Viviane Renot v. Secura Supreme Insurance Company

RENDERED: JUNE 15, 2023
TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0281-DG
VIVIANE RENOT APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. NOS. 2020-CA-0227 & 2020-CA-0541
FAYETTE CIRCUIT COURT NO. 16-CI-01853
SECURA SUPREME INSURANCE APPELLEE
COMPANY
OPINION OF THE COURT BY JUSTICE NICKELL
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
Viviane Renot was allegedly injured in a motor vehicle collision on
November 26, 2013, in Fayette County, Kentucky. She subsequently filed a
direct action against her underinsured motorists’ (“UIM”) carrier, Secura
Supreme Insurance Company (“Secura”). Following trial, the jury returned a
verdict in favor of Secura. Renot appealed and the Court of Appeals affirmed.
We granted discretionary review. After a careful review, we affirm in part,
reverse in part, and remand for a new trial.
I. FACTS AND PROCEDURAL HISTORY
On the day of the collision, Renot was stopped at a red light in her 2011
Mini Cooper. Carolyn Price was behind Renot in her 2011 Mazda CX-9 SUV.
The pavement was wet and when Price attempted to stop, her vehicle began to
slide. She contacted the rear of Renot’s vehicle. Renot has a very slight
stature and sits close to the dashboard while driving to allow her to reach the
pedals. When she was rear-ended, her right knee struck the dash or steering
column. The impact caused slight damage to Renot’s vehicle and no
discernable damage to Price’s vehicle. Prior to trial the parties stipulated Price
was fully liable for the collision.
After reporting no injuries at the scene of the collision, Renot first sought
medical treatment approximately six weeks later when she reported neck pain
she attributed to sleeping in an unusual position. No mention was made of the
collision. In early February of 2014—nearly ten weeks after the wreck—Renot
reported right knee pain, noting she felt a pop and sharp pain while at a
physical therapy session the previous day for her neck pain. Medical records
reflected a fall down some stairs in the weeks leading up to the February
appointment. Additional medical records revealed Renot had undergone a pre-
collision right knee arthroscopy and injection on October 3, 2013, to treat
preexisting arthritis.
Over the following two years, Renot underwent numerous surgical
procedures on her knees.1 In March 2014, she had a right knee arthrotomy
with medial femoral condyle resurfacing. She developed an infection following
that procedure and underwent a right knee incision and drainage procedure
which required a lengthy hospital stay. In October 2014, Renot had a left knee
1 Renot sought damages only for injuries to her right knee and made no claims
related to her left knee or neck.
2
arthroscopy, debridement, meniscectomy, and chondroplasty. In March 2015,
a total unilateral right knee replacement was performed.
Due to her ongoing knee problems, Renot incurred significant medical
expenses, missed a substantial amount of work, and was forced to retire early
from her position as a teacher in the Fayette County Public Schools. She
attributed all of the foregoing to the November 2013 collision. Her treating
orthopedic surgeon, Dr. Veronica Vasicek, opined the collision aggravated and
exacerbated Renot’s preexisting knee condition to the point where conservative
treatment was no longer an option, and ascribed causation for the entirety of
Renot’s subsequent medical treatment on the right knee to the collision.
Renot filed the instant suit in May 2016 against Price and Secura as her
UIM carrier, claiming Price was uninsured or underinsured, and that she had
sustained in excess of $250,000 in damages related to the collision. Renot
settled her claims against Price. Her UIM claim proceeded to a four-day jury
trial commencing on November 18, 2019.
At trial, Secura presented independent medical expert testimony from Dr.
Stacie Grossfeld, a physician, which contradicted the conclusions of Dr.
Vasicek that Renot’s post-collision surgeries were related to the accident. Dr.
Grossfeld testified Renot suffered a contusion in the collision which would not
necessitate the multiple surgeries which were subsequently performed. Rather,
Dr. Grossfeld believed the advancement of Renot’s preexisting osteoarthritis,
and not an acute contusion, was the sole factor predicating the need for total
knee replacement.
3
Secura also called biomechanical expert, David Porta, Ph.D., to testify
regarding his biomechanical and anatomical opinions relative to the
mechanism of injury in the collision. “Biomechanics is the application of
engineering principles and methods to the study and solution of problems
arising in biology and medicine.” Hallmark v. Eldridge, 189 P.3d 646, 648 (Nev.
2008) (quoting 46 Am. Jur. Trials 638-39 (1993)). The focus of biomechanics is
the study and evaluation of how various physical forces effect the human body.
Prior to trial, the trial court partially granted Renot’s motion seeking to
exclude Dr. Porta’s testimony on the grounds he was not a medical doctor and
was not qualified to opine regarding medical causation of any of Renot’s
injuries. However, the trial court determined Dr. Porta was qualified to offer
expert testimony regarding forces, biomechanics, anatomy, and injury
causation. In sum, Dr. Porta would be allowed to testify whether the injuries
claimed by Renot were of the general type which could have been sustained in
the collision but could not opine whether Renot’s specific injuries were actually
caused by the wreck. Even so, in his trial testimony, Dr. Porta offered
relatively little information regarding biomechanical forces and generalized
injury potentialities, but instead was permitted to embark on a wide-ranging
review of Renot’s medical history and to express his opinion that Renot’s
injuries were unrelated to the collision.
The jury returned a verdict in favor of Secura finding the collision had
not been a substantial factor in Renot’s injuries, including aggravation,
arousal, or exacerbation of any preexisting condition. The trial court entered a
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judgment conforming with the jury’s verdict and assessing costs against Renot.
Subsequent motions for a new trial, to alter, amend, or vacate the judgment
and for a judgment notwithstanding the verdict were denied. After the Court of
Appeals affirmed on Renot’s direct appeal, we granted her motion for
discretionary review. Additional facts will be developed as necessary.
Renot raises the same four allegations of error she brought in the Court
of Appeals seeking reversal, all of which that court rejected. First, she
contends the trial court erroneously permitted Dr. Porta to testify about
medical questions beyond his qualifications. Second, Renot argues the trial
court erroneously prohibited her from introducing evidence of what she
believed were party admissions by Secura. For her final two allegations, Renot
challenges the trial court’s rulings related to juror selection and its failure to
correct a juror’s statement made during voir dire. We agree with Renot on her
first allegation of error and conclude reversal and remand for a new trial is
warranted. Because her second allegation of error may reoccur on remand, we
will discuss it briefly. Renot’s final two assertions are unlikely to reoccur and
warrant no discussion.
II. Analysis
A. Dr. Porta’s Testimony Was Improper
Renot asserts Dr. Porta was not qualified to testify because his opinions
failed to satisfy the requirements contained in Daubert v. Merrell Dow
5
Pharmaceuticals, Inc., 509 U.S. 579 (1993),2 and KRE3 702.4 We disagree but
nonetheless conclude his testimony went beyond the appropriate scope of his
credentialed expertise.
Trial courts are charged to act as gatekeepers regarding expert opinions
in order to prevent the admission of pseudoscientific, unreliable evidence.
Garrett v. Commonwealth, 534 S.W.3d 217, 221 (Ky. 2017). To fulfill this role,
the trial court must undertake a two-part analysis wherein it must first assess
whether the methodology or reasoning underpinning the proposed expert
testimony has valid scientific reliability. Second, the trial court must
determine whether the expert’s testimony will assist the trier of fact to
understand a fact in issue. Daubert, 509 U.S. at 592-93.
2 Although Daubert specifically applies to the application of Fed. R. Evid. 702 in
actions in federal courts, Kentucky adopted its reasoning and standards for
application of KRE 702, which contains language identical to its federal counterpart,
in state courts in Mitchell v. Commonwealth, 908 S.W.2d 100 (Ky. 1995) (overruled on
other grounds by Fugate v. Commonwealth 993 S.W.2d 931, 937 (Ky. 1999)).
3 Kentucky Rules of Evidence.
4 KRE 702 states:
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.
6
Appellate courts give great deference to trial court rulings related to
expert testimony, reversing only when an abuse of discretion is clear. Toyota
Motor Corp. v. Gregory, 136 S.W.3d 35, 39 (Ky. 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). “An abuse of discretion exists only when we
are ‘firmly convinced that a mistake has been made.’” Rossi v. CSX Transp.,
Inc., 357 S.W.3d 510, 515 (Ky. App. 2010) (quoting Overstreet v. Overstreet,
144 S.W.3d 834, 838 (Ky. App. 2003)). “Even then, reversal is unwarranted
unless the error is not harmless; that is, unless corrected, the error would
prejudice the substantial rights of a party.” Id.Here, after examining Dr. Porta’s credentials5 and a transcript of his
pretrial deposition, the trial court determined he was qualified to provide
biomechanical testimony regarding whether Renot’s diagnosed injuries were of
the type which might typically be expected to have arisen due to forces
produced by the collision. However, because it was uncontroverted Dr. Porta
was not a medical doctor and he was therefore unqualified to provide an
opinion regarding a medical diagnosis or the medical causation of Renot’s
5 Dr. Porta is a professor at Bellarmine University, where he teaches anatomy
and physiology. He is a member of the collaborating research faculty at the Virginia
Tech-Wake Forest University Medical School Center for Injury Biomechanics. His
research focuses on trauma biomechanics and injury reconstruction, and he has
written numerous articles and abstracts on those subjects. He has authored five
medical textbook chapters. Dr. Porta owns a forensic consulting company and has
been retained as an expert witness in approximately 950 cases. Importantly, Dr. Porta
is not a medical doctor.
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injuries, the trial court ruled Dr. Porta was prohibited from providing such
testimony.
Our review of the record reveals no error in the trial court’s conclusion
that Dr. Porta’s training and experience satisfied the requirements of KRE 702
to permit him to testify within his field of expertise—biomechanics. The topics
of Dr. Porta’s proposed testimony were scientific in nature, he was eminently
qualified in his field, and the testimony had the potential of assisting the jury
in understanding the types of forces experienced in motor vehicle collisions and
the potential effects on hypothetical occupants of the vehicles involved. Thus,
Dr. Porta could properly testify regarding the generalized mechanics of injury
causation related to Renot’s motor vehicle collision, limited to reviewing the
mechanisms and forces typically anticipated to produce a particular injury. We
likewise agree with the trial court’s determination Dr. Porta was not qualified to
offer medical causation testimony as he was not a medical doctor and his
expertise in biomechanics and anatomy did not qualify him to testify about the
medical cause of Renot’s specific injuries. Thus, there was no abuse of
discretion in the trial court’s pretrial determinations.
Further, the trial court’s rulings are in conformity with Smelser v. Norfolk
Southern Ry. Co., 105 F.3d 299 (6th Cir. 1997), abrogated on other grounds
by Morales v. American Honda Motor Co., Inc., 151 F.3d 500 (6th Cir. 1998), the
leading case involving biomechanical expert testimony. In Smelser, a
biomechanical expert was held to be qualified to provide an opinion regarding
the forces generated in a collision and the types of injuries typically resulting
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from those forces. Id. at 305. However, because biomechanical experts are not
medical doctors, it was held they “are qualified to determine what injury
causation forces are in general and can tell how a hypothetical person’s body
will respond to those forces, but are not qualified to render medical opinions
regarding the precise cause of a specific injury.” Id.
Although Smelser dealt with a biomechanical engineer, we find its logic
persuasive and applicable to the instant matter, and hereby adopt its sound
reasoning as our own. We similarly hold a qualified biomechanical expert may
be utilized at trial to support or discredit a physician’s medical conclusions
concerning causation by offering objective, scientifically based testimony
regarding the likelihood or probability that a particular traumatic incident
could or would normally be expected to have produced or resulted in a specific
medical injury or condition. However, a biomechanical expert may not invade
the province of a physician’s absolute authority by conclusively opining
whether the traumatic incident at issue did or did not, in fact, cause the
medically diagnosed injury or condition of a particular plaintiff. Though a
biomechanical expert may possess the education and training necessary to
provide science-based data and statistical information tending to confirm or
impeach medical causation as determined by physicians, they are not qualified
nor authorized to reach a medical diagnosis or offer their own analogous or
antithetical medical conclusions regarding causation based on such
information.
To be admissible, biomechanical opinions need to fall into a
“Goldilocks zone” of their own. Attorneys seeking to offer the
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testimony of an expert in the field of biomechanics who is not a
physician must ensure that their expert’s proffer is not too specific,
wandering into the realm of medical causation, or too general, not
helping a lay jury. A biomechanical expert who is not a medical
doctor must find the middle ground that is “just right” for the
opinions to be admissible.
Holly M. Polglase and Matthew E. Brown, BEYOND PORRIDGE The “Goldilocks
Zone” for Biomechanical Opinions, 61 No. 11 DRI For Def. 46 (2019).
Ultimately, of course, it is for the trier of fact to weigh medical opinions
expressed by qualified physicians to determine whether a specific traumatic
incident caused or contributed to a claimant’s physical condition.
Based on the foregoing, we discern no error in the trial court’s pretrial
rulings. However, we hold the trial court erroneously allowed Dr. Porta’s trial
testimony to contravene its own pretrial rulings. Over multiple objections, Dr.
Porta was permitted to offer testimony on behalf of Secura regarding the cause
of Renot’s right knee condition. Such testimony crossed over into medical
causation testimony and impermissibly invaded the province of physicians.
For example, on direct examination, citing no supportive scientific
studies or data regarding the effect of traumatic impacts on arthritic knees and
claiming no specialized knowledge, Dr. Porta offered numerous opinions
relating to Renot’s injuries and their etiology. In so doing, he specifically
disagreed with and discounted medical opinions expressed by licensed
physicians, instead opining Renot’s specific injuries could not have resulted
from the collision.
More particularly, in addition to speculating Renot’s knee injury could
have been caused by a fall down some stairs and that neck injuries sustained
10
in low-speed car collisions should resolve within five weeks, Dr. Porta was
erroneously allowed to testify that Renot’s:
• failure to request an ambulance or visit the emergency room immediately
after the collision led him to conclude the knee injury was unrelated to
the crash.
• delay of five weeks prior to seeking any treatment was “an awfully long
time to go without treatment,” leading him to conclude the knee injury
was not caused by the collision.
• inconsistent post-accident complaints convinced him the collision and
knee injury were unrelated.
• “long history of knee issues” likely caused her current knee pain.
• genetics and advancing age made it “pretty clear” she is “one of those
people unfortunately” suffering from accelerated osteoarthritis which
preexisted the collision.
• medical records disclosed physical processes which “are not things that
happen overnight” but develop “over a long time.”
During his testimony, Dr. Porta used an exemplar knee to explain the
various knee conditions discussed in Renot’s medical records. Secura also
utilized Dr. Porta to admit medical records and explain Renot’s medical history.
None of this testimony referenced biomechanics or otherwise implicated Dr.
Porta’s expertise.
Though admitting, “I’m no physician,” Dr. Porta did not hesitate to opine
“when I saw the first complaint was ten weeks later and there was no mention
of the accident, they did not appear related to me.” And while making a
cursory reference to a biomechanical absence of “sufficient force,” he provided
an unauthorized medical opinion regarding causation when he testified “I don’t
see any relation between this accident” and Renot’s physical condition. Dr.
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Porta proceeded to exclude any possibility of medical causation when he
testified that any bruising sustained in the collision was incapable of impacting
any of the deeper structures, and certainly not the cartilage inside
of here, what you’re seeing is bare bones [holding and pointing to
exemplar knee], but there’s an awful lot of tissue still over top of
this, there’s tendons we don’t see at all, there’s fat, there’s skin.
So, bruise to the area, no problem, that’s certainly possible. But I
don’t see any force for deeper tissue injury.
This testimony exceeded Dr. Porta’s well-established qualifications as a
biomechanical expert and erroneously invaded the exclusive province of
medical doctors in determining medical causation. Further, Secura
compounded the error in allowing Dr. Porta’s unqualified medical testimony
when it repeatedly heralded his opinions and testimony during closing,
essentially holding him out to be an “irrefutable causation master” whose
unqualified opinions should be held in a higher regard than those of the
medical professionals involved in this matter.
On the contrary, Dr. Porta’s lack of appropriate medical credentials
should have prohibited him from testifying regarding the presence or absence
of any specific and concrete causal connection between the forces incurred in
the subject low speed rear-end collision and Renot’s medically diagnosed
conditions. Here, the trial court correctly so held prior to trial, but then
inexplicably and erroneously permitted such testimony at trial. This failure to
follow its own well-founded mandate constituted an abuse of discretion. The
biomechanical expert testimony regarding medical causation offered by Dr.
Porta should have been disallowed and the error cannot be deemed harmless.
The Court of Appeals erred in holding otherwise.
12
Just as in Rossi, the separation between “injury causation” and “medical
causation” must be maintained and biomechanical experts must, by necessity,
be required to limit their testimony only to their field of expertise. 357 S.W.3d
at 514 (holding although an expert may have impressive and uncontroverted
credentials on risk factors for developing an injury, lack of a medical degree
prohibits the expert from giving causation testimony). In cases involving
biomechanical experts who are not medical doctors, such testimony should be
limited to the forces generated by the subject collision, the generally
anticipated response of a hypothetical person’s body to those forces, and the
range of typical injuries resulting from such forces. Testimony regarding
diagnosis of a specific medical condition associated with a traumatic injury
sustained by a plaintiff or whether the trauma actually caused or exacerbated
a plaintiff’s injuries must be reserved for a medical doctor.
To be clear, while biomechanical experts may be qualified to testify about
a typical or expected range of potential physical or medical outcomes resulting
from the forces incurred in a collision or accident, they may not venture into
the territory of medical causation, a province whose dominion is reserved to
medical doctors alone. Reversal and remand for a new trial free from improper
testimony are required.
B. Exclusion of Alleged Party Admissions Was Proper
For her second allegation of error, Renot asserts the trial court
erroneously granted Secura’s motion in limine prohibiting any questioning or
introduction of evidence regarding coverage or payments of personal injury
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protection (PIP) or basic reparations benefits. She argues the ruling was in
error because Secura’s payment of PIP benefits operated as an admission or
concession of a causative connection between the collision and her medical
bills. Given that Secura subsequently “changed its mind” and contested her
knee injury was not related to the collision, Renot contends she was entitled to
introduce evidence of the prior concession. Alternatively, she asserts Secura
“opened the door” to such testimony by claiming it had only paid for damages
related to the accident. She contends the Court of Appeals erroneously
rejected her arguments. We disagree.
As correctly noted by the Court of Appeals, payments of claims under a
PIP policy differ significantly from those made under a UIM policy. PIP benefits
are payable “without regard to fault.” KRS6 304.39-040(1). Moreover, “[t]here
is a statutory presumption that any medical bill submitted [by a PIP claimant]
is reasonable.” State Auto Mut. Ins. Co. v. Outlaw, 575 S.W.2d 489, 493 (Ky.
App. 1978) (citing KRS 304.39-020(5)(a)). PIP benefits are the exclusive remedy
for the first $10,000 in medical expenses or lost wages which are incurred by a
no-fault plaintiff. See Drury v. Spalding, 812 S.W.2d 713, 716 (Ky. 1991). The
General Assembly clearly intended PIP coverage
to provide a remedy to automobile accident victims that could not
be impinged upon by any means whatsoever. This was the victim’s
reward for sacrificing traditional tort rights. . . . It is remedial in
nature and thus will be broadly construed to carry out its
beneficial purpose of providing compensation for persons injured
by automobiles.
6 Kentucky Revised Statutes.
14
Blue Cross and Blue Shield, Inc. v. Baxter, 713 S.W.2d 478, 480 (Ky. App. 1986)
(citations omitted).
Conversely, UIM benefits are provided as additional coverage under
which an insurance company
agrees to pay its own insured for such uncompensated damages as
he may recover on account of injury due to a motor vehicle
accident because the judgment recovered against the owner of the
other vehicle exceeds the liability policy limits thereon, to the
extent of the underinsurance policy limits on the vehicle of the
party recovering.
KRS 304.39-320(2). This “allow[s] an insured to purchase additional coverage
so as to be fully compensated for damages when injured by the fault of another
individual.” Nationwide Mut. Ins. Co. v. Hatfield, 122 S.W.3d 36, 40 (Ky. 2003).
Claimed medical expenses do not enjoy the presumption of reasonableness for
UIM purposes as do those claimed under a PIP policy. Entitlement to UIM
benefits requires the claimant to prove another motorist is a tortfeasor, the
amount of damages sustained because of the tortfeasor’s actions, and the
extent of the tortfeasor’s liability. State Farm Mut. Auto. Ins. Co. v. Riggs, 484
S.W.3d 724, 729 (Ky. 2016).
From the foregoing, it is clear PIP and UIM claims are separate and
independent. They are not overlapping, nor do they provide duplicative
coverage benefits for the same loss. Further, because PIP payments are made
without regard to fault, such payments cannot be equated with an admission of
a causal connection between an automobile collision and a claimed injury.
Thus, as the Court of Appeals noted, evidence concerning PIP coverage or
payments is simply irrelevant to any issue raised in this UIM action and is
15
therefore inadmissible. See KRE 401. Renot’s assertions to the contrary are
without merit.
We are likewise unpersuaded by Renot’s assertion that Secura opened
the door to admission of evidence of its prior PIP payments. During voir dire,
Secura’s counsel erroneously informed the jury that Secura had paid Renot for
the damage to her vehicle when in actuality the total damage to Renot’s vehicle
did not reach the threshold of her deductible. When counsel was made aware
of the mistake, it was brought to the attention of the trial court and an
admonition was given to the jury. Subsequently, Renot argued that Secura’s
statements asserting it had paid for damage to her vehicle because “it was
related” to the collision and that it had only made payments “for things which
were related,” opened the door to introduction of the PIP payments. As a
result, she argued the PIP evidence became admissible as an admission or
concession that Secura believed Renot’s first surgery following the collision was
“related” to injuries sustained in the wreck. The trial court and Court of
Appeals correctly rejected her position.
Property damage was a collateral and immaterial issue at trial. The
misstatement regarding payment for such damage was not inflammatory or
highly prejudicial. The trial court’s admonishment informed the jury the claim
was unpaid because it was insufficient to reach Renot’s deductible. Clearly,
the trial court did not want the jury to entertain a false belief Secura was
refusing to pay a claim for which it was obligated. Nothing about the property
damage claim was relevant to any other disputed issue at trial including Price’s
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negligence, coverage under the UIM policy, the extent of Renot’s injuries and
associated medical expenses, or a causal connection between the claimed
injuries and the collision. Secura simply did not open the door for entry of
such evidence and no improper inferences were placed before the jury
justifying the curative admissibility of the otherwise properly excluded evidence
of PIP coverage and payments. There was no error as the Court of Appeals
correctly held.
C. Remaining Issues
As previously stated, because we are reversing and remanding for a new
trial, we need not comment on Renot’s allegations of error regarding jury
selection and the failure of the trial court to correct a misstatement by a
member of the venire. Such issues were limited to two specific members of the
prospective jury panel and are unlikely to reoccur on remand. Nevertheless,
we discern no error and affirm the Court of Appeals on those issues.
III. Conclusion
For the foregoing reasons, the decision of the Court of Appeals regarding
Dr. Porta’s testimony is reversed, and the matter is remanded for a new trial
consistent with this opinion. The Court of Appeals is affirmed in all other
respects.
Bisig, Conley, Keller, Lambert, Nickell, and Thompson, JJ., sitting. Bisig,
Conley, Keller, and Lambert, JJ., concur. Thompson, J., dissents by separate
opinion. VanMeter, C.J., not sitting.
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THOMPSON, J., DISSENTING BY SEPARATE OPINION:
I respectfully dissent. Following a viewing of Dr. Porta’s videotaped trial
testimony, I cannot agree that his testimony had a substantial effect, if any, on
the jury’s determination given the cumulative nature of much of his testimony
and the other evidence showing that Renot’s knee issues were not related to
the auto accident. Therefore, errors, if any, regarding the admission of
portions of Dr. Porta’s testimony were harmless.
Much of Dr. Porta’s allegedly objectionable testimony (intruding into the
realm of medical opinion) was actually elicited during a rigorous cross-
examination. Dr. Porta himself actively resisted testifying outside of his realm
of expertise. Additionally, I conclude the portions of Dr. Porta’s testimony found
to be objectionable, to be merely cumulative to testimony already advanced by
Secura’s own medical expert and supported by the medical record.
Viviane Renot suffered from preexisting osteoarthritis in her right knee.
She had already undergone an arthroscopy and injection of her right knee prior
to the low speed, minimal impact collision. She reported no injuries at the
scene. She did not seek medical attention for her knee until nearly ten weeks
after the auto accident and then reported falling down stairs in the weeks prior
to her appointment.
With these facts, I do not believe Dr. Porta’s testimony influenced the
verdict and therefore dissent.
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COUNSEL FOR APPELLANT:
Sandra M. Varellas
D. Todd Varelles
Preston P. Cahill
Varellas & Varellas
COUNSEL FOR APPELLEE:
Ashley K. Brown
Graham D. Barth
Ward, Hocker & Thornton, PLLC
COUNSEL FOR AMICUS CURIAE, KENTUCKY DEFENSE COUNSEL:
Charles A. Walker
Sewell & Neal, PLLC
COUNSEL FOR AMICUS CURIAE, KENTUCKY JUSTICE ASSOCIATION:
Kenneth Human
Hicks & Funfsinn, PLLC
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