Eric Jordan v. Transit Authority of River City D/B/A Tarc

RENDERED: SEPTEMBER 10, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0479-MR
ERIC JORDAN APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE BRIAN C. EDWARDS, JUDGE
ACTION NO. 15-CI-002016
TRANSIT AUTHORITY OF RIVER CITY
D/B/A TARC AND BESSIE REED APPELLEES
OPINION
AFFIRMING
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BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Eric Jordan (“Appellant”) appeals from a judgment of
the Jefferson Circuit Court reflecting a jury verdict in favor of Transit Authority of
River City d/b/a TARC (“TARC” or “Appellee”). Appellant argues that the circuit
court erred in 1) failing to exclude the testimony of TARC’s expert witness; 2)
granting Appellee’s motion to exclude the testimony of a lay witness; 3) denying
Appellant’s motion to exclude video footage that was not disclosed in discovery;
and 4) in denying Appellant’s motion for a mistrial. For the reasons addressed
below, we find no error and affirm the judgment on appeal.
FACTS AND PROCEDURAL HISTORY
On March 12, 2014, Appellant was a passenger on a TARC coach
owned by Appellee and operated by TARC driver Bessie Reed (“Ms. Reed”). As
the coach approached a stop at the intersection of Dixie Highway and Garland
Avenue in Louisville, Kentucky, Appellant observed a small group of passengers,
including a child in a wheelchair, who wanted to exit the coach. In order to make
room for these individuals to depart from the crowded coach, Appellant exited the
coach and stood on the sidewalk. While Appellant and other passengers were
standing near the coach, Ms. Reed lowered a mechanical ramp to allow the
wheelchair passenger to exit the coach. While the ramp is in motion, it makes a
beeping sound to warn persons of its movement.
The wheelchair passenger used the ramp to exit the coach. Ms. Reed
then began lifting the ramp to restore it to its stored position. While the ramp was
in motion, Appellant began walking toward the bus entrance while talking to other
individuals. He struck the ramp, causing him to fall and sustain injuries.
On April 15, 2015, Appellant filed the instant action in Jefferson
Circuit Court against TARC and Ms. Reed alleging damages resulting from
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negligence, recklessness, and willful or gross negligence. The matter proceeded to
trial in February 2020, after which the jury returned a verdict in favor of TARC
and Ms. Reed. A judgment reflecting the verdict was rendered on March 5, 2020,
and this appeal followed.
ARGUMENTS AND ANALYSIS
Appellant, through counsel, first argues that the Jefferson Circuit
Court committed reversible error in allowing TARC’s expert witness, Dr. Kevin
McGann, to testify at trial. Appellant appears to argue that while TARC properly
disclosed Dr. McGann as an expert witness in pre-trial filings, it did not fully
disclose the scope of Dr. McGann’s testimony in violation of Kentucky Rules of
Civil Procedure (“CR”) 26.02(4) and the Jefferson Circuit Court’s pre-trial order.
Appellant asserts that he propounded interrogatories on TARC with the specific
request to produce the subject matter and scope of his testimony, that TARC
responded to the interrogatories, and that Dr. McGann’s testimony exceeded the
scope of TARC’s disclosure. While Appellant acknowledges Dr. McGann’s
expertise in emergency medical care, he contends that Dr. McGann never
examined Appellant and is not an orthopedist, hand surgeon, or practitioner of pain
management.
We must first note that Appellant has not complied with CR
76.12(4)(c)(v), which requires that the appellant state at the beginning of the
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written argument if the issue was preserved and, if so, in what manner. We are not
required to consider portions of the Appellant’s brief not in conformity with CR
76.12, and may summarily affirm the circuit court on the issues contained therein.
Skaggs v. Assad, By and Through Assad, 712 S.W.2d 947, 950 (Ky. 1986);
Pierson v. Coffey, 706 S.W.2d 409, 413 (Ky. App. 1985). “In Elwell v. Stone, 799
S.W.2d 46, 48 (Ky. App. 1990), we established the principle that, where an
appellant fails to comply with CR 76.12(4)(c)(iv), a reviewing court need only
undertake an overall review of the record for manifest injustice. We believe that
principle applies as well to the failure to comply with CR 76.12(4)(c)(v).” J.M. v.
Commonwealth, Cabinet For Health and Family Services, 325 S.W.3d 901, 902 n.
2 (Ky. App. 2010). As in J.M. v. Commonwealth, we have chosen the less severe
alternative of reviewing the proceeding below for manifest injustice rather than
summarily affirming the decision of the circuit court. “Manifest injustice is found
if the error seriously affected the fairness, integrity, or public reputation of the
proceeding.” Kingrey v. Commonwealth, 396 S.W.3d 824, 831 (Ky. 2013)
(internal quotation marks, footnote, and citation omitted).
The record refutes Appellant’s argument on this issue. TARC’s
disclosure expressly stated that Dr. McGann would offer testimony regarding the
following: the nature and scope of the accident; the nature and cause of the
injuries to Appellant; Appellant’s pre-existing conditions; and the medical
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treatment rendered to Appellant. The record reasonably supports the Jefferson
Circuit Court’s denial of Appellant’s motion to exclude Dr. McGann’s testimony.
We find no error seriously affected the fairness, integrity, or public reputation of
the proceeding. Id.Appellant next argues that the circuit court erred in granting TARC’s
motion to exclude the testimony of lay witness Jihan Kellam. Appellant sought to
have Kellam, a TARC coach driver, testify as to TARC’s “habit and/or modis
operandi in handling injury incidents on its buses.” Appellant raised an allegation
at trial that Ms. Reed did not follow policies and procedures with regard to the
handling of injury accidents. Appellant characterizes Kellam’s testimony as
directly on point, relevant, and admissible. He argues that the exclusion of this
testimony was an abuse of discretion and constitutes reversible error.
Kellam took the stand and began to testify as to her own experiences
as a TARC driver who dealt with accidents. TARC objected on the grounds that
Kellam’s experiences were unrelated to the matter at trial and were not relevant. In
considering TARC’s objection, Judge Edwards ruled that Kellam’s experience
with unrelated accidents had no bearing on the matter at trial and, even if it did,
TARC should have been given notice. Having closely examined the record and the
law, we agree that the incidents and/or accidents Kellam may have had as a TARC
driver were not relevant to the issue of TARC’s negligence, if any, as to Appellant.
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The proper standard for review of evidentiary rulings is abuse of
discretion. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky.
2000). “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). Relevant evidence is
“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.” Kentucky Rules of Evidence (“KRE”) 401.
Kellam’s experiences with TARC incidents and/or accidents, if any, did not make
the existence of any consequential fact in the matter before us more likely or less
likely than it would have been without Kellam’s testimony. That is to say,
Kellam’s testimony was not relevant. “Evidence which is not relevant is not
admissible.” KRE 402. The circuit court properly concluded that Kellam’s
testimony as to her own experiences was not relevant, and we find no abuse of
discretion.
Appellant goes on to argue that the circuit court erred in denying
Appellant’s motion to exclude TARC video footage that was not identified or
provided in discovery. The video, which was generic footage of a coach’s ramp in
operation, was shown to the jury by TARC as a demonstrative exhibit. Appellant
contends that allowing TARC to introduce this video was prejudicial because,
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among other reasons, it created an improper inference that the auditory warning
system on Ms. Reed’s coach was operating properly on the day in question. The
focus of this objection is the contention that the video was not properly disclosed
prior to trial.
On November 6, 2019, some three months prior to trial, TARC filed
expert disclosures listing Lurae Stuart as an expert in bus design and guidelines for
mass transportation. That disclosure specifically referenced “video of the TARC
ramp,” and that Ms. Stuart was prepared to testify as to “the video detailing the
ramp deployment.” In addition, another TARC disclosure made one month before
trial listed “[d]rawings, diagrams, documents relied upon by experts including but
not limited to the operation of the lift system on the bus[.]” The circuit court
concluded therefrom that the video in question was properly disclosed. We agree.
These disclosures were appropriate and sufficient. The Jefferson Circuit Court’s
denial of Appellant’s objection on this issue was not unreasonable or unsupported
by sound legal principles; therefore, we find no abuse of discretion and thus no
error.
Appellant’s final argument is that the circuit court erred in denying his
motion for a mistrial. At trial, Appellant moved to exclude any reference to his
prior illegal drug usage. Appellant’s marijuana usage became an issue during the
deposition of his own medical expert, Dr. Barrett, who acknowledged references to
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Appellant’s marijuana usage in the medical records he reviewed to make an
assessment about the case. Over Appellant’s objection, the jury was allowed to
hear testimony pertaining to Appellant’s marijuana usage. The jury also heard a
question from TARC’s counsel relating to Appellant’s alleged cocaine usage. The
circuit court sustained Appellant’s request to admonish the jury to disregard any
reference to cocaine. At the close of the proceedings, Appellant sought a mistrial
based on the questioning about the marijuana usage, as well as the admonition to
the jury as to disregard any question or answer relating to cocaine.
We find no error on this issue. “A mistrial is appropriate only where
the record reveals ‘a manifest necessity for such an action or an urgent or real
necessity.’ . . . A trial court has discretion in deciding whether to declare a mistrial,
and its decision should not be disturbed absent an abuse of discretion.” Clay v.
Commonwealth, 867 S.W.2d 200, 204 (Ky. App. 1993) (citations omitted).
Appellant’s marijuana usage became an issue because of his own medical expert’s
acknowledgment that the medical record contained references to Appellant’s
marijuana usage.
As to the issue of cocaine, a “jury is presumed to follow an
admonition to disregard evidence and the admonition thus cures any error.”
Carson v. Commonwealth, 621 S.W.3d 443, 450 (Ky. 2021) (footnote and citation
omitted). Such a presumption can be overcome by an “(1) overwhelming
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probability that the jury will be unable to follow the court’s admonition and there
is a strong likelihood that the effect of the inadmissible evidence would be
devastating to the defendant, or (2) the question asked lacks any factual basis and
was highly inflammatory.” Id. (emphasis in original) (internal quotation marks,
footnote, and citation omitted). Appellant has not overcome the presumption that
the admonition cured the error. We find no error in the circuit court’s denial of
Appellant’s motion for a mistrial.
CONCLUSION
The record demonstrates that TARC properly disclosed the scope of
Dr. McGann’s testimony. Jihan Kellam’s testimony was excluded because the
testimony about her experience as a TARC driver was not relevant to the matters at
bar. The video at issue was properly disclosed, and we find no basis for
concluding that the circuit court erred in failing to grant a mistrial. For these
reasons, we affirm the judgment of the Jefferson Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
S. Chad Butcher Derek Miles
Lexington, Kentucky R. Allen Button
Prospect, Kentucky
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