Woolum v. Hillman

329 S.W.3d 283, 2010 Ky. LEXIS 262, 2010 WL 4146220
CourtKentucky Supreme Court
DecidedOctober 21, 2010
Docket2008-SC-000396-DG
StatusPublished
Cited by5 cases

This text of 329 S.W.3d 283 (Woolum v. Hillman) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Woolum v. Hillman, 329 S.W.3d 283, 2010 Ky. LEXIS 262, 2010 WL 4146220 (Ky. 2010).

Opinions

Opinion of the Court by

Justice NOBLE.

Appellees, Lisa Ann and Aaron Hillman, received a judgment in Bell Circuit Court in their wrongful death action for the death of their stillborn child against Appellant Dr. Jerry Woolum and his medical practice.1 Appellant challenges the judg[286]*286ment on four grounds: two evidentiary admissions, the denial of a directed verdict, and juror misconduct. This Court finds no reversible error, and the judgment is affirmed.

I. Background

In this wrongful death action over a stillborn fetus, Appellees alleged medical malpractice against Appellant for his treatment of the pregnancy after the mother, Lisa Hillman, was diagnosed with pregnancy-induced hypertension (also known as preeclampsia).

As of July 11, 2002, everything appeared normal with the pregnancy, according to an ultrasound performed on that date. At that time, Appellant set the due date as September 16.

When Lisa Hillman attended her regularly scheduled appointment on August 7, 2002, she learned she had a heightened blood pressure reading of 140/100. Appellant diagnosed Hillman’s condition as pregnancy-induced hypertension. He informed her that her condition was dangerous and could lead to toxemia and seizures, and instructed her to stay on bed rest and visit him biweekly or immediately if she noticed any problems. Nonetheless, Appellant decided not to advance the due date to before 37 weeks.

Over the next few weeks, Hillman’s condition worsened. Eventually, Appellant and Hillman agreed to deliver the child on September 3, almost two weeks sooner than the original due date. During the night of September 2, before the scheduled appointment, Hillman went into labor. However, after she checked into the hospital, nurses could not find a heartbeat from the child. The child was then delivered stillborn. Appellant did not recommend an autopsy, but he concluded that the child had been dead for at least 24 hours. He told the Appellees at that time that the cause of death was Hillman’s preeclampsia, although at trial he offered an alternative theory of a genetic disorder.

Appellees filed their wrongful death action against Appellant in Bell Circuit Court. Their theory of the case was that Appellant committed medical malpractice by postponing delivery after Hillman had been diagnosed with pregnancy-induced hypertension. Appellant countered that the cause of death was a genetic disease, trophoblasts, which affected the placenta and which was untreatable by Appellant.

In a 9-3 verdict, the Bell County jury found for Appellees, awarding them $500,600 in damages. A new trial was then ordered on a matter unrelated to this appeal. However, after the parties reached a settlement on that matter, the court entered a final judgment, which was subsequently appealed.

The Court of Appeals affirmed on all issues implicating liability: two claims of evidentiary error, Appellant’s motion for a directed verdict, and his claim of juror misconduct.2 This Court granted further review on those issues.

II. Analysis

Appellant raises four issues in his appeal. His primary argument is that testimony about a defense witness’s commonality of insurance with the defendant (Appellant) was impermissibly admitted at trial. He also argues that the trial court erred in permitting an ultrasound of the fetus to be played for the jury unaccompanied by expert explanation. Ap[287]*287pellant also claims he was entitled to a directed verdict due to insufficient evidence that the fetus was viable in the first place. Finally he alleges juror misconduct arising from two jurors being taken to the hospital in the midst of the trial.

A. Commonality of Insurance

Appellant filed a pretrial motion in limine to exclude evidence that Appellant and his expert witness, Dr. Butcher, shared a malpractice insurance carrier. Appellees sought to admit the evidence to demonstrate the expert witness’s bias in favor of Appellant. Appellees argued that Dr. Butcher was biased by their commonality of insurance because he believed that a judgment against his insurance company could adversely affect his own premiums.

In making this claim, Appellees relied on Dr. Butcher’s deposition testimony. When previously deposed, Dr. Butcher had described how several malpractice claims against his former liability insurer had driven up his premiums and eventually drove the insurer into bankruptcy, effectively forcing him out of practice in Mississippi. Regarding his new practice in Kentucky, he had stated that doctors were now leaving the Commonwealth because of malpractice claims resulting in increased premiums.

After an extensive hearing, the court denied the motion in limine. The morning before the expert was to testify, the court returned to the matter and again denied the motion in limine and then permitted evidence of the common insurance coverage to be introduced at trial.

It is well-recognized that evidence of a defendant’s insurance is inadmissible to imply liability. As provided in KRE 411, “Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.” Under this rule, a doctor’s malpractice insurance may not be introduced to suggest that, because he would not bear the burden of any damage to a patient, he was more likely to be negligent in his treatment. The rule is not, however, a complete bar on evidence of liability insurance. The remainder of KRE 411 explicitly instructs, “This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.” (Emphasis added.)

Evidence of commonality of insurance was thus clearly not barred by KRE 411 when offered to prove a witness’s bias. That was the purpose for which it was offered and that is the purpose for which the trial court allowed it. While the weight of such evidence is debatable, and is indeed case-specific as will be discussed below, it must certainly pass the relaxed test for relevance under KRE 401. A juror might reasonably find it more likely that the expert would be biased in favor of Appellant having the same insurance coverage than if they did not. See KRE 401.

Yet this does not end the inquiry as to admissibility of such evidence. “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice. ...” KRE 403. The very existence of KRE 411 demonstrates a concern that proof of a defendant’s liability insurance inherently creates the danger of undue prejudice. There is always the danger that a jury will show less sympathy to an insured defendant, inappropriately resulting in a verdict for the plaintiff. The question presented in this case is whether that danger in admitting Appellant’s and his expert’s shared insurance coverage [288]*288substantially outweighed its probative value.

The only bright-line solution to this problem has been developed by the Supreme Court of Ohio, which employs versions of Rules 403 and 411 identical to Kentucky’s.

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Related

Dewane Beasey v. Ford Motor Company
Court of Appeals of Kentucky, 2020
Childers v. Commonwealth
332 S.W.3d 64 (Kentucky Supreme Court, 2011)
Woolum v. Hillman
329 S.W.3d 283 (Kentucky Supreme Court, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
329 S.W.3d 283, 2010 Ky. LEXIS 262, 2010 WL 4146220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/woolum-v-hillman-ky-2010.