RENDERED: FEBRUARY 14, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0093-MR
KELLIE E. DENTON, AS CO- ADMINISTRATOR OF THE ESTATE OF WILLIAM A. RAINES, III; JEREMY RAINES; JOLIE RAINES; AND WILLIAM A. RAINES, IV, AS CO-ADMINISTRATOR OF THE ESTATE OF WILLIAM A. RAINES, III APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE ANNIE O’CONNELL, JUDGE ACTION NO. 17-CI-003043
MARK NUNLEY, M.D. AND LOUISVILLE EMERGENCY MEDICINE ASSOCIATES, P.S.C. APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND CALDWELL, JUDGES.
CALDWELL, JUDGE: The Estate of William A. Raines, III, appeals from a judgment on a jury verdict in favor of Mark Nunley, M.D. in a wrongful death
action alleging medical negligence in failing to diagnose and treat an aortic
dissection. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mr. Raines arrived at the emergency department of Baptist East
Hospital (“Baptist”) shortly after midnight on November 28, 2016, presenting with
chest pain. Upon admission, he was evaluated and treated by Dr. Nunley. Mr.
Raines described the pain in his chest as being possibly indigestion with its onset
occurring about an hour prior, after a long day of driving had culminated in having
dinner with friends at a restaurant. An electrocardiogram (“EKG”) and chest x-ray
were performed at this time, although Dr. Nunley observed all cardiovascular
findings to be within normal limits. Aside from chest pain and belching, records
reflect Mr. Raines denying any other symptoms. He was administered pain
medication, as well as medication for treatment of nausea and acid reflux. After
Mr. Raines reported a resolution to his chest pain around 4:00 am, he was
discharged with instructions to see a cardiologist.
Within minutes of the discharge, Mr. Raines returned to the Baptist
emergency department and reported his chest pain had returned before he could
even exit the hospital’s parking lot. Mr. Raines was readmitted and again assessed
by Dr. Nunley. An on-call cardiologist, Dr. Rudolph Licandro, was dispatched
and, by telephone, admitted Mr. Raines to telemetry for observation. However,
-2- Mr. Raines remained in the emergency department while waiting for a bed to open
in the telemetry department.
Cardiologist Dr. Jesse Adams, a partner of Dr. Licandro, arrived at
Baptist and examined Mr. Raines at around 7:30 am. Dr. Adams’ note for this
time shows Mr. Raines was indicating some discomfort in his chest, but no acute
distress, and having a normal heart rate and rhythm. Following the examination,
Mr. Raines was transported to the telemetry floor. However, before connections to
telemetry monitors were completed, he reported severe chest pain. Rapid response
efforts were not successful, and Mr. Raines was pronounced deceased shortly
thereafter. An autopsy determined Mr. Raines’ death was caused by an acute aortic
dissection.
On June 15, 2017, the Estate for Mr. Raines filed a Complaint in
Jefferson Circuit Court alleging medical negligence by Dr. Nunley, Dr. Licandro,
Dr. Adams, as well as Baptist Health.
On August 30, 2019, the Estate filed a CR1 26.02 disclosure with the
trial court. Three physicians were identified in the disclosure as having been
retained by the Estate to render testimony at trial. Dr. Gregory J. Fermann, an
emergency medicine physician, was anticipated to render an opinion that Dr.
Nunley and Dr. Licandro should have suspected an aortic dissection and ordered a
1 Kentucky Rules of Civil Procedure.
-3- computerized tomography (“CT”) scan of Mr. Raines’ chest shortly after his return
to the emergency department. The disclosure indicated Dr. Robert M. Bojar, a
cardiothoracic surgeon, shared the views of Dr. Fermann. The disclosure also
stated Dr. Bojar opined that had a chest CT been performed after Mr. Raines’
readmission to Baptist, but prior to 7:00 am, there would have been sufficient time
to discover and repair the aortic dissection and Mr. Raines’ death could have been
avoided. The disclosure indicated a third proffered medical expert, vascular
surgeon Dr. Benjamin Brooke, “also agrees with the opinions expressed by Drs.
Fermann and Bojar.” No additional opinion regarding the case was indicated to be
held by Dr. Brooke, although the disclosure indicated he would “testify regarding
the medical literature on the subject matter.” A deposition of Dr. Brooke, which
the Estate intended to read to the jury at trial, took place on February 9, 2023.
A jury trial began on February 21, 2023. All defendants aside from
Dr. Nunley had been dismissed prior to the trial.
At trial, the Estate’s experts testified consistently with the opinions
recited in the CR 26.02 disclosure. Expert witnesses for Dr. Nunley expressed
opinions that Dr. Nunley had not breached the standard of care and disputed many
aspects of the opinions of the Estate’s expert witnesses.
Multiple witnesses were questioned regarding an article titled
“Evaluation of the Adult with Chest Pain in the Emergency Department” which
-4- had been published in 2016 by UpToDate, an online database of information for
physicians. The article lists six potential causes of chest pain which present an
immediate threat to a patient’s life: acute coronary syndrome, aortic dissection,
pulmonary embolism, tension pneumothorax, pericardial tamponade, and
mediastinitis (esophageal rupture). Differential diagnosis of the six causes is
discussed extensively in the article’s body. Graphics depicting an algorithm titled
“Emergency department approach to chest pain” are included and referenced in the
article, as well as two tables titled “Presentations of aortic dissection based on
affected structures” and “Differentiation of life-threatening causes of chest pain[.]”
The introductory section of the article contains a sentence which was a particularly
frequent subject of discussion and inquiry by the Estate: “[c]linicians in the ED
focus on the immediate recognition and exclusion of life-threatening causes of
chest pain.”
Dr. Nunley was initially called to testify during the Estate’s case. At
the close of the Estate’s case, it made a motion for a directed verdict. The Estate
argued Dr. Nunley had made statements during his testimony that were judicial
admissions and conclusively established the standard of care and his breach
thereof. The motion was denied by the trial court.
At the close of the case, following closing arguments, the jury
rendered a 10-2 verdict in favor of Dr. Nunley. This appeal follows. Further facts
will be provided as necessary in our analysis.
-5- Applicable Standards of Review
Motion for a Directed Verdict
A motion for directed verdict “raises only questions of law as to
whether there is any evidence to support a verdict.” Harris v. Cozatt, Inc., 427
S.W.2d 574, 575 (Ky. 1968) (emphasis added). Accordingly, where there is any
“conflicting evidence, it is the responsibility of the jury, the trier of fact, to resolve
such conflicts.” Daniels v. CDB Bell, LLC., 300 S.W.3d 204, 215 (Ky. App.
2009). The trial court should avoid consideration of the credibility or weight of
proffered evidence. “[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.” Bierman v. Klapheke, 967 S.W.2d 16,
18-19 (Ky. 1998) (citation omitted). The moving party has a high burden to meet.
Louisville Metro Gov’t v. Ward, 610 S.W.3d 295, 307 (Ky. App. 2020).
“On appellate review, we will reverse the trial court’s ruling only if
we find that the jury could not have reasonably reached its verdict on the basis of
the evidence before it.” Belt v. Cincinnati Ins. Co., 664 S.W.3d 524, 530 (Ky.
2022) (internal quotation marks and citation omitted). Only where the jury’s result
is “palpably or flagrantly against the evidence” may we reverse the trial court’s
decision to deny a motion for a directed verdict. Lewis v. Bledsoe Surface Mining
-6- Co., 798 S.W.2d 459, 461-62 (Ky. 1990) (internal quotation marks and citation
omitted).
The Estate argues it was entitled to the directed verdict on the basis of
judicial admissions made by Dr. Nunley during his trial testimony. The
determination of whether trial testimony constitutes a judicial admission is a
question of law subject to de novo review. Witten v. Pack, 237 S.W.3d 133, 136
(Ky. 2007).
Jury Instructions
Both parties assert we should review the trial court’s instructions de
novo. But binding precedent from our Supreme Court shows that the de novo
standard does not apply to all jury instruction issues. In Sargent v. Shaffer, the
Kentucky Supreme Court distinguished between two types of instructional errors
that determine the appropriate standard of review. 467 S.W.3d 198, 202-04 (Ky.
2015), overruled on other grounds University Medical Center, Inc. v. Shwab, 628
S.W.3d 112, 129 (Ky. 2021). “[T]he trial court has no discretion to give an
instruction that misrepresents the applicable law.” Id. at 204. Accordingly, a de
novo standard of review is appropriate where the party seeking review alleges the
trial court’s instruction did not accurately present the applicable legal theory of the
case. Id. at 204. However, where the allegation is that the trial court gave an
-7- instruction unsupported by the evidence or failed to give an instruction required by
the evidence, the correct standard of review is abuse of discretion. Id. at 203.
The Estate alleges the trial court failed to give an instruction required
by the evidence – specifically, Dr. Nunley’s testimony. Accordingly, we review
the allegation of error regarding the jury instructions here for an abuse of
discretion.
Exclusion of Expert Testimony
Regarding the Estate’s allegation the trial court erred in excluding Dr.
Brooke’s expert testimony as cumulative, we review for abuse of discretion. Ten
Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 720 (Ky. 2009).
ANALYSIS
I. Dr. Nunley’s statements were not judicial admissions and did not entitle the Estate to a Directed Verdict.
The Estate argues statements made by Dr. Nunley during his
testimony were judicial admissions requiring the trial court to grant a directed
verdict. First, it argues Dr. Nunley conceded that the UpToDate quotation:
“[c]linicians in the ED focus on the immediate recognition and exclusion of life-
threatening causes of chest pain[,]” was an accurate statement of the applicable
standard of care. It contends this admission occurred on multiple occasions, citing
to testimony such as the following exchange:
-8- Q. Okay. Okay. So this paper, right off the bat, lays out a, I’d say a, a foundational premise that says ‘Clinicians in the emergency department’ – and this is in the context of evaluating chest pain – ‘Clinicians in the emergency department focus on the immediate recognition and exclusion of life-threatening causes of chest pain. Patients with life-threatening etiologies for chest pain may appear deceptively well, manifesting neither vital sign or physical examination abnormalities.’ Let’s go over that first sentence ‘Clinicians in the emergency department focus on the immediate recognition, and exclusion of life – threatening causes of chest pain.’ Do you agree that that appropriately expresses what is expected of a reasonably competent emergency room physician evaluating chest pain in the emergency department?
A. Yes, I do.
The Estate cites the following exchange as another instance of Dr.
Nunley making a judicial admission regarding the standard of care:
Q. So there’s no real debate. You’ve accepted that as the standard of care, in essence. So your job was to immediately recognize those items that were life- threatening, and to exclude them with testing immediately?
A. To exclude them to the best of probability, yes.
The Estate characterizes these, and similar exchanges, as an admission
of the applicable standard of care to be applied in the action: “Dr. Nunley accepted
the immediate recognition and exclusion of life-threatening explanations as the
applicable standard of care at least seven (7) times.” Further, the Estate argues, Dr.
Nunley made judicial admissions he breached this standard of care by failing to
-9- order a CT scan for Mr. Raines. In support of this element, the Estate cites
primarily to two portions of Dr. Nunley’s testimony. One is the following:
Q. I mean, these are not like medical terms of art, but clinicians in the emergency department focus on the immediate recognition and exclusion of life-threatening causes. Is that . . . ambiguous to you?
A. No.
Q. Immediate means right now, correct?
A. Yes.
Q. Highest priority, right?
The other testimony the Estate primarily relies upon in this regard is the
following:
Q. Right, right. And we don’t need to go back through whether you accept that that’s the standard of care in the emergency – we won’t need to do that, do we? You already told us that the standard of care required immediate recognition and exclusion. You already told us that right?
Q. And you, and you, and you didn't do that. You didn't immediately –
A. I did do that.
Q. – attempt to exclude –
A. I –
-10- Q. – [by] having a CT angiogram, did you?
A. I didn’t do a CT angiogram; I was attempting to exclude the acute coronary ischemia by consulting Cardiology and getting them to see the patient and do further testing.
Q. Right, and just so we are in agreement, because you told me that, that language was not ambiguous, that’s not an immediate plan of action for this patient, is it?
A. It’s an urgent but not immediate plan of action.
At the close of plaintiff’s case, the Estate moved for a directed verdict
on the issue of liability and filed a written memorandum citing to Sutherland v.
Davis, 286 Ky. 743, 151 S.W.2d 1021 (1941). The trial court had opportunity to
review the Estate’s memorandum and hear its arguments on the afternoon of
February 27, 2023.
After considering the Estate’s motion, the trial court denied it, citing
to a discussion by the Sutherland court of five circumstances for consideration in
determining whether a testimonial statement is a judicial admission. See 151
S.W.2d at 1024.
The trial court focused on the fifth factor, finding that Dr. Nunley’s
statements regarding the standard of care were not sufficiently clear and
unequivocal to qualify as judicial admissions. A handwritten order denying the
Estate’s motion found that “Dr. Nunley’s testimony does not amount to a judicial
-11- admission[.]” The Estate’s motion was renewed at the close of all evidence and
again denied.
The Estate again raised the issue in a motion for judgment
notwithstanding the verdict (“JNOV”). In a written opinion, the trial court found:
The [Estate] first contend[s] that when ruling on the Directed Verdict Motion, the Court relied not on the holding of Sutherland v. Davis, 151 S.W. 2nd 1021(Ky. 1941), but on the dicta. Specifically, it contends that the Court relied on the discussion of the ALR article citing a New Hampshire case styled Harlow v. Laclair, 82 N.H. 506.
Under the analysis of judicial admissions from Kentucky law and from the totality of the evidence of this case, the testimony set forth in [the Estate’s] argument does not rise to the level of a conclusive judicial admission and their Motion is denied on this issue.
The Estate, on appeal, reiterates its argument that the trial court’s
reliance on the factors for consideration in the Sutherland opinion was an
erroneous misapplication of dicta from the case. The Estate alleges no Kentucky
appellate courts have followed Sutherland’s consideration of these circumstances.
Furthermore, the Estate argues, even if the circumstances listed in Sutherland were
appropriate for the trial court’s consideration, the trial court’s analysis was
erroneous because each of those factors weigh in favor of finding Dr. Nunley’s
statements were judicial admissions. We disagree.
[A]mong the circumstances which should be considered in such a case are the following: (1) Was the party at the
-12- time when the occurrence about which he testified took place, and when he testified, in full possession of his mental faculties? [2] Was his intelligence and command of English such that he fully understood the purport of the questions and his answers thereto? (3) What was the nature of the facts to which he testified? Was he simply giving his impressions of an event as a participant or an observer, or was he testifying to facts peculiarly within his own knowledge? (4) Is his testimony contradicted by that of other witnesses? (5) Is the effect of his testimony clear and unequivocal, or are his statements inconsistent and conflicting?
Sutherland, 151 S.W.2d at 1024 (quoting Harlow v. Laclair, 82 N.H. 506, 136 A.
128, 131, 50 A.L.R. 973 (1927)).
The fifth circumstance for consideration, articulated in Sutherland and
referenced in the trial court’s findings during the hearing on the Estate’s motion,
considers whether the “effect” of the testimony in question is “clear and
unequivocal, or . . . inconsistent and conflicting?” Sutherland, 151 S.W.2d at
1024. Despite the Estate’s arguments, Kentucky decisions on judicial admissions
have considered this circumstance. See Arnett v. Arnett, 293 S.W.2d 733 (Ky.
1956) (plaintiff-passenger’s testimony tending to reflect on the defendant-driver’s
sobriety was not sufficiently definite and unequivocal to conclude the issue); Head
v. Russell, 307 S.W.2d 557, 559 (Ky. 1957) (testimony of plaintiff-passengers did
not “establish unequivocally that the sole cause of the accident was the negligence
of another”).
-13- After hearing the Estate’s arguments for a directed verdict, the trial
court found that “given the totality of Dr. Nunley’s testimony. . . . his statements
were not so clear and unequivocal as articulated by [the Estate] in this motion.”
The trial court premised this by noting the standard of care is a much more
nuanced issue than matters of fact in an automotive negligence case such as
Sutherland.
There is no dispute regarding the first two circumstances recited in
Sutherland. Regarding the third, the Estate argues that “what the applicable
standard of care required with respect to the evaluation of an adult with chest pain
in the emergency room, and whether his care of Mr. Raines complied with the
standard of care” were facts peculiarly within Dr. Nunley’s own knowledge. Dr.
Nunley, however, argues his “purported admission addresse[d] a principle or
opinion, not facts.” On this point, Dr. Nunley’s argument is more persuasive.
The Estate argues the sentence, “[c]linicians in the ED focus on the
immediate recognition and exclusion of life-threatening causes of chest pain” is
axiomatic and Dr. Nunley’s agreement with it “of no more consequence to the case
than an agreement that grass is green.” Whether or not this is the case, the
sentence does appear to express a generality rather than a substantive statement on
when a specific course of action, such as ordering a CT, is necessary. An
expression of agreement with the general statement that emergency room doctors
-14- first try to rule out life-threatening causes cannot reasonably be said to indicate Dr.
Nunley’s admission of any fact peculiarly within his own knowledge.
It is likewise with Dr. Nunley’s agreement as to the definition or lack
of ambiguity in the word “immediate” as well as his agreement that a CT is the
best diagnostic test for detection of aortic dissection. To the extent the testimony
in question contains statements of fact, rather than expressions of opinion or
agreement with general principles of emergency medicine, none could be
reasonably described as facts peculiarly within the knowledge of Dr. Nunley.
Here, again, is a circumstance discussed in Sutherland which subsequent Kentucky
courts have considered during examination of judicial admissions. See
Schoenbaechler v. Louisville Taxicab & Transfer Co., 328 S.W.2d 514 (Ky. 1959)
(plaintiff-pedestrian was bound by pretrial testimony to the effect he did not look to
his left after cars coming from his right had passed, this being a “fact peculiarly
within his own knowledge”).
The Estate argues that Dr. Nunley’s experts also expressing agreement
with the UpToDate quotation supports finding Dr. Nunley’s “admissions” were
uncontradicted. However, “[a] judicial admission is a formal statement concerning
a disputed fact, made by a party during a judicial proceeding, that is adverse to that
party, and that is deliberate, clear, and uncontradicted.” Zapp v. CSX Construction,
Inc., 300 S.W.3d 219, 223 (Ky. App. 2009) (emphasis added). That no expert
-15- disputed the UpToDate quotation is evidence of its generality. It does not support
the Estate’s assertion Dr. Nunley testified to a breach of the standard of care which
was uncontradicted by other evidence. And even though Dr. Nunley’s initial
perception turned out to be incorrect, that an acute coronary syndrome was a more
likely threat to Mr. Raines than aortic dissection, he nevertheless used “that degree
of care and skill which is expected of a reasonably competent pract[it]ioner in the
same class to which he belongs, acting in the same or similar circumstances.”
Blair v. Eblen, 461 S.W.2d 370, 373 (Ky. 1970).
Dr. Nunley testified that upon Mr. Raines’ readmission, he followed
the diagnostic path of excluding acute coronary syndrome and this did not prompt
a CT. While a CT was available and the best test for an aortic dissection, it was not
appropriate before ruling out more likely conditions. He considered Mr. Raines a
lower risk patient for aortic dissection. Dr. Nunley also testified that as he
anticipated a stress test or cardiac catheterization would be necessary, he did not
want to expose Mr. Raines to repeated dye.
In other testimony, Dr. Nunley asserted the UpToDate article listed
acute coronary syndrome as a higher primary, emergent and deadly condition than
aortic dissection, and that his actions were consistent with the article’s approach.
Dr. Nunley’s retained experts expressed opinions that, aside from general chest
pain, Mr. Raines had no symptoms associated with aortic dissection. Viewing his
-16- testimony as a whole, it is unmistakable that Dr. Nunley insisted he was compliant
with the standard of care, including any actions required by the UpToDate article.
This testimony was supported by the opinions of Dr. Nunley’s
retained experts, emergency physician, Dr. John Pearson and cardiothoracic
surgeon, Dr. John Brock. Their testimony indicated Dr. Nunley’s pursuit of an
acute coronary syndrome diagnosis was reasonable and did not require or prompt a
CT scan. As a result of an absence of Mr. Raines’ pain being described as
“stabbing” or “tearing” but instead described as “pressing” and possible
indigestion, his symptoms were not consistent with an aortic dissection. The
waxing and waning nature of Mr. Raines’ pain, according to Dr. Nunley’s experts,
was more consistent with acute coronary syndrome than aortic dissection.
The Estate emphasizes the word “immediate” in the UpToDate
quotation and points to Dr. Nunley’s failure to send Mr. Raines for a CT during the
hours between his readmission and evaluation by a cardiologist, despite the earlier
admission to telemetry. However, Dr. Nunley testified that during Mr. Raines’
time in the emergency department, he continued to monitor his EKG for sudden
changes. Dr. Nunley also testified that given Mr. Raines’ history and symptoms,
along with the inherent risks from a CT, there was nothing inappropriate with this
course of action. His retained experts testified consistently.
-17- “Manifestly, the determination by a court that a party may not
contradict an admission is strong medicine and should be sparingly administered.
. . . [T]he judicial admission rule ‘should be applied with caution because of the
variable nature of testimony and because of the ever present possibility of honest
mistake.’” Goldsmith v. Allied Building Components, 833 S.W.2d 378, 380 (Ky.
1992) (quoting Bell v. Harmon, 284 S.W.2d 812, 815 (Ky. 1955)). The trial
court’s evaluation of Dr. Nunley’s statements in the context of the “totality” of his
own testimony and the other evidence in the case was correct. “[I]n determining
the conclusiveness of a judicial admission by a party to an action the court should
view the admitted fact in the light of all the conditions and circumstances proven in
the case.” Ramsey v. Ramsey, Ky., 291 S.W.2d 561, 562 (1956) (citing
Sutherland, 151 S.W.2d 1021).
A directed verdict in favor of the Estate would have been proper if,
under the evidence as a whole, no reasonable jury could have determined that Dr.
Nunley exercised reasonable care in treating Mr. Raines. The central contention to
the Estate’s theory of the case is that Dr. Nunley should have ordered a CT scan.
The Estate’s experts expressed opinions that, according to their analysis of the
circumstances of Mr. Raines’ readmission, the standard of care required ordering a
CT scan. Nonetheless, over the course of their testimony, experts for the Estate did
-18- concede that, under some circumstances, the standard of care would not require a
CT scan for an emergency room patient with chest pain.
Dr. Pearson argued that Dr. Nunley’s care, including the decision not
to order a CT, was appropriate under the approach expressed in the UpToDate
article. A lay examination of the article’s algorithm reveals a CT examination is
not always required for an emergency room patient with chest pain. Examination
of the article shows no clear or unambiguous indication a CT was required for a
patient such as Mr. Raines.
Instead, it appears to be a complex question. Experts for both parties
rendered extensive testimony that the decision to order a CT is based on the
physician’s working through a differential diagnosis considering variables,
including a patient’s onset of pain, the pain quality and location, associated
symptoms, and risk factors. Dr. Nunley presented evidence he did not breach the
standard of care; it cannot be said that no reasonable jury could determine
otherwise.
II. Jury Instructions.
The Estate argues the trial court should have given the jury a
“Sutherland jury instruction” citing to the language that a judicial admission
“allows the judge to direct the jury to accept the admission as conclusive of the
disputed fact.” Sutherland, 151 S.W.2d at 1024. The Estate argues the jury should
-19- have been instructed that Dr. Nunley admitted he was required to comply with the
specific duty of “immediate recognition and exclusion of the six life-threatening
causes of severe chest pain.” Having determined Dr. Nunley’s statements were not
judicial admissions largely dispenses of the Estate’s argument. In any event, we
find no error in the trial court’s denial of the Estate’s request to include this
specific duty for Dr. Nunley in its instructions. “[I]n the practice of medicine,
there are numerous variables which must be taken into account in each specific
case. Specific enumeration of duties would tend to overemphasize the requirement
rather than to create or expand the duty.” Hamby v. University of Kentucky
Medical Center, 844 S.W.2d 431, 434 (Ky. App. 1992).
III. Exclusion as cumulative of proposed testimony of Dr. Brooke.
Lastly, the Estate alleges error in the trial court’s exclusion of Dr.
Brooke’s deposition testimony. As previously discussed, the Estate presented two
medical experts who testified extensively at trial about their criticisms of Dr.
Nunley’s care and treatment. The trial court found the Estate failed to identify how
Dr. Brooke’s testimony might differ in any significant detail from the testimony of
Dr. Fermann and Dr. Bojar. “In a case where testimony is excluded as being
cumulative, the offering party ought to tell the court why the testimony is not
cumulative.” See FB Ins. Co. v. Jones, 864 S.W.2d 926, 930 (Ky. App. 1993).
-20- On appeal, the Estate emphasizes Dr. Brooke’s credentials and
alternative specialty to Dr. Fermann and Dr. Bojar. However, Dr. Nunley points
out that, by Dr. Brooke’s own admission, he does not treat ascending aortic
dissections as a vascular surgeon. Under KRE2 403, evidence may be excluded
where its probative value is substantially outweighed by the danger of “needless
presentation of cumulative evidence.” We cannot say the trial court abused its
discretion in excluding Dr. Brooke’s deposition testimony as cumulative.
Further arguments in the parties’ briefs not discussed herein have been
determined to lack merit or relevancy to our resolving this appeal.
CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:
Todd P. Greer Gerald R. Toner Brian E. Clare Scott E. Burroughs Zach R. Berry Kathryn D. Duke Louisville, Kentucky Louisville, Kentucky
2 Kentucky Rules of Evidence.
-21-