BUCKLER (DONALD W.) VS. MATHIS (TERRI L.)
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RENDERED: JULY 22, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000828-MR
DONALD W. BUCKLER
v.
APPELLANT
APPEAL FROM HENRY CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 07-CI-00226
TERRI L. MATHIS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: KELLER AND LAMBERT, JUDGES; SHAKE,1 SENIOR JUDGE.
LAMBERT, JUDGE: This is an appeal from a defense verdict in a personal injury
action following a jury trial. Donald W. Buckler, the plaintiff below, contends that
he is entitled to a new trial due to errors concerning the jury instructions and due to
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Senior Judge Ann O’Malley Shake sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
the striking of a portion of his treating physician’s deposition. Having carefully
reviewed the record and the applicable caselaw, we affirm.
On September 1, 2005, Buckler was involved in a motor vehicle
accident that occurred when Terri L. Mathis was improperly turning left across his
lane of travel. Buckler, who was driving a 2003 Chevy TrailBlazer SUV,
attempted to avoid the collision by applying his brakes, but the front ends of the
two vehicles impacted. As a result of the accident, Buckler claimed he sustained
injuries to his hands, arms, back, neck, and shoulders. While the injuries to his
back, neck, and shoulders resolved, Buckler continued to have problems with his
hands and arms, and sought medical treatment.
On August 6, 2007, Buckler filed a complaint in Henry Circuit Court
alleging that Mathis negligently caused the motor vehicle accident which caused
him to sustain permanent injuries to his hands and arms as well as a shock to his
nervous system. He sought damages for his medical treatment as well as pain and
suffering.
The parties engaged in discovery, and a jury trial was scheduled for
April 21, 2009. The trial court also imposed a set of pretrial compliance dates.
The trial date was later rescheduled for June 2, 2009. Compliance dates were reset
to align with the new trial date. On May 22, 2009, the trial court remanded the
June 2 trial date and scheduled the trial for an alternate date on September 9, 2009.
However, the trial court specifically did not extend the deadlines for any pretrial
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compliance. The parties litigated several issues by means of motions in limine,
including whether insurance or Buckler’s employment could be mentioned.
Pertaining to this appeal, on May 26, 2009, Mathis objected to
portions of the deposition of treating physician Dr. Robert Jacob taken by Buckler
on February 20, 2009. Mathis contended that Buckler’s questioning of Dr. Jacob
regarding the permanency of his injuries improperly asked him to assume
information that was not in evidence regarding physical therapy and was
speculative in nature. In response to the question, Dr. Jacob indicated that he
would have to verify the information concerning Buckler’s current condition by
physical examination. In response and in addition to addressing the merits of the
objection, Buckler argued that Mathis’s objection was untimely and that Mathis
failed to object during the deposition.
On September 10, 2009, the trial court ruled in favor of Mathis on Dr.
Jacob’s testimony, stating that the physician:
was unable to give a medical opinion based upon a
reasonable degree of medical probability as to
permanency (affecting the issue of future medical
expenses), when he qualified his answer with the
condition that his opinion would depend upon his
verification of Plaintiff’s complaints by physical
examination. No physical examination was ever done,
and while Plaintiff in deposition has asserted the
existence of limited range of motion and that he attended
“physical therapy,” to allow Dr. Jacobs’ [sic] opinion
based on that testimony is to allow the jury to “be the
doctor” and perform its own evaluation of the patient.
The Court does not find that Plaintiff is able to offer any
proof in that regard.
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Based upon this ruling, the trial court excluded Buckler’s claim for future medical
expenses from the trial. The same day, the trial court continued the trial until
October 27, 2009, and permitted Buckler to take additional testimony from Dr.
Jacob regarding permanency of his injury to establish his claim for future pain and
suffering.
The matter proceeded to trial on October 27 and October 28, 2009. At trial,
Buckler testified about the circumstances of the accident and the resulting injuries
he sustained, as well as the effect the injuries have had on his life. Regarding the
accident, Buckler stated that he was gripping the steering wheel with both hands,
and he described his right index finger as going back upon impact. He described
the pain as excruciating and throbbing. Buckler also reported that pain in his back
and neck cleared up over the course of three to four weeks. Buckler maintained
that he had never had any problems with his left hand, but that he later developed a
vascular problem with his left index finger unrelated to the accident, as diagnosed
by Dr. Jacob. Buckler also complained of a knot that developed on his wrist. He
stated that he obtained a splint for his finger and had continued with daily exercises
he learned in physical therapy. Finally, Buckler admitted that he had sustained an
injury to his right index finger in October 2002 when that finger hyperextended
while he was working with a horse. Believing that he had broken the finger, he
sought treatment from Dr. Kenneth Gardner. There was no fracture in the finger,
and Buckler stated that he never had any additional problems related to the horse
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incident. Buckler’s wife and son also testified about the accident’s effect on his
quality of life.
For medical proof, Buckler introduced the deposition testimony of Dr.
Jacob. Dr. Jacob is an orthopedic surgeon who first saw Buckler on December 7,
2005, on referral by family physician Dr. Damon Gatewood. During the first visit,
Dr. Jacob took a history of the car accident and Buckler complained of bilateral
wrist and hand pain. He also reviewed diagnostic x-rays and performed a physical
examination. Dr. Jacob’s working diagnosis was right and left wrist sprain, which
would be consistent with the history of the motor vehicle accident. Dr. Jacob next
(and for the last time) saw Buckler on June 21, 2006, for continued complaints of
pain in both upper extremities, including pain, stiffness, and swelling in his right
index finger as well as problems with gripping and grasping related to his left
wrist.
On cross-examination, Dr. Jacob testified that Buckler showed evidence of
Raynaud’s disease in his left hand, which he did not attribute to the motor vehicle
accident. Raynaud’s disease is a vascular disorder that causes sensitivity to cold.
Dr. Jacob also stated that Buckler had not reported a previous injury to his right
index finger in October 2002. He stated that an earlier injury could possibly have
contributed to scarring on that finger. Finally, Dr. Jacob stated that he had not
treated Buckler since June 21, 2006, had not placed any restrictions on him, had
never told him he could not work, and could not express an opinion as to whether
he sustained a permanent injury.
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Medical records of Dr. Gatewood, Dr. Jacob, and Family Physician
Associates were also introduced.
Buckler first sought treatment from Dr. Gatewood on September 19, 2005,
several weeks after the motor vehicle accident. At that time, he complained of left
wrist, right hand, lower back, and neck pain since the time of the accident. The
notes reflect that his wrist and hand pain had worsened over the last week. Dr.
Gatewood ordered x-rays of the cervical spine (which showed mild disc space
narrowing at C6-7, but no acute findings), the left wrist, left hand, right hand, and
lumbar spine. No fractures were identified in any of the x-rays. Buckler followed
up with Dr. Gatewood on November 30, 2005, for continued complaints of left
wrist pain and the development of a knot on his wrist. The physical examination
revealed that the left wrist and left index finger were tender. Dr. Gatewood
ordered repeat x-rays of the left wrist, which were again normal. He then referred
Buckler to Bluegrass Orthopaedic Group (Dr. Jacob). Dr. Gatewood saw Buckler
again on April 11, 2006, in follow-up for right index finger joint swelling and left
wrist problems. Dr. Gatewood then saw him in June 2006 for a growth on his
chest, which was unrelated to the motor vehicle accident.
Dr. Jacob’s office records establish that Buckler’s first office visit was on
December 7, 2005, when he saw Buckler, on Dr. Gatewood’s referral, for probable
Raynaud’s disease and left and right wrist and hand sprains. Dr. Jacob concurred
with the diagnosis of Raynaud’s disease in his left hand, which he did not attribute
to the motor vehicle accident. Regarding the right hand, Dr. Jacob repeated the x-6-
ray of the right index finger. The x-ray was within normal limits, and Dr. Jacob
advised him to keep that finger under observation. Dr. Jacob believed the long
term outlook was favorable and did not expect any long term problems. Regarding
the left wrist, Dr. Jacob recommended an MRI to rule out an intercarpal
ligamentous tear and suggested that Buckler continue to wear the wrist splint he
had been wearing.
Dr. Jacob saw Buckler in follow-up seven months later on June 21, 2006,
noting that he had not sought any medical attention or obtained an MRI. At that
time, Buckler continued to complain of pain, stiffness, and swelling in his right
index finger and occasional pain when he used his left wrist to grip or grasp.
Repeated x-rays of the index finger revealed no changes, and left wrist x-rays were
also normal. Dr. Jacob advised Buckler to start physical therapy for his finger
problems and proceed with an MRI due to the persistence of his problems.
The last set of medical records is from Buckler’s regular physician’s office,
Family Physician Associates. An office note dated October 7, 2002, reflects that
Dr. Gardner saw Buckler that day for complaints of an injury to his right index
finger that had hyperextended while he was holding a horse halter. Buckler had
been to the emergency room the prior Saturday. Dr. Gardner diagnosed a strain to
the right index finger, and he recommended that Buckler continue to wear the
splint he received at the emergency room.
In addition to the medical records, both Buckler and Mathis introduced
evidence of medical bills Buckler had incurred for various treatments.
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At the close of evidence, Mathis moved for a directed verdict on whether
Buckler had met the $1,000 threshold pursuant to KRS 304.39-060(2)(b), arguing
that Buckler failed to prove that the medical bills he incurred were for treatment he
underwent related specifically to the motor vehicle accident. Although it denied
Mathis’s motion for directed verdict, the trial court included the threshold
instruction over Buckler’s objection. In addition to objecting to the instruction
itself, Buckler also objected to specific language in the instruction that required the
jury to find that Buckler himself had incurred the charges for the medical care.
After a short deliberation, the jury returned a verdict in favor of Mathis,
having found that Buckler had not met the $1,000 threshold. The trial court
entered a judgment dismissing Buckler’s claim on November 12, 2009. Buckler
then filed a motion for a judgment notwithstanding the verdict or for a new trial.
He argued that the trial court improperly instructed the jury by including the
threshold question and by using incorrect language in that instruction. Buckler
also argued that the trial court improperly commented on the instructions, placing a
negative inference on the proof. Finally, Buckler argued that the trial court should
not have disallowed Dr. Jacob’s testimony regarding permanency. The trial court
denied this motion on April 23, 2010, specifically stating that it was within the
province of the jury to determine whether the medical expenses were reasonably
needed and that its comments related to the instructions were only meant to assist
the jury in navigating the instructions. This appeal follows.
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In his brief, Buckler continues to argue that the trial court improperly
instructed the jury and erred in striking a portion of Dr. Jacob’s deposition
testimony, entitling him to a new trial. We shall address each issue in turn.
1) Jury Instructions
Buckler raises three issues related to jury instructions in this appeal. Our
standard of review for alleged errors in jury instructions is set forth in Hamilton v.
CSX Transp., Inc., 208 S.W.3d 272, 275 (Ky. App. 2006):
Alleged errors regarding jury instructions
are considered questions of law that we examine under a
de novo standard of review. Reece v. Dixie Warehouse
and Cartage Co., 188 S.W.3d 440, 449 (Ky. App. 2006).
“Instructions must be based upon the evidence and they
must properly and intelligibly state the law.” Howard v.
Commonwealth, 618 S.W.2d 177, 178 (Ky. 1981). “The
purpose of an instruction is to furnish guidance to the
jury in their deliberations and to aid them in arriving at a
correct verdict. If the statements of law contained in the
instructions are substantially correct, they will not be
condemned as prejudicial unless they are calculated to
mislead the jury.” Ballback’s Adm’r v. Boland–Maloney
Lumber Co., 306 Ky. 647, 652–53, 208 S.W.2d 940, 943
(1948).
First, Buckler contends that the trial court erred by giving a threshold
instruction.
In KRS 304.39-060(2) of the Kentucky Motor Vehicle Reparations Act, the
legislature set forth the requirement that before a person may recover damages
under the act, his medical expenses must exceed $1,000:
(b) In any action of tort brought against the owner,
registrant, operator or occupant of a motor vehicle with
respect to which security has been provided as required
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in this subtitle, or against any person or organization
legally responsible for his or her acts or omissions, a
plaintiff may recover damages in tort for pain, suffering,
mental anguish and inconvenience because of bodily
injury, sickness or disease arising out of the ownership,
maintenance, operation or use of such motor vehicle only
in the event that the benefits which are payable for such
injury as “medical expense” or which would be payable
but for any exclusion or deductible authorized by this
subtitle exceed one thousand dollars ($1,000). . . .
In KRS 304.39-020(5)(a), the legislature defined “medical expense” in relevant
part as follows:
(a) “Medical expense” means reasonable charges
incurred for reasonably needed products, services, and
accommodations, including those for medical care,
physical rehabilitation, rehabilitative occupational
training, licensed ambulance services, and other remedial
treatment and care. . . . There shall be a presumption that
any medical bill submitted is reasonable.
The Supreme Court of Kentucky addressed the definition of “medical
expense” in Bolin v. Grider, 580 S.W.2d 490 (Ky. 1979), stating that KRS 304.39020(5)(a) reflects a legislative policy that a medical expense must be reasonable in
amount and “reasonably needed as a result of the collision in issue.” Bolin, 580
S.W.2d at 491. Furthermore, once a medical bill has been introduced, the burden
is on the defendant to go forward with proof to impeach the bill. Id. In Bolin, the
defendant attacked whether the medical expense was reasonably needed due to the
collision, not whether the amount of the charge was reasonable. The Court stated
that a proper question on this issue would read:
Are you satisfied from the evidence that Grider incurred
charges in excess of $1,000.00 for reasonably needed
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products, services, and accommodations, including those
for medical care and physical rehabilitation, as a result of
the collision of July 7, 1975?
Id. See also Thompson v. Piasta, 662 S.W.2d 223, 226 (Ky. App. 1983) (jury
instructions using the phrase “reasonable expenses” were improper when issue
posed by the proof in that case was whether the expenses were “reasonably
needed.”).
In this case, the trial court included the following interrogatory as Question
No. 1:
Are you satisfied from the evidence that Plaintiff, Donald
Buckler, sustained injuries and charges in excess of
$1,000 for reasonably needed products and services for
medical care as a direct result of the motor vehicle
accident of September 1, 2005?
Buckler contends that because the medical expenses he submitted totaled
$2901.90, far in excess of the $1,000 threshold, and Mathis failed to call any
witnesses to question the relationship between the bills and the collision, the trial
court should not have included this interrogatory in the instructions.
Mathis, in turn, contends that Buckler was unable to establish a causal
connection between all of the submitted medical bills and the motor vehicle
accident. And while she did not call separate witnesses on this issue, Mathis states
that she was able to establish this lack through the testimony of both Buckler and
Dr. Jacob. Mathis points out that the medical records showed that Buckler had a
prior injury to his right index finger, one that he did not report to his treating
physicians, and that he was referred to Dr. Jacob for treatment related to Raynaud’s
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disease in his left hand, which was unrelated to the motor vehicle accident. We
agree with Mathis that, based upon Buckler’s testimony as well as the medical
records and proof related to prior or unrelated injuries or conditions, the trial court
did not commit any error in including the threshold question in the jury instructions
regarding whether the medical expenses were reasonably needed as a result of the
motor vehicle accident.
Second, Buckler contends that the trial court erred in the language it used in
the threshold question interrogatory and in the damages instruction. In Instruction
No. 3, the trial court stated that Buckler’s damages may include: “(A) Reasonable
expenses for medical services you believe from the evidence Plaintiff has incurred
as a direct result of his injuries, not to exceed $2901.90, the amount claimed.”
Buckler contends that the instructions improperly required the jury to find that he,
himself, incurred the charges for medical expenses, not another entity such as an
automobile insurance or workers’ compensation carrier. He argues that the trial
court should have more closely parroted the statutory definition of medical
expenses (“reasonable charges incurred…”), rather than instructing that the jury
had to find that he “incurred charges” or in defining an item of damages as
“[r]easonable expenses for medical services . . . Plaintiff has incurred[.]”
Buckler implicitly concedes that language in the instructions stated by the
appellate courts in Bolin v. Grider, supra, and Thompson v. Piasta, supra, is
identical to the language used in this case. However, Buckler contends that the
courts in those cases misapplied the statute in setting forth the proper method of
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instructing the jury on this issue. While we do not agree with Buckler’s argument
in this regard, we, as an intermediate appellate court, cannot overturn precedent as
set forth by the Supreme Court of Kentucky, which is what Buckler is requesting
us to do. “The Court of Appeals is bound by and shall follow applicable
precedents established in the opinions of the Supreme Court and its predecessor
court.” Rules of the Supreme Court (SCR) 1.030(8)(a). See also Fields v.
Lexington-Fayette Urban County Gov’t, 91 S.W.3d 110, 112 (Ky. App. 2001)
(stating that the Court of Appeals is without the authority to overturn a decision of
the Supreme Court of Kentucky even if it were inclined to do so.).
Because the instructions provided by the trial court are in line with binding
precedent as set forth in Bolin v. Grider, supra, we uphold those instructions as
proper.
Third, Buckler contends that the trial court improperly commented on the
instructions as they were read to the jury. In doing so, he states that the trial court
placed a negative inference by way of voice inflection on what the jury should
ultimately find. In support of this argument, Buckler cites to Young v. J.B. Hunt
Transp., Inc., 781 S.W.2d 503 (Ky. 1989), in which the Supreme Court addressed
Kentucky’s approach to instructing juries:
[I]n Kentucky we observe a “bare bones” approach to
jury instructions. To provide the detail which would
otherwise be missing, we have held that “[t]his skeleton
may then be fleshed out by counsel on closing
argument.” Rogers v. Kasdan, Ky., 612 S.W.2d 133, 136
(1981). See also Cox v. Cooper, Ky., 510 S.W.2d 530
(1974), and Wemyss v. Coleman, Ky., 729 S.W.2d 174
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(1987). Descriptive of the approach we take to
instructions and argument is a passage from Collins v.
Galbraith, Ky., 494 S.W.2d 527 (1973), as follows:
In conclusion, it may be well to mention that
whenever counsel feels that jurors might
draw inferences that are not warranted by
the specific terminology of the instructions,
his opportunity to guard against it comes in
the closing argument. If instructions are to
be kept concise and to the point, as they
should be, their supplementation,
elaboration and detailed explanation fall
within the realm of advocacy. Contrary to
the practice in some jurisdictions, where the
trial judge comments at length to the jury on
the law of the case, the traditional objective
of our form of instructions is to confine the
judge’s function to the bare essentials and
let counsel see to it that the jury clearly
understands what the instructions mean and
what they do not mean.
Id. at 531. From the foregoing, it is clear that in the
absence of a compelling reason to do otherwise, counsel
is entitled to considerable latitude during argument.
Young, 781 S.W.2d at 506-07.
We have carefully reviewed both the unofficial transcription of the trial
court’s comments as set forth in Buckler’s brief in conjunction with the videotaped
record of the trial. We also have considered the trial court’s statements in its April
23, 2010, order explaining that its comments “were meant to instruct the jury as to
how to ‘get through’ the jury instructions” in order to prevent problems in past
trials where juries had returned incomplete or inconsistent verdicts. In this case,
the trial court took great pains to explain to the jury what it was to do once it
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answered Question No. 1, the threshold interrogatory, and that the jury was not to
continue to the damages instruction if it had found that Buckler failed to meet the
$1,000 threshold. Based on our review of this issue, we agree with Mathis that the
trial court did not do or say anything to influence the jury to find one way or the
other. The trial court did not provide any legal explanation of the instructions, but
merely attempted to educate the jury as to what it should do in relation to
completing the instructions and verdict forms depending on what findings it made.
Accordingly, we hold that the trial court did not commit any error in
instructing the jury in this matter.
2) Deposition testimony of Dr. Jacob
Next, Buckler argues that the trial court improperly struck a portion of Dr.
Jacob’s deposition testimony because Mathis’s written objection was untimely and
because she failed to object during the deposition. We shall review the trial court’s
ruling on this issue for abuse of discretion. Goodyear Tire & Rubber Co. v.
Thompson, 11 S.W.3d 575, 577 (Ky. 2000).
The passage at issue in Dr. Jacob’s deposition addresses the permanency of
Buckler’s injuries, and it reads as follows:
Q: Dr. Jacob, I’m going to ask you a rather
lengthy question here that’s going to have several parts,
and I apologize. If I confuse you, or you don’t
understand the circumstances I’m describing, please let
me know. Okay?
Mr. Buckler’s deposition was taken on April 3rd of
2008. And again, the x-rays were negative with regard to
any fracture or with regard to the development of
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degenerative arthritis when they were redone, I think, in
June of ’06. And basically, that means the x-rays didn’t
show any fractures. If he had been wearing a wrist splint,
as had been prescribed to him, if he had gone through
physical therapy and done recommended exercises at
home, and still after more than three years he still has
pain in his right hand and wrist, and limitation of the
range of motion in his hand, do you have an opinion as to
whether these injuries are permanent?
A: All of that – assuming the accuracy of all of
that verified by physical examination, yes.
Q: Okay.
A: But that’s based on – I would have to base it on
his physical exam.
Buckler bases his timeliness argument on the trial court’s pretrial deadlines
requiring that any objections to deposition testimony must be filed ten days prior to
trial. Because the court did not extend the deadline on those objections when it
continued the trial, Mathis’s objections were due ten days prior to the June 2, 2009,
trial date. Mathis filed her objection to Dr. Jacob’s deposition testimony on May
26, 2009. During the hearing on the matter, counsel for Mathis pointed out, and
we agree, that the written objection was timely filed by operation of Kentucky
Rules of Civil Procedure (CR) 6.01. That rule provides that in the event the last
day of the period is a Saturday, Sunday, or legal holiday, “the period runs until the
end of the next day which is not a Saturday, a Sunday, or a legal holiday.” Based
on the 2009 calendar, ten days prior to trial was May 23, a Saturday, and Monday,
May 25, was Memorial Day, a legal holiday. Therefore, Mathis timely filed her
objection on Tuesday, May 26, 2009.
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Buckler next argues that Mathis failed to object during the deposition to the
above line of questioning. CR 32.04(3) addresses objections as to the taking of
depositions and provides in part as follows:
(a) Objections to the competency of a witness or to the
competency, relevancy, or materiality of testimony are
not waived by failure to make them before or during the
taking of the deposition, unless the ground of the
objection is one which might have been obviated or
removed if presented at that time.
(b) Errors and irregularities occurring at the oral
examination in the manner of taking the deposition, in
the form of the questions or answers, in the oath or
affirmation, or in the conduct of parties and errors of any
kind which might be obviated, removed, or cured if
promptly presented, are waived unless seasonable
objection thereto is made at the taking of the deposition.
Buckler also cites to T.C. Young Constr. Co. v. Brown, 372 S.W.2d 670 (Ky.
1963), for the proposition that objections made at trial to deposition testimony for
failure to establish the integrity of x-rays were too late: “Certainly this particular
objection was too late when first made during the reading of the deposition at the
trial.” Id. at 674. We note that Mathis made her objection to the deposition
testimony prior to trial. Based on these authorities, Buckler contends that Mathis
waived her opportunity to object because the problem posed by the question could
have been cured had it been presented promptly. We disagree.
The parties extensively argued this issue at a court hearing on September 4,
2009, several months after Mathis filed her written objection. The trial court based
its ruling striking the testimony regarding Dr. Jacob’s qualification of his opinion
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on permanency to the performance of a current physical examination. In fact,
because of its delay in ruling, the trial court opted to continue the trial to
specifically permit Buckler to take additional testimony from Dr. Jacob regarding
permanency. That Buckler was unable to schedule a physical examination and redepose Dr. Jacob prior to the new trial date is of no course, especially as Buckler
had known of the basis of Mathis’s objection for several months prior to the entry
of the ruling. Therefore, the trial court’s ruling striking portions of Dr. Jacob’s
testimony regarding the permanency of Buckler’s injuries was not an abuse of
discretion.
Accordingly, the judgment and the order denying Buckler’s motion for a
new trial are affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Perry R. Arnold
Bedford, Kentucky
William P. Swain
Patricia L. Harmeling
Ben T. White II
Louisville, Kentucky
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