Full Opinion

RENDERED: SEPTEMBER 18, 2026; 10:00 A.M. TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1174-MR ERIC S. CULVER; BRENT ROUTZAHN; JASON POSTON; LARRY DALE MASSEY, JR.; SCOTT GREGORY WALKER; AND WILLIAM D. PEARSON, III APPELLANTS APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MELISSA L. BELLOWS, JUDGE ACTION NO. 16-CI-001500 LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT; AARON BROWNING; ALLAN MANGANELLO; BRAD HARRIS; BRANDON HOGAN; CHARLES NEWMAN; CHRISTOPHER BAKER; CHRISTOPHER KITCHEN; CHRISTOPHER PRIEL; CHRISTOPHER WELLS; DANIEL WEEDMAN; DANIEL ZUMMACH; DARRIN BALTHROP; DAVID HAIGHT; DAVID LEDBETTER; GARY JAGGERS; JAMES KAUFLING; JASON LAINHART; JASON MOSELEY; JEFFREY LAUDER; JEREMY BOEHNLEIN; JEREMY RUOFF; JOE HEITZMAN; JOEL CASSE; JOHN KOOFER; JOHN SEYMOUR; JOSEPH HOWELL; KEVIN CASPER; LAQUAN WATERS; LISA DOYLE; LUKE PHAN; LYTLE ATHERTON; MARC CRAWFORD; MARK BRADEN, II; MARK GRANHOLM; MATTHEW ERNST; MATTHEW SANDERS; MICHAEL BURNS; MICHAEL CHEESEMAN; MICHAEL KING; MICKEY KING; NATHAN RAUSCH; PAUL COBB; RAYMOND PAGE; RHONAL HEADY; RICHARD BARRON; RICHARD MCELROY; ROBERT KRUGLER; SEAN HAYES; SHANNON PARKS; STEVEN MANTLE; THOMAS HODGKINS; TONY SACRA; AND WESLEY CLAXON APPELLEES AND NO. 2024-CA-1208-MR LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT CROSS-APPELLANT CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MELISSA L. BELLOWS, JUDGE ACTION NO. 16-CI-001500 ERIC S. CULVER; AARON BROWNING; ALLAN MANGANELLO; BRAD HARRIS; BRANDON HOGAN; BRENT ROUTZAHN; CHARLES NEWMAN; -2- CHRISTOPHER BAKER; CHRISTOPHER KITCHEN; CHRISTOPHER PRIEL; CHRISTOPHER WELLS; DANIEL WEEDMAN; DANIEL ZUMMACH; DARRIN BALTHROP; DAVID HAIGHT; DAVID LEDBETTER; GARY JAGGERS; JAMES KAUFLING; JASON LAINHART; JASON MOSELEY; JASON POSTON; JEFFREY LAUDER; JEREMY BOEHNLEIN; JEREMY RUOFF; JOE HEITZMAN; JOEL CASSE; JOHN KOOFER; JOHN SEYMOUR; JOSEPH HOWELL; KEVIN CASPER; LAQUAN WATERS; LARRY DALE MASSEY, JR.; LISA DOYLE; LUKE PHAN; LYTLE ATHERTON; MARC CRAWFORD; MARK BRADEN, II; MARK GRANHOLM; MATTHEW ERNST; MATTHEW SANDERS; MICHAEL BURNS; MICHAEL CHEESEMAN; MICHAEL KING; MICKEY KING; NATHAN RAUSCH; PAUL COBB; RAYMOND PAGE; RHONAL HEADY; RICHARD BARRON; RICHARD MCELROY; ROBERT KRUGLER; SCOTT GREGORY WALKER; SEAN HAYES; SHANNON PARKS; STEVEN MANTLE; THOMAS HODGKINS; TONY SACRA; WESLEY CLAXON; AND WILLIAM D. PEARSON, III CROSS-APPELLEES AND -3- NO. 2024-CA-1179-MR JASON LAINHART; AARON BROWNING; ALLAN MANGANELLO; BRAD HARRIS; BRANDON HOGAN; CHARLES NEWMAN; CHRISTOPHER BAKER; CHRISTOPHER KITCHEN; CHRISTOPHER PRIEL; CHRISTOPHER WELLS; DANIEL WEEDMAN; DANIEL ZUMMACH; DARRIN BALTHROP; DAVID HAIGHT; DAVID LEDBETTER; GARY JAGGERS; JAMES KAUFLING; JASON MOSELEY; JEFFREY LAUDER; JEREMY BOEHNLEIN; JEREMY RUOFF; JOE HEITZMAN; JOEL CASSE; JOHN KOOFER; JOHN SEYMOUR; JOSEPH HOWELL; KEVIN CASPER; LAQUAN WATERS; LISA DOYLE; LUKE PHAN; LYTLE ATHERTON; MARC CRAWFORD; MARK BRADEN, II; MARK GRANHOLM; MATTHEW ERNST; MATTHEW SANDERS; MICHAEL BURNS; MICHAEL CHEESEMAN; MICHAEL KING; MICKEY KING; NATHAN RAUSCH; PAUL COBB; RAYMOND PAGE; RHONAL HEADY; RICHARD BARRON; RICHARD MCELROY; ROBERT KRUGLER; SEAN HAYES; SHANNON PARKS; STEVEN MANTLE; THOMAS HODGKINS; TONY SACRA; AND WESLEY CLAXON CROSS-APPELLANTS -4- APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MELISSA L. BELLOWS, JUDGE ACTION NO. 16-CI-001500 LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT; BRENT ROUTZAHN; ERIC S. CULVER; JASON POSTON; LARRY DALE MASSEY, JR.; SCOTT GREGORY WALKER; AND WILLIAM D. PEARSON, III CROSS-APPELLEES AND NO. 2024-CA-1210-MR LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT CROSS-APPELLANT CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MELISSA L. BELLOWS, JUDGE ACTION NO. 16-CI-001500 JASON LAINHART; AARON BROWNING; ALLAN MANGANELLO; BRAD HARRIS; BRANDON HOGAN; BRENT ROUTZAHN; CHARLES NEWMAN; CHRISTOPHER BAKER; CHRISTOPHER KITCHEN; CHRISTOPHER PRIEL; CHRISTOPHER WELLS; DANIEL WEEDMAN; DANIEL ZUMMACH; DARRIN BALTHROP; DAVID -5- HAIGHT; DAVID LEDBETTER; ERIC S. CULVER; GARY JAGGERS; JAMES KAUFLING; JASON MOSELEY; JASON POSTON; JEFFREY LAUDER; JEREMY BOEHNLEIN; JEREMY RUOFF; JOE HEITZMAN; JOEL CASSE; JOHN KOOFER; JOHN SEYMOUR; JOSEPH HOWELL; KEVIN CASPER; LAQUAN WATERS; LARRY DALE MASSEY, JR.; LISA DOYLE; LUKE PHAN; LYTLE ATHERTON; MARC CRAWFORD; MARK BRADEN, II; MARK GRANHOLM; MATTHEW ERNST; MATTHEW SANDERS; MICHAEL BURNS; MICHAEL CHEESEMAN; MICHAEL KING; MICKEY KING; NATHAN RAUSCH; PAUL COBB; RAYMOND PAGE; RHONAL HEADY; RICHARD BARRON; RICHARD MCELROY; ROBERT KRUGLER; SCOTT GREGORY WALKER; SEAN HAYES; SHANNON PARKS; STEVEN MANTLE; THOMAS HODGKINS; TONY SACRA; WESLEY CLAXON; AND WILLIAM D. PEARSON, III CROSS-APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: CALDWELL, L. JONES, AND MCNEILL, JUDGES. JONES, L., JUDGE: These appeals concern claims for compensation for time spent on-call during employment. The appellants in Appeal No. 2024-CA-1174- -6- MR are six current and former members of the Louisville Metro Police Department’s Special Weapons and Tactical (SWAT) Team (collectively SWAT1) who claim they are entitled to compensation for each hour spent on-call as a SWAT Team member pursuant to both Kentucky’s wage and hour laws and the collective bargaining agreement (CBA) entered into with Louisville/Metro County Government (Metro) by their union, River City Fraternal Order of Police Lodge #614 (FOP). The claims of SWAT1 were tried before a jury which found in favor of Metro. SWAT1 appeals orders of the Jefferson Circuit Court that (1) denied their motions for partial summary judgment both prior to and after trial; and (2) denied their motion for a new trial. In the Cross-Appeal No. 2024-CA-1208-MR Metro claims it was entitled to a directed verdict following the close of proof at trial. Metro also requests this Court address whether KRS1 67C.400 et seq. prohibits a private right of action to enforce a CBA. The appellants in Appeal No. 2024-CA-1179-MR are 53 other current and former members of Metro’s SWAT Team (collectively SWAT2) who filed suit at the same time as SWAT1, but whose claims were not tried. They contend they were also entitled to summary judgment prior to and after trial along with SWAT1 (when referring to SWAT1 and SWAT2 collectively herein, we refer to them simply as Appellants or SWAT Team members). Alternatively, they seek 1 Kentucky Revised Statutes. -7- correction of what they claim are the trial court’s errors during SWAT1’s trial so they are not repeated in future trials wherein SWAT2 will also seek on-call compensation. SWAT2 denotes their action before this Court as a “protective appeal.” In Cross-Appeal No. 2024-CA-1210-MR, Metro also claims it was entitled to summary judgment prior to trial. After careful review of the record and having held oral arguments on August 13, 2026, we affirm the trial court with regard to all appeals and cross- appeals. None of the parties were entitled to summary judgment. Further, the trial court did not commit error with regard to the jury instructions, nor did it abuse its discretion regarding admission of evidence described in greater detail herein. Finally, because we are affirming the jury verdict in favor of Metro, the question of whether Metro was entitled to a directed verdict is moot. However, we briefly address the issue herein because it is germane to potential trials involving SWAT2. I. Factual and Procedural Background From 2001 to 2016, Metro employed a part-time SWAT Team. In 2016, Metro made the decision to employ 20 full-time SWAT Team members to work first shift (9:00 a.m.–5:00 p.m.).2 However, due to the unpredictable nature and timing of criminal activity and the service of high-risk warrants requiring 2 Testimony at trial revealed SWAT Team members specifically requested the shift be from 9:00 a.m.–5:00 p.m. -8- SWAT intervention, each SWAT Team member is required to be on-call two weeks out of each month. When a SWAT officer is on-call, they are given a vehicle to keep their tactical gear ready for use should they be called out. They are also permitted to pursue secondary employment as long as it does not interfere with their ability to respond to call outs. According to Metro’s Standard Operating Procedures (SOP), it is preferred that SWAT Team members answer a call within five minutes and, if called out, it is preferred they arrive at the location within 45 minutes. They are also prohibited from consuming alcohol while on-call. SWAT Team members are free to swap on-call shifts with each other without prior administrative approval. On March 31, 2016, Appellants filed the underlying complaint, alleging violations of Kentucky’s wage and hour laws (KRS Chapter 337) and contract law (CBA). Metro filed two motions for summary judgment which were denied. A trial began in 2021, but a mistrial was declared shortly after. Prior to commencement of the second trial, all parties filed motions for summary judgment which were denied. The second trial involving only SWAT1 took place from July 18–29, 2022, and the jury entered verdicts for Metro on all claims. SWAT1 subsequently filed a motion for a new trial. During the pendency of the post-trial motions, an election took place and a new judge was sworn in. After extensive briefing and oral arguments, the trial court granted SWAT1’s motion for a new -9- trial based on what it ruled were “inflammatory evidence and improper jury instructions.”3 Several months later, Metro filed a motion to reconsider, and Appellants filed a renewed motion for summary judgment. The trial court granted the motion for reconsideration, which reinstated the jury verdict, and denied the motion for summary judgment as moot. The trial court stated it stood by its reasoning to grant a new trial, but acknowledged it did not give proper deference to the rulings of the prior judge, who had presided over the case for over six years at the time of the second trial. The trial court also acknowledged the case would end up before the Court of Appeals regardless, finding that “[g]ranting a new trial would be the longest route to get to the same destination.”4 These appeals followed. Further facts will be developed as necessary. II. Subject Matter Jurisdiction At oral arguments, Appellants for the first time raised the issue of subject matter jurisdiction. Appellants alleged that Metro’s Motion for Reconsideration, the motion which led to the trial court reinstating the jury verdict that had previously been vacated when the trial court granted Appellants’ Motion for a New Trial, was improper and untimely. Appellants argued that Metro was required to have appealed the order granting Appellants a new trial, and the failure 3 See Order entered November 27, 2023. 4 See Order entered August 30, 2024, at page 2. -10- of Metro to do so within the appropriate time frame precluded the trial court from granting Metro’s Motion for Reconsideration. “An appellate court ‘is without authority to review issues not raised in or decided by the trial court.’” Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 734 (Ky. 2009) (quoting Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989)). For this reason, it has long been the policy of Kentucky’s appellate courts to find that specific errors not raised before the trial court but brought to light in the final minutes of rebuttal during oral argument will not support a favorable ruling on appeal. See Commonwealth v. Steadman, 411 S.W.3d 717, 724 (Ky. 2013) (quoting Fischer v. Fischer, 348 S.W.3d 582, 588 (Ky. 2011)). Nevertheless, questions of subject matter jurisdiction are the “lone exception” to this rule. Id. In support of their argument, Appellants presented this Court with the case of Crowe v. Crowe, 95 S.W.2d 251 (Ky. 1936). In Crowe, the highest court of the Commonwealth stated “that in a proceeding under section 518 of the Civil Code of Practice, an order vacating a judgment and granting a new trial is a final order from which an appeal will lie.” Id. at 252. We first note that Kentucky courts have not been governed by the Civil Code of Practice since July 1, 1953. See Howard v. Miller, 685 S.W.2d 548 (Ky. 1985). Since the implementation of Kentucky’s Uniform Rules of Civil Procedure (CR), “[t]he rule is that an order -11- either sustaining or denying a motion for a new trial authorized by CR 59.01 is not a final order and is not appealable as such[.]” Hardin v. Waddell, 316 S.W.2d 367, 368 (Ky. 1958). Furthermore, “[w]hether a court has [subject matter] jurisdiction is determined at the beginning of a case, based on the type of case presented. . . . Thus, a court ‘will retain jurisdiction over such a case so long as jurisdiction was proper in the first place.’” Steadman, 411 S.W.3d at 722 (quoting Leonard v. Commonwealth, 279 S.W.3d 151, 156 (Ky. 2009)). “Indeed, once a court has acquired jurisdiction, no subsequent error or irregularity will remove that jurisdiction[.]” Id. (quoting Commonwealth v. Adkins, 29 S.W.3d 793, 795 (Ky. 2000)). Therefore, Appellants have raised a question over the trial court’s exercise of jurisdiction in this particular case which does not invoke subject matter jurisdiction, “[a]nd [particular case] jurisdiction is subject to waiver.” Id. at 724. Though we find no error based on Appellants’ misstatement of the law, we also find any alleged irregularity has been waived by Appellants’ failure to raise the issue before the trial court. III. Standard of Review These appeals contain numerous arguments subject to varying standards of review. SWAT1 claims it is entitled to a new trial. Generally, a trial court’s denial of a motion for a new trial is reviewed under an abuse of discretion -12- standard. Brown v. Commonwealth, 174 S.W.3d 421, 428 (Ky. 2005). SWAT1 insists a new trial is appropriate based on what it alleges were erroneous jury instructions. This argument is reiterated by SWAT2 as applicable to future litigation. “Alleged errors regarding jury instructions are considered questions of law that [appellate courts] examine under a de novo standard of review.” Hamilton v. CSX Transp., Inc., 208 S.W.3d 272, 275 (Ky. App. 2006) (citations omitted). When examining jury instructions for error, the instructions must be read as a whole. Bills v. Commonwealth, 851 S.W.2d 466, 471 (Ky. 1993). Appellants also allege numerous evidentiary errors. “The standard of review on evidentiary issues is abuse of discretion.” Leach v. Commonwealth, 571 S.W.3d 550, 553 (Ky. 2019) (citations omitted). Additionally, Appellants claim the trial court erred in denying their motions for summary judgment. The particular standard for appellate review of denial of a motion for summary judgment is discussed in greater detail infra. Metro essentially makes the same argument as Appellants in that its motions for summary judgment should have been granted, particularly as related to the breach of contract claims. IV. Analysis Central to Appellants’ arguments is an administrative regulation that expired in 2020: 803 KAR5 1:065. The current applicable regulation, 803 KAR 5 Kentucky Administrative Regulations. -13- 1:067, specifically substitutes the previous regulation’s text with language used by the United States Department of Labor in 29 C.F.R.6 §§ 785.14 through 785.17. However, the relevant language is identical between the expired regulation and the federal counterparts incorporated by reference in the current regulation. We refer to the prior regulation, though expired, for consistency with the trial court’s rulings and the arguments presented to both the trial court and this Court. To be clear, the parties have not disputed the applicability of the regulation which states, in relevant part, as follows: Section 3. Waiting Time. (1) General. Whether waiting time is worked under the act depends upon particular circumstances. The determination involves scrutiny and construction of the agreements between particular parties, appraisal of their practical construction of the working agreement by conduct, consideration of the nature of the service, and its relation to the waiting time, and all of the circumstances. Facts may show that the employee was engaged to wait, or they show that he waited to be engaged. Such questions must be determined in accordance with common sense and the general concept of work or employment. (2) On duty. A stenographer who reads a book while waiting for dictation, a messenger who works a crossword puzzle while awaiting assignments, fireman who plays checkers while waiting for alarms and a factory worker who talks to his fellow employees while waiting for machinery to be repaired are all working during their period of inactivity. The rule also applies to 6 Code of Federal Regulations. -14- employees who work away from the plan. For example, a repair man is working while he waits for his employer’s customer to get the premises in readiness. The time is worktime even though the employee is allowed to leave the premises or the job site during such periods of inactivity. The periods during which these occur are unpredictable. They are usually of short duration. In either event the employee is unable to use the time effectively for his own purpose. It belongs to and is controlled by the employer. In all of these cases waiting is an integral part of the job. The employee is engaged to wait. (3) Off duty. (a) Period during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked. He is not completely relieved from duty and cannot use the time effectively for his own purposes unless he is definitely told in advance that he may leave the job and that he will not have to commence work until a definitely specified hour has arrived. Whether the time is long enough to enable him to use the time effectively for his own purposes depends upon all of the facts and circumstances of the case. (b) A truck driver who has to wait at or near the job site for goods to be loaded is working during the loading period. If the driver reaches his destination and while awaiting the return trip is required to take care of his employer’s property, he is also working while waiting. In both cases the employee is engaged to wait. Waiting is an integral part of the job. On the other hand, -15- for example, if the truck driver is sent from Louisville to Paducah, leaving at 9 a.m. and arriving at 2 p.m., and is completely and specifically relieved from all duty until 8 p.m. when he again goes on duty for the return trip, the idle time is not working time.[7] He is waiting to be engaged. (4) On-call time. An employee who is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while on call. An employee who is not required to remain on the employer’s premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call. (Emphasis added.) With the regulation in mind, we turn to Appellants’ arguments. A. Jury Instructions SWAT1 argues the jury instructions pertaining to their wage and hour claim at trial were erroneous because the trial court failed to instruct the jury on the requirements for an employee to be off duty. SWAT2 also argues the jury instructions were erroneous and need to be corrected for future trials. As a general matter, we note Appellants’ arguments ignore § 3(4) of the regulation pertaining to on-call time as a distinct category of waiting time in the regulation. Rather, they present a novel, albeit muddled, interpretation by focusing on whether SWAT 7 29 C.F.R. § 785.16(b) uses a different example of destination cities and times; however, such difference is immaterial to the thrust of the example. -16- Team Members were off duty while being on-call. We disagree with Appellants’ interpretation of the regulation, including how it should have been presented to the jury in the form of instructions. We recognize that “[u]nder Kentucky law, administrative regulations have the full force and effect of law when duly enacted and consistent with enabling legislation.” Hughes v. UPS Supply Chain Sols., Inc., 677 S.W.3d 273, 280 (Ky. 2023) (citation omitted). Further, the purpose of jury instructions is to give direction to the jury in their deliberations so that the members are able to arrive at a correct verdict. Thus, “[i]f the statements of law contained in the instructions are substantially correct, they will not be condemned as prejudicial unless they are calculated to mislead the jury.” Ballback’s Adm’r v. Boland–Maloney Lumber Co., 306 Ky. 647, 652–53, 208 S.W.2d 940, 943 (Ky. 1948). Mendez v. University of Kentucky Bd. of Trs., 357 S.W.3d 534, 539 (Ky. App. 2011). We agree with Metro that it is appropriate to look to federal law for guidance, particularly because the current Kentucky regulation (803 KAR 1:067) refers directly to the federal counterparts, which include citations to federal caselaw within the regulations. See also Hughes, 677 S.W.3d at 280 (acknowledging “[t]he longstanding similarities between KRS Chapter 337’s administrative regulations and their federal counterparts”). Further, SWAT1’s proposed jury instructions filed with the trial court cite to both the regulation at -17- issue and to opinions of the United States Supreme Court. While published Kentucky caselaw is scant, this Court has recognized, in order to determine if an employee’s on-call time is compensable, [t]he pertinent sections of 803 KAR 1:065 provide that employees shall be compensated while “on-call”, if they are so restricted as not to be able to use their time effectively for their own purposes. The regulation also provides that “an employee who is not required to remain on the employer’s premises, but is merely required to leave word at his home or with company officials where he may be reached is not working while ‘on-call.’” Spellman v. Fiscal Ct. of Jefferson Cnty., 574 S.W.2d 342, 343 (Ky. App. 1978). Similarly, federal caselaw instructs that [a]n employee must be compensated for on call time spent “predominantly for the employer’s benefit.” [Aiken v. City of Memphis, Tennessee, 190 F.3d 753, 760 (6th Cir. 1999)]. “[T]he question in on-call cases is whether the employer’s restrictions on [its employees’] time prevent the employees from effectively using the time for personal pursuits.” Id. To be considered work time, an employee’s on-call time must be “severely restricted.” Id. This determination is fact-specific, and the circumstances of each case must be considered. Id. “The fact that some of the plaintiffs’ activities have been affected by the policy is not sufficient to make the on-call time compensable. The plaintiffs must show that the policy is so onerous as to prevent them from effectively using their free time for personal pursuits.” Martin v. Ohio Turnpike Comm’n, 968 F.2d 606, 611 (6th Cir. 1992). Rutlin v. Prime Succession, Inc., 220 F.3d 737, 743–44 (6th Cir. 2000) (footnote omitted). -18- The relevant instructions provided to the jury by the trial court are as follows: INSTRUCTION NUMBER 2 The purpose of this trial, and your duty as jurors, is to determine whether the six Plaintiffs, Eric S. Culver, Larry Dale Massey, Jr., William D. Pearson, III, Jason Poston, Brent Routzahn, and Scott Gregory Walker (hereinafter collectively, “Plaintiffs”), were working when on-call for the Louisville Metro Police Department as members of the [SWAT] Team, by Defendant, [Metro]. If you determine that Plaintiffs were working while on-call with the SWAT Team, then they are required to be compensated for such time. An employer cannot accept the benefits of an employee’s work without compensation. .... INSTRUCTION NUMBER 4 WAGE AND HOUR CLAIM You will find for Plaintiffs under this Instruction if, and only if, you are satisfied from the evidence that: A. The on-call assignment on the SWAT Team was predominantly for [Metro’s], and not Plaintiffs’, benefit; AND B. The on-call assignments for each Plaintiff were so restrictive that he could not use his time effectively for his own purposes. These questions must be answered for each Plaintiff. -19- For purposes of determining whether a Plaintiff’s free time is “severely restricted,” you may consider the following factors: (1) the frequency of calls to the on- call Plaintiff; (2) geographical restrictions on each Plaintiff’s movements; (3) the restrictiveness of fixed time limits for response; (4) the subjection to discipline in the event of a late or no response from the on-call Plaintiff; (5) the on-call Plaintiff’s ability to trade his responsibilities with another co-worker; (6) the on-call Plaintiff’s actual pursuit of, or engagement in, personal activities, including secondary employment; and (7) the on-call assignments did not provide a definitive time in advance that Plaintiffs may leave the job and did not tell Plaintiffs that they would not have to report to work until a definite time. Appellants argue that Instruction 4(B)(7) should have been front and center in the jury instructions, not just listed as a factor that jurors may consider. Notably, in closing arguments, counsel for SWAT1 had an opportunity to and did emphasize Instruction 4(B)(7) and told the jury that it alone was determinative of the entire case. However, Appellants have not cited a single case, either in Kentucky or from the federal courts, that requires an employer must “provide a definitive time in advance that an employee may leave the job and tell the employee they would not have to report to work until a definite time” for employees who are on-call. 803 KAR 1:065 § 3(3)(a) contains this language for determination of whether an employee is off duty, but the question presented is not whether SWAT1 was off duty, but rather if they were working while on-call. The regulation provides distinct and clear categories for on duty, off duty, and on-call. -20- Providing a definitive time in advance that an employee may leave the job and telling the employee they would not have to report to work until a definite time is criteria for being off duty, not on-call. The nature of being on-call, particularly for those in law enforcement, is that one is available to respond to unforeseen and unpredictable situations. Aside from the service of warrants that may be coordinated with other departments to occur at a certain time, there is simply no way of knowing at what point or where SWAT Team members will be needed in the Louisville Metro area. By Appellants’ reasoning, SWAT Team members would be on duty around the clock for one-half of the year because there is no way to assure them that they will need to report to work at a definitive time while on- call. This uncertainty is simply the reality of being on-call. Appellants also argue the trial court erred because it did not instruct the jury to find for SWAT1 if it determined that on-call status is predominately for the benefit of Metro. This argument is refuted simply by looking at the face of Instruction 4(A), supra. However, Appellants argue the error lies in the fact that the trial court included the additional requirement that “[t]he on-call assignments for each Plaintiff were so restrictive that he could not use his free time effectively for his own purposes.” See Jury Instruction 4(B). The instruction properly reflected 803 KAR 1:065 § 3(4) and relevant law. Moreover, SWAT1’s -21- Instruction No. 1, filed in the trial court by SWAT1 on May 31, 2022, provides, in relevant part only (A) [Metro] did not tell them in advance that they were off the job and would not have to commence work again until a definitely specified time . . . . If you so determine, each Plaintiff will have remained “on duty” while assigned to being on-call . . . and was working for [Metro]. (B) Whether their on-call assignment as a SWAT Team member is predominately for the benefit of [Metro] by engaging each Plaintiff to wait and prepare to serve . . . . If you so determine, each Plaintiff while assigned to being on-call was working for [Metro]. (C) Whether on-call assignments to each Plaintiff are so restrictive that they cannot use the time effectively for their own purposes. [803 KAR 1:065 [§] 3(4); see also Ford Motor Credit Co. v. Milhollin, 444 U.S. 555-56, 100 S. Ct. 790, 792, 63 L. Ed. 2d 22 (1980)]. If you so determine, each Plaintiff while assigned to being on-call was working for Metro. In other words, SWAT1’s proposed jury instructions contain precisely the language they now say was erroneous. In closing arguments, counsel for SWAT1 also stated she agreed with Metro that Jury Instruction 4(B) was the “key” to the entire case. Video Record (VR) 7/29/22 at 10:44:02. Appellants’ argument is without merit and we discern no error. Metro has never denied that they did not provide a definitive time in advance that on-call SWAT Team members could leave the job and not have to report back to work until a definite time. There was simply no way Metro could -22- have provided those assurances because the officers were on-call, not off duty. Moreover, it would have been improper to instruct the jury as to whether SWAT1 was off duty while on-call because on-call and off duty are two separate and distinct categories (i.e., they can either be off duty or on-call, but not both). The jury instructions provided by the trial court reflect the regulation and applicable law to determine whether Appellants were working while on-call. Specifically, whether the time spent on-call was predominantly for the benefit of Metro (see Aiken, 190 F.3d at 760; Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S. Ct. 165, 168, 89 L. Ed. 118 (1944)) and whether the on-call assignments were so restrictive that each member of SWAT1 could not use his time effectively for his own purpose. See 803 KAR 1:065 § 3(4); Spellman, 574 S.W.2d at 343; Rutlin, 220 F.3d at 743–44. The factors listed by the trial court, with the exception of 4(B)(7), provided optional guidelines, based on the evidence presented and the applicable law, as to whether the time spent on-call was so severely restricted that it prevented those on SWAT1 from using the time effectively for their own purposes. The fact that the trial court included the off-duty language as a factor the jury may consider was error, but it was harmless and likely worked in favor of SWAT1, although the ultimate verdict did not. -23- B. Evidentiary Issues Appellants allege the trial court erred by allowing entry of an “overwhelming” amount of irrelevant and prejudicial evidence. We disagree. 1. Evidence and commentary regarding potential financial and tax consequences of a verdict in favor of SWAT1 Appellants argue it was error for the trial court to allow proof of the amount of damages sought by all SWAT Team members in the lawsuit (approximately $150,000,000) instead of only the amounts sought by each individual officer in SWAT1. Second, Appellants argue the trial court impermissibly allowed Metro to introduce evidence and commentary during opening and closing arguments that reinforced the fact the jurors, as taxpayers, would ultimately be responsible for the financial consequences of any verdict in favor of SWAT1. Finally, Appellants assert the trial court erred by allowing evidence regarding the potential financial impact to Metro in the event of a jury verdict. We begin by noting that at the post-trial hearing on Metro’s motion to reconsider the trial court’s order for a new trial, counsel for Metro argued the prior judge allowed Appellants to choose six SWAT members to be the first to bring their claims before the jury (i.e., SWAT1) and testify that they would accept 25% of their individual damages in exchange for allowing Metro to introduce evidence of the entire amount of damages sought (i.e., excess of $150,000,000). However, -24- we could find no order in the record to that end, and none has been cited. We agree the trial court ruled numerous times from the bench that the jury was entitled to know the full extent of what was at stake in terms of damages, but we find nothing in the record to support it was “in exchange” for anything else. During voir dire on July 19, 2022, counsel for SWAT1 gave a hypothetical situation to potential jurors citing a $500,000 judgment. She then stated: What if someone in the jury room says, “Well, the city’s going to have to pay that judgment.” And someone else in the jury room says, “Hey wait a minute, I’m a tax payer of the city of Louisville. I don’t want to give a judgment that I’m going to have to pay because they’re going to raise my taxes.” Do you see why I would be worried about that as the attorney representing the police officers on the SWAT team? This is a tough question. Tough. Are you going to write down a lower verdict because of the concern that your portion of the percentage of the verdict might come out of your pocket? It’s okay to say yes. There are a lot of people who say, “Oh my god, I’m not paying that judgment.” But if you’re going to say yes, I need to know because you might not be the right juror for this case. Think about it. VR 7/19/22 beginning at 1:47:20. Counsel then singled out a couple of potential jurors, both of whom said they would do what was right based on the evidence. No one else indicated they would have a problem paying any potential verdict because it might increase taxes or affect them as taxpayers. Nevertheless, Appellants now argue the verdict -25- was rendered based upon the jury’s fear of potential combined verdicts of over $150,000,000 and what that will do to taxes. Appellants are implicitly asserting the potential jurors were not honest in their voir dire responses and were swayed by the potential amount of combined verdicts should the SWAT Team be successful in their claims. “To obtain a new trial because of juror mendacity, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” Adkins v. Commonwealth, 96 S.W.3d 779, 796 (Ky. 2003) (internal quotation marks and citations omitted). Appellants have provided no evidence whatsoever that jurors, as taxpayers, were dishonest in their voir dire responses and were swayed by a potentially large verdict despite answering otherwise. Further, we cannot say the trial court abused its discretion by letting the jurors know the full extent of damages sought by all SWAT Team members, not just the six in front of them. As was pointed out by the trial judge, the case had been in the local news numerous times and she believed the jury deserved to know the full picture. However, other SWAT Team members’ names were redacted from trial exhibits, as well as the individual amounts they were seeking. The $150,000,000 came from an itemization of damages filed by Appellants in October 2020. It also helped to give context to the jury. On the one hand, SWAT1 argued -26- extensively that Metro could not accept free labor (included in Jury Instruction No. 2, supra), yet on the other hand, every SWAT1 officer testified they would accept just 25% of what they claimed they are owed by Metro, which essentially amounts