Case Notes: Masterson vs. Siemens Industry, Inc., COA NPO 10/31/2014

An interesting read on the complexity of multiple issues and need to keep on your toes in a car accident case with issues involving causation, pre-existing, burdens, expert testimony, laying foundation for medical bills, vicarious liability, burdens, and more.

Masterson vs. Siemens Industry, Inc.
COA Not Published 10/31/2014; Affirming in part, reversing in part (Jefferson County, J. McDonald)

In this nonpublished decision by the Kentucky Court of Appeals, a multitude of issues were addressed within the context of a motor vehicle collision personal injury claim. We had a defense expert versus a treating physician,  introduction and proof of the medical bills, causation and pre-existing conditions, vicarious liability,  motion for a new trial and the application of an affirmative defense the sudden emergency doctrine.

“Mel Ignatow: Getting Away With Murder” from American Justice

Screen Shot 2015-03-10 at 8.44.52 PM

The video “Mel Ignatow: Getting Away With Murder” can watched by going to the You Tube channel at – https://www.youtube.com/watch?v=RzXyj4lqvPU.

Twenty five plus years after Brenda Sue Schaefer’s death at the hands of Mel Ignagtow, the public scrutiny and painful memories linger, along with the incredulity of how this miscarriage of justice occurred in the first place.

This is not just me talking, but is apparent as dozens of citizens have attended the Jefferson County Public Law Library’s Public Forum series featuring attorneys and items/issues of public interest.

However, I have already discussed the law library series arising from the murder of Brenda Sue Schaefer in 1988, followed by the jury’s acquittal of her murderer Mel Ignatow, and then followed by Ignatow’s conviction for perjury.  Ignatow died after his release from prison when he fell on a coffee table at his home and bled to death, alone.

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 - www.CourtHouseHistory.com.

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

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:

 COA:
http://www.aoc.state.ky.us/coa_public/CaseInfo.aspx?case=2013CA000147
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”.

SC:  http://162.114.92.78/dockets/CaseDetail.asp?CaseNumber=2014SC000008
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.

Video: Irving Younger’s Classic – “Ten Commandments of Cross-Examination”

 

Some older folks will recall this  classic video from renown trial lawyer, teacher, and advocate, Irving Younger entitled “The Ten Commandments of Cross-Examination”.   It was a classic then, and it remains so today.

Experienced trial lawyers may disagree with the commandments as absolutes, but none will disagree with their value.

This video, together with James McElhaney’s, tapes on cross-examination are my two favorites on this topic.

I had been trying to relocate this video for years, and suddenly it pops up on one of my internet searches.   Here’s the video from the UC Hastings College of Law’s YouTube channel.  Should it evaporate, then let me know.  I saved a copy of it and can republish it on my YouTube channel if need be.

Download (PDF, Unknown)

TRIAL PROCEDURE & EVIDENCE: Proffer of expected testimony found by SCOKY to be too vague to preserve error on appeal (Eric Henderson vs. Commonwealth of Kentucky SC Published 8/21/2014)

From the former practice of preserving testimony with an avowal to the KRE 103 proffer of expected testimony, a trap is laid  for the need for specificity and clarity  falling short of the actual avowal of the testimony of yesteryear being abandoned for the cause of convenience and time.  Here the judge made a clearly erroneous trial ruling excluding testimony but for want of a good enough proffer of the expected testimony the error remains.  Practitioners be forewarned, and do not let time and inconvenience thwart your efforts to preserve the error, even in the midst of the trial because after the trial there is the appeal.

Historical marker for the "Great Dissenter", Justice John  Harlan, outside the Boyle County Court House in Danville, KY.

Historical marker for the “Great Dissenter”, Justice John Harlan, outside the Boyle County Court House in Danville, KY.

Evidence, KRE 103 Offer of Proof, Bad Acts Evidence, and Preservation of Issue for Appeal
Eric Henderson vs.  Commonwealth of Kentucky
SC Published 8/21/2014; Opinion by Minton Affirming
Questions Presented:  Criminal Law. KRE 103. Issues include whether defendant’s proffer of evidence was sufficient to preserve his argument on appeal under KRE 103.

Appealing to the Court of Appeals, Henderson challenged the trial court’s exclusion of prior-bad-acts evidence and hearsay testimony. Regarding the prior-bad-acts evidence, the Court of Appeals—while acknowledging the trial court erred by excluding the evidence—concluded Henderson did not properly preserve the issue for appellate review under Kentucky Rules of Evidence (KRE) 103(a)(2). Specifically, the Court of Appeals held it could not determine with any degree of certainty what the content of the excluded testimony would have been, making it impossible to assess the impact of the error. Going further, the Court of Appeals held Henderson similarly failed to preserve his challenge to the trial court’s ruling excluding Harris’s hearsay testimony but noted that, in any event, the excluded hearsay testimony would have been cumulative. The Court of Appeals affirmed the judgment. 

We accepted discretionary review of this case primarily to consider whether, in light of the trial court’s adverse evidentiary ruling excluding proposed testimony, Henderson’s counsel’s use of imprecise, general language satisfied KRE 103(a)(2)’s offer-of-proof requirement sufficiently to preserve this issue for appellate review. We affirm the decision of the Court of Appeals because we agree that counsel failed to make an adequate offer of proof.

Before this Court, Henderson raises two allegations of error: (1) the trial court erroneously excluded testimony of Henderson’s prior altercation withHarris and, additionally, the Court of Appeals improperly held the issue was unpreserved for review under KRE 103(a)(2); and (2) the trial court improperly excluded Harris’s hearsay testimony regarding turning Henderson in to thepolice. Because of these errors, Henderson argues he was denied the opportunity to present a complete defense. Of course, the Commonwealth agrees with the holding of the Court of Appeals that the initial issue wa sunpreserved and, moreover, argues any error associated with Harris’s excluded hearsay testimony was harmless. For the reasons stated below, we agree withthe Commonwealth and affirm the Court of Appeals.

At trial, Henderson attempted to testify about an altercation he had with Harris approximately two weeks before the club incident. The Commonwealth timely objected, and the trial court excluded the evidence because Henderson had not provided notice of the prior-bad-acts evidence to the Commonwealth as required by KRE 404(c). At the outset, we should be clear: this ruling was erroneous. By its plain language, KRE 404(c) requires notice to be provided only by the Commonwealth, not the defense.3 Our caselaw’s mandate that only the Commonwealth provide notice is manifest. 4That being said, we are unable to determine the extent of the trial court’s error because of Henderson’s vague characterization of the excluded testimony.

Historically, to preserve for review a trial court’s ruling excluding evidence, a party was required to present avowal testimony. 5From the stand, outside the presence of the jury, the witness would provide the testimony he would have given had the trial court allowed it. Of course, this provided a clear record for review; but perhaps more importantly, as much as the practice was justified for sake of clarity, it was equally cumbersome and time-consuming. nd the practice of presenting avowal testimony was out of step with both the federal courts and the vast majority of state courts.

In 2007, this Court amended several of our evidentiary rules, 6with the explicit purpose of bringing the rules into uniformity with their federal counterparts. The case before us today revolves around the alteration made to KRE 103(a)(2). In its current state, the entirety of KRE 103 reads:

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and

(1) Objection. If the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of proof. If the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Read as a whole, to preserve a trial court’s ruling for appeal, a substantial right7of the party must be affected and, relevant to the present case, the substance of the excluded testimony must be provided to the trial court. Notably, KRE 103(a)(2) now allows an offer of proof rather than requiring “the witness [] make a specific offer of his answer to the question.” An offer of proof, generally described as a lawyer “adducing what that lawyer expects to be able to prove through a witness’s testimony[, ]” 8serves dual purposes. First, the offer of proof provides the trial court with a foundation to evaluate properly the objection based upon the actual substance of the evidence. And, of equal importance, an offer of proof gives an appellate court a record from which it is possible to determine accurately the extent to which, if at all, a party’s substantial rights were affected.

The problem with Henderson’s offer of proof and his reliance on Weaver is the absence of any meaningful description of the content of the excluded testimony. 14By name, an offer of proof must contain some modicum of proof Here, Henderson’s counsel simply made vague references to the general theory of defense but did not highlight what Henderson would actually say if given the chance to testify.

Generally speaking, an offer of proof must not be “too vague, general, or conclusory.” Typically, the context of questioning adequately indicates the substance of the excluded testimony in situations where the answer to the question is known, e.g. defense asks the defendant whether he was at the scene of the crime on a particular night, or where testimony has been received, but subsequently stricken.

In its current form, KRE 103(a)(2) is intended to be flexible but that flexibility does not diminish the fact that its compliance is mandatory. A proper offer of proof is vital, not only to the trial court, but also in providing the opportunity for sound appellate review. To this end, Henderson’s offer of proof highlights why KRE 103(a)(2) requires what it does. As we stated before, the trial court undoubtedly erred in excluding the testimony on the specified grounds. Sympathetic as we may be to Henderson’s plight, we are left with little indication of how this error affected Henderson’s trial because the recordfails to show what the other-altercation evidence would have been. As a result,we are simply unable to determine if the error is reversible, harmless, orotherwise.

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.

Rule 11 Sanctions: Local counsel must sign pleadings!

You write it!  You sign it.

In this decision, local counsel was sanctioned when hired to assist national collections law firm in a Kentucky court case.  Their “agreement” was no need to sign or appear, but the Court of Appeals thought differently.  The sanction was only $1.00, but it was a sanction; and it’s on the record and official.

Rule 11 sanctions against local counsel for not signing pleadings they prepared.
Persels & Associates LLC v. Capital One Bank
C
OA PUB 2/14/2014 (Presiding Judge Clayton)
Daviess County, Trial Judge Joseph Castlen, III
COA affirmed trial court’s granting of Rule 11 sanctions against defendants arising from debt collection case. Persels was a national law firm and hired local counsel, and trial judge ordered local counsel to show cause why they should not be held in contempt for failure sign pleading and enter an appearance (limited retention of local counsel per agreement did not require them to sign pleading, enter an appearance or attend a court hearing).  The $1.00 sanction was not considered onerous.

Of UIM, a Coots Advance, Subrogation, and Identification of the Parties (Psihountakis vs. Courtney Moore and Auto-Owners Insurance Company COA, Not To Be Published, 6/21/2013)

The Wizard of Oz and Removing the Curtain

The  Insurance Wizard of Oz Plays With the Rules

From “Behind the Green Curtain in the Land of Oz”

  • The Lion – “I’m afraid to look!.”
  • Toto – “Woof, Woof”
  • Dorothy – “Oh my.  Do you really think there is insurance?”
  • Scare Crow – ” I think there is.  There has to be.  It’s elementary.”
  • Tin Man – “I haven’t the heart to look.”
  • Insurance Wizard – “You can’t look!”
  • Toto –  “Woof.  Woof.”
  • Dorothy – “Oh my!  There is insurance!”
  • The Lion – “Don’t look.  And don’t act like you know.”
  • Scare Crow – “That would be stupid.  Everyone knows you got to have insurance!”
  • Insurance Wizard – “Yes.  But.  Let us leave it alone.  And shut the darn curtain.  Will ya?”
  • Dorothy – “And what will they do about the lie on appeal.”
  • Toto – “Woof.  Woof.”

===================================================

The following not to be published decision by the Court of Appeals is a good read for two reasons.  First, it contains a succinct summary of the law on identification of the parties in a motor vehicle collision case in which the underinsured motorist carrier (Auto Owners) protected its subrogation rights by advancing the liability limits tendered on behalf of the at-fault driver; and second, it reveals some of the practical issues involved when trying such a case, from addressing the parties in the style of the case, motions in limine regarding what can be said and used in the trial, etc.

Another interesting point is the twist of party identification that occurred.  Typically, the UIM carrier advances to protect its subrogation rights which keeps the defendant driver in as a party as well as the UIM carrier which after Earle v. Cobb was a major shift toward common sense pleading and practice and  a rejection of the fiction and an embrace of honesty.  No more games since a juror knows about mandatory insurance law presumably would not be shocked to discover insurance was an issue in the trial.  However, the Plaintiff did not want the the tort feasor in the mix.  This approach is the flip side and is/was obviously rejected.  To have done otherwise would have been unfair to tortfeasor who had the right to be in the trial, protect his interests, and defend him/herself against the plaintiff’s direct claim for damages AND the subrogation claim of the UIM carrier.

This was not the Wonderful World of Oz, and the jury was entitled to see behind the curtain.

Psihountakis vs. Courtney Moore and Auto-Owners Insurance Company
COA, Not To Be Published, 6/21/2013
Boone Cir. Ct., Judge James R. Schrand, II

THOMPSON, JUDGE: The issue in this appeal concerns whether an underinsured motorists (UIM) carrier was sufficiently identified at trial and whether the participation of the UIM carrier and the alleged tortfeasor at trial was so prejudicial that a new trial is required. We affirm.

The liability insurance carrier for Moore tendered its liability limits in settlement of the remaining claims against her. On March 16, 2010, Auto-Owners substituted those liability limits pursuant to Kentucky Revised Statutes (KRS) 304.39-320 and preserved its subrogation rights against Moore.

Prior to trial, the trial court restyled the case caption as “George and Linda Psihountakis, Plaintiffs v. Auto-Owners Insurance Company, the underinsured motorist carrier of George and Linda Psihountakis and Courtney Moore, Defendants.” However, except for general voir dire questions regarding insurance, the Court ruled that evidence or argument pertaining to UIM coverage would not be permitted. A jury trial was commenced and the court identified Auto-Owners as the UIM carrier and as a defendant. Further, in voir dire, the Psihountakis’ counsel informed the jury that damages where sought against Auto-Owners when he stated: This is going to be a lawsuit in which George is suing his own insurance company, Auto-Owners. Do any of you for any reason have some feeling one way or the other about whether or not somebody should be able to collect on their insurance policies?

Despite the trial court’s ruling, in opening statement, the Psihountakis’ counsel, stated: We believe that when you have heard all the evidence, we believe you’ll believe as we do that the Defendant Auto-Owners is simply trying to deny George the compensation he deserves.1 In addition to the above references to Auto-Owners, Auto-Owners’s attorney stated in voir dire and opening statement that he represented Auto-Owners and he actively participated in the trial.

The Psihountakis contend that Moore should not have been permitted to participate in the trial because the participation of Moore and Auto-Owners unfairly denied them a fair trial. This argument strikes this Court as disingenuous in light of the Psihountakis’ withdrawal of their motion to dismiss Moore as a party. Moreover, we can find no authority that would preclude Moore, a defendant and responsible to pay Auto-Owners in subrogation if the jury found against her, from participating in the trial.

SOME BLACK LETTER LAW

Court Costs. Trial Court’s Discretion. Video and transcript of deposition reimbursable; Costs of Trial Exhibits Reimbursable (Occidental Fire and Casualty Co. vs. Moore COA Not Pub. 9/6/2013)

Occidental Fire and Casualty Co. vs. Moore
COA Not Pub. 9/6/2013
Court costs included transcript and video of same deponent and costs of trial exhibits.  COA affirmed both awards by the trial judge.

Depositions.  The award of costs to the prevailing party is within the discretion of the trial court. Lewis v. Charolais Corp., 19 S.W.3d 671 (Ky. App. 1999).  Costs are recoverable for depositions “whether taken stenographically or by other than stenographic means.” This means the costs for the original written and videotaped depositions are recoverable.

Exhibit costs.  Occidental also claims that Moore’s counsel is not entitled to recover the costs for trial exhibits. KRS 453.050 states in relevant part: The bill of costs of the successful party shall include, in addition to other costs taxed, the tax on law process and official seals, all fees of officers with which the party is chargeable in the case, postage on depositions, the cost of copy of any pleading or exhibit obtained, the cost of any copies made exhibits and the allowance to witnesses, which the court may by order confine to not more than two (2) witnesses to any one (1) point.  This statute specifically allows for the recovery of the costs related to exhibits; therefore, there is no abuse of discretion or error.