Viviane Renot v. Secura Supreme Insurance Company ( 2021 )

RENDERED: MAY 14, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NOS. 2020-CA-0227-MR AND 2020-CA-0541-MR
VIVIANE RENOT APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE LUCY A. VANMETER, JUDGE
ACTION NO. 16-CI-01853
SECURA SUPREME INSURANCE
COMPANY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.
CLAYTON, CHIEF JUDGE: Viviane Renot (“Renot”) appeals from a judgment
following a jury verdict in favor of Secura Supreme Insurance Company
(“Secura”) in Renot’s direct action against her underinsured motorists’ (“UIM”)
carrier from injuries allegedly sustained in a vehicle collision. Upon review, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This matter involves a claim for injuries allegedly sustained by Renot
in connection with a rear-end motor vehicle accident that occurred in November of
2013. Renot was stopped at a red light at an intersection, and Carolyn Price
attempted to stop but slid on the wet pavement and bumped into the rear of Renot’s
vehicle.
Renot did not report any injuries at the scene of the accident, nor did
she seek medical attention for any condition related to the accident for nearly six
weeks. She first reported neck pain in early January 2014 but ascribed it to
sleeping in an unusual position a few weeks prior and not to the collision. Renot
first reported knee pain in early February 2014, stating that she felt a pop and sharp
pain in the right knee on the previous day while at a physical therapy session for
her neck pain. Her medical records also stated that she had fallen down some
stairs in the previous weeks leading up to such appointment.
Over the succeeding two years, Renot underwent a number of surgical
procedures on her knees, including a right knee arthrotomy with medial femoral
condyle resurfacing in March 2014, a right knee incision and drainage procedure
due to infection in April 2014, a left knee arthroscopy, debridement,
meniscectomy, and chondroplasty in October 2014, and a total unilateral right knee
replacement in March 2015.
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In May of 2016, Renot filed suit against Price and Secura, as her UIM
coverage insurance carrier, claiming that Price was an uninsured or underinsured
motorist and that Renot had sustained in excess of $250,000.00 in past medical
expenses stemming from the collision.
Beginning on November 18, 2019, a four-day jury trial was held
concerning Renot’s UIM claim against Secura. Renot’s claims against Price were
resolved and settled prior to the trial. After hearing all the evidence and testimony,
the jury found that the collision had not been a substantial factor in causing
Renot’s injuries, including any arousal, aggravation, or exacerbation of a pre-
existing condition. Three members of the jury dissented.
The Fayette Circuit Court entered a judgment on the verdict in favor
of Secura on January 6, 2020 and assessed costs against Renot pursuant to
Kentucky Rule of Civil Procedure (CR) 54.04. On January 16, 2019, Renot filed a
motion for a new trial, a motion to alter, amend, or vacate judgment, and a motion
for judgment notwithstanding the verdict, which the trial court denied in an order
entered on February 6, 2020. This appeal followed.
As a matter of procedure, we note that Case No. 2020-CA-0227-MR
is an appeal from the trial court’s judgment and Case No. 2020-CA-0541-MR is an
appeal from a supplemental judgment from the same action concerning the award
of costs against Renot after the trial. The appeals were consolidated by order of
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this Court entered on August 12, 2020. Because Renot’s brief does not discuss any
arguments concerning the award of costs against Renot, such arguments have been
waived. See Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 815 (Ky. 2004)
(finding that failure to address issue in appellate brief resulted in waiver of the
issue).
Further facts will be developed as required to address the specific
issues presented herein.
ISSUES
On appeal, Renot argues that the trial court erred by failing to strike
for cause an allegedly biased juror, by allowing an expert witness to testify on
issues outside his qualifications and without scientific methodology or data, by not
allowing the introduction of evidence regarding certain alleged party admissions,
and by failing to correct a juror’s statements during voir dire regarding “double
dipping.”
ANALYSIS
a. Standard of Review
As stated by a separate panel of this Court, “[t]he granting of a new
trial is within the discretion of the trial court.” Kaminski v. Bremner, Inc., 281
S.W.3d 298, 304 (Ky. App. 2009). “When a trial court denies a motion for a new
trial, our standard of review is whether there has been an abuse of that discretion.”
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Id. “The test for abuse of discretion is whether the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). The
trial court’s decision is “presumptively correct” and should not be reversed “unless
that decision is clearly erroneous.” McVey v. Berman, 836 S.W.2d 445, 448 (Ky.
App. 1992).
b. Discussion
1. Jury Selection
Renot’s first argument on appeal is that the trial court erred when it
refused to strike a potential juror—Juror 4006—for cause. During the questioning
of the potential jurors, Juror 4006 stated that her father was a medical malpractice
defense attorney and she felt that people would bring frivolous lawsuits.
Thereafter, however, she immediately stated, “not that this is happening here at all.
I think I can remain open-minded about that.” She stated that she did not agree
with people who “game the system,” or who “try to get more than they really
deserve, or maybe represent their symptoms in a way that—and once again, I’m
not saying that’s happening here.” Secura’s counsel then inquired as to whether
Juror 4006 could hear the evidence fairly, to which the juror replied, “I do think so,
yes, yes.”
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At the bench conference that followed, Renot made a motion to strike
Juror 4006 for cause, and the trial court brought Juror 4006 to the bench to be
questioned further regarding her views. She expanded on her comments regarding
frivolous lawsuits, noting that her father worked in a small town in Western
Kentucky and explaining that the claimants tended to be her father’s friends and
were not very educated, and that often their claims were frivolous. The juror noted
that she had worked for insurance companies before she retired, but as a computer
programmer in the life insurance setting. When Juror 4006 was questioned as to
whether she could—based on the evidence put forth at trial—decide the case
without being influenced by her father’s cases, she answered that she thought she
could. Juror 4006 also stated that it was “obvious that [Renot] is suffering.” When
asked if she regarded Renot’s claims as being frivolous, she answered, “oh no, no,
no. I mean, she is going through something, it’s just a matter of what caused it.”
Juror 4006 agreed that she would be able to follow the trial court’s instructions.
Finally, the juror explained that she had formerly served on a jury in a criminal
matter, and that she had eventually changed her mind after hearing all the evidence
in that case.
After the foregoing exchange, Renot’s counsel argued that the trial
court should strike Juror 4006 for cause. The trial court declined, noting that
Renot had the burden of proof and Juror 4006 had been clear that if Renot met
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such burden of proof, she could award damages against Secura. Ultimately, Renot
utilized one of her peremptory strikes on Juror 4006.
Kentucky has long recognized that the test for whether to strike a juror
for cause is “whether, after having heard all of the evidence, the prospective juror
can conform his views to the requirements of the law and render a fair and
impartial verdict.” Mabe v. Commonwealth, 884 S.W.2d 668, 671 (Ky. 1994).
The trial court “must weigh the probability of bias or prejudice based on the
entirety of the juror’s responses and demeanor[,]” as “impartiality is not a technical
question but a state of mind.” Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky.
2007). Indeed, “the decision to exclude a juror for cause is based on the totality of
the circumstances, not on a response to any one question.” Fugett v.
Commonwealth, 250 S.W.3d 604, 613 (Ky. 2008). Further, as stated by the
Kentucky Supreme Court, “[a] determination as to whether to exclude a juror for
cause lies within the sound discretion of the trial court, and unless the action of the
trial court is an abuse of discretion or is clearly erroneous, an appellate court will
not reverse the trial court’s determination.” Commonwealth v. Lewis, 903 S.W.2d
524, 527 (Ky. 1995). The trial judge is in the best position “to observe the
demeanor of the prospective jurors and understand the substance of their answers
to voir dire questions[.]” Mabe, 884 S.W.2d at 671.
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In this case, the trial court did not abuse its discretion when it denied
Renot’s motion to strike Juror 4006 for cause. As stated in State Farm Mutual
Automobile Insurance Company v. Riggs, Renot’s claim required her to “prove the
extent of the tortfeasor’s liability in order to claim UIM benefits.” 484 S.W.3d
724, 729 (Ky. 2016). Further, it is axiomatic that a plaintiff bears the burden of
proof by a preponderance of the evidence in a civil case. See CertainTeed Corp. v.
Dexter, 330 S.W.3d 64, 73 (Ky. 2010). Juror 4006’s comments justifiably
imposed such a burden on Renot. Certainly, “[t]he juror’s answers, when viewed
in their entirety, suggest the juror was being conscientious, not showing bias.
Ultimately, the juror assured those present that she could listen to the evidence and
render a fair and impartial verdict.” Stoker v. Commonwealth, 828 S.W.2d 619,
625-26 (Ky. 1992). Juror 4006 noted that Renot was obviously hurt and in pain,
but the ultimate question in the juror’s mind was what had been the cause of that
pain. She stated on numerous occasions during voir dire that she did not
necessarily feel that Renot’s claims were frivolous or not in good faith, but simply
held the view that Renot would have to prove her case. Moreover, Juror 4006
indicated that she would follow the trial court’s jury instructions and illustrated
that she could be convinced to change her viewpoint when presented with all the
evidence. Considering the totality of the circumstances surrounding Juror 4006’s
statements, along with our deference to the trial court as having the best
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opportunity to examine her demeanor, the record indicates that Juror 4006 could
render a fair verdict upon an overall examination of the evidence presented at trial,
and the trial court did not abuse its discretion.
2. Expert Witness Testimony
Renot next argues that the trial court should have excluded the
testimony of one of Secura’s expert witnesses, Dr. David Porta, claiming that he
had no scientific methodology or data to support his opinions and that he testified
to issues that were outside of his qualifications. Dr. Porta was a professor of
anatomy at Bellarmine University, the owner of a forensic consulting company,
and a member of the collaborating research faculty at Virginia Tech College of
Engineering and Wake Forest University Medical School Center for Injury
Biomechanics. Additionally, he had been published multiple times in the areas of
human anatomy, injury, and fractures and had written chapters in medical texts
such as “Biomechanics of Impact Injury.”
Secura retained Dr. Porta as an expert witness for purposes of
providing opinions as to biomechanics, anatomy, and injury causation in
connection with the vehicle collision in this case, as well as to rebut the opinions of
Renot’s expert, Dr. Smock. Renot filed a pretrial motion to exclude Dr. Porta’s
testimony, which the trial court granted in part and denied in part. Specifically, the
trial court found that Dr. Porta could not testify as to medical causation but could
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testify as a biomechanical expert concerning the mechanism of Renot’s injury, or
injury causation. In other words, Dr. Porta could testify, as stated by the trial
court, to “whether [Renot’s] diagnosed injuries are of the type that could have been
caused by the collision,” but not whether, for example, she had “sustained a
cervical strain or a knee bruise in the collision.”
As to Renot’s first argument, she specifically claims that Dr. Porta’s
opinions failed to satisfy the requirements contained in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)
and Kentucky Rule of Evidence (KRE) 702 because his testimony was not “the
product of reliable principles and methods[.]” KRE 702 provides:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion
or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and
methods; and
(3) The witness has applied the principles and methods
reliably to the facts of the case.
Further, as stated by the Kentucky Supreme Court:
When faced with a proffer of expert testimony under
KRE 702, the trial court’s task is to determine whether
the expert is proposing to testify to scientific, technical or
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other specialized knowledge that will assist the trier of
fact to understand or determine a fact in issue. This calls
upon the trial court to assess whether the proffered
testimony is both relevant and reliable. The
consideration of relevance has been described as one of
fit, while the consideration of reliability entails an
“assessment into the validity of the reasoning and
methodology upon which the expert testimony is based.”
The central inquiry into the admissibility of expert
testimony is therefore “an assessment of whether the
reasoning or methodology underlying the testimony is
scientifically valid and whether that reasoning or
methodology properly can be applied to the facts in
issue.”
Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 39 (Ky. 2004) (citations omitted).
A trial court’s ruling on the admission of expert testimony is reviewed under the
same standard as a trial court’s ruling on any other evidentiary matter—that is, for
an abuse of discretion. Thompson, 11 S.W.3d at 578.
Here, Renot claims that Dr. Porta’s opinions failed to satisfy the
above requirements “because his opinions did not bear any mark of reliability.” In
support of his opinions, Dr. Porta testified that he reviewed the police report from
the collision, Renot’s vehicle’s VIN report, the damage estimate for Renot’s
vehicle, ten photographs of Renot’s vehicle, three photographs of Renot’s knee,
two photographs of Price’s vehicle, Renot’s medical records, the independent
medical examination report, party and witness depositions, forty-five photographs
provided by Dr. Smock, discovery responses, and Renot’s expert witness
disclosures. Dr. Porta testified that he also studied crash test data pertaining to
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both vehicles involved in the collision, along with information regarding low-speed
rear impact cases. Dr. Porta did not perform specific testing on Renot or her
vehicle but did review Dr. Smock’s expert disclosures and photographs.
Based on the foregoing, we believe that Dr. Porta’s opinions were
based on reliable methods or information. Dr. Porta reviewed Renot’s claimed
injuries, photographs of the vehicle damage, and the anticipated motion of the
individuals within their vehicles. He further reviewed crash test data to determine
the expected degree of vehicular damage under certain circumstances and the
probability of resulting injury. Such opinions were reliable and based on accepted
reasoning and methodology.
Renot next claims that parts of Dr. Porta’s testimony amounted to
testimony regarding medical causation, about which the trial court had specifically
indicated he was not qualified to discuss. In particular, Renot points to the fact that
Dr. Porta based his opinion “on the prior history” of Renot’s knee, “because my
understanding was the accident occurred on November 26, 2013, but prior to that
there was a long history of knee issues. So, as I looked at it, and again, I’m no
physician, but when I saw the first [right knee] complaint was ten weeks later and
there was no mention of the accident, they did not appear related to me. And so
that was my initial . . . I don’t see any relation between this accident . . . I can’t
really see where the complaint is.” Renot moved for a mistrial, arguing that the
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trial court had specifically ruled that Dr. Porta was not qualified to testify
regarding causation.
We do not believe that Dr. Porta’s testimony went beyond his
qualifications in this case. At trial, Dr. Porta referenced dates and types of
treatment contained in medical records which he had previously reviewed, had
been appropriately introduced into evidence, and were uncontested. While Dr.
Porta discussed the time lapse between the collision and Renot’s treatment, he did
not state any medical opinions as to such treatment. Any references that Dr. Porta
made to the medical records or to the gaps between the collision and Renot seeking
treatment were with regard to a connection between the accident and the injury.
Dr. Porta “did not testify as to the extent of injuries and their physiological effects
on the body,” which would be an objectionable medical opinion. Tetrick v.
Frashure, 119 S.W.3d 89, 93 (Ky. App. 2003). Instead, his testimony was
appropriate and fell within the trial court’s requirements based on his
qualifications.
Renot further takes issue with Dr. Porta’s testimony regarding Renot’s
physicians’ diagnosis of chondromalacia of the knee. However, Dr. Porta’s
discussion pertained only to anatomy or biomechanics, including the structures of
the knee and the amount of force required to affect the knee. Again, Dr. Porta
made no diagnosis and did not refute the correctness of a diagnosis or opine as to
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whether Renot’s symptoms were connected to a specific injury. He was qualified
to explain the anatomical impact of a certain medical diagnosis. The trial court felt
the same, stating:
[Dr. Porta’s] training as an anatomist certainly qualifies
him to explain the body, how it works. And in this case
he was relying on the medical doctors to make a
diagnosis, and then taking that diagnosis and explaining
what that meant as applied to the body, and whether or
not that injury diagnosed by a doctor was caused by the
mechanism of this accident. And I think his CV and
certainly his testimony at trial established that he was
qualified to do that.
We affirm.
3. Excluded Evidence
Renot next argues that certain statements of Secura’s CR 30.02(6)
corporate representative during a deposition should have been admitted into
evidence as the statements of a party opponent. Specifically, she references
Secura’s discussion of pre-litigation payments made under the policy’s basic
reparations or personal injury protection (PIP) benefits coverage:
Q. [I]t is now SECURA Supreme Insurance
Company’s position that it – although it paid the medical
expenses for this date – it now has changed its mind and
believes that this medical treatment was not related to her
collision, correct?
A. Correct.
....
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Q. And although SECURA reviewed the medical bill
and medical treatment for this date, and rendered
payment for it, it has now changed [its] mind and
believes that that was not in fact related, correct?
A. Correct.
....
Q. Is it SECURA Supreme Insurance Company’s
position that although it paid for Viviane Renot’s right
knee surgery, and hospital stay from March 25 to March
27, 2014, that although it agreed those are related at the
time, it now has changed its mind, and no longer believes
that that right knee surgery and hospital stay was in fact
related to the collision on November 26, 2013?
....
A. We – we certainly paid for it at the time.
In a pretrial order, the trial court granted Secura’s motion in limine
requiring that Renot ask no questions and introduce no evidence concerning
Secura’s PIP or basic reparations benefits coverage or payments. Renot claims that
the trial court erred because such payments amounted to a concession by Secura
that there was causation between her injuries and the subject accident for purposes
of her UIM coverage policy.
Under Kentucky law, an insurance carrier’s payment of claims under
a PIP policy differs from payments made pursuant to a UIM policy. Once a PIP
claimant submits his or her medical bills, there is a statutory presumption “that any
medical bill submitted is reasonable” under Kentucky Revised Statute (KRS)
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304.39-020(5)(a). State Auto. Mut. Ins. Co., v. Outlaw, 575 S.W.2d 489, 493 (Ky.
App. 1978). Moreover, PIP benefits “shall be paid without regard to fault.” KRS
304.39-040(1). Indeed, the legislative purpose of PIP coverage was “to provide a
remedy to automobile accident victims [of up to $10,000] that could not be
impinged upon by any means whatsoever.” Blue Cross & Blue Shield of Kentucky,
Inc. v. Baxter, 713 S.W.2d 478, 480 (Ky. App. 1986), overruled on other grounds
by Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991).
On the other hand, no presumption of reasonableness exists related to
medical bills in UIM claims. As previously discussed, Renot was required to
“prove the extent of the tortfeasor’s liability in order to claim UIM benefits.”
Riggs, 484 S.W.3d at 729. Thus, evidence concerning PIP coverage is not relevant
to the UIM coverage. See KRE 401 (“‘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.”). Moreover, the probative value of such evidence would be
substantially outweighed by the danger of misleading or confusing the jury. KRE
403.
Renot also claims that a discussion during trial concerning property
damage opened the door to evidence regarding PIP coverage. Because we have
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determined that the evidence of the PIP payments was properly excluded, the trial
court’s rulings on these issues are affirmed.
4. Juror’s Statements During Voir Dire
Renot’s last argument is that an unprompted question posed by a
prospective juror during voir dire amounted to improper evidence of collateral
source payments which required an admonishment from the trial court.
Specifically, the prospective juror initiated the following exchange with Secura’s
counsel:
Juror 4119: Okay, she worked in the school system . . .
she can get supplement of insurance, so did she receive
money from that supplement as well? . . . Also, did she
receive long-term money from being off work?
Counsel: That is not a question that I can answer.
After the trial judge explained to the jury the reason why counsel could not answer
the question, the same prospective juror then stated, “Well, I just want to know is
there double dipping,” which prompted laughter from the prospective jurors. At a
subsequent bench conference, Renot’s counsel requested that the trial judge issue
an admonition, which the judge declined to do because the statement at issue was
made by a juror and not by a witness.
In this case, the question was unilaterally posed by a juror during voir
dire. While actual evidence of collateral source payments being presented to a jury
is impermissible under O’Bryan v. Hedgespeth, 892 S.W.2d 571, 573 (Ky. 1995),
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that case involved a specific ruling by the trial court that evidence of collateral
source payments would be admitted. In contrast, the question here did not equate
to evidence because it was not introduced by or through a witness at trial and the
prospective jurors were not provided with an answer. Therefore, such question did
not require an admonishment from the trial court to the jury, and we affirm.
CONCLUSION
For the foregoing reasons, we affirm the Fayette Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Sandra M. Varellas Ashley K. Brown
D. Todd Varellas Graham D. Barth
Preston P. Cahill Lexington, Kentucky
Lexington, Kentucky
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