COAKY Upholds Trial Court’s Exclusion of Collateral Impeachment of Defendant/Experts and Allowing Separate Defendants to Call Overlapping Experts; Also Discusses Deutsch v. Shein Instruction on Superseding Intervening Cause

By David Kramer |

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In Branham v. Rock, 2010-CA-2292 (, the Kentucky Court of Appeals, in a decision written by Chief Judge Glenn Acree, upheld a defense jury verdict in a medical negligence action. Although the opinion was not designated for publication and is not yet final, it is instructive on a number of issues that regularly arise in civil actions alleging professional negligence and those involving numerous expert witnesses.

Among the trial court errors asserted by the plaintiff/appellant were that the plaintiff at trial should have been able to introduce evidence of a prior unrelated medical licensure investigation on the part of one of the defendant physicians, who was also designated as an expert witness. The Court of Appeals held that the circumstances of the physician’s licensure discipline were not relevant to the issue whether the physician had deviated from the standard of care in the case at hand, and thus were properly excluded as collateral impeachment. The appellant similarly claimed that he should have been able to introduce evidence that another defendant physician had twice failed his medical licensure exam before passing it. Noting the the exam failures were 6-7 years before the care at issue, the Court also found this evidence collateral and properly excluded.

The appellant also argued that the trial court should have limited the separate defendants from calling multiple expert witnesses from the same specialty, so that only one expert from a particular discipline should have been permitted to testify on behalf of all defendants. The Court essentially said that when a plaintiff sues multiple defendants, each defendant has a right to call his or her own witness in any relevant discipline, though ultimately the trial court retains discretion under KRE 403 to exclude testimony that would result in undue delay or needless presentation of cumulative evidence. The Court of Appeals found no abuse of discretion.

Lastly, the Court upheld the trial court’s jury instruction on causation, holding that an interrogatory asking the jury whether the defendant’s alleged negligence was a substantial factor in causing the event that caused injury — as opposed to a substantial factor in causing the injury itself, as is usually stated in Kentucky jury instructions — is required only when the defendant asserts that there was a superseding intervening cause of the injury, under the case of Deutsch v. Shein, 597 S.W.2d 141 (Ky. 1980).

The COAKY opinion in Branham v. Rock is not final as of the date of this posting. Nonfinal opinions should never be cited as authority in Kentucky. Once final, unpublished opinions may be cited only in conformity with CR 76.28(4)(c).

David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

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