RENDERED: DECEMBER 13, 2018 TO BE PUBLISHED
2017-SC-000440-DG
JEWISH HOSPITAL & ST. MARY’S APPELLANT HEALTHCARE, INC. D/B/A JEWISH HOSPITAL MEDICAL CENTER SOUTH
ON REVIEW FROM COURT OF APPEALS V. CASE NOS. 2015-CA-001205 AND 2015-CA-001278 BULLITT CIRCUIT COURT NO. 12-CI-01132
BARBARA HOUSE, ADMINISTRATRIX OF APPELLEES THE ESTATE OF LAURA B. ALEXANDER, DECEASED; BARBARA HOUSE, CO- GUARDIAN OF KAYLEN ALEXANDER, A MINOR; AND DARRELL HOUSE, CO- GUARDIAN OF KAYLEN ALEXANDER, A MINOR
OPINION OF THE COURT BY JUSTICE KELLER
REVERSING AND REINSTATING
Laura Alexander was a patient at Jewish Hospital Medical Center South
(“Jewish Hospital”). She was treated and released on November 28, 2011.
Tragically, later that evening, Laura was taken by ambulance to Jewish
Hospital in downtown Louisville. She died several hours later from cardiac
arrest secondary to a staph aureus infection in her blood. Barbara House,
Laura’s mother and administratrix of her estate, brought suit in Bullitt Circuit
Court, alleging medical malpractice against Dr. Charles Sherrard, Jr., Jewish
Hospital, and Dr. Sherrard’s professional group. Dr. Sherrard settled the claims against him but the case against Jewish Hospital proceeded to trial,
after which a jury found in favor of Jewish Hospital. The Court of Appeals
reversed and remanded for a new trial. This Court granted discretionary
review. For the following reasons, we now reverse and reinstate the judgment
of the Bullitt Circuit Court.
I. BACKGROUND
Laura, then thirty-three years old, came into Jewish Hospital’s
Emergency Room (“ER”) early on the morning of November 28, 2011. She
complained of dark urine, feeling dehydrated, muscular pain, and weakness in
her arms and legs. Although her blood pressure was in the normal range, her
heartrate was elevated at 148 beats per minute (bpm). Dr. Sherrard evaluated
Laura at approximately 6:15 a.m.; he obtained a medical history, ordered lab
tests, and ordered two liters of intravenous fluids to be administered.
Early during Laura’s stay, the nursing shift changed, and Nurse Charity
Johnston began assisting in Laura’s treatment. Johnston administered the
first liter of fluids at 6:30 a.m.; at 8:08 a.m., Dr. Sherrard re-evaluated Laura
and noted that her heartrate had decreased to between 114 and 118 bpm.
During this re-evaluation, Laura informed Dr. Sherrard that she had exercised
strenuously a few days earlier. Due to this new information, Dr. Sherrard
suspected that Laura’s symptoms were caused by rhabdomyolysis, muscle
fibers breaking down after physical damage. Laura’s potassium was decreased
in her lab results so Dr. Sherrard also diagnosed Laura with hypokalemia, a
2 potassium deficiency, as well as acute dehydration, exercised-induced myositis
(inflammation of muscle tissue), and myofascial (muscular irritation) pain.
At 8:15 a.m., Dr. Sherrard entered an order discharging Laura,
conditioned upon her receiving a second liter of fluids. Johnston administered
the second liter at 8:18 a.m. At that time, Laura’s heartrate was 124 bpm. At
9:47 a.m., Johnston discharged Laura. At that time her heartrate was 132
bpm. Although her heartrate was lower than when she first presented in the
ER, it was higher than when Dr. Sherrard had last evaluated Laura. Johnston
did not notify Dr. Sherrard of this change but, instead, continued with the
discharge instruction. Johnston stated that she felt, in her nursing judgment,
that Laura’s heartrate at discharge was consistent with what it had been at the
time Dr. Sherrard had ordered the conditional discharge.
Laura’s discharge from Jewish Hospital, while still tachycardic, was the
focal point of the alleged malpractice of both Dr. Sherrard and Nurse Johnston.
During his deposition testimony, Dr. Sherrard explained that there were
several factors he felt contributed to Laura’s increased heartrate: she had just
finished taking Flexeril (prescribed for muscular pain) which can cause
tachycardia; tachycardia can occur with dehydration and may not completely
resolve with fluids; and Laura’s heartrate at a recent visit to the ER was also
above 100, so her baseline may be higher than normal.
Laura went home with her mother and spent most of the day in bed. At
about 7:00 p.m. that same evening, Laura experienced sudden shortness of
breath and paralysis in her arms and legs. She was taken by ambulance to
3 Jewish Hospital’s downtown Louisville facility. After a thorough examination
and aggressive care, doctors determined that Laura was in septic shock. When
Laura visited the emergency room earlier that day, she had not presented with
fever, chills, or any of the normal signs of infection, per Dr. Sherrard. Upon
admission that evening, the doctors and nurses at the downtown facility
administered antibiotics upon determining she was in septic shock. Sadly, the
professionals were unable to save Laura. She passed away shortly after
midnight from cardiac arrest, secondary to a staph aureus infection in her
blood. It was later determined that Laura had been treated several weeks prior
for a boil;1 it had been surgically lanced and was the probable cause of the
sepsis that led to Laura’s death.
Dr. Sherrard settled Laura’s estate’s claims against him. The claims
against Jewish Hospital proceeded to trial. Dr. Sherrard was not present at
trial; his video deposition was played for the jury. He was still included as a
party to the proceedings for apportionment purposes under Kentucky Revised
Statute (“KRS”) 411.182.2 At the close of plaintiffs case, Jewish Hospital’s
counsel moved for directed verdict, claiming that the plaintiffs had failed to
prove causation. The trial court denied the motion. Jewish Hospital then
1 This fact was unknown to Dr. Sherrard or Jewish Hospital personnel when Laura came into the ER that morning. 2 “In all tort actions ... involving fault of more than one (1) party ... including third-party defendants and persons who have been released ... the court ... shall instruct the jury to answer interrogatories ... indicating: (a) The amount of damages each claimant would be entitled to recover if contributory fault is disregarded; and (b) The percentage of the total fault of all the parties to each claim that is allocated to each claimant, defendant, third-party defendant, and person who has been released from liability ...” KRS 411.182( 1).
4 moved for directed verdict on standard of care as to Dr. Sherrard; counsel
argued that it was undisputed by the parties that Dr. Sherrard’s conduct fell
below the standard of care. Laura’s estate’s counsel argued that, from Dr.
Sherrard’s video testimony, he testified that his conduct was appropriate.
Because Dr. Sherrard was an expert witness, this testimony was sufficient to
create an issue of fact for the jury. The judge granted Jewish Hospital’s
motion, stating that each of the expert witnesses presented by Laura’s estate
had testified that Dr. Sherrard’s conduct was below the standard of care. The
case was presented to the jury with an instruction that Dr. Sherrard had fallen
below the standard of care. The jury returned a verdict for Jewish Hospital.
The Estate appealed. The Court of Appeals determined that, not only
was the trial court’s grant of directed verdict in error, but also held that a trial
court cannot grant a directed verdict of negligence against an empty-chair
defendant. The Court of Appeals cited to this Court’s case in CertainTeed Corp,
v. Dexter, 330 S.W.3d 64 (Ky. 2010) as the foundation of its broad holding. The
Court of Appeals reversed the judgment and remanded the case for a new trial.
Jewish Hospital moved this Court for discretionaiy review, which we granted.
II. STANDARD OF REVIEW
On appeal, the central issue before this Court is whether the trial court
erred in granting a directed verdict on the issue of Dr. Sherrard’s failing to
meet the relevant standard of care. “[A] trial judge cannot enter a directed
verdict unless there is a complete absence of proof on a material issue or if no
disputed issues of fact exist upon which reasonable minds could differ?
5 Argotte v. Harrington, 521 S.W.3d 550, 554 (Ky. 2017) (quoting Bierman v.
Klapheke, 967 S.W.2d 16, 18-19 (Ky. 1998)). “The trial court must draw all fair
and reasonable inferences from the evidence in favor of the party opposing the
motion.” Argotte, 521 S.W.3d at 554 (quoting Commonwealth v. Sawhill, 660
S.W.2d 3, 5 (Ky. 1983)). “On appellate review of an order granting a directed
verdict, the test is whether Tinder the evidence as a whole it would not be
clearly unreasonable for a jury to find [for the plaintiff].”’ Argotte, 521 S.W.3d
at 554 (quoting Sawhill, 660 S.W.2d at 5).
III. ANALYSIS
A. MAY A TRIAL COURT ENTER DIRECTED VERDICT AGAINST AN EMPTY-CHAIR DEFENDANT?
On direct appeal, the Court of Appeals discussed the oddity of a
plaintiffs case involving an empty-chair defendant. “The plaintiffs strategy in
such cases is turned on its head.” The plaintiff no longer hopes to prove this
absent actor at fault, but rather to minimize that party’s comparative fault and,
thus, maximize recovery from the party proceeding to trial. Noting this
irregularity, the Court of Appeals cited to this Court’s opinion in CertainTeed v.
Dexter, stating that “[e]mpty-chair defendants who have settled are to be
treated no differently than participating defendants in regard to what must be
proved to apportion fault against them [even t] hough the empty-chair
defendant will not actually be held liable in the trial, since it is literally not on
trial ...” 330 S.W.3d 64, 74 (Ky. 2010). In an attempt to clarify the rule, the
Court of Appeals stated: “the party who benefits by the jury’s belief in the fault
6 of the empty-chair defendant bears the burden of proving by a preponderance
of the evidence every element of the empty-chair defendant’s liability, just as if
he or she was still exposed to indeterminate liability and still had a presence in
the courtroom.”
The “crux” of the reversible error found by the Court of Appeals was “the
trial court’s failure to consider the effect of the shifting burden of proof in an
empty-chair defendant tort case.” The Court of Appeals determined the
directed verdict as to Dr. Sherrard’s liability was, therefore, premature. “[W]e
would never have permitted a directed verdict at the close of the plaintiffs case
against Jewish Hospital - the “participating defendant[]” as CertainTeed would
call it.” Applying the same rule to the scenario before it, the Court of Appeals
plainly held: “No directed verdict may be entered against an empty-chair
defendant prior to the close of all evidence.”
To determine whether such a holding is correct, this Court must first
analyze its own precedent in CertainTeed to determine the true implications of
that case. Additionally, we must probe the rule on directed verdicts and then,
applying CertainTeed, decide how the rules and precedent must co-exist.
1. CertainTeed v. Dexter
CertainTeed v. Dexter was an asbestos-related products liability case
against nineteen separate defendants. 330 S.W.3d at 68. All but two
defendants settled or were dismissed from the case, leaving only the two
remaining defendants to proceed to trial. Id. The other seventeen defendants
were considered “empty-chair” defendants at trial. Id. Dexter was a pipefitter
7 from 1946 until 1984. Id. He was diagnosed with lung cancer and sued the
nineteen defendants for products liability and negligence. Id. at 69. The
nineteen companies either made asbestos products, which Dexter used in his
work, or owned buildings in which Dexter was exposed to asbestos. Id. At
trial, CertainTeed was one of the present defendants; the proof showed that
Dexter was only exposed to CertainTeed’s products for one week out of his
forty-year career. Id. Despite a wealth of proof that much of Dexter’s exposure
was due to the empty-chair defendants, the jury allocated no fault to any of the
absent defendants. Id. The trial court, upon defense motion, granted a new
trial because this failure to apportion fault to any empty-chair defendant was
manifestly against the evidence. Id. at 69-70. On retrial, the jury did allocate
fault to some of the empty-chair defendants. Id. at 70. Plaintiffs then
appealed, arguing that that trial court erred in granting the new trial. Id.
Procedurally, this Court addressed the standard of review for a trial
court’s grant of new trial but, substantively, this Court grappled with how to
treat empty-chair defendants for apportionment purposes. Id. at 71-74.
“Ordinarily, to apportion fault among multiple tortfeasors, the plaintiff must
prove each tortfeasor’s liability beyond the plaintiff[’]s burden of proof[].]” Id. at
73. But, when one defendant settles, leaving another defendant at trial, “[t]he
burden of proof in such a case is effectively shifted[.]” Id. Rather than a
plaintiff attempting to maximize all parties’ liability, a defendant attempts to
shift blame onto another party, minimizing the recovery against them. “[I]t is
the participating defendant, not the plaintiff, who seeks to show that the
8 empty-chair defendant is responsible.” Id. “[T]he participating defendant is
merely seeking a reduction of its liability.” Id. To thus still require a plaintiff
to prove liability as to a settling defendant would be counter-productive; it
would also disincentivize plaintiffs from settlement in some ways. For what is
the point of settlement if a plaintiff must still carry the burden against that
defendant for recovery against a separate entity?
To simplify the process and clarify the law, this Court attempted to
explain how to treat these absentee defendants:
Empty-chair defendants who have settled are to be treated no differently than participating defendants in regard to what must be proved to apportion fault against them. Though the empty-chair defendant will not actually be held liable in the trial, since it is literally not on trial, a participating defendant must still prove liability on the part of the tortfeasor onto whom it seeks to shift some of the blame.
Id. at 74. This principle is consistent with Kentucky’s adoption of comparative
fault. Id. If the evidence is sufficient to submit an empty-chair defendant’s
fault to the jury, such an allocation comports with the principles of
comparative negligence. Id.
The Court then applied the law to Dexter’s case. Id. at 75-83. Much of
the evidence presented, by both Dexter and CertainTeed, showed that Dexter’s
exposure to asbestos was caused, at least in part, by the empty-chair
defendants. Id. Thus, the trial court did not err in granting a new trial to
provide for apportionment among all potentially liable parties, whether those
parties were at trial or not. Id. at 83. Contrary to the statements of the Court
of Appeals in this case, CertainTeed was not a broad policy decision, dictating
9 every procedural step in a case with an empty-chair defendant. Rather, the
case related to a very specific question: what must a defendant present in its
case to create sufficient basis to present the jury with an empty-chair
defendant’s apportionment of fault? However, as in many areas of the law, a
solution to one problem will inevitably lead to further questions. Cases
involving empty-chair defendants are complex, to be sure. The immediate case
before us presents another such issue: how should trial courts treat empty-
chair defendants in motions for directed verdict under Kentucky Rule of Civil
Procedure (“CR”) 50.01?
2. Kentucky Rule of Civil Procedure (“CR”) 50.01
CR 50.01, the rule on a motion for directed verdict, states:
A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.
CR 50.01. “Under Kentucky law, a motion for directed verdict ... should be
granted only if ‘there is a complete absence of proof on a material issue in the
action, or if no disputed issue of fact exists upon which reasonable minds
could differ.m Morales v. American Honda Motor Co., Inc., 151 F.3d 500, 506
(6th Cir. 1998) (quoting Adam v. J.B. Hunt Transp., Inc., 130 F.3d 219, 231 (6th
Cir. 1997) (quoting Washington v. Goodman, 830 S.W.2d 398, 400 (Ky. App.
1992))). “The controlling single question on a motion for a directed verdict, 10 either at the close of plaintiffs evidence, or at the close of all evidence, is
whether the plaintiff has sustained the burden of proof by ‘more than a
scintilla of evidence'[.]” James v. England, 349 S.W.2d 359, 361 (Ky. 1961)
(citing Wadkins’ Adm’x v. Chesapeake & Ohio Railway Co., 298 S.W.2d 7 (Ky.
1956)).
However, the language of this precedent leads to the inevitable difficulty
in the case before us. The trial court did not grant a directed verdict in the
“complete absence of proof on a material issue in the action.” Quite to the
contrary, the trial court determined there was nothing left for the jury to
determine against an absent party and entered a partial directed verdict on an
issue of liability. Thus, the trial court determined there was no dispute as to a
material issue in the action. The trial court did not question whether the
“plaintiff has sustained [its] burden.” Under CertainTeed, it was not the
Estate’s burden here to prove Dr. Sherrard’s liability or lack thereof. Instead, it
was Jewish Hospital’s burden to present evidence shifting the apportionment of
fault to Dr. Sherrard’s breach of the standard of care.
Perhaps it is this confusing jumble of questions that presents such a
quandary as to the appropriateness of the trial court’s actions here. For really,
what the court granted was not a directed verdict. The court’s so-called
directed verdict at the close of plaintiffs case was more similar, in practice, to a
partial summary judgment as to the issue of Dr. Sherrard’s breach of duty. “In
Kentucky, ... a ruling on a summary judgment is a more delicate matter and []
its inquiry requires a greater judicial determination and discretion since it
11 takes the case away from the trier of fact before the evidence is actually heard.”
Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 482 (Ky. 1991)
(citing Payne v. Chenault, 343 S.W.2d 129 (Ky. 1960) and Rowland v. Miller’s
Adm’r, 307 S.W.2d 3 (Ky. 1956)). “There is a great difference between
discovering whether there be an issue of fact and deciding such an issue.”
Rowland, 307 S.W.3d at 6 (citing Farrall v. Dist. of Columbia Amateur Athletic
Union, 153 F.2d 647 (D.C. Cir. 1946)). Here, Jewish Hospital argued that there
was “no dispute” as to Dr. Sherrard’s breach of the standard of care. In this
way, the motion was more like one of a partial summary judgment rather than
a directed verdict. However, this does not resolve the issue before this Court
because what the trial court granted, and instructed the jury on, was a partial
directed verdict. What is still perplexing within this case is the procedural
posture of the parties at the time of the motion.
To place this discussion in perspective, let us examine the ordinary issue
before a court when determining whether a directed verdict is appropriate. In
the criminal context, the Commonwealth presents its case against a defendant.
At the close of that evidence, the defendant moves for directed verdict, claiming
that the Commonwealth has failed to meet its burden in proving the case. The
situation presented by Jewish Hospital is quite different. In the same criminal
context, the analogous situation would be: the Commonwealth proceeds to trial
against two co-defendants. At the close of the Commonwealth’s evidence, one
co-defendant requests a directed verdict against his co-defendant, claiming
there is going to be no evidence to disprove that co-defendant’s guilt.
12 To understand and resolve the issue before us, this Court must delve
into the mechanics and intent of CR 50.01. There are two types of directed
verdicts: (1) “the most common type of directed verdict, where the claimant
loses because claimant’s proof is inadequate [;]” and (2) “when the claimant’s
evidence is overwhelming, and in the analogous situations when the evidence
on a defense is either inadequate or overwhelming.” Michael J. Waggoner, New
Rule 50 May End Directed Verdicts for Plaintiffs, 22 SW. U.L. Rev. 389, 391
(1993). In civil cases, both these types of directed verdicts are available under
Kentucky law.3 See Droppelman v. Willingham, 169 S.W.2d 811, 814 (Ky. 1943)
(“Directed verdicts for plaintiffs in negligence cases are rare, but when the
undisputed evidence points unerringly to negligence of the defendant as the
cause of the accident, a direct verdict for the plaintiff is proper.”). Importantly,
such a directed verdict in favor of a plaintiff would only be permissible under
CR 50.01 at the close of the defendant’s proof. A party may move “for a
directed verdict at the close of the evidence offered by an opponent...” CR
50.01. Thus, a plaintiff must properly wait until a defendant has presented its
proof before requesting such a directed verdict.4 What CR 50.01 intends is to
3 The corollary directed verdict for the Commonwealth, or plaintiff, in a criminal case, however, is not procedurally proper. “It is never proper for a trial court to direct a verdict of guilty where there is a plea of not guilty, despite the fact that the evidence of his guilt may be convincing and wholly uncontradicted.” Taylor v. Commonwealth, 125 S.W.3d 216, 219 (Ky. 2003) (citing Commonwealth v. Durham, 57 S.W.3d 829 (Ky. 2001)). 4 This proposition is supported by a case cited by the Estate, Sherrard v. Oakley, 413 S.W.2d 78, 78 (Ky. 1967). There, the Court determined that plaintiffs could not obtain a directed verdict at the close of plaintiffs’ evidence. Id. “Clearly the trial court had no power to cut off defendant’s right to present his case, if he so
13 allow the party opposing the motion for directed verdict to have had an
opportunity to present its proof prior to being foreclosed from doing such.
The rule clearly encompasses motions for directed verdict by defendants
against plaintiffs and plaintiffs against defendants in the proper situation.
But, what remains unclear from the language of the rule is whether one
defendant may obtain a directed verdict against another defendant, at the close
of plaintiffs evidence. If Dr. Sherrard had been present at trial, we must hold
that the timing of Jewish Hospital’s motion was improper. The motion for
directed verdict was against Dr. Sherrard, not the Estate. Although the Estate
had its opportunity to present proof, the party against whom the motion was
made had not had an opportunity to present its case. CR 50.01 states that the
motion for directed verdict is “at the close of the evidence offered by an
opponent.” The only common-sense understanding of this rule is that the
opponent to the motion is the same “opponent” that must have closed its offer
of evidence. Thus, in theory, a co-defendant may move for directed verdict
against another co-defendant but only after that co-defendant has presented its
proof or declined to present any proof.
This Court’s predecessor addressed such an issue in Lyon v. Prater, 351
S.W.2d 173 (Ky. 1961). There, the Praters were passengers in Lyon’s vehicle.
Id. at 174-75. The Lyon and Collier vehicles collided, and the Praters sought
damages against both parties. Id. Collier moved for directed verdict at the
desired, by sustaining a motion of the plaintiffs for a directed verdict at the close of their case.” Id.
14 close of the Praters’ evidence. Id. at 175. The Court held that “the proper
practice before directing a verdict in favor of one of two or more defendants is
to allow the other defendant to present his testimony on the question of the
liability of each and all the defendants, and evidence of one defendant... may
inculpate the other the same as though proved as a part of the plaintiffs case.”
Id. at 175-76. In other words, the party against whom a directed verdict
motion is made must have an opportunity to present proof. Pursuant to Lyon,
even when a co-defendant moves for directed verdict against the plaintiff, the
other co-defendant should have an opportunity to present proof. See id. This
implication is sensible; for one co-defendant’s theory of the case may be to shift
blame to the other co-defendant, just as was the case in the trial below. Thus,
before directing a verdict, it is practical to allow all the potential proof against
the party making the motion to be entered and considered by the trial court.
Yet, Dr. Sherrard was not at trial. If he had been, his attorney would
have likely made this argument upon Jewish Hospital’s motion for directed
verdict. Dr. Sherrard had no opportunity to present proof and any such
directed verdict must wait until after such opportunity has been provided. But
Dr. Sherrard, as stated, was not present at trial. He was not going to present
any proof in response to the Estate’s case. So what effect does it create when
one of these co-defendants is not a present, physical party at trial? To
understand the interplay between CR 50.01 and this Court’s case law on
empty-chair defendants, we must apply the law of CertainTeed to CR 50.01.
15 3. Applying CertainTeed to CR 50.01
“Empty-chair defendants who have settled are to be treated no differently
than participating defendants in regard to what must be proved to apportion
fault against them.” CertainTeed, 330 S.W.3d at 74. The Court of Appeals
determined that this rule should be extended to mean that empty-chair
defendants who have settled should be treated no differently than participating
defendants. The Court of Appeals, in essence, removed the pivotal caveat to
the CertainTeed rule: empty-chair defendants must be treated the same as
participating defendants when determining apportionment offault. The rule
was crafted to comport with comparative fault principles to address a specific
issue: how to deal with apportionment after one defendant, but not all
defendants, has settled. In such a situation, “it is the participating defendant,
not the plaintiff, who seeks to show that the empty-chair defendant is
responsible.” Id. at 73. “[T]he participating defendant is merely seeking a
reduction of its liability.” Id. The CertainTeed rule is not automatic; empty-
chair defendants should not, under any and all possible circumstances, be
considered exactly the same as participating defendants. Such a bright-line
rule would inevitably create confusion. However, if allocation of fault is
concomitant to the issue before the court, then the courts must endeavor to
apply the CertainTeed rule and treat empty-chair defendants the same as
present defendants to protect the rights of all the parties involved.
The question then becomes whether this procedural oddity—a present
defendant seeking a directed verdict against an empty-chair defendant—is also
16 so intertwined with the apportionment of fault issue as to apply the
CertainTeed rule and require us to treat the empty-chair defendant the same as
the present defendant. This Court holds that Jewish Hospital’s motion for
directed verdict against Dr. Sherrard clearly implicates apportionment of fault.
Jewish Hospital’s entire motivation in showing Dr. Sherrard had, in fact,
breached his standard of care, was to minimize or eliminate its own liability for
Laura’s death. As such, the apportionment of fault becomes an issue and we
must apply the CertainTeed rule. We must treat the motion as though Dr.
Sherrard was present at trial, just as any other participating defendant.
If Jewish Hospital had moved for directed verdict at the close of the
Estate’s evidence, and Dr. Sherrard had been present, the trial court’s grant
would clearly be in error. Dr. Sherrard had no opportunity to present evidence
and defend himself. Under Lyon, the court should have permitted each co
defendant to present its case before entertaining any directed verdict motions
against any of those parties. See 351 S.W.2d at 175-176. Even under the
clear language of CR 50.01, the motion was not made at the close of the
evidence of the party against whom the motion was made. Granting this
procedurally defunct directed verdict was clearly in error. We decline to hold
as broadly as the Court of Appeals and say that such a directed verdict is
always in error. However, in applying the CertainTeed rule and CR 50.01, we
hold that the directed verdict at issue here was in error. As such, instructing
the jury as to Dr. Sherrard’s breach of duty, reflecting the erroneous directed
17 verdict, was also in error. But, we must determine whether, as Jewish Hospital
argues, that error was merely harmless and does not require reversal.
B. WAS THE ERROR IN GRANTING DIRECTED VERDICT HARMLESS?
It is a “settled maxim that ‘erroneous jury instructions are presumed to
be prejudicial[.]” Commonwealth v. Caudill, 540 S.W.3d 364, 367 (Ky. 2018)
(quoting Mason v. Commonwealth, 331 S.W.3d 610, 623 (Ky. 2011) (citing Harp
v. Commonwealth, 266 S.W.3d 813, 818 (Ky. 2008))). However, this Court has,
on occasion, determined such error does not require reversal if the
“presumption [of prejudice] can be successfully rebutted upon a showing that
the error was harmless.” Caudill, 540 S.W.3d at 367 (quoting Commonwealth
v. McCombs, 304 S.W.3d 676, 680 (Ky. 2009) (citing Harp, 266 S.W.3d at 818));
see also Weaver v. Brooks, 350 S.W.2d 639, 640 (Ky. 1961) (citing Miller v.
Miller, 296 S.W.2d 684 (Ky. 1956)) (Stating that “technically incorrect
instructions are not grounds for reversal where the rights of the losing party
are not prejudiced.”). “[T]he party defending the erroneous instruction bears
the burden of showing that no prejudice resulted.” Sargent v. Shaffer, 467
S.W.3d 198, 212 (Ky. 2015) (citing McKinney v. Heisel, 947 S.W.2d 32, 35 (Ky.
1997)).
The burden is upon Jewish Hospital to show that the Estate was not
prejudiced by the erroneous instruction here and that reversal is, thus, not
required. The Estate asserts that the jury could have easily been improperly
swayed by the instruction as to Dr. Sherrard’s breach of duty, leading to the
prejudicial verdict against the Estate. To meet its burden, Jewish Hospital
18 states that, at trial, it never argued that Dr. Sherrard’s negligence caused
Laura’s death. Instead, its argument was that any failure in Dr. Sherrard’s
care did not lead to Laura’s death. Its argument in closing refuted any
negligence on Jewish Hospital’s part but, alternatively, any negligence in either
Nurse Johnston or Dr. Sherrard’s conduct was not the legal cause of Laura’s
untimely death. However, the core of Jewish Hospital’s harmless error
argument is that, because the instruction as to Dr. Sherrard’s breach of care
(Instruction No. 2) was after Jewish Hospital’s liability instruction (Instruction
No. 1), and the jury stopped with Instruction No. 1, then the jury never reached
Instruction No. 2 regarding Dr. Sherrard.
Ironically, here, we have a war between two presumptions. It is a “settled
maxim that ‘erroneous jury instructions are presumed to be prejudicial.]”
Caudill, 540 S.W.3d at 367 (quoting Mason, 331 S.W.3d at 623 (citing Harp,
266 S.W.3d at 818)). However, “[i]t is [also] presumed that the jury will follow
instructions issued to it by the trial court.” Morgan v. Scott, 291 S.W.3d 622,
643 (Ky. 2009) (citing Johnson v. Commonwealth, 105 S.W.3d 430, 436 (Ky.
2003) (quoting Scobee v. Donahue, 164 S.W.2d 947, 949 (Ky. 1942))). We
presume instructions to be prejudicial, but we also presume that the jury
followed the instructions before it. If the jury did so here, then it did not utilize
Instruction No. 2 in deciding that Jewish Hospital had no liability in Laura’s
death. The jury instructions, at issue here, stated:
19 INSTRUCTION NO. 1 NEGLIGENCE OF JEWISH HOSPITAL SOUTH It was the duty of Jewish Hospital & St. Mary’s Healthcare, Inc. d/b/a Jewish Hospital Medical Center South (referred to hereafter in these instructions as “Jewish Hospital South”) and its employees to exercise toward Laura Alexander that degree of care of and skill ordinarily expected of reasonable and prudent hospitals under similar circumstances. If you are satisfied from the evidence that they failed to comply with that duty and that such failure on their part was a substantial factor in causing the death of Laura Alexander, you will find for the plaintiffs; otherwise you will find for the hospital. Please Proceed to Interrogatory No. 1 INTERROGATORY NO. 1 NEGLIGENCE OF JEWISH HOSPITAL SOUTH Do you believe from the evidence that Jewish Hospital South and its employees failed to exercise the degree of care and skill ordinarily expected of reasonable and prudent hospitals under similar circumstances and that such failure on their part was a substantial factor in causing the death of Laura Alexander? [Yes/No and signature lines] If you answered “no” to Interrogatory No. 1 you have completed your deliberations and you should inform the Bailiff. If you have answered “yes” to Interrogatory No. 1 you shall proceed to Instruction No. 2. INSTRUCTION NO. 2 It was the duty of Dr. Charles D. Sherrard, Jr. in treating and attending Laura Alexander to exercise the degree of care and skill expected of a reasonably competent physician acting under similar circumstances. Dr. Charles D. Sherrard failed to comply with that duty. If you are satisfied from the evidence that such failure was a substantial factor in causing Laura Alexander’s death, you will find for the Plaintiffs. Otherwise you will find for Dr. Sherrard. Proceed to Interrogatory No.2. INTERROGATORY NO. 2 NEGLIGENCE OF Dr. CHARLES D. SHERRARD,[] JR. Do you believe from the evidence that Dr. Charles D. Sherrard, Jr.’s failure to comply with his duty to exercise the degree of care and skill expected of a reasonably competent physician acting under similar circumstances was a substantial factor in causing Laura Alexander’s death? [Yes/No and signature lines] Proceed to Instruction No. 3.
The jurors checked “No” after Interrogatory No. 1, nine jurors and the foreman
signed the signature lines, and the jury then returned to the courtroom. Here,
20 although the instructions are presumed to be prejudicial, we hold that the
evidence from the record proves that any error here was harmless.
Admittedly, the trial judge read through the entirety of the jury
instructions before closing arguments. Thus, although the jury may not have
reached Instruction No. 2 in its deliberations, it heard the content of that
instruction prior to the close of the case. The jury heard that there had already
been a finding that Dr. Sherrard’s conduct fell below the standard of care.
Jewish Hospital did reiterate this fact, referencing that the judge had made this
finding, during its closing argument.
However, these potential prejudices are outweighed by the proof in the
record that this instruction was harmless. The implication of Instruction No. 2
is that Dr. Sherrard was at fault, at least in part, for Laura’s death. In the
Estate’s opening statement, it blatantly stated that “Dr. Sherrard has some
blame in this case. His care was not exemplary ...” The Estate was also clearly
on notice that Jewish Hospital intended to pursue this line of defense. During
Jewish Hospital’s opening statement, it said that Dr. Sherrard’s involvement
was important. Jewish Hospital told the jury that the plaintiffs evidence would
show Dr. Sherrard fell below the standard of care, that he should not have
discharged Laura, and that he had a duty independent from Nurse Johnston.
During closing arguments, Jewish Hospital reiterated Dr. Sherrard’s
fault. It did state that the judge had found that his conduct fell below the
standard of care. However, counsel told the jury it must determine whether
this conduct caused Laura’s death and counsel argued that it had not caused
21 her tragic death. Importantly, the Estate did not object to any of these
statements as to Dr. Sherrard’s involvement. The Estate made similar
statements in its closing as it did in opening. Counsel reiterated that Dr.
Sherrard “made a mistake” and “made an incorrect diagnosis.” He stated once
again that they all know Dr. Sherrard did not meet the standard of care; he
stated their experts had always maintained that. But, the Estate’s counsel
argued, that failure had not been a substantial factor in Laura’s death.
The Estate argues the instruction on Dr. Sherrard’s fault clouded the
jury’s verdict. Yet, the jury was also read the instruction that allowed it to find
fault against both Dr. Sherrard and Jewish Hospital. During closing
arguments, both Jewish Hospital and the Estate discussed this apportionment
and explained how the jury could divide fault among the parties. If we follow
the Estate’s logic, then the jury would have understood from all these
instructions that finding fault as to Dr. Sherrard did not foreclose the option of
finding Jewish Hospital liable.
The Estate cannot claim prejudice from a statement that Dr. Sherrard
had some fault in Laura’s death when it repeatedly made that same argument
throughout trial proceedings. We find it persuasive that the jury returned to
the courtroom after answering Interrogatory No. 1. Because it is presumed to
follow instructions, that necessarily means that it did not review Instruction
No. 2 when making its final decision. Additionally, if the court had not granted
a directed verdict as to Dr. Sherrard’s liability, Jewish Hospital could still have
made the same arguments, subject to any relevant rules of evidence. The
22 defense would have been practically identical, except it would have had a
present defendant fighting against its liability argument. This Court is satisfied
from a thorough review of the record that the presence of this erroneous
instruction had no effect on the jury’s verdict.
IV. CONCLUSION
For the foregoing reasons, we reverse the Court of Appeals and reinstate
the judgment of the Bullitt Circuit Court. Although we agree with some of the
Court of Appeals’ reasoning, we take this opportunity to refine and explain our
prior ruling in CertainTeed. Based on that ruling, we hold that a directed
verdict by a present defendant against an empty-chair defendant falls under
the CertainTeed rule. Therefore, the empty-chair defendant must be treated
the same as any other defendant in the case within this scenario. Jewish
Hospital’s motion for directed verdict was procedurally infirm and the trial
court’s granting of the directed verdict was in error. However, after thoroughly
reviewing the record, we find such error was harmless. We thus reinstate the
judgment of the Bullitt Circuit Court.
All sitting. Minton, C.J., Cunningham, Hughes, Keller, VanMeter and
Venters, JJ., concur. Wright, J., concurs in result only.
23 COUNSEL FOR APPELLANT:
William Kennedy Simpson Joseph Wright Thompson, Miller & Simpson, PLC
COUNSEL FOR APPELLEES:
Ronald Wilt Stephen Klausing Jr. Wilt & Klausing, PLLC
James David Ballinger Ballinger Law, PLLC