*1 However, bar, some
problems videotaped pro- inherent in
ceedings adversely so Appellant’s affected
sentencing phase that it repeated. must be asleep during
Jurors fell proceedings occasions,
on at least two a fact noted counsel, prosecutor
defense and the judge. Demonstrative exhibits used witnesses, videotaped such dia-
grams scene, and a model of crime Also, interpret
difficult the video.
narration of a crime scene video made
testifying police officer not recorded
and, thus, sentencing jury did not hear
it. spoke approvingly
When we of the use videotaped proceedings as evidence on
retrial, noted “the we second sentenc-
ing jury position [is] different from
the first as it embarked upon the
penalty phase.” Skaggs v. Common-
wealth, Ky., 694
That cannot be said these particular
proceedings. would reverse and remand
for a sentencing new phase. MARRS, Appellant, P.
Norma Kelly
R. Michael KELLY and Albers, Appellees.
&
No. 2001-SC-0278-DG.
Supreme of Kentucky.
Jan. *2 determination, physician put her
ter this she could type limits on the work strict subsequently laid perform. employer Her positions no her off there were because work re- that could fill based on her she by Appellee, represented strictions. Still reopened her second workers’ Appellant total, per- compensation sought claim reopening pro- In this disability. manent was awarded addi- ceeding, Appellant disability. The occupational tional 10% affirmed. Compensation Board Workers’ against Appellee and Appellant’s claim firm, Albers, negli- for Kelly & was gent reopened representation work- Kimball, Louisville, Philip C. Counsel for con- compensation Appellant ers’ claim. Appellant. Appellee that to introduce tended failed Cox, Mahan, Jr., Lunch, Armer H. Gil- support allega- her expert testimony Mahan, P.S.C., Louisville, man & Counsel occupational disability. tion of increased Appellee. In opposition Appellees’ motion sum- mary judgment, Appellant introduced LAMBERT, Chief Justice. who report experts of two vocational stat- Appellant totally perma- ed was Appellant brought this nently and an from attor- disabled affidavit against claim her workers’ compensation ney Hoffman that vocational Stanley John attorney grounds on that he failed had proba- been expert testimony would have relevant introduce evidence her behalf. total, permanent disability and that tive In the the administrative Appellant’s case would have been “en- law judge who over the workers’ greatly” hanced had such evidence been compensation case was presented. The Administra- depositions of that even if the had omitted evidence been Hesen, Judge tive Ellen Law Lowther and introduced, it made differ- Appellant’s represented ence the decision. The issue before this court. De- employer, were also before the Court is whether the administrative law fense counsel Hesen testified even permitted to should have been so present- the vocational evidence had been testify, i.e., that admissible evidence would ed, her changed posi- she would not have had no effect on the outcome of the Appellant tion that not entitled compensation workers’ compensation benefits. additional workers’ Appellant injured back at work in her reviewing In after deposition, her attorney, Through Appellee Mi- experts’ report, Administrative vocational Kelly, compensa- chael she filed a workers’ Law Lowther testified that she for a occupa- tion claim and settled 10% changed would not have her award even disability. tional In she sustained evidence vocational injury through Appellee another back introduced. She stated filed another claim. report this from the occupa-
In a 10% have reviewed She awarded closely disability injury. very Af- Economics after tional for the second Vocational going reviewing my original objection back and Despite vehement to the ad- (sic) case; decision Ms. Marr’s and I missibility Lowther candor, say, have to in all voca- court, in her of Appeals brief report impact. tional would have had no Appellant admissibility: conceded its “He- *3 Mr. Tierney permit- and Dr. Berla indicate that and sen Lowther should indeed be (sic) trial; Ms. Marr completed years of to ted but their testi- [her] education, formal my which al- mony record should treated the courts at ready They reflected. indicate that any rate, any that other witness: testing she—that her indicates that she’s subject to the authority ultimate of the average in terms of word recognition jury weight to determine its and credibili- and arithmetic achievement which is ty.” Appellant Thus while abandoned her consistent her degree with of formal ed- testimony position that the Lowther was my ucation which was conclusion based inadmissible, weight she that insisted its on the that record was before me credibility and determined my original So, made decision. the trier of fact and not be used as sole any impact. would not had summary judgment. basis for a But even with the testimony, Lowther and Hesen purposes summary For judgment motion, summary this was not a Appellee judgment that admitted testimony could find that he Hoffman’s created an issue negligently. acted Nev- ertheless, granted Summary the Circuit Court sum- fact.1 judgment would have mary judgment on grounds that Appellant appropriate only accept- one failed that damaged by show she was testimony capacity ed Lowther her negligence Appellees. deposi- The presiding judge, law administrative testimony tion of Administrative Law merely not as a reasonable administrative Judge Lowther to that effect was decisive. judge. law summary After the trial court granted Appellant’s While concession judgment, Appellant filed motion to al- ill- Appeals appears Court of to have been ter, amend or vacate. The trial court de- (a advised, in her point she concedes Su- motion, Appellant’s nied ar- rejecting brief), preme Court the concession was guments administrative Appeals made and the Court of was enti- judge’s Kentucky violated concession, to rely Appellant’s tled on it. Conduct, Code Judicial SCR 4.300. The however, short acknowledging is far Klapheke, Ky., Court relied on Bierman v. right Law Lowth- Administrative The Ap- Court of malprac- er dictate the outcome peals concluded that was no genuine there by merely tice case saying, “this would not any issue as to material fact because Ap- fact, in any In impact.” Court pellant did any not introduce “evidence brief, Appellant only Appeals conceded [Appellee’s] duty proximate- breach of admissibility bare of the Lowther testimo- damage” ly caused her and that “[t]he ny, proper but it as a basis did not concede testimony given by Lowther He- judgment. summary for unequivocally sen indicates even had summary judg- [Appellee] introduced vocational We have no doubt that testimony, it made no and that this case inappropriate would have differ- ment ence in the outcome.” must be remanded to the court Rose, Center, Inc., Hosp. Ky., Ky., 1. See Paintsville Co. steel Service 807 S.W.2d Steelvest, S.W.2d 255 Inc. v. Scan Klap question However Bierman proceedings. further The then witness.” recognized that KRE heke,4 this of Admin- becomes whether one as a prevent not who served does Judge Lowther should be istrative Law testify phase one parties admitted. We loathe order proceed ing subsequent separate upon to trial a concession that re- based ings. misapplication of the law. In quires a cir- v. Hudson2 we encountered It error
Collins
reversible
the ALJ.
parties
permit testimony
where the
cumstance
5 of SCR
controlling
argument
courts below had overlooked a
that Canon
Conduct,
4.300,
which
the statute.
If
stat-
Code
Judicial
provision of
the entire
*4
testifying
a
judge
a
from
applied,
prohibits
dismissal
have
ute
she
the
resulted,
statute,
in a
where he or
is
the
retrial
witness
case
but without
to
presiding judge
prevent
acts
to
necessary.
was
be
This Court was re-
testifying in this
Dockter from
case
to
quired
preser-
decide whether failure of
unpersuasive.
noted in Lawson Ken-
As
trial
compelled
proceed
vation
the
court to
Handbook, 3d
tucky Evidence Law
controlling provision of
without
the
the
intact
at
KRE 605 “leaves
Ed.1993
response,
statute.
In
we said
person
the
a
who
case law that allows
cannot,
conscience,
in
good
In
we
the
part
in
of a
participates as a
one
name
failure of preservation, particu-
testify
subsequent
sepa-
a
case to
in
larly
the
nature
the error was
in that
There is
proceeding
rate
case.”
so elusive to both counsel
the
courts
a
who
nothing
prevent
to
is not
below,
court,
return
case to a trial
this
sitting
testifying
the
or
from
effectively directing
apply
it
to
any
Department
legal proceeding. Cf.
wrong law, thereby imposing liability
Hess, Ky., 420
Highways v.
that
not
exist but for the clerical
(1967).5
error committed
the LRC.3
and Professor Law-
The Bierman Court
In
of our
summary
view
conclusion that
Highways v.
Department
son relied on
judgment was erroneous based on the
Hess,
proposition
that
supra,
testimony,
Hoffman
remand to the trial
generally
disqualified
is not
such,
required.
court will
As
we will
separate proceeding.
in a
giving testimony
set forth
as it
to
herein
relates
Hess,
In
county
case
as to the value of land on behalf of
testify
presided in
underlying
when the case was heard
landowner
court,
having appointed
despite
circuit
Evidence,
Kentucky
housekeepers” who deter-
Rules of
Rule
“disinterested
compensation.
How-
competency
addresses
of a
mined the amount
ever,
provocatively
provides
to serves as a witness.
rule
the Court observed
that
different facts a different result
part
judge presiding
that
under
“[t]he
might
not
in that
obtain.
may
regard
apply
Ky.,
properly
the law without
2.
[sic] made his or I concur in the late Justice Leibson’s her decision and what he or she belief that a permitted to decide in a have done under different circum- action what stances. Such ALJ would have expert testimony use done in underlying action where the usurps jury’s prerogative to decide underlying only by action was triable objective ultimate facts. Under the by jury. and not standard for deciding what “should have been,” the use of such testimony, even I. jurist made that malpractice, In an action for decision, improper.17 (1) (2) (3) breach, prove duty, must causa- though Appellant Even conceded tion, damage. purposes For of the of Appeals that Administrative Law ease, summary judgment entered this Judge Lowther should be to tes- duty and (negligence) breach are conceded. tify, Lowther’s insufficient The issue before us is what kind of evi- to support summary judgment it unless dence is relevant and to prove was treated as decisive because she was or disprove attorney’s negligence presiding judge. administrative law damage caused to his client. Because the reject any We such view. This case must proper objective test of causation is ie., be remanded to the trial court and in view one, “What would a reasonable adoption our standard presented have done if with different evi- hereinabove, as set forth Administrative dence?”, Lowther’s testi- Law should be mony that her award would have been the excluded from proceedings further issue, dispositive same did not address the support and thus was insufficient to a sum- mary judgment. LAMBERT, C.J., GRAVES, However, preclude the decision to JOHNSTONE, KELLER, STUMBO, and expressing opinion as to either WINTERSHEIMER, JJ., concur. what she would done or what a rea- *7 COOPER, J., a separate opinion judge present- files sonable done in concurring part dissenting part. ed with implicates the omitted evidence existing several rules of evidence. Cer- COOPER, Justice, Concurring Part tainly, ALJ Lowther is a wit- Dissenting Part. ness under KRE 601. KRE 605 renders a majority concur in the opinion’s conclu- testify only incompetent sion that the issue of causation presiding. case over which is then he/she by action should be tested Thus, primarily becomes one of “ than a rather stan- relevancy. ‘Relevant evidence’ means However, I dard. believe ALJ Lowther’s tendency to make having any evidence testimony should be excluded on the basis consequence of any existence of fact of existing judi- our rules of evidence and to a determination of the action more conduct, cial obviating necessity thus than it probable probable or less appears “public to resort to what to be a “All without the evidence.” KRE 401. rel- policy” admissible, respect except decision with to what evant evidence is as oth- essentially evidentiary of the provided by issue. Further- erwise the Constitutions MALLEN, 10, § supra note at 33.17.
863 526, McIntire, 704 Md. Ginsberg of v. 348 and the United States Commonwealth 1246, (1998); v. of Assem- 1256-57 State Kentucky, by Acts the General A.2d 647, by bly Kentucky, Grimes, 75, N.J.Super. the Commonwealth of 561 A.2d 235 Cos., rules, adopted other rules these (Ct.App.Div.1989); Herald 649-50 Kentucky.” KRE 236, Supreme Geddes, 122 Misc.2d v. Town Inc. expert as to opinion 81, (N.Y.Sup.Ct.1983); 83 470 N.Y.S.2d done judge would have what a reasonable Silverman, v. 80 Ohio Hirschberger “assist would be relevant (Ct. 1301, 532, 609 N.E.2d 1306 App.3d trier of fact to understand the evidence Chambers, 815 Joachim App.1992); fact in KRE to determine a issue.” (Tex.1991); 234, In re Wil 183, 1257, kinson, issue, 165 Vt. 678 A.2d that have Most courts faced however, testimony have held that underly- presided the judge who over the testimony for courts exclude such Other
ing equivalent action is excluded rules equivalent the KRE 403 balanc reasons 4.300, to KRE 403 or SCR of the Canon degree prejudice ing test because pro- of Judicial Conduct. Canon Code People v. party. E.g., to the adverse part: pertinent vides in Drake, 364, (Colo.Ct.App. 841 P.2d comply A. A shall respect Thornton, 1992); 646 A.2d Battle with the law and shall act at all times (“Such (D.C.1994) likely promotes confi- public manner prejudicial malprac particularly to be integrity impartiality dence actions.”); Cornett, at 575 supra, tice judiciary. (“The prejudice party risk to the great were presiding would be D_A shall pres- not lend the malprac subsequent allowed judicial pri- office tige to advance action.”); supra, at 1306 Hirschberger, tice ... vate interests of .... others (“[A] jury thinking could be into misled added.) (ALJ’s (Emphasis subject to opinions given greater that their should be of Judicial Code Conduct. KRS another unconnected weight than 342.230(5).) Wilkinson, case.”); supra, In re Thus, some courts exclude the (“[H]is testimony unduly prejudi under over the expertise.”); elevated aura of given cial its by the lying appearance action because the Co., 122 Helmbrecht v. St. Paul Ins. litigant for or against as a witness 362 N.W.2d Wis.2d adversely impartiality on the reflects (“[Tjhere danger instance, “In such judiciary. *8 weight.”) give undue appears throwing weight of his to be omitted). (quotation authority position and behind one of two ap- reasoning of these behind both litigants.” Reserve opposing Merritt v. applicable Co., proaches sound and 858, Cal.App.3d Cal.Rptr. Ins. 34 110 Thus, ALJ I would exclude 511, instant (Ct.App.1973). Phillips v. 528 See of ex- 300, by application Clancy, 152 Ariz. P.2d Gehret, rules, to decide obviating any need isting A.2d (Ct.App.1986); McCool v. (Del.1995); Johnson, evidentiary on the be an what should Cornett (Ind.Ct.App.1991); public policy.1 N.E.2d basis permitted to derlying over the un- action should not While the II. an equity judge place. tion as in the first right The reasons the constitutional Appellees assert that this case is re- by jury apply civil cases does not trial, manded for the trial should be before subjects to trial of certain issues are too a judge sitting jury. agree. without a scope broad to be included within the Kentucky In his Law Journal article on it say Article. Suffice legal malpractice, argued Justice Leibson type historically of issues included with- compellingly jury legal that a malprac- equitable jurisdiction, and now includ- tice action should to decide expanded meaning non-jury ed in the only negligence, issues of not causation jurisdiction, kind, are so different in damages. and/or many application, involve so variables declaratory A judgment action is a non- jury non-jury qualita- cases are jury trial and involves the trial court in tively different. findings of fact as well as conclusions legal law.... are sound reasons [TJhere Leibson, Charles Legal Malpractice M. tried, why certain cases are and tried Special Cases: Problems in Identifying better, jury. without a Matters which Issues Law and Fact and in the Use would be decided a without a 1, 8-9, Expert Testimony, Ky. L.J. 13- trial, jury at prior whether find- (1986-87). 14,17 law, ings of fact or conclusions of are jury qualified While a efficiently more decided jury to determine what another reasonable jury legal malprac- rather than the if presented would have done with evi- tice cases are tried. in, negligently e.g., an dence omitted ordi- nary jury incompetent tort is both upon alleged case founded im- [I]fi (in sense) legal unqualified to de- proper prior litigation, conduct of termine what question prior jury factual that a privy would have done had he/she defendant/attorney have decided if the That is particularly omitted evidence. proper investigation, had conducted a where, here, trae the issue involves evidence, presentation, or exclusion of law, highly specifical- technical area of the steps on a bearing decision based ly, quality proof the nature and neces- facts, question jury. is a for the But here, (or, sary to warrant an increase question decision increase) greater a previous have followed the earlier case compensation response award in to a mo- defendant/attorney proper had taken reopen tion to that award on the basis of a steps question is a of law for the court. statutory change of conditions under the
requirements of KRS 342.125. ALJ’s unlikely jury years’ expe- It that a required could ever be to have at least “five prac- adequately instructed to determine an rience in the Commonwealth equitable matter of this nature or a because tice of workers’ field, training knowledge lacks sufficient to func- related extensive *9 i.e., testify expert testimony, as an as to how that the evidence is unavail- such if judge” Drake, another de- "reasonable would have through supra, at able other means. presented 367-68; Williams, cided the case if evidence, with additional Conn.App. State v. could as to factual (1993); Ginsberg, supra, 621 A.2d during prior events observed or collateral at 1257-58. proceeding compelling there a is need for abrogating for those law.” There is no basis KRS 342.230(3). Simply experienced an being public goals simply because policy lay Being juror a attorney is insufficient. con- matter arises It is a difficult far more insufficient. text. for even proposition experienced an omitted). (internal Id. at 440 citation is unfamiliar the technical judge who with could agree. underlying action If Compensation intricacies of the Workers’ decided a only have been predict Act to how a “reasonable ALJ” ALJ, objective is to be if an test presented decide a with e., causation, i what applied to the issue particular item of evidence. It additional would a or ALJ impossible jury. an task for a would be evi- presented decided if with different especially pre- if ALJ’s That is true are dence, in the expert that decision should remain testifying cluded wit- nesses.2 a modicum hands someone with least how knowledge such decisions Supreme Court of Utah held made. Barker, (Utah P.2d 433 Harline 1996), right jury to a in an majority’s I concur Accordingly, in the depends action for malpractice upon subjec- decision to exclude ALJ Lowther’s plaintiff jury
whether the was entitled to a to also tive as to causation and trial in the underlying potential expert opinion exclude jury seeks to Harline determine ALJ” have decid- how “reasonable only a bankruptcy could if presented ed the case with additional have determined the first instance. However, I from the evidence. dissent why malpractice We see reason majority’s decision remand this case plaintiff bootstrap be able to causation by jury a trial on issues of way having jury into laya decide the is- require and would those damages underlying merits of the “suit within a sitting sues tried before a when, by suit” statute or rule of jury. without a law, only judge could have It underlying
made the decision. il- effect,
logical, change to make of responsibility
law’s allocation between jury underlying action in legal action is revisited thereby actions and distort analytic within “suit a suit” mode. and, proceed ignores
To so some
cases, public policy contradicts goals prompted assignment initial
which
decision-making authority respectively juries judges specific and to issues. entirely might legal-malprac- to the issue of One wonder how this evidence is relevant could negligence naturally tice counter into the but will "leak” causation, defendant that he chose to hire properly even if issue of expensive expert” because he "economics apply an than a instructed to rather reputation giving of ALJ knew to that issue. test testimony. or no credence to such Such little