, Ohio, H.A.B., cum laude, 1980. Major was Honors A.B. Program, concentrated in classical languages (Latin and ancient Greek) and humanities (philosophy and theology).
Other Kramer PUBLICATIONS and Seminars :
“Confidentiality of Patient Alcohol and Drug Abuse Information,” Kentucky Hospitals (publication of the Kentucky Hospital Association), Spring 1988.
“Beyond Apparent Authority: Hospital Liability for Negligence of Independent Physicians,” Kentucky Hospitals, Winter 1989.
“Designation of Health-Care Surrogate: An Alternative to Living Wills,” Sentinel (newsletter of Senior Citizens of Northern Kentucky), March 1991. Co-authored with James A. Dressman III.
“Overview of Federal Antitrust Law in the Health-Care Field,” Health Law Handbook (1st Ed.), University of Kentucky CLE Institute, June 1991. Co-authored with Robert G. Stevens.
“Managing Medical Waste: A Road Map for Health Care Institutions,” Kentucky Hospitals, Spring 1991. Co-authored with Jeffrey J. Harmon.
“High/Low Settlement Agreements,” Kentucky Bench & Bar (publication of the Kentucky Bar Association), September 1999.
Volumes 6 and 7, Philipps, Kramer & Burleigh, Kentucky Practice, “Kentucky Rules of Civil Procedure Annotated,” 6th edition, 2005 (Thomson/West). Served as primary author of 6th edition; co-authored with the late Kurt A. Philipps, Jr., and David W. Burleigh. Treatise updated annually.
“Confidentiality of Alcohol and Drug Abuse Patient Records,” Medical Educational Services Seminar, Louisville, Kentucky, May 25, 1988.
“Overview of New Workers’ Compensation Procedures,” sponsored by the Northern Kentucky Bar Association, at Northern Kentucky University, Highland Heights, Kentucky, June 23, 1988.
“Advance Directives (Living Wills and Medical Powers of Attorney),” Northern Kentucky Bar Association Health Law Section, Fort Mitchell, Kentucky, February 25, 1992.
Living Wills and Durable Powers of Attorney,” part of the “I Can Cope” Program sponsored by the American Cancer Society, Edgewood, Kentucky, September 24, 1992.
“Living Wills and Medical Powers of Attorney,” part of “Senior Summit V,” Covington, Kentucky, April 24, 1993.
“Institutional Review Boards,” Northern Kentucky Bar Association Health Law Section, Fort Mitchell, Kentucky, September 30, 1993.
“DeGrella vs. Elston – The Right to Die in Kentucky” (panel discussion), Northern Kentucky Bar Association Health Law Section, Fort Mitchell, Kentucky, November 29, 1993.
“Avoiding and Reducing Employers’ Workers’ Compensation Liability,” St. Elizabeth Medical Center Foundation, Edgewood, Kentucky July 25, 1995.
“Ethical and Legal Issues of Forcing and Withholding Treatment,” Northeast Kentucky Area Health Education Center Seminar, Morehead, Kentucky, December 3, 1996.
“Competency: Legal, Ethical and Medical Perspectives,” The Center for Healthcare Ethics, Seminar at St. Charles Care Center, Covington, Kentucky, March 10, 1999.
“End of Life Issues,” Symposium Panel Member, St. Charles Care Center, Covington, Kentucky, September 28, 2000.
“Ethical and Legal Issues Surrounding the Last Stages of Life,” Professional Workshop sponsored by the Diocese of Covington Planned Giving Committee, Thomas More College, Crestview Hills, Kentucky, October 16, 2002.
“Update on the Kentucky Rules of Civil Procedure,” Salmon P. Chase American Inn of Court, the Metropolitan Club, Covington, Kentucky, January 20, 2005.
“Current Issues and Recent Cases in Kentucky and Federal Civil Procedure,” Salmon P. Chase American Inn of Court, the Metropolitan Club, Covington, Kentucky, November 28, 2006. “Trial Strategies & Techniques from Leading Attorneys on Both Sides of the Bar: Use of Demonstrative Evidence and Technology in the Courtroom,” Joint Seminar of the Kentucky Justice Association and Kentucky Defense Counsel, Louisville, Kentucky, May 16, 2008, and Lexington, Kentucky May 30, 2008. Scheduled/forthcoming: “ ‘No Further Questions, Your Honor’ – Effective Cross-Examination of Expert Witnesses,” Annual Convention of the Kentucky Bar Association, Northern Kentucky Convention Center, Covington, Kentucky, June 11, 2009.Member, Board of Directors, Kentucky Lottery Corporation (Aug. 1993 – Dec. 1998) (Chairman, Contracts and Procurement Committee) (appointed by Governor Brereton Jones and confirmed by Kentucky Senate, Aug. 1993; re-appointed by Governor Jones and confirmed by Kentucky Senate, Nov. 1994).
Member, Kenton County Democratic Executive Committee (Apr. 1992 – May 1996; Feb. 1998 – April 2008).
Member, Board of Directors, Covington Latin School Alumni Association (1989-92) (Secretary, 1990-92).
Member, Institutional Review Board (responsible for overseeing medical research protocols), Saint Elizabeth Medical Center, Inc., Edgewood, Kentucky (1989 – present).
Member, Kiwanis Club of Covington/Kenton County (1988 – present) (President, 1993-94; Secretary, 1989-92; Director, 1992-95).
Member, Northern Kentucky Chamber of Commerce (1987 – present).
Reprinted from the forthcoming supplement to Rules of Civil Procedure Annotated, 6th ed (Vols. 6 & 7, Kentucky Practice Series), by the late Kurt A. Philips, David V. Kramer and Todd V. McMurtry, with permission. Copyright (c) 2009 Thomson Reuters. For more information about this publication please visit http://west.thomson.com/productdetail/130503/11774808/productdetail.aspx.”