GREG SOMMERKAMP, M .D . V. SUSAN R . LINTON (ROBERTS) and FLORENCE MEDICAL ARTS, INC . V. SUSAN R . LINTON (ROBERTS) and E . DOUGLAS BALDRIDGE, M .D . V. SUSAN R . LINTON (ROBERTS)
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RENDERED : SEPTEMBER 18, 2003
TO BE PUBLISHED
,Suprnut Court of
2001-SC-0431-DG
T. GREG SOMMERKAMP, M .D.
V.
APPELLANT
ON APPEAL FROM THE COURT OF APPEALS
1999-CA-1285-MR
KENTON CIRCUIT COURT NO. 94-CI-953
SUSAN R. LINTON (ROBERTS)
APPELLEE
2001-SC-0438-DG
FLORENCE MEDICAL ARTS, INC.
V.
APPELLANT
ON APPEAL FROM THE COURT OF APPEALS
1999-CA-1203-MR ; 1999-CA-1272
KENTON CIRCUIT COURT NO . 94-CI-953
SUSAN R. LINTON (ROBERTS)
APPELLEE
2001-SC-0442-DG
E . DOUGLAS BALDRIDGE, M .D.
V.
APPELLANT
ON APPEAL FROM THE COURT OF APPEALS
1999-CA-1302
KENTON CIRCUIT COURT NO. 94-CI-953
SUSAN R. LINTON (ROBERTS)
APPELLEE
OPINION OF THE COURT BY JUSTICE WINTERSHEIMER
REVERSING
This appeal is from a decision of the Court of Appeals which reversed a
judgment based on a jury verdict for the defense in a medical malpractice action and
remanded the case for a new trial.
The principal issue is whether the interests of the various appellants in the
medical malpractice action against them should be considered antagonistic for the
purpose of CR 47.03 and, therefore, entitle them to separate peremptory challenges .
Other issues raised by Sommerkamp are whether principles of comparative
negligence and apportionment obviate the need to file cross-claims against individuals
who have already been made parties to the action where independent acts of
negligence are alleged ; whether the Court of Appeals erred in concluding that the
absence of cross-claims weighed in favor of a finding of an absence of antagonistic
interests ; and whether decisions from other jurisdictions support a conclusion in this
case that each defendant should be treated separately for peremptory challenges .
Other issues framed by Florence Medical Arts, Inc., are whether the Court of
Appeals substituted its judgment for that of the trial court in determining whether
antagonistic interests exist for purposes of peremptory challenges in the absence of an
abuse of discretion; and whether the Court of Appeals incorrectly applied CR 47.03 and
the relevant case law.
Other points presented by Baldridge include whether the codefendants shared a
common theory of the case and whether the Court of Appeals' reversal on such
grounds was erroneous ; whether the Court of Appeals conclusion that the finding of
liability on the part of one of the defendants would not necessarily relieve the others
from liability is erroneous; whether the determination that the co-appellants treated
Linton for one elusive ailment is erroneous; whether considering the relevant factors at
the time of jury selection, the defendants had antagonistic interests ; and whether the
decision of the circuit court was clearly erroneous, and therefore suitable for reversal by
the Court of Appeals.
Linton responds that where co-parties take identical trial positions and share the
same theory of the case, their interests are not antagonistic and they are not entitled to
additional peremptory challenges . She asserts that co-defendants who do not file
cross-claims and share the same theory of the case are not antagonistic and that
Kentucky apportionment law does not make co-defendants inherently antagonistic .
Linton also claims that the defendants created a community of interests by their actions
giving rise to the lawsuit and by failing to file cross-claims at trial . Finally, she asserts
that the Court of Appeals properly reviewed the decision of the trial court.
Facts
On December 28, 1992, Susan Linton, now Susan Linton Roberts, developed
pain in her left forearm at work . From December 1992 through June 1993, physicians
at Florence Medical Arts, Inc., treated her with medication, physical therapy and arm
splints, but her pain persisted . Subsequently, they referred her to Dr. T. Greg
Sommerkamp, a hand surgeon, for examination and consultation . He concluded that
she suffered from overuse tendonitis of the left forearm and advised her to continue the
treatments prescribed by Florence Medical Arts .
Dr. Sommerkamp also scheduled
Linton for an EMG nerve study with a neurologist on June 14 and scheduled a return
visit to his office for June 21 .
During the night of June 12, 1993, Linton's pain and discomfort increased in her
forearm . She notified Florence Medical Arts of her condition the following day and was
told to come in the next morning . At that time, she was examined and her condition
was found to be essentially normal. The examining physician advised Linton to return
to work. Later that afternoon, the neurologist performed the scheduled EMG nerve
study and the results were normal . As a result, Dr. Sommerkamp advised Linton to try
rest, elevation, splinting and pain medication. He rescheduled her appointment from
June 21 to June 16 and told her to call if the pain persisted or worsened .
The pain did increase and Linton contacted her family doctor to report it and she
was advised to go to the emergency room at St. Elizabeth Medical Center where she
was initially treated by Dr. Harry Mills. He noted that she was experiencing a vascular
phenomenon and he contacted Dr. Sommerkamp to discuss the matter. Dr.
Sommerkamp advised that a vascular surgeon should be contacted to perform an
arteriogram if the condition did not improve within 30 minutes .
The condition did not improve and Dr. Mills contacted Dr. Baldridge, a vascular
surgeon, to examine the patient. On his orders, an arteriogram was performed on June
15. It revealed a clot in the brachial artery of the patient's left arm. As a result of the
arteriogram, the patient also developed a clot in her right foot . After receiving heparin,
intended to thin the blood and stop further clotting, Linton underwent surgery to remove
the clots in her arm and foot . Unfortunately, the first surgery was unsuccessful because
blood flow failed to reach both extremities due to abnormal clotting. Dr. Baldridge
performed a second surgery which also failed .
After discussing the situation with hematologists, Dr. Baldridge concluded that
Linton suffered from a rare condition called heparin-induced thrombocytopenia or "HIT."
Due to the complications, doctors amputated her right foot, and later removed her left
thumb and part of her left finger.
Linton sued Florence Medical Arts, Inc., and Drs . Sommerkamp and Baldridge
claiming in separate causes of action that they failed to appropriately diagnose and
treat a work-related soft-tissue strain to her left forearm . Each defendant obtained
separate counsel and filed separate answers. She also sued St . Elizabeth Medical
Center which settled with Linton for $100,000 prior to trial . A three-week jury trial in the
circuit court resulted in a verdict of 9 to 3 for the remaining codefendants . The Court of
Appeals reversed the jury verdict stating that the trial judge erred in granting separate
peremptory challenges to the defendants . This Court accepted discretionary review.
l. Standard of Review
The Court of Appeals should not substitute its judgment for that of the trial judge
in determining whether antagonistic interests exist for the purpose of awarding
peremptory challenges in the absence of an abuse of discretion . Here, the trial judge
reached a well-reasoned decision based on established precedent, and there is no
basis for a finding of an abuse of discretion or any clear error. The trial judge held a
pretrial conference on the issue of peremptory challenges and made a specific finding
that the antagonism existed between the defendants . The trial judge based his
decision on a number of factors that weighed in favor of antagonism . The defendants
were charged with separate acts of negligence, were represented by separate counsel
and had individual theories of the case and apportionment of fault issues . These
reasons were set out in an order issued to all parties .
On appeal, the question is not whether the reviewing court would have decided
the issue differently, but whether the findings of fact are clearly erroneous, the opposite
result is compelled or the trial judge abused his discretion. See Cherry v. Cherry, Ky.,
634 S .W .2d 423 (1982); ARA Services, Inc. v. Pineville Community Hospital , Ky.App ., 2
S.W.3d 104 (1999) . The Court of Appeals incorrectly cited Bowling Green Municipal
Utilities v. Atmos Energy Corp . , Ky., 989 S .W .2d 577 (1999). In that case, this Court
remanded a matter to the trial court for retrial because it had failed to make a finding
that there were antagonistic interests among the plaintiffs, noting that ". . . the
exceptions of CR 47 .03 only permit additional strikes when the interests of the parties
are antagonistic or when extra jurors are called . . ." Id . at 579. Here, it is clear that
the trial judge specifically found that the interests of the codefendants were
antagonistic, and thus complied with the requirements of CR 47 .03. Bowling Green
Municipal Utilities , supra, supports the reasoning of the trial judge to award separate
peremptory challenges.
ll. Application of CR 47.03
In pertinent part, CR 47 .03 provides that:
1) In civil cases each opposing side shall have three peremptory
challenges, but co-parties having antagonistic interests shall
have three peremptory challenges each .
Generally, there are three elements to be considered in determining if
coparties have antagonistic interests . They are 1) whether the coparties are
charged with separate acts of negligence . Roberts v. Taylor, Ky., 339 S .W .2d
653 (1960) and Mackey v. Greenview Hosp., Inc. , Ky.App ., 587 S .W.2d 249
(1979); 2) whether they share a common theory of the case. Davenport v.
Ephraim McDowell Mem'I Hosp ., Inc. , Ky.App ., 769 S.W .2d 56 (1988); and 3)
whether they have filed cross-claims . Davenport, supra . Additional important
factors are whether the defendants are represented by separate counsel ;
whether the alleged acts of negligence occurred at different times; whether the
defendants have individual theories of defense; and whether fault will be subject
to apportionment . All of these factors are to be weighed by the trial court in
determining if the defendants have antagonistic interests and thus are entitled to
separate peremptory challenges.
In this case, the trial judge correctly weighed the factors . The order of the
trial judge explained as follows :
Each party shall be entitled to four peremptory challenges during
the jury selection process . It is not necessary that the cross-claim be
asserted to establish antagonistic interests among the Defendants.
Independent acts of negligence over a course of time are alleged against
the respective Defendants, each of whom practices distinct medical
specialties . Because their acts are independent and occurred at different
times, their interests are necessarily antagonistic to each other and the
Court intends to give the jury an apportionment instruction . Therefore,
these Defendants, each of whom has separate counsel, do not constitute
one party litigant .
It was error for the Court of Appeals to give disqualifying weight to a single
factor, the absence of cross-claims. Davenport states, "Surely, cross-claims or
their absence, while not dispositive of the issue of the existence of antagonistic
interests, is a fact to be weighed in the balance along with all the others ." The
absence of a cross-claim is not the only factor.
The Court of Appeals observed that the interests of the codefendants
were not so disparate and distinct as to render them antagonistic for the
purposes of CR 47.03 . We must disagree because the clear language of the
rule does not require the defendants to demonstrate a certain degree of
antagonism, but only the existence of antagonism between the various
healthcare providers at the time of jury selection, in order to permit separate
peremptory challenges.
Before trial, counsel for Linton submitted an apportionment instruction .
Inherent in the Kentucky law of apportionment, KRS 411 .182, is that the interests
of codefendants may be considered antagonistic. Each of the defendants used
a strategy in the practice of this case prior to trial to minimize the amount of fault
and damages that the jury could ultimately assign to them as codefendants. The
discovery testimony of expert witnesses for each of the parties was clearly
designed to reduce or limit their exposure.
The principles of apportionment do not require an all or nothing defense
by the codefendants in order to establish antagonism . The apportionment
system results in each coparty defendant 1) trying to convince a jury that they
are not at all responsible for the injuries, and 2) in the event that the jury does
find them responsible for a portion of the claims, trying to minimize that portion
by casting blame on the other codefendants . The system is inherently
antagonistic because it requires codefendants to attempt to shift responsibility to
each other. The Court of Appeals failed to consider the role of apportionment
and the clear antagonism which is created by that method of assessing liability .
It failed to apply CR 47.03 and its reliance on Davenport was misplaced . That
case was decided prior to the adoption of the apportionment statute, KRS
411 .182 .
We must recognize that interests that are antagonistic at the time of jury
selection or when the trial judge makes a determination regarding entitlement to
separate peremptory challenges, do not necessarily have to remain antagonistic
throughout the trial in order to support the allocation of separate challenges.
There can be no certainty as to what the evidence will demonstrate or precisely
what the claims or defenses will be during trial . See Sand Hill Energy, Inc. v.
Ford Motor Co . , Ky., 83 S.W.3d 483 (2002) (A plurality opinion on the issue of
peremptory challenges) . Here, the trial judge ordered separate peremptory
challenges based on the record prior to the beginning of the trial. In fact, the trial
judge physically separated the defendants and ordered that they have no contact
with one another in the exercise of peremptory challenges consistent with this
Court's decision in Sand Hill Energy, supra . There was no abuse of discretion by
the trial judge in the allocation of the challenges . We recognize that Sand Hill
Energy involves a situation where a third party complaint was filed, but we find its
reasoning to be applicable here where parties seek to limit liability under an
apportionment instruction .
We find reliance by the Court of Appeals on the decisions of Kentucky
Farm Bureau Mut . Ins. Co. v. Cook, Ky., 590 S .W.2d 875 (1979) and Bowling
Green Municipal Utilities to be misplaced because in both cases the reversal was
based on the fact that the interests of the parties granted the additional strikes
were identical . That is not the situation here .
lll. Cross-Claim
Prior to the adoption of comparative negligence, and the enactment of
KRS 411 .182, a defendant was required to cross-claim for contribution against
joint tortfeasors pursuant to KRS 412.030 or 454.040 . Contemporary
apportionment requirements including KRS 411 .182 provide that fault in a tort
action is automatically subject to apportionment among the parties to the action.
This statute renders a cross-claim for contribution, as well as a counterclaim for
contributory or comparative negligence, needless . KRS 411 .182 deems
codefendants that are charged with separate acts of negligence to be
antagonistic because it requires apportionment of the total liability . Cf. Dix and
Assoc . Pipeline Contractors, Inc. v. Key, Ky., 799 S .W .2d 24 (1990); CR 13 .07 .
Reliance on the cases of Bob_ Hook Chevrolet Isuzu Inc.v.
Commonwealth, Transportation Cabinet, Ky., 983 S .W .2d 488 (1998) and Cinelli
v. Ward , Ky.App., 997 S .W .2d 474 (1998), is misplaced . Neither decision is
applicable. Bob Hook Chevrolet , supra, involved the interpretation of a statute
which contained an administrative standard of review within the statute, and
Cinelli , supra , concerned the interpretation of a contract which is a question of
law.
In view of our decision in this case, it is unnecessary to consider the
opinions from other jurisdictions . Kentucky law sufficiently addresses these
issues .
It is the decision of this Court that the determination by the trial judge that
the codefendants were entitled to separate peremptory challenges was not an
abuse of discretion or clearly erroneous . The trial judge specifically found that
the interests of the codefendants were antagonistic as required by CR 47 .03.
This ruling is supported by ample evidence and should not be disturbed on
appellate review. Several factors which existed prior to trial such as separate
counsel, separate experts, distinct specialties of the codefendants, different time
frames for the treatment, independent allegations of negligence against the
codefendants and the giving of an apportionment instruction, support the
decision of the trial judge . The absence of cross-claims is only one factor in
determining a finding of antagonistic interests . It must be evaluated with all the
other necessary elements.
Therefore, the decision of the Court of Appeals is reversed and the
judgment of the trial court exonerating the defendants is reinstated .
All concur.
COUNSEL FOR APPELLANT
T. GREG SOMMERKAMP, M .D . :
COUNSEL FOR APPELLANT
FLORENCE MEDICAL ARTS, INC. :
William T . Robinson III
GREENEBAUM DOLL & McDONALD PLLC
50 E. Rivercenter Blvd ., Suite 1800
Covington, KY 41012-2673
Mark G. Arnzen
ARNZEN & WENTZ, PSC
600 Greenup Street
P.O. Box 472
Covington, KY 41012-0472
Luann Devine
GREENEBAUM DOLL & McDONALD PLLC
50 E. Rivercenter Blvd ., Suite 1800
Covington, KY 41012-2673
COUNSEL FOR APPELLANT,
E. DOUGLAS BALDRIDGE, M .D . :
Philip Taliaferro III
TALIAFERRO & MEHLING
1005 Madison Avenue
P.O . Box 468
Covington, KY 41012-0468
Alice Gailey Keys
1005 Madison Avenue
P.O. Box 468
Covington, KY 41012
Robert W . Carran
P.O . Box 468
Covington, KY 41012-0468
COUNSEL FOR APPELLEE:
ERIC C . DETERS
ERIC C. DETERS AND ASSOCIATES
300 Buttermilk Pike
Suite 332
Fort Mitchell, KY 41017
Mary K. Molloy
ARNZEN & WENTZ, PSC
600 Greenup Street
P .O. Box 472
Covington, KY 41012-0472
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