Ten Broeck Dupont, Inc. v. Brooks, No. 2006-SC-000484-DG.

• Citation: 283 S.W.3d 705
• Decision Date: 21 May 2009
• Docket Number: No. 2006-SC-000484-DG.
• Parties: TEN BROECK DUPONT, INC. (d/b/a Ten Broeck Hospital), Appellant, v. Artemecia BROOKS, Appellee.
• Court: United States State Supreme Court (Kentucky)

283 S.W.3d 705

TEN BROECK DUPONT, INC. (d/b/a Ten Broeck Hospital), Appellant, v. Artemecia BROOKS, Appellee.

No. 2006-SC-000484-DG.

Supreme Court of Kentucky.

May 21, 2009.

Charles Thomas Hectus, Hectus, Strause, PLLC, Jeffrey August Calabrese, John Tilden Ballantine, Walter L. Sales, Stoll Keenon Ogden, PLLC, Louisville, KY, Larry Allen Sykes, Stoll Keenon Ogden, PLLC, Lexington, KY, Counsel for Appellant.

Gary Robert Hillerich, Kevin Crosby Burke, Roger Dale Warren, Louisville, KY, Irwin M. Ellerin, Ellerin & Associates, Atlanta, GA, Counsel for Appellee.

Carole Douglas Christian, Mitzi Denise Wyrick, Wyatt, Tarrant and Combs, LLP, Louisville, KY, Counsel for Kentucky Hospital Association.

Opinion of the Court by Justice SCOTT.

Upon petition of Appellant, Ten Broeck Dupont, Inc., d/b/a Ten Broeck Hospital (Ten Broeck), we granted discretionary review of the opinion of the Court of Appeals affirming the November 30, 2004, jury judgment of the Jefferson Circuit Court, awarding Plaintiff/Appellee, Artemecia Brooks (Brooks) a judgment of two million ninety-one thousand dollars ($2,091,000) in compensatory and punitive damages against Ten Broeck.

Ten Broeck is a psychiatric hospital located in Louisville, Kentucky where Brooks was voluntarily admitted on January 5, 2001. Brooks continued as an in-patient at Ten Broeck until January 9, 2001, and thereafter remained as a day patient from January 10, 2001, to January 20, 2001. In her action against Ten Broeck, Brooks alleged that during her hospitalization Feotis Gilbert (Gilbert), at the time an orderly of Ten Broeck, forced her to have sexual intercourse. Brooks, however, did not sue Gilbert. He was added later as a third-party defendant by Ten Broeck, but dismissed prior to trial.

The matter was tried before a jury resulting in a verdict for Brooks in the amount of one hundred sixty-one thousand dollars ($161,000) for pain and suffering one hundred thirty thousand dollars ($130,000) for future pain and suffering, and one million eight hundred thousand dollars ($1,800,000) in punitive damages.¹

Ten Broeck alleges that the Court of Appeals erred in its opinion affirming, as the trial court committed underlying error (1) in excluding Brooks' medical records while she was a patient at Ten Broeck, as well as her relevant sexual history under KRE 412, the Kentucky Rape Shield Act, for reasons that said records and sexual history were relevant to the issue of damages; (2) by allowing hearsay testimony from several members of Ten Broeck's Staff and Detective Brad Jeffrey concerning Gilbert's conduct; (3) by refusing to instruct the jury on the definition of rape; (4) by giving an "ordinary care" liability instruction premised upon the "degree of care and skill ordinarily expected of reasonable and prudent hospitals acting under similar circumstances," contrary to an employer's liability in Kentucky for intentional misconduct of an employee; (5) by allowing introduction of Gilbert's misdemeanor arrest records; and (6) in refusing to direct a verdict in favor of Ten Broeck on Brooks' claims for negligent hiring/retention and punitive damages.

Having concluded that the trial court erred in (1) excluding, Brooks' Ten Broeck medical records, as well as evidence of her prior sexual history, for reasons that all of same were highly relevant to the issue of damages and the establishment of her mental and emotional condition just prior to the alleged sexual assault; (2) refusing to instruct the jury on the definition of "rape" ("sexual assault"), thereby depriving Ten Broeck of the defense that the alleged "sexual assault" might have been, as argued by Ten Broeck, a consensual sexual encounter; and (3) giving of an "ordinary care" liability instruction contrary to an employer's liability for the intentional acts of its employees outside the course and scope of their employment, we reverse the opinion of the Court of Appeals in regards to these issues, set aside the judgment, and remand this matter back to the trial court for a new trial.

For reasons that shall be set forth herein, we affirm the Court of Appeals' determinations on (1) the testimony of Ten Broeck's staff, as well as that of Detective Jeffrey, concerning Gilbert's conduct; (2) the introduction of Gilbert's fourteen (14) misdemeanor arrests, and (3) its affirmance of the trial court's denial of directed verdicts for Ten Broeck on Brooks' claims of negligent hiring/retention and punitive damages.

I. The exclusion of Brooks' medical records while a patient at Ten Broeck and evidence of her sexual history pursuant to KRE 412, The Rape Shield Law

We agree with Ten Broeck's contention that the trial court's exclusion of Brooks' medical records while she was a patient at Ten Broeck, as well as evidence of her prior sexual history, pursuant to KRE 412(b)(2), effectively denied it the right to defend itself on the critical issues of (1) whether the sexual activity with Gilbert was consensual, and (2) the issue of Brooks' injury and damages and, thus, constituted error warranting a new trial.

The parties do not dispute that during the 11:00 p.m. to 7:00 a.m. shift on January, 2001, Gilbert and Brooks engaged in oral sex and intercourse. Brooks testified that she refused Gilbert's request for sex on two immediately prior occasions, but on the third such request, Gilbert engaged her in oral sex and "raped" her without her consent. She admits, however, that the sexual discussions that preceded the sexual activity, her denials, and the sexual activity itself did not disturb her sleeping roommate, nor did the nearby nurses' station hear any activity.

Brooks' Ten Broeck medical records disclose that she advised the admitting nurse that her libido had recently increased. The records also reflect that she "liked sex too much" and "had been sexually promiscuous and had unprotected sex with numerous men and with at least one woman." She reported conflicted feelings in regard to her sexual promiscuity, stating that she was bi-sexual and that this condition "stresses her."

The records also reflect that on January 8, 2001, Brooks informed her psychiatrist, Dr. Steve Gibson, that she "had sex in the hospital the previous week." Upon further questioning from Dr. Gibson regarding this statement, and his pointing out to her that she had only been in the hospital since January 5, 2001, she stated that she did not remember where, or when, it occurred. Dr. Gibson discussed this matter again with her on January 9, 2001, whereupon she stated she was not sure whether it had occurred at the hospital or the night before she was admitted.

Ten Broeck's records concerning her stay do not reflect that Brooks claimed, at any time, that she had been "raped" in the hospital. The discharge summary reflects that she felt "100% better" in comparison to when she was admitted, that the group sessions had helped her, and that she had done extremely well in treatment. Upon discharge, Brooks indicated that her primary concern was that she may be bi-sexual and registered concern as to how her boyfriend would react to this.

Later, around January 26, 2001, Brooks told her father that she "had sex" in the hospital. He then contacted an attorney, who advised calling the police, and on January 30, 2001, Gilbert was arrested and charged with raping Brooks. According to Ten Broeck, this was the first time it learned of any rape allegation. Gilbert was acquitted of the criminal charge of rape in a jury trial in August 2004.

Dr. Lisa Goodman testified for Brooks at trial as an expert psychologist. She testified about outcomes associated with sexual assaults "in the general population." In short, she was allowed to testify to a hypothetical damage theory based upon the consequences of an actual rape. Her opinions were based upon damage that a rape could cause an average victim. In contrast, Ten Broeck's expert witness was not allowed to testify on the issue of damages, that Brooks' mother reported that Brooks had been molested at age fourteen (14) by her father, and that her many sexual relationships caused her to express concerns of shame, guilt and lack of self esteem.²

In denying admissibility of Brooks' Ten Broeck medical records, as well as the evidence of her sexual history noted above pursuant to KRE 412, the trial court found "[t]here is a strong probability that evidence of Ms. Brooks' prior sexual conduct, if admitted, could unfairly prejudice the jury." Upon motion for reconsideration, the court again denied same, believing that the "jury will be able to fairly and accurately decide whether Ten Broeck was negligent and whether Ms. Brooks sustained any injuries resulting from its negligence without evidence of her past sexual conduct."

The trial court also denied Ten Broeck an evidentiary hearing on the question of admissibility on grounds that KRE 412(c)(2) "only deals with evidence sought to be introduced under KRE 412(b). That section deals with particular acts of sexual conduct which are sought to be introduced to prove that the accused was not the perpetrator. Such is not the case herein."

A. KRE 412

KRE 412, in its entirety, indicates as follows:

KRE 412 Rape and similar cases; admissibility of victim's character and behavior

(a) Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim's sexual predisposition.

(b) Exceptions:

(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

(B) evidence of specific instances of...