RENDERED: DECEMBER 1, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1307-MR
JORDAN RINGHAM APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MARY M. SHAW, JUDGE ACTION NO. 19-CI-005508
AIMEE GAMES APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CETRULO, COMBS, AND EASTON, JUDGES.
CETRULO, JUDGE: This is an appeal from a jury verdict and judgment of the
Jefferson Circuit Court. The underlying action arose out of a car accident for
which the jury awarded no damages to Appellant Jordan Ringham (“Ringham”) for
claimed injuries. On appeal, Ringham asserts that several evidentiary rulings
resulted in an unfair trial. We affirm. FACTUAL BACKGROUND
Ringham was driving through a parking lot in Louisville when
Appellee Aimee Games (“Games”) backed up her vehicle, striking Ringham’s
vehicle. Ringham filed suit, claiming an eardrum perforation and injuries to her
spine from the accident. Games denied negligence and further argued, through
expert testimony, that the perforation and spinal injuries were not caused by the car
accident.
Several motions in limine were filed, and several objections and
motions were made throughout the trial held in October 2022. At the conclusion of
the evidence, the jury rendered a threshold verdict, pursuant to Kentucky Revised
Statute (“KRS”) 304.39-060, finding that Ringham did not sustain $1,000.00 in
reasonably needed medical services and/or sustain a permanent injury as a direct
result of the automobile accident.1 The trial court entered judgment consistent with
the jury verdict, and this appeal followed. On appeal, Ringham asserts that the trial
court made several incorrect evidentiary rulings that cumulatively resulted in an
unfair trial.
1 “[T]here are two distinct no-fault threshold questions which under the appropriate fact situations should be addressed by the jury. Only if a jury answers that at least one of the criteria has been met should it be instructed to determine the appropriate compensatory damages. However, should the jury find that neither threshold has been met, then it should be instructed to cease further deliberations.” Combs v. Stortz, 276 S.W.3d 282, 289 (Ky. App. 2009). Here, the jury did not find either threshold had been met.
-2- STANDARD OF REVIEW
“[T]he standard of review of a trial court’s evidentiary rulings is an
abuse of discretion.” Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 725
(Ky. 2009) (citation omitted). In analyzing the abuse of discretion standard, we
note that the trial court is empowered to make its own decision “within a range of
permissible decisions,” and such decisions are generally entitled to deference on
appeal. Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky. 2004) (internal quotation
marks and citation omitted).
ANALYSIS
A. Video Clips During Opening Statement
Ringham first asserts error regarding the defense use of segments of
expert witness testimony during the opening statement. The defense counsel
prefaced the video clip with “and Dr. Potts gave testimony in this case, and I will
show you just a small piece of what the evidence will be.” Ringham complains
that only approximately seven minutes of clips from an hour and a half of
testimony were shown to the jury during opening statements. Ringham’s attorney
objected during the trial, but the trial court overruled the objection.
In Morgan v. Scott, 291 S.W.3d 622, 635 (Ky. 2009), counsel played
portions of a physician’s testimony in closing argument. The court did not conduct
-3- a hearing regarding the video snippets and did not admonish the jury that there
should be no special emphasis on portions of the testimony played during closing.
Id. at 635-36 (citation omitted). On appeal, the Supreme Court found that not
holding a “snippet hearing” was error, although it was deemed harmless. Id. at
637. Both parties reference Morgan in their briefs.
Ringham asserts that Morgan required the trial court to conduct a
hearing and thus, failure to do so was prejudicial and required reversal. Games
responds that Ringham at no time requested a hearing nor an admonition to the
jury such as was recommended by the Morgan Court. Moreover, here, the trial
court had conducted hearings prior to trial and found the testimony of Dr. Potts to
be admissible. Games asserts there was no reason for the trial court to conduct
another hearing to insure that the snippets were admissible, and further, Ringham
could have played any portion of the testimony in her opening.
In Morgan, our Supreme Court held that a trial court has the
discretion to determine whether counsel may play portions of videotape
depositions during closing argument. Id. at 636 (citation omitted). Before it
permits a party to play testimony during closing, the trial court must review the
testimony to ensure “that the segments presented to the jury are not overly lengthy,
do not overly emphasize one party’s case, and are not a misrepresentation of the
witness’ testimony.” Id. (citation omitted).
-4- Nevertheless, the Court in Morgan ruled that failure to conduct a
hearing was harmless error. Id. at 637. Similarly, here, we find any error in that
regard was harmless. Ringham also maintains that use of snippets during opening
statements creates even more risk of prejudice because the snippets of anticipated
testimony may not make it into evidence. This concern has merit in the typical
case and supports the trial court conducting a hearing to preclude any such
prejudicial or improper admission. However, here, the trial court had conducted a
lengthy pretrial hearing concerning the testimony of Dr. Potts.
As such, our reading of Morgan reveals no abuse of discretion in this
instance for failure to conduct a second hearing to review the snippets during the
early stages of the trial. Depositions and anticipated testimony are frequently
referred to during opening statements as counsel inform the jury of their view of
the case and the forthcoming evidence. If the defense had played some snippet of
testimony that had been ruled inadmissible, there could be error. However, that
did not happen here. Permitting snippets of testimony that had already been
reviewed and found admissible by the trial court does not constitute an abuse of
discretion by the trial court. Further, while an admonition, as Morgan suggested,
might have been appropriate, Ringham did not request one.
-5- B. The Testimony of Dr. Potts
Second, Ringham argues that the trial court erred by permitting
certain portions of Dr. Potts’s testimony to be admitted to the jury. Ringham
conducted a discovery deposition of Dr. Potts the day before his scheduled
testimonial deposition to determine the extent of his anticipated trial testimony. At
the testimonial deposition, Dr. Potts agreed that secondary gain could be a relevant
consideration in a physician’s evaluation.
Q. In your opinion, is secondary gain a relevant consideration for you or any other physician when giving a causation opinion, certainly in [] Ringham’s case with regard to the 11/19/18 accident where she’s claiming – with her claims and seeking monetary gain in this lawsuit? Is that a relevant consideration in your opinion?
A. Yeah.
However, Dr. Potts did not disclose that opinion the day before during
the discovery deposition. Therefore, before trial, Ringham moved to preclude that
testimony. This was part of an extensive motion in limine argued and heard by the
trial court, but denied prior to trial.
We recognize that “[t]he discovery of the substance of an expert
witness’s expected testimony is essential to trial preparation.” Clephas v. Garlock,
Inc., 168 S.W.3d 389, 394 (Ky. App. 2004). However, the complained of
testimony is not at all like the expert opinions that were precluded in Clephas. In
Clephas, the expert witness was not made available for deposition prior to trial,
-6- was not given any materials to review until very close to the commencement of
trial, and “acknowledged that he did not formulate a medical opinion relating to
[the plaintiff’s] physical condition and/or its causation until a few hours before his
trial testimony.” Id. at 393. He then expressed causation and medical opinions,
not previously disclosed, based upon his review of those materials. Id. The trial
court permitted the testimony, and this Court reversed, finding that the undisclosed
medical and causation opinions at trial violated the civil rules of discovery and
constituted an abuse of discretion. Id.
Here, as the above testimony reflects, Dr. Potts did not express an
expert opinion not previously revealed, i.e., that Ringham was motivated by
secondary gain. Rather, the expert simply agreed with a question asking whether
secondary gain can be a relevant factor. Further, we have reviewed the testimony
of Dr. Beck, Ringham’s expert. He also agreed that secondary gain can be a
relevant factor to consider, although he did not find it to be present in his
evaluation. The trial court heard all the evidence and did not find this testimony
should be precluded. We find no abuse of discretion in the trial court’s ruling on
this issue.
Similarly, Ringham argues that the trial court erred in permitting Dr.
Potts to refer to Ringham’s anxiety and depression before the jury. In his
discovery deposition, Dr. Potts admitted that beyond the medical history of these
-7- conditions appearing in her records, Ringham’s anxiety and depression did not
factor into his expert opinion. In response to questions by Ringham’s counsel, the
following discussion occurred:
Q. And same with her history of anxiety and depression, that’s not mentioned anywhere else in either her physical exam – and please take your time.
A. It is not mentioned in my history. It’s only mentioned in her records.
Q. Right, the one sentence in the very first paragraph. It’s mentioned nowhere else in her ear records or anything like that?
A. You’re speaking specifically of anxiety and depression?
Q. Correct.
A. She has a history of anxiety/depression with multiple doctors’ visits for maintenance of these psychiatric diagnoses. That’s what it says.
Q. Yeah. And I’m asking, that’s the only place that it’s referenced in your report, correct?
A. Uh-huh. Correct.
Q. So you’re not planning on saying that that anxiety and depression affects any of your opinions?
Mr. Breit: Objection to form.
The witness: No, but I am a physician, so it is part of her medical history.
Later, in his trial deposition, Dr. Potts was asked:
-8- Q. Same question about her anxiety. Is her anxiety more likely than not to contribute to her eardrum perforation?
A. Not directly, only perception of response to reaction to things like that.
Ringham now argues that the response for trial was different from the
response in the discovery deposition. She further argues that reference to anxiety
and depression of a party was prejudicial and should have been entirely excluded.
First, we do not agree that the testimony or the two responses of Dr.
Potts were vastly different. Moreover, Ringham’s counsel was able to cross-
examine Dr. Potts regarding his prior testimony and any perceived inconsistency.
Second, we do not find that this limited reference to her prior medical history
caused prejudice to Ringham. Comment upon medical history or the medical
record by an expert is generally permitted, unless clearly prejudicial. Kentucky
Rule of Evidence (“KRE”) 803(4).
Pursuant to KRE 403, relevant evidence may be excluded if its
probative value is outweighed by undue prejudice. However, our case law
emphasizes that the task of weighing probative value and undue prejudice of
proffered evidence is “inherently factual, and therefore, within the discretion of the
trial court.” Ross v Commonwealth, 455 S.W.3d 899, 910 (Ky. 2015). Even if
evidence is improperly admitted, it is considered harmless error if the “reviewing
-9- court can say with fair assurance that the judgment was not substantially swayed
by the error.” Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009).
The trial court clearly considered any claimed prejudicial effect of all
of the testimony of Dr. Potts pursuant to KRE 403. For instance, the trial court
sustained a separate motion precluding any reference to Ringham’s prior use of
illegal drugs, as the trial court found it to be too prejudicial. Ringham has not
demonstrated prejudice in this regard sufficient to overcome the substantial
discretion of the trial court under our rules of evidence.
Next, Ringham asserts that the trial court improperly allowed the
admission of hearsay in the trial testimony of Dr. Potts. Apparently, counsel for
Ringham had a conversation with a treating physician for his client that the treating
physician then summarized in a note within the medical records. The medical
records were provided to the defense and then the defense asked its expert about
the note during his trial testimony. Counsel for Ringham objected to this in his
pretrial motions and asserts the same objections here. Ringham argued that the
note was hearsay; that it was not a statement by a party for purposes of medical
treatment; and that the hearsay exception only allowed for admissibility of
statements by a person seeking medical treatment. KRE 803(4). This is an
interesting trial practice issue and raises questions that we would be inclined to
address if properly before us.
-10- However, at the pretrial conference, Ringham’s counsel voluntarily
and specifically advised the trial court that he agreed to allow the questioning of
Dr. Potts regarding this note, so long as the note itself was not introduced before
the jury. This was actually Ringham’s proposal, and the trial court agreed to that
solution on the record and in writing. Thus any argument on appeal was waived
and is not properly before us.
Ringham’s final argument regarding Dr. Potts is that the trial court
erred by not admitting an exhibit referenced in his testimony. The testimony of Dr.
Potts was played to the jury by video, with the exception of the portions excluded
by the trial court. Near the end of the testimony, Dr. Potts referenced a document
he had obtained from the internet. When the defense moved to admit exhibits for
the jury, the defense did not include that document. Ringham sought to introduce
it, and the trial court declined to do so.
The only authority asserted for this argument is Kentucky Rule of
Civil Procedure (“CR”) 32.01, which governs the admission of depositions, not the
admission of documents into evidence. Ringham argues that any party may
introduce any part of a deposition if the opposing party offers only part of the
deposition. While that is true, here, the issue is not that the defense played only a
portion of the video testimony. Instead, Ringham requested admission of a
document. As such, CR 32.01 is simply not applicable.
-11- The jury heard all of the expert’s testimony, other than that excluded
by the trial court as inadmissible. However, exhibits utilized during the deposition
can still be excluded if they contain inadmissible hearsay. For example, the parties
agreed that the expert’s report would not be admitted before the jury, although it
was also an exhibit to the deposition. Again, the decision whether to admit
evidence is vested in the sound discretion of the trial court and will not be reversed
absent a showing of an abuse of discretion. See Young v. J.B. Hunt Transp., Inc.,
781 S.W.2d 503, 509 (Ky. 1989). It appears that counsel was able to cross-
examine the expert regarding the document, but that the trial court did not find the
document itself to be admissible. We have been provided with no basis to find that
constitutes an abuse of discretion.
C. Character Evidence of Prior Speeding
Ringham’s complaint in this regard is rather vague. There was a
pretrial motion to preclude all references to Ringham’s speeding tickets. The trial
court sustained that motion prior to trial. However, during trial, defense counsel
did question Ringham about a comment she had made in her prior sworn testimony
regarding her heavy foot.
First, this does not appear to be a violation of the trial court’s prior
ruling. Second, this alleged error does not rise to the level of an abuse of
discretion because the jury did not even address fault for the accident, determining
-12- instead that the injuries claimed were not related to the accident and/or did not
exceed the threshold.
D. Financial information of Dr. Beck
Ringham’s next claim of error concerns her expert witness, Dr. Beck.
Ringham asserts that Dr. Beck was “badgered” regarding his supposed refusal to
provide expert-related income. Ringham retained Dr. Beck, a Florida physician, to
conduct a records review and provide an opinion as to causation. The defense
requested him to provide financial information consistent with Metropolitan
Property and Casualty Insurance Company v. Overstreet, 103 S.W.3d 31 (Ky.
2003). In Metropolitan, the Supreme Court upheld
admission into evidence of: (1) the number of examinations and evaluations performed by the expert doctor on behalf of employers, insurance companies, and other defendants in the previous twelve months as compared to the number of patients seen for treatment purposes during the same period; (2) the expert’s charge for each examination; and (3) the expert’s charge for each deposition given as a result of an examination.
Primm v. Isaac, 127 S.W.3d 630, 632 (Ky. 2004).
Here, Ringham asserts that the defense did not use proper means to
obtain the information from Dr. Beck and argues that the defense implied Dr. Beck
had been uncooperative or had ignored court orders. The defense filed a motion to
compel that information, which the trial court granted prior to trial. However, it
was only after the trial testimony was preserved that the defense moved the trial
-13- court to issue such an order. Thus, in response to questions regarding Dr. Beck’s
income from examination and charges, he testified that he did not have the exact
financial information requested, but that if he were so ordered, he would produce
it. From our review of the record, there was no subpoena issued nor any written
discovery addressed to the expert prior to his testimony.
At the pretrial conference, Ringham objected to the procedure and
essentially argued that it was too late to request such information from Dr. Beck,
and it had not been properly sought by subpoena. However, the trial court advised
that, in keeping with the aforementioned authorities, it had signed an order
requiring the production of the financial information by the expert.
In response to that ruling, counsel for Ringham stated that he would
advise the doctor and have the information by the first day of trial. What became
of that dispute is not clear from the record. From our review, there was no ruling
during the trial, nor any further discussion of deleting the financial questions from
the testimonial deposition. The trial court did not err in following the well-
established law of this Commonwealth that permits such questioning and
production of financial information. However, the ruling was not made until after
the testimony was preserved for trial, due to the apparent failure of the defense to
move for that relief prior to the trial deposition. Thus, the testimony that the jury
-14- heard did suggest that there had been a denial of information by Dr. Beck, even
though that had not yet been ordered or subpoenaed.
The trial court’s order to produce financial information, although
entered after the trial testimony had been preserved, was not in error. The
implication of the questioning might have been limited in light of the trial court’s
ruling, but that was not relief that was requested. Indeed, it is not clear what relief
Ringham requested prior to trial, and there was no objection nor motion made
throughout the course of the trial. Thus, we find no prejudicial error that requires
reversal.
E. Testimony of Chiropractor
Next, Ringham complains of the trial court’s ruling precluding certain
expert testimony from the purview of the jury. The chiropractor’s testimony
consisted of statements pertaining to chiropractic treatment and use of x-rays.
Again, this was addressed at the pretrial conference. After reviewing the
deposition, the trial court elected to redact this rather lengthy discussion because it
found the testimony was irrelevant to the issues before the jury. Counsel for
Ringham wanted to play the chiropractor’s cross-examination to show the jury that
defense counsel was badgering the expert. The trial court exercised its function as
gatekeeper to determine relevancy. The testimony was provided by avowal. The
excluded evidence was confusing, does not appear relevant to this Court, and the
-15- trial court did not abuse its discretion when it precluded the testimony. As noted,
“the decision whether to admit evidence is vested in the sound discretion of the
trial court and will not be reversed absent a showing of an abuse of discretion.”
Welsh v. Galen of Va., Inc., 128 S.W.3d 41, 51 (Ky. App. 2001).
F. Cumulative Errors
Finally, Ringham asserts that all the aforementioned rulings,
cumulatively, resulted in a denial of her right to a fair trial. In support of this
argument, Ringham refers us to the Supreme Court case of Roberts v.
Commonwealth, 599 S.W.3d 841 (Ky. 2020). In Roberts, the Court held that
repeated references to inadmissible testimony during a criminal trial were so
unduly prejudicial as to have required a mistrial. Id. at 853. There, the defendant
moved to preclude admission of a prior assault that she had been charged with 14
years earlier. Id. at 846. The trial court ruled that it would allow the admission of
that prior assault if the Commonwealth laid the proper foundation. Id. As the
Court held in Roberts, generally, prior physical violence remote in time has “little
relevance other than establishment of a general disposition to commit such acts;
and the prejudice far outweighs any probative value in such evidence.” Id. at 848
(citation omitted). However, the Court also noted in Roberts that the
Commonwealth had, “against the trial court’s order, improperly introduced the
-16- evidence (which should have been ruled inadmissible from the start)[.]” Id. This
occurred repeatedly and despite repeated motions for a mistrial.
We do not find the concerns expressed in Roberts to be at all
comparable to the alleged errors here. We have found no indication of any
motions for mistrial in this case, and in several relevant instances, Ringham did not
object during trial. As we have already outlined, the trial court conducted a
lengthy pretrial conference and ruled on numerous in limine motions, clearly
fulfilling the gatekeeping function required of all trial courts. Having reviewed
each of the assertions individually and cumulatively, we cannot conclude that the
trial court abused its discretion. The judgment of the Jefferson Circuit Court based
upon the jury verdict is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Rob Astorino, Jr. Marc L. Breit Louisville, Kentucky Scott E. Miller Louisville, Kentucky
-17-