KDC welcomes its newest member:

Adam E. Fuller of Vaughn Petitt Legal Group, PLLC, Pewee Valley, Kentucky.  Mr. Fuller graduated from the University of Louisville Brandeis School of Law and practices in the areas of Civil Rights, Government, Insurance and Tort.

Congratulations to KDC member, Melanie Marr, on her recent defense verdict.  The following is reprinted from the 4/19/17 issue of DRI's The Voice:

Melanie S. Marrs

Fulkerson, Kinkel & Marrs is pleased to announce a recent unanimous Defense Verdict it obtained on behalf of a hospital in Whitley County, Kentucky. Firm partner and DRI member Melanie S. Marrssuccessfully defended the lawsuit that included claims of medical negligence by the hospital’s nursing staff and by the co-defendant doctor.

The lawsuit claimed that the hospital failed to provide appropriate care and treatment of a 22 year-old woman who was admitted with a suspected urinary tract infection, hypokalemia, and symptoms of nausea and vomiting. She remained in the hospital for five days, during which she underwent surgery to treat kidney stones. Following her surgery, the woman’s condition improved sufficiently, including normalization of her potassium levels, such that her treating physician determined she could be discharged. The physician prescribed the woman the antibiotic Levaquin, noted to have a risk of QT wave prolongation in patients with unresolved hypokalemia, to treat her UTI and a case of pneumonia that had developed during her hospital stay. The following day the woman collapsed due to a cardiac event sometime after she took her first dose of Levaquin. Consequently, the woman suffered an anoxic brain injury. The plaintiffs alleged that the hospital nursing staff failed to administer potassium appropriately as required by a standing protocol. With respect to the co-defendant physician, plaintiffs alleged that he improperly discharged her with a prescription of Levaquin. Ms. Marrs defended the nursing staff’s conduct by presenting evidence that the nurses did not administer potassium per a verbal order from the on duty physician to suspend the standing protocol. They also presented evidence that the woman’s cardiac event was the result of stress cardiomyopathy (Takotsubo) rather than due to Levaquin-induced QT wave prolongation. The jury found unanimously for both the hospital and the doctor on standard of care after deliberating for little more than an hour. Plaintiffs had sought $50,000,000.00 as total compensation for the injury.

KDC is pleased to welcome its newest member, Kathleen E. Watson of O'Bryan, Brown & Toner, Louisville.  Ms. Watson graduated from Northern Kentucky University Chase College of Law and practices in the area of Medical Malpractice.  She is sponsored by KDC member, Scott Burroughs.

The following is reprinted from ABA's Tech Publication of March 27, 2017.

FEDERAL JUDGE DISMISSES LAWSUIT AGAINST HOMEOWNER WHO SHOT DOWN HOVERING DRONE

POSTED MAR 27, 2017 08:40 AM CDT

BY DEBRA CASSENS WEISS

A federal judge in Louisville has dismissed a suit seeking damages against a property owner who shot down a hobbyist’s drone in 2015.

Senior U.S. District Judge Thomas Russell dismissed the suit against self-described “drone slayer” William Merideth, citing a lack of federal subject matter jurisdiction, Ars Technica reports.

The suit by hobbyist John David Boggs had sought a declaratory judgment that a drone is an “aircraft” under federal law, that Boggs’ drone was operating in U.S. airspace, and that property owners can’t shoot at drones in this airspace. The suit also sought $1,500 in damages.

Russell wrote in a March 21 opinion that the suit was essentially a garden-variety state tort claim that should not be in federal court. Although the Federal Aviation Administration has an interest in enforcing regulations governing federal airspace, “its interest in applying those regulations in the context of a state tort law claim for trespass to chattels is limited or nonexistent,” Russell said. At most, the FAA regulations are ancillary issues in the case, he concluded.

Ars Technica spoke with two legal experts who said the judge’s decision was sound and not surprising.

Boggs’ lawyer, James Mackler, told Ars Technica that he will speak to his client about whether to appeal. “This remains an extraordinarily important issue,” Mackler said. “We desperately need clarification from this issue and that has to come from the federal level. Drones are continuing to be shot down. There have been many incidents. This has to be an issue that is addressed, but we have not decided whether we are going to file our appeal.”

KDC members, Ron Green of Green, Chesnut & Hughes, Lexington and Jeffrey Phillips of Steptoe & Johnson, will both be speaking at the upcoming IIK Seminar, being held next week in Louisville.  KDC members may attend the seminar at the IIK member rate.  Here is the information provided to us by IIK:

The 2017 P & C seminar jointly sponsored by Insurance Institute of Kentucky and Eastern Kentucky University's Risk Management and Insurance Program is now set, and this year will be a bit of a departure from the format we have done in past years. This year we have combined the seminar with EKU's Morgan Insurance Conference which had formerly been held on the EKU campus.

This year's Morgan conference will be held in Louisville on April 13, and the program is titled Acting in Good Faith: Insurer Best Practices. CLE and CE have now been approved. CLE for attorneys has been approved for 6.25 units, and CE for adjusters and agents has been approved for 6 hours.

Following are the details of the conference: seminar for attorneys, paralegals, in-house counsel, adjusters and other insurance claims professionals, and other interested parties

Burke A. Christensen, JD, CLU, Eastern Kentucky University

Ron Green, Green, Chesnut, & Hughes, PLLC

J. Dale Golden, Golden Law Office

Ancil G. Ramey, Steptoe & Johnson, PLLC

Michelle E. Gaston, Steptoe & Johnson, PLLC

Jeffrey K. Phillips, Steptoe & Johnson, PLLC

 Registration is only $100 and you may register online here if you want to pay by credit card. To pay by check you may use the registration form included in the attached brochure. 

If you have any questions, please feel free to contact Debbie Ellis of EKU at (859) 622-1579 or debbie.ellis@eku.edu.

​​We look forward to seeing you there!

------------------------------------------------- Mark Treesh, Executive Director
Insurance Institute of Kentucky
PO Box 54542
Lexington, KY  40555-4542
(859) 543-9759  Office
(859) 285-0555  Cell
mark@iiky.org
https://iiky.org/

KDC welcomes the following new members:

Matthew Michael Allen of Reminger Co., LPA, Ft. Mitchell, graduated from the University of Cincinnati College of Law.  Mr. Allen practices in the areas of Auto, Education, Employment, General Liability, Insurance, Product Liability, Tort, Trucking & Workers' Compensation.  He is sponsored by KDC member, John Dunn.

Danielle J. Lewis of Reminger Co., LPA, Louisville, graduated from Northern Kentucky University Chase College of Law.  Ms. Lewis practices in the areas of General Liability, Insurance, Medical Malpractice, Nursing Home, Premises, Product & Professional Liability, and Trucking.  She is a member of DRI and sponsored by KDC Director, Todd Page.

Robin D. Neace of Adams, Stepner, Woltermann & Dusing, Covington, graduated from Indiana University, Maurer School of Law.  Ms. Neace practices in the areas of Government and Tort.  She is a member of DRI and is sponsored by KDC Director, Claire Parsons.

Zachary Chase Richards of Sewell & Neal, PLLC, Louisville is a University of Louisville Brandeis School of Law graduated.  Mr. Richards practices in the areas of Insurance and Tort.  He is sponsored by KDC member, Charles Walker.

Natalie E. M. Wais of Young & Alexander Co., LPA, Cincinnati, Ohio is graduated from the University of Louisville Brandeis School of Law.  Ms. Wais practices in the areas of Insurance and Tort.  She is a member of DRI and sponsored by KDC member, Aaron J. Silletto.

The following is reprinted from a Dinsmore & Shohl release of April 5, 2017:

Same Sex Rights Flourish – Except at work?

November 17, 2016

Allison Goico and J. Corey Asay

In the last 20 years, the legal landscape has shifted dramatically for lesbians, gays, bisexuals, and transgender (LGBT) individuals. In 1996, the Supreme Court used the Equal Protection Clause to invalidate an amendment to Colorado’s Constitution that would have prevented any branch or political subdivision of the state from protecting individuals against sexual orientation discrimination.¹ Several years later, the Court determined that individuals’ rights to liberty under the Due Process Clause gave them the full right to engage in private consensual sexual conduct without the government’s intervention.² Then, in 2013, the Supreme Court struck down the Defense of Marriage Act, finding that it violated the equal protection guarantee of the Fifth Amendment.³ And finally, just last year, the Supreme Court ruled that under both the Due Process and Equal Protection Clauses of the Fourteenth Amendment, same-sex couples had the right to marry in every state.⁴

While each of these decisions had a profound impact on the lives of many Americans, none increased the workplace protections of LGBT employees under federal anti-discrimination laws. As a panel of the Seventh Circuit recently pointed out, “[m]any citizens would be surprised to learn that under federal law any private employer can summon an employee into his office and state, ‘You are a hard-working employee and have added much value to my company, but I am firing you because you are gay.’”⁵

In fact, every circuit court that has been asked whether Title VII – the federal law that prohibits discrimination against an employee because of his race, color, religion, sex or national origin – covers discrimination based on sexual orientation has answered the question “no.”⁶ However, in reaching this conclusion, every court has unequivocally condemned the practice of sexual orientation discrimination as unwise, unfair and immoral. So why the disconnect?

As most courts see it, the issue is that Title VII does not explicitly prohibit sexual orientation discrimination, and Congress has attempted for decades to pass legislation that would expand Title VII to cover sexual orientation discrimination but has come up short.⁷ Also, most states have not passed legislation that covers such discrimination.

But all of this is not to say that LGBT employees are without recourse. Since the Supreme Court’s decision in Price Waterhouse v. Hopkins, Title VII has covered claims by employees who were discriminated against because they did not conform to traditional gender stereotypes.⁸ In Price Waterhouse, Ann Hopkins failed to make partner at her accounting firm and was told she could improve her chances next time if she would walk, talk and dress more femininely, get her hair styled, and wear jewelry. The Supreme Court said this sort of gender stereotyping constitutes discrimination because of sex under Title VII.⁹

What arose from Price Waterhouse is a line of cases that protect LGBT employees from gender stereotyping discrimination but not from discrimination based on sexual orientation. The courts following this approach are forced to distinguish between behavior that would fall into the gender stereotyping category and be protected from those which would fall into the sexual orientation discrimination category and not be. At best, this is a difficult task. At worst, it’s an exercise in futility.

Some courts, unwilling or unable to differentiate between the two categories, have discarded this approach all together. For these courts, if it appears that the employee is trying to recast a sexual orientation discrimination case as one for gender stereotyping, they will deny all relief. In other words, these courts reject employees’ claims of gender stereotyping, as meritorious as they may be, when it appears the claims are intertwined with a sexual orientation discrimination claim.¹⁰

This could be primed for a change, though. While courts seem confused as to Title VII’s scope, the EEOC has no doubt: sexual orientation discrimination is, the EEOC says, discrimination because of sex. In Baldwin v. Foxx,¹¹ the EEOC came to this conclusion for three main reasons. First, it concluded that “sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”¹² To make its point, the EEOC gave the example of a woman who is suspended for placing a photo of her female spouse on her desk, and a man who faces no consequences for the same act. Second, it explained that “sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex,” in which an employer discriminates against lesbian, gay, or bisexual employees based on who they date or marry.¹³ Finally, the EEOC described sexual orientation discrimination as a form of discrimination based on gender stereotypes in which employees are harassed or punished for failing to live up to societal norms about appropriate masculine and feminine behaviors, mannerisms and appearances.¹⁴ In emphasizing this last point, the EEOC rejected the numerous court decisions that have tried to distinguish between gender non-conformity claims and those for sexual orientation discrimination.

In its guidance on the subject, the EEOC has tracked the Baldwin decision and said that discrimination on the basis of sexual orientation is illegal under Title VII. In litigation involving the EEOC, it has pushed this tripartite approach with varying success. While no circuit court has followed Baldwin or the EEOC’s guidance, a number of district courts have taken notice. Courts in Alabama, the District of Columbia, California, Oregon and Pennsylvania have all sided with the EEOC’s position and found that Title VII does prohibit sexual orientation discrimination.¹⁵ So, at least in these courts, an employer may be held liable for discrimination based on sexual orientation, just like any other protected category under Title VII.

Unfortunately, the Supreme Court has not weighed in on this important topic to resolve the tension between the circuit courts and the EEOC (and certain district courts). It’s hard to say whether the Supreme Court will decide this issue soon, but the Court’s interest in cases addressing LGBT rights, such as the Gloucester County School Board v. G.G. case (involving issues of a school district’s obligations to a transgender student) that will be addressed this term, makes it likely that this issue will come before the Court eventually.

So until the Court decides whether Title VII prohibits sexual orientation discrimination, what’s an employer to do? After all, a mistake here –- even one made in good faith — could cost an employer Here are three things employers can do right now to minimize their liability:

• Update your anti-harassment policy to include sexual orientation. While the weight of legal authority says that LGBT employees do not have claims for sexual orientation discrimination under Title VII, that trend is shifting. The EEOC’s position is clearly at odds with most of the case law, but as the agency enforcing federal discrimination laws, it has the authority to file lawsuits against employers who thumb their noses at it. A number of lower courts have listened, holding that Title VII does prohibit sexual orientation discrimination. Even if you disagree with the EEOC’s position, do you want to be the long and expensive test case that goes to the Supreme Court?
• Train your employees on your policies. A written policy isn’t any good unless your employees –– particularly your managers –– know about it. It’s smart to periodically train your employees on sexual and other types of harassment. Make training on sexual orientation discrimination part of it. Ensure your employees know that your company prohibits discrimination on the basis of sexual orientation just as it does discrimination on other protected bases.
• Make sure to follow through. It’s easy to talk the talk, but make sure you walk the walk. Just as you should not tolerate racial slurs and derogatory comments about women in the workplace, employees need to know that offensive comments about gay, lesbian and transgender individuals are also out of bounds. If someone makes a complaint of sexual orientation discrimination, management should investigate and take prompt remedial action, just as it would with any other type of complaint.

When it comes to LGBT rights and protections, the legal world is in a state of flux. For employers, that means a lot of uncertainty, but you don’t have to be held captive by uncertain times. Be proactive now and help limit the potential of future liability. Contact your Dinsmore attorney with questions.

Romer v. Evans, 517 U.S. 620 (1996). 
Lawrence v. Texas, 539 U.S. 558, 578 (2003). 
United States v. Windsor, 133 S. Ct. 2675 (2013). 
Obergefell v. Hodges, 135 S. Ct. 2584, 2696 (2015). 
Kimberly Hively v. Ivy Tech Community College, No. 15-1720, slip op. at 33 (7th Cir. Aug. 1, 2016). 
Id. at 6. 
See, e.g., Employment Non-Discrimination Act of 2013, H.R. 1755, 113th Cong. (2013). 
490 U.S. 228, 251 (1989). 
Id. at 251. 
See, e.g., Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006). 
EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 16, 2015). 
Id. at 5. 
Id. at 6. 
Id. 
Isaacs v. Felder Services, LLC, 143 F. Supp. 3d 1190 (M.D. Ala. Oct. 29, 2015) (holding claims of sexual orientation-based discrimination cognizable under Title VII); Terveer v. Billington, 34 F. Supp. 3d 100 (D.D.C. 2014) (same); Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1222 (D. Or. 2002) (“Nothing in Title VII suggests that Congress intended to confine the benefits of that statute to heterosexual employees alone.”); Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151 (C.D. Cal. Dec. 15, 2015) (finding sex discrimination necessarily includes sexual orientation discrimination under Title IX); Equal Employment Opportunity Commission v. Scott Medical Health Center, No. 16-225 (W.D. Pa. Nov. 4, 2016) (denying defendant’s motion to dismiss and finding that allegations of sexual orientation discrimination are covered by Title VII). 
 

KDC welcomes its newest member:

Ellen M. Houston of Dressman Benzinger LaVelle psc, Crestview Hills graduated from the University of Northern Kentucky Salmon P. Chase College of Law.  Ms. Houston practices in the area of Medical Malpractice.  She is a member of DRI and sponsored by KDC Past President, Bob Hoffer.

KDC welcomes its newest member:

Caitlin Elizabeth Housley of O'Bryan, Brown & Toner, Louisville graduated from the University of Kentucky College of Law.  Ms. Housley practices in the area of Medical Malpractice.  She is a member of DRI and is sponsored by KDC member, Scott Burroughs.

KDC welcomes its two newest members:

Angela Call of Nunery & Call, PLLC, Campbellsville is a Northern Kentucky Chase College of Law graduate.  Ms. Call practices in the areas of General Liability and Insurance.  She is sponsored by KDC member (and husband), Steve Call.

Marc Tawfik of McNeely Stephenson, New Albany, Indiana graduated from law school at Ohio Northern University.  Mr. Tawfik practices in the areas of auto, Business Litigation, Commercial, Construction, Contract, General Liability, Insurance Coverage, Medical Malpractice, Premises & Professional Liability, Property, Tort and Workers' Comp.  He is a member of DRI and is sponsored by KDC member, Larry R. Church.