Adkins v. Veech

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION AT PIKEVILLE SHANNA R. ADKINS, Individually. And ) SHANNA R. ADKINS, In Her Capacity as ) Next Friend of K.B and Next Friend of K.B., ) Civil Action No. 7:23-CV-31-KKC-EBA Plaintiff, ) ) V. ) ) OPINION AND ORDER STEVEN D. VEECH, and ) CDR MAGUIRE, INC., ) Defendants. *** *** *** *** The parties have filed various pretrial motions. The Court hereby ORDERS as follows: Record Motion Order Number 83 Defendants’ motion to strike DENIED portions of the testimony of Dr. Sujata Gutti, Shanna Defendants argue that Dr. Gutti is not qualified to Adkins’ treating neurologist. make the statement that surgery would be Adkins’ next option after the nerve block. However, When asked about the Defendants recognize that Dr. Gutti refers patients to treatment plan for Adkins, neurosurgeons for surgical consultation. As a treating Dr. Gutti stated that it neurologist, she would be regularly required to depended on how Adkins determine when to make that referral. Thus, she is responded to the nerve block. qualified to opine that she believes surgery is a She testified that surgery patient’s next option after other treatments. In her would be the next option, but testimony, she makes clear that it is the surgeon who that would be up to the ultimately determines whether surgery should be neurosurgeon. She testified performed. that the standard recommendation is to consider a surgical option. 84 Adkins’ motion to strike her DEFERRED UNTIL THE PRETRIAL treating spine surgeon Dr. CONFERENCE John Gilbert’s reference to Adkins’ medical insurance Evidence of a plaintiff’s medical insurance is during his evidentiary generally irrelevant to the issues before the jury and deposition. excluded under the collateral source rule. See Lindon v. Kakavand, No. CIV.A. 5:13-26-DCR, 2014 WL The Court notes that Adkins 6473621, at *3 (E.D. Ky. Nov. 18, 2014) does not attach most of the (“Kentucky's collateral source rule prohibits portions of the deposition at Defendant Kakavand from introducing evidence or issue. Accordingly, the Court arguing that any damages awarded should be offset has relied on the parties’ or reduced by amounts the plaintiff received from representations regarding Dr. collateral sources.”); see also In re Air Crash Gilbert’s testimony where Disaster Near Cerritos, Cal., On Aug. 31, 1986, 982 possible. F.2d 1271, 1277 (9th Cir. 1992)(“A federal court applies state law in matters involving the collateral source rule.”); In re Air Crash Disaster Near Chicago, Ill., On May 25, 1979, 803 F.2d 304, 308 (7th Cir. 1986)(“[A] federal court sitting in diversity must apply the collateral source rule of the state whose law governs the case. . . .”) The Court DEFERS ruling as to Dr. Gilbert’s reference to Plaintiff’s medical insurance in response to questions about how Dr. Gilbert scheduled Adkins for surgery. Dr. Gilbert explains that insurance must approve the surgery before it is scheduled. To the extent that the manner in which the surgery was scheduled is relevant, this testimony may be necessary to present a complete and accurate explanation to the jury. Accordingly, the Court will DEFER ruling on this motion until the Court has a better understanding of the testimony at issue and the relevance of the timing of Adkins’ surgery. As to Dr. Gilbert’s statement that a device he uses during surgery is considered “experimental” by insurance companies, the Court will also DEFER ruling on this issue until it has a better understanding of the testimony and its relevance. Adkins’ motion to strike DENIED defense counsel’s statements during Dr. Sujata Gutti’s The Court’s instructions to the jury will explain that evidentiary deposition that statements by lawyers are not evidence. Thus, to the Dr. Gutti probably does “a extent the statement poses any risk of prejudice, it lot of these depositions.” will be cured through the instruction. Adkins’ motion to strike DENIED defense expert Dr. Christopher Stephens’ Adkins is not prejudiced by this testimony. The responses to questions during records are her own medical records that she his evidentiary deposition produced. Thus, they contain no facts not known to about Adkins’ most recent her. Further, Adkins does not point to any significant medical records. new opinions offered by Dr. Stephens when questioned about the documents. In fact, he testified The medical records at issue that the documents at issue do not change his opinion were produced by Adkins in that was disclosed in his June 20, 2024 report. (DE supplemental discovery 84-3 Dep. 25-26.) responses after Dr. Stephens conducted his medical examination of Adkins and after Dr. Stephens’ June 20, 2024 expert report. Dr. Stephens did not supplement his report to opine on these records. Adkins’ motion to strike Dr. DENIED Stephens’ statement that he had just had major cancer The statement was made by Dr. Stephens in response surgery. to questions by Adkins’ counsel about why he did not ask Adkins about what medications she was taking before he examined her. Dr. Stephens responded that doctors do not ask that question before treating a patient. As an example, he stated he just had major cancer surgery, and the surgeon did not ask him about the medications he had taken that day. The statement is six words. Dr. Stephens does not discuss his cancer or surgery in depth. Adkins will not be prejudiced by it. 93 Adkins’ motion to exclude DEFERRED UNTIL THE PRETRIAL evidence of her health CONFERENCE insurance Such evidence is generally excluded under the collateral source rule. As explained above, however, to the extent that the timing of Adkins’ surgery is relevant, Dr. Gilbert’s testimony that the timing is affected by insurance approval appears to be necessary. The Court defers ruling on this issue until it has a better understanding of the testimony at issue and its relevance. 94 Adkins’ motion to exclude GRANTED expert reports and a police report as hearsay. The police Defendants have not responded to this motion. report was prepared by an Accordingly, the Court assumes they do not intend to officer who did not witness introduce the reports and do not object to the motion the collision. to exclude them. 95 Adkins’ motion to limit jury GRANTED strikes 28 U.S.C. § 1870 provides Defendants have not responded to the motion or filed that, in civil cases, each party an objection. has a right to three peremptory challenges, but that the Court can grant defendants more challenges when there are several defendants. Adkins argues additional challenges are not necessary here because Defendants’ interests are aligned. 102 Defendants’ motion to GRANTED exclude evidence of children’s injuries. Adkins responds that she does not intend to offer such evidence and does not object to the motion. Adkins’ two minor children were passengers in the car at the time of the accident. They have settled their claims. Accordingly, Defendants argue, their injuries are irrelevant and such evidence may be prejudicial. 103 Defendants’ motion to DENIED exclude Adkins from introducing evidence of “[E]vidence of permanent injury alone is sufficient future earning capacity. for an instruction on permanent impairment of Defendants argue that earning power.” Reece v. Nationwide Mut. Ins. Co., Adkins has not disclosed any 217 S.W.3d 226, 229 (Ky. 2007). “[T]he jury can evidence that her future through their common knowledge and experience earning capacity as a teacher make the determination if there has been a permanent has been damaged by the impairment of earning power, the extent of such accident. impairment, and the amount of damages for such impairment.” Dr. Gutti and Dr. Gilbert both testified that Plaintiff sustained permanent injuries to her neck and back as a result of the wreck. This is sufficient to warrant an instruction to the jury on damages to Adkins’ future earning capacity. 104 Defendants’ motion to GRANTED exclude evidence of or any reference to the stress of this The Court has ruled that Adkins cannot recover litigation and Defense damages for emotional distress caused by this counsel’s request for her litigation. (DE 72.) As Adkins points out, however, social media information. evidence of other causes of a plaintiff’s emotional distress is not excluded just because such damages are not compensable. A primary issue in this case will be how much of Adkins’ damages were caused by the wreck as opposed to other factors. Evidence of other stressors in Adkins’ life is relevant to that issue. If such evidence is introduced, the Court will instruct the jury that they may not award Adkins money to compensate for damages caused by those other stressors. Adkins, however, does not seek to admit evidence of the stress of this litigation to prove that the wreck did not cause all of her current emotional distress. She does not explain any other purpose for which this evidence is admissible, and the Court does not discern any other such purpose. 105 Defendants’ motion to DENIED exclude any reference, testimony or evidence that Defendants argue that they have stipulated to liability Defendants caused the and, accordingly, any evidence regarding the wreck is accident, including testimony | not probative of any issue. Nevertheless, the jury will as to the cause of the be asked to determine whether the wreck caused accident or events leading up | Adkins’ alleged injuries, including emotional to the accident, video damages. Evidence that depicts the wreck is depicting the accident, and probative of that issue. Because liability is not at photographs of the accident _| issue in this case, the Court will permit testimony and or the damaged vehicles. evidence describing and depicting the wreck only to the extent necessary to prove the cause of Adkins’ alleged emotional distress. If necessary, the Court may instruct the jury as to how it should consider this evidence. 106 Defendants’ motion to GRANTED exclude portions of Dr. Gilbert’s testimony. While Dr. Gilbert is qualified to opine that Adkins’ injuries were caused by trauma rather than Defendants seek to exclude degenerative disc disease, he is not qualified to opine Dr. Gilbert’s opinion, after from pictures of the wreck as to what the impact the viewing photographs of the wreck would have on an occupant’s body or that the vehicles at issue after the impact could cause the injuries Adkins alleges she wreck, that the impact was sustained. significant enough to cause Adkins’ injuries. Defendants argue that Dr. Gilbert is not qualified to opine on this issue. This October 7, 2025. her aeey = «UUNITED STATES DISTRICT JUDGE “Gigp"" =——EASTERN DISTRICT OF KENTUCKY