Margaret A. Willis v. Christian Care Communities ( 2021 )

RENDERED: JULY 23, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0233-MR
MARGARET A. WILLIS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANN BAILEY SMITH, JUDGE
ACTION NO. 16-CI-004795
CHRISTIAN CARE COMMUNITIES; APPELLEES
RAY DICKISON; MARK WITT; AND
CHIQUITA BOOKER
OPINION
AFFIRMING
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BEFORE: DIXON, GOODWINE, AND TAYLOR, JUDGES.
GOODWINE, JUDGE: Margaret A. Willis (“Willis”) brought a pro se action
against her landlord seeking recovery for symptoms of prolonged carbon monoxide
exposure she alleges occurred in her apartment. The Jefferson Circuit Court
granted summary judgment in favor of Christian Care Communities, Chiquita
Booker, Mark Witt, and Ray Dickison (collectively “Christian Care”) due to
Willis’ failure to retain a medical expert to testify regarding causation. Willis
appealed. After careful review, finding no error, we affirm.
Willis lived in an apartment in Chapel House, a senior living
community, in Louisville. At Chapel House, individuals live independently but
have access to advanced-care options, community activities, and other amenities.
It is owned and operated by Christian Care Communities.
On September 30, 2016, Willis filed a pro se civil complaint against
Christian Care asserting various causes of action to recover damages for injuries
she claimed were caused by prolonged exposure to carbon monoxide in her
apartment. She claimed she was exposed to persistent levels of carbon monoxide
due to exhaust from the flue of her building’s gas boiler and exhaust created by the
building’s gas-powered clothes dryers. Willis claims her exposure caused her to
develop Parkinsonian tremors.
More than a year after filing her complaint and after being granted
numerous continuances, Willis identified for the first time a potential expert
witness, David G. Penney, Ph.D., who might testify on her behalf as an expert in
carbon monoxide toxicology. Willis advised the court that “Dr. Penney has made
the causal connection between carbon monoxide exposure and physical damage
done.” Record at 146. Willis claimed she paid Dr. Penney $1,200 to provide this
opinion, but he sent her insufficient documentation that was not what they had
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agreed upon. She also claimed he would not return her numerous follow-up phone
calls and voicemails. She cites Dr. Penney’s misrepresentation as the reason why
she lacks funds to retain another expert to testify regarding causation in this case.
On May 18, 2018, Christian Care moved for summary judgment
arguing Willis had not and could not produce sufficient evidence of causation to
support her claims. Specifically, Christian Care argued summary judgment was
required because Willis had not disclosed an expert to testify that her alleged
Parkinsonian tremors were caused by exposure to carbon monoxide.
In response to the motion, Willis argued summary judgment was
premature because discovery was ongoing and expert witnesses were not required
to be disclosed at that time. She requested a continuance and requested the motion
for summary judgment not be ruled on, so she could get Dr. Penney’s report
making the causal connection between her carbon monoxide exposure in her
apartment and her Parkinsonian tremors.
The circuit court denied Christian Care’s motion for summary
judgment, finding Dr. Penney’s supposed opinion, when viewed in a light most
favorable to Willis, was sufficient to show a genuine issue of material fact
precluding summary judgment. However, the circuit court expressed its
skepticism as to whether Dr. Penney actually agreed to testify as an expert witness
at trial. The circuit court ordered Willis to produce, within thirty days, an
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amended, sworn answer to Christian Care’s interrogatory seeking identification of
expert witnesses under CR1 26.02. The court made clear that Christian Care could
renew its motion for summary judgment if Willis failed to comply with its order.
Willis failed to comply with the circuit court’s order to answer
Christian Care’s interrogatory identifying expert witnesses. Instead, Willis sought
another extension of time to obtain an expert. The circuit court ordered her to
identify an expert who would testify at trial on the issue of causation by January
31, 2019. Willis also failed to comply with that order.
On February 14, 2019, Christian Care renewed its motion for
summary judgment based on Willis’ failure to comply with the circuit court’s
orders to identify an expert witness who would testify at trial regarding medical
causation. Willis argued there was ample evidence to make a causal connection
between the levels of carbon monoxide in her apartment and her symptoms. She
also asserted that res ipsa loquitor applied to allow the jury to infer causation
without expert testimony.
On January 16, 2020, the circuit court granted Christian Care’s
renewed motion for summary judgment and dismissed the complaint with
prejudice. The circuit court found Willis was required to provide expert testimony
to prove exposure to carbon monoxide by Christian Care caused her injuries.
1
Kentucky Rules of Civil Procedure.
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Willis was given more than three years to locate an expert on causation and failed
to, so the court concluded it would be impossible for Willis to produce evidence at
trial warranting a judgment in her favor. This appeal followed.
On appeal, Willis argues: (1) she was not yet required to disclose a
causation expert; (2) res ipsa loquitor is applicable to this case because there was
sufficient circumstantial evidence to make a causal connection without an expert
witness; (3) learned treatises could have proven causation; and (4) there was
misrepresentation and misconduct on the part of Christian Care and Dr. Penney.
“A trial court’s decision to grant summary judgment for insufficient evidence is to
be reviewed de novo on appeal.” Ashland Hospital Corporation v. Lewis, 581
S.W.3d 572, 577 (Ky. 2019).
Before addressing the merits of Willis’ appeal, we must address
Christian Care’s assertion that Willis failed to include specific citations to the
record as required by CR 76.12(4)(c)(v). Although Willis filed her brief pro se,
“we have every reason to expect the briefs filed by pro se appellate advocates to
demonstrate a good faith attempt to comport with CR 76.12, our rule for
preparing briefs.” Hallis v. Hallis, 328 S.W.3d 694, 698 (Ky. App. 2010) (citing
Louisville and Jefferson Cty. Metro. Sewer Dist. v. Bischoff, 248 S.W.3d 533, 537
(Ky. 2007)).
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Willis’ failure to comply with CR 76.12 hinders our ability to review
her arguments. See Hallis, 328 S.W.3d at 695-97. “Our options when an appellate
advocate fails to abide by the rules are: (1) to ignore the deficiency and proceed
with the review; (2) to strike the brief or its offending portions, CR 76.12(8)(a); or
(3) to review the issues raised in the brief for manifest injustice only[.]” Hallis,
328 S.W.3d at 696 (citation omitted). Willis failed to include specific citations to
the record. Because Willis’ arguments fail on the merits, we elect to ignore the
deficiency and proceed with our review.2
First, expert testimony was required to prove medical causation of
Willis’ alleged injuries. Christian Care likens this case to medical malpractice
cases in which plaintiffs are generally required to introduce expert medical
testimony to prove causation. Although this is clearly not a medical negligence
case, it is similar in that “proof of causation requires the testimony of an expert
witness because the nature of the inquiry is such that jurors are not competent to
draw their own conclusions from the evidence without the aid of such expert
testimony.” Baylis v. Lourdes Hosp., Inc., 805 S.W.2d 122, 124 (Ky. 1991) (citing
Jarboe v. Harting, 397 S.W.2d 775 (Ky. 1965); Johnson v. Vaughn, 370 S.W.2d
2Willis filed a motion for extension of time to file her reply brief. In response to said motion,
Christian Care moved our Court to strike a portion of Willis’ motion titled “In Camera Section”
because it raised unfounded, new accusations. Willis did not respond to Christian Care’s motion.
By order dated March 17, 2021, the Court sustained Willis’ motion for extension of time to file
her reply brief but passed Christian Care’s motion to the merits panel for disposition. We have
addressed this motion via a separate order to be entered contemporaneously with this Opinion.
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591 (Ky. 1963)). However, “[a]s an exception to the general
rule, expert testimony is not necessary ‘where the common knowledge or
experience of laymen is extensive enough to recognize or infer negligence from the
facts.’” Baylis, 805 S.W.2d at 124, n.3 (quoting Jarboe, 397 S.W.2d at
778; Meiman v. Rehabilitation Center, Inc., 444 S.W.2d 78 (Ky. 1969); Maggard
v. McKelvey, 627 S.W.2d 44 (Ky. App. 1981)).
Here, the general rule applies. Testimony from a medical expert on
the element of causation was required because laymen do not have extensive
knowledge of any possible link between prolonged carbon monoxide exposure and
Parkinsonian tremors. Willis argues a note from her treating physician, Dr. James
McKiernan, is sufficient, but it merely states Willis’ Parkinsonian tremors may be
related to carbon monoxide exposure. Willis also argued her own recollection of
visits to her general practitioner, Kimberly Brumleve, were sufficient to prove
causation. This purported evidence is insufficient under Jarboe, which requires
medical testimony “that the causation is probable and not merely possible.”
Jarboe, 397 S.W.2d at 778.
Furthermore, Willis argues “learned treatises” negate the need for an
expert witness in this case. However, Willis’ interpretation of the use of learned
treatises is incorrect. KRE3 803(18) provides as an exception to the hearsay rules:
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Kentucky Rules of Evidence.
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To the extent called to the attention of an expert witness
upon cross-examination or relied upon by the expert
witness in direct examination, statements contained in
published treatises, periodicals, or pamphlets on a subject
of history, medicine, or other science or art, established
as a reliable authority by the testimony or admission of
the witness or by other expert testimony or by judicial
notice. If admitted, the statements may be read into
evidence but may not be received as exhibits.
The rules of evidence allow “learned treatises” to be read into evidence by expert
witnesses. Thus, they cannot aid her in proving causation in this case without an
expert witness.
Second, the trial court did not abuse its discretion in determining
Willis had sufficient time to identify an expert witness before granting summary
judgment in favor of Christian Care. Willis argues because there was no trial date
set, she was not required to disclose expert witnesses. Her argument relies upon an
unpublished Kentucky case4 and a United States Sixth Circuit Court of Appeals
case,5 neither of which are relevant to this case.
“A trial court is granted wide latitude in managing its docket and
discovery deadlines.” Love v. Walker, 423 S.W.3d 751, 758 (Ky. 2014). “The trial
court’s determination that a sufficient amount of time has passed and that it can
4
Ries v. Oliphant, No. 2011-CA-000100-MR, 2017 WL 242714 (Ky. App. Jan. 20,
2017), discretionary review granted (Feb. 7, 2018), rev’d, 568 S.W.3d 336 (Ky. 2019).
5
Vance By and Through Hammons v. United States, 90 F.3d 1145 (6th Cir. 1996).
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properly take up the summary judgment motion for a ruling is reviewed for an
abuse of discretion.” Blankenship v. Collier, 302 S.W.3d 665, 668 (Ky. 2010).
Here, Willis had “a sufficient opportunity for discovery” as the circuit
court granted her numerous continuances over the course of three years to allow
her more time to identify a medical causation expert. Love, 423 S.W.3d at 758.
The circuit court was generous and provided Willis ample opportunity to identify a
causation expert, and Willis continually failed to comply with the court’s orders to
do so. Thus, the circuit court did not abuse its discretion in determining that it
could properly take up Christian Care’s motion for summary judgment.
Third, there is no proof to support Willis’ speculative and unpreserved
claims of misrepresentation and fraud. For the first time on appeal, Willis argues
Christian Care and Dr. Penney engaged in misrepresentation and misconduct that
warrant reversal. She claims Christian Care continually misrepresented the case by
wrongfully stating her claim was for Parkinson’s disease instead of Parkinsonian
tremors or Secondary Parkinsonism. She argues Dr. Penney “took her money and
ran.” Appellant’s Brief at 7. Willis further claims “[t]here may be sufficient
evidence that Penney was paid off by the opposing side.” Id.
Christian Care asserts Willis failed to preserve this argument. CR
76.12(4)(c)(v) requires appellate briefs contain “at the beginning of the argument a
statement with reference to the record showing whether the issue was properly
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preserved for review and, if so, in what manner.” The purpose of this rule is that
we “can be confident the issue was properly presented to the trial court and
therefore, is appropriate for our consideration.” Oakley v. Oakley, 391 S.W.3d 377,
380 (Ky. App. 2012).
“It is axiomatic that a party may not raise an issue for the first time on
appeal.” Sunrise Children’s Services, Inc. v. Kentucky Unemployment Ins.
Comm’n, 515 S.W.3d 186, 192 (Ky. App. 2016) (citation omitted). “As this Court
has stated on numerous occasions, ‘appellants will not be permitted to feed one can
of worms to the trial judge and another to the appellate court.’” Elery v.
Commonwealth, 368 S.W.3d 78, 97 (Ky. 2012) (quoting Kennedy v.
Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), overruled on other grounds
by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010)). As this argument is
not properly before us and Willis does not request review for palpable error under
CR 61.02, we decline to address this argument.
For the foregoing reasons, we affirm the judgment of the Jefferson
Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Margaret A. Willis, pro se Ronald G. Sheffer
Louisville, Kentucky Joseph P. Mankovich
Louisville, Kentucky
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