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Jefferson v. Eggemeyer

Supreme Court of Kentucky

April 27, 2017



          COUNSEL FOR APPELLANTS: E. Frederick Straub, Jr. James Richard Coltharp, Jr. Whitlow, Roberts, Houston & Straub, PLLC

          COUNSEL FOR APPELLEE: Hans George Poppe, Jr. Warner Thomas Wheat The Poppe Law Firm



         Ted H. 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.

         I. BACKGROUND.

         Eggemeyer 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.

         On 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.

         The 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.

         In 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.

         On 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.

         The 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 general admonition:

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.

         Following 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 addressed individually:
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[1] -
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 causation.
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 time.
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 Improper*[2] -
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 MRSA[3] -
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[4] -
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[5] -
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 Defendant[6] -
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 ...

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