FROM DAVIESS CIRCUIT COURT HONORABLE JOSEPH W. CASTLEN, III,
JUDGE ACTION NO. 13-CI-00217
FOR APPELLANT: Robert A. Young David W. Anderson Bowling
FOR APPELLEES: Ronald G. Sheffer Joseph P. Mankovich
ARGUMENT FOR APPELLANT: Robert A. Young Bowling Green,
ARGUMENT FOR APPELLEES: Ronald G. Sheffer Louisville,
BEFORE: GOODWINE, LAMBERT, AND MAZE, JUDGES.
Skarupa (Skarupa) appeals from a judgment of the Daviess
Circuit Court confirming a jury verdict in favor of Owensboro
Health Healthpark and Owensboro Health Medical Group, Inc
(collectively "Owensboro Health"), and Thomas B.
Smith, LMT. Skarupa argues that the trial court erred by
denying her motion to exclude the testimony of Owensboro
Health's experts because they had previously reviewed the
deposition testimony of her expert witnesses. We conclude
that the separation-of-witnesses rule set out in
615 does not apply between deposition and trial, nor can it
apply to conduct occurring before the motion is made.
Therefore, the trial court did not err by denying the motion
to exclude the witnesses or by allowing the matter to go the
jury. Hence, we affirm.
relevant facts of this appeal are not in dispute. On March 2,
2012, Skarupa sought a massage due to pain and tightness in
her neck and shoulders. The massage was performed by Smith, a
licensed massage therapist (LMT) and employee of Owensboro
Health. Just over a month later, Skarupa suffered a stroke
that left her partially paralyzed, unable to speak or walk,
and blind in her left eye. After physical and occupational
therapy, Skarupa recovered her ability to walk and speak, but
she remains blind in her left eye and has not been able to
return to her former employment as a nurse. Skarupa was 42
years old when the stroke occurred.
February 27, 2013, Skarupa filed this action against Smith
and Owensboro Health, alleging that Smith negligently
performed the massage, causing a dissection of her left and
right carotid arteries and the stroke. In support of her
claims, she disclosed two expert witnesses: J. Gregory
Roberts, M.D. (Dr. Roberts), a vascular surgeon, and
Christopher Deery, LMT (Deery). Dr. Roberts, who testified by
video deposition taken on February 24, 2017, stated that the
March 2012 massage caused Skarupa's left carotid artery
dissection and stroke in April 2012 and her right carotid
artery dissection discovered in July 2012. Deery, who
testified by video deposition taken on January 25, 2017,
stated that Smith's massage and charting violated the
standard of care for a massage therapist.
and Owensboro Health countered these opinions with the
testimony of Nathan Nordstrom, LMT (Nordstrom); Howard S.
Kirshner, M.D., (Dr. Kirshner); and Thomas B. Naslund (Dr.
Naslund), a vascular surgeon. Nordstrom opined that Smith
complied with the standard of care. Dr. Kirshner and Dr.
Naslund opined that the March 2012 massage could not have
caused the dissections and the stroke.
December 2017, the parties filed pretrial motions in
limine, including a motion for separation of witnesses
pursuant to KRE 615. The matter then proceeded to trial in
February 2018. During his trial testimony, Nordstrom
disclosed that he had been provided with Deery's
deposition. Shortly thereafter, counsel for Smith and
Owensboro Health disclosed that Drs. Kirshner and Naslund had
reviewed Dr. Roberts's deposition prior to trial. Both
physicians also testified that they had reviewed the other
depositions taken in the case.
on these disclosures, Skarupa moved to exclude the expert
testimony, alleging that their review of the discovery
depositions amounted to a violation of the
separation-of-witnesses rule. The trial court denied the
motion. At the close of proof, Skarupa moved for a directed
verdict, arguing that the defense experts should have been
excluded and, in the absence of their testimony, there was no
evidence to contradict her experts. The trial court also
denied this motion.
the jury returned verdicts in favor of Smith and Owensboro
Health. The trial court entered a judgment in accord with the
jury verdict on March 5, 2018. Skarupa filed motions for a
judgment notwithstanding the verdict or for a new trial,