STEVEN J. HODGE, M.D. v. FELICIA M. WATTS, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF BRENT WATTS, DECEASED; AND LABORATORY CORPORATION OF AMERICA LABORATORY CORPORATION OF AMERICA v. FELICIA M. WATTS, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF BRENT WATTS, DECEASED; AND STEVEN J. HODGE, M.D.
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April 13, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000980-MR
STEVEN J. HODGE, M.D.
v.
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE THOMAS R. LEWIS, JUDGE
ACTION NO. 96-CI-01075
FELICIA M. WATTS, AS
PERSONAL REPRESENTATIVE OF
THE ESTATE OF BRENT WATTS, DECEASED;
AND LABORATORY CORPORATION OF AMERICA
AND
NO. 1999-CA-001012-MR
LABORATORY CORPORATION OF AMERICA
v.
APPELLEES
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE THOMAS R. LEWIS, JUDGE
ACTION NO. 96-CI-01075
FELICIA M. WATTS, AS
PERSONAL REPRESENTATIVE OF THE
ESTATE OF BRENT WATTS, DECEASED;
AND STEVEN J. HODGE, M.D.
APPELLEES
AND
NO.
1999-CA-001066-MR
FELICIA M. WATTS, AS
PERSONAL REPRESENTATIVE OF THE
ESTATE OF BRENT WATTS, DECEASED
v.
CROSS-APPELLANT
CROSS-APPEAL FROM WARREN CIRCUIT COURT
HONORABLE THOMAS R. LEWIS, JUDGE
ACTION NO. 96-CI-01075
LABORATORY CORPORATION OF AMERICA;
AND STEVEN J. HODGE, M.D.
AND
NO.
CROSS-APPELLEES
1999-CA-001639-MR
LABORATORY CORPORATION OF AMERICA
v.
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE THOMAS R. LEWIS, JUDGE
ACTION NO. 96-CI-01075
KENTUCKY MEDICAL INSURANCE COMPANY;
FELICIA M. WATTS, AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF BRENT WATTS, DECEASED; AND
STEVEN J. HODGE, M.D.
AND
NO.
1999-CA-001699-MR
KENTUCKY MEDICAL INSURANCE COMPANY
v.
APPELLEES
CROSS-APPELLANT
CROSS-APPEAL FROM WARREN CIRCUIT COURT
-2-
HONORABLE THOMAS R. LEWIS, JUDGE
ACTION NO. 96-CI-01075
LABORATORY CORPORATION OF AMERICA;
FELICIA M. WATTS, AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF BRENT WATTS, DECEASED;
AND STEVEN J. HODGE, M.D.
CROSS-APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON AND MILLER, JUDGES.
JOHNSON, JUDGE: Steven J. Hodge, M.D. has filed one appeal and
Laboratory Corporation of America has filed two separate appeals
which have been consolidated for our review.
Felicia M. Watts,
as personal representative of the estate of Brent Watts,
deceased; and Kentucky Medical Insurance Company have filed
cross-appeals.
Having concluded that any errors by the circuit
court were harmless, we affirm.
Brent Watts, the decedent in this matter, first noticed
in the summer of 1995 that his shirt collar was irritating a
small growth on the back of his neck.
He was examined in July
1995 by Dr. Gordon Newell, a dermatologist from Bowling Green,
Kentucky.
Dr. Newell performed a shaved biopsy to remove the
visible part of the growth and sent the specimen to LabCorp’s
facility in Louisville for analysis.
Dr. Hodge was practicing
medicine as a dermatopathologist and was working under a contract
with LabCorp.
This medical malpractice claim arose from Dr.
Hodge’s alleged misdiagnosis of Watts’ malignant tumor.
-3-
Dr.
Hodge, after consultation with associates, reported to Dr. Newell
that Watts had a benign tumor known as a cellular neurothekeoma.
Dr. Newell gave this “good news” to Watts and no further
treatment was planned.
In December of 1995, Watts noticed that the growth on
his neck had returned and he went to see Dr. Newell again.
Dr.
Newell took another biopsy and sent this second specimen to
LabCorp for analysis.
Pursuant to its normal procedure, LabCorp
sent the second biopsy to a different physician, Dr. Antoinette
Hood of Indianapolis, Indiana.
Dr. Hood reviewed slides from
both the July and December biopsies that had been taken from
Watts’ tumor.
After consulting with other pathologists, Dr. Hood
diagnosed a desmoplastic neurotropic malignant melanoma.
There
was medical testimony that in December the tumor was ten
millimeters deep and a melanoma that deep has often metastasized
in other organs.
In an effort to save his life, Watts underwent an
aggressive treatment plan that included two major surgeries to
remove a large amount of tissue and lymph nodes, radiation, a
melanoma vaccine, radiation, chemotherapy, and interferon
injections.
Watts’ treatment included treatments in Bowling
Green, Louisville, Duke University, and Houston, Texas.
While
Watts had some favorable results from these extensive treatments,
the cancer eventually spread to his lungs, liver and brain.
When
this case went to a jury trial in February of 1999, Watts was
clinging to life.
Watts was so ill he was only able to briefly
-4-
attend the trial and he was unable to testify in person, but a
videotaped deposition was introduced.
He died on March 11, 1999.
The trial of this case took the better part of seven
days.
Each side presented extensive expert testimony and
substantial issues, such as causation, were contested.
The jury
awarded the following damages: medical expenses, $178,482.41;
past lost earnings, $149,626.00; future lost earnings,
$1,000,000.00; and pain and suffering, $1,500,000.00--for a total
award of $2,828,108.41.
Dr. Hodge and LabCorp filed post-trial
motions under Kentucky Rules of Civil Procedure (CR) 50.02 and
59.01, which were denied on March 31, 1999.
This appeal
followed.
I.
The Dr. Hodge Appeal (1999-CA-000980-MR)
Dr. Hodge has raised the following eight issues:
I.
Dr. Hodge was denied a fair trial when
the trial court allowed Watts’ counsel
to make reference to the financial
resources of the defendants.
II.
Dr. Hodge was denied a fair trial when
the trial court permitted Watts to
present evidence and make arguments
regarding an alleged spoliation of
evidence even though Kentucky does not
recognize such a cause of action.
III.
The jury verdict is the product of
passion and sympathy for the plaintiff
and prejudice against the defendants
and is not supported by the evidence.
IV.
Dr. Hodge was denied a fair trial by
the [sic] permitting the jurors to
pose written and verbal questions to
witnesses.
-5-
V.
The trial court erred in allowing
Watts to introduce expert testimony
from Dr. Joseph Zaydon.
VI.
Dr. Hodge was denied a fair trial by
the content and manner of Watts’
closing argument.
VII.
The trial court erred in instructing
the jury on the burden of persuasion.
VIII.
Dr. Hodge is entitled to a new trial
on the basis of cumulative error.
Dr. Hodge contends that he was denied a fair trial by
the following reference by Watts’ counsel during voir dire to the
financial resources of the defendants:
Dr. Hodge has a very good lawyer, and so does
the lab, and they have unlimited resources.
And they have indicated that they may call as
many as a dozen expert witnesses in this case
to explain why Dr. Hodge did what he did.
And what I need to know from you, and I don’t
have those resources. I will call three or
four expert witnesses and I’ll tell you why
in the opening statement. I need to know if
the fact that so much is at stake for the
doctor’s reputation, and because there is so
much power and resources on the other side of
the case, if any of you are hesitant or
intimidated or just don’t feel like you can
find a verdict against the doctor even though
the evidence justifies it [emphasis added].
Defense counsel objected to this statement and moved
for a mistrial.
The request for a mistrial was denied and no
further relief was requested.
The four cases relied upon by Dr.
Hodge in his brief involved the introduction of evidence related
to the financial condition of either side of the litigation.
-6-
Our
Supreme Court in Hardaway Management Co. v. Southerland,1
reiterated that “[i]t has been the law of this Commonwealth for
almost one hundred years that in an action for punitive damages,
the parties may not present evidence or otherwise advise the jury
of the financial condition of either side of the litigation.
The
same rule applies in cases where punitive damages are not sought”
[citations omitted][footnote omitted].2
However, in the case sub
judice there was no evidence introduced concerning the parties’
financial condition, other than appropriate evidence concerning
Watts’ lost earnings.
Dr. Hodge’s objection related to
statements made by counsel during voir dire.
In deciding this issue, our analysis must focus on
whether the trial court abused its discretion in refusing to
grant a mistrial.
It is recognized that the trial judge is in
the unique position to determine whether a mistrial is required.3
From our review of the record, we cannot conclude that there was
“‘a manifest necessity for such an action or an urgent or real
necessity’” to declare a mistrial.4
Accordingly, we affirm on
this issue.
1
Ky., 977 S.W.2d 910, 916 (1998).
2
The Supreme Court indicated that as to punitive damages the
majority of jurisdictions hold otherwise; but when punitive
damages are not sought, our state is in accord with the majority
of jurisdictions.
3
Grimes v. McAnulty, Ky., 957 S.W.2d 223, 228 (1997).
4
Skaggs v. Commonwealth, Ky., 694 S.W.2d 672, 678
(1985)(quoting Wiley v. Commonwealth, Ky.App., 575 S.W.2d 166
(1969); Brown v. Commonwealth, Ky., 558 S.W.2d 599 (1977)).
-7-
The second issue concerns the allegation Watts made in
his third amended complaint that Dr. Hodge and LabCorp “tampered
with physical evidence in this case in violation of KRS 524.100.”
Watts claimed he was entitled to damages for violation of this
Class D felony statute under KRS 446.070, which provides that
“[a] person injured by the violation of any statute may recover
from the offender such damages as he sustained by reason of the
violation. . . .”
In Watts’ brief, it is contended that “Dr.
Hodge violated the statute when he ordered lab technicians to
make more slides from the July biopsy to get rid of the remaining
tissue[;] [c]oncealing or destroying those slides[;] . . . [and]
. . . when he photographed The Duke Slide, but said it depicted
one of the July slides” [emphasis original].
The trial court directed a verdict in favor of Dr.
Hodge and LabCorp on this issue, but Dr. Hodge has claimed in his
brief that he was “denied a fair trial when the trial court
permitted Watts to present evidence and make arguments regarding
an alleged spoliation of evidence even though Kentucky does not
recognize such a cause of action.”5
Dr. Hodge observed in his
brief that Watts’ counsel made the following comment in his
opening statement:
So they knew there was trouble in mid-January
of 1996, and that’s when the evidence
tampering began in this case. I’m going to
5
Watts in her protective cross-appeal claims the trial court
erred by granting the direct verdict. The issues on cross-appeal
will be addressed later.
-8-
talk about all of the evidence tampering at
one time, because there was a lot of it.
Dr. Hodge’s brief then states, “Watts’ counsel further advanced
the evidence tampering theme by calling several LabCorp employees
to the stand to testify during Watts’ case in chief. . . .
[T]he
purpose of calling LabCorp personnel . . . was to advance the
cause of distracting the jury from the real issues in the case
while subjecting the defendants to a hostile reaction from the
jury and bias against the defendants.”
Dr. Hodge notes that our Supreme Court in Monsanto Co.
v. Reed,6 refused to create “a new cause of action for
‘spoliation of evidence.’” The Supreme Court stated that “[w]here
the issue of destroyed or missing evidence has arisen, we have
chosen to remedy the matter through evidentiary rules and
‘missing evidence’ instructions.”
In Watts’ brief, it is contended that “[t]he defense
briefs have misrepresented the plaintiff’s position.
The Third
Amended Complaint did not allege that spoliation was a tort,
because Monsanto v. Reed [ ] holds it is not.
However, Monsanto
does not address whether tampering with evidence in violation of
KRS 524.100 is a tort.”
Thus, Watts argues that the evidence and
arguments presented regarding this issue were proper because
there was a reasonable basis for this claim; in fact, Watts
claims in her cross-appeal that the trial court erred by granting
a directed verdict on this issue.
6
Ky., 950 S.W.2d 811, 815 (1997).
-9-
Relying on Monsanto, supra, Dr. Hodge and LabCorp filed
motions to dismiss for failure to state a claim and stated:
The destruction of evidence instruction is
not automatically granted when a party has
been accused of spoiling or destroying
evidence. As with any jury instruction, the
party must first produce evidence upon which
the court can base the instructions. . . .
In Tinsley,7 while acknowledging that the
destruction of evidence may entitle the
defense to an instruction setting forth a
presumption or inference favorable to the
criminal defendant, the appellate court
remanded the case so that the trial court
could evaluate the evidence surrounding the
destruction of the evidence. Tinsley
reinforces the fact that ultimately, which
instruction, if any, is appropriate rests
with the court after careful evaluation of
the evidence [emphasis original].
While the trial court in the case sub judice ultimately
determined that a destruction of evidence instruction was not
supported by the evidence, the trial court first had to consider
the evidence in support of Watts’ claim.
Trial courts are
regularly confronted in causes of action which have alleged
multiple claims with the question of whether part of a
plaintiff’s cause of action should be dismissed for failure to
state a claim or by summary judgment; or whether the plaintiff
should be allowed to introduce evidence in support of his claim,
and the claim re-evaluated on a motion for a directed verdict.
When the trial court chooses to grant a defendant’s motion for a
directed verdict which results in the dismissal of one of the
plaintiff’s claims in a multiple claim cause of action, the trial
7
Tinsley v. Jackson, Ky., 771 S.W.2d 331 (1989).
-10-
court is presented with a situation where the jury has already
heard evidence which the trial court has determined did not
sufficiently support the plaintiff’s claim to entitle the
plaintiff to a jury instruction on that claim.
When Dr. Hodge’s and LabCorp’s motions to have Watts’
claim for destruction of evidence dismissed were denied, they did
not seek in the alternative to have Watts’ multiple claims tried
separately.
This Court has recognized a trial court’s discretion
in “bifurcat[ing] the proceedings by separating the ordinary
damages from the punitive damages if it feels that undue
prejudice would result from lumping all the claims and their
proof together.”8
As this Court recognized in Rodgers, “these
matters fall within the trial court’s discretion under CR
42.02.”9
Finding no abuse of the trial court’s discretion in the
trial of these claims in the case sub judice,10 we affirm.
8
Island Creek Coal Co. v. Rodgers, Ky.App., 644 S.W.2d 339,
349 (1982).
9
Id.
CR 42.02 provides:
If the court determines that separate
trials will be in furtherance of convenience
or will avoid prejudice, or will be conducive
to expedition and economy, it shall order a
separate trial of any claim, cross claim,
counter-claim, or third-party claim, or of
any separate issue or of any number of
claims, cross claims, counterclaims, thirdparty claims or issues.
See also Gray v. Bailey, Ky., 299 S.W.2d 126 (1957); See
generally Bifurcation Unbound, 75 Wash.L.Rev. 705 (2000).
10
“‘Abuse of discretion in relation to the exercise of
(continued...)
-11-
Dr. Hodge also claims he “was denied a fair trial by
[ ] permitting the jurors to pose written and verbal questions to
witnesses.”
Dr. Hodge does not claim to have made
contemporaneous objections to these questions; but instead argues
that “[t]his issue was preserved for review by Dr. Hodge’s motion
for a new trial[,]” or “that review is appropriate under the
palpable error rule set forth in CR 61.02.”
We agree with Dr.
Hodges that the procedure followed in the case sub judice was not
in compliance with the procedure set forth by our Supreme Court
in Transit Authority of River City v. Montgomery:11
It was not improper, in the case, for a
juror to ask any competent and pertinent
questions of a witness, if permitted to do so
by the court. Miller v. Commonwealth, Ky.,
188 Ky. 435, 222 S.W. 96 (1920). In fact,
the practice is encouraged with strict
supervision by the trial judge, if it is
likely to aid the jury in understanding a
material issue involved. Louisville Bridge
and Terminal Co. v. Brown, 211 Ky. 176, 277
S.W. 320 (1925); Stamp v. Commonwealth, 200
Ky. 133, 253 S.W. 242 (1923). Of course, if
a juror should ask an incompetent or
irrelevant question, counsel should object
and the court should sustain such an
objection. Brown, supra. Herein, each juror
who proposed a question was called to the
bench, with all counsel, and a preliminary
review or comment as to any proposed question
was discussed out of the hearing of the
remaining jurors.
10
(...continued)
judicial power implies arbitrary action or capricious disposition
under the circumstances, at least an unreasonable and unfair
decision.’” . . . “The exercise of discretion must be legally
sound.” Kuprion v. Fitzgerald, Ky., 888 S.W.2d 679, 684 (1994).
11
Ky., 836 S.W.2d 413, 416 (1992).
-12-
In the case sub judice, the trial court allowed the
first question from a juror on February 5, 1999, the third day of
trial, during Watts’ case in chief.
The trial court initially
followed a procedure consistent with Montgomery; the questions
were submitted to the trial court by the jurors in writing, the
trial court allowed counsel to review the questions, and by
agreement one of the attorneys would ask the witness the
question.
In his brief, Dr. Hodge does not claim error during
this phase of the trial, but contends that reversible error
occurred after the procedure was relaxed:
Unfortunately, whatever semblance of
control existed in the procedure described
above was abandoned by the trial court when
it allowed jurors [to] ask verbal questions
directly to witnesses, without any prior
screening or discussion of the question by or
among counsel. For example, one juror asked
Dr. Brett Coldiron why, if the tumor could
metastasize in the brain[ ], liver, lungs or
lymphatic system, did the treating physicians
not perform a scan or test of Watts’ brain,
liver or lungs when the biopsy of the lymph
nodes was performed in 1996 [citation to
record omitted]. Such a question does not
directly pertain to whether Dr. Hodge or
LabCorp conformed to the standard of care.
Rather, it indicates that the juror is
approaching the case from what could have
been done in the treatment of a particular
patient rather than whether treatment
provided met the standard of care [emphasis
original].
There is another reason for not
permitting a juror to ask a question
regarding a substantive issue, i.e. one that
is designed to elicit an answer rather than
to clarify the identification of a document
or the meaning of a particular term. One
commentator has suggested that the most
compelling argument against juror questioning
-13-
is that the jury’s role will be distorted
regardless of the selected method and the
utilization of elaborate screening mechanisms
[emphasis original]. Jeffrey S. Berkowitz,
Breaking The Silence: Should Jurors Be
Allowed To Question Witnesses During Trial?,
44 Vand.L.Rev. 117, 147 (1991). (“The
problem, as noted in a concurring opinion in
United States v. Johnson, [footnote omitted]
is that the jury is intended to be a neutral
fact finder in the adversary process. This
neutrality is naturally at risk whenever the
jury is afforded an opportunity to ask
questions that move beyond basic elements of
a witness’s testimony [emphasis original].
Cases in which other members of the jury hear
the questions that the judge refuses to ask
are especially problematic because both the
juror who raised the question and the other
members of the jury may retain the opinion
generated by the question” [emphasis
original].)
Furthermore, involving jurors in the
interrogation of witnesses causes them to
violate, or at least substantially increases
the likelihood that they will violate the
admonition set forth in KRS 29A.310.
Subsection (1) of that statute provides that
the jury should be admonished by the court
prior to each recess that it is their duty
not to talk about the case or to formulate an
opinion about the case until the matter is
submitted to them. Indeed, the defendants
notified the trial court that two jurors
appeared to conference and compare notes
before posing a question [citation to record
omitted]. Dr. Hodge requested that the two
jurors be struck from the jury, but the
request was denied [citation to record
omitted].
In abdicating the strict supervision of
a juror questioning called for by the
Kentucky Supreme Court in Montgomery, the
trial court allowed the substantial rights of
the defendants to a fair trial to be
sacrificed in order to obtain a swift
conclusion to a complex trial. Reversal is
required.
-14-
As Watts argues in response, counsel for the defense
did not object to the procedure followed by the trial court or to
any particular questions.
In fact, during Dr. Hodge’s testimony
he openly solicited questions from jurors and encouraged them to
ask him questions.
At times the testimony from Dr. Hodge and his
exchanges with the jurors constituted a dialogue and had the
appearance of a speaker interacting with his audience.
While it
would have been better for the trial court to have followed the
procedure set forth in Montgomery, we cannot find that the trial
court abused its discretion in using a different procedure.
Furthermore, there was no objection and certainly any error did
not rise to palpable error.
Dr. Hodge’s next argument is that “[t]he trial court
erred in allowing Watts to introduce expert testimony from Dr.
Joseph Zaydon” because the “repeated injection of expert opinion
testimony from a fact witness resulted in substantial prejudice
and deprived him of his right to a fair trial.”
This claim by
Dr. Hodge exaggerates the extent to which Dr. Zaydon’s testimony
went beyond his own knowledge of the facts of this case.
Dr. Zaydon, who is a plastic surgeon from Bowling
Green, Kentucky, testified on direct examination for
approximately 38 minutes.12
He testified that he first met Watts
12
Dr. Zaydon’s testimony was interrupted approximately five
times by objections by the defense. Unfortunately, we are
confronted once again with videotaped bench conferences that are
in a large part inaudible. We recognize the time constraints on
the trial court and we realize that a bench conference is much
(continued...)
-15-
when Watts replaced one of his stockbrokers and handled a “small
account” for him.
After Dr. Newell learned of the malignancy
following the December 1995 biopsy, Dr. Newell contacted Dr.
Zaydon in January 1996 to see if he would accept the referral of
Watts for the purpose of making “a wider incision” to remove the
tumor on Watts’ neck.
Dr. Zaydon became a “part of the treating
team” and removed the tumor in January 1996.
Dr. Zaydon
continued to participate in advising Watts as to his various
treatment options; and in the treatment of Watts, which included
the removal of other growths.
Dr. Zaydon’s testimony also included some personal
observations concerning him being a “close friend” of Watts.
He
explained that while he considered Watts a friend when Watts was
working as one of his stockbrokers, that after he and Watts both
became terminally ill they had “become mutually dependent” and
“close friends.”
He described Watts as “special,” “stoic” and
“brave.”
In his brief, Dr. Hodge focuses on the part of Dr.
Zaydon’s testimony that referred to Watts’ cancer as having been
“misdiagnosed.”
Dr. Hodge refers to three different responses
from Dr. Zaydon that he believes entitled him to a mistrial.
First, in summarizing Watts’ treatment, Dr. Zaydon referred to
Watts’ treatment at Duke University and stated, “But, something
12
(...continued)
quicker than an in chambers conference; however, the bench and
bar need to be made aware of problems that are presented when
bench conferences are inaudible.
-16-
else happened at Duke.
They reviewed the slides; and when they
reviewed the slides.”
Defense counsel immediately objected and
argued “that Dr. Zaydon was about to offer expert testimony that
a mistake was made with respect to the July 1995 biopsy and that
such testimony would be in violation of the court’s pretrial
orders and would also be hearsay and cumulative of Dr. Shea’s13
testimony.”
The trial court sustained Dr. Hodge’s objection as
to hearsay, but overruled the objection that Dr. Zaydon’s
testimony constituted improper expert testimony.
It is this Court’s opinion that the defense actually
received more from the trial court than it was entitled.
As a
member of “the treating team,” any reports that Dr. Zaydon
received from other treating physicians qualified as admissible
evidence under the business records exception to the hearsay
rule.14
As to Dr. Hodge’s objection that Dr. Zaydon offered
expert testimony concerning the possible misdiagnosis, we fail to
see how his limited reference to the concern that there had been
a misdiagnosis constituted the “offer [of] expert testimony that
a mistake was made with respect to the July 1995 biopsy.”
Dr.
Zaydon never expressed an opinion, expert or otherwise, that a
misdiagnosis had occurred.
He merely stated that in the course
of treatment of Watts other physicians had raised the question of
13
Dr. Raymond Shea, a dermatopathologist from Duke
University, was Watts’ primary expert witness.
14
Kentucky Rules of Evidence (KRE) 803(6); Lawson, The
Kentucky Evidence Law Handbook §8.65 (3d ed., 1993); Baylis v.
Lourdes Hospital, Inc., Ky., 805 S.W.2d 122, 123 (1991).
-17-
a possible misdiagnosis.
This was an undisputed fact; and Dr.
Zaydon’s testimony did nothing more than present that undisputed
fact in the context of Watts’ course of treatment.
It must be
remembered that Dr. Zaydon participated as a member of Watts’
“treating team.”
The second objection that Dr. Hodge relies upon in his
brief relates to the following question and answer:
Mr. Hixson:
Did you receive a copy of the
Duke path report indicating
melanoma?15
Dr. Zaydon:
I received a copy of the
review of the slides of the
December biopsy and I
concurred that it was indeed a
deadly melanoma. Five,
Clark’s level 5, 10.03 [mm] in
thickness.
I also received, and this was
the first time I noted a
possible misdiagnosis of a
slide that was read on July 25
[1995].
LabCorp argued to the trial court that by making the above
statement Dr. Zaydon “interpreted that there was a misdiagnosis,”
when the Duke report did not so indicate.
Watts’ counsel argued
that Dr. Zaydon’s testimony was proper because Dr. Zaydon was the
person who informed Watts of the possible misdiagnosis.
The
trial court indicated that it would allow the question with the
understanding that Dr. Zaydon was the one who informed Watts of
the possible misdiagnosis, and that “if it isn’t then I might
15
Objection to leading was understandably overruled.
-18-
sustain your motion for a mistrial.”
The questioning continued
as follows:
Mr. Hixson:
Doctor, you did then receive a
report from Duke indicating
that Dr. Shea thought the
slide from the July biopsy was
malignant melanoma?
Dr. Zaydon:
The July biopsy was diagnosed
as a malignant melanoma which
differed from the biopsy
report previously furnished to
me.
Mr. Hixson:
Did you have to tell Brent
what you had seen in that
report and what it might mean?
Don’t, don’t give any opinions
about whether Dr. Hodge did
anything or not, wrong . . .
Dr. Zaydon:
I know . . .
Mr. Hixson:
but did you have to tell Brent
what you had learned?
Dr. Zaydon:
Brent knew that there was a
discrepancy and Brent
discussed it with me.
Dr. Hodge’s counsel immediately renewed his motion for
a mistrial on the grounds that the trial court’s basis for
allowing this testimony had been incorrect.
denied.
The motion was
In his brief, Dr. Hodge summarizes his arguments
concerning his entitlement to a mistrial due to Dr. Zaydon’s
testimony as follows:
Dr. Hodge respectfully submits that the
improper injection of expert opinion
testimony by Dr. Zaydon warranted a mistrial.
Dr. Hodge submits that the trial court erred
in allowing Dr. Zaydon to testify that he too
had been diagnosed with a severe illness and
grew closer towards Watts through that shared
-19-
experience, and that he prayed with Watts and
his children. Zaydon also testified that he
and Watts joked about which of them would be
the first to die from his illness [citation
to record omitted]. Dr. Hodge moved for
mistrial on the basis of the admission of
such irrelevant testimony, but the motion was
denied. Dr. Hodge’s request to exclude the
aforementioned testimony or for an admonition
to the jury was also denied [citation to
record omitted].
As we stated previously, we believe Dr. Hodge has
mischaracterized Dr. Zaydon’s testimony.
Dr. Zaydon did not
offer any expert testimony concerning a possible misdiagnosis of
Watts’ cancer.
His two brief references to a “possible
misdiagnosis” was in the context of his involvement in the
overall treatment plan for Watts and how the cancer and possible
misdiagnosis had affected Watts’ quality of life.
The trial
court did not abuse its wide discretion in refusing to declare a
mistrial.
We affirm on this issue.
Dr. Hodge further claims that the trial court erred by
denying his motion for a directed verdict on the issue of
causation.
Our Supreme Court has stated the standard of review
for the denial of a motion for direct verdict as follows:
All evidence which favors the prevailing
party must be taken as true and the reviewing
court is not at liberty to determine
credibility or the weight which should be
given to the evidence, these being functions
reserved to the trier of fact. The
prevailing party is entitled to all
reasonable inferences which may be drawn from
the evidence. Upon completion of such an
evidentiary review, the appellate court must
determine whether the verdict rendered is
“‘palpably or flagrantly’ against the
evidence so as ‘to indicate that it was
-20-
reached as a result of passion or
prejudice.’”16
In his brief, Dr. Hodge claims that “it is clear that
the verdict on liability and causation is so flagrantly against
the evidence that it is obviously the product of passion and
prejudice.”
Dr. Hodge bases this assertion on his contention
that the expert witnesses, including two for Watts (Dr. Raymond
Shea and Dr. Sanjiv Argawala) and two for Dr. Hodge (Dr. Douglas
Reintgren and Dr. Lafayette G. Owen) “agreed that tumor thickness
was probably the single most important factor to consider in
determining the prognosis, or survivability, of a melanoma.”
Dr.
Hodge argues that “[t]he experts also agreed that the July 1995
biopsy indicated a tumor of 1.8 or 1.9 millimeters in thickness,
but that Dr. Newell had not removed all of the tumor and that a
portion of the tumor was left behind” [emphasis original].
Dr.
Hodge argues that “since the only opinions on tumor thickness
were offered by the defendants’ experts[,] . . . [r]eversal is
required, as the jury [has] completely ignored the testimony on
the issue of tumor thickness and rendered a verdict based solely
on sympathy, emotion, passion and prejudice against the
defendants.”
In response, Watts relies on the following evidence to
support the jury’s finding of causation: (1) “Dr. Shea testified
that [Dr.] Hodge’s conduct fell below the standard of care.”
16
USAA Casualty Insurance Co. v. Kramer, Ky., 987 S.W.2d
779, 781-82 (1999).
-21-
Dr.
Shea referred to two photographs that he believed showed the
melanoma.
He told the jury, “I consider that to be a
misdiagnosis[;]” and (2) “Dr. Agarwala said tumor thickness is
one of several important factors to consider when asking whether
the tumor had metastasized before the misdiagnosis.”
He opined,
“[t]he spread of the tumor . . . occurred later in the course
[later than July, 1995], because once spread occurs for
metastatic melanoma, the survival of most patients is very
limited; and once again historically it’s about 6 to 12 months.”
Watts lived for three years and seven months after July 1995.
This case was vigorously practiced by all parties,
numerous depositions of expert witnesses were taken and numerous
experts testified in person during a lengthy trial.
Dr. Hodge’s
main contention that all experts agreed “that tumor thickness was
probably the single most important factor to consider in
determining the prognosis, or survivability, of a melanoma” goes
to the weight of the evidence.
Evidence presented by Watts which
supports a finding of causation and which must be taken as true
is the in person testimony of Dr. Shea, the dermatopathologist
from Duke University.
Dr. Shea gave his expert opinion that Dr.
Hodge’s misdiagnosis of Watts’ tumor in July 1995 fell below the
standard of care and that this misdiagnosis caused a delay in
treatment which allowed Watts’ cancer to develop more rapidly
which contributed to cause his death at an earlier date than if
he had received timely treatment.
Certainly, this constituted
substantial evidence to support the jury’s verdict.
-22-
Dr. Hodge also contends that if the jury award of $1
million in future lost wages was based upon Watts’ evidence of an
annual income of $93,516.00, then “the jury’s award for future
lost wages assumes that Watts would have lived 10.7 years from
the date of the trial but for the alleged misdiagnosis.”
He
concludes this argument by contending that “given the extremely
low chance of long term survival from a tumor that already
matastasized by July 1995, the jury’s verdict is flagrantly
against the evidence.”
Watts responds by pointing out that there
was substantial evidence to allow the jury to find that “the
tumor had not metastasized; otherwise, they could not award
anything, due to lack of causation” [emphasis original].
Watts
presented expert testimony that in July 1995, at 39.45 years of
age, he had a remaining work life expectancy of 20.7 years, and a
loss of earning capacity of $1.6 million.
Watts’ theory of his
case, which was supported by expert testimony, was that if his
tumor had been correctly diagnosed in July 1995 as malignant,
then in this early stage his cancer would have been more
receptive to treatment and his likelihood of survival would have
been much higher.
These factual determinations were reserved to
the jury as the trier of facts, and since the evidence supports
its findings, we affirm.
Dr. Hodge also claims that he “was denied a fair trial
by the content and manner of Watts’ closing argument.”
Specifically, Dr. Hodge claims the following argument by counsel
-23-
concerning the amount the jury should award to Watts for pain and
suffering constituted a “golden rule” argument:
How could you compensate him for that? Would
you do it by the hour, day, week or year?
Gee, I hope not.
Suppose you saw a want ad and it says:
here’s a job-call this number to apply.
There are no duties. You don’t have to
report for work. You can spend the day as
you choose. No obligations. No bookkeeping.
The job pays $500 a day, we’ll send you a
check every week. Nothing else to do. And
it’s not selling drugs.
So you call and you find out, what is
the job: The job has only one feature. You
have to endure pain for the rest of your
life. Continuing, unrelenting pain. Once
you take the job, it’s permanent. You can’t
quit. No vacation. That’s it, all you gotta
do is endure pain.
Nobody would answer that. Nobody would
take that job. But Brent has that. And none
of us can undo it.
Dr. Hodge concedes that this issue was not preserved
for appellate review; but he contends that we should grant relief
under CR 61.02, the palpable error rule.
There is no basis for
such relief; the argument did not constitute a “golden rule”
argument.17
We have reviewed Watts’ counsel’s closing argument
in its entirety and believe it to have been proper and fair.18
17
Smith v. McMillan, Ky., 841 S.W.2d 172 (1992); May v.
Francis, Ky., 433 S.W.2d 363 (1968); Stanley v. Ellegood, Ky.,
382 S.W.2d 572 (1964).
18
Halvorsen v. Commonwealth, Ky., 730 S.W.2d 921, 925
(1986).
-24-
The award for pain and suffering was clearly reasonable and
within the discretion of the jury, and we affirm.
The seventh issue raised by Dr. Hodge is his claim that
“[t]he trial court erred in instructing the jury on the burden of
persuasion.”
Approximately 5 ½ hours after the jury had begun
its deliberations, it submitted a written question to the trial
court asking, “[d]o we have to decide guilt beyond a reasonable
doubt in this case or is that in criminal cases only?”
Dr. Hodge
and LabCorp objected to the trial court telling the jury “in
criminal cases only.”
The defendants claimed the appropriate
response should have been to tell the jury to refer to the
written jury instructions.
The two cases cited by Dr. Hodge in
his brief do not hold that the trial court abused its discretion
by providing the jury with additional instructions.
Rather, the
cases hold that the trial court did not abuse its discretion by
not enlarging upon the instructions in an attempt to answer the
jury’s question.19
As was the case in Lee v. Henderson,20 the
answer to the jury’s question in the case sub judice could not be
readily discerned from re-reading the written instructions.
The
trial court did not abuse its discretion in answering this simple
question in a straightforward and correct manner, and we affirm.
19
Thompson v. Walker, Ky.App., 565 S.W.2d 172, 174 (1978);
Kentucky & Indiana Terminal Railroad Co. v. Mann, Ky., 312 S.W.2d
451, 453 (1958).
20
Ky., 331 S.W.2d 884, 885 (1960).
-25-
The final issue raised by Dr. Hodge is his claim that
he “is entitled to a new trial on the basis of cumulative error.”
We have previously held that none of the seven issues raised by
Dr. Hodge constituted error.
We have reviewed the video record
of this trial in its entirety and our conclusion is that the
experienced trial judge21 was diligent and vigilant in his
efforts to afford all the parties a fair trial.
Dr. Hodge has
not presented any issue that merits a new trial or further
discussion, and the judgment is affirmed.
II.
The LabCorp Appeal Against Watts (1999-CA-001012-MR)
Lab Corp has raised the following issues:
I.
The trial court directed a verdict
against LabCorp in error.
A.
B.
II.
The court’s finding of express
agency is unsupported by the
evidence.
The court’s finding of ostensible
agency was error.
The trial court committed reversible
error by denying LabCorp a closing
argument.
III. The trial court committed reversible
error by allowing the introduction of
irrelevant evidence concerning slides
made after the date of Dr. Hodge’s
diagnosis.
A.
The trial court failed to limit the
proof of evidence relevant to the
plaintiff’s claim of negligence
against Dr. Hodge.
21
Judge Lewis told the jury before instructing it that this
was his 300th jury trial as a circuit court judge.
-26-
B.
The trial court erred by allowing
the plaintiff to pursue a theory of
recovery based on spoliation of
evidence.
LabCorp claims the trial court erred by denying its motion
for a directed verdict on the issue of liability, and instead,
entering a verdict in favor of Watts.
LabCorp argues in its
brief that the trial court erred twice: (1) “The court’s finding
of express agency is unsupported by the evidence”; and (2) “The
court’s finding of ostensible agency was error.”
Lab Corp’s
position is that it contracts independently with medical
specialist such as a dermatopathologist to provide the medical
services required for conducting a pathological analysis of
tissue samples.
LabCorp puts great weight on a “Consulting
Agreement” between it and Dr. Hodge, which stated in part:
7.
It is understood and agreed that the
DOCTORS have entered into this Agreement
as independent contractors and,
notwithstanding anything to the contrary
contained herein, neither the DOCTORS
nor any Substitute, shall at any time be
considered either an employee of NHL22
entitled to any of the benefits thereof
or an agent of NHL entitled to act for
or in behalf of NHL in any respect
whatsoever. . . .
In support of its first argument, Lab Corp states in
its brief as follows:
Both the Agreement which existed between Dr.
Hodge and LabCorp as well as the manner in
which Dr. Hodge conducted his medical
practice under that Agreement clearly
22
NHL refers to National Health Laboratories Incorporated,
which was LabCorp’s predecessor.
-27-
indicate that Dr. Hodge was not LabCorp’s
agent, but was LabCorp’s independent
contractor.
. . .
The paramount inquiry in determining whether
one is properly designated an independent
contractor as opposed to an employee is the
degree of control exercised by the person or
entity employing the independent contractor
over the details of the contractor’s work in
question. Shedd Brown Mfg. Co., 257 S.W.2d
at 896.
. . .
Under the Agreement, Dr. Hodge exercised
complete and unfettered control over the
details of his work as a dermatopathologist
[citation to record omitted]. It was Dr.
Hodge, not LabCorp, who decided the best
manner in which to examine a slide, which
power to use when examining a slide under the
microscope, how to interpret cellular
patterns observed under the microscope, and
the diagnosis based on observation of
patterns. This is the practice of medicine.
Dr. Hodge, not LabCorp, decided whether to
order re-cuts or special straining, whether
to show the slides around to other
pathologists or whether to get an outside
consultation. This is the practice of
medicine. It was Dr. Hodge, not LabCorp, who
rendered a diagnosis and decided what
information should be conveyed to the
clinician in the pathology report [citation
to record omitted]. Again, this is the
practice of medicine.
. . .
None of the evidence presented by
Plaintiff contradicted that offered by
LabCorp on the issue of control. The
evidence presented below is uncontraverted
that dermatopathology requires special skill.
The evidence below is also uncontraverted
that Dr. Hodge performed the services
required under the Agreement — the practice
of medicine — in his office using a
-28-
microscope he owned and making his own
unfettered decisions about what the
appearance of the cells meant. Compensation
due under the Agreement was tied to the
number of cases read by Drs. Hodge and Owen
and was not a function of hours worked.
. . .
The only conclusion that can be drawn
from the evidence is that, when it came to
the practice of medicine, Dr. Hodge operated
independently. The diagnoses he reached
after analyzing slides were reached by him,
outside the control of LabCorp. LabCorp had
neither the authority nor the ability to
control or interfere with Dr. Hodge’s
practice of medicine. Because LabCorp
exercised absolutely no control over the
details of Dr. Hodge’s practice of
dermatopathology and specifically his
examination and interpretation of slides
pertaining to the Plaintiff in July of 1995,
it was error for the trial court to direct a
verdict on the issue of express agency in
favor of the Plaintiff. Even when all
inferences are drawn in favor of the
Plaintiff, it remains irrefutable that, as it
relates to the examination and diagnosis of
tissue samples, LabCorp exercised absolutely
no control over its contract
dermatopathologists, including Dr. Hodge.
As to the second issue, LabCorp argues in its brief as
follows:
In addition to finding against LabCorp
on the issue of express agency, the trial
court curiously granted the Plaintiff’s
motion for directed verdict on the issue of
ostensible agency. Ostensible agency, or
apparent authority as this principle is
sometimes called, is a substitute for express
agency used to apply the principle of
respondeat superior in instances where no
agency exists. Because the trial court found
an agency relationship did exist between
LabCorp and Dr. Hodge by directing a verdict
against LabCorp on the issue of express
-29-
agency it is inexplicable that the trial
court ruled upon the issue of ostensible
agency at all.
. . .
The Court in Paintsville Hospital found it
justifiable to disregard the reality of the
contractual relationship between the hospital
and physician and apply ostensible agency
because persons “who seek medical help
through the emergency room facilities of
modern day hospitals are unaware of the
status of the various professionals working
there.” Paintsville Hospital, 683 S.W.2d at
258.
The facts that justified the application
of ostensible agency in Paintsville Hospital
are not present here. Dr. Newell, not the
Plaintiff, made the decision to submit both
the July and December specimens to Lab Corp.
The Plaintiff was not even aware of LabCorp
or Dr. Hodge or their involvement in his
care. The Plaintiff did not choose LabCorp.
Dr. Newell testified that he did not depend
on LabCorp to select a pathologist. Dr.
Newell was aware of Dr. Hodge’s status as an
independent contractor for LabCorp and
assumed a contractual, not an employment,
relationship existed between Dr. Hodge and
LabCorp. Dr. Newell testified that he
specifically chose to send his specimens to
LabCorp because Dr. Hodge or one of his
associates would be reading the slides and
rendering a diagnosis. The pathology report
prepared by Dr. Hodge and transmitted by
LabCorp was received not by Plaintiff, but by
Dr. Newell. LabCorp billed Dr. Newell, not
the Plaintiff, as Dr. Newell was its client
[citations to record omitted].
Because Dr. Hodge was not a hospital
based physician and because the Plaintiff
never came to LabCorp, as the plaintiff in
Paintsville came to the hospital, and thus
the Plaintiff never made any assumption about
the relationship of Dr. Hodge and LabCorp,
nor could he have done so, the Court’s
application of ostensible agency is
erroneous.
-30-
LabCorp is correct in its reply brief that Watts’
response brief failed to address the agency issues it raised.
Watts’ arguments concerning Dr. Hodge’s “administrative duties”
“as co-medical director of LabCorp’s Louisville histology
laboratory” and the nature of the “inherently dangerous activity”
under Restatement (Second) of Torts §413, §414, §416 and §427 are
irrelevant.
In deciding the issue of vicarious liability, we
believe that it will be helpful to provide a general discussion
of this area of the law.
While there are many cases and legal
articles that have addressed the issue of the liability of a
hospital, sanitarium, or physician for the negligence of
personnel who have provided medical services, we have not found
any that deal directly with the liability of a medical laboratory
for a misdiagnosis by a physician.
However, we believe it is
useful to consider the development of the law in this general
area.
For many years the rule was that without a direct
employment relationship or express agency, hospitals could not be
held liable for the negligent acts of emergency room physicians;
accordingly, the cases revolved around whether the particular
relationship between a hospital and a physician constituted an
employee-employer relationship.
If the physician was found to be
an independent contractor and not an employee, liability did not
extend to the hospital.
However, “[o]ver the past several years,
courts in several states have held hospitals liable for the
-31-
negligent acts of independent-contractor physicians in the
emergency room under theories of apparent authority and authority
by estoppel.”23
The annotation at 58 A.L.R.5th 613, 629, explains as
follows:
These two theories are exceptions to the
rule limiting an employer’s vicarious
liability to the actions only of employees
and agents and are derived from,
respectively, the Restatement (Second) of
Torts § 42924 and the Restatement (Second) of
Agency § 267.25 Close comparison of the two
sections shows one significant difference.
In § 429, there is no need to show a reliance
on the apparent authority itself to find
liability, while § 267 requires that the
third person show that he or she justifiably
relied on the representation of the agency or
employment in seeking the services alleged to
have been negligent. In the context of
medical malpractice, however, that need to
demonstrate justifiable reliance has been
altered significantly to a requirement to
show that the third person relied on the
reputation of the principle hospital in
making the decision to seek health care from
23
Daniel L. Icenogle, J.D., M.D., Annotation, Hospital
Liability as to Diagnosis and Care of Patients in Emergency Room,
58 A.L.R.5th 613 (1998).
24
“One who employs an independent contractor to perform
services for another which are accepted in the reasonable belief
that the services are being rendered by the employer or by his
servants, is subject to liability for physical harm caused by the
negligence of the contractor in supplying such services, to the
same extent as though the employer were supplying them himself or
by his servants.”
25
“One who represents that another is his servant or other
agent and thereby causes a third person justifiably to rely upon
the care or skill of such apparent agent is subject to liability
to the third person for harm caused by the lack of care or skill
of the one appearing to be a servant or other agent as if he were
such.”
-32-
the apparent agent physician. As a result,
the distinction between doctrine derived from
the two different sections has been erased
and the terms “apparent authority” and
“authority by estoppel” are treated
synonymously in this context.
When Kentucky case law is reviewed, it is evident that
the development of the law in this state is consistent with the
majority of jurisdictions in this country.
In Paintsville
Hospital Co. v. Rose,26 our Supreme Court stated that “[t]he
issue is whether the appellant, Paintsville Hospital, can be held
liable on principles of ostensible agency or apparent authority
for the negligence of a physician who was not employed by the
hospital but who furnished treatment in the emergency room which
was provided by the hospital and open to the public.”
The
physician, Dr. Ikramuddin, was “charged with negligence causing
the death of Grimsey Rose in failing to properly read head x-rays
resulting in failure to diagnose a skull fracture with subdural
hematoma.”27
Unlike the case sub judice, in Paintsville Hospital, it
was not disputed “that Dr. Ikramuddin had no actual agency
relationship with the hospital”; the issue on appeal concerned
“ostensible agency.”28
The Supreme Court noted that “the cases
applying the principle of ostensible agency to the
hospital/emergency room physician situation, without exception,
26
Ky., 683 S.W.2d 255 (1985).
27
Id. at 256.
28
Id.
-33-
do not require an express representation to the patient that the
treating physician is an employee of the hospital, nor do they
require direct testimony as to reliance.
A general
representation to the public is implied from the
circumstances.”29
The Supreme Court observed that “[t]he
landmark case applying the principle of ostensible agency to
physicians not employed by the hospital but furnished through the
institutional process is Seneris v. Haas, 45 Cal.2d 811, 291
P.2d. 915 (1955), where it was applied to an anesthesiologist.
Since then few courts have failed to recognize the soundness of
this application[.]”30
The Supreme Court continued by citing
numerous cases that have followed this approach and noted that it
had “been generally applied not only to anesthesiologists, but to
pathologists, radiologists, and emergency room physicians, all of
whom share the common characteristic of being supplied through
the hospital rather than being selected by the patient.”31
While Paintsville Hospital involved the application of
ostensible agency to support the vicarious liability of a
hospital for the negligence of an independent
contractor/emergency room physician and not a laboratory for the
negligence of an independent contractor/pathologist, the Supreme
Court noted that “the principle itself is one recognized and of
29
Id.
30
Id. at 256-57.
31
Id. at 257.
-34-
longstanding in Kentucky.”32
The Supreme Court cited Middleton
v. Frances,33 where this principle was applied “to establish the
liability of a taxicab company to a passenger where the sole
connection between the driver and the taxicab company was the
company’s name painted on the taxi and rent paid to the company
for the privilege of operating it from the company office.
The
company did not employ the driver and received no part of the
earnings from his taxicab.”34
The Supreme Court went on to quote
from learned treatises as follows:
Quoting Corpus Juris [in Middleton v.
Frances], we stated:
“An apparent or ostensible agent is
one whom the principal, either
intentionally or by want of
ordinary care, induces third
persons to believe to be his agent,
although he has not, either
expressly or by implication,
conferred authority upon him.” 77
S.W.2d at 426.
The principles of apparent or ostensible
agent are discussed at length in Restatement
(Second) of Agency § 267 (1958):
“One who represents that another is
his servant or other agent and
thereby causes a third person
justifiably to rely upon the care
or skill of such apparent agent is
subject to liability to the third
person for harm caused by the lack
of care or skill of the one
32
Id.
33
257 Ky. 42, 77 S.W.2d 425 (1934).
34
Paintsville Hospital, supra at 257.
-35-
appearing to be a servant or other
agent as if he were such.”
We cited the same section from the
earlier edition of the Restatement of Agency
with approval in Middleton v. Frances, supra.
Further, the Restatement (Second) of Agency
makes the following statement significant to
our discussion in § 49, explaining the
difference between “Interpretation of
Apparent Authority Compared with
Interpretation of Authority”:
“(a) manifestations of the
principal to the other party to the
transaction are interpreted in
light of what the other party knows
or should know instead of what the
agent knows or should know, . . .
.”35
In Paintsville Hospital, the Supreme Court cited
numerous cases from other jurisdictions and noted that “[i]n
these circumstances it is unreasonable to put a duty on the
patient to inquire of each person who treats him whether he is an
employee or independent contractor of the hospital.”36
Similarly, this Court in Williams v. St. Claire Medical Center,37
in applying ostensible agency to a hospital for the negligence of
an independent contractor/nurse anesthetist, quoted Stanhope v.
Los Angeles College of Chiropractic,38 and stated, “it cannot
seriously be contended that respondent, when he was being carried
from room to room . . . should have inquired whether the
35
Id.
36
Id. at 258.
37
Ky.App., 657 S.W.2d 590, 596 (1983).
38
54 Cal.App.2d 141, 128 P.2d 705, 708 (1942).
-36-
individual doctors who examined him were employees . . . or were
independent contractors.”
“[T]he majority rule is that the
manner in which the parties designate a relationship is not
controlling, and if an act done by one person on behalf of
another is in its essential nature one of agency, the one is the
agent of the other, notwithstanding he is not so called”
[citations omitted].39
Accordingly, we hold that the trial
court’s directed verdict holding LabCorp vicariously liable for
the negligence of Dr. Hodge on the theories of express agency and
ostensible agency was correct as a matter of law; and we affirm
on this issue.
The second issue raised by LabCorp concerns the trial
court denying its counsel the opportunity to present a closing
argument to the jury.
Watts had received a directed verdict
against LabCorp based on vicarious liability that was contingent
upon a finding of liability against Dr. Hodge.
Accordingly, Dr.
Hodge’s counsel was left to argue both the question of Dr.
Hodge’s liability and Watts’ damages.
While LabCorp was not in a
position to argue Dr. Hodge’s liability, it did have a continuing
interest in the question of Watts’ damages.
Since the trial
court had held as a matter of law that LabCorp would be
vicariously liable for any negligence by Dr. Hodge, LabCorp did
have an interest in the damages awarded to Watts.
39
Chevron Oil Co. v. Sutton, 85 N.M. 679, 515 P.2d 1283,
1285 (1973).
-37-
In the two cases40 relied upon by LabCorp in its brief,
the trial courts were reversed for either limiting or totally
denying a party a closing argument; and these cases are easily
distinguishable from the case sub judice.
Watts’ brief has not
cited any case law to support the trial court’s ruling, but our
research supports the ruling.
“In almost every jurisdiction it is the rule that the
time fixed for argument is within the sound discretion of the
trial court, and a case will not be reversed, unless it appears
that this discretion has been abused.”41
“What is reasonable
time for argument depends upon the circumstances of each
particular case, viewed in the light of the amount involved, the
number of witnesses examined, the time consumed in developing the
testimony and the number and importance of the issues to be
tried.”42
“The mere fact that a longer period of argument is
allowed one party than the other does not of itself make out a
case of abuse of discretion justifying a reversal of the
40
Aetna Oil Co. v. Metcalf, 298 Ky. 706, 183 S.W.2d 637
(1944); Schachleiter v. Watson, 231 Ky. 416, 21 S.W.2d 656
(1929).
41
Louis P. Hyman & Co. v. H.H. Snyder Co., 159 Ky. 354, 358,
167 S.W. 146, 148 (1914). See CR 43.02(e); and V. Woerner,
Annotation, Prejudicial Effect of Trial Court’s Denial, or
Equivalent, of Counsel’s Right to Argue Case, 38 A.L.R.2d 1396
(1954).
42
Southern Express Co. v. Southard, 182 Ky. 492, 494, 206
S.W. 773, 774 (1918)(citing Hyman, supra); Michael J. Flaherty,
Annotation, Propriety of Trial Court Order Limiting Time For
Opening or Closing Argument In Civil Case-State Cases, 71
A.L.R.4th 130 (1989).
-38-
decision.
Similarly, unequal distribution of time in cases
involving numerous parties on a side [has] been upheld as proper,
the courts holding that in such cases the question of
distribution of time is peculiarly a matter within the discretion
of the trial court.”43
In Aultman v. Dallas Railway & Terminal Co.,44 the
Supreme Court of Texas reversed the Court of Civil Appeals and
affirmed the trial court in a negligence case.
Aultman had been
injured when she was a passenger on a bus that collided with the
rear end of a truck.
Aultman and her husband sued the bus
company and the company which owned the truck and the defendants
sought “indemnity and contribution from each other but they were
making common cause against the plaintiffs.”45
The Supreme Court
held that the trial court did not abuse its discretion when it
“allowed plaintiffs’ counsel fifty minutes to open and close the
argument before the jury and allowed counsel for each of the
defendants thirty minutes to present his argument.”46
In the case sub judice, in addition to holding that the
trial court did not abuse its discretion in not allowing Lab Corp
to argue the issue of Watt’s damages, we also hold that LabCorp
43
Lemons v. St. John’s Hospital, 5 Kan.App.2d 161, 165, 613
P.2d 957, 962 (1980)(quoting A.E. Korpela, Annotation, Propriety
of Court’s Limitation of Time Allowed Counsel For Summation or
Argument in Civil Trial, 3 A.L.R.3d 1341, 1345 (1965)).
44
152 Tex. 509, 260 S.W.2d 596 (1953).
45
Id. at 600.
46
Id.
-39-
has failed to show how it was prejudiced.
For a party to receive
a new trial based on the denial of its closing argument, a party
must demonstrate that “the error was sufficiently prejudicial, in
the opinion of the court to warrant it in concluding that the
complaining litigant has not had a fair or impartial trial.”47
LabCorp’s interest in limiting Watts’ damages was certainly
shared by Dr. Hodge.
We believe Dr. Hodge’s experienced and able
trial counsel’s closing argument very adequately represented
LabCorp’s interest in limiting Watts’ damage.
LabCorp was not
denied a fair or impartial trial by not being allowed to make a
cumulative argument concerning Watts’ damages.
We affirm on this
issue.
LabCorp next argues that “[t]he trial court failed to
limit the proof to the evidence relevant to the plaintiff’s claim
of negligence against Dr. Hodge.”
In its brief, it states:
The Plaintiff’s proof as it relates to Dr.
Hodge’s negligence related only to the
actions he took or did not take prior to
August 1, 1995 when he issued a pathology
report which identified the skin lesion
removed by Dr. Newell as a cellular
neurothekeoma. The criticism of Dr. Shea,
the only expert offered by the Plaintiff on
the issue of liability, pertained to Dr.
Hodge’s interpretation of cellular patterns
found on the slides made on July 27 and 28,
1995.
. . .
Slides produced after August 1, 1995 or
testimony concerning slides produced after
47
Louisville Woolen Mills v. Kingden, 191 Ky. 568, 578, 231
S.W. 202 (1921).
-40-
that date do not make any fact of consequence
to the Plaintiff’s primary claim any more or
less probable. However, the trial court
refused to limit the issues and the trial
court allowed much proof to be introduced
about events that occurred after August 1,
1995. The Plaintiff spent much time
questioning witnesses concerning the second
tissue lesion removed by Dr. Newell and the
resulting slides prepared by LabCorp from the
second specimen. The introduction of this
irrelevant testimony confused and obscured
the issues to Dr. Hodge and LabCorp’s
detriment.
. . .
While typically matters relating to whether
evidence is relevant and admissible are
within the discretion of the trial court,
when the trial court abused its discretion
and the prejudice to the opposed party
outweighs its probative value, the matter
must be reversed. Green River Elec. Corp. v.
Nance, Ky.App., 894 S.W.2d 643 (1995).
Watts responded in her brief as follows:
In January, 1996, another recut was made from
the July biopsy, and it was The Duke slide.
It was sent to Dr. Shea, who recognized the
melanoma. Then it disappeared for thirty
months. Before the Duke Slide was
“discovered” in Hodge’s desk only three
months before trial, the defense asserted it
never even existed, except in Shea’s
imagination, and that he must have confused
the Watts case with some other patient’s.
After The Duke Slide re-surfaced, the defense
actually made it relevant by arguing that Dr.
Shea’s biased opinion about it caused this
litigation in the first place [emphasis
original].
. . .
Slides from the December tumor were
relevant because that tumor was a later
growth of the July tumor. The doctors
studied all the slides in their efforts to
understand the tumor’s biologic behavior,
-41-
including how fast it could metastasize.
That is why they made at least 144 slides
from the second biopsy. When the trial
began, 78 of them were still missing. Three
more slides unexpectedly reappeared during
the trial, found by Dr. Hood [emphases
original].
. . .
Finally, it bears repeating that only
the slides Dr. Hodge saw in July were used to
prove the standard of care violation, because
the pictures of melanoma in Dr. Shea’s
testimony were made from only those slides
[citation to record omitted].
Our standard of review concerning the admissibility of
evidence was summarized by this Court in Nantz, supra at 645:
Our standard of review in this matter is
well-summarized in Transit Auth. v. Vinson,
Ky.App., 703 S.W.2d 482 (1985):
Relevancy “is a determination
which rests largely in the
discretion of the trial court. . .
.” Glens Falls Insurance Company
v. Ogden, Ky., 310 S.W.2d 547
(1958). However, the trial court
possesses the power to exclude
relevant evidence “if its probative
worth is outweighed by the threat
of undue prejudice to the opposing
party.” R. Lawson, The Kentucky
Evidence Law Handbook, § 2.00 at 21
(2nd ed. 1984). This court will
not disturb a lower court’s
discretionary ruling on appeal
absent an abuse of discretion. Id.
at 22. See also Tumey v.
Richardson, Ky., 437 S.W.2d 201
(1969).
703 S.W.2d at 484.
Furthermore, KRE 103(a) provides that
“[e]rror may not be predicated upon a ruling
which admits or excludes evidence unless a
-42-
substantial right of the party is affected. .
. .”
“‘Relevant evidence’ means evidence
having any tendency to make the existence of
any fact that is of consequence to the
determination of the action more probable or
less probable than it would be without the
evidence.” KRE 401. “Evidence which is not
relevant is not admissible.” KRE 402.
We believe the testimony by expert witnesses concerning
tissue slides that had been made of Watts’ tumor after July 27
and 28, 1995, was relevant evidence.
Additional samples from the
July biopsy and samples from the December biopsy provided the
expert witnesses information to assist them in giving an opinion
concerning Watts’ chances of surviving the cancer if it had been
diagnosed in July 1995.
Furthermore, evidence of some of these
additional samples also related to Watts’ claim for spoliation of
evidence.
The trial court did not abuse its discretion in
allowing this evidence, and we affirm.
The final issue raised by LabCorp concerns Watts’
separate claim for spoliation of evidence and his effort to
obtain a destruction of evidence instruction.
Dr. Hodge raised
these same issues in his appeal and we have thoroughly addressed
those issues in this Opinion, infra at p. 9-13, which discussion
is incorporated herein.
Accordingly, we affirm on all issues in
LabCorp’s appeal.
III.
The Watts Cross-Appeal (1999-CA-001066-MR)
Watts has raised two issues in her cross-appeal: (1)
that the tampering with evidence claim was proper; and (2) that
-43-
Watts was entitled to a jury instruction on spoliation of
evidence.
Theses issues have been addressed previously in this
Opinion.
Since Watts filed her cross-appeal only as a protective
cross-appeal, and since we are affirming the judgment, no further
consideration of these issues is required.
IV.
The LabCorp Appeal Against KMIC (1999-CA-001639-MR)
Approximately one week prior to the trial of Watts’
medical negligence action, Kentucky Medical Insurance Company was
granted permission to intervene in Watts’ circuit court case for
the purpose of adjudicating a declaratory judgment action48
concerning its and LabCorp’s obligations for the payment of any
damages arising from Watts’ lawsuit.
KMIC was the professional
liability insurance carrier for Dr. Hodge and it had issued him a
policy of insurance with coverage limits of $5 million.
An
agreement between Dr. Hodge and LabCorp’s predecessor, NHL,
provided that LabCorp would be responsible for up to $1 million
in coverage after “the liability insurance required to be carried
by” Dr. Hodge’s primary liability coverage was exhausted
[emphasis added].
LabCorp filed an answer and a counterclaim for
a declaratory judgment and the matter was submitted to the trial
court for decision.
On May 28, 1999, the Warren Circuit Court entered an
order “sustaining intervening plaintiff’s motion for declaratory
judgment” and concluding “that after KMIC has paid the initial
48
CR 57; KRS 418.005 et seq.
-44-
$200,000 and LabCorp has paid $1,000,000 toward the satisfaction
of the judgment entered against Hodge, KMIC is responsible for
the balance until its $5,000,000 coverage is exhausted.”
This
appeal followed.
LabCorp has raised the following issues:
A.
The Trial Court Failed to Address
LabCorp’s Argument That KMIC Lacked
Standing to Maintain This Action.
B.
KMIC Lacked Standing to Maintain the
Declaratory Judgment Action.
C.
The Trial Court Erred in Construing the
Contract Against LabCorp as Its Alleged
Drafter, for This Rule of Contract
Interpretation May Only be Utilized When
a Contract Is Deemed to be Ambiguous.
The Court Expressly Concluded That the
Contract Was Unambiguous, Yet Applied
This Rule Anyway.
D.
Notwithstanding the Fact that the
Principle of Construing a Contract
Against Its Drafter Should Not Have Been
Applied When the Trial Court Concluded
That No Ambiguity Existed, the Rule Is
Also Inapplicable in the Context of a
Stranger to the Contract.
E.
The Trial Court Further Erred in
Accepting the Improper Semantic Argument
Advocated by KMIC. LabCorp’s Coverage
Obligation Was Clearly Intended by the
Actual Parties to the Contract to be in
Excess of That of the Physicians’ Own
Carrier.
The parties are in agreement that the trial court in
making its ruling correctly focused on paragraph 8 of the Dr.
Hodge/NHL Agreement and the paragraph relating to excess coverage
in the medical professional liability policy issued by KMIC.
Paragraph 8 of the Hodge/NHL Agreement states:
-45-
8.
The DOCTORS agree during the Term to
carry general liability insurance,
including malpractice liability, having
limits of not less tha[n] $200,000 for
each single occurrence, and $600,000 in
the aggregate. NHL agrees, during the
Term to carry liability insurance
through a qualified insurance carrier,
insuring the DOCTORS and any Substitute,
for personal injury and property damage
liability (including malpractice)
occurring within the scope of the
performance of their duties hereunder,
and having the limits of not less than
$1,000,000 for each single occurrence.
It is understood and agreed that the
liability insurance required to be
carried by NHL hereunder shall be in
excess of the liability insurance
required to be carried by the DOCTORS
hereunder.
The excess coverage paragraph in the KMIC policy states:
How this insurance applies with other
policies. Except for coverage of peer review
and related activities described under
Section III, the insurance provided to you
under this policy is primary insurance. This
means that if you have other insurance
specifically intended to be in excess of
primary insurance, the amount of the
Company’s liability under this policy will
not be reduced by the existence of the other
policy. When both this insurance and other
policies apply to the loss on the same
primary basis (except as relates to coverage
for peer review services described below), we
will pay a pro rata share under our coverage
in settlement of a claim or in payment of a
judgment (up to applicable limits) based upon
our percentage of the total amount of all
insurance that is available to you [emphases
original].
LabCorp’s first two issues relate to whether KMIC
lacked standing to maintain the declaratory judgment action.
While LabCorp is correct that the trial court’s “decision is
-46-
devoid of any reference at all to [its] argument . . . that KMIC
is a stranger to the LabCorp contract with no standing to seek
enforcement of this contract[,]” we cannot accept its argument
“that the failure of a trial court to even address a central
issue in a proceeding is certainly sufficient cause to reverse
its decision.”
Obviously, by granting KMIC a favorable
declaratory judgment, the trial court impliedly ruled KMIC to
have standing to bring the action.
The real question for our
consideration is whether the trial court’s ruling that KMIC had
standing is correct.
LabCorp argues that since KMIC’s only connection to the
Dr. Hodge/NHL Agreement “was that its insured, Dr. Hodge, was a
party to it”, and since Dr. Hodge “has not once expressed in this
proceeding any type of assent [to] or agreement [with] the
interpretation advocated by KMIC”, “KMIC [has] created a
controversy where previously there was none, deliberately
injecting itself into a proceeding on the very eve of trial in
order to advocate a position that benefit[t]ed only itself and
not its insured.”
LabCorp acknowledges that the only case that
it cites49 “stands for the proposition that no stranger to a
contract may sue for its breach unless the contract was made for
his benefit.”
However, LabCorp argues that “this line of
authority illustrates that our law prudently seeks to avoid a
stranger’s self-serving interference with other parties’ contract
49
Sexton v. Taylor County, Ky.App., 692 S.W.2d 808, 810
(1985).
-47-
rights.”
LabCorp goes on to warn that “[i]f the courts of this
Commonwealth do not accept the principle of law advocated by
LabCorp, then there will no doubt arise other similar situations
in the future where a stranger to the contract will see benefit
in seizing upon purported ambiguities in other parties’ contracts
in order to benefit only itself.”
We agree with KMIC’s brief in
response that “[c]overage disputes between companies that are granted -strangers to each other’s contracts are quite common”;
and we believe the cases cited by KMIC support its right to avail
itself of the jurisdiction of the Warren Circuit Court to decide
this actual controversy by a declaratory judgment.50
LabCorp’s next two arguments are also related to each
other and we will address them together.
LabCorp contends that
the trial court’s judgment contains a “flawed legal analysis”
which “undermines the validity of the ultimate conclusion that it
reached.”
LabCorp argues that “[t]he trial court erred when it
placed reliance upon the rule of construing a contract against
its drafter because it failed to recognize that this rule is only
utilized in situations in which a contract is deemed to be
50
Ohio Casualty Insurance Co. v. State Farm Mutual Auto
Insurance Co., Ky., 511 S.W.2d 671 (1974); American National Fire
Insurance Co. v. Aetna Casualty & Surety Co., Ky., 476 S.W.2d 183
(1972); Chicago Insurance Co. v. Travelers Insurance Co.,
Ky.App., 967 S.W.2d 35, 37 (1997)(“opting to be self-insured does
not equate to being uninsured. Walgreen must live with its
decision to be self-insured”); Hartford Insurance Co. v. Kentucky
Farm Bureau Insurance Co., Ky.App., 766 S.W.2d 75 (1989); State
Farm Mutual Auto Insurance Co. v. Register, Ky.App., 583 S.W.2d
705 (1979); Royal-Globe Insurance Co. v. Safeco Insurance Co.,
Ky.App., 560 S.W.2d 22 (1977).
-48-
ambiguous.”51
LabCorp bases its argument on the trial court’s
statement that “LabCorp chose the specific language that was used
in the Agreement and now must live with its choice.”
LabCorp
claims that this statement by the trial court is inconsistent
with other statements, such as: “This Court cannot ignore the
plain, unambiguous terms of the 1984 Agreement. . . ;” and, “It
is undisputed that the Agreement is not ambiguous.”
However, we
agree with KMIC that “[t]he trial court painstakingly based its
decision on the ‘plain meaning’ of the LabCorp contract.”
We
believe that any references the trial court made to the rule of
construction that the language of a contract is to be construed
against the drafter were dicta and did not impact its ruling
which was based on the rule that “[i]n the absence of ambiguity a
written instrument will be strictly enforced according to its
terms.”52
We also agree with KMIC that since “[n]o secondary
rules of contract construction were used,” “LabCorp’s argument
(section D) regarding strangers to a contract is [ ] irrelevant.”
LabCorp’s final argument, in essence, is that the trial
court “incorrectly accepted KMIC’s erroneous semantic argument as
to the meaning of the phrase ‘required to carry’ and misconstrued
51
Citing L.K. Comstock & Co., Inc. v. Becon Construction
Co., 932 F.Supp. 948 (E.D.Ky 1994), aff’d 73 F.3d 362 (6th Cir.
1995).
52
Citing Mount v. Roberts, Ky., 388 S.W.2d 117, 119 (1965).
-49-
the contract” which it contends “is so clear as to be selfinterpreted.”53
In its brief, LabCorp states:
The central issue in this case is the correct
interpretation of the following sentence: “It
is understood and agreed that the liability
insurance required to be carried by NHL
hereunder shall be in excess of the liability
insurance required to be carried by the
DOCTORS hereunder.” Properly understood, the
reference to the insurance that Dr. Hodge was
required to carry signifies his individual
policy of professional liability insurance,
rather than to the specific, minimum dollar
amount of insurance coverage that he was
required to purchase. In other words, the
contractual language upon which KMIC pins its
entire case has nothing at all to do with a
specific dollar amount of insurance coverage,
but is instead a reference to the requirement
that professional liability insurance
coverage must be procured.
. . .
It bears repeating that the phrase
“required to care” that appears in the
LabCorp contract refers to the very fact of
Dr. Hodge’s professional liability insurance,
not to any specific minimum dollar amount of
coverage. The interpretation of the LabCorp
contract adopted by the Warren Circuit Court
is illogical and inconsistent with a common
sense determination of what parties to such a
contract would have found commercially
necessary and reasonable. KMIC persuaded the
trial court to contort the meaning of this
straightforward contractual language in a
manner that ignores the practical business
realities that lead to the formation of this
contract in the first place.
We begin our analysis of this issue with the
observation that both parties have strenuously argued that its
53
Citing Ex parte Walker’s Ex’r, 253 Ky. 111, 68 S.W.2d 745,
747 (1933).
-50-
interpretation of the phrase “required to carry” is the only
reasonable interpretation. The parties strongly contend that the
language is clear and susceptible to only one meaning — its
interpretation.
Since the question of ambiguity has been waived
by both parties, we are left with determining whether the trial
court’s interpretation of the contract was correct as a matter of
law.
We believe it was, and we adopt portions of its opinion as
our own:
This Court focuses on the plain meaning
of the Agreement between LabCorp’s
predecessor in interest, NHL, and Hodge.
According to this Agreement, Hodge was
“required” to carry the first $200,000 of
liability insurance. The Agreement
specifically states the “DOCTORS agree . . .
to carry general liability insurance . . .
having limits of not less tha[n] $200,000 . .
. .” Hodge complied with this section of the
Agreement and was insured by KMIC. He had
much more than the minimal amount, but Hodge
was only required to have $200,000 of
liability insurance according to the
Agreement. Thus, the Court finds that in the
instant case KMIC should pay the initial
$200,000 of the judgment entered against
Hodge.
. . .
LabCorp chose the specific language that
was used in the Agreement and now must live
with its choice:
It is understood and agreed that
the liability insurance required to
be carried by NHL hereunder shall
be in excess of the liability
insurance required to be carried by
the DOCTORS hereunder.
The relevant section of the Agreement
does not state [that] LabCorp would provide
excess coverage over and above that coverage
-51-
available from other sources. As seen from
the above statement, the Agreement clearly
states that the coverage provided by LabCorp
would be “in excess of the liability
insurance required to be carried by” Hodge.
Although not spelled out in its brief,
LabCorp, in essence, is advocating the
deletion of the word “required” from the
Agreement and wishes the clause to mean that
the insurance provided by LabCorp would be in
excess of any liability insurance carried by
Hodge.
It is not the function of a court to
change the obligation of a contract which the
parties have made. O.P. Link Handel Co. v.
Wright, Ky., 429 S.W.2d 842, 847
(1968)(quoting Williston on Contracts §610A
(3d ed.)). Had LabCorp intended its coverage
to be in excess of all of Hodge’s insurance,
LabCorp should have drafted the Agreement to
say that. A clear, common sense reading of
the Agreement requires Hodge to carry
$200,000 of liability insurance and for
LabCorp to insure Hodge for an amount “in
excess” of the $200,000 that Hodge was
required to carry. For whatever reason,
Hodge chose to purchase $5,000,000 of
insurance, but he was only required to
purchase $200,000. This Court cannot ignore
the plain, unambiguous terms of the 1984
Agreement and instead construe the KMIC
policy made sometime later.
V.
The KMIC Cross-Appeal (1999-CA-001699-MR)
In its cross-appeal, KMIC asks that this matter “be
remanded for a factual determination as to the specific amount
for which LabCorp is self-insured, as KMIC and LabCorp [should]
be required to pay a pro rata share of the judgment in excess of
$200,000 based upon the total coverage available to Dr. Hodge.”
We do not accept this interpretation of the parties’ agreement or
this application of the law.
As we previously discussed in
-52-
detail in LabCorp’s appeal, we believe the trial court correctly
decided this issue.
We affirm on KMIC’s cross-appeal.
Based on the foregoing discussion of the three appeals
and the two cross-appeals, we affirm the Warren Circuit Court’s
judgments and orders on all issues.
ALL CONCUR.
BRIEF FOR APPELLANT, STEVEN
HODGE, M.D.:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE/CROSS-APPELLANT,
FELICIA M. WATTS:
David F. Broderick
Kenneth P. O’Brien
Bowling Green, KY
Stephen L. Hixson
Bowling Green, KY
ORAL ARGUMENT FOR APPELLANT,
STEVEN HODGE, M.D.:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE/CROSS-APPELLANT,
KENTUCKY MEDICAL INSURANCE
CO.:
David F. Broderick
Bowling Green, KY
James P. Grohmann
Louisville, KY
BRIEF AND ORAL ARGUMENT FOR
APPELLANT, LABCORP:
Barton D. Darrell
Bowling Green, KY
BRIEF FOR APPELLANT, LABCORP:
Shawn Rosso Alcott
John R. Grise
Bowling Green, KY
ORAL ARGUMENT FOR APPELLANT,
LABCORP:
John R. Grise
Bowling Green, KY
-53-
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