Multiple issues addressed in medical negligence case dealing with evidentiary challenges and denial of mistrial; evidence of decedent child’s genetic defect admissible on earning capacity: WOOLUM, M.D. v. HILLMAN (COA 5/2/2008)


2007-CA-000376 – 516

This appeal and cross-appeal stem from a medical negligence wrongful death action. Lisa Ann Hillman was the patient of Dr. Jerry Woolum during her pregnancy with Caitlynn Hillman. Complications occurred during her pregnancy and Caitlynn was stillborn. A jury found medical negligence on the part of Dr. Woolum and awarded Mr. and Mrs. Hillman a total of $500,000 for their loss of companionship claims ($250,000 each) and $600 for funeral expenses, but chose to award $0 for the child’s permanent earnings impairment. The TC later ordered a new trial on the issue of the $0 verdict for permanent impairment. Following the court’s ruling on motions in limine in regard to certain evidentiary issues concerning the second trial, the parties entered into an agreement stipulating that the loss to Caitlynn’s estate was $475,000 and this appeal followed.

On appeal, Dr. Woolum argued that the TC made several evidentiary mistakes and errors in certain rulings, most notably as follows: 1) it erred in denying his motion for directed verdict; 2) it erred in not declaring a mistrial during the first trial, and 3) it erred by granting the Hillmans a new trial on the issue of damages. The Hillmans cross-appeal and raise two additional issues to be considered by the COA: 1) TC erred by not excluding the testimony of two of Dr. Woolum’s experts during the first trial, and 2) it erred by not preventing the jury of the proposed second trial from being informed about the damages awarded to them at the first trial.

TC’s Failure to Exclude Evidence of Liability Insurance

Woolum first argued to the COA that the TC erred by admitting evidence of a common med mal insurer between himself and one of his experts, Dr. Butcher. The COA felt that the TC did not abuse his discretion in this admission, noting that Dr. Butcher had shown "extreme bias" toward med mal cases that the jury should be allowed to consider. The COA described Dr. Butcher’s "hostility" to med mal cases as extreme (Butcher testified during his depo that be believed there was a direct link between med mal cases and insurance rates and that he had left one state because of alleged collusion between judges and lawyers in med mal cases) and when considering his personal relationship with Woolum (they had practiced together at the same hospital for over 20 years) the TC had sufficient basis to admit the testimony concerning the common malpractice insurer.

TC’s Failure to Exclude Introduction of Ultrasound Video

Woolum next argued error in the TC permitting the video of Hillman’s ultrasound to be shown to the jury during Hillman’s testimony on the basis that it was not properly authenticated by a medical professional. Woolum also alleged that permitting the video to play while Hillman cried on the stand during her testimony was extremely prejudicial, and finally that the video was unnecessary and cumulative since the ultrasound report had already been introduced as evidence. The Hillman’s countered that the video was necessary to show that at 7 months the child was healthy and moving around, and to demonstrate the love and affection the Hillman’s had for their deceased child.

The COA begins notes that a video is considered a photograph per KRS 1001(2), and that for such evidence to be introduced it must satisfy 3 factors on admissibility per Gordon v. Hunt (2000): it shall be properly authenticated, it must be relevant by tending the make the existence of any fact in question more or less probable, and it’s probative value must not be substantially outweighed by the danger of undue prejudice or be considered needless presentation of cumulative evidence. The COA held that the ultrasound video satisfied all 3 factors and therefore was not an abuse of discretion for the TC to permit its introduction even if it could be considered cumulative.

TC’s Failure to Grant Motion for Directed Verdict

Dr. Woolum next argued the TC erred by denying his motion for a directed verdict since the Hillman’s failed to present proof of the viability of the deceased child (Woolum’s defense was that the death was due to an unknown genetic defect). After briefly setting out relevant testimony from one of Hillman’s experts that the child was viable had she been born during the month time period preceding the stillborn birth, the COA held that there was sufficient evidence of viability to submit to the jury.

TC’s Failure to Grant Mistrial

Woolum contended on appeal that the TC erred by not declaring a mistrial due to inadvertant jury misconduct stemming from two of the jurors becoming ill from high blood pressure and heart problems and having to be transported to the hospital during the deliberations. Woolum felt that since the nature of the juror’s problems were due to the very same issue in the case (high blood pressure), these two jurors could have become biased against him as well as the other jurors who witnessed the two jurors’ illnesses. The COA noted that the judge gave admonitions to the jury on a daily basis throughout the trial as well as immediately after the jurors fell ill and again before deliberations resumed several days later, and that juries are presumed to follow a court’s admonitions. Without some specific evidence to the contrary, the COA ruled that a mistrial was not warranted.

TC’s Grant of New Trial

Woolum argued that the TC erred by overruling the jury’s verdict and granting the Hillman’s a new trial on damages (concerning the wrongful death claim) since evidence presented in regard to the child’s genetic defect could have permitted the jury to find that the child had no ability to earn money. In response, the COA reiterated the Supreme Court’s decision in Turfway Park Racing Ass’n v. Griffin (1992) that only evidence of a disability so profound as to render the child incapable of earning money can defeat a permanent impairment claim. While Woolum contended that the unknown genetic abnormality prevented the placenta from developing properly thereby resulting in stillbirth, the COA noted that none of its experts had any evidence to indicate that the child would grow up to be anything but normal. The COA thus concluded that the TC’s grant of a new trial on impairment damages was not clearly erroneous.

TC’s Refusal to Permit Evidence of Lack of Earning Capacity

Woolum finally argued that the TC erred in ruling in limine that Woolum could not present evidence that the child had no earning capacity on the basis that the "law of the case doctrine" precluded such evidence since none was presented at the first trial. The COA agreed with Woolum and determined that the doctrine was inapplicable since the jury in the first trial was not asked to determine whether a genetic defect existed or whether it caused the child’s death, only whether Woolum was negligence in his care of Hillman and the child. Further, this doctrine applies to rulings of law, not issues of evidentiary admission, and the TC never made a ruling that could be construed as determinative on the issue of the child’s earning capacity. Thus, the COA concluded Woolum could present evidence of genetic defect and the child’s lack of earning capacity at the new trial on damages.


TC’s Failure to Exclude Proffered Testimony of Genetic Defect

On cross-appeal, the Hillman’s argued that the TC erred by permitting Woolum
‘s two experts to offer their theory that the child’s death was proximately due to an unknown genetic abnormality in violation of Daubert. The COA discusses the factors a trial court must consider in weighing the reliability and relevancy of proffered testimony, and its ruling is not clearly erroneous so long as the decision is supported by substantial evidence. The COA stated that just because the genetic defect in this case fell in the "unknown" category did not mean it should be automatically excluded, and determined that the qualifications of Woolum’s two experts along with the medical evidence presented by Woolum was sufficiently reliable to be heard by the jury. Without question, the proffered expert testimony was relevant since it was the heart of Woolum’s defense. Thus, the testimony was properly allowed by the TC.

TC’s Refusal to Preclude Evidence of Awarded Damages at Second Trial

The Hillman’s last argued that it was error for the TC to deny their motion to limine to exclude the introduction of damages awarded in the first trial at the second damages trial. The COA ruled that the Supreme Court in Turfway Park has recognized that the jury at a second retrial should be informed of damages for loss of companionship awarded at an earlier trial involving the same event and allegations, and thus the TC’s ruling on this issue was proper.


The COA affirmed the TC in all respects except that it held that Woolum should be permitted to present evidence of the child’s lack of earning capacity at the new trial on damages concerning the wrongful death claim.

Digested By Chad Kessinger
Schiller Osbourn Barnes & Maloney 

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