COMMONWEALTH OF KENTUCKY MASON CIRCUIT COURT CIVIL ACTION NO. 17-CI-00149 LINDA HAWN, PLAINTIFF VS. PLAINTIFF S MOTION FOR NEW TRIAL CASCIO ENTERPRISES, INC., d/b/a MCDONALD'S OF MAYSVILLE DEFENDANT ** ** ** ** ** ** ** ** ** ** Comes the Plaintiff, Linda Hawn, by counsel, and for her Motion for a New Trial, pursuant to CR 59.01, states as follows: I. Civil Rule Basis for New Trial CR 59.01 states: A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes: (a) Irregularity in the proceedings of the court, jury or prevailing party, or an order of the court, or abuse of discretion, by which the party was prevented from having a fair trial. (h) Errors of law occurring at the trial and objected to by the party under the provisions of these rules. CR 59.01, emphasis added. For the reasons outlined below, the Plaintiff firmly believes a new trial is warranted, and respectfully requests such an Order from this Court. II. Medical conditions and related treatment are not relevant as to the credibility of a witness without the benefit of expert medical testimony. During its direct examination at trial of employee/witness Crystal Boyd, whose testimony and credibility were extremely material in this case, the Defendant elicited testimony from its employee that she had been diagnosed with breast cancer and had undergone related treatment 1 MOT : 000001 of 000011
including radiation and chemotherapy. Counsel for the Plaintiff made a timely objection to this testimony, and stated he was aware of no physician or expert listed on the Defendant s witness list who could offer any admissible opinion as to the effect of breast cancer and/or related treatments on the memory of Ms. Boyd. Defense Counsel Thompson Direct Exam: Q: Cystal, I understand you are going through some medical treatment. Can you tell the jury what you re going through? Plaintiff Counsel Wheeler: Objection, Judge. I don t know what the relevance is. I mean, I know we had to call her out of order, but. Defense Counsel Thompson: They ve beat up on her memory. They ve impeached her three times. She s undergoing radiation treatment for chemotherapy. At the time of her deposition, she was undergoing chemotherapy. This is extremely relevant. They ve been - they ve tried to impeach her and attack her credibility. Plaintiff s Counsel Wheeler: Judge, I don t I guess I m confused. Where is the medical testimony that that relates I mean, I m not saying that it doesn t and I m sympathetic to anybody going through that but I just don t know where the foundation is for it. Is there a doctor that s going to come in here and testify that radiation therapy makes people lose their memory? TR 10:09:26 AM to 10:10:22 AM Counsel for the defense made no response to the stated objection regarding lack of proper medical foundation for the McDonald s employee to offer any opinion as to the relationship between the witness s alleged medical treatment and memory. After seven seconds of silence and no response from the Defendant (TR 10:10:15 AM 10:10:22), the Court, sua sponte, overruled the Plaintiff s objection and explained it would allow the testimony due to personal knowledge of the subject: Court: I don t know that I will require a physician to have to come in for that. I m aware of a lot of people that have had chemo and radiation and it does affect them. If you if you do bring this out, I would plan to tell the jury that they re not to consider that for any sympathy purposes, its only for matters of memory and recollection. I will allow 2 MOT : 000002 of 000011
you to ask it but again if you do I ll give a brief admonishment to the jury its not to be used for sympathy. TR 10:10:22 AM to 10:10:55 AM The objection being overruled, Ms. Boyd was asked about her medical diagnosis and treatment, but was never asked how, or even if, her medical condition or treatment impacted her memory or recollection: Defense Counsel Thompson Direct Exam: Q: Cystal, can you tell the jury what medical treatment you re undergoing at this time? Witness Boyd: I have stage four breast cancer, I just finished my chemo, and now I m starting my radiation. Q. You have been shown your deposition testimony in this case several times and the date of that deposition was September 24, 2018. At that time, um, were you undergoing any medical treatment? Witness Boyd: Yes. Q. And what treatment was that? Witness Boyd: Chemotherapy. Q. Okay. And if your deposition was taken on September 24, 2018, how long would that have been after the fall that occurred on September 16, 2016? Witness Boyd: I m not for sure. Q. Would you agree 2016 to 2018, that s two years? Witness Boyd: Yes. TR 10:10:59 AM to 10:11:47 AM Without the Defendant attempting to offer evidence that Ms. Boyd s illness or treatment had an impact on her memory, the Court offered an admonition regarding the lay witness medical evidence, stating it was to be used not for sympathy, but to address memory or lapse of memory: 3 MOT : 000003 of 000011
Court: Ladies and gentleman, the purpose of this testimony, and you re not to consider it for any sympathy reasons on behalf of the witness, although we certainly all have sympathy for that. Its only brought up to to address any memory or lapse in memory or so. It s not meant to illicit sympathy. TR 10:11:47 AM to 10:12:11 AM The Defendant continued with its direct examination of Ms. Boyd, concluding at TR 10:39:03, without ever asking the witness if her illness or treatment affected her memory at any point in time. The only grounds cited by the Defendant for inclusion of Ms. Boyd s medical diagnosis and treatment in response to the Plaintiff s objection of relevancy was the impact of same on the witness s memory. Setting aside for a moment the obvious lack of proper foundation for a McDonald s employee to offer such an opinion, the only evidence which would have made Ms. Boyd s illness or treatment relevant was her testimony that it had an impact on her memory. The Defendant merely offered Ms. Boyd s alleged medical diagnosis and related treatment, making no attempt to link same to any impact on the witness s memory. Such testimony is clearly irrelevant and inadmissible, even by measure of the Defendant s response to the Plaintiff s objection, and obviously carried significant sympathetic and prejudicial impact. There is absolutely no legal, factual or evidentiary basis for the inclusion of Ms. Boyd s testimony regarding her medical diagnosis or related treatment, especially without any testimony or evidence that it somehow impacted her memory. The only mention of any issues with Ms. Boyd s memory came from the Court, during its admonition, that the purpose of the testimony was to address any lapse in Ms. Boyd s memory. This admonition, similar to the Court expressing personal knowledge as to the impact cancer treatment has on memory from experience with other individuals, without the inclusion of any proof on the topic, constitutes the Court taking judicial notice. Kentucky s highest Court has 4 MOT : 000004 of 000011
previously held that in the absence of medical testimony on such a subject, a Court cannot make medical findings without assuming an expert medical proficiency of its own. Kelly Contracting Co. v. Robinson, 377 S.W.2d 892, 894 (Ky. 1964). The Kelly Court held: In the absence of medical testimony that the physical stress of Robinson's work did or probably did cause, contribute to or precipitate his coronary occlusion, a court cannot find it so without assuming an expert medical proficiency of its own. It may be that Robinson's claim inherently was as valid as those in the Terry and Grimes cases, but the difference is in the witnesses. Neither the board nor the courts can use the testimony from Terry and Grimes in this case, and the relationship between physical activity and coronary occlusion is not so clearly established that we could take judicial notice that if a man has an occlusion while he is engaged in manual labor, or immediately afterward, the exertion is probably a causative factor. That must come from the mouth of a qualified member of the medical profession before it can be found as a fact in a court of law. Id., emphasis added. Even if evidence of Ms. Boyd s alleged medical issues and treatment was somehow relevant, such evidence cannot properly be offered through a lay witness pursuant to KRE 702 and relevant caselaw, and is further inadmissible under KRE 403. KRE 702 states: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case. There was no proof offered by the Defendant to suggest Ms. Boyd was qualified to testify, to any degree to proof, (1) that she had been diagnosed with cancer or (2) that her medical condition and/or relevant treatment had any impact on her memory. As the Defendant cited in their Objections to Deposition of Dr. Moskal, any testimony regarding medical conditions and/or 5 MOT : 000005 of 000011
treatment must be rendered within a reasonable degree of medical probability. Andrew v. Begley, 203 S.W.3d 165, 170 (Ky. Ct. App. 2006). Brown-Foreman Corp. v. Upchurch, 127 S.W.3d 615, 621 (Ky. 2004), emphasis added. The question of the quality of mind is one peculiarly directed to the medical profession. Murphy v. Lester, 280 Ky. 51, 132 S.W.2d 542, 544 (Ky. 1939), citing McCutcheon v. Bichon, 267 Ky. 694, 103 S.W.2d 76 (Ky. 1937). Commonwealth v. Huber, 711 S.W.2d 490, 491 92 (Ky. 1986) is particularly on point, as the Kentucky Supreme Court held the following: The trial court did not abuse its discretion in refusing to permit the witness to be cross-examined about her prior mental problems. The prior mental treatment of a witness is not relevant as to the credibility of that witness unless it can be demonstrated that there was a mental deficiency on the part of the witness, either at the time of the testimony or at the time of the matter being testified about. The mere fact that a particular witness has been treated for any kind of psychiatric problem in the past is of no significance in the impeachment of that witness unless it can be shown that the psychiatric problems relate in some way to the credibility of the witness. The avowal testimony shows that the witness suffered from manic depression, but without the benefit of expert medical testimony at the time of the trial that this illness somehow affected the ability to recall or caused her to fantasize events, it cannot be said that the severe changes of mood would necessarily affect her credibility. The authorities cited by Huber are distinguishable from this case. In Wagner v. Commonwealth, Ky., 581 S.W.2d 352 (1979), the prosecuting witness was receiving shock treatments which affected her memory and the court ruled that such evidence was relevant and competent because it tended to impeach her credibility. In Mosley v. Commonwealth, Ky., 420 S.W.2d 679 (1967), the alleged victim was under current treatment for schizophrenia, and her psychiatrist testified by avowal that one of the manifestations of this disease in the alleged victim was sexual fantasies. It was held that this expert testimony was relevant and competent and should have been admitted to impeach the credibility of the alleged victim. In contrast no expert medical testimony was offered in this case to connect the past episodes of manic depression with any challenge to her credibility. 6 MOT : 000006 of 000011
The Plaintiff had no prior knowledge of this witness s alleged significant medical condition (no medical proof was provided), and only learned of it in the course of the trial while the witness was on the stand. Without any medical foundation to support the witness s position, the Plaintiff had no ability to counteract the lay witness testimony with a medical expert of its own. Interestingly, during her deposition the witness expressed no problem with her memory as to the date of the Plaintiff s fall: Q. And is that the door that Ms. Hawn entered? A. No. Q. Okay. And you are sure about that? A. Yes. Pg. 24 Q. Okay. And your testimony is that the floors hadn't been mopped yet; correct? A. Correct. Q. Okay. Are you sure about that? A. Yes. Pg. 45 Q. Don't know the last time you inspected it? A. Oh, when I came in was the last time. Q. Okay. What about the last time you cleaned it? A. It wasn't dirty. Q. The last time you mopped it? A. Not that day, no. Q. Okay. When is the last time that you mopped that area all through those tables? When is the last time you mopped that area? A. I hadn't at all that day. Q. You hadn't at all that day? A. No. Q. Had you swept that area? 7 MOT : 000007 of 000011
A. Yes. Q. But you hadn't mopped it? A. Right. Q. And you are sure about that? A. Yes. Pg. 77-78 While the excerpts from Ms. Boyd s deposition above are merely a few instances where she clearly remembers the day of Ms. Hawn s fall, and goes so far as to state she is sure about her testimony, there was no indication at the time of her deposition, contrary to her trial testimony, that she had any memory problems. Ms. Boyd s trial testimony as to why she contradicts her previous sworn testimony, taken without any medical proof to provide adequate support, was a complete surprise as it had not been previously disclosed, and was further irrelevant, inadmissible and highly prejudicial. Furthermore, the Defendant s multiple pretrial filings mention absolutely nothing about opinion testimony regarding a connection of breast cancer, related treatments and memory issues. On the contrary, prior to trial, the Plaintiff was barred from offering into evidence for the jury s consideration multiple felony convictions for forgery and robbery of Crystal Boyd. The Court, by way of its January 17 th, 2019 Order, made note that Ms. Boyd is an employee of Defendant whose action in cleaning/mopping the floor may be key to liability herein. The Court further noted Ms. Boyd claims she had not mopped the area in question and was placing her credibility at issue assuming she continues to deny mopping at the location of the fall. In granting the Defendant s motion in limine, the Court held that Plaintiff has not demonstrated that the probative value of the 14 and 18 year old convictions substantially outweighs their prejudicial effect. This same standard and analysis was unfairly disregarded when it came time to evaluate 8 MOT : 000008 of 000011
the testimony elicited by the Defendant, first offered on day two of trial, that Ms. Boyd underwent cancer treatments which purportedly impacted her memory. Importantly, each of Ms. Boyd s prior criminal convictions, which the Court found to be more indicative of untruthfulness/dishonesty than many other crimes, could have been proven by certified records of the Mason Circuit Court, or by way of judicial notice as the Court was the prosecuting Commonwealth Attorney at the time of each of the proffered convictions. While this evidence was excluded despite irrefutable evidence and ample authority for its inclusion being provided by the Plaintiff, the lay witness medical testimony offered by the Defendant on day two of trial was admitted despite having no valid legal basis whatsoever, in direct contradiction of KRE 702 and the ample precedent cited above, including precedent relied upon by the Defendant in its own deposition objections. After the credibility of Ms. Boyd was properly attacked by the Plaintiff using inconsistent statements made during her deposition, the Defendant was improperly permitted to rehabilitate the credibility of its employee with irrelevant, highly prejudicial testimony of a significant illness which undoubtedly weighed heavy upon the jury. The Plaintiff and her counsel are sympathetic for anyone dealing with such a terrible medical condition, but without proper evidentiary support the testimony of Ms. Boyd s alleged medical condition alone should not have been submitted to the jury for consideration. The Court s January 18, 2019 Order excluding Ms. Boyd s criminal history included a perhaps prophetic holding: Ms. Boyd has a significant interest in the outcome of the case since her job performance here could have effect on this or future employment, depending on whether a jury determines her actions relating to her testimony contribute to a verdict against her employer. Even with the Court s admonition that Ms. Boyd s illness was not to be considered for any sympathy purposes, the jurors would have similarly been concerned about the impact a verdict 9 MOT : 000009 of 000011
against Ms. Boyd s employer may have on her employment, and thus the impact a verdict may have upon her ability to treat for her significant alleged condition. The real prejudice to the Plaintiff far outweighs the probative value of Ms. Boyd s lay testimony regarding her condition and the Court taking judicial notice of the impact such a condition has on her memory, as precedent cited above conclusively shows neither are probative of any fact of consequence. WHEREFORE, the Plaintiff respectfully requests an appropriate Order from the Court and that a new trial be granted. NOTICE All parties please take notice that the foregoing motion will be brought on for hearing before the Mason Circuit Court at Maysville, Kentucky on the 22 nd day of February, 2019 at the hour of 9:00 a.m. or as soon thereafter as counsel may be heard. Respectfully submitted, COUNSEL FOR THE PLAINTIFF /s/ Andrew K. Wheeler Andrew K. Wheeler Martin, Wheeler & Vincent, PSC 431 Sixteenth Street / P.O. Box 2528 Ashland, KY 41105-2528 P: (606) 329-8338 / F: (606) 325-8199 Email: awheeler@martinvincentlaw.com Hon. Michael Walker Burnside Law, LLC 1426 6th Avenue, Suite 201 Huntington, WV 25701 Ph: (681) 378-3210 / Fax: (681) 204-5860 Email: michael@burnsidelaw.com 10 MOT : 000010 of 000011
CERTIFICATE OF SERVICE The undersigned certifies that a true copy of the foregoing has been mailed/emailed to: Hon. Lauren Thompson Hon. Jessica B. Droste 163 East Main Street/ Suite 130 Lexington, KY 40507 Email: lthompson@ppoalaw.com Email: jdroste@ppoalaw.com This 7 th day of February, 2019. /s/ Andrew K. Wheeler Andrew K. Wheeler 17628 11 MOT : 000011 of 000011