Cervetto v. Powell et al

Filing 79

MEMORANDUM OPINION AND ORDER denying 70 Plaintiff's Motion in Limine to exclude evidence or testimony that Defendant suffered an unexpected blackout event. Signed by Magistrate Judge H. Brent Brennenstuhl on 5/5/2016. cc: Counsel(CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:14-CV-00075-HBB

MICHAEL G. CERVETTO

PLAINTIFF

VS.

MARK J. POWELL and
TRANSERVICE LOGISTICS INC.

DEFENDANTS

MEMORANDUM OPINION
AND ORDER
Before the Court is Plaintiff Michael G. Cervetto’s (“Cervetto”) motion in limine to
exclude evidence or testimony that Defendant Mark J. Powell (“Powell”) suffered an unexpected
blackout event and that this was the cause of the accident (DN 70). The Defendants Powell and
Transervice Logistics, Inc. (“Transervice”) have filed a response in opposition (DN 73), and
Cervetto has filed a reply (DN 75).
Nature of the Case
In late June of 2013 both Cervetto and Powell were operating commercial motor vehicles
on Interstate 65 North in Edmonson County, Kentucky. Powell was employed by Transervice at
the time. While Cervetto was passing Powell using the left lane, Powell’s vehicle veered into
Cervetto’s lane, making contact with his truck and sending both vehicles into the concrete barrier
near the median of the highway (DN 53). Included among the affirmative defenses in Powell’s
answer was a blackout defense: “Pleading in the affirmative, the Defendants specifically plead
that the automobile accident which is the subject of this lawsuit was the result of an
unforeseeable blackout on the part of Defendant Powell” (DN 9, ¶ 16).

In support of this

defense, the Defendants retained Dr. Hal Corwin, a board-certified neurologist practicing in
Louisville, Kentucky. (DN 37).
Cervetto’s Motion in Limine
On April 11, 2016, the Defendants conducted a video deposition of Dr. Corwin for use at
trial. Dr. Corwin’s testimony was based upon his review of Powell’s medical records, and he
testified that he did not believe the sudden loss of consciousness which Powell experienced at the
time of the accident would have been reasonably foreseeable (DN 73-3, p. 3). Cervetto contends
that Dr. Corwin did not testify that Powell did, in fact, experience a blackout which caused the
accident. He notes that Dr. Corwin could not identify the specific medical cause of the blackout.
This, he contends, fails to establish through testimony based upon reasonably medical probability
that a blackout event was the cause of the accident, and, as such, Defendants should be precluded
from offering any evidence or testimony on the issue.
The “Blackout” Defense in Kentucky
Although commonly referred to as the “blackout defense,” the legal principle is more
accurately labeled “sudden incapacity” as it includes a variety of medical emergencies in
addition to a sudden loss of consciousness. The defense was recognized in Rogers v. WilhelmOlsen, 748 S.W.2d 671 (Ky. Ct. App. 1988):
Where a defendant demonstrates that he suddenly became
incapacitated while driving, and the ensuing accident was a result
thereof, and further demonstrates that the sudden incapacity was
not reasonably foreseeable, he shall have a defense to any liability
that would otherwise arise from the accident.
The defense is unavailable where the defendant was put on notice
of facts sufficient to cause an ordinary and reasonable person to
anticipate that his or her driving might likely lead to the injury of
others.

Id. at p. 673. Rogers also recognized exceptions to the defense where the Defendant is violating
a statutory duty such as refraining from driving while intoxicated or to drive within the posted
speed limit. Id.
In order to avail himself of the blackout defense, Powell must establish three elements:
(1) he experienced a sudden incapacity; (2) the sudden incapacity caused the accident, and; (3)
the sudden incapacity was not reasonably foreseeable. The issue of foreseeability is generally
one for the trier of fact. Thornton v. Lees, No. 2007-145 (WOB), 2008 U.S. Dist. LEXIS 80898,
at *3-4 (E.D. Ky. Oct. 10, 2008).
Analysis
Although styled as a motion in limine, Cervetto’s motion is in essence a request for
summary judgment on Powell’s blackout defense. Cervetto does not challenge Dr. Corwin’s
qualifications as an expert witness, nor does he challenge the adequacy of the medical foundation
upon which his opinions were based under Fed. R. Evid. 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). Rather, he argues that the Defendants have failed to
provide sufficient medical proof that Powell suffered a sudden incapacity or that this was the
cause of the accident so as entitle them to advocate for the blackout defense at trial. As
Defendants point out in their response, however, they have only offered Dr. Corwin to establish
that the blackout was not reasonably foreseeable, in that it did not likely result from any of
Powell’s pre-existing medical conditions.

They intend to establish the other elements by

Powell’s own testimony. Powell has testified that he had a blackout at the time of the accident.
See DN 73-1, p. 2, 5 & 7.

The question relevant to Cervetto’s motion, therefore, is whether

medical testimony, based upon reasonable medical probability, is necessary in order to support a
blackout defense insofar as the issues of whether the defendant experienced such an episode and

whether that experience was the cause of the accident. The undersigned concludes that medical
testimony is not required. In Sloan v. Ibert, No. 2008-CA-001919, 2009 Ky. App. Unpub.
LEXIS 1044, at *9 (Ky. App. Dec. 11, 2009) (Unpub.) the court accepted statements of the
defendant that he passed out and the accident followed as sufficient to give rise to a factual
question for the jury.

Cervetto has cited state court cases from a variety of jurisdictions

addressing general principles of evidentiary proof of causation; however, he has not provided
any authority specifically holding that a blackout defense must be supported by medical
testimony.
Cervetto argues in his reply that Powell cannot use the affirmative defense because at the
time he was driving the truck he was in violation of DOT regulation § 391.41, which qualifies
persons to drive commercial motor vehicles only if they have no current clinical diagnoses of a
variety of cardiac conditions. Powell’s prior strokes, Cervetto argues, disqualified him from
driving. Cervetto contends “Daniel O’Sullivan’s June 25, 2013 e-mails confirm Defendant
Powell suffered these early May, 2012 strokes and should not have been driving a commercial
vehicle for Defendant Transervice, Inc. at the time of the accident with Plaintiff Cervetto” (DN
75, p. 2). The undersigned has already dealt with this argument in DN 66, denying Cervetto’s
second motion for summary judgment, holding “Cervetto recites the text of O’Sullivan’s e-mails.
. . . Yet the text of these e-mails does not change the Court’s original ruling. The parties have
presented conflicting evidence about whether Powell and Transervice knew about Powell’s
strokes, and, as such, issues of material fact exist” (DN 66, p. 4).
Wherefore, Plaintiff’s Motion in Limine, DN 70, is DENIED.

May 5, 2016