DWIGHT P. HAMMOND v. BERT SUMMERS, JR.
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RENDERED: DECEMBER 23, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000454-MR
DWIGHT P. HAMMOND
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
ACTION NO. 96-CI-00811
v.
BERT SUMMERS, JR.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GARDNER, KNOPF, AND KNOX, JUDGES.
KNOX, JUDGE:
In this personal injury action, appellant, Dwight
P. Hammond, appeals from a jury verdict and judgment awarding him
damages totaling $28,076.00, subsequently reduced by $10,000.00,
pursuant to Kentucky’s Motor Vehicle Reparations Act.
We affirm.
On January 29, 1996, while waiting in traffic to make a
left turn, appellant was rear-ended by a cattle truck driven by
appellee, Bert Summers, Jr.
The collision knocked appellant’s
vehicle approximately five hundred (500) feet down the road, and
into a wooden fence.
Appellant was driven to the Marymount
Medical Center in London, Kentucky, where, as a precautionary
measure, x-rays were taken of appellant’s cervical spine.
The x-
rays indicated no swelling or fractures.
Appellant was treated
for an abrasion on the back of his head, and released.
Two (2) days later, on January 31, 1996, appellant
reported to the emergency room of Central Baptist Hospital in
Lexington, Kentucky, complaining of a severe headache and a
sensation of pressure behind his eyes.
Appellant was diagnosed
with post-concussion syndrome, advised to take Tylenol for his
headache, and referred to Dr. Alexander Tikhtman, a neurologist,
in the event there was no improvement within one (1) to two (2)
weeks.
A CT scan taken of appellant’s head showed no hemorraging
or fractures.
Appellant was forty-seven (47) years old at the time of
the accident, and apparently had been working in the construction
business for several years, mostly on a seasonal basis.
Additionally, he owned Hammond Mountain Stakes, a business
specializing in the production of survey stakes.
His most recent
employment had been as a party chief of a survey crew.
According to appellant, he continued to experience pain
in his neck as well as his right shoulder, arm, and hand.
On
February 8, 1996, he was seen by Dr. Tikhtman, who surmised, on
first impression, that appellant had suffered a cerebral
concussion and a whiplash injury to his neck, and placed
appellant on pain medication.
An MRI test ordered by Dr.
Tikhtman indicated that appellant was suffering from three (3)
ruptured disks in his neck.
During follow-up visits in late
February and April of 1996, appellant indicated he was still
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suffering from neck pain and had been unable to return to his
construction job.
Dr. Tikhtman restricted appellant to lifting a
maximum weight of twenty (20) pounds.
In November 1996, appellant filed suit against
appellee, alleging he had suffered grievous bodily injuries as a
result of the accident on January 29, 1996.
He ultimately
requested an award of between $300,000.00 and $900,000.00 for
past and future medical expenses, lost wages, impairment of his
power to earn an income in the future, and pain and suffering.
The matter was tried before a jury in December 1997.
The court’s
having previously entered summary judgment in favor of appellant
on the issue of liability, the sole issue at trial was that of
damages.
The jury heard testimony from several witnesses,
including appellant, Dr. Tikhtman, Dr. David Pursley (a
neurologist who testified on behalf of appellee), and one of
appellant’s former employers.
The jury awarded appellant a total of $28,076.00, which
included $8,076.00 for medical expenses incurred thus far,
$15,000.00 for lost wages, and $5,000.00 for pain and suffering.
Appellant was awarded no damages whatsoever for either future
medical expenses or impairment of his power to earn an income.
By order entered January 23, 1998, the trial court reduced the
jury verdict by $10,000.00, representing the recovery limit for
basic reparations benefits under Kentucky’s Motor Vehicle
Reparations Act.
Appellant has taken up several issues on
appeal, each of which is addressed below.
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1. Admission of appellant’s medical records
During the course of the trial, appellee requested the
introduction into evidence of certified copies of appellant’s
past medical records which, appellee argued, established that, by
way of previous accidents, appellant had suffered neck injuries
similar to those he now attributed to the accident of January 29,
1996.
The court allowed the introduction of these records.
On appeal, appellant argues that appellee failed to
timely identify and provide these records and that, as such,
their introduction into evidence constituted clear error.
Appellant maintains that in violation of the court’s pretrial
order setting the deadline for identification of witnesses and
exhibits “on or before 30 days before trial,” appellee failed,
within the court’s timeframe, to identify either the records
themselves or any witnesses who would place them into evidence.
Appellant notes that not until November 11, 1997, when appellee
noticed depositions for the custodians of these records, did
appellee clearly state his intent to introduce the records as
evidence.
Thereafter, two (2) days prior to trial, appellee
provided appellant with copies of the records he had obtained
during the discovery process.
Appellee counters that he did, in fact, identify the
medical records as trial exhibits by way of a pleading entitled
“Defendant’s List of Witnesses and Exhibits,” forwarded to
appellant on October 22, 1997, wherein appellee specifically
identified “[a]ll medical records, MRI films, and CAT scans of
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the plaintiff.”
Further, appellee counters, he was obliged to
identify only the names of “all persons who will testify at the
trial,” pursuant to the court’s pretrial order, and because the
records custodians were not expected to testify at trial, they
need not have been identified thirty (30) days prior thereto.1
Appellee explains that he deposed the records custodians, and
served each one with a subpoena duces tecum, for the sole purpose
of procuring certified copies of the records.
In light of the circumstances, we believe appellant was
timely apprised of appellee’s intention to introduce all of
appellant’s medical records into evidence.
Further, as concerns
appellee’s actual provision of copies of these records two (2)
days prior to trial, it appears that appellee procured the
records from appellant himself.
We note a particular response
made by appellee to discovery requests on December 20, 1996,
almost one (1) full year prior to trial:
Discovery is not yet complete; however,
Defendant’s review of medical records
furnished by counsel for the plaintiff
indicates the plaintiff was involved in a
motor vehicle accident prior to the subject
accident and suffered an episode of unknown
etiology, which required the plaintiff to
undergo testing for Multiple Sclerosis, which
resulted in radiculopathy and pain in the
plaintiff’s right upper extremity, and
further the medical records reveal the
plaintiff suffered a herniated disc at C6,7
prior to the date of the accident. [Emphasis
added.]
1
We note that the depositions were scheduled in a timely
manner pursuant to the court’s pretrial order.
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Finally, appellant’s own expert witness, Dr. Tikhtman, apparently
had access to, and had already reviewed, appellant’s medical
records at least nine (9) months prior to trial, as evidenced by
his references to them during his deposition of March 27, 1997.
In our opinion, appellant was well aware of their existence and
the role they would play in this litigation.
Appellant further argues the introduction of his
medical records was prejudicial to him, given that he had
inadequate notice of appellee’s intent to use them as evidence
and given their content.
We have already expressed our opinion,
that appellee provided adequate notice of his intent to introduce
the records at trial.
As for the content of the records, appellant argues
that certain references to his drinking beer, being depressed,
and testing positive for a particular drug in his urine, were
prejudicial.
Further, appellant argues, the records contained
references to numerous other medical problems from which
appellant suffers but which are unrelated to the accident of
1996, e.g. appellant’s having had seizures as a child; having
been tested for multiple sclerosis as an adult; and, MRI studies
of appellant’s neck denoting findings as “normal.”
Appellant
maintains that the records allowed too much speculation on the
jury’s part as to the causes of appellant’s neck problems, and
that they should not have been admitted pursuant to Phipps v.
Winkler, Ky. App., 715 S.W.2d 893 (1986), in which this Court
held that four (4) separate references to alcoholism in the
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plaintiff’s medical records constituted prejudice to the
plaintiff, and should not have been introduced.
Appellee counters that the references in appellant’s
records with respect to beer, etc., are not sufficiently
prejudicial to warrant reversal.
We agree.
On one page of
records dating back to 1983, the observation was made that
appellant “drinks about 4 - 6 beers a week.”
Such a statement
hardly implies that appellant is an alcoholic or, otherwise, has
a drinking problem.
Additionally, two or three of these early
records reference appellant’s having been hit on the head with a
limb, and his subsequent weakness and possible depression.
As
concerns the reference to a drug screen, appellant has not
identified which drug was supposedly present in his system, nor
is the name of the drug discernible from the record itself.
As for the remainder of references which appellant
claims were prejudicial to him, we have thoroughly reviewed the
medical records in issue, and find no references which rise to
the level of prejudice present in Phipps.
As such, and
considering that by the very nature of this litigation, appellant
has placed his physical condition in issue, we see no other
problems with the introduction into evidence of certified copies
of appellant’s past medical records.
2. Witness never served subpoena
On November 25, 1997, counsel for appellant executed,
and the Laurel Circuit Clerk issued, a subpoena for Elmo Greer, a
former employer of appellant’s, to appear at the trial on behalf
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of appellant.2
It appears from the notation at the bottom of the
subpoena, Mr. Greer was temporarily out of the state and, thus,
was never served.
On the morning of the trial, the following
exchange occurred:
Counsel for appellant: Your Honor, I had
subpoenaed Elmo Greer and I’m not sure the
sheriff has found him. I’d like to find out
if he’s here today as a . . . as a witness.
If he’s not, we need to make a . . .
Court: [Bailiff]? Would you step up?
you check on the subpoena for him?
Would
. . . .
Bailiff: Elmo Greer, Jr., is in Pennsylvania.
Court: Was he served?
Bailiff: No.
They couldn’t get up with him.
There is no evidence in the record indicating that at
this point, counsel for appellant moved the trial court for a
continuance once he discovered his witness had not been served.
Later, during a conversation at the bench, counsel for appellant
informed the court, “in the event that Elmo Greer cannot be here
as a witness, we might need to call Rex Greer, if we can
substitute him.
He’ll say the same thing, we presume.”
Appellant maintains on appeal that the trial court
“overruled” his motion for a continuance based upon Mr. Greer’s
absence, and that the court’s having proceeded with the trial
despite his absence constituted clear error.
2
Appellee counters
Apparently, Mr. Greer was expected to testify concerning
appellant’s job duties and his wages at the time of employment.
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that it was appellant’s responsibility to procure the presence of
his witness, and he simply failed to do so.
Further, appellee
notes, the trial court could not possibly have “overruled”
appellant’s motion since appellant never actually moved for a
continuance.
As such, appellee maintains, appellant failed to
preserve the issue on appeal.
We agree with appellee that appellant failed to
preserve the issue, having never moved the court for a
continuance.
In fact, as is established from the dialogue above,
counsel for appellant appeared willing to “substitute” another
witness for Mr. Greer, and so, contrary to his argument on
appeal, appeared not to contest the issue of Mr. Greer’s absence.
As such, we find no merit in appellant’s argument.
3. Voir dire
During voir dire, counsel for appellant questioned
potential jury members as follows:
Do each of you understand that if a man like
Dwight has a preexisting condition that makes
Dwight more likely to be injured or more
susceptible to injury, or more susceptible to
greater injury, has that condition before the
accident, then the rule in Kentucky . . . do
you understand that the rule in Kentucky is
that Mr. Hammond is still entitled to receive
damages because the wrongdoer takes the
plaintiff in whatever condition he finds him
on the date of the accident? Did that make
it clearer . . . Do each of you understand,
ladies and gentlemen, that in Kentucky a
defendant like Bert Summers is not entitled
to any kind of credit, not entitled to any
kind of set-off against the amount of Dwight
Hammond’s damages because of some kind of
preexisiting condition that Dwight might have
at the time of the rear-end collision?
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Counsel for appellee then objected to this line of questioning,
arguing that counsel for appellant was merely stating the law
concerning damages representing the aggravation of preexisting
conditions.
Appellee maintained such law should appear in the
court’s instructions which were to be provided the jury at the
close of the trial, not during voir dire.
The court agreed,
stating, “the jury’s responsibility is to follow the court’s
instructions.
I’ll sustain the objection.”
Appellant maintains on appeal that under Wemyss v.
Coleman, Ky., 729 S.W.2d 174 (1987), he should have been
permitted to continue his line of questioning.3
He argues that
given the fact the court was allowing the introduction of all of
appellant’s medical records, he should have been allowed to
discuss the issue of damages for the aggravation of preexisting
conditions with potential jury members.
Appellant, however, has failed to inform this Court of
the specific questions he believes he should have been allowed to
ask.
“[’]The principal purpose of voir dire is to probe each
prospective juror’s state of mind and to enable the trial judge
to determine actual bias and to allow counsel to assess suspected
bias or prejudice.[’]”
Thomas v. Commonwealth, Ky., 864 S.W.2d
252, 259 (1993) (citation omitted).
3
Given that we have not been
Wemyss restates the law that the tortfeasor takes the
claimant as he finds him, and is not entitled to any credit or
setoff against the amount of the claimant’s damages simply
because the claimant had preexisting conditions which made him
more susceptible to injury. Wemyss, 729 S.W.2d at 178.
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apprised of what would have been appellant’s follow-up questions
had he been allowed to ask them, and how those questions would
have been pertinent to assessing potential bias on a juror’s
part, we cannot adequately address appellant’s argument.
In the
absence of such information, appellant has failed to establish
that he was prejudiced by the trial court’s ruling in the matter.
4. Motions in limine and CR 59 motion
Appellant argues that the trial court erred in denying
several of his motions in limine as well as his CR 59 motion
alleging a total of seventeen (17) errors committed by the court.
However, appellant neither identifies which motions in limine he
believes were improperly denied, nor does he state any grounds
upon which he believes this Court should reverse the trial
court’s rulings.
Further, appellant states no specific grounds
upon which he believes this Court should reverse his CR 59
motion.
Armed with so little information, we decline to address
these issues on appeal.
5. Reduction of the verdict by $10,000
Following a jury trial, judgment in this matter was
entered on December 17, 1997, awarding appellant total damages of
$28,076.00 including $8,076.00 for medical expenses incurred,
$15,000.00 for lost wages, and $5,000.00 for physical and mental
Thereafter, on December 29th, appellant
suffering and pain.
filed a CR 59 motion.
In his response thereto, filed on January
8, 1998, appellee moved the court, under CR 60.02, for relief,
arguing that pursuant to Kentucky’s Motor Vehicle Reparations Act
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(KRS 304.39-010 et seq.) and corresponding case law, the verdict
should be reduced by $10,000.00, the maximum amount payable in
basic reparation benefits (BRBs) under the Act.
Counsel for appellee concluded the motion for relief,
“[t]he undersigned understood the Court would reduce the
plaintiff’s recovery after the judgment had been entered.
Therefore, out of an abundance of caution, the defendant moves
the Court pursuant to CR 60.02" to reduce the verdict by
$10,000.00.
By order entered on January 23, 1998, the trial
court granted appellee’s motion, reducing appellant’s award to
$18,076.00.
On appeal, appellant argues that appellee’s motion to
reduce the verdict was not timely made, although appellant does
not apprise this Court under which rule or statute the motion was
belatedly filed.4
argument.
Nonetheless, we find no merit in appellant’s
Rather, we agree with appellee, who counters that
pursuant to CR 60.02(a), his motion was timely.
That rule
states:
On motion a court may, upon such terms as are
just, relieve a party or his legal
representative from its final judgment,
order, or proceeding upon the following
grounds: (a) mistake, inadvertence, surprise
or excusable neglect[.] The motion shall be
made . . . not more than one year after the
judgment, order, or proceeding was entered or
taken.
4
Appellant does not argue that Kentucky’s Motor Vehicle
Reparations Act does not allow for such reduction. The only
issue on appeal is the timeliness of appellee’s motion.
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Appellee filed his motion only three (3) weeks after judgment had
been entered, while appellant’s CR 59 motion was yet pending.
As
such, given that the Motor Vehicle Reparations Act allows for BRB
reductions, we believe the trial court was justified in reducing
the verdict by $10,000.00.
6. Damages
The testimony at trial established that appellant had
performed several different types of jobs over his lifetime, but
had evidently most recently been employed as a survey party
chief.
Appellant testified that his survey equipment can weigh
as much as thirty (30) to thirty-five (35) pounds, and the survey
stakes he must sometimes carry with him as much as fifty (50)
pounds.
Appellant’s neurologist and medical expert, Dr.
Alexander Tikhtman, testified that he believed appellant’s
current neck problems were caused by his being rear-ended by
appellee, although he admitted that one of the three ruptured
disks in appellant’s neck had shown up in an MRI report from
1991.
He testified that he had permanently placed appellant on a
maximum weight-lifting restriction of twenty (20) pounds, and
that it was not advisable for appellant to continue the normal
activities of his job.
Finally, Dr. Tikhtman testified,
appellant would likely develop arthritis in his neck and, thus,
would likely need to continue medical treatment, supplemented
with anti-inflammatory medication over his lifetime.
Concerning
any possible surgery, however, Dr. Tikhtman testified that there
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was only a twenty-five percent (25%) chance appellant would need
surgery in the future for problems which originated with the 1996
accident in issue.
Appellee’s medical expert, Dr. David Pursley, testified
that while appellant did suffer a neck strain injury in the 1996
accident, his neck pain was due to more than one cause, namely:
(1) a 1983 accident in which appellant was hit in the head by a
tree limb, and was diagnosed with cervical (neck) strain injury;
(2) an auto accident in 1985; (3) spondylosis (wear and tear as
part of the aging process); and, (4) symptom magnification, which
“refers to someone who has complaints that sound very severe but
has no medical illness or injury that would explain complaints
that are that severe.”
He testified that the only complaint with
any causal relationship to the 1996 accident was that of simple
neck strain injury, and that appellant should be able to lift a
load of fifty (50) pounds and work 8-hour days.
Finally, Dr.
Pursley testified that there was no evidence indicating appellant
would need either medical treatment or surgery in the future.
The jury did not award appellant any damages for either
future medical expenses or future lost wages, and awarded him
only $5,000.00 for pain and suffering.
On appeal, appellant
argues that the verdict, with regard to the above-referenced
damages, was inadequate.
“Courts generally are not disposed to set aside
verdicts as inadequate unless the amount awarded is so small and
in such variance with the facts as to indicate the verdict was
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influenced by passion and prejudice.”
Farrow v. Cundiff, Ky.,
383 S.W.2d 119, 121 (1964) (citations omitted).
The testimony
elicited from the two medical experts in this case was
conflicting as concerned the degree to which appellant could
perform his job, Dr. Tikhtman’s testifying that appellant could
no longer perform the duties of a party survey chief, and Dr.
Pursley’s testifying that appellant could, in fact, carry fifty
(50) pound loads and work 8-hour days.
In our opinion, the jury
fulfilled its function, determining the weight to be given each
doctor’s testimony, and awarded damages accordingly.
Given Dr.
Pursley’s testimony, we do not find the verdict to have been at
variance with the evidence before the jury.
We note the
following language from Head v. Russell, Ky., 307 S.W.2d 557
(1957):
We believe the awards of $350 to Mrs.
Powers and $2,000 to Mrs. Head were not so
grossly inadequate as to shock the
conscience, or to appear to be the result of
passion and prejudice, in light of the
medical proof before the jury. The jury
could have believed that the injuries
suffered by the ladies were the minimum
injuries described in the conflicting medical
testimony. It was for the jury to determine
what weight, if any, should be given to each
doctor’s description of the injuries. We
still adhere to our reluctance to substitute
our own views on a question of the adequacy
or inadequacy of an award for those of a jury
without what we consider legal cause.
Id. at 560.
(Citations omitted).
7. Exclusion of certain testimony
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During the testimony of Zane Alexander, a former
employer of appellant’s, in which Mr. Alexander identified the
types of duties involved in appellant’s work, counsel for
appellee objected to the question whether Mr. Alexander would
hire appellant and if so, under what conditions, if any.
Counsel
conceded that Mr. Alexander’s testimony concerning job duties and
prevailing wages was, in fact, relevant.
However, he maintained,
Mr. Alexander’s testimony concerning the conditions under which
appellant could be hired was more akin to that which would
normally be elicited from a vocational evaluator, an expert
witness, and was therefore an inappropriate line of questioning.
The court agreed, and Mr. Alexander’s testimony was placed in the
record by avowal.
Specifically, Mr. Alexander testified that if
appellant were restricted to lifting a maximum of twenty (20)
pounds and were actually limited to very little neck movement, he
would not hire appellant.
On appeal, appellant argues that Mr. Alexander’s
testimony on avowal should have been allowed because it went
directly to the issue of damages, i.e. future lost wages.
Appellee counters that the information was not relevant, given
that any award of future lost wages should be based, not on
whether Mr. Alexander would hire appellant, but on whether,
according to the medical testimony, appellant had the ability to
perform his job duties as a survey party chief.
We agree.
The
information provided by Mr. Alexander on avowal was not relevant
to the issue of damages.
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8. Instructions
The jury was instructed:
If you determine Dwight P. Hammond is
entitled to recover damages for his injuries,
your reward shall include compensation for
losses attributable or related to a preexisting physical condition, but only if and
to the extent that such pre-existing
condition was aroused or aggravated by the
accident which occurred on January 29, 1996.
On appeal, appellant argues that his jury instruction
concerning preexisting conditions and the aggravation thereof
should have been given the jury, rather than the above
instruction.
However, we note that appellant’s proposed
instruction, tendered to the court the day before trial, was
identical to the above instruction actually given the jury.5
Thus, it appears that the trial court did, in fact, use
appellant’s tendered instruction, and that as such, appellant has
no cause to complain.
For the foregoing reasons, the judgment of the Laurel
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James A. Ridings
Brian C. House
5
Appellant’s proposed instruction is found on page 317 of
the record and reads: “If you determine that Dwight Hammond is
entitled to recover damages for his injuries, your award shall
include compensation for losses attributable or related to his
pre-existing physical condition, but only if and to the extent
that such pre-existing condition was aroused or aggravated by the
accident in question.”
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London, Kentucky
London, Kentucky
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