Jefferson v. Eggemeyer
Decision Date | 27 April 2017 |
Docket Number | 2015–SC–000625–DG |
Citation | 516 S.W.3d 325 |
Parties | Ted H. JEFFERSON, D.O.; and Ted H. Jefferson, D.O., Inc., Appellants v. Ronald D. EGGEMEYER, Appellee |
Court | United States State Supreme Court — District of Kentucky |
REVERSING AND VACATING
Ted H. Jefferson, D.O. and Ted H. Jefferson, D.O., Inc. (Dr. Jefferson) appeal from the Court of Appeals opinion that reversed the trial court's denial of Ronald D. Eggemeyer's motion for a new trial. Dr. Jefferson also appeals from the affirmation by the Court of Appeals of the trial court's imposition of sanctions. For the following reasons, we reverse the Court of Appeals, and we vacate the trial court's imposition of sanctions.
Eggemeyer fell on October 31, 2008, injuring his left upper extremity. On November 4, 2008, Dr. Jefferson performed surgery to repair a left humerus fracture
. The fracture did not heal, and he performed a second surgery on February 27, 2009. Following that surgery, Eggemeyer continued to experience pain, and he sought treatment from Dr. Holcomb in late September. Dr. Holcomb prescribed antibiotics and referred Eggemeyer to the Cleveland Clinic, where Eggemeyer underwent surgery on October 13, 2009 and February 4, 2010.
On September 17, 2010, attorney Hans Poppe sued Dr. Jefferson on behalf of Eggemeyer alleging two primary theories of liability: (1) Dr. Jefferson made mistakes during the initial surgery that resulted in the failure of the fracture to heal; and (2) following the second surgery, Dr. Jefferson failed to timely identify an infection, which necessitated the two Cleveland Clinic surgeries.
The parties began to try this case before a jury on August 13, 2012. That trial ended on August 16, 2012, when the judge declared a mistrial because Dr. Jefferson had mentioned insurance several times in violation of the court's order. Following the mistrial, Eggemeyer moved the court to find Dr. Jefferson in contempt, civilly and criminally, and for the imposition of sanctions and costs in the amount of $64,483.82. In support of his motion, Eggemeyer argued that Dr. Jefferson, during his testimony, intentionally and repeatedly violated the court's orders not to mention insurance, which forced the court to declare the mistrial. Dr. Jefferson also filed a motion for sanctions and costs in the amount of $42,048.80. In support of his motion, Dr. Jefferson argued that Eggemeyer's counsel was responsible for the mistrial because his questioning left Dr. Jefferson with little choice but to mention insurance. The court abated the parties' motions for sanctions and costs pending completion of a second jury trial.
In addition to moving for sanctions and costs, Eggemeyer moved the court to set a second trial date as soon as possible. Dr. Jefferson's attorney asked for a delay, noting that it was likely he would be undergoing surgery in September 2012. Despite counsel's request for a later trial date, the court set the case for re-trial in November 2012. Dr. Jefferson obtained new counsel, attorney Scott Whonsetler, and the second trial took place as scheduled.
On three separate occasions before the second trial began the court stated that the parties would not be permitted to offer any evidence or theories of liability or defense that: had not been admitted during the first trial; was not in a Kentucky Rule of Civil Procedure (CR) 26 disclosure; was not contained in records previously admitted; or had not been in a deposition taken prior to trial. During his opening statement on behalf of Dr. Jefferson, attorney Whonsetler stated that Eggemeyer developed an antibiotic resistant staph infection, MRSA, as a result of Dr. Holcomb's treatment. Eggemeyer objected. At the ensuing bench conference, attorney Poppe argued that Whonsetler's statement about MRSA had violated the court's order against raising any new theories. Poppe also stated that Whonsetler had raised a number of other new theories. The judge stated that he thought he had heard a number of new theories; however, he permitted Whonsetler to finish his opening statement. After Whonsetler had finished his opening statement, the judge dismissed the jury for the day and, following a brief discussion, told the parties to be prepared to argue the matter in the morning. We note that Poppe did not request an admonition at that time.
The next morning, Poppe outlined twelve new theories he believed Whonsetler had raised during his opening statement. After an hour long discussion about what constituted a theory, what constituted a fact, and what was or was not new evidence, the court stated that the primary issue was whether Dr. Jefferson had provided appropriate notice to Eggemeyer of the issues being discussed. The court then stated that it was going to rule generally that, if there was no evidence in the record to support Dr. Jefferson's new theories, they would not be admissible. Furthermore, the court stated that it would admonish the jury. Although Poppe asked the court to specifically admonish the jury about each of Whonsetler's "misstatements," the court gave the following general admonition:
Following this admonition, Eggemeyer presented his first witness. The court then recessed for lunch and the judge provided the parties with a more specific outline of his evidentiary ruling from earlier that morning. Although we do not have a copy of that document, we do have a copy of the court's Order as to Rulings at Trial, which was entered after the verdict. Based on our review of the record, that order, set forth in part below, appears to be consistent with what the judge said during the parties' discussions of the issues.
, Smoking, Alcohol—
Only if the pretrial record contains evidence of hypertension, smoking, or alcohol is it admissible at this time.
6. Bone Morphogenic Protein (BMP)—
Defense counsel states that BMP is identical to the term "bone graft". "Bone graft" appears in the pretrial record. Only if the pretrial record contains evidence of BMP as to causation of Plaintiff's damages is it relevant and admissible.
7. Second Plate in Arm "Absolutely Improper"2 —
Testimony or argument as to the propriety or impropriety of applying a second plate regarding causation is not admissible absent pretrial record containing such evidence.
8. Dr. Holcolm's [sic] Antibiotic Caused MRSA3 —
It appears there is no evidence in pretrial record that the antibiotic prescribed by Dr. Holcolm [sic] caused MRSA....
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