STRAUB (SHANNON) VS. ST. LUKE HOSPITAL, INC. , ET AL.Annotate this Case
RENDERED: DECEMBER 19, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL AND CROSS-APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE FRED A. STINE, SENIOR JUDGE
ACTION NO. 04-CI-00729
ST. LUKE HOSPITAL, INC.; E. KREBS, R.N.;
T. THEISEN; JOHN FEY; JOHN HOWARD
HARRIS AND ERNEST PRETOT
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: CAPERTON AND STUMBO, JUDGES; BUCKINGHAM,1 SENIOR
CAPERTON, JUDGE: Appellant, Shannon Straub (Straub), sued St. Luke
Hospital, Dr. David Allen (Dr. Allen), nurses Tricia Thiessen (Theissen), Emma
Senior Judge David C. Buckingham, sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110 (5) (b) of the Kentucky Constitution and Kentucky Revised Statutes
Krebs (Krebs), and John Fey (Fey), and security guards Ernest Pretot (Pretot) and
John Harris (Harris) in the Campbell Circuit Court for assault and battery and false
imprisonment. Straub alleges forced stripping of her clothing, restraint, and
catheritzation in the absence of a medical emergency. Straub also seeks
compensation for harm she claims to have sustained when the aforementioned
defendants allegedly acted in concert with City of Wilder police officer Jim
Kilgore (Kilgore) to deny her substantive due process rights as guaranteed by
Specifically, Straub first asserts that the trial court erred in denying
her motion for a directed verdict as to the liability of the appellees with respect to
her assault and battery claim. Second, she asserts that a narrative statement read
by the jury following the verdict constitutes an inconsistent verdict on a matter of
substance, and requests that the verdict be set aside and a new trial granted. Third,
Straub argues that the trial court erred in refusing to answer a question propounded
by the jury with respect to the nature of Straub’s injury. Fourth, Straub argues that
the trial court erred in allowing what she asserts was cumulative, prejudicial
character evidence regarding her past drug use. Finally, Straub alleges that the trial
court erred in granting summary judgment against Straub’s claim that the hospital
defendants acted in concert with the police in depriving her of her state
constitutional right to substantive due process.
In a cross-appeal, the appellees first assert that all claims against
security guards Harris and Pretot and against nurse Fey should have been
summarily dismissed from the circuit court action on the basis of the one year
statute of limitations under KRS 413.140. Second, they argue that Straub’s claims
of assault and battery should have been summarily dismissed under KRS 413.140.
Third, appellees assert that the Campbell Circuit Court action was not properly
filed within the ninety-day window provided by KRS 413.270. Finally, appellees
argue that the trial court erroneously gave a jury instruction on punitive damages.
Upon a thorough review of the record in this matter, we affirm in part,
reverse in part, and remand this matter back to the trial court for additional
proceedings not inconsistent with this opinion.
On April 17, 1999, Straub and her friend Melissa Jo Wallace (Missy),
volunteered at the American Legion VFW Lodge Bingo. They finished their
volunteer work at approximately eleven o’clock that evening. Thereafter, Straub’s
friends decided to go to a condominium owned by the brother of Missy’s friend,
which was located at Brentwood Apartments. Straub apparently fell asleep on the
floor at about 2:00 or 2:30 in the morning. Both Straub and Missy testified that
Straub did not ingest drugs while at the condominium that evening.
Contrary to the testimony of Straub and Missy, Straub’s boyfriend,
Christopher Porter, testified that Straub informed him that she was under the
influence of some substance on the night in question. Further, Straub allegedly
provided information to various individuals, including her mother that she had
taken some sort of drug earlier that evening. Straub did admit to smoking
marijuana the week before, and testified that her friends did smoke marijuana in
her presence on the evening of April 17, 1999.
At approximately 6:00 a.m., Straub awoke in the apartment, and
claims to have gone outside to her car to retrieve her backpack which contained her
toothbrush and toothpaste. Straub testified that she walked out of the building
without taking the keys to either the apartment or the building. Straub claims that
she then forgot which building she had exited and, as a consequence, she began
walking door to door, and rang ten or twelve doorbells in an attempt to wake up
one of her friends. Straub woke up several residents, and informed one of them
that she was lost. At approximately 6:30 a.m., one of the residents phoned the
police, and Officer Kilgore of the Wilder Police Department arrived on the scene
Kilgore testified that upon arriving at the complex, he observed Straub
wandering around on the sidewalk and requested her name. Straub initially told
officer Kilgore that her name was Shannon Miller. Straub apparently also
provided Kilgore with an incorrect address, and was unable to provide him with
her social security number or birth date. Straub was also asked if she had
identification, and she replied that she did not. Kilgore testified that Straub was
not argumentative at this time.
Kilgore asked Straub if it was she who had been ringing the doorbells.
Straub denied doing so. Kilgore testified that while speaking with Straub, he
noticed that she was glassy-eyed, weaving on her feet, smelled heavily of
marijuana, and had slurred speech and a look of “no concentration”. Kilgore
testified that he asked Straub if she had taken any drugs, and Straub replied that
she had, but did not know what kind. Kilgore stated that specifically Straub told
him she had been at a party and had taken a pill out of a bowl.
At that time, Kilgore asked Straub where she lived, and she pointed to
one of the apartment buildings. Kilgore escorted Straub back to that building, and
testified that Straub stumbled on the way there. Both Kilgore and Straub testified
that upon arriving at the building, Straub rang another doorbell. Kilgore testified
that at that time, a lady came to the door and testified that she had seen Straub exit
a car, and start ringing doorbells. Kilgore apologized to the lady, and turned to
speak with Straub, at which time Straub again asserted that she lived at that
particular residence, and rang the same doorbell again.
Kilgore testified that he then moved Straub away from the doorbells,
at which time she again asserted that she was “lost,” and that there was “no hope”.
It was at this time that Kilgore scanned the doorbell register for the last name
Miller. Finding none, he commented to Straub that her name was not on the
register. It was apparently at that time that Straub informed the officer of her true
last name. Not finding the name “Straub” on the register either, Kilgore then
explained to Straub that because she had given him multiple names, had no
identification, could not provide her birth date or social security number, did not
know what city she was in, and did not know where she was, he was going to take
her to the police station to try to locate her parents. Kilgore testified that Straub
was cooperative as he took her to the station.
Inside the station, Kilgore asked Straub to sit in a chair next to his
desk, and requested her parents’ telephone number. Kilgore testified that Straub
provided him with four or five phone numbers. Straub asserts that these were the
numbers of two friends, her mother, and her aunt. Kilgore stated that while he was
attempting to phone these numbers, Straub attempted more than once to leave her
chair for the exit. Straub testified that Kilgore handcuffed her to the chair. Kilgore
was ultimately unable to reach anyone at any of the telephone numbers provided.
Kilgore testified that while at the station, Straub remained compliant
with his directives, and was not argumentative. Kilgore testified that after being
unable to reach Straub’s parents he considered filing criminal charges, but instead
decided to call a court appointed social worker. After Kilgore explained the
situation and his observations of Straub, the social worker advised him to take
Straub to the hospital. Kilgore has testified that he again explained to Straub that
because she did not know her name, correct address, phone number, or date of
birth, she needed to be seen at the hospital. Straub claims that Kilgore never
informed her where they were going, nor explained why they were doing so.
Straub testified that she remained in handcuffs on the ride between the station and
Kilgore testified that upon arrival at the hospital, when Straub exited
the car, she stumbled again and nearly fell. Kilgore testified that after entering the
patient registration area, he handcuffed Straub to a chair to prevent her from
The hospital admitting registrar, Heather Tillett (Tillett), testified that
she tried to obtain information regarding Straub. She spoke with Kilgore, who
advised that he did not know Straub’s name or address, and who stated that he
found her wandering around ringing doorbells. Tillett stated that Kilgore also
informed her of his belief that Straub had possibly been assaulted. Tillett stated
that she was advised that Straub would not provide her name or address.
After Tillett’s initial attempts to obtain information pertaining to
Straub, triage nurse Tricia Theissen (Theissen) R.N., came to take Straub and
Officer Kilgore back to the mental health evaluation room. Theissen testified that
as Straub was proceeding down the hallway to the evaluation room, she was
cursing loudly and staggering, and almost fell to the floor. Nevertheless, Theissen
did not note glassy eyes or slurred speech, and testified that during her walk to the
room, Straub was compliant and responsive.
While Straub was being taken to the examination room, she was
observed by Nurse Robin Reilly (Reilly) R.N., who was charting at the nursing
desk. Reilly testified that Straub was unsteady and staggering, that she was
moving as if she was falling asleep while walking, and that Straub’s eyes were
very red and glassy.
Charge nurse John Fey (Fey) R.N., also observed Kilgore and
Theissen walking Straub to the emergency room. He stated that Theissen and
Kilgore had to hold Straub’s arms steady because she was wobbling. Fey testified
that Kilgore stated that he had found Straub wandering on the street, ringing
doorbells, and unable to determine which building she had exited. After speaking
with Kilgore, Fey went to the evaluation room to assist Theissen.
Upon arrival at the examination room, Straub’s handcuffs were
removed. Theissen confirmed that at some point during this process, Kilgore
provided her with Straub’s name and address. Triage by Nurse Theissen began at
approximately 8:07 a.m., which was approximately one and a half hours after
Kilgore first responded to the Brentwood Apartments and observed Straub. Nurse
Theissen testified that although Straub was angry at times during triage, her
behavior was not threatening to either Theissen or Kilgore. Theissen’s medical
notes indicate that Straub’s pupils were somewhat enlarged and sluggish, but that
she had no hallucinations. Further, the emergency room chart does not mention
threat of harm to any individual during any time while Straub was in the
emergency room, nor did it indicate any bizarre behavior.
Upon finishing triage, Theissen did not tell the attending physician,
Dr. David Allen (Dr. Allen) that Straub needed immediate attention. Dr. Allen
waited approximately twenty minutes before examining Straub. Dr. Allen picked
up Straub’s chart at 8:31 a.m., and he testified that he saw her within three to five
minutes of that time. Dr. Allen spoke with Straub, and testified that she appeared
dazed and had poor eye contact, which he noted was associated with mental health
issues. Straub remained in her street clothes and was not restrained at the time of
this initial examination. Dr. Allen testified that Straub would not respond to his
questions, but did provide her name. Dr. Allen stated that Straub had informed
him that she had fallen off of a motorcycle. In his chart, Dr. Allen noted that
Straub denied trauma, injury, rape, or assault. Dr. Allen did testify that Straub told
him she had taken “one pill".
At the conclusion of his initial examination, Dr. Allen’s differential
diagnosis included drug abuse, trauma, head injury post-ictal following seizure,
metabolic abnormality, and psychiatric disorder. Dr. Allen testified that Straub’s
physical findings and behavior were definitely consistent with drug abuse, and
diagnosed probable mind-altering intoxication. Dr. Allen testified that he was
concerned about Straub, and suspected that she had been given something
criminally, such as a date rape drug.
Following his examination, Dr. Allen ordered urine and blood
toxicology screenings, and requested that the nurses get Straub into a gown. Dr.
Allen did not recall Straub objecting to his orders, but did not ask for her consent.
No consents appear in Straub’s medical chart with respect to any of the procedures
which were ultimately performed. Dr. Allen did not order a catheterization of
Straub to obtain a urine sample, and testified that he assumed that when he gave
the order for the urine test, Straub would be given an opportunity to voluntarily
urinate into a sterile cup. Further, Dr. Allen testified that at the time he left Straub
after the first evaluation, she was quiet, still, and sedate, and there was no reason
for restraints at that time.
Fey testified that after Dr. Allen requested the urine screening, he
asked Straub to provide a urine sample several times, but each time Straub refused.
Fey testified that after several requests for a urine sample, he informed Straub that
if she would not voluntarily provide a sample, the nurses would have to put her in a
gown and catheterize her. Straub, on the other hand, asserts that she was never
offered an opportunity to voluntarily urinate in a cup. Nurse Krebs confirmed that
she could not recall offering Straub an opportunity to urinate in a cup before she
Thereafter, Fey spoke with Dr. Allen, and informed him that Straub
would not cooperate. He also advised Dr. Allen of his belief that the only way a
urine sample could be obtained was to catheterize Straub. Fey testified that Dr.
Allen told him to go ahead and catheterize Straub and put her into a hospital gown.
Dr. Allen testified that he was aware that Straub was being catheterized, and that
when a patient would not cooperate in providing a urine specimen, catheterization
was the only option. Dr. Allen testified that he was not critical of the nurses for
catheterizing Straub, and believed it the reasonable thing to do under the
circumstances. Nevertheless, the hospital does concede that if Straub had refused
to voluntarily provide a urine sample, such a refusal should have been recorded in
the medical chart.
Fey testified that while in the examination room, Straub stated several
times that she was going to leave, and attempted to force her way out of the room.
Straub denies attempting to leave the room. Fey testified that while in the
examination room, he asked Straub several times to put on her gown both so that
she could be examined and to deter her from leaving. Straub refused to do so
before her mother arrived. Thereafter, Fey and two female nurses tried to put
Straub into a gown. At that point, Straub began trying to kick, bite, and scratch the
One of the hospital security guards, Ernest Pretot (Pretot) recalled the
nurses asking for help, and testified that he heard Straub spewing obscenities and
making threats against the hospital staff. Kilgore confirmed that Straub was
making such threats, and testified that she threatened to kill the nurses. Pretot
testified that when he entered the room, Straub was kicking, biting, and swinging.
Pretot testified that he considered Straub to be a threat to both herself and others,
and described the room as “chaotic”.
Another security guard, John Harris (Harris), testified that when he
entered the room, one of the first things he noticed was Kilgore attempting to
restrain Straub’s head to keep her from biting one of the nurses. Harris testified
that he grasped Straub’s right hand to keep her from hitting someone, while the
nurses placed a sheet over her. Harris testified that during that time, Straub was
fighting, cursing, and kicking, and he felt her to be a threat to everyone in the
room. Harris testified that after he entered the room, Straub prophesized that
everyone would be sorry they got involved in the situation, and then attempted to
Ultimately, Straub’s clothing was removed, she was gowned, and was
placed in four-point restraints at some time between Dr. Allen’s first and second
examinations. Straub was catheterized at approximately 9:00 a.m. Straub asserts
that everyone assisted in removing the clothing, including the male nurse and
security officers. The hospital denies this to be the case. Kilgore concedes that he
assisted in restraining Straub and helping to remove her pants. Straub asserts that a
male nurse was present while this was happening, although the hospital denies that
this was the case.
Dr. Allen testified that placing Straub in restraints was entirely
appropriate, and testified that nurses have such authority if the patient is verbally
or physically threatening, or otherwise presents a risk to the safety of the patient or
the staff. Straub now asserts that St. Luke failed to comply with its own protocol
for using restraints, and asserts that there is no reference in Straub’s chart to a
medical emergency which would justify such conduct. Straub’s medical chart was
submitted into evidence. Appellees do not direct us to any rationalization in the
chart for the forced stripping and catheterization. Further, appellees concede that
the normal hospital protocol for employing restraints in the emergency room was
Apparently, during the time that Straub remained in the room, Kilgore
continued to attempt to reach Straub’s relatives, and was eventually informed that
Straub’s mother was already on the way to the hospital. Upon arrival at the
hospital Straub’s mother, Tina Miller (Miller), provided the hospital with Straub’s
correct name, address, and date of birth. Miller then entered Straub’s room, and
remained there for approximately five minutes, during which time Dr. Allen heard
a lot of yelling, profanity, and screaming. According to Dr. Allen, Miller then
exited the room, and informed him that Straub said she had taken some acid that
evening. Dr. Allen recorded this conversation in his emergency department
Ultimately, Straub’s drug screen returned positive for marijuana and
benzodiazepines. Dr. Allen testified that he believed that the drug results could
explain Straub’s drowsiness, unsteadiness on her feet, agitation, rage, and
confusion, and could have distorted Straub’s perception of reality. Dr. Allen
discussed the drug results with Miller. Ultimately, Dr. Allen testified that he was
very worried about Straub from the time she entered the emergency room, and felt
that the history of the evening, combined with her bizarre behavior, constituted a
After a discussion with Miller, Dr. Allen released Straub into Miller’s
custody, but advised Miller that social services would call her to follow-up on
Straub in a few days. Dr. Allen also requested that Miller take Straub to a family
physician for further evaluation.
Following this incident, on February 28, 2000, Straub, through her
mother and next friend, Tina Miller, filed an action in United States Federal Court,
Eastern District of Kentucky in Covington, wherein she sued The St. Luke
Hospital Inc., nurses Krebs and Theissen, Officer Kilgore, the City of Wilder,
Kentucky, Dr. Allen, and his employer, Emergency Physicians of Northern
During the discovery phase of the federal action, all defendants were
deposed, in addition to security guards Harris and Pretot, and Nurse Robin Reilly.
Those depositions occurred on March 29 and 30, 2001, respectively. During those
depositions, Nurse Fey’s involvement in Straub’s emergency room care was
discussed. Neither Harris, Pretot, nor Fey were named defendants in the federal
Over a year after the aforementioned depositions took place, and
following motions for summary judgment made by the defendants, the federal
court issued an April 10, 2002, opinion and order dismissing all of Straub’s claims.
In so doing, the court found that there was insufficient evidence to prove that the
That action alleged that Officer Kilgore and the City of Wilder violated Straub’s 4th and 14th
Amendment Rights under the United States Constitution by unlawfully arresting her, thereby
giving rise to a 42 U.S.C. §1983 action for civil damages.
The complaint also alleged that Officer Kilgore, Dr. Allen, his employer, nurses Krebs
and Theissen and St. Luke’s Hospital violated Straub’s rights under the 14th Amendment to the
United States Constitution by falsely imprisoning Straub, and that the City of Wilder wrongfully
authorized and endorsed such conduct.
In that same action, Straub asserted that the defendants violated her 14th Amendment
rights under the United States Constitution by wrongfully gowning her, catheterizing her, and
obtaining blood samples and that the defendants violated her 14th Amendment rights under the
United States Constitution by an unreasonable search and seizure, and by denying her
substantive due process by removing her clothes and allegedly exposing her to individuals of the
opposite sex. Again, Straub claims that the City of Wilder wrongfully ratified such conduct.
Finally, Straub claimed that Kilgore and other unknown individuals wrongfully failed to
intervene to prevent constitutional deprivations, and that the City of Wilder ratified such
conduct, again violating Straub’s 14th Amendment rights under the United States Constitution.
Straub also alleged that Kilgore violated Straub’s right to be free from false arrest under the
common law of Kentucky, that the defendants falsely imprisoned Straub in violation of the
common law of Kentucky, and that the defendants committed the tort of outrage. Finally, Straub
sought punitive damages.
hospital defendants were state actors, and thus concluded that Straub could not
maintain a §1983 action against them. Further, the court held that as Straub had
presented no actionable federal law claims against those defendants, her remaining
state claims, including common law false arrest, common law false imprisonment,
and the tort of outrage, were dismissed without prejudice.
Straub appealed that decision to the Sixth Circuit of the United States
Court of Appeals. On May 27, 2004, the U.S. Court of Appeals affirmed the
federal court’s dismissal of Straub’s lawsuit. In so ruling, the Court of Appeals
stated that it was unable to conclude that Straub had demonstrated that the hospital
defendants had acted under color of state law, and found that Straub had made no
showing that the hospital defendants were engaged in an action traditionally
reserved to the state. Further, the Court of Appeals held that Straub had presented
no evidence that Kilgore or any other representative of the state coerced or
encouraged the hospital personnel such that their actions could be deemed to be
those of the state, nor did it feel that Straub had adequately identified a relationship
with the state from which the hospital or its personnel benefited. Finally, the Court
of Appeals found that Straub had failed to show that she suffered a violation of her
federally protected rights, either as a result of her arrest, or during her treatment at
St. Luke Hospital. Accordingly, the Court found no need to address Straub’s
claims against the City of Wilder.
Following the decision of the U.S. Court of Appeals, Straub filed a
petition for rehearing. While that petition was pending, Straub filed a new action
in the Campbell Circuit Court on June 25, 2004. In the new action, Straub named
new defendants, including Fey, Harris, and Pretot. Straub made similar allegations
as she had in the federal action, but asserted that the defendants had violated her
rights under Sections 1, 2, 10, and 14 of the Kentucky Constitution. In addition,
Straub reiterated her three common law claims of false arrest, false imprisonment,
and the tort of outrage. On July 24, 2004, after Straub filed her new action in the
Campbell Circuit Court, the U.S. Court of Appeals issued an order denying her
petition for rehearing.
After Straub filed the action in Campbell Circuit Court, newly named
defendants Fey, Harris, and Pretot moved to dismiss all claims against them except
the tort of outrage, based upon a one-year statute of limitations. Defendant, St.
Luke’s Hospital, as well as defendants Krebs, Theissen, Fey, Harris, and Pretot
also moved to dismiss all claims that the hospital, nurses, and security guards acted
under color of state law to violate Straub’s constitutional rights. Defendants based
these motions on the prior federal court and U.S. Court of Appeals decisions, as
well as their assertion that the underlying facts did not support a claim that the
hospital employees had acted under color of state law to deprive Straub of any
constitutional rights, whether under the United States or Kentucky constitutions.
In addition, the one-year statute of limitations was argued.
Finally, the defendants argued that there has never been a Kentucky
decision recognizing a civil claim for damages for violations of state constitutional
rights as compared with a 28 U.S.C. §1983 claim for civil damages for a violation
of one’s rights under the United States Constitution.
Thereafter, on September 8, 2004, Straub filed a motion to amend her
Campbell Circuit Court action to include a new claim for common law assault and
battery, a claim which was not specifically asserted in the federal action.
Defendants again objected, asserting a one-year statute of limitations. The
defendant hospital and all of its employees supplemented their motion to dismiss
on October 4, 2004, asserting issue preclusion and statute of limitations. On
December 1, 2004, the Campbell Circuit Court issued an Order overruling all
motions relative to the statute of limitations arguments.
Thereafter, on January 13, 2005, the defendants again asked the
Campbell Circuit Court to dismiss Straub’s action, asserting that it had not been
filed within the 90-day window established by KRS 413.270, following the final
July 21, 2004, federal court ruling. That motion was also denied by the Campbell
Circuit Court. On April 25, 2006, defendants renewed their motions for partial
summary judgment. On August 4, 2006, the Campbell Circuit Court dismissed,
without objection, Straub’s claim for the tort of outrage, as well as all claims based
on the assertion that the defendants had violated Straub’s rights under the
Kentucky Constitution while acting under color of state law.
In so ruling, the Campbell Circuit Court concurred with the reasoning
of the Federal District Court and U.S. Court of Appeals in finding that the facts did
not demonstrate that the hospital or its employees acted as agents of the state when
they made their medical decisions in this matter. In so finding, the Campbell
Circuit Court held that those actions were independent healthcare decisions which
were initiated by Dr. Allen and the nurses without instruction or request by Officer
Kilgore. The circuit court also held that the particular issue of whether the hospital
and its employees were state actors had already been litigated. Thus, relitigation
was prohibited under either the doctrines of res judicata or issue preclusion. The
court later recanted its reasoning with respect to the doctrines of res judicata and
Ultimately, the claims against defendant Kilgore and the City of
Wilder for false arrest, as well as claims against the health care providers and
Officer Kilgore for false imprisonment and assault and battery, proceeded to trial
on August 14, 2006. The jury heard testimony from Straub, her mother, Tina
Miller, her friend, Melissa Jo Wallace, her boyfriend, Christopher Porter, Straub’s
expert nurse witness Carol Elliott, Officer Kilgore, emergency room receptionist
Heather Tillett, emergency room nurse Robin Reilly, emergency room nurse Tricia
Theissen, emergency room nurse Emma Krebs, emergency room nurse John Fey,
emergency room physician Dr. David Allen, security guard Ernest Pretot, security
guard John Harris, Dr. Allen’s expert witness Dr. Samuel Kiehl, and the hospital’s
expert nurse witness, Rebeca Tacy.
At the close of Straub’s evidence, the defendants moved for a directed
verdict on all issues. Those motions were overruled. At this time, Straub’s own
counsel moved the court to dismiss the false arrest claim against Officer Kilgore,
and the court sustained the motion. At the time the case was given to the jury, the
remaining claims were for assault and battery against the hospital defendants and
Officer Kilgore, and false imprisonment on the part of the hospital defendants.
During deliberations, the jury submitted the following three questions to the court
with the following responses from the court:
Question #1: In Question #2, can we the jury separate out
the culpability of St. Luke versus the injury to Shannon
Straub? That is, can we find fault with the defendant
without believing that Ms. Straub has experienced any
injury (i.e. psychological?)
Response: You are instructed to answer Question #2 as
Question #2: May we please have Shannon Straub’s
testimony or her deposition?
Response: You may not have either recorded testimony
from trial or a deposition. You must rely on your
Question #3: Does “injury” that is listed with each
question need to be lasting or temporary?
Response: Please reread and review the instruction(s) and
rely on your collective judgments.
Thereafter, the jury returned a verdict, finding that none of the defendants had
breached any duty to Straub which was a substantial factor in causing injury. In
answering the questions provided via the jury instructions, the jury answered “no”
to Question Number Two which asked the jury whether St. Luke Hospital, Inc.
breached any of its duties as set forth in the instruction and whether the breach was
a substantial factor in causing injury to Shannon Straub. After reading the verdict,
the jury foreman read a letter written by the jury concerning Question Number two,
For the record, we the jury believe that St. Luke bears
some of the responsibility for what happened to Shannon
Straub. The jury would have been unanimous in voting
“Yes” for Question #2 had it been phrased such that St.
Luke beared (sic) responsibility regardless of the injury
to Shannon Straub. The question, however, was written
such that both parts had to be agreed to in order to render
a “yes” response. This prompted us to ask our first
question. Since we were directed to answer the question
as written, nine of us voted to say “no” ...
Thereafter, Straub’s Campbell Circuit Court action was dismissed via an order and
judgment entered on September 18, 2006. Straub filed a CR 59.05 motion to alter,
amend, or vacate the judgment, asserting that it was necessary to prevent manifest
injustice. The court denied that motion on January 22, 2007. Straub then appealed
to this court, and the appellees cross-appealed.
In their cross-appeal, appellees assert that the trial court erroneously
failed to summarily dismiss all claims against Harris, Pretot and Fey based upon
the one-year statute of limitations. The appellees also argue that the trial court
erroneously allowed Straub to bring new claims of assault and battery, which were
never part of the federal action, and that the trial court erroneously failed to dismiss
Straub’s circuit court claim because it was not filed within the 90-day window
following the final U.S. Court of Appeals decision. The appellees also assert that
the trial court erroneously gave an instruction on punitive damages. Finally,
appellees assert that although the trial court did dismiss Straub’s claims that
asserted violations of her rights under the Kentucky Constitution, the court
erroneously failed to dismiss the constitutional claims on the grounds of res
judicata and issue preclusion, the one-year statute of limitations, and because no
case law exists to support recovery of civil damages for violation of state
constitutional rights. We address each of these arguments herein below.
Straub argues that the trial court committed error in denying Straub’s
motion for directed verdict as to the liability of St. Luke’s with respect to the
assault and battery claim.
The standard of review for an appellate court in reviewing a decision
of a trial court on a motion for directed verdict is well settled in the
Commonwealth. In ruling on either a motion for a directed verdict or a motion for
judgment notwithstanding the verdict, a trial court is under a duty to consider the
evidence in the strongest possible light in favor of the party opposing the motion.
Taylor v. Kennedy, 700 S.W.2d 415, 416 (Ky.App.1985). The court must give the
opposing party the advantage of every fair and reasonable inference which can be
drawn from the evidence. The court is precluded from entering a directed verdict
unless there is a complete absence of proof on a material issue in the action, or if
no disputed issue of fact exists upon which reasonable men could differ. Id. If
such conflicting evidence does exist, it is for the jury to determine and resolve such
conflicts, and any matters involving the credibility of witnesses. Bierman v.
Klapheke, 967 S.W.2d 16, 19 (Ky. 1998). We review this matter with these
standards in mind.
While it is undisputed that Straub was stripped, restrained, and
catheterized without her consent, the appellees assert that the actions which they
took in that respect were privileged due to a medical emergency. Having reviewed
the record in detail, we cannot agree with Straub’s assertion that the evidence,
when taken as a whole, is without conflict.
This Court believes that reasonable minds could differ over whether
or not a medical emergency existed in this case which would justify the actions
taken by the hospital staff. While it is certainly best practice for medical records to
be complete and thorough, mere notation in the medical record neither establishes
nor precludes a finding that a medical emergency did or did not exist. As noted,
the credibility of witnesses is for the jury, and we do not find the physical facts and
content of the records in this instance to be so diametrically opposed as to make
verbal testimony concerning the existence of a medical emergency unbelievable.
Accordingly, we believe that the trial court correctly overruled Straub’s motion for
a directed verdict on this issue.
Straub asserts that the narrative statement read by the jury following
the reading of the verdict3 constitutes an inconsistent verdict on a matter of
substance with respect to the St. Luke defendants. Thus, she argues that the verdict
should be set aside, and a new trial ordered.
The statement referred to by Straub in this argument stated “The jury would have been
unanimous in voting “yes” for Question #2 had it been phrased such that St. Luke beared (sic)
responsibility regardless of injury to Shannon Straub ... (Emphasis added)
Straub correctly states that when the jury renders an inconsistent
verdict, a new trial is the appropriate remedy. See Louisville & N.R. Co. v. Farney,
172 S.W.2d 656, 600 (Ky. App. 1943), Caretenders Inc. v. Commonwealth, 821
S.W.2d 83, 85 (Ky. 1991). Our standard for reviewing a trial court’s denial of a
motion for a new trial is whether the denial was clearly erroneous. Miller v. Swift,
42 S.W.3d 599, 601 (Ky. 2001). We review this issue with that standard in mind.
In reviewing this issue, we note that the Supreme Court of Kentucky
and the United States Supreme Court have also held that rigid adherence to a
prohibition against inconsistent verdicts may interfere with the proper function of a
jury, particularly with regard to lenity. Commonwealth v. Harnell, 3 S.W.3d 349
(Ky. 1999)(citing Dunn v. United States, 284 U.S. 390 (1932). Thus, inconsistent
verdicts, in and of themselves, do not require reversal.
In this instance, we believe that the jury’s statement, at the very least,
indicates understandable confusion as to the legal grounds upon which they could
have found the appellees liable. Finding the verdict itself reversible on the grounds
presented in Argument Three below, we need not reach the question of whether the
statement read afterwards by the jury constituted an inconsistent verdict.
As her third basis for appeal, Straub asserts that the trial court erred in
refusing to answer the questions of the jury pertaining to Question #2. The jury
indicated to the court that it was uncertain as to whether or not it was Straub’s
obligation to prove a permanent injury in order to be entitled to a judgment on her
assault and battery claim. Straub now argues that the court’s refusal to inform the
jury that permanent injury was not an element of Straub’s burden misled the jury
into believing it was an element. In support of her position in that regard, Straub
cites to the portion of the jury’s narrative statement indicating that the jury would
have found against the St. Luke defendants had they understood the level of injury
necessary to do so.4
Certainly, the law in this state permits the court to comment upon the
law when the jury so requests. Nevertheless, the appellees correctly note that it is
well-established that it is not mandatory that a trial judge explain or enlarge upon
the instructions if he believes them to be clear and self-explanatory. Thompson v.
Walker, 565 S.W.2d 172 (Ky. App. 1978). Likewise, our Court has previously
held that a formal definition is not required to be included in jury instructions
where the jury can understand the term without such a definition. See
Commonwealth v. Hager, 35 S.W.3d 377, 379 (Ky. App. 2000).
However, we note that in Thompson v. Walker, one of the cases which
appellees cited, this Court criticized the judge for directing the jury to the
instructions already given when they sent a question to the court asking for
clarification of one of its negligence instructions. In reviewing the matter, this
Court noted that the instructions as given were clearly confusing to the jury, and
found that if the trial court had provided explanation, some of the confusion might
The jury would have been unanimous in voting “yes” for Question #2 had it been phrased such
that St. Luke beared (sic) responsibility regardless of injury to Shannon Straub ... (Emphasis
have been eliminated. This Court found reversible error in that case, and
consequently reversed the decision of the trial court.
In the matter sub judice, appellees argue simply that the jury
instructions were consistent with jury instructions in Kentucky case law (although
they cite no such cases) and Palmore’s Kentucky Instructions to Juries. Although
the jury instructions were in fact consistent with Palmore, that alone does not
resolve the issue of whether the court’s refusal to answer the question at issue
misled the jury, and thus constituted reversible error. Having thoroughly reviewed
the record, we agree with Straub on this issue.
It is well-established in this Commonwealth that jury instructions do
not require formal definitions where the jury is able to understand the term without
such a definition. In the matter sub judice, however, we conclude it was clear from
the questions put forth by the jury that they lacked understanding as to whether or
not a finding of permanent injury was a prerequisite to establishing liability. Our
conclusion is supported by the jury’s post-verdict statement that it would have
rendered a unanimous verdict against the hospital defendants but for the court’s
response, or more specifically lack of response, concerning the degree of injury
necessary to establish liability on behalf of the defendants.
It is clear that the court’s refusal to answer the question exacerbated
the jury’s misunderstanding as to what was required for a finding of liability. As
this was not harmless error, we believe the only appropriate remedy to be a remand
of this case to the trial court for a new trial not inconsistent with this opinion.
As her fourth basis for appeal, Straub argues that the trial court
committed error in allowing the introduction of character evidence regarding
Straub’s past drug use and her alleged habit of using profanity when agitated.
Straub claims that the appellees repeatedly introduced testimony intended to
convince the jury that Straub had been under the influence of drugs when taken to
the hospital on the evening at issue. Further, Straub asserts that evidence of her
use of profanity implied that she did not suffer an emotional injury as a result of
the events of that evening. Straub objected to this testimony, relying on KRE 401,
403, and 404.
More specifically, Straub argues that the testimony of Straub’s
boyfriend, Christopher Porter, was erroneously admitted, and was the only
testimony that contradicted Straub’s evidence as to the events of April 16 and 17,
1999.5 Straub argues that this information, indicating that Straub was under the
influence of drugs or alcohol on the evening in question along with evidence
pertaining to Straub’s past and subsequent drug usage and habit of using profanity
was highly prejudicial, and should have been excluded pursuant to KRE 403. We
disagree in part.
Evidence is relevant which renders a material fact more probable or
less probable than it would be without the item. Commonwealth v. Mattingly, 98
S.W.3d 865 (Ky. App. 2002). Nevertheless, Kentucky Rule of Evidence (KRE)
Porter essentially testified that Straub had informed him, using expletives, that she was under
the influence of an intoxicating substance or substances on the evening in question.
403 allows a judge to exclude otherwise relevant evidence if its probative value is
substantially outweighed by the danger of undue prejudice, confusion of the issues,
misleading the jury, undue delay, or needless presentation of cumulative evidence.
The standard for an appellate court reviewing evidentiary rulings is whether the
trial court abused its discretion. Goodyear Tire & Rubber Co. v. Thompson, 11
S.W.3d 575, 577 (Ky. 2000).
In the matter sub judice, after a thorough review of the record, we do
not find an abuse of discretion in the trial court’s decision to allow the testimony
concerning Straub’s drug and alcohol use on the specific evening in question.
Certainly, the trial court could have found that this particular testimony was
relevant, as it served to directly contradict Straub’s testimony that she was coherent
and free from the influence of any illicit substance at the time the events occurred
at the hospital. Clearly, whether or not Straub was under the influence of any drug
or alcohol on the evening of April 17, 1999, is a material issue in dispute, and
directly relevant to the justification or lack thereof for the events that ultimately
Straub cites Bloxam v. Berg, 230 S.W.3d 592 (Ky. App. 2007),
apparently to make the assertion that the introduction of evidence pertaining to
Straub’s past drug use was to create an inference that she used drugs on the night
in question based upon little more than speculation. However, we find Bloxam to
be clearly distinguishable from the case at bar. In Bloxam, this Court stated that
“[t]he only possible motive for the introduction of such evidence would be to
induce an inference based upon Ms. Titzer’s assumption as to Dr. Berg’s daily use,
an inference based upon little more than supposition.” Berg at 503.
In Bloxam, Titzer was not directly informed by Berg of drug usage on
the night in question, but instead merely assumed such to be the case on the basis
of past instances in which she claimed to have witnessed him using drugs. There
was no evidence before the Bloxam court of current drug usage; error occurred
when the jury was allowed to infer current usage from past events.
In the matter sub judice, Porter testified that he was told directly by
Straub that she was under the influence of some substance on the particular night
in question. Contrary to the situation in Bloxam, such a scenario, if true, would not
require Porter to make any inferences based upon prior experience or assumptions.
Rather, the testimony simply consisted of Porter relating what Straub told him on
the matter directly at issue, namely, her drug usage or lack thereof on the night of
April 17, 1999.
With respect to evidence and testimony concerning Straub’s past and
subsequent drug usage and alleged habit of using profanity, we are of the opinion
that such evidence would properly be characterized as character evidence pursuant
to KRE 404, and accordingly, should not have been found admissible by the court
below. Having reviewed the record and the arguments of the parties, we are not of
the opinion that such evidence rises to the level of habit as that term is defined by
KRE 406 and accompanying case law. Nevertheless, we hold that even if such
evidence did constitute habit evidence, same should still have been excluded under
KRE 403 as being more prejudicial than probative in this instance. Thus, the
admission of such evidence by the trial court was reversible error.
As her final basis for appeal, Straub argues that the trial court erred in
granting summary judgment as to Straub’s claim that the hospital defendants acted
in concert with the police in depriving her of her state constitutional right to
substantive due process.
As noted, Straub asserted that the forced stripping, restraint,
catheterization, and blood draw without consent or court order deprived Straub of
her right to substantive due process and to be free of unreasonable search and
seizure as guaranteed by Sections 1, 2, 10, and 14 of the Kentucky Constitution.
Our standard of review on a trial court’s motion for summary
judgment is clear. The proper function of summary judgment is to terminate
litigation when, as a matter of law, it appears that it would be impossible for the
respondent to produce evidence at the trial warranting a judgment in his or her
favor. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.
1991). Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, stipulations, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. KRCP 56.03.
The moving party bears the initial burden of showing that no genuine
issue of material fact exists, and then the burden shifts to the party opposing
summary judgment to present “at least some affirmative evidence showing that
there is a genuine issue of material fact for trial.” Suter v. Mazyck, 226 S.W.3d
837, 841 (Ky. App. 2007), citing Lewis v. B&R Corporation, 56 S.W.3d 432, 436
(Ky. App. 2001). If the non-movant does not present affirmative evidence of a
genuine issue of material fact, then summary judgment is properly granted as a
matter of law. Hubble v. Johnson, 841 S.W.2d, 169, 171 (Ky. 1992).
The trial court must view the evidence in the light most favorable to
the nonmoving party, and summary judgment should be granted only if it appears
impossible that the nonmoving party will be able to produce evidence at trial
warranting a judgment in his favor. The Kentucky Supreme Court uses the word
“impossible” in a practical sense, not in an absolute sense.” Perkins v. Hausladen,
828 S.W.2d 652, 654 (Ky. 1992).
The standard of review on appeal when a trial court grants a motion
for summary judgment is “whether the trial court correctly found that there were
no genuine issues as to any material fact and that the moving party was entitled to
judgment as a matter of law.” Lewis at 436. Because summary judgment involves
only legal questions and the existence of any disputed material issues of fact, an
appellate court need not defer to the trial court's decision and will review the issue
de novo. Lewis at 436. This Court will now review this portion of Straub’s appeal
with these standards in mind.
In determining whether or not a private party is engaged in “state
action” for purposes of holding that party responsible for a constitutional
deprivation, the court should determine if any evidence has been produced
showing that the party provided “such significant encouragement that the actions
must be deemed to be those of the state.” Bass v. Parkwood Hospital, 180 F.3d
234, 242 (5th Cir. 1999). In her brief to this court, Straub cites numerous instances
which she believes establish such encouragement on the part of Officer Kilgore.
Rather than address those instances specifically, we note simply that
having reviewed the record in detail, and viewing the evidence in the light most
favorable to Straub, we conclude that it would be possible for Straub to produce
evidence at trial warranting a judgment in her favor. In light of Officer Kilgore’s
involvement6 in the events in question from beginning to end, we believe that this
issue is one that, on its face, properly belongs before the jury and is not to be
determined by the court upon a motion for summary judgment.
In response to Straub’s arguments, the appellees assert that Straub’s
state constitutional claims are barred by the doctrine of issue preclusion. Having
reviewed the record and applicable law, we again disagree. The law is clear that
the doctrine of issue preclusion, bars parties from relitigating any issue which was
actually litigated and finally decided in an earlier action. Yeoman v. Com. Health
Policy Bd., 983 S.W.2d 459, 465 (Ky. 1998). In support of their argument,
appellees argue that the U.S. District Court and U.S. Court of Appeals found that
the hospital employees were not acting under color of state law in examining and
While Officer Kilgore’s actions restraining Straub are of little concern, his actions in removing
Straub’s pants appear more troublesome.
While this may be true, we find it an important distinction that both
the U.S. District Court and the U.S. Court of Appeals were assessing Straub’s
claims under the United States Constitution, and not the Kentucky Constitution.
Thus, a determination that the defendants were not acting under color of state law
for purposes of the United States Constitution, does not reach the merits of whether
or not their actions were in violation of Straub’s rights as protected by the
Kentucky State Constitution. Actions are intertwined with the right given, and
there must be separate consideration given to whether the actions in question
violated a right or rights under each constitution
As Straub correctly argues, there are provisions in the Kentucky
Constitution, including Section Two of the Kentucky Constitution at issue in the
matter sub judice, which provide broader protections than those afforded by the
U.S. Constitution. As we noted in Steelvest Inc. v. Scansteel Service Center, Inc.,
State constitutions may offer greater protections for their
citizens than the federal constitution, and the Kentucky
courts are not bound by decisions of the United States
Supreme Court when deciding whether a state statute
impermissibly infringes upon individual rights
guaranteed by the state constitution, as long as the state
constitutional protection does not fall below the federal
We find this holding to be applicable to the matter sub judice, and decline to find
that the ruling of the federal court on a U.S. constitutional issue precludes our state
court system from deciding an issue of law under the Kentucky Constitution.
Further, we find the case of Davis v. Powell’s Valley Water District,
920 S.W.2d 75 (Ky. App. 1995), to be on point in the matter under review. In that
case, the Appellants filed an original action7 in federal court after voluntarily
dismissing in state court. The Davis plaintiff, as did Straub, re-filed state law
claims in state circuit court after a voluntary dismissal in federal court. The Davis
defendants argued, as appellees argue in the matter sub judice, that the federal
court’s finding that there was “no state action,” and that defendants were private
parties not acting “under color of state law,” foreclosed a claim under the
Kentucky whistle-blower statute as being res judicata.
While the state circuit court accepted the defendant’s argument, this
Court reversed, finding that res judicata properly applies only to a final judgment
upon the merits of an underlying action. Thus, in Davis the federal court’s earlier
dismissal of the action for lack of subject matter jurisdiction did not constitute
adjudication upon the merits of that action. We find similarly in the instant matter,
as it is clear that the federal court dismissed Straub’s state law claims without
prejudice; no adjudication, no res judicata. Finding no substantive distinction
between the facts of Davis and the facts in the matter sub judice on the pertinent
issues, we believe that law to be controlling and do not believe summary judgment
to be appropriate on these grounds.
Finally, appellees assert that Straub’s claims under the Kentucky
Constitution are barred by the applicable statute of limitations, because Straub
The action was filed to challenge a retaliatory discharge for whistle-blowing.
never made such claims in the federal action. We disagree. Each of the claims
asserted by Straub under the Kentucky Constitution carries a one-year statute of
limitations. Million v. Raymer, 139 S.W.3d 914 (Ky. 2004). However, as
previously stated herein, Straub filed her state complaint within thirty days of the
dismissal of her federal complaint. Thus, pursuant to KRS 413.270, the limitations
period for her state law claims did not expire between the filing of the two
complaints. The statute of limitations with respect to her state law claims was
tolled during the pendency of her federal action and subsequent federal appeal.
Finally, as noted herein, any new claims or amendments would relate back to the
original complaint in this action, as they are based entirely on the same transaction
or occurrence set forth in the original complaint. See KRCP 15.03.
Cross-Appeal Argument One
As their first basis for cross-appeal, appellees assert that all claims
against security guards Harris and Pretot, as well as all claims against Nurse Fey
should have been summarily dismissed from the Campbell Circuit Court action
based on a one-year statute of limitations.
As noted, Straub filed her federal action on February 28, 2000. At
that time, The St. Luke Hospital Inc., and two of its nurses, Krebs and Theissen,
were named as defendants. As part of that litigation, security guards Harris and
Pretot were deposed in March of 2001. Appellees assert that at that time, Straub
also learned of Fey’s involvement in the events at issue during the course of the
deposition of Nurse Robin Reilly, which was also conducted in March of 2001.
The federal action was ultimately dismissed on April 10, 2002. At that time,
Straub had yet to add either Harris, Pretot, or Fey to the action. Appellees assert
that any claims against Harris, Pretot, or Fey were barred by the one-year statute of
limitations at that time. After review of the record and applicable case and
statutory law, we agree with the appellees.
It is well established that the applicable statute of limitations for false
imprisonment claims is one year, as provided by KRS 413.140(1)(a)(c). That
provision clearly provides that all actions to which it applies are to be brought
within one year after the cause of action accrues. In Dunn v. Felty, 226 S.W.3d 68
(Ky. 2007), our Supreme Court answered the question of when the cause of action
accrues against an arrestee’s claim for false imprisonment. As our Supreme Court
noted, the United States Supreme Court recently provided persuasive guidance on
this issue in Wallace v. Kato, 127 S.Ct. 1091, 529 U.S. 384 (U.S. 2007).
In Wallace, the Supreme Court addressed the issue of whether or not a
suit in which the Plaintiff sought damages for an arrest in violation of the Fourth
Amendment had been timely filed under §1983. The Supreme Court relied upon
Illinois state law for the length of the statute of limitations, but determined the
accrual date of the cause of action was based on common law tort principles. In so
doing, the Supreme Court reasoned that the cause of action most closely related to
the fact situation before it was false imprisonment.
In determining the beginning of the limitations period in the case, the
Court reasoned as follows:
The running of the statute of limitations on false
imprisonment is subject to a distinctive rule-dictated,
perhaps, by the reality that the victim may not be able to
sue while he is still imprisoned: “Limitations begin to run
against an action for false imprisonment when the alleged
false imprisonment ends.” Citing 2 H. Wood, Limitation
of Actions § 187d(4), p. 878 (4th rev.ed.1916), 4
Restatement (Second) of Torts § 899, Comment c (1977);
and A. Underhill, Principles of Law of Torts 202 (1881).
As our Supreme Court noted in Dunn, the Court’s reasoning and conclusion in
Wallace are in accord with the general rule on the subject. Dunn at 72, citing
Belflower v. Blackshere, 281 P.2d 423, 425 (Okl. 1955).
Likewise, it is well-established that common law claims of assault and
battery carry a one-year statute of limitation pursuant to KRS 413.140, and that
Straub’s allegations regarding violation of constitutional rights also have a statute
of limitations of one year. Million v. Raymer, 139 S.W.3d 914 (Ky. 2004).
Indeed, of all the claims filed by Straub in the Campbell Circuit Court, only the tort
of outrage has a five-year statute of limitations. See KRS 413.120. As noted, upon
the conclusion of proof in this matter, the outrage claim was dismissed by the
circuit court and that dismissal was not appealed.
The events which give rise to the claims Straub alleges in this action
both began, and ended on April 17, 1999. Within one year from that time, Straub
appropriately filed her action in the federal court. At that time, however, neither
Harris, Pretot, nor Fey were named as defendants. Further, even after Straub
became aware of the extent of the involvement of these individuals on the date in
question, she declined to join them in the federal action.
It was not until nearly five years after the events giving rise to the
claim occurred, almost four years after Straub reached the age of majority, and
three years after Harris and Pretot were deposed, that Straub joined Harris, Pretot,
and Fey as defendants, when filing her Campbell Circuit Court action on June 25,
2004. Straub now argues that KRS 413.270, and our prior decisions in Ockerman
v. Wise, 274 S.W.2d 385, 288 (Ky. App. 1955), and Commonwealth v. Nelson, 435
S.W.2d 449, 450 (Ky. 1968), preserved Straub’s claims against those individual
parties until her complaint was timely filed in state court, following the dismissal
of her federal claims. We disagree.
KRS 413.270, in pertinent part, reads as follows:
If an action is commenced in due time and in good faith
in any court of this state and the defendants or any of
them make defense, and it is adjudged that the court has
no jurisdiction of the action, the plaintiff or his
representative may, within ninety (90) days from the time
of that judgment, commence a new action in the proper
court. The time between the commencement of the first
and last action shall not be counted in applying any
statute of limitation.
Further, both Ockerman and Nelson provide that the purpose of KRS 413.270 is to
protect an action which is commenced in due time and good faith, which was filed
in the wrong jurisdiction, and for which a defense was made, by allowing it to be
instituted in the proper court within ninety days of dismissal from the improper
court. Further, as Straub correctly notes, those cases provide that the time between
the first and last action doesn’t count in applying the statute of limitations.
We agree that both KRS 413.270 and the case law cited preserve a
Plaintiff’s cause of action when the conditions are met. However, neither the cited
law, nor any law of which we are aware, supports such an argument as it relates to
non-defendants. We hold that if Straub wished to join any of these three
defendants to this action, she should have done so within one year from the time
she became aware that a cause of action existed. Instead, Straub fully litigated this
matter in federal court while declining to join these defendants, despite the passage
of several years time, and despite being fully aware of their involvement in the
events at issue.
While KRS 413.270 would preserve Straub’s right to bring the action
in state court against the defendants following the conclusion of her federal action,
it does not entitle her to add an entirely new group of defendants of whom she was
already aware and against whom she previously declined to file an action. Had
Straub wished to join Harris, Pretot, and Fey to an action, she should have done so
within one year from the date of discovery of their involvement in the events at
issue. Underhill v. Stephenson, 756 S.W.2d 459 (Ky. 1988).
Straub erroneously asserts that because she named Jane Doe Nurses
and John Doe Security Guards in her federal complaints, she satisfied the
requirements of CR 15.03 as it relates to Harris, Pretot, and Fey. As the appellees
correctly note, this position is erroneous. In Ford v. Hill, 874 F.Supp. 149 (E.D.
Ky. 1995), the Federal Court for the Eastern District of Kentucky analyzed the
practice of naming John Doe defendants, and later amending the complaint to
name new defendants.
In addressing that issue, the court noted that FRCP 15, which is very
similar to KRCP 15, permits an amendment to relate back only when there has
been both an error concerning the identity of the proper party and where the party
was chargeable with knowledge of the mistake. The court held that the rule did
not permit relation back when there was a lack of knowledge of the proper party.
Such was the case in the instant claim, where Straub initially lacked
knowledge of all of the alleged “proper” defendants, and elected to file a complaint
against unknown nurses and security guards. Straub never made any attempt to
amend her federal complaint to include these defendants, and sought only to do so
nearly five years after the fact in state court. On the basis of the foregoing, we find
that Harris, Pretot, and Fey were improperly named as defendants in this matter,
and should therefore be dismissed from same.
Cross-Appeal Argument Two
As their second basis for cross-appeal in this matter, the appellees
assert that Straub’s claims of assault and battery should have been summarily
dismissed pursuant to KRS 413.140.
As the appellees note, Straub never asserted an assault and battery
claim in her federal action, and did not move the Campbell Circuit Court to add a
claim of common law assault and battery until September 7, 2004. At the time that
Straub sought to add the new claim, the defendants objected. Nevertheless, the
court allowed Straub to amend her complaint on December 1, 2004. After review
of the record and applicable law, we affirm the trial court’s decision.
Appellees correctly note that a common law claim for assault and
battery carries a one-year statute of limitations in Kentucky pursuant to KRS
413.140. However, the claim for assault and battery asserted in the Campbell
Circuit Court in this matter arises out of the identical facts, circumstances, and
occurrences set out in both the original complaint filed in federal court, and the
complaint subsequently filed in the Campbell Circuit Court.
We believe Perkins v. Read, 616 S.W.2d 495 (Ky. 1981), speaks
adequately to the matter sub judice. In that case, a widow sued individually and as
executrix of her husband’s estate for injuries arising out of an automobile accident.
Initially, the relief sought was limited only to a claim of damages for the husband’s
wrongful death and destruction of the family vehicle. However, nearly three years
after the accident, the widow sought leave to amend her complaint to assert
damages arising from personal injuries which she also sustained in the collision.
The trial court ordered the claim dismissed as being barred by the one-year statute
of limitations, a decision which was subsequently reversed by our Supreme Court.
In so deciding, the Supreme Court held that although the widow was
seeking to amend her complaint to add an entirely new claim, the amendment was
permissible and related back to the filing of the original complaint. In support of
its opinion in this regard, the Supreme Court cited to CR 15.03, which reads in
pertinent part as follows:
(1) When the claim ... asserted in the amended pleading
arose out of the conduct, transaction, or occurrence set
forth or attempted to be set forth in the original pleading,
the amendment relates back to the date of the original
As stated by the Supreme Court in Perkins, CR 15.03 is based on the theory that
notification of litigation concerning a given transaction or occurrence should be
sufficient to toll the statute even though the precise legal description is added later
Having reviewed the matter sub judice, we find Perkins to control.
Although Straub may not have specifically asserted the claim of assault and battery
in the federal action, the situation from which the allegations arose was identical to
that described in the original complaint. From the outset, the appellees have been
aware of Straub’s allegations, and of the injury she claims as a result. As the
appellees were so apprised, we decline to find that the assault and battery claim
was barred by the one-year statute of limitations in this instance.
Cross-Appeal Argument Three
As their third basis for cross-appeal in this matter, the appellees assert
that the Campbell Circuit Court action was not properly filed within the ninety-day
window provided by KRS 413.270. Having reviewed the record and applicable
law, we disagree and affirm the trial court.
Appellees correctly note that the Federal Court of Appeals issued its
final decision denying Straub’s petition for rehearing on July 21, 2004. Straub
filed her Campbell Circuit Court action approximately one month prior, on June
25, 2004. The appellees assert that Straub had only a ninety-day window between
July 21, 2004 and October 20, 2004, and that by filing early, Straub did not file
timely. In support of this assertion, Appellees cite Ockerman v. Wise, 274 S.W.2d
385, 388 (Ky. 1955), for the proposition that the saving statute, KRS 413.270, only
allows cases to be re-filed within ninety days after the final appealable order.
Having reviewed the applicable statutory and case law, we find
nothing to support a prohibition against filing prior to the time that the ninety-day
window would officially begin to run. As Straub correctly notes, the Sixth Circuit
initially affirmed the decision of the district court on May 27, 2004. Although
Straub filed a Petition for Rehearing, we find no authority to support the position
that a party must wait for an official ruling on that petition before filing in state
Further, we find nothing in the record to indicate that the defendants
were prejudiced by the early filing any more than they would have been had Straub
waited until a few weeks later to file the same claims. We believe that KRS
413.270 sets a definitive time limit by which Straub must have filed her claims in
state court, but find nothing that would prohibit her from filing those claims after a
judgment of the trial court but before that of the Court of Appeals, as she did here.
Accordingly, we decline to dismiss Straub’s claims on these grounds, as to do so
would certainly put form over substance.
Cross-Appeal Argument Four
As their final basis for cross-appeal in this matter, the appellees assert
that the trial court erroneously gave a jury instruction regarding punitive damages.
In support thereof, appellees assert that nothing in the record existed to allow the
jury to reasonably conclude that the three nurses and/or the two security guards
acted with maliciousness or gross neglect or reckless disregard for Straub’s rights,
nor that they acted in an intentional or deliberate manner possessing the character
In this Commonwealth, the law is clear if any evidence exists to
support an award of punitive damages, a plaintiff has a right to have the jury
instructed on the option to award punitive damages. Gersh v. Bowman, 239
S.W.3d 567, 572 (Ky. App. 2007). After a thorough review of the record, we
cannot conclude that a complete absence of evidence existed so as to prevent any
reasonable jury from finding in this regard. Thus, we decline to find that the trial
court was in error by allowing such an instruction to be given. Further, we note
that error, even if any existed, was harmless, as no punitive damages were
ultimately awarded on Straub’s behalf, and the jury found in favor of the
For the foregoing reasons, we affirm in part and reverse in part, and
remand to the trial court for additional proceedings not inconsistent with this
STUMBO, JUDGE CONCURS.
BUCKINGHAM, SENIOR JUDGE, DISSENTS.
BUCKINGHAM, SENIOR JUDGE, DISSENTING: The majority
opinion is very thorough and well-reasoned. Nevertheless, as I believe the
judgment should be affirmed rather than reversed, I respectfully dissent from
portions of that opinion.
First, I disagree with the majority’s conclusion that it was reversible
error for the court to refuse to answer Question #2 submitted by the jury. The
majority cites the Thompson case to support its reasoning. In Thompson, this court
held that it was not mandatory “that the trial court explain or enlarge upon the
instruction if it believes that the instructions are clear and self-explanatory.” Id. at
174. Contrary to the facts in Thompson, in this case there is no serious contention
that the instructions were unclear or otherwise erroneous. Rather, the contention is
that the jury was nevertheless confused and that the court should have answered
the jury’s question to clear up any possible confusion.
I disagree with the majority’s analysis for several reasons. First,
contrary to the implication in majority opinion, the court in Thompson did not
reverse on the basis that the judge should have answered the question submitted by
the jury. Rather, this court reversed due to an erroneous instruction and merely
expressed an opinion that the judge should have answered the question to clear up
the confusion. Id. The Thompson court did not find reversible error on this ground
as implied by the majority.
Further, while this court did criticize the trial judge in Thompson
because he should have answered the jury’s question, the court did not waiver from
its earlier statement that an explanation was not “mandatory” where the
instructions are otherwise “clear and self-explanatory”. Id. Therefore, because the
instruction given in this case was not unclear like the one in Thompson, I conclude
that the Thompson case is not applicable.
In addition, I disagree with the manner in which the majority has
characterized the jury’s post-verdict statement. The majority states that the jury
indicated in its statement that it would have rendered a verdict against the hospital
defendants but for the court’s lack of response concerning the degree of injury
required to establish liability. I conclude that this language is different from what
the jury actually said. The jury stated at the end of its statement that “[u]ltimately,
the majority of the jury could not be convinced that Ms. Straub experienced injury
based on the evidence presented.” That statement by the jury, like the jury
instruction itself, does not distinguish between “temporary” and “permanent”
injury. Further, the jury stated in the first paragraph of its statement that it would
have found in Straub’s favor had it believed she had been injured. It did not
qualify its statement by using the words “permanently injured”. The implication is
clear that the jury did not believe Straub had suffered any injury, either a
temporary or permanent one. Also, while it is true that the jury had made reference
earlier in its statement to “any lasting injury to Shannon”, I believe it is mere
speculation that the jury rested its decision in favor of the hospital defendants on
its belief that she had suffered no permanent injury. Such a conclusion is contrary
to its language at the end of its statement.
Second, the majority reverses the judgment based on testimony from
Straub’s boyfriend that Straub had used drugs and had cursed in the past. Straub
had acknowledged in her testimony that she had smoked marijuana and had used
profanity in the past. She argues on appeal that the same testimony from her
boyfriend, although cumulative, was inadmissible because it was offered to show
that she was on drugs on the day of the incident and that, regardless of its
admissibility, it was sufficiently prejudicial so as to warrant its exclusion. She
maintains, and the majority agrees, that the trial court’s failure to exclude the
testimony was reversible error. In light of the nature of the testimony and the fact
that it was cumulative, I conclude that any error in this regard was not prejudicial
but was harmless.
Finally, the majority reverses the summary judgment awarded by the
trial court to the appellees on Straub’s claim that the hospital defendants acted in
concert with the police officer to deprive Straub of her constitutional rights. The
majority cites the Davis case to support its conclusion. The majority accurately
cites Davis for the proposition that a dismissal of a federal cause of action based on
lack of jurisdiction was not an adjudication on the merits and thus did not invoke
the doctrine of res judicata. Davis, 920 S.W.2d at 77.
I disagree that Davis is on point. The facts here are much different
than those in Davis. While in Davis the federal court dismissed the cause of action
due to lack of jurisdiction, here the federal court dismissed the action by awarding
the defendants summary judgment on the claim. Such a judgment is an
adjudication on the merits. Thus, Straub was precluded from again pursuing that
claim in state court based on the doctrine of issue preclusion. See Yeoman v.
Commonwealth, Health Policy Board. 983 S.W.2d 459, 464-65 (Ky. 1998).
The majority also holds that the doctrine of issue preclusion is not applicable
because Straub’s state court claim is different from her federal court claim because
the appellees’ actions may have violated the Kentucky Constitution but not the
U.S. Constitution. Neither Straub nor the majority, however, identify what state
constitutional right the appellees may have violated that was not also a right
encompassed by the federal constitution. General reference to Section 2 of the
Kentucky Constitution is not persuasive, in my opinion.
BRIEFS FOR APPELLANT/
BRIEFS FOR APPELLEES/CROSSAPPELLANTS:
Michael J. O’Hara
Scott M. Powers