YOUNG (JOE L.), ET AL. VS. DILLOW (DONALD), ET AL.Annotate this Case
RENDERED: SEPTEMBER 5, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
JOE L. YOUNG, ANCILLARY ADMINISTRATOR
OF THE ESTATE OF OWEN L. GARDNER,
DECEASED AND JUDY GARDNER, INDIVIDUALLY
APPEAL FROM FULTON CIRCUIT COURT
HONORABLE TIMOTHY LANGFORD, JUDGE
ACTION NO. 01-CI-00075
DONALD DILLOW, Executor of the Estate
of Ronald Dillow, M.D.,
EDWARD B. MCWHIRT, M.D., and
HOSPITAL OF FULTON, INC., and HOSPTIAL
OF FULTON, INC., d/b/a PARKWAY REGIONAL
** ** ** ** **
BEFORE: CAPERTON AND VANMETER, JUDGES; GUIDUGLI,1 SENIOR
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
GUIDUGLI, SENIOR JUDGE: Joe L. Young, ancillary administrator of the estate
of Owen L. Gardner, and Judy Gardner, individually, (collectively referred to
hereafter as “Estate”) appeal from a judgment of the Fulton Circuit Court in a
wrongful death case involving medical malpractice. The Estate alleges numerous
evidentiary errors and several instances of juror misconduct. We affirm.
On July 27, 2000, Owen Gardner paid a visit to Parkway Regional
Hospital (Hospital) complaining of constipation. Dr. Ronald Dillow, a radiologist,
performed an abdominal CT (computed tomography) scan. Dr. Dillow interpreted
the scan and concluded that there was no mechanical obstruction. Gardner was
discharged from the emergency room with instructions to follow up with his
primary care physician. On July 29, 2000, Gardner was admitted to the Hospital
under the care of Dr. Gregory Cox, an internal medicine physician. In order to
determine whether Gardner had a mechanical blockage of the colon, Dr. Cox
ordered a contrast enema study which was performed and interpreted by another
radiologist, Dr. Robin Floyd. Dr. Floyd concluded that there was no evidence of
an obstruction. Based on the results of the enema study, Dr. Cox diagnosed ileus,
or pseudo-obstruction. Dr. Kofi Nuako, a gastroenterologist, prescribed a shot of
the drug Neostigmine in an effort to relieve Gardner’s symptoms. On August 2,
2000, Mr. Gardner suffered a perforation of his bowel.
After the perforation, Gardner was immobile for an extended duration.
Dr. Edward McWhirt performed a lengthy operation and removed a section of
Gardner’s colon. After a period of improvement, Gardner’s surgical wound
dehisced, which required an immediate second operation. Following the second
operation, Dr. Shankar Kandaswaymy, a critical care specialist, prescribed the drug
Heparin as a prophylaxis to guard against deep vein thrombosis (DVT). On
August 14, 2000, Dr. Cox also added compression boots as a prophylaxis against
DVT. Gardner’s condition continued to worsen and he was transferred to
Vanderbilt University Medical Center on August 29, 2000. He died of a
pulmonary embolism attributable to DVT on the same day.
The Estate filed suit against all of his medical care providers in
Fulton Circuit Court. At the time of trial, Drs. Dillow, McWhirt, and Nuako along
with the Hospital remained as party defendants. The Estate alleged that Dr. Dillow
violated the standard of care by misinterpreting the initial CT scan. Regarding Dr.
McWhirt, the Estate argued that he failed to take appropriate prophylactic
measures against DVT. The Estate contended that Dr. Nuako should not have
proscribed Neostigmine. The basis of the Hospital’s alleged liability was a theory
of vicarious liability. The trial court conducted a six-day jury trial. The trial court
granted Dr. Nuako’s motion for a directed verdict at the close of the Estate’s casein-chief. The jury returned a ten to two verdict in favor of Dr. Dillow and a nine to
three verdict in favor of Dr. McWhirt. The Estate filed two motions for a new trial
which the trial court denied. This appeal followed.
TESTIMONY OF DR. MILLER
Dr. McWhirt identified Dr. Frank Miller as an expert witness to
testify on his behalf as to the applicable standard of care. Dr. Miller is a boardcertified surgeon who serves as the Chief of General Surgery for the University of
Louisville School of Medicine. An edited videotape recording of Dr. Miller’s
testimony was played before the jury. The controversy surrounding Dr. Miller’s
testimony involves statements he made during his discovery depositions.
Essentially, Dr. Miller stated that there was a different standard of care in the year
2006 than there was in the year 2000. When confronted with data to the contrary
during the deposition cross-examination, Dr. Miller maintained that it was his
perception that the difference in standard of cares in 2000 and 2006 existed.
The Estate argues that the pertinent medical literature Dr. Miller used
as the basis of his opinion does not, in fact, support the opinion he offered in his
testimony. As a result, the Estate contends the only basis for Dr. Miller’s opinions
was based on his unsupported “perception” and is, therefore, unreliable and
Generally, appellate courts review rulings on the admission of expert
testimony according to the abuse of discretion standard. Goodyear Tire and
Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). However, “the distinct
aspects of the Daubert analysis--the findings of fact, i.e., reliability or nonreliability, and the discretionary decisions, i.e., whether the evidence will assist
[the] trier of fact and the ultimate decision as to admissibility--must be reviewed
under different standards.” Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky. 2004).
Therefore, the preliminary findings of fact are reviewed for clear error before the
ultimate admissibility decision is reviewed for an abuse of discretion. Id. A
finding of fact is not clearly erroneous if it is supported by substantial evidence.
Substantial evidence is evidence taken by itself or as a whole that “has sufficient
probative value to induce conviction…” in the minds of reasonable persons.
Commonwealth of Kentucky, Cabinet for Human Resources v. Bridewell, 62
S.W.3d 370, 373 (Ky. 2001).
Kentucky Rules of Evidence (KRE) 702 states:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion
The case of Daubert v. Merrell Dow Pharmaceuticals, Inc, 509 U.S. 579 (1993)
established standards for the admission of expert testimony which have been
adopted in Kentucky. Miller, 146 S.W.3d at 914. In discharging its gatekeeper
function, the trial court must assess whether the reasoning and methodology
underlying the proposed scientific testimony is valid and whether the application of
that reasoning and methodology is relevant to the facts at issue. Id. Daubert set
forth certain factors that a trial court may consider when evaluating the reliability
of scientific testimony: “(1) whether a theory or technique can be and has been
tested; (2) whether the theory or technique has been subjected to peer review and
publication; (3) whether, with respect to a particular technique, there is a high
known or potential rate of error and whether there are standards controlling the
technique's operation; and (4) whether the theory or technique enjoys general
acceptance within the relevant scientific, technical, or other specialized
community.” Id. These Daubert factors do not constitute an exclusive list. Id.
Moreover, the factors may not even be pertinent given the specific circumstances
of a particular case because the gatekeeper function must be “tied to the facts.” Id.
We have reviewed the entirety of Dr. Miller’s deposition and trial
testimony. Dr. Miller’s qualifications as an expert have not been challenged. In
our view, these qualifications as well as his personal experience and education as a
general surgeon provide the reliability of his opinion in terms of admissibility
under KRE 702. Dr. Miller reviewed the work of Dr. McWhirt through Owen
Gardner’s medical charts. He stated his opinion that Dr. McWhirt acted within the
standard of care as it existed in 2000 based on his education and experience.
Moreover, Dr. Miller did not state that he actually relied on or accepted each and
every proposition contained in his research of medical literature for this case. He
simply stated that the research assisted him in formulating his opinion. The
substance of Dr. Miller’s testimony was that of one surgeon evaluating the work of
another. Any lack of support in the medical literature as of 2000 would go toward
the weight of Dr. Miller’s testimony rather than its admissibility. We find that Dr.
Miller’s testimony was sufficiently reliable and that the trial court did not abuse its
Next, the Estate argues that the trial court erred by limiting its crossexamination of Dr. Miller to medical literature published in the year 2000 or before
despite the fact that Dr. Miller considered up-to date literature in forming his
opinion in this case. During his deposition, a large amount of testimony was
developed following Dr. Miller’s assertion that the standard of care in the year
2006 was different from the year 2000. The trial court did not permit any of this
testimony to come before the jury.
Physicians are “under a duty to use that degree of care and skill which
is expected of a reasonably competent practitioner in the same class to which he
belongs, acting in the same or similar circumstances.” Blair v. Eblen, 461 S.W.2d
370, 373 (Ky.1970). Therefore, the issue in this case is whether Dr. McWhirt
satisfied the standard of care as it existed in the year 2000 when the alleged
malpractice took place. The trial court did not abuse its discretion in excluding this
TESTIMONY OF DICK SWADER AND CONNIE DILLOW
Prior to trial, the Estate filed a combined motion in limine to exclude
the testimony of Dick Swader and Connie Dillow on the grounds of relevancy and
undue prejudice. Dick Swader was employed at the Parkway Hospital as the
Director of Imaging Services in the radiology department. At a pretrial hearing,
the Estate did not request a ruling on its motion to exclude Swader’s testimony.
The Estate informed the court that it would take up the issue when and if Swader
was called to testify. At trial, no objection was made to the introduction of
Swader’s testimony. We find that any objection to the introduction of Swader’s
testimony was not properly preserved for appellate review.
Connie Dillow is the widow of Dr. Dillow and worked in his medical
office for several years as the billing clerk. Dr. Dillow died prior to the
commencement of this suit. Connie Dillow was unable to attend the trial for
medical reasons. The trial court allowed a redacted video recording of her
testimony to be played before the jury. The Estate objected on grounds of
relevancy and undue prejudice. The prejudice alleged is that Connie Dillow’s
testimony would establish Dr. Dillow’s compliance with the standard of care
through impermissible character evidence and would elicit sympathy on her behalf.
We have reviewed Connie Dillow’s testimony. Most of her testimony concerns
background information about Dr. Dillow’s medical practice, his education and
training, as well as experience in practice. We cannot conclude that this testimony
was overtly intended to elicit sympathy. There was no mention in her actual
testimony of how the potential outcome of this trial would affect Connie Dillow as
a widow or anything else of the sort. While her testimony might not have tended
to prove or disprove issues in dispute, Connie Dillow’s testimony provided
valuable background information that is permitted by the rules of relevancy. See
Robert G. Lawson, Kentucky Evidence Law Handbook, §2.05, 81 (4th Ed.,
LexisNexis 2003). The trial court did not abuse its discretion.
TESTIMONY OF DR. WASHINGTON
Dr. Mary Kay Washington testified on behalf of Dr. Dillow and stated
that in her opinion Owen Gardner did not suffer from a mechanical obstruction of
his bowel, but rather from a pseudo-obstruction or ileus. Dr. Washington
specializes in pathology at Vanderbilt University. The Estate argues that Dr.
Washington’s testimony was unreliable under Daubert and should not have been
admitted. Also, the Estate claims that Dr. Washington’s failure to provide a case
list detailing her testimonial history warrants reversal. We are not directed to
where these alleged errors were preserved for review in the record as required by
Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(v). Therefore, we will not
TESTIMONY OF DR. LAINE
Dr. Nuako designated Dr. Loren Laine as an expert witness prior to
trial. The Estate deposed Dr. Laine during discovery. Dr. Laine is a professor of
medicine at the University of Southern California Medical School and Chief of
Gastroenterology at the USC Medical Center in Los Angeles. The trial court
allowed Dr. Dillow to play the video deposition before the jury. The Estate argues
that the deposition was for discovery purposes only and not for proof. The Estate
further argues that Dr. Dillow should have taken a second deposition or called Dr.
Laine to testify at trial. We are cited to no authority in support of this proposition.
However, CR 31.02(c)(i) provides:
The deposition of a witness, whether or not a party, may
be used by any party for any purpose if the court finds
the witness: (i) is at a greater distance than 100 miles
from the place where the court sits in which the action is
pending or out of the State, unless it appears that the
absence of the witness was procured by the party offering
Dr. Laine resides in California. This is not disputed. Admission of the video
deposition was proper.
EXCLUSION OF LITERATURE PROVIDED BY DR. WILLIAMS AND
The Estate designated Dr. Scott Williams and Dr. Samuel Gray as
expert witnesses. Dr. Williams is board-certified in radiology and serves at the
Director of Interventional Neuroradiology at the University of Tennessee College
of Medicine. Dr. Gray is a member of the American College of Surgeons and
worked as general surgeon who practiced medicine in Atlanta, Georgia. Dr. Gray
had retired prior to his testimony in this case. Both Dr. Williams and Dr. Gray
provided medical literature as well as radiological images published after the year
2000. We have already addressed this argument and found that it was proper to
exclude evidence of the standard of care that was published after the year 2000 in
this case. The trial court allowed the use of certain radiological images of the
bowel wall as demonstrative evidence. However, articles describing the images
that were published after 2000 were not admitted. The trial court held a lengthy in
camera hearing regarding this issue. We cannot discern any abuse of discretion.
The Estate also argues that the trial court erred by permitting Dr. Gray
to be cross-examined concerning the American College of Surgeons’
recommendation that its members only offer testimony on procedures that they
actively perform. This is not a Daubert issue. Dr. Gray stated in his deposition
that he adhered to the standards of the College. Cross-examination on this matter
went to the weight and credibility of Dr. Gray’s testimony rather than its
The Estate raises five instances of juror misconduct: (1) the jury
foreman declared “Me and my wife are strong Christians, so you know how I am
going to vote;” (2) one juror revealed that Dr. McWhirt had diagnosed her cancer
and she believed he saved her life; (3) Marian Roberts was the only juror to look at
the exhibits; (4) one of the jurors had a family member who was arrested by Owen
Gardner’s brother and did not reveal that during voir dire; and (5) some of the
jurors refused to discuss the court’s instructions in reaching a verdict. The Estate
claims that it established juror mendacity and that if these jurors had truthfully
answered questions during voir dire, then they would have been challenged for
cause. The Estate brought affidavits from its counsel C. Wesley Fowler and juror
Marian Roberts to the attention of the trial court. The court denied the motion for a
In Ligon Specialized Hauler, Inc. v. Smith, 691 S.W.2d 903, 904
(Ky.App. 1985), this Court explained the requirement for timeliness in motions for
a new trial involving allegations of juror misconduct as follows:
A motion for a new trial under CR 59.01 is the proper
vehicle for correcting the effects of a juror's misconduct.
Although Ligon filed a bare motion for a new trial within
10 days of judgment, it failed to submit supporting
grounds and affidavits for almost three weeks. The rules
do not expressly require these documents to be filed at
any given time, but CR 59.03 states that “[w]hen a
motion for a new trial is supported by affidavits the
opposing party has 10 days after the service within which
to serve opposing affidavits ...” The rule's opening
language and constraints on the opposing party imply
that the moving party must satisfy CR 59.02's 10 day
deadline for supporting grounds and affidavits, as well as
the motion itself.
The judgment in this case was entered on February 12, 2007. On February 21,
2007, the Estate filed its first motion for a new trial. The first motion contained
numerous bare allegations of error. The allegation regarding juror misconduct was
supplemented by the affidavit of its counsel, C. Wesley Fowler. On April 25,
2007, the Estate filed a second motion for a new trial supported by a memorandum
of law and the affidavit of Marian Roberts, a dissenting juror. The trial court held
a hearing on April 26, 2007. The trial court entered an order on June 14, 2007,
denying the motions and finding that no juror misconduct occurred.
The circumstances of this case are similar to the tactics rejected by
Ligon. The Estate presented a bare motion for a new trial within the ten-day limit.
Although Fowler’s affidavit was attached to the motion, this affidavit consisted
solely of hearsay statements and did not name any of the specific jurors nor any
specific instances where any juror failed to honestly answer specific questions
during voir dire. The affidavit of Marian Roberts, a dissenting juror, was not
presented until the second motion for a new trial, almost two months after
judgment was entered. “[T]he plain purpose of CR 59.02 would stand defeated if
we allow appellant to toll its provisions by filing a timely but unexplained CR
59.01 motion, while submitting grounds and affidavits to the court at its leisure.”
Ligon, 691 S.W.2d at 904. The motion for a new trial was not timely filed and,
therefore, the trial court had no discretion to consider it. Id.
The Estate next argues that the trial court erred by refusing to allow
them to inform the jury that the Hospital was a party to the case. We fail to discern
any error in this regard given the agreed order dismissing any claims of negligence
against the hospital and the Hospital’s concession that the defendant physicians
were its ostensible agents. The Hospital did not participate in the trial. Another
agreed order was entered which stated that jury instructions would not include any
reference to the Hospital. Further, no objection was made to the trial court’s
announcement that there were only three defendants in the case. In response to the
motions for a new trial, the Hospital filed an agreement with the Estate entered on
January 6, 2007, which limited their reference to the Hospital to closing argument
and the cross-examination of certain witnesses. Any restraint the Estate may have
experienced was self-imposed.
We find that the Estate’s arguments concerning loss of consortium
and joint and several liability are moot given our conclusions above.
Accordingly, the judgment of the Fulton Circuit Court is affirmed.
VANMETER, JUDGE, CONCURS.
CAPERTON, JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT:
Gary K. Smith
C. Wesley Fowler
James B. Brien, Jr.
ORAL ARUGMENT FOR
Gary K. Smith,
BRIEF AND ORAL ARGUMENT
FOR APPELLEE ESTATE OF
RONALD DILLOW, M.D.:
BRIEF FOR APPELLEE EDWARD
B. MCWHIRT, M.D.:
E. Frederick Straub, Jr.
J. Duncan Pitchford
ORAL ARGUMENT FOR
APPELLEE EDWARD B.
J. Duncan Pitchford
BRIEF FOR APPELLEE HOSPITAL
OF FULTON, INC.:
William P. Swain
ORAL ARGUMENT FOR
APPELLEE HOSPITAL OF