TED H. JEFFERSON, D.O.; AND TED H. JEFFERSON, D.O., INC., Appellants
RONALD D. EGGEMEYER, APPELLEE
REVIEW FROM COURT OF APPEALS CASE NOS. 2013-CA-000686 &
2013-CA-000741 MCCRACKEN CIRCUIT COURT NO. 10-CI-01085.
COUNSEL FOR APPELLANTS: E. Frederick Straub, Jr. James
Richard Coltharp, Jr. Whitlow, Roberts, Houston & Straub,
COUNSEL FOR APPELLEE: Hans George Poppe, Jr. Warner Thomas
Wheat The Poppe Law Firm
Jefferson, D.O. and Ted H. Jefferson, D.O., Inc. (Dr.
Jefferson) appeal from the Court of Appeals opinion that
reversed the trial court's denial of Ronald D.
Eggemeyer's motion for a new trial. Dr. Jefferson also
appeals from the affirmation by the Court of Appeals of the
trial court's imposition of sanctions. For the following
reasons, we reverse the Court of Appeals, and we vacate the
trial court's imposition of sanctions.
fell on October 31, 2008, injuring his left upper extremity.
On November 4, 2008, Dr. Jefferson performed surgery to
repair a left humerus fracture. The fracture did not heal,
and he performed a second surgery on February 27, 2009.
Following that surgery, Eggemeyer continued to experience
pain, and he sought treatment from Dr. Holcomb in late
September. Dr. Holcomb prescribed antibiotics and referred
Eggemeyer to the Cleveland Clinic, where Eggemeyer underwent
surgery on October 13, 2009 and February 4, 2010.
September 17, 2010, attorney Hans Poppe sued Dr. Jefferson on
behalf of Eggemeyer alleging two primary theories of
liability: (1) Dr. Jefferson made mistakes during the initial
surgery that resulted in the failure of the fracture to heal;
and (2) following the second surgery, Dr. Jefferson failed to
timely identify an infection, which necessitated the two
Cleveland Clinic surgeries.
parties began to try this case before a jury on August 13,
2012. That trial ended on August 16, 2012, when the judge
declared a mistrial because Dr. Jefferson had mentioned
insurance several times in violation of the court's
order. Following the mistrial, Eggemeyer moved the court to
find Dr. Jefferson in contempt, civilly and criminally, and
for the imposition of sanctions and costs in the amount of
$64, 483.82. In support of his motion, Eggemeyer argued that
Dr. Jefferson, during his testimony, intentionally and
repeatedly violated the court's orders not to mention
insurance, which forced the court to declare the mistrial.
Dr. Jefferson also filed a motion for sanctions and costs in
the amount of $42, 048.80. In support of his motion, Dr.
Jefferson argued that Eggemeyer's counsel was responsible
for the mistrial because his questioning left Dr. Jefferson
with little choice but to mention insurance. The court abated
the parties' motions for sanctions and costs pending
completion of a second jury trial.
addition to moving for sanctions and costs, Eggemeyer moved
the court to set a second trial date as soon as possible. Dr.
Jefferson's attorney asked for a delay, noting that it
was likely he would be undergoing surgery in September 2012.
Despite counsel's request for a later trial date, the
court set the case for re-trial in November 2012. Dr.
Jefferson obtained new counsel, attorney Scott Whonsetler,
and the second trial took place as scheduled.
three separate occasions before the second trial began the
court stated that the parties would not be permitted to offer
any evidence or theories of liability or defense that: had
not been admitted during the first trial; was not in a
Kentucky Rule of Civil Procedure (CR) 26 disclosure; was not
contained in records previously admitted; or had not been in
a deposition taken prior to trial. During his opening
statement on behalf of Dr. Jefferson, attorney Whonsetler
stated that Eggemeyer developed an antibiotic resistant staph
infection, MRSA, as a result of Dr. Holcomb's treatment.
Eggemeyer objected. At the ensuing bench conference, attorney
Poppe argued that Whonsetler's statement about MRSA had
violated the court's order against raising any new
theories. Poppe also stated that Whonsetler had raised a
number of other new theories. The judge stated that he
thought he had heard a number of new theories; however, he
permitted Whonsetler to finish his opening statement. After
Whonsetler had finished his opening statement, the judge
dismissed the jury for the day and, following a brief
discussion, told the parties to be prepared to argue the
matter in the morning. We note that Poppe did not request an
admonition at that time.
next morning, Poppe outlined twelve new theories he believed
Whonsetler had raised during his opening statement. After an
hour long discussion about what constituted a theory, what
constituted a fact, and what was or was not new evidence, the
court stated that the primary issue was whether Dr. Jefferson
had provided appropriate notice to Eggemeyer of the issues
being discussed. The court then stated that it was going to
rule generally that, if there was no evidence in the record
to support Dr. Jefferson's new theories, they would not
be admissible. Furthermore, the court stated that it would
admonish the jury. Although Poppe asked the court to
specifically admonish the jury about each of Whonsetler's
"misstatements, " the court gave the following
I do want to give you one admonishment this morning, ladies
and gentlemen. I told you yesterday at the beginning of the
trial that the opening statements by the counsel are not
proof, they are not evidence in the case. I said something
like - it's like the preview of coming attractions
it's a - it's a statement by the attorneys of what
they believe their case will be, what they believe the
evidence will be, that sort of thing.
You may have taken notes on what the opening statements were
or you remember in general what the claims were by the
attorneys. The rule is that even though it's their belief
of what their case will be, what the evidence will be, their
statements have to be supported by the evidence. And
we're getting ready now to start with the evidence, so if
it is the case that at the end of this trial that you get to
the point and you say - well, one attorney or the other I
remember saying this or that, and I don't see any proof
in the record that supports that, then you would be required
to disregard that statement by the attorney if it's not
supported by the evidence in the record. Maybe you won't
get to that, maybe you will.
this admonition, Eggemeyer presented his first witness. The
court then recessed for lunch and the judge provided the
parties with a more specific outline of his evidentiary
ruling from earlier that morning. Although we do not have a
copy of that document, we do have a copy of the court's
Order as to Rulings at Trial, which was entered after the
verdict. Based on our review of the record, that order, set
forth in part below, appears to be consistent with what the
judge said during the parties' discussions of the issues.
The Court previously ruled that the parties were bound by the
evidence of record prior to the trial and to the theories of
liability disclosed by Rule 26 disclosure, deposition, and
prior trial testimony. Because this case resulted in a
mistrial four (4) days into the first trial, the Court
desired to limit costs and expenses occurred [sic] by both
sides in retrying the case. The retrial was set to begin
eighty[-]nine (89) days after mistrial in order to avoid
delay in resolving the case.
A hearing was held on the record in which counsel for both
parties set forth their positions. Time constraints prohibit
a complete recitation of the proceeding. The record will
reflect the Court's concerns as to lack of notice to the
Plaintiff of theories of liability/causation that were not
provided to Plaintiff. These rulings were stated at trial, to
be entered in this written Order subsequent to trial.
The items to which Plaintiffs counsel objected will be
1. New Fracture to Plaintiffs Arm -
Defense counsel stated to the jury that a second fracture to
the arm, subsequent to Defendant's treatment, caused
damage to the Plaintiff. There is no evidence in the record
that any witness testified or implied that a second fracture
occurred or that, if it did, it caused any of Plaintiffs
claimed damages. It is not in the CR26 e, any deposition, nor
did Defendant so testify in the first trial. Defendant is not
permitted to present evidence or argument that a second
fracture occurred or that it caused damage.
2. Presence of Sclerotic Bone -
No evidence exists that the presence of sclerotic bond [sic],
which was in the knee, caused or may have caused Plaintiffs
damages. Defendant is not permitted to present evidence or
argument that sclerotic bond [sic] in the knee caused or may
have caused damages.
3. Problem from Prosthesis -
There is evidence of a possible problem from the prosthesis,
other than inability to place screws into prosthesis, and
such is admissible only if there is testimony of pre-trial
record that an expert witness opines that it is relevant to
4. Permanent Swelling -
Only if the pretrial record contains evidence of permanent
swelling is it admissible at this time.
5. Hypertension, Smoking, Alcohol -
Only if the pretrial record contains evidence of
hypertension, smoking, or alcohol is it admissible at this
6. Bone Morphogenic Protein (BMP) -
Defense counsel states that BMP is identical to the term
"bone graft". "Bone graft" appears in the
pretrial record. Only if the pretrial record contains
evidence of BMP as to causation of Plaintiffs damages is it
relevant and admissible.
7. Second Plate in Arm "Absolutely
Testimony or argument as to the propriety or impropriety of
applying a second plate regarding causation is not admissible
absent pretrial record containing such evidence.
8. Dr. Holcolm's [sic] Antibiotic Caused
It appears there is no evidence in pretrial record that the
antibiotic prescribed by Dr. Holcolm [sic] caused MRSA. If
so, it is not admissible in proof or argument.
9. Two (2) Screws Below Fracture Line -
If there is no evidence in pretrial record that Defendant
installed two (2) screws, as opposed to one, below the
fracture line, such is not admissible.
10. Phone Call from Plaintiff to Defendant -
It appears Defendant testified prior to this trial that he
did not recall a certain phone call from Plaintiff or his
wife. He would now testify that he recalls the phone call and
his response was to direct Plaintiff to go to the emergency
room and to have them call him at a clinic he was attending.
It is possible that Defendant has, somehow, now recalled the
exchange and so he is permitted to so testify. Plaintiff may,
of course, cross-exam as to the recollection.
11. Three (3) Day Delay Before Plaintiff Went to
There is apparently evidence that Plaintiff was not seen by
Defendant until three (3) days after he fracture[d] his arm
and the fact is admissible. If there is no evidence in
pretrial record that such ...