RENDERED: OCTOBER 9, 2020; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0115-MR
SANDRA PORTER APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 16-CI-000945
EVAN HUNTER ALLEN APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND KRAMER, JUDGES.
ACREE, JUDGE: Sandra Porter appeals the Jefferson Circuit Court’s November
29, 2018 judgment entered upon a jury verdict in the personal injury tort action she
brought against Evan Allen. She alleges the trial court erred by: (1) preventing
her from presenting evidence of an impairment rating; and (2) improperly
instructing the jury in accordance with KRS1 304.39-060’s threshold requirements
for pursuing a tort claim. Finding no error, we affirm.
BACKGROUND
A three-car collision occurred on November 6, 2014. On that day,
Allen rear-ended a vehicle stopped in traffic, propelling that vehicle into Porter’s
vehicle, which was directly in front of it. The damage to Porter’s vehicle was
relatively minor; however, Porter claimed to have injuries to her head, neck, left
shoulder, and lower back. These injuries led Porter to file an action against Allen
in 2016. Allen stipulated to fault for causing the accident but contested damages.
Four years after the accident, the case was tried before a jury over
three days in November 2018. On the first day of trial, during motions in limine,
Allen’s counsel moved to exclude physician testimony as to an American Medical
Association (AMA) permanent impairment rating. Counsel argued that because
Porter previously testified she returned to full-time employment and was not
making a claim for impairment or destruction of earning capacity, the impairment
rating would mislead the jury. Porter’s counsel confirmed she was not making a
claim for impairment or destruction of power to labor or earn, but still contested
the motion. The trial court granted the motion, finding evidence of an impairment
rating would confuse the jury and be unfairly prejudicial to Allen.
1
Kentucky Revised Statutes.
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At trial, Porter presented extensive evidence and testimony regarding
the accident, her injuries, her medical care, and her current mental and physical
condition – all bolstered by testimony from her healthcare providers. Allen
countered the testimony by focusing on Porter’s admission that shortly after the
accident she returned to work, did not need any help with home or personal care,
and did not need pain medication.
Allen also had his own medical testimony refuting Porter’s claims. A
month after the accident, an orthopedic surgeon found Porter had full range of
motion in her neck and shoulder, normal strength and sensation, and no evidence
of nerve damage. Additionally, a few years after her accident with Allen, Porter
was involved in another rear-end collision. Porter was seen then by a
neurosurgeon who determined she had a normal range of motion in her neck, back,
and shoulders.
In discussions with the trial court regarding jury instructions, Porter’s
counsel argued the thresholds established in the Kentucky Motor Vehicle
Reparations Act (KMVRA) had been satisfied and there was no basis to give any
thresholds instruction or interrogatories. Allen’s counsel disagreed and argued that
whether thresholds were met were questions for the jury. Agreeing with Allen’s
counsel, the trial court found it appropriate to give a thresholds instruction.
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The jury returned a verdict awarding Porter only her medical expenses
in the amount of $3,259.25, nothing for lost wages, and nothing for physical and
mental pain and suffering. Because under the KMVRA tort liability for medical
expenses was abolished to the extent basic reparations benefits are payable, Allen
was entitled to a setoff of $10,000. Accordingly, judgment was entered in favor of
Allen and Porter did not recover any costs. Porter moved for a new trial, which the
trial court denied. This appeal followed.
NONCOMPLIANCE WITH RULES OF APPELLATE PROCEDURE
Before addressing the merits of Porter’s argument, we address her
failure to comply with the requirements of CR2 76.12. Any number of opinions of
this Court and those of the Supreme Court emphasize the importance of the
appellate rules. See Clark v. Workman, 604 S.W.3d 616, 616-19 (Ky. App. 2020).
We will not, as we did in Clark, identify each deficiency, but we do urge counsel
to read all the appellate rules carefully, especially CR 76.12, to avoid
compromising the appellate rights of future clients. Because Porter’s counsel
appears not to have run afoul of these rules in the past, we elect to impose none of
the sanctions made available to this Court pursuant to CR 76.12(8).3
2
Kentucky Rules of Civil Procedure.
3
Allen did not move for such sanctions and did not object to the noncompliance of Porter’s brief.
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However, some rule violations cannot be ignored. Among the most
important requirements of CR 76.12 for appellants is found in subsection (4)(c)(v).
That subsection mandates that each argument in the appellant’s brief begin with “a
statement with reference to the record showing whether the issue was properly
preserved for review and, if so, in what manner.” CR 76.12(4)(c)(v). Porter does
not tell the Court where in the record she preserved the right to claim any trial
court error.
She first claims the trial court erred by granting a motion in limine to
exclude evidence. Logic and the base probability the motion did not go unopposed
provides the Court some mild assurance Porter preserved her claim of error.
However, logic and probability do not satisfy Porter’s duty under CR
76.12(4)(c)(v) and she should not have relied upon either. As for her second claim
of error, even these cannot rescue her.
Porter says the trial court erred by giving a thresholds instruction. But
how is this Court to know she preserved this claim of error absent compliance with
CR 76.12(4)(c)(v)? “It is not the function or responsibility of this court to scour
the record on appeal to ensure that an issue has been preserved.” Koester v.
Koester, 569 S.W.3d 412, 415 (Ky. App. 2019) (citing Phelps v. Louisville Water
Co., 103 S.W.3d 46 (Ky. 2003)). The Court made a cursory search of the circuit
court record index (something else that is not the Court’s responsibility) and saw
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no proposed jury instructions from Porter. We would have been justified in ending
the inquiry there.4 But we did not.
Porter has Allen to thank. Allen complied with that part of CR 76.12
requiring appellees to cite to the record.5 Allen tells us that, “at the conclusion of
the parties’ cases in chief, Porter’s counsel argued . . . there was no basis to give
4
As stated in the clarion case of Elwell v. Stone:
About a year and a half after the effective date (January 1, 1985) of the rule, Chief
Justice Stephens, writing for the majority in Skaggs v. Assad, By and Through
Assad, Ky., 712 S.W.2d 947, 950 (1986), in reversing this Court in part, emphasized
the necessity of compliance when he wrote:
It goes without saying that errors to be considered for appellate
review must be precisely preserved and identified in the lower court.
Combs v. Knott County Fiscal Court, [283] Ky. [456], 141 S.W.2d
859 (1940); CR 76.12(4)(c)(iv) (1-1-85). This clearly has not been
done in the case at bar and the Court of Appeals erred in concluding
that it had been.
This tribunal assumed the Supreme Court meant what it said for we wrote through
Judge Dunn in Massie v. Persson, Ky. App., 729 S.W.2d 448, 452 (1987)
[(overruled on other grounds by Conner v. George W. Whitesides Co., 834 S.W.2d
652, 654 (Ky. 1992))]:
CR 76.12(4)(c)(iv) in providing that an appellate brief’s contents
must contain at the beginning of each argument a reference to the
record showing whether the issue was preserved for review and in
what manner emphasizes the importance of the firmly established
rule that the trial court should first be given the opportunity to rule
on questions before they are available for appellate review. It is only
to avert a manifest injustice that this court will entertain an argument
not presented to the trial court. (citations omitted).
799 S.W.2d 46, 48 (Ky. App. 1990).
5
CR 76.12(4)(d)(iii), by reference to CR 76.12(4)(c)(iv), requires appellees to provide “ample
references to the specific pages of the record . . . supporting each of the statements narrated in
the” counterstatement of the case. CR 76.12(4)(d)(iii) (emphasis added).
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threshold instructions.” (Appellee’s brief, p. 11 (citing to “[Video Record (V.R.)
11/14/2018 4:02:04-05:35]”)); see CR 51(3).6 The irony should not be lost on
practitioners, or jurists, that in this case it was the appellee’s restraint in not
moving to strike the appellant’s brief, combined with the appellee’s own
compliance with the rules, that avoided the higher, manifest injustice standard of
review of the appellant’s argument. We shall undertake our review as though
Porter did comply with CR 76.12, this time.
STANDARD OF REVIEW
We review decisions to admit or exclude evidence under an abuse of
discretion standard. Clephas v. Garlock, Inc., 168 S.W.3d 389, 393 (Ky. App.
2004). “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) (citations omitted).
The test is not whether an appellate court would have decided the matter
differently, but whether the trial court’s rulings were clearly erroneous or
constituted an abuse of discretion. Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky.
1982). Reversal is only warranted if the error, unless corrected, would prejudice
6
CR 51(3) states: “No party may assign as error the giving or the failure to give an instruction
unless he has fairly and adequately presented his position by an offered instruction or by motion,
or unless he makes objection before the court instructs the jury, stating specifically the matter to
which he objects and the ground or grounds of his objection.”
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the substantial rights of a party. Davis v. Fischer Single Family Homes, Ltd., 231
S.W.3d 767, 776 (Ky. App. 2007). A substantial possibility that the jury verdict
would have been different had the excluded evidence been allowed to be presented
must exist. Crane v. Commonwealth, 726 S.W.2d 302, 307 (Ky. 1987); CR 61.01,
KRE7 103. Additionally, alleged errors regarding jury instructions are considered
questions of law examined under a de novo standard of review. Hamilton v. CSX
Transp., Inc., 208 S.W.3d 272, 275 (Ky. App. 2006).
ANALYSIS
Porter argues the trial court abused its discretion by excluding
testimony of her permanent impairment rating. She contends the testimony should
have been admitted because it is relevant under KRE 401 and would have assisted
the jury in assessing her damages. We disagree.
“‘Relevant evidence’ means evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” KRE 401.
We note first that Porter made no claim for impairment of her earning potential.
That is to say, whether her earning potential was permanently impaired appears not
to be a “fact that is of consequence to the determination of the action . . . .”
7
Kentucky Rules of Evidence.
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Evidence that would bear only upon a fact that is not of consequence to the action
is, by definition, not relevant. Evidence of a permanent impairment rating when no
permanent impairment is claimed seems at first blush to be entirely irrelevant.
However, Porter claims “[t]he impairment rating would also have
assisted the jury in appreciating Porter’s damages” – a question of fact that is of
consequence. Weighing in favor of Porter’s argument is that “[t]he inclusionary
thrust of the law of evidence is powerful, unmistakable, and undeniable, one that
strongly tilts outcomes toward admission of evidence rather than exclusion.”
Clark v. Commonwealth, 567 S.W.3d 565, 575 (Ky. 2019) (citation omitted). And
yet, there is this, from the same opinion: “The language of KRE 403 is carefully
calculated to leave trial judges with extraordinary discretion in the application and
use of [KRE 403].” Id. (citation omitted).
Although Porter may be correct that testimony of a permanent
impairment rating is relevant under KRE 401 because it has a “tendency to make
the existence” of the damages more probable, we must agree with the trial court
that it was properly excluded. Its probative value is not substantially outweighed
by the confusion and prejudice its admission likely would have yielded.
“Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of undue prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, or needless
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presentation of cumulative evidence.” KRE 403. Here, the probative value of an
impairment rating does not substantially outweigh the danger of misleading the
jury or confusing the issues to Allen’s prejudice. AMA impairment guidelines are,
by statute, utilized in workers’ compensation cases. See KRS 342.0011. Even
according to the AMA Guides itself, it is “not to be used for direct financial
awards nor as a sole measure of disability. The Guides provide a standard
medical assessment for impairment determination and may be used as a component
in disability assessment.” AMA’s Guides to the Evaluation of Permanent
Impairment, Fifth Edition, §1.7 (emphasis added).
This was not Porter’s only evidence of her damages. At best, the
impairment rating was mere circumstantial evidence of Porter’s damages for which
she had other direct proof. She was not substantially prejudiced by its
inadmissibility. This Court cannot say the trial court committed clear error by
refusing to admit such evidence.
Porter also argues the trial court erred by instructing the jury
regarding thresholds under the KMVRA ($1,000 in medical bills or permanent
injury).8 She believes the evidence clearly showed she met the $1,000 threshold,
8
In pertinent part, the applicable statute says:
In any action of tort brought against the owner . . . of a motor vehicle with respect
to which security has been provided as required in this subtitle, . . . a plaintiff may
recover damages in tort for pain, suffering, mental anguish and inconvenience
because of bodily injury, sickness or disease arising out of the . . . operation or use
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and that the thresholds instruction and interrogatories did nothing but confuse the
jury. She contends the instruction unnecessarily focused the jurors on two
questions that did not require their attention: (1) whether there was $1,000 in
medical bills, and (2) whether Porter suffered a permanent injury. Additionally,
she claims the instruction was confusing because it did not explain that once the
jury concluded the $1,000 threshold for medical bills was met, there was no need
to consider whether she suffered a permanent injury. Thus, she believes the jury
instruction on thresholds was inappropriate. We are unpersuaded.
Medical bills were submitted as proof that Porter incurred more than
$1,000 in medical expenses. Porter’s evidentiary challenge was to prove more
than $1,000 worth of those bills were attributable to the accident Allen caused.
The evidence on that issue was conflicting. As noted, the accident Allen caused
was not the only accident that caused Porter injuries. Having examined the record,
we conclude there was sufficient conflicting evidence upon which a jury could
have concluded that medical bills attributable to Allen’s accident totaled less than
$1,000. Only nine (9) of the jurors found Porter had more than $1,000 in medical
of such motor vehicle only in the event that the benefits which are payable for such
injury as “medical expense” or which would be payable but for any exclusion or
deductible authorized by this subtitle exceed one thousand dollars ($1,000), or the
injury or disease consists in whole or in part of . . . permanent injury within
reasonable medical probability . . . .
KRS 304.39-060(2)(b).
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bills attributable to the accident caused by Allen. We conclude it was not error to
instruct the jury on this threshold.
We also conclude it was not error to instruct the jury to find whether
Porter suffered a permanent injury. If the jury had found Porter did not reach the
$1,000 threshold, the finding of a permanent injury would have allowed the jury to
proceed to consider her claim for $300,000 in damages for mental and physical
pain and suffering. In Thompson v. Piasta, this Court held that “the trial court
erred in failing to properly instruct the jury on the threshold questions of whether
Piasta’s reasonably necessary medical expenses as a result of the collision
exceeded $1,000.00 and of whether she sustained permanent bodily injury as a
result of the collision.” 662 S.W.2d 223, 226 (Ky. App. 1983) (citing Bolin v.
Grider, 580 S.W.2d 490 (Ky. 1979) (emphasis added)). In the case now before
this Court, there was conflicting evidence as to both threshold issues. We therefore
find no error in the trial court’s decision to give this instruction.
CONCLUSION
Based on the foregoing, we affirm the Jefferson Circuit Court’s
November 29, 2018 judgment.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Brian R. Dettman William B. Orberson
Louisville, Kentucky Patricia C. Le Meur
Louisville, Kentucky
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