WILLIAM E. CHARASH, M.D.; MARGARET GRIFFEN, M.D.; and TRACY CROSS, M.D. v. DEBRA JOHNSON, Administratrix of the Estate of WALLACE BENJAMIN JOHNSON; and DEBRA JOHNSON, Guardian for BEVERLEE M. JOHNSON and SHAUN A. JOHNSON
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RENDERED: April 21, 2000; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-001067-MR
WILLIAM E. CHARASH, M.D.;
MARGARET GRIFFEN, M.D.; and
TRACY CROSS, M.D.
v.
APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
CIVIL ACTION NO. 97-CI-01052
DEBRA JOHNSON,
Administratrix of the Estate of
WALLACE BENJAMIN JOHNSON; and
DEBRA JOHNSON, Guardian for
BEVERLEE M. JOHNSON and
SHAUN A. JOHNSON
AND:
APPELLEES
NO. 1998-CA-001175-MR
DEBRA JOHNSON,
Administratrix of the Estate of
WALLACE BENJAMIN JOHNSON; and
DEBRA JOHNSON, Guardian for
BEVERLEE M. JOHNSON and
SHAUN A. JOHNSON
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
CIVIL ACTION NO. 97-CI-01052
UNIVERSITY OF KENTUCKY
MEDICAL CENTER
CROSS-APPELLANTS
v.
OPINION
AFFIRMING
CROSS-APPELLEE
** ** ** ** **
BEFORE:
BARBER, HUDDLESTON and MILLER, Judges.
HUDDLESTON, Judge:
Wallace Benjamin Johnson was transported by
emergency medical services personnel to the University of Kentucky
Medical Center’s emergency room after he was injured in a motor
vehicle accident.
Wallace
was
Following an initial examination and treatment,
admitted
to
UKMC.
Dr.
William
Charash,
the
ER
attending physician, Dr. Margaret Griffen, Dr. Tracy Cross and
nurse Karen Owens, among others, cared for Wallace.
During the
early morning on the day following his admission, Wallace died.
Wallace’s wife, Debra, acting as administratrix of his
estate, brought a medical malpractice action against UKMC, Drs.
Charash, Cross and Griffen and nurse Owens seeking damages to
compensate Wallace’s estate for funeral expenses, his conscious
pain and suffering and the destruction of his power to earn money.
In her capacity as guardian for Wallace’s two minor children, Debra
sought damages for the children’s loss of their father’s love,
affection and protection.
Prior to trial, Fayette Circuit Court
dismissed UKMC as a party defendant on the ground that it enjoys
sovereign immunity.
A jury subsequently rendered a verdict against Drs.
Charash, Cross and Griffen and in favor of nurse Owens.
Based on
the verdict, the circuit court awarded Wallace’s estate joint and
several damages in the sum of $608,000.00 against Drs. Charash and
Cross and joint and several damages in the sum of $327,386.00
against Drs. Charash and Griffen; and it awarded the children joint
and several damages in the sum of $195,000.00 against Drs. Charash
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and Cross and joint and several damages in the sum of $105,000.00
against Drs. Charash and Griffen.
All awards bear interest at the
rate of 12 percent per annum from and after entry of judgment until
paid.
Drs. Charash, Griffen and Cross (hereinafter sometimes
referred to as “the physicians”) appeal advancing nine reasons why
the judgment should be reversed.
Debra cross-appeals, claiming
that the court erred when it dismissed the complaint against UKMC
on the ground that it enjoys soverign immunity.
I.
SOVEREIGN IMMUNITY
We turn first to the cross-appeal in which Debra Johnson,
in her representative capacity, argues that the circuit court erred
in dismissing UKMC as a party defendant because it is entitled to
invoke soverign immunity.
This issue has been settled by the
Supreme Court, which held in Withers v. University of Kentucky1
that UKMC enjoys sovereign immunity.
Because the Withers decision
binds us,2 as well as circuit courts,3 the circuit court did not err
when it dismissed Johnson’s complaint seeking damages from UKMC.
II.
APPORTIONMENT INSTRUCTION
The physicians argue on direct appeal that despite the
fact that UKMC was properly dismissed as a party to the action, the
circuit court nevertheless erred when it did not instruct the jury
1
Ky., 939 S.W.2d 340 (1997).
2
Supreme Court Rule (SCR) 1.030(8)(a) (“The Court of Appeals
is bound by and shall follow applicable precedents established in
the opinions of the Supreme Court and its predecessor court”).
3
SCR 1.040(5) (“On all questions of law the circuit . . .
courts are bound by and shall follow applicable precedents
established in the opinions of the Supreme Court and its
predecessor court and, when there are no such precedents, those
established in the opinions of the Court of Appeals”).
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that it could apportion fault to UKMC.4
Kentucky’s apportionment
statute requires that “[i]n all tort actions . . . involving fault
of more than one party to the action” the jury is to be instructed
to
determine
the
percentage
of
fault
attributable
to
“each
claimant, defendant, third-party defendant, and person who has been
released [by an agreement] from liability . . . .”5
In Kevin Tucker & Associates, Inc. v. Scott & Ritter,
Inc.,6 we construed Kentucky Revised Statute (KRS) 411.182 and
determined that “if the evidence at trial shows that [the thirdparty defendant] caused some portion of the [plaintiff’s] damages,
[the defendant] will be entitled to an apportionment instruction.
4
The physicians state in their brief that they properly
preserved this issue for review by referring to it in their
prehearing statement, filed pursuant to Kentucky Rule of Civil
Procedure (CR) 76.03(4). We pointed out in Massie v. Persson, Ky.
App., 729 S.W.2d 448, 452 (1987), (overruled on other grounds by
Conner v. George W. Whitesides Co., Ky., 834 S.W.2d 652 (1992)),
that CR 76.12(4)(c)(iv), which requires that each section of the
argument in an appellant’s brief contain a statement, with
reference to the record, showing whether the issue was properly
preserved for review and in what manner,
emphasizes the importance of the firmly established rule that
the trial court should first be given the opportunity to rule
on questions before they are available for appellate review.
It is only to avert a manifest injustice that this court will
entertain an argument not presented to the trial court.
The physicians’ reference to the prehearing statement does not
demonstrate that the trial court had the opportunity to rule on
this issue.
We would, therefore, be justified in refusing to
address this and other issues raised in the physicians’ brief.
However, we have elected to decide the important issues raised in
this appeal. The record reflects that the physicians tendered an
instruction authorizing the jury to apportion fault to UKMC and,
thus, preserved the error. See Surber v. Wallace, Ky. App., 831
S.W.2d 918, 920 (1992).
5
Ky. Rev. Stat. (KRS) 411.182.
6
Ky. App., 842 S.W.2d 873 (1992).
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[The third-party defendant] is entitled to be dismissed, however,
because
[it]
cannot
be
liable
to
[the
defendant]
under
any
circumstances.”7
The evidence adduced at the trial of this action did not
show that UKMC was responsible for any injury to Wallace Johnson.
While there was proof that UKMC was understaffed while Johnson was
a patient, there was no attempt to connect the understaffing to the
failure to properly treat Johnson. Thus, UKMC could only have been
held liable vicariously as the result of the negligence of of its
only employee who was sued, nurse Owens; and she was absolved by
the jury from any responsibility for Johnson’s maltreatment.
III.
LIMITATION ON CROSS-EXAMINATION
The physicians believe that the circuit court abused its
discretion in limiting the cross-examination of Drs. Griffen and
Cross during appellees’ case in chief to the scope of direct
examination.8 Kentucky Rule of Civil Procedure (CR) 43.06 provides
in part that:
A party may call an adverse party . . . and
interrogate him by leading questions and contradict and
7
Id. at 875.
8
The physicians state they preserved this error in their
motion to submit an additional issue.
While we did grant the
physicians’ motion to submit an additional issue, this does not
relieve the physicians from complying with CR 76.12 (4)(c)(iv).
See footnote 4.
As the Supreme Court did in Nichols v.
Commonwealth, Ky., 839 S.W.2d 263, 266 (1992), we “admonish
appellate counsel to comply with all the rules of this Court
regarding the presentation of appellate briefs and in particular
with the requirements of the rule to state whether the question has
been properly preserved for appellate review.”
Although not
referenced in the physicians’ brief, the record reflects that they
preserved this error by objecting during the examinations of Drs.
Cross and Griffen.
-5-
impeach him in all respects as if he had been called by
the adverse party, and the witness thus called may be
contradicted and impeached by or on behalf of the adverse
party also, and may be cross-examined by the adverse
party only upon the subject matter of his examination in
chief.9
The circuit court’s ruling did not prevent the physicians
from subsequently testifying about their personal and professional
backgrounds.
It merely restrained their counsel, pursuant to CR
43.06, from examining them regarding these matters during the
presentation of appellees’ case in chief.
The circuit court did
not abuse its discretion in initially limiting the scope of the
cross-examination of the physicians.
IV.
The
physicians
CLOSING ARGUMENT
argue
that
appellees’
counsel
made
improper statements during his closing argument that prejudiced
them.10 We have reviewed the closing argument and find no objection
to counsel’s statements. Since there was no objection, the circuit
court had no opportunity to rule whether the argument was proper.
In Gray v. Commonwealth,11 the Supreme Court said that:
Appellant's final argument is that the prosecutor made
improper comments during his closing arguments in both
the guilt and penalty phases of the trial which amounted
9
Emphasis supplied.
10
See footnote 4.
11
Ky., 979 S.W.2d 454 (1998).
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to prosecutorial misconduct. As there were no objections
made, the trial court was not given the opportunity to
pass upon the merits of these allegations which are not
properly preserved for review. We must therefore decline
to consider this challenge.12
Because there was no objection, thus denying the circuit court the
opportunity to rule on the propriety of the argument, we will not
decide this issue.
V.
LOSS OF PARENTAL CONSORTIUM
In Giuliani v. Guiler13 the Supreme Court “recognize[d]
the claim of minor children for loss of parental consortium.”14
In
the present case, Johnson’s children sought and were awarded
damages
for
minority.
consortium
loss
of
their
father’s
consortium
during
their
The physicians argue that damages for loss of parental
end
with
a
parent’s
death.15
plaintiff’s wife died during childbirth.16
In
Giuliani,
the
The plaintiff, as next
friend, sued for loss of consortium for his children.
The Court
said in Giuliani that “[t]he claim of loss of parental consortium
is a reciprocal of the claim of the parents for loss of a child’s
12
Id. at 457.
13
Ky., 951 S.W.2d 318 (1997).
14
Id. at 323.
15
See footnote 4. The physicians preserved this error during
a colloquy with the court regarding proposed jury instructions.
16
Giuliani, supra, n.13, at 318.
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consortium which was recognized in KRS 411.135.”17
That statute
provides that:
In a wrongful death action in which the decedent was a
minor
child,
the
surviving
parent,
or
parents,
may
recover for loss of affection and companionship that
would have been derived from such child during its
minority, in addition to all other elements of the damage
usually recoverable in a wrongful death action.
The
Court
in
Giuliani
also
noted
that
“there
is
no
legal
distinction between the claim of a parent for loss of a child’s
consortium from the claim of a child for the loss of a parent’s
consortium.”18 Because the claims are legally indistinguishable and
reciprocal and KRS 411.135 allows for the recovery of damages
through
a
child’s
minority,
the
claim
for
loss
of
parental
consortium does not end at a parent’s death.
VI.
PAIN AND SUFFERING INSTRUCTION
The physicians argue that the circuit court erred by
giving a pain and suffering instruction because there was an
absence of proof regarding causation.19
testimony refute this argument.
Both expert and
lay
There was expert testimony that
had Johnson undergone surgery, he probably would have survived
instead
of
suffering
an
“unnecessary
death[]
injuries that weren’t recognized earlier.”
17
to
serious
Debra testified that
Id. at 321.
18
due
Id.
19
See footnote 4. The physicians preserved this error during
the colloquy with the court regarding jury instructions.
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her husband suffered immensely and asked for help repeatedly.
believe
this
proof
sufficiently
established
causation
We
and,
therefore, the circuit court did not err by including a pain and
suffering instruction.
VII.
The
physicians
ECONOMIC EXPERT
believe
the
circuit
court
erred
by
admitting the testimony of the economic expert called by the
plaintiff because the testimony was too speculative.20
During the
examination of the economic witness, physicians’ counsel objected
to the economic witness’s testimony that projected Johnson’s lost
earnings based on employment as a school teacher as speculative.
The
expert
offered
an
additional
three
projections
based
on
employment as: (1) a graphic designer, (2) a self-employed graphic
designer, and (3) if Johnson had maintained his current employment.
The physicians did not object to these other projections, and,
thus, the error is not preserved for review.
Even if we liberally
construe the objection that the physicians did make to find a
preserved error regarding the other projections, testimony revealed
that Johnson earned $15.00 per hour plus fringe benefits, and he
had job security.
The economic expert multiplied Johnson’s annual
compensation by his work-life expectancy in calculating his lost
earnings.
There clearly was an economic loss to Johnson’s estate
resulting from his death.
20
Therefore, the fact that damages were
See footnote 4.
-9-
sustained was not speculative.
The fact that the calculation of
damages was necessarily imprecise is of no moment.21
VIII.
READING OF DEPOSITION TESTIMONY
The physicians argue that the circuit court erred when it
allowed Debra’s counsel to read the deposition testimony of the
physicians’ economic expert during her case in chief.22 CR 32.01(c)
provides in part that the deposition testimony of a witness may be
used when the witness “is at a greater distance than 100 miles from
the place where the court sits in which the action is pending or
out of the State, unless it appears that the absence of the witness
was procured by the party offering the deposition[.]”
The expert
witness was both out of state and more than 100 miles away from
Fayette County where the trial was held; and Debra did not procure
his absence.
Therefore, the court did not err in allowing the
deposition to be read.
IX.
CR
THE PHYSICIANS’ EXPERT OPINIONS
26.02(4)
provides
that
a
party
may,
through
interrogatories, require another party to identify the experts it
expects to call at trial.
The physicians did not list themselves
as experts in response to Debra’s CR 26.02(4) interrogatories.23
21
See Hanson v. American Nat’l Bank & Trust Co., Ky., 865
S.W.2d 302, 309 (1993) (“‘[I]t is now generally held that the
uncertainty which prevents a recovery is uncertainty as to the fact
of the damage and not as to its amount and that where it is certain
that damage has resulted, mere uncertainty as to the amount will
not preclude the right of recovery.’”) (quoting Kellerman v.
Dedman, Ky., 411 S.W.2d 315 (1967)).
22
See footnote 4. The physicians preserved this error by
objecting to the reading of the deposition during trial.
23
The physicians were requested to provide
(continued...)
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Consequently, the circuit court limited the defendant physicians’
testimony to the facts they had learned and the opinions they had
formed
based
on
first-hand
knowledge
and
observation.
The
physicians argue the court should have allowed them to give opinion
testimony based on events that occurred subsequent to Johnson’s
death.24
The United States Court of Appeals for the Sixth Circuit
addressed the propriety of excluding a defendant’s expert testimony
in Pedigo v. Unum Life Insurance Co. of America.25
Pedigo, a
physician
insurance
and
medical
examiner,
sought
disability
benefits after the police shot him following an altercation.26
23
(...continued)
the name, address and specialty of each expert whom you
intend to call as a witness at the trial of this action,
and as to each such expert you are specifically requested
to provide the following information:
(a) A complete resume of qualifications;
(b) The subject on which the expert is expected to
testify;
(c) The substance of facts and opinions to which the
expert is expected to testify;
(d) A reasonable summary of the grounds supporting each
opinion to which the expert is expected to testify; and
(e) All titles, authors and publication dates of those
texts, articles and publications upon which the expert
relies in whole or in part in the formation and support
of any opinion. If you have received a written report or
reports from any such expert, please so state by
identifying the author and date of each such report or
reports; and you are invited to attach a copy of each
such report to your answers to these interrogatories and
requests for production of documents.
24
See footnote 4. The physicians preserved this error by
objecting repeatedly during trial.
25
145 F.3d 804 (6th Cir. 1998).
26
Id. at 805, 806.
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Pedigo argued his injuries were accidental.27
The district court
prevented Pedigo from offering his expert opinion regarding the
bullet
wounds
expert.28
because
Pedigo
did
not
identify
himself
as
an
The Sixth Circuit determined that the district court
properly excluded Pedigo’s expert testimony “because the witness
would not be testifying from first-hand knowledge but, like other
experts, only from information observed, gathered, and preserved by
others.”29
Similarly, the circuit court in this case properly
excluded the physicians’ opinion evidence gleaned from information
acquired well after Johnson died as they “would not be testifying
from first-hand knowledge.”30
According to CR 26.02(4), a party must disclose, if asked
through interrogatories, the identity of “each person whom the . . .
party expects to call as an expert witness at trial . . . .”
The
physicians are “person[s]” within the meaning of CR 26.02(4) and are
thus subject to the rule’s disclosure requirement when testifying
about events beyond those they personally observed.
physicians did not list themselves as experts,
Because the
the circuit court did
not err in excluding portions of the physicians’ expert testimony.31
X.
THE TREATING PHYSICIANS’ EXPERT OPINIONS
27
Id. at 808.
28
Id. at 806.
29
Id. at 807, 808.
30
Id.
31
Essentially the same opinion evidence was offered by other
experts called by the physicians.
-12-
The physicians argue that the circuit court erred when it
excluded certain opinion testimony of two treating physicians who
were not parties to this action.
This Court has stated that
“excluded testimony must be placed in the record by avowal to be
preserved for our review.”32
excluded testimony by avowal.
The physicians did not offer the
Accordingly, we do not reach the
merits of this argument.
XI.
CONCLUSION
The judgment is affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANTS/CROSS-APPELLEE:
BRIEF AND ORAL ARGUMENT FOR
APPELLEES/CROSS-APPELLANTS:
William J. Gallion
GALLION, BAKER & BRAY, P.S.C.
Lexington, Kentucky
Joe C. Savage
SAVAGE, GARMER & ELLIOTT,
P.S.C.
Lexington, Kentucky
ON BRIEF:
ON BRIEF:
Bruce D. Gehle
GALLION, BAKER & BRAY, P.S.C.
Lexington, Kentucky
Craig Dance
GREENEBAUM, DOLL & MCDONALD
Lexington, Kentucky
32
Transit Auth. of River City v. Vinson, Ky. App., 703 S.W.2d
482, 487 (1985).
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