RENDERED: JUNE 21, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-0934-MR
LEGNA TOCADO RODRIGUEZ AND ILKA RODRIGUEZ DIAQUEZ APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE KIMBERLY BUNNELL, JUDGE ACTION NO. 16-CI-04359
JEFFREY B. SHARP APPELLEE
AND
NO. 2022-CA-0971-MR
JEFFREY B. SHARP CROSS-APPELLANT
CROSS-APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE KIMBERLY BUNNELL, JUDGE ACTION NO. 16-CI-04359
LEGNA TOCADO RODRIGUEZ AND ILKA RODRIGUEZ DIAQUEZ CROSS-APPELLEES OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, CETRULO, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Legna Tocado Rodriguez and Ilka Rodriguez Diaquez bring
Appeal No. 2022-CA-0934-MR from a May 27, 2022, Judgment and a June 29,
2022, Order Amending the Judgment of the Fayette Circuit Court. Jeffrey B.
Sharp brings Cross-Appeal No. 2022-CA-0971-MR from the same judgments.
On April 9, 2015, in Lexington, Kentucky, a vehicle driven by Jeffrey
B. Sharp (Sharp) rear ended a vehicle driven by Legna Tocado Rodriguez (Legna)
and in which Ilka Rodriguez Diaquez (Ilka) rode as a passenger.
Legna and Ilka then filed a complaint against, inter alios, Sharp.
Therein, Legna and Ilka claimed that Sharp drove his motor vehicle in a negligent,
grossly negligent, and/or reckless manner, thereby causing the motor vehicle
accident. Legna and Ilka sought compensatory and punitive damages.
On June 10, 2019, Sharp filed a motion for partial summary judgment
seeking dismissal of Legna and Ilka’s claims for gross negligence and punitive
damages. According to Sharp, Legna and Ilka alleged that Sharp was grossly
negligent because he was using a cell phone and was making a U-turn at the time
-2- of the accident. Sharp argued that his alleged actions of using a cell phone and
making a U-turn did not constitute gross negligence.
Legna and Ilka filed a response. Therein, they maintained that the
facts demonstrated that Sharp made five calls on his cell phone immediately before
the accident, was making an illegal U-turn, and had previously made illegal U-
turns at that intersection. Taken together, Legna and Ilka asserted that Sharp’s
actions rose to the level of gross negligence. Thus, Legna and Ilka claimed that
summary judgment was improper, as material issues of fact existed as to whether
Sharp’s actions amounted to gross negligence.
By order entered July 18, 2019, the court granted Sharp’s motion for
partial summary judgment and dismissed Legna’s and Ilka’s claims of gross
negligence and punitive damages.
Thereafter, on November 20, 2020, Sharp filed another motion for
summary judgment. Sharp argued that Legna’s and Ilka’s claims for future
medical expenses and future pain and suffering should be dismissed. In particular,
Sharp asserted that both Legna and Ilka failed to present expert evidence that
future medical expenses or future pain and suffering would occur. In the absence
of such evidence, Sharp maintained that he was entitled to summary judgment.
Legna and Ilka filed a response. They argued that expert opinion was
unnecessary to demonstrate entitlement to future medical expenses and future pain
-3- and suffering. Legna and Ilka maintained that their testimony concerning ongoing
pain from injuries sustained in the accident was sufficient to create a material issue
of fact. Legna and Ilka also pointed to the expert testimony of Dr. Rick Lyon, who
was an expert secured by Sharp. According to Legna and Ilka, Dr. Lyon opined
that it was possible that they would have an increased risk of future complications.
Considering Legna’s, Ilka’s, and Dr. Lyon’s testimony, Legna and Ilka asserted
that material issues of fact existed, thus precluding summary judgment.
By order entered April 16, 2021, the trial court granted Sharp’s
motion for summary judgment and dismissed Legna’s and Ilka’s claims for future
medical expenses, future pain and suffering, and increased risk of future
complications.
Eventually, the case was tried before a jury during a three-day trial.
The jury apportioned fault and found that Sharp was 90 percent at fault and Legna
was 10 percent at fault for causing the accident. The jury also found that Ilka
incurred $7,365 for past medical expenses and $2,200 for past pain and suffering.
As to Legna, the jury found she incurred $7,755 in past medical expenses and
$7,000 in past pain and suffering. In its judgment, the trial court awarded Ilka a
total of $9,565. The court reduced Legna’s award by 10 percent, representing her
fault in causing the accident, and awarded her a total of $13,279.50.
-4- Sharp filed a motion to alter, amend, or vacate the judgment, and by
an order amending the judgment, the trial court granted the motion. The trial court
then reduced the awards to Legna and Ilka. The trial court determined that Sharp
was entitled to a credit for those amounts paid by basic reparations benefits per
Kentucky Revised Statutes (KRS) 304.39-060(2). As a result, the trial court
awarded Ilka a total of $1,980 in damages and awarded Legna a total of $6,300 in
damages.
Legna and Ilka filed a notice of appeal (Appeal No. 2022-CA-0934-
MR) from the judgment and amended judgment. Sharp also filed a protective
cross-appeal (Cross-Appeal No. 2022-CA-0971-MR) from the judgment and
amended judgment. We shall initially address Appeal No. 2022-CA-0934-MR and
then Cross-Appeal No. 2022-CA-0971-MR.
Appeal No. 2022-CA-0934-MR
Legna and Ilka contend that the trial court erroneously rendered
summary judgment upon their claim of damages for an increased risk of future
harm, future medical expenses, and future pain and suffering. Legna and Ilka
maintain that Dr. Lyon opined that it was “possible” that they could have future
flare-ups related to the injuries sustained in the accident.1 Legna and Ilka argue
that future medical expenses may be awarded when the increased risk of future
1 Dr. Rick Lyon was a medical expert testifying for Jeffrey B. Sharp.
-5- harm is only a possibility. Legna and Ilka also rely on their own testimony. They
both testified that they experienced ongoing pain and suffering due to injuries
sustained in the accident. Legna and Ilka assert that expert medical testimony as to
future pain and suffering is unnecessary. Rather, their own testimony is sufficient
to create a jury question.
Summary judgment is proper where there exists no genuine issue of
material fact and movant is entitled to judgment as a matter of law. Kentucky
Rules of Civil Procedure (CR) 56.03; see Steelvest, Inc. v. Scansteel Serv. Ctr.,
Inc., 807 S.W.2d 476, 480 (Ky. 1991). Because we give no deference to the lower
court’s conclusions of law or assessment of the record, our review of summary
judgment is always de novo. Hammons v. Hammons, 327 S.W.3d 444, 448 (Ky.
2010).
In Kentucky, it is well-established that a plaintiff may only recover
those damages that with reasonable certainty were caused by defendant’s actions.
Roadway Express, Inc. v. Don Stohlman & Assocs., Inc., 436 S.W.2d 63, 65 (Ky.
1968); Gill v. Burress, 382 S.W.3d 57, 63-64 (Ky. App. 2012). So, “contingent,
uncertain and speculative damages generally may not be recovered.” Curry v.
Bennett, 301 S.W.3d 502, 506 (Ky. App. 2009) (citation omitted). However,
“mere uncertainty as to the amount [of damage] will not preclude recovery.”
Roadway Express, Inc., 436 S.W.2d at 65; Johnson v. Cormney, 596 S.W.2d 23, 27
-6- (Ky. App. 1979), overruled on other grounds by Marshall v. City of Paducah, 618
S.W.2d 433 (Ky. App. 1981). The pivotal distinction is between causation and
amount of damages. The plaintiff is required to prove with reasonable certainty
that damage was caused by defendant’s conduct. Upon establishing that damage
has occurred from such conduct, mere uncertainty as to the amount of damage does
not preclude a jury awarding damages. Roadway Express, Inc., 436 S.W.2d at 65.
In this case, Legna and Ilka possess the burden of demonstrating with
reasonable certainty that damages for future medical expenses, future pain and
suffering, and increased risk of future harm were caused by Sharp’s conduct.
Legna and Ilka point to Dr. Lyon’s testimony that future medical expenses and
flare-ups were possible. However, Dr. Lyon was clear that he did not believe
within a reasonable degree of medical probability that Legna or Ilka would incur
future medical expenses or future pain and suffering. Rather, Dr. Lyon explicitly
testified that both Legna and Ilka suffered temporary physical injuries that had
completely resolved. When specifically questioned by Legna and Ilka’s counsel as
to whether a possibility of future harm existed, Dr. Lyon testified that anything was
possible.
It is also clear that Dr. Lyon’s testimony did not with reasonable
certainty link Legna’s and Ilka’s claimed damages for future medical expenses,
future pain and suffering, and increased risk of future harm to Sharp’s negligent
-7- conduct. See Roadway Express, Inc., 436 S.W.2d at 65; Gill, 382 S.W.3d at 63-64;
Rogers v. Sullivan, 410 S.W.2d 624, 627-28 (Ky. 1966).
As for Legna’s and Ilka’s testimony that each continues to experience
pain from injuries sustained in the accident, such testimony is insufficient to create
a genuine issue of material fact upon their claimed damages for future medical
expenses, future pain and suffering, and increased risk of future harm. In
Kentucky, “[t]he causal connection between an accident and an injury must be
shown by medical evidence demonstrating that the link is probable and not merely
possible.” Calhoun v. Provence, 395 S.W.3d 476, 482 (Ky. App. 2012), overruled
on other grounds by Travelers Indem. Co. v. Armstrong, 565 S.W.3d 550, 565 (Ky.
2018). Accordingly, we are of the opinion that the trial court properly rendered
summary judgment upon Legna’s and Ilka’s damage claims for future medical
expenses, future pain and suffering, and increased risk of future harm.
Legna and Ilka next assert that the trial court erred by rendering
summary judgment upon their claim for punitive damages. Legna and Ilka argue
that Sharp made five phone calls before the accident and allege he was attempting
to make an illegal U-turn at the time of the accident. Legna and Ilka also point out
that Sharp was driving a vehicle with illegal window tint. Taken together in a light
most favorable to them, Legna and Ilka believe that a material issue of fact existed
-8- upon whether Sharp’s acts were grossly negligent or reckless at the time of the
accident.
Under KRS 411.184(2), punitive damages are recoverable by a
plaintiff “upon proving, by clear and convincing evidence, that the defendant from
whom such damages are sought acted toward the plaintiff with oppression, fraud,
or malice.”2 Punitive damages are also recoverable under the common-law upon a
showing by plaintiff that defendant’s action amounted to gross negligence. Saint
Joseph Healthcare, Inc. v. Thomas, 487 S.W.3d 864, 870 (Ky. 2016); Morris v.
Boerste, 641 S.W.3d 688, 696-97 (Ky. App. 2022).
Under the facts presented, we cannot conclude that Sharp’s actions
rose to the level of gross negligence. According to Legna and Ilka, Sharp made
five calls right before the accident, and attempted to make a U-turn. However,
there is no evidence in the record establishing a causal connection between the
phone calls and the accident. Similarly, as Sharp rear-ended Legna and Ilka as
they were turning in the intersection, he could not have been making a U-turn at
the time of the accident. They also point out that Sharp’s vehicle had tinted
windows, although Sharp was not cited by law enforcement for this alleged
violation. Legna and Ilka have failed to demonstrate how these actions constitute
2 In Williams v. Wilson, 972 S.W.2d 260 (Ky. 1998), the Kentucky Supreme Court determined that the subjective awareness standard of Kentucky Revised Statutes 411.184(1)(c) was unconstitutional.
-9- gross negligence versus mere ordinary negligence. The record does not reflect that
Sharp acted with a wanton or reckless disregard for the lives, safety, or property of
others. In reaching this conclusion, we rely upon Kinney v. Butcher, 131 S.W.3d
357 (Ky. App. 2004). Therein, the Court held that a defendant who was driving a
motor vehicle “ten miles per hour in excess of the posted speed limit” and who
failed “to complete a pass before entering a no-passing zone constitute[s] nothing
more than ordinary negligence.” Kinney, 131 S.W.3d at 359. Additionally, the
Court observed:
Were we to accept Kinney’s argument that it amounts to wanton or reckless disregard for the safety of others, it would effectively eliminate the distinction between ordinary and gross negligence in the context of automobile accidents. Nearly all auto accidents are the result of negligent conduct, though few are sufficiently reckless as to amount to gross negligence, authorizing punitive damages.
Kinney, 131 S.W.3d at 359.
Likewise, we believe that Sharp’s actions were merely negligent and
to hold otherwise, would “effectively eliminate the distinction between ordinary
and gross negligence[.]” Id. at 359. In this case, Sharp rear-ended Legna’s vehicle
at an intersection in a low-speed accident. At best, Sharp failed to exercise
reasonable care in driving his auto. The evidence does not establish that Sharp
acted wantonly or in reckless disregard of the safety of others. See Nissan Motor
Co., Ltd. v. Maddox, 486 S.W.3d 838, 840 (Ky. 2015). Accordingly, we conclude
-10- that the trial court properly rendered summary judgment dismissing Legna’s and
Ilka’s claims for punitive damages.
Legna and Ilka next assert that the trial court improperly determined
that certain communications between appellee’s counsel and appellee’s expert
witness, Dr. Lyon, were privileged by the attorney-client privilege and the work-
product privilege. Legna and Ilka point out that they sought to take the deposition
of Dr. Lyon and simultaneously sought from Dr. Lyon documents, correspondence,
writings, theories, impressions, messages, email, memoranda between Dr. Lyon
and anyone, including counsel for Sharp. Legna and Ilka argue that the work-
product privilege is not an absolute privilege but is a qualified privilege that can be
defeated upon a showing that the requesting party has a substantial need for the
materials and is unable to obtain the materials by other means without undue
hardship. Legna and Ilka claim that they have a substantial need for the
communications between Sharp’s counsel and Dr. Lyon in order to conduct a
thorough cross-examination of Dr. Lyon at trial. And, Legna and Ilka maintain
that the communications sought are internal and cannot be accessed by any other
method. Also, Legna and Ilka believe that the communications do not come within
the purview of the attorney-client privilege as Dr. Lyon is not the client, the
client’s representative, the attorney, or the attorney’s representative. Legna and
Ilka further point out that Sharp advanced a general claim of privilege and failed to
-11- produce a privilege log or to identify the privilege communications in order to
facilitate a review of each alleged privileged communication.
The record reveals that Sharp filed a motion for a protective order and
sought to prevent discovery of the following:
4. All correspondence, memoranda, reports, and other writings and documentation reviewed by you from or on behalf of any party or their attorney herein relative to this action;
....
6. All correspondence, memoranda, reports, written opinions, theories, impressions, requests for information, and other documentation generated by you relative to the parties and/or the subject litigation;
9. All computer printouts with all e-mail stored messages from computers used by you or your agent, servants, and/or employees relative to this action;
12. Copies of all correspondence written by you to anyone concerning this case;
13. Copies of all correspondence written to you from anyone concerning this case[.]
October 7, 2019, memorandum in support of motion for protection order at 5.
-12- The attorney-client privilege generally provides that “[a] client has a
privilege to refuse to disclose and to prevent any other person from disclosing a
confidential communication made for the purpose of facilitating the rendition of
professional legal services to the client[.]” Kentucky Rules of Evidence (KRE)
503(b). The communication must be confidential in order for the privilege to
attach.
As to a testifying expert witness and the attorney-client privilege, the
Kentucky Supreme Court has recognized that “confidentiality implies that the
information will not be used to form the basis of expert testimony at trial; this is
because expert testimony must be cross-examinable.” Sanborn v. Commonwealth,
892 S.W.2d 542, 550 (Ky. 1995). The Supreme Court further emphasized that:
1. A distinction must be drawn between an expert hired to testify at trial and an expert consulted as an adviser who will not testify. The first is a witness who, as the Advisory Committee’s Notes to Standard 503(a)(3) indicate, does not fall in the definition of representative of lawyer. In this situation disclosure is contemplated and the privilege is eliminated. A contrary finding would permit a party to exclude relevant evidence. A party ought not to be permitted to thwart effective cross- examination of a material witness whom he will call at trial merely by invoking the attorney-client privilege to prohibit pretrial discovery. [Footnotes and internal quotation marks omitted.]
-13- Sanborn, 892 S.W.2d at 550 (citation omitted). Thus, communications with a
testifying expert witness are not shielded from disclosure by the attorney client
privilege.3
In this case, Dr. Lyon was a testifying witness, and thus, any
communications between Dr. Lyon and Sharp’s attorney were not privileged under
the attorney-client privilege.
As to the attorney work-product privilege, documents prepared in
anticipation of ligation are only discoverable upon a showing of substantial need to
obtain the documents and inability to otherwise obtain documents without undue
hardship. CR 26.02(3); Reynolds Consumer Prods., LLC v. Comm’r of the Dep’t
of Workplace Standards, 592 S.W.3d 758, 762 (Ky. App. 2020). Our Court has
recognized that “[a] two-step analysis is necessary to determine whether a specific
document claimed to be privileged is nevertheless discoverable.” Reynolds
Consumer Prods., LLC, 592 S.W.3d. at 761. First, it must be determined whether
the document qualifies as work product of the attorney. Id. Second, if so, the
document may be discoverable only if there is a substantial need for the document
and the document cannot be obtained without undue hardship. Id.
3 Kentucky Rules of Civil Procedure 26.02(4) sets forth the methods of discovery applicable to testifying expert witnesses.
-14- In this case, Legna and Ilka filed a notice to take the video deposition
of Dr. Lyon with a substantial document request. Sharp filed a motion for
protective order to limit the scope of document production such as to not impose
an undue burden on Sharp’s expert witness. At the hearing on the motion on
October 25, 2019, the trial court indicated that discovery would be permissible of
documents relied upon by Dr. Lyon in formulating his opinion. On November 13,
2019, the court granted the motion for protective order in part and denied in part.
Legna and Ilka subsequently deposed Dr. Lyon on three occasions, said
depositions being used as Dr. Lyon’s trial testimony.4 Subsequent to the
depositions, Legna and Ilka did not file a motion to compel the production of any
documents nor have they cited to this Court where in the record, including Dr.
Lyon’s depositions, that they presented any objection to the document production
or identified what documents relied upon by Dr. Lyon as an expert witness that
were not produced. Without preservation of these purported errors by the trial
court, this Court is not inclined to review the same. Kentucky Rules of Appellate
Procedure 32(A)(4). See also Alliant Hosps., Inc. v. Benham, 105 S.W.3d 473, 476
(Ky. App. 2003).
Legna and Ilka also maintain that the trial court erroneously failed to
require Dr. Lyon to comply with its November 13, 2019, order. In that order,
4 Dr. Lyon was deposed on May 11, 2020, July 23, 2020, and August 20, 2020.
-15- Legna and Ilka point out that Dr. Lyon was ordered to reveal the “percentage of his
income derived from evaluations and litigation-related work as compared to his
medical patient practice[.]” Legna and Ilka’s Brief at 20. Legna and Ilka note that
Sharp filed a motion to compel a rule 35 examination and stated that Dr. Lyon
refused to disclose such information and withdrew as an expert witness. Legna
and Ilka point out that Sharp then sought to compel them to come to Kentucky to
submit to a medical examination per CR 35.01 with Sharp’s new expert, Dr. Henry
Tutt. The trial order granted the motion for the new medical examination by order
entered February 17, 2020. Legna and Ilka resided in Florida and did not want to
travel to Kentucky for the medical examination. So, Legna and Ilka assert that
they reached an agreement with Sharp’s counsel wherein they would not object to
Dr. Lyon as a witness but would still be able to question him concerning the
percentage of his income derived from evaluations compared to his income from
medical practice cases. According to Legna and Ilka, the trial court nonetheless
precluded them from questioning Dr. Lyon upon the percentage of income derived
from evaluations compared to the percentage of his income derived from medical
practice cases.
The record reveals that, on February 10, 2020, the parties were before
the trial court concerning the parameters of Legna and Ilka’s questioning of Dr.
Lyon. It appears that Legna and Ilka did not wish to travel to Kentucky at Sharp’s
-16- expense and contacted Sharp’s attorney. The parties reached an agreement
although each party differed upon the terms of the agreement. According to Sharp,
Legna and Ilka agreed not to question Dr. Lyon upon the percentage of income
derived from evaluations compared to the percentage of his income derived from
medical practice cases. In return, Sharp agreed to keep Dr. Lyon as his expert,
thereby rendering a medical examination with Dr. Tutt unnecessary. According to
Legna and Ilka, they merely agreed to not move to exclude Dr. Lyon as a witness,
and in exchange, Sharp agreed to keep Dr. Lyon as his expert, thereby rendering
unnecessary a medical examination with Dr. Tutt.
The trial court heard arguments from the parties concerning the
content of the agreement. The court decided that Legna and Ilka had two choices:
(1) Dr. Lyon could remain the expert for Sharp. If he did, Legna and Ilka could
not question Dr. Lyon concerning the percentage of income derived from
evaluations compared to the percentage of his income derived from medical
practice cases and also would not be compelled to attend a medical examination by
Dr. Tutt; or (2) Dr. Lyon would not remain the expert for Sharp, and Legna and
Ilka would be compelled to travel to Kentucky for a medical examination by Dr.
Tutt. The trial court indicated that Legna and Ilka could inform the court at a later
-17- time as to which option they chose.5 It appears that Legna and Ilka chose the first
option as Dr. Lyon testified at trial by video deposition.
It is clear that Sharp had the right to require a medical examination of
Legna and Ilka under CR 35.01 with Dr. Tutt. With both parties disagreeing upon
the terms of their purported agreement, the trial court utilized its discretion by
giving Legna and Ilka the option of traveling to Kentucky for the medical
examination by Dr. Tutt or accepting Dr. Lyon with the restriction upon
questioning him. Accordingly, we cannot conclude that the trial court abused its
discretion or committed reversible error by so doing.
Legna and Ilka further argue that Sharp improperly used a peremptory
strike to remove Juror 3011, who was African-American, without a race-neutral
reason in violation of Batson v. Kentucky, 476 U.S. 79 (1986). Sharp’s reasons for
exercising the strike were that Juror 3011 and Legna had been previously
employed as teaching assistants with the Fayette County Public Schools and that
Juror 3011 had previously been a plaintiff in a personal injury action. Legna and
Ilka also note that they are Cuban-American immigrants.
5 At trial, Dr. Rick Lyon testified by video deposition. It does appear that Legna Tocado Rodriguez and Ilka Rodriguez Diaquez questioned Dr. Lyon concerning the percentage of income derived from evaluations compared to the percentage of his income derived from medical practice cases. Jeffrey Sharp objected to such questioning, and the trial court sustained the objection by order entered April 16, 2021.
-18- It is well-established that “[t]he use of peremptory challenges to
remove jurors from the venire on the basis of race or gender violates the Equal
Protection Clause of the Constitution.” Ross v. Commonwealth, 455 S.W.3d 899,
906 (Ky. 2015); see also Louisville Metro Government v. Ward, 610 S.W.3d 295,
308-309 (Ky. App. 2020). In Batson v. Kentucky, 476 U.S. at 96-98, the United
States Supreme Court set forth a three-part analysis for determining whether the
use of a peremptory challenge violates the equal protection clause:
First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.
Commonwealth v. Snodgrass, 831 S.W.2d 176, 178 (Ky. 1992) (citing Batson, 476
U.S. at 96-98); see also Louisville Metro Gov’t, 610 S.W.3d at 308-09. And, the
trial court’s ultimate decision is “akin to a finding of fact” and “will not be
disturbed unless clearly erroneous.” Roe v. Commonwealth, 493 S.W.3d 814, 826
(Ky. 2016) (citation omitted) (quoting Chatman v. Commonwealth, 241 S.W.3d
799, 804 (Ky. 2007) and Washington v. Commonwealth, 34 S.W.3d 376, 380 (Ky.
2000)).
We cannot conclude that the trial court’s decision to deny Legna and
Ilka’s Batson challenge was clearly erroneous. It is clear that Sharp’s counsel
-19- offered race-neutral and reasonable explanations for striking Juror 3011. The
instant action is a personal injury action, and in light of Juror 3011 being involved
previously in a personal injury lawsuit, there exists substantial evidence of a
probative value to support the trial court’s determination that Sharp’s race-neutral
reason to strike Juror 3011 was not a pretext for racial discrimination. See
Commonwealth v. Coker, 241 S.W.3d 305, 309-10 (Ky. 2007).
Legna and Ilka next contend that the trial court committed reversible
error by excluding the testimony of Lissette Tocado for failure to disclose her as a
witness per CR 26.05. Legna and Ilka point out that Tocado is the sister of Legna
and daughter of Ilka and that Tocado came to the scene of the accident. Legna and
Ilka assert that Tocado would have testified as a fact witness to their complaints of
pain immediately following the accident and “statements made by the parties.”
Legna and Ilka’s Brief at 23.
KRE 103 provides in relevant part:
(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and
(1) Objection. If the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
-20- (2) Offer of proof. If the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
To preserve for appellate review an evidential ruling excluding evidence, the
substance of such evidence must be entered into the record by avowal or offer of
proof. Kentucky Guardianship Adm’rs, LLC v. Baptist Healthcare Sys., Inc., 635
S.W.3d 14, 30-31 (Ky. 2021). The failure to do so will preclude review by the
appellate court when the substance of the proposed evidence is not apparent from
the record. Id.
In the case sub judice, Legna and Ilka acknowledge they did not make
an offer of proof or avowal of Tocado’s testimony. Rather, they argue that the
substance of Tocado’s testimony was known because in Plaintiff’s deposition,
“Plaintiff testified that Lisette Tocado came to the scene, talked to officers, and
then drove the injured victims from the scene.” Legna and Ilka’s Combined Reply
and Response Brief at 22. However, this Court is unable to discern the substance
of Tocado’s actual testimony from “Plaintiff’s deposition” and is, thus, unable to
review the alleged error. As such, we conclude that the trial court did not commit
reversible error by excluding Tocado’s testimony. See Kentucky Guardianship
Adm’rs, LLC, 635 S.W.3d at 30-31.
Legna and Ilka further assert that the trial court erred by failing to
give the jury a missing evidence instruction concerning Sharp’s intentional
-21- decision after the accident to trade in the cell phone he was using at the time of the
accident. In so doing, Legna and Ilka argue that Sharp could have reasonably
anticipated that his cell phone would be relevant evidence when the accident
occurred.
In Norton Healthcare, Inc. v. Disselkamp, 600 S.W.3d 696, 731 (Ky.
2020) (quoting University Medical Center, Inc. v. Beglin, 375 S.W.3d 783, 792
(Ky. 2011)), the Supreme Court concluded that a trial court may submit a missing
evidence instruction when:
(1) the evidence is material or relevant to an issue in the case; (2) the opponent had “absolute care, custody, and control over the evidence;” (3) the opponent was on notice that the evidence was relevant at the time he failed to produce or destroyed it; and (4) the opponent, “utterly without explanation,” in fact failed to produce the disputed evidence when so requested or ordered.
And, the decision upon whether to give a missing evidence instruction is within the
trial court’s discretion and will only be reversed for an abuse of discretion.
Disselkamp, 600 S.W.3d at 730.
In this case, the motor vehicle accident occurred on April 9, 2015, and
Legna and Ilka filed their complaint on November 29, 2016. Sharp traded in his
cell phone for an upgrade after the accident but before the filing of the complaint.
Considering the facts herein, it was not an abuse of discretion for the trial court to
have determined that Sharp was unaware that his old cell phone would be relevant
-22- when he traded it as no complaint had been filed by Legna and Ilka at that time and
the motor vehicle accident was minor. We, thus, conclude that the trial court did
not err by failing to give a missing evidence instruction.
Legna and Ilka also argue that the trial court erroneously excluded
evidence that Sharp’s motor vehicle insurance company, Liberty Mutual Insurance
Company, paid the bills of Sharp’s expert witness, Dr. Lyon. Legna and Ilka
maintain that they “sought to expose the true bias or special interest of Dr. Lyon by
using evidence that he had been paid directly by the insurer and to admit the
insurance policy as evidence[.]” Legna and Ilka’s Brief at 23-24. Generally, it is
recognized that “evidence that an expert witness was retained by a particular party
and the amount of compensation paid to the expert for services rendered was
highly relevant to the issue of the expert's credibility.” Miller ex. rel. Monticello
Banking Co., v. Marymount Medical Center, 125 S.W.3d 274, 282 (Ky. 2004).
And, the trial court’s decision to admit or exclude evidence is reviewed for an
abuse of discretion. Clephas v. Garlock, Inc., 168 S.W.3d 389, 393 (Ky. App.
2004). We will only reverse the trial court’s ruling if the erroneous evidential
ruling is prejudicial to the substantial rights of the party and a substantial
possibility exists that the jury verdict would have been different absent the error.
Porter v. Allen, 611 S.W.3d 290, 294 (Ky. App. 2020); Davis v. Fischer Single
Family Homes, Ltd., 231 S.W.3d 767, 776 (Ky. App. 2007).
-23- In this instance, reference to an insurance carrier would clearly infer
that insurance was available to Sharp to pay Legna’s and Ilka’s claims. Such an
inference or argument regarding insurance has long been prohibited by Kentucky
courts as prejudicial and otherwise is not relevant to the merits of the case
regarding causation or damages. White v. Piles, 589 S.W.2d 220, 222 (Ky. App.
1979). Additionally, the amount of compensation paid to Dr. Lyon was elicited at
trial through cross-examination along with the fact that Dr. Lyon typically testifies
as a defense witness in about 97 percent of cases that he testifies in. Considering
the prejudice to Sharp, we are unable to conclude that the trial court abused its
discretion by excluding evidence that Liberty Mutual directly paid Dr. Lyon’s fees.
Legna and Ilka next argue that the trial court improperly made
“rulings and statements regarding alleged witness Russell Hillard, and in bolstering
him in front of the jury.” Legna and Ilka’s Brief at 15-16. Legna and Ilka point
out that Hillard was a witness, who allegedly saw the accident, and was called by
Sharp. Legna and Ilka maintain that the trial “court repeatedly made statements in
front of the jury which essentially vouched for Hillard’s credibility and
downplayed his false testimony.” Legna and Ilka’s Brief at 16. For instance,
Legna and Ilka recount that during trial, Sharp called Hillard as a witness, but
Hillard was not present. According to Legna and Ilka, Hillard returned to testify,
and the trial “court downplayed Hillard’s intentional disregard of the subpoena for
-24- his trial attendance by advising him in front of the jury, ‘[w]e’re glad you came
back, I’m sorry you left.’” Legna and Ilka’s Brief at 16. In another example,
Legna and Ilka assert that during their impeachment of Hillard’s purported false
testimony, the trial court informed Hillard that “sometimes we don’t remember
something, they are allowed to say to us ‘do you remember me asking you this
question back on this date.’” Legna and Ilka’s Brief 17. And, Legna and Ilka
point out that Hillard asked in front of the jury if he needed a lawyer, and the trial
court responded that Hillard did not need a lawyer because he did nothing wrong.
Lastly, Legna and Ilka cite that the trial court asked Hillard for a business card and
asked Hillard to do a commercial for Hillard’s employer in front of the jury.
It is well established that the trial judge should refrain from comments
during the trial that are prejudicial to the parties, the witnesses, or the subject
matter of the action. Commonwealth, Dept. of Highways v. Eubank, 369 S.W.2d
15 (Ky. 1963). A trial judge possesses “the right and duty, within reasonable
limits, to bring out the facts in the case before him[.]” Transit Auth. of River City
v. Montgomery, 836 S.W.2d 413, 416 (Ky. 1992). In so doing, a trial judge should
not be a silent and passive spectator; rather, the trial judge should “administer the
law and guide the proceedings[.]” Id. And, the trial judge is vested with discretion
to determine the conduct of the trial. Id.
-25- Based on our review of the trial proceedings, it was clear that Hillard
was both uncomfortable and angry at having his testimony impeached by counsel
for Legna and Ilka. The trial judge, who is responsible for maintaining order in the
courtroom, made various comments to Hillard to calm his emotional outbursts.
Given the totality of the circumstances, we do not believe that the trial judge’s
comments were prejudicial or constituted an abuse of discretion. Consequently,
we are unable to conclude that reversible error occurred.
Lastly, Legna and Ilka assert that the trial court erred by denying their
motion for summary judgment and motion for directed verdict upon past medical
expenses. Legna and Ilka maintain that their medical expert, Dr. Charles Gilliland,
and Sharp’s medical expert, Dr. Rick Lyon, agreed that Legna’s past medical
expenses ($7,775) and Ilka’s past medical expenses ($7,365) were related to the
motor vehicle accident. Nonetheless, Legna and Ilka argue that the trial court
erroneously denied their motion for summary judgment and motion for directed
verdict. Even though the jury ultimately awarded Legna and Ilka their past
medical expenses, Legna and Ilka believe that the trial court’s failure to grant the
motions:
undermined Plaintiffs’ credibility and signaled to the jury that even uncontroverted issues should still be decided by them because even when the issue was agreed upon by experts for both sides as here, the jury should still decide the issue and potentially nullify in their verdict.
-26- Legna and Ilka’s Brief at 7.
The jury returned a verdict that awarded Legna and Ilka past medical
expenses. So, any error by the trial court in denying the motion for summary
judgment and the motion for directed verdict is most certainly rendered moot.
Moreover, the jury is presumed to follow the law and instructions given by the trial
court. Jewish Hosp. & St. Mary’s Healthcare, Inc. v. House, 563 S.W.3d 626, 636
(Ky. 2018). Thus, we cannot conclude that reversible error occurred.
As noted, Sharp filed a protective cross-appeal. As we affirm Legna
and Ilka’s direct appeal (Appeal No. 2022-CA-0934-MR), the cross-appeal (Cross-
Appeal No. 2022-CA-0971-MR) is rendered moot.
For the foregoing reasons, the judgment as amended by the Fayette
Circuit Court is affirmed.
ALL CONCUR.
-27- BRIEFS FOR APPELLANT/CROSS- BRIEFS FOR APPELLEE/CROSS- APPELLEE: APPELLANT:
Sandra M. Varellas Christopher R. Jenkins D. Todd Varellas Christopher S. Turner Lexington, Kentucky Lexington, Kentucky
ORAL ARGUMENT FOR ORAL ARGUMENT FOR APPELLANT/CROSS-APPELLEE: APPELLEE/CROSS APPELLANT:
D. Todd Varellas Christopher R. Jenkins Lexington, Kentucky Lexington, Kentucky
-28-