Case Note: Ronald Eggemeyer vs. Dr. Ted H. Jefferson, COA, Published 6/12/2015

Mistrial granted when insurance defense lawyer repeately disobeys trial judge's order on defenses AND second mistrial in med mal case following defense misconduct

COAPanel.Lambert.Jones.Acree

Court of Appeals Judges Lambert, Jones and Acree

Ronald Eggemeyer vs. Dr. Ted H. Jefferson, COA, Published 6/12/2015

[Editor’s note: This decision reflects a major miscarriage of justice which will result in a third trial on a medical negligence issue.  It is a worthy read and should be an eye-0pener to insurance companies and judges alike on the abusive techniques that a defense lawyer feels free to take.  Judge James Lambert wrote a well-reasoned and clearly delineated opinion, joined by Judge Jones, with a dissent by Judge Acree invoking the name of Henry Clay reading a the new trial standard as unchanged over the years as the starting point that an abuse of discretion is relative and did not occur in the case sub judice.  Of course,  I am reminded of more sound legal thought than Henry Clay simply opening a book; wisdom that can be found in the jurisprudential thought of Oliver Wendell Holmes, to wit:

“It is something to show that the consistence of a system requires a particular resuly, but it is not all.  The life of the law has not been logic; it has been experience.  The felt necessities of the of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.” O.W. Holmes, Jr., The Common Law, 1881, page 1.

Keep in mind further that the events that transpired in this case have broader applicability because at the heart of the order was that the defense could not profit from the taking of proof by a mistrial it had caused and thus use this additional time to build up their defense.  Nothing in this opinion questioned the legitimate ends of the trial judge’s order forbidding the defense to from using new evidence, theories, defenses, etc.

Now compare this to you having a trial date, and you are meeting all the pretrial deadlines, to include expert disclosures, then one side or the other asks for a continuance with a new trial date. Should the person seeking the continuance be allowed a new set of pre-trial deadlines or should those deadlines be frozen in time and/or requiring the party or parties to meet those deadlines as stated based upon the original trial date and the only change being the pretrial and trial dates?  Or your trial date gets bumped by the court’s crowded docket?  Just a thought.]

The appeal was before Chief Judge Acree and Judges Lambert and Jones with Judge Lambert writing the majority opinion, Acree dissenting, and Jones concurring but adding a concurrence. The COA reversed and remanded.

Here we go (with all quotes from the actual opinion):

This is a medical malpractice case arising out of the underlying Defendant, Dr. Ted Jefferson’s, alleged failure to properly repair Eggemeyer’s broken arm by placing enough screws below the fracture site and by failing to diagnose a post-operative infection. The first trial in this case took place in August 2012. During that trial, Dr. Jefferson violated the court’s instructions and orders by repeatedly referring to Eggemeyer’s medical insurance. The trial court declared a mistrial and held Dr. Jefferson in contempt, but did not make a determination of the sanctions until after the second trial.

* * *

Additionally, after the mistrial, the Court instructed counsel that the case would be retried as it now sits. There would be no new experts or theories or anything else that was not disclosed in the first trial. This was in an effort to keep the costs to a minimum and to shorten any delay in retrying the case.

Following the mistrial, Dr. Jefferson replaced attorney E. Frederick Straub with attorneys Scott Whonsetler and Jeffery Thompson.  Plaintiff then renewed the above motion at a pre-trial conference, and the court reiterated its position and the new “Defense counsel stated that they would abide by this ruling.”  Defense counsel did not, and plaintiff submitted a brief address 12 of the most egregious errors etc., and following a hearing the Judge Craig Clymer issued the following oral ruling (followed by a written order):

And I mean not even get up and tiptoeing to the line. Because, this is a pretty egregious violation of the rules, and it’s an ambush. And, particularly I think when we were sitting there yesterday talking about this and saying no new issues of legal liability in this case, I think you’re sitting there and you knew that you were going to do this. And, we couldn’t pull it out of you. And you stand up in front of that jury and tell them that, you completely went against the ruling of the Court, in doing that. And so, I don’t know…I don’t know what the outcome is going to be right now other than I’m going to be watching to make sure we don’t get anywhere near any of that. And, Dr. Jefferson as well. Now, you may be asking some question and, if Dr. Jefferson believes he’s going to bring that in, I have no problem at all with enforcing the Court Order by either a civil contempt, or a criminal contempt. And the civil contempt or criminal, either one can be by imposing fines or it can be jail. And, I don’t tend to try this case another time. And so, ya’ll [indicating Whonsettler and Dr. Jefferson] need to get your act together on this. And, if I hear anything, I don’t have time to go through all of these things and say, “Ok, We can’t do this. We can’t do that.” This is all stuff that should’ve been handled by reputable attorneys, ethical attorneys, a long time ago. That here’s what this trial is going to be about, and we understand. Maybe I just have the luxury of dealing with attorneys who play fairly and by the rules, and I don’t have these problems.

And defense counsel, still failed to follow this order –

During closing arguments, Mr. Whonsetler again referenced Dr. Jefferson placing “three screws below the fracture line.” Eggemeyer again objected and the trial court ruled from the bench, “And I just know now, again, you have violated a Court order in this case.” The court admonished the jury to disregard the statement. Undeterred, Mr. Whonsetler immediately turned to the jury and said, “Ladies and Gentlemen, you will have the x-rays. Take a look and you will see that below the fracture line there are three screws that go from cortices to cortices. The cortices are the white portion of the bone, at either side of the bone and you will see that. You can measure it up against the original film and you will see that it is beneath the fracture line.” Eggemyer objected again, and the objection was sustained; however, counsel was not permitted to approach and no admonition was given. The court stated, “Just go on to something else. I’ll decide how we’ll handle that.”

The jury returned a defense verdict, and the plaintiff appealed claiming the trial court abused its discretion denying his motion for a new trial.  Dr. Jefferson cross-appealed the award of sanctions against him for attorney’s fees of $58,858.82 (and the court stating these were because of Dr. Jefferson’s direct defiance of its orders throughout the first trial).

[Editor’s note: Nothing in the appeal showed defense counsel attempting to preserve these issues by an avowal.]

As the Court of Appeals held:

We agree with Eggemeyer that CR 59.01 is absolutely designed to prevent the conduct that occurred in the instant case. The trial court clearly and unequivocally ruled, after first declaring a mistrial, that the second trial would not be an opportunity for the defense to present new theories or evidence. In fact, the trial court explicitly prohibited the defense from presenting the exact evidence and theories they attempted to get in during the first trial. While Dr. Jefferson attempts to couch this as an innocent mistake of the trial court’s meaning in his brief to this Court, we are not persuaded. Instead, we agree with the trial court that defense counsel attempted to ambush Eggemeyer and directly violated specific repeated orders of the Court. The record reflects a clear intent by defense to proceed however they pleased, in direct contradiction of the trial court’s instructions and in direct contradiction of the promises they made to the court prior to the beginning of the second trial.

To be clear, we hold that the trial court’s failure to grant Eggemeyer a new trial was an absolute abuse of discretion, and we find palpable error under CR 61.02. [emphasis added].

With regard to the sanctions, the Court of Appeals held:

Dr. Jefferson argues that the amount of sanctions was excessive, contending that Eggemeyer’s counsel was likely paid on a contingency basis. A review of the record indicates that the trial court considered the amount of sanctions and lowered the amount from that originally requested by Eggemeyer. We do not find the sanctions to be excessive and will not disturb them on appeal.  * * *

Judge Jones joined in the majority opinion and filed a separate concurring opinion–

I join in the majority opinion, but write separately because I do not believe that it was necessary for the majority to engage in a palpable error review. The palpable error standard is reserved for review of unpreserved errors. I believe that Eggemeyer preserved the new trial issue making palpable error review unnecessary.

Eggemeyer objected throughout the trial to argument and evidence concerning the new theories. Despite being repeatedly instructed to avoid those issues, defense counsel persisted in inserting those issues into the trial from the beginning to the end of the trial. While each isolated incident may not have been enough to warrant a new trial, the cumulative effect of repeatedly hearing those -15- theories referred to throughout trial, without a stronger admonition from the court, cannot be ignored. Indeed, the statements so infected the trial one wonders whether any admonition would have been effective to cure the prejudice.

“This court has condemned, in every instance when it has been brought to its attention, statements made by counsel not supported by the record, and where such statements are persisted in, and a party recovers a verdict when it is reasonably inferable that the improper statements affected the minds of the jury, the judgment should not be allowed to stand.” Connecticut Fire Ins. Co. v. Colker, 16 S.W.2d 761, 762 (Ky. 1929).

Judge Acree’s dissent wiped away the cobwebs from the books as he referenced the statute from the 1851 Code, raised the name of Henry Clay, and compared the code to what was then to what is now with a heavy reliance upon the trial judge’s discretion.  In fact, cases granting the trial judge “wide legal discretion” and “very strong reasons for granting a new trial” from 1984 and 1952, respectively came to the forefront of his analysis.  Judge Acree then states “Nothing in our jurisprudence suggests we are today less reluctant to find abuse of a trial court’s discretion on this issue. That discretion is my touchstone.”

The dissent then gets confusing from this point forward when Acree refers to legal authority stating

Where an attorney “‘deliberately go[es] outside the record in the jury argument and make[s] statements, directly or 3 The motion was made and granted in open court but the order was entered on November 19, 2012, after the jury deliberated following the second trial. -20- inferentially, which are calculated to improperly influence the jury,’ . . . prejudice . . . may be presumed.” Smith v. McMillan, 841 S.W.2d 172, 175 (Ky. 1992) (quoting Louisville & N.R. Co. v. Gregory, 144 S.W.2d 519, 522 (Ky. 1940)). But what, in practice, does this “presumed prejudice” mean?

* * *

Prejudice varies by degree.

* * *

Skilled practitioners make use of the variability of presumed prejudice as part of their trial strategy. While a counsel’s reference to facts not in evidence occurs accidentally from time to time, 4 it would be naïve to presume it is never the result of counsel’s conscious decision and intentional act. How far to push this envelope is trial strategy. How opposing counsel reacts is also trial strategy. While all improper argument will justify sustaining an objection to it, the offense may be so slight that opposing counsel, as a matter of trial strategy, will choose not to object 5 or, if she does object, will choose not to follow up by requesting an admonition.6 Counsel must weigh both the effectiveness and impropriety of an argument before requesting an admonition, knowing that the admonition will repeat and even showcase it.

The remainder of the dissent then seems to bounce around trial strategy and the use of objections and admonitions.  “At this point, again, strategy comes into play. Counsel objecting to the improper closing must decide whether to move for a mistrial, i.e., ask the trial court to discharge the jury before a verdict is ever reached. However, doing so has an effect similar to objecting or seeking an admonition – it brings further attention to the improper comments. Counsel must then undertake an analysis similar to that just outlined. ”

And, the concluding paragraph of the dissent goes – –

Though the case before us may be closer than others, I simply do not see “very strong reasons for granting a new trial [or] reasonable certainty that injustice or wrong would result” by affirming the trial court’s exercise of discretion here. Gray v. Sawyer, 247 S.W.2d 496, 498 (Ky. 1952). Clear it was that the trial court did not appreciate the liberties taken and indiscretions exercised by Dr. Jefferson’s counsel. That is evident from the trial court’s rebukes and admonitions. But while the trial court sanctioned Dr. Jefferson by a separate order, the court did not sanction counsel for improper conduct. Because the trial judge was in a better position to make the determination whether a new trial was justified, and because this is not a case clearly justifying reversal of that determination, I would affirm.

[Editor’s Note:  It would seem that “trial by ambush” and repeatedly ignoring trial court orders goes beyond the pale of inadvertence and, in my opinion, strikes at the very heart of justice.  This is not gamesmanship where counsel’s abuse of the rules amounts to trial strategy which then forces opposing counsel to make trial strategy decisions in response to intentional misconduct.  The insurance lawyer, in this case of the second trial, did more than play fast and loose with the law and trial orders, he exhibited open defiance and disrespect which ambushed plaintiff’s counsel, and should not be characterized as boys will be boys.  Odd and unusual case, and while those on Olympus play, the mere mortals pay because with a third trial on the horizon it is beyond cavil that it now appears that justice delayed is nothing more than justice denied.  Those old equity principles have a moral foundation to them which should not escape their application to achieve the ends of  justice today.

Editor’s Note:  Why weren’t these issues raised by Whonsetler in the second trial raised by Straub in the first trial?]

Closing Argument – Counsel is Given Wide Latitude When Making Inferences from the Evidence in Addressing an Examining Physician’s Bias and Credibility Based on History of Testifying 3 or 4 times a year for plaintiff’s law firm

The following decision presents an interesting issue on the characterization of examining physicians used in negligence cases to address causation and injuries.  There are treating physicians, and there are “examining” physicians with the latter tending to fall in the camp of insurance lawyers and companies.  However, in this case the insurance defense lawyer made some interesting closing remarks to the jury.

 

Warsow v. Don Mohler and Kentucky Farm Bureau
COA NPO (NonPublished Opinion) 2/14/2014
Graves Circuit Court, Trial Judge Timothy C. Stark
COA Panel:  Acree, Jones and Vanmeter (All concur)

ACREE, CHIEF JUDGE: The question presented for our review is whether certain statements made by the defendant’s attorney during his closing argument impermissibly introduced information outside the record, thereby prejudicing the jury and resulting in an unfavorable verdict for the plaintiff. Finding they did not, we affirm.

The question presented for our review is whether certain statements made by the defendant’s attorney during his closing argument impermissibly introduced information outside the record, thereby prejudicing the jury and resulting in an unfavorable verdict for the plaintiff. Finding they did not, we affirm.

The argumentative language and opinion from the Insurance Defense lawyer representing Mohler attacked the bias of Plaintiff’s examining physician:

During a jury trial, Warsow presented the testimony of an examining physician, Dr. Emily Rayes-Prince, as evidence of the nature and extent of some of his injuries. Mohler’s attorney conducted cross-examination of Dr. Rayes-Prince, the following portion of which is relevant to the issue on appeal:

Q. Over the course of your practice in Paducah, do you have any idea how many – on how many occasions you’ve evaluated patients on behalf of [the] law firm [representing Warsow]?

A. Oh, I may do three in a year, three or four in a year.

Q. Okay. And you’ve practiced here for approximately 10 years or so?

A. No. No, not quite that long. And in my own practice, it’s been 7 years.

Q. Seven years?

A. Yeah.

Q. But over the course of those 7 years or so, you’d estimate that you evaluate someone on behalf of [the] firm [representing Warsow] maybe as many as three times per year?

A. Yeah. Not much more than that. -2-

Q. Okay, is there a way to describe for the jury how much or what proportion of your practice consists of performing medical evaluations?

A. Oh, less than 20 percent. Probably 10 or 15 percent.

Q. Okay. And of that 10 or 15 percent, is there a way to describe for the jury what percentage of the people you see are on behalf of plaintiffs in litigation versus defendants in litigation?

A. It’s probably about 60/40. Q. And 60 for plaintiff?
A. Yes.

During his closing argument, counsel for Mohler represented to the jury that Dr. Rayes-Prince’s testimony was unreliable because she was biased. He stated:

There, in my opinion, there are serious issues with Dr. Rayes-Prince’s credibility, not the least of which is that she – I won’t say she’s on staff with [the law firm representing Warsow], but her testimony is that she evaluates people . . . that [the] firm is representing three times a year, not much more than that, she testified, and has done so for the last seven years. [The law firm representing Warsow] uses Dr. Rayes-Prince a lot. . . . [emphasis added by this blog!].

In the opinion of THIS commentator –

The unusual rule of thumb is  that expressions of counsel’s opinion are considered by most trial practitioners as a “weak” expression as opposed to a direct and authoritative pronouncement.  However, in this case when counsel essentially slammed the examining physician, I can see why it actually was a stronger expression and gave counsel some wiggle room.  However, the problem with expressions of opinion by counsel on the evidence and bias of witnesses are interwoven with the old saw of counsel is allowed “wide latitude” to address the evidential inferences.  What I see is counsel expressing an opinion on credibility is now a witness themselves expressing an opinion in front of the jury coming from a putative witness beyond the pale of cross-examination and in a form that would be impermissible if he or she were a witness.

When the line is crossed and distinctions blurred and the rules fail to regulate conduct, the result is that litigants and lawyers alike lose confidence in the administration of justice.  “In my opinion” in court is the verbal equivalent of chalk screeching on the blackboard resonating in the minds of the jurors.

However, there is no evidence of an objection to the opinion, just simply the insurance lawyer arguing matters not in evidence; and there is no evidence of an objection to expressions of an opinion either.

Thus, someone crossed the line, and in the absence of an objection to “opinion” there was no need to give an admonition and the “opinion” portion of the argument apparently waived.  Beyond waiver, and looking at what would have cleared the air, one must agree that a simple admonition (whether requested of the judge or given by the judge sua sponte), I would submit “in my opinion” that an admonition should have been given at a minimum.  The trial judge’s failure to employ this simple remedial measure paid a price in the expense of the appeal, an appearance of justice denied, and a little tarnish on the system.  Just a simple admonition.   Just my two cents, and please be advised, my quick Westlaw ™ research found nothing to help on this point which amounts to nothing more than a suggested trial tactic when insurance lawyers decide to become witnesses and express opinions without being subject to cross-examination.

Standard of Review: Rule 11 Sanctions Imposed by Trial Court

Persels & Associates LLC v. Capital One Bank
C
OA PUB 2/14/2014 (Presiding Judge Clayton)
Daviess County, Trial Judge Joseph Castlen, III

CLAYTON, JUDGE: Persels & Associates, LLC appeal the Daviess Circuit Court’s findings and imposition of sanctions based on the trial court’s determination that the respondents violated Kentucky Rules of Civil Procedure (CR) 11. After careful consideration, we affirm.

Appellate review of a trial court’s actions related to CR 11 requires a multi-standard approach, that is, a clearly erroneous standard to the trial court’s findings in support of sanctions, a de novo review of the legal conclusion that a violation occurred, and an abuse of discretion standard on the type and/or amount of sanctions imposed. Clark Equipment Co., Inc. v. Bowman, 762 S.W.2d 417, 421 (Ky. App. 1988). 

The next issue consists of a de novo review of the legal issues involved in the determination that a violation has occurred under CR 11. We begin by observing that CR 11 does not provide substantive rights to litigants but is a procedural rule designed to curb abusive conduct in the litigation process. Lexington Inv. Co. v. Willeroy, 396 S.W.3d 309, 312 (Ky. App. 2013).

The legal questions are answered by CR 11 itself. The rule provides:

Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. . . . The signature of an attorney or party constitutes a certification by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

The plain meaning of the rule is that pleadings must be signed by the attorney that prepares them.

Persels’ practice of providing limited representation to its clients does not abrogate this obligation under the Kentucky Rules of Civil Procedure nor did Persels offer any legal authority from Kentucky or otherwise to support its position that limited representation changes the effect of this civil rule or any other. Moreover, because the clients entered into a contract that specified Persels attorneys would not sign pleadings or make an appearance, it is not sufficient to change the requirements under CR 11. It is indisputable that a court cannot enforce an illegal contract. S.J.L.S. v. T.L.S., 265 S.W.3d 804, 821 (Ky. App. 2008). Any contract that ignores or changes the application of the civil rules is not legal. Thus, in contravention to Persels’ position, we hold that pursuant to CR 11, the attorneys who prepared the pleadings must sign them.

Closing Argument: Counsel discussing her/his own observations, Wilson vs. Madzhitov

In this decision, the COA found that an isolated instance of counsel discussing his or her own observations about the area of the accident and its impact upon the accident was not error requiring reversal.  For what it is worth, I find this disturbing, that an experienced trial judge (Judge Stephen Mershon, Senior Status Judge) would have permitted this observation by counsel to stand, and that the COA found that it was not a reversible error.  In many cases, it is not so much what is in evidence but what can be either “prayed” or “preyed” into evidence that is of consequence.

Allowing counsel to essentially testify about her observations of the traffic flow at the situs of the accident on the morning of her closing was without the benefit of being under oath, no opportunity to be cross-examined, went to the ultimate issue of liability in the case, and was quasi-expert testimony in her own right.

For those of us who have tried cases, this was big.  For those who look at them from afar without the benefit of being in the arena, I can only surmise a lack of appreciation of the human behavior and trial dynamics.

The bell had been rung.  The genie was out of the bottle.  And the old saw that the jury understands that counsel’s argument is not evidence reflects a lack of comprehension of human behavior.

Here is the argument.  You decide for yourself:

On my way here today I was sitting on the corner of Jefferson and 7th Street and Jefferson is a one-way headed west and I was in the curb, and my light was green and I could see pedestrians on the corner that were intending to cross heading south and when the lights were green I could see cars coming up from my left and I thought “there is no way, there is no way that if a car coming up . . .”

[objection by Plaintiff and bench conference]

So as I sat there in the westbound turn lane of Jefferson and cars were coming upon my left it occurred to me the similarities between that situation and this and I hoped we were all lucky enough that nobody decided to cross that intersection at that given time because another accident like this would have happened.”

WILSON (ALISHA)
VS.
MADZHITOV (MIKAIL)
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
ACREE (CONCURS) AND DIXON (CONCURS)
2011-CA-001544-MR
2011-CA-001664-MR
NOT TO BE PUBLISHED
JEFFERSON

Specifically, Alisha takes issue with the following portion of Mikail’s counsel’s closing argument:

On my way here today I was sitting on the corner of Jefferson and 7th Street and Jefferson is a one-way headed west and I was in the curb, and my light was green and I could see pedestrians on the corner that were intending to cross heading south and when the lights were green I could see cars coming up from my left and I thought “there is no way, there is no way that if a car coming up . . .”

[objection by Plaintiff and bench conference]

So as I sat there in the westbound turn lane of Jefferson and cars were coming upon my left it occurred to me the similarities between that situation and this and I hoped we were all lucky enough that nobody decided to cross that intersection at that given time because another accident like this would have happened.”

With every alleged error we must adhere to the harmless error standard set forth in CR2 61.01, and disregard any errors or defects in the proceedings that do not affect the substantial rights of the parties. We note than an isolated instance of an alleged improper remark “will seldom be found prejudicial[,]” as opposed to when the remark “is repeated and reitareated in colorful variety[.]” Stanley v. Ellegood, 382 S.W.2d 572, 575 (Ky. App. 1964) (citation omitted). In this case, we see no prejudicial effect as a result of counsel’s comments. Of importance, the remarks were an isolated instance within the context of a broader argument summarizing the evidence. Furthermore, by way of Alisha’s counsel’s multiple objections during closing argument, the jury was repeatedly informed by the trial court that the closing argument was not evidence to be considered, but was simply counsel’s own summary of the evidence. Given the wide latitude afforded counsel during closing arguments, we are unable to conclude a counsel’s mere mention of observing the intersection where an accident took place would justify a reversal of the trial court’s ruling. See Stopher v. Commonwealth, 57 S.W.3d 787, 805-06 (Ky. 2001) (under Kentucky law, counsel is afforded wide latitude during closing arguments). Assuming arguendo that counsel’s comments were outside the bounds of permissible advocacy, the comments were not prejudicial nor did they affect Alisha’s substantial rights. Accordingly, this point of error is not a basis for reversal of the judgment.3

Argument: Permissible and Impermissible argument referencing financial ability of party strongly addressed in dissent

Impermissible arguments, admonitions, and error.  Oh My!

The following decision addresses improper argument by counsel regarding a party’s financial ability that was deemed error but not reversible error with a stinging dissent by Judge Nickell (whose dissent is posted en toto since it not only addresses the issue in this case but a succinct summary of arguments, permissible and not permissible.

356.  MOTIONS FOR NEW TRIAL. IMPROPER ARGUMENTS.
GOSSETT (VELDA), ET AL.
VS.
CROCKETT (MERRILL)
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
TAYLOR (CONCURS) AND NICKELL (DISSENTS AND FILES SEPARATE OPINION)
2010-CA-002079-MR
TO BE PUBLISHED
PULASKI

COMBS, JUDGE: Anthony and Velda Gossett appeal the order of the Pulaski Circuit Court that denied their motion for a new trial. After reviewing the record and the law, we affirm.

STD OF REVIEW FOR NEW TRIAL:  Our standard of review is limited to the determination of whether the trial court abused its discretion. McVey v. Berman, 836 S.W.2d 445, 448 (Ky. App. 1992). The decision of a trial court enjoys a presumption of correctness, and we may only reverse if it was clearly erroneous. Id. A court’s actions are clearly erroneous if they are not supported by substantial evidence. Fugate v. Commonwealth, 62 S.W.3d 15, 18 (Ky. 2001).

ARGUMENT:

The Gossetts argue that the court erred in allowing the jury to hear the following statement of Crockett’s counsel during closing arguments: “This matter has held the prospect of financial ruin over [Crockett’s] head for over two years.” At that point, the Gossetts’ counsel interrupted the closing argument and objected. In a bench conference, the court agreed that the statement was improper. The Gossetts asked the court to inform the jury that Crockett had an insurance policy that would cover any damages. Instead, the court elected to cure the error by strongly admonishing each jury member that consideration of either party’s financial condition was not permitted. The Gossetts now contend that the admonition was insufficient to cure the harm resulting from the statement of Crockett’s counsel. We disagree.

It is “universally condemned” for counsel to refer to the financial condition of one of the parties for the purpose of persuading the jury. Murphy v. Cordle, 197 S.W.2d 242, 243 (Ky. 1946). But, it is also settled law in Kentucky that an admonition is deemed to cure the error created by an improper argument unless the argument “was so prejudicial, under the circumstances of the case, that an admonition could not cure it.” Price v. Commonwealth, 59 S.W.3d 878, 881 (Ky. 2001). (Internal citations omitted). Furthermore, if an admonition was given, we must presume that the jury heeded and followed it. Combs v. Commonwealth, 198 S.W.3d 574, 581 (Ky. 2006).

In discussing improper arguments, our Court has held that we must determine:

whether the probability of real prejudice is sufficient to warrant a reversal. In making this determination, each case must be judged on its unique facts. An isolated instance of improper argument, for example, is seldom deemed prejudicial.

Rockwell Intern. Corp. v. Wilhite, 143 S.W.3d 604, 631 (Ky. 2003). (Emphasis added.)

Under the facts of this case, we cannot conclude that the statement was so prejudicial that it could not be cured by an admonition. The statement was isolated. Most of Crockett’s closing argument was a summary of the factual evidence that had been presented. It pointed out inconsistencies among the testimonies of the Gossetts’ witnesses. Crockett reminded the jury of his experts’ evaluation of the accident scene that indicated that the motorcycles had encountered the slick substance in the roadway before they reached the area that had been burned. A state trooper had testified that the slick substance appeared to be spillage from a vehicle. Eleven of the twelve jurors did not believe that Crockett was liable for the spillage. As distinguished from cases that have been reversed due to improper arguments, Crockett did not dwell on the subject of financial circumstances. The issue of damages per se was never even considered since no liability was found as a threshold matter. See Rockwell, supra; Murphy, supra.

Additionally, the court’s admonition to the jury was emphatic and clear. It instructed the jury not to consider the financial condition of any party. It then asked the members of the jury if they understood; it did not permit counsel to resume until the jury had responded. Therefore, the court’s denial of the Gossetts’ motion for a new trial was based on substantial evidence and was not clearly erroneous.

DISSENT BY JUDGE NICKELL:

NICKELL, JUDGE, DISSENTING: Respectfully, I dissent.
In his closing statement to the jury, Crockett’s trial counsel expressed sympathy for the Gossetts, but argued “this trial is not a measure of sympathy.” Yet, in asserting that the Gossetts’ lawsuit “has held the prospect of financial ruin over [Crockett’s] head for over two years,” he attempted to enlist the jury’s sympathy on behalf of his own client’s financial status, and strongly inferred that Crockett’s finances were in peril, that Crockett was too poor to pay likely damages should he be found liable for the Gossetts’ injuries, and that Crockett had no liability insurance to cover any portion of a damage award in the event liability was found. All three implications were legally improper, and the significant prejudice arising from trial counsel’s erroneous argument was compounded by his knowledge that the latter inference was entirely false. Crockett was, in fact, covered by a policy of liability insurance. It is reasonable, therefore, to conclude that trial counsel’s improper argument to the jury, and the strong inferences capable of being drawn from it, was intended to gain an illegitimate trial advantage. The resulting verdict in Crockett’s favor tends to indicate that the strategy was effective and calls into question whether the jury considered extraneous matters in reaching its deliberations concerning the merits of causation, liability, and damages.

The trial court correctly chastised trial counsel and characterized his “financial ruin” argument as “a serious misstep.” However, rather than sustaining the Gossetts’ objections and motions for a more pronounced, specific, and corrective admonition or a new trial, the trial court chose merely to provide the jury with the very general admonition that it was to consider neither party’s financial condition when reaching its verdict. Though the majority recognizes that trial counsel’s improper trial tactic of referencing his client’s dire financial condition and falsely implying the absence of liability insurance has been “universally condemned” by our courts, Murphy, it deems the trial court’s generalized admonition presumptively adequate to cure the significant prejudice arising from trial counsel’s devastating singular utterance. Price; Combs. I disagree.

In Combs, a criminal case in which the defendant objected to improper prosecutorial testimony, our Supreme Court upheld the trial court’s denial of a motion for a mistrial, holding that the particular erroneous testimony was “the type of error that is easily cured by an admonition,” that “[a] jury is
presumed to follow an admonition to disregard evidence,” and concluding that “the admonition cure[d] any error.” The Supreme Court stated:Whether to grant a mistrial is within the sound discretion of the trial court, and such a ruling will not be disturbed absent an abuse of that discretion. A mistrial is an extreme remedy and should be resorted to only when there appears in the record a manifest necessity for such an action or an urgent or real necessity. The error must be of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed no other way.

Id., at 581. Even so, the Supreme Court also recognized two exceptions to the general rule that admonitions are presumptively curative:There are only two circumstances in which the presumptive efficacy of an admonition falters: (1) when there is an overwhelming probability that the jury will be unable to follow the court’s admonition and there is a strong likelihood that the effect of the inadmissible evidence would be devastating to the defendant; or (2) when the question was asked without a factual basis and was “inflammatory” or “highly prejudicial.” Id., at 581-82. Both circumstances are present here, thus negating the presumptive cure claimed by the majority and requiring a new trial.

In tort litigation, Kentucky courts have consistently held “parties may not present evidence or otherwise advise the jury of the financial condition of either side of the litigation,” Hardaway Management Co. v. Southerland, 977 S.W.2d 910, 916 (Ky. 1998), and have recognized that “[e]vidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.” Kentucky Rules of Evidence (KRE) 411.
Kentucky courts have further held that “[a] defendant’s ability or inability to pay a judgment is no more relevant to the issue of liability than is the fact of insurance,” that “[a] case should be tried on the merits without reference to the wealth or poverty of the parties,” and that the presence or absence of liability insurance is irrelevant to the issues of fault and liability.  White v. Piles, 589 S.W.2d 220, 222 (Ky. App. 1979) (citing Southern-Harlan Coal Co. v. Gallaier, 240 Ky. 106, 41 S.W.2d 661 (1931)). In a tort action, evidence or argument concerning a party’s financial status or the availability of liability insurance is irrelevant to the merits concerning causation, liability, and damages. Even indirect references to these matters have been condemned. Id. (citing Randle v. Mitchell, 142 S.W.2d 124 (1940)); and Earle v. Cobb, 156 S.W.3d 257, 265 (Ky. 2004) (citing Bybee v. Shanks, 253 S.W.2d 257, 260 (Ky. 1952)).

Such evidence or argument, even if singular, isolated, and inadvertent, is capable of being inflammatory and prejudicial because of the likelihood that jurors will be tempted to find causation and liability regardless of fault and award excessive damages if they believe the defendant to possess extensive financial resources or liability insurance, or find no causation or liability and award little or no damages if they believe the defendant has limited financial resources or no liability insurance.  Turpin v. Scrivner, 178 S.W.2d 971, 974 (Ky. 1944). Thus, introduction of evidence or argument concerning a party’s financial status or the availability or absence of liability insurance is presumed to be prejudicial, and, absent a showing of non-prejudice to the complaining party or legal excuse, represents reversible error requiring a mistrial.  White, at 222; Finch v. Conley, All S.W.2d 128, 130 (Ky. 1967); Struetkerv. Neiser. 290 S.W.2d 781. 782 (Ky. 1956): and Maddox v. Grauman, 265 S.W.2d 939, 942 (Ky. 1954) (citing Star Furniture Co. v. Holland, 273 Ky. 617, 117 S.W.2d 603 (1938)).

While it may be generally presumed that a jury admonition will cure any prejudice arising from many less egregious improper arguments, introduction of improper evidence or argument referencing either party’s financial status or the availability or absence of liability insurance is presumptively prejudicial and reversible error which no admonition will likely cure. After trial counsel has fired an improper and harmful, though solitary, isolated, and inadvertent, argumentative bullet, it is highly unlikely that a jury will be able to follow the trial court’s admonition that it simply forget the wound. This is especially true in “close” or circumstantial cases, such as the one before us, where the testimony is evenly balanced or contradictory, and where it can fairly be said that “the question as to the proximate cause of the injury is so close that the slightest suggestion in the closing argument of any matter extraneous to the record might have been sufficient to tip the scales in favor of the offending party.” Walden v. Jones, 289 Ky. 395, 158 S.W.2d 609, 612-13 (1942).

In short, there are erroneous argumentative matters so serious in nature that no admonition may reasonably be expected to cure the harm. In such cases, as here, the only reliable remedy is to declare a mistrial. In the present case, the presumptive prejudice arising from trial counsel’s improper argument was prone to distract the jury’s deliberations from the merits concerning causation, liability, and damages, and thereby tainted its ultimate verdict. Even if one were to accept the majority’s opinion that an admonition could have cured such a devastatingly inflammatory and prejudicial argument, to be truly remedial the admonition would have needed to have been so emphatic as to leave no doubt in juror’s minds as to the unequivocal repudiation of the erroneous matter, and any false inference that Crockett possessed no liability insurance should have been specifically and forcefully addressed “to clear up any confusion in the minds of the jury.” White, at 222.
Here, by “injecting the issue of his client’s ability to pay into his closing argument,” and thereby strongly inferring the absence of liability insurance, trial counsel “opened the door” for the trial court to have interposed an unequivocal and direct admonition, advising the jury to disregard the financial status of the parties in its deliberations and specifically correcting the false implication that Crockett had no liability insurance. Id. Only then would the admonition have truly re-leveled the playing field. Contrary to any legal fiction the majority may lend to the presumptively curative nature of jury admonitions under Combs, it is impossible to “unring the bell” and it is unreasonable to expect a juror to forget what has already been heard, or to remove from his or her mind a strong impression once firmly imprinted.

The proper legal analysis pertaining to the present case is on all fours with the holding in Walden, though that case involved the opposite situation wherein a plaintiffs trial counsel had made a singular improper comment in closing argument referencing the defendant’s sound financial status and inferring the availability of liability insurance. In Walden, our former Court of Appeals
held:

We have often condemned any argument or evidence being presented in a case from which the jury could infer that the defendant was indemnified by insurance, and if counsel for plaintiff either by evidence or by argument, injects any circumstance or statement from which an inference may be drawn that the defendant is indemnified, he must suffer the consequence of a reversal of any judgment which he might obtain. We think that the jury in reason could have inferred from the statement made that the defendant was covered by insurance but if that were not true, the statement certainly related to the financial condition of the defendant which is improper argument in any case. There is no law applicable to the poor that is not likewise applicable to the rich, nor is any law applicable to the rich that is not likewise applicable to the poor, and an endeavor on the part of an attorney or litigant to inflame the minds of the jury by referring to the financial status of either of the parties is improper. While such reference is not always prejudicial, we believe it to have been in this case, because the question as to the proximate cause of the injury is so close that the slightest suggestion in the closing argument of any matter extraneous to the record might have been sufficient to tip the scales in favor of the offending party.

Id., 158 S.W.2d at 612-13 (emphases added). Likewise, in Star Furniture Co., IllS.W.2d at 606-607, our former Court of Appeals held the trial court’s admonitionineffectual, concluding:It would be difficult – even beyond the power of overcoming – to conclude that such reference to the question of insurance did not have the desired effect to give the case an “insurance ” coating, and to sprinkle it with an “insurance” perfume – all of which we have said in numerous cases was calculated to influence the jury in arriving at its verdict, both upon the issue of culpable negligence, as well as the amount of remuneration.■12-[W]e, as well as all courts, have held that the average juror is either unconsciously or otherwise influenced by the fact that the alleged negligent actor carries insurance. Such average juror, it has been found, is frequently led astray and returns an unauthorized verdict because he concludes that the defendant against whom it is rendered will not be required to pay it out of his individual funds because of indemnity insurance carried by him. Knowing that fact counsel representing injured plaintiffs frequently seek to get before the jury the fact of such indemnity insurance being carried by the defendant in such tort actions, and we, as well as other courts, have never failed to condemn it. In a few cases we declined to reverse the judgment for such practices, but in each instance where we did so there were qualifying facts furnishing a legal excuse for the interjection of the insurance issue complained of. In all other cases we have not hesitated to reverse the judgment containing the error, in the absence of the record showing a legitimate excuse therefor. … In the last (Helton) case we approved and copied from the case of Blue Bar Taxicab & Transfer Company v. Hudspeth, 25 Ariz. 287, 216 P. 246, this excerpt (page 1124): ‘The consequence of such information is well known, and is sufficient to require a new trial. It is useless for counsel to talk of the innocuous character of this evidence, when they at the same time, in order to get the information before the jury, are willing to imperil any verdict which might be rendered. All lawyers know the rule in regard to such evidence, and they must not expect the court to establish a rule, and then wink at its violation.Id., at 606-07 (emphases added). Trial counsel “should not need to be told that thescope of argument does not include matters outside the cause tried[,]” Strother v.McClave, 264 Ky. 121, 94 S.W.2d 310, 311 (1936), and those who embark onargumentative expeditions outside the record and beyond the merits exceed the■13-strict boundaries of allowable trial strategy and risk reversal of any tainted jury verdict.This most basic rule of tort litigation, cited in Walden and Star Furniture Co., protects and limits plaintiffs and defendants, alike. It is reciprocal in nature, and “[i]n cases which involve personal injury or wrongful death, it is generally improper for plaintiff to mention that the defendant is insured against liability or for the defendant to mention that he is not insured.” 2 Lane Goldstein Trial Technique §11:194 (3d ed.).
In laymen’s terms, “what is fair for the goose is fair for the gander,” and if plaintiffs are strictly precluded from mentioning or inferring the availability of liability insurance, defendants must likewise be strictly precluded from implying its absence.In the present case, it cannot be fairly said that the jury’s verdict did not at least partially rest upon the prejudice arising from trial counsel’s improper argument and the inappropriate and false inferences likely to be drawn therefrom. Our caselaw clearly establishes that a trial counsel’s improper injection of a party’s financial status or access to liability insurance in tort litigation: is considered “a serious misstep” and a significant breach of our rules of trial practice; is presumed to be prejudicial absent a showing of non-prejudice by the offending party; and should, with few exceptions, result in a mistrial.  White. It was, therefore, “manifestly improper” for Crockett’s trial counsel to attempt to impact the jury’s verdict by seeking sympathy for Crockett’s alleged looming “financial ruin” and by falsely implying the unavailability of liability insurance; and the Gossetts were-14-entitled to have their case tried without the taint of passion and prejudice arising from such an improper argument and its false implications. Southern-Harlan Coal Co. Because Crockett has failed to cite any legal excuse for the improper argument or to clearly show non-prejudice to the Gossetts, his trial counsel’s improper argument was presumptively prejudicial, the jury’s verdict was incurably tainted, and the trial court erred by not declaring a mistrial.
Thus, I believe the matter should be reversed and remanded with instructions that the trial court set aside the judgment and schedule a new trial.