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Zewoldi v. Transit Authority of River City

Court of Appeals of Kentucky

May 18, 2018



          BRIEF FOR APPELLANT: Sam Aguiar Terry Goodspeed Robyn Rochelle Smith Louisville, Kentucky.

          BRIEF FOR APPELLEES: R. Allen Button R. Thad Keal Michelle Foley Turner Prospect, Kentucky.

          ORAL ARGUMENT FOR APPELLANT: Terry Goodspeed Louisville, Kentucky.

          ORAL ARGUMENT FOR APPELLEES: R. Allen Button Prospect, Kentucky.



          LAMBERT, D., JUDGE.

         Kibrom Zewoldi brings this appeal from several rulings by the Jefferson Circuit Court related to the trial of his personal injury claim against the Transit Authority of River City ("TARC") and its employee, Carolyn Bryant (collectively, "the Appellees"). Zewoldi contends that the trial court: improperly excluded expert witness testimony and documentary evidence, abused its discretion in failing to grant a continuance, and failed to give a jury instruction as to punitive damages.

         Having reviewed the record, we agree with Zewoldi as it relates to the fettering of his expert's testimony, as to the admissibility of his medical records, as to the admissibility of Bryant's employee records, and in the denial of a continuance. On those issues we reverse the trial court. As for the remaining allegations of error, the admissibility of the written statements of the other passengers and the denial of a punitive damages instruction, we find no error by the trial court and affirm.

         But because we reverse the trial court on issues substantially affecting the evidence, we must remand the matter for further proceedings before the trial court.


         A thunderstorm struck Louisville on the night of July 1, 2012, which disrupted electrical service throughout the city and left traffic signals temporarily inoperative. At approximately 10:45 P.M., while the city was darkened, a public transportation coach owned by TARC and driven by Bryant, collided with another vehicle as it passed through a downtown intersection. Four passengers of the coach, including Zewoldi, required emergency medical treatment at University of Louisville Hospital. Zewoldi had sustained a broken jaw, which required surgery to repair approximately six months later.

         Bryant distributed witness statement forms to the passengers after the crash, per TARC's policy regarding collisions involving its vehicles. On these forms, the passengers each gave a brief written statement regarding the circumstances of the crash.

         All four injured passengers filed civil actions. Those actions were consolidated and the other three passengers settled their claims, leaving only Zewoldi's claims for trial.

         Discovery became a contentious issue. The trial court issued a scheduling order on July 21, 2014, which set the matter for trial on Monday, March 2, 2015, and directed Zewoldi to make his expert witness disclosures by December 2, 2014. The order further cautioned that failure to meet this deadline could result in sanctions.

         Zewoldi, having not yet disclosed any expert witnesses, moved to continue the trial on December 31, 2014, arguing that neither party had completed discovery. Though the motion itself did not identify any specific witnesses or documents outstanding, Zewoldi noticed a deposition on January 2, 2015, for the records custodian of the University of Louisville Hospital to take place on January 14, 2015. At the hearing on the motion on January 5, 2015, Zewoldi argued that that no identifiable prejudice would result from the granting of a continuance. Notwithstanding the forthcoming deposition and the outstanding discovery, the trial court denied this motion, and ordered that the trial should proceed as scheduled.

         Zewoldi tendered his CR[2] 26 expert witness disclosure on January 6, 2015, about a month after the court's deadline but still nearly two months ahead of the trial date. This disclosure related to Kevin Potts, M.D., who would not only offer factual testimony regarding Zewoldi's course of medical treatment as his physician, but also render expert opinions as to causation of his injury, the likelihood of future medical expenses, and also for rebuttal of any experts the Appellees may offer.

         The Appellees also failed to meet their expert disclosure deadline, though the Appellees' counsel noted at oral argument in this appeal that they did not feel compelled to produce their own expert because Zewoldi, as the party bearing the burden of proof, had already failed to make his disclosure.

         The Appellees moved to strike Zewoldi's expert disclosure and exclude Dr. Potts' testimony entirely. The trial court partially granted that motion, restricting Potts' testimony to "expert opinions memorialized in the Plaintiff's medical records." On the other hand, the same order also permitted the Appellees to present expert testimony. The Appellees finally disclosed their own expert six days before trial, on February 24, 2015.

         On January 12, 2015, TARC tendered responses to Zewoldi's outstanding requests for admissions, interrogatories, and requests for production of documents. Request No. 5 of his requests for production of documents simply stated: "Please provide the entire personnel file of Defendant Bryant." TARC responded by attaching what Zewoldi believed to be Bryant's complete file. However, approximately six weeks later, on Friday, February 27, 2015, TARC produced a previously undisclosed part of Bryant's employment file to Zewoldi. TARC made this disclosure just before the close of business that Friday, with the trial scheduled to begin the following Monday morning. TARC justified this extremely late disclosure by alleging the documents had been missing or misplaced. Simultaneously therewith, TARC also identified a new witness it intended to call at trial, TARC employee Terry Brown.

         Zewoldi sought to introduce certain documentary evidence at trial. Among these records was the portion of Bryant's employment record TARC had provided-nearly literally-on the eve of trial. It documented numerous infractions by Bryant, contained a recommendation that Bryant be suspended from driving that dated from before the crash at issue here, and noted her termination after the crash. Other records Zewoldi sought to enter included the written statements regarding the crash given by other ...

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