RENDERED: MAY 27, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0840-MR
FRANK KISER, II APPELLANT
APPEAL FROM BOYD CIRCUIT COURT v. HONORABLE GEORGE DAVIS, JUDGE ACTION NO. 13-CI-00407
ASHLAND HOSPITAL CORPORATION D/B/A KING’S DAUGHTERS MEDICAL CENTER, INC. APPELLEE
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; GOODWINE AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Frank Kiser (“Kiser”) appeals from the Boyd Circuit Court’s
summary judgment dismissing his claims against Ashland Hospital Corporation
d/b/a King’s Daughter’s Medical Center, Inc. (“KDMC”). For the reasons below,
we reverse and remand for further proceedings. On April 25, 2012, Kiser, along with several of his friends, spent the
day drinking at his house in celebration of his birthday the following day. In the
evening, Kiser drove to a gas station nearby to purchase cigarettes. At that point,
he had consumed around 18-24 beers and several shots of vodka. As Kiser pulled
into the gas station, he hit one of the gas pumps with his truck. Police arrived and
arrested Kiser for driving under the influence.
Officer Chris Kohut, the arresting officer, took Kiser to KDMC for a
blood test to determine his blood alcohol concentration (“BAC”). Steven
Williams, a security officer at KDMC, assisted Officer Kohut upon his arrival.
According to Williams, Kiser was loud and animated and did not want to have his
blood drawn. As they attempted to get Kiser to the phlebotomy room, he began
pulling away from Officer Kohut. Williams helped Officer Kohut take Kiser to the
ground and regain control. During the process, Kiser apparently hit his head on the
floor. Throughout the ordeal, Kiser was restricted in handcuffs.
Kiser was taken to a room and examined by Dr. William Webb. Dr.
Webb ordered Kiser’s blood to be drawn. Kiser became verbally aggressive and
combative, and at one point kicked a metal supply basket off the wall. Kiser was
ushered to the bed, restrained to a backboard, and his blood was drawn. A blood
test showed Kiser’s BAC was .194.
-2- Kiser tells a different version of the story. According to Kiser, after
he kicked the metal supply basket off the wall, several KDMC security officers
tackled him to the bed and began hitting him with their fists and elbows. Kiser
alleges KDMC security officers held him down while his blood was drawn and that
the backboard was only used afterwards to take him to get a CT scan.
On April 25, 2013, Kiser filed a complaint in Boyd Circuit Court
against KDMC1 alleging negligence, gross negligence, and assault based upon the
actions of KDMC security officers and other hospital personnel. The case was set
to be tried on February 10, 2020. Prior to trial, KDMC moved to exclude Kiser’s
testimony pursuant to KRE2 601, arguing that Kiser was not competent to testify
due to his intoxication at the time of the events in question. Along with its motion,
KDMC filed the affidavit of Dr. Douglas Rund who opined that with a BAC of
.194, Kiser would have been “seriously impaired” and his memory of the events
“unreliable.”
The trial court granted the motion, finding “there is no medical
evidence by Plaintiff to rebut the sworn affidavit of Dr. Rund[.]” Thereafter,
KDMC moved for summary judgment, arguing that without Kiser’s testimony, he
1 The complaint also named the City of Ashland as a defendant, but they were dismissed by agreed order on August 17, 2017. 2 Kentucky Rules of Evidence.
-3- was “unable to present direct evidence to support his claims[.]” The trial court
agreed and granted the motion, dismissing Kiser’s claims. This appeal followed.
As an initial matter, we must address the deficiency of Kiser’s
appellate brief. His argument section fails to make “reference to the record
showing whether the issue was properly preserved for review and, if so, in what
manner” as required by CR3 76.12(4)(c)(v). We require a statement of
preservation:
so that we, the reviewing Court, can be confident the issue was properly presented to the trial court and therefore, is appropriate for our consideration. It also has a bearing on whether we employ the recognized standard of review, or in the case of an unpreserved error, whether palpable error review is being requested and may be granted.
Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012).
“Our options when an appellate advocate fails to abide by the rules
are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief
or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the
brief for manifest injustice only[.]” Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky.
App. 2010) (citing Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990)). Because
the record is small, and we have been able to determine Kiser’s argument was
properly preserved, we will ignore the deficiency and proceed with the review.
3 Kentucky Rules of Civil Procedure.
-4- Kiser argues the trial court erred in excluding his testimony pursuant
to KRE 601 and thus summary judgment was improper. Specifically, he argues the
fact he was intoxicated at the time of the events in question goes to the weight of
his testimony, not his competency to testify. We agree.
We review a trial court’s ruling regarding the competency of a witness
to testify for an abuse of discretion. Jarvis v. Commonwealth, 960 S.W.2d 466,
468 (Ky. 1998) (citation omitted). “Pursuant to KRE 601, a witness is competent
to testify if she is able to perceive accurately that about which she is to testify, can
recall the facts, can express herself intelligibly, and can understand the need to tell
the truth.” Pendleton v. Commonwealth, 83 S.W.3d 522, 525 (Ky. 2002).
However, the Commentary to KRE 601 explains:
This provision serves to establish a minimum standard of testimonial competency for witnesses. It is designed to empower the trial judge to exclude the testimony of a witness who is so mentally incapacitated or so mentally immature that no testimony of probative worth could be expected from the witness. It should be applied grudgingly, only against the “incapable” witness and never against the “incredible” witness, since the triers of fact are particularly adept at judging credibility.
Commentary to KRE 601, Evidence Rules Study Committee, Final Draft (1989).
Thus, “KRE 601 recognizes a presumption of competency and permits
disqualification of a witness only upon proof of incompetency.” Price v.
Commonwealth, 31 S.W.3d 885, 891 (Ky. 2000). The only evidence KDMC
-5- presented as proof of Kiser’s incompetency was his BAC of .194 and the affidavit
of Dr. Rund, who opined Kiser’s memory would be unreliable. KDMC argued
below, as it does on appeal, that based upon Kiser’s intoxication at the time of the
events, he “[l]acked the capacity to perceive accurately the matters about which he
proposes to testify” and “[l]acks the capacity to recollect facts[.]” KRE 601(b)(1)
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RENDERED: MAY 27, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0840-MR
FRANK KISER, II APPELLANT
APPEAL FROM BOYD CIRCUIT COURT v. HONORABLE GEORGE DAVIS, JUDGE ACTION NO. 13-CI-00407
ASHLAND HOSPITAL CORPORATION D/B/A KING’S DAUGHTERS MEDICAL CENTER, INC. APPELLEE
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; GOODWINE AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Frank Kiser (“Kiser”) appeals from the Boyd Circuit Court’s
summary judgment dismissing his claims against Ashland Hospital Corporation
d/b/a King’s Daughter’s Medical Center, Inc. (“KDMC”). For the reasons below,
we reverse and remand for further proceedings. On April 25, 2012, Kiser, along with several of his friends, spent the
day drinking at his house in celebration of his birthday the following day. In the
evening, Kiser drove to a gas station nearby to purchase cigarettes. At that point,
he had consumed around 18-24 beers and several shots of vodka. As Kiser pulled
into the gas station, he hit one of the gas pumps with his truck. Police arrived and
arrested Kiser for driving under the influence.
Officer Chris Kohut, the arresting officer, took Kiser to KDMC for a
blood test to determine his blood alcohol concentration (“BAC”). Steven
Williams, a security officer at KDMC, assisted Officer Kohut upon his arrival.
According to Williams, Kiser was loud and animated and did not want to have his
blood drawn. As they attempted to get Kiser to the phlebotomy room, he began
pulling away from Officer Kohut. Williams helped Officer Kohut take Kiser to the
ground and regain control. During the process, Kiser apparently hit his head on the
floor. Throughout the ordeal, Kiser was restricted in handcuffs.
Kiser was taken to a room and examined by Dr. William Webb. Dr.
Webb ordered Kiser’s blood to be drawn. Kiser became verbally aggressive and
combative, and at one point kicked a metal supply basket off the wall. Kiser was
ushered to the bed, restrained to a backboard, and his blood was drawn. A blood
test showed Kiser’s BAC was .194.
-2- Kiser tells a different version of the story. According to Kiser, after
he kicked the metal supply basket off the wall, several KDMC security officers
tackled him to the bed and began hitting him with their fists and elbows. Kiser
alleges KDMC security officers held him down while his blood was drawn and that
the backboard was only used afterwards to take him to get a CT scan.
On April 25, 2013, Kiser filed a complaint in Boyd Circuit Court
against KDMC1 alleging negligence, gross negligence, and assault based upon the
actions of KDMC security officers and other hospital personnel. The case was set
to be tried on February 10, 2020. Prior to trial, KDMC moved to exclude Kiser’s
testimony pursuant to KRE2 601, arguing that Kiser was not competent to testify
due to his intoxication at the time of the events in question. Along with its motion,
KDMC filed the affidavit of Dr. Douglas Rund who opined that with a BAC of
.194, Kiser would have been “seriously impaired” and his memory of the events
“unreliable.”
The trial court granted the motion, finding “there is no medical
evidence by Plaintiff to rebut the sworn affidavit of Dr. Rund[.]” Thereafter,
KDMC moved for summary judgment, arguing that without Kiser’s testimony, he
1 The complaint also named the City of Ashland as a defendant, but they were dismissed by agreed order on August 17, 2017. 2 Kentucky Rules of Evidence.
-3- was “unable to present direct evidence to support his claims[.]” The trial court
agreed and granted the motion, dismissing Kiser’s claims. This appeal followed.
As an initial matter, we must address the deficiency of Kiser’s
appellate brief. His argument section fails to make “reference to the record
showing whether the issue was properly preserved for review and, if so, in what
manner” as required by CR3 76.12(4)(c)(v). We require a statement of
preservation:
so that we, the reviewing Court, can be confident the issue was properly presented to the trial court and therefore, is appropriate for our consideration. It also has a bearing on whether we employ the recognized standard of review, or in the case of an unpreserved error, whether palpable error review is being requested and may be granted.
Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012).
“Our options when an appellate advocate fails to abide by the rules
are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief
or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the
brief for manifest injustice only[.]” Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky.
App. 2010) (citing Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990)). Because
the record is small, and we have been able to determine Kiser’s argument was
properly preserved, we will ignore the deficiency and proceed with the review.
3 Kentucky Rules of Civil Procedure.
-4- Kiser argues the trial court erred in excluding his testimony pursuant
to KRE 601 and thus summary judgment was improper. Specifically, he argues the
fact he was intoxicated at the time of the events in question goes to the weight of
his testimony, not his competency to testify. We agree.
We review a trial court’s ruling regarding the competency of a witness
to testify for an abuse of discretion. Jarvis v. Commonwealth, 960 S.W.2d 466,
468 (Ky. 1998) (citation omitted). “Pursuant to KRE 601, a witness is competent
to testify if she is able to perceive accurately that about which she is to testify, can
recall the facts, can express herself intelligibly, and can understand the need to tell
the truth.” Pendleton v. Commonwealth, 83 S.W.3d 522, 525 (Ky. 2002).
However, the Commentary to KRE 601 explains:
This provision serves to establish a minimum standard of testimonial competency for witnesses. It is designed to empower the trial judge to exclude the testimony of a witness who is so mentally incapacitated or so mentally immature that no testimony of probative worth could be expected from the witness. It should be applied grudgingly, only against the “incapable” witness and never against the “incredible” witness, since the triers of fact are particularly adept at judging credibility.
Commentary to KRE 601, Evidence Rules Study Committee, Final Draft (1989).
Thus, “KRE 601 recognizes a presumption of competency and permits
disqualification of a witness only upon proof of incompetency.” Price v.
Commonwealth, 31 S.W.3d 885, 891 (Ky. 2000). The only evidence KDMC
-5- presented as proof of Kiser’s incompetency was his BAC of .194 and the affidavit
of Dr. Rund, who opined Kiser’s memory would be unreliable. KDMC argued
below, as it does on appeal, that based upon Kiser’s intoxication at the time of the
events, he “[l]acked the capacity to perceive accurately the matters about which he
proposes to testify” and “[l]acks the capacity to recollect facts[.]” KRE 601(b)(1)
and (2).
The trial court’s order does not reference KRE 601 or address Kiser’s
testimony specifically. In fact, the only bases cited for finding Kiser incompetent
to testify are that Kiser’s BAC was .194 and that “there is no medical evidence by
Plaintiff to rebut the sworn affidavit of Dr. Rund[.]” However, the general rule is
that
[w]hen a witness admits to drinking or consuming drugs heavily at the time of critical events to which the witness is to testify, the question is properly treated by the court as one of credibility, not competency, and therefore best left to the jury even if the witness also testifies to an ebbing or fading memory concerning those events.
98 C.J.S. Witnesses § 115 (2021) (citations omitted).
Though not directly on point, our Supreme Court has held that even
where a witness is known to be under the influence of drugs, if she can think
clearly and give responsive answers, the influence does “not go to her competency
to testify but would affect only the credibility of her testimony.” Brown v.
Commonwealth, 511 S.W.2d 209, 211 (Ky. 1974) (citation omitted). In an
-6- unpublished case, Treadway v. Commonwealth, No. 2008-CA-001343-MR, 2010
WL 135098, at *1 (Ky. App. Jan. 15, 2010),4 a panel of this Court held that a
witness to a robbery who was intoxicated at the time of the offense was competent
to testify because there was nothing in the record “establish[ing] his inability to
testify at trial.”
A review of Kiser’s deposition testimony shows that he had the
capacity to “perceive accurately the matters about which he propose[d] to testify”
and “to recollect the facts[.]” KRE 601(b)(1) and (2). Kiser’s recitation of the
events broadly mirrored that of Williams. Kiser recounted entering the hospital,
going into a small room, being read the implied consent form, going into a second
room, being examined by the doctor, kicking the metal supply cabinet off the wall,
being placed on a bed, and having his blood drawn. Though Kiser did not
remember being taken to the ground and was unable to recall certain details of the
incident, a witness’s inability to recollect every specific detail of an event affects
only the credibility of his testimony, not his competency to testify. Price, 31
S.W.3d at 891. Therefore, the trial court abused its discretion in finding Kiser was
not competent to testify at trial.
4 Pursuant to CR 76.28(4)(c), we cite to this unpublished opinion as there is no published opinion directly on point.
-7- We now turn to whether the trial court erred in granting summary
judgment to KDMC. “The standard of review on appeal of a summary judgment is
whether the trial court correctly found that there were no genuine issues as to any
material fact and that the moving party was entitled to judgment as a matter of
law.” Coomer v. CSX Transp. Inc., 319 S.W.3d 366, 370 (Ky. 2010). “We review
a trial court’s summary judgment ruling de novo.” Peterson v. Foley, 559 S.W.3d
346, 348 (Ky. 2018) (citation omitted). “We must also view the record in a light
most favorable to the nonmoving party and resolve all reasonable doubts in that
party’s favor.” Id. (citation omitted). “[S]ummary judgment is to be cautiously
applied and should not be used as a substitute for trial.” Steelvest, Inc. v. Scansteel
Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky. 1991).
Without Kiser’s testimony, the trial court found “there [was] a
complete absence of evidence by Mr. Kiser to support his allegations against
KDMC.” Therefore, it ruled there was no genuine issue of material fact for trial
and KDMC was entitled to summary judgment. Because we hold the trial court
erred in excluding Kiser’s testimony, summary judgment was therefore improper.
Accordingly, the order of the Boyd Circuit Court is reversed and this
case is remanded for further proceedings consistent with this Opinion.
ALL CONCUR.
-8- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Michael J. Curtis Kenneth Williams, Jr. Ashland, Kentucky Dustin C. Haley Ashland, Kentucky
-9-