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March 4, 2016, Appellate Court Digests
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Kansas Supreme Court – Attorney Discipline

ORDER OF SUSPENSION
IN THE MATTER OF CHARLES P. VAUGHN
NO. 114,582 – MARCH 4, 2016

FACTS: Vaughn admitted to practice, but resides and primarily works in Florida. A client in a divorce matter filed a complaint in Florida alleging that the divorce decree contained multiple errors and that Vaughn double billed for certain services. There was also evidence that Vaughn used money from his "cost funds" to pay a portion of his attorney fee balance, even though there had not been permission given to do so. Because of this behavior, the Supreme Court of Florida suspended Vaughn for 91 days, beginning in October 2014. Vaughn has not yet applied for reinstatement. The matter came to Kansas as one of reciprocal discipline.

HEARING PANEL: After reviewing the evidence from the Supreme Court of Florida, a hearing panel of the Kansas Board for Discipline of Attorneys found multiple violations of the Kansas Rules of Professional Conduct. The panel recommended a 91 day suspension of Vaughn's Kansas law license, with reinstatement to practice tied to his reinstatement in Florida.

HELD: The court accepted the findings and recommendations of the hearing panel and suspended Vaughn's ability to practice. Once Vaughn has been reinstated in Florida and is in good standing there he may take steps to again become active in Kansas.

Kansas Court of Appeals – Civil

EVIDENCE; NEGLIGENCE; RAILROADS; SUMMARY JUDGMENT; TORTS
SMART V. BNSF RAILWAY COMPANY
SHAWNEE DISTRICT COURT – AFFIRMED
NO. 113,809 – MARCH 4, 2016

FACTS: Smart was employed by BNSF for almost 20 years. He filed this action under the Federal Employers' Liability Act (FELA) claiming to have suffered cumulative trauma injuries to his neck, back, hips, legs, and arms as a result of his job duties. After deposing Smart's sole expert witness, BNSF moved for summary judgment, claiming that Smart would not be able to prove his claim for neck injuries. That motion was granted, with the district court finding that the expert's testimony lacked "sufficient factual foundation to show its reliability."

ISSUES: (1) The scope of FELA and (2) The reliability and admissibility of the expert's testimony

HELD: While there is a lower standard of causation in FELA actions, the employee must still prove the traditional common-law elements of negligence. And courts need not consider expert testimony that would otherwise be inadmissible. The purpose of a Daubert analysis is to evaluate whether the proposed expert's conclusions were reached in a reliable manner. In this case, where the expert's testimony was not linked to Smart's actual workplace or the particular tools that he used, the testimony lacked reliability and would not have been helpful to the jury.

STATUTES: 45 U.S.C. §51; K.S.A. 2015 Supp. 60-456; K.S.A. 60-456, -457, -458

Kansas Court of Appeals – Civil

ADMINISTRATIVE LAW; STATUTES
HANSA CENTER FOR OPTINUM HEALTH V. KANSAS BOARD OF HEALING ARTS, ET AL.
SHAWNEE DISTRICT COURT – AFFIRMED
NO. 113,986 – MARCH 4, 2016

FACTS: A former patient filed suit against the Hansa Center and a treating chiropractor claiming negligence which resulted in two subsequent hospital stays. Although the patient did not prevail in small claims court, the chiropractor got a letter from the Board of Healing Arts (Board) requesting medical records relating to the claim. The chiropractor provided some information, but did not give a "complete written narrative" about the incident and did not send any medical records. The Board later sent an administrative subpoena to the Hansa Center requesting the production of medical records, including notes and correspondence. The center sought to have the subpoena quashed, and that request was denied.

ISSUE: Scope of administrative subpoena

HELD: The Board has statutory power to "make all necessary investigations" relative to the Kansas Healing Arts Act. As a check on that power, the district court may quash an administrative subpoena if, in the court's opinion, the requested evidence does not relate to acts which could be grounds for disciplinary action or if the subpoena requests irrelevant information or does not specifically describe the evidence sought. In this case, the allegations made the patient justified an investigation into the chiropractor's conduct and the subsequent request for records.

STATUTES: K.S.A. 2014 Supp. 65-2836, -2837, -2840; K.S.A. 60-245(b), K.S.A. 40-3409, K.S.A. 65-2801, K.S.A. 65-2839a

Kansas Court of Appeals – Criminal

CRIMINAL LAW; STATUTES
STATE V. MARTIN
SEDGWICK DISTRICT COURT – REVERSED AND REMANDED
NO. 113,189 – MARCH 4, 2016

FACTS: Martin had prior juvenile adjudications for burglary which were scored as person felonies for criminal history purposes. Many years later, Martin filed a motion to correct illegal sentence in which he claimed that he was entitled to relief because of an improper criminal history score. The State argued that Martin's claims were barred by the doctrine of res judicata because Martin could have challenged his criminal history score on direct appeal, but failed to do so. The State also alleged that the Kansas Supreme Court's holding in State v. Dickey should not be applied retroactively to Martin's case.

ISSUES: (1) Res Judicata and (2) Retroactive application of criminal case law

HELD: The burglary statute in effect at the time of Martin's prior convictions did not contain a dwelling element, rendering unconstitutional the scoring of those convictions as person felonies. The appellate courts have been given jurisdiction to correct an illegal sentence at any time. This statutory directive prevents application of the doctrine of res judicata given the facts of this case. And even though a motion to correct illegal sentence may not be based on a constitutional challenge to the sentence, if a constitutional challenge results in the determination that the criminal history score is incorrect, the resulting sentence is illegal and may be corrected at any time.

STATUTES: K.S.A. 1990 Supp. 21-3715; K.S.A. 22-3504(1)

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