¶1concurring.
¶2I concur with the result achieved by the majority on the basis that there is a manifest injustice resulting from a palpable error. As I stated in my dissenting opinion in Deemer v. Finger, 817 S.W.2d 435 rendered by this Court August 29, 1991, this Court has broken new ground in regard to rehearing as provided by CR 76.32, in that it now applies a manifest injustice or palpable error standard in interpreting the opening phrase of the rule, “Except in extraordinary cases where justice demands it ...” It is refreshing to see the development of a manifest injustice standard, and it is useful to the legal profession as a whole to recognize the availability of such a philosophy.
¶3In this case, this Court unanimously affirmed the decision of the Court of Appeals in a memorandum opinion rendered March 14, 1991. A review of that unpublished memorandum opinion indicates that all issues were considered at that time. Now this Court unanimously has changed its mind on the basis of manifest injustice.
¶4The critical issue in the motion to reopen is the allegedly newly discovered evidence consisting of a report by Dr. Love concerning a tear in the right shoulder rotator cuff. Customarily, newly discovered evidence sufficient to sustain a motion to reopen must be such evidence as will affect the ultimate outcome, which evidence could not have been discovered by due diligence and presented for consideration prior to the ultimate decision. Massey v. McKinley, Ky.App., 690 S.W.2d 131 (1985).
¶5In any event, for the reasons stated above, I concur with the result achieved by the majority.