Hon. Dave Kramer Discusses Ky.’s Send A Message Evidence Rule Opening the door

Divided COAKY Panel Finds Defendant Opened The Door to Plaintiff’s “Send a Message” Argument Outside The Context of a Punitive Damages Claim
By Hon. David Kramer | dkramer@dbllaw.com

In Shy v. Walker (issued 7/19/2013; not designated for publication), a panel of the Kentucky Court of Appeals by a vote of 2-1 upheld a $1.3 million jury verdict for the plaintiff in a medical negligence action even though the plaintiff’s lawyer in closing argument asked the jury to “send a message” to the defendant and to health-care providers in the community. The Court held that the argument, “even if improper,” was not grounds for a mistrial or reversal under the circumstances of the case.

Specifically, plaintiff’s counsel asked the jurors to render a verdict that would send a message to those providing emergency care in the community, and asserted that the jurors would “make the community safe” by rendering a verdict against the defendant physician. Plaintiff’s counsel told the jury that they “get to decide what the standard of care for an emergency room medicine specialist is here,” and that the defendant’s version of the standard of care “would put virtually everyone in this community in danger….”

It is interesting to note that the trial court had granted a defense motion in limine to exclude an argument to “send a message” to the defendant. While the Court of Appeals noted that arguments asking the jury to “send a message” are frowned upon in Kentucky (outside the context of a punitive damages claim), the Court held that such arguments do not automatically entitle the intended recipient of the “message” to a mistrial or reversal. The Court of Appeals’ majority concluded that any error in not granting a mistrial for the “send a message” argument was harmless and that the defendant’s counsel had “opened the door” on his closing argument by asking the jury to be proud of the local hospital and consider what it would be like without it. The Court conceded that the standard of care is national, not local, but nevertheless declined to reverse, despite the fact that the jurors were told they could determine what standard they will have in their community, because of the door they felt had been opened by the defendant’s argument.

The argument in question, in appealing to the jurors’ sense of personal and community safety, echoed a plaintiffs’ litigation strategy sometimes referred to as “the reptile,” after the 2009 book Reptile: The 2009 Manual of the Plaintiff’s Revolution by David Ball and Don Keenan. The “reptile” reference comes from the theory that the human brain evolved in stages, and that the reptilian brain — thought to be the earliest part to have developed — instinctively seeks to protect the organism from danger. Defendants, of course, should be on guard for and strenuously challenge introduction of any argument or testimony that appears calculated to give the jury a sense that they have a stake in the outcome of the litigation, as an appeal to “the reptile” is arguably designed to do.

There are several potential saving graces for defendants in the Shy opinion: (1) the decision was not designated for publication, which limits its precedential value; (2) the Court did not say the “send a message” argument was proper, instead upholding the verdict “even if [the arguments were] improper” and invoking the harmless error rule; (3) there was some debate by the Court whether the objection to the plaintiff’s improper closing argument was properly preserved for appeal (notwithstanding the motion in limine and an objection made at the end of the plaintiff’s closing argument); (4) the ruling was based to a large extent on the Court’s determination that the defendant’s lawyer had opened the door (a conclusion the dissent strongly disagreed with); (5) the defendant failed to request a curative admonition from the trial court; and (6) the verdict was 9-3 and there was a well-written dissent, which are factors that should increase the prospects the Kentucky Supreme Court will grant discretionary review.

The Shy v. Walker opinion is not yet final. Nonfinal decisions should not be cited as precedent. Unpublished decisions, once final, may qualify for citation under CR 76.28(4)(c).

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

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