Dianna Hull Perazzo, M.D. v. Melanie Robbins by and Through Her Guardian and Father, Larry Robbins ( 2020 )

RENDERED: DECEMBER 23, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2018-CA-0986-MR
MILLS, SHERMAN, GILLIAM & GOODWIN, P.S.C.;
AND DIANNA HULL PERAZZO, M.D. APPELLANTS
APPEAL FROM KENTON CIRCUIT COURT
v. HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 11-CI-02391
MELANIE ROBBINS,
BY AND THROUGH HER GUARDIAN
AND FATHER, LARRY ROBBINS; AND
TYLER WILLIAM MICHAEL BULMER, A
MINOR, BY AND THROUGH HIS NEXT FRIEND
AND NATURAL FATHER AND PARENT, TODD
WILLIAM BULMER APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; GOODWINE AND MCNEILL,
JUDGES.
CLAYTON, CHIEF JUDGE: Dr. Dianna Hull Perazzo appeals from a judgment
of the Kenton Circuit Court following a trial wherein the jury returned a verdict in
favor of Melanie Robbins and against Dr. Perazzo for over $4 million dollars. Dr.
Perazzo alleges that the trial court abused its discretion regarding certain
evidentiary rulings it made both before and during the trial and contends that the
trial court improperly limited certain expert witness testimony, abused its
discretion in excluding evidence of drug and alcohol use, and committed
cumulative error. Upon review of the record and applicable caselaw, we affirm.
BACKGROUND
On September 15, 2010, Melanie Robbins – at that time, 35 years of
age – went to the St. Elizabeth Medical Center (“SEMC”) emergency room (the
“ER”) with complaints of a headache and congestion. Robbins indicated that her
headache was a “10 out of 10” on the pain scale and “the worst headache of her
life.” Robbins further told the ER workers that the headache began a few days to a
week prior and was particularly bad when she coughed or bent over. Robbins also
described having nausea, vomiting, and light and sound sensitivity.
Robbins was assessed by Dr. Perazzo, an ER physician, who ordered a
CT head scan. The radiologist reading the x-ray from such head scan, Dr. Kirk
Doerger, found no hemorrhage or other abnormality and mistakenly concluded that
the x-ray was normal. In fact, the x-ray indicated that Robbins was experiencing a
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“warning bleed” or a “sentinel bleed” signaling an imminent hemorrhagic stroke.
Dr. Perazzo did not order any further tests, including a lumbar puncture (“LP”),
which is a test for the existence of red blood cells in the spinal fluid and is
indicative of a brain bleed that a CT scan is at times not sensitive enough to reveal.
Robbins remained at the ER until midnight, at which time she indicated that her
headache had improved. Dr. Perazzo discharged Robbins with a short period of
pain medication and a request to schedule a follow-up appointment.
On September 27, 2010, Robbins returned to the ER after an
aneurysm – or a flaw in the wall of a blood vessel in her brain – ruptured and she
suffered a stroke. A subsequent CT scan showed “an extensive subarachnoid
hemorrhage [(“SAH”)],” which translates to bleeding in the area between the brain
and the tissue covering the brain. The CT scan further showed a “dissecting
aneurysm,” a type of aneurysm that presents in only three to five percent of all
brain aneurysms. Specifically, a “dissecting” aneurysm describes a situation where
blood penetrates the first of three layers contained in the blood vessel wall and
goes into the second layer, ultimately separating or tearing the vessel wall.
Robbins’ dissecting SAH was in the middle cerebral artery (“MCA”), one of three
major arteries channeling fresh blood to the brain.
Robbins was thereafter transferred to University of Cincinnati
Hospital where neurosurgeon Dr. Andrew Ringer performed surgery to reconstruct
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the blood vessel. At the beginning of the surgery, Dr. Ringer placed a “temporary
clip” across the MCA in order to “shut off all the blood flow to the right side of the
brain for a period of time.” After working to rebuild the vessel, when Dr. Ringer
removed the temporary clip, the aneurysm began to bleed. Dr. Ringer identified
one part of the MCA, the M1 segment, and placed a temporary clip on such
segment as well as “a straight clip across the base of the aneurysm incorporating
the superior division, leaving the distal clip in place.” Such action stopped the
bleeding, and Dr. Ringer concluded the surgery.
Robbins subsequently underwent a second surgery on September 30,
2010, as her brain began swelling with bleeding into the temporal lobe.
Ultimately, Robbins suffered from almost total paralysis, and requires 24-hour-a-
day, 7-day-per-week care.
Robbins sued SEMC, Dr. Perazzo and her clinic, and Dr. Doerger and
his clinic. Robbins settled with SEMC before trial and, after approximately six
years of litigation, her case against Dr. Perazzo and Dr. Doerger was tried over
fifteen days in March of 2017. Specifically, Robbins argued that the symptoms
that she was presenting on her September 15, 2010 ER visit were signs of an SAH
and that Dr. Perazzo should have ordered an LP despite receiving a normal report
from Dr. Doerger. On the other hand, Dr. Perazzo argued that Robbins did not
have a traditional presentation of SAH because Robbins did not have a
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“thunderclap” headache, but rather indicated that her headache had been going on
for approximately a week.
The jury ultimately awarded Robbins $1,268,621.67 for medical
expenses, $6 million dollars for future care and treatment, and $1 million dollars
for pain and suffering. The jury apportioned fault 50% to Dr. Perazzo and 50% to
Dr. Doerger. A judgment was entered accordingly.
Dr. Perazzo and Dr. Doerger filed motions for a new trial and
judgment notwithstanding the verdict, both of which the trial court denied. Dr.
Doerger paid his portion of the judgment, while Dr. Perazzo appealed to this court
as a matter of right.
Further facts will be discussed as they become relevant in the course
of this opinion.
ISSUES
Dr. Perazzo argues that the trial court erred in limiting the testimony
of an expert witness, Dr. Patrick McCormick, to those opinions the trial court
found to have been disclosed in his Kentucky Rule of Civil Procedure (CR)
26.02(4) expert witness disclosure. Dr. Perazzo further argues that the trial court
erroneously excluded evidence of Robbins’ alleged alcohol and cocaine use.
Finally, Dr. Perazzo argues that the cumulative error doctrine requires a new trial
based on the trial court’s allegedly unfair evidentiary rulings.
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ANALYSIS
a. Standard of Review
An appellate court utilizes the abuse of discretion standard when
reviewing a trial court’s decision regarding the admissibility of evidence.
Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577-78 (Ky. 2000).
The same abuse of discretion standard applies to discovery matters. Manus, Inc. v.
Terry Maxedon Hauling, Inc., 191 S.W.3d 4, 8 (Ky. App. 2006). “The test for
abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Thompson, 11
S.W.3d at 581.
b. The Trial Court’s Exclusion of Portions of Dr. McCormick’s
Testimony
Dr. Perazzo first argues that the trial court abused its discretion when
it limited Dr. McCormick to those opinions that the trial court found had been
disclosed in Dr. McCormick’s CR 26.02 expert witness disclosure. In this case,
the trial court also specifically prohibited “any expert opinion not disclosed in the
filed disclosures or during discovery of the expert witness.” CR 26.02(4)(a)(i)
states as follows:
Discovery of facts known and opinions held by experts,
. . . acquired or developed in anticipation of litigation or
for trial, may be obtained only as follows: . . . A party
may through interrogatories require any other party to
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identify each person whom the other party expects to call
as an expert witness at trial, to state the subject matter on
which the expert is expected to testify, and to state the
substance of the facts and opinions to which the expert is
expected to testify and a summary of the grounds for
each opinion.
Additionally, CR 26.05(a) requires a party to “seasonably . . . supplement” his CR
26.02 expert witness disclosures.
Dr. McCormick was initially disclosed as a witness for SEMC before
it settled with Robbins. The relevant portions of Dr. McCormick’s expert
disclosure stated as follows:
Dr. McCormick will testify that he agrees with Dr.
Samson’s description of the aneurysm. He agrees and
will opine that it was a multi-lobed, partially-thrombosed,
ruptured aneurysm with a complex origin at or near the
right middle cerebral artery bifurcation.
Dr. McCormick will testify that if the aneurysm suffered
by Ms. Robbins was diagnosed as a Grade 1 on the Hunt
Hess Scale at the time of the first presentation to
[SEMC], because of the location and complexity of the
aneurysm as described by Dr. Samson, even if it was
diagnosed and treated on September 15, 2010, Ms.
Robbins’ likely outcome would be similar to those
patients presenting as a Grade 3 or Grade 4. He will also
testify that he agrees with Dr. Samson that dissecting
aneurysms of the cerebral arteries are notoriously fragile
and unstable, even prior to rupture. He further agrees
and will opine that dissecting aneurysms of the cerebral
arteries such as the one suffered by Ms. Robbins are
prone to bleed vigorously intra-operatively and, in order
for the surgeon to effectively treat the condition,
compromise or even closure of arterial branches
potentially essential to the brain’s normal blood supply
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may be necessary. In light of this fact, the risk to Ms.
Robbins of neurological deficits, even if the aneurysm
was identified prior to rupture, was significant. The risk
of bleeding or stroke post-procedure resulting in
permanent neurological deficits was also significant.
Although Dr. McCormick’s deposition was never taken, Dr. Doerger
called Dr. McCormick as an expert witness to testify at trial on March 29, 2017.
At that point in the trial, Dr. Perazzo had already closed her proof and had rested
her case the previous day. As his testimony progressed, it became evident that Dr.
McCormick planned to testify that Robbins’ injuries were not caused by the
original hemorrhage that went undetected by Dr. Perazzo, but were caused by Dr.
Ringer having to “sacrifice” certain vessels to stop bleeding during the surgery.
Upon Robbins’ counsel’s objection, the trial court allowed Dr. McCormick to
testify by avowal, wherein he stated:
[M]y opinion in this case has always been that the
outcome that Melanie experienced is related to the type
of aneurysm she had. If this aneurysm was diagnosed on
September 15th or back in May, um, they would have
been faced with treating this exact same problem, and it’s
treating this problem that led to the outcome Melanie
had. Even if it had never hemorrhaged, she, to a
probability, would have the neurologic problems that she
has now[.] What caused the problem was the fact that
you had to treat this aneurysm, and in treating it, the only
solution Dr. Ringer could come up with was to sacrifice
that vessel, and in sacrificing that vessel there are
consequences. And that’s what led to the stroke that she
had, that’s what led to the emergency return to the
operating room to remove a whole portion of the skull,
which is a treatment for stroke, not a treatment for
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aneurysm. They never anticipated that or they would
have done it at the first surgery. That’s what caused all
the problems here.
After Dr. McCormick testified by avowal, the following exchange occurred:
Robbins’ Counsel: It’s not disclosed, your honor.
Trial Court: How come I don’t have a clear disclosure of
this? I mean, no offense intended, cause I don’t care
what the medicine says, but I do care about how
everybody gets to deal with the medicine in front of the
jury.
Ultimately, the trial court limited Dr. McCormick’s testimony to the information
contained in his expert disclosure.
As a preliminary matter, Robbins first argues that this issue was not
adequately preserved at the trial court level, as Dr. Perazzo had already rested her
case when Dr. Doerger called Dr. McCormick to testify and requested that Dr.
McCormick’s opinion be admitted at trial. However, because in her pretrial list of
experts Dr. Perazzo expressly adopted the experts of the other defendants and
reserved the right to call them at trial, and because “the substance of the evidence
was made known to the court by offer” via Dr. McCormick’s avowal testimony,
we believe the argument was sufficiently preserved for our review. See Kentucky
Rule of Evidence (KRE) 103(a)(2).
Therefore, we are left with the task of determining whether the trial
court abused its discretion when it limited Dr. McCormick’s testimony to the
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specific opinions expressed in his expert witness disclosure. Again, “questions
concerning the scope of evidence are left to the discretion of the trial court to
determine whether to admit and exclude evidence.” Baptist Healthcare Systems,
Inc. v. Miller, 177 S.W.3d 676, 684 (Ky. 2005) (citation omitted).
We agree with the trial court that the opinion offered by Dr.
McCormick at trial is significantly broader than that described in his expert
disclosure. The disclosure’s language discussed Dr. McCormick’s opinion in
terms of “risks” and “likely outcomes” of the surgery to treat the aneurysm,
whereas Dr. McCormick’s avowal testimony was that the treatment of the
aneurysm directly led to the outcome that Melanie experienced and was the actual,
rather than likely, outcome. Instead of limiting Dr. McCormick to testimony
regarding significant “risks,” Dr. Doerger’s counsel attempted to introduce a new
causation opinion from Dr. McCormick at trial. The variance between the
substance and level of certainty in Dr. McCormick’s expert disclosure opinion and
his avowal testimony at trial was significant. Indeed, “[a] generalized statement
outlining a broad subject matter about which an expert may testify does not
sufficiently apprise the other party of the information needed to prepare for trial as
contemplated and mandated by the notice requirements of CR 26.02(4)(a).”
Clephas v. Garlock, Inc., 168 S.W.3d 389, 393-94 (Ky. App. 2004).
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While Dr. Perazzo cites us to the case Oliphant v. Ries, 568 S.W.3d
336 (Ky. 2019), we do not find such case to be applicable to the one sub judice. In
Oliphant, the applicable expert had been extensively deposed twice, at which time
his opinion had been revealed. Id. at 343-44. The Court stated:
Simply put, requiring a party to supplement an expert
witness disclosure every time an expert is deposed in
discovery would be a waste of the party’s time and
resources. Depositions serve the same function as CR
26.02 and 26.05 — to reveal evidence, information and
opinions that may be used at trial and they are universally
recognized as the most effective, detailed method of
obtaining an understanding of an opponent’s proof.
Id. at 345. The foregoing situation is not present in this case.
As a result, although one may have read and interpreted the expert
disclosure in a different or more expansive manner, we cannot say that the trial
court’s interpretation was arbitrary or unreasonable. Because Dr. Perazzo failed to
fully supplement Dr. McCormick’s prior expert disclosures, the trial court acted
within its discretion in excluding the evidence. See Kemper v. Gordon, 272
S.W.3d 146, 155 (Ky. 2008).
Further, even if we found that Dr. McCormick’s expert disclosure was
adequate, the Kentucky Supreme Court has held that “the person requesting
exclusion of testimony must show prejudice.” Equitania Ins. Co. v. Slone &
Garrett, P.S.C., 191 S.W.3d 552, 556 (Ky. 2006). We can find no prejudice here,
as Dr. Perazzo provided her own causation expert, Dr. Close. The jury heard Dr.
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Close opine that Robbins would have undergone the exact same procedure had she
been diagnosed by Dr. Perazzo on September 15, 2010 that she ultimately
underwent. Dr. Close further opined that, even if Dr. Perazzo had diagnosed
Robbins on September 15, 2010, the risk of death or permanent disability resulting
from the surgery would be “above fifty percent.” Dr. Close also testified that at the
time of the surgery on September 27, 2010, the risk of neurological disability from
such surgery was “well above fifty percent, one could argue it’s a hundred
percent.” Therefore, the jury heard causation expert testimony beneficial to Dr.
Perazzo’s position, and we find no prejudice.
c. The Trial Court’s Exclusion of Evidence of Drug and Alcohol
Use
Dr. Perazzo next argues that the trial court erred when it excluded
certain evidence of Robbins’ alleged drug and alcohol use. Dr. Perazzo argues that
evidence of drug and alcohol abuse went to the causation of Robbins’ injuries, as
cocaine adversely affected SAH treatment and recovery. Dr. Perazzo also
contends that such evidence could also affect the applicable standard of care in
terms of the diagnostic approach. On the other hand, Robbins argues that the
evidence was irrelevant under the definition provided by KRE 401 and therefore
inadmissible under KRE 402.
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KRE 401 defines “relevant evidence” as “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 402 states that “[e]vidence which is not relevant is
not admissible.” Further, “[a]lthough 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 presentation of cumulative evidence.” KRE 403.
Dr. Perazzo offered as evidence of Robbins’ alleged drug and alcohol
use a positive test for cocaine on a 2007 drug screen at St. Luke Hospital for acute
alcohol intoxication. Further, Dr. Perazzo offered arrest records from the summer
of 2010 after police found cocaine at Robbins’ boyfriend’s home. The resulting
charges were ultimately dismissed against Robbins, however, as there was no
evidence that Robbins had any connection to the substances. Dr. Perazzo also
shared a Facebook message in the month prior to Robbins’ aneurysm in which her
father tells Robbins to “get your life together,” get out of that “drug den,” that
Robbins “doesn’t have to do drugs to be accepted,” and does not “need this
scumbag for drugs.” Dr. Perazzo also offered post-surgery hospital forms noting
Robbins’ cocaine and alcohol abuse history and one record stating that Robbins
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only quit using marijuana and cocaine on September 27, 2010, the day of her first
surgery.
Alternatively, Dr. Perazzo produced no physical evidence that
Robbins was under the influence of drugs or alcohol at the time of, or anytime
near, her initial trip to the ER on September 15, 2010. It is also undisputed that
twelve days later, on September 27, 2010, when Robbins was re-admitted for
surgery, a toxicology screen confirmed that she did not have drugs or metabolites
in her system.
The trial court entered a series of orders that excluded all evidence
regarding Robbins’ drug or alcohol abuse. The trial court stated the following:
The court does not find any evidence suggesting
profound, chronic, prolonged use of illegal substances by
plaintiff in or near September 2010. Nor does the court
see any expert testimony supporting any relevance of the
use of unspecified substances to plaintiff’s damages; Dr.
Janiak’s statement that the use of cocaine and
methamphetamine is a risk factor for subarachnoid
hemorrhage, even if it could be supported by evidence of
plaintiff using such substances, only goes to the cause of
plaintiff’s condition and not the treatment thereof which
is the issue before the court. Dr. Perazzo’s own
testimony that knowing the patient had risk factors, or
even a known aneurysm, would not have changed her
diagnosis given the clinical presentation, seems to limit
the relevance of evidence of drug use.
If there is expert testimony that would change the
protocol or the standard of care for a patient with either
remote or recent drug use, or that is relevant to the theory
that such would have made treatment on September 15
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riskier or affected plaintiff’s ultimate recovery, please
point that out to me as soon as possible so that the court
can review that in considering the motions.
The trial court ultimately prohibited Dr. Perazzo or Dr. Doerger from introducing
at trial “any comment, mention, suggestion, argument or statement regarding
Melanie Robbins’ past use of any form of drug or consumption of alcohol.”
We do not believe the trial court abused its discretion in excluding
evidence of Robbins’ alleged drug and alcohol use. When looking at the standard
of care, Dr. Perazzo stated that knowledge of Robbins’ prior alcohol or drug abuse
would not have changed how she diagnosed or treated Robbins:
The Court: To the extent that you’re able to say that
[Robbins’] behavior would have caused this, which is the
question to you.
Dr. Perazzo: Okay, yes.
The Court: Would that have made you react any
differently?
Dr. Perazzo: Not to this headache.
Further, a panel of this Court has stated that “[p]ersons providing medical
treatment . . . should expect to treat not only patients who fall ill or are injured
through no fault of their own, but also those whose own neglect or intentional
conduct has placed them in the precarious position of requiring medical treatment.”
Pauly v. Chang, 498 S.W.3d 394, 418 (Ky. App. 2015) (internal quotation marks
omitted).
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As to whether the alleged drug and alcohol use provided a cause for
the ultimate injury, the trial court noted the experts produced by the defendants
were basing opinions on “ifs,” and that the only other evidence primarily consisted
of hearsay statements from Facebook messages, a dismissed criminal charge, and a
positive cocaine test three years prior. Moreover, all of Dr. Perazzo’s experts
concerning Robbins’ alleged drug and alcohol use qualified their opinions with the
following factual requirements in order for the standard of care to change, for the
evidence to be relevant as to causation, or for Robbins to have contributed to her
injuries: (1) that Robbins used cocaine within 48-72 hours before the onset of her
headache; (2) that after she suffered the headache she continued to use cocaine and
it worsened her headache; or (3) that she used cocaine weekly for six months or
more. The trial court determined that there was no relevant evidence of the
foregoing, and we find no abuse of its discretion.
d. Cumulative Error
Finally, Dr. Perazzo argues that the cumulative error doctrine warrants
a new trial based on four alleged trial errors. The doctrine protects a criminal
defendant’s right to a fair trial, and has been described by the Kentucky Supreme
Court as “the doctrine under which multiple errors, although harmless individually,
may be deemed reversible if their cumulative effect is to render the trial
fundamentally unfair.” Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky.
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2010). “We have found cumulative error only where the individual errors were
themselves substantial, bordering, at least, on the prejudicial.” Id. (citation
omitted).
Dr. Perazzo provides a short recitation of four claimed errors at the
end of her brief, which does not provide us with enough substance to analyze such
alleged errors under the cumulative error doctrine. Further, as none of the
individual issues discussed above resulted in a finding of error by the trial court,
we do not find reversible cumulative error in this case.
CONCLUSION
For the foregoing reasons, we affirm the Kenton Circuit Court.
ALL CONCUR.
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BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE:
Virginia Hamilton Snell Jim Leventhal
Deborah H. Patterson Benjamin Sachs
Sean G. Williamson Denver, Colorado
Louisville, Kentucky
Robert E. Sanders
David C. Calderhead Covington, Kentucky
Joshua F. DeBra
Loveland, Ohio Delana S. Sanders
Crescent Springs, Kentucky
Kevin C. Burke
Jamie K. Neal
Louisville, Kentucky
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