DAME REBECCA L . MILLER, BY AND THROUGH HER GUARDIAN, MONTICELLO BANKING COMPANY ; RACHEL ANN MILLER, BY AND THROUGH HER GUARDIAN, MONTICELLO BANKING COMPANY ; MONTICELLO BANKING COMPANY ; AND TIMOTHY MILLER V MARYMOUNT MEDICAL CENTER, D/B/A MARYMOUNT HOSPITAL
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2001-SC-0587-DG
REBECCA L . MILLER, BY AND
THROUGH HER GUARDIAN,
MONTICELLO BANKING COMPANY ;
RACHEL ANN MILLER, BY AND
THROUGH HER GUARDIAN,
MONTICELLO BANKING COMPANY;
MONTICELLO BANKING COMPANY ;
AND TIMOTHY MILLER
V
DAME
.O
EAmi
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
NO . 2000-CA-827
LAUREL CIRCUIT COURT NO. 96-CI-739
MARYMOUNT MEDICAL CENTER, D/B/A
MARYMOUNT HOSPITAL
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING
This is an action for damages for injuries allegedly caused by medical
negligence . Rebecca C . Miller, then age 31, was admitted to Marymount Medical
Center, d/b/a Marymount Hospital ("Marymount") in London, Kentucky, on October 16,
1995, by her family physician, Dr. William D. Pratt. She was admitted for the purpose of
giving birth by induced labor. Attempts to induce labor on October 17th were
unsuccessful . On October 18th, Mrs . Miller gave birth to a healthy baby girl, Rachel
Ann Miller, by Caesarean section surgery performed by Dr. Joseph W . Stern, an
obstetrician/gynecologist . Following surgery, Mrs. Miller experienced respiratory
difficulties . A chest x-ray taken on the morning of October 19th revealed that she had
contracted pneumonia . A blood gas test on the same morning revealed a blood oxygen
concentration (P02)
of 64 .4 .
A normal P02 is between 80.0 and 100.0. The chest x-
ray and low P02 indicated that lung congestion caused by pneumonia was preventing
sufficient oxygen from entering the blood stream for delivery to other parts
of
the body,
including the brain .
The doctors began treating Mrs . Miller with antibiotics to combat the pneumonia
and pumping increased oxygen into her lungs through nasal tubes . She was also
treated for pain and stress with periodic injections of Demerol and Vistaril . She
continued to complain of respiratory distress throughout the day and early evening . Dr.
Pratt testified that he visited Mrs . Miller's room at 9 :45 p .m . and advised her and her
husband, Timothy Miller, that he was going to call a pulmonologist, Dr. Vaezy, for
consultation . At 9 :50 p .m ., Nancy Burnett, a nurse, administered injections of Demerol
and Vistaril . When Dr. Pratt returned at 10:00 p .m. to inform the Millers that Dr. Vaezy
would see her that night, he found Mrs . Miller unresponsive and in respiratory arrest.
Dr. Pratt immediately instituted a "Code 700" for emergency resuscitation . By 10 :05
p.m ., Mrs. Miller had been resuscitated, intubated, placed in an oxygen bag which
pumped 100% oxygen into her lungs, and transferred to the intensive care unit . A blood
gas test taken at 10 :05 p.m . revealed a P02 of 90, well within normal range . By 10:17
p .m., Mrs . Miller was breathing without assistance . However, she never regained
consciousness . Subsequent chest x-rays revealed increasing lung congestion despite
continued administration of antibiotics and 100% oxygen . A blood gas test at 11 :00
p .m . revealed a P02 of 43 . Another test at 12 :45 a.m. on October 20th revealed a P02
of 44 .
Mrs . Miller was transferred to Fort Sanders Hospital in Knoxville, Tennessee,
where efforts to improve her condition were unsuccessful . She remains comatose at a
nursing home in Annville, Kentucky.
Mrs . Miller's legal guardian brought this action for damages against Dr. Pratt, Dr.
Stern, and Marymount, alleging that Mrs . Miller's present comatose state resulted from
negligent medical care . Her husband, Timothy Miller, and the legal guardian of her
daughter, Rachel Ann Miller, joined the action to seek damages for loss of consortium .
Approximately two weeks before the scheduled trial date of March 14, 2000, Appellants
settled their claims against Drs. Pratt and Stern . Their claims against Marymount then
proceeded to trial . At the conclusion of a seven-day trial, a Laurel Circuit Court jury
returned a verdict in favor of Marymount. Pursuant to the verdict, a judgment was
entered dismissing Appellants' claims . The Court of Appeals affirmed and we granted
discretionary review .
Appellants retained three medical experts to review Mrs. Miller's medical records
and express their opinions in this case . Two of those experts, Dr. Michael A. Matthay,
an internist and pulmonologist from San Francisco, California, and Dr. Fred J. Spielman,
an anesthesiologist from Chapel Hill, North Carolina, testified for Appellants at trial .
Appellants' third expert, Dr. Patricia Robertson of San Francisco, an obstetrician and
gynecologist specializing in maternal-fetal medicine, was deposed for discovery
purposes by Dr. Stern on December 14, 1998. Marymount was allowed to read that
deposition as Dr. Robertson's testimony at trial . In addition, Marymount retained Dr.
Michael G. Ehrie of Ashland, Kentucky, an internist with a subspecialty in pulmonary
medicine, who also testified for Marymount at trial.
Drs. Matthay, Spielman and Ehrie agreed that Mrs. Miller developed Adult
Respiratory Distress Syndrome (ARDS) during the afternoon of October 19, 1995, and
that this development caused both the respiratory arrest and the brain cell death that
resulted in her coma.' They disagreed, however, as to whether the respiratory arrest
caused the brain cell damage and whether better medical care could have prevented
that damage . Drs . Matthay and Spielman opined that the respiratory arrest caused the
brain cell damage that resulted in Mrs . Miller's coma . They also testified that earlier
intubation and application of 100% oxygen therapy could have prevented the respiratory
arrest. They accused the hospital's nurses of failing to furnish the treating physicians
with up-to-date information on Mrs. Miller's symptoms which would have caused the
physicians to more quickly institute the aggressive treatment needed to prevent the
respiratory arrest. Specifically, they criticized the staff for failing to obtain repeat blood
gas tests as required by an order entered in the record by Dr. Stern. They also found
negligence in Nurse Burnett's administration of the Demerol injection ten minutes before
the respiratory arrest, noting that administration of Demerol accelerates the progression
of ARDS.
Dr. Ehrie disagreed . He testified that Mrs. Miller could not possibly have suffered
irreversible brain cell damage during the five minutes that passed between the
respiratory arrest and the resuscitation, and that the 10:05 p.m. blood gas test showing
a P02 of 90 indicated that the resuscitation had been successful . It was Dr. Ehrie's
opinion that the brain cell damage that caused Mrs. Miller's present comatose state
occurred between 11 :00 p.m . and 12:45 a.m ., during which time Mrs. Miller's P02
Dr. Robertson did not express an opinion on the issue of causation .
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registered 43 and 44, levels insufficient to sustain brain cell life. He also testified that
pneumonia is caused by infection that causes fluids to accumulate in the lung and, thus,
can be treated by antibiotics and oxygen therapy, but that ARDS is caused by blood
leaking from the capillaries into the lung, a phenomenon for which no presently known
treatment exists . According to Dr. Ehrie, the occurrence of ARDS cannot be predicted,
prevented, or treated and is fatal in fifty to ninety percent of cases . He testified that
earlier intubation and administration of 100% oxygen would have neither prevented nor
impeded the progression of ARDS in Mrs . Miller's lungs, and that the Demerol and
Vistaril injections did not cause or hasten the respiratory arrest.
Dr. Robertson criticized the treatment rendered by Drs. Pratt and Stern but
opined that nothing the nursing staff did or failed to do was a substantial factor in
causing Mrs. Miller's present condition . She agreed with Dr. Ehrie that the Demerol
injection played no role in causing or hastening the respiratory arrest. She also testified
that the most common cause of ARDS in pregnant women is pulmonary edema
associated with pyelonephritis (kidney infection) or chorioamnionitis (uterine infection).
Mrs . Miller had been treated at Marymount for pyelonephritis two months before her
Caesarean section, and there was evidence that she had complained of shortness of
breath for five weeks immediately preceding her October 1995 admission. After
reviewing the hospital records for the October 1995 admission, Dr. Robertson opined
that Mrs . Miller was suffering from chorioamnionitis on October 17, 1995, two days
before the onset of ARDS .
It was the jury's prerogative to weigh the credibility of the various experts and
decide whose opinions to accept and whose to reject . Thus, Appellants' claims of error
relate not to the sufficiency of the evidence but to two evidentiary rulings that adversely
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affected the credibility of three of their witnesses and another that positively affected the
credibility of one of Marymount's witnesses. They also assert that the trial court
improperly instructed the jury on the issue of causation . Finding no error, we affirm .
I . EVIDENCE OF SETTLEMENT : KRE 408.
Appellants assert it was error to permit Marymount to inform the jury that
Appellants had "resolved their differences" with Drs. Pratt and Stern . This issue
primarily pertains to an entry in the medical records made by Dr. Stern that reads as
follows :
Blood gases
C02 treatment for hypertension
Follow with repeat gases .
When the blood gas test on the morning of October 19th revealed a P02 of 64 .4,
an unacceptably low blood oxygen level, Dr. Pratt countermanded Dr. Stern's order for
carbon dioxide (C02) treatment . No additional blood gas tests were performed .
Marymount asserts that a correct interpretation of Dr. Stern's order is that the blood gas
tests were to be repeated after the C02 treatment and that the cancellation of the C02
treatment effectively cancelled the order for repeat blood gas tests. Dr. Pratt agreed
that the repeat blood gas tests were to follow the C02 treatment but declined to
speculate whether Dr. Stern intended for the blood gas tests to be repeated if the C02
treatment was cancelled . Dr. Stern's testimony was presented in the form of a
discovery deposition taken prior to Appellants' settlements with Drs . Pratt and Stern .
The significance, if any, of the "repeat gases" order was not addressed in that
deposition.
In his deposition taken on December 15, 1998, Dr. Matthay testified as follows
with respect to Appellants' claims against Marymount :
Q.
Do you have any criticism of the way that she was cared for at the
hospital, other than the opinion you've given me about Dr . Stern?
APPELLANTS' ATTORNEY : I think, so it's clear for the record, he also
said Dr. Pratt.
A.
No. My major concerns were with the responsible physicians .
Q.
I think you said you didn't have any criticism, and I just wanted to
ask you again, is it fair to say you don't have any criticism of the
nursing care as it relates to the injuries that Ms . Miller sustained?
A.
That is correct .
On the same issue, Dr. Spielman testified at his December 4, 1999, deposition
that he was critical only of Nurse Burnett for administering the injections of Demerol and
Vistaril to a patient in obvious respiratory distress .
Q.
Who are the physicians in this case that you're critical of?
A.
Dr. Pratt and Dr. Stern .
Q.
Which nurse are you critical of in this case?
A.
Ms. Burnett.
Q.
Anybody else?
A.
Any other nurse?
Q.
Yes, sir.
A.
No.
Q.
Your criticism of Nurse Burnett is that she should not have
administered the Vistaril and Demerol when she did there prior to
the code?
A.
Correct .
Q.
Do you have any other criticisms of Nurse Burnett?
A.
No.
Q.
How much are you . . .
A.
Well, excuse me. Let me think about that answer a little better.
Okay?
Q.
Sure.
(Pause .)
A.
Well, I'm just trying to find out where . . . looking for some nursing
notes . I'm looking right here . Sorry.
(Pause .)
A.
I'll let my answer stand.
At trial, both Dr. Matthay and Dr. Spielman criticized the nursing staff for failing to
perform repeat blood gas tests pursuant to Dr. Stern's order, especially after the first
test revealed an abnormally low P02 . Both experts testified that they had overlooked
the fact that Dr. Stern's order stated "Blood gases" (emphasis added), not "Blood gas,"
indicating that more than one test was to be performed . (Marymount counters that
blood contains more than one gas, hence "blood gases" refers to one test, as indicated
by the first line of Dr. Stern's order.) Dr. Matthay explained that he had failed to notice
this distinction when reviewing the records prior to his deposition . Dr. Spielman
explained that he had "made a mistake" and that it was "an oversight on my part." Dr.
Matthay also testified at trial that he now had other criticisms of the nursing staff,
specifically for failing to verbally report Mrs . Miller's high temperature readings and
respiratory rates directly to a physician instead of merely noting same in the nurses'
notes, and for administering Demerol to a patient in obvious respiratory distress.
Dr. Matthay testified at trial that he did not discover his initial oversights with
respect to the negligence of the nursing staff until after Appellants' attorney advised him
that Appellants had "resolved their differences" with Drs . Pratt and Stern . Likewise, Dr.
Spielman testified at trial that he did not discover his oversight with respect to the "blood
gases" until after learning that Appellants had settled their claims against the doctors .
Dr. Spielman further admitted that it was Appellants' attorney who pointed out to him
that the repeat blood gases had not been performed. Thus, Marymount was able to
impeach the credibility of both Dr. Matthay and Dr. Spielman by showing that they
changed their opinions with respect to the negligence of the hospital's employees only
after being informed that Appellants had settled with the doctors - and that it was
Appellants' attorney, not Dr. Spielman, who discovered Dr. Spielman's "oversight ."
Appellants assert that the impeachment was improper, relying primarily on Orr v.
Coleman , Ky., 455 S .W .2d 59, 61 (1970) ("[N]either the fact nor the amount of the
settlement should be communicated to the jury that tries the issue of the nonsettling
tortfeasor's liability ."), and Simmons v. Small , Ky. App., 986 S.W .2d 452 (1998)
(plaintiffs wife's false statement in deposition that plaintiff had not settled with second
tortfeasor was a collateral fact inadmissible to impeach wife's testimony at trial) .2
Kentucky Rule of Evidence (KRE) 408 provides :
Evidence of:
2 We note in passing that there could be no valid hearsay objection to the settlement
evidence in the case sub iudice. A statement offered to show its effect on the person
who heard it made is not hearsay because it is not offered for the truth of the assertion.
See McCormick on Evidence § 249, at 589 (Cleary ed . 1975) .
(1)
(2)
Furnishing or offering or promising to furnish ; or
Accepting or offering or promising to accept a valuable
consideration in compromising or attempting to compromise a claim
which was disputed as to either validity or amount, is not admissible
to prove liability for or invalidity of the claim or its amount. This rule
does not require the exclusion of any evidence otherwise
discoverable merely because it is present in the course of
compromise negotiations . This rule also does not require exclusion
when the evidence is offered for another purpose, such as proving
bias or preiudice of a witness , negativing a contention of undue
delay, or proving an effort to obstruct a criminal investigation or
prosecution .
(Emphasis added .)
We note at the outset that Orr was decided long before the adoption of KRE 408,
and the settlement evidence in that case was not used to impeach the credibility of a
witness but to limit the amount of the verdict the jury might award against the nonsettling tortfeasor. Id . at 61 . Simmons merely held that a witness could not be
impeached by evidence that she had previously lied about a collateral matter . Id . at
455 . There was no evidence that the witness in Simmons changed her testimony about
a material fact after the settlement with the second tortfeasor. Thus, whether KRE 408
allows admission of evidence of a settlement with one or more codefendants in order to
impeach a witness whose testimony changed after learning of the settlement is an issue
of first impression in Kentucky. However, the issue has arisen in other jurisdictions that
have adopted an evidence rule identical to KRE 408.
Particularly persuasive is Quirion v. Forcier , 632 A.2d 365 (Vt. 1993), a case with
facts almost identical to those in the case sub iudice . Quirion was a medical negligence
action brought against four doctors and a medical clinic. The plaintiff settled with three
of the doctors prior to trial and proceeded to trial against the fourth doctor and the clinic.
The plaintiff's medical expert testified in a pretrial discovery deposition before the
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settlement that the negligence of the three settling doctors was primarily responsible for
the death of the plaintiffs decedent and that the fourth doctor was largely blameless .
After learning of the settlement, the expert changed his analysis and testified that the
nonsettling doctor's negligence was primarily responsible for the death . The trial court
admitted the evidence of the settlement pursuant to Vermont's version of Rule 408.
Affirming a verdict for the defendants, the Supreme Court of Vermont held that its
adoption of Rule 408 modified the prior common law rule of exclusion (compare Orr,
supra) . Quirion, supra , at 367-68 . It also held that the evidence of the settlement
tended to prove bias and prejudice on the part of the expert and provided a motive for
his change of opinion . Id . at 368. Finally, it held that the admission of evidence of the
settlement satisfied the Rule 403 balancing test because (1) the jury was not told the
amount of the settlement ; (2) the jury was instructed to consider the evidence only
insofar as it pertained to the expert's credibility as a witness ; 3 (3) the evidence of
settlement had substantial probative value because the plaintiffs case relied almost
entirely on the testimony of the expert ; and (4) the jury could obviously assume that if
the plaintiff made claims against the nonsettling doctor and the clinic, she also would
have made claims against the settling doctors . Id . at 368-69 . See also United States
Aviation Underwriters, Inc. v. Olympia Wings, Inc. , 896 F .2d 949, 956 (5th Cir. 1990)
("We are persuaded that the district court did not abuse its discretion in admitting
evidence of settlement to show the change in [the witness's] position since his
deposition was taken . Fed . R. Evid . 408 permits settlement evidence for any purpose
3 No admonition was requested in the case sub j_udice . KRE 105(a) ; Barth v.
Commonwealth , Ky., 80 S .W.3d 390, 396 (2001) (admonition required only "upon
request") .
except to prove or disprove liability or the amount of the claim ."); Reichenbach v. Smith ,
528 F.2d 1072, 1074-75 (5th Cir . 1976) (FRE 408 codified trend in case law admitting
evidence of settlement for purpose of impeachment) ; Northington v. Sivo , 8 P.3d 1067,
1070 n .7 (Wash . Ct . App. 2000) ("[W]hether a witness's testimony remains consistent
after settling is an important factor in determining whether settlement evidence should
be admitted to show bias."); Harlenq v. Blanke , 279 N .W .2d 437, 441-42 (Wis . 1979)
(evidence of settlement with other codefendants in medical malpractice action
admissible to show prejudice of plaintiff as a witness because she had a motive to play
down negligence of settling defendants and emphasize that of non-settling defendants) .
Admissibility of evidence tending to prove the bias of a witness is a matter of
relevancy . United States v. Abel , 469 U.S . 45, 50-52, 105 S .Ct. 465, 468-69, 83
L .Ed .2d 450 (1984). "Any proof that tends to expose a motivation to slant testimony one
way or another satisfies the requirement of relevancy . The range of possibilities is
unlimited . . . ." Robert G . Lawson, The Kentucky Evidence Law Handbook § 4.15, at
183 (3d ed . 1993) .
The interest of a witness, either friendly or unfriendly, in the
prosecution or in a party is not collateral and may always be proved to
enable the jury to estimate credibility . It may be proved by the witness'
own testimony upon cross-examination or by independent evidence .
Parsley v. Commonwealth , Ky., 306 S .W.2d 284, 285 (1957) (citations omitted) . We
conclude that the trial judge did not abuse his discretion in admitting evidence of
Appellants' settlement with Drs. Pratt and Stern to impeach the credibility of Drs.
Matthay and Spielman . Commonwealth v. English , Ky ., 993 S .W.2d 941, 945 (1999).
II. EVIDENCE THAT EXPERT WAS RETAINED
BY ADVERSE PARTY.
As noted supra , Appellants initially retained Dr. Robertson who, in her December
14, 1998, pretrial deposition, criticized the medical care rendered by Drs. Pratt and
Stern but testified that she had no criticism of the medical care rendered by
Marymount's staff. She also testified that Appellants had retained her to review the
records and render her expert opinion. Prior to their settlements with Drs . Pratt and
Stern, Appellants served notice that they would take Dr. Robertson's deposition in San
Francisco for the purpose of presenting it as her testimony at trial. After the
settlements, Appellants cancelled the deposition, whereupon Marymount served notice
that it would take Dr. Robertson's deposition for the purpose of presenting it at trial.
Ultimately, Marymount did not take Dr. Robertson's deposition but, instead, read her
December 14, 1998, deposition at trial . CR 32 .01(c). Appellants now assert that it was
reversible error to permit Marymount to inform the jury that Appellants had initially
retained Dr. Robertson.
Similar to the issue pertaining to the use of settlement evidence for impeachment
purposes, evidence that Appellants initially retained Dr. Robertson was relevant to her
credibility as a witness . In Tuttle v. Perry, Ky., 82 S .W.3d 920 (2002), another medical
negligence case, we held that evidence that an expert witness was retained by a
particular party and the amount of compensation paid to the expert for services
rendered was highly relevant to the issue of the expert's credibility.
The use of highly compensated, learned professionals as expert
witnesses in complex litigation has become axiomatic . Many cases
become reduced to a "battle of experts" and parties who enter the fray
understand from the outset that the qualifications and testimonial
persuasiveness of their experts will be indicative of the outcome.
- 1 3-
Id . at 921 .
As demonstrated by the facts presented here, expert witnesses are often
compensated handsomely and it is widely believed that they may be
expected to express opinions that favor the party who engaged them and
who pays their fees.
Id . at 923 .
The jury, possessed of such information will be in the best position to
determine whether and to what extent the amount of compensation may
affect the testimony of the witness.
Id . at 924.
These considerations also apply to evidence that a particular expert witness was
neither retained nor paid by the party offering the witness's testimony, indeed, that the
witness was retained and paid by the adverse party. The cases holding this type of
evidence inadmissible have concluded that the prejudicial effect of the evidence
substantially outweighs its probative value, KRE 403, because the jury might infer that
the party who retained the witness was attempting to hide relevant evidence . See
Peterson v. Willie , 81 F.3d 1033, 1037 (11th Cir. 1996) ; Agron v. Trustees of Columbia
Univ. , 176 F.R.D. 445, 451 (S.D.N .Y. 1997) ; House v. Combined Ins . Co . of Am. , 168
F . R. D . 236, 248 (N . D. Iowa 1996) ; Rubel v. Eli Lilly & Co . , 160 F. R. D . 458, 460
(S .D.N .Y. 1995) ; Granger v. Wisner , 656 P .2d 1238, 1242-43 (Ariz. 1982) . However,
we view this possibility as no more prejudicial than that permitted by Tuttle, supra , i .e . ,
that a jury might infer that a party offering the testimony of a highly paid expert witness
has employed a "hired gun" to manufacture or exaggerate evidence . The "undue
prejudice" argument is especially inapposite here . If there had been no settlement with
Drs. Pratt and Stern and Appellants had called Dr. Robertson as their witness, Tuttle ,
supra, would have permitted Marymount to elicit on cross-examination the fact that she
had been retained and paid by Appellants .
We are not unmindful of the general rule that a witness's credibility may not be
bolstered until it has been attacked . See generally Lawson, supra, § 4 .05, at 173.
However, none of the cases holding this type of evidence inadmissible have relied on
that rule . In City of Baltimore v. Zell, 367 A .2d 14 (Md . 1977), the Maryland Court of
Appeals analyzed the issue as follows :
The rule that one cannot bolster the credibility of his own witness,
absent an attack upon credibility by the other side, is not without
exceptions . Moreover, the rule is usually applied in completely different
circumstances than presented in the instant case, such as an attempt to
call an additional witness to testify concerning the good character for
veracity of the witness or an attempt to offer a prior consistent statement
of the witness solely for the purpose of supporting his veracity. In those
circumstances . . . valuable trial time is taken up by the introduction of
unnecessary and often cumbersome evidence, as an unimpeached
"witness may be assumed to be of normal moral character for veracity."
However, merely asking a witness a brief preliminary question concerning
his employment in connection with the case is not subject to this same
objection .
It is a routine practice in trials for an attorney to ask his witness
certain preliminary questions which may not be relevant to the issues
being litigated, which may go beyond mere identification and which are
designed to show that the witness will be somewhat credible or not biased
in favor of the side calling him . For example, the educational background
or professional status or employment position of a non-expert witness may
be asked, or the witness's lack of prior contact with the side who has
called him may be brought out. These questions give the jury some
knowledge of the individual and a more complete perspective in
considering his testimony .
Id . at 17 (internal quotations and citations omitted) .
In the final analysis, "[a] trial is essentially a search for the truth," Codgell v.
Brown , 531 A .2d 1379, 1381 (N.J. Super. Ct. Law Div. 1987), and the rules of evidence
"shall be construed to . . . the end that the truth may be ascertained and proceedings
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justly determined ." KRE 102. Thus, we conclude that evidence tending to prove the
objectivity of an expert witness is not inadmissible per se either because of its
prejudicial effect or because it tends to bolster the witness's credibility. "Particularly in
medical malpractice cases, the credibility of experts is a paramount issue. Whether an
expert is a 'hired gun' or one whose opinions have greater foundations of objectivity is
an issue to be litigated by counsel and considered by the jury." Codgell, supra , at 1382 .
See also Broward County v. Cento , 611 So.2d 1339 (Fla . Dist. Ct. App . 1993) (finding
no abuse of discretion in allowing plaintiff in personal injury action to show that medical
expert was initially retained by defendant) ; Zell, supra (finding no error in allowing
defendant in condemnation action to identify valuation expert as having been initially
retained by plaintiff) ; Fenlon v. Thayer , 506 A.2d 319, 323 (N.H . 1986) (holding it was
error to preclude plaintiff in medical negligence action from showing that expert was
initially retained as a consultant by defendant) ; Bd. of Educ. v. Barton, 617 P.2d 347,
350 (Utah 1980) (finding no error in allowing defendant in condemnation action to show
that valuation expert was initially retained by_plaintiff because the witness's
"employment bore directly on the all-important issue of his objectivity or bias") .
As in Tuttle, supra , we conclude that in this particular "battle of the experts," the
jury was entitled to know who retained and paid each expert witness, including Dr.
Robertson, so as to be able to judge each witness's overall credibility. Id . at 924 . While
an admonition to the jury to consider the evidence for that purpose alone would have
been appropriate, no admonition was requested in this case .
As for Appellants' argument that this decision will have a "chilling effect" on the
future retention of expert witnesses, we believe that CR 26 .02(4)(b) provides sufficient
protection for those who wish to employ experts for purposes of confidential
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consultation . Here, Dr. Robertson had been identified as a trial witness and her
discovery deposition had been taken . At that point, CR 32 .01 applied .
III. IMPEACHMENT BY CRIMINAL CONVICTION : KRE 609.
Marymount was permitted to impeach the credibility of Appellant Timothy Miller
by eliciting from him that he had been convicted of a felony . Although the nature and
date of the conviction were not proven at trial, the parties agree that the conviction was
for attempted burglary and that it occurred in 1988, more than ten years before this trial .
KRE 609(b) provides :
Time limit. Evidence of a conviction under this rule is not admissible if a
period of more than ten (10) years has elapsed since the date of the
conviction unless the court determines that the probative value of the
conviction substantially outweighs its prejudicial effect.
Note that the KRE 609(b) balancing test is the exact inverse of the KRE 403
balancing test. Under KRE 403, relevant evidence is admissible unless its probative
value is substantially outweighed by its prejudicial effect. Under KRE 609(b), the
evidence is inadmissible unless its prejudicial effect is substantially outweighed by its
probative value . Appellants complain that the trial judge did not articulate his reason for
admitting the evidence, i .e . , he did not specifically state that the prejudicial effect of Mr.
Miller's prior conviction was substantially outweighed by its probative value.
Appellants filed a pretrial motion in limine to preclude admission of this evidence.
No videotape or transcript of the in limine hearing is in the record . However, it appears
that the trial judge was not initially informed of the date of the conviction and ruled that
the fact of conviction was admissible under KRE 609(a). On the morning of the first day
of trial, counsel for Appellants advised the trial judge that he had learned that the date of
the conviction was 1988 . The judge then inquired as to the nature of the conviction
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(attempted burglary) and advised that he would withhold his final ruling until after
hearing Mr. Miller's testimony on direct examination . Obviously, the nature of a
witness's testimony substantially impacts the probative value of any impeachment
evidence . If Mr. Miller testified only to largely undisputed facts, the probative value of
his prior conviction for impeachment purposes would be minimal . However, if his
testimony went to facts bearing directly on issues of negligence and/or causation, or
facts contradicted by other evidence, the probative value of the impeachment evidence
would be more substantial .
Mr. Miller testified to several disputed facts relating to Marymount's negligence
and the causation of Mrs. Miller's injuries. He testified that his wife had no breathing
difficulties before her October 1995 hospitalization and specifically denied telling anyone
that she had breathing difficulties for five weeks before that hospitalization . Based on
Dr. Robertson's testimony as to the etiology of ARDS, this disputed fact was of
substantial significance to the issue of causation . This issue was hotly disputed at trial .
Mr. Miller also testified that no nurses or doctors came to his wife's room during the two
hours immediately preceding her respiratory arrest; yet, the hospital records and the
testimony of other witnesses indicated that Dr. Pratt was in the room talking to both Mr.
and Mrs. Miller fifteen minutes before the respiratory arrest and that Nurse Burnett was
in the room to administer injections of Demerol and Vistaril ten minutes before the
arrest. Mr. Miller also implied that he had attempted suicide several times because of
his wife's comatose condition ; there was other evidence that he had been under
psychiatric care all of his life. He testified that he had "tried to get on with my life" and
"see other women" but had been unable to maintain a relationship . He claimed that he
was living with his mother and his daughter, Rachel, and denied that he was living with
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his girlfriend, a fact relevant to his claim for loss or consortium . Marymount produced
business records of the Adanta Mental Health Center containing the following notation
under the heading, "Living Arrangements" : "I live with family and friends . I stay with my
girlfriend, Judy." Mr. Miller denied making the latter statement.
Thus, Mr. Miller placed his credibility squarely in issue by testifying in
contradiction of other witnesses and of entries in hospital and business records . Such
is a factor to consider in determining the probative value of the proffered evidence.
Another factor is the nature of the prior conviction . Lawson, supra, § 4 .30, at 217-18
(The type of conviction being offered to impeach is insignificant to the prejudice factor
because the jury is not informed of the nature of the offense, but it is significant to the
probativeness factor because, etc . , "a conviction for perjury is more indicative of
untruthfulness than a conviction for rape .") . Likewise, a conviction of burglary is a crime
of dishonesty, Commonwealth v. Richardson , Ky., 674 S.W.2d 515, 517 (1984), that
would be more probative of untruthfulness than a conviction of etc . , rape . Finally, a
conviction that is eleven to twelve years old is more relevant than one that is, e~ . , more
c
than twenty years old . Compare Brown v. Commonwealth , Ky., 812 S.W.2d 502, 503
(1991) (admission of twenty-two-year-ofd conviction held reversible error), overruled on
other grounds by Stringer v. Commonwealth , Ky., 956 S .W .2d 883, 891 (1997). As for
the factor of prejudice, while evidence that a party is a convicted felon is always
prejudicial, it obviously is not as prejudicial in a civil case as in a criminal case .
Although the trial judge should have specifically articulated his findings under the
KRE 609(b) balancing test, it is apparent from (1) his inquiry into the nature of the
offense and (2) his reservation of his ruling until after hearing Mr. Miller's testimony on
direct examination that he was aware of the need to and, in fact, did balance the
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probativeness of the evidence against its prejudicial effect. Under the circumstances of
this case, we are unable to conclude that the trial judge abused his discretion in
allowing Marymount to impeach Mr. Miller's credibility with evidence that he had
previously been convicted of a felony. Commonwealth v. English , 993 S .W.2d at 945 .
IV. INSTRUCTION ON CAUSATION .
The trial court instructed the jury as to Marymount's duty, breach, and causation
as follows:
INSTRUCTION NO. 1
At the time and place about which you have heard evidence, it was the
duty of Marymount Hospital and its employees to exercise that degree of
care and skill which is ordinarily expected of a reasonably competent
hospital acting under the same or similar circumstances .
INTERROGATORY NO . 1
Do nine or more of you believe from the evidence that Marymount Hospital
(a) failed to comply with this duty; and (b) that such failure, if any was a
substantial factor in causing- in iury to Rebecca Miller?
(Emphasis added .)
The jury answered "No" to Interrogatory No. 1 which, of course, was a verdict in
favor of Marymount with respect to all of Appellants' claims . Appellants claim
Interrogatory No. 1 should have read :
Do nine or more of you believe from the evidence that Marymount Hospital
(a) failed to comply with this duty; and (b) that such failure, if any, was a
substantial factor in causing Rebecca Miller to suffer a respiratory arrest?
Appellants rely primarily on Deutsch v. Shein , Ky., 597 S .W.2d 141 (1980), in
which the defendant, Dr. Shein, an internal medicine specialist, ordered that the plaintiff
be x-rayed without first ascertaining whether she was pregnant . When the plaintiff
discovered that she was pregnant, she consulted an obstetrician/gynecologist and a
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pediatrician, both of whom advised her that there was a serious risk that her fetus had
been damaged by the radiation. Based on this advice, the plaintiff underwent a
therapeutic abortion . She then sued Dr. Shein for negligently failing to obtain a
pregnancy test before ordering the irradiation . Dr. Shein introduced evidence at trial
that the amount of radiation administered to the plaintiff did not warrant a therapeutic
abortion and argued that the negligent advice of the other two physicians and the
plaintiff's own conscious decision to obtain the abortion were superseding intervening
causes . The jury was instructed by special interrogatories, similar to the interrogatory
given to the jury in this case, and returned verdicts finding that Dr. Shein was negligent
in ordering the x-rays but that his negligence was not a substantial factor in causing the
plaintiff's injury (presumably the abortion) .
Deutsch held that, as a matter of law, a person who has been injured is entitled
to follow reasonable medical advice . Id . at 145 . Thus, the advice the plaintiff received
regarding the effects of the radiation and the actions she took in reliance thereon were
not superseding causes . Id . In reaching that conclusion, Deutsch held that the
substantial factor test did not apply to the ultimate injury, i .e. , the abortion, but to the
event that caused the injury, i .e . , the irradiation, citing instructions applicable to
automobile accident cases ("substantial factor in causing the accident") . Id . (citations
omitted) . Thus, Appellants assert that the jury instructions in the case sub iudice should
have focused on the "event," which they identify as the respiratory arrest, not the
"injury," i .e. , the coma . Of course, Appellants' proposed interrogatory would have
erased Dr. Ehrie's testimony that the respiratory arrest did not cause Mrs . Miller's coma .
Interestingly, while holding that the instruction in that case should have focused
on the event and not the injury, Deutsch , supra , also cited the Restatement of Torts
(Second) § 431 for the definition of legal cause :
The actor's negligent conduct is a legal cause of harm to another if
(a)
his conduct is a substantial factor in bring ing about the harm, and
(b)
there is no rule of law relieving the actor from liability because of
the manner in which his negligence has resulted in the harm .
Id . at 144 (emphasis added).
We perceive no substantial distinction between "harm" and "injury ." However,
there is a distinction between "harm" and the "event" that caused it . Thus, we conclude
that Deutsch requires the "event" instruction only when there is a claim of a superseding
intervening cause and the trial court has held that the intervening event was not a
superseding cause . See also NKC Hosps., Inc. v. Anthony , Ky. App., 849 S.W.2d 564,
569 (1993) ("The hospital's superseding cause argument pales when considering the
statement in Deutsch that 'injury need only flow from the event ."'). We are reinforced in
that conclusion by the fact that Reams v. Stutler , Ky., 642 S.W .2d 586 (1982), another
medical negligence case without a superseding cause issue, which was decided less
than two years after Deutsch , stated :
In medical malpractice cases the plaintiff must prove that the treatment
given was below the degree of care and skill expected of a reasonably
competent practitioner and that the negligence proximately caused the
injury or death .
Id . at 588 (citation omitted) (emphasis added) .
Whether an intervening event is a superseding cause is a legal issue, House v.
Kellerman , Ky ., 519 S.W.2d 380 (1974), so it is improper to instruct the jury to
determine which of two possible events was the legal cause of the injury . Deutsch
holds that, having decided as a matter of law that the intervening event was not a
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superseding cause, the judge should instruct the jury to determine whether the
tortfeasor's negligence was a substantial factor in causing the event that, as a matter of
law, caused the injury .
Here, there was no claim of a superseding intervening cause . The only issue as
to causation was whether Mrs . Miller's present comatose state, i.e. , her injury, was
caused by the negligence, if any, of Marymount's employees, or whether it was caused
by someone else (the negligence of Drs . Pratt and/or Stern) or something else (the
natural progression of a disease that was neither preventable nor treatable). In light of
Dr. Ehrie's testimony that the respiratory arrest did not cause the coma, it would have
been error for the trial court to rule as a matter of law that it caused the coma, and
giving Appellant's proposed instruction would have had the same effect. The trial court
correctly instructed the jury on the issue of causation in this case.
Accordingly, the opinion of the Court of Appeals and the judgment of the Laurel
Circuit Court are affirmed .
All concur .
COUNSEL FOR APPELLANTS :
William R . Garmer
Savage, Garmer, Elliott & O'Brien, PLLC
141 North Broadway
Lexington, KY 40507
COUNSEL FOR APPELLEE :
B . Todd Thompson
Thompson & Miller, PLC
Suite 1700
220 West Main Street
Louisville, KY 40202
COUNSEL FOR AMICUS CURIAE KENTUCKY ACADEMY OF TRIAL ATTORNEYS :
Paul Joseph Hershberg
Steven Michael Frederick
Christopher S . Fox
Steller & Handmaker, LLP
Meidinger Tower
Suite 2200
462 South Fourth Street
Louisville, KY 40202-3485
COUNSEL FOR AMICUS CURIAE THE KENTUCKY DEFENSE COUNSEL :
Gerald R. Toner
O'Bryan, Brown & Toner
1500 Starks Building
Louisville, KY 40202
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