Hashmi v. Kelly

379 S.W.3d 108, 2012 WL 4213472, 2012 Ky. LEXIS 131
CourtKentucky Supreme Court
DecidedSeptember 20, 2012
DocketNo. 2009-SC-000843-DG
StatusPublished
Cited by9 cases

This text of 379 S.W.3d 108 (Hashmi v. Kelly) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hashmi v. Kelly, 379 S.W.3d 108, 2012 WL 4213472, 2012 Ky. LEXIS 131 (Ky. 2012).

Opinions

Opinion of the Court by

Justice NOBLE.

The Appellant and defendant below, Dr. Raza Hashmi, sought discretionary review of the Court of Appeals’ decision in this case reversing and remanding to the trial court on the basis that the trial court misapplied CR 26. Because the error in this case is harmless, this Court reverses and reinstates the judgment of the trial court.

I. Background

This is a medical malpractice claim for the wrongful death of Rosalie Stamper,1 with the underlying facts being largely irrelevant to the single question on appeal. At issue is a discovery violation question about the use of deposition testimony of a treating physician, Dr. John Johnstone, who was originally a defendant in the case but was dismissed prior to trial. At trial, Appellant offered Dr. Johnstone’s deposition testimony as expert testimony about the standard of care. Appellee had noticed the deposition for discovery as the treating physician, but did ask the doctor in the course of the deposition whether he thought Appellant had violated the standard of care. Dr. Johnstone replied, “I think it was fine.”

Dr. Johnstone’s answer was preceded in the deposition by his explanation that he had not seen the Appellant’s actual, detailed medical records, and did not have them in his possession. Instead, he had only reviewed a summary of Appellant’s medical records that had been prepared by his attorney. Counsel for Appellee asked to see what the doctor had reviewed, but Dr. Johnstone’s attorney refused to surrender the summary claiming it as attorney work product. Consequently, the attorney for Appellee had no basis to cross-examine the doctor on his opinion as to Appellant’s standard of care, and simply made a clear record that the doctor had neither possessed nor seen Appellant’s medical records. Additionally, counsel for Appellee did not ask what the relevant standard of care was, or whether Dr. Johnstone’s statement was within reasonable medical probability. Counsel for Appellant asked no questions of the treating physician.

Indeed, since the deposition had been noticed for discovery by Appellee, it was reasonable for the doctor, as the treating physician, not to have prepared for a question about the standard of care relating to Appellant. Counsel for Dr. Johnstone thus agreed that if he were going to be called as an expert witness at trial, she would provide Appellant’s medical records on the decedent to the doctor for review and supplement his opinion in discovery. Obviously, Dr. Johnstone could have been deposed again as well. Apparently, there [110]*110was never a request for review and supplementation.

However, the doctor was never specifically identified as an expert witness by Appellant going into trial. Appellee propounded interrogatories to Appellant under CR 26.02(4)2 seeking the expert witness disclosure allowed by the rule. Initially, Appellant specifically identified four expert witnesses, and gave a brief summary of their expected testimony. Then he included the following answer: “Any and all other treating physicians of Rosalie Stamper.” Appellee challenged three of these answers as inadequate, and one as dilatory, and moved the trial court to strike them.

The trial court gave Appellant until the end of November 2007 to fully comply with the order to provide adequate answers. Appellant then amended his disclosures to drop one expert, but retained the quoted general language. He never specifically named Dr. John Johnstone, nor did he give a summary of his expected testimony and the basis for it, despite having arguments about each of the listed experts at the hearing on the motion to strike. It was apparent that counsel for Appellee was seeking full CR 26 disclosure3 on each expert expected to testify at trial.

Nonetheless, in his pre-trial-order compliance filed on February 12, 2008, Appellant listed Dr. Johnstone as a trial witness. Appellee had also listed Dr. Johnstone as a possible witness regarding the care and treatment of the decedent. But when trial began, it became apparent that Appellant intended to introduce Dr. Johnstone’s testimony on the standard of care exercised by Appellant, which arguably required Appellant to have met the discovery requirements for expert witnesses.

During the trial, before Appellee’s case was closed and before Appellant called any witnesses, Appellee filed a motion to exclude the standard of care testimony portion of Dr. Johnstone’s deposition, making specific page and line objections, on two grounds: (1) Dr. Johnstone had not been identified as an expert witness and no CR 26 information had been provided about his testimony; and (2) the testimony in the deposition was not admissible as expert testimony because the question was asked for discovery only, a proper foundation was not laid for expert testimony by Appellant’s counsel at the deposition, and the opinion was not based on a review of Appellant’s treatment records of the decedent.

The trial court ruled that the objection had not been timely made under CR 30.02(4)(e),4 overruled the motion, found that the spirit of CR 26 had been met even if its precise language had not, and allowed [111]*111Dr. Johnstone’s deposition to be played in its entirety to the jury, including the portion about Appellant’s compliance with the standard of care. The jury returned a defense verdict, finding for Appellant, and the case was appealed to the Court of Appeals. That court reversed, simply finding that Dr. Hashmi had not complied with the language or spirit of CR 26.

This Court granted review to determine whether there is a conflict between CR 26 and CR 30.02(4)(e) in this case and whether the trial court abused its discretion by allowing Dr. Johnstone’s deposition testimony on standard of care under the facts of this case.

II. Analysis

A trial court’s rulings on the application of the Rules of Civil Procedure and admissibility of evidence are reviewed for an abuse of discretion. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577-78 (Ky.2000) (noting that abuse of discretion is the standard of review for a trial court’s evidentiary rulings and that the same standard applies to KRE 702). In this case, the trial court abused its discretion by allowing Dr. Johnstone’s testimony on the standard of care because it relied on the wrong rule of procedure and permitted the introduction of inadmissible evidence.

The Appellee focuses her argument on CR 26.02(4)(a), which allows a party to serve interrogatories to the opposing party asking for the identity of an expert witness to be called at trial, the subject matter on which he will testify, the substance of the facts and the expert’s opinions, and a summary of the grounds for his opinions. In this case, the facts and the grounds upon which Dr. Johnstone relied were at issue because he had not reviewed Appellant’s treatment records of the decedent. Moreover, he could not state specific grounds for his opinion that Appellant had not violated the standard of care other than his review of his attorney’s summary and his long-term acquaintance with Appellant.

In fact, Appellant did not name Dr. Johnstone as an expert witness on either of his two expert lists, nor did he give any of the information required by CR 26 regarding Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
379 S.W.3d 108, 2012 WL 4213472, 2012 Ky. LEXIS 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hashmi-v-kelly-ky-2012.