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The Legal Notepad

By: Attorneys Rob Mattingly Kevin Burke and John DeCamillis
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  • Summary

  • Attorneys Robert Mattingly, John DeCamillis and Kevin Burke are based in Louisville, Kentucky. Robert and John are highly successful litigators, while Kevin is a highly sought-after appellate attorney. The objective of The Legal Notepad Podcast is to provide valuable information about Kentucky law, Federal law and topics relevant in our community. The episodes will feature interesting interviews as well as technical discussions of the law and how to improve your trial practice. Robert and John are the founders of DeCamillis and Mattingly PLLC. Kevin is a partner in the law firm of Burke Neal PLLC. They have decades of experience practicing law throughout the state of Kentucky.
    2023
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Episodes
  • Recovery of Social Security Benefits in a Wrongful Death Action

    Recovery of Social Security Benefits in a Wrongful Death Action
    Feb 13 2024
    Episode 9:  Louisville attorneys Rob Mattingly and Kevin C. Burke explore the issue of whether social security disability benefits, or other entitlement-type programs, can be recovered in a wrongful death claim.  Lauren received this question from the listeners.  Rob and Kevin will provide insights, based on Kentucky law, in today’s episode. Editor’s Note:  If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast.    TODAY’S LEGAL QUESTION: Are social security benefits recoverable in a wrongful death claim? Before answering the question, context is important.  Let’s establish a foundation for the discussion.  Destruction of Power to Labor and Earn Kevin begins by noting that wrongful death in Kentucky isn’t just based on case law and/or statute.  It’s actually provided for in Kentucky’s Constitution.  Section 241, states, “Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death.”    As a result, we now have KRS 411.130.  Included in this is the provision for punitive damages if the act was willful or involved gross negligence.  Aull v. Houston This is a 2010 Kentucky court of appeals case.  It involved the death of a 5-year old child.  The child was born with a severely disabling disease.  The child obviously had no earning capacity.  The original complaint involved a medical malpractice action involving immunizations that brought about the death of the child.  The child had been receiving supplemental security income (SSI) benefits.  The question was whether those SSI benefits were recoverable as part of the wrongful death action. In circuit court, the parties briefed it for partial, summary judgement.  The defendant filed the motion solely focusing on the child’s destruction of the child’s power to labor and earn money.  The plaintiff’s estate admitted there was no way the child would earn money through labor.  The court ruled social security benefits, under the facts of this case, were not recoverable in the wrongful death action. The parties asked the circuit court to certify the ruling as final and appealable with no just reason for delay, under civil rule 54.02.  The court certified it.  Remember, this only resolved one element of damages in the case. Kevin notes the case went to the court of appeals as a case of first impression for Kentucky courts, but not in federal district court applying Kentucky law.    Lauren comments that the court cites Meinhart v. Campbell.  This was a 2009 federal district court case involving a wrongful death.  The deceased was receiving social security disability insurance benefits (SSDI), prior to the death.  The court was dealing with a case of first impression, in this instance.  The court held the SSDI benefits payments could include the disability benefits in determining the wrongful death damages.  The decision was likened to other cases wherein a pension could be recovered in wrongful death action.  The Kentucky appellate court in Aull v. Houston recognized that federal district court opinions have only persuasive value in Kentucky appellate cases.  It viewed social security benefits are not an element of the destruction of the power to labor and earn money.  Therefore, “social security benefits” can’t be added to the damages.    Rob comments that Aull never distinguished between the different types of social security benefits. Savage v. Co-Part This is a 2023 Kentucky Supreme Court case.  Rob notes the procedure in the case is difficult of follow, but it’s relevant for the discuss of this episode’ focus on social security benefits.  It did some very important things for Kentucky families.  Rob and Kevin specifically recognize the work done by the Richard Breen Law Offices, in Louisville, for the work they did on this case.  They also recognize Calloway County attorney Jeff Roberts who wrote the amicus brief on this specific issue.  Savage v. Co-Part is a wrongful death case involving a car wreck.  Mr. Savage was receiving social security disability insurance payments (SSDI).  The Kentucky court of appeals questioned Aull v. Houston.  Did the opinion in that case actually extend to SSDI?  The court did an analysis and essentially flagged it for the Kentucky Supreme Court.  Once it was accepted for Discretionary Review, the Kentucky Justice Association urged Jeff Roberts to file an amicus brief.    The Kentucky Supreme Court examined the reasoning behind the court of appeals’ decision in Aull and determines that the reasoning does not apply to social security disability benefits.  The Court found that SSDI is not an entitlement program, unlike supplemental security income (SSI).  In fact, the court of appeals opinion in Aull...
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    48 mins
  • Admissibility of Police Reports and Their Content

    Admissibility of Police Reports and Their Content
    Jan 31 2024
    Episode 8:  Louisville attorneys Rob Mattingly and Kevin C. Burke discuss whether police reports are admissible.  It’s a concern client often bring up during initial conversations with their attorneys.  Editor’s Note:  If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast.  Lauren begins by commenting on the number of responses to the recent poll asking about topics and other subject matter the audience would like to Rob and Kevin to address in upcoming episodes.  The feedback was terrific. As we dive into the topic, Kevin brings up a favorite answer given by many attorneys, “Well, it depends.”  The general rule is that, in Kentucky courts, police reports are inadmissible as hearsay.    Kentucky Rule of Evidence 803 contains the basis for what is not excluded by the hearsay rule.  In sub-section 6 it lists records of regularly conducted activity (e.g. the business records exception).  Sub-section 8 deals with public records and reports (e.g. the public records exception).  Specifically, 8(A) focuses on investigative reports by police and other law enforcement personnel. This establishes police reports are not an exception to the hearsay rule.   Manning v. Commonwealth Kevin summaries this Kentucky Supreme Court case, from the year 2000, which directly cites to KRE 803(6). In Manning vs. Commonwealth, the defendant in the murder case wanted to introduce the police report.  The report identified someone other than the defendant as the possible perpetrator, based on the statements of an unidentified witness.  The trial court ruled the police report was inadmissible as hearsay.  The Supreme Court affirmed the decision.  It was properly excluded under KRE 803(6).  The Court also cites the Kentucky Evidence Law Handbook.  Rob comments about the double hearsay issue because the report itself is hearsay, about someone else who’s making hearsay comments.  The Supreme Court also cited Prater vs. Cabinet for Human Resources, dealing also with KRE 803(6).  The opinion did note that the defense was able to ask the officer about the conversation with the unidentified witness, during cross-examination.  That testimony was admissible, even though the actual police report was not. Rob notes that they didn’t have to consider the admissibility under KRE 803(8)(A), because it was obvious.  However, the question was whether KRE 803(6) applied.  Gorman v. Hunt This is a civil case.  Gorman v. Hunt is another Kentucky Supreme Court decision from 2000.  It’s often referred to as the “posed photograph case.”  This was an automobile verses pedestrian case.  The issue was whether posed photographs could be admitted and shown to the jury.    Rob clarifies the case serves as an example of whether someone can recreate the area and taking photographs of the area.  They’ve posed the scene.    This case refers to an Advanced Life Support (ALS) Report, which would have been prepared by EMS personnel.  In the opinion, it’s not referred to as a police report, but it’s functionally the same thing.    The plaintiff wanted to use the ALS run report to show the defendant driver was exceeding 50 mph, at the time of the collision.  The speed was based on testimony from unidentified bystanders.  At trial, the court ruled the ALS run report was inadmissible.  The court of appeals affirmed the verdict.  The Supreme Court took it up on discretionary review.  The Court ruled that the trial court had ruled properly with regard to the ALS run report.  Campbell v. Marcum This 1968 automobile accident case addressed the admissibility of police reports and the information contained therein.  This collision involved two vehicles.  A Kentucky State Trooper completed the police report.  The question was whether the trooper could read from his report, while on the stand.  The defendant wanted this testimony from the trooper.  However, the trial court refused to allow a reading from the police report.  This issue was appealed.  The appeals court affirmed the trial court’s ruling that prohibited the trooper from reading the report aloud.    Kevin comments that no authority was cited regarding the admissibility of the report.  Instead, a general treatise (not a Kentucky treatise) was used.  It did not directly address hearsay.  Admissions by Parties and Prior Inconsistent Statements Rob and Kevin will discuss two cases dealing with this topic.  Again, clients often have questions about police reports, how they are going to be used and how to get statements either clarified or corrected.  Day v. Commonwealth (2007) This is a criminal case involving a DUI conviction.  Tammy Day was given a 7-day sentence with work release.  During this time, her daughter was in a car wreck.  Tammy petitioned for time to tend to her daughter.  The ...
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    1 hr and 1 min
  • The Collateral Source Rule

    The Collateral Source Rule
    Jan 11 2024
    Episode 7:  Louisville attorneys Rob Mattingly and Kevin C. Burke discuss the history of the Collateral Source Rule and the Kentucky Supreme Court decided to Kentucky will follow this particular rule. They’re joined by Rob’s paralegal, Lauren Hincks, who helped research some of the information for today’s topic.  The discussion references the following case:  O’Bryan vs. Hedgespeth (https://case-law.vlex.com/vid/bryan-v-hedgespeth-no-895448427) Editor’s Note:  If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast.    Kevin begins the discussion by stating this is one of the seminal cases for plaintiff’s attorneys, whenever medical expenses are at issue.  It’s a 1995 Kentucky Supreme Court opinion.  However, attention should be given to where it started in 1988, with Kentucky House Bill 551.  The resulting statute is KRS 411.188 requiring admission at trial of collateral sources.  What Are Examples of Collateral Sources? Rob mentions a very common one is the mentioning, at trial, of health insurance that might have paid some of the medical expenses.  Another example could involve short-term or long-term disability benefits that were received.   Collateral sources are typically benefits the plaintiff paid for or earned, so the question is should this evidence be admissible at trial?  Historically, Kentucky law did not consider this type of evidence admissible.  The legislature attempted to change that in 1988.  As a result, a judge has no discretion and they jury must hear about the collateral sources (regardless of the relevancy).    Edwards vs. Land actually went up before the O’Bryan case and is referenced in the O’Bryan opinion.  It was heard before the Kentucky Court of Appeals.  The opinion validated the actions of the Kentucky Legislature. A Common Misconception Regarding Discretionary Review Rob points out that the Kentucky Supreme Court did not review Edwards.  Kevin clarifies a misunderstanding in appellate practice regarding the Court’s denial of discretionary review.  Just because the Court chooses not to review Court of Appeals opinion, does not necessarily mean that the Supreme Court agrees with the Court of Appeals.  This particular issue is included in O’Bryan. O’Bryan vs. Hedgespeth and the Motion in Limine Rule The plaintiff in the case filed a motion in limine to exclude collateral sources.  The defendant argues the statue should be followed.  The court agreed with the defendant.  The plaintiff now must decide whether to bring up in voir dire or to wait to let defense bring it up.  If the plaintiff brings it up, have they waived the remedy on appeal?    In O’Bryan, the Supreme Court said the plaintiff didn’t waive the remedy.  The plaintiff is not required to wait.    Rob view this through the lens of fairness.  If you filed a motion in limine and the court denied it, then it should be fair that you have the opportunity to bring it up, first, without having to wait.  Kevin agrees.  However, he advises attorneys to make sure they have a ruling on the record. The Constitutional Phase The plaintiff made several arguments as to why 411.188 was unconstitutional.  The first argument involved Section 51, the Subject Title Clause.  In essence, if you have a title for a Bill and the subject doesn’t relate to the title, it’s a problem.  Kevin explains how Kentucky’s Constitution was designed to limit the General Assembly’s power to engage in shenanigans.  The Court found that there was not a violation of Section 51.  However, it left the door open as to whether other topics not related to collateral sources, would satisfy Section 51. The next issue dealt with separation of powers.  Kevin remarks how Kentucky’s approach to this issue created some of the strongest provisions of any state constitutions.  Sections 27, 28 and 116 focus on the separation of powers.  The Court reviewed whether the Kentucky Legislature telling the courts they needed to allow collateral sources actually violated the separation of powers.  Section 116 was of particular interest, because it grants exclusive authority to the courts, including the Kentucky rules of evidence.  Rob comments about the historical issue regarding the understanding of where one branch’s power ends and the others begin.  The Court found that 411.188 Subsection 3 actually does violate the separation of powers.  The Court also addressed the doctrine of comity.  This doctrine says the Kentucky Supreme Court can, under certain circumstances, give deference to the Legislature, even though it might violate the separation of powers (in this instance).  The Court found that the information was irrelevant.  It doesn’t address harm, fault or damages.  Thus, it decided not to give comity to the Legislature. Next, the Court ...
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    36 mins
Social Sciences
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