ALLIANT HOSPITALS, INC. d/b/a NORTON HOSPITAL v. KEVIN BENHAM, INDIVIDUALLY AND INFANT, ZACHARY T. BENHAM, AND KEVIN BENHAM AS ADMINISTRATOR OF THE ESTATE OF ZACHARY T. BENHAM, DECEASED, AND ESTATE OF ZACHARY T. BENHAM
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RENDERED:
MAY 2, 2003; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000517-MR
ALLIANT HOSPITALS, INC.
d/b/a NORTON HOSPITAL
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE F. KENNETH CONLIFFE, JUDGE
ACTION NO. 00-CI-002628
v.
KEVIN BENHAM, INDIVIDUALLY AND
AS PARENT AND NEXT FRIEND OF THE
INFANT, ZACHARY T. BENHAM, AND
KEVIN BENHAM AS ADMINISTRATOR OF
THE ESTATE OF ZACHARY T. BENHAM,
DECEASED, AND ESTATE OF ZACHARY
T. BENHAM
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, KNOPF, AND TACKETT, JUDGES.
KNOPF, JUDGE:
Soon after his birth on July 23, 1999, it became
apparent that Zachary Benham had suffered brain damage.
On
Zachary’s behalf, his parents, Angel1 and Kevin Benham, sued
first the doctor who performed the delivery and later the
1
Angel Benham died in February 2001 prior to trial.
hospital, Norton Hospital in Louisville, where the delivery took
place.
The Benhams alleged that the doctor had misused a
device, a vacuum extractor, that had caused cerebral bleeding,
and that the attending nurses had failed to respond
appropriately to signs that during labor the fetus had become
dangerously distressed.
Following a jury trial in Jefferson
Circuit Court in December 2001, the doctor was exonerated, but
the hospital was found liable and ordered to pay damages
totaling more than three-million dollars.
Of that total, the
jury designated almost two-million dollars to compensate Zachary
for his future medical expenses.
On February 16, 2002, after
entry of the judgment but while timely post-trial motions were
pending, Zachary died.
Thereupon the hospital moved that the
award of future medical expenses be severed from the judgment.
The trial court denied the motion by order entered March 6,
2002.
It is from these rulings, the December 27, 2001, judgment
and the order of March 6, 2002, that the hospital appeals.
It
contends that the trial court should have admitted into evidence
a letter from Zachary’s counsel to one of his testifying
experts, that the court should not have awarded Zachary damages
for pain and suffering, and that, when Zachary’s death made it
apparent that he would incur no additional medical expenses, the
court should have amended the judgment accordingly.
For the
reasons that follow, we affirm the trial court’s judgment.
2
The hospital predicated its defense on the theory that
the fetus had likely suffered injury prior to labor before Angel
came to the hospital, that the alleged signs of fetal distress
during labor had not been as alarming as the Benhams maintained
and did not indicate an injury at that time, and that the nurses
had responded appropriately.
As part of its support for this
theory, the hospital sought to show that even the Benhams’
counsel and medical experts had initially discounted the
possibility of an intrapartum injury.
This discounting was
evidenced, the hospital argued, by the fact that the Benhams had
first sued the doctor but not the hospital and that their
experts’ first disclosures had focused on the trauma allegedly
caused by the vacuum extractor.
The hospital showed the
Benhams’ initial complaint and the experts’ interrogatory
responses to the jury and questioned the experts extensively
about the apparent change in their theory of how Zachary’s
injuries came about.
The principal expert against the hospital, Dr. Harlan
Giles, responded that his theory had not changed.
He had
believed as soon as he had reviewed the various hospital
records, he testified, that the baby had indeed been injured by
the bleeding caused by the vacuum extractor, but also that he
had been injured during labor when the supply of blood, and
hence the supply of oxygen, to his brain had been interrupted.
3
In an attempt to impeach Dr. Giles’s testimony, the
hospital referred to a March 6, 2000, letter from the Benhams’
counsel to a second doctor, Dr. Hermansen.
The pertinent
portion of the letter states,
Harlan [Dr. Giles] has advised me that there
are periods of hyperstimulation, but that
they are intermittent, and he also advises
that there are intermittent late
decelerations, and he does not believe the
child’s brain damage was caused by an
hypoxic ischemic event during labor, but
rather he believes the cerebral palsy is due
to the bleed that began at delivery with the
application of the vacuum extractor.
Without identifying the letter, the hospital quoted from it and
asked Dr. Giles if he had not formerly expressed these opinions
about the cause of Zachary’s injury.
Dr. Giles denied having ever expressed those opinions.
He testified that the quoted portion of the letter was not an
accurate statement of his opinion at any time, that he had, in
fact, believed then, in March 2000, and still believed at trial,
that Zachary’s brain damage had resulted in part from oxygen
deprivation during labor.
The hospital moved to introduce
counsel’s letter into evidence, but the trial court denied the
motion on the ground that, as part of a pre-litigation expert
consultation, the letter was privileged.
4
The hospital acknowledges that evidentiary rulings are
left largely to the trial court’s sound discretion,2 but contends
that in this instance the trial court abused that discretion.
First, it argues, the letter should not be deemed privileged
because counsel made a similar representation of Dr. Giles’s
opinion in other, post-litigation, letters.
Even if the
privilege applies, moreover, counsel waived the privilege when
he permitted Dr. Hermansen to be deposed about it.
Finally, the
privilege should be narrowly cabined, the hospital asserts,
because it conflicts with the trial court’s fundamental
obligation to find the truth.
With this last argument, at least, we agree.
Courts
have long sought the proper balance between CR 26.02’s
incorporation of the work-product rule, pursuant to which a
lawyer’s trial preparation is shielded from appropriation by his
adversary, and its policy of facilitating meaningful crossexamination of expert witnesses.3
As expert testimony has
steadily assumed greater importance in our courts, the trend has
been decidedly toward open discovery and disclosure of the
materials, including a lawyer’s work product, that a testifying
expert considers.4
Were we writing on a blank slate, therefore,
2
Moore v. Commonwealth, Ky., 771 S.W.2d 34 (1988).
3
Karn v. Ingersoll Rand, 168 F.R.D. 633 (D.C. N. Dist. Ind., 1996).
4
Id. Gall v. Jamison, 44 P.3d 233 (Colo. 2002).
5
we would not hesitate to find the letter at issue here
admissible.
The slate is not blank, however.
As the trial court
correctly observed, in Newsome v. Lowe,5 this Court held that
pre-litigation expert consultations should be afforded the
protection of the work-product rule and shielded from discovery.
The shield was necessary, the Court believed, to enable and to
encourage plaintiff’s counsel to assess the client’s claim prior
to filing suit.
The trial court did not abuse its discretion by
applying this well established precedent.
other arguments change this result.
Nor do the hospital’s
The fact that other letters
might not be entitled to the same protection does not change the
status of this letter.
And, contrary to the hospital’s
assertion, the Benhams did not waive the right to exclude the
letter.
At Dr. Hermansen’s deposition and at all pertinent
times thereafter, plaintiff’s counsel duly objected to its
introduction into the case.
Even were we to conclude that the letter should have
been admitted, moreover, the hospital would not be entitled to
relief because there is little likelihood that the admission
would have affected the outcome of the trial.6
5
Ky. App., 699 S.W.2d 748 (1985).
6
CR 61.01.
6
As noted above,
in its extensive cross-examination of Dr. Giles, the hospital
was able to confront him with the apparent change in his opinion
and managed to let the jury know what counsel’s letter to Dr.
Hermansen said.
Admission of the letter itself would have added
little to this evidence, not enough to suggest a different
result.
The hospital next contends that the trial court erred
by permitting the jury to find that Zachary was entitled to
general damages for pain and suffering.
It preserved its right
to appellate review of this issue both by seeking a directed
verdict on the question of pain-and-suffering damages and by
objecting to the instruction whereby the jury was authorized to
find them.
As the hospital notes, our Supreme Court has
indicated that damages for pain and suffering should not be
awarded to one who was totally unconscious of his injuries.7
Courts in other jurisdictions have applied this rule to deny
such damages to individuals so neurologically impaired as to be
left without any awareness of pain or loss.8
The hospital
maintains that the Benhams failed to prove that Zachary could
perceive pain.
7
On the contrary, it contends, the evidence of
Vitale v. Henchey, Ky., 24 S.W.3d 651 (2000).
8
Keene v. Brigham and Women’s Hospital, Inc., 775 N.E.2d 725 (Mass. App.
2002); McDougald v. Garber, 536 N.E.2d 372 (N.Y. 1989).
7
his severe brain injury suggested that he was left without that
ability.
We disagree.
In Vitale v. Henchey,9 our Supreme Court stated that,
although inappropriate if the plaintiff was totally unconscious,
damages for pain and suffering “may be awarded . . . ‘if the
injured person was ‘partly conscious,’ had intervals of
consciousness, or was conscious for a short time before
death.’”10
During his testimony, Kevin Benham presented Zachary
to the jury.
Although Zachary was obviously impaired, he was
awake and responsive to some extent to his surroundings.
Clearly, he was at least partly conscious.
Kevin testified that
if he did not tend to Zachary promptly in the mornings, Zachary
would let his displeasure be known.
Kevin also testified, and
he was confirmed in this by the experts, that as a result of his
injuries Zachary was subject to seizures and was obliged to
undergo uncomfortable treatments.
This evidence was sufficient,
we believe, to permit a rational juror to find that Zachary was
capable of experiencing pain and distress, and that his injuries
pained and distressed him.
Because we are convinced that the evidence permitted a
finding that Zachary experienced pain as a result of his injury
and thus affirm the award of pain-and-suffering damages on this
9
10
supra.
Id. at 659 (citations omitted).
8
ground, we need not address Kevin’s contention that general
damages may be awarded even in the absence of conscious pain to
compensate the victim for so called hedonic losses.11
Finally, the hospital contends that Zachary’s death
less than two months after trial entitles it to relief from that
portion of the judgment awarding him almost two-million dollars
for future medical expenses.
This contention puts in conflict
two of our law’s more fundamental principles: that litigation
should have an end in a reliable judgment and that courts of
law, to the extent feasible, should seek the truth and seek to
base their judgments thereon.
The trial court resolved this
conflict in favor of stable judgments.
The conflict is embodied in our rules, of course, in
CR 60.02.
Pursuant to that rule, a trial court has authority to
relieve a party from a final judgment12 upon certain specified
grounds including “(e) . . . it is no longer equitable that the
11
See Eyoma v. Falco, 589 A.2d 653 (N.J. Super. 1991) (General damages may be
awarded to compensate for the permanent loss of faculties regardless of the
victim’s consciousness of the loss.); but cf. Keene v. Brigham and Women’s
Hospital, supra (Hedonic damages are an element of pain and suffering and may
not be awarded unless the victim consciously anguishes over lost
capabilities.).
12
The hospital asserts that the judgment is not final or should not be
accorded the respect due a final judgment because, when Zachary died and the
hospital moved to sever the award of medical expenses, post-trial motions
pursuant to CR 59 were still pending. Under our rules, however, a judgment
is final upon entry by the clerk. CR 58. A timely motion pursuant to CR 59
suspends the judgment’s operation for various purposes, but, unless and until
granted, it does not change the judgment’s character. Kentucky Farm Bureau
Insurance Company v. Gearhart, Ky. App., 853 S.W.2d 907 (1993). The relief
the hospital seeks, therefore, as acknowledged by its invocation of CR 60, is
relief from a final judgment with all the attendant policy concerns.
9
judgment should have prospective application,” and under the
catchall provision, “(f) any other reason of an extraordinary
nature justifying relief.”
These are the provisions the
hospital invoked in its motion.
Under neither of them is the
hospital entitled to relief.
Subsection (e) is inapplicable, we believe, because a
simple judgment for money damages, even one not yet enforced,
does not have “prospective application.”
The federal courts,
whose rule in this regard is like ours, have reserved that
phrase for judgments, such as those granting an injunction, that
“involve the supervision of changing conduct or conditions and
are thus provisional and tentative.”13
A money judgment, by
contrast, closes the book on a past wrong and leaves the court
with no further involvement.
We find this federal precedent
persuasive and consistent with what little Kentucky precedent
there seems to be.14
Subsection (f) of CR 60.02, the catchall provision,
can apply only if none of that rule’s specific provisions
13
Twelve John Does v. District of Columbia, 841 F.2d 1133, 1139 (D.C. Cir.
1988) (quoting from United States v. Swift and Company, 286 U.S. 106, 76 L.
Ed. 999, 52 S. Ct. 460 (1932)); Deweerth v. Baldinger, 38 F.3d 1266 (2nd Cir.
1994).
14
See Cawood v. Cawood, Ky., 329 S.W.2d 569 (1959) (Although this case
suggests that an unsatisfied money judgment might be deemed to have
prospective application, it holds only that a satisfied money judgment does
not have such application.).
10
applies.15
We are persuaded that one of the specific provisions
does apply, and thus that subsection (f) does not.
Subsection
(b) of CR 60.02 is the specific provision we believe applicable.
That provision allows for relief from a final judgment upon the
ground of “newly discovered evidence which by due diligence
could not have been discovered in time to move for a new trial
under Rule 59.02.”
The hospital contends that newly available
evidence about Zachary’s need for medical care should be allowed
into the case.
Generally, of course, “newly discovered
evidence” is limited to evidence in existence at the time of
trial and does not extend to evidence arising after trial.
This
is likely why the hospital invoked subsection (f) rather than
subsection (b), and we recognize that under either subsection
the issues would be much the same.
Our insistence on subsection
(b), however, is not merely academic.
The point is that
subsection (f) was not intended to provide a means for evading
the strictures of the other subsections.
Be that as it may, the
hospital argues that it is entitled to an exception to the
general newly-discovered-evidence rule because the new evidence
in this case arose soon after trial, is uncontested, and would
lead to a substantial change in the result.
The court’s truth-
finding imperative in these circumstances, the hospital
contends, overrides the general need for finality.
15
Commonwealth v. Spaulding, Ky., 991 S.W.2d 651 (1999).
11
There is some precedent for such an exception.
In
Vanalstyne v. Whalen,16 for example, a successful plaintiff in a
personal injury action was granted a new trial on the issue of
damages when, a few weeks following the original trial, it
became apparent that his injuries were more serious than they
had previously appeared.
The Massachusetts Appeals Court
acknowledged the “mischief naturally flowing from retrials based
upon the discovery of alleged new evidence,” but, because
“courts cannot close their eyes to injustice,” concluded that
the trial court had not abused its broad discretion.17
In Kentucky, however, support for such an exception is
merely hypothetical at best.
In Woods v. Kentucky Traction and
Terminal Company,18 the former Court of Appeals reversed an order
granting a new trial on the ground of newly discovered evidence
that had arisen after trial.
The court did not base its
decision solely on this fact, however, but upon its conclusion
that the new evidence did not render a different result
sufficiently likely.
In a proper case, the Court suggested,
although it would be a rare case, sufficiently probative
evidence arising after trial could provide grounds for relief.
16
445 N.E.2d 1073 (Mass. App., 1983).
17
Id. at 1079-80 (citations and internal quotation marks omitted). See also
Fowler-Propst v. Dattilo, 807 P.2d 757 (New Mex. App., 1991) (collecting
cases).
18
252 Ky. 78, 65 S.W.2d 961 (1933).
12
Similarly, in Cawood v. Cawood,19 the former Court of
Appeals emphasized the need for finality and rejected a claim
that a post-trial change of circumstances justified reopening a
final alimony judgment.
The Court left open the possibility,
however, “that a change of physical condition, occurring within
a comparatively short time after an alimony judgment, might
under some circumstances give rise to equities justifying the
setting aside of the judgment.”20
These cases lend the hospital only the faintest
support, and even that support was called into question in
Stephens v. Kentucky Utilities Company,21 where our Supreme
Court, acknowledging no possible exception, cited Woods and
Cawood for the proposition that only evidence in existence
before judgment would support a newly-discovered-evidence
motion.
In Fowler-Propst v. Dattilo,22 a real-property case in
which the trial court had ordered a new damages trial on the
basis of post-trial evidence, the Court of Appeals of New Mexico
addressed the question “of when, if ever, evidence that comes
into existence after trial can be considered ‘newly discovered
19
supra.
20
Id. at 571.
21
Ky., 569 S.W.2d 155 (1978).
22
807 P.2d 757 (New Mex. App., 1991).
13
evidence’ within the meaning of Rule 1-060(B)(2) [New Mexico’s
identical version of CR 60.02].”23
It held that “[a] new trial
should not be granted solely on the ground that a post-trial
event undercuts a prediction which formed the basis for the
assessment of damages.”24
Emphasizing the institutional need for
reliably final judgments, the court considered what it deemed
the parties’ expectations in cases involving future damages:
In those cases, . . . everyone knew that the
fact finder was not determining a historical
truth but was making an estimate, a
prediction of future events, to establish
damages. For example, in personal injury
litigation, experts attempt to assess the
injured party’s condition in order to
predict future disability, medical care,
pain and suffering, etc. Both parties know
that their expert testimony may be proved
wrong by subsequent events. Yet neither
expects a favorable damage award to be set
aside when future events show that the
prediction was inaccurate. Such adjustments
could go on indefinitely, leading to
multiple reopening of a single case.
Parties take their chances based on the
information existing at the time of trial.25
The court continued by quoting from our former Court
of Appeals’ opinion in Woods v. Kentucky Traction and Terminal
Company, supra:
The courts, upon considerations of public
policy, as a rule are not favorable to the
23
Id. at 759.
24
Id. at 757.
25
Id. at 760.
14
granting of new trials on newly discovered
evidence claiming to show a changed
condition subsequent to trial . . .
“particularly where verdicts rest in any
degree upon expert evidence as to future
resultant conditions reasonably to be
apprehended.” Especially are they inclined
to regard with disfavor evidence as to
subsequent events disproving the character
or extent of bodily injury for which
recovery was had, as where subsequent to a
trial for damages for personal injuries
something occurs showing that the bodily
condition of plaintiff was not such in fact
as was supposed to be by the jury.26
Denying the hospital’s CR 60.02 motion in this case,
the trial court noted that its truth-finding function had been
fulfilled.
The jury had based its assessment of Zachary’s
likely need for future medical treatment on an array of highly
qualified expert testimony.
It had been as well informed on
that difficult question as the considerable efforts and
expenditures of the parties had been able to make it.
The
jury’s assessment could not be perfect, obviously, but the
process had been fair and was calculated to reach as accurate a
result as possible.
The court could do no more.
It is in
society’s interest then, the trial court believed, that final
judgments emerging from that process bring the litigation to an
end.
We agree.
As discussed above, our courts have long
recognized that the social and institutional interest in
reliable, final judgments is an overriding one.
26
Id. at 760.
15
The trial court
did not err or abuse its discretion by recognizing that
overriding interest here and denying the hospital’s motion to
disturb a final judgment on the basis of evidence arising after
the judgment.
In sum, the trial court erred neither by excluding
from evidence a consultative letter from plaintiff’s counsel nor
by awarding damages for pain and suffering nor by denying
appellant’s motion to sever from the judgment an award of future
medical expenses.
Accordingly, we affirm the December 27, 2001,
judgment of the Jefferson Circuit Court.
TACKETT, JUDGE, CONCURS.
COMBS, JUDGE, CONCURS IN PART, DISSENTS IN PART, AND
FILES SEPARATE OPINION.
COMBS, JUDGE, CONCURRING IN PART AND DISSENTING IN
PART:
This tragic case was carefully and for the most part
correctly decided by the trial court.
I agree with the sound
legal analysis of the majority opinion and concur on all issues
except the disposition of the award of damages for future
medical expenses.
I am compelled to agree with the hospital’s
argument that that item of damages should be severed from the
judgment.
However, I would not disturb any other portion of the
judgment.
Surely finality in judgments is a doctrine devoutly to
be pursued in our handling of such issues, and thus we defer
16
whenever possible to the sound discretion of the trial court
with respect to post-judgment motions.
In scanning several
possible relevant provisions of CR 60.02, the majority opinion
rejects reliance upon subsection (b) (newly discovered evidence)
by noting that that provision normally pertains to evidence in
existence but undiscovered at the time of trial rather than to
evidence arising after trial.
This gravely impaired infant died very soon after
trial – before the disposition of post-trial motions.
The
reality of imminent death was undoubtedly present and pending
during the trial; however, the tragedy did not become manifest
until the trial ended.
No reasonable amount of diligence could
have led to a discovery of a matter that lay exclusively within
divine knowledge rather than human perception.
Thus, I cannot
agree with the majority opinion that subsection (b) is
inapplicable.
Additionally, this case appears to fall squarely into
exception (e) of CR 60.02, which permits a court to grant relief
from a final judgment upon the ground that “it is no longer
equitable that the judgment should have prospective application
. . . .”
While this award of damages for Zachary’s future
medical expenses was a final and liquidated sum, it would be
patently unrealistic to deny that the timing of his death
rendered impossible the use of any portion of the award for its
17
intended purpose.
Thus, it would be inequitable as contemplated
by subsection (e) (and as a matter of common sense) to enforce
an award of damages for future care when that possibility ended
immediately after trial.
The unique circumstances of this case dictate the
wisdom of resort to CR 60.02 (b) and (e) in order to avoid the
injustice that would inevitably result if this portion of the
award were allowed to stand.
I do not believe that we will open
Pandora’s box (as counsel for appellees so effectively warned
during oral argument before this panel).
On the contrary, I
believe that a realistic approach to the intended use of a
damages award will safeguard the public purpose of matching
adequate compensation for actual injury.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEES:
C. Alex Rose
Russell H. Saunders
Karen L. Keith
Weber & Rose, P.S.C.
Louisville, Kentucky
F. Thomas Conway
Nicole H. Pang
Louisville, Kentucky
ORAL ARGUMENT FOR APPELLEES:
ORAL ARGUMENT FOR APPELLANT:
Russell H. Saunders
Louisville, Kentucky
F. Thomas Conway
Louisville, Kentucky
18
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