Brown v. Clayton, 2003-SC-0121-MR (Ky. 10/23/2003)
| Decision Date | 23 October 2003 |
| Docket Number | 2003-SC-0121-MR. |
| Parties | GREGORY L. BROWN, M.D. APPELLANT v. HONORABLE DENISE G. CLAYTON, JUDGE JEFFERSON CIRCUIT COURT APPELLEE AND JULIE GEORGE & RACHELE KNORPP REAL PARTIES IN INTEREST |
| Court | United States State Supreme Court — District of Kentucky |
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 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...
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