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Skarupa v. Owensboro Health Healthpark

Court of Appeals of Kentucky

August 2, 2019

CARLA SKARUPA APPELLANT
v.
OWENSBORO HEALTH HEALTHPARK; OWENSBORO HEALTH MEDICAL GROUP, F/K/A COOPERATIVE HEALTH SERVICES, INC; OWENSBORO HEALTH, INC., F/K/A OWENSBORO MEDICAL HEALTH; AND THOMAS B. SMITH APPELLEES

          APPEAL FROM DAVIESS CIRCUIT COURT HONORABLE JOSEPH W. CASTLEN, III, JUDGE ACTION NO. 13-CI-00217

          BRIEF FOR APPELLANT: Robert A. Young David W. Anderson Bowling Green, Kentucky

          BRIEF FOR APPELLEES: Ronald G. Sheffer Joseph P. Mankovich Louisville, Kentucky

          ORAL ARGUMENT FOR APPELLANT: Robert A. Young Bowling Green, Kentucky

          ORAL ARGUMENT FOR APPELLEES: Ronald G. Sheffer Louisville, Kentucky

          BEFORE: GOODWINE, LAMBERT, AND MAZE, JUDGES.

          OPINION

          MAZE, JUDGE

         Carla 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 KRE[1] 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.

         The 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.

         On 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.

         Smith 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.

         In 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.

         Based 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.

         Subsequently, 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, ...


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