WILMA EVELYN BARBOUR, Individually, OF JACK N. BARBOUR v. HOSPITAL CORPORATION OF KENTUCKY d/b/a COLUMBIA HOSPITAL MAYSVILLE and PHILLIP H. YUNKER, M.D.
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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NOT TO BE PUBLISHED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-000716-MR
WILMA EVELYN BARBOUR, Individually,
and as Administratrix of the ESTATE
OF JACK N. BARBOUR
APPELLANT
APPEAL FROM MASON CIRCUIT COURT
HONORABLE ROBERT GALLENSTEIN, JUDGE
ACTION NO. 97-CI-00304
v.
HOSPITAL CORPORATION OF KENTUCKY d/b/a
COLUMBIA HOSPITAL MAYSVILLE and
PHILLIP H. YUNKER, M.D.
APPELLEES
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; COMBS and DYCHE, Judges.
COMBS, JUDGE:
Wilma Evelyn Barbour, individually and as the
administrator of the estate of Jack N. Barbour, appeals from an
order of the Mason Circuit Court entered on February 2, 1998,
which dismissed her action against Phillip H. Yunker, M.D., and
Hospital Corporation of Kentucky, d/b/a Columbia Hospital
Maysville.
We vacate and remand.
On January 10, 1997, Jack N. Barbour died while under
the care and treatment of the appellees.
On December 29, 1997,
the appellant, Wilma Evelyn Barbour filed this medical
malpractice action.
In her complaint, Ms. Barbour sought
"[j]udgment against [the appellees], jointly and severally, as
compensatory damages, in an amount to be fixed by a jury based
upon the evidence at trial, in excess of the minimum
jurisdictional limits of this Court" and punitive damages "in an
amount to be fixed by the jury, not to exceed ten million dollars
($10,000,000.00)."
Thereafter, the appellees filed separate
motions to dismiss the complaint pursuant to CR 41.02.
The
appellees maintained that the complaint was too verbose and that
it stated damages in a specific dollar amount in violation of the
rules of civil procedure.
On February 20, 1998, a hearing on the motions was held
before the trial court.
Subsequently, on February 26, 1998, the
trial court entered its order dismissing Ms. Barbour's complaint
with prejudice.
This appeal followed.
The appellees sought the dismissal of the complaint
pursuant to CR 41.02(1), which provides as follows:
For failure of the plaintiff to prosecute or to comply
with these rules or any order of the court, a defendant
may move for dismissal of an action or any claim
against him.
They argued that Ms. Barbour's complaint failed to comply with
the rules of civil procedure because it was eleven pages in
length and because it contained a request for punitive damages
"in an amount to be fixed by the jury, not to exceed ten million
dollars (10,000,000.00)."
The trial court agreed, concluding
that CR 8.01(2) specifically prohibited the recital of any sum as
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alleged damages other than an allegation that damages are in
excess of the amount necessary to establish jurisdiction.
Additionally, the court determined that the complaint failed to
provide a "short and plain statement of the claim" as required by
CR 8.01(1) and that it violated CR 8.05(1) by failing to contain
"simple, concise, and direct" averments.
Determining an appropriate sanction for violation of
the civil rules is left to the sound discretion of the trial
court.
(1977).
Thompson v. Kentucky Power Co., Ky. App., 551 S.W.2d 815
However, "[i]n ruling on a motion for involuntary
dismissal, the trial court must take care in analyzing the
circumstances and must justify the extreme action of depriving
the parties of their trial."
S.W.2d 717, 719 (1991).
Ward v. Housman, Ky. App., 809
When considering whether an action
should be dismissed based upon the conduct of counsel, the trial
court must consider:
the extent of the party's personal
responsibility; whether the attorney's conduct was willful and in
bad faith; the meritoriousness of the claim; prejudice to the
other party; and, finally, the appropriateness of alternative
sanctions.
Id.
Because of the "grave consequences" attendant to
dismissal, this sanction should be used only in the "most extreme
cases."
Polk v. Wimsatt, Ky. App., 689 S.W.2d 363, 364-365
(1985).
In view of the facts and circumstances presented here,
we conclude that dismissal of the Ms. Barbour's action was
inappropriate.
Contrary to the appellees' assertions, our review
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of the complaint simply does not indicate that it was drafted in
"blatant violation" of CR 8.01 and CR 8.05; nor does our review
suggest that the complaint's contents are unduly inflammatory,
"dramatic," or "sensationalistic."
This case appears to be a complicated medical
malpractice action involving two separate defendants.
It
contains allegations of fraud and misrepresentation; allegations
of inappropriate medical care; and allegations of negligent
"credentialling."
It asserts claims for economic loss and
medical, funeral, and burial expenses; claims for the loss of
affection, companionship, and support; and claims for severe
emotional and psychological injuries.
The complaint appears to
detail facts and conclusions sufficient merely to advise the
appellees of the specific and numerous claims that Ms. Barbour
was making against them.
With respect to the provisions of CR 8.01(2), we
conclude that the complaint could be construed as a technical
violation of the prohibition against the recital of any sum as
alleged damages.
Nevertheless, in light of the facts and
circumstances of this case (and mindful of our prior decisions
discussing the harshness of a sanction that deprives a litigant
of her day in court), we believe that the trial court abused its
discretion by imposing the most drastic sanction possible upon
Ms. Barbour — the jurisdictional equivalent of a death sentence
for what did not amount to a capital offense procedurally.
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The order of the Mason Circuit Court is vacated and
this matter remanded for further proceedings.
GUDGEL, CHIEF JUDGE, CONCURS.
DYCHE, JUDGE, CONCURS IN RESULT AND FILES A SEPARATE
OPINION.
DYCHE, JUDGE, CONCURRING IN RESULT: I concur with the
majority that the dismissal of the complaint was inappropriate in
this case, despite the egregious violation of CR 8.01(2).
A
sanction against offending counsel would have been more
appropriate.
The only conceivable reasons to put the ten million
dollar figure in the complaint are for shock value, or to
generate publicity and discredit the defendants.
I am concerned, however, with the excruciatingly
detailed nature of the complaint.
concise, and direct."
CR 8.05(1).
The averments are not "simple,
Most of the paragraphs of the
complaint contain multiple sentences and multiple allegations of
facts as well as argument relating to the defendants’ state of
mind.
The defendants should not be required to try the entire
case in their answers; the minute details of the allegations
against the defendants should be fleshed out by discovery and
proof.
I would authorize the trial court to order simplification
of the complaint.
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BRIEFS FOR APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE HOSPITAL CORPORATION
OF KENTUCKY:
Frank R. Recker
Cincinnati, OH
Martin A. Arnett
Louisville, KY
Raymond S. Bogucki
Florence, KY
BRIEF AND ORAL ARGUMENT FOR
APPELLEE PHILLIP H. YUNKER,
M.D.:
ORAL ARGUMENT FOR APPELLANT:
Frank R. Recker
Cincinnati, OH
Kenneth Williams
Ashland, KY
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