Opinion
NO. 2011-CA-002263-MR NO. 2012-CA-000017-MR
02-22-2013
MARY EVANS, as Legal Guardian of SHAYLA McCANN APPELLANT/CROSS-APPELLEE v. BARRETT B. BRADLEY, M.D.; JAMES W. AKIN, JR., M.D.; ROBERT C. TRENT, M.D.; KATHRYN D. HIGH, M.D.; MURRAY B. CLARK, Associate Vice President for Medical Center Operations; UNIVERSITY OF KENTUCKY MEDICAL CENTER; UNIVERSITY HOSPITAL OF THE ALBERT B. CHANDLER MEDICAL CENTER, INC.; KENTUCKY MEDICAL SERVICES FOUNDATION, INC.; UNKNOWN NURSE (initials A.T., R.N.); UNKNOWN NURSE (initials R.D., R.N.); AND UNKNOWN NURSE (initials V.K., R.N.) APPELLEES/CROSS-APPELLANTS
BRIEF FOR APPELLANT/CROSS- APPELLEE: Stephen M. O'Brien, III Aaron J. Bentley Harold L. Kirtley, II Lexington, Kentucky ORAL ARGUMENT FOR APPELLANT/CROSS-APPELLEE: Stephen M. O'Brien, III Lexington, Kentucky BRIEF FOR APPELLEES/CROSS- APPELLANTS: Bradley A. Case Stephen J. Mattingly Louisville, Kentucky ORAL ARGUMENT FOR APPELLEES/CROSS- APPELLANTS: Bradley Case Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL AND CROSS-APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 07-CI-02910
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND NICKELL, JUDGES. COMBS, JUDGE: Mary Evans, as legal guardian of Shayla McCann, appeals the judgment of the Fayette Circuit Court entered in favor of Dr. Robert Trent and Dr. James Akin in a medical negligence action. Following our review, we affirm.
Shayla was born on June 29, 1988, at the University of Kentucky Medical Center (UKMC). Dr. Trent and Dr. Akin oversaw her delivery. Dr. Trent was a third-year resident, and Dr. Akin was the chief resident on duty that night. Shayla was born in a medically depressed condition - her skin was blue, her heartbeat was low, and she needed a ventilator to help her breathe for the first few hours of her life. When Shayla was eight months of age, she was diagnosed with a profound case of cerebral palsy, a condition that results from an injury to an otherwise normally developing brain. Shayla is completely dependent on others for her care.
This lawsuit was filed in Fayette Circuit Court in 2007. It alleges that Shayla's cerebral palsy was negligently caused by the doctors' failure to deliver her by means of a Caesarean section. The complaint named several individuals and entities as defendants -- including UKMC. At the time of trial, only Dr. Trent and Dr. Akin had not been dismissed.
A jury trial was held from October 31, 2011, through November 9, 2011. Both parties presented multiple witnesses. Evans's witnesses testified that Shayla's injury occurred within the last thirty minutes of labor before she was born. The witnesses essentially believed that if she had been delivered earlier by a Caesarean section, she would not have suffered cerebral palsy. The experts pointed to portions of the medical records which they believed were clear indications that Shayla was in danger during labor. Their consensus was that Dr. Trent and Dr. Akin had not met the standard of care for obstetricians that was current in 1988.
In stark contrast, the witnesses for Dr. Trent and Dr. Akin testified that it is nearly impossible to determine the cause of cerebral palsy. They further testified that Shayla's type of cerebral palsy is not the type that results from a birth injury. They also offered several alternative possible causes for Shayla's injury. Furthermore, these experts testified that the medical records did not indicate that Shayla was in danger during labor and that Dr. Trent and Dr. Akin acted reasonably under the obstetrical standard of care in 1988. The jury ultimately returned a verdict in favor of Dr. Trent and Dr. Akin. Evans now appeals.
Evans's first argument is that the trial court committed error when it dismissed UKMC from the lawsuit. Because the trial court dismissed UKMC as a matter of law, our review is de novo. Benningfield v. Pettit Environmental, Inc., 183 S.W.3d 567, 570 (Ky. App. 2005).
The trial court dismissed UKMC as a party from the lawsuit because it found that UKMC was entitled to governmental immunity. The doctrine of immunity is "a bedrock component" of our law. Caneyville Volunteer Fire Dep't v. Green's Motorcycle Salvage, Inc., 286 S.W.3d 790, 799 (Ky. 2009). It is grounded in Section 231 of the Kentucky Constitution: "The General Assembly may, by law, direct in what manner and in what courts suits may be brought against the Commonwealth."
Sovereign immunity grants to the "state, legislators, prosecutors, judges, and others doing the essential work of the state" immunity from fear of suit. Autry v. Western Kentucky Univ., 219 S.W.3d 713, 717 (Ky. 2007). The case before us, however, involves governmental immunity. Governmental immunity is granted to state agencies in their performance of governmental (as distinguished from proprietary) functions. Yanero v. Davis, 65 S.W.3d 510, 519 (Ky. 2001).
Our Supreme Court has specifically determined that UKMC is indeed entitled to governmental immunity. Withers v. University of Kentucky, 989 S.W.2d 340 (Ky. 1997). In its analysis, the Court first noted that Kentucky Revised Statute[s] (KRS) 44.073(1) designates public institutions of higher learning as agencies of the state. Id. at 343. The court then observed that by enacting KRS 164.125(2), the General Assembly defined the University of Kentucky as:
the principal state institution for the conduct of statewide research and statewide service programs and shall be the only institution authorized to expend state general fund appropriations on research and service programs of a statewide nature financed principally by state funds. (Emphasis added.)Id. This designation, the Court declared, left no question that the University was clothed with immunity. When the appellants in Withers argued that this immunity did not extend to UKMC, the Court disagreed in most definite terms.
The operation of a hospital is essential to the teaching and research function of the medical school. Medical school accreditation standards require comprehensive education and training and without a hospital, such would be impossible. Medical students and those in allied health sciences must have access to a sufficient number of patients in a variety of settings to insure proper training in all areas of medicine. Such is essential to the mandate of KRS 164.125(1)(c).Id. (KRS 164.125(1)(c) orders the University of Kentucky to provide a medical program for the citizens of the Commonwealth.) Relying on Withers, this Court also has recently found that UKMC was immune from lawsuit. Garrison v. Leahy-Auer, 220 S.W.3d 693 (Ky. App. 2006).
Regardless of Withers and Garrison, Evans contends that UKMC should have remained as a real party in interest because its Medical Malpractice Compensation Fund would have been responsible for paying any damages awarded to Shayla. We disagree.
Pursuant to KRS 164.941, the University has established a fund which satisfies medical malpractice judgments against agents of UKMC. KRS 164.941(7) also provides that the University must pay for the defense of claims that are potentially subject to being paid by the fund. In this case, Dr. Trent and Dr. Akin were being sued in their capacity as agents of UKMC in 1988. Therefore, the claims against them were subject to coverage by the fund. As a result, Evans argues that UKMC was a real party in interest and should have been disclosed to the jury, essentially negating the trial court's finding of immunity.
Evans provides two cases which she alleges mandate disclosure of the fund to the jury and suggests that they supersede the immunity granted to UKMC. The first is Earle v. Cobb, 156 S.W.3d 257 (Ky. 2004). In Earle, our Supreme Court reversed and remanded for a new trial because an underinsured motorist carrier had not been identified at trial. In this motor vehicle accident case, the original plaintiff, Earle, had sued her own insurance company in addition to another private motorist. The Court held that because a contractual relationship existed between the plaintiff and the defendant insurance company, it was prejudicial to not identify the insurance company as a party. That situation, however, does not govern the case before us. In this case, there is no contractual relationship between the plaintiff, Evans, and UKMC's compensation fund. Furthermore, the private insurance company in Earle was not entitled to any claims of immunity, and it was an actual party at the time of trial. We cannot agree that Earle compels or permits us to disregard the solid precedent of Withers.
The second case that Evans proposes in support of her argument is Williamson v. Schneider, 205 S.W.3d 224 (Ky. App. 2006). In Williamson, the trial court did not allow the jury to be informed that Schneider's employer, a health-care clinic, was also a party defendant. This Court remanded for a new trial. Again, we are not persuaded that this case provides precedent that overrules Withers. The clinic in Williamson was not an agency of the state that was entitled to immunity. At the time of trial, the clinic was actually a party. In the case before us, UKMC had been dismissed as a party and unquestionably is entitled to immunity. Thus, Williamson does not provide an adequate basis to challenge Withers.
Furthermore, our Supreme Court has already settled the issue of whether the Compensation Fund creates implications concerning the immunity of UKMC. A series of cases had determined that the fact of having insurance implied a waiver of immunity. In response, the General Assembly enacted KRS 44.073(14):
the purchase of liability insurance or the establishment of a fund for self-insurance by the Commonwealth, its Cabinets, departments, bureaus, or agencies or its agents, officers, or employees thereof for a government related purpose or duty shall not be construed as a waiver of sovereign immunity or any other immunity or privilege thereby held. (Emphasis added.)(Held to be unconstitutional on other grounds by Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001)). As the Withers Court later recognized,
[w]e must construe all words and phrases according to the common and approved uses of language. In obedience to the following, we must apply literally the language which says that a waiver of sovereign immunity shall not be construed from the purchase of liability insurance or the establishment of a fund for self-insurance.Withers v. University of Kentucky, 939 S.W.2d at 345. (Internal citations omitted). Evans argues that because UKMC was insured by the compensation fund, it should have been recognized as a party. This contention is precisely contrary to the state of the law, and we are not permitted to disregard it. We are bound by rule to follow Supreme Court precedent. See Kentucky Rule[s] of the Supreme Court (SCR) 1.030(8)(a). Therefore, we conclude that the trial court did not err in this matter.
Evans's second claim of error addresses a statement in the closing argument of defense counsel implying that the doctors would not be indemnified by insurance. She contends that her counsel should have been permitted to inform the jury that a judgment in her favor would be satisfied by the university's compensation fund -- not by the doctors themselves.
In her brief, Evans states: "counsel for Appellees argued in his closing statement that for the jury to find in favor of Appellant, it would have to do so 'at the expense of these two physicians - of Bob Trent and Jamie Akin....'" Evans contends that this statement violated the long-standing principle that attorneys are not permitted to comment on the financial conditions of the parties.
Counsel is permitted great latitude in its closing arguments to the jury. Jones v. City of Bowling Green, 354 S.W.2d 749, 751 (Ky. 1962). However, Evans is correct that 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). 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).
In light of the directive of Rockwell, it is important for us to analyze counsel's words in context. After providing the jury with a thorough summation of the evidence that had been presented, counsel ended his argument with the following statement:
Shayla McCann is a remarkable young woman. She's done incredibly well for someone with cerebral palsy and with the limitations she has. That's a testament to the care, attention, love she has received from her family . . . You might feel the urge - and it's going to be natural - you're going to feel a great amount of sympathy. You might feel the urge to just want to help her in any way you can. I respectfully suggest to you, though, that this is not the forum to do it. Because to do that, you would have to do it at the expense of these two physicians, of Bob Trent and Jamie Akin, even though they exercised reasonable, standard, obstetrical care under 1988 standards, over that seven-hour period of time at the University of Kentucky on June 28-29, 1988. You took an oath at the beginning of this case to give a true verdict according with the evidence and the law. If you know, deep down inside, that these doctors did not commit medical malpractice, that these doctors aren't responsible for Shayla having this condition, I ask you to have the courage to follow that oath and to return to the courtroom with a verdict that tells Dr. Trent and Dr. Akin, "While we feel a great amount of sympathy for Shayla - while we'd like to help her - we can't hold you responsible under the evidence we heard for her cerebral palsy." Thank you very much.At that point, the court dismissed the jury for a short break. Evans's counsel approached and asked the judge for permission to clarify to the jury that the compensation fund would be responsible for payment of damages. He contended that counsel's use of the phrase "at the expense of these two physicians" opened the door to the source of payment of damages. Defense counsel explained that by the language "at the expense of," he meant that the two physicians would be "saddled with a verdict that says they are responsible for [Shayla's] having that condition." The court agreed with defense counsel that the expression was metaphorical and determined that it was a reasonable and appropriate statement for closing arguments.
We agree. Counsel was clearly not commenting on the financial condition of either party. "At the expense of" is a common American turn of phrase. One of the dictionary definitions of the word expense is "a loss, detriment, or embarrassment that results from some action or gain." Merriam-Webster 408 (10th Ed.). It provides as an example, "Everyone had a laugh at my expense." Id.
It was clearly arguable that in this case, counsel was not referring to a monetary condition and that he was invoking the word expense to encompass the embarrassment or damage to professional reputation inevitably resulting from any adverse verdict. He had not mentioned the financial condition of Evans nor of the defendant physicians. As he explained in the bench conference, the doctors' reputations and consciences would have been forever tarnished. The actual words, the context in which the words were spoken, and counsel's explanations at the bench conference all support such an interpretation.
Defense counsel's closing arguments lasted sixty-two minutes. The jury heard an hour-long summation of evidence and then the closing paragraph, which lasted two minutes. We are unable to construe any of counsel's comments as prejudicial. Counsel was highly respectful toward Evans, Shayla, and their family members and endeavored to express to the jury and to Shayla's family that he was sympathetic toward the situation.
We are not persuaded that the comment warranted a discussion of insurance responsibility. Just as the court in Jones recognized that jurors are intelligent enough to understand that "any judgment against the commonwealth would necessarily have to be paid out of taxes collected by it," we believe that this jury likely understood that the doctors would be covered by some sort of insurance. Jones v. City of Bowling Green, supra. Kentucky Rule[s] of Evidence (KRE) 411 explicitly prohibits the mention of insurance unless it is to prove "agency, ownership, or control, or bias or prejudice of a witness." Evans has not demonstrated that discussion of the compensation fund would qualify for the purpose of any of the listed exceptions allowing it to be discussed or identified. Therefore, we cannot conclude that the trial court erred in its exclusion of reference to the compensation fund during closing arguments.
Evans next argues that the trial court erred by not allowing Shayla's conservator to intervene in the lawsuit. On October 24, 2011, the Fayette District Court appointed Kentucky Guardianship Administrators, LLC (KGA), to be the conservator of Shayla's property. The appointment was made with the expectation that if Shayla were awarded the millions of dollars that she sought in the lawsuit, the financial professionals of KGA would be responsible for managing her assets. On the same day, Evans filed a motion for KGA to intervene in the lawsuit. The court overruled the motion on October 28, 2011.
Evans relies on Kentucky Rule[s] of Civil Procedure (CR) 24.01(1), which governs intervention by right:
Upon timely application anyone may be permitted to intervene in an action: (a) when a statute confers a conditional right to intervene, or (b) when the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless that interest is adequately represented by existing parties.
Evans does not contend that a statutory right exists to warrant intervention. However, she claims that KGA had the right to intervene under subsection (b) of CR 24.01(1) because it claimed an interest in Shayla's property.
In order to intervene, the interest of the petitioner must be a "present substantial interest in the subject matter of the lawsuit as distinguished from a mere expectancy or contingent interest." Gayner v. Packaging Service Corp. of Kentucky, 636 S.W.2d 658, 659 (Ky. App. 1982). KGA's interest was indeed a "mere expectancy" that could only materialize if Shayla acquired assets by way of a judgment. Without the judgment, she did not have any assets for KGA to manage. Even if we were to construe KGA's interest as having been a present one, the rule permits it to intervene only if "disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless that interest is adequately represented by existing parties." Evans has not presented any proof that KGA's ability to protect its interest in Shayla's assets was impeded by disposition of the lawsuit -- nor that the representation during the action was inadequate.
Evans implies that the absence of KGA as a party might have caused the jury to withhold an award. She argues that if KGA had been a party, the jury would have known that the money would not have been spent frivolously by her. However, that argument is purely speculative. This Court reviewed the record closely; the defense never suggested to the jury that it should not find for Shayla because the money might be squandered. In fact, Evans herself testified that a financial advisor would be the sole manager of any money awarded to Shayla. Evans has failed to prove that any prejudice resulted from the trial court's denial of KGA's motion to intervene.
Evans's final argument is that the trial court erred in prohibiting counsel from eliciting testimony from an expert witness concerning his previous employment with medical malpractice insurance companies. Our standard of review for evidentiary issues is whether the trial court abused its discretion. Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky. 1996) (overruled on other grounds by Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky. 2008)). Our Supreme Court has defined abuse of discretion as a court's acting arbitrarily, unreasonably, unfairly, or in a manner "unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
One of the defense expert witnesses was Dr. Larry Griffin. At one time, Dr. Griffin had worked as a consultant for a company that sold malpractice insurance to physicians. Evans's counsel wished to examine Dr. Griffin about that employment in order to show the jury that he was potentially biased against patients in malpractice cases. Evans also wanted to discuss Dr. Griffin's past involvement with a Political Action Committee that advocated tort reform. Evans based her request on Woolum v. Hillman, 329 S.W.3d 283 (Ky. 2010), a case in which the court allowed evidence that the defendant and the defense expert shared a common malpractice insurance provider. After reviewing Woolum, the trial court ruled that her counsel could question Dr. Griffin about his potential bias but that he could not mention that the company at issue was an insurance company.
The trial court has broad discretion in its control of the scope of cross-examination. Wallace v. Leedhanachoke, 949 S.W.2d 624, 625 (Ky. App. 1996). Admission of evidence proving bias is a determination to be made on a case-by-case basis with the court's weighing the probative value of the evidence against the risk of prejudice. Woolum v. Hillman, 329 S.W.3d at 288-89.
The trial court's decision in this case was reasonable. Evans was able to examine Dr. Griffin thoroughly about his prior employment. He explained that most of his current consulting work is performed for defense clients. He candidly explained that he had worked as a consultant evaluating medical malpractice claims in order to determine whether there was merit in defending them. Dr. Griffin also discussed his personal views on tort reform during his redirect testimony. He had advocated for tort reform but was not in favor of limiting patients' access to the courts, limits on recovery, or limits on attorney fees.
Evans also questioned Dr. Griffin about his involvement in the American Congress of Obstetricians and Gynecologists (ACOG). He acknowledged that it supports tort reform, but he added that he does not agree with all aspects of tort reform. Dr. Griffin also informed the jury about the Political Action Committee for which he worked, and he commented that he believes that it is important to have reasonable judges and legislators. Evans undertook a very thorough cross-examination, which provided the jury with sufficient information to ponder whether Dr. Griffin might be biased. Evans does not offer any proof of how the evidence would have been different if it had included the word insurance.
Evans also complains that Dr. Griffin offered too much information about his views of tort reform in his redirect testimony. We are unable to ascribe merit to this argument because Evans opened the door to Dr. Griffin's tort reform opinions when she attempted to show his bias on cross-examination. She claimed that she did not have an opportunity to cross-examine Dr. Griffin about those views because they were not brought up during his deposition. However, Evans did have the opportunity to question Dr. Griffin outside the presence of the jury between his direct and cross-examination testimony but did not do so. The court's rulings regarding Dr. Griffin's testimony were not erroneous.
Because we have affirmed the trial court on all of the arguments presented by Evans, the Appellees' cross-appeal has been rendered moot. Nonetheless, we will address it briefly. The Appellees contend that the trial court erred in giving the jury a missing evidence instruction. A missing evidence instruction is one that informs the jury that if it believes a party intentionally or in bad faith lost or destroyed a piece of evidence, the jury may infer that the evidence was adverse to the party who lost it.
In this case, the trial court gave the jury a missing evidence instruction regarding the electronic fetal monitoring strips. Fetal monitoring strips are the paper output from the machines which were used to monitor Shayla's heart-rate during labor. Evans requested the strips as part of the medical records relating to Shayla's birth. The University of Kentucky was unable to locate them.
The trial court relied on University Medical Center, Inc. v. Beglin, 375 S.W.3d 783 (Ky. 2011), when deciding whether to give the missing evidence instruction. We are persuaded that application of Beglin in this case would have supported a refusal by the trial court to give a missing evidence instruction and that the court erred in giving the instruction. However, we also agree that the error was harmless.
Beglin holds that:
when it may be reasonably believed that material evidence within the exclusive possession and control of a party, or its agents or employees, was lost without explanation or is otherwise unaccountably missing, the trier of fact may find that the evidence was intentionally and in bad faith destroyed or concealed by the party possessing it and that the evidence, if available, would be adverse to that party or favorable to his opponent.Id. at 792. The facts in this case are distinguishable from Beglin. The defendant parties at trial were Dr. Trent and Dr. Akin. It is undisputed that storage of records is the responsibility of the university's records retention department -- not physicians. Although Dr. Trent and Dr. Akin handled the fetal monitoring strips during the labor, the strips were not in their exclusive possession and control. Even if the instruction should apply to the University of Kentucky as their employer, there was no evidence that the records were lost intentionally or in bad faith.
The records custodian for the University of Kentucky testified that in 1988, fetal monitoring strips were stored in bankers' boxes that were then taken to a warehouse. The boxes were labeled according to the time period of their contents. When she received the request for the strips, the custodian had twenty boxes that spanned several months prior to June 1988 through several months afterward. The contents of the boxes, as well as some of the boxes themselves, had sustained serious damage because they had been in a warehouse for nearly twenty years. Mice had infested the boxes; consequently, many of the records were damaged from feces, urine, and decayed carcasses. Many had missing labels. It is possible that Shayla's records were in the boxes but had lost their labels.
The Beglin court specifically cautioned that in cases of "mere negligence," the missing instruction should not be given, explaining that mere negligence is inadvertence. Id. at 791. It also held that the instruction is inappropriate if there is an adequate explanation for the loss of the evidence. Id., citing Robert G. Lawson, The Kentucky Evidence Law Handbook, § 2.65[3] (4th ed. 2003). We are persuaded that the conditions in the warehouse constituted an adequate explanation for the inability to locate the fetal monitoring strips. Even if every box in existence had been searched, the records might not be found due to damage by vermin. The situation did not merit the missing evidence instruction.
However, because the verdict was in the physicians' favor and we are affirming, the argument is moot, and under the circumstances, it was harmless.
In summary, we affirm the judgment of the Fayette Circuit Court.
CLAYTON, JUDGE, CONCURS.
NICKELL, JUDGE, CONCURS BY SEPARATE OPINION.
NICKELL, JUDGE, CONCURRING: I concur with the majority's opinion. However, I write separately to comment on defense counsel's singular, isolated, and ambiguous comment during his hour-long closing argument wherein he cautioned the jury against finding in Evans's favor out of a sense of sympathy for her serious medical condition "[B]ecause to do that, you would have to do it at the expense of these two physicians, Bob Trent and Jamie Akin, even though they exercised reasonable, standard, obstetrical care . . . ." (Emphasis added).
This brief utterance is capable of being understood in two or more senses or ways. As the majority points out, the term expense may be interpreted to mean "a loss, detriment, or embarrassment that results from some action or gain." However, expense may also be understood to mean a "financial burden or outlay," "cost," or "charge." Merriam-Webster's Collegiate Dictionary, Tenth Edition, page 408 (1993).
Evans argues that the jury could reasonably have interpreted defense counsel's closing argument to mean Drs. Trent and Akin would personally incur the cost of any award—and not be indemnified by insurance. Evans asserts this inference would be incorrect—because the physicians were provided coverage under the University's Medical Malpractice Compensation Fund—and improper — because of its prejudicial nature. If such an inference were made, Evans argues jurors may have been tempted to find no causation or liability, and award little or no damages, if they believed the physicians had no liability insurance or limited financial resources. See Turpin v. Scrivner, 178 S.W.2d 971, 974 (Ky. 1944).
Evans argues defense counsel's comment "opened the door" for her counsel to "clarify" for the jury that Drs. Trent and Akin would be indemnified from the University's compensation fund for any award entered against them and that the trial court erred by refusing to allow her counsel to provide this information in his closing argument. However, at trial, Evans's counsel failed to contemporaneously object to the alleged improper argument and never asked the trial court to admonish the jury. Instead, Evans's counsel waited until a bench conference following defense counsel's closing argument to request permission to "clarify" the matter for the jury in his own closing argument. When the trial court denied his request, Evans's counsel failed to request an admonition. Objections to perceived improper statements must be contemporaneous so that the trial court has an opportunity to consider whether an admonition would cure any error. Weaver v. Commonwealth , 955 S.W.2d 722, 727-28 (Ky. 1997) (citations omitted).
Kentucky courts have strictly enforced the rule prohibiting evidence or arguments referencing the availability or absence of insurance coverage or the financial condition of either party for the purpose of persuading the jury. Murphy, 197 S.W.2d at 243. In a tort action, such evidence or argument is irrelevant to the merits concerning causation, liability, and damages; even indirect references to these matters have been condemned. Id.; White v. Piles, 589 S.W.2d 220, 222 (Ky. App. 1979) (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)). The rule is reciprocal, protecting and limiting plaintiffs and defendants, alike:
In cases which involve personal injury or wrongful death, it is generally improper for the 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.). Absent a showing of non-prejudice to the complaining party or legal excuse, introduction of evidence or argument concerning the availability or absence of insurance or a party's financial status is presumed prejudicial, represents reversible error, and requires a mistrial. White at 222 (citing Southern-Harlan Coal Co. v. Gallaier, 240 Ky. 106, 41 S.W.2d 661 (1931)).
Even so, the majority opinion correctly notes that in determining "whether the probability of real prejudice is sufficient to warrant a reversal," appellate courts must carefully review the "unique facts" of each case. Rockwell, 143 S.W.3d at 631. Here, defense counsel's brief, isolated, metaphorical comment cannot reasonably be considered prejudicial when interpreted and weighed in context with the entirety of his argument. Thus, I concur. That said, even though great latitude is allowed counsel in presenting argument to a jury, Jones v. City of Bowing Green, 354 S.W.2d at 751, the better practice would have been to refrain from any comment which—while not crossing the line—needlessly took an ill-advised step toward the prohibition. BRIEF FOR APPELLANT/CROSS-
APPELLEE:
Stephen M. O'Brien, III
Aaron J. Bentley
Harold L. Kirtley, II
Lexington, Kentucky
ORAL ARGUMENT FOR
APPELLANT/CROSS-APPELLEE:
Stephen M. O'Brien, III
Lexington, Kentucky
BRIEF FOR APPELLEES/CROSS-
APPELLANTS:
Bradley A. Case
Stephen J. Mattingly
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLEES/CROSS-
APPELLANTS:
Bradley Case
Louisville, Kentucky