Archive for November, 2011

Kentucky Strengthens Spoliation of Evidence Rules

Friday, November 11th, 2011


By Todd McMurtry |

Dressman, Benzinger & LaVelle PSC

Litigants in Kentucky state courts now have new guidance on dealing with spoliation of evidence. Kentucky
appellate courts have produced few decisions on the issue of spoliation or destruction
of evidence with almost none in the civil context (most involve prosecutorial
destruction of evidence). However, with the exponentially increasing
digitalization of document storage, the proliferation of emails, and the age of
electronic discovery, spoliation of evidence is become a more common issue in
civil litigation. The federal courts have markedly addressed these emerging
issues over past several years and have made great strides in developing a
framework for handling electronic discovery and spoliation disputes. Kentucky’s
jurisprudence in this area remains less developed.

Nevertheless, the Kentucky Supreme Court recently handed down a decision that, should it become final, advances
the Commonwealth’s law on spoliation. The case, Univ. Med. Center Inc. v.Beglin, — S.W.3d —-, 2011 WL 5248303 (Ky. 2011), involved a medical
negligence action by the estate of the deceased plaintiff against University of Louisville Hospital and two physicians. In short, the plaintiff suffered
unexpected and substantial blood loss during surgery followed by an unreasonable delay in obtaining blood from the hospital blood bank. The
plaintiff sustained an anoxic brain injury as a result, which left her in a permanent vegetative state.

The jury exculpated the physicians but found that the hospital, through its employees, acted with gross
negligence. The jury awarded a $9 million verdict The Supreme Court ultimately
vacated the $3,750,000 in punitive damages and affirmed the remainder of the
verdict. One of the hospital’s primary arguments on appeal asserted that the
trial court erred in giving a “missing evidence” instruction to the jury
because there was allegedly no evidence to show that it had “intentionally and
in bad faith lost or destroyed” the document (an incident report filed by the
surgical nurse). The hospital argued that the instruction improperly influenced
the verdict by insinuating a cover-up.
The instruction essentially allows a jury to infer that missing evidence would be adverse to a party if the jury finds
that the party had intentionally and in bad faith lost or destroyed that evidence. Under the developed federal framework, a missing evidence instruction
such as this constitutes the least harsh of several potential remedies/sanctions for spoliation. Other, harsher federal sanctions for
spoliation include tougher jury instructions, fines, issue preclusion, default judgment, and dismissal. In federal court, the sanction for spoliation depends
on the culpability of the party, which ranges from negligence, gross negligence, and recklessness to willful misconduct.

The Supreme Court in Beglin discussed the evidentiary standard for obtaining the missing evidence
instruction but did not address the harsher penalties available in federal court. Specifically, the hospital in Beglin argued that its conduct did
not warrant the instruction because the plaintiff did not show that the loss of evidence was due to anything worse than negligence (notably, in federal court
negligence alone could warrant the instruction). The hospital stated that the disappearance of the missing incident report was unexplained.

The Supreme Court rejected the hospital’s argument, stating that, because the hospital had “absolute care,
custody, and control over the evidence,” the trial court did not err in giving the instruction. The inexplicable disappearance of an important document that
would normally be expected to be retained may be circumstantial evidence of misconduct. Using an abuse of discretion standard, the Supreme Court went on to
state that the trial court was entitled to employ normal inferences and suppositions in determining whether to give the instruction.
In sum, the Beglin case provides a good starting point for what will hopefully be Kentucky’s development of a modern framework for handling spoliation. This development still has quite a distance to go. When compared to the array of federal remedies and sanctions for spoliation and the rationale for levying them, Kentucky’s current system is far less strict (see the dissent in Beglin)
and less tailored to the specific culpability of the litigant. We should expect to see this area of the law continue to develop.

NOTE: The opinion should not be cited as authority until it becomes final and is published.

Todd McMurty is a Cincinnati attorney practicing at Dressman Benzinger LaVelle psc

211 years ago Congress passed mandatory health care law – Will Supreme Court overrule Thomas Jefferson and John Adams

Friday, November 11th, 2011

Will current Supreme Court overrule Thomas Jefferson?

By LawReader Senior Editor Stan Billingsley                      Nov. 11, 2011
Opponents of  the health care program endorsed by President
Obama, and which is known as “Obama care” is being attacked in the
courts as unconstitutional since it mandates that everyone purchase health

Surely Justice Scalia will examine this law and attempt to apply his legal theory that
the constitution should be viewed through the eyes of our founding
fathers.  Perhaps he will be influenced by that fact that a very similar health care law was adopted by Congress in
1798, and that proponents included Thomas Jefferson and John Adams.  They signed the U.S. Constitution, and
clearly any consideration of what our founding fathers meant by adoption of the
Interstate Commerce Clause, must note that they used the current constitution
to justify a mandatory health insurance program.
The U.S. Supreme Court will shortly decide if they will review the conflicting
appeallate decisions that uphold Obamacare and those that oppose it on the basis
of a limited view of the Interstate Commerce clause to the U.S. Constitution.

You will find the following comments and historical facts interesting if you are a
student of the law.


Internet Posting By Rick Ungar /  January 2011
The ink was barely dry on the PPACA (Obamacare) when the first of many lawsuits to
block the mandated health insurance provisions of the law was filed in a
Florida District Court.

The pleadings, in part, read -

The Constitution nowhere authorizes the United States to mandate, either directly
or under threat of penalty, that all citizens and legal residents have
qualifying health care coverage.

State of Florida, et al. vs. HHS

It turns out, the Founding Fathers would beg to disagree.

In July of 1798, Congress passed – and President John Adams signed - “An Act for the
Relief of Sick and Disabled Seamen.”
The law authorized the creation of a

government operated marine hospital service and mandated that privately employed
sailors be required to purchase health care insurance.

Keep in mind that the 5th Congress did not really need to struggle over the intentions
of the drafters of the Constitutions in creating this Act as many of its
members were the drafters of the Constitution.
And when the Bill came to the desk of President John Adams for signature, I think it’s
safe to assume that the man in that chair had a pretty good grasp on what the
framers had in mind.

Here’s how it happened.

During the early years of our union, the nation’s leaders realized that foreign trade
would be essential to the young country’s ability to create a viable economy.
To make it work, they relied on the nation’s private
merchant ships – and the sailors that made them go – to be the instruments of
this trade.
The problem was that a merchant mariner’s job was a difficult and dangerous
undertaking in those days. Sailors were constantly hurting themselves, picking
up weird tropical diseases, etc.

The troublesome reductions in manpower caused by back strains, twisted ankles and
strange diseases often left a ship’s captain without enough sailors to get
underway – a problem both bad for business and a strain on the nation’s

Congress Passes Socialized Medicine and Mandates Health Insurance -In 1798
Page 2 of 4

But those were the
days when members of Congress still used their collective heads to solve
problems – not create them.

Realizing that a
healthy maritime workforce was essential to the ability of our private merchant
ships to engage in foreign trade, Congress and the President resolved to do
something about it.

Enter “An Act for The Relief of Sick and
Disabled Seamen

I encourage you to
read the law as, in those days, legislation was short, to the point and fairly
easy to understand.

The law did a number
of fascinating things.

First, it created the
Marine Hospital Service, a series of hospitals built and operated by the
federal government to treat injured and ailing privately employed sailors. This
government provided healthcare service was to be paid for by a mandatory tax on
the maritime sailors (a little more than 1% of a sailor’s wages), the same to
be withheld from a sailor’s pay and turned over to the government by the ship’s
owner. The payment of this tax for health care was not optional. If a sailor
wanted to work, he had to pay up.

This is pretty much
how it works today in the European nations that conduct socialized medical
programs for its citizens – although 1% of wages doesn’t quite cut it any

The law was not only
the first time the United States created a socialized medical program (The Marine
Hospital Service) but was also the first to mandate that privately employed
citizens be legally required to make payments to pay for health care services.

Upon passage of the
law, ships were no longer permitted to sail in and out of our ports if the health
care tax had not been collected by the ship owners and paid over to the
government – thus the creation of the first payroll tax in our nation’s

When a sick or injured
sailor needed medical assistance, the government would confirm that his payments
had been collected and turned over by his employer and would then give the
sailor a voucher entitling him to admission to the hospital where he would be
treated for whatever ailed him.

While a few of the
healthcare facilities accepting the government voucher were privately operated,
the majority of the treatment was given out at the federal maritime hospitals
that were built and operated by the government in the nation’s largest ports.

As the nation grew and
expanded, the system was also expanded to cover sailors working the private
vessels sailing the Mississippi and Ohio rivers.

The program eventually
became the Public Health Service, a government operated health service that
exists to this day under the supervision of the Surgeon General.

So much for
the claim that “The
Constitution nowhere authorizes the United States to mandate, either directly
or under threat of penalty….”

As for
Congress’ understanding of the limits of the Constitution at the time the Act
was passed, it is worth noting that Thomas Jefferson was the President of the
Senate during the 5th Congress while Jonathan Dayton, the youngest
man to sign the United States Constitution, was the Speaker of the House.

While I’m
sure a number of readers are scratching their heads in the effort to find the
distinction between the circumstances of 1798 and today, I think you’ll find it

Yes, the
law at that time required only merchant sailors to purchase health care
coverage. Thus, one could argue that nobody was forcing anyone to become a
merchant sailor and, therefore, they were not required to purchase health care
coverage unless they chose to pursue a career at sea.

this is no different than what we are looking at today.

Each of us
has the option to turn down employment that would require us to purchase
private health insurance under the health care reform law.

Would that
be practical? Of course not – just as it would have been impractical for a man
seeking employment as a merchant sailor in 1798 to turn down a job on a ship because
he would be required by law to purchase health care coverage.

more, a constitutional challenge to the legality of mandated health care cannot
exist based on the number
of people who are required to purchase the coverage – it must necessarily be
based on whether any
American can be so required.

the nation’s founders serving in the 5th Congress, and there were many of them,
believed that mandated health insurance coverage was permitted within the
limits established by our Constitution.

The moral
to the story is that the political right-wing has to stop pretending they have
the blessings of the Founding Fathers as their excuse to oppose whatever this
president has to offer.

makes it abundantly clear that they do not.

UPDATE: January 21- Given
the conversation and controversy this piece has engendered, Greg Sargent over
at The Washington Post put the piece to the test. You might be interested in
what Greg discovered in his article, “Newsflash: Founders
favored government run health care.

Rick at


Newsflash: Founders
favored “government run health care”

By Greg Sargent

Forbes writer Rick Ungar is getting some attention for a piece arguing that history shows that John Adams supported a
strong Federal role in health care. Ungar argues that Adams even championed an
early measure utilizing the concept behind the individual mandate, which Tea
Partyers say is unconsittutional.

I just ran this theory past a professor of
history who specializes in the early republic, and he said there’s actually
something to it. Short version: There’s no proof from the historical record
that Adams would have backed the idea behind the individual mandate in
particular. But it is fair to conclude, the professor says, that the
founding generation supported the basic idea of government run health care, and
the use of mandatory taxation to pay for it.

Here’s the background. Ungar points out that in
July of 1798, Congress passed “An Act for the Relief of Sick and Disabled
Seaman,” which was signed by President Adams. That law authorized the
creation of a government operated system of marine hospitals and mandated that
laboring merchant marine sailors pay a tax to support it.

Ungar argues that this blows away the argument
made by many opponents of the individual mandate: That it’s unconstitutional to
mandate that all citizens purchase health coverage, or that this violates the
founding fathers’ view of the proper role of government.

Is this true? In some ways it is, according to
Adam Rothman, an associated professor of history at Georgetown University. He
argues that it’s a “bit of a leap” to compare the 1798 act directly
to the individual mandate, because the act taxed sailors to pay for their
health care, rather than “requiring that sailors purchase it.”

But Rothman says that it’s perfectly legit to
see shades of today’s debate in that early initiative.

“It’s a good example that the
post-revolutionary generation clearly thought that the national government had
a role in subsidizing health care,” Rothman says. “That in itself is
pretty remarkable and a strong refutation of the basic principles that some Tea
Party types offer.”

“You could argue that it’s precedent for
government run health care,” Rothman continues. “This defies a lot of
stereotypes about limited government in the early republic.”

Also: Some have argued that the individual
mandate is, in effect a tax, but one that cuts out the Federal
government as middleman. In this reading, everyone will eventually participate
in the health system anyway, and the mandate means the Federal government is
merely directing people to buy insurance, rather than collecting a tax and
using that money to purchase that same insurance for them.

We will never know whether the founding
generation would have agreed with this concept or not. They didn’t agree on
much even among themselves. But in Rothman’s view, they are already on record
supporting government run health care, financed by mandatory taxation. So

UPDATE, 3:29 p.m.: To be clear, the system of government-run
hospitals was established for laboring merchant marine sailors, whose very
dangerous work in trade was crucial to the young republic. The history is right here. I’ve edited the above to clarify.



JUDGE ORDERS PRO-SE LITIGANTS TO GET A LICENSED ATTORNEY – Rulings appear to violate established law.

Monday, November 7th, 2011


On October 26, 2011, Daviess Circuit Court Domestic Relations Commissioner John H. Helmers in Owensboro Kentucky sent a pro-se litigant an Order stating that pleadings must be prepared under the supervision of a licensed attorney who will be responsible for their work and thereby rejected the pleadings filed on their own behalf.

On August 10, 2011, Todd Circuit Court Judge Tyler L. Gill in Elkton Kentucky sent a pro-se litigant a Order dismissing their action saying it is to be removed from the docket and can
only be re-docketed upon the appearance of a properly licensed attorney.

A source brought these ruling to the attention of LawReader.

The former Pro Se lawyer says:  “Legal representation is expensive, and Judges who are lawyers are creating monopolies by forcing people
to get an attorney. The First Amendment of the United States Constitution gives the people the right to file any grievance with the courts. This is part of our
constitutional rights. ”

“Are we going to let these Judges take our freedom of choice away and force us to have to hire an attorney? ”

The Appellate courts have several recent published cases which uphold the right of litigants to represent themselves.

Lattanzio v. Joyce, 308 SW 3d 723 (Ky. App., 2010)

“On February 27, 2009, the trial court entered the order that has been appealed to this Court. In that order, the trial court found that Lattanzio willfully disobeyed its
December 10, 2008, abatement order; “In light of the historically “high standing” accorded to a party’s right to plead and conduct one’s own case, we agree that
the trial judge abused his discretion in ordering Lattanzio to proceed with his litigation only under the supervision of an attorney.

“Such an extreme remedy was simply not reasonable, especially in light of the fact that no alternative sanctions were attempted
prior to the entry of the trial court’s February 27, 2009, order that barred Lattanzio from self-representation.

“There were several other mechanisms available for controlling the “vexatious” conduct of Lattanzio. As held in McBrearty, supra, the trial court was authorized to
enforce the Rules of Civil Procedure. Thus, all the powers of sanctioning accorded under CR 11 and CR 37 were fully available to the trial court in this
matter. In addition to the sanctions available under CR 11 and CR 37, the trial court was also authorized under CR 41.02(1) to involuntarily dismiss
Lattanzio’s claims if use of CR 11 and CR 37 sanctions failed to engender compliance with the Rules of Civil Procedure or further orders of the court.
See Jaroszewski v. Flege, 297 S.W.3d 24, 36 (Ky.2009) (one of the basic purposes of CR 41.02(1) is to provide a mechanism for sanctioning abuse or misuse of the legal
“In extreme cases where litigants have insisted on repeatedly abusing the legal process despite warnings from the court that such conduct will result in progressively harsher
sanctions, courts have resorted to enjoining litigants from future filings. See Martin v. District of Columbia Court of Appeals, 506 U.S. 1, 3, 113 S.Ct. 397, 398, 121
L.Ed.2d 305 (1992)
; Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 269 (6th Cir.1998). However, we are unaware of any court that has sanctioned a vexatious party by revoking the
party’s right to self-representation.

“Accordingly, we reverse that portion of the trial court’s order which bars Lattanzio from filing any further pleadings without the supervision of an attorney.”


The Courts concede that a Pro Se attorney may enjoy a privilege.

GUFFEY v. GUFFEY, 323 S.W.3d 369 (Ky. App., 2010)

“While litigants may perceive the need to act pro se as a handicap, in reality a court makes an extra effort to compensate for the lack of representation by affording special courtesy and
attention to the pro se litigant.
And, as we determined from recourse to the Snodgrass factors, the court’s decision to deny the continuance was fair and equitable under the circumstances..”

Who is a named and covered insured? Ky. Adopts Initial Permission Rule for Automobile

Wednesday, November 2nd, 2011