Opinion
2023-CA-1071-MR
10-04-2024
LAITH TALIB APPELLANT v. THOMAS BROWN, JR. APPELLEE
BRIEFS FOR APPELLANT: Richard J. Head Louisville, Kentucky BRIEF FOR APPELLEE: Deborah Campbell Myers Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE MELISSA L. BELLOWS, JUDGE ACTION NO. 17-CI-005857
BRIEFS FOR APPELLANT:
Richard J. Head Louisville, Kentucky
BRIEF FOR APPELLEE:
Deborah Campbell Myers Louisville, Kentucky
BEFORE: ACREE, EASTON, AND MCNEILL, JUDGES.
OPINION
MCNEILL, JUDGE
Laith Talib (“Talib”) appeals from a Jefferson Circuit Court judgment dismissing his negligence claim against Thomas Brown, Jr. (“Brown”) following a jury trial. Finding no error, we affirm.
In 2017, Talib and Brown were involved in a motor vehicle accident in Louisville, Kentucky. Talib filed a personal injury claim against Brown in Jefferson Circuit Court seeking damages. The jury found in favor of Brown and the circuit court dismissed Talib's complaint. This appeal followed. Additional facts will be set forth below as necessary.
Talib first argues Brown's answer to the complaint constitutes a judicial admission and is conclusive on the issue of liability. Before trial, Talib moved to preclude Brown from denying liability based upon his answer to the complaint. Following the evidence, he moved for directed verdict on the same grounds. The circuit court denied both motions, ruling Brown's answer did not amount to a judicial admission.
Talib also claims Brown's answers to requests for admission and other answers to discovery (which mimic his answer to the complaint) amount to judicial admissions. Because Talib treats these arguments as one, so will we.
"A judicial admission is a formal statement concerning a disputed fact, made by a party during a judicial proceeding, that is adverse to that party, and that is deliberate, clear, and uncontradicted." Zapp v. CSX Transp., Inc., 300 S.W.3d 219, 223 (Ky. App. 2009) (citing Sutherland v. Davis, 151 S.W.2d 1021 (Ky. 1941)). Further, "judicial admissions should be 'narrowly construed.'" Witten v. Pack, 237 S.W.3d 133, 136 (Ky. 2007) (citation omitted). "Whether a statement is a judicial admission is a question of law that we review de novo." Id. (citation omitted).
Talib's complaint alleged Brown "operated a vehicle in such a careless and negligent manner so as to cause a collision with the vehicle being occupied and/or operated by the Plaintiff." In response to this allegation, Brown's answer stated that he "admits liability in whole or in part to the extent that the proof will reveal. Notwithstanding this admission, this Defendant specifically denies that he was careless or acted with gross negligence and/or reckless disregard to the safety of others."
Talib argues Brown's statement that he "admits liability in whole or in part" constitutes a judicial admission. We disagree. "The doctrine of judicial admissions should be applied only where the statements are unequivocal ...." George M. Eady Co. v. Stevenson, 550 S.W.2d 473, 473-74 (Ky. 1977). Here, Brown's statement was not unequivocal. He specifically admitted liability only "to the extent that the proof . . . reveal[ed]." He further denied he was careless. While Brown's answer could have been better worded, it does not qualify as a judicial admission because it was not unequivocal or uncontradicted. The trial court did not err in denying the motion in limine and motion for directed verdict.
Relatedly, Talib argues it was reversible error for the trial court to preclude him from questioning Brown about his answer to the complaint and answers to requests for admission. During trial, Talib's counsel attempted to question Brown about the statement in his answer to the complaint and answers to requests for admission that he "admits liability in whole or in part to the extent that the proof will reveal." Brown's counsel objected on the grounds that the answers were prepared by him, not Brown, and that plaintiff's counsel was trying to twist Brown's words on the issue of liability. The court sustained the objection, stating "[Brown]'s not an attorney, I am not going to allow it, he didn't answer these questions."
On avowal, Talib's counsel questioned Brown if he recognized the answer to the complaint and whether he adopted the answer as his own. Brown's counsel again objected that Brown did not prepare the document and that Talib's counsel was making a legal argument as to whether the answer was a judicial admission. The court agreed that Talib's counsel was making a legal argument and that Brown was not qualified to testify to such. Talib's counsel clarified that for the appellate record his argument was that the answer constituted a judicial admission. Counsel then asked Brown a similar question concerning his answer to requests for admission.
"We review decisions to admit or exclude evidence under an abuse of discretion standard." Porter v. Allen, 611 S.W.3d 290, 294 (Ky. App. 2020) (citation omitted). "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). "Reversal is only warranted if the error, unless corrected, would prejudice the substantial rights of a party." Porter, 611 S.W.3d at 294 (citation omitted). "A substantial possibility that the jury verdict would have been different had the excluded evidence been allowed to be presented must exist." Id. (citing Crane v. Commonwealth, 726 S.W.2d 302, 307 (Ky. 1987); CR 61.01; KRE 103).
Kentucky Rules of Civil Procedure.
Kentucky Rules of Evidence.
Assuming, without deciding, it was error for the trial court to prevent Talib from questioning Brown about his answer to the complaint and answers to requests for admissions, the error was harmless. Here, the excluded evidence was limited to counsel reading Brown's statement that he "admits liability in whole or in part to the extent that the proof will reveal" and asking Brown if he adopted it as his own. It is unlikely the jury would have been swayed by this vague statement. Brown only admitted liability "to the extent that the proof will reveal."
At this point in the trial, the jury had heard both Talib's and Brown's versions of the accident. Talib testified he was stopped at a crosswalk to allow pedestrians to cross the street. According to Talib, he had been stopped for several seconds when the impact occurred. The impact caused him to hit his head on the windshield.
Brown disputed Talib's claim that he was stopped at a crosswalk at the time of impact. Brown testified there was no crosswalk and that Talib slammed on his brakes. Pedestrians were standing in the median and maybe Talib thought they were going to step out into the road. Brown described the impact as a "little love tap" that did not even move his five-pound Yorkshire Terrier who was sitting in the passenger seat.
Faced with these divergent accounts, the jury had to choose which version of the accident to believe. It apparently believed Brown's because it found in his favor. We cannot say there is a substantial possibility the jury verdict would have been different if Brown's statement that he "admits liability . . . to the extent that the proof will reveal" was presented to the jury.
Talib's next several allegations of error are related so we consider them together. He argues the trial court erred in allowing Brown to introduce a medical record and question witnesses about it without proper authentication. Talib began seeing a chiropractor two weeks after the accident where he complained of neck and back pain. One day prior, Talib was seen at the Louisville Center for Weight Loss. The medical record from that visit contains no mention of the accident or physical pain. It also reports Talib was referred to aerobic classes.
During trial, Brown sought to question Talib and his treating chiropractor, Dr. Sloan, about these perceived inconsistencies in the medical records. Talib objected but the trial court overruled the objections. On appeal, Talib argues it was error for the trial court to admit the weight loss clinic record and to allow Brown to question Talib and Dr. Sloan about it without proper authentication. Talib also appears to argue the weight loss clinic record was inadmissible hearsay, but this argument is not well developed.
"An appellate court's standard of review for admission of evidence is whether the trial court abused its discretion." Brewer v. Commonwealth, 206 S.W.3d 313, 320 (Ky. 2006) (citation omitted). "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).
"Normally, the laying of a foundation or authentication is necessary for the admission of documentary evidence." Matthews v. Commonwealth, 163 S.W.3d 11, 22 (Ky. 2005), as modified (Aug. 25, 2005); see KRE 901. Further, "[e]ven documents that will not be admitted into evidence as exhibits but will only be used in questioning a witness must be authenticated." Kentucky Guardianship Administrators, LLC v. Baptist Healthcare System, Inc., 635 S.W.3d 14, 27 (Ky. 2021) (citation omitted). "But KRE 902 provides methods whereby documents may be self-authenticated, i.e., authenticated 'without extrinsic evidence of authenticity.'" Matthews, 163 S.W.3d at 22. One of these methods is if the record qualifies as a business record under KRE 803(6). See KRE 902(11)(A).
"Medical records . . . generally fall under the business records hearsay exception embodied in KRE 803(6) . . . and may be authenticated without extrinsic evidence if they meet one of several authentication exceptions, i.e., the exceptions provided in KRS 422.300, KRE 902(11), or other unspecified statutes." Matthews, 163 S.W.3d at 26. "Normally, hospital records fall under the authentication exception . . . of KRS 422.300 ...." Id. That statute provides in relevant part that "[m]edical charts or records of any hospital licensed under either KRS 216B.105 or a similar law of another state or the United States that are susceptible to photostatic reproduction may be proved as to foundation, identity and authenticity without any preliminary testimony ...." KRS 422.300(2).
Kentucky Revised Statutes.
Although unclear from the record, it would appear the weight loss clinic record would fall under the authentication exception of KRS 422.300. See KRE 902(11); KRE 803(6)(A); Matthews, 163 S.W.3d at 26 ("Normally, hospital records fall under the authentication exception . . . of KRS 422.300 ...."). Brown asserts in his appellate brief the records were "authenticated medical records as required by KRS 422.300, et. seq.[,]" but Talib contends "none of the foundation exemptions apply[.]" Relatedly, to the extent Talib argues the medical record was hearsay, if authenticated pursuant to KRS 422.300 it would be subject to the business records exception to the hearsay rule under KRE 403(6). See Little v. Commonwealth, 422 S.W.3d 238, 246-47 (Ky. 2013). Even assuming the record was not properly authenticated, any error in its admission or in allowing Brown to question Talib or Dr. Sloan concerning it was harmless.
KRS 422.300 requires that documents authenticated pursuant to the statute be certified in the manner provided by KRS 422.305. We cannot be sure these provisions were complied with because no certification was attached to the medical record submitted as an exhibit.
The weight loss clinic record was short (two pages), and the entries were mundane. Brown only sought to ask questions about the record because Talib's doctor recommended aerobic classes and there was no mention of neck or back pain around the time of the accident. Brown argued this evidence was relevant to both Talib and Dr. Sloan's credibility concerning the extent of Talib's injuries.
However, the record's probative value on this issue was low. Talib gave a reasonable explanation for why he did not mention his neck and back pain when questioned about the record: Dr. Stege was treating him for weight loss, not the accident. He went to get medication for weight loss. The medical record supports this claim. Under "subjective," it reports "No problems since last visit. Tolerating medication without any side effects." Talib also testified he never took aerobic classes. So, the fact that Talib was prescribed aerobic classes reveals little about the extent of his injuries, particularly if he never mentioned the accident to Dr. Stege. We cannot say there is a substantial possibility the jury verdict would have been different had reference to the record been excluded.
Talib next argues it was error for Brown's counsel to ask the investigating officer to read from his police report. Talib did not object to this testimony at trial; thus, the issue is not properly preserved for our review, and we decline to address it. See KRE 103(a)(1); Downs v. Commonwealth, 620 S.W.3d 604, 616 (Ky. 2020) ("KRE 103(a)(1) provides for an appeal on admission of evidence only if a timely objection was made at trial ...."); Baker v. Weinberg, 266 S.W.3d 827, 835 (Ky. App. 2008) ("It is well-settled that a trial court must be given the opportunity to rule in order for an issue to be considered on appeal, and the failure of a litigant to bring [a matter] to the trial court's attention is fatal to that argument on appeal.").
Finally, Talib argues the trial court erred in failing to instruct the jury on future lost earnings. Because the jury found Brown was not liable for Talib's injuries, this issue is moot. No reversible error was committed by the trial court.
Based upon the foregoing, the Jefferson Circuit Court's judgment is affirmed.
ALL CONCUR.