CHARLOTTE A. NEAL, EXECUTRIX OF THE ESTATE OF MICHAEL H. NEAL; and CHARLOTTE A. NEAL, INDIVIDUALLY APPELLANTS
RICHARD D. FLOYD, IV, M.D. and NEW LEXINGTON CLINIC, P.S.C. APPELLEES
FROM FAYETTE CIRCUIT COURT HONORABLE JAMES D. ISHMAEL, JR.,
JUDGE ACTION NO. 13-CI-00221
FOR APPELLANTS: Kris D. Mullins Keith R. Mitnik D. Tysen
Smith, II Lexington, Kentucky
FOR APPELLEES: Donald P. Moloney, II E. Douglas Stephan
BEFORE: DIXON, JOHNSON, TAYLOR, JUDGES.
Charlotte A. Neal, Executrix of the estate of Michael H.
Neal, and Charlotte A. Neal, individually (collectively,
"Neals"), bring this appeal from a Trial Verdict
and Judgment and an Order Overruling Plaintiffs' Motion
for New Trial in Richard D. Floyd, IV, M.D. ("Dr.
Floyd") and New Lexington Clinic, P.S.C.'s
("Clinic") favor, entered on November 30, 2016 and
December 22, 2016, respectively. After reviewing the record
in conjunction with the applicable legal authorities, we
AFFIRM in part and REVERSE in part the Fayette Circuit Court
and REMAND this matter for a new trial.
underlying matter involves medical treatment received by
Michael H. Neal ("Mr. Neal") under the care of Dr.
Floyd. Dr. Floyd performed open heart surgery on Mr. Neal on
January 16, 2012. There were complications both during and
after the surgery which led to Mr. Neal's death on
January 19, 2012. Charlotte Neal filed suit on January 22,
2013, alleging negligence on the part of Dr. Floyd, St.
Joseph Hospital, and the Clinic. St. Joseph Hospital was
dismissed from the underlying action via an Agreed Order
entered on November 30, 2016.
hearing the evidence, the jury returned a verdict of 10-2 in
Dr. Floyd and Clinic's favor, finding that Dr. Floyd did
not breach the standard of care he owed Mr. Neal. The Trial
Verdict and Judgment was entered on November 30, 2016. The
Neals filed a Motion for New Trial pursuant to Kentucky Rules
of Civil Procedure ("CR") 59.01 on December 12,
2016. The court entered its Order Overruling Plaintiffs'
Motion for New Trial on December 22, 2016.
Neals filed their Notice of Appeal on January 17, 2017, and
raise four issues: The Neals' counsel was improperly
prevented from discussing the standard of proof in a civil
case during voir dire; the Neals' counsel was
improperly prevented from explaining the standard of proof
during closing argument; the trial court erred by not
answering the jury's question with respect to the
preponderance of evidence standard of proof in a civil case;
and Juror 4243 should have been stricken for cause. Based on
these allegations of impropriety, the Neals request reversal
and remand for re-trial.
established clear precedent for the appropriate standard of
review when examining a trial court's decision to grant
or deny a request for reversal and remand for a new trial.
The granting of a new trial is within the discretion of the
trial court. When a trial court denies a motion for a new
trial, our standard of review is whether there has been an
abuse of that discretion. The test for abuse of discretion is
whether the trial judge's decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal
principles. We presume the trial court to be correct and will
reverse only upon clear error.
Kaminski v. Bremner, 281 S.W.3d 298, 304 (Ky. App.
2009) (internal citations and quotation ...