text:
    INQUIRY COMMISSION, Movant, v. Barbara E. YEAGER, KBA Member No. 84058, Respondent.
    No. 2010-SC-000514-KB.
    Supreme Court of Kentucky.
    Oct. 21, 2010.
   OPINION AND ORDER

Pursuant to SCR 3.165(l)(a) and (d), the Inquiry Commission petitions this Court to enter an order temporarily suspending the Respondent, Barbara E. Yeager, whose bar roster address is 104 Court Square, P.O. Box 601, Barbourville, Kentucky 40906, from the practice of law in the Commonwealth of Kentucky. In its petition, the Inquiry Commission contends that there exists probable cause that Yeager has misappropriated funds held for others or has otherwise handled said funds in an inappropriate manner. The Inquiry Commission further contends that there is probable cause to believe that Yeager is mentally disabled and lacks the physical or mental fitness necessary to continue practicing law.

In its petition, the Inquiry Commission states that it has received three complaints against Yeager. In two of the complaints, a former client alleges that he paid funds to Yeager and services were never rendered. In the third complaint, a former client alleges that Yeager failed to return the entirety of funds held in an escrow account. Yeager’s son has responded to the complaints against his mother and has provided evidence of a serious health crisis. The evidence documents a rapid onset of confusion and memory loss and a level of dementia.

Following an examination of the Inquiry Commission’s petition, the supporting documents attached to said petition, and the response submitted by Yeager’s son, this Court finds probable cause, as set forth m SCR 3.165(a), to believe that Yeager has misappropriated client funds or has otherwise dealt improperly with such funds. Furthermore, this Court concludes that probable cause exists to believe that Yeager does not currently possess the requisite mental fitness essential to the practice of law. SCR 3.165(l)(d).

WHEREFORE, IT IS HEREBY ORDERED THAT:

1. Barbara E. Yeager, KBA Member No. 84058, is temporarily suspended from the practice of law in the Commonwealth of Kentucky, effective the date of this order and until superseded by subsequent order of this Court.
2. The Inquiry Commission shall commence disciplinary proceedings against Yeager pursuant to SCR 3.160, unless already begun or unless Yeager resigns under terms of disbarment.
3. Within twenty (20) days from the date of the entry of the order of temporary suspension, Yeager shall notify all clients in writing of her inability to continue to represent them and shall furnish copies of all such letters of notice to the Director of the KBA. SCR 3.166(5).
4. Upon the issuance of an order of temporary suspension, Yeager shall immediately, to the extent possible, cancel and cease any advertising activities in which she is engaged, and remove her name from any firm with which she may be associated. SCR 3.166(6).

All sitting. All concur.

ENTERED: October 21, 2010.

/s/ John D. Minton, Jr. Chief Justice


source: Caselaw Access Project

author: /s/ John D. Minton, Jr.

license: Public Domain

text:
    Heather Clark REYNOLDS, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2010-SC-000617-KB.
    Supreme Court of Kentucky.
    Oct. 21, 2010.
   OPINION AND ORDER

Heather Clark Reynolds, KBA No. 88182, was admitted to the practice of law in the Commonwealth of Kentucky on May 1, 2000 and is currently suspended for nonpayment of Bar dues pursuant to SCR 3.050, by an order entered by this Court on December 10, 2008. Her bar roster address is 904 E. 5th Street, Fowler, Indiana 47944. She moves this Court to enter an order permanently disbarring her from the practice of law, pursuant to SCR 3.480(3). The Kentucky Bar Association has no objection, and requests that we grant Reynolds’ motion to resign under terms of permanent disbarment. Because Reynolds’ violations occurred prior to the effective date of the current rules, all rules referenced herein are the pre-July 15, 2009 rules.

KBA Files 13370 and 13381

Kentuckiana Motion X-ray (KMX) treated three of Reynolds’ clients who had been involved in motor vehicle accidents. The three clients signed doctor’s liens authorizing Reynolds to withhold sums from their potential recoveries to pay KMX, and Reynolds assured KMX in writing that she would protect their liens and withhold from her clients’ recoveries the amounts they owed to KMX. However, when two of the cases settled, Reynolds neither notified KMX nor withheld any sums from her clients’ recoveries. No sums were remitted to KMX to cover the charges incurred by the clients. These two client accounts were turned over for collection in addition to that of another of Reynolds’ clients whose account went unpaid. During its investigation of these matters, the Office of Bar Counsel made numerous requests of Reynolds to provide specific information regarding the matter, the responses to which were late and did not specifically address the questions posed.

On October 20, 2008, the Inquiry Commission issued a three-count charge against Reynolds, charging her of violations of SCR 3.130-1.15(b) (for receiving funds in which she acknowledged a third party was interested, but failing to timely notify or deliver funds to that party), SCR 3.130-1.15(c) (for receiving funds in the course of representation that were the subject of a dispute and not keeping the disputed portion separate until the resolution of the dispute), and SCR 3.130-8.1(b) (for failing to timely respond to' Bar Counsel’s repeated requests for information regarding this matter). Reynolds admits to these violations.

KBA File 15305

Alicia Kimmel retained Reynolds to represent her in a personal injury matter. When Kimmel later verbally terminated Reynolds, she requested a complete copy of her case file and medical records. After several unsuccessful attempts to obtain her records from Reynolds, Kimmel sought other representation in the matter. Finally, after the newly retained counsel wrote to Reynolds, she eventually provided most of the requested materials.

On December 21, 2007, the Inquiry Commission issued a one-count charge against Reynolds alleging she had violated SCR 3.130 — 1.16(d) by failing to protect her client’s interests at termination of representation by not timely providing her client the file documents she was entitled to receive. Reynolds admits to this violation.

KBA File 16038

Reynolds was retained by Ranzel Meri-deth, Jr. and filed action 05-CI-3943 in Jefferson Circuit Court on May 4, 2005 on his behalf, naming Deborah Andres, Mary Andres, AIG Insurance, and State Farm Insurance as defendants. State Farm, AIG, and Mary Andres were all dismissed from the suit with prejudice. Reynolds failed to prosecute the case and to adhere to an earlier order of the trial court which established timelines for discovery, witness notifications, and motions. The trial court dismissed the suit with prejudice pursuant to CR 41.02(1) on June 7, 2007. In spite of the fact that his case had been dismissed with prejudice, Reynolds sent Merideth a letter on September 3, 2007 indicating that they “should proceed with the case against Deborah and Mary Andres and continue working towards settlement or trial.” Then, following an October 2007 meeting with Reynolds, Merideth understood that she “was to contact AIG again and get back to [him] on what they said.” Reynolds did not contact Merideth after this meeting, in spite of numerous attempts on his part to get in touch with her.

On September 25, 2008, the Inquiry Commission issued a four-count charge against Reynolds, alleging that she had: (1) violated SCR 3.130-1.3 by failing to act with reasonable diligence and promptness in representing Merideth; (2) violated SCR 3.130-1.4(a) by failing to keep Meri-deth reasonably informed about the status of the matter or comply with reasonable requests for information from October 2007 to February 2008; (3) violated SCR 3.130-1.4(b) by failing to explain the matter to the extent reasonably necessary for informed decisions by not timely informing Merideth of the dismissals of three of the defendants from the suit with prejudice and what those dismissals meant to his potential recovery; and (4) violated SCR 3.130-8.3(c) by indicating to Merideth, in her letter dated September 3, 2007, that AIG and Mary Andres remained involved in his lawsuit, despite her knowledge that those parties, and the suit, had been dismissed with prejudice, and further by perpetuating the false belief to Merideth at the October 2007 meeting that AIG was still involved in the suit and that any further discussion with them was productive. Reynolds admits to these violations.

KBA File 16116

Reynolds represented Phyllis Lynch in a personal injury matter which was settled in September 2005. Reynolds acknowledged a subrogation interest by Humana Health Plan of Kentucky against Lynch’s settlement, and, after Humana rejected a settlement offer for $8,000 sent them a letter dated September 27, 2005 which stated: “Since $8,000.00 was unacceptable to your client, then I withdraw this offer and will now be sending you the exact amount you are owed, $7,332.37.” Reynolds enclosed a check in the amount of $3,187.37 (not the $7,332.37 check alluded to in her correspondence) with her letter and listed this amount in the settlement statement given to Lynch. Humana returned the $3,187.37 check to Reynolds and filed suit against Lynch to recover $7,332.37. When Lynch informed Reynolds of the lawsuit, Reynolds first assured her that she “would take care of it” and then that “things were taken care of.” These assurances continued until November 2007, when the McCreary Circuit Court entered a default judgment against Lynch for $7,332.37. She mailed this document to Reynolds asking for her help, but received no response. Lynch obtained replacement counsel and the default judgment was set aside and the matter settled. The settlement provided for Reynolds to pay the $3,187.37 she held in her escrow account to Humana, with Lynch paying the balance in monthly payments. It further provided that if Lynch failed to make any payment on time, the “entire balance of the medical payments in the amount of $25,927.99 plus interest” would be due immediately.

On February 9, 2009, the Inquiry Commission issued a five-count charge against Reynolds, alleging that she had: (1) violated SCR 3.130-1.8 by failing to take reasonably diligent affirmative action on several occasions to resolve the subrogation claim of Humana against Lynch’s settlement proceeds from September 2005 until after May 2007 and by failing to take any affirmative action from around November 2007 to represent Lynch when informed of the default judgment; (2) violated SCR 3.130-1.4(a) by failing to timely notify Lynch that the check Reynolds had tendered to Hu-mana had been returned and by failing to respond timely (or at all) to numerous contact efforts from Lynch regarding the status of the matter from around May 2007 through December 2007; (3) violated SCR 3.130-1.4(b) by failing to inform Lynch of the correct status of the subrogation claim from September 2005 until around May 2007, by failing to inform Lynch that Humana returned the check Reynolds tendered to them, and by affirmatively misinforming Lynch on multiple occasions that she was making efforts to address Humana’s suit; (4) violated SCR 3.130-1.15(b) by receiving funds in which she knew a third party (Humana) had an interest and failing to deliver to that third party the funds it was entitled to receive; and (5) violated SCR 3.130-8.3(c) by affirmatively misrepresenting to Lynch in the settlement statement that Humana’s sub-rogation claim had been resolved for $3,187.37, failing to inform Lynch that Hu-mana returned the check in said amount, falsely informing Lynch in May 2007 that she would “take care of’ the suit filed by Humana, and by falsely informing Lynch in September 2007 that “[everything [was] taken care of.” Reynolds admits to these violations.

KBA File 16234

Gloria J. Allen retained Reynolds on February 4, 2006 to represent her in her claim for disability retirement benefits. Allen was eligible to reapply for disability retirement benefits by December 3, 2006 and eligible to appeal an earlier adverse determination by May 31, 2006. Reynolds pursued neither of these actions. On November 1, 2007, Reynolds sent Allen a letter informing her that she was withdrawing from representation and suggesting that she contact another named attorney, to whom she had given Allen’s file. Allen contacted the attorney, and was advised by him in a letter dated November 27, 2007 that her time limits for fifing an appeal and for re-application had both passed without any action being taken, and that he was, therefore, unable to assist her.

On September 26, 2008, the Inquiry Commission issued a two-count charge against Reynolds alleging that she had: (1) violated SCR 3.130-1.1 by failing to provide Allen competent representation by missing both applicable fifing deadlines; and (2) violated SCR 3.130-1.3 by failing to appeal the prior adverse determination against Allen and by failing to reapply for disability retirement benefits for Allen by the applicable deadlines. Reynolds admits to these violations.

KBA File 16681

Roxanne Lawhorn retained Reynolds on December 6, 2006 for an action involving mold in her home, paying Reynolds a retainer of $500.00 and providing all the necessary documentation to proceed with the action. Reynolds filed a civil suit on Lawhorn’s behalf on February 8, 2007. In May 2007, the court dismissed Count II of Lawson’s complaint when Reynolds failed to comply with its earlier order to file a more definite statement regarding that count. In November 2007, the court dismissed the entire action when Reynolds had not complied with its order to respond to the defendant’s discovery requests. Reynolds failed to inform Lawhorn of either the dismissal of Count II or that of her suit. In early 2008, Lawhorn met with Reynolds and another attorney concerning her case, and was advised by a letter dated March 17, 2008 that neither Reynolds nor the other attorney would be representing her in the matter. In May 2008, Reynolds directed Lawhorn to another attorney. In preparation for a meeting with the recommended attorney, Lawhorn discovered that the court had dismissed her suit in November 2007 and the other attorney declined to represent her. Reynolds gave Lawhorn her client file in June 2009.

On August 13, 2009, the Inquiry Commission issued a three-count charge against Reynolds, alleging that she had: (1) violated SCR 3.180-1.4(b) by failing to inform Lawhorn of the dismissal of Count II of her suit, or of the entire suit; (2) violated SCR 3.130 — 1.16(d) by failing to timely assist Lawhorn in obtaining replacement counsel and by failing to provide Lawhorn with her client file until June 2009, nearly two years after the court had dismissed her suit; and (3) violated SCR 3.130-3.2 by failing to timely act in the ongoing civil matter, resulting initially in the dismissal of Count II, and ultimately in the dismissal of the suit. Reynolds admits to these violations.

KBA File 17083

Reynolds filed a civil action in Jefferson Circuit Court on behalf of Edward Mial-back on December 5, 2005. She did not comply with the court’s order to supplement her answer to an interrogatory, and the court dismissed Mialback’s action for this noncompliance and Reynolds’ failure to prosecute. Despite filing a Notice of Appeal, she did not respond to the court’s order directing her to explain why she had not filed a prehearing statement. The Court of Appeals issued an order on January 22, 2008 requiring Reynolds to show cause why a fine should not be imposed for her failure to comply with its previous order, and, after Reynolds failed to respond, imposed a $500.00 fine. Reynolds did not pay the fine until the Court of Appeals issued an order directing her to show cause why she should not be held in contempt or why additional sanctions should not be imposed — and stating that her failure to comply with this order would result in the issuance of a bench warrant. Counsel for Reynolds appeared at the show cause hearing and paid the fine. By order dated November 3, 2008, the Court of Appeals determined that it would not find Reynolds in contempt of court.

On July 28, 2009, the Inquiry Commission issued a two-count charge against Reynolds, alleging that she: (1) violated SCR 3.130-1.3 by failing to act diligently when she did not supplement her answer to an interrogatory, resulting in the dismissal of Mialback’s claim, and when she failed to file a prehearing statement resulting in the dismissal of his appeal; and (2) violated SCR 3.130-3.4(c) when she failed to comply with the orders of the Jefferson Circuit Court and the Court of Appeals, resulting in the dismissal of both actions. Reynolds admits to these violations.

KBA File 17087

Following a car accident, Achour Hamid retained Reynolds to represent him in the matter in November 2006. After attempting to contact Reynolds unsuccessfully, Hamid went to her office and learned that Reynolds had closed it and relocated to Fowler, Indiana without informing him. Hamid filed a bar complaint against Reynolds, and she responded that she had returned Hamid’s file to him and instructed him to retain other counsel.

On September 24, 2009, the Inquiry Commission issued a one-count charge against Reynolds, alleging that she violated SCR 3.130-1.16(d) by closing her law office in early 2008 and not providing Hamid with his client file until January 2009, after he filed a bar complaint against her. Reynolds admits to this violation.

KBA File 17285

David Hayden retained Reynolds to represent him following an automobile accident, and executed a contingency fee agreement. While his case was ongoing, Hayden received calls regarding his unpaid medical bills and informed Reynolds about them. When Hayden’s claim settled, Reynolds retained $2,500.00 from the proceeds for the payment of his medical bills, but provided no written statement of the settlement showing the disposition of the funds. Although Reynolds assured him that she would pay his medical bills with the retained proceeds, Hayden continued to be contacted about his medical bills and they were eventually submitted for collection. During this time, Hayden was unable to reach Reynolds and later learned that she had closed her law office and moved to Indiana.

On September 21, 2009, the Inquiry Commission issued a four-count charge against Reynolds, alleging that she: (1) violated SCR 3.130-1.4(a) by failing to return Hayden’s calls about his medical bills and not advising him that she was closing her law office; (2) violated SCR 3.130-1.5(e) by not providing Hayden a written statement of the recovery which showed the disposition of the funds and the method of that determination; (3) violated SCR 3.130-1.15(b) by retaining $2,500.00 from Hayden’s settlement for unpaid medical bills but failing to pay said medical bills; and (4) violated SCR 3.130 — 1.16(d) by closing her law office without informing Hayden and failing to resolve his unpaid medical bills. Reynolds admits to these violations.

KBA File 17286

Just as in David Hayden’s case, Vernie Hayden retained Reynolds after she was involved in an automobile accident and executed a contingency fee agreement. Ms. Hayden received calls regarding her unpaid medical bills and provided this information to Reynolds. Reynolds retained $2,000.00 from Ms. Hayden’s eventual settlement for her medical bills and assured her that they had been paid, but Reynolds provided no written statement of the settlement showing the disposition of the funds to Ms. Hayden. Ms. Hayden’s medical bills went unpaid, she continued to be contact in regard to them, and they were eventually submitted for collection. Ms. Hayden was unable to reach Reynolds to discuss this matter and later learned the she had closed her law office and moved to Indiana.

On September 23, 2009, the Inquiry Commission issued a four-count charge against Reynolds, alleging (just as the September 21, 2009 charge) that she: (1) violated SCR 3.130-1.4(a) by failing to return Ms. Hayden’s calls about her medical bills and not advising her that she was closing her law office; (2) violated SCR 3.130-1.5(c) by not providing Ms. Hayden a written statement of the recovery which showed the disposition of the funds and the method of that determination; (3) violated SCR 3.130-1.15(b) by retaining $2,500.00 from Ms. Hayden’s settlement for unpaid medical bills, but failing to pay said medical bills; and (4) violated SCR 3.130 — 1.16(d) by closing her law office without informing Ms. Hayden and failing to resolve her unpaid medical bills. Reynolds admits to these violations.

KBA File 17412

Reynolds filed a civil action in Jefferson Circuit Court on May 18, 2006, after being retained by the plaintiff in a subrogation matter. Reynolds failed to respond to discovery or take any other actions to pursue the matter, and the court dismissed the action on March 26, 2007. Reynolds did not advise her client of the status of the matter in spite of requests for such information. Reynolds failed to notify her client that she had closed her law office and to provide the client with the case file. Reynolds’ client did not learn of the dismissal until after the time for filing an appeal had expired.

On July 28, 2009, the Inquiry Commission issued a four-count charge against Reynolds, alleging that she: (1) violated SCR 3.130-1.3 by failing to respond to discovery or take any affirmative action to protect her client’s interests in the matter; (2) violated SCR 3.130 — 1.4(b) by failing to respond to requests from the client for status information, failing to inform the client that the court had dismissed the suit, and failing to inform the client that she was closing her law office; (3) violated SCR 3.130 — 1.16(d) by failing to notify the client that the suit had been dismissed, failing to notify the client that she was terminating the representation and closing her office, and by failing to provide the client the case file when she terminated the representation; and (4) violated SCR 3.130-3.2 when she failed to respond to discovery and failed to take any actions to protect the client’s interests in the matter, resulting in the dismissal of the action. Reynolds admits to these violations.

KBA File 18189

On November 13, 2009, Shanna Portman filed a Bar complaint against Reynolds alleging that, on July 25, 2006, she retained Reynolds for representation regarding injuries sustained by her minor child and executed a written contingency fee agreement. The matter was settled before trial and Reynolds retained $13,354.45 from the proceeds, allegedly in order to pay the subrogation interest of Anthem Blue Cross Blue Shield, but failed to provide Portman with a written statement of the settlement showing the distribution of proceeds. In July 2009, counsel for Anthem contacted Portman regarding the unresolved medical lien. Portman was unable to reach Reynolds to discuss the matter and was unaware that she had closed her law office. Reynolds acknowledges that she retained the $13,354.45 from Portman’s settlement proceeds but is unable to account for those funds.

While Reynolds filed this Motion to Resign Under Terms of Permanent Disbarment before the Inquiry Commission issued a charge related to this matter, she acknowledges that there is probable cause for the issuance of a charge by the Inquiry for violations of SCR 3.130-1.4(a), SCR 3.130-1.5(c), SCR 3.130-1.15(b), SCR 3.130-1.16(d), and SCR 3.130-8.3(c). She requests that we grant her motion to resign under terms of permanent disbarment.

Reynolds states that she understands that the provisions of SCR 3.480(3)(a) and 3.510 do not apply and that she is not eligible to seek reinstatement to the practice of law in the Commonwealth.

Agreeing with Reynolds and the KBA that Reynolds’ motion to resign under terms of permanent disbarment is appropriate, it is hereby ORDERED that:

1. Heather Clark Reynolds is hereby permanently disbarred from the practice of law in the Commonwealth of Kentucky;
2. Pursuant to SCR 3.390, Reynolds shall, within ten days from the entry of this Opinion and Order, notify all clients with Kentucky cases in writing of her inability to represent them, and notify all courts in which she has matters pending of her suspension from the practice of law, and furnish copies of said letters of notice to the Director of the KBA. Furthermore, to the extent possible and necessary, Reynolds shall immediately cancel and cease any advertising activities in which she is engaged; and
3. In accordance with SCR 3.450, Reynolds shall pay all costs associated with these proceedings, said sum being $355.27, for which execution may issue from this Court upon finality of this Opinion and Order.

All sitting. All concur.

ENTERED: October 21, 2010.

/s/ John D. Minton, Jr.

      . In Reynolds' response to the letter from Kimmel’s newly retained counsel, Reynolds stated: "I do not feel that I should be required to turn over my personal work product of the case, particularly to an attorney who conspired to steal the case from me.”


author: /s/ John D. Minton, Jr. Chief Justice

text:
    KENTUCKY BAR ASSOCIATION, Movant, v. William J. GRIDER, Respondent.
    No. 2010-SC-000522-KB.
    Supreme Court of Kentucky.
    Oct. 21, 2010.
   OPINION AND ORDER

Respondent, William J. Grider, stands accused of violating several provisions of the Rules of Professional Responsibility for continuing to represent a client while suspended from the practice of law. The Board of Governors of the Kentucky Bar Association has recommended that Respondent, who was admitted to practice law in Kentucky in 1994, whose Bar Roster Address is 121 Republic Plaza, 200 South 7th Street, Louisville, Kentucky 40202, and whose KBA Member Number is 85171, be found to have committed the ethical violations and be suspended from the practice of law in this Commonwealth for one year. This Court, finding no reason for further review, adopts the recommendation of the Board.

On January 15, 2009, Respondent was suspended from the practice of law for failing to comply with continuing legal education requirements. The Office of Bar Counsel objected to his automatic reinstatement, presumably upon his satisfaction of the CLE requirements, because of pending disciplinary matters. On May 21, 2009, he was suspended for a fixed term (30 days) for disciplinary reasons. Kentucky Bar Association v. Grider, 282 S.W.3d 330 (Ky.2009). He has not yet been reinstated to the practice of law from this suspension.

Prior to his suspension, Respondent had been hired to represent George Amos in a domestic case in Jefferson Circuit Court. On February 19, 2009, he attended a mediation session and signed a mediation agreement on behalf of his client. On May 26, 2009, he filed a trial memorandum on behalf of his client. Respondent was still suspended from the practice of law on both occasions.

Respondent failed to reply to a request for information from the Office of Bar Counsel, to the Inquiry Commission’s complaint against him, and to the subsequent charge, despite the fact that the latter two were personally served on him by the Jefferson County Sheriffs Department. Respondent still has not responded to the charge.

The Charge alleged violations of SCR 3.130-5.5(a) for continuing to practice law after suspension of his license to do so; SCR 3.130-3.4(c) for practicing law in direct disobedience of this Court’s order of suspension; and SCR 3.130-8.1(b) for failing to respond to the informational request from the Office of Bar Counsel, the complaint, and the charge.

The Board of Governors voted unanimously to find Respondent guilty on all three counts of the charge. Before voting on a recommended sanction, the Board reviewed Respondent’s disciplinary history, which included the following: a private admonition in 2004 for violating SCR 3.130-1.4(a) and -1.16(d); a thirty-day suspension in 2009 for violations of SCR 3.130-1.3, -1.4(a), and -1.16(d); and a continuing suspension since January 2009 for failing to comply with CLE requirements. After hearing of this history, the Board voted unanimously to recommend that Respondent be suspended for one year and be required to pay costs.

No review of the Board’s recommendation, as allowed under SCR 3.370(8), was sought. Because the Board’s findings and conclusions are supported by the record and the law, and because the recommended sanction is appropriate in light of Respondent’s history of prior discipline and the seriousness of the charges, this Court elects not to review the recommendation of the Board as allowed under to SCR 3.370(9). The recommendation of the Board is therefore adopted pursuant to SCR 3.370(10).

ACCORDINGLY, IT IS HEREBY ORDERED THAT:

(1) Respondent, William J. Grider, is suspended from the practice of law in the Commonwealth of Kentucky for one year from the date of this Order.

(2) Pursuant to SCR 3.390, Respondent shall, within ten days from the entry of this Opinion and Order, notify all of his clients in writing of his inability to continue to represent them and of the necessity and urgency of promptly retaining new counsel, and notify all courts in which he has matters pending of his suspension from the practice of law, and simultaneously furnish copies of all such letters of notice to the Director of the Kentucky Bar Association. Furthermore, to the extent possible, Respondent shall immediately cancel and cease any advertising activities in which he is engaged.

(3) In accordance "with SCR 3.450, Respondent is directed to pay all costs associated with these disciplinary proceedings against him, said sum being $459.80, for which execution may issue from this Court upon finality of this Opinion and Order.

All sitting. All concur.

ENTERED: October 21, 2010.

/s/ John D. Minton, Jr. Chief Justice

      . At the time of the violations, SCR 3.130-5.5(a) stated: "A lawyer shall not ... [practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction. ...”

      . At the time of the violations SCR 3.130-3.4(c) stated: "A lawyer shall not ... knowingly or intentionally disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists...."

      .At the time of the violations, SCR 3.130-8.1(b) stated in relevant part: "[A] lawyer ... in connection with a disciplinary matter ... shall not ... knowingly fail to respond to a lawful demand for information from a[ ] ... disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6."


author: /s/ John D. Minton Jr. CHIEF JUSTICE

text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Louis ZIMMERMAN, Respondent.
    No. 2010-SC-000563-KB.
    Supreme Court of Kentucky.
    December 2, 2010.
   OPINION AND ORDER

The Board of Governors of the Kentucky Bar Association has recommended to this Court that Respondent, Louis Zimmerman, KBA Member No. 83393, whose last known bar roster address is 1310 Broadway, P.O. Box 7238, Paducah, Kentucky 42002, be publicly reprimanded as a result of engaging in misconduct during his representation of James Thompson. Zimmerman was admitted to practice law in the Commonwealth on May 1, 1990. For the reasons set forth below, we agree with and adopt the Board’s recommendation.

FINDINGS OF FACT

Zimmerman entered an appearance to represent James Thompson in an age and gender discrimination suit on December 20, 2006. A settlement was mediated on September 8, 2008, in which Mr. Thompson was to receive $20,000.00 to be paid within fifteen days. Mr. Thompson did not receive the money, nor did he hear from Zimmerman. Between December 12, 2008 and June 10, 2009, Mr. Thompson placed forty-nine calls to Zimmerman. All calls went unreturned. Finally, Mr. Thompson wrote a letter to Zimmerman, which he both faxed and mailed on June 18, 2009, stating he would file a Bar Complaint if Zimmerman did not contact him. Mr. Thompson did not receive a response.

On August 1, 2009, Mr. Thompson was notified by the defendant that they were holding a stale check in his name in the amount of $11,260.46, and that they would reissue the check if he would sign a document and return to them. Mr. Thompson signed and returned the form. Counsel for the defendant confirmed the settlement amount, stating that the difference between the $20,000.00 settlement and the $11,260.46 check was for taxes. Although Mr. Thompson received more money than he would have otherwise because Zimmerman did not receive his contingency fee, he remained unhappy and filed a complaint against Zimmerman with the KBA on August 11, 2009.

After receiving the complaint filed by Mr. Thompson, the KBA Disciplinary Clerk requested additional information from Zimmerman by a letter dated September 8, 2009. Zimmerman was advised at that time that he could face an additional charge of misconduct pursuant to SCR 3.130-8.1 (failing to respond to a lawful demand from the KBA for information regarding ethics charges) if he did not respond. Zimmerman failed to respond and was served a reminder letter on October 21, 2009. After failing to respond yet again, the Inquiry Commission issued the Charge in this matter on March 26, 2010. Zimmerman was served by the McCracken County Sheriffs Office on April 30, 2010. When no answer was filed, the Office of Bar Counsel sent a courtesy reminder along with a Motion for Permission to File a Late Answer on May 25, 2010. No Answer was filed, and the Order of Submission was signed by the Inquiry Commission Chair on June 10, 2010.

In a unanimous vote 16-0, the Board voted to find Zimmerman guilty of violating SCR 3.810-1.3 for failing to act with reasonable diligence and promptness in representing his client; SCR 3.310-1.4(a) for failing to promptly inform his client of any decision or circumstance with respect to which the client’s informed consent is required by the Rules; SCR 3.310-1.16(d) for abandoning representation of his client, failing to take steps to protect his client, failing to return money; and finally SCR 3.310-8.1(b) by failing to respond to requests from the KBA for information regarding the ethics charges. Based on these findings, the Board of Governors recommended 16-0 to publically reprimand Zimmerman for his actions, and successfully complete the Ethics and Professional Enhancement Program presented by the Office of Bar Counsel.

CONCLUSION

Respondent has not filed a notice with this Court to review the Board’s decision, and we do not elect to review the decision of the Board under SCR 3.370(8). The decision of the Board is hereby adopted under SCR 3.370(10). Thus it is ORDERED that:

1) Respondent, Louis Zimmerman, KBA Member No. 83393, 1310 Broadway, P.O. Box 7238, Paducah, Kentucky 42002, is publicly reprimanded;

2) Respondent must attend and successfully complete the Ethics and Professional Enhancement Program presented by the Office of Bar Counsel;

3)In accordance with SCR 3.450, Respondent must pay all costs associated with these disciplinary proceedings against him, the sum being $375.15, for which execution may issue from this Court upon finality of this Opinion and Order;

MINTON, C.J., ABRAMSON, NOBLE, SCHRODER, SCOTT and VENTERS, JJ., concur. CUNNINGHAM, J., not sitting.

ENTERED: November 18, 2010.

/s/ John D. Minton Jr. CHIEF JUSTICE


text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Jennifer Sue WHITLOCK, Respondent.
    No. 2010-SC-000538-KB.
    Supreme Court of Kentucky.
    Nov. 18, 2010.
   OPINION AND ORDER

Respondent, Jennifer Sue Whitlock, stands accused of violating several provisions of the Rules of Professional Responsibility pertaining to her representation of Gale Ellis beginning in 2002. The Board of Governors of the Kentucky Bar Association has recommended that Respondent, whose Bar Roster Address is 1401 Winchester Avenue, Suite 526, Ashland, Kentucky 41105, and whose KB A Member Number is 87562, be found to have committed the ethical violations, suspended from the practice of law in this Commonwealth for one year, and ordered to refund $1,650 in fees to Ms. Ellis and consult with and agree to any monitoring by the Kentucky Lawyer Assistance Program (KY-LAP). This Court, finding no reason for further review, adopts the recommendation of the Board.

In August of 2002, Ms. Ellis hired Respondent to represent her in a visitation dispute involving Ms. Ellis’s grandchild. Ms. Ellis paid Respondent $1,400 for her representation. However, Respondent neglected to do any work in furtherance of her representation, nor did she return any phone calls from the client. Nonetheless, in 2007, Ms. Ellis paid Respondent an additional $250 to represent her in a medical malpractice matter. Respondent similarly failed to perform any work in relation to this matter. To date, Respondent has not returned any of Ms. Ellis’s money.

On September 13, 2009, Respondent was personally served a bar complaint filed by Ms. Ellis, charging her with three counts of professional misconduct in her representation of Ms. Ellis. A letter accompanying the complaint informed Respondent of her duty to respond to the complaint and that failure to do so could result in an additional charge of misconduct. After an initial lack of response, Respondent received a certified reminder letter attached with another copy of the complaint, but again failed to respond.

Respondent has now been charged with four counts of misconduct stemming from her representation of Ms. Ellis: (1) failure to act with reasonable diligence and promptness in representing a client, in violation of SCR 3.130-1.3; (2) failure to respond to her client’s inquiries regarding the status of her cases, in violation of SCR 3.130-1.4; (3) failure to inform her client of the termination of representation, failure to return documents, and failure to return the unearned portion of fees paid to her by her client, in violation of SCR 3.130 — 1.16(d); and (4) failure to file a response to a bar complaint after being effectively served, in violation of SCR 3.130-8.1(b).

The Board of Governors voted unanimously to find Respondent guilty on all four counts. Before voting on a recommended sanction, the Board reviewed Respondent’s disciplinary history, which included the following: a 30-day suspension in 2008, Kentucky Bar Ass’n v. Whitlock, 275 S.W.3d 179 (Ky.2008); a 181-day suspension in 2009, Kentucky Bar Ass’n v. Whitlock, 290 S.W.3d 53 (Ky.2009); and a one-year suspension on May 20, 2010, Kentucky Bar Ass’n v. Whitlock, 311 S.W.3d 246 (Ky.2010) . After hearing of this history, the Board voted unanimously to recommend that Respondent be suspended for one year, ordered to refund $1,650 in fees to Ms. Ellis and consult with and agree to any monitoring by KYLAP, and required to pay costs.

No review of the Board’s recommendation, as allowed under SCR 3.370(8), was sought. Because the Board’s findings and conclusions are supported by the record and the law, and because the recommended sanction is appropriate in light of Respondent’s history of prior discipline and the seriousness of the charges, this Court elects not to review the recommendation of the Board as allowed under SCR 3.370(9). The recommendation of the Board is therefore adopted pursuant to SCR 3.370(10).

ACCORDINGLY, IT IS HEREBY ORDERED THAT:

(1) Respondent, Jennifer Sue Whitlock, is suspended from the practice of law in the Commonwealth of Kentucky for one year from the date of this Order.

(2) Pursuant to SCR 3.390, Respondent shall, within ten days from the entry of this Opinion and Order, notify all of her ■ clients in writing of her inability to continue to represent them and of the necessity and urgency of promptly retaining new counsel, and notify all courts in which she has matters pending of her suspension from the practice of law, and simultaneously furnish copies of all such letters of notice to the Director of the Kentucky Bar Association. Furthermore, to the extent possible, Respondent shall immediately cancel and cease any advertising activities in which she is engaged.

(3) Respondent shall consult with and agree to any monitoring by the Kentucky Lawyer Assistance Program.

(4) Respondent is directed to pay restitution of all unearned fees to Ms. Ellis, said sum being $1,650.

(5) In accordance with SCR 3.450, Respondent is directed to pay all costs associated with these disciplinary proceedings against her, said sum being $308.54, for which execution may issue from this Court upon finality of this Opinion and Order.

All sitting. All concur.

ENTERED: November 18, 2010.

/s/ John D. Minton, Jr.

      . Though the Board of Governors could not have considered it at the time, this Court recently suspended Whitlock from the practice of law for one year. See Kentucky Bar Ass'n v. Whitlock, 318 S.W.3d 602 (Ky.2010).


author: HARRIS, Senior Judge: THOMPSON, Judge,

text:
    David DELACRUZ, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-CA-001312-MR.
    Court of Appeals of Kentucky.
    Oct. 8, 2010.
    Ed Monahan, Public Advocate, Linda Roberts Horsman, Assistant Public Advocate, Frankfort, KY, for appellant.
    Jack Conway, Attorney General, Gregory C. Fuchs, Assistant Attorney General, Frankfort, KY, for appellee.
    Before KELLER and THOMPSON, Judges; HARRIS, Senior Judge.

      . Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

   OPINION

HARRIS, Senior Judge:

David Delacruz appeals from his Graves Circuit Court conviction on the charge of complicity to trafficking in marijuana greater than 5 pounds and sentence of 5 years imprisonment. Delacruz requests reversal based upon the following claimed errors: (1) that the trial court erred by denying his motion to suppress an incriminating statement which he asserts was given in violation of his Miranda rights; (2) that the trial court erred by permitting the Commonwealth to peremptorily strike a juror based upon the juror’s ethnicity; and (3) that the jury was improperly instructed. After a careful review of the record and briefs, we conclude that the trial court erred in its denial of Delacruz’s motion to suppress. Therefore, we reverse.

On August 24, 2007, Detective Michael Williams learned that a box containing marijuana was en route to a residence located in Mayfield, Kentucky. Detective Williams intercepted the package at Fed Ex and presented it to a drug detecting dog. The dog alerted on the package, indicating the presence of a controlled substance. Pursuant to a search warrant, Detective Williams opened the box and found over fourteen pounds of marijuana. Detective Williams resealed the box and prepared to execute a controlled delivery.

Detective Williams donned a Fed Ex uniform and drove a van labeled “Fed Ex” to the residence where the package was addressed. Laura Ladd received the package and was immediately arrested. Ladd told the officers that she had been paid to receive a package for Gabi-no Lopez. She told the officers that Lopez instructed her to call the owner of the residence, Delacruz, when the package arrived.

Delacruz was later questioned by the police. Initially, he denied any knowledge but later admitted that he knew that the package was being delivered for Lopez. Delacruz claimed, however, that he believed that the box contained car parts.

Ladd, Lopez, and Delacruz were all indicted on two counts of trafficking in marijuana greater than five pounds. Delacruz was convicted on both counts of the indictment. However, the trial court granted a judgment notwithstanding the verdict on one count of trafficking. On July 7, 2009, Delacruz was sentenced to 5 years imprisonment on the remaining conviction. This appeal follows.

I. The Miranda Rights Violation

A suspect must be informed of his right to remain silent and his right to an attorney prior to a custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). These rights are known collectively known as “Miranda rights” or “Miranda warnings.” The Commonwealth must prove by a preponderance of the evidence that the defendant waived these Miranda rights. Mills v. Commonwealth, 996 S.W.2d 473, 482 (Ky.1999); McCloud v. Commonwealth, 286 S.W.3d 780 (Ky.2009). Although we must “presume that a defendant did not waive his rights[,]” waiver can be shown “from the actions and words of the person interrogated.” North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). The waiver must be executed knowingly and voluntarily. Mills, 996 S.W.2d at 482. The person waiving his rights must understand the nature of the right being waived and the potential consequences of the waiver. Id. The Commonwealth failed to show that Delacruz understood these rights.

A portion of the audio recording of the interrogation was played during the suppression hearing. The recording contains this exchange between Detective Williams and Delacruz:

Detective Williams: Let me first read you your rights. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney before making any statements. You may have your attorney with you before making any statements. Or you can answer questions with your attorney with you. If you can not afford an attorney, the court will appoint one for you. Do' you understand that you don’t have to answer any questions, whatsoever, that I ask? Or answer any questions?
Delacruz: (inaudible)
Detective Williams: That’s just it. Do you understand that you don’t have to make any statements or answer any questions?
Delacruz: Well, I don’t understand what you are talking about.
Detective Williams: Yes or no. Do you understand that you don’t have to answer any of my questions? If I ask you a question do you understand that you don’t have to answer it ... if you do not want to?
Delacruz: I don’t know what kind we are talking about here?
Detective Williams: Don’t wonder about the kind I am going to ask you. Wonder if ... Do you understand that if I ask you a question about anything, you don’t have to answer if you don’t want to? Do you understand that much?
Delacruz: I want to answer whatever you want. Anything you want, I want to answer.
Detective Williams: But you do understand that you don’t have to if you don’t want to? That’s right. That’s good. So you do understand?

The recording demonstrates that Detective Williams attempted to assure that Delacruz understood that he had the right to remain silent. However, after Delacruz was initially advised of his Miranda rights, he indicated that he did not understand. Rather than rereading the rights, describing each individual right, or providing Delacruz with rights written in Spanish, Detective Williams only asked if he understood that he did not have to answer questions. That explanation is incomplete and insufficient. Detective Williams never ascertained that Delacruz understood all of his Miranda rights.

Absent a showing by the Commonwealth by a preponderance of the evidence that Delacruz understood all of his Miranda rights, including his rights with respect to counsel, any waiver of rights by Delacruz was not knowingly and intelligently made, and should have been suppressed.

The trial court’s failure to suppress these statements requires us to reverse and remand this case for a new trial with directions to the trial court to suppress Delacruz’s statements.

II. The Batson Challenge

The second issue raised by Delacruz concerns the Commonwealth’s peremptory strike of a juror with a Hispanic surname. Since we are remanding this case for a new trial and this issue is unlikely to reoccur, we will not address it further, except to observe that we believe the trial court did not err. See Stanford v. Commonwealth, 793 S.W.2d 112, 114 (Ky.1990).

III. The Jury Instructions

Lastly, Delacruz claims that the jury was improperly instructed on the charge of complicity to trafficking in marijuana greater than 5 pounds. Because it is likely that this issue will arise upon retrial, we will address it.

The jury instruction failed to require the jury to find that Delacruz intended for the marijuana to be sold. However, in Crawley v. Commonwealth, 107 S.W.3d 197 (Ky.2003), the Kentucky Supreme Court held that such a failure may be cured by an adequate instruction defining complicity. Id. at 200. The complicity instruction provided:

Complicity — means that a person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he solicits commands or engages in a conspiracy with such other person to commit the offense, or aids, counsels, or attempts to aid such person in planning or committing the offense.

The complicity instruction which the trial court gave accords with Crawley. Therefore, we find no error in the instructions.

Accordingly, we reverse and remand this case to the Graves Circuit Court for a new trial to be conducted in accordance with this opinion.

KELLER, Judge, concurs.

THOMPSON, Judge, dissents and files separate opinion.

THOMPSON, Judge,

dissenting:

I respectfully dissent from the majority opinion because I believe there was substantial evidence to support the trial court’s factual findings and, therefore, we are required to affirm.

The voluntariness of the incriminating statements depends upon the totality of the circumstances surrounding the statement and presents a question of fact. Mills v. Commonwealth, 996 S.W.2d 473, 481 (Ky.1999). The applicable standard of review is concisely stated as follows:

If supported by substantial evidence, the factual findings of the trial court shall be conclusive. When the findings of fact are supported by substantial evidence ... the question necessarily becomes, whether the rule of law as applied to the established facts is or is not violated. The second prong involves a de novo review to determine whether the court’s decision is correct as a matter of law. However, a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.

Olden v. Com., 203 S.W.3d 672, 676 (Ky.2006) (internal quotations and citations omitted).

Detective Williams read Delacruz his Miranda rights and was convinced that Delacruz understood his right to remain silent. He testified that he was able to converse with Delacruz in English and proceeded to question him only after Delacruz confirmed that he knew he was not required to answer the officer’s questions. Additionally, Delacruz’s neighbor testified that although Delacruz was not fluent in English, he understands more English than he reveals and understands what is said when repeated more than once.

Because I believe that the trial court’s finding that Delacruz understood his Miranda rights is supported by substantial evidence, I would affirm.

      . The count of the indictment concerning which the trial court granted judgment notwithstanding the verdict charged a separate offense allegedly to have occurred on August 8, 2007.

      . No audible answer to this final question was disclosed at the suppression hearing.


author: CAPERTON, Judge:

text:
    BOON EDAM, INC., Appellant/Cross-Appellee, v. Evelyn SAUNDERS, Appellee/Cross-Appellant.
    Nos. 2008-CA-001606-MR, 2008-CA-001780-MR.
    Court of Appeals of Kentucky.
    Oct. 15, 2010.

      Michael J. Farrell, Allison N. Carroll, Huntington, WV, for appellant/cross-appel-lee.
    Wendell S. Roberts, Donald R. Yates, II, Ashland, KY, for appellee/cross-appellant.
    Before ACREE, CAPERTON, and THOMPSON, Judges.
   OPINION

CAPERTON, Judge:

Boon Edam, Inc. appeals from a judgment awarding $629,602.09 to Evelyn Saunders for damages arising from injuries sustained when a Boon Edam revolving door struck Saunders, causing her to fall and sustain injuries. Following the products liability trial, the jury found Boon Edam’s door was unreasonably dangerous for use, i.e., that the door design was defective. On appeal, Boon Edam argues that the judgment should be reversed because: (1) the trial court erred in allowing Saunders’ expert witness to testify; (2) the evidence presented was not competent to establish that the door was in a defective condition and unreasonably dangerous and, thus, Boon Edam’s motion for directed verdict should have been sustained; and (3) there was a dearth of evidence to support an award for future pain and suffering and, thus, the issue should not have been included in the jury instructions. Saunders denies the validity of Boon Edam’s arguments and argues instead that the trial court erred in granting summary judgment for Boon Edam on Saunders’ claim for inadequate warning. After a thorough review of the parties’ arguments, the record, and the applicable law, we affirm the judgment of the Boyd Circuit Court entered of record on February 21, 2008.

The facts in the matter sub judice were testified to at a multiple-day jury trial. Evelyn Saunders testified that on October 7, 2003, she drove her husband, Glen, to the King’s Daughters Medical Center (KDMC) in Ashland, Kentucky, for treatment. Located at the main entrance to KDMC was an automatic revolving door manufactured in the year 2000 by Boon Edam. When Saunders attempted to enter the door, she was knocked down by the door and fell on her right hip. Saunders suffered a broken femur, required hip surgery, and incurred medical expenses of $29,602.09. Saunders and her treating physician, Dr. Goodwin, both testified as to her level of pain after the incident which continued through the day of trial.

After Saunders’ incident, KDMC closed off the door and the panels were removed and stored at KDMC. On February 22, 2006, the parties, in presence of their counsel, examined the door panels at KDMC. A Boon Edam employee turned on the power to the door and its top-rail sensors. Robert Baughman, vice president of technical services for a then defendant architectural firm, examined the leading edge of each of the door’s three panels to determine the limits of the zones of detection of the top-rail sensors. Baughman tested the limits of the top-rail sensor by moving his hand along the door and discovered a “dead zone.” Baughman testified that the top-rail sensors did not completely cover the leading edge of the panel, leaving a “dead zone” in front of the leading edge of each of the door panels where there was no presence-detecting sensor coverage.

Saunders presented her witness, Dr. Warren Davis an expert in sensors as used on the Boon Edam TQA-model door. Dr. Davis testified extensively about his education and professional experience with automatic doors and presence-detecting sensors. Dr. Davis reviewed all pertinent discovery including depositions and the manuals for the TQA door, in addition to visually inspecting the door panels and reviewing the videotape of the testing of the door by Baughman.

Based upon his education, training, experience, and the materials he reviewed, Dr. Davis informed the jury that Boon Edam’s TQA door failed to detect Evelyn’s presence as she entered the door because the detection zones of its top-rail sensors did not cover the leading edge of the door panels, and the TQA-model was not equipped with any additional presence-detecting sensors that would prevent such an accident.

Dr. Davis then testified that when Boon Edam built the TQA door in 2000, there were three types of sensors in existence which could have been used by Boon Edam, and that the sensors were alternative and feasible designs that would have provided coverage for the leading edge of the door panels. All three sensor types had existed since the mid-1990s, and have been used in the automatic revolving door industry to cover the leading edge of revolving door panels. Dr. Davis testified that they could have been used in the TQA model. Dr. Davis testified that Boon Edam’s competitor, Besam, Inc. used infrared and capacitive field sensors on its automatic revolving doors and that other models of Boon Edam doors utilize infrared sensors that cover the leading edge of the door panels.

Dr. Davis also testified that the leading edge of a panel of an automatic revolving door is the part of the door with the highest velocity. A person hit by one of the door panels would be, in effect, sub-jeeted to the combined force of all three moving door panels.

Dr. Davis next testified that the American National Standards Institute (ANSI) standard applicable to automatic doors is a minimum performance guideline issued by the automatic door industry through a group of manufacturers. In 2000, when the TQA door was built, there were no applicable ANSI guidelines for automatic doors. Three years later, the first ANSI guidelines for automatic doors were published. Dr. Davis testified that when these first ANSI guidelines were published, they were drafted so that all doors in existence prior to 2003 would meet the guidelines.

Boon Edam presented two witnesses: Kurt Measom, a Boon Edam employee, and Michael Livernois, Boon Edam’s expert. Livernois testified that it was impossible for one of the TQA door panels to have struck Evelyn and stated that the eyewitnesses to the incident must have been mistaken because Evelyn must have walked into the door. Livernois disputed the feasibility of including capacitive field and ultrasound sensors on the TQA door, but did not dispute the inclusion of additional infrared sensors.

Boon Edam presents three arguments on appeal which it claims require reversal of the judgment. First, Boon Edam argues that the trial court abused its discretion by allowing Dr. Warren Davis to testify. Second, Boon Edam argues that it was entitled to a directed verdict because Saunders failed to present any competent evidence that the TQA door was in a defective condition unreasonably dangerous and that the trial court erred in failing to grant the directed verdict motion based upon the statutory presumption of non-defectiveness established by KRS 411.310(2). Third, Boon Edam argues that Saunders failed to present any evidence to support an award of future pain and suffering.

Saunders eounter-argues that the trial court did not err in allowing Davis to testify; that the jury verdict was supported by substantial evidence; that the trial court correctly denied Boon Edam’s directed verdict motion; and that Boon Edam failed to preserve for appeal its contentions that there was no evidence to support an award of damages for future pain and suffering. In addition, Saunders argues that the trial court erred by granting summary judgment for Boon Edam on Saunders’ claim for inadequate warning. With these arguments in mind, we now turn to Boon Edam’s first claimed error that the trial court abused its discretion by allowing Dr. Warren Davis to testify.

The admission of expert testimony is provided for under Kentucky Rules of Evidence (KRE) 702, which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise....

In addition, the case of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 118 S.Ct. 2786, 125 L.Ed.2d 469 (1993), established standards for the admission of expert testimony which have been adopted in Kentucky. Miller v. Eldridge, 146 S.W.3d 909, 913 (Ky.2004). In discharging its gatekeeper function, the trial court must assess whether the reasoning and methodology underlying the proposed scientific testimony is valid and whether the application of that reasoning and methodology is relevant to the facts at issue. Id. at 913-914. Daubert set forth certain factors that a trial court may consider when evaluating the reliability of scientific testimony:

(1) whether a theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether, with respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique’s operation; and (4) whether the theory or technique enjoys general acceptance within the relevant scientific, technical, or other specialized community.

Id. at 914.

These Daubert factors do not constitute an exclusive list. Id. Moreover, the factors may not even be pertinent given the specific circumstances of a particular case because the gatekeeper function must be “tied to the facts.” Miller at 918.

We review a trial court’s ruling on whether to admit expert testimony under the abuse of discretion standard. Goodyear Tire and Rubber Co. v. Thomp son, 11 S.W.3d 575, 577 (Ky.2000). However, “the distinct aspects of the Daubert analysis — the findings of fact, i.e., reliability or non-reliability, and the discretionary decisions, i.e., whether the evidence will assist [the] trier of fact and the ultimate decision as to admissibility — must be reviewed under different standards.” Miller at 915. Therefore, the preliminary findings of fact are reviewed for clear error before the ultimate admissibility decision is reviewed for an abuse of discretion. Id. A finding of fact is not clearly erroneous if it is supported by substantial evidence. Substantial evidence is evidence taken by itself or as a whole that “has sufficient probative value to induce conviction” in the minds of reasonable persons. Commonwealth of Kentucky, Cabinet for Human Resources v. Bridewell, 62 S.W.3d 370, 373 (Ky.2001).

Boon Edam extensively argues that the trial court abused its discretion by allowing Dr. Warren Davis to testify. In support thereof, they argue that Dr. Davis was unqualified because his knowledge of the revolving door industry was a by-product of his work as a plaintiffs product liability expert; he was not an engineer but a physicist; he had never worked in the industry nor designed a revolving door; he was the only one in the world to opine that the TQA door was defectively designed; his opinion has not been subject to peer review nor published; that he never performed adequate tests on the door in question or a simulation; and that Dr. Davis had never even seen the door in operation.

Saunders counter-argues that Boon Edam failed to cite any clear errors contained in the factual findings made by the trial court in its Daubert order or abuses of discretion of the trial court. In support thereof, Saunders cites this Court to the Daubert hearing wherein Dr. Davis explained his qualifications and the scientific and engineering principles upon which the sensors and the sensor system of the TQA door operate.

At the Daubert hearing, Dr. Davis testified to his qualifications. He holds a B.S. and Ph.D. in physics from the Massachusetts Institute of Technology and has substantially completed the credits required for a degree in electrical engineering. Dr. Davis has worked with the military, NASA, and has operated a consulting firm. He has extensive knowledge of and experience with automatic doors and presence-detecting sensors. He has consulted in cases involving automatic doors since 1993. In addition, he has consulted for both plaintiffs and defendants in over 200 cases and testified in 58. Dr. Davis was asked to consult by Besam, Inc., a manufacturer of automatic revolving doors and a competitor of Boon Edam, and has consulted for the City of San Francisco on automatic doors. Dr. Davis has consulted for BEA, Inc., a company that designs and builds presence-detecting sensors used in automatic doors, including the infrared sensors used in the TQA door. Dr. Davis’s work with automatic doors has included revolving doors, the testing and inspection of sensors and automatic doors in both the laboratory and the field, the analysis of patents, and he has reverse engineered infrared sensors.

Moreover, Dr. Davis testified that he had inspected and tested other models of Boon Edam automatic revolving doors and those manufactured by a competitor, which were equipped with presence-detecting sensors that covered the leading edge of the door panels, in contrast to the TQA model which had insufficient sensor coverage. Dr. Davis testified that when these presence-detecting sensors were installed on a revolving door, they would stop the door panels from striking a user.

After hearing Dr. Davis’s extensive qualifications, the trial court denied Boon Edam’s Daubert motion, finding that he had extensive experience with automatic doors and presence sensors. Specifically the trial court found that Dr. Davis had experience testing and designing sensors; had consulted for a leading sensor manufacturer; inspected multiple automatic revolving doors; studied patents for automatic revolving doors; had a thorough understanding of the laws of physics that govern electromagnetic light, including infrared light used in sensors; and served as a consultant/expert witness in more than 200 cases involving automatic doors during the last thirteen years.

Accordingly, the trial court then found that Dr. Davis’s knowledge, professional experience, education, and training qualified him as an expert; that his testimony concerning scientific, technical and specialized knowledge would assist the jury in understanding the evidence and determining the facts at issue; and that his opinions are based upon sufficient facts and data, are the product of reliable, accepted, scientifically valid principles and methods, and that he has applied these principles and methods reliably to the facts of the case.

We agree with Saunders that the trial court’s findings in the Daubert order are not clearly erroneous given the substantial evidence presented at the hearing. Moreover, the admission of Dr. Davis’s testimony was not an abuse of discretion. As held in Murphy, infra,

The mere fact that Schroering’s area of expertise may not lie in designing or manufacturing escalators does not mean that he is not qualified to testify as an expert witness in this case....
If we were to declare as a rule of law that one must actually have practical experience in a given industry in order to qualify as an expert in litigation involving its products, we might very well place an onerous burden on plaintiffs in some cases. Where the industry is small and tightly knit, it may be very difficult for the plaintiff to obtain the services of an expert currently employed therein, and it might be equally difficult to find someone who was formerly employed in the industry. But the key experts of an industry would normally be available to the defendant.’ ...” Id. at 88.

Murphy by Murphy v. Montgomery Elevator Co., 957 S.W.2d 297, 299 (Ky.App.1997)(internal citations omitted).

Thus, Boon Edam’s argument that Dr. Davis does not have adequate experience in the revolving door industry is unpersuasive. Similarly, we are unaware of precedent which mandates that an expert may not rely upon or evaluate tests performed by another, as in the case sub judice when Dr. Davis evaluated the tests of the TQA door by Baughman.

Dr. Davis’s testimony helped the jury understand the limitations of the sensors in place on the TQA door, the apparent need for additional sensors, and the cause of Saunders’ injuries. Dr. Davis’s extensive knowledge, education, training, and professional experience qualify him as an in expert in this matter. As such, the trial court committed no error in denying Boon Edam’s Daubert motion.

We now turn to Boon Edam’s argument that it was entitled to a directed verdict because Saunders failed to present any competent evidence that the TQA door was in a defective condition unreasonably dangerous, and that the trial court erred in failing to grant the directed verdict motion based upon the statutory presumption of non-defectiveness established by KRS 411.310(2).

At the outset, we note that our role as an appellate court is to determine whether it was error for the trial court to not grant a directed verdict motion. Lewis v. Bledsoe Surface Min. Co., 798 S.W.2d 459 (Ky.1990). In our determination we must bear in mind that,

In ruling on either a motion for a directed verdict or a motion for judgment not withstanding the verdict, a trial court is under a duty to consider the evidence in the strongest possible light in favor of the party opposing the motion. Furthermore, it is required to give the opposing party the advantage of every fair and reasonable inference which can be drawn from the evidence. And, it is precluded from entering either a directed verdict or judgment n.o.v. unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ.

Taylor v. Kennedy, 700 S.W.2d 415, 416 (Ky.App.1985)

This Court is not at liberty to make credibility determinations or determine the weight which should be given to the evidence because this is a function for the trier of fact. Lewis at 461. “Where there is conflicting evidence, it is the responsibility of the jury to determine and resolve such conflicts.” Gibbs v. Wickersham, 133 S.W.3d 494, 495 (Ky.App.2004). The denial of a directed verdict motion should only be reversed on appeal when it is shown that the jury verdict was palpably or flagrantly against the evidence such that it indicates the jury reached the verdict as a result of passion or prejudice. Lewis at 462. Given this stringent standard of review we now turn to the arguments presented by Boon Edam.

First, Boon Edam asserts that it was entitled to a directed verdict because Saunders failed to present any competent evidence that the TQA door was in a defective condition unreasonably dangerous. In support thereof, Boon Edam argues that Saunders failed to present any evidence that the TQA door presented any risk of accidental injury at the time it entered the stream of commerce, or that an ordinarily prudent manufacturer, knowing the condition of the door, would have chosen not to put it on the market. Boon Edam asserts that the legal standard required evidence of knowledge or information known or knowable to the manufacturer when the door was placed into the stream of commerce and before the injury-producing event by which an ordinarily prudent manufacturer, being fully aware of the risk, would not have put it on the market. Boon Edam repeatedly emphasizes that Saunders is the only person in the world to have reported an injury while using the TQA door.

Saunders wholly disagrees and cites this Court to the record where she presented evidence supporting the jury verdict that the TQA door was in a defective condition unreasonably dangerous. Moreover, Saunders counter-argues that the standard elucidated in Montgomery Elevator Co. v. McCullough by McCullough, 676 S.W.2d 776 (Ky.1984), clearly sets forth a strict liability standard and not a negligence standard. Saunders argues that Montgomery Elevator merely requires the plaintiff to set forth that the manufacturer knew of the danger or should have known of the danger at the time it was placed on the market. We agree with Saunders.

In Montgomery Elevator, the Kentucky Supreme Court explained modern products liability law:

The fundamental shift in products liability law from a negligence standard to the new theory expressed in § 402A of the Restatement (Second) of Torts occurred in Kentucky in 1966 when § 402A was adopted in Dealers Transport Co. v. Battery Distributing Co., Ky., 402 S.W.2d 441 (1966). The shift is from the conduct of the actor, which is the problem in negligence cases, to the condition of the product. This is the “special liability” in § 402A of persons engaged in the business of manufacturing or selling products and the standard for such liability is if the product is “in a defective condition unreasonably dangerous to the user or consumer....”
In Nichols, [Nichols v. Union Underwear Co. Inc., 602 S.W.2d 429 (Ky.1980) ] we arrived at a simple standard for the trier of fact to use to apply the words in § 402A. The manufacturer is presumed to know the qualities and characteristics, and the actual condition, of his product at the time he sells it, and the question is whether the product creates “such a risk” of an accident of the general nature of the one in question “that an ordinarily prudent company engaged in the manufacture” of such a product “would not have put it on the market.” ... Considerations such as feasibility of making a safer product, patency of the danger, warnings and instructions, subsequent maintenance and repair, misuse, and the products’ inherently unsafe characteristics, while they have a bearing on the question as to whether the product was manufactured “in a defective condition unreasonably dangerous,” are all factors bearing on the principal question rather than separate legal questions. In a particular case, as with any question of substantial factor or intervening cause, they may be decisive.

Montgomery Elevator Co. at 780-781 (internal citations omitted). Thus, the ultimate question for the jury was whether the TQA door was in a defective condition unreasonably dangerous for use by users when sold by the manufacturer, i.e., whether the product created such a risk of an accident of the general nature of the one in question that an ordinarily prudent manufacturer of such products would not put it on the market. Montgomery Elevator at 780-782.

Saunders cites to the record where the jury was presented ample evidence from which they could conclude that the TQA door was in a defective condition unreasonably dangerous for use when it placed into the market. First, Saunders cites to the testimony provided by three eyewitnesses who all corroborated her version of events that the TQA door struck her as she attempted to enter the doorway. Next, Saunders cites to Baughman’s testimony that when he tested the TQA panels he found a dead zone located at the leading edge on each panel. Last, the testimony provided by Dr. Davis explained that the TQA door was defectively designed. In support of that determination, Dr. Davis noted that the door failed to detect Saunders’ presence at the leading edge of the door due to the dead zone, and that more sensors on the door could have eliminated the dead zone. Dr. Davis also stated that there were multiple alternative designs for the sensor system which would have rectified the dead zone and that were feasible in 2000 when the door was placed into the stream of commerce. Finally, he opined that Boon Edam’s other-sized revolving doors utilize infrared sensors to cover the leading edge of the door panels, and that the failure to cover the leading edge of the door with appropriate sensors caused the injury to Saunders.

Based on the aforementioned evidence presented to the jury, the trial court did not commit error in failing to grant the motion for directed verdict, because there was not a complete absence of proof on a material issue in the action, i.e., the question as to whether the door was in a defective condition unreasonably dangerous for use when it was placed on the market was properly before the jury.

We now turn to Boon Edam’s remaining directed verdict argument, that the trial court erred in failing to grant the directed verdict motion based upon the statutory presumption of non-defectiveness established by KRS 411.810(2).

KRS 411.810(2) states:

In any product liability action, it shall be presumed, until rebutted by a preponderance of the evidence to the contrary, that the product was not defective if the design, methods of manufacture, and testing conformed to the generally recognized and prevailing standards or the state of the art in existence at the time the design was prepared, and the product was manufactured.

Boon Edam argues that the evidence presented to the jury showed that the TQA door was “state of the art” based on the standard provided by ANSI in 2003, three years after the door was installed. Saunders argues that Dr. Davis’s testimony established that the TQA door did not meet the definition of “state of the art” because it failed to use readily available sensor technology to alleviate the problem; that the ANSI standards were only a minimum performance guideline issued by the automatic door industry and, thus, should not provide a shield behind which Boon Edam could hide their defective door.

This Court in Murphy by Murphy v. Montgomery Elevator Co., 957 S.W.2d 297 (Ky.App.1997), interpreted KRS 411.310(2) to mean:

[W]e read the plain language of the statute to mean that the presumption may be rebutted by evidence that the product was defective and not that there must be evidence that the design did not conform to prevailing standards or was not state of the art at that time.

Murphy at 300. This interpretation was reiterated in Leslie v. Cincinnati SubZero Products, Inc., 961 S.W.2d 799 (Ky.App.1998):

The statutory presumptions of KRS 411.310 do no more than leave the burden of proof with Leslie [as plaintiff] to prove that the thermal unit was defective. Contrary to what CSZ has suggested, Leslie does not have to prove that the unit was not designed in accordance with the 1980 “state of the art.” The “sole question in a products liability case,” regardless of whether the case involves failure to adequately warn, defective design, or other products liability theories, is whether the product is defective.

Leslie at 803 (internal citations omitted).

Thus, in order to overcome the statutory presumption found in KRS 411.310, Saunders had to present evidence that the TQA door was defective. As previously discussed, Saunders presented ample evidence to survive Boon Edam’s directed verdict motion and present the question of whether the TQA door was defective to the jury. Accordingly, the trial court did not err in denying Boon Edam’s directed verdict motion in light of KRS 411.310.

Given that Boon Edam was not entitled to a directed verdict, we now turn to their last argument that Saunders failed to present any evidence to support an award of future pain and suffering. Saunders counter-argues that this issue was not properly preserved for appeal, because Boon Edam did not object to the jury instructions which allowed the jury to award damages for future pain and suffering not to exceed $300,000. Boon Edam does not contest that this issue is not preserved for review, but instead requests this Court to make an exception to the rule that a party must timely object to jury instructions. This we decline to do.

Under Kentucky Rules of Civil Procedure (CR) 51, the time to object to jury instructions is prior to the court’s instructing the jury. As stated in Harris v. Thompson, 497 S.W.2d 422, 431 (Ky.1973), “if the appellants were not satisfied with any phase or portion of the instructions the time to speak was before they were given to the jury.” A review of the record shows that Boon Edam neither objected nor tendered jury instructions. Therefore, the error was not preserved for our review under CR 51(3). In light of the foregoing, we affirm the judgment of the Boyd Circuit Court entered February 21, 2008.

ALL CONCUR.

      . The Saunders were both over the age of 70.

      . In addition to Saunders’ testimony, three eyewitnesses testified to the events. Leon May testified that as Saunders was entering the door one of the panels struck her and that she never made it inside the door. May further testified that Saunders did nothing inappropriate as she entered the door and did not walk into the door’s panels. The second eyewitness, Ann Williamson, testified in accord with May’s version of events. The third eyewitness, Glen Saunders, also testified in accord with the aforementioned events.

      . The Boon Edam automatic revolving door at KDMC was a "TQA” model. It was cylindrical and comprised of three heavy metal and glass panels which rotate counterclockwise around a central axis and divide the door into three compartments. The manual provided by Boon Edam states that the door's panels should stop at least eight to twelve inches away from someone using the door and at no point should make contact with the door user. Each of the door’s panels has an infrared presence-detecting top-rail sensor mounted in the center of the metal frame, located at the top of the panel, for the purpose of detecting a person who has fully entered one of the door’s compartments in order to signal the door panels to stop moving before hitting the person.

      . Baughman’s discovery of a dead zone included the front area immediately before all three doors. Baughman’s testing was videotaped by a court reporter and photographed.

      . Boon Edam filed a Daubert (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)) motion to exclude Dr. Davis’s testimony.. At the Daubert hearing, Dr. Davis testified to his qualifications. He holds a B.S. and Ph.D. in physics from the Massachusetts Institute of Technology and has also substantially completed the credits necessary for a degree in electrical engineering. After hearing Dr. Davis’s extensive qualifications, the trial court denied Boon Edam’s Daubert motion.

      . Dr. Davis reviewed the investigation of the door performed by Baughman and testified that the dead zone extended the entire length of the leading edge of each door, covering an area of some eight feet along the edge of each door and about eight inches out from each door. I)r. Davis testified that he had inspected and tested other models of Boon Edam automatic revolving doors and those manufactured by Besam, Inc., a Boon Edam competitor, both equipped with presence-detecting sensors that covered the leading edge of the door panels, which were not present on the TQA model. Dr. Davis further testified that when a revolving door was equipped with sensors that covered the leading edge of the door panel, they would stop the door panels from striking a user.

      .Dr. Davis also testified that Boon Edam's TQA door was defectively designed because its sensor system failed to include sensors that provided coverage of the leading edge of the door; that Evelyn would not have been hit by the door if said door was equipped with sensors that provided leading edge coverage; and that the design of the TQA door was unreasonably dangerous because of its defectively designed sensor system. Boon Edam did not object to this testimony.

      . Infrared, ultrasound, and capacitive field.

      . Dr. Davis also testified that the cost of installing additional infrared sensors to provide leading edge coverage on the TQA door was negligible.

      . In support thereof, Boon Edam additionally argues that Dr. Davis's expertise did not fit the unreliable design testimony he provided; that his testimony was not based on sufficient fact or data; was not the product of reliable principles or methods; and that he did not apply the principles and methodologies reliable to the facts of the case.

      . Because we do not find any error in the judgment rendered by the jury, we decline to address the merits of the cross-appeal termed by Saunders as a “protective” cross-appeal, which was presented to this Court as alternative grounds for reversal if this Court were of the opinion that a reversal of the judgment was required on appeal.

      . Boon Edam repeatedly asserts that Dr. Davis’s testimony was nothing more than a bare assertion. We disagree. Dr. Davis clearly explained that the TQA door had a dead zone, as evidenced by the Baughman tests which he reviewed via the videotape, that the dead zone could be rectified in a number of ways, and that the lack of a sensor caused the injury to Saunders. We believe that Dr. Davis’s opinion was based on sound scientific premises and observations based upon his review of the discovery materials.

      . A curious argument which basically reasons that because no one was previously injured there must not be any danger arising from the operation of the door. If accepted, a corollary would be there could never be an injury caused by the operation of the door in the first instance because there had never been a prior injury. This is simply an untenable argument.

      . We note that, contrary to Boon Edam’s assertions, our review of the record shows that Ann Williamson’s testimony did not establish that Saunders was inside the door when she was struck. As Saunders expounds, the eyewitness accounts of the accident were unsuccessfully refuted by Boon Edam.

      . There were no applicable ANSI guidelines for revolving automatic doors until 2003 based on the evidence presented.

      . Boon Edam also asserts that Dr. Davis’s definition of "state of the art” as "the edge of what is possible,” bordered on the irrational by likening it to the "Twilight Zone.” After our review of the record, Boon Edam’s argument is disingenuous at best. Dr. Davis opined that the term "state of the art” had two possible interpretations: one was what the industry was willing to put out there and the second, which was his definition and he thought was that of most people, that the "edge of the envelope" is about what is capable. Boon Edam asked if this was similar to the "Twilight Zone,” to which Dr. Davis disagreed.

      . CR 51(3) states:
      No party may assign as error the giving or the failure to give an instruction unless he has fairly and adequately presented his position by an offered instruction or by motion, or unless he makes objection before the court instructs the jury, stating specifically the matter to which he objects and the ground or grounds of his objection.

        Id. See also Harris v. Thompson, 497 S.W.2d 422 (Ky.1973).