RENDERED: SEPTEMBER 11, 2020; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2017-CA-001656-MR
JENNIFER FORD, M.D. APPELLANT
ON REMAND FROM THE SUPREME COURT OF KENTUCKY
APPEAL NO. 2019-SC-000435-DG
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE BRIAN C. EDWARDS, JUDGE
ACTION NO. 15-CI-001368
STEVEN J. REISS, M.D.; AND
BAPTIST HEALTH MEDICAL
GROUP, INC., D/B/A BAPTIST
NEUROLOGICAL SURGERY APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT, MAZE, AND TAYLOR, JUDGES.
LAMBERT, JUDGE: Jennifer Ford, M.D. appealed from a final judgment of the
Jefferson Circuit Court in favor of appellee Baptist Health Medical Group, Inc.
(“Baptist Health”) in Ford’s medical negligence claim. She argued that the trial
court failed to strike three jurors for cause, erred in ruling on an evidentiary issue,
and erroneously permitted Baptist Health to present inappropriate burden of proof
arguments during voir dire. We affirmed in an opinion rendered May 3, 2019,
holding, in part, that Ford did not properly preserve her juror strike issue pursuant
to Gabbard v. Commonwealth, 297 S.W.3d 844, 854 (Ky. 2009), because she
failed to identify additional jurors she would have stricken with a peremptory
challenge on her strike sheet after the trial court refused to strike them for cause.
Ford filed a motion for discretionary review with the Supreme Court of Kentucky,
which the Court granted in an opinion and order entered February 12, 2020. In that
opinion and order, the Supreme Court vacated our original decision and remanded
the case for further consideration in light of its recent decision in Floyd v. Neal,
590 S.W.3d 245 (Ky. 2019). Having permitted the parties to file supplemental
briefs addressing this case and further considering the matter, we again affirm,
although this time on the merits.
On March 23, 2015, Ford asserted a claim of medical negligence
against Baptist Health in the Jefferson Circuit Court on the grounds that treating
physician Steven J. Reiss, M.D. (“Dr. Reiss”) negligently failed to timely
anticipate, identify, diagnose, and correctly address a rare neurosurgical emergency
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called cauda equina syndrome.1 Ford initially asserted claims against Dr. Reiss,
but all claims against him were dismissed before trial. Ford claimed she sustained
permanent injuries as a result of the alleged negligence and was consequently
entitled to an award of damages to recoup her medical expenses and lost wages and
compensation for her pain and suffering.
This matter proceeded to a jury trial against Baptist Health, beginning
on April 25, 2017. After hearing the parties’ proof, a Jefferson County jury
returned a verdict in favor of Baptist Health. On May 16, 2017, the trial court
entered a judgment in accordance with the jury verdict. Ford subsequently moved
for a new trial pursuant to Kentucky Rule of Civil Procedure (“CR”) 59.05, which
was denied by order entered September 14, 2017. This appeal followed.
Before we address the merits of Ford’s claims, we must address two
procedural issues. First, Ford attempts to appeal from the trial court’s order
denying a new trial. This Court has consistently held an “order denying [a] CR
59.05 motion [is] an inherently interlocutory and non-appealable order.” Jones v.
Livesay, 551 S.W.3d 47, 49 (Ky. App. 2018). When an appellant states she is
1
As described in Ford’s brief, the cauda equina is a bundle of nerves that hang in a free-floating
manner at the end of the spinal cord and resemble a horse’s tail. These nerves control the
sensory and motor functions of the bladder, rectum, anus, perineum/labia/vagina, and parts of the
legs. Permanent injury can lead to permanent incontinence in bowel and bladder, foot drop, and
other injuries. The cauda equina nerves are susceptible to permanent injury from compression,
such as from a herniated disc, because they do not have the protective coating possessed by other
nerves in the spinal cord.
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appealing the interlocutory order denying CR 59.05 relief, we should ignore it
because “[t]here is no appellate jurisdiction over the typical interlocutory order.”
Cassetty v. Commonwealth, 495 S.W.3d 129, 132 (Ky. 2016). Therefore, we
address only the issues Ford raises as to the final judgment.
Second, Ford’s brief is deficient. Although not commented on by
Baptist Health, Ford’s brief lacks a preservation statement for each argument. CR
76.12(4)(c)(v) requires a statement of preservation:
so that we, the reviewing Court, can be confident the
issue was properly presented to the trial court and
therefore, is appropriate for our consideration. It also has
a bearing on whether we employ the recognized standard
of review, or in the case of an unpreserved error, whether
palpable error review is being requested and may be
granted.
Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). “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[.]” Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). In this case, we
elect to ignore the deficiency because Ford’s recitation of the procedural history
contains numerous cites to the record.
For her first argument, Ford asserts the trial court erred when it failed
to strike three jurors for cause, forcing her to use peremptory strikes to eliminate
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them from the pool. Ford further argues she would have used her peremptory
strikes to eliminate potential jurors who were insurance company employees or
were otherwise objectionable (specifically, Juror Numbers 14, 5, and 28; Juror
Numbers 14 and 28 were sworn in as members of the jury, and Juror Number 14
was the foreperson).
Although Baptist Health did not raise a preservation issue in its brief,
we originally held that Ford’s argument was not properly preserved for appellate
review, citing Gabbard, 297 S.W.3d at 854 (“[I]n order to complain on appeal that
[she] was denied a peremptory challenge by a trial judge’s erroneous failure to
grant a for-cause strike, the [party] must identify on [her] strike sheet any
additional jurors [she] would have struck.”); and Grubb v. Norton Hospitals, Inc.,
401 S.W.3d 483, 487 (Ky. 2013) (extending the requirement in Gabbard to civil
cases). While Ford orally informed the trial court which jurors she would have
struck had it granted the requested for-cause strikes, her strike sheet lacked any
such notation. Because the Supreme Court of Kentucky made clear in Paulley v.
Commonwealth, 323 S.W.3d 715, 720 (Ky. 2010), that in “all cases tried after
finality of our decision in Gabbard,” parties must identify on their strike sheet any
additional jurors they would have struck in order to properly preserve the issue for
appeal, and as Ford failed to do so, we held that we could not address her
unpreserved argument.
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In her petition for rehearing, Ford cited to the Supreme Court’s
opinion of Sluss v. Commonwealth, 450 S.W.3d 279 (Ky. 2014), overruled on
other grounds by Floyd, 590 S.W.3d 245, to support her argument that she had
substantially complied with the preservation rule by orally stating the jurors on
whom she would have used a peremptory strike had the jurors in question been
stricken for cause.
As to juror Booth, the ultimate issue as to
preservation is whether Sluss complied with our holding
in Gabbard that the defendant must identify on the strike
sheet other jurors he would have struck. Sluss alleges
that he “substantially complied” with Gabbard by stating
orally on the record, during a request for additional
peremptory challenges, that if he was granted additional
challenges he would have struck four additional jurors,
which he listed by name. This list included Joyce
Hedges, who eventually sat on the jury. Sluss argues that
this statement on the record was enough to preserve his
challenge under Shane [v. Commonwealth, 243 S.W.3d
336 (Ky. 2007),] and Gabbard. We agree.
Id. at 284-85. We denied the petition, and Ford sought discretionary review in the
Supreme Court, which was granted as set forth above. We have now further
considered our original holding as to preservation pursuant to the Supreme Court’s
direction.
In Floyd v. Neal, supra, the Supreme Court of Kentucky thoroughly
examined the law on for-cause strike preservation, clarified the procedure
necessary to preserve this argument for review, and prospectively overruled its
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prior holding in Sluss on this issue. Discussing its holding in Sluss, the Supreme
Court stated:
[T]his Court made a drastic change to the Gabbard
holding a year later in Sluss v. Commonwealth. . . . [The
above-quoted passage from Sluss] was the entirety of the
analysis on the issue of preservation. No supporting case
law or reasoning for this change to the Gabbard rule was
discussed. Further, the focus of Sluss was really about
whether Juror Booth could have been rehabilitated under
Montgomery v. Commonwealth, [819 S.W.2d 713 (Ky.
1991),] and to clarify the holding in that case[.] The
point being, Sluss resulted in a major sea change in the
Gabbard jurisprudence when at its core it was not even
about Gabbard. Therefore, the potential problems with
altering the Gabbard rule in such a way were not
sufficiently fleshed out.
Floyd, 590 S.W.3d at 249-50 (footnotes and paragraph breaks omitted).
The Court then set forth “a definitive statement of the procedure
required to preserve a for cause strike error[.]” Id. at 250. That procedure consists
of six steps:
(1) move to strike the juror for cause and be denied; (2)
exercise a peremptory strike on said juror, and show the
use of that peremptory strike on the strike sheet, and
exhaust all other peremptory strikes; (3) clearly indicate
by writing on her strike sheet the juror she would have
used a peremptory strike on, had she not been forced to
use a peremptory on the juror complained of for cause;
(4) designate the same number of would-be peremptory
strikes as the number of jurors complained of for cause;
(5) the would-be peremptory strikes must be made
known to the court prior to the jury being empaneled; and
(6) the juror identified on the litigant’s strike sheet must
ultimately sit on the jury.
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Id. at 252. The Court concluded by stating, “We also prospectively overrule Sluss
v. Commonwealth’s holding that stating would-be peremptory strikes verbally on
the record constitutes substantial compliance with Gabbard.” Id.
In her supplemental memorandum related to the application of Floyd,
Ford points out that the Supreme Court opted to prospectively overrule its holding
in Sluss, meaning that Sluss was still good law when her case was tried in 2017.
Ford then asserts that she had substantially complied with the preservation rule by
orally stating the jurors she would have used a peremptory strike on had the jurors
in question been stricken for cause. In its supplemental memorandum, Baptist
Heath states that the Floyd Court describes Sluss as an aberration and questions
why the Supreme Court would want this Court to revert to an analysis under Sluss
that would be inconsistent with its holding in Floyd. Because the Supreme Court
specifically stated that it was prospectively overruling Sluss, we agree with Ford
that Sluss still applied to her case and that she adequately preserved the issue for
our review. Therefore, we shall consider the merits of Ford’s argument.2
2
Ford has provided this Court with supplemental authority from a recent opinion of the Supreme
Court in which it confirmed that its holding in Floyd had prospective application: “We further
note that, although Curry’s trial took place before this Court’s recent holdings in Floyd v. Neal,
590 S.W.3d 245 (Ky. 2019) and Ward v. Commonwealth, 587 S.W.3d 312 (Ky. 2019), and is
therefore not subject to their authority, Curry nonetheless also complied with their holdings
regarding preservation of this issue.” Curry v. Commonwealth, No. 2019-SC-000306-MR, 2020
WL 2831836, at *6 n.24 (Ky. May 28, 2020). Baptist Health objected to Ford’s citation to this
supplemental authority, arguing that footnote 24 was referencing the rule in Gabbard, which
remains the law in Kentucky. At the time of this writing, the opinion in Curry is not yet final,
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In Ward, 587 S.W.3d at 327-28, the Supreme Court set forth law
related to jury selection, recognizing the right to an impartial jury as a substantial
right:
“Defendants are guaranteed the right to an
impartial jury by the Sixth Amendment to the United
States Constitution, as well as Section Eleven of the
Kentucky Constitution. Denial of a defendant’s right to
an impartial jury is a structural error.” Accordingly, we
review claims of a tainted jury for structural error. As
such, harmless error analysis is not appropriate, and
prejudice is presumed.
Kentucky Rule of Criminal Procedure (“RCr”)
9.36(1) identifies when a trial court should excuse a juror
for cause: “When there is reasonable ground to believe
that a prospective juror cannot render a fair and impartial
verdict on the evidence, that juror shall be excused as not
qualified.” A trial court’s decision on whether to strike a
juror for cause is reviewed for abuse of discretion.
“Ultimately, ‘[i]t is the totality of all the circumstances
. . . and the prospective juror’s responses that must
inform the trial court’s ruling.’” And “the mere fact that
a prospective juror has been the victim of a crime like the
crime being tried does not by itself imply a disqualifying
bias. Additional evidence of bias is required.” “Obvious
factors bearing on the likelihood of bias are the similarity
between the crimes, the length of time since the
prospective juror’s experience, and the degree of trauma
the prospective juror suffered.”
and we did not rely on its holding to determine that Sluss applied in this case. Therefore, we
shall deny this motion as moot in a separate order. However, even if we were to rely upon the
Supreme Court’s statement in footnote 24, we disagree with Baptist Health’s interpretation of
how that footnote applies to the present case. We believe that the footnote confirms that the
holdings in Floyd and Ward would not apply in cases where the trial was held before those
opinions were rendered, such as the trial in the present case. This means that Sluss was still good
law when the trial was held in 2017. If that were not true, the Floyd Court would not have
needed to specifically overrule Sluss.
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At the same time, we must adhere to the principle
“that objective bias renders a juror legally partial, despite
his claim of impartiality.” It is the “probability of bias or
prejudice that is determinative in ruling on a challenge
for cause.” The trial judge must “weigh the probability
of bias or prejudice based on the entirety of the juror’s
responses and demeanor. There is no ‘magical question’
that can rehabilitate a juror as impartiality is not a
technical question but a state of mind.”
(Footnotes omitted). With this in mind, we shall consider Ford’s argument.
In the present case, the trial court denied Ford’s motion to strike three
jurors for cause: two who were receiving care and treatment from physicians
employed by Baptist Health (Jurors 7 and 43) and one who was professionally
acquainted with Dr. Reiss (Juror 19). We shall address Jurors 7 and 43 first.
As she did below, Ford cites to Bowman ex rel. Bowman v. Perkins,
135 S.W.3d 399 (Ky. 2004), in support of her argument the two jurors’ close
relationship with Baptist Health through their physicians required that they be
stricken for cause.
A trial court enjoys wide discretion in ruling upon
challenges of prospective jurors for cause.
Commonwealth, Dep’t of Highways v. Devillez, Ky., 400
S.W.2d 520, 521 (1966). On the other hand, “[t]he
prevailing rule is that a juror should be disqualified when
the juror has a close relationship with a victim, a party or
an attorney, even if the juror claims to be free from bias.”
Butts v. Commonwealth, Ky., 953 S.W.2d 943, 945
(1997). A trial court should presume the possibility of
bias of a juror if said juror has “a close relationship, be it
familial, financial or situational, with any of the parties,
counsel, victims or witnesses,” regardless of the answers
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said juror may give during voir dire. Ward v.
Commonwealth, Ky., 695 S.W.2d 404, 407 (1985)
(quoting Commonwealth v. Stamm, 286 Pa.Super. 409,
429 A.2d 4, 7 (1981)). “Once that close relationship is
established, without regard to protestations of lack of
bias, the court should sustain a challenge for cause and
excuse the juror.” Id.
In our view, a current and ongoing physician-
patient relationship is such a close relationship where a
trial court should presume the possibility of bias. For
that reason, we hold that a prospective juror who is a
current patient of a defendant physician in a medical
malpractice action should be discharged for cause.
Id. at 402. However, Bowman concerned a three-physician medical practice where
the jurors in question had a physician/patient relationship with a named defendant,
which is far different from the situation in this case.
In its brief, Baptist Health describes the system as follows: “Baptist
Health Medical Group, Inc. is a comprehensive network which includes more than
800 physicians and advanced practice clinicians across Kentucky. Its providers
represent more than 85 specialties. The Baptist Health organization consists of 8
hospitals and more than 250 outpatient facilities and services.” We must agree
with Baptist Health that Bowman is distinguishable from this case because neither
of the potential jurors was a patient of Dr. Reiss, his partner, or his medical office.
These jurors’ relationships with physicians in separate groups under the Baptist
Health umbrella do not reach the close relationship set forth in Bowman. As the
trial court ruled, merely being a patient of a doctor affiliated with Baptist Health is
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not a close relationship necessitating the striking of that individual for cause. In
addition, we disagree with Ford’s assertion that the potential jurors could believe
that a threat to Baptist Health’s corporate entity also constituted a threat to their
own physician. Therefore, we hold that the trial court did not abuse its discretion
in denying Ford’s motion to strike Jurors 7 and 43 for cause.
As to Juror 19, this juror stated that she had a professional
acquaintance with Dr. Reiss, who was Ford’s treating physician – and whose
treatment Ford was challenging in her action – as well as an expert witness for
Baptist Health at trial. The trial court questioned this juror about her relationship
with Dr. Reiss as follows:
Court: Does anyone here know Mr. Toner or any of the
individuals that he just introduced? . . .
Juror: Just a professional acquaintance.
Court: Of which individual?
Juror: Of Dr. Reiss.
....
Court: Do you believe that your knowledge of Dr. Reiss,
would it get in the way of you being fair to Dr. Ford?
Juror: I don’t believe so.
Court: Think you could listen to the evidence, you
wouldn’t start off leaning in favor of Dr. Reiss?
Juror: I don’t think so.
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Based upon this examination and the lack of any follow-up questions by Ford as to
this relationship, we agree with the trial court that there was no reason to presume
bias as to Juror 19. We therefore hold that the trial court did not abuse its
discretion in denying Ford’s motion to strike this juror for cause.
Second, Ford argues the trial court erred when it permitted Baptist
Health to present an implicit comparative negligence defense after granting
summary judgment on the issue. More specifically, Ford asserts Baptist Health
was permitted to refer to her as a “sophisticated” patient because she is an
obstetrician/gynecologist and argues this was a backdoor approach to place blame
on her. We review a trial court’s evidentiary ruling for abuse of discretion.
Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000); see
also Pauly v. Chang, 498 S.W.3d 394, 411 (Ky. App. 2015). “The test for abuse of
discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999).
Ford raised this issue as an oral motion in limine during a pretrial
conference. Although Ford did not submit a written motion in limine regarding
references to her as “sophisticated,” the parties engaged the trial court in a lengthy
discussion of Baptist Health’s ability to cross-examine Ford. The trial court denied
Ford’s motion, despite previously granting summary judgment as to comparative
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fault, stating, “I’m not going back or reversing my prior order, but I don’t think we
need to make a blanket total prohibition, which I think would effectively prevent
them from even cross-examining Dr. Ford.” The trial court further stated, “The
jury knows that she’s a doctor. I don’t think that there’s any real prejudice that’s
going to be created by saying that she’s a sophisticated patient. I mean, the jury
knows that.” Although Ford’s brief cites to repeated references to her
“sophistication” throughout the trial, her brief does not mention any
contemporaneous objections to such references. However, “[m]otions in limine
can preserve issues for appellate review, provided they are sufficiently detailed
about what the moving party intends to exclude.” Montgomery v. Commonwealth,
505 S.W.3d 274, 280 (Ky. App. 2016) (citing Lanham v. Commonwealth, 171
S.W.3d 14, 22 (Ky. 2005)). Based on our review of the pretrial hearing, Ford’s
oral motion in limine was sufficiently specific as to the particular testimony she
sought to exclude.
Even though Ford preserved this issue for our review, her argument
lacks merit. Our rules require litigants to provide this Court with “citations of
authority pertinent to each issue of law[.]” CR 76.12(4)(c)(v). Ford provides no
citation to authority in support of this argument and instead makes the unsupported
argument that referring to her as “sophisticated” somehow implies she interfered
with Baptist Health’s medical treatment and, thus, was partially at fault for her own
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injuries. Pauly, 498 S.W.3d at 416. Her argument merely consists of conclusory
statements and a self-serving interpretation of the facts without indicating to this
Court what legal authority entitles her to relief on those facts. Without more, we
will not further evaluate the trial court’s reason for denying Ford’s motion in
limine regarding use of the word “sophistication” and say no more.
Ford’s third argument is that the trial court erred in permitting Baptist
Health, during voir dire, to advise the jury the Plaintiff bore the burden of proof
and to describe that burden. Ford further argues there is no burden of proof in a
civil case. The trial court heard Ford’s objection and found that Baptist Health
made no erroneous statements during voir dire. Ford requested the trial court
admonish the jury that Baptist Health’s assertions regarding the burden of proof
were incorrect. The trial court made no formal ruling but stated it would remind
the jury “attorneys do not instruct on the law . . . and that the court has the sole
obligation to provide the law and the instructions in the case.” The trial court
indicated it would rule on the issue prior to opening statements. Ford failed to
request a ruling at that time, so the trial court never directly ruled on the issue.
“Our case law is well established that a failure to press a trial court for a ruling or
an admonition on an objection or on a motion for relief operates as a waiver of that
issue for purposes of appellate review.” Perkins v. Commonwealth, 237 S.W.3d
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215, 223 (Ky. App. 2007). Thus, Ford waived this issue, so we cannot address her
argument on appeal.
For the foregoing reasons, we affirm the judgment of the Jefferson
Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE BAPTIST
HEALTH MEDICAL GROUP, INC.:
William F. McMurry
Mikell T. Grafton Gerald R. Toner
Louisville, Kentucky Andie Brent Camden
Caitlin E. Housley
Louisville, Kentucky
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