Kentucky Injury Law Blog

On Monday, November 28, 2011, a Kentucky woman was crossing National Turnpike in Louisville early in the morning when she was struck by a pickup truck. She was seriously injured and was taken to University Hospital. Four days later, she died from her injuries caused by the truck accident, making her the 18th pedestrian killed by a vehicle in Louisville.

The 33-year-old driver of the vehicle stayed at the scene and was given a sobriety test. She tested at more than twice the legal limit and admitted to drinking 10 beers. She also had an open beer in the truck at the time of the accident and did not have a driver’s license. She was charged with driving under the influence, having an open container of alcohol in the truck, and driving without a valid license.

One would think that with all of the above charges brought against her, the driver would also be responsible for the death of the pedestrian, but that may not be the case in this particular accident. Preliminary investigations show that the pedestrian stepped into the road in front of the pickup truck, which would mean she caused the accident. “Someone walking in front of you, stepping in front of you, you can’t charge somebody for something that wasn’t their fault and was an accident,” according to LMPD Traffic Unit’s Lt. Doug Sweeney.

As of the end of January, the driver had only been charged with the issues listed previously, which carry a penalty of up to one year in jail. The pedestrian’s family does not think this is anywhere near harsh enough for the woman that killed their relative. They would like to see a wrongful death lawsuit filed. But the Jefferson County Attorney’s office, which is handling the case, said that is the strongest charge they can bring against her. The Commonwealth Attorney’s Office may be able to press felony charges, but will need to review the case to make that determination.

Continue reading "Kentucky Pedestrian Killed by Drunk Driver may be at Fault" »

Six scientists and doctors working for the FDA claim that the agency illegally monitored their personal emails. Then, based on the information gleaned from this process, the employees claim they were retaliated against through harassment or wrongful termination.

These professionals were working in the Device Evaluation department of the FDA when they allegedly determined that numerous devices that posed a danger to the public or were ineffective had been approved or were going to be approved in the near future. They first complained to the proper people at the FDA in 2007, but did not get any satisfaction, so they contacted The Health and Human Services (HHS) inspector general, Congress and the White House. The FDA had decided to secretly monitor their personal emails sent from work computers after their internal complaint and they discovered that the six in question had contacted individuals outside of the agency.

The FDA filed two complaints with HHS against the scientists and doctors, stating they had disclosed confidential information regarding the devices. HHS determined they had done nothing illegal and had a right to voice their concerns outside the agency. After the FDA was unsuccessful, the six employees were retaliated against, including one former professor from Yale and Cornell whose contract was not renewed. Another employee was terminated supposedly for a bad review, but internal FDA correspondence obtained through court included a letter from one manager saying they did not trust him. The others were either denied promotions, harassed, or terminated.

This case brings to light several issues regarding whistleblowers. A general definition of a whistleblower is one who witnesses an unsafe or illegal act by a company and notifies someone outside the company of the situation. In this case, the scientists and doctors felt the public’s safety was in danger because certain devices were being approved by the FDA that they felt were unreliable or unsafe. It is against the law to retaliate against an employee for doing this. Whistleblowers are not allowed to divulge confidential company information, even if they are communicating with the proper authorities. The FDA felt the six employees had given out information regarding the agency and the products that was confidential. If this had been the case, then the FDA would have had the right to punish the employees. However, the HHS inspector general’s office determined that no confidential information had been divulged, so the employees were within their rights when they made their reports to a few outside sources.

Continue reading "FDA Employees Retaliated against for Whistleblowing" »

Recently, two nurses at Kentucky nursing homes have been in the news for stealing medication from patients. The first case involves Jinger Butler. For six months in 2010, Ms. Butler allegedly took medication from 10 patients at Cumberland Valley Manor Nursing Home in Burkesville, Kentucky, and replaced them with different pills. She has been charged with 11 counts of theft of a controlled substance, which can result in a sentence of one to five years of jail time. She has also been charged with 11 counts of neglect because patients were denied proper care by her when she failed to administer their prescribed medications. The neglect charges carry a sentence between five and ten years.

In Paducah, Kentucky a similar situation occurred in December 2011. Lisa Helton was a nurse at Superior Care Home on Clay Street in Paducah. She was in charge of the medication cart on the night of December 20th when she took 12 tablets of Norco, a pain killer medication, which was supposed to be given to a patient. Ms. Helton was fired from the nursing home and arrested.

While the above two cases hit close to home for Kentuckians, this problem is occurring across the nation. In Danvers Massachusetts, a 29-year-old nurse was arraigned on January 20 in Salem District Court. She has been charged with taking patients’ prescribed pain medications and replacing them with over-the-counter medications in the fall of 2011. Before she proceeds to court, she will be allowed to receive treatment for drug addiction. She will most likely be admitted to a program offered by the state specifically for nurses with drug or alcohol abuse issues. Kentucky offers a similar program called “KARE,” or the Kentucky Alternative Recovery Effort for Nurses. The program offers nurses a chance to be treated for their dependency without losing their job or license.

Continue reading "Kentucky Nursing Home Staffers Arrested for Stealing Patients’ Medication" »

Most people are aware of the event data recorder devices, or “black boxes,” that are found in airplanes. They frequently provide clues to what may have gone wrong in a plane crash. However, many people do not know that this type of device is also found on many automobiles, particularly those manufactured more recently. These black boxes are constantly processing information regarding the operation of the vehicles the entire time they are running. If an airbag deploys, the information 15 seconds prior to deployment is saved.

This 15-second snippet of information can be very helpful in determining what happened just before and at the time of a car accident. The data recorded includes the rate of speed, whether the accelerator or brake was being applied, the steering direction, and if the seatbelts were in use. Because these data recording devices were originally installed in vehicles as a way for manufacturers to track their performance and diagnose any issues, some manufacturers claim they own the recorded data. However, the data can often be obtained through legal channels to be interpreted by a qualified forensic accident reconstructionist.

This type of information was used in a Louisville, Kentucky wrongful death case that stemmed from a car accident in 2011. Bryan Lee was test-driving a new Dodge Challenger when he ran into a Mercury Sable, killing both passengers on impact. After the accident, Mr. Lee stated that he was only going 60 mph in the 45 mph zone. However, data from the black box showed that the car had reached 102 mph just before the accident and hit the victims’ car at 86 mph.

Another recent case involved Lt. Governor Timothy Murray from Massachusetts. After totaling a government-owned vehicle at 5 a.m. in November, he passed a sobriety test and the police concluded the accident was caused by ice on the roads. When people continued to question him about the accident, Mr. Murray had the data pulled from the black box. Not only did it show that he was driving 10 miles over the speed limit initially, but it also showed that he pushed the accelerator and was traveling 106 mph when the accident occurred. Mr. Murray then changed his story and said he must have fallen asleep at the wheel. He was charged with speeding and not wearing a seat belt, another fact that the black box brought to light.

Continue reading "Black Boxes Help Investigators Determine Kentucky Car Accident Causes" »

Four people were killed in a car accident on January 18, 2012, including a Louisville, Kentucky woman who was attending the University of South Carolina. She was 23 years old. The other victims were also all in their early 20s.

The group had been celebrating the Kentucky woman’s birthday. Witnesses said they had seen the group at various nightclubs throughout the night, including one where one of the victims worked. Around 5 a.m., the driver of the Dodge Charger missed a sharp turn on George Rogers Boulevard in Richland County, South Carolina. The car crashed into a Farm Bureau Insurance building and burst into flames.

Several factors could have contributed to this tragic accident. Because the accident occurred early in the morning after the group had apparently been out at various nightclubs, alcohol is the first factor that comes to everyone’s mind. Adding to this the fact that they were celebrating someone’s 23rd birthday makes this seem even more inevitable. However toxicology reports have not been completed and probably will not be available for a week or two. If the report determines that the driver was intoxicated, action may be able to be taken against the establishments that served him alcohol. South Carolina does not have a specific “dram shop law” like Kentucky does, in which establishments that serve alcohol and allow an intoxicated person to drive can be held liable for personal injuries or damages he or she may cause. But recently the court upheld a verdict with a large award against a nightclub after a patron left, drove his car, and killed someone. So some liability may fall on the nightclubs the victims visited if they were served alcohol and were intoxicated when they left. The families of the passengers in the car may also decide to file wrongful death suits against the driver’s family. No other vehicles were involved, which narrows the fault down to the driver of the Charger.

Another factor that seems to have contributed to the accident was speed. Because the vehicle burst into flames on impact, and because the occupants appear to have been killed by the impact rather than the fire, the car was most likely going at a high rate of speed at the time of the accident. Investigators also think that at least three of the four people in the car were not wearing seatbelts. Whether or not seatbelts could have saved their lives will probably not ever be determined.

Continue reading "College Student from Kentucky among Four Killed in Car Accident" »

National origin discrimination is defined by the Equal Employment Opportunity Commission (EEOC) as “treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).” This type of discrimination can also occur if an employee is related to someone who is from another country or has a different ethnicity.

Mesa Systems, Inc., a Colorado moving company doing business in Salt Lake City, Utah, was sued by the EEOC on behalf of Latino and Polynesian employees last month for national origin discrimination. The employees first complained in 2007 and the EEOC began their investigation. The suit says their supervisors called them derogatory names based on their assumed national origin. While a stray comment or an episode of teasing is not considered illegal, consistent belittling of an individual because of his nationality is illegal and creates a hostile work environment.

Also, in 2006, Mesa Systems made it company policy in their Salt Lake City facility that all employees had to speak English when at work. The complainants felt this policy was instituted to discriminate against them because English was not their first language. The EEOC states “An “English-only rule”, which requires employees to speak only English on the job, is only allowed if it is needed to ensure the safe or efficient operation of the employer’s business and is put in place for nondiscriminatory reasons.”

When the employees complained about the verbal harassment and the adoption of the English-only rule to the EEOC, some of their hours were reduced and others were fired. This type of action by an employer – called retaliation – is also illegal under Title VII of the Civil Rights Act of 1964, which protects certain classes of individuals from discrimination in the workplace. Individuals can be protected by Title VII based on their gender, nationality, religion, age, or disability.

Continue reading "New National Origin Discrimination Lawsuit Filed" »

On Friday, January 13th, one passenger and one pedestrian were killed in a car accident during a high-speed chase. The owner of the car moved it onto the street and left it running while he finished getting ready, and when he went back outside the car was gone. He called police who located the car and attempted to stop it. Rather than stopping the driver took off, leading the officer on a short chase down Dixie Highway. Three minutes later, the car struck a pedestrian and a utility pole, and the two individuals in the car were ejected. One of the victims was the pedestrian who had been walking to class at National City College. The other fatality was one of the occupants of the car. Because both people were ejected from the vehicle during the accident, it is unclear whether he was the driver or passenger. The other occupant was taken to the hospital with undisclosed injuries.

Accidents such as these raise questions as to whether or not high-speed police chases should be allowed. Louisville Metro Police are supposed to consider several factors before embarking on a high-speed chase. First is whether or not the driver of the car is a felon. Because the car was stolen and it was fleeing from police, the driver could be considered a felon. Next an officer needs to decide whether apprehending the occupants of the vehicle immediately outweighs the risks involved in high-speed chases. Road conditions, the amount of traffic, and the assumed offense are all factors in this decision. Standard procedures in this type of situation include placing the officer on paid administrative leave while the accident is investigated and confirming the officer followed policy and did not commit a criminal act.

In the colder weather of winter it is very tempting to turn your vehicle on to warm up before driving it, just like the owners of the stolen car did Friday. But running cars are easy targets for thieves. Even if the car is locked, a thief can easily break the window and drive away. Not only is it unsafe to leave your car running, it is also against the law in Kentucky, even on your own property. The law states “No person operating or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition and removing the key.” Whether this law factors into this accident remains to be seen.

Continue reading "High-Speed Chase Ends in Auto Accident, Death of Two in Louisville, Kentucky" »

In the last week, two new sexual harassment lawsuits were filed in Jefferson County Circuit Court in Kentucky. The suits also claim retaliation and wrongful termination, claims which often accompany sexual harassment or discrimination allegations.

In the first case, Mary Sue Turner alleges she was harassed by a fellow employee while she was employed at the Jefferson County Clerk’s office. She has sued the clerk’s office and County clerk Bobbie Holsclaw. Ms. Turner claims that Mr. Clark touched her inappropriately, made lewd gestures with his body, and even slept in her office in the hopes of being intimate with her. Complaints about his behavior allegedly fell on deaf ears and he continued to harass her. After she complained about the harassment and reported that the office was accepting inappropriate gifts from local businesses, Ms. Turner contends that Ms. Holsclaw gave her bad performance reviews and wrongfully terminated her.

The second case was filed by Dr. Clay Kendall, a veterinarian that was employed by Louisville Metro Animal Services. The lawsuit states that the former director of the department, Gilles Meloche, sent her sexually explicit phone messages and touched her inappropriately. Dr. Kendall also claims that Mr. Meloche lured her to Proof on Main for a supposed business meeting between the two of them and one other individual. Mr. Meloche was intoxicated upon her arrival and proceeded to talk about Dr. Kendall’s personal life rather than business. The third party that Mr. Meloche said would be there stated after the fact that she was never requested to join them at the restaurant. Dr. Kendall complained to officials and showed them lewd text messages from Meloche, but they allegedly did not take any action to remedy the situation. Subsequently two new vets were hired to replace Dr. Kendall even though she allegedly had a contract to provide veterinary services.

Continue reading "Two New Sexual Harassment Lawsuits Filed in Louisville, Kentucky" »

On September 9, 2008, an 87-year-old woman got on a nursing home bus for a trip to the grocery store. When she failed to appear back at the nursing home, nursing staff, family members and police searched for her. She was found 14 hours later, still on the bus. She had become hungry and thirsty and consumed hydrogen peroxide and Tylenol from a first aid kit. She passed away two months later, and family members and friends allege it was a result of the nursing home’s neglecting to return her safely to her room.

The victim’s niece filed a lawsuit against Hearthstone Assisted Living in 2010, but never received any information from the company. The facility was taken over by Kentucky nursing home company Elmcroft in August of that year, but it denied any liability in the incident since it only purchased the assets from Hearthstone. Hearthstone subsequently dissolved and its attorneys stopped representing the company. Because the company never responded to the lawsuit and it failed to appoint new representation when the attorneys quit, a default judgment was granted in the victim’s favor in the amount of $1.65 million.

In many situations this would be a positive outcome for the victim’s family, but this case is different. An award in a case like this is normally paid by a company’s liability insurance, much like the damages caused by someone in an auto accident are covered by his or her auto insurance. Where this situation differs is that nursing homes in Michigan, where the nursing home was located, are not required to carry liability insurance like car owners are. Unfortunately, Hearthstone was self-insured, so when the company was dissolved, the insurance disappeared as well.

Ironically, in the same year the incident happened, a Michigan state representative supported legislation that would have required nursing homes to carry at least $500,000 in liability insurance. The bill did not pass. Michigan is not alone; the majority of states, including Indiana and Kentucky do not require these facilities to have liability insurance, leaving victims and their families without a way to receive payment in this type of situation.

Continue reading "Woman Dies after Being Left on Nursing Home Bus, Kentucky Company Involved" »

In the last two weeks of 2011, there were at least two head-on collisions in Indiana and Kentucky that resulted in death. On December 16th, a 17-year-old driver crossed the median near Evansville Indiana and struck an oncoming car, killing herself, her 8-year-old passenger, and the two people in the other vehicle. A Danville, Kentucky man was killed when his car crossed the center line and collided head-on with a box truck near Bryantsville on December 30th.

Car accidents that result from head-on collisions are among the most deadly. Although they account for only two percent of all accidents, they cause ten percent of all car accident fatalities. One reason they are so dangerous is because of the amount of speed involved. If two cars moving at 50 mph collide, the actual speed at impact is 100 mph since the rate of speed is combined. Running head-first into a stationary object can also cause serious injuries or death because a tree, lamppost, or other hard object will not give way upon impact like another vehicle will. Head-on collisions are even more dangerous if the occupants are not wearing seatbelts because they can be ejected from the vehicles. Injuries caused by head-on collisions include head and neck injuries, broken bones, internal bleeding or bruising, and spinal cord damage.

Head-on collisions between generally occur in one of three ways. A vehicle traveling in one direction crosses the middle of the road and ends up in the lanes of oncoming traffic; a vehicle drives the wrong way down a one-way street; or a vehicle enters a highway from an off-ramp instead of an on-ramp, causing the vehicle to travel in the wrong direction.

One might ask how a driver could drive across a median, down a one-way street the wrong way, or up an off-ramp. Several factors can cause these situations to occur. Drivers who are distracted may allow their vehicles to veer to one side enough to cross the double yellow lines. No one can forget the Kentucky truck accident earlier this year that took the lives of 11 people when a semi driver was distracted by his cell phone and drove into oncoming traffic. Intoxicated drivers may be confused and unable tell an off-ramp from an on-ramp. Neither of these appears to be the cause of the accidents mentioned above.

Continue reading "Kentucky and Indiana Head-on Collision Accidents Deadly" »

Many states have passed or are passing laws that prohibit smoking in public places, including restaurants, universities, airports, and hospitals. These laws have been enacted mainly to protect non-smokers from the effects of second-hand smoke. It also allows them to enjoy public places without smelling smoke or having their hair or clothes smell of smoke. Many businesses, even if not covered by state laws, are becoming smoke-free as well for the same reasons. Some places of employment, however, may be taking the smoke-free workplace a little too far.

About 6,000 businesses around the country have adopted “no-nicotine” policies, which not only prohibit smoking at the place of business, but also prohibit the hiring of smokers or other tobacco users. Most employers hope to save health insurance costs and some believe they will have a healthier, more productive staff by not hiring smokers. A few companies may be trying to encourage potential employers to either quit using tobacco or convince them not to start smoking in the first place. One justification given by hospitals and other medical providers is that they should be setting a healthy example for their clients, and having employees smoking outside a medical building sends the wrong message.

While federal law does not protect smokers, 29 states have instituted laws that make this selective hiring illegal. In 1994, Kentucky included smokers as a group that could not be discriminated against in hiring or other employment decisions. KRS 344.040 states, “It is an unlawful practice for an employer…To require as a condition of employment that any employee or applicant for employment abstain from smoking or using tobacco products outside the course of employment, as long as the person complies with any workplace policy concerning smoking.” More recently, Indiana passed a similar law.

Kentucky employees who use tobacco products are protected in some ways, but the law does not prohibit companies from charging them more for their health insurance. Employees who smoke may also be offered certain incentives to encourage them to quit smoking.

While encouraging people to make healthy choices and saving companies money on health insurance may seem beneficial, there are other issues. In this economy, many people are having a difficult time finding work, and someone who is very qualified may be denied a job simply because they use tobacco products. An employer would not know if a potential or current employee is using tobacco products when he is not at work unless the employer requires testing or watches an employee while he is off the clock. This sounds a little extreme, especially since it is perfectly legal for adults to use tobacco products. If companies are not hiring tobacco users to cut insurance costs, will they also not hire people who eat too much cholesterol because they may have heart issues or those who indulge in too much sugar because they may have diabetes? The list could go on and on.

Continue reading "Can Kentucky Employees be Denied Employment for Using Tobacco?" »

Earlier this month it was discovered that four Breathalyzer technicians were no longer certified to give the tests commonly used to determine whether or not a driver is intoxicated. Currently Breathalyzer technicians that work for the Louisville Department of Corrections are responsible for their own certifications, but the department will be taking over that responsibility and will make sure technicians are recertified at least two months before their certifications expire. The four technicians involved will not be allowed to administer any tests until after they are recertified in the beginning of January. The department of corrections says there are six other people with current certifications.

Because their certification expired in September, around 600 Kentucky car accident cases may be affected. Mike O’Connell, attorney for Jefferson County said many of the cases may end up being thrown out because the Breathalyzer test is “the single most important piece of evidence in the trial” when a drunk driver is involved. Prosecutors can still attempt to use other types of evidence to prove the driver was intoxicated, such as witness accounts, video taken at the time of traffic stop, or field sobriety tests, which are given by police officers at the scene. They may also seek charges other than DUI that do not rely so heavily on the Breathalyzer test, such as public intoxication and wanton endangerment. Meanwhile, defense attorneys are reviewing all of their DUI cases in the hopes that their clients’ Breathalyzer tests were administered by one of the technicians with an expired certification. Judges are expecting a large influx of motions regarding these cases in the coming weeks, but realize it was important that the truth be told about the situation.

James Ronald Brown was arrested for allegedly striking a man in the road and killing him on November 22, 2011. His Breathalyzer results showed his blood-alcohol content was more than twice the legal limit. But because his test was given by one of the technicians in question, this evidence may not be allowed to be entered in court. Prosecutors may have to use police video taken of his sobriety test and other evidence instead. The Breathalyzer issue was not discussed at the pretrial hearing, and Mr. Brown was released to house arrest and instructed not to drive or consume any alcohol.

Continue reading "Hundreds of Kentucky DUI Cases Potentially Affected" »