No Recusal Results in the Reversal of a

No Recusal Results in the Reversal of a $1.7 Million Lasik Eye Surgery Verdict

As previewed in the KTCR last month, a $1,708,000 Lasik eye surgery verdict worked its way to the Court of Appeals. The basis of the appeal had nothing to do with the underlying facts or evidentiary questions. Instead, it was based solely on the conduct of trial judge Rebecca Overstreet in failing to recuse herself.

The underlying case involved four botched Lasik eye surgeries that left plaintiff blind in one eye. The now-half-blind plaintiff resisted when the ophthalmologist, Thomas Abell, suggested a fifth surgery. Alleging not just negligence, but gross negligence, $1,208,000 was awarded in compensatory damages. Punitives were assessed at $500,000.

Until the verdict was returned, Abell never complained about Overstreet=s role. However, in a post-trial JNOV motion, he argued that she should have automatically recused. It seems that her husband, Jerry Wright is an attorney, who just coincidentally, is affiliated with the law firm of the plaintiff in this case, Herren and Adams. Abell further explained the delay in failing to raise the recusal issue was because he didn=t know about the relationship between Overstreet and Wright. Importantly, he further postured, it was the sort of relationship that could not be waived, necessitating that Overstreet automatically recuse. Plaintiff resisted this notion, arguing that Wright was simply an independent contractor, sharing space with Herren and Adams. Abell resisted and noted that not only did they share office space, they also shared space in the photograph that accompanied their yellow-pages advertisement.

On 3-4-03, the case was argued in Lexington before a three-judge panel of the Court of Appeals. Three weeks later, it rendered a non-published opinion, vacating and remanding the lower=s court judgment.

Judge Schroeder wrote for the panel that KRS 26A.015(2)(d)(2) requires (his emphasis) a judge to disqualify if a party proceeding before her is represented by a spouse. The court also cited the Kentucky Code of Judicial Conduct and a Judicial Ethics Opinion. It further addressed a contention the issue was waived by the doctor, (he denied it), noting in any event that while a Aremittal of disqualification@ could have occurred, its procedure was not followed in this case as the waiver was not signed by counsel and parties. Important in that analysis, Schroeder noted that knowledge could not be imputed to the defendant doctor. Having so concluded, the matter was remanded for the assignment of a new judge to retry the case. (Interestingly, in briefly describing the facts, Schroeder explained dryly that plaintiff=s astigmatism was increased. Plaintiff, who started with 20/60 vision in the eye, would certainly describe it as more than increase in her astigmatism as following the four procedures, her vision is now 20/400.)

While both Judges McAnulty and Buckingham concurred in result, a separate concurrence was authored by Buckingham. He wrote this Aunfortunate situation could have been avoided@ had Overstreet either transferred the case or disclosed the relationship. However, he disagreed with the majority=s analysis, explaining that while he rejected automatic recusal, the same result was required as Overstreet should have disqualified because of the appearance of impropriety. Here, Buckingham wrote, AI believe the relationship created in reasonable minds a perception that the judge=s impartiality was impaired,@ and even if there was Ano real basis for disqualification,@ Overstreet should still have disclosed the relationship.

Medical Negligence

Abell v. Oliver

Appeal from Fayette Circuit Court

Trial Judge: Rebecca M. Overstreet

KTCR Cite: 2001 YIR, Case No. 1680

Date of Trial: 11-1-01

Appeal Decided: 3-28-03

Appellant=s Counsel: James P. Grohmann, Louisville and Clayton L. Robinson, Lexington

Appellee=s Counsel: Thomas K. Herren and Charles C. Adams, Jr., Lexington

Ed. Note - This report first appeared in the April 2003 issue.

Updated in November 2003

Supreme Court Declines to Hear Reversal of $1.7 Million Lasik Verdict, Ordering Court of Appeals Opinion Published

At the October rendition date and while not issuing its own opinion, the Supreme Court still spoke loudly in an interesting case, Oliver v. Abell, 2003-SC-0326-D. Originally in November of 2001, Oliver prevailed in a medical negligence trial alleging multiple Lasik surgeries had been botched, leaving her nearly blind in one eye. A Lexington jury awarded her $1,708,000, including punitives of $500,000. See Verdicts on Disc, Case No. 1680.

The doctor appealed and argued the trial judge, Rebecca Overstreet, should have recused herself as she is married to Jerry Wright, an attorney affiliated with plaintiff=s lawyers. Interestingly, the doctor did not raise this challenge until after the trial had been completed. His excuse? He didn=t know of the relationship between husband and judge.

This March in a non-published opinion, the Court of Appeals reversed. Judge Schroder held that KRS 26A.015(2)(d)(2) requires (his emphasis) a judge to disqualify if a party proceeding before her is represented by her spouse. Alternatively while there is a procedure by which the doctor could have waived the conflict, it was not followed in this case. Particularly, it required a knowing waiver, the procedure not permitting knowledge to be imputed. A new trial was ordered. [Concurring in result, Judge Buckingham rejected the notion Overstreet had to automatically recuse, suggesting instead that she should have recused because of an appearance of impropriety.]

Plaintiffs sought discretionary review before the Supreme Court. This month it denied review and not just letting the non-published appellate opinion stand (its most common practice), the court ordered it published. Does this decision have much import for practitioners beyond this case?

As there are several trial judges in Kentucky who are married to practicing lawyers and there likely will be more in the future, the issue will again surface. Facing that fact-set, the spouse litigant should demand the spouse-judge to recuse. As the majority in the Court of Appeals opinion stated, such a recusal is required. To do otherwise risks a likely reversal of any favorable outcome at trial. [The facts in Abell v. Oliver were slightly nuanced as the attorney in question was not a member of plaintiff=s law firm, merely sharing space with them. This was contradicted by the doctor who noted the lawyer not only shared office space, his photograph also sharing a portion of their yellow-pages advertisement.]

The question is trickier for the party who faces an opposing attorney who is married to the judge. Pursuant to the holding in this case, there is no reason to affirmatively assert the existence of a conflict. As the conflict requires automatic recusal, the burden rests on the judge to recuse. By taking this position, the litigant could take his chances at trial and if not prevailing, simply raise the issue for the first time after the adverse result. Thus in this instance, unusual but not exceedingly rare, the opposing party could ensure two bites at the trial apple, assuming a second go-around is needed.