Curty v. Norton Healthcare, Inc., 2018-CA-000099-MR

• Decision Date: 12 October 2018
• Docket Number: NO. 2018-CA-000099-MR,2018-CA-000099-MR
• Parties: Ashley CURTY, Appellant v. NORTON HEALTHCARE, INC., Appellee
• Court: Kentucky Court of Appeals

561 S.W.3d 374

Ashley CURTY, Appellant

v.NORTON HEALTHCARE, INC., Appellee

NO. 2018-CA-000099-MR

Court of Appeals of Kentucky.

OCTOBER 12, 2018; 10:00 A.M.

BRIEF FOR APPELLANT: Kurt A. Scharfenberger, Louisville, Kentucky.

BRIEF FOR APPELLEE: Donna King Perry, Jeremy S. Rogers, Alina Klimkina, Louisville, Kentucky.

BEFORE: JOHNSON, MAZE AND NICKELL, JUDGES.

OPINION

NICKELL, JUDGE:

Ashley Curty appeals from Jefferson Circuit Court orders denying her motion to compel production of her medical records; granting summary judgment on two occasions in favor of her former employer Norton Healthcare, Inc. (Norton); and denying her motion to reconsider, alter, amend or vacate the award of summary judgment. After careful review, discerning no error, we affirm.

Curty was employed by Norton as a medical assistant for less than a year. She knew Norton’s attendance policy was based on a point system. Pursuant to the attendance policy, when employees are absent, tardy, or leave their shift early they are assessed points. Once an employee accrues ten points in a twelve-month period, employment is terminated. Curty alleges on July 15, 2015, while working for Norton, she experienced a "stroke-like" episode and sought medical treatment in her employer’s Emergency Room (ER) without notifying her supervisor. She claims an unidentified physician at the ER ordered her not to return to work for two days; however, those claims are not only unsupported, but contradicted by Curty’s deposition, indicating she reported to work on both July 16 and 17, 2015. Also, on July 17, 2015, Curty’s direct supervisor became aware Curty had accrued eleven and a half points under the attendance policy. Curty’s employment was terminated for excessive absenteeism.

Curty filed the instant suit on July 22, 2015, alleging claims of retaliation and unlawful discharge in violation of the Kentucky Civil Rights Act (KCRA),¹ disability discrimination, and Workers' Compensation Act retaliation.² Curty propounded written discovery to which Norton responded in September 2015. Curty’s medical records were neither requested in her written discovery nor did Norton provide Curty’s medical records as part of its responses.

Following Curty’s deposition, Norton moved for summary judgment on April 14, 2016, to which Curty responded. On July 27, 2016, Curty moved to stay the trial court’s ruling pending completion of discovery, alleging summary judgment should not be granted until she obtained her medical records. Curty claimed Norton should have produced her medical records in its discovery responses, although she had not previously advised Norton or the trial court Norton’s responses were deficient.

On August 1, 2016, Curty emailed Norton she had computer records of her ER visit on July 15, 2015, and requested "any additional documents Norton has in its possession regarding the [sic] Ms. Curty’s claims." Via email, on August 10, 2016, Curty generally requested "all documents that relate to the allegations in the complaint." On August 16, 2016, Curty moved to compel production of her medical records, specifically those relating to the July 15, 2015, incident. On August 22, 2016, Norton informed Curty how to obtain her medical records online, by phone, or by mail.

On September 30, 2016, the trial court partially granted Norton’s motion for summary judgment, dismissed Curty’s retaliation claims and her claim of failure to accommodate her alleged disability, but declined to grant summary judgment on Curty’s disability discrimination claim. On December 5, 2016, the trial court denied Curty’s motion to compel as premature, determining she had not attempted to obtain her medical records through methods available to her under CR 3

26.01. The trial court further noted Curty’s medical records "are otherwise readily available to her."

On April 27, 2017, nearly two years after Curty had filed suit, Norton again moved for summary judgment on the remaining claims. The trial court granted summary judgment on the renewed motion finding the record compelled the conclusion Curty is not "disabled" as defined under the KCRA and there is no evidence Norton’s decision makers perceived Curty as disabled. Curty moved to reconsider, alter, amend, or vacate the trial court’s grant of summary judgment but was denied. This appeal followed.

As an initial matter, in contravention of CR 76.12(4)(c)(v), Curty does not adequately state how she preserved any of her arguments in the trial court.

CR 76.12(4)(c) [ (v) ] in providing that an appellate brief’s contents must contain at the beginning of each argument a reference to the record showing whether the issue was preserved for review and in what manner emphasizes the importance of the firmly established rule that the trial court should first be given the opportunity to rule on questions before they are available for appellate review. It is only to avert a manifest injustice that this court will entertain an argument not presented to the trial court. (citations omitted).

Elwell v. Stone , 799 S.W.2d 46, 48 (Ky. App. 1990) (quoting Massie v. Persson , 729 S.W.2d 448, 452 (Ky. App. 1987) ). We require a statement of preservation:

so that we, the reviewing Court, can be confident the issue was properly presented to the trial court and therefore, is appropriate for our consideration. It also has a bearing on whether we employ the recognized standard of review, or in the case of an unpreserved error, whether palpable error review is being requested and may be granted.

Oakley v. Oakley , 391 S.W.3d 377, 380 (Ky. App. 2012). Curty’s brief merely states—at the end of her argument instead of the beginning as required by the rule—her argument was preserved in her responses to the two motions for summary judgment and in her motion to reconsider, alter, amend or vacate with a citation to an eighty-four-page range of the record. Curty failed to explain how, or precisely where, she preserved her argument. Significantly, she says she made a specific request, but cites none conforming to CR 26 or otherwise asking Norton to produce her medical records. Nor has she cited refusal by Norton to fulfill such a request. Curty’s lackluster attempt at a statement of preservation has no meaningful value, being woefully deficient and noncompliant in multiple ways.

Further, in contravention of CR 76.12(4)(c)(iv) and (v), which require ample references to the trial court record supporting each argument, Curty’s brief contains only four references to the record in her argument section. Each reference is virtually the same, including the same eighty-four-page range cited in her statement of preservation. Curty even used the same eighty-four-page reference as the citation for a block quote within her argument. This is unacceptable and simply does not constitute ample or adequate citation to the record.

Additionally, in contravention of CR 76.12(4)(c)(vii), the index to the appendix to Curty’s brief does not set forth where the documents included may be found in the record, nor do the orders being challenged appear immediately after the appendix list. The purpose of these two provisions is to prevent the court from having to scour the record, which in this case consisted of five volumes, to fill in the blanks for practicing attorneys; to ensure the orders are readily available to the court; and, to ensure only documents and materials "included in the record"—other than items not subject to judicial review—are provided as exhibits.

Failing to comply with the civil rules is an unnecessary risk the appellate advocate should not chance. Compliance with CR 76.12 is mandatory. See Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). Although noncompliance with CR 76.12 is not automatically fatal, we...