GREGORY L . BROWN, M .D . V. JEFFERSON CIRCUIT COURT AND JULIE GEORGE & RACHELE KNORPP
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVIL PROCED URE PROMUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITY IN ANY OTHER
CASE IN ANY COUR T OF THIS STATE.
RENDERED : OCTOBER 23, 2003
NOT TO BE PUBLISHED
,$uyrrmr (~vurf of i
2003-SC-0121-MR
&\ V~-' Q,5.&J,
GREGORY L. BROWN, M.D.
APPELLANT
ORIGINAL ACTION FROM COURT OF APPEALS
2002-CA-2426
JEFFERSON CIRCUIT COURT NO. 2001-CI-007731
V.
HONORABLE DENISE G. CLAYTON, JUDGE
JEFFERSON CIRCUIT COURT
APPELLEE
AND
JULIE GEORGE & RACHELE KNORPP
REAL PARTIES IN INTEREST
MEMORANDUM OPINION OF THE COURT
AFFIRMING
The appellant, Gregory L. Brown, M .D., sought a writ from the Court of Appeals
to prohibit Judge Denise Clayton of the Jefferson Circuit Court from consolidating for
trial two separate medical negligence claims made against Appellant by two previous
patients . The Court of Appeals denied the writ by finding Appellant had an adequate
remedy by appeal. Appellant appeals as a matter of right. For the reasons set forth
herein, we affirm the Court of Appeals and deny Appellant's petition for a writ of
prohibition .
;~ :
On November 1, 2000, Appellant performed cosmetic surgery (facial laser
resurfacing) on Julie George, a real party in interest, who subsequently filed a
professional negligence claim against Appellant in the Jefferson Circuit Court for the
severe facial scarring, redness, and disfigurement that resulted from the laser
treatment .
On February 19, 2001, Appellant performed the same cosmetic surgery on
Rachele Knorpp, the other real party in interest. Ms . Knorpp also filed a professional
negligence claim against Appellant in the Jefferson Circuit Court for sustaining the same
injuries from the laser treatment . Both parties allege that Appellant was overly
aggressive with the use of the laser and failed to adequately inform each of them of the
risks involved with such a procedure . Both parties also intend to rely on the same
expert witness to testify that Appellant's policy of using the exact same laser settings
with all of his patients regardless of skin type is inappropriate .
After limited discovery, Ms. Knorpp made a motion to consolidate her case with
that of Ms. George's alleging that common questions of law and fact existed pursuant to
CR 42 .01 . Judge Clayton ordered the cases consolidated by an order dated August 13,
2002, and subsequently affirmed that order by an opinion and order dated October 28,
2002 .
Appellant contends that consolidation of the two cases would be highly
prejudicial to his case, and states that he is aware of no Kentucky case that has ever
consolidated tort claims not involving the same accident or negligent event . A cursory
review of case law in the Commonwealth does not reveal an instance of consolidation
similar to the case at bar. However, we do note that consolidation pursuant to CR 42.01
-2-
is a matter within the sound discretion of the trial court. Massie v. Salmon, Ky., 277
S .W.2d 49, 51 (1955). Nonetheless, we find that Appellant is not entitled to the
extraordinary remedy of a writ of prohibition, as he has an adequate remedy by appeal
of any final judgment to be entered by the Jefferson Circuit Court.
In order to prevail upon an application for a writ of prohibition, a petitioner in the
circumstances at bar must first establish that he or she has no adequate remedy by
appeal or otherwise, and that he or she would suffer "great and irreparable injury" if the
writ is denied . Bender v . Eaton , Ky., 343 S .W.2d 799, 801 (1961). Appellant contends
that he does not have an adequate remedy by appeal because the trial court's order of
consolidation was not a final and appealable order adjudicating the rights of the parties
pursuant to CR 54.01 .
Appellant cites Macklin v . Ryan , Ky., 672 S.W .2d 60 (1984), as standing for the
proposition that a party challenging any interlocutory order of a trial court does not have
an adequate remedy by appeal, as those orders are not final and appealable . Macklin ,
however, dealt with a criminal mistrial and the defendant's petition to prevent his retrial
on double jeopardy grounds. Id . at 61 . In that case, this Court held that the
Commonwealth's motion for a mistrial was not final or appealable under CR 54.01, and
that "[s]ince a mistrial, by definition, does not dispose of the merits of a case or
necessarily preclude future litigation, the appellant did not have an adequate remedy by
appeal from the mistrial order." Id .
The case at bar presents a different situation entirely. Appellant is entitled to
appeal any adverse judgment entered against him after a trial on the merits. CR
54 .02(2) states that:
When the remaining claim or claims in a multiple claim
action are disposed of by judgment, that judgment shall be
deemed to readjudicate finally as of that date and in the
same terms all prior interlocutory orders and judgments
determining claims which are not specifically disposed of in
such final judgment.
Therefore, once the trial court enters its final judgment, Appellant is free to appeal any
interlocutory orders entered prior to entry of the final judgment and accordingly is
afforded an adequate remedy by appeal .
This Court has held numerous times that a party who merely seeks a premature
appeal of a lower court's interlocutory order shall not be entitled to the extraordinary
remedy of a writ. See Ison v. Bradley , Ky., 333 S .W.2d 784, 786 (1960); Wiglesworth v.
Wright, Ky., 269 S .W.2d 263, 266 (1954) ; Osborn v. Wolfford , 239 Ky. 470, 39 S.W.2d
672, 673 (1931) .
Appellant also urges us to grant the writ in order to save time, money and
valuable judicial resources that will inevitably be wasted by requiring Appellant to fully
litigate at trial, appeal the trial court's interlocutory order, and ultimately seek a new trial .
While this is a laudable goal, we have held that a writ is not appropriate even though a
remedy by appeal "may be fraught with delays, inconveniences, postponements,
greater financial outlays, and even possible imprisonment, all of which might be
avoided, or greatly curtailed, by a resort to an original application to this court." Osborn ,
supra, at 674. Moreover, if this Court were to entertain all such cases attempting to
challenge interlocutory orders of the trial court on the mere basis of financial distress, it
would take "a minimum of imagination to envision the utter confusion and chaos in the
trial of cases" that would ensue . Ison , supra , at 786 .
Accordingly, we hereby affirm the Court of Appeals in denying the writ of
prohibition .
Lambert, C.J . ; Johnstone, Keller, Stumbo, and Wintersheimer, JJ ., concur.
Cooper, J ., dissents by separate opinion, with Graves, J., joining that dissent .
COUNSEL FOR APPELLANT :
A. Courtney Guild, Jr.
Aegon Center
400 West Market Street
Suite 1650
Louisville, KY 40202
Edward L. Schoenbaechler
Hall, Render, Killian, Heath & Lyman, P.S .C .
1650 Aegon Center
400 West Market Street
Louisville, KY 40202
COUNSEL FOR APPELLEE,
DENISE G . CLAYTON, JUDGE :
Denise Clayton
600 West Jefferson Street
Louisville, KY 40202
COUNSEL FOR APPELLEE,
REAL PARTY IN INTERFEST,
JULIE GEORGE :
Ronald P. Hillerich
1800 Kentucky Home Life Building
239 South Fifth Street
Louisville, KY 40202
COUNSEL FOR APPELLEE,
REAL PARTY IN INTEREST :
RACHELE KNORPP:
F . Thomas Conway
1800 Kentucky Home Life Building
239 South Fifth Street
Louisville, KY 40202
RENDERED : OCTOBER 23, 2003
NOT TO BE PUBLISHED
,*ixyrrmr Courf of ~rufurhV
2003-SC-0121-MR
GREGORY L . BROWN, M .D.
V
APPELLANT
ORIGINAL ACTION FROM COURT OF APPEALS
2002-CA-2426
JEFFERSON CIRCUIT COURT NO. 2001-CI-7731
HONORABLE DENISE G . CLAYTON,
JUDGE, JEFFERSON CIRCUIT COURT
APPELLEE
AND
JULIE GEORGE ; AND RACHELE KNORPP
REAL PARTIES IN INTEREST
DISSENTING OPINION BY JUSTICE COOPER
It has long been a rule of both the law of evidence and the law of torts that
evidence of a prior negligent act by the defendant is not admissible to prove that the
defendant acted negligently on a subsequent occasion .
[E]vidence of other acts, even of a similar nature, of the party whose own
act or conduct . . . is in question . . . is not competent to prove the
commission of a particular act charged against him, unless the acts are
connected in some special way, indicating a relevancy beyond mere
similarity in certain particulars .
Massie v. Salmon , Ky., 277 S.W.2d 49, 51 (1955) (quoting 20 Am .Jur. Evidence § 302).
See also Moore v. Bothe, Ky., 479 S .W.2d 634, 635-36 (1972); Morris v. Daniel , Ky.,
465 S .W .2d 295, 298 (1971); Baker Pool Co . v. Bennett, Ky., 411 S .W .2d 335, 337
(1967); Price v. Bates, Ky., 320 S.W.2d 786, 788 (1959) ; cf. Louisville & N .R. Co . v.
Jackson's Adm'r, 250 Ky. 92, 61 S .W.2d 1104 (1933) (evidence of other accidents at
railroad crossing admissible to show defendant's notice of dangerous condition) ; Dowell
v. Bivins, Ky. App., 586 S .W.2d 297 (1979) (where child pedestrian killed on highway,
evidence that child had played in the highway on other occasions was admissible to
rebut parent's testimony that child was closely supervised and not prone to wander) .
The rule has survived the adoption of the Rules of Evidence. See generally , Robert G.
Lawson, The Kentucky Evidence Law Handbook § 2.40 at 120-26 (3d ed . Michie 1993).
While KRE 404(b) applies to civil cases, that rule does not permit evidence of "other bad
acts" to show action in conformity therewith, and there is no "other purpose" for such
evidence in this case except to prove Dr . Brown's negligence on one occasion by proof
of his similar negligence on another occasion .
It logically follows that if evidence of Dr. Brown's alleged malpractice with respect
to Mrs. George would be inadmissible at the separate trial of Mrs. Knorpp's malpractice
action, it was error to consolidate the actions for the purpose of trial.
Under common-law practice it is generally a prerequisite to the
joinder of causes of action that all of the causes affect all the parties to the
action . Thus, joinder of causes of action in favor of several plaintiffs or
against several defendants, is under common-law practice permissible
only where the causes affect all parties .
1 Am .Jur.2d, Actions § 109 .
Thus, where a defendant's single act of negligence injures more than one
person, all of those injured may be joined in one action against the defendant. Or
where one plaintiff is injured by separate negligent acts of multiple defendants, all of the
defendants may be joined in one action by the plaintiff . But where multiple plaintiffs
allege separate injuries caused by separate and distinct acts of negligence of the same
defendant, the actions may not be joined because all of the causes do not affect all of
the parties to the action .
Appellees, Real Parties in Interest, have cited no authority from any jurisdiction
for the proposition that two separate tort actions arising out of two separate acts of
negligence by the same defendant on two different occasions causing nonconcurrent
injuries to two different plaintiffs can be consolidated or joined for purposes of trial. If
such authority exists, my own research efforts have failed to find it. And unless such
authority exists, our existing precedents indicate that this order of consolidation will
necessarily result in a reversal on appeal. Obviously, we have jurisdiction to reverse an
erroneous denial by the Court of Appeals of a meritorious petition for a writ . I do not
agree that a common law rule of our own creation, i .e . , "adequate remedy by appeal,"
ante at
(slip op., at 3), divests this Court of the authority to exercise that jurisdiction
when substantial justice and judicial economy demand that we exercise it. Rather, I
regard that rule as a valid reason to deny a petition when it is not clear from an
underdeveloped record that, as here, a subsequent appeal would be successful .
Accordingly, I would reverse the Court of Appeals and remand with directions to
issue the writ.
Graves, J ., joins this dissenting opinion .
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