Skarupa v. Owensboro Health Healthpark
Opinion by Judge Maze; Judges Goodwine and Lambert concurred.
Appellant filed a negligence action against appellees Owensboro Health and Thomas B. Smith, alleging that Smith negligently performed a massage causing her to suffer a stroke. In the course of discovery, appellant’s experts testified by deposition and their depositions were later used at trial. Prior to trial, Owensboro Health allowed its experts to review the depositions to dispute the conclusions reached by appellant’s experts. At trial, appellant argued that this violated the separation-of-witnesses rule that had been invoked in the pre-trial order. Consequently, she maintained that Owensboro Health’s experts should have been excluded and, in the absence of contrary testimony, that she was entitled to a directed verdict on the issue of liability. The circuit court denied the motions. The matter proceeded to the jury, who found in favor of Owensboro Health and Smith. On appeal, appellant argued that Owensboro Health had violated KRE 615 by allowing its experts to review her experts’ deposition testimony. The purpose of the rule is to ensure that witnesses do not alter their own testimony based on what they hear from other witnesses. Appellant argued that allowing one party’s expert to review the deposition testimony of the other party’s expert effectively defeats the purpose of the rule, allowing an expert to directly address and comment on the other witness’s testimony. The Court of Appeals disagreed and affirmed. While Kentucky has never ruled on the issue, the Court noted that federal cases consistently hold that FRE 615 does not apply between deposition and trial. The Court of Appeals agreed with this reasoning and held that when a party seeks to prevent disclosure of his or her expert’s pre-trial deposition, the appropriate remedy is to seek a protective order under CR 26.03. The Court further held that KRE 615 only requires sequestration of witnesses prospectively from the point in time that the rule is invoked. Owensboro Health’s experts had already reviewed the depositions at issue at the time the motion was made for separation of witnesses. Consequently, the Court found no violation of KRE 615 and concluded that the circuit court did not abuse its discretion by denying the motion to exclude Owensboro Health’s experts.
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