Case Notes: Plaintiff prevails in excluding evidence at trial but loses $1.9 million verdict on appeal when it should have come in – Motorists Mutual Ins. Co. vs. Gypsie Thacker (COA, NPO 2/6/2015)

Adair Court House, built 1886 but with enlarged portion.  Image provided courtesy of Keith Vincent -

Adair Court House, built 1886 but with enlarged portion. Image provided courtesy of Keith Vincent –

Trying cases is tough.  You are in the arena which can seem like a war zone, making decisions in a blink of an eye, but always keeping the other eye looking to preserve errors for appeal so when the case is “tried” again on appeal.

However, this preservation of error can, and does, carry with it the potential of cutting both ways.  Plaintiff’s attorney, in this case, kept out the unfavorable evidence, the trial judge agreed, but the three judge panel from the Court of Appeals deemed otherwise, and ruled against the Plaintiff.

With nearly $2 million at stake, this is not over at the appellate level.  A petition for rehearing has been filed as of February 24, 2015 with no decision made as of the time of this post, and after that, let us not forget a Motion for Discretionary Review (MDR).

For those curious about the appellate jousting, click here for the case information page at the Court of Appeals on this case.

For the techno-curious and who might even be interested in some shape or fashion including links to case information at the COA or SC in their own web sites or blogs, here are two little behind the scene tricks I am willing to share with you:

All you need do is insert the case number minus the hyphens for your case at the point noted by italics above and copy into your browser or in your “link”.

Ditto for the insertion of case number.

Here is a squib of the decision followed by extracts, then links to the full text at the AOC.  Click on continue reading to, uh uh, continue reading.

In Motorists Mutual Ins. Co. vs. Gypsie Thacker (NPO), the Court of Appeals reversed and remanded a $1.9 million verdict for an uninsured motorist benefits suit from a Florida car accident when the trial court ruled in Plaintiff’s favor and denied defendant insurer access to plaintiff’s psychotherapy records after judge’s in camera review.  The trial judge ruled there was no information relevant to injury plaintiff’s claims nor would it lead to discovery of relevant evidence.   Thus, you can win the battle but lose the war.

Motorists Mutual Ins. Co. vs. Gypsie Thacker
Not Published COA, 2/6/2015
Opinion by Dixon Reversing and Remanding (Pike Cir Ct)
Caperton concurring and Combs concurring in result only

DIXON, JUDGE: Appellant, Motorists Mutual Insurance Company, appeals from a jury verdict awarding Appellee, Gypsie Thacker, over $1.9 million in underinsured motorist benefits for injuries she sustained in Florida. For the reasons set forth herein, we reverse the judgment of the trial court and remand the matter for a new trial in accordance with this opinion.

* * *

On appeal, Motorists Mutual argues that the trial court erred by: (1) refusing to give a sudden emergency instruction; (2) denying discovery of Thacker’s psychotherapy records; (3) allowing Thacker’s expert to testify regarding the speed of Higgins’ vehicle; (4) precluding its request for a CR 35 examination by a rheumatologist; (5) permitting Thacker to introduce Detective Keith Medeiros’ opinion that someone in Higgins’ situation would apply maximum breaking and stop immediately; (6) excluding evidence of an alternative route; (7) permitting Thacker to introduce evidence that its reconstructionist did not have a Kentucky license; (8) precluding evidence from Thacker’s divorce pleadings; and (9) not dismissing as a matter of law Thacker’s claims for violation of the Consumer Protection Act, bad faith, and for punitive damages. After reviewing the record and applicable law, we conclude that Motorists Mutual was entitled to discover Thacker’s psychotherapy records and that the denial of such warrants a new trial.

[However, we will address just the issue resulting in the reversal, the psychotherapy records.]

Motorists Mutual’s first claim of error concerns the trial court’s denial of access to Thacker’s psychotherapy records. Specifically, Thacker had been treated both before and after the accident in question by Michael Spare, a psychotherapist. After the accident, Spare referred Thacker to Dr. Clayton Hall, a psychiatrist, for treatment. Dr. Hall started treating her for depression, posttraumatic stress disorder, and anxiety disorder allegedly related to the accident. -3-As such, during the course of discovery, Motorists Mutual attempted to obtain Thacker’s mental health records. However, her attorney filed a motion to quash the subpoena of Spare’s psychotherapy records and a motion for a protective order. The trial court subsequently conducted an in camera review of Spare’s records and entered a protective order denying discovery on the basis that the records did not contain information relevant to Thacker’s claims, nor would they lead to discovery of relevant evidence.

On appeal, Motorists Mutual contends that because Spare was the only psychotherapist who treated Thacker both before and after the accident, his treatment records were necessary to thoroughly assess her pre-injury and postinjury mental status. Motorists Mutual points out that Thacker’s expert, Dr. Robert Granacher, testified that the accident aggravated her pre-existing depression and caused a permanent psychiatric impairment that prevented her from working. * * *

Thacker, on the other hand, claims that the records in question centered on the treatment of her son’s substance abuse, not her mental health. Further, Thacker argues that her psychotherapy records are privileged under KRE -4-507 and that any information contained in the records is “so inextricably intertwined with the privileged communications of her family members that her personal information could not be divulged without infringing upon the privilege relating to the communications of other family members . . . .” * * *

KRE 507, which governs the psychotherapist-patient privilege, provides, in relevant part:

A patient, or the patient’s authorized representative, has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purpose of diagnosis or treatment of the patient’s mental condition, between the patient, the patient’s psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient’s family. KRE 507(b).

Significantly, however, KRE 507(c)(3) provides that there is no privilege under the rule for any relevant communications “[i]f the patient is asserting that patient’s mental condition as an element of a claim or defense, or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of a claim or defense.”

In Dudley v. Stephens, 338 S.W.3d 774 (Ky. 2011), our Supreme Court held that a defendant has the right to discovery of mental health records, if relevant, when a plaintiff has made a claim for mental distress:

Appellant’s claim for mental pain caused by the alleged negligence, put into question her mental state at the time the medical treatment occurred. It would be fundamentally unfair to permit Appellant to allege and prove mental anguish caused by the negligence while denying the Real Parties in Interest from reviewing her mental health records for the possibility of pre-existing mental conditions. Id. at 776.

The Dudley Court noted that psychotherapy records may be discoverable even when a plaintiff is seeking damages for “garden variety’ emotional distress.” Id.

Although the trial court herein made no mention of privilege under KRE 507, this is precisely the type of evidence that would be discoverable under Dudley. Further, we have carefully reviewed Spare’s records and must conclude that, contrary to the trial court’s ruling, the records are directly relevant to Thacker’s claims and Motorists Mutual was entitled to discovery of such. Accordingly, the trial court’s denial of discovery was an abuse of discretion and warrants a new trial. Because we are remanding for a new trial, we will also address those issues that are likely to recur.

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