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Kansas Defense Journal Winter - 2006 - Revised Page

KADCKADCKADC

PLEASE LEAVE THE ROOM: WHO CAN ATTEND DEPOSITIONS?

I. Introduction.

There are occasions when someone other than a party appears at a deposition and attempts to sit in. These may be family members of the plaintiff or someone else wanting to provide support. They may be actual or potential expert witnesses or consulting experts. They might be news report-ers, wanting to hear and see the proceedings. Maybe the next witness in a series of depositions wants to watch and hear the script, in order to be prepared for his deposition to follow. Or maybe an insurance adjuster, who needs to observe the plaintiff testifying, wants to attend in order to help evaluate the case.

The purpose of this article is to provide legal sup-port for the positions that a person should be excluded from, or should be allowed to attend, a deposition.

II. Invoking “The Rule” at Trial: Rule 615, Federal Rules of Evidence.

An analysis of who can attend depositions begins with “The Rule” of exclusion at trial.

The sequestration of witnesses is a centuries-old practice which descends from the common Germanic law. See Geders v. United States,

(Continued on page 3)

Inside this issue of Kansas Defense Journal:

Please Leave the Room: Who Can Attend Deposi-tions?

1

President’s Message 2

DRI Update 12

Executive Director’s Mes-sage

18

Update on Provider Write-Offs

17

The Tort of Outrage in Kansas: Invoking a Court’s Threshold Determination

1

Recent Case Summaries 10

Annual Conference a Huge Success

18

Kansas Association of Defense Counsel Winter 2006-Revised

Kansas Defense Journal

THE TORT OF OUTRAGE IN KANSAS: INVOKING A COURT’S THRESHOLD DETERMINATION

For more than two decades, Kansas courts have recognized the tort of outrage, also known as intentional infliction of emotional distress.1 Li-ability arises under the tort of outrage when a party engages in extreme and outrageous con-duct, intentionally or recklessly causing severe emotional distress to another.2 Before a plaintiff can prevail on the merits of an outrage claim, however, he or she must withstand two threshold determinations of law reserved for the court: (1) whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery; and (2) whether the emotional distress suffered by the plaintiff is of such ex-treme degree that the law must intervene, be-cause the distress inflicted is so severe that no reasonable person should be expected to endure it.3

Given these significant threshold requirements, a defendant’s likelihood of success on a motion for

summary judgment should be, and is, significant. As explained below, seldom have Kansas courts found that a defendant’s conduct was sufficiently outrageous to support an outrage claim as a matter of law. Accordingly, in defending outrage claims, defense attorneys should give serious consideration to whether summary disposition is warranted.

High Standards for the Tort of Outrage

The tort of outrage is not a favored cause of ac-tion under Kansas law.4 Kansas courts have established a very high standard for this common


By J. Nick Badgerow and Lindsay Noelle Todd, Spencer Fane Britt & Browne LLP, Overland Park, KS1

By Andrew M. DeMarea and Amy E. Mor-gan, Shughart Thomson & Kilroy, P.C.

Kansas Defense Journal Winter - 2006 - Revised

KADC Officers and

Board of Directors

PRESIDENT Todd Thompdon

PRESIDENT-ELECT Scott Nehrbass

SECRETARY-TREASURER Anne Kindling

PAST PRESIDENT Dan Diepenbrock

BOARD MEMBERS Vaughn Burkholder

Tracy Cole David Cooper

Dustin Denning Amy Morgan

Donald Hoffman Bradley Ralph

David Rameden F. James Robinson

Wendel Wurst

DRI REPRESENTATIVE Timothy Finnerty

NEWSLETTER EDITOR Anne Kindling

KADC 825 S. Kansas Avenue, Ste 500

Topeka, KS 66612 785/232-9091

Fax: 785/233-2206 www.kadc.org

William Saroyan’s play The Time of Your Life won the Pulitzer Prize and was made into a 1948 film starring James Cagney and William Bendix. Ben-dix plays Nick, a saloon owner “whose hobby is horses.” Cagney plays Joe, “whose hobby is peo-ple.” Joe spends his days and nights in Nick’s saloon drinking champagne, philosophizing and interacting with various characters who come in and out of the saloon. When a character the oth-ers refer to as Kit Carson finishes a long soliloquy of tall tales, Joe assures Kit he believes every word and tells him, “Living is an art; it’s not book-keeping. It takes an awful lot of rehearsal for a man to get to be himself.”

I think you can apply this credo to trying cases as well. When trying a case, there is no formula to apply or template you pull out that guarantees a successful result. It’s an art, but it’s an art one can master over time with a lot of hard work and experience—rehearsal, if you will. Actually trying as many cases as you can is the best training ground, of course, but organizations like the KADC contribute to the process.

I have been a member of KADC for 20 years now, and I know my membership has made me a bet-ter lawyer. I still have most of the materials from the annual meetings from years past and still refer to them from time to time. Likewise, I can’t count how many times an article from the Legal Letter—now Kansas Defense Journal—applied directly to a case I was working on at the time and I was able to borrow liberally from the article for a motion or brief. And, of course, you cannot place a value on the opportunity to associate with some of the best trial lawyers ever to enter a courtroom in Kansas.

Another benefit of joining the KADC that cannot be overstated—for me—is that my membership in KADC introduced me to DRI. The benefits offered by DRI membership are numer-ous. The seminars are among the best on the market. I have notes I took at a Trial Techniques seminar in 1990 that I still review before every trial. For the Defense, the journal of DRI, pub-lishes articles every month that the defense law-yer can use in his or her daily practice. There are many other benefits, including the expert witness data bank and countless compendiums and other publications available to the defense practitioner.

For the KADC member, the main event is the an-nual meeting in Kansas City. It was good to see another strong turnout for the meeting in Decem-ber. It was also gratifying to hear the positive comments about the programs offered. Scott Nehrbass, the committee chair, Scott Heidner, Dale Walden and Brandy Becker did an out-standing job putting the meeting together. My hope is that in the future we will continue to offer programs at the annual meeting that will directly enhance the defense lawyer’s trial practice.

It was a pleasure and a privilege to serve as presi-dent of KADC this past year. We have a good board and with Todd Thompson at the helm this year, and Scott Nehrbass next, I know our organi-zation will continue to help our members perfect the art of trying and winning cases.

ALL THIS, AND MORE

KADC Past President Dan Diepenbrock


Rule 26(c)(5), Federal Rules of Civil Procedure

(“FRCP”) requires a party to seek a

protective order and to establish good cause

in order to exclude a non-party from a

deposition. The same rule applies in

Kansas state court, K.S.A. 60-

226(c)(5).

425 U.S. 80, 87, 47 L.Ed.2d 592, 96 S.Ct. 1330 (1976). Its aim is to exercise a restraint on witnesses tailoring their testimony to that of earlier witnesses and aids in detecting testi-mony that is less than candid. 425 U.S. at 87.2

The exclusionary rule applied in federal court tri-als is specific and unambiguous. Rule 615, Fed-eral Rules of Evidence (“FRE”) provides, “[a]t the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses.”3 Rule 615 is mandatory, so any party may exclude witnesses at trial as a mat-ter of right.4 However, the rule does contain three exceptions; it does not allow for the exclusion of:

(1) a party who is a natural person, or

(2) an officer or employee of a party which is not a natural person designated as a represen-tative by its attorney, or

(3) a person whose presence is shown by a party to be essential to the presentation of the party’s cause.5

When courts apply FRE 615 to depositions, these exceptions come into play.

A mandatory rule of exclusion does not appear to apply in Kansas state courts, where there is no specific rule of evidence in the statutes6 and where the exclusion of witnesses is left to the sound discretion of the trial court.7

III. “The Rule” in Discovery: Rule 26(c)(5), Federal Rules of Civil Procedure.

Rule 26(c)(5), Federal Rules of Civil Procedure (“FRCP”) requires a party to seek a protective order and to establish good cause in order to exclude a non-party from a deposition.8 The same rule applies in Kansas state court, K.S.A. 60-226(c)(5). If the moving party makes the requi-site showing, the court may order “that discovery be conducted with no one present except persons designated by the court.” 9 Though the rule re-quires a party to show good cause for a protective order, the rule does not create exceptions for certain individuals, unlike FRE 615.

IV. The Relationship Between FRE 615 and FRCP 26(c)(5).

Courts are split on whether FRE 615 applies to depositions. Prior to 1993, FRCP 30(c) provided that the “[e]xamination and cross-examination of witnesses [at deposition] may proceed as permit-ted at the trial under the provisions of the Federal Rules of Evidence.” Some courts relied on the language of FRCP 30(c) to apply FRE 615 to depo-sitions. For example, in Lumpkin v. Bi-Lo, Inc.,10 the plaintiff sought to exclude the District Man-ager and a personnel official of defendant from

attending the plaintiff’s deposition. The plaintiff argued that FRE 615 (providing for the exclusion of witnesses at trial) applies to depositions pursu-ant to FRCP 30(c).11 Conversely, the defendant argued that FRCP 26(c)(5) applies to depositions; thus, requiring the plaintiff to seek and obtain a protective order upon showing of good cause before any individual could be excluded from the deposition.12 Accepting the plaintiff’s argument; the court held that FRE 615 applies at deposi-tions, through FRCP 30(c). However, the court also stated that a party would be required to ob-tain a protective order pursuant to FRCP 26(c)(5) in order to prohibit witnesses from communicat-ing with other witnesses between the time of their depositions and trial.13 See also Williams v. Elec. Control Sys., Inc.14 (applying FRE 615 to deposi-tions).

On the other hand, see BCI Communication Sys., Inc. v. Bell Atlanticom Systems., Inc.15 which held that FRE 615 does not apply at depositions or between depositions and trial; thus a party must seek a protective order before anyone can be excluded from a deposition.

In 1993, FRCP 30(c) was amended specifically to preclude the application of FRE 615 to deposi-tions. Thus, the rule now reads “[e]xamination and cross-examination of witnesses [at deposi-tions] may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence except Rules 103 and 615.”16 Thus, the exclu-sionary rule applicable at trial is not mechanically applied to exclude non-witnesses from a deposi-tion. As the Advisory Committee notes state:

The revision provides that other witnesses are not automatically excluded from a deposition simply by the request of a party. Exclusion, however, can be ordered under Rule 26(c)(5) when appropriate.17

Even after this amendment to FRCP 30(c), some courts still rely on older cases which applied the previous FRCP Rule 30(c) and have perpetuated the controversy on the issue of whether FRE 615 applies to depositions. See Lee v. Denver Sher-iff’s Dep’t.18 (discussing the dispute as to the applicability of FRE 615 to depositions); Wash. County Assessor v. W. Beaverton Congregation of Jehovah’s Witnesses, Inc.19 (discussing the split among federal circuit courts in applying FRE 615 to pretrial depositions and the split among state courts on whether similar state evidence rules apply to depositions).

However, several courts have finally acknowl-edged the revision of FRCP 30(c), and have there-fore required a party to seek a protective order pursuant to FRCP 26(c)(5) before any individual can be excluded from a deposition. See Tusz-

Who Can Attend Depositions? (Continued from page 1)



kiewicz v. Allen Bradley Co.;20 Alexander v. FBI;21 Weisler v. U.S. Dep’t of Veterans Affairs;22 Cal-houn v. Mastec, Inc.;23 Campinas Found. v. Si-moni;24 and Bell v. Bd. of Educ. of the County of Fayette.25

This includes the District of Kansas. See Conrad v. Bd. of Johnson County Kan. Comm’rs.26 There, the plaintiff sought a protective order prohibiting the defendant’s Director and another employee of the defendant from attending each other’s depo-sitions. In denying the requested protective order, Magistrate Waxse held:

Plaintiff has failed to make a specific showing of harm that would justify sequestration here. Virtually every case and every deposition is fact intensive and involves many disputed issues of facts. Plaintiff offers no particular facts that would lead the Court to conclude that these witnesses cannot be trusted to tell the truth or that their attendance at each other’s deposi-tions will affect their testimony.27

The Court then helpfully expanded on this state-ment, by adding:

Further, if the Court were to order sequestration here, sequestration would be necessary in virtu-ally every case. Sequestration of deponents should be the exception rather than the rule.28

V. Application to Specific Cases.

A. Parties to the Action.

Party Excluded. In Galella v. Onassis,29 Jackie Kennedy Onassis was in litigation with the papa-razzo, Ron Galella, and sought to exclude Galella from her deposition. The trial court granted the requested protective order, and the Court of Ap-peals affirmed. The court compared the language of FRCP 26(c)(5) with the current and former ver-sions of FRCP 30(b).30 FRCP 30(b) previously allowed the court to order discovery to be con-ducted “with no one present except the parties to the action and their officers and counsel…” How-ever, the 1970 revision of the rule removed the exception for parties and their officers and coun-sel. Thus, the court said, it now has the authority to exclude even a party, “although such an exclu-sion should be ordered rarely indeed.”31 The court found that the circumstances of the present case warranted the exclusion of a party plaintiff, because the plaintiff had violated a temporary restraining order entered against him to protect the defendant from harassment. Thus, the court found that the district court could reasonably have anticipated further inappropriate behavior by the plaintiff at the deposition.32

Party Not Excluded. In general, courts have been very reluctant to grant protective orders excluding

parties to the action from attending depositions. In Ferrigno v. Yoder,33 the court held that it was an abuse of discretion for the trial court to grant a protective order requiring husband and wife plain-tiffs to be deposed separately. In its motion for the protective order, the defendant argued the need to “elicit candid responses” in the hope of learning whether the husband had actually given his wife the authority to sign documents as his agent.34 The appellate court stated that the rea-son advanced for exclusion of the party witness did not constitute good cause and that “[i]t is a venerated principle that a party has a right to be present at an oral deposition.”35 Citing Galella for the rule that the court has the power to exclude a party but only on rare circumstances, the court stated that a party should not be excluded based on the “cynical disbelief that a party-deponent will adhere to the oath to be truthful.”36

Motions to exclude parties from deposition were also denied in Mugrage v. Mugrage37 (holding that a party may be excluded from a deposition “only upon the demonstration of ‘exceptional circumstances’”) and Hamon Contractors, Inc. v. Dist. Court of the First Judicial Dist.38 (holding that a corporate representative could not be excluded from a deposition based only on the “possibility that the party will tailor his own testimony to as-sure consistency with that of the witness”). See also Donaghue v. Nurses Registry, Inc.39 (without citing the rules, holding that a deposition is part of the trial and that since a party has an “undisputed” right to be present at trial, he there-fore has the same right to attend a deposition).

B. Corporate Representatives.

In Lumpkin,40 the court ruled that, based on FRE 615, the plaintiff did not need a protective order to exclude the defendant’s witnesses from attend-ing the deposition of the plaintiff. However, the defendant argued that its District Manager and personnel official were corporate representatives, and as such, fell within exception two of the rule.41 The court recognized that the language of the exception is in the singular – “an officer or employee of a party which is not a natural person designated as a representative by its attorney” – however, it was not settled whether more than one representative could be appointed. The court ruled that the district court has discretion to allow more than one corporate representative to attend a deposition, but in this case, the attendance of both representatives was not warranted.42

In Lowy Development Corp. v. Superior Court of California,43 the court addressed the question of how many corporate officers could attend the deposition of other corporate officers. Lowy was described by the respondent court as “a small,




In jurisdictions which require a party to

move for a protective order upon a showing

of good cause before anyone can be

excluded from a deposition, expert witnesses are not

precluded from attending absent such

a showing.

family, closely-held corporation, in which all of the corporate officers are related and allied.”44 The plaintiff scheduled successive depositions of sev-eral of Lowy’s corporate officers. The first depo-nent, Alan Lowy, arrived at his deposition with the six remaining deponents. The plaintiff then moved for a protective order which would allow only the deponent and Lowy’s counsel to attend each deposition.45 The trial court made an order excluding all officers that had not yet been de-posed from the deposition of other officers. Lowy then petitioned for a mandamus order providing that “all corporate officers have an absolute right to be present at the deposition of any other corpo-rate officer.”46 The appellate court stated that the presence at each deposition of closely allied pro-spective deponents could foster collusive testi-mony and, in the words of the lower court, “obviate any possibility of getting an objective deposition from each one of those persons.”47 The appellate court stated that, as a party to the case, the corporation has the right to be “present” at each deposition but that the court could issue a protective order to prevent some of the officers from attending.48 Thus, the court held that Lowy could designate one officer, in addition to the deponent, to attend each deposition. “That repre-sentative must be the same at each deposition except for the officer’s own, in which case another representative may be submitted.”49 See also Wash. County Assessor v. W. Beaverton Congre-gation of Jehovah’s Witnesses, Inc50. (holding that a corporation may designate one representative to attend the depositions of its corporate wit-nesses and that it may “not designate a different corporate representative for separate depositions of corporate witnesses”).

In Adams v. Shell Oil Co.,51 the court addressed whether a defendant corporation could designate a succession of representatives, who would also be acting as fact witnesses at trial, to attend the depositions of plaintiffs who were the corpora-tion’s employees. Shell argued that it was enti-tled to have a “knowledgeable” representative present to help counsel in asking questions, and thus, defendant planned to designate an individ-ual “who has the most knowledge about the depo-nent’s work.”52 The plaintiff employees argued that the practice of designating supervisors could affect their job security.53 The court ruled that, regardless of whether the employees’ job security was threatened, allowing Shell to continue the practice would give many of its fact witnesses the advantage of attending the plaintiffs’ depositions. “Thus, by designating multiple corporate repre-sentatives who are also fact witnesses, Shell would in effect avoid the sequestration of wit-

nesses rule.”54 Consequently, the court held that Shell could designate a representative who was not a witness and did not have supervisory au-thority over the plaintiff to attend the deposi-tions.55

C. Counsel.

In Montgomery Elevator Co. v. Superior Court of Arizona56 – a case involving multiple defendants, represented by several different counsel – the trial court granted a protective order allowing only one defense counsel to attend the deposition of the six-year-old plaintiff, based on the “tender age of the … deponent.” The order, therefore, pre-cluded two of the three defendant parties from having counsel present. The Arizona Supreme Court acknowledged that the court could exclude a party to the case from a deposition; however, it further held that a court could never exclude all counsel for a party, therefore depriving the party of representation.57 The court stated that “the right of representation is basic to our system of justice and extends to every facet of the judicial process.”58 However, the trial court does have discretion in certain cases to “regulate, rather than eliminate representation” by requiring par-ties with common interests59 to be represented by a particular lawyer.60

D. Non-Party Witnesses.

A court may be more willing to exclude a non-party witness from attending a deposition. In Swiers v. P & C Food Markets, Inc.,61 the court affirmed an order excluding a non-party witness from attend-ing the deposition of the defendant, but would not grant a similar motion excluding the defendant from the witness’s deposition. The stated goal for the exclusion was, again, to elicit the “spontaneous testimony” of the witness, “uncolored by the testimony of [the] defendant.”62 See also Naatz v. Queensbury Central School District63 (holding that employees of a defendant are not parties and, therefore, may be excluded from attending the depositions of one another).

E. Expert Witnesses.

In jurisdictions which require a party to move for a protective order upon a showing of good cause before anyone can be excluded from a deposition, expert witnesses are not precluded from attend-ing absent such a showing. For example, in Brignola v. Pei-Fei Lee, M.D., P.C.,64 the appellate court reversed the granting of a protective order which had excluded the plaintiff’s expert witness from attending the deposition of the defendant. The appellate court stated, “For a protective order to be issued, a factual showing of prejudice, an-noyance, or privilege must be made.”65 Because the issues in the medical malpractice case were technical and complex, the court stated that hav-




In Cavuoto v. Smith, a personal injury

action stemming from a car accident, the court held that the

insurer was a “real party in interest in

this action to the (potential) extent of

$50,000 plus cost of defense…solely

incurring and defraying the expense

of defense counsel therein,” and

therefore, “ha[d] the right to be present at every adversary stage

of the litigation, through whichever

agent or representative it may choose, to

observe and appraise to observe and the

conduct of its chosen counsel or for any

other reason pertinent to its investment in connection with the

litigation.”

ing an expert present would greatly enhance the plaintiff’s ability to discover relevant information. Thus, the burden must shift to the opposing party to state why the expert should be barred. “Defendant’s conclusory claims that the expert’s presence will cause annoyance or embarrass-ment do not satisfy that burden.”66 See also Burrhus v. M&S Supply, Inc.67 (stating that a party must obtain a protective order to exclude an ex-pert witness from a deposition).

On the other hand, jurisdictions which apply FRE 615 to depositions reach different results on this issue of expert witnesses. Because FRE 615 can be invoked as a matter of right as long as an indi-vidual does not fall within one of the three catego-ries of exceptions, a party does not have to show good cause to have him excluded from a deposi-tion. Even under FRE 615, however, the third exception to the rule is “a person whose presence is shown by a party to be essential to the presen-tation of the party’s cause.”68 The Advisory Com-mittee’s Note specifically states that “an expert needed to advise counsel in the management of the litigation” is an individual included in the ex-ception.69 See Williams v. Electronic Systems, Inc.70 (stating that a party merely must assert a need for the advice of the expert in the manage-ment of the lawsuit to have him present at a deposition).

At trial, determining whether an expert witness is “essential,” thus exempting the individual from exclusion, is often affected by the extent to which the purpose of FRE 615 will be undercut by allow-ing the individual to hear the testimony of other witnesses.71 More specifically, if the expert does not claim to have first-hand knowledge, there is little danger that the individual will falsify his testi-mony to match the fact testimony of other wit-nesses. In such a case, the expert should not be excluded from the trial.72 Conversely, if the expert has the opportunity to conform his testimony to that of other witnesses, the court may rule that the individual is not “essential” and can be ex-cluded.73 Trial courts have broad discretion in ruling whether an expert should be allowed to attend or be excluded. See, e.g., Morvant v. Constr. Aggregates, Corp.74 Further, the party seeking to keep an expert witness in the court room has the burden of showing that her pres-ence is essential; however, the court should gen-erally accept any reasonably substantiated claim of need.75

Again, given the amendment to FRCP 30(c), the application of FRE 615 would appear to be inap-propriate.

F. Insurance Adjusters.

In Cavuoto v. Smith,76 a personal injury action stemming from a car accident, the plaintiffs sought to exclude a representative of the defen-dant’s insurance carrier from a pretrial deposi-tion. The claim representative stated his rea-sons for attending the depositions “were to ob-serve the witnesses, to hear the testimony and to assess this case both in terms of settlement pos-sibilities and defense strategies.”77 The court held that the insurer was a “real party in interest in this action to the (potential) extent of $50,000 plus cost of defense…solely incurring and defray-ing the expense of defense counsel therein,” and therefore, “ha[d] the right to be present at every adversary stage of the litigation, through which-ever agent or representative it may choose, to observe and appraise the conduct of its chosen counsel or for any other reason pertinent to its investment in connection with the litigation.”78 See also Thrasher v. U.S. Liab. Ins. Co.79 (holding that the insurance carrier is a real party in inter-est). In Bennett v. Troy Record Co.,80 the court held:

Although the insurance carrier is not a “party” named in the action, ‘in view of the realities of the relation between insurers and insured they should be treated as if they were one’ and therefore it actually is not a true non-party wit-ness. The relationship between a defendant and an insurance company is so closely related as to the subject-matter of the lawsuit that as a matter of fact, if not in law, the insurance com-pany is the real and actual defendant, the real party in interest.

Additionally, courts have held that it is part of the insurance carrier’s contractual duty to attend depositions when defending a claim. Sears Roe-buck & Co. v. Emerson Elec. Co.81 Thus, as an insurance carrier is a "party" to the liability case, courts should be reluctant to grant protective orders excluding representatives of insurance carriers from depositions.

G. Members of the Public.

The United States Supreme Court has held that depositions are not public elements of a trial, and depositions were not open to the public at com-mon law.82 Because information elicited at depo-sitions is often unrelated to the underlying cause of action, restricting public access to pretrial dis-covery does not infringe the public’s right to infor-mation.83 Further, the Court has held that the public has no constitutional right to attend pretrial judicial proceedings. The right to a public trial, guaranteed by the Sixth Amendment of the Con-stitution, is a guarantee for the individual stand-ing trial, not for the public.84 The publication of




The trial court has wide discretion in shaping pre-trial

discovery. The court’s willingness to exclude

certain individuals from attending a

deposition will depend on who the individual

is and whether the jurisdiction applies

FRE 615 to depositions.

pretrial information may unduly influence poten-tial jurors; thus, closure of pretrial proceedings ensures fairness at trial.85 Therefore, protective orders may be issued to exclude the public from depositions.86 See also Scollo v. Good Samaritan Hospital,87 (holding that a protective order should have been issued to exclude a reporter from Newsday from attending depositions held at the courthouse).88

In Lewis R. Pyle Memorial Hospital v. Superior Court of Arizona,89 the court disagreed with the sweeping argument advanced by one party that civil depositions are open to the public unless closed by court order. Further, the court rebuffed the argument that because FRCP 26(c)(5) pro-vides the mechanism to exclude individuals from depositions, that it would be “rendered meaning-less” by holding that depositions are closed to the public absent a protective order.90 This case holds, then, that protective orders are not neces-sary to exclude members of the public from depo-sitions. The Pyle court continued that, of course, parties may agree to exclude members of the public from depositions that generally are held at attorneys’ offices, “a private setting.”91 See also Cavuoto v. Smith92 (“[A]s a practical matter, no one may be present, without being invited, in the private offices of the attorneys where so many of the examinations are held.”)

However, according to Pyle, FRCP 26(c)(5) should be applied when the parties disagree about who may be present. “We do not read the rule to mean that since an order may be obtained to exclude persons then ipso facto everyone, the public and press, is entitled to attend absent an order to the contrary.”93

A contrary position was taken by the court in Wash. County Assessor v. W. Beaverton Congre-gation of Jehovah’s Witnesses, Inc.94 (“depositions are generally open to the public;” thus, a party wishing to exclude a non-party indi-vidual must move for a protective order). If a deponent knows before the deposition that an unauthorized member of the public plans to at-tend with the consent of another party, the depo-nent should seek a protective order. On the other hand, if the deponent is not aware that the third-party will be attending, FRCP 30(d) offers addi-tional protection by allowing the party to register his objections on the record and demand the sus-pension of the deposition so that he may apply for a protective order. “[A] deponent may not refuse to be deposed or leave a deposition without com-plying with the rules.”95

VI. Violation of The Rule.

While one would think that a violation of the ex-

clusionary rule would result in a witness not being allowed to testify, that is not always the case. In Lemons v. St. John’s Hospital of Salina,96 the court did affirm a trial court’s order which refused to allow a witness to testify, because the witness had remained in court room in violation of the court’s order excluding him.

However, in two older cases, that ruling did not necessarily follow. In Davenport v. Ogg,97 the court held that a witness’ breach of an order ex-cluding witnesses from the courtroom is no ground for rejecting his testimony. Of course, on cross-examination, his attendance during the testimony of other witnesses may be shown to affect his credibility. And if it is shown that the party calling him as a witness participated in his contempt, this may be ground for rejecting his testimony. And in Barber v. Emery,98 the court held that a witness may be disciplined for disre-garding an order to withdraw from the courtroom, but his disobedience would not disqualify him as a witness.

Such a situation is less likely to arise in a deposi-tion, where the deposing party may either adjourn the deposition or call the court for immediate redress if some person should refuse to leave a deposition, in violation of an order excluding him.

VII. Conclusion.

The trial court has wide discretion in shaping pre-trial discovery. The court’s willingness to exclude certain individuals from attending a deposition will depend on who the individual is and whether the jurisdiction applies FRE 615 to depositions. In jurisdictions which apply FRE 615 to pretrial proceedings, an individual may be excluded with-out a showing of good cause, if that individual is not within one of the three exceptions to the rule. However, jurisdictions which follow FRCP 26(c)(5) may be more willing to exclude individuals ex-empted under FRE 615 – a party to the case or a representative of a party to the case – if an ade-quate showing of cause is made.

Lawyers in Kansas have some guidance on how a federal court would resolve the dispute as to who may attend a deposition. While the decision of Conrad v. Bd. Of Johnson County Kan. Comm’rs99 appears to stand alone, that decision does hold that one must seek a protective order, and estab-lish good cause, in order to exclude from the deposition someone other than a party represen-tative, because FRE 615 does not apply to discov-ery. Indeed Judge Waxse stated that sequestra-tion of witnesses in deposition “should be the exception rather than the rule.”100 In this situa-tion, the person opposing a non-party’s atten-dance would bear the burden of proof.

There do not appear to be any Kansas state court




decisions on point, leaving advocates to argue that the Conrad decision provides persuasive authority for requiring a showing of good cause to obtain a protective order for the exclusion of a non-party from a deposition. Those opposing the attendance of non-parties in a Kansas state court deposition could base their arguments on the United States Supreme Court’s holding Gannett Co. v. DePasquale that depositions were closed at common law,101 so that restricting a non-party’s access to pretrial discovery is not inappropri-ate.102 Presumably, in this situation, the person proposing to attend the deposition would bear the burden of proof.

This conclusion is supported by a Kansas statute, K.S.A. 60-230(h), which limits the attendees at a deposition to: the reporter, parties, counsel and paralegals, and the deponent. No one else may attend “[u]nless otherwise ordered by the judge or stipulated by counsel.” Therefore, the statute comports with the holding in Gannett, and will require a motion and a court order to allow some-one other than those listed in the statute to at-tend a deposition in a Kansas state court pro-ceeding , unless the parties agree.

_________________________

1. Nick Badgerow is a partner with Spencer Fane Britt & Browne LLP, Overland Park, Kansas. Chairman, Kansas Ethics 2000 Commission; Chairman, Kan-sas Ethics Advisory Opinion Committee; Chairman, Johnson County, Kansas, Ethics and Grievance Committee; Member, Kansas State Board of Disci-pline for Attorneys; Member, Kansas Judicial Coun-cil; Chairman, Kansas Judicial Council Civil Code Advisory Committee. Board Certified, Civil Litiga-tion, National Board of Trial Advocates. Lindsay Noelle Todd was a 2005 Summer Associate at Spencer Fane Britt & Browne LLP. She is a gradu-ate of Avila University, and is a student at the Uni-versity of Missouri –Kansas City School of Law.

2. State v. Heath, 264 Kan. 557, 589, 957 P.2d 449 (1998).

3. FRE 615.

4. Adams v. Shell Oil Co., 136 F.R.D. 615, 616 (E.D. La. 1991).

5. FRE 615.

6. In Kansas, the criminal statutes do provide for exclusion of witnesses in preliminary hearings, K.S.A. 22-2903, but not in trial, where such exclu-sion is discretionary. State v. Guffey, 205 Kan 9, 468 P.2d 254 (1970) (no error to refuse exclusion of witnesses); State v. Schoenberger, 216 Kan. 464, 532 P.2d 1085 (1975) (“better practice” is to exclude witnesses on motion timely made, but no abuse of discretion in denying motion in the pre-sent case); State v. Heath, 264 Kan. 557, 957 P.2d 449 (1998) (abuse of discretion to refuse to exclude witness, but no prejudice, so not reversi-

ble).

7. Lennon v. Kansas, 193 Kan. 685, 396 P.2d 290 (1964); West v. West, 135 Kan. 223, 9 P.2d 981 (1932); Simpson v. Schiff, 109 Kan. 9, 197 P. 857 (1921); First Nat’l Bank of Russell v. Knoll, 7 Kan. App. 352, 52 P. 619 (1898) (all holding that under Kansas state law, granting or refusal of a request to exclude witnesses is within the discretion of the trial court).

8. FRCP 26(c)(5).

9. FRCP 26(c)(5); K.S.A. 60-226(c)(5) (emphasis added).

10. Lumpkin v. Bi-Lo, Inc., 117 F.R.D. 451, 452 (M.D. Ga. 1987).

11. Id. at 452-53.

12. Id. at 453.

13. Id. at 453 (citing Naismith v. Prof’l Golfers Ass’n, 85 F.R.D. 552, 567 (N.D. Ga. 1979)).

14. Williams v. Elec. Control Sys., Inc., 68 F.R.D. 703 (E.D. Tenn. 1975).

15. BCI Communication Sys., Inc. v. Bell Atlanticom Systems, Inc., 112 F.R.D. 154, 157-59 (N.D. Ala. 1986).

16. FRCP 30(c) (emphasis added).

17. FRCP 30(c), 1993 Amendments, Advisory Commit-tee Note.

18. Lee v. Denver Sheriff’s Dep’t, 181 F.R.D. 651, 653 (D. Colo. 1998).

19. Wash. County Assessor v. W. Beaverton Congrega-tion of Jehovah’s Witnesses, Inc., 2005 WL 1432577, 2 n.2 (Or. T.C. May 26, 2005).

20. Tuszkiewicz v. Allen Bradley Co., 170 F.R.D. 15, 16 (E.D. Wisc. 1996).

21. Alexander v. FBI, 186 F.R.D. 21, 53 (D.D.C. 1998).

22. Weisler v. U.S. Dep’t of Veterans Affairs, 2002 WL 987372, 1 (E.D. La. May 13, 2002).

23. Calhoun v. Mastec, Inc., 2004 WL 1570302, 3 (W.D.N.Y. June 1, 2004).

24. Campinas Found. v. Simoni, 2004 WL 2709850, 3-4 (S.D.N.Y. Nov. 23, 2004).

25. Bell v. Bd. Of Educ. Of the County of Fayette, 225 F.R.D. 186, 195-96 (S.D. W. Va. 2004).

26. Conrad v. Bd. Of Johnson County Kan. Comm’rs, 2001 WL 1155298, 1 (D. Kan. Sept. 17, 2001).

27. Id., at 1.

28. Id., at 2.

29. Galella v. Onassis, 487 F.2d 986 (2nd Cir. 1973).

30. Id. at 997.

31. Id.

32. Id.

33. Ferrigno v. Yoder, 495 So.2d 886 (Fla. Dist. Ct. App. 1986).

34. Id. at 887.

35. Id. at 887-88.



While the decision of Conrad v. Bd. Of

Johnson County Kan. Comm’rs appears to

stand alone, that decision does hold

that one must seek a protective order, and establish good cause,

in order to exclude from the deposition

someone other than a party representative, because FRE 615

does not apply to discovery.


36. Id. at 888.

37. Mugrage v. Mugrage, 763 A.2d 347 (N.J. Super. Ct. Ch. Div. 2000).

38. Hamon Contractors, Inc. v. Dist. Court of the First Judicial Dist., 877 P.2d 884 (Colo. 1994).

39. Donaghue v. Nurses Registry, Inc., 485 A.2d 945 (Conn. Super. Ct. 1984).

40. Supra, footnote 4.

41. 117 F.R.D. at 453-54.

42. Id. at 454.

43. Lowy Development Corp. v. Superior Court of Cali-fornia, 235 Cal. Rptr. 401 (Cal. Ct. App. 1987).

44. Id. at 402.

45. Id.

46. Id.

47. Id. at 403.

48. Id.

49. Id. at 404 (emphasis added).

50. Wash. County Assessor, 2005 WL 1432577 at 2.

51. Adams v. Shell Oil Co., 136 F.R.D. 615 (E.D. La. 1991.

52. Id. at 616.

53. Id.

54. Id. at 617.

55. Id. Query whether, given the inapplicability of FRE 615 to FRCP 30, a similar ruling would now result.

56. Montgomery Elevator Co. v. Superior Court of Ari-zona, 661 P.2d 1133, 1134 (Ariz. 1983).

57. Id. at 1136.

58. Id. at 1135.

59. One wonders how far the issue of “common inter-ests” could be pressed, given the difference in positions often presented by or among co-defendants in any given case.

60. Id. at 1136.

61. Swiers v. P & C Food Markets, Inc., 95 A.D.2d 881 (N.Y. App. Div. 1983).

62. Id. at 882.

63. Naatz v. Queensbury Central School District, 166 A.D.2d 866 (N.Y. App. Div. 1990).

64. Brignola v. Pei-Fei Lee, M.D., 597 N.Y.S.2d 250 (N.Y. App. Div. 1993).

65. Id. at 251.

66. Id.

67. Burrhus v. M&S Supply, Inc., 933 S.W.2d 635, 641 (Tex. Ct. App. 1996).

68. FRE 615(3).

69. FRE 615 Advisory Committee Note.

70. Williams v. Electronic Systems, Inc., 68 F.R.D. at 704

71. 29 CHARLES ALAN WRIGHT & VICTOR JAMES GOLD, FED-

ERAL PRACTICE AND PROCEDURE § 6245 (2005).

72. See, e.g., Mayo v. Tri-Bell Indus., Inc., 787 F.2d 1007, 1013 (5th Cir. 1986).

73. See, e.g., Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1373-74 (5th Cir. 1981).

74. Morvant v. Constr. Aggregates, Corp., 570 F.2d 626, 630 (6th Cir. 1978).

75. Id.

76. Cavuoto v. Smith, 437 N.Y.S.2d 234 (N.Y. Sup. Ct. 1981).

77. Id. at 235.

78. Id. at 236.

79. Thrasher v. U.S. Liab. Ins. Co., 225 N.E.2d 503 (N.Y. 1967).

80. Bennett v. Troy Record Co., 269 N.Y.S.2d 213 (N.Y. App. Div. 1966).

81. Sears Roebuck & Co. v. Emerson Elec. Co., 2003 WL 22057251, 7 (N.D. Ill. Sept. 3, 2003) (citing Employers Ins. of Wausau v. James McHugh Constr. Co., 144 F.3d 1097, 1105 (7th Cir. 1998)); Carter v. Pioneer Mut. Cas. Co., 423 N.E.2d 188, 190 (Ohio 1981).

82. Seattle Times, Co. v. Rhinehart, 467 U.S. 20, 33 (1984).

83. Id.

84. Gannett Co. v. DePasquale, 443 U.S. 368, 381 (1979).

85. Id. at 378-79.

86. Rhinehart, 467 U.S. at 34; see DePasquale, 443 U.S. at 379.

87. Scollo v. Good Samaritan Hospital, 572 N.Y.S.2d 730 (N.Y. App. Div. 1991).

88. Citing, Rhinehart, 467 U.S. at 33.

89. Lews R. Pyle Memorial Hospital v. Superior Court of Arizona, 717 P.2d 872 (Ariz. 1986).

90. Id. at 876.

91. Id.

92. Cavuoto v. Smith, 437, N.Y.S.2d 234 (N.Y. Sup. Ct. 1981).

93. Lewis R. Pyle Mem’l Hosp., 717 P.2d at 876.

94. Wash. County Assessor, 2005 WL 1432577 at 2-3.

95. Lewis R. Pyle Mem’l Hosp., 717 P.2d at 877.

96. Lemons v. St. John’s Hospital of Salina, 5 Kan. App. 2d 161, 613 P.2d 957 (1980).

97. Davenport v. Ogg, 15 Kan. 363, 1875 WL 818 (1875).

98. Barber v. Emery, 101 Kan. 314, 167 P. 1044 (Kan. 1917).




102. Id.



K.S.A. 60-206(d) is only applicable to

extending the time to respond after the

service of a notice on a party. In other

words, the 3 days are added at the end of a

specified period – after the party is

served by mail.

RECENT CASE SUMMARIES

Blue v. Tos, Case No. 91,423, 33 Kan. App. 2d 404, 102 P.3d 1190 (2004) (review denied May 3, 2005) (Greene, J.) (service of process, serving defendant 92 days after filing and after S/L has run is insufficient service).

Plaintiff filed suit based on automobile accident on May 13, 2003, three days before the statute of limitations expired. On July 29, 2003, plaintiff’s counsel allegedly asked and received from an administrative assistant to the district court an extension of the 90-day period for service, but no documentation exists to support this extension. On August 13, 2003, the petition was served by mail at defendant’s residence on defendant’s 13-year-old son. The district court granted defen-dant’s motion to dismiss based on ineffective service of process which resulted in the expiration of the applicable statute of limitations. The Court of Appeals rejected plaintiff’s argument that where K.S.A. 60-203 required service within 90 days, service within 3 months is interchangeable with 90 day requirement. The alleged extension given by the administrative assistant, which was undocumented, had no effect. The court stated the “better practice if not the required procedure to request such an extension is by written motion pursuant to Rule 133 . . . with a ruling made by the court documented pursuant to Rule 134.” (Emphasis added.) 33 Kan. App. 2d at 407. Plaintiff argued the mailbox rule of K.S.A. 60-206(d) extended his 90-day period by 3 additional days, but the court found that provision is only applicable to extending the time to respond after the service of a notice on a party. In other words, the 3 days are added at the end of a specified period – after the party is served by mail. Plaintiff also argued that the joinder of defendant’s mo-tion of the statute of limitations defense together with the challenge to sufficiency of service of process constituted a general entry of appear-ance and waiver of the service of process de-fense. The court rejected this argument because K.S.A. 60-212(b) expressly provides, “’No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.’” 33 Kan. App. 2d at 408. District court properly dismissed case because defendant not served within 90 days of filing and was claim barred by statute of limitations.

Idbeis v. Wichita Surgical Specialists, P.A., Case No. 91,442, 279 Kan. 755, 112 P.3d 81 (2005) (petition for rehearing or modification denied Sept. 20, 2005) (Luckert, J.) (a medical employer may enforce a noncompete agreement to protect interest in referral sources).

Plaintiffs, four cardiovascular surgeons who had entered into restrictive covenants with their em-ployer, Wichita Surgical Specialists (WSS), ended

their employment rela-tionships with WSS. The employment agreement of one surgeon, Dr. Id-beis, contained a 2-year geographic restrictive covenant with a liqui-dated damages provi-sion, and the other three surgeons’ contracts con-tained different geographic limitations, but no liquidated damages provisions. The four sur-geons planned to form their own group in Wichita. Plaintiffs filed suit seeking a restraining order and injunction prohibiting WSS from enforcing the restrictive covenants and a declaration that those covenants were unenforceable. The trial court found the restrictive covenant in Dr. Idbeis’ em-ployment agreement was enforceable and that he must pay the liquidated damages or stop practic-ing in Sedgwick County. The trial court also found the other surgeons’ restrictive covenants were enforceable, but granted their alternative request and permitted them to pay liquidated damages.

Relying on Weber v. Tillman, 259 Kan. 457, 464, 913 P.2d 84 (1996), the Kansas Supreme Court found the following factors should be considered in analyzing whether a noncompetition clause is reasonable: “‘(1) Does the covenant protect a legitimate business interest of the employer? (2) Does the covenant create an undue burden on the employee? (3) Is the covenant injurious to the public welfare? (4) Are the time and territorial limitations contained in the covenant reasonable? The determination of reasonableness is made on the particular facts and circumstances of each case.’” 279 Kan. at 763. The court found the restrictive covenants were enforceable and stated: “A medical employer has a legitimate business interest in referral sources and referral patterns, which warrants protection by a noncom-petition agreement. . . . It is not necessary that all restrictive covenants in the employment contracts of physicians have liquidated damages provisions in order to be enforceable, and the lack of one does not make a restrictive covenant unenforce-able.” 279 Kan. 755, Syl. ¶¶ 4,6. Thus, Dr. Id-beis, whose contract contained a liquidated dam-ages provision, was entitled to pay liquidated damages in lieu of ceasing practice within 75 miles of Wichita. The Supreme Court reversed as to the other three plaintiffs, whose contracts did not contain liquidated damages provisions, and held they did not have the option of paying liqui-dated damages.

Davis v. Hildyard, Case No. 92,439, 34 Kan. App. 2d 22, 113 P.3d 827 (2005) (review denied Sept.


By Nancy Ogle Woodard, Hernan-

dez, Roth & Day, LLC


20, 2005) (Pierron, J.) (K.S.A. 65-442 grants qualified liability immunity in peer review proc-esses which protected defendants from plaintiff’s defamation action).

Dr. Davis filed a defamation action against Drs. Hildyard and Ketting based on their statements regarding Dr. Davis’ competence as a physician. Plaintiff and defendants practiced medicine in Colby. Dr. Davis based his lawsuit on statements Drs. Hildyard and Ketting made during a hospital medical staff meeting and Dr. Hildyard’s state-ments at a monthly EMS business meeting. Some of the statements made reference to Dr. Davis being the subject of a disciplinary action before the Colorado State Board of Medical Exam-iners. The trial court granted defendants’ motion for summary judgment. K.S.A. 65-422 provides for a qualified privilege from liability for state-ments made by any member of a medical staff committee, such as a peer review committee, in the furtherance of his or her duties, provided that those statements were made in good faith and without malice. The Kansas Court of Appeals found the alleged statements were made within the scope of peer review and, therefore, protected by K.S.A. 65-442. However, defendants would not be protected if their statements were made with malice and without good faith. Although a court should be cautious in granting a motion for summary judgment when it requires a determina-tion of a party’s or parties’ state of mind, here the plaintiff failed to offer clear and convincing evi-dence of actual malice. The Court of Appeals affirmed the trial court’s decision to grant sum-mary judgment.

State ex rel. Stovall v. Reliance Insur. Co., Case No. 87,393, 278 Kan. 777, 107 P.3d 1219 (modified opinion filed Jan. 21, 2005) (Per Cu-riam) (breach of contract damages are designed to make a party whole; a party may recover dam-ages that are the proximate result of the breach; in order to have standing to bring suit as a third-party beneficiary, the third party must prove it was the intended beneficiary of the contract).

The State brought this action based on the failure of the underground thermal piping system for heating and cooling at the El Dorado Correction Facility, which eventually led to the replacement of the piping system with a different type of sys-tem. The State sued the utilities general contrac-tor GMM and its surety, Reliance, as well as sev-eral subcontractors. The State asserted various breach of contract claims and tort claims. The trial court limited the State’s damages for GMM and Reliance’s breach of contract to $129,609

based on the cost of the original piping system installed in 1991 and adjusted for inflation to 1995, plus incidental damages and applying credit for settlement monies already received by the State. The trial court also granted subcontrac-tor defendants’ motions for summary judgment on the theory that the State was not a third-party beneficiary to the contracts between these defen-dants and GMM. The State was permitted to file an interlocutory appeal.

The Kansas Supreme Court reversed the trial court’s decision on the measure of the State’s damages. The State was entitled to be made whole, which included being reimbursed for the finance, design and administrative costs associ-ated with the replacement piping system and any other direct costs it proved on remand, not to exceed the cost of a piping system like the origi-nal system installed in 1991. The court affirmed the trial court’s decision that the State and the subcontractor defendants were not in privity of contract. The State could only bring breach of contract claims against the subcontractors if it could prove it was a third-party beneficiary to the contracts between GMM and the subcontracts. Contracting parties are presumed to act for them-selves and, therefore, an intent to benefit a third party must be clearly expressed in the contract. The Supreme Court relied on Restatement (Second) of Contracts § 302 (1979) to determine the contracts were not made directly and primarily for the State’s benefit.

Recent Case Summaries (Continued from page 10)

Statements were made within the scope of

peer review and, therefore, protected by

K.S.A. 65-442. However, defendants

would not be protected if their statements

were made with malice and without

good faith.


Update

Didn’t we have a great annual meeting in Decem-ber! We had a great membership turn-out with a fast-moving program of consistently interesting topics. I appreciated the opportunity to follow my interests in the two-track Friday afternoon CLE program. Steve Kerwick was again in best form for the annual case law review. Dan Diepenbrock deserves special thanks for cornering Larry Pozner at the Colorado Defense Lawyers Associa-tion last year and persuading him to speak at our meeting. Mr. Pozner’s “killer cross-examination” presentation had all of entertained and busy tak-ing notes on some new things to try next time we’re in the courtroom. Bob Fanter gave us something to think about on the subject of the disappearing civil jury trial. Thanks, too, to Dan McCune, DRI’s regional director, for the time he took out his professional life to join us in Kansas City. Congratulations and thanks to Scott Nehr-bass and his committee for giving us another successful meeting.

DRI has over the last several years, through its substantive law committees, developed a number of compendia on topics of interest to clients and lawyers with national legal interests. These com-pendia examine, on a state-by-state basis, topics like insurance bad faith, unfair trade practices, and employment law. The substantive law com-mittees have also developed practice-oriented compendia on specific topics like excluding ex-perts in fire and explosion litigation, a Frye-Daubert reference guide, HIPAA best practices for defense lawyers, a products liability compilation of useful articles from For The Defense, and an ERISA litigation primer. These high-quality com-pendia are available on CD or DVD as handy refer-ences for very reasonable prices. Stop by the bookstore at www.dri.org to see if one of these might help you with something that’s on your desk right now.

Over the last few years, DRI has led the profes-sion in developing initiatives to meet the challenges facing the practice from the defense perspective. Recent efforts to address the challenges of modern law practice include A Career in the Courtroom: DRI's Task Force on Women Who Try Cases and The DRI Law Firm Diversity Retention Manual. (Find these available for free download on DRI’s website.) The two provocative studies deserve the attention of all of us involved in hiring and reten-tion issues. A third project is nearing completion headed by

DRI’s Task Force on the Status of the Judiciary. KADC’S Anne Kindling is Kansas’ representative to the task force. It com-pleted a national survey of DRI members from the 50 states as part of its inquiry into matters af-fecting the judiciary. Survey topics included the effect of the politicization of judicial elections or selection process, court funding, judicial sala-ries, courthouse security, unwarranted or unin-formed criticism of judicial opinions, and the influ-ence of special interests in the selection or elec-tion of judges. The task force is next going to interview several persons in states throughout the country on these topics and compile the re-sponses into a report and recommendations for responding to judicial criticism. While the topics addressed have national visibility, Kansas has had recent and up-close experience with some of these same issues, including the continuing fall-out from our Supreme Court’s school finance rul-ings. The report is sure to generate thoughtful discussion when it appears later this year.

One of the great things about being involved in KADC for a fairly good stretch of time is seeing the organization thrive. I first became involved in KADC in the late 80’s when great Kansas defense trial lawyers like Don Patterson, Mike Stout, and Dick Hite were the stars in my firmament. I’m delighted to see that the next generation of KADC leaders promise to keep KADC involved in the challenges of our practices and the issues of the day. Todd Thompson, Scott Nehrbass, and Anne Kindling are KADC’s 2006 officers. Their interest, enthusiasm, and dedication bodes well for mak-ing KADC a continuing success story. Here’s to a great 2006!

DRI Liaison Timothy Finnerty

DRI Seminars 2006 Schedule

March 1-3 Medical Liability and Health

Care Law Phoenix, AZ

March 9-10

Toxic Torts and Environmental Law

Phoenix, AZ

March 9-10 Appellate Advocacy

Phoenix, AZ

March 16-17 Damages

Las Vegas, NV

March 30-31 Big Wheels Keep on Rollin’ - Confronting New Challenges

Posed by Technology and De-fending Trucking Claims

Chicago, IL

April 26-28 Life, Health, Disability and ERISA

Claims Washington, DC

May 4-5

Insurance Converage and Claims Institute

Chicago, IL

May 11-12 Drug and Medical Device

Chicago, IL

May 17-19 Employment Law

Ft. Lauderdale, FL

October 11-15 DRI Annual Meeting

San Francisco, CA


law tort, reserving such claims for only the most deplorable circumstances.5 Though recovery by a plaintiff must depend on the facts and circum-stances of each case,6 the overwhelming majority of Kansas cases have held in favor of the defen-dant on the outrage issue, finding that the alleged conduct was not sufficiently “outrageous” to sup-port the cause of action.7

The Kansas Supreme Court first recognized the tort of outrage in 1974 in Dawson v. Associates Financial Services Company.8 The Dawson court noted that the tort of outrage is based on the Restatement (Second) of Torts, which provides: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emo-tional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”9 Later, in Roberts v. Saylor,10 the Kansas Supreme Court recognized that “certain protections have been afforded defendants against fictitious claims and litigation based on trivialities or mere bad manners. These protections are peculiar to ac-tions based on the tort of outrage.”11 More spe-cifically, the protections exist in the heightened standards needed to prove the tort.

A claim of outrage requires proof of four elements at trial: (1) The conduct of the defendant was intentional12 or in reckless disregard13 of the plaintiff; (2) the conduct was extreme and outra-geous; (3) there was a causal connection between the defendant’s conduct and the plaintiff’s mental distress; and (4) the plaintiff’s mental distress was extreme and severe.14 But before a jury de-cides the four elements, the trial court must de-termine whether the plaintiff’s claim meets two threshold requirements.15 First, the defendant’s conduct must be reasonably regarded as “so out-rageous in character and so extreme in degree as to go beyond the bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society.”16 Second, the emotional dis-tress suffered by the plaintiff must be “of such extreme degree the law must intervene because the distress inflicted was so severe that no rea-sonable person should be expected to endure it.”17

The Roberts court stated without caveat that this two-step determination is for the judge, rather than the jury:

“If the court determines from the pleadings, stipulations, admissions, and deposition of the plaintiff that reasonable fact finders might dif-fer as to whether defendant’s conduct was sufficiently extreme and outrageous as to sub-

ject him to liability for emotional distress, and if the court further determines plaintiff’s emo-tional distress was such that reasonable fact finders might differ as to whether plaintiff’s emotional distress was genuine and so severe and extreme as to result in liability, then and only then, it must be left to the jury to deter-mine liability based on the evidence at trial.”18

Thus, a claim for the tort of outrage can proceed only if the judge determines that reasonable fact finders could differ as to both (1) whether defen-dant’s conduct was sufficiently extreme and out-rageous as to subject him to liability for emotional distress; and (2) whether plaintiff’s emotional distress was genuine and so severe and extreme as to result in liability. Thus, outrage claims are particularly suited for summary disposition.

Threshold Determination I: Whether the Alleged Conduct Was “Extreme and Outrageous”

The court’s first threshold issue is whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recov-ery. This issue is for the court to determine. 20 Where reasonable persons may differ, the ques-tion is for the jury to decide.21

The Kansas Supreme Court has ruled that the required showing of misbehavior is stringent: “In order for conduct to be deemed sufficient to sup-port the tort of outrage, it must be so outrageous in character and so extreme in degree as to go beyond the bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society.”22 “[L]iability does not arise from mere insults, indignities, threats, annoyances, petty expressions, or other trivialities.”23 To the con-trary, the threshold requirements for an outrage claim are “necessarily high to separate meritori-ous claims from those based on trivialities or hy-perbole.”24 “The classic test is that liability may be found to exist when the recitation of the facts to an average citizen would arouse resentment against the actor and lead that citizen to sponta-neously exclaim, ‘Outrageous!’”25

Although plaintiffs occasionally file claims under the tort of outrage, hoping the defendant’s al-leged conduct is “outrageous enough” to prevail, it is extremely difficult and rare for a plaintiff’s evidence to meet the high burden imposed by the Kansas Supreme Court. Consider the following instances of alleged misbehavior that were found as a matter of law not to constitute actionable outrage in Kansas:26

• A doctor, who previously had been sued by the plaintiff, saw the plaintiff several years later lying on a gurney in the pre-op area of a

Tort of Outrage (Continued from page 1)


A claim of outrage requires proof of four elements at trial: (1)

The conduct of the defendant was

intentional or in reckless disregard of the plaintiff; (2) the conduct was extreme and outrageous; (3) there was a causal

connection between the defendant’s conduct and the plaintiff’s

mental distress; and (4) the plaintiff’s

mental distress was extreme and severe.


hospital, as they were both awaiting surgery. He allegedly told her in a hostile manner, “I don’t like you, I don’t like you. I wanted to tell you that before you went in there [to sur-gery].”27

• Plaintiffs were informed that their daughter was dead when she was actually in critical condition at a different hospital.28

• The defendant allegedly repeated to his pre-licensure class for prospective realtors a rumor that the plaintiff was in police custody as a suspect in the murder of his own 13-year-old son. The rumor was untrue.29

• The defendant, who knew the plaintiff had suffered a miscarriage 90 days earlier, alleg-edly told her that if her husband did not rec-tify a bad check, the sheriff “was coming to get” the husband.30

• The plaintiff’s son died, and the plaintiff re-quested that no autopsy be performed, or at least that her son’s brain not be examined. A doctor later learned the brain had been re-moved for examination, and called the plain-tiff and allegedly told her that a state agency “had her son’s brain in a jar.”31

• The defendant attorney allegedly insulted the plaintiff with racial epithets, calling him a “bastard,” a “knot-headed boy,” and a “n*****” in a verbal encounter regarding a past-due account.32

• The defendant bank took social security and disability deposits intended for plaintiff’s personal accounts and, without plaintiff’s knowledge, applied the money to her debt on a promissory note rather than depositing them as directed.33

• The defendants, who incorrectly believed they had foreclosed on the plaintiff’s real estate and residence following a fire, re-moved personal property of the plaintiff from the residence and exacerbated pre-existing mental health problems of the plaintiff.34

• A woman’s family saw her dead body in an unpreserved state at a mortuary. The body had sustained facial bruises from medical treatment intended to save her life and was lacerated and bloodied from being knocked off of a cart onto the floor post-mortem. The family had no idea how or why the damage to the body had occurred.35

Only very rare, exceptionally appalling occur-rences have risen to the level of “outrageous con-

duct” in Kansas. The scant number of cases where the claim was permitted to go to the jury include the following facts:

• The defendant lied to police and abused the criminal justice system by falsely claiming the plaintiffs had been involved in criminal van-dalism and alleging that one plaintiff had committed battery against the defendant.36

• A physician conducted an independent medi-cal exam of a personal injury plaintiff, wherein the physician allegedly verbally belit-tled and intimidated the plaintiff; inappropri-ately fondled her; asked unnecessary, ex-plicit, and demeaning questions about the plaintiff’s sexual history; told her that no set-tlement could be reached if she did not com-ply with his demands; and exacerbated her existing head and neck injuries through a rough physical examination.37

• The defendant employer allegedly made un-provoked racial insults and threats to the plaintiff employee in a 15-minute tirade, call-ing him a “f****** spic,” a “Mexican greaser,” and a “pile of sh**,” shaking his fist and causing the plaintiff to fear for his job and family.39

• The plaintiff, who had been unable to make car payments by reason of symptoms associ-ated with multiple sclerosis, was repeatedly harassed and threatened by the defendant creditor, who questioned her as to when she was going to make her payments.

The above cases demonstrate the past tendency of Kansas courts to proceed conservatively when considering a claim of outrage. Even if a court were to rule that the defendant’s conduct was extreme and outrageous as a matter of law, how-ever, the defendant may still avoid liability if the plaintiff cannot overcome the second threshold determination, examined below.

Threshold Determination II: Whether the Plaintiff Suffered “Severe Emotional Distress”

The second threshold question that must be an-swered before a plaintiff can proceed on his or her outrage claim is whether the emotional dis-tress he or she allegedly suffered “was of such extreme degree that the law must intervene be-cause the distress inflicted was so severe that no reasonable person should be expected to endure it.”40 Whether the evidence would prove severe emotional distress is a question of law.41 Whether it in fact occurred is a jury question.42

No bodily harm to the plaintiff is required to sup-port a claim of outrage.43 However, Kansas does



An outrage claim requires the

defendant’s conduct to be reasonably

regarded as “so outrageous in

character and so extreme in degree as

to go beyond the bounds of decency and

to be regarded as atrocious and utterly

intolerable in a civilized society.”


not permit recovery for emotional distress in tort actions unless that emotional distress is accom-panied by or results in physical injury; an excep-tion is when the injurious conduct is willful or wan-ton, or where the defendant acted with intent to injure.44 Aggravation of a pre-existing injury is compensable in a personal injury action.45 Where the aggravation of a mental disorder is not caused by physical injury but instead merely by damage to property, a plaintiff may not recover.46 Moreover, the law should not intervene merely where someone’s feelings are hurt.47

On only a few occasions have Kansas courts im-parted significant analysis regarding this second threshold determination. In Roberts v. Saylor,48 the Kansas Supreme Court carefully defined the severity and other conditions necessary for emo-tional distress to be actionable:

Emotional distress passes under various names such as mental suffering, mental an-guish, nervous shock, and includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, embarrassment, anger, chagrin, disappointment, and worry. However, it is only when emotional distress is extreme that possible liability arises.

The extreme distress required must be reason-able and justified under the circumstances, and there can be no liability where the plaintiff has appeared to suffer exaggerated and unreason-able emotional distress, unless it results from a peculiar susceptibility to such distress of which the actor had knowledge.49

In Taiwo v. Vu,50 the Kansas Supreme Court af-firmed the district court’s judgment in favor of the plaintiffs even though the plaintiffs consulted no doctor or mental health professional and suffered no physical symptoms of extreme stress.51 The court ruled that the “enormity of the outrage” created by defendant's conduct was sufficient to establish the second threshold of severe and extreme mental distress.52 It should be noted that the Taiwo opinion comes uncomfortably close to suggesting that the second threshold determi-nation is of less consequence if evidence of the first threshold determination is particularly egre-gious. A dispositive motion should nevertheless follow the majority of the cases and seek the court’s threshold determination on the second threshold determination independent of the court’s conclusion on the first determination.

Conclusion

Kansas courts have established a very high stan-dard for the tort of outrage, reserving such a claim

for only the most deplorable of circumstances. Though recovery by a plaintiff depends on the facts and circumstances of each case, the two threshold legal requirements for the tort create a viable chance of success on a motion for sum-mary judgment. Accordingly, in defending outrage claims, defense attorneys should give serious consideration to pursuing summary disposition.

_________________________

1. Dawson v. Associates Financial Services Co., 215 Kan. 814, 820, 529 P.2d 104 (1974) (reversing trial court’s entry of directed verdict in favor of defendant); Hallam v. Mercy Health Center of Manhattan, Inc., 278 Kan. 339, 340, 97 P.3d 492 (2004) (citing Dawson v. Prager, 276 Kan. 373, 388, 76 P.3d 1036 (2003)).

2. Harnett v. Parris, 925 F. Supp. 1496, 1503 (D. Kan. 1996).

3. Harnett, 925 F. Supp. at 1504 (citing Roberts v. Saylor, 230 Kan. 289, 292-93, 637 P.2d 1175 (1981)).

4. See Land v. Midwest Office Technology, Inc., 114 F. Supp. 2d 1121, 1144 (D. Kan. 2000) (citations omitted).

5. Glover v. NMC Homecare, Inc., 106 F. Supp. 2d 1151, 1170-71 (D. Kan. 2000) (citing Dunegan v. City of Council Grove, Kan., 77 F. Supp. 2d 1192, 1208 (D. Kan. 1999)).

6. Roberts v. Saylor, 230 Kan. 289, 293, 637 P.2d 1175 (1981) (citing Dotson v. McLaughlin, 216 Kan. 201, 210, 531 P.2d 1 (1975)).

7. See Lindemuth v. Goodyear Tire and Rubber Co., 19 Kan. App. 2d 95, 100-01, 864 P.2d 744 (1993).

8. Dawson v. Associates Financial Services, Co., 215 Kan. 814, 529 P.2d 104 (1974). Kansas law also includes a similar cause of action where the plain-tiff claims the outrageous conduct by the defen-dant was directed at a member of the plaintiff’s immediate family in his or her presence and, as a result, the plaintiff suffered severe emotional dis-tress. See PIK-Civil 3d 127.72.

9. Dawson, 215 Kan. at 820 (quoting Restatement of Torts (Second) § 46(1), p. 71 (1963)).

10. Roberts, 230 Kan. 289, 637 P.2d 1175 (1981).

11. Roberts, 230 Kan. at 293.

12. Intent to cause severe emotional distress exists when one engages in conduct with a desire to cause this distress in another person, or when he or she knows the conduct will cause that result. PIK-Civil 3d 127.73.

13. Reckless conduct means a disregard or an indiffer-ence to the consequence of that conduct under circumstances involving danger to life or safety of others, although no harm was intended. PIK-Civil 3d 127.73. A person who is reckless must know or have reason to know of facts that create a high degree of risk of harm to another, and then, indif-ferent to what harm may result, proceeds to act. Id.



The second threshold question that must be

answered before a plaintiff can proceed on his or her outrage claim is whether the emotional distress he

or she allegedly suffered “was of such

extreme degree that the law must

intervene because the distress inflicted was

so severe that no reasonable person

should be expected to endure it.”


14. Miller v. Sloan, Listrom, Eisenbarth, Sloan & Glass-man, 267 Kan. 245, 257, 978 P.2d 922 (1999) (citing Smith v. Welch, 265 Kan. 868, 876, 967 P.2d 727 (1998)); see also PIK-Civil 3d 127.70.

15. But see Taiwo v. Vu, 249 Kan. 585, 592, 822 P.2d 1024 (1991), where the Kansas Supreme Court reversed the Court of Appeals and upheld a jury verdict on plaintiff’s claim of outrage. The Supreme Court ruled that the trial court did not err in submit-ting the case to the jury and taking under advise-ment defendants’ motion for directed verdict, which it denied after the verdict was reached.

16. Miller, 267 Kan. at 257 (citing Fusaro v. First Fam-ily Mtg. Corp., 257 Kan. 794, 805, 897 P.2d 123 (1995)).

17. Id. (citing Smith v. Welch, 265 Kan. 868, 876, 967 P.2d 727 (1998)).

18. Roberts, 230 Kan. at 294 (citations omitted) (emphasis added).


20. Hanrahan v. Horn, 232 Kan. 531, 536, 657 P.2d 561 (1983); Comment, PIK-Civil 3d 127.70.

21. Id. (citing Dawson v. Associates Financial Services Co., 215 Kan. at 824).

22. Miller, 267 Kan. at 257 (citing Fusaro v. First Fam-ily Mtg. Corp., 257 Kan. 794, 805, 897 P.2d 123 (1995)); PIK-Civil 3d 127.71.

23. Roberts, 230 Kan at 293.

24. Land, 114 F. Supp. 2d at 1144 (quoting Rupp v. Purolator Courier Corp., 790 F. Supp. 1069, 1073 (D. Kan. 1992) (citation omitted)).

25. Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 805, 897 P.2d 123 (1995) (citing Taiwo, 249 Kan. at 592); PIK-Civil 3d 127.71.

26. Additionally, the United States District Court for the District of Kansas has applied Kansas law on the tort of outrage on numerous occasions. See, e.g., Weathers v. American Family Mut. Ins. Co., 793 F. Supp. 1002 (D. Kan. 1992), where the late Judge O’Connor denied the defendant’s motion for partial summary judgment and its motion for directed verdict on the plaintiff’s tort of outrage claim. The court determined, at the time of trial, that the plaintiff had presented sufficient evidence to sat-isfy both of the requirements set forth in Roberts. The plaintiff’s total judgment against American Family on all claims was $7,439,072.00.

27. Roberts, 230 Kan. 289.

28. Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 662 P.2d 1214 (1983) (where trial court initially denied motion for summary judgment on outrage claim, but at the close of the plaintiffs’ evidence entered a directed verdict for the defen-dant).

29. Hanrahan, 232 Kan. 531.

30. Neufeldt v. L.R. Foy Const. Co., 236 Kan. 664, 693 P.2d 1194 (1985).

31. Burgess v. Perdue, 239 Kan. 473, 721 P.2d 239 (1986).

32. Bradshaw v. Swagerty, 1 Kan. App. 2d 213, 563

P.2d 511 (1977).

33. Moore v. State Bank of Burden, 240 Kan. 382, 729 P.2d 1205 (1986), cert. denied, 482 U.S. 906 (1987).

34. Fusaro, 257 Kan. 794.

35. Ely v. Hitchcock, 30 Kan. App. 2d 1276, 58 P.2d 116 (2002).

36. Taiwo, 249 Kan. 585 (affirming trial court judg-ment in favor of plaintiffs, that the evidence proved extreme and severe mental distress though the plaintiffs consulted no doctor or mental health professional and suffered no physical symptoms of extreme stress).

37. Smith v. Welch, 265 Kan. 868, 870-871, 967 P.2d 727 (1998) (holding the district court erred in granting summary judgment in favor of physician, noting the physician was alleged to have intention-ally committed criminal acts under the guise of performing an independent medical examination and to have caused mental distress to the plain-tiff).

38. Gomez v. Hug, 7 Kan. App. 2d 603, 645 P.2d 916, rev. denied, 231 Kan. 800 (1982) (holding the district court erred in granting summary judgment in favor of defendant, ruling an issue of material fact existed on whether shouting invectives consti-tute outrage, precluding summary judgment).

39. Dawson, 215 Kan. 814 (reversing trial court’s entry of directed verdict in favor of defendant).

40. Miller, 267 Kan. at 257 (citing Smith, 265 Kan. at 876); Land, 114 F. Supp. 2d at 1145 (citing Rob-erts, 230 Kan. 289) (noting threshold is met where a plaintiff seeks mental health counseling and contemplates suicide).

41. Comment, PIK-Civil 3d 127.70.

42. Id. (citing Restatement of Torts (Second) § 46(1), comments j and k).


44. Anderson v. Scheffler, 242 Kan. 857, 860, 752 P.2d 667 (1988) (citing Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 662 P.2d 1214 (1983)); Hoard v. Shawnee Mission Medical Cen-ter, 233 Kan. 267, 274, 662 P.2d 1214 (1983) (citations omitted) (noting exception where close relative suffers emotional harm from the negligent mishandling of a corpse).

45. Fusaro, 257 Kan. at 806 (citing Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, 469, 856 P.2d 906 (1993)).

46. Id. at 807.

47. Roberts, 230 Kan. at 296 (noting the emotional distress suffered by the plaintiff was in the form of resentment and upset that normally results from acts and criticism which are inconsiderate and unkind).

48. Roberts, 230 Kan. 289, 637 P.29 1175 (1981).

49. Roberts, 230 Kan. at 294 (citing Dawson, 215 Kan. at 820).

50. Taiwo, 249 Kan. 585, 822 P.2d 1024 (1991).

51. Taiwo, 249 Kan. at 594.

52. Taiwo, 249 Kan. at 596.



The Kansas Supreme Court has approved giving a health care provider defendant credit against the

damages award for amounts that had

been written off by the defendant provider

under the Medicare program.

The Kansas Supreme Court has approved giving a health care provider defendant credit against the damages award for amounts that had been writ-ten off by the defendant provider under the Medi-care program. This decision was made final last September when the Supreme Court refused to reconsider it in the case of Rose v. Via Christi (No. 88,434). In Rose, the defendant hospital wrote off a substantial portion of the medical charges under the Medicare program, accepting as pay-ment in full a sum substantially less than the amount originally billed. Although the hospital was found only partially at fault in causing the plaintiff’s injuries, the damages awarded to the plaintiff were based on the original amounts billed, rather than the amounts actually accepted, resulting in a damages award against Via Christi greater than the amount collected. The trial court then allowed the defendant hospital a credit against the judgment for the amount of the Medi-care write-offs.

The Supreme Court originally rejected the applica-tion of a credit but then reversed itself on rehear-ing and approved of the credit. All further ave-nues of review have been exhausted, and the decision is now final.

The Rose decision is specifically limited to the factual situation where the defendant is the one providing the medical treatment. The Rose court left open the question of whether or not the Medi-care write-offs, including those by other providers, would be deemed inadmissible at trial as evi-dence of damages.

However, the issue left open by the Supreme Court in Rose was addressed by the Kansas Court of Appeals in an unpublished decision in Fischer

v. Farmers Insurance Group (No. 90,246, Feb-ruary 18, 2005). The Fischer court held that the measure of damages is the amount which the health care providers accepted as payment in full, and thus the plaintiff could not introduce evi-dence of amounts that were written off by the health care providers, even non-defendant pro-viders. Although the Su-preme Court granted a Petition for Review that had been filed by the plaintiff in Fischer, the case was settled literally on the courthouse steps shortly before oral argument in the Supreme Court. Thus, the unpublished Court of Appeals decision stands. A motion to publish the decision is pending.

The unpublished Court of Appeals decision in Liberty v. Westwood United Super, Inc. (No. 89,143, April 29, 2005) reaches the same con-clusion as Fischer.

Thus, as of this writing, there is no definitive ruling from the Kansas Supreme Court excluding from evidence the amounts that have been written off by the health care provider under the Medicare program, but the Kansas Court of Appeals has reached this conclusion in two unpublished deci-sions. The unpublished decisions can be cited in limited circumstances under Kansas Supreme Court Rule 7.04(f)(2) (2004 Kan. Ct. R. Annot. 49.)

UPDATE ON PROVIDER WRITE-OFFS

Anne Kindling Goodell, Stratton,

Edmonds & Palmer, LLP


The annual KADC conference was held on Decem-ber 2-3, 2005 at the Marriott Country Club Plaza in Kansas City. We had a great turnout this year and thanks goes to the Planning Committee of Scott Nehrbass, Dan Diepenbrock, and Todd Thompson. You will also see the list of sponsors following that added to the success of our meet-ing.

VENDOR SPONSORS ALPS

Clutch Legal Staffing Focus Legal Solutions

Hilton Garden Inn Metropolitan Court Reporters

S-E-A Limited The Bar Plan

COCKTAIL RECEPTION SPONSOR

BKD, LLP

LUNCHEON SPONSOR Appino & Biggs Reporting Service

CONTINENTAL BREAKFAST SPONSORS

Foulston Siefkin LLP Wallace, Saunders, Austin, Brown & Enochs, Chtd.

REFRESHMENT BREAK SPONSORS

Clark, Mize & Linville, Chtd. Thompson Ramsdell & Qualseth, P.A.

The conference this year featured exceptional speakers. Thought-provoking interviews were conducted with defense legends Dick Hite, Gene

Balloun and Mike Stout. Jay Fowler explained how to cross-examine the treating physician, Karen Lisko presented ways to persuade judges and juries and KU evidence professor, Dennis Prater, discussed ways to keep out evidence that you don’t want considered. Attendees learned from Nick Mizell how best to defeat a class certifi-cation motion, and found out from Warren McCamish and Dennis Gillen how to be more persuasive in mediations. Ethics presentations were given by Todd Thompson on dealing with discovery in the electronic age and David Cooper on understanding where your loyalties lie in the tripartite relationship. Steve Kerwick provided the ever-informative case law update, and Robert Fanter spoke at lunch on “Vanishing Trials and Training Lawyers”. Saturday morning’s speaker was trial lawyer and television legal analyst Larry Pozner who provided strategies for crafting killer cross-examinations. Thanks to all these speakers for making our conference a success.

The annual business meeting was held Friday at lunch. New officers and directors were elected; the new list is reflected in the margin on page 2. Awards were presented to Mike Stout, who re-ceived the William Kahrs Lifetime Achievement Award, Wayne Stratton, the Silver Helmet Award, and Dan Diepenbrock, DRI Exceptional Perform-ance Citation. Anne Kindling received a Special Recognition Award for distinguished service and Dan Diepenbrock received another plaque as thanks for his service as KADC president this past year.

Mike Stout received the William Kahrs

Lifetime Achievement Award at the

Annual Conference.

ANNUAL CONFERENCE A HUGE SUCCESS

EXECUTIVE DIRECTOR’S MESSAGE

Greetings from KADC headquarters! I hope you had happy holidays and a great start to 2006. I also hope you were able to attend the 2005 KADC Annual Conference. What a success! Attendance was strong again, and the program received rave reviews. Larry Pozner capped off a fantastic se-ries of speakers and CLE opportunities. KADC also had a record number of sponsors and ven-dors at the conference, rounding out the educa-tional opportunities for those in attendance. Preparations are already underway for the 2006 conference, which promises to be even bigger and better.

KADC was active in the legislative interim commit-tee hearings last summer, and have been active in the 2006 session. During the interims, Anne Kindling reprised her testimony on collateral source, Wayne Stratton testified in opposition to efforts to curb the independence of the judiciary,

and Scott Nehrbass testi-fied on the proposed Frye/Daubert reform. Already this session Jim Robinson has testified on selection processes for justices and Anne Kin-dling testified yet again on collateral source. There is probably more KADC activity yet to come.

New officers have been elected for your KADC Board, with Todd Thompson now at the helm as President. Membership is up slightly from last year. The annual conference was perhaps the best it’s ever been, with high quality speakers hitting pertinent topics. The future looks bright for KADC in 2006.

Executive Director Scott Heidner

Kansas Defense Journal Winter - 2006 - Revised Kansas Association of Defense Counsel Application for Membership

The undersigned hereby makes application for membership in the Kansas Association of Defense Counsel and submits thefollowing information in connection therewith (membership restricted to an individual) 1. Name _______________________________________________________________ (Last Name) (First Name) (Middle Initial)

2. Firm Name ________________________________ Years Associated _______

3. Address: Office _______________________________________________________ (Street or Building)

________________________________________________________ (City/State/Zip) (Phone)

________________________________________________________ (FAX) (Email)

Residence ____________________________________________________________ (Street)

____________________________________________________________ (City/State/Zip) (Phone)

4. Send correspondence to: Office Residence

5. Date admitted to the Bar in the State of Kansas _______________________________

6. Are you a member of the Defense Research Institute (DRI)? Yes No

7. List names of and year of admission of all courts of last resort in which you are admitted to practice: ____________________________________________________

8. List all bar associations and all other professional organizations and law societies to which you belong:______________________________________________________

9. State all legal and public offices held: ______________________________________

_____________________________________________________________________

10. List any articles and books you have written:_________________________________

_____________________________________________________________________

11. Are you in private practice? If so, state number of years: _______________________

12. Is your interest in litigation principally defense oriented? _______________________

13. I have enclosed annual dues for the following membership category: Admitted to the Bar 5 years or more $175.00 Admitted to the Bar less than 5 years $85.00 Governmental attorney $85.00

Dated this_____________ day of_____________________________, 20__________

_____________________________________________________________________ (Signature of Applicant)

Proposed by: ________________________________ (Name) ________________________________ (City and State)

Membership Benefits Being a member of KADC allows you to take advantage of benefits such as:

♦ Continuing legal education

♦ Legislative liaison

♦ A quarterly newsletter to keep you abreast of legal changes and events in Kansas

♦ Amicus Briefs

♦ Weekly emails with hotlinks to Supreme Court and Court of Appeals published opinions

♦ Weekly posting on the KADC website of unpublished Supreme Court and Court of Appeals opinions

♦ Representation to the Defense Research Institute (DRI)

♦ One year free membership in DRI for new KADC members who have not previously been a member of DRI

♦ With both KADC and DRI membership you have the opportunity for exchange of ideas with some of the best attorneys in the state, region and nation

When completed, this application,

together with admission and initiation fee, should be mailed to

the Kansas Association of Defense Counsel,

825 S. Kansas Ave., Suite 500 Topeka, KS 66612

Phone (785) 232-9091

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