Glasson v. Afzal, No. 2008-CA-000255-MR (Ky. App. 9/11/2009)
| Decision Date | 11 September 2009 |
| Docket Number | No. 2008-CA-000255-MR,2008-CA-000255-MR |
| Parties | Misty GLASSON Appellant v. DR. Muhammad Rizwan AFZAL; Urgent Care Center-Northern Kentucky Appellees |
| Court | Court of Appeals of Kentucky |
Appeal from Campbell Circuit Court, Honorable Fred A. Stine, V. Judge, Action No. 06-CI-00850.
Robert F. Croskery, Cincinnati, Ohio, Brief and Oral Argument For Appellant.
Robert A. Ott, Scott P. Whonsetler, Louisville, Kentucky, Brief for Appellee.
Robert A. Ott, Louisville, Kentucky, Oral Argument for Appellee.
Before: KELLER, MOORE, and THOMPSON, Judges.
NOT TO BE PUBLISHED
Misty Glasson (Glasson) appeals from a judgment following a defense verdict by a jury in favor of Dr. Muhammad Rizwan Afzal1 (Afzal)2 and Urgent Care Center-Northern Kentucky (Urgent Care). Hereinafter, we will refer to Afzal and Urgent Care jointly as the Appellees. On appeal, Glasson argues the trial court allotted too many peremptory challenges to the Appellees; wrongfully permitted the introduction of reputation and "other act" evidence by Afzal; wrongfully permitted the introduction of certain medical evidence while excluding the introduction of other medical evidence; and permitted the Appellees to use that medical evidence during closing argument to question her credibility. The Appellees argue to the contrary. For the reasons set forth below, we affirm.
Glasson alleged that, on March 22, 2006, Afzal inappropriately touched her while performing a Selective Tissue Conductance Test (STC Test) and that touching amounted to civil sexual battery. She also alleged Urgent Care negligently supervised Afzal, and the actions of the Appellees caused her severe emotional distress. The Appellees filed a joint answer to Glasson's complaint, denying all allegations of battery and negligence. We will set forth additional facts as necessary when analyzing the issues.
Because the standards of review differ somewhat for each issue raised by Azfal, we will set forth the appropriate standard as we analyze each issue.
Rule 47.03(1) of the Kentucky Rules of Civil Procedure (CR) provides "each opposing side shall have three peremptory challenges, but coparties having antagonistic interests shall have three peremptory challenges each." The trial court granted Glasson three peremptory challenges and granted Urgent Care and Afzal three peremptory challenges each, for a total of six peremptory challenges for the Appellees. Glasson argues the Appellees' were not antagonistic to each other; therefore, they should have been treated as one for the purpose of peremptory challenges.
In overruling Glasson's objection to the number of peremptory challenges granted to the Appellees, the trial court stated that it primarily relied on Sommerkamp v. Linton, 114 S.W.3d 811 (Ky. 2003). The court noted Glasson alleged battery, which is an intentional tort, against Afzal and negligent supervision against Urgent Care. The court stated those separate and diverse allegations, along with the fact the Appellees had separate counsel, were sufficient to support a finding that the Appellees had antagonistic interests. Furthermore, the court assumed, based on the allegations, there would be some evidence regarding the negligent supervision claim.
The determination of whether parties have antagonistic interests is left to the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion. A reviewing court will only disturb the trial court's determination if the court's findings of fact are clearly erroneous. Davis v. Fischer Single Family Homes, Ltd., 231 S.W.3d 767, 773 (Ky. App. 2007), and Sommerkamp v. Linton, 114 S.W.3d 811, 814 (Ky. 2003). A reviewing court must analyze the trial court's determination to allot peremptory challenges as of the time that determination was made, not in hindsight following presentation of proof. Sommerkamp at 816.
As the trial court noted, the principal case regarding peremptory challenges is Sommerkamp v. Linton. In Sommerkamp, the Supreme Court of Kentucky stated there are three primary factors a court should consider in deciding if coparties have antagonistic interests: "1) whether the coparties are charged with separate acts of negligence; 2) whether they share a common theory of the case; and 3) whether they have filed cross-claims." Sommerkamp 114 S.W.3d at 815 (Internal citations omitted). Additionally, the Court set forth other factors that may be considered, including: "whether the defendants are represented by separate counsel; whether the alleged acts of negligence occurred at different times; whether the defendants have individual theories of defense; and whether fault will be subject to apportionment." Id. at 815.
Glasson argued before the trial court, as she does here, that the Appellees' interests were not antagonistic for two reasons: (1) they presented the same defense; and (2) they did not truly have separate counsel. In support of her mutual defense argument, Glasson notes that, if the Appellees could prove the event did not occur, neither Urgent Care nor Afzal would have liability. If the jury found the event did occur, Afzal would not escape liability, but Urgent Care might, if it could establish it reasonably supervised Afzal. To escape liability, Urgent Care would not be required to assign blame to Afzal, it would only be required to establish it reasonably supervised Afzal. Thus, Urgent Care could escape liability without assigning blame to Afzal, which Glasson argues establishes that the Appellees' interests were not antagonistic.
Urgent Care agrees its primary defense, that the event did not take place, was not antagonistic to Afzal's interest. However, it argues its secondary defense, that it acted reasonably in supervising Afzal, was antagonistic to Afzal and, therefore, the peremptory challenges were properly allotted to the parties.
Having reviewed the record as it existed at the time the trial court made its allotment of peremptory challenges, we discern no error. As noted above, Glasson's theory of recovery against Afzal sounded in intentional tort and her theory of recovery against Urgent Care sounded in negligence. Generally, in a case when both parties are charged with negligence arising from one event, an increase in liability as to one party will result in a decrease as to the other party. Antagonistic interests are inherent in such cases. However, as noted above, the liability between Afzal and Urgent Care were not so proportionally related. Therefore, the potential antagonism between the two is not so clear. However, that does not mean they did not have antagonistic interests. Urgent Care had to be prepared to present evidence that Afzal was simply a bad actor and it could have done nothing to anticipate or prevent him from improperly touching Glasson. That defense is antagonistic to Afzal's interests, and the trial court properly anticipated that defense might be raised during the course of the trial.
We note Glasson's argument that, "as it played out, nothing in closing argument (or in the entire trial, for that matter) showed any antagonistic interest whatsoever, a point tending to underline the error of awarding Defendants extra preemptory [sic] challenges." It is true the Appellees presented a united defense throughout the trial. In hindsight, the trial court might have ruled differently on Glasson's objection to the allotment of peremptory challenges. However, the trial court must analyze that issue prior to the presentation of proof; and, at that time, the Appellees' interests were antagonistic. Therefore, this argument by Glasson is without merit.
In support of her mutual attorney argument, Glasson states that, while Afzal and Urgent Care had separate counsel, the attorneys were with the same law firm. Furthermore, Glasson notes, and the Appellees do not dispute, that, as a general rule, only one of the attorneys for the Appellees practiced the case prior to trial.
Having attorneys from one law firm defend Afzal and Urgent Care may or may not have been the best choice; however, the fact remains the Appellees did have separate counsel. Furthermore, whether the attorneys were from the same law firm does not necessarily mean the Appellees' interests were not antagonistic. Attorneys from the same firm can represent clients with diverse interests as long as the clients are fully informed and give their consent. While there is little evidence the attorneys practiced this case from truly adversarial positions, the same could well have been true had the attorneys been from different law firms. Whether the Appellees were represented by counsel from different law firms would not have altered the fact that proving the event did not take place was the best defense for both Appellees. Therefore, whether counsel were from the same law firm is not dispositive of this issue.
Based on the above, we discern no error in the trial court's allotment of peremptory challenges.
Glasson testified that, since this event, she has had difficulty sleeping, has had nightmares, feels as if everyone knows what happened and is looking at her, and, as a result, is reluctant to go out in public. During cross-examination, counsel for Afzal questioned Glasson about a 2002 medical record that showed her complaints of depression, sleeplessness, and difficulty socializing. That record also revealed Glasson's physician had prescribed Zoloft, which Glasson admitted taking. However, Glasson explained her symptoms and treatment were related to post-partum depression and lasted for only three weeks. Glasson objected to this line of questioning, arguing a lack of relevance. The trial court, noting Glasson's complaints during direct examination, permitted the questioning.
On appeal, Glasson questions the relevancy of her prior symptoms and...
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