Washington v. Goodman

• Decision Date: 01 May 1992
• Docket Number: No. 91-CA-0470-MR,91-CA-0470-MR
• Citation: 830 S.W.2d 398
• Parties: Essie WASHINGTON as Executrix of the Estate of Fielding Jones, Appellant, v. Robert P. GOODMAN, M.D., Appellee.
• Court: Kentucky Court of Appeals

Page 398

830 S.W.2d 398

Essie WASHINGTON as Executrix of the Estate of Fielding Jones, Appellant, v. Robert P. GOODMAN, M.D., Appellee.

No. 91-CA-0470-MR.

Court of Appeals of Kentucky.

May 1, 1992.

Joe F. Childers, Phillip J. Shepherd, Shepherd & Childers, Frankfort, for appellant.

John Famularo, James Taylor, Stites & Harbison, Lexington, for appellee.

Before DYCHE, MILLER and SCHRODER, JJ.

MILLER, Judge.

Essie Washington, as executrix of the estate of Fielding Jones, brings this appeal from a judgment of the Fayette Circuit Court entered upon an adverse jury verdict. We remand with directions.

The facts are these: On or about July 7, 1987, Essie's decedent, Fielding Jones, an elderly black man, fell at home and suffered a fracture of his right hip. He was taken to Central Baptist Hospital, Lexington, Kentucky, where Dr. Robert P. Goodman (Goodman), a white orthopedic surgeon, surgically pinned the broken hip with a hip nail. Jones was discharged on July 31, 1987, but was readmitted on August 4, 1987, when the hip became dislocated. At that time, it was discovered that Jones had contracted an infection. He was treated and discharged to the Lexington Manor Nursing Home (Lexington Manor) on September 14, 1987. Although he continued to receive medication for the infection, it failed to respond. On October 28, 1989, his right leg was amputated.

On September 16, 1988, Jones sued Dr. Goodman, alleging negligence in the care and treatment received by him. ¹ After Jones's death on June 22, 1990, his action was revived in the name of his executrix, Essie Washington. Kentucky Revised Statute (KRS) 411.140. The case proceeded to trial on December 3, 1990, and resulted in a verdict for Goodman. This appeal follows.

Essie raises the following issues on appeal: (1) Goodman improperly used his peremptory challenges to exclude black jurors; (2) the testimony of Goodman's expert, Dr. Michael Hattwick, should have been excluded; and (3) the trial court erred in not directing a verdict in her favor. We address the issues in reverse order.

In addressing the trial court's refusal to grant a directed verdict, we deem Essie's next allegation of error encompasses a variety of objections to the testimony of Goodman's expert, Dr. Michael Hattwick (Hattwick). Apparently, Hattwick had been identified by Central Baptist Hospital, prior to its dismissal, as an expert in the field of infectious diseases. However, Hattwick was a practicing internist. Essie, therefore, objects to Hattwick's qualifications to testify regarding the detection and treatment of Jones's infection. She also objects that Hattwick's testimony was "duplicative," representing "needless presentation of cumulative evidence." Finally, Essie complains that Hattwick was not identified by Goodman (as one of his experts) in a timely manner and, consequently, his testimony, which included references to Jones's claims against Central Baptist Hospital and Lexington Manor, should have been excluded.

                that reasonable minds would have differed on the issue of negligence, and the trial court therefore properly submitted the case to the jury.  Where the evidence is replete with conflicts from beginning to end, the resolution of those conflicts, as well as the resolution of questions of credibility of the many witnesses, is for the jury--not the trial judge.  The standard for granting a motion for directed verdict is clearly articulated in Taylor v. Kennedy, Ky.App., 700 S.W.2d 415 (1985).  A trial court is precluded from entering a directed verdict unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable minds could differ.  Id. at 416.   We believe the trial judge properly denied Essie's motion for a directed verdict
                

We assign no merit to Essie's complaints relative to Hattwick's testimony. As there are no precise standards for qualification of an expert, it has long been that the decision as to qualifications of a witness as an expert rests within the discretion of the trial court. Any lack of specialized training goes only to the weight, not to the competency, of the evidence. See Arndale v. Parndell Peay, Ky., 411 S.W.2d 473 (1967); Ingersoll-Rand Co. v. Rice, Ky.App., 775 S.W.2d 924 (1989); and Lee v. Butler, Ky.App., 605 S.W.2d 20 (1979). Furthermore, a trial court has the power to control the course of litigation, including control of the amount of evidence produced on a particular point. Woods v. Commonwealth, Ky., 305 S.W.2d 935 (1957), and Johnson v. May, 307 Ky. 399, 211 S.W.2d 135 (1948). The overall fairness of a trial is within the sound discretion of the trial judge. We find no error.

We turn now to Essie's contention that Goodman's use of peremptory challenges ² to exclude black jurors was impermissible. Following voir dire, but before the parties actually exercised their peremptory challenges, Essie requested the trial court to apply to jury selection the rule of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (holding that the Fourteenth Amendment precludes peremptory challenges predicated upon race, and that once a defendant in a criminal case makes a prima facie showing of discrimination To create the issue presented for our consideration, approximately six months after Essie's trial, the United States Supreme Court, in Edmonson v. Leesville Concrete Co., Inc., --- U.S. ----, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991), extended the Batson rule to civil cases. The basis of the extension is that private litigants exercising peremptory challenges are involved in state action, thus implicating the Fourteenth Amendment.

the burden shifts to the prosecution to demonstrate a neutral explanation for the challenges). The trial court denied application of the Batson rule, stating the rule was limited to criminal cases. After the court's ruling, Goodman used his three peremptory challenges to strike two black jurors and one white. A third black juror was seated to hear the case. It appears that after the conclusion of the case and before submission (there having been seated thirteen jurors), the single black juror was removed from the panel by lot, thus leaving the decision in the hands of twelve white jurors.

Having protected the record at trial, Essie on this direct appeal contends that the Edmonson decision should be retroactively applied. Such an application would require that the trial court reconsider the matter to determine whether Essie can make a prima facie case of discrimination. The burden would then shift to Goodman to demonstrate a "neutral explanation" for employing two of his three allocated peremptory challenges to exclude members of the black race.

We agree with Essie that her decedent, Jones, would have been entitled to the benefit of Edmonson. Because the rule enunciated in that case involves the extension of a federal right, we believe its fruits are mandated by the Supreme...