RENDERED: APRIL 23, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0577-MR
MARTIN JONES APPELLANT
APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE PATRICIA M. SUMME, JUDGE ACTION NO. 18-CI-02181
THOMAS BEIERLEIN APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES.
MAZE, JUDGE: Martin Jones appeals from a judgment confirming a jury verdict
in favor of Thomas Beierlein. Jones argues that the trial court abused its discretion
by excluding significant portions of the testimony of his expert physician. Given
our limited standard of review, we find no indication that the trial court’s factual findings concerning the physician’s qualifications resulted in a manifest injustice.
Hence, we affirm.
This case arose from a motor vehicle accident which occurred on
August 3, 2015. Beierlein was stopped at a red light on Madison Avenue in
Covington, Kentucky. The vehicle behind him, driven by Shafonz Govan, was
also stopped at the light. A third vehicle, driven by Jones, failed to stop and rear-
ended the Govan vehicle. Govan’s car was pushed forward and struck the rear of
Beierlein’s vehicle. Following the accident, Beierlein sought medical and
chiropractic treatment for lumbar and cervical strain.
On December 7, 2018, Beierlein brought this action against Jones,
seeking damages for his injuries resulting from Jones’ negligence.1 During
discovery, Jones asked Beierlein to submit to a medical examination by Dr. Steven
Wunder. Dr. Wunder reviewed Beierlein’s medical records, conducted a physical
examination, and issued a report. Thereafter, Beierlein took Dr. Wunder’s
deposition. During his deposition, Dr. Wunder testified that he did not believe
Beierlein’s injuries could have been caused by the accident. He also testified that
he believed that Beierlein’s pain was psychosomatic, caused by his prior
1 Beierlein also asserted claims against Jones’ insurance carrier and against his own insurance carrier for underinsured motorist (UIM) benefits. Those claims are not the subject of this appeal.
-2- psychological trauma. And on cross-examination, Dr. Wunder testified that Mr.
Beierlein appeared to meet the criteria for malingering.
Prior to trial, Beierlein filed a motion in limine to exclude Dr.
Wunder’s testimony. The trial court granted the motion, finding that Dr. Wunder
had not been qualified as an expert in the fields of biomechanics, accident
reconstruction, or psychology. Consequently, the trial court excluded Dr.
Wunder’s testimony concerning the causal relationship between the accident and
Beierlein’s injuries, the possible psychological causes of his symptoms, and his
opinion that Beierlein was malingering.
The matter proceeded to a jury trial in March 2020. Jones introduced
Dr. Wunder’s deposition, but subject to the trial court’s limitations. At the close of
trial, the jury returned a verdict in favor of Beierlein. The jury awarded damages
totaling $106,482.70, which the trial court reduced by $10,000 for the Basic
Reparation Benefit (BRB) payments already received. This appeal followed.
On appeal, Jones argues that the trial court abused its discretion by
excluding most of Dr. Wunder’s testimony. As an initial matter, we note that CR2
76.12(4)(c)(v) requires that the Appellant’s brief shall contain “at the beginning of
the argument a statement with reference to the record showing whether the issue
was properly preserved for review and, if so, in what manner.” “Compliance with
2 Kentucky Rules of Civil Procedure.
-3- this rule permits a meaningful and efficient review by directing the reviewing court
to . . . where in the record the preceding court had an opportunity to correct its own
error before the reviewing court considers the error itself.” Hallis v. Hallis, 328
S.W.3d 694, 696-97 (Ky. App. 2010).
In this case, Jones’ brief fails to include the required statement or
references to the record. However, Jones’ brief includes the trial court’s order
granting Beierlein’s motion in limine. “Our options when an appellate advocate
fails to abide by the rules are: (1) to ignore the deficiency and proceed with the
review; (2) to strike the brief or its offending portions, CR 76.12(8)(a); or (3) to
review the issues raised in the brief for manifest injustice only[.]” Id. at 696. See
also Briggs v. Kreutztrager, 433 S.W.3d 355, 361 (Ky. App. 2014). While we can
review the trial court’s order, the deficiency in Jones’ brief limits our ability to
determine whether the objection was properly preserved. Furthermore, Jones did
not take the opportunity to correct the deficiency with a citation to the record in his
reply brief.
We ordinarily review the trial court’s decision to admit or to exclude
evidence for abuse of discretion. Goodyear Tire and Rubber Co. v. Thompson, 11
S.W.3d 575, 577 (Ky. 2000). A trial court abuses its discretion when its decision
is “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Id.
-4- at 581. In this case, because of Jones’ failure to comply with CR 76.12(4)(c)(v),
we will review his allegation of error for manifest injustice only.
Jones relies heavily on the holding of Combs v. Stortz, 276 S.W.3d
282 (Ky. App. 2009), which also involved the testimony of Dr. Wunder. In that
case, this Court held that the trial court’s admission of Dr. Wunder’s testimony on
matters allegedly outside of his field of expertise did not result in manifest
injustice. In the interest of consistency, Jones asserts that Dr. Wunder should have
been permitted to testify on those matters in this case.
However, Combs is distinguishable for several reasons. First, the trial
court in Combs denied the motion to exclude Dr. Wunder’s testimony. We
generally defer to such discretionary determinations by a trial court. In addition,
the Court’s scope of review in Combs was limited by the appellant’s failure to
comply with CR 76.12(4)(c)(v). Here, it was Jones who failed to comply with the
rule. Thus, our scope of review is likewise limited as to his claims of abuse of
discretion.
Moreover, the Court in Combs found that Dr. Wunder was not
offering opinions outside of his area of expertise, explaining as follows:
In Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997), our Supreme Court held that expert opinion evidence is admissible so long as: (1) the witness is qualified to render an opinion on the subject matter; (2) the subject matter is proper for expert testimony and satisfies the requirements of Daubert v. Merrell Dow
-5- Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993); (3) the subject matter satisfies the test of relevancy, subject to the balancing of probativeness against prejudice as required by KRE[3] 403; and (4) the opinion will assist the trier of fact pursuant to KRE 702. Stringer, 956 S.W.2d at 891.
Although physicians are qualified to testify as experts with respect to their particular area of specialty, we note that generally it is improper for a physician to testify as to the biomechanics of an accident. In Tetrick v.
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RENDERED: APRIL 23, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0577-MR
MARTIN JONES APPELLANT
APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE PATRICIA M. SUMME, JUDGE ACTION NO. 18-CI-02181
THOMAS BEIERLEIN APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES.
MAZE, JUDGE: Martin Jones appeals from a judgment confirming a jury verdict
in favor of Thomas Beierlein. Jones argues that the trial court abused its discretion
by excluding significant portions of the testimony of his expert physician. Given
our limited standard of review, we find no indication that the trial court’s factual findings concerning the physician’s qualifications resulted in a manifest injustice.
Hence, we affirm.
This case arose from a motor vehicle accident which occurred on
August 3, 2015. Beierlein was stopped at a red light on Madison Avenue in
Covington, Kentucky. The vehicle behind him, driven by Shafonz Govan, was
also stopped at the light. A third vehicle, driven by Jones, failed to stop and rear-
ended the Govan vehicle. Govan’s car was pushed forward and struck the rear of
Beierlein’s vehicle. Following the accident, Beierlein sought medical and
chiropractic treatment for lumbar and cervical strain.
On December 7, 2018, Beierlein brought this action against Jones,
seeking damages for his injuries resulting from Jones’ negligence.1 During
discovery, Jones asked Beierlein to submit to a medical examination by Dr. Steven
Wunder. Dr. Wunder reviewed Beierlein’s medical records, conducted a physical
examination, and issued a report. Thereafter, Beierlein took Dr. Wunder’s
deposition. During his deposition, Dr. Wunder testified that he did not believe
Beierlein’s injuries could have been caused by the accident. He also testified that
he believed that Beierlein’s pain was psychosomatic, caused by his prior
1 Beierlein also asserted claims against Jones’ insurance carrier and against his own insurance carrier for underinsured motorist (UIM) benefits. Those claims are not the subject of this appeal.
-2- psychological trauma. And on cross-examination, Dr. Wunder testified that Mr.
Beierlein appeared to meet the criteria for malingering.
Prior to trial, Beierlein filed a motion in limine to exclude Dr.
Wunder’s testimony. The trial court granted the motion, finding that Dr. Wunder
had not been qualified as an expert in the fields of biomechanics, accident
reconstruction, or psychology. Consequently, the trial court excluded Dr.
Wunder’s testimony concerning the causal relationship between the accident and
Beierlein’s injuries, the possible psychological causes of his symptoms, and his
opinion that Beierlein was malingering.
The matter proceeded to a jury trial in March 2020. Jones introduced
Dr. Wunder’s deposition, but subject to the trial court’s limitations. At the close of
trial, the jury returned a verdict in favor of Beierlein. The jury awarded damages
totaling $106,482.70, which the trial court reduced by $10,000 for the Basic
Reparation Benefit (BRB) payments already received. This appeal followed.
On appeal, Jones argues that the trial court abused its discretion by
excluding most of Dr. Wunder’s testimony. As an initial matter, we note that CR2
76.12(4)(c)(v) requires that the Appellant’s brief shall contain “at the beginning of
the argument a statement with reference to the record showing whether the issue
was properly preserved for review and, if so, in what manner.” “Compliance with
2 Kentucky Rules of Civil Procedure.
-3- this rule permits a meaningful and efficient review by directing the reviewing court
to . . . where in the record the preceding court had an opportunity to correct its own
error before the reviewing court considers the error itself.” Hallis v. Hallis, 328
S.W.3d 694, 696-97 (Ky. App. 2010).
In this case, Jones’ brief fails to include the required statement or
references to the record. However, Jones’ brief includes the trial court’s order
granting Beierlein’s motion in limine. “Our options when an appellate advocate
fails to abide by the rules are: (1) to ignore the deficiency and proceed with the
review; (2) to strike the brief or its offending portions, CR 76.12(8)(a); or (3) to
review the issues raised in the brief for manifest injustice only[.]” Id. at 696. See
also Briggs v. Kreutztrager, 433 S.W.3d 355, 361 (Ky. App. 2014). While we can
review the trial court’s order, the deficiency in Jones’ brief limits our ability to
determine whether the objection was properly preserved. Furthermore, Jones did
not take the opportunity to correct the deficiency with a citation to the record in his
reply brief.
We ordinarily review the trial court’s decision to admit or to exclude
evidence for abuse of discretion. Goodyear Tire and Rubber Co. v. Thompson, 11
S.W.3d 575, 577 (Ky. 2000). A trial court abuses its discretion when its decision
is “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Id.
-4- at 581. In this case, because of Jones’ failure to comply with CR 76.12(4)(c)(v),
we will review his allegation of error for manifest injustice only.
Jones relies heavily on the holding of Combs v. Stortz, 276 S.W.3d
282 (Ky. App. 2009), which also involved the testimony of Dr. Wunder. In that
case, this Court held that the trial court’s admission of Dr. Wunder’s testimony on
matters allegedly outside of his field of expertise did not result in manifest
injustice. In the interest of consistency, Jones asserts that Dr. Wunder should have
been permitted to testify on those matters in this case.
However, Combs is distinguishable for several reasons. First, the trial
court in Combs denied the motion to exclude Dr. Wunder’s testimony. We
generally defer to such discretionary determinations by a trial court. In addition,
the Court’s scope of review in Combs was limited by the appellant’s failure to
comply with CR 76.12(4)(c)(v). Here, it was Jones who failed to comply with the
rule. Thus, our scope of review is likewise limited as to his claims of abuse of
discretion.
Moreover, the Court in Combs found that Dr. Wunder was not
offering opinions outside of his area of expertise, explaining as follows:
In Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997), our Supreme Court held that expert opinion evidence is admissible so long as: (1) the witness is qualified to render an opinion on the subject matter; (2) the subject matter is proper for expert testimony and satisfies the requirements of Daubert v. Merrell Dow
-5- Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993); (3) the subject matter satisfies the test of relevancy, subject to the balancing of probativeness against prejudice as required by KRE[3] 403; and (4) the opinion will assist the trier of fact pursuant to KRE 702. Stringer, 956 S.W.2d at 891.
Although physicians are qualified to testify as experts with respect to their particular area of specialty, we note that generally it is improper for a physician to testify as to the biomechanics of an accident. In Tetrick v. Frashure, 119 S.W.3d 89 (Ky. App. 2003), this Court held, in discussing the qualifications of a witness concerning a seat belt defense, that the witness must possess sufficient training, special knowledge, or skill to testify on the subject.
In this instance, however, after thoroughly reviewing Dr. Wunder’s deposition testimony and report, we are not convinced that the doctor’s testimony was outside of his area of expertise, nor that it failed to meet the standards outlined above. Certainly, a variety of factors must be taken into consideration in rendering a thorough and well-informed opinion, and our review of the record reveals no error in the materials relied upon by Dr. Wunder in offering his opinion.
After reviewing the record, we find no indication that Dr. Wunder testified as to the biomechanics of the accident itself. To the contrary, it appears that Dr. Wunder took a thorough personal history from Combs and conducted his examination with that history in mind. Further, we find no evidence that the doctor based his opinion, even slightly, on his brief review of the photographs of the collision. Our review of the records indicates that Dr. Wunder did review photographs of the accident, but nowhere do we find evidence that he based
3 Kentucky Rules of Evidence.
-6- his opinion upon the state of the car as it appeared in those pictures. Id. at 294.
Unlike in Combs, the trial court in this case expressly found that Dr.
Wunder sought to offer opinions based upon biomechanical principles. Dr.
Wunder agreed that he does not have any formal training in biomedical
engineering and did not apply any biomedical principles in this case. He also
admitted that he did not apply any type of biomedical methodologies as to the
factors in Beierlein’s accident. Similarly, the trial court found that Dr. Wunder had
not established any qualification to express an opinion about Beierlein’s
psychological state or whether he was malingering.
In sum, Jones failed to establish that the trial court clearly erred in
finding that Dr. Wunder was not qualified to offer opinions on these subjects. In
any event, the trial court allowed Dr. Wunder to testify concerning the results of
his objective medical testing, including the MRI scans. Dr. Wunder testified that
the results of those tests were essentially normal and not consistent with the
cervical and lumbar pain claimed by Beierlein. Under the circumstances, we find
no indication that Jones was unfairly prejudiced by the exclusion of Dr. Wunder’s
opinions outside of the field of his expertise. Therefore, we find no manifest
injustice in this case.
Accordingly, we affirm the judgment of the Kenton Circuit Court.
-7- ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Robert B. Cetrulo Colby B. Cowherd Edgewood, Kentucky Covington, Kentucky
-8-