CHARLENE T. SHAFFER v. SHERI L. STEWART; RUMPKE OF KENTUCKY, INC.; AND KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY and RUMPKE OF KENTUCKY, INC. v. CHARLENE SHAFFER AND SHERI L. STEWART
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RENDERED: MARCH 18, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002684-MR
CHARLENE T. SHAFFER
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN P. RYAN, JUDGE
ACTION NO. 00-CI-005497
SHERI L. STEWART; RUMPKE OF KENTUCKY,
INC.; AND KENTUCKY FARM BUREAU
MUTUAL INSURANCE COMPANY
&
NO.
2003-CA-002753-MR
RUMPKE OF KENTUCKY, INC.
v.
APPELLEES
CROSS-APPELLANT
CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN P. RYAN, JUDGE
ACTION NO. 00-CI-005497
CHARLENE SHAFFER AND
SHERI L. STEWART
CROSS-APPELLEES
OPINION
AFFIRMING
BEFORE:
JUDGE.1
1
** ** ** ** **
COMBS, CHIEF JUDGE; BARBER, JUDGE; MILLER, SENIOR
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
COMBS, CHIEF JUDGE:
Charlene Shaffer appeals from the judgment
of the Jefferson Circuit Court after a jury awarded her
compensation for injuries that she sustained in an automobile
accident.
She argues that the trial court erred in its
evidentiary rulings in two respects:
the improper exclusion of
certain evidence and the incorrect admission of other evidence.
She also challenges the court’s instruction on damages.
In its cross-appeal, Rumpke of Kentucky, Inc., whose
employee was driving a garbage truck involved in the accident,
argues that the trial court erred in failing to direct a verdict
in its favor on the issue of liability.
After a review of the
record, we affirm both as to the appeal and the cross-appeal.
The accident at issue occurred in the mid-afternoon of
December 3, 1998, on U.S. 42, a four-lane highway.
Shaffer
testified that while she was driving eastbound in the
left/passing lane of the highway, she was being tailgated by a
Jeep driven by the appellee, Sheri Stewart.
Shaffer stated that
upon looking to her right, she saw a school bus which prevented
her from moving aside in order to allow Stewart to pass.
She
then looked forward and noticed a pick-up truck stopped in her
lane.
A man, who was later identified as a Rumpke employee, was
walking along the roadway to retrieve a bag of garbage that had
fallen from the truck.
A van had stopped behind the truck.
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When Shaffer applied her brakes to avoid hitting the van, she
was struck in the rear by Stewart’s Jeep.
On August 28, 2000, Shaffer filed suit against Rumpke
and Stewart, seeking damages for the injuries that she sustained
in the accident.
She also asserted a claim against her own
insurer, Kentucky Farm Bureau Mutual Insurance Company (KFB),
for underinsured motorist coverage.
bifurcated.
The claim against KFB was
The lawsuit against Rumpke and Stewart proceeded to
trial to determine the issues of liability and the cause of
Shaffer’s post-accident symptoms.
After several continuances, a trial was conducted in
October 2003.
Shaffer testified that as a result of the
accident, she continued to suffer from debilitating headaches,
short-term memory loss, inability to multi-task, fatigue, and
depression.
She also told the jury that her symptoms had
profoundly impaired her relationships with her husband, her
children, and her friends.
She testified that she was unable to
return to the job that she had held at the time of the accident
or to maintain any other employment due to her physical and
mental impairments.
Shaffer’s experts, Dr. Charles Oates, a neurologist,
and Dr. Richard Edelman, a neuropsychologist, testified that
Shaffer suffered from post-concussive syndrome with neck strain,
recurrent migraines, memory loss, and brain dysfunction.
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Dr.
Oates testified that her condition was permanent and that she
would need continued treatment -- including epidural injections
and Botox injections for her neck pain and pain medication for
the migraines.
Dr. Edelmen also said that her cognitive
dysfunction was permanent.
He recommended that she take anti-
depressant medications and that she undergo psychotherapy in
order to cope with her condition.
The appellee’s experts, Dr. James Harkess, an
orthopedic surgeon, and Dr. William Olson, a neurologist,
disagreed with the diagnosis of Shaffer’s doctors.
Both
testified that there was no evidence that Shaffer had lost
consciousness or that she had sustained a significant blow to
her head to support a diagnosis of post-concussive syndrome.
Dr. Harkess testified that in his opinion, Shaffer suffered a
serious whip-lash injury that should have resolved itself within
six months of the accident.
He attributed her continued
symptoms to a psychogenic overlay and/or depression.
Dr. Olson
agreed that Shaffer’s headaches were caused by muscle spasms,
and he concurred with the Botox treatments prescribed by Dr.
Oakes.
However, he did not believe that Shaffer sustained any
brain dysfunction due to the whiplash injury suffered in the
accident.
At the close of the proof, the trial court permitted
the jury to apportion fault among all four drivers, including
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the unknown driver of the van.
The jury determined that neither
Shaffer nor the unknown driver was at fault in causing the
accident, apportioning fault as follows:
to Rumpke.
15% to Stewart and 85%
It awarded Shaffer damages as follows:
(1) $37,302.32 for the reasonable and
necessary medical expenses incurred to date.
(This was the total amount sought for past
medicals.)
(2) $25,000, for past and future physical
pain and mental suffering. (The jury was
permitted to award an amount not to exceed
$500,000, the amount that Shaffer’s attorney
argued to the panel as fair.)
(3) $21,000, for lost wages. (The
instructions permitted an award not to
exceed $60,000.) (Summary of the jury
Verdict Form A.)
The instructions also authorized the jury to award
Shaffer up to $152,760 for future medical expenses and $208,000
as future lost wages.
However, the jury made no award for
future medical expenses or for future lost wages.
Shaffer was
awarded $83,302.32 –- slightly less than 10% of the sum of
$998,062.32 that she had originally asked the jury to grant her.
On November 25, 2003, the trial court awarded Shaffer
a judgment of $62,306.97 against Rumpke and a judgment of
$10,995.35 against Stewart.
Since the jury’s award did not
exceed the limits of the insurance liability coverage of either
Stewart or Rumpke, the court dismissed her claim against KFB.
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Rumpke’s motion for a judgment notwithstanding the verdict was
denied, and this appeal and cross-appeal followed.
Shaffer first argues that the trial court erred in
denying her motions to exclude certain portions of Dr. Olson’s
deposition testimony from evidence.
Specifically, she cites
portions of the doctor’s opinions which had not been disclosed
to her prior to his testimony as required by CR2 26.02(4)(a)(i).
We find no error in the trial court’s ruling.
Dr. Olson, a board certified neurologist, examined
Shaffer in August 2002 pursuant to a court order that she be
examined by an Independent Medical Examiner (IME).
Following
the exam, Dr. Olson prepared a report in which he concluded as
follows:
The patient has evidence of entrapment of
the greater occipital nerve particularly on
the right. Some of her complaints of
fatigue and memory could be related to her
medications. Her headache symptoms are
certainly not typical for migraine although
she does state that she complains of some
vomiting and photophobia. Diagnosis: Auto
Accident.
Stewart listed Dr. Olson on her witness list and stated that Dr.
Olson’s testimony would be “consistent with his report.”
additional information about the substance of Dr. Olson’s
opinions was furnished to Shaffer.
2
Kentucky Rules of Civil Procedure.
-6-
No
On March 31, 2003, Stewart took Dr. Olson’s
deposition, which was recorded on video tape.
Dr. Olson
testified that after he examined Shaffer and prepared his
report, he reviewed the medical records compiled by her treating
physicians.
He disagreed with Dr. Oates’s diagnosis of post-
concussive syndrome.
Rather, he totally agreed with the opinion
of Dr. Harkess that such a diagnosis was rarely indicated absent
a significant head injury or the patient’s lapse into
unconsciousness.
He also believed that Shaffer was capable of
being employed.
Dr. Olson’s opinions, which were directly contrary to
those of Shaffer’s treating physicians, along with his
conclusion as to her ability to work, had not been discussed in
his report -- nor were they disclosed prior to the deposition.
Consequently, Shaffer filed a motion in limine to exclude Dr.
Olson’s testimony to the extent that it exceeded the scope of
his report and of Stewart’s CR 26.02 disclosure representing
that it would be consistent with his report.
While the motion
was pending, Dr. Olson died on July 5, 2003.
The motion to
exclude portions of his testimony was denied on July 14, 2003.
Shaffer renewed her motion again -- both before and during the
trial.
However, the trial court did not alter its initial pre-
trial ruling, and Dr. Olson’s deposition was read into evidence
in its entirety.
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Shaffer contends that she was blindsided by Stewart’s
failure to comply with CR 26.02(4)(a)(i), resulting in an
inability to cross-examine Dr. Olson effectively at the
deposition.
Because Dr. Olson died before trial, she argues
that she was not able to re-depose the doctor or otherwise to
cure the prejudice created by his surprise testimony.
She
claims that the trial court erred in failing to sanction Stewart
for failing to comply with the disclosure provisions of CR
26.02(4)(a)(i).
Because Dr. Olson was originally chosen as the
IME, Stewart contends that she had no duty to supplement her
answers to Shaffer’s interrogatories or otherwise to disclose
Dr. Olson’s opinions that differed from the contents of his
initial report.
Our standard of review of such an evidentiary ruling
is limited to determining whether the trial court abused its
discretion.
Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d
575, 577 (Ky. 2000).
The test for abuse of discretion is whether
the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by
sound legal principles.
Id. at 581, citing Commonwealth v. English, 993 S.W.2d 941, 945
(Ky. 1999).
See also, Naïve v. Jones, 353 S.W.2d 365 (Ky.
1961), reciting that “we must respect [the trial judge’s]
-8-
exercise of sound judicial discretion” in the enforcement of the
civil rules pertaining to discovery.
CR 26.02(4)(a)(i), requires a party -- if asked -- to
disclose “the subject matter” to which his expert is going to
testify and:
to state the substance of the facts and
opinions to which the expert is expected to
testify and a summary of the grounds for
each opinion.
As noted by the Supreme Court of Kentucky in Primm v. Isaac, 127
S.W.3d 630, 634 (Ky. 2004), citing Wrobleski v. de Lara, 353 Md.
509, 727 A.2d 930, 933 (1999), “Expert opinion testimony can be
powerful evidence . . . and can have a compelling effect with a
jury.”
Because of their potential to affect the outcome of a
trial, the disclosures pertaining to experts required by the
civil rules are designed “to facilitate effective crossexamination and rebuttal” of their testimony.
Jefferson v.
Davis, 131 F.R.D. 522, 525 (N.D.Ill. 1990).
We agree that Stewart did not comply with either the
letter or the spirit of this discovery rule.
Stewart contends
that the doctor’s status as an IME absolved her of any duty to
disclose portions of the expert’s opinions that were unknown to
the other parties.
We disagree.
Stewart listed Dr. Olson on
her witness list; Dr. Olson testified that he had discussed the
case extensively with her attorney.
-9-
Thus, regardless of the
doctor’s initial status as an IME, we believe that Stewart had
some obligation to make a disclosure of his opinions that were
favorable to her and known only to her.
See, CR 35.02; and,
Metropolitan Property and Casualty Insurance Co. v. Overstreet,
103 S.W.3d 31 (Ky. 2003).
Nonetheless, we do not conclude that the court’s
failure to sanction Stewart by excluding portions of Dr. Olson’s
testimony resulted in an unfair proceeding or that it
constituted an abuse of discretion.
In analyzing this issue,
the trial court noted that Dr. Olson’s opinions were not belated
in the sense of remaining undisclosed until just before trial or
until shortly after the trial had begun.
After learning of Dr.
Olson’s opinions by deposition, Shaffer had six months in which
to rebut them with other expert testimony.
Although Shaffer’s
ability to cure any prejudice by re-deposing Dr. Olson was
prevented by his untimely death, she did have adequate time to
attack or to mitigate the impact of his opinions with the
testimony of other expert witnesses.
Shaffer also claims that she was not adequately
prepared to cross-examine Dr. Olson at his deposition.
However,
she was on notice from his earlier report that he did not
believe that she suffered a permanent brain injury.
Thus, she
was aware that he disagreed with the diagnosis reached by her
own doctors.
Shaffer had previously cross-examined appellee’s
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other expert, Dr. Harkess, whose opinions on the etiology of
post-concussive syndrome were shared by Dr. Olson.
Thus, she
should have been prepared to cross-examine Dr. Olson effectively
on the substance of those opinions.
Under these circumstances
and in deference to the broad discretion afforded to the trial
court, we cannot conclude that the prejudice –- if any –resulting to Shaffer due to the allegedly incomplete CR 26.02
disclosures requires a reversal of the judgment.
Shaffer next argues that the court erred in refusing
to allow her to introduce evidence gathered by Investigations
Unlimited, a surveillance firm that Stewart hired to record
Shaffer’s activities.
The trial court allowed Shaffer to
discover this information from Stewart (including a videotape
and a report) but reserved its ruling on its admissibility.
Before trial, Stewart filed a motion in limine to exclude the
introduction of this evidence at trial.
The motion was granted
on the basis that it was “intended to inflame the jury.”
In
order to preserve the issue for review, Shaffer submitted the
investigator’s report by avowal.
As with the previous issue,
our function is to determine whether the trial court abused its
discretion in excluding this evidence.
Relying on Transit Authority of River City v. Vinson,
703 S.W.2d 482 (Ky.App. 1985), Shaffer contends that the trial
court erred in excluding the evidence of Stewart’s surveillance
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activities.
She argues that the evidence was relevant to the
issue of the extent of her injuries as follows:
By conducting surveillance, Defendant
Stewart’s agent created a written record of
[Shaffer’s] life over a set period of time
following her injury. The photographs,
video tape and report were “relevant
unstaged evidence” of [Shaffer’s] condition
at the time of surveillance. The fact that
Investigations Unlimited was not able to
assemble more than thirty (30) seconds of
videotape of [Shaffer] over nearly eighteen
(18) hours of surveillance is evidence that
[Shaffer] was not functioning normally at
the time the surveillance was conducted.
(Appellant’s brief, p. 14.)
Although Vinson would support a ruling admitting the
evidence, it does not require such a result in light of the
overriding discretion of a court to exclude such evidence in the
appropriate circumstances.
Additionally, there are significant
factual differences between Vinson and this case.
In Vinson,
the surveillance evidence was compiled over a period of six
months, and the issue of the plaintiff’s post-accident
activities was “hotly contested.”
Id. at 485.
In this case,
Stewart’s investigators conducted a three-day stake-out at
Shaffer’s residence.
A record of her activity (or inactivity)
for three days of the eighteen hundred days intervening between
the accident and the trial would provide statistically minimal
information bearing on the issues before the jury.
-12-
Unlike Vinson, there was no factual dispute concerning
Shaffer’s disability.
No witness suggested that Shaffer was
malingering or attempting to fake her condition.
The sole issue
for the jury was to determine whether her debilitating symptoms
were causally related to the accident or whether they were
caused by the numerous elements of psychological stress in her
life and/or the multiple medications that she was taking -–
factors unrelated to the automobile accident.
In excluding the evidence, the trial court expressed
its belief that the jury would be inflamed at hearing evidence
that Stewart had spied on Shaffer in anticipation of the trial.
The court properly exercised its discretion in weighing the
prejudice against the probative value of the evidence, finding
the probative value to be only slight.
KRE3 403.
We fail to
perceive any abuse of the court’s discretion in this evidentiary
ruling.
Shaffer last argues that the trial court erred in
failing to fashion the instructions to require the jury to vote
separately on each of the five categories of alleged damages.
She objected to the court’s inclusion of all elements of damages
within one instruction -– albeit on separate lines.
However,
Shaffer failed to cite any authority to the court requiring a
separate instruction.
3
Because the form of the instructions is a
Kentucky Rules of Evidence.
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matter committed to the discretion of the trial court (CR
49.02), we find no basis to disturb the judgment because of the
jury’s treatment of separate elements within a single
instruction.
In its cross-appeal, Rumpke argues that the trial
court erred in failing to grant its motions for a directed
verdict or, in the alternative, to grant its motion for a
judgment notwithstanding the verdict (JNOV).
Rumpke contends
that it was entitled to such relief because “there was a
complete absence of proof with which to hold [it] responsible
for the accident on the proximate cause issue at trial.”
(Rumpke’s brief, p. 12.)
Our standard of review on this issue is set forth in
Lewis v. Bledsoe Surface Mining Co., 798 S.W.2d 459, 461 (Ky.
1990):
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
reached as a result of passion or
prejudice.’”
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Rumpke acknowledged that its driver violated safety
statutes by stopping his vehicle on the road.
It also admits
that its employee violated the company’s own internal policy by
failing to secure the garbage so as to prevent the very thing
that happened –- its loss onto the roadway.
However, Rumpke
urges that the chain of events which its driver negligently set
in motion:
was irretrievably broken when Appellee
Stewart, faced with clearly visible, stopped
traffic in her lane of the road, absolutely
failed to take any evasive action or even
attempt to stop her vehicle.
(Appellee Rumpke’s brief, p. 10.)
Thus, Rumpke seeks to be
relieved from responsibility for its employee’s negligence due
to the independent, superseding negligence of Stewart in failing
to keep her car at a safe distance from Shaffer.
We disagree that Stewart’s negligence constituted a
superseding cause of the accident as a matter of law.
“[I]f the resultant injury is reasonably
foreseeable from the view of the original
actor, then the other factors causing to
bring about the injury are not a superseding
cause.” NKC Hosps., Inc. v. Anthony,
Ky.App., 849 S.W.2d 564, 568 (1993)(citing
William L. Prosser, Law of Torts 272 (4th
ed.1978) and Deutsch v. Shein, Ky., 597
S.W.2d 141, 144 (1980)). The basic premise
of a superseding cause is that it is
“extraordinary and unforeseeable.” House v.
Kellerman, Ky., 519 S.W.2d 380, 383 (1974);
see also Britton v. Wooten, Ky., 817 S.W.2d
443, 451 (1991).
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Williams v. Kentucky Department of Education, 113 S.W.3d 145,
151 (Ky. 2003).
After coming to a complete stop in the passing
lane of a busy, four-lane highway in a 45 mile-per-hour speed
zone, Rumpke’s employee should have comprehended the likelihood
of the danger and should have anticipated that a vehicle might
come upon the scene and be unable to stop in time to avoid a
collision.
The jury was entitled to believe that the combined
actions of both Rumpke’s employee and of Stewart caused the
accident.
The judgment of the Jefferson Circuit Court is
affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT/CROSSAPPELLEE, CHARLENE SHAFFER:
Richard Sullivan
Kenneth A. Bohnert
Edward L. Lasley
Louisville, KY
ORAL ARGUMENT FOR
APPELLANT/CROSS-APPELLEE,
CHARLENE SHAFFER:
Edward L. Lasley
Louisville, KY
BRIEF FOR APPELLEE/CROSSAPPELLANT, RUMPKE OF KENTUCKY,
INC:
Edward H. Stopher
David W. Hemminger
Caroline L. Kaufmann
Louisville, KY
ORAL ARGUMENT FOR
APPELLEE/CROSS-APPELLANT,
RUMPKE OF KENTUCKY, INC.:
David W. Hemminger
Louisville, KY
BRIEF FOR APPELLEE, SHERI
STEWART:
Donald Killian Brown
Jeri Barclay Poppe
Louisville, KY
ORAL ARGUMENT FOR APPELLEE,
SHERI STEWART:
Donald Killian Brown
Louisville, KY
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