S.W.3d ---- 2025 WL 2989364 Document Details Outline standard Crowder v. Yussman (2025)

Case details
Country
United States
Jurisdiction
Kentucky (KY)
Court
Kentucky Supreme Court
Decided
2025
Disposition
Affirmed
Majority
Opinion Eckerle (J.) (unanimous Court)
© 2025 Thomson Reuters. No claim to original U.S. Government Works.Crowder v. YussmanCourt of Appeals of Kentucky. | October 24, 2025 | --- S.W.3d ---- | 2025 WL 2989364Document Detailsstandard Citation:Crowder v. Yussman, No. 2024-CA-0930-MR, 2025 WL 2989364 (Ky.Ct. App. Oct. 24, 2025)All Citations:--- S.W.3d ----, 2025 WL 2989364Search DetailsSearch Query:adv: (openai "artificial intelligence" chatgpt "google gemini" "westlawcocounsel" "large language model") (hallucinat! fake fictitious spuriousnonexistent "non-existent" "made up" imagined /p (gpt ai "artificialintelligence" chatgpt chaton perplexity openai copilot "google gemini""google bard" grok "mata v. avianca" claude llm llms)) (hallucinat! fakefictitious spurious nonexistent "non-existent" "made up" imagined) +3(precedent case "legal authority" "legal case") & DATE(aft 1/1/2023)Jurisdiction:KentuckyDelivery DetailsDate:November 1, 2025 at 7:55 AMDelivered By: Client ID:NOCLIENTIDOutlineAttorneys and LawFirms (p.1)OPINION (p.1)All Citations (p.9)
Crowder v. Yussman, --- S.W.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 2989364Only the Westlaw citation is currently available.THIS OPINION IS NOT FINAL AND SHALL NOTBE CITED AS AUTHORITY IN ANY COURTSOF THE COMMONWEALTH OF KENTUCKY.Court of Appeals of Kentucky.Susan CROWDER, Appellantv.Marvin YUSSMAN, M.D., AppelleeNO. 2024-CA-0930-MR|October 24, 2025; 10:00 A.M.Editor's Note: This decision contains discussion ofcitation references that are incorrect or do not actuallyexist. These invalid citations appeared in the originalcourt opinion and have been preserved as written sincethey are part of the official record. Any links to theseinvalid citations have been removed.APPEAL FROM JEFFERSON CIRCUIT COURT,HONORABLE JULIE KAELIN, JUDGE, ACTIONNO. 22-CI-003569Attorneys and Law FirmsBRIEF FOR APPELLANT SUSAN CROWDER:Amy R. Wheatley, New Albany, Indiana.ORAL ARGUMENT FOR APPELLANT: Amy R.Wheatly, New Albany, Indiana.BRIEF FOR APPELLEE MARVIN YUSSMAN,M.D.: W. Kennedy Simpson, Louisville, Kentucky.ORAL ARGUMENT FOR APPELLANT: W.Kennedy Simpson, Louisville, Kentucky.BEFORE: CALDWELL, CETRULO, ANDECKERLE, JUDGES.OPINIONECKERLE, JUDGE:*1 Appellant, Susan Crowder (“Crowder”), seeksreversal of the Jefferson Circuit Court's Order grantingsummary judgment in favor of Appellee, MarvinYussman, M.D. (“Yussman”). This Court, having beenfully briefed, giving careful consideration, and hearingoral arguments on September 11, 2025, hereby affirmsthe Jefferson Circuit Court's Order.FACTUAL AND PROCEDURALBACKGROUNDThe factual chronicle of Crowder's suit began in 1975,when she sought medical treatment from Yussmanto become pregnant. Yussman served as a physicianand faculty member at Louisville General Hospital,specializing in assisted reproduction. After consultingwith Yussman, Crowder and her husband consentedto Yussman performing an intrauterine inseminationprocedure using donated sperm from a confidentialdonor. The only material contested fact concernswhether Yussman obtained Crowder's consent to serveas her sperm donor. Crowder maintains that sheconsented to the use of a confidential sperm donorwho was to be a medical student, resembling physicaltraits of her husband, who was the intended non-biological father of the offspring. Crowder rememberssigning paperwork but is unable to recall the substancecontained therein. Yussman, however, testified thatCrowder signed an informed consent form detailingthat the confidential donor would be a medical ordental student, a medical resident, or a faculty member.The parties were unable to obtain the actual informedconsent form during the discovery process, as it is nolonger available. There is no other factual quarrel atissue.Yussman testified that in April of 1975, on thedate of the procedure, the scheduled donor wasunavailable. Yussman admits that he utilized his ownsperm to inseminate Crowder. Yussman also admitsthat he did not reveal this fact to Crowder. In fact,Yussman testified that he served as a sperm donor onnumerous occasions where the scheduled donor did notappear, and he satisfied the donor profile requirements.Yussman testified that he has fathered other childrenby this method.
Crowder v. Yussman, --- S.W.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.2The procedure resulted in Crowder becoming pregnantand birthing a daughter in March of 1976. It was notuntil 40 years later, in April of 2019, that Crowderdiscovered that Yussman is her daughter's biologicalfather following that daughter's use of commercialgenetic testing.1On July 14, 2022, over three years after thisdiscovery, Crowder commenced suit against Yussmanand the University of Louisville Hospital, whichwas formally known as Louisville General Hospitaland University Medical Center, Inc. (collectively,“Hospital”). The following month, in August of2022, Crowder amended her complaint to allege thatYussman and the Hospital committed the followingcauses of action: (Count I) fertility fraud pursuantto Kentucky's Fertility Fraud Act (the “KFFA”),Kentucky Revised Statute (“KRS”) 311.373; (CountII) medical malpractice; (Count III) breach of contract;(Count IV) failure to obtain informed consent; (CountV) common-law fraud; (Count VI) battery; (Count VII)negligent infliction of emotional distress; and (CountVIII) punitive damages.2*2 Yussman and Hospital moved the Trial Courtto dismiss Crowder's amended complaint pursuant toCR 12.02. Yussman argued that Crowder cannot seekredress under the KFFA, as the statute only operatesprospectively. Yussman also argued that Crowder'sremaining claims are time-barred, or in the alternative,fail to state a cause of action upon which relief may begranted.Crowder filed a response in opposition, highlightingthe rigorous dismissal standard in addition to analleged need for discovery in order to provide a specificbasis for her claims. Substantively, Crowder arguedthat the General Assembly intended for the KFFAto apply retroactively to her claims against Yussman.Regarding Yussman's arguments that the relevantlimitations periods had expired, Crowder argued thather medical negligence claim was not cognizable untilthe General Assembly's enactment of the KFFA. Saiddifferently, Yussman argued that there was no causeof action for fraudulent assisted reproduction; thus,Yussman's conduct did not violate any standard of careto support a claim of medical negligence prior to theGeneral Assembly's passage of the KFFA. As for herremaining claims, Crowder argued that the Trial Courtmust equitably estop Yussman from benefiting fromhis deceitful conduct. Ultimately, Crowder requestedthe Trial Court apply “equitable estoppel tolling thestate of the statute of limitations until the conduct wasactually discovered.” Trial Record (“TR”), p. 166.In December of 2022, on his final day of presidingover Jefferson Circuit Court, Judge Charles L.Cunningham, Jr., denied Yussman's and Hospital'smotions. The Trial Court's order explained that itwould not address Yussman's arguments regarding theviability or timeliness of Crowder's individual claims.Instead, the Trial Court ruled that further discovery wasnecessary for the parties to evaluate whether Crowder'sclaims amounted to an unrecognized tort based onthe KFFA, which the Trial Court titled “common lawcivil fertility fraud.” TR, p. 181. The Trial Court'sanalysis relied heavily on Craft v. Rice, 671 S.W.2d247 (Ky. 1984), a case in which the Kentucky SupremeCourt adopted a new tort, termed “Outrageous ConductCausing Severe Emotional Distress....” Id. at 251.Based on Craft and its reasoning, the Trial Courtruled that “it is compelled ... to allow a commonlaw civil fertility fraud cause of action to proceed tothe discovery phase.” TR, p. 183. Under this newly-fashioned cause of action, the Trial Court explicitlystated that a five-year statute of limitations periodmirroring the KFFA applied, commencing upon thedate of Crowder's discovery of the harm, April of 2019.The Trial Court's order concluded by encouraging theparties to consider the KFFA when exploring potentialresolution outside of the Courtroom setting. Notably,the Trial Court did not rule on whether the KFFAmay be retroactively applied to Crowder's claims,whether Crowder's common-law claims were time-barred, or whether Yussman was equitably estoppedfrom asserting statute of limitations defenses.Subsequently, in February of 2023, Crowder andHospital stipulated and submitted an agreed orderdismissing the action with prejudice, which thenewly-sitting Circuit Court Judge summarily granted.Yussman, the remaining defendant, filed his answeraffirmatively pleading, inter alia, Crowder's claimsare time-barred. On June 6, 2024, following thecompletion of written and oral discovery, Yussmanfiled the underlying motion for summary judgment. Herecited pertinent procedural history and the applicable
Crowder v. Yussman, --- S.W.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.3standard of review. Yussman asserted one materialfact in dispute: whether Yussman told Crowder thata faculty member – such as himself – may serve asthe donor. Yussman's arguments remained the same asthose asserted in his motion to dismiss, including thatthe KFFA does not retroactively apply to Crowder'sclaim; Crowder's remaining claims are time-barred;and, even assuming Crowder timely filed her claims,she cannot prevail on the merits. Crowder's responsereiterated her previous arguments that the GeneralAssembly intended that the KFFA provide historicalvictims, such as herself, with a cause of actionvia retroactive application. Crowder also attemptedto raise questions of fact, which, while apparentlygenuine, were not also material to the cause of actionsshe asserted. Notably, and as we discuss further herein,Crowder's response neither refuted nor addressedYussman's argument that her common-law claims arebarred by the applicable statutes of limitation.*3 By Order dated July 15, 2024, the Trial Courtgranted Yussman summary judgment on all countsand dismissed Crowder's action. To begin, the TrialCourt found that Crowder's alleged harm occurredin 1975 but was not discovered until April of 2019.Based on Crowder's suit commencement in July of2022, the Trial Court quickly disposed of Crowder'sallegations of medical negligence, failure to obtaininformed consent, battery, and negligent inflictionof emotional distress due to the applicable one-yearstatute of limitations periods for those causes of action.Similarly, the Trial Court barred Crowder's allegationsof breach of contract and common-law fraud dueto the 15-year and ten-year statutes of limitations,respectively.Regarding Crowder's sole remaining count alleginga violation of the KFFA, the Trial Court declinedCrowder's request to apply the statute absentretroactive language. Accordingly, the Trial Courtgranted Yussman summary judgment on all counts ofCrowder's amended complaint. It is from this Orderthat Crowder appeals.Crowder seeks review challenging the Trial Court'sdetermination that the KFFA does not enjoyretroactive application covering Yussman's conduct,which occurred in 1975. Crowder also contests theTrial Court's summary judgment as to her remainingcommon-law causes of action. Crowder further arguesthat Yussman is equitably estopped from obtainingjudgment based on grounds that the applicable statutesof limitation have lapsed.STANDARD OF REVIEWSummary judgment is governed by CR 56.03,stating that “if the pleadings, depositions, answers tointerrogatories, stipulations, and admissions on file,together with the affidavits, if any, show that there isno genuine issue as to any material fact and that themoving party is entitled to a judgment as a matter oflaw.” In evaluating a party's entitlement to summaryjudgment, a Trial Court must view the record in thelight most favorable to the nonmoving party. Steelvest,Inc. v. Scansteel Service Ctr., Inc., 807 S.W.2d 476,480 (Ky. 1991). If it appears impossible that thenonmoving party will be able to produce evidence attrial warranting a judgment in her favor, then summaryjudgment is proper. Id. (citing Paintsville Hosp. Co. v.Rose, 683 S.W.2d 255, 256 (Ky. 1985)) (stating thatsummary judgment “is only proper where the movantshows that the adverse party could not prevail underany circumstances”). To combat summary judgment,the opposing party must present “at least someaffirmative evidence showing that there is a genuineissue of material fact for trial.” Steelvest, 807 S.W.2dat 482.Here, both parties agree that this Court's review isde novo. See Bruner v. Cooper, 677 S.W.3d 252,269 (Ky. 2023) (footnote omitted) (“Because summaryjudgment does not require findings of fact but onlyan examination of the record to determine whethermaterial issues of fact exist, we generally review thegrant of summary judgment without deference to eitherthe trial court's assessment of the record or its legalconclusions.”).ANALYSISI. Kentucky Rules of Appellate ProcedureAs an initial matter, we must address the submissionof false authority to this Court by Crowder's counsel.Specifically, in Crowder's Appellant Brief, argumenttitled “Fertility fraud cases are distinguishable from
Crowder v. Yussman, --- S.W.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.4Thompson v. Killary,” counsel cites the three followingcases as precedential authority: Schooley v. Kennedy,712 S.W.2d 941 (Ky. 1986); Salzman v. Atwood,65 S.W.3d 496 (Ky. App. 2001), and Middleton v.Middleton, 287 S.W.2d 427 (Ky. 1956). AppellantBrief, p. 12-13. Yussman's Appellee Brief points outthe fact that these cases do not exist.In response, Crowder's counsel acknowledges theerrors – which she refers to as “citation errors.”Appellant Reply Brief, p. 1. However, Crowder'scounsel fails to provide this Court with any writtenexplanation or excuse as to how or why she includedthree non-existent cases in Crowder's Appellant Brief.Appellant Reply Brief, p. 1. In fact, it was notuntil this Court questioned Crowder's counsel at oralarguments that she attributed her oversight to whatshe referred to as placeholder citations. As Crowder'scounsel declared before this Court at oral argument,she and/or her staff created three distinct, imaginarycases as placeholder citations, which she intendedto replace with actual precedential or persuasiveauthorities. Despite her intentions, Crowder's counselprovided this Court with fictious authority in violationof Kentucky Rules of Appellate Procedure (“RAP”)31(E)(1) and 32(A)(4). The former Rule includes strictcitation requirements, and the latter Rule requires asubmitted argument to contain “ample ... citations ofauthority pertinent to each issue of law[.]”*4 This Court has the discretion to determine theappropriate penalty for failure to follow its rules. St.Joseph Catholic Orphan Soc'y v. Edwards, 449 S.W.3d727, 732 (Ky. 2014). Pursuant to Rule 10(B)(3), thisCourt may strike an offending brief or portions thereof.While this Court does not intend to punish Crowderfor her lawyer's mistakes, our treatment of counsel'ssubmission of what can only be described as inventedlaw must be met with consequences. Therefore, wefind it appropriate to strike the offending portions ofCrowder's Appellant Brief, Section C, pages 11-15.Moreover, we take this opportunity to cautionpractitioners of this Commonwealth on the submissionof briefs or citations without confirming their accuracyand the correctness of the resulting analysis. Theabject failure to conduct due diligence when makingarguments to the Court greatly impacts the professionand undermines confidence in the skills and knowledgenecessary to practice as an attorney. Failure to verifysubstantive legal citations prior to submission to thisCourt is not only in derogation of the RAP, butalso violates the attorney's ethical responsibilities. SeeSupreme Court Rule 3.130(1.1).Mistakes occur. Oversights happen. Those typesof inadvertent errors we could absolve. However,purposelessly submitting a brief to a Court of lawwithout confirming that the cited case law even existsis an affront to the dignity of the Court system, the legalprofession as a whole, the judiciary, the client, and thepublic at large. But for now, let us turn to the merits ofthe controversy that brings us here.II. Prospective Application of the KFFSCrowder's first substantive argument concerns whetherthe KFFS can be applied retroactively to affordher relief. As the Trial Court and both partiesproperly identified, KRS 446.080(3) prohibits theretroactive application of a statute absent expresslegislative authority (“No statute shall be construedto be retroactive, unless expressly so declared.”).Kentucky law presumes that statutes are enacted tooperate prospectively. See, e.g., Jewish Hospital v.Perry, 626 S.W.3d 509, 513 (Ky. 2021). Indeed, itis well-established law that retroactive applicationof a law must be either expressly afforded withinthe text of the law or established by the GeneralAssembly. Baker v. Fletcher, 204 S.W.3d 589, 597(Ky. 2006). The reasoning behind the presumption ofprospective application of a newly-enacted statute is amatter of fairness. See Martin v. Warrior Coal L.L.C.,617 S.W.3d 391, 394 (Ky. 2021) (“[C]onduct shouldordinarily be assessed under the law that existed whenthe conduct took place.”).As with most principles of law, the rule is not absolute.For example, the rule against retroactive applicationdoes not necessarily apply to statutory amendmentsthat provide “remedies or modes of procedure,” asopposed to “substantive rights.” Commonwealth Dep'tof Agric. v. Vinson, 30 S.W.3d 162, 168 (Ky. 2000).Ultimately, our goal is to discern the GeneralAssembly's intent. Accordingly, we begin with thelanguage of the KFFA while keeping in mind thatthe General Assembly is not required to use “magic
Crowder v. Yussman, --- S.W.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.5words” indicating its intent that a statute should applyretroactively. Perry, 626 S.W.3d at 513.On July 1, 2022, the Kentucky General Assemblyenacted KRS 311.373, entitled “Definitions;fraudulent assisted reproduction; cause of action,damages, statutes of limitations; penalty.” The KFFAstates, in pertinent part, the following:(2) A person is guilty of fraudulent assistedreproduction when he or she is a health care providerperforming an assisted reproduction procedure on apatient and:*5 (a) Knowingly causes the use of humanreproductive material from a donor whom thepatient did not give written consent to receive itfrom; or(b) Intentionally causes the use of his or her ownhuman reproductive material without the patient'sknowledge and written consent.(3)(a) The patient who undergoes an assistedreproduction procedure in violation of subsection(2) ... shall have a civil cause of action againstany health care provider, the health care provider'semployer, or both, for a violation of the provisionsof subsection (2) of this section.(4) A civil action may be maintained under thissection whether or not the person alleged to haveviolated subsection (2) of this section has beencharged or convicted of the alleged crime.(5) Liability under this section shall include:(a) Liquidated damages of ten thousand dollars($10,000) plus the costs of the fertility treatmentand reasonable attorney's fees; or(b) Compensatory and punitive damagesincluding the costs of the fertility treatment plusthe costs of the action and reasonable attorney'sfees.(6) An action under this section shall be commencedno later than five (5) years after:(a) The eighteenth birthday of the child conceivedthrough the fraudulent assisted reproduction; or(b) The earliest of the dates when:1. The person first discovers evidence againstthe defendant through deoxyribonucleic acid(DNA) analysis;2. The person first becomes aware of theexistence of a record that provides evidenceagainst the defendant; or3. The defendant confesses to the offense.(7) A violation of subsection (2) of this section is aClass D felony.From the outset, it is clear that the KFFA doesnot expressly provide for retroactive application.Generally, our analysis would end here. See Thompsonv. Killary, 683 S.W.3d 641, 646 (Ky. 2024) (quoting inpart University of Louisville v. Rothstein, 532 S.W.3d644, 648 (Ky. 2017)) (“In determining the meaningof a statute, ‘we ... look first to the plain languageof a statute and, if the language is clear, our inquiryends.’ ”). However, our jurisprudence requires furtherinspection, as the General Assembly is not requiredto use “magic words” if the “enactment make[s] itapparent that retroactivity was the intended result.”Baker, 204 S.W.3d at 597; see Commonwealth exrel. Conway v. Thompson, 300 S.W.3d 152, 167 (Ky.2009), as corrected (Jan. 4, 2010) (“[A] failure to stateexplicitly that legislation is to apply retroactively doesnot always mean that a court may not determine thatthe legislation has retroactive effect.”).The question before the Court, then, is whether theGeneral Assembly intended for the KFFA to haveretroactive application to account for fertility fraudpredating its 2024 enactment even though it expresslyfailed to provide for any such retroactivity explicitly.In this regard, Crowder supplies several arguments forretroactive application of the KFFA.We begin with Crowder's most compellingargument that the lack of an express provisionproviding retroactive application is not dispositiveof the issue. Specifically, Crowder argues thatthe KFFA's legislative history demonstrates theGeneral Assembly's intention that the statute applyretroactively. Crowder submits statements fromKentucky House Representative Frazier Gordon,
Crowder v. Yussman, --- S.W.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.6wherein he introduced the underlying bill, HouseBill 402. Specifically, Crowder points to Gordon'sstatements illustrating fertility fraud in a mannerfactually identical to her situation, and the need for theharmed individuals to hold the physicians accountable.*6 To evaluate the KFFA's history fairly, we quoteGordon's statements in their entirety. Specifically,Gordon recited the following language during the bill'sreading on March 9, 2022:Mr. Speaker, House Bill 402 relates to fertility frauddeception, whereby a physician made the decisiondecades ago to use a fresh sample of his ownmaterial to inseminate female patients but wouldinform them that the sample would come from thewoman's own husband or anonymous donor. Thedeception is then discovered decades later whenthe adult child conceived through this procedurelearns through [direct-to-consumer DNA testing] ofkinship relations through the doctor's relatives orhalf sibling groups. Dozens of cases have emergedall over the United States and before you think thiscan't happen here, we have two well-known cases inKentucky.Federal regulations and professional guidelines haveproliferated in this area of medicine; therefore, itis unlikely that physicians will commit similar actstoday. Patients affected by fertility fraud shouldbe able to seek accountability from the physicianswho harmed them. Without legislation, the existenceof remedies, their extent, and their coverage aremostly uncertain. This legislation creates both civiland criminal causes of action for fertility fraud. Itestablishes a longer time period to sue followingdiscovery, allows children and partners to sue, aswell as offers a liquidated damages option. Thislegislation obviates the need for courts to wranglewith how to characterize its conduct and civilconsequences.These lone statements from a single legislator do notimply that the General Assembly intended for theKFFA to apply retroactively. At most, we could inferthat with the advent of readily available consumerDNA testing, and upon reports of salacious conductsuch as that which occurred in the case sub judice,legislators aimed to create a unique cause of actiongoing beyond mere common-law fraud. Regardlessof whether Yussman's actions directly precipitated theenactment of the KFFA, Gordon's statements do notsurmount the General Assembly's failure to includeexpress retroactive language when it could easily havedone so if it had wanted.In addition, Crowder argues unpersuasively that weshould extrapolate legislative intent based on Gordon'sabove-quoted statement that physicians would notcommit such acts in present times. Crowder submitsthat Gordon's statements stand for the proposition that“without retroactive application, there would be noreason for [the KFFA] to exist at all, as there [would] benothing [for] the statute to prohibit.” Appellant Brief,p. 8.First of course, it is naïve to think that no physicianwould ever attempt to perpetrate this kind of violationin the future. Second, Crowder's construal of Gordon'sstatements is one based on the statute's purpose andis farfetched. In practical application, and based onGordon's own words, the KFFA aims to define conductconstituting fertility fraud, deter such conduct throughcivil and criminal liability, and provide a clear path forthose harmed to seek redress. Retroactive applicationof the KFFA does not further these goals. The pastconduct was clearly not deterred. Third, when readin the context of his entire statement, Gordon's singlequoted phrase clearly refers to the fertility industry'scontemporary professional standards. This statementdoes not mean that fertility fraud will not occur; rather,now victims have a new, arguably better avenue ofrelief. Prior to its enactment, and as the Trial Courtmade clear, Crowder and similarly-situated victimswere free to seek common-law causes of action withvarying statutes of limitations.*7 In sum, in the face of the clear language ofthe statute that contains no retroactive application,Gordon's statements cannot overcome the requiredlegal presumption of prospective application. SeeMills v. Department of Corrections Offender Info.Servs., 438 S.W.3d 328, 335 (Ky. 2014) (“Resortingto excerpts of commentary by a single legislator, nomatter his rank, makes little sense in light of the factthat the General Assembly spoke as a body in enactingthe legislation as it currently stands.”). The simplefact is that the legislature could have made the statuteretroactive; but for whatever reason, they chose not to
Crowder v. Yussman, --- S.W.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.7do so. And the legislature makes the laws; the Courtsdo not.Crowder also suggests that the limitations perioddemonstrates the General Assembly's intent thatthe KFFA apply to claims predating its enactment.Specifically, Section (6) provides the harmedindividual with a limitations period of five years from:(A) the child turning 18 years of age; or the earlierof (B) discovery through DNA testing, (C) discoverythrough records; or (3) the defendant confesses. KRS311.373(6). Based on this language, Crowder makesa fair inference that the General Assembly intendedfor historical victims to assess and assert a civil causeof action against a medical provider who perpetratedfertility fraud. C.f. KRS 413.140 (personal injurylawsuits generally fall within the one-year statute oflimitations requiring the action to be “commencedwithin one (1) year after the cause of action accrued”).Despite the KFFA's expanded five-year limitationsperiod, we still find no compelling reason to equatethe language to an expression of the General Assemblythat the KFFA's reach applies to conduct occurringprior to its enactment. See Martin, 617 S.W.3d at 396.In sum, we cannot supply language where there wasnone.This reasoning holds true for Crowder's additionalargument that the legislature's decision to place a five-year limitations period from discovery through the useof DNA testing would be rendered meaningless absentretroactive application because “current medicalregulations and ethical guidelines” render fertilityfraud “virtually impossible [to commit] today.”Appellant Brief, p. 9. Crowder does not expoundon her contention beyond generalized statements. Wehave seen no supporting information or explanationindicating that a physician is unable – or even lesslikely – to commit fertility fraud in its various formsif he or she is so inclined. Accordingly, we rejectCrowder's argument. Section (6)(b)1. simply sets fortha limitation period based on the method of discoveringthe harm – e.g., DNA testing, other records, orphysician confession. The DNA method of catching acriminal is relatively new; the predisposition to commitsuch a crime is not – even in the face of novel crime-fighting techniques.Finally, Crowder supplies the Court with a publicpolicy argument that Yussman's actions constitutethe exact type of conduct the KFFA was created toprevent. This Court has no qualm with Crowder'sproposition. The legislative history is clear that theGeneral Assembly took action based on an identical (ifnot the same) factual pattern. However, and even still,the General Assembly did not provide any indicationthat it intended for the KFFA to apply retroactively,and it took no steps to include retroactive language.While we are not unsympathetic to Crowder's plight,this Court cannot usurp the General Assembly's roleof legislating. See Revenue Cabinet v. O'Daniel, 153S.W.3d 815, 819 (Ky. 2005) (“In fact, ‘[t]he plainmeaning of the statutory language is presumed to bewhat the legislature intended, and if the meaning isplain, then the court cannot base its interpretationon any other method or source.’ ” (quoting RonaldBenton Brown & Sharon Jacobs Brown, StatutoryInterpretation: The Search for Legislative Intent § 4.2,at 38 (NITA 2002))).*8 In fact, in this Court's independent survey ofsimilarly enacted statutes, we have located an arrayof fertility fraud legislation, some of which includesexpress retroactive language. In Illinois, for example,its fertility fraud act explicitly provides the “Act shallbe retroactive and apply to any treatment by a healthcare provider occurring prior to the effective date ofthis Act.” 815 Ill. Comp. Stat. § 540/5 (2024). Onthe other end of the spectrum is Colorado's fertilityfraud act, which expressly states that it operatesprospectively, not retroactively. 2020 Colo. Sess. Lawsch. 238, § 7(2) (“This act applies to causes of actionarising or offenses committed on or after the applicableeffective date of this act.”). Iowa's fertility fraud statuteis perhaps most comparable to the KFFA, as Iowa'slegislature did not mention retrospective application inany manner. See Iowa Code § 709.4A (2023). There,the Supreme Court of Iowa held that absent legislativeintent to the contrary, its fertility fraud act cannotbe applied retroactively. Miller v. Iowa, 18 N.W.3d498, 506 (Iowa 2025) (juxtaposing other recent lawswherein the legislature expressed its intent for thestatute to apply retrospectively).We must also underscore that prospective applicationof the KFFA does not limit historical victims fromseeking relief via other causes of actions predating the
Crowder v. Yussman, --- S.W.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.8KFFA. Of course, as evident here, the cause of actionmust be asserted within the applicable limitationsperiod. For example, upon Crowder's discovery of theharm in 2019, she could have brought suit then againstYussman under her other causes of action.III. Crowder's Common-Law Causes of ActionWe must also address the Trial Court's determinationthat Crowder's remaining claims are time-barred. EQTProduction Co. v. Big Sandy Co., L.P., 590 S.W.3d275 (Ky. App. 2019) (“When the relevant facts arenot in dispute, the Court may determine the validity ofa statute of limitations defense as a matter of law.”).There is no factual dispute that Crowder suffered thecomplained-of harm in 1975, discovered the harm inApril of 2019, and brought suit against Yussman in Julyof 2022.Pursuant to KRS 413.140(1)(e), Crowder's medicalnegligence (Count II), failure to obtain informedconsent (Count IV), battery (Count VI), and intentionalinfliction of emotional distress (Count VII) are subjectto a one-year limitations period commencing uponthe accrual of the subject causes of action. Onthis issue, a cause of action under KRS 413.140(1)(e) accrues upon “discovery of the injury, or fromthe date it should, in the exercise of ordinary careand diligence, have been discovered.” Wiseman v.Alliant Hosps., Inc., 37 S.W.3d 709, 712 (Ky. 2000).Consequently, the Trial Court's judgment in favor ofYussman on Crowder's claims of medical malpractice,informed consent, battery, and negligent infliction ofemotional distress was proper because Crowder didnot commence those causes of action within one yearof discovery. Construing the facts in a light mostfavorable to Crowder, the discovery rule reservedaccrual of Crowder's claims until April of 2019, uponher discovery that Yussman is the biological father ofher daughter. Thus, the limitations period expired forthese claims in April of 2020. Crowder did not file suituntil July of 2022. Accordingly, we find no error in theTrial Court's judgment as to Counts II, IV, VI, and VII.Likewise, the Trial Court did not commit error inawarding Yussman judgment on Crowder's remainingthree claims, breach of contract (Count III), common-law fraud (V), and punitive damages (Count VIII).Regarding Count III, breach of contract, KRS413.190(2) enumerates a 15-year limitations periodfor written contracts. “A breach of contract actionis said to ripen or accrue at the time of its breach– that is, the date of the ‘promised performance.’ ”Cornett v. Student Loan Solutions, L.L.C., 672 S.W.3d852, 857 (Ky. App. 2023) (quoting Finley v. Thomas,269 Ky. 422, 107 S.W.2d 287, 288 (1937)). Withoutsupplying any precedential authority, Crowder claimsthat the discovery rule applied to her breach of contractclaim. A review of our precedential authority, however,demonstrates that an action for breach of contractaccrues upon breach, not when damages are sufferedor realized. See, e.g., EQT Production, 590 S.W.3d at293; Hoskins’ Adm'r v. Kentucky Ridge Coal Co., 305S.W.2d 308, 311 (Ky. 1957). Accordingly, we agreewith the Trial Court that Crowder's 2022 breach ofcontract claim is time-barred because the procedureand contract occurred on or about April of 1975.*9 Moreover, we find the Trial Court properly ruledthat Crowder's claim of common-law fraud, as shepleaded in Count V, is time-barred. Pursuant to KRS413.130(3), common-law fraud actions are subject toa ten-year period of repose, which commences at thetime the fraud took place, which again was over 40years ago. And finally, Count VIII, Crowder's claimof punitive damages, is not an independent causeof action upon which she may prevail if this caseproceeded to trial. See Lawrence v. Risen, 598 S.W.2d474, 476 (Ky. App. 1980) (holding that without “actualcompensatory damages, punitive recoveries cannot besustained”).As a final point, Crowder argues to this Court that“equitable estoppel,” or “equitable tolling,” rendersher amended complaint timely. However, to be clear,statutory tolling, equitable tolling, and equitableestoppel are not interchangeable terms, but are infact distinct concepts. See Williams v. Hawkins, 594S.W.3d 189, 193 (Ky. 2020) (clarifying that equitabletolling pauses a limitations period, whereas equitableestoppel precludes “a defendant, because of his ownwrongdoing, from using the statute of limitations as adefense”).In addition, we are hesitant to opine on theseissues because our review of the record demonstratesthat equitable tolling and equitable estoppel areunpreserved issues that Crowder improperly raised onappeal. First, Crowder's response to Yussman's motion
Crowder v. Yussman, --- S.W.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.9for summary judgment at the Trial Court level did notraise any arguments regarding the applicable statutesof limitations, including equitable claims. Further, theTrial Court did not rule on these issues at any pointduring the underlying proceedings. Thus, there is noruling on equitable tolling or equitable estoppel for thisCourt to review.More concerning is Appellant's erroneous preservationstatement, where she refers this Court to page 272of the Trial Court record. See Brief for Appellant, p.17, n.30.3 Yet, page 272 of the Trial Court recordis merely the first page of Crowder's response toYussman's motion for summary judgment. Again, ourreview of the record reveals that Crowder did notcombat Yussman's limitations arguments, includingasserting that any estoppel or tolling principle applied.Consequently, Crowder's preservation statement andrecord citation is a direct violation of RAP 32(A)(4).This Court has stressed that, “[i]t is not the job ofthe appellate courts to scour the record in support ofan appellant or cross-appellant's argument.” Dennisv. Fulkerson, 343 S.W.3d 633, 637 (Ky. App. 2011)(citing Smith v. Smith, 235 S.W.3d 1, 5 (Ky. App.2006)). Consequently, it would be “well within ourdiscretion” to impose severe sanctions for Crowder'srepeated RAP violations. See Cotton v. Nat'l CollegiateAthletic Ass'n, 587 S.W.3d 356, 360 (Ky. App. 2019).In light of Crowder's submission of invented citationsas discussed herein, in conjunction with the instantinaccuracy presented in her preservation statement, weare inclined to impose an additional sanction due to herviolating RAP 32(A)(4). Accordingly, this Court willchoose not to address Crowder's arguments concerningequitable remedies available to combat a statute oflimitations defense. We should note that our “sanction”is likely without actual consequence. This decisionis deliberate as to avoid punishing Crowder for hercounsel's conduct.*10 This Court, utilizing de novo review, alreadyapplied the discovery rule to the applicable limitationperiods, providing a discovery date of 2019 to CountsII, IV, VI, and VII. Considering the repose periodfor common-law fraud, equitable tolling4 would onlybenefit Crowder in relation to Count III, breach ofcontract, in which the discovery rule does not apply.Even so, discovery is closed, and Crowder has beenunable to locate the contract upon which her claim isbased.5 See Mills v. McGaffee, 254 S.W.2d 716 (Ky.1953) (stating that a plaintiff must prove the terms ofa written contract where required).In sum, this Court affirms the Trial Court's rulingthat Crowder's common-law causes of action are time-barred.CONCLUSIONFor these reasons set forth herein, we affirm theJefferson Circuit Court's Order granting summaryjudgment on all claims.ALL CONCUR.All Citations--- S.W.3d ----, 2025 WL 2989364Footnotes1Crowder alleges that Yussman “fathered at least eight other children through similar practices with hispatients.” Appellant Brief, p. 1-2.2Crowder also sought injunctive relief pursuant to Kentucky Rule of Civil Procedure (“CR”) 65.04, requestingthat Yussman provide information necessary to identify each patient he artificially inseminated. The TrialCourt disposed of Crowder's claim on December 27, 2022, ruling that absent sworn expert testimony, itcannot provide equitable relief in the form of a mandatory injunction.3During oral arguments, the Court questioned Crowder's counsel regarding the accuracy of her preservationstatement. Crowder's counsel responded that she believed she preserved the issues of tolling or equitableestoppel but was admittedly unsure. Yussman's counsel was equally unaware of this procedural flaw.
Crowder v. Yussman, --- S.W.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.104Equitable estoppel, on the other hand, may have proven to be Crowder's strongest argument againstsummary judgment. It is a distinct and separate remedy from equitable tolling. But she did not raise it below;and thus, we cannot address it on appeal.5Crowder relies on White v. Baptist Healthcare System, Inc., No. 2023-CA-0148-MR, 2024 WL 1813237 (Ky.App. Apr. 26, 2024) (unpublished), to support application of estoppel or tolling to her breach of contractclaim. However, White is not persuasive authority in the context of the appeal before this Court. White is notonly distinguishable due to its procedural posture (discovery had not commenced at the time the Trial Courtawarded summary judgment), but the opinion is unpublished and the Supreme Court accepted discretionaryreview. The appellate parties resolved the matter and jointly dismissed the appeal prior to the KentuckySupreme Court's decision on the merits.End of Document© 2025 Thomson Reuters. No claim to original U.S.Government Works.
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