Kentucky (last Shepardized on 9/25/04)
The attorney monitoring Kentucky state law decisions for this site is Barry M. Miller, a partner in the Lexington law firm Fowler, Measle & Bell. Readers should consult his helpful overview on Kentucky's law of expert evidence. Additional background can also be found at Harvard's Judicial Gatekeeping Project.
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Kentucky Supreme Court
Miller v. Eldridge, No. 2001-SC-0628-DG (Ky. Oct. 21, 2004). Patient dies after diagnostic angiography. His estate sues treating physician for medical malpractice, relying on vascular surgeon's expert opinion that angiography caused emboli that caused patient's death. In opposition, treating physician offers testimony from biomedical engineer Bruce Taylor, with Ph.D. in physiology and specialty in blood flow. Taylor opines that vascular surgeon's causal scenario would violate certain fundamental laws of motion. Patient's estate moves to exclude Taylor's opinion as unreliable. Trial court overrules objection and jury finds for defendant physician. Court of Appeals reverses, holding that admission of Taylor's testimony constituted abuse of discretion. Patient's estate appeals to Kentucky Supreme Court. Court of Appeals reversed; admissibility affirmed. Court of Appeals reviewed trial court's reliability determination for abuse of discretion. But reliability is factual issue for preliminary resolution by court in furtherance of its ultimate evidentiary decision, and trial court reliability evaluations should therefore be reviewed under "clearly erroneous" standard. Court of Appeals "failed to actually show that the trial court's ruling was arbitrary, unreasonable, unfair, unsupported by sound legal principles, or clearly erroneous." Instead, it conducted impermissible de novo review. Appellate courts should properly review Daubert rulings in thorough but deferential manner. In this instance, Taylor relied on time-tested scientific principles of physics and fluid flow. Trial court's judgment reinstated.
Thompson v. Comm., No. 1998-SC-0277-MR (Ky. Aug. 23, 2004). At sentencing phase in capital trial, sheriff testifies that he found fresh blood near body at scene of crime. Defendant objects that sheriff's testimony constitutes expert testimony and seeks Daubert hearing. Trial court declines to hold hearing, ruling that testimony is not expert evidence. Jury recommends death sentence and trial court approves recommendation. Admissibility affirmed. It did not require expertise to testify to presence of fresh blood at scene of crime, and Daubert was therefore inapplicable.
Toyota Motor Corp. v. Gregory, 136 S.W.3d 35 (Ky. 2004). Plaintiff is injured when airbag in her Toyota Corolla deploys during crash. In products liability suit against Toyota, plaintiff's engineering expert opines that kinder, gentler airbags should have been used, citing airbags in Honda vehicles as exemplary. Toyota counters with testimony from its own engineering expert, Robert Gratzinger, who says Toyota's airbag is within standard industry range based on his test of inflator systems from 26 different vehicle models. Trial court admits Gratzinger's testimony over plaintiff's objections, and jury finds for Toyota. Court of Appeals reverses because set of vehicles tested by Gratzinger did not represent random statistical sample. Toyota appeals. Admissibility affirmed. Court of Appeals was insufficiently deferential to trial court's evidentiary decision. Toyota was offering Gratzinger's testimony not for any statistical proposition, but to show that Toyota's airbag system was not atypical. His tests were performed in accordance with published, peer-reviewed, and generally accepted protocol with little or no error rate, and trial court did not abuse discretion in admitting his testimony. Judgment of trial court reinstated.
Brown-Forman Corp. v. Upchurch, 127 S.W.3d 615 (Ky. 2004). Plaintiff in workers' compensation action relies on hand surgeon's testimony that wrist injury is work-related. Employer objects that physician's opinion is unreliable, but ALJ concludes that Daubert is inapplicable because ALJ sits as trier of fact. ALJ's award to employee is affirmed by Workers' Compensation Board and Kentucky Court of Appeals. Affirmed. Because ALJ is trier of fact in workers' compensation proceedings, "concerns about the effects of cloaking evidence in an unwarranted aura of respectability are absent," and Daubert therefore did not apply to admissibility of surgeon's testimony. Although surgeon's opinion was controverted, it was for ALJ to weigh conflicting testimony.
Kentucky Court of Appeals
Baraka v. Comm., No. 2003-CA-000454-MR (Ky. Ct. App. Feb. 27, 2004). Woman with coronary artery disease and pulmonary emphysema dies of heart attack during altercation with defendant. Based on that information and her autopsy findings, medical examiner Dr. Christen Roth opines that death was "homicide by heart attack." Trial court overrules defendant's objection after Daubert hearing, and jury convicts. Admissibility affirmed. Medical examiner testified at trial that it is generally accepted within medical community that fatal heart attack can result from emotional distress at criminal act of another, and that this theory could be evaluated only through case studies, because it would be unethical to test it by inducing heart attacks. Testimony involved specialized medical knowledge that would assist trier of fact, and medical examiner was entitled to rely on information from police re occurrence of altercation.