Eggemeyer v. Jefferson

• Decision Date: 12 June 2015
• Docket Number: NO. 2013-CA-000686-MR,NO. 2013-CA-000741-MR,2013-CA-000686-MR,2013-CA-000741-MR
• Parties: RONALD G. EGGEMEYER APPELLANT/CROSS-APPELLEE v. TED H. JEFFERSON, D.O., C. S.C.S.; AND TED H. JEFFERSON, D. O., INC.; APPELLEE/CROSS-APPELLANT
• Court: Kentucky Court of Appeals

RONALD G. EGGEMEYER APPELLANT/CROSS-APPELLEE v. TED H. JEFFERSON, D.O., C. S.C.S.;AND TED H. JEFFERSON, D. O., INC.; APPELLEE/CROSS-APPELLANT

NO. 2013-CA-000686-MR

NO. 2013-CA-000741-MR

Commonwealth of Kentucky Court of Appeals

JUNE 12, 2015

TO BE PUBLISHED

APPEAL AND CROSS-APPEAL FROM MCCRACKEN CIRCUIT COURT

HONORABLE CRAIG Z. CLYMER, JUDGE

ACTION NO. 10-CI-01085

OPINION

REVERSING AND REMANDING

BEFORE: ACREE, CHIEF JUDGE; JONES AND J. LAMBERT, JUDGES.

LAMBERT, J., JUDGE: Ronald Eggemeyer appeals from the McCracken Circuit Court's denial of his motion for a new trial, to vacate or set aside judgment, and for default judgment on liability. After careful review, we reverse the trial court's order and remand this case for a new trial.

This is a medical malpractice case arising out of the underlying Defendant, Dr. Ted Jefferson's, alleged failure to properly repair Eggemeyer's broken arm by placing enough screws below the fracture site and by failing to diagnose a post-operative infection. The first trial in this case took place in August 2012. During that trial, Dr. Jefferson violated the court's instructions and orders by repeatedly referring to Eggemeyer's medical insurance. The trial court declared a mistrial and held Dr. Jefferson in contempt, but did not make a determination of the sanctions until after the second trial.

Prior to the second trial, Eggemeyer made a motion that the case be frozen and no new legal or medical evidence or theories be introduced. The trial court agreed with Eggemeyer and held that no new legal or medical theories, defenses, or issues would be introduced or utilized, given the small amount of time counsel would have to prepare for the second trial. The trial court confirmed this in its written order granting Eggemeyer's motion for sanctions, stating:

Additionally, after the mistrial, the Court instructed counsel that the case would be retried as it now sits. There would be no new experts or theories or anything else that was not disclosed in the first trial. This was in an effort to keep the costs to a minimum and to shorten any delay in retrying the case.

Following the mistrial, Dr. Jefferson replaced attorney E. Frederick Straub with attorneys Scott Whonsetler and Jeffery Thompson. During a pretrial conference prior to the second trial, Eggemeyer's counsel renewed his motion that no new theories, legal defenses, or evidence be submitted to the jury. The courtagain reiterated that no new legal or medical theories or defenses would be permitted in the second trial. The morning of the second trial, Eggemeyer's counsel again expressed concern over what Dr. Jefferson's counsel would attempt to do, and the court, for a third time, ruled and instructed the parties that no new theories of the case were to be introduced. Defense counsel stated that they would abide by this ruling.

Despite the trial court's three separate rulings and orders to Dr. Jefferson's counsel, Mr. Whonsetler raised over a dozen new medical defenses and theories in his opening statement to the jury. Eggemeyer's counsel objected and brought the issue to the court's attention. The court indicated that these sounded like new theories to the court also, and before ruling on the issue, ordered a hearing for the following morning. No admonition was given to the jury at that time.

During the hearing on the second day of trial, Eggemeyer's counsel submitted a brief memorandum addressing the twelve most egregious new, unsupported issues and testimony advanced by Jefferson's counsel in the opening statement. After hearing argument from both sides, the trial court determined that new issues were introduced which violated the court's order, and issued the following oral ruling to Dr. Jefferson and his counsel:

And I mean not even get up and tiptoeing to the line. Because, this is a pretty egregious violation of the rules, and it's an ambush. And, particularly I think when we were sitting there yesterday talking about this and saying no new issues of legal liability in this case, I think you're sitting there and you knew that you were going to do this. And, we couldn't pull it out of you. And you stand up infront of that jury and tell them that, you completely went against the ruling of the Court, in doing that. And so, I don't know...I don't know what the outcome is going to be right now other than I'm going to be watching to make sure we don't get anywhere near any of that. And, Dr. Jefferson as well. Now, you may be asking some question and, if Dr. Jefferson believes he's going to bring that in, I have no problem at all with enforcing the Court Order by either a civil contempt, or a criminal contempt. And the civil contempt or criminal, either one can be by imposing fines or it can be jail. And, I don't tend to try this case another time. And so, ya'll [indicating Whonsettler and Dr. Jefferson] need to get your act together on this. And, if I hear anything, I don't have time to go through all of these things and say, "Ok, We can't do this. We can't do that." This is all stuff that should've been handled by reputable attorneys, ethical attorneys, a long time ago. That here's what this trial is going to be about, and we understand. Maybe I just have the luxury of dealing with attorneys who play fairly and by the rules, and I don't have these problems.

The court entered a written order addressing the twelve most pressing issues submitted in Eggemeyer's arguments and brief. The trial court again precluded Whonsetler from arguing or suggesting that Dr. Jefferson placed more than one screw below the fracture line, or that Eggemeyer might have suffered some trauma to his arm following the surgical repair by Jefferson, as well as several other theories, as there was no evidence in the record to support either theory.

Eggemeyer requested a strong admonition to the jury, but the trial court simply informed the jury that opening statements are not evidence, and that if the statements did not ultimately come through in the form of evidence, the jury was to disregard them.

Eggemeyer alleges that over the course of the trial, Dr. Jefferson and his counsel repeatedly introduced new opinions and testimony in violation of the court's orders, including testimony from Jefferson and his expert that Jefferson put three screws below the fracture line and that Eggemeyer might have suffered some trauma following Dr. Jefferson's surgical repair of his arm. Even though Eggemeyer objected to this line of questioning, the inferences and direct references to unsupported evidence and issues ruled inadmissible by the trial court did not stop, even after the final witness.

During closing arguments, Mr. Whonsetler again referenced Dr. Jefferson placing "three screws below the fracture line." Eggemeyer again objected and the trial court ruled from the bench, "And I just know now, again, you have violated a Court order in this case." The court admonished the jury to disregard the statement. Undeterred, Mr. Whonsetler immediately turned to the jury and said, "Ladies and Gentlemen, you will have the x-rays. Take a look and you will see that below the fracture line there are three screws that go from cortices to cortices. The cortices are the white portion of the bone, at either side of the bone and you will see that. You can measure it up against the original film and you will see that it is beneath the fracture line." Eggemyer objected again, and the objection was sustained; however, counsel was not permitted to approach and no admonition was given. The court stated, "Just go on to something else. I'll decide how we'll handle that." The court did not issue another admonition and did not take any remedial action for Jefferson's counsel's violation of the previous rulings of thecourt or the court's instructions or admonition. Eggemeyer argues that the jury was presented with Dr. Jefferson's counsel's lay opinion, which was not supported by the evidence. The jury then returned a defense verdict. Eggemeyer moved for a judgment notwithstanding the verdict (JNOV) and then filed a written motion for a new trial or for a default judgment on liability. Those motions were denied by order entered April 1, 2013, and this appeal now follows.

On appeal, Eggemeyer argues that the trial court abused its discretion by denying his motion for a new trial, to vacate or set aside the judgment, and for default judgment on liability. Dr. Jefferson argues that the trial court properly denied Eggemeyer's motion for a new trial, or to vacate and set aside the judgment. Dr. Jefferson cross-appeals, arguing that the trial court's November 26, 2012, order granting sanctions against him was in error and that such sanctions were not warranted. That order granted Eggemeyer $58,858.82 in attorney's fees and stated that the court was awarding such fees because of Dr. Jefferson's direct defiance of its orders throughout the first trial. The trial court clearly and unequivocally stated that it was awarding the fees as sanctions because, instead of remedying his conduct as instructed by the court, Dr. Jefferson compounded that conduct in the second trial.

When this Court reviews a trial court's denial of a motion to alter, amend, or vacate, or set aside or vacate an order, an abuse of discretion is applied. We review the trial court's judgment to determine "whether the trial judge's decisionwas arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

Eggemeyer urges this Court to consider Kentucky Rules of Civil Procedure (CR) 59.01, which provides that a new trial may be granted based on (b) misconduct of the jury, of the prevailing party, or of his attorney; or (c) accident or surprise which ordinary prudence could not have guarded against. Eggemeyer cites to this Court's previous opinion issued in Horton v. Herndon, 70 S.W.2d 975 (Ky. 1934), wherein we held that even a statement that "may" improperly influence the jury...