JENNIFER FORD, M.D. APPELLANT
STEVEN J. REISS, M.D.; AND BAPTIST HEALTH MEDICAL GROUP, INC., D/B/A/ BAPTIST NEUROLOGICAL SURGERY APPELLEES
FROM JEFFERSON CIRCUIT COURT HONORABLE BRIAN C. EDWARDS,
JUDGE ACTION NO. 15-CI-001368
FOR APPELLANT: William F. McMurry GROUP, INC.: Mikell T.
Grafton Louisville, Kentucky
FOR APPELLEE, BAPTIST HEALTH MEDICAL Gerald R. Toner Andie
Brent Camden Caitlin E. Housley Louisville, Kentucky
BEFORE: LAMBERT, MAZE, AND TAYLOR, JUDGES.
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.
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. 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
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.
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
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
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.
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
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 ...