Two decisions deserve careful scrutiny by injury and accident lawyers, as well as insurance lawyers.
In Ronald Eggemeyer vs. Dr. Ted H. Jefferson (D.O.)
COA, Pub. 6/12/2015; McCracken, the COA reversed and remanding the trial court’s decisions on two separate and distinct issues. This is a medical negligence case claiming the orthopedist failed to properly place enough screws in an arm fracture followed by his failure to diagnose a post-operative infection. 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. The insurance lawyer defending Dr. Jefferson in trial number one was Frederick Straub. The insurance lawyer for the second trial was Scott Whonsetler and Jeffery Thompson. Mr. Eggemeyer was represented on his injury claims by attorneys Hans Poppe and Warner Wheat.
In the second trial, the judge ruled ” 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.” Interestingly enough, plaintiff’s counsel was concerned enough about the Defense raising new issues and not complying with the court’s order, and Mr. Whonsetler assured the court he would comply with the ruling. However, he did not. Despite the trial court’s three separate rulings and orders to Dr. Jefferson’s counsel, Mr. Whonsetler raised over a dozen new medical defenses and theories in his opening statement to the jury. Eggemeyer’s counsel objected and brought the issue to the court’s attention. The court indicated that these sounded like new theories to the court also, and before ruling on the issue, ordered a hearing for the following morning. No admonition was given to the jury at that time.
Eggemeyer alleges that over the course of the trial, Dr. Jefferson and his counsel repeatedly introduced new opinions and testimony in violation of the court’s orders, including testimony from Jefferson and his expert that Jefferson put three screws below the fracture line and that Eggemeyer might have suffered some trauma following Dr. Jefferson’s surgical repair of his arm. Even though Eggemeyer objected to this line of questioning, the inferences and direct references to unsupported evidence and issues ruled inadmissible by the trial court did not stop, even after the final witness.
On appeal, Eggemeyer argues that the trial court abused its discretion by denying his motion for a new trial, to vacate or set aside the judgment, and for default judgment on liability.
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.
In the instant case, we believe the integrity of the trial court was most definitely at issue, and in fact the trial court directly stated that it was holding Dr. Jefferson in civil contempt and awarding attorney’s fees as sanctions. Given the repeated misconduct of Dr. Jefferson and his attorneys, we find the imposition of sanctions to be completely appropriate in this case.
hat order granted Eggemeyer $58,858.82 in attorney’s fees and stated that the court was awarding such fees because of Dr. Jefferson’s direct defiance of its orders throughout the first trial. The trial court clearly and unequivocally stated that it was awarding the fees as sanctions because, instead of remedying his conduct as instructed by the court, Dr. Jefferson compounded that conduct in the second trial.
The other decision of consequence for tort lawyers addressed the use of examinations under oath and a denial of coverage for failure to cooperate. This decision is briefly noted below and will be addressed later.
The Kentucky Court of Appeals announced 24 decisions on June 12, 2015, with 7 of their opinions designated to be published.
Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.
Click here for all of a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals). AOC version of this week’s decisions can be accessed by clicking here.
For the complete set of this week’s minutes listed all decisions (published and not to be published) with links to the full text of each at the AOC, the continue reading below the digested summaries of this week’s published cases.
Tort, insurance and civil decisions links are in bold face!
Published appellate cases for this week – June 12, 2015:
492. Medical negligence case with defendant doctor and his counsel committing conduct which resulted in sanctions and a reversal for disobeying court orders
Ronald Eggemeyer vs. Dr. Ted H. Jefferson (D.O.)
COA, Pub. 6/12/2015; McCracken; Reversing and remanding
LAMBERT, J., JUDGE: Ronald Eggemeyer appeals from the McCracken Circuit Court’s denial of his motion for a new trial, to vacate or set aside judgment, and for default judgment on liability. After careful review, we reverse the trial court’s order and remand this case for a new trial.
493. Open Records Act and Public Agency
Pike County Fiscal Court vs. Utility Management Group LLC
Opinion Reversing and Remanding, Pike
494. Directed Verdict, Wage and Hours, Court costs, witnesses
Velma Hisle vs. Correctcare-Integrated Health, Inc.
Opinion Affirming in part, vacating in part, remanding; Fayette
495. Parental obligation is joint and several for child’s necessaries (medical expenses)
Jerry Smothers vs. Baptist Hospital East
COA Pub 6/12/2015; Opinion affirming; Jefferson
499. Dept. of Corrections termination of employment in maintenance following positive urine testing for cocaine
Garnett C. Parrish vs. Commonwealth of Kentucky
503. Examination Under Oath and MVRA
Roniesha Adams vs. State Farm Mutual Automobile Ins. Co.
COA Pub 6/12/2015; Reversing and remanding, Jefferson
CLAYTON, JUDGE: This is an appeal from the Jefferson Circuit Court’s granting of declaratory and summary judgment in an automobile accident case. Based upon the following, we reverse the decision of the trial court and remand this action for further proceedings.
In Miller v. United States Fidelity & Guaranty Co., 909 S.W.2d 339, 341 (Ky. App. 1995), a panel of our Court held that “[t]he circuit court may not enter an order for an examination without rhyme or reason, thereby entitling a reparation obligor to an examination simply upon demand.” In a case such as this, where there were medical reports and police reports indicating injuries and the events that occurred, a policy clause which required an EUO prior to payment of the claim and as a bar to the claim should one not be done, would be in direct opposition to the purpose of the MVRA. Should State Farm wish to obtain a statement from Adams, its remedy would be to seek a court order requiring Adams to submit to discovery. The trial court, therefore, erred in granting declaratory and summary judgment on this issue. We, therefore, reverse the decision of the trial court and remand this action for further proceedings including discovery.
514. Election challenge
Charles Hardin MD vs. John Montgomery
Selected Tort, insurance, civil decisions: The following not to be published decisions might be of interest and noteworthy to attorneys practicing injury and accident law, as well as insurance defense law:
497. Nursing home negligence per se claim and violation of certification rules alleged
Dinah Puckett, Adm’r Est. of Bertha Blanton vs. Salyersville Healthcare Center
COA NPO Affirming; Magoffin
NICKELL, JUDGE: Dinah Puckett, as Administratrix of the Estate of Bertha Blanton, has appealed from dismissal of her claims of negligence per se against Salyersville Healthcare Center (“Salyersville”), and others. Following a careful review, we affirm.
502. Premises Liability. COA affirmed summary judgment dismissing injured plaintiff’s claims against hotel for shower slip and fall
Ralph Goodwin vs. Al J. Schneider Co. d/b/a Galt House
COA NPO; Opinion affirming; Jefferson
The entire minutes are below with links to the full text of each decision. The “published” decisions are highlighted in the published column. The tort, insurance and civil decisions are highlighted by the decision number and name (first two columns):
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