Commonwealth of Kentucky Court of Appeals

Transcription

1 RENDERED: MAY 5, 2017; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO CA MR MALLORY MAE SIMS, AN INFANT, BY HER PARENT AND NEXT FRIEND, DENISE SIMS, MADISON R. SIMS, DECEASED, BY DENISE SIMS, ADMINISTRATOR OF THE ESTATE, DENISE SIMS INDIVIDUALLY, AND TIMOTHY SIMS APPELLANTS APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MITCH PERRY, JUDGE ACTION NO. 09-CI NORTON HEALTHCARE, INC. D/B/A NORTON HOSPITAL, MARCELLO PIETRANTONI, M.D., AND KENTUCKIANA PERINATOLOGY, P.S.C. APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: DIXON, J. LAMBERT AND MAZE, JUDGES. DIXON, JUDGE: Appellants, Mallory Mae Sims, an infant, by her parent and next friend, Denise Sims, Madison Sims, deceased, by Denise Sims, Administrator

2 of the Estate, and Denise Sims and Timothy Sims, individually, appeal from a judgment of the Jefferson Circuit Court following a jury trial wherein the jury found in favor of Appellees, Norton Healthcare, Inc. d/b/a Norton Hospital, Marcello Pietrantoni, M.D., and Kentuckiana Perinatology, P.S.C. Finding no error, we affirm. On December 10, 2007, Denise Sims was admitted to Norton Hospital in Louisville, Kentucky by her obstetrician, Dr. Marcello Pietrantoni, for inpatient monitoring of her twenty-five-week gestation monoamniotic-monochorionic twin pregnancy. A monoamniotic-monochorionic twin pregnancy is an extremely rare, high-risk pregnancy in which the babies have separate umbilical cords but share a single placental and amniotic sac. From December 10th until December 19th, the fetal monitoring and assessments were within normal ranges, and both babies were noted to have positive heart acceleration. Unfortunately, early on December 20th, the nursing staff encountered difficulty tracing the fetal heart tones of both babies. Dr. Pietrantoni was immediately notified and, when he arrived at the hospital, he encountered the same tracing difficulty. An ultrasound confirmed that one of babies (subsequently named Madison) had, in fact, died. Sims thereafter met with a neonatologist, Dr. Joan Stapp, who discussed the risks of delivering the other twin prematurely at twenty-six weeks and six days gestation. However, later on December 20th when the fetal monitor indicated non-reassuring findings, the surviving twin (later named Mallory) was delivered via caesarean section. Mallory -2-

3 required aggressive resuscitation at birth and was later diagnosed with cerebral palsy. On December 10, 2009, Appellants filed a medical malpractice action in the Jefferson Circuit Court against Dr. Pietrantoni, Kentuckiana Perinatology, PSC, and Norton Hospital, claiming that Appellees medical negligence resulted in the wrongful death of Madison Sims and caused serious neurological injury to Mallory Sims. Following a lengthy trial in June 2014, a jury returned a unanimous verdict in favor of Appellees. This appeal ensued. Additional facts are set forth as necessary in the course of this opinion. Appellants first argue that the trial court erred by improperly denying them follow-up individual voir dire for challenged jurors to further investigate potential bias or conflict. Specifically, Appellants claim that the trial court informed the parties that all individual for-cause voir dire would take place at the end of the initial voir dire due to the size of the venire and the trial court s desire to speed up the process. Appellants allege, however, that despite the trial court s directive, it subsequently did not allow them to conduct any further questioning. As a result, Appellants contend that the trial court cheated and robbed [them] of effective and proper voir dire to [their] extreme prejudice. A review of the record wholly refutes Appellants allegations. It is well-settled that [v]oir dire is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion. -3-

4 Sherroan v. Commonwealth, 142 S.W.3d 7, 15 (Ky. 2004) (Quoting Ristaino v. Ross, 424 U.S. 589, , 96 S.Ct. 1017, , 47 L.Ed.2d 258 (1976)). However, the trial court s discretion is not without limitation. Hayes v. Commonwealth, 175 S.W.3d 574, 583 (Ky. 2005). A voir dire examination must be conducted in a manner that allows the parties to effectively and intelligently exercise their right to peremptory challenges and challenges for cause. Id. (citation omitted). This Court reviews a trial court s decision to restrict voir dire for an abuse of discretion. Id. The record reveals that after Appellants struck a juror for cause during the midst of group voir dire, the following exchange occurred between the trial court and Appellants counsel: Mr. Morris: Judge, do you want us to challenge for cause at the time or at the end? Trial Court: There s so many. If it s patently obvious, let s do it quickly. Mr. Morris: Okay Trial Court: But usually, I like to do it at the end. At the conclusion of the voir dire, an additional exchange took place: Trial Court: And with that, let s go for cause first, then hardships. The first for the Plaintiff. Mr. Morris: Your Honor, we will call out the ones we believe for cause and then I will call out the ones I believe there may be a follow up voir dire necessary. I -4-

5 want to put that on the record to see if we re possible to do that before we call out. Trial Court: With this number of people, that s highly unlikely. I won t agree with that, so let s jump right to it. Mr. Morris: I just wanted to put that on the record, Your Honor. There is simply nothing in the first exchange to support Appellant s claim that the trial court instructed them to conduct any follow-up voir dire at the end of general voir dire. Rather, the trial court clearly explained that it wanted to hold counsel s challenges for cause until the end. If counsel was confused, they should have sought clarification. Attorney Maston s voir dire lasted a little over an hour and at no point was he limited in his ability to ask questions. Moreover, defense counsel followed up with any individuals they deemed necessary throughout the voir dire, clearly indicating that they did not believe the trial court had in any manner limited follow-up questioning. The second exchange further undermines Appellants claim that there was an agreement to allow follow-up voir dire after initial voir dire. The fact that counsel states that he just wants to put it on the record that he was asking for additional voir dire demonstrates that such was not previously contemplated by the trial court. And again, at no time did counsel complain that they thought they would be permitted additional questioning or in any manner indicate that they were prejudiced by the trial court s ruling. -5-

6 We likewise find no merit in Appellants claims that they were prejudiced by their inability to ask follow-up questions. Appellants claim that additional voir dire was required to determine the impartiality of five jurors. However, of those five, only Juror 53 actually sat on the jury. Appellant argues that they were prejudiced by Juror 53 because she was a nurse who worked for an oral surgeon and her friend s son was in medical school, both of which demonstrated her inability to be impartial. We must agree with Appellees that Appellants have failed to preserve any issue regarding Juror 53. In Gabbard v. Commonwealth, 297 S.W.3d 844, 854 (Ky. 2009), our Supreme Court held that in order to complain on appeal that he was denied a peremptory challenge by a trial judge s erroneous failure to grant a for-cause strike, the defendant must identify on his strike sheet any additional jurors he would have struck. The Court subsequently applied this rule to civil cases in Grubb v. Norton Hospitals, Inc., 401 S.W.3d 483, 488 (Ky. 2013). The rationale, as explained in Hurt v. Commonwealth, 409 S.W.3d 327 (Ky. 2013), is as follows: The practice of designating jurors on a strike sheet preserves the challenge by indicating before the seating of the jury exactly who the party was unable to strike as a result of the trial court s allegedly erroneous failure to excuse a juror for cause. Then if jurors whom the party wished to use a peremptory challenge against actually serve on the jury, it is clear such a jury is not the jury [the] party was entitled to select. -6-

7 Id. at 329. (Quoting Shane v. Commonwealth, 243 S.W.3d 336, 340 (Ky. 2007)). The record herein contains no indication as to who counsel would have struck, orally or on the strike sheet, had Juror 53 been removed for cause. Finding this issue to be preserved merely because Appellants now claim that they were prejudiced by Juror 53 s inclusion on the panel would effectively eviscerate the Court s holding in Gabbard. As such, [b]ecause Appellant[s]... failed to assert that [they] would have peremptorily struck another prospective juror, this issue was not preserved[.] McDaniel v. Commonwealth, 415 S.W.3d 643, (Ky. 2013); CR Moreover, notwithstanding the procedural deficiency, Appellants have not pointed to anything that would suggest Juror 53 was inherently biased. After Juror 53 stated that she worked for an oral surgeon and her friend that was a nurse had a son entering medical school, the following exchange took place: Mr. Maston: So it sounds to me like you would be rooting for her son and her and everything a little bit in this case. Would it be difficult for you to put that completely aside and just listen to what s going to be talked about here or just starting out, you kind of have the like, well, they can prove their case, but maybe they just [sic] a little hurdle they have to get over before they re going to get me to go with them. Do you have any feeling like this at all? Juror 53: No. I could listen to the evidence. 1 Kentucky Rules of Civil Procedure. -7-

8 Even if we were inclined to agree that Juror 53 s employment with an oral surgeon and friendship with a nurse in and of itself created a bias, which we are not, we would nevertheless conclude that Juror 53 confirmed through her answers that she could render a fair and impartial decision. Absent any further evidence, Appellants cannot demonstrate that they were prejudiced by Juror 53 s inclusion on the jury. Appellants next challenge the trial court s ruling that each Appellee was entitled to four peremptory challenges. Appellants contend that Appellees defense theories were not antagonistic and the simple existence of an apportionment of liability instruction did not justify a finding of antagonistic interests. We disagree. The allocation of peremptory challenges is governed by CR 47.03(1), which provides, in pertinent part, that [i]n civil cases each opposing side shall have three peremptory challenges, but co-parties having antagonistic interests shall have three peremptory challenges each. Part (2) of the rule provides that [i]f one or two additional jurors are called, the number of peremptory challenges for each side and antagonistic co-party shall be increased by one. A trial court s determination that antagonistic interests exists for the purpose of allocating peremptory challenges is to be reviewed for an abuse of discretion. Sommerkamp v. Linton, 114 S.W.3d 811, 815 (Ky. 2003). Under this standard, we review whether the trial judge s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). -8-

9 In Sommerkamp, our Supreme Court identified three general factors a trial court should consider in ascertaining whether co-parties have antagonistic interests within the meaning of CR 47.03: 1) whether the co-parties 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. Id. at 815 (citations omitted). Further, the Court set forth other additional 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. Clearly, Appellees were represented by separate counsel prior to and during trial, and continue to retain separate counsel for this appeal. Further, while Appellees defense theories and expert witnesses, at times, intertwined and overlapped, their interests were not wholly aligned. For example, while the hospital nurses were accused of negligent monitoring and failing to notify Dr. Pietrantoni of certain developments, the hospital asserted that Dr. Pietrantoni was already aware of all pertinent information and that it was ultimately his responsibility to make the medical decisions, not the nurses. As such, they did not share a wholly common defense theory. [T]he requirement that the parties be antagonistic does not preclude their being in agreement on some points of proof. Bowman ex rel. Bowman v. Perkins, 135 S.W.3d 399, 401 (Ky. 2004). -9-

10 We also agree with the trial court that the inherently antagonistic framework of apportionment alone provides sufficient justification to award separate peremptory challenges. Bayless v. Boyer, 180 S.W.3d 439, 448 (Ky. 2005). Inherent in Kentucky s law governing apportionment, KRS , is that the interests of codefendants may be considered antagonistic. Sommerkamp, 114 S.W.3d at 816. The Sommerkamp Court noted, Id. The principles of apportionment do not require an all or nothing defense by the codefendants in order to establish antagonism. The apportionment system results in each coparty defendant 1) trying to convince a jury that they are not at all responsible for the injuries, and 2) in the event that the jury does find them responsible for a portion of the claims, trying to minimize that portion by casting blame on the other codefendants. The system is inherently antagonistic because it requires codefendants to attempt to shift responsibility to each other. We conclude that the trial court correctly found that antagonism existed between Appellees and, therefore, acted within its discretion by permitting them to exercise separate peremptory challenges. Next, Appellants argue that the trial court erred by prohibiting them from impeaching Dr. Pietrantoni with his deposition testimony. Specifically, Bruce Maston, one of the two attorneys who represented Appellants at trial, holds both Juris Doctorate and Doctor of Medicine degrees. Apparently, Mr. Maston maintained a website during the pendency of the litigation herein that contained 2 Kentucky Revised Statues. -10-

11 information regarding monoamniotic monochorionic twins. During Dr. Pietrantoni s deposition, he recalled his first office visit with Denise Sims, which included a discussion of the game plan for her prenatal care. Dr. Pietrantoni then commented to Mr. Maston, And much to my surprise your website and my game plan, without ever knowing you, are dead on. I found it quite fascinating. A lot of common sense there. 3 Subsequently, when Dr. Pietrantoni testified at trial that there are no specific guidelines or an established standard of care applicable to monoamniotic, monochorionic twins, Mr. Maston sought to use his own website to establish the standard of care and then impeach Dr. Pietrantoni by showing that he had previously acknowledged the standard of care during his deposition. Essentially, Mr. Maston argued that Dr. Pietrantoni had agreed that the website set forth an applicable standard of care, yet testified at trial that no established standard existed in an effort to justify why he did not follow it. In denying Mr. Maston s request to admit portions of his website, the trial court explained, [A] lawyer in Kentucky cannot be both an advocate and a witness in the same case, and offering your website as evidence turns you, sir, into a witness, and that is not permissible. The trial court did rule that Appellants 3 Dr. Pietrantoni clarified that that he did not review the website until it was sent to him as an exhibit to Denise Sims deposition. He did not consult it and it played no role during his treatment of Ms. Sims. -11-

12 could present the website as evidence by avowal but were not permitted to question Dr. Pietrantoni about the standard of care contained on the website. At the outset, Appellees point out that because Appellants chose not to present the evidence by avowal, this issue is not preserved for our review. See Bowman, 135 S.W.3d at 403. ( [A] party must offer an avowal by the witness in order to preserve for appellate review an issue concerning the exclusion of evidence. ). Regardless of the procedural deficiency, we find this issue wholly lacking in merit. First and foremost, Appellants counsel cannot set the standard of care through his own website. Under Kentucky law, a plaintiff alleging medical malpractice is generally required to put forth expert testimony to show that the defendant medical provider failed to conform to the applicable standard of care. See Blankenship v. Collier, 302 S.W.3d 665, 670 (Ky. 2010). Mr. Maston was Appellants trial counsel, not an expert witness. Second, although we are unable to review the website, it is undisputed that Mr. Maston is an internist, not an OB/GYN or neonatologist, and his website is nothing more than his opinions on monoamniotic monochorionic pregnancies and how they should be handled. The website was not a learned treatise nor could have been established as such. We are of the opinion that Appellants argument is little more than a plea to allow their counsel, in a case involving a very rare condition in which the experts agree there is no established standard of care, to circumvent the medical -12-

13 experts and establish their own standard of care and then attempt to impeach Dr. Pietrantoni based on said standard. We must agree with Appellees that such is simply absurd. The trial court clearly acted within its discretion by prohibiting any reference to the website. Finally, Appellants argue that the trial court erred by dismissing the consortium claims of Denise and Timothy Sims, finding that they were timebarred. Appellants argue that loss of consortium claims may arise as independent actions or may be asserted as a special damage under a wrongful death suit. They contend that consortium claims filed as special damages should be subject to the longer statutory filing periods of wrongful death claims. We must disagree. In Kentucky, a parent s right to recover damages for loss of a minor child s consortium is established by statute. KRS provides: In a wrongful death action in which the decedent was a minor child, the surviving parent, or parents, may recover for loss of affection and companionship that would have been derived from such child during its minority, in addition to all other elements of the damage usually recoverable in a wrongful death action. Under KRS (1)(a), [a]n action for an injury to the person of the plaintiff, or of her husband, his wife, child, ward, apprentice, or servant[,] must be commenced within one year after the cause of action accrues. In Southeastern Kentucky Baptist Hospital, Inc. v. Gaylor, 756 S.W.2d 467 (Ky. 1988), a mother who delivered a stillborn fetus filed a medical malpractice action against a hospital -13-

14 and her obstetrician asserting (1) her individual claim for loss of consortium and (2) a wrongful death claim on behalf of the child s estate. Relying on the language of KRS (a) and (e), the Kentucky Supreme Court unequivocally held that the mother s action for loss of consortium of her child in a wrongful death case was barred by the one-year statute of limitations because she brought the case twenty months after the still birth. Id. at 469. A panel of this Court in the unpublished decision in Potter v. Boland, 2011-CA MR (Dec. 7, 2012) 4, addressed this issue directly. In Potter, the appellants argued that the Supreme Court s reasoning in Conner v. George W. Whitesides Co., 834 S.W.2d 652 (Ky. 1992), should extend to parental loss of consortium claims. The Conner Court held that KRS , providing time limitations for a personal representative of a deceased to file certain actions, applied to wrongful death claims. Id. at 654. Accordingly, the Court concluded that a personal representative of a decedent s estate had two years from the date of death to seek appointment and commence an action for wrongful death. Id. at 655. However, this Court in Potter declined to extend the Conner reasoning to loss of consortium claims. The Potter Court explained, WL A loss of consortium claim is not specifically a part of a wrongful death claim under Kentucky law. Martin v. Ohio Hospital Corp., 295 S.W.3d 104, (Ky. 2009). In Martin, the Court emphasized that a loss of consortium action can continue even when the injured spouse or the estate has settled or otherwise been -14-

15 excluded from an action, because there is not a common and undivided interest in the spouse s claim for loss of consortium and the underlying tort claim. Id. at 109. Likewise, because it is an independent claim, a parent s claim for loss of consortium pursuant to KRS remains regardless of whether the personal representative of the child asserts a wrongful death claim or whether a personal representative is appointed. The Potters point out that the parent s loss of consortium claim is limited to cases involving wrongful death of a minor. Bayless v. Boyer, 180 S.W.3d 439, 449 (Ky. 2005). Therefore, they argue, the different statute of limitations for a parent s loss of a child s consortium and wrongful death creates a legal quagmire and that the line of cases holding these claims distinct and independent creates a legal fiction. We agree with the Potters observation that a loss of consortium claim is often discovered simultaneously with the wrongful death claim and not until after the child s personal representative is appointed and pertinent records obtained. If more than one year has elapsed, but less than two years from the personal representative s appointment, the loss of consortium claim is barred. Thus, an attorney for the parents is in the unenviable position of filing a loss of consortium claim without knowledge of the legitimacy of the underlying wrongful death claim. Moreover, it is questionable whether the loss of consortium action could survive a motion to dismiss for failure to state a cause of action when a wrongful death action has not been filed. Logic and clarity should not be strangers to the law. However, we have no authority to deviate from the established law. The only limitation period set forth by the General Assembly for loss of consortium is contained in KRS KRS cannot be extended by judicial fiat. Because this issue was -15-

16 definitively resolved by the Kentucky Supreme Court in Gaylor, we are bound by its holding and the current statutory law. We would note that the Kentucky Supreme Court declined to review Potter when discretionary review was requested. Based on current law, we are compelled to find that the one-year statute of limitation applies to Appellants consortium claims and, as such, the trial court properly dismissed the claims as being time-barred. Court is affirmed. For the reasons set forth herein, the judgment of the Jefferson Circuit ALL CONCUR. BRIEF FOR APPELLANTS: Joshua D. Farley Louisville KY Dennis Gordon Howard Louisville, KY BRIEF FOR APPELLEES: Sara Elizabeth Collins Beth H. McMasters Louisville, KY Scott P. Whonsetler Louisville, KY -16-