LINDA SUSAN SMITH, EXECUTRIX OF THE ESTATE OF GARY SMITH AND LINDA SUSAN SMITH, INDIVIDUALLY v. MILTON F. MILLER, M.D.; GALEN OF KY. D/B/A COLUMBIA SUBURBAN HOSPITAL FKA HUMANA OF KY., ETC; HUMANA HEALTH PLAN, INC.; AND HUMANA, INC.
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RENDERED: April 23, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000410-MR
LINDA SUSAN SMITH, EXECUTRIX
OF THE ESTATE OF GARY SMITH AND
LINDA SUSAN SMITH, INDIVIDUALLY
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS WINE, JUDGE
ACTION NO. 90-CI-07050
v.
MILTON F. MILLER, M.D.;
GALEN OF KY. D/B/A
COLUMBIA SUBURBAN HOSPITAL
FKA HUMANA OF KY., ETC;
HUMANA HEALTH PLAN, INC.;
AND HUMANA, INC.
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
GUIDUGLI, HUDDLESTON AND MCANULTY, JUDGES.
GUIDUGLI, JUDGE.
Appellant, Linda Susan Smith (Smith), appeals
from a Jefferson Circuit Court order which denied her motion to
continue a trial date and thereafter granted appellees’ oral
motion to dismiss.
We reverse and remand.
On August 29, 1989, Gary Smith, appellant’s husband,
died.
In August, 1990, appellant, through her attorney, Herman
Joseph Marshall (Marshall), filed a complaint against several
parties, including appellees, alleging they were responsible for
his death.1
The merits of appellant’s complaint is not an issue
before this Court and we will not comment on the merits of the
case.
However, it should be noted that the trial court had
refused to grant summary judgment to appellees, and at a July 2,
1997, hearing stated, “I understand there is a basis for the
claim.”
The only issue on appeal is whether the trial court
abused its discretion in denying a continuance because of
Marshall’s failure to be present on the scheduled trial date.
In
that the record documents that Marshall was admitted to a
hospital two days prior to the scheduled trial date suffering
from serious medical and psychological problems, we believe the
trial court abused its discretion.
A lengthy recitation of the history of this case would
not be helpful, but a short summary is necessary to understand
the utter frustration experienced by the trial judge in this
matter.
The complaint was filed in August 1990 by Marshall.
The
case was not advanced due most likely to Marshall’s medical
condition at that time.
Marshall was determined to suffer from
lumbar and cervical disc problems which led to him filing for
total disability.
On March 18, 1994, the trial court, sua
sponte, set the first trial date for May 23, 1995.
The record is
unclear as to why this trial date was continued, but it was.
At
the urging of the court, Marshall filed a statement on June 23,
1995, indicating that he was physically ready and able to fully
participate in bringing this case to trial.
1
Caretakers, Inc. and Galen of Virginia, Inc., d/b/a
University of Louisville Hospital originally named defendants
were subsequently voluntarily dismissed.
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On February 6, 1996, a new trial date of November 19,
1996, was set.
That trial date was continued at the request of
appellee, Dr. Miller, without objection by the other parties.
The trial was rescheduled for May 6, 1997.
As the new trial date approached, the parties became
extremely aggressive and antagonistic, especially during
discovery and final trial preparation stages.
Numerous motions,
objections and protective orders were filed and argued before the
court as the trial date approached.
Marshall moved to recuse the
trial judge and strenuously argued the trial judge’s rulings were
unfair and hampering his ability to adequately and properly
represent Smith.
Marshall’s conduct towards the court and
opposing counsel, at times, can be characterized as
confrontational, argumentative, obnoxious, and incoherent.
Despite these personal and professional confrontations,
discovery was completed and the case was scheduled to proceed on
May 6, 1997.
However, two additional events transpired in the
week immediately before the trial date.
to obtain co-counsel to try the case.2
First, Marshall sought
Approximately two to
three weeks prior to the May 6, 1997, trial date, attorneys, Tim
McCall (McCall) and Brian Clare (Clare), entered appearances on
behalf of Smith.
Shortly after McCall’s appearance, appellee,
Humana Health Plan, Inc., moved to disqualify McCall based upon
an alleged conflict of interest.
2
At the May 1, 1997, hearing on
It should be noted that Marshall had obtained the
assistance of several “co-counsel” previously. All had either
withdrawn or been fired by Smith or Marshall. Previous cocounsel included: Harry Gregory, Jackie Schroering, Alan Leibson
and Todd Boles.
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the motion, the trial court granted the motion and disqualified
McCall.
Subsequently on May 6, 1997, Clare was also
disqualified.
McCall’s disqualification occurred on May 1, 1997,
prior to the scheduled May 6, 1997, trial date.
The video tape
of this hearing shows that Marshall appeared physically fine but
was visibly upset at the trial court’s ruling and openly
expressed concern over his ability to properly present
appellant’s case without assistance of co-counsel.
The second event which transpired immediately prior to
the trial is essentially the issue of this appeal.
According to
Marshall and his hospital records, Marshall struck his head on a
car door frame and this act aggravated his prior back and neck
problem to such an extent that he had to be hospitalized.
Additionally, on the Saturday night prior to the trial,
Marshall’s wife became concerned over his erratic behavior and
arranged a visit with a psychiatrist, Dr. Kishore Gutpa (Dr.
Gutpa).
Dr. Gutpa determined Marshall was suffering from severe
depression and anxiety and proscribed Luvox.
Dr. Gutpa’s
diagnosis was “major depression, single episode.”
Dr. Gutpa
opined that Marshall could not try the Smith case on May 6, 1997,
because he was “confused and disoriented.”
The next day Marshall
was admitted to Jewish Hospital in Louisville.
The admitting
records indicate the following medical history:
HISTORY: The patient is a 53 year old
Caucasian male, well known to our service,
with history of previous anterior discectomy
and fusion in 1994 at C5-6 level, left side
arm pain. The patient also underwent a
bilateral L4-5 discectomy approximately two
years ago. He has history of chronic
intermittent low ack pain which has been, at
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times, quite debilitating which has limited
his overall law practice. The patient has
had a recent history of striking his head on
a car door frame with acute onset of severe
neck pain which progressively radiated down
the right arm to involve the dorsal aspect of
the right hand with paresthesia of the
finger. The patient went through a course of
steroidal anti-inflammatories under the care
of Dr. Seligson as well as Dr. Paul Wolfe.
The patient has failed to improve with
conservative measures and because of
significant degree of intractable pain the
patient has been brought into the hospital
for pain control, management and workup. The
patient denies any bowel or bladder problems,
difficulty ambulating.
On May 5, 1997, attorneys, Peter Ostermiller (Ostermiller) and
William McMurry (McMurry), appeared before Judge Wine seeking a
continuance of the trial date due to Marshall’s health problems.
McMurry, who indicated that he was now lead counsel for appellant
Smith, argued that Marshall was suffering from serious health
problems and it would be impossible for Marshall to try the case
or assist McMurry in preparing for trial.
minimum four weeks continuance.
McMurry requested a
Ostermiller stated he
represented Marshall and also sought a continuance due to
Marshall’s serious health problems which included being in
traction for his disc problem and a morphine pump for his pain.
Appellees’ counsel argued in opposition of the
continuance because Marshall knew or should have known of his
health problems and had committed a fraud on this court or at
least was acting in bad faith.
These arguments were based upon
letters provided by Marshall that indicated he had been seeking
total disability payments from his disability insurance provider
and letters from his treating physicians that Marshall was in
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fact disabled and should not be practicing law.
Specifically, in
January 1997, Dr. Gaar wrote a letter stating that Marshall was
disabled and in October 1996, Dr. Seligson listed Marshall’s
disability at 40% and then in April 1997, wrote that Marshall was
totally disabled from practicing law.
After a lengthy hearing in which the judge voiced his
frustration with the fact that this case was one of the oldest
cases, if not the oldest, on the Jefferson Circuit Court docket,
and after voicing his concerns over Marshall’s failure to notify
the court of his prior medical limitations, the court denied the
motion to continue and dismissed the case.
The court
specifically found “that the hospitalization [of Marshall] was
for the purpose of delaying these proceedings and that this is a
dilatory practice on the part of Marshall.”
Additionally, the
court indicated it had considered other sanctions but determining
that because of the high costs of preparing for trial, the
potential for loss of witnesses and the cloud of accusation
hanging over Dr. Miller’s head, the court believed dismissal was
the only appropriate remedy.
Subsequent to this dismissal, appellant filed motions
to alter, amend and vacate and CR 59 and CR 60 motions.
The
trial court permitted extensive discovery relating to Marshall’s
medical condition, but after considering all the evidence denied
appellant’s motion by order entered January 6, 1998.
This appeal
followed.
To say that this case which includes fifteen (15)
volumes of records, numerous medical reports and depositions
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concerning Marshall’s physical and mental condition and several
video tapes of motion hearings, is an unusual case is an
understatement.
This case was on the trial court’s docket for
over seven years without reaching trial.
This appeal deals
mainly with the competency, both medically and professionally, of
the trial attorney and not the underlying issues of the
complaint.
These factors are of great concern to this Court.
A thorough review of the case convinces this Court that
the trial judge was extremely conscientious, patient, and
professional throughout.
However, in the final paragraph of its
January 6, 1998, order, the court admitted the seriousness of
Marshall’s medical condition immediately prior to the trial date.
After finding that the initial purpose for Marshall’s
hospitalization was a “dilatory practice on the part of Mr.
Marshall”, the court then states, “this tactic may well have
benefitted his [Marshall] own life as treating physicians did
find a life threatening condition... .”
Additionally, the trial
court admitted that the medical evidence presented did clearly
show that Marshall “suffered from a long term, progressive back
problem as well as chronic depression, which affected his ability
to perform as an attorney.”
Despite Marshall’s refusal to admit
to himself and to ethically inform the court of his condition,
the medical proof presented to the trial court showed that on the
day of the scheduled trial, Marshall suffered from debilitating
depression, pneumonia and a serious back ailment which resulted
in a “life threatening condition” which required surgery on May
12, 1997, to remedy the condition.
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It should also be noted the
back surgery could not be performed immediately upon admission to
the hospital (May 5, 1997) due to the fact that Marshall was
suffering from pneumonia.
The trial court relied upon the cases of Miller v.
Commonwealth, Ky., 432 S.W.2d 638 (1968), and Gorin v. Gorin,
Ky., 167 S.W.2d 52 (1942), in denying the continuance.
We do not
believe either case to be factually similar to or dispositive of
the case sub judice.
In Miller, the appellant contended that the
trial court abused its discretion in not granting a continuance
on a claim that the attorney was ill.
Although trial counsel
produced a statement of a physician dated about three weeks
earlier that the attorney was “not well,” nothing else was
submitted to the court in support of his claim.
In this case,
there is an abundance of hospital and medical records and
doctors’ dispositions to support the fact that Marshall did
suffer serious medical and psychological problems on the
scheduled trial date.
Although he had suffered from on-going
back and neck problems previously, the record indicates that
Marshall had completed lengthy discovery depositions during the
week proceeding the trial and had met on Saturday, May 3, 1997,
with his client to prepare for the trial.
Despite the trial
court’s assertions that Marshall’s admission to the hospital was
a “dilatory practice” the medical evidence revealed, as the trial
court concedes, “a life threatening condition.”
The court also relied upon the Gorin case in issuing
its sanction of dismissal.
The trial court determined that
appellant Smith had been “given every opportunity to denounce the
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practices of her lead counsel” and that “she condoned and
acquiesced in these practices.”
As such, pursuant to Gorin the
trial court found that Smith “cannot allow counsel to engage in
questionable activities, hope to keep the benefits of his
practices and then seek to distance herself only when the Court
sanctions the activity of counsel.”
The court determined that
other sanctions were not appropriate because he believed Smith
had “condoned and acquiesced” in Marshall’s “questionable
activities” and therefore she should not avoid the sanction of
dismissal.
However, as noted earlier, there was sufficient
medical evidence to support the granting of the continuance.
Despite the trial court’s numerous warnings and admonitions to
Smith regarding Marshall’s questionable activities, Smith failed
to heed the court’s advice.
Were it not for the serious life-
threatening medical condition of Marshall, the trial court would
have had every right to impose the “death penalty” sanction and
dismiss this case.
We need not address other issues as to how
Marshall practiced this case, his on-going medical ailments, his
failure to notify the court, or his attempts to receive total
disability yet still practice law, as they are not specifically
before this Court.
While we agree with appellees’ argument and prior case
law that a trial court must be able to control its docket and
must have broad discretion in granting or denying continuances,
we are of the opinion, based upon the medical records and
doctors’ depositions submitted to the trial court, that Marshall
did in fact suffer from serious medical and psychological
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problems on the date the trial was scheduled.
As such, the trial
court abused its discretion by not granting a continuance in this
case.
While we are mindful of the myriad of additional issues
the trial court will have to face as a result of this reversal,
we are confident that the trial court will continue control of
its docket and properly manage this case, using appropriate
sanctions as needed, until the case is concluded.
For the foregoing reasons, we reluctantly reverse the
order of the Jefferson Circuit Court and remand this matter for
further proceedings consistent with this opinion.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE, HUMANA HEALTH PLAN,
INC.:
Peter L. Ostermiller
Louisville, KY
Michael M. Hirn
Frank P. Doheny, Jr.
Louisville, KY
H. Joseph Marshall
Ferncreek, KY
J. Fox DeMoisey
Louisville, KY
BRIEF AND ORAL ARGUMENT FOR
APPELLEE, MILTON F. MILLER,
M.D.:
Charles E. Theiler, II
Louisville, KY
W. Kennedy Simpson
Louisville, KY
BRIEF AND ORAL ARGUMENT FOR
APPELLEE, GALEN OF KY:
William T. Robinson, III
Thomas H. Stewart
Covington, KY
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