RENDERED: NOVEMBER 8, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1365-MR
KATHY MUNN APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT v. HONORABLE BRIAN CHRISTOPHER MCCLOUD, JUDGE ACTION NO. 17-CI-00412
OUR LADY OF BELLEFONTE HOSPITAL APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND CALDWELL, JUDGES.
THOMPSON, CHIEF JUDGE: Kathy Munn appeals from a jury verdict which
found in favor of Our Lady of Bellefonte Hospital. Appellant argues on appeal
that the trial court erred in excluding certain evidence from being presented to the
jury and made errors regarding the jury instructions. We believe there was no error
in this case and affirm. FACTS AND PROCEDURAL HISTORY
Appellant was a patient of Appellee in September of 2016. On the
night of September 8, 2016, Appellant claimed that an employee sexually assaulted
her in her hospital bed. Appellant reported the incident to the hospital and an
investigation occurred. Appellant also retained legal counsel. Appellant could not
give a detailed description of her alleged attacker, but described him as a white
man with “scraggly bangs.”
After Appellant filed her complaint, and during discovery, Appellant’s
counsel requested from Appellee photographs of all the personnel who had access
to Appellant’s floor on the night of the assault. Appellee sent in pictures of
identification badge photos of the employees who were working on Appellant’s
floor on the night of September 8, 2016. Appellant was shown the photographs
and did not recognize anyone as the assailant. Some time later, Appellant’s
counsel presented Appellant with pictures taken from Facebook of a man who
worked at the hospital. Appellant identified that man as her assailant. This man
was not employed directly by Appellee, but was a contractor employed by
Aramark Health Support Services, Inc. and doing work at the hospital.
Due to the COVID-19 pandemic, this case was not tried until October
of 2023. At the conclusion of the trial, the jury found that the employee who
-2- Appellant identified did not sexually assault her, and the jury found for Appellee
on all claims. This appeal followed.
ANALYSIS
Appellant’s first argument on appeal is that the trial court erred in not
allowing her to present evidence that Appellee tried to hide the employee’s identity
from Appellant. Prior to trial, Appellee filed a motion in limine seeking to exclude
evidence or argument that Appellee knew the identity of the employee and
withheld it from Appellant during discovery. Appellant wanted to argue to the jury
that Appellee purposefully did not include the employee’s picture with the others
received during discovery and knew of his identity. Appellant would also use this
argument to show why the identification of the alleged assailant took so long and
why the identification occurred from pictures taken from Facebook. The trial court
ruled, both during a hearing on the motion in limine and at trial, that Appellee not
turning over a photograph of the employee in question was a discovery dispute that
should not be presented to the jury.
As this is an issue concerning the admission of evidence, we review it
for abuse of discretion. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d
575, 577 (Ky. 2000). “The test for abuse of discretion is whether the trial judge’s
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
-3- After a thorough review of the record, we find no error. Appellee
claimed that it turned over the pictures of all employees scheduled to work on
Appellant’s floor the night of her assault. Appellee did not consider the identities
of the contractors working in the hospital relevant at the time of the discovery
request. As the alleged assailant was a contractor and not an employee of
Appellee, his picture was not turned over. Appellant argued that Appellee
purposefully withheld the photograph. The trial court heard the arguments and
ruled this was a discovery dispute and not malicious. We believe this was a
reasonable conclusion on the part of the court.
Even if this decision by the trial court was erroneous, it would be
harmless error.
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Kentucky Rules of Civil Procedure (CR) 61.01. “When considering a claim of
harmless error under CR 61.01, the court determines whether the result probably
would have been the same absent the error or whether the error was so prejudicial
-4- as to merit a new trial.” CSX Transp., Inc. v. Begley, 313 S.W.3d 52, 69 (Ky.
2010) (citations and footnotes omitted).
Here, Appellant was still able to argue to the jury that Appellee knew
of the employee’s identity and withheld the information. Lisa Pruitt, a risk
manager for the hospital who took part in the internal investigation of the incident,
testified at trial. During her examination by Appellant’s trial counsel, counsel
asked her many times about when she spoke with the alleged attacker1 and why she
did not give his name to Appellant. In addition, during his closing argument,
Appellant’s counsel stated multiple times that Appellee tried to cover up the
assault and hide the employee’s identity from Appellant. Finally, during
Appellant’s cross-examination by Appellee’s trial counsel, counsel did not
question Appellant about why it took so long for her to identify the employee or
make any issue of the fact that it took many months for Appellant to identify the
alleged assailant. Although we found no error as to this issue, even if it had been
error, it would have been harmless because Appellant was still able to argue to the
jury that Appellee tried to hide the employee’s identity.
Appellant’s next argument is that the trial court erred in not
compelling Appellee to provide more evidence during discovery regarding the
investigation of Appellant’s complaint to the hospital. Early in the case, Appellee
1 Ms. Pruitt spoke to the man alleged to be the attacker during her investigation of the incident.
-5- filed with the court a privilege log setting forth the evidence being requested by
Appellant that Appellee believed was privileged under various theories.2
Appellant then filed a motion to compel seeking that evidence. Soon thereafter,
however, Appellant withdrew the motion to compel and indicated to the court that
this discovery dispute had been resolved. Appellant’s counsel also reiterated this
resolution during a pretrial conference a few months later.
Appellant now argues that Appellee did not sufficiently prove that the
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RENDERED: NOVEMBER 8, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1365-MR
KATHY MUNN APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT v. HONORABLE BRIAN CHRISTOPHER MCCLOUD, JUDGE ACTION NO. 17-CI-00412
OUR LADY OF BELLEFONTE HOSPITAL APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND CALDWELL, JUDGES.
THOMPSON, CHIEF JUDGE: Kathy Munn appeals from a jury verdict which
found in favor of Our Lady of Bellefonte Hospital. Appellant argues on appeal
that the trial court erred in excluding certain evidence from being presented to the
jury and made errors regarding the jury instructions. We believe there was no error
in this case and affirm. FACTS AND PROCEDURAL HISTORY
Appellant was a patient of Appellee in September of 2016. On the
night of September 8, 2016, Appellant claimed that an employee sexually assaulted
her in her hospital bed. Appellant reported the incident to the hospital and an
investigation occurred. Appellant also retained legal counsel. Appellant could not
give a detailed description of her alleged attacker, but described him as a white
man with “scraggly bangs.”
After Appellant filed her complaint, and during discovery, Appellant’s
counsel requested from Appellee photographs of all the personnel who had access
to Appellant’s floor on the night of the assault. Appellee sent in pictures of
identification badge photos of the employees who were working on Appellant’s
floor on the night of September 8, 2016. Appellant was shown the photographs
and did not recognize anyone as the assailant. Some time later, Appellant’s
counsel presented Appellant with pictures taken from Facebook of a man who
worked at the hospital. Appellant identified that man as her assailant. This man
was not employed directly by Appellee, but was a contractor employed by
Aramark Health Support Services, Inc. and doing work at the hospital.
Due to the COVID-19 pandemic, this case was not tried until October
of 2023. At the conclusion of the trial, the jury found that the employee who
-2- Appellant identified did not sexually assault her, and the jury found for Appellee
on all claims. This appeal followed.
ANALYSIS
Appellant’s first argument on appeal is that the trial court erred in not
allowing her to present evidence that Appellee tried to hide the employee’s identity
from Appellant. Prior to trial, Appellee filed a motion in limine seeking to exclude
evidence or argument that Appellee knew the identity of the employee and
withheld it from Appellant during discovery. Appellant wanted to argue to the jury
that Appellee purposefully did not include the employee’s picture with the others
received during discovery and knew of his identity. Appellant would also use this
argument to show why the identification of the alleged assailant took so long and
why the identification occurred from pictures taken from Facebook. The trial court
ruled, both during a hearing on the motion in limine and at trial, that Appellee not
turning over a photograph of the employee in question was a discovery dispute that
should not be presented to the jury.
As this is an issue concerning the admission of evidence, we review it
for abuse of discretion. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d
575, 577 (Ky. 2000). “The test for abuse of discretion is whether the trial judge’s
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
-3- After a thorough review of the record, we find no error. Appellee
claimed that it turned over the pictures of all employees scheduled to work on
Appellant’s floor the night of her assault. Appellee did not consider the identities
of the contractors working in the hospital relevant at the time of the discovery
request. As the alleged assailant was a contractor and not an employee of
Appellee, his picture was not turned over. Appellant argued that Appellee
purposefully withheld the photograph. The trial court heard the arguments and
ruled this was a discovery dispute and not malicious. We believe this was a
reasonable conclusion on the part of the court.
Even if this decision by the trial court was erroneous, it would be
harmless error.
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Kentucky Rules of Civil Procedure (CR) 61.01. “When considering a claim of
harmless error under CR 61.01, the court determines whether the result probably
would have been the same absent the error or whether the error was so prejudicial
-4- as to merit a new trial.” CSX Transp., Inc. v. Begley, 313 S.W.3d 52, 69 (Ky.
2010) (citations and footnotes omitted).
Here, Appellant was still able to argue to the jury that Appellee knew
of the employee’s identity and withheld the information. Lisa Pruitt, a risk
manager for the hospital who took part in the internal investigation of the incident,
testified at trial. During her examination by Appellant’s trial counsel, counsel
asked her many times about when she spoke with the alleged attacker1 and why she
did not give his name to Appellant. In addition, during his closing argument,
Appellant’s counsel stated multiple times that Appellee tried to cover up the
assault and hide the employee’s identity from Appellant. Finally, during
Appellant’s cross-examination by Appellee’s trial counsel, counsel did not
question Appellant about why it took so long for her to identify the employee or
make any issue of the fact that it took many months for Appellant to identify the
alleged assailant. Although we found no error as to this issue, even if it had been
error, it would have been harmless because Appellant was still able to argue to the
jury that Appellee tried to hide the employee’s identity.
Appellant’s next argument is that the trial court erred in not
compelling Appellee to provide more evidence during discovery regarding the
investigation of Appellant’s complaint to the hospital. Early in the case, Appellee
1 Ms. Pruitt spoke to the man alleged to be the attacker during her investigation of the incident.
-5- filed with the court a privilege log setting forth the evidence being requested by
Appellant that Appellee believed was privileged under various theories.2
Appellant then filed a motion to compel seeking that evidence. Soon thereafter,
however, Appellant withdrew the motion to compel and indicated to the court that
this discovery dispute had been resolved. Appellant’s counsel also reiterated this
resolution during a pretrial conference a few months later.
Appellant now argues that Appellee did not sufficiently prove that the
evidence it believed was privileged was covered under the various privilege
theories. Since Appellant withdrew the motion to compel and indicated that the
discovery issue had been resolved, Appellant cannot now claim the trial court
erred. Appellant withdrew her motion seeking the privileged evidence; therefore,
the trial court did not have the opportunity to rule on the issue and the issue is
waived. Pers. Bd. v. Heck, 725 S.W.2d 13, 18 (Ky. App. 1986).
Appellant’s next argument is that the trial court erred in providing this
instruction to the jury: “Are you satisfied from the evidence that [“alleged
assailant’s name”] sexually assaulted Kathy Munn at Our Lady of Bellefonte
Hospital on the evening of September 8, 2016?” This was the first instruction for
the jury to vote on. If the jury answered “yes” it was to move on to the next
2 Such privilege theories included attorney-client privilege, work product privilege, and peer review privilege.
-6- instruction. If the jury answered “no” then the deliberations were over and
Appellee would prevail on all claims. The jury unanimously answered “no” to this
question. Appellant argues that this instruction was erroneous because some of the
claims raised in the complaint did not revolve around that specific employee being
the assailant. Appellant believes that the other claims could have been ruled upon
if the jury believed someone else assaulted her.
We find that this issue has also been waived. This instruction was
given to the court by Appellant.3 Furthermore, before giving the instructions to the
jury, the trial court read the instructions to the attorneys and gave them the
opportunity to object. Appellant did not object. Appellant also does not provide
this Court with a citation to the record showing where she raised any objection to
this jury instruction or its wording. Without an objection, the issue is waived. Id.;
Combs v. Knott County Fiscal Court, 283 Ky. 456, 141 S.W.2d 859, 860 (1940).
Appellant’s final argument on appeal revolves around Aramark, the
contractor who employed the alleged assailant. Once Appellant identified the
person who she alleged assaulted her, Appellee filed a third-party complaint
against Aramark. Later, Appellee voluntarily dismissed its cause of action against
Aramark, over Appellant’s objection, but reserved the right to include an
3 We note that the proposed jury instructions prepared by each party are not included in the record before us; however, when the trial court was discussing the instructions with trial counsel, the judge indicated it was Appellant’s counsel who gave him the proposed instruction at issue.
-7- apportionment instruction in the jury instructions. This instruction was then
included in the jury instructions at the conclusion of the trial. Appellant argues
that Aramark should not have been dismissed and that the apportionment
instruction should not have been given to the jury.
We find no error. The jury found that Appellant was not sexually
assaulted by the employee she identified and found in favor of Appellee on all
claims; therefore, Aramark’s lack of involvement in the trial or its inclusion in the
jury instructions is irrelevant and lacks prejudice.
CONCLUSION
Based on the foregoing, we affirm the judgment on appeal.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kevin L. Murphy C. Jessica Pratt J. Jeffrey Landon Arthur E. Phelps, Jr. Fort Mitchell, Kentucky Cincinnati, Ohio
Kenneth R. Reed Ludlow, Kentucky
-8-