RAWAA FADHEL, as Parent and Next Friend of KAWTHAR O. ALI, a Minor. v. PLAINTIFFS MEMORANDUM IN SUPPORT OF MOTION FOR NEW TRIAL

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1 NO. 14-CI JEFFERSON CIRCUIT COURT DIVISION NINE (9) HONORABLE JUDITH McDONALD-BURKMAN RAWAA FADHEL, as Parent and Next Friend of KAWTHAR O. ALI, a Minor PLAINTIFF v. PLAINTIFFS MEMORANDUM IN SUPPORT OF MOTION FOR NEW TRIAL NORTON HOSPITALS, INC. D/B/A KOSAIR CHILDREN S HOSPITAL, et al. DEFENDANTS *** *** *** *** Plaintiffs, Rawaa Fadhel, as Parent and Next Friend of Kawthar Ali, a Minor, request that this Court grant their Motion for New Trial pursuant to Plaintiffs seek a new trial due to the following errors before or during the trial proceedings. A. The Court erred in admitting hearsay evidence related to the alleged cultural and religious reasons why the Plaintiffs family wanted to limit Kawthar Ali s surgery to one rib resection; B. The Court erred in restricting Plaintiffs Voir Dire to an hour; C. The Court erred in admitting page112, line 1 through page 113, line 5 of Dr. Zaria Murrell s Video Deposition. D. Admission of Curriculum Vitae of Defense Expert Witnesses; and E. Failure to give an Instruction on the Burden of Proof, which was requested by the Plaintiffs. This matter was tried to a jury from April 23, 2018 through April 27, 2018, wherein the jury returned a verdict in favor of the Defendants. Judgment was entered on May 3, 2018 (See Exhibit 1). MEM : of Filed 14-CI /14/2018 David L. Nicholson, Jefferson Circuit Clerk

2 I. STATEMENT OF FACTS A. SUMMARY OF CASE This is a medical negligence action arising out of the Defendants, Cynthia Downard, M.D. and University Pediatric Surgery Associates, P.S.C. s failure to exercise the degree of care and skill required in performing a rib resection on a child with Ewing s Sarcoma growing out of her sixth rib. As a result of this failure, Kawthar Ali was forced to undergo an additional rib resection, a major, invasive procedure that caused her significant pain and extended her recovery. Kawthar Ali was diagnosed with Ewing s Sarcoma in September of She was treated by a number of Pediatric Specialists at the University of Louisville Hospital and University Pediatric Surgery Associates, P.S.C., including Dr. Cynthia Downard. Her treatment required that she receive a number of chemotherapy treatments followed local control surgical removal of the source of the tumor. After six chemotherapy treatments, the tumor board at the University of Louisville convened and recommended that, unless there was direct involvement with either the overlying or underlying rib, Dr. Downard should only perform a rib resection of Kawthar s right sixth rib. Briefly after Kawthar s surgery began, Dr. Downard admitted that, on December 26, 2012, she misidentified and removed the seventh rib, rather than the sixth. She also admitted that the tumor mass was attached to the actual sixth rib, what she believed at the time was the fifth. After Kawthar s December 26, 2012 surgery, X-ray and CT scans confirmed that the seventh rib, not the sixth, was removed. Kawthar lay in her hospital bed in agonizing pain for three days. On December 29, 2012, Dr. Mary Fallat removed performed an additional rib resection, finally removing Kawthar s sixth rib. MEM : of Filed 14-CI /14/ David L. Nicholson, Jefferson Circuit Clerk

3 B. PRELIMINARY MOTIONS Prior to the commencement of Trial, the Court ruled on several preliminary motions and motions in limine. On the morning of trial, Plaintiffs moved orally that the Court exclude hearsay evidence related to the alleged cultural and religious reasons why Kawthar Ali s family wanted to limit her surgery to one rib resection. The Court denied this Motion. Plaintiff also moved, in limine to prohibit the admission of all expert Curriculum Vitae as hearsay evidence. The Court denied this Motion. C. JURY SELECTION The jury was selected on Monday, April 23, Prior to the selection of the jury, the Court imposed a time limit of one hour on both the Plaintiffs and Defendant. Plaintiffs attempted to ask for more time, citing the complexity and nature of medical malpractice cases; nevertheless, the Court maintained its restriction. The Court informed Plaintiffs Counsel, during Voir dire, that his allotted time expired. Plaintiffs Counsel asked the approach the Court and asked the Court for more time; citing that there were important issues such as past jury experience and whether or not anyone has ever had any experience with the criminal or civil justice system. The Court denied Counsel s request for additional time to address those issues. D. TRIAL 1. Jury Instructions. Plaintiffs Proposed Jury Instructions contained an instruction on Burden of Proof. The Court did not include an instruction on the Burden of Proof in the instructions submitted to the jury. MEM : of Filed 14-CI /14/ David L. Nicholson, Jefferson Circuit Clerk

4 2. Dr. Murrell s Video Deposition. Portions of Dr. Murrell s video deposition were played at trial. Before the jury saw the video deposition, Plaintiffs made a motion to exclude page 112, line 1 through page 113, line 5 as speculative, substantially more prejudicial than probative and improper character evidence. There, Dr. Murrell testified about her history of taking care of Muslim patients before in New York, and their belief that scars lessen the worth of the patient. The Court denied Plaintiffs Motion to exclude this portion of Dr. Murrell s video testimony, citing the reasoning that she gave for admitting the hearsay evidence during the Tumor Board meeting. II. ISSUES OF LAW Plaintiffs move for a new trial pursuant to CR (a), (b), (c), (f), and (h). Specifically, Plaintiffs were prevented from having a fair trial for the reasons set forth below. Errors occurring at trial and objected to prejudiced Plaintiffs substantial rights and mandate reversal and a new trial. Smith v. McMillan, 841 S.W.2d 172 (Ky. 1992); Risen v. Pierce, 807 S.W.2d 945 (Ky. 1991); Engle v. Baptist Healthcare Sys., Inc., 336 S.W.3d 116 (Ky. App. 2011). A. Admission of Hearsay Evidence About Alleged Cultural Concerns of Kawthar Ali s Family was Improper. The Court erred in denying Plaintiffs Motion to exclude hearsay evidence related to what was allegedly said about the family of Kawthar Ali s cultural and/or religious reasons for limiting the surgery to one rib resection. The Defense argued that information related to the Ali s alleged cultural and/or religious concerns about limiting the rib resection was important in formulating the Tumor Board and Dr. Downard s plan for surgery. The Court agreed, orally holding that what was allegedly said was not offered for the truth of the matter asserted, but rather to show the actions of Dr. Downard after the Tumor Board meeting. MEM : of Filed 14-CI /14/ David L. Nicholson, Jefferson Circuit Clerk

5 Plaintiffs asked, if the Court was holding that the alleged cultural/religious concerns of the Ali family weren t being offered for the truth of the matter asserted, for an admonition stating as much to the jury. The Court said that it wasn t inclined to do so, because it didn t want to bring more attention to the issue. Despite the arguments made by Defense Counsel and the Court s holding, the improper hearsay evidence was offered for the truth of the matter asserted. That is, the Defense used unsubstantiated concerns attributed to the Ali family to obfuscate their responsibility. The Defense argued that part of the reason why Dr. Downard did not remove the actual sixth rib was because of the wishes of the Ali family. The Defense could not articulate who, in the Tumor Board meeting, actually was the original proponent of the improper hearsay, nor could they articulate what was said. This ambiguity made it impossible for the Plaintiffs to confront the original statement made and challenge its voracity. B. The Court Erred in Imposing a Time Restriction on Plaintiff s Jury Selection. The purpose of Voir dire is two-fold. First, to facilitate the identification of an impartial jury whose minds are free and clear from all interest, bias, or prejudice. Newcomb, 410 S.W.3d at 86. Second, to enable trial counsel to effectively and intelligently exercise their right to preemptory challenges and challenges for cause. Hayes v. Commonwealth, 175 S.W.3d 574, 583 (Ky. 2005). It is within the trial court s discretion to limit voir dire, however, that discretion is not boundless. Id. at 583. Without an adequate voir dire the trial judge s responsibility to remove prospective jurors who will not be able to impartially follow the court s instructions and evaluate the evidence cannot be fulfilled. Hence, the exercise of [the trial MEM : of Filed 14-CI /14/ David L. Nicholson, Jefferson Circuit Clerk

6 court s] discretion, and the restriction upon inquiries at the request of counsel [are] subject to the essential demands of fairness. Id. (quoting Morgan v. Illinois, 504 U.S. 719, (1992)). In Harris, the trial court prevented counsel for defendants from questioning potential jurors during voir dire regarding whether they would hold any prejudice against the defendants if they exercised their Fifth Amendment right not to testify on their own behalf. Id. at 584. The Kentucky Supreme Court noted that if any jurors expressed a prejudice regarding a defendants decision not to testify on their own behalf, then the trial court would be required to strike those jurors for cause. Id. at 585. But how could defense counsel identify jurors holding such prejudice if defense counsel is precluded from making the relevant inquiry on voir dire? Id. The Court ultimately held that the trial court s prohibition against such inquiry was an abuse of discretion because it denied the defendants a fair and impartial jury. Id. at 586. In the present case, one hour was not adequate time to properly conduct Voir dire. Plaintiffs spent a significant amount of time revealing potential biases of several witnesses, some of which were struck for cause. Limiting the Plaintiffs time to inquire about juror s potential prejudices in the civil justice system precluded him from exposing to the Court jurors who express a bias against the Plaintiffs. C. The Court Erred in Admitting Page 112, Line 1 through Page 113, Line 5 of Dr. Zaria Murrell s Video Deposition. Dr. Murrell s testimony in page 112, line 1 through page 133, line 5 was substantially more prejudicial than probative and improper character evidence (See Exhibit 2). Dr. Murrell, in short, testified that she s wasn t sure what was said between the Ali family and Dr. Downard or the Oncologist, but that, in her experience, scars are a big deal with Middle Eastern or Muslim patients. MEM : of Filed 14-CI /14/ David L. Nicholson, Jefferson Circuit Clerk

7 Evidence of a person s character or a trait of character is not admissible for the purpose of proving action in conformity therewith (KRE 404(a)). There are three exceptions under which such character evidence may be admissible. Two such exceptions (KRE 404(a)(1) and 404(a)(2)) apply exclusively to criminal cases and, as such, do not apply to this case. The last exception, permits the admission only if it relates to impeachment, is relevant to the reputation of a witnesses character, or impeachment by evidence of conviction of a crime. Dr. Murrell s testimony was played to the jury before anyone from the Ali family testified, it could not be used to impeach a prior inconsistent statement. One witnesses experience with a group of people, whether it be Middle Eastern or Muslim, cannot be offered as evidence of a specific person s reputation in the community. Allowing such an illogical evidentiary connection would, in essence, permit unfair, unfounded prejudicial assumptions. The prejudicial effect of Dr. Murrell s opinion about her former patients who were Middle Eastern or Muslim also substantially outweighs any probative value (KRE 403). D. The Court Erred in Admitting the Curriculum Vitae of the Defense Expert Witnesses. There was no agreement prior to trial to admit the Curriculum Vitae of any expert. It is well recognized that, like expert reports, Curriculum Vitae contain hearsay evidence and also contain much irrelevant evidence that does not bear on the facts of a particular case. Alexie v. United States, 2009 WL (D. Alaska) Hearsay is not admissible under KRE 801 or KRE 802 unless an exception to hearsay pursuant to KRE 803. Like reports of experts, CVs do not fit under this exception. See also Mahnke v. Washington Metropolitan Area Transit Authority, 821 F. Supp. 2d 125 (D. D.C. 2011). MEM : of Filed 14-CI /14/ David L. Nicholson, Jefferson Circuit Clerk

8 In addition to the hearsay objection, Curriculum Vitae are largely irrelevant and concern issues that do not bear upon the issues in a particular case. An attempt to bolster a witness by placing essentially character evidence before the jury should not be permitted pursuant to KRE 608 and 403. The cumulative effect of admitting the Curriculum Vitae of the Defense s expert witnesses is palpable error. E. Failure to Give Instruction on Burden of Proof. Plaintiffs acknowledge that Kentucky follows the philosophy of bare bones instructions. Traditionally, Kentucky does not instruct jurors on the burden of proof or preponderance of the evidence. Despite the fact that when a case goes up on appeal the briefs of the parties often advise the court about the standard of review, we do not instruct jurors about what the standard of review is in civil cases. The lack of an instruction on burden of proof and the lack of an instruction on the preponderance of the evidence deprives the jury of basic information needed to form an opinion in a civil case. The lack of such instructions are a lack of bones so to speak. Universally throughout the country jurors are instructed on the burden of proof and preponderance of the evidence. A typical instruction would look like what he plaintiff submitted such as follows: Plaintiff has the burden to prove her case by a preponderance of the evidence. Preponderance means greater weight of the evidence. A greater number of witnesses testifying to a fact on one side or a greater quantity of evidence introduced on one side is not necessarily of the greater weight. For a fact to be proven by a preponderance of the evidence, you must find that the fact is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more believable. If, on any issue in the case, you cannot decide whether a fact is more likely true than not true, you cannot find that it has been proven. You may have heard of the term proof beyond a reasonable doubt. That is a stricter standard which applies in criminal cases. It does not apply in civil cases such as this. You should, therefore, put it out of your minds. MEM : of Filed 14-CI /14/ David L. Nicholson, Jefferson Circuit Clerk

9 Jury confusion about the standards it uses to decide is very real. Sakler v. Anesthesiology Assocs., P.S.C., 50 S.W.3d 210 (Ky. App. 2001). In this case, the Jury Foreperson informed the Court that there was some confusion about the burden of proof. This, alone, is proof that the jury needed some guidance or clarification about the level by which the Plaintiffs had to prove their case. Both the Court and Counsel present the Jury Instructions as the law to the Jury. If the level to which the Plaintiffs must prove their case is not explicitly articulated, there will be confusion as there was in this case. III. CONCLUSION For the foregoing reasons, Plaintiffs respectfully requests that this Court grant this Motion and order a new trial. A tender Order is attached. Respectfully submitted, /s/ H. Philip Grossman H. Philip Grossman Frederick W. Moore, III GROSSMAN & MOORE, PLLC One Riverfront Plaza 401 W. Main Street, Suite 1810 Louisville, KY (502) (502) (facsimile) pgrossman@gminjurylaw.com fredmoore@gminjurylaw.com attorneyservice@gminjurylaw.com Counsel for Plaintiffs MEM : of Filed 14-CI /14/ David L. Nicholson, Jefferson Circuit Clerk

10 CERTIFICATE OF SERVICE I hereby certify that on the 14th day of May, 2018, I electronically filed the foregoing with the Clerk of the Court using the KYeCourts CourtNet 2.0 system. The following were served via electronic means in accordance with Rule 5.02(2) and/or the KYeCourts CourtNet 2.0 system: Donald K. Brown, Jr. Michael B. Dailey O BRYAN, BROWN & TONER, PLLC 401 South Fourth Street Suite 2200 Louisville, KY brownd@obtlaw.com daileym@obtlaw.com mchughk@obtlaw.com Counsel for University Pediatric Surgery Associates, PSC and Cynthia Downard, M.D. /s/ H. Philip Grossman Counsel for Plaintiffs MEM : of Filed 14-CI /14/ David L. Nicholson, Jefferson Circuit Clerk