RENDERED: MAY 12, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-0579-MR
JEWISH HOSPITAL, AN ASSUMED NAME OF JEWISH HOSPITAL & ST. MARY’S HEALTHCARE, INC.; AND KENTUCKYONE HEALTH, INC. APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MITCH PERRY, JUDGE ACTION NO. 17-CI-000253
KAREN REDDINGTON, INDIVIDUALLY; AND KAREN REDDINGTON, AS EXECUTRIX OF THE ESTATE OF DONALD PATRICK REDDINGTON, SR. APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; CETRULO AND ECKERLE, JUDGES.
THOMPSON, CHIEF JUDGE: Jewish Hospital, an assumed name of Jewish
Hospital & St. Mary’s Healthcare, Inc., and KentuckyOne Health, Inc. (“Appellants”), appeal from a judgment of the Jefferson Circuit Court entered on
March 23, 2022, and from the circuit court’s order denying Appellants’ post-trial
motions entered on April 29, 2022. Appellants argue that the circuit court erred in
1) failing to grant summary judgment; 2) giving the jury improper negligence and
missing evidence instructions; 3) allowing the use of privileged documents
contrary to the law of the case; and, 4) improperly allowing the jury to hear
evidence of Appellants’ subsequent remedial policy change. Appellants seek an
opinion reversing the judgment on appeal and remanding the matter for a new trial.
Having heard the oral arguments of counsel, and after careful review, we find no
error and affirm the judgment on appeal.
FACTS AND PROCEDURAL HISTORY
On April 29, 2016, Donald Reddington (“Mr. Reddington”) had
surgery at Appellants’ hospital to repair a torn rotator cuff. After surgery, Mr.
Reddington developed complications and was intubated. He was admitted to the
intensive care unit (“ICU”). On May 10, 2016, Mr. Reddington received a
tracheostomy and began to make some improvement.
About 10 days later, and based on his improvement, Mr. Reddington’s
treating physician, Dr. John Wesley McConnell, transferred Mr. Reddington to an
intermediate care floor. Mr. Reddington’s pulse oximetry was monitored every
four hours.
-2- On May 22, 2016, and while monitored by cardiac telemetry, Mr.
Reddington’s tracheostomy tube became dislodged and he began to asphyxiate.
Mr. Reddington’s primary room nurse, Rachel Ruppel, was in the cafeteria when
the tracheostomy tube became dislodged. Ms. Ruppel would later state that she
had previously handed off Mr. Reddington’s care to nurse Val McGee. Ms.
McGee denied that Ms. Reddington’s care was handed off to her, and testimony
was later adduced that Ms. McGee was with Ms. Ruppel in the cafeteria.
Sometime after Mr. Reddington’s tracheostomy tube became
dislodged, a cardiac alarm sounded at the nurses’ station which was about 11 feet
from Mr. Reddington’s room. Nurse Angelique Kahn-Brown heard the alarm, and
responded to Mr. Reddington’s room. She discovered that the tracheostomy tube
was dislodged, and observed that Mr. Reddington was not breathing and his skin
was blue. Ms. Kahn-Brown called a “code blue” to summon immediate assistance
for Mr. Reddington. At about this time, Ms. Ruppel received a text that Mr.
Reddington’s cardiac leads were off.
Medical personnel responded to the code blue and attempted to
resuscitate Mr. Reddington with CPR and ventilation. Ms. Kahn-Brown initiated
these procedures before the code blue personnel arrived. As no appropriate
tracheostomy tube was available, a new tube had to be retrieved from Appellants’
central supply. Mr. Reddington was re-intubated and resuscitated, but had suffered
-3- a hypoxic brain injury due to a lack of oxygen. He never regained consciousness,
was subsequently removed from life support, and died.
Several months later, Karen Reddington,1 individually and as the
executrix of the estate of Mr. Reddington (“Appellee”), filed the instant medical
negligence action against Appellants in Jefferson Circuit Court. Appellee sought
damages for Mr. Reddington’s pain, suffering, and mental anguish, as well as for
medical expenses, funeral costs, and loss of consortium. Protracted litigation
followed, resulting in a jury trial conducted in February and March of 2022. The
jury returned an award in favor of Appellee in the amount of $3,913,180.55.
Appellants’ post-judgment motions were denied, and this appeal followed.
ARGUMENTS AND ANALYSIS
Appellants first argue that the Jefferson Circuit Court committed
reversible error in failing to grant its motion for summary judgment. They assert
that Appellee failed to produce any expert testimony related to medical causation,
with Appellee instead arguing that its experts’ opinions on standard of care
breaches were sufficient. According to Appellants, Appellee’s experts testified
that they would not offer any opinion on causation at trial. At most, Appellants
assert that Appellee’s experts testified as to physician conduct, for which
Appellants were not responsible. Though Advance Practice Registered Nurse
1 Karen and Donald Reddington were married.
-4- (“APRN”) Robert Rogers testified as to causation, Appellants argue that Rogers
did not offer expert testimony to a reasonable degree of medical probability, and
did not express an opinion that Appellants’ conduct was the proximate cause of
Mr. Reddington’s death. The focus of Appellants’ argument on this issue is that
without any sworn testimony on causation regarding Appellants’ conduct,
Appellee was forced to cite its expert disclosures as the sole source of expert
opinion on causation. Appellants argue that even when viewing the evidence in
Appellee’s favor, summary judgment was appropriate because Appellee did not
offer any affirmative expert evidence relating to causation and Appellants’
conduct.
In response, Appellee argues that Appellants failed to comply with
Kentucky Rules of Civil Procedure (“CR”) 76.12(4)(c)(v),2 which requires at the
beginning of the argument a statement with reference to the record showing
whether the issue was properly preserved for review and, if so, in what manner.
Appellee notes that Appellants failed to identify in either the Notice of Appeal or
its brief any written order denying its July 21, 2021 motion for summary judgment.
Further, Appellee contends that even if Appellants identified in the record an order
2 CR 76.12(4)(c)(v) was replaced by the Kentucky Rules of Appellate Procedure (“RAP”) 32(A)(4) effective January 1, 2023. We will refer to these rules interchangeably as the context requires.
-5- denying summary judgment, such an order would not be appealable because it was
subsumed by the judgment.
Appellants have not complied with the former CR 76.12(4)(c)(v),
which required,
[a]n argument conforming to the statement of Points and Authorities, with ample supportive references to the record and citations of authority pertinent to each issue of law and which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.
Appellants’ argument section of the brief does not contain a statement
at the beginning with reference to the record showing whether each issue was
properly preserved for review and, if so, in what manner.
“A brief may be stricken for failure to substantially comply with the
requirements of these rules.” RAP 31(H)(1). The rule requiring an argument
section including a statement of preservation is a substantial requirement of RAP
32 encompassed by RAP 31(H)(1).
When a party fails to abide by the Rules of Appellate Procedure, we
may choose “(1) to ignore the deficiency and proceed with the review; (2) to strike
the brief or its offending portions . . . ; 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.
-6- 2010) (citation omitted); see also Ford v. Commonwealth, 628 S.W.3d 147, 153-55
(Ky. 2021).
It appears that either the Jefferson Circuit Court made no ruling on
Appellants’ summary judgment motion or, if it made the ruling, it was not
designated in the appellate record. In either instance, as Appellants have not cited
the circuit court’s response, if any, to its motion for summary judgment, there is
nothing for us to review. The duty rested with Appellants to insist upon a ruling,
and the failure to do so constitutes a waiver of the motion. Transportation Cabinet
Bureau of Highways, Com. of Ky. v. Leneave, 751 S.W.2d 36, 38 (Ky. App. 1988).
Per Hallis, supra, we have reviewed Appellants’ argument on this
issue for manifest injustice only. “Manifest injustice” requires a showing that a
different result was probable, or that the error in the proceeding was of such
magnitude as to be “shocking or jurisprudentially intolerable.” Martin v.
Commonwealth, 207 S.W.3d 1, 3-4 (Ky. 2006).
Appellants’ motion for summary judgment centered on causation, i.e.,
its claim that even when viewed in a light most favorable to Appellee, Appellee
could not present sufficient expert testimony at trial to demonstrate that
Appellants’ negligence proximately resulted in Mr. Reddington’s death. Appellee
tendered expert witness disclosures in pre-trial proceedings, and these experts
testified at trial in a manner sufficient to persuade the jury on Appellee’s
-7- negligence claim. Further, Appellants did not move for a directed verdict on
causation at the close of Appellee’s evidence nor the close of all of the evidence.
Having closely examined the record and the law on this issue, we do not find that a
different result was probable, nor that the purported error in the proceeding was of
such magnitude as to be shocking or jurisprudentially intolerable but for the
alleged error. Martin, supra. Accordingly, we find no manifest injustice.
Appellants next argue that the circuit court committed reversible error
in improperly submitting Instruction No. 4 to the jury. This instruction stated:
It was the duty of Jewish Hospital, by and through its employees, to establish and follow procedures regulating the administration of care to patients, including Donald Reddington, and to exercise the degree of care and skill ordinarily expected of a reasonable prudent hospital by and through its employees acting under similar circumstances.
Appellants argue that this instruction improperly placed two duties on it – one
specific and one general; that is, 1) to create and follow procedures regulating the
administration of care to patients, and 2) to exercise ordinary care. Appellants
contend that there is no duty under Kentucky law to create and follow procedures
relating to patient care. In support of this proposition, Appellants direct our
attention to Lake Cumberland Regional Hospital, LLC v. Adams, 536 S.W.3d 683,
695 (Ky. 2017). Appellants assert that simple, “bare bones” instructions are
-8- required under Kentucky law, and that Instruction No. 4 demanded more of
Appellants than the law requires. On this basis, they request a new trial.
As with its first argument, Appellants failed to preserve this argument
for appellate review as formerly required by CR 76.12(4)(c)(v). Again, our options
are to ignore the deficiency and proceed with the review; to strike the brief or its
offending portions; or, to review the issues raised in the brief for manifest injustice
only. Hallis, supra. As it is clear from the record that Appellants challenged
Instruction No. 4 below, and Appellee so acknowledges, sanctions for violating CR
76.12(4)(c)(v), which include striking Appellants’ brief and dismissing his appeal,
are not warranted. See Baker v. Campbell County Board of Education, 180 S.W.3d
479, 482 (Ky. App. 2005). Accordingly, we will consider this claim of error as if it
were properly preserved.
The focus of Appellants’ argument on this issue is its contention that
the Jefferson Circuit Court erred in imposing upon Appellants a novel and
improper duty to establish and follow patient procedures. We do not read Adams,
supra, and the related case law as holding that such an instruction is improper.
Rather than holding that an instruction on hospital policy or procedures is
improper, Adams held that the plaintiff therein was not entitled to such an
instruction.
-9- Humana of Kentucky, Inc. v. McKee, 834 S.W.2d 711 (Ky. App.
1992), is instructive. In McKee, a teenage boy, by and through his parents, alleged
that when he was an infant, Humana was negligent in failing to diagnose the
child’s treatable metabolic disorder via a PKU test which proximately resulted in a
lifetime of disability. After the boy and his father were awarded a multimillion-
dollar judgment, Humana argued on appeal that a jury instruction improperly set
forth two duties – one to establish and follow procedures and another to exercise
ordinary care.
In rejecting Humana’s argument, a panel of this Court determined that
the phrase “in establishing and following procedures” in the instruction did not
create an additional duty, but merely qualified Humana’s duty to exercise ordinary
care. The Court said:
Finally, Humana argues that Instruction No. 2b had the effect of demanding more of it than the law requires because it not only imposed a duty upon the hospital to exercise ordinary care in administering the PKU test, but it also imposed a duty upon the hospital to establish and comply with procedures regulating the administration of the test. However, we agree with the trial court that the phrase “in establishing and following procedures” in Instruction No. 2b did not impose a separate legal duty upon Humana but, rather, merely served as qualifying language which the court utilized in defining Humana's duty to exercise ordinary care. Moreover, we reject
-10- Humana’s argument that Instruction No. 2b violates the dictates of Rogers v. Kasdan, supra, in any respect.[3]
Id. at 722-23.
McKee stands for the proposition that instructional language
addressing the duty to establish and follow procedures merely qualifies the
underlying duty of ordinary care. Such language does not create a new and
unwarranted duty contrary to established precedent. Instruction No. 4 contained
qualifying language similar to that addressed in McKee, and did not create a new
duty unsupported by the case law. We find no error.
Appellants’ next claim of error centers on physical and electronic
records of Mr. Reddington’s cardiac function recorded in the minutes leading up to
and during the code blue event. In addition to appearing on monitors, Mr.
Reddington’s cardiac function was recorded electronically in his hospital room, at
the nurse’s station, and in a remote telemetry unit. Appellants’ code sheet also had
a space to preserve cardiac rhythm strips. Multiple lay and expert witnesses would
later testify that common practice or policy was to print and/or electronically
preserve such records after a code blue in order to memorialize the event. The
3 Rogers v. Kasdan, 612 S.W.2d 133, 136 (Ky. 1981), stated that a jury instruction “should not contain an abundance of detail, but should provide only the bare bones of the question for jury determination. This skeleton may then be fleshed out by counsel on closing argument.”
-11- recordings at issue, however, were not retained by Appellants, and Appellants’
failure to retain the records became an issue at trial.
At the close of the proceedings, the Jefferson Circuit Court gave the
jury Instruction No. 3, a spoliation instruction, which stated:
If you find from the evidence that the cardiac rhythm strips or records should have been preserved for the period immediately prior to and during Mr. Reddington’s code event, and if you further find from the evidence that Defendant, Jewish Hospital, intentionally and in bad faith lost or destroyed the cardiac rhythm strips or records, you may, but are not required to, infer that the information recorded in the cardiac rhythm strips would be, if available, adverse to Defendants and favorable to the Plaintiff.
Appellants argue that by issuing the Instruction No. 3, the circuit court
committed reversible error because, 1) no documents were missing “utterly without
explanation” as addressed in University Medical Center, Inc. v Beglin, 375 S.W.3d
783, 790 (Ky. 2011), as modified on denial of reh’g (Mar. 22, 2012); 2) Appellants
were not on notice that the documents were relevant to any litigation when the
records were not retained, which is consistent with Appellants’ customary retention
policy; and, 3) there was no evidence of bad faith.
Beglin does not support Appellants’ claim of error on this issue. In
Beglin, a jury determined that University Hospital was negligent, by and through
its employees, in causing the death of Jennifer Beglin. The jury awarded Beglin’s
estate over $9,000,000 in compensatory and punitive damages. On appeal, the
-12- hospital argued that the trial court’s spoliation instruction was erroneous. That
instruction stated:
If you find from the evidence that an incident report was in fact prepared by Nurse Barbara Cantrell recording material information about Mrs. Beglin’s surgery, and if you further find from the evidence that University Medical Center, Inc. d/b/a University of Louisville Hospital, intentionally and in bad faith lost or destroyed the incident report, you may, but are not required to, infer that the information recorded in the incident report would be, if available, adverse to University Medical Center and favorable to the plaintiffs.
The Kentucky Supreme Court determined that the spoliation instruction in Beglin
was proper. The Court stated that,
[t]his remains the approved instruction in both criminal and civil cases. See Monsanto Co. v. Reed, 950 S.W.2d 811, 815 (Ky. 1997) (“Where the issue of destroyed or missing evidence has arisen, we have chosen to remedy the matter through evidentiary rules and ‘missing evidence’ instructions.”) All agree that the Sanborn[4] instruction accurately sets forth the elements necessary to permit a jury to draw an adverse inference from missing evidence.
The text of the instruction further demonstrates two important factors relevant to our review. First, the instruction contemplates that the jury will engage in fact- finding (“If you find from the evidence . . .”), thereby implying that, like any other issue, if there is a factual dispute in relation to the issue, the jury will resolve the disagreement. This obviously implies that, under our law, the trial court does not make any final and
4 Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky. 1988), addressed the form for a missing evidence instruction.
-13- conclusive factual determination upon the elements of a missing evidence instruction. Second, the adverse inference portion of the instruction is optional (“you may, but are not required, to infer . . .”). The approved instruction does not impose upon the jury a duty to draw the adverse inference even when it believes the evidence was intentionally disposed of.
As a final note, the instruction did not require the jury to affirmatively indicate in the jury verdict forms its findings or determinations in relation to the instruction. We therefore do not know if the jury found for or against University Hospital under the instruction and, consequently, whether it had any impact at all on the verdicts. It is possible that the jury concluded that the report was lost innocently, and did not hold the disappearance of the report against University Hospital.
Beglin, 375 S.W.3d at 788 (emphasis in original) (footnote omitted).
Instruction No. 3, now before us, closely mirrors the instruction in
Beglin. Like the Beglin instruction, Instruction No. 3 contains the same or similar
“[i]f you find from the evidence” and “you may, but are not required to, infer”
language. And as with the Beglin instruction, Instruction No. 3 did not require the
jury to make a “yes” or “no” response, but allowed it to make or not make an
inference from the evidence. Per Beglin, we are not persuaded by Appellants’
argument that Instruction No. 3 was erroneous and requires a new trial.
Appellants’ assertions that they were not on notice that the documents were
relevant to any litigation when they were not retained, and that they did not act in
bad faith, do not alter that conclusion.
-14- Appellants’ next argument is that the circuit court erred in allowing
the use of privileged documents at trial contrary to the law of the case. During the
course of litigation, Appellants sought and received a writ of prohibition barring
Appellee from entering Appellants’ root-cause analysis report (“RCA”) into
evidence. Jewish Hospital v. Perry, 626 S.W.3d 509 (Ky. 2021). The RCA
process was initiated several weeks after Mr. Reddington’s death by then interim
risk manager, Melanie Woodring, after it became apparent that Appellee might file
a lawsuit. A group of hospital personnel, including Ms. Woodring, the Chief
Medical Officer, the Director of Nursing, and the Assistant Nurse Manager –
together referred to as the “Code E Team” – evaluated the care received by Mr.
Reddington, reviewed the professional competency of hospital staff, and
determined whether changes in care were warranted. Appellants argue that the
circuit court improperly allowed evidence to be admitted at trial in violation of the
writ.
Again, Appellants have not preserved this matter for appellate review
in the manner required by the former CR 76.12(4)(c)(v). See Hallis, supra, for the
reasons why compliance with the briefing rules is not merely a convenience to the
Court, but is a necessity for carrying out the ends of justice. Per Hallis, we will
review this claim of error for manifest injustice.
-15- Appellants direct our attention to Kentucky Revised Statute (“KRS”)
311.377(2), which states:
At all times in performing a designated professional review function, the proceedings, records, opinions, conclusions, and recommendations of any committee, board, commission, medical staff, professional standards review organization, or other entity, as referred to in subsection (1) of this section, shall be confidential and privileged and shall not be subject to discovery, subpoena, or introduction into evidence, in any civil action in any court, including but not limited to medical malpractice actions . . . . The confidentiality and privilege protections of this subsection shall only be available to a person or entity that attests to participating in a patient safety and quality improvement initiative[.]
Appellants argue that per KRS 311.377(2) and the Supreme Court’s writ of
prohibition in Perry, supra, that the Jefferson Circuit Court improperly admitted
into evidence at trial information contained in the RCA report, and/or related
information from Appellants’ Incident Report and QRS Alert.5 The Incident
Report was completed by nurse McGee about one day after the code blue event
and served as a basis for the subsequent physician peer review. Appellants assert
that all information contained in or relating to the RCA report, Incident Report, and
QRS Alert, as well as any related witness testimony, was privileged and should not
have been admitted at trial. While acknowledging that none of the privileged
5 The writ of prohibition rendered by the Kentucky Supreme Court in Perry, supra, barred only the admission of the RCA. Appellants state that a QRS Alert is a policy change.
-16- documents were admitted into evidence, Appellants assert that the circuit court
improperly allowed into evidence certain witness testimony which paralleled the
content of the privileged documents.
In addition to not preserving this argument for review as required by
the former CR 76.12(4)(c)(v), Appellants do not cite or otherwise quote any
specific testimony it finds objectionable. No specific rulings rendered by the
circuit court at trial, if any, are cited or preserved. Rather, Appellants provide
several footnotes in which they claim that privileged information was improperly
revealed at trial, but no specific testimony is quoted or cited therein.
Appellants direct our attention to motions in limine filed about two
months prior to trial, but these are not preserved and not addressed in the Notice of
Appeal. Further, Appellants acknowledge that none of the purportedly privileged
documents were admitted into evidence at trial.
As noted above, “manifest injustice” requires a showing that a
different result was probable, or that the error in the proceeding was of such
magnitude as to be “shocking or jurisprudentially intolerable.” Martin, 207
S.W.3d at 3-4. Based on the entirety of the record, including the uncontroverted
testimony regarding the events leading up to and including the code blue and Mr.
Reddington’s subsequent death, we do not conclude that the result of the
-17- proceeding would have been different but for the alleged error, nor that the error
was shocking or jurisprudentially intolerable.
Lastly, Appellants argue that the QRS Alert was inadmissible by
operation of Kentucky Rules of Evidence (“KRE”) 407, which states:
When, after an event, measures are taken which, if taken previously, would have made an injury or harm allegedly caused by the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
This argument parallels Appellants’ preceding argument. It was not
preserved for review, and Appellants acknowledge that the QRS Alert document
was not entered into evidence. We find no error.
CONCLUSION
Appellants were not entitled to summary judgment, and the circuit
court did not err in its negligence and missing evidence instructions. We find no
basis for concluding that the circuit court improperly admitted privileged
documents into evidence, nor that any testimony was violative of the writ of
prohibition. For these reasons, we affirm the March 23, 2022 judgment of the
Jefferson Circuit Court, and April 29, 2022 order denying post-judgment relief.
-18- ECKERLE, JUDGE, CONCURS.
CENTRULO, JUDGE, CONCURS IN RESULT ONLY AND FILES SEPARATE OPINION.
CENTRULO, JUDGE, CONCURRING IN RESULT: Respectfully, I
concur in result only. I believe that the alleged errors were sufficiently referenced
for our appellate review. Our appellate court rules require a reference to the
location in the record at the beginning of each argument. The references herein
were largely in footnotes and/or the appendix, but I believe that was sufficient to
allow our full review.
However, I agree with the majority that the summary judgment denial
was not properly preserved below as there was no ruling ever entered on that
motion. Moreover, as to the other alleged errors, those are all matters that rest
within the discretion of the trial judge. Appellant claims the trial court erred in
placing two duties on the hospital with the wording of Instruction No 4. However,
the trial court considered arguments on the instructions by both parties, reviewed
case law and pattern instructions, and clearly considered the evidence presented
over nine days of trial. The trial court then instructed the jury in keeping with the
standard jury instruction manuals and with medical malpractice case law. I agree
with appellant that the better language would have been “that the hospital has a
duty IN establishing and following procedures” rather than the use of AND in
-19- setting forth the duty of ordinary care. However, it did not rise to the level of an
abuse of discretion.
Similarly, regarding the spoliation instruction given to the jury, we are
limited in our review on appeal. Trial courts are vested with wide discretion in
deciding what admonitions and instructions to the jury are appropriate under the
evidence and attendant circumstances. Our standard of appellate review is for
abuse of discretion. As the majority noted, University Medical Center v Beglin,
375 S.W.3d 783 (Ky. 2011), is dispositive on this issue, and the Beglin court opted
for a flexible standard that grants wide discretion to the trial court . Norton
Healthcare, Inc. v. Disselkamp, 600 S.W.3d 696, 730 (Ky. 2020). Similarly, the
appellant cannot prevail on its argument as to improper references to subsequent
remedial measures as the trial court gave the proper admonition to the jury
consistent with Davenport By & Through Davenport v. Ephraim McDowell
Memorial Hospital, Inc., 769 S.W.2d 56 (Ky. App. 1988).
I turn now to the argument on admissibility of privileged information
(as determined by the Supreme Court earlier in Jewish Hospital v. Perry, 626
S.W.3d 509 (Ky. 2021)). On this point, Jewish Hospital again did not obtain a
ruling on its motion in limine pertaining to two documents, the Incident Report and
the QRS Alert. Instead, the trial court passed consideration of admissibility of
those items until trial. At trial, the trial court did not allow the documents to be
-20- admitted at trial, but did allow testimony from several witnesses regarding facts
contained in those two documents. That testimony was without any
contemporaneous objection, and that testimony did not violate the Supreme
Court’s ruling in Perry. The text of that opinion makes it clear that their review
was limited to the admissibility of a root cause analysis report only.
For the foregoing reasons, I concur with the Opinion affirming the
judgment which upholds the jury verdict herein.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE:
B. Todd Thompson Jack Conway Eleanor M. B. Davis Louisville, Kentucky Joseph A. Wright Louisville, Kentucky Kevin C. Burke Jamie K. Neal ORAL ARGUMENTS FOR Louisville, Kentucky APPELLANTS: ORAL ARGUMENTS FOR Joseph A. Wright APPELLEE: Louisville, Kentucky Jack Conway Louisville, Kentucky
-21-