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Ford v. Reiss

Court of Appeals of Kentucky

May 3, 2019



          BRIEFS FOR APPELLANT: William F. McMurry GROUP, INC.: Mikell T. Grafton Louisville, Kentucky

          BRIEF FOR APPELLEE, BAPTIST HEALTH MEDICAL Gerald R. Toner Andie Brent Camden Caitlin E. Housley Louisville, Kentucky



          LAMBERT, JUDGE:

         Jennifer Ford, M.D. ("Ford") appeals from a final judgment of the Jefferson Circuit Court in favor of appellee Baptist Health Medical Group, Inc. ("Baptist"), in Ford's medical negligence claim. Ford argues the trial court failed to strike three jurors for cause, erred in ruling on an evidentiary issue, and erroneously permitted Baptist to present inappropriate burden of proof arguments during voir dire. Upon review, we affirm.

         On March 23, 2015, Ford asserted a claim of medical negligence against Baptist in the Jefferson Circuit Court on the grounds that treating physician, Steven J. Reiss, M.D. ("Dr. Reiss"), negligently failed to timely anticipate, identify, diagnose, and correctly address a rare neurosurgical emergency called cauda equina syndrome.[1] Ford initially asserted claims against Dr. Reiss, but all claims against him were dismissed before trial. Ford claimed she sustained permanent injuries as a result of the alleged negligence and was consequently entitled to an award of damages to recoup her medical expenses and lost wages and compensation for her pain and suffering.

         This matter proceeded to a jury trial against Baptist, beginning on April 25, 2017. After hearing the parties' proof, a Jefferson County jury returned a verdict in favor of Baptist. On May 16, 2017, the circuit court entered a judgment in accordance with the jury verdict. Ford subsequently moved for a new trial pursuant to Kentucky Rules of Civil Procedure Rule (CR) 59.05, which was denied by order entered September 14, 2017. This appeal followed.

         Before we address the merits of Ford's claims, we must address two procedural issues. First, Ford attempts to appeal from the trial court's order denying a new trial. This Court has consistently held an "order denying [a] CR 59.05 motion [is] an inherently interlocutory and non-appealable order." Jones v. Livesay, 551 S.W.3d 47, 49 (Ky. App. 2018). When an appellant states she is appealing the interlocutory order denying CR 59.05 relief, we should ignore it because "[t]here is no appellate jurisdiction over the typical interlocutory order." Cassetty v. Commonwealth, 495 S.W.3d 129, 132 (Ky. 2016). Therefore, we address only the issues Ford raises as to the final judgment.

         Second, Ford's brief is deficient. Although not commented on by Baptist, Ford's brief lacks a preservation statement for each argument. CR 76.12(4)(c)(v) requires a statement of preservation:

so that we, the reviewing Court, can be confident the issue was properly presented to the trial court and therefore, is appropriate for our consideration. It also has a bearing on whether we employ the recognized standard of review, or in the case of an unpreserved error, whether palpable error review is being requested and may be granted.

Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). "Our options when an appellate advocate fails to abide by the rules are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice only[.]" Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). In this case, we elect to ignore the deficiency for two reasons: (1) Ford's recitation of the procedural history contains numerous cites to the record; and (2) Ford's three arguments either lack merit or are unpreserved for appellate review.

         For her first issue, Ford argues the trial court erred when it failed to strike three jurors for cause, forcing her to use peremptory strikes to eliminate them from the pool. Ford further argues she would have used her peremptory strikes to eliminate potential jurors who were insurance company employees or were otherwise objectionable. However, Ford's argument was not properly preserved for appellate review. "[I]n order to complain on appeal that [she] was denied a peremptory challenge by a trial judge's erroneous failure to grant a for-cause strike, the [party] must identify on [her] strike sheet any additional jurors [she] would have struck." Gabbard v. Commonwealth, 297 S.W.3d 844, 854 (Ky. 2009); Grubb v. Norton Hospitals, Inc., 401 S.W.3d 483, 487 (Ky. 2013) (extending the requirement in Gabbard to civil cases). Although Ford orally informed the court which jurors she would have struck had the trial court granted the requested for-cause strikes, her strike sheet lacks any such notation. The Supreme Court of Kentucky has made clear that in "all cases tried after finality of our decision in Gabbard," parties must identify on their strike sheet any additional jurors they would have struck in order to properly preserve the issue for appeal. Pauley v. Commonwealth, 323 S.W.3d 715, 720 (Ky. 2010). Ford failed to comply with the requirement in Gabbard, so we cannot address her unpreserved argument.

         Second, Ford argues the trial court erred when it permitted Baptist to present an implicit comparative negligence defense after granting summary judgment on the issue. More specifically, Ford asserts Baptist was permitted to refer to her as a "sophisticated" patient because she is an obstetrician/gynecologist and argues this was a backdoor approach to place blame on her. We review a trial court's evidentiary ruling for abuse of discretion. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000); see also Pauly v. Chang, 498 S.W.3d 394, 411 (Ky. App. 2015). "The test for abuse of discretion is whether the trial judge's ...

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