Bench & Bar

JUL 2015

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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respective applicable standard of care, then the defendants were entitled to judgment as a matter of law. In Blankenship, plaintiff argued that, before a case can be dismissed on summary judgment for not being supported by ex- pert evidence, the trial court must rule that expert testimony is necessary, grant time to find an expert, and then grant an extension of time. Blankenship holds that these inter- mediate steps are unnecessary where the need for expert testimony is not in dispute and ample time has already been given. In making this ruling, the Kentucky Supreme Court reiterated the importance of CR 56: A jury trial without the requisite proof is a futile exercise, wasteful of judicial time, jurors' time, and the litigants' time and resources. CR 56 is intended to avoid such unnecessary proceedings. 24 Blankenship also reached back to the language of Neal v. Welker: 25 "The curtain must fall at some time upon the right of a litigant" to put forth the most basic level of proof and the plaintiff's bare assertion "that something will 'turn up' cannot be made [the] basis for showing that a genuine issue as to a material fact exists." 26 That the Supreme Court of Kentucky and the Supreme Court of the United States probably would have ruled the same way in many of these cases does not mean that the Kentucky standard is the same as the federal standard. The Kentucky Supreme Court continues to say it is not. But it should not be surprising when federal and state cases do reach the same result based on similar reasoning, even though the federal cases cite the federal trilogy while the Kentucky cases cite Steelvest or other Kentucky cases. After all, the underlying civil rules governing summary judgment, CR 56 and federal rule 56, remain substantively the same. It may also be fairly questioned whether the judicial environment in which Steelvest was decided has changed in ways that now favor the federal standard more than they did in 1991. When holding that Kentucky should not adopt the federal standard of summary judgment, Steelvest stated: …[W]e perceive no oppressive or un- manageable case backlog or prob- lems with unmeritorious or frivolous litigation in the state's courts that would require a new approach such as the new federal standards. 27 After almost 25 years, it is worth asking if that is still the situation. (Justice Scott's dis- sent in Blankenship seemed to say yes in 2010). 28 Moreover, whether there is a back- log in the courts is only one consideration. The futile waste of resources as noted in Blankenship is another. Steelvest also ex- pressed confidence in the ability of CR 11 "to handle problems concerning unmeri- tious litigation and unnecessary trials." 807 S.W.2d at 483. But CR 11 currently provides that a trial court "shall postpone ruling on any Rule 11 motions filed in the litigation until after the entry of a final judgment." Thus, by its own terms, a CR 11 ruling can- not prevent an unnecessary trial (because the CR 11 ruling can only be made after the trial is already over). For all of these reasons, actual summary judgment practice may no longer differ as much between Kentucky federal and state courts as was perceived immediately after Steelvest. But the fact that the cases still say the standards are different will continue to fuel strategic choices of forum where there is concurrent state and federal jurisdiction. Unless and until the Kentucky Supreme Court says otherwise, the perception that summary judgment is more easily obtained in federal court will continue to push some litigants either toward (or away from) a fed- eral venue for that reason. Ultimately, however, in either system, it is the same rule that applies. If there is no genuine issue as to any material fact, judg- ment in state court "shall be rendered forthwith" under CR 56.03 and a federal court "shall grant summary judgment" un- der federal Rule 56(a). Jonathan R. Oliver is a member in the law firm of Whitlow, Roberts, Houston & Straub, PLLC, in Paducah, Ky. He con- centrates his practice in the area of civil litigation, with a focus on personal injury defense, estate liti- gation, and business liti- gation in both Kentucky and Illinois. Richard C. Roberts is from the law firm of Whitlow, Roberts, Hous- ton & Straub, PLLC, in Paducah, Ky. He has liti- gated a great number, and wide variety, of civil matters and is a fellow of the American College of Trial Lawyers. He presently practices in an "of counsel" role with the firm, assisting and advising on a number of litigated and appel- late matters, mentoring, and counseling on matters of general interest to clients, to the management of the firm, and in the law. He is actively involved with the state and local bar and serves as a member and bar examiner for the Kentucky Commission on Bar Admissions. Roberts is a former chair of the Kentucky Bar Association (KBA) Young Lawyers Section, as well as the KBA Litigation Section. He also served as chair of the Kentucky Bar Foundation and served on the KBA Board of Governors and the IOLTA Board of Directors. Roberts is also a past president of the Kentucky Defense Council. 1 807 S.W.2d 476 (Ky. 1991). 2 683 S.W.2d 255 (Ky. 1985). 3 807 S.W.2d at 481-82. 4 Celetox Corp. v. Catrett, 477 U.S. 317 (1986); An- derson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and Matushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). 5 807 S.W.2d at 481. 6 Id. at 480 (emphasis added). 7 Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky. 1992). 8 E.g., Shelton v. Ky. Easter Seals Society, Inc., 413 S.W.3d 901, 905 (Ky. 2013); Dick's Sporting Goods, Inc. v. Webb, 413 S.W.3d 891, 894 n.2 (Ky. 2013); O'Bryan v. Cave, 202 S.W.3d 585, 587 (Ky. 2006). 9 E.g., White v. Norton Healthcare, Inc., 435 S.W.3d 68, 72 (Ky. App. 2014); Ryan v. Fast Lane, Inc., 360 S.W.3d 787, 789 (Ky. App. 2012). 10 279 S.W.3d 142 (Ky. 2001). 11 50 S.W.3d 195 (Ky. 2001). 12 394 S.W.3d 897 (2013). 13 3 S.W.3d 724 (1999). 14 3 S.W.3d at 730 (emphasis added). 15 Wymer, supra, 50 S.W.3d at 199. 16 See, e.g., Abbott v. Chesley, 413 S.W.3d 589, 602 (Ky. 2013) (denial of summary judgment is inter- locutory and not generally appealable). 17 Shelton, 413 S.W.3d at 916. 18 Id. 19 Haney v. Monskey, 311 S.W.3d 235, 239 (Ky. 2010), quoting from Pike v. City of Brandenburg, 215 S.W.3d 36, 39 (Ky. 2006). 20 434 S.W.3d 489 (Ky. 2014). 21 Id. at 503 (emphasis supplied by the Court). 22 Id. 23 302 S.W.3d 665 (2010). 24 Id. at 375. 25 426 S.W.2d 476, 479-80 (Ky. 1968). 26 302 S.W.3d at 675. 27 807 S.W.2d 476 at 482. 28 302 S.W.3d at 676-77. 30 B&B; • 7.15 K E N T U C K Y C I V I L P R O C E D U R E : A R U L E S C O M P A R I S O N

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