EDITH RIPPETOE v. WILLIE FEESE
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RENDERED: MARCH 2, 2007; 2:00 P.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002606-MR
EDITH RIPPETOE
APPELLANT
APPEAL FROM ADAIR CIRCUIT COURT
HONORABLE JAMES G. WEDDLE, JUDGE
ACTION NO. 04-CI-00021
v.
WILLIE FEESE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ABRAMSON AND VANMETER, JUDGES; EMBERTON,1 SENIOR
JUDGE.
VANMETER, JUDGE: Edith Rippetoe appeals from a judgment awarding her zero
damages as a result of an automobile accident. Finding no error, we affirm.
In April 2003, Rippetoe's car was rear-ended by a car driven by Willie
Feese, who was unable to stop as they came upon road construction and a stopped line of
cars. At the time of the accident, Rippetoe was 79 years old and Feese was 88. The
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Senior Judge Thomas D. Emberton, sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110 (5)(b) of the Kentucky Constitution and KRS 21.580.
officer who responded to the scene testified that the damage to the vehicles was minor,
and neither party requested medical attention at the scene.
Afterwards, however, Rippetoe developed headaches, neck pain, and hand
numbness, as well as problems with her shoulder and arm. She received treatment from
her family doctor, Dr. Phil Aaron, from chiropractor Dr. Anthony Grant, and from
neurosurgeon Dr. Joseph Jestus. Although she also received other medical treatment,
these three individuals provided the only medical testimony at the trial on September 29,
2005.
Since Feese admitted liability for causing the accident, the primary issue at
trial was whether the accident had caused the injuries of which Rippetoe complained.
Aaron acknowledged that Rippetoe had severe degenerative disc disease, or
osteoarthritis, which was present long before the accident. However, x-rays taken soon
after the accident also revealed severe spondylosis at the cervical vertebrae, C5, C6 and
C7. Aaron believed that this condition was caused by the accident and was not
degenerative.
Grant testified that he first saw Rippetoe in February 2005. He then saw her
approximately thirty times prior to his video deposition on August 25, 2005. He testified
primarily as to his treatment, the permanency of her condition, and the fact that she
appeared to be in a lot of pain. He did not testify as to causation, although he described
“the degenerative changes in her cervical spine.” On cross-examination, he stated that he
was unaware that Aaron had been treating Rippetoe for osteoarthritis. As to her
condition, Grant explained:
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In Ms. Rippetoe’s cervical spine, the MRI film and report
showed cervical disc bulges with extensive degeneration
throughout her cervical spine. Degenerations, disc
degeneration is a form of osteoarthritis. The discs, they thin.
The end plates on the vertebrae, the top and the bottom end
plates, they get rough, they spur, it makes movement more
difficult.
He described the degeneration as “simply wear and tear” related to aging.
Jestus saw Rippetoe twice, in May and July 2003. He testified by
deposition as to her symptoms and pain, and as to his recommended course of treatment.
He also testified that Rippetoe’s degenerative disc disease was already present and not
related to the automobile accident, and that her cervical spondylosis was caused by
age-related changes in her discs.
The jury returned a verdict awarding zero damages. Following the trial
court’s denial of Rippetoe’s motion for a new trial, or alternatively for a judgment
notwithstanding the verdict, Rippetoe appeals.
Rippetoe’s first argument is that a jury award of zero damages necessitated
a new trial, especially after Feese admitted liability for causing the accident. The
appellate standard for reviewing a trial court’s denial of a motion for a new trial is
whether the denial was clearly erroneous. Miller v. Swift, 42 S.W.3d 599, 601 (Ky.
2001). If the motion for a new trial is based on a claim of inadequacy of the award of
damages, the resolution of that issue depends on the underlying evidence and whether
probative evidence supported the jury’s verdict. Thomas v. Greenview Hospital, Inc.,
127 S.W.3d 663, 672 (Ky.App. 2004), overruled on other grounds, Lanham v.
Commonwealth, 171 S.W.3d 14 (Ky. 2005). The “trial court’s decision on whether to
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grant a new trial based on inadequate damages should be upheld unless it is clearly
erroneous.” Thomas, 123 S.W.3d at 672. And, the fact that one party was at fault in
causing the accident does not require the jury to award damages. Carlson v. McElroy,
584 S.W.2d 754, 756 (Ky.App. 1979).
In this case, sufficient credible testimony was produced concerning
Rippetoe’s pre-existing degenerative disc disease to justify a conclusion that Rippetoe’s
condition and medical treatment did not result from the automobile accident, and to
justify the jury’s award of zero damages. The trial court did not err in denying Rippetoe’s
motion for a new trial.
Rippetoe’s second claim is that the trial court erred in permitting the
deposition testimony of Jestus. The basis for this argument is that Feese untimely
notified Rippetoe both of his intention to call Jestus as a witness, and of the date on
which Jestus’ deposition would be taken.
Some additional factual background is necessary before addressing this
argument. In December 2004, the trial court initially scheduled the parties’ trial for June
11, 2005. In that same order, the court established discovery deadlines, including the
requirement that Rippetoe’s pretrial expert disclosure should be made on or before May
11, or 30 days before trial. Feese’s corresponding expert disclosure was required by June
5, or 6 days before trial. Approximately a month later, in January 2005, for reasons not
appearing in the record, the trial court rescheduled the trial date for May 11, 2005, and
entered corresponding discovery deadlines which tracked the prior discovery order:
Rippetoe’s expert disclosure was set for April 11, or 30 days before trial, and Feese’s
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expert disclosure was set for May 1, or 10 days before trial. On May 9, Rippetoe filed a
motion to continue the trial in order to obtain medical evidence. This motion was granted
and the trial was rescheduled for September 29, 2005. No additional discovery order was
entered.
Notwithstanding the lack of an additional discovery order, on July 22, over
60 days prior to trial, Feese filed his pretrial compliance document in which he listed his
anticipated lay witnesses, including the medical records custodian for Jestus. With
respect to expert witnesses, Feese stated that he “did not anticipate calling any expert
witnesses other than medical providers who may have treated the plaintiff in the past.”
On August 31, Rippetoe filed her pretrial statement, which listed Jestus as a potential
witness and stated that he “has not been retained for the purpose of evaluating the
Plaintiff or testifying in this case. Plaintiff expects that Dr. Jestus may testify at trial of
this action regarding the care and treatment, including diagnosis and prognosis, given the
plaintiff as a result of the injuries from the automobile accident on April 21, 2003.”
On September 14, Feese’s counsel notified Rippetoe’s counsel of Feese’s
scheduled deposition of Jestus on September 20 at 7:00 a.m. at Jestus’ office in
Cookeville, Tennessee. At trial, Rippetoe’s counsel acknowledged receipt of the faxed
notice on September 14, but stated he obtained the mailed notice only on September 16.
Rippetoe’s counsel candidly admitted to the trial court that he did not attend the
September 20 deposition because he thought the trial court would rule the testimony
inadmissible.
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Rippetoe’s first ground for claiming that the trial court erred in admitting
Jestus’s testimony is that Feese failed to timely disclose Jestus as an expert witness and to
make the disclosures required by CR 26.01(4)2 “on or before June 5, 2005” as required by
court order. This argument fails for two reasons.
First, the June 5 disclosure deadline was set in the initial order setting the
trial for June 11, 2005. This order was clearly superceded by the trial court’s subsequent
order which advanced the trial date to May 11, and correspondingly advanced the
discovery deadlines. Rippetoe then moved for a continuance of the May trial date,
admittedly for reasons which involved the inability to comply with the trial court’s
discovery deadlines. We are compelled to conclude that once the trial court granted that
motion without imposing additional discovery deadlines, no discovery deadlines
remained in place.
Second, Rippetoe disclosed Jestus as one of her expert witnesses, who
would testify “regarding the care and treatment, including diagnosis and prognosis,
given” to her. Having reviewed the record and Jestus’ testimony, we are of the opinion
that this disclosure was sufficiently broad to encompass the scope of his testimony, with
the result that Rippetoe cannot now claim unfair surprise.3
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Presumably the court intended to reference CR 26.02(4).
The parties have not cited us to, and we have not found, any Kentucky authority as to whether
treating physicians and their opinions are required to be disclosed under CR 26.02(4). We note
that federal decisions interpreting the similar provisions of FED. R. CIV. P. 26(a)(2)(B) have
reached conflicting results. See generally Kirkham v. Société Air France, 236 F.R.D. 9 (D.D.C.
2006) (collecting and summarizing the conflicting authority as to whether a treating physician
may offer opinion testimony on causation, diagnosis, and prognosis without the prerequisite of
providing a Rule 26(a)(2)(B) report.) We do not decide this issue since, as noted above, Dr.
Jestus, as Rippetoe’s own treating physician, was equally if not more available to her as to
3
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Next, Rippetoe claims that the trial court erred in admitting the testimony of
Jestus because Feese’s notice of Jestus’ September 20 deposition was unreasonable, as
Rippetoe’s counsel did not receive mailed notice of the out-of-state deposition until
September 16. Feese, on the other hand, points out that Rippetoe’s counsel admittedly
received a faxed copy of the notice on September 14, and that the two attorneys spoke by
telephone on September 15 with Feese’s counsel mentioning Jestus’ deposition and the
notice without objection by Rippetoe’s counsel. We further observe that while the
deposition was out-of-state, it was noticed for Jestus’ office in Cookeville, Tennessee,
which is approximately 80 miles from Rippetoe’s counsel’s office in Jamestown,
Kentucky4 and approximately 115 miles from Feese’s counsel’s office in Bowling Green,
Kentucky.5
CR 30.02 requires a party to give “reasonable notice in writing” of a
deposition. Under the facts of this case, we believe Feese’s notice was reasonable. If
Rippetoe’s counsel had believed the notice was unreasonable, he could have advised
opposing counsel and attempted to arrange a more suitable time or location, sought a
protective order from the court, or moved for a continuance of the trial date. The trial
court did not err in permitting the deposition testimony of Jestus to be read at trial.
Rippetoe’s final argument is that the trial court erred in giving a jury
instruction which was “skewed” in favor of Feese. Instruction No. II stated:
Feese, as were his reports and records.
4
http://www.mapquest.com. Under Ky. Rules of Evidence (KRE) 201, judicial notice “may be
taken at any stage of the proceeding.”
5
Id.
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The Court instructs the jury that if you believe from
the evidence that all or part of the complaints by the plaintiff,
Edith Rippetoe, in this lawsuit are not the result of the
accident on April 21, 2003, but were caused at some other
time or occurred from some other cause, then you will not
find for the plaintiff, Edith Rippetoe, for any injuries or
damages which occurred at some other time or occurred from
some other cause and you will only find for the plaintiff,
Edith Rippetoe, such damages, if any, as you may believe she
sustained as a direct result of the accident of April 21, 2003.
In Carlson v. McElroy, 584 S.W.2d 754 (Ky.App. 1979), a virtually identical instruction
was approved under similar factual circumstances, except in Carlson the plaintiff was
involved in a subsequent accident. In this case, while no pre-existing or subsequent
injury occurred, there was medical evidence that Rippetoe did suffer from a pre-existing
medical condition of degenerative disc disease. As a result, the instruction as given was
not erroneous.
The judgment of the Adair Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert L. Bertram
Jamestown, Kentucky
Michael K. Bishop
Joseph R. Cox
Bowling Green, Kentucky
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