FROM JEFFERSON CIRCUIT COURT HONORABLE A. C. MCKAY CHAUVIN,
JUDGE ACTION NOS. 13-CI-000231, 13-CI-000486, 13-CI-006602
FOR APPELLANT: Sam Aguiar Terry Goodspeed Robyn Rochelle
Smith Louisville, Kentucky.
FOR APPELLEES: R. Allen Button R. Thad Keal Michelle Foley
Turner Prospect, Kentucky.
ARGUMENT FOR APPELLANT: Terry Goodspeed Louisville, Kentucky.
ARGUMENT FOR APPELLEES: R. Allen Button Prospect, Kentucky.
BEFORE: D. LAMBERT, SMALLWOOD, AND THOMPSON.
LAMBERT, D., JUDGE.
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.
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.
because we reverse the trial court on issues substantially
affecting the evidence, we must remand the matter for further
proceedings before the trial court.
FACTUAL AND PROCEDURAL HISTORY
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.
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
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.
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.
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.
tendered his CR 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.
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
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.
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.
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 ...