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Invoking the Separation of Witnesses Rule: The Court of Appeals of Kentucky Clarifies KRE 615 in Skarupa v. Owensboro Health Healthpark

3/15/21

By: Tia Combs

As Kentucky looks to reopen its courts for jury trials on May 1, 2021, practitioners looking to brush up on their trial skills may want to take note of Skarupa v. Owensboro Health Healthpark, 583 S.W.3d 33 (Ky. Ct. App. 2019) which explains the court’s interpretation of KRE 615. 

Skarupa sought a massage at Owensboro Health on March 2, 2012 for pain and tightness in her neck and shoulders. Id. at 34. A month later, Skarupa suffered a stroke which left her partially paralyzed, unable to speak or walk, and blind in her left eye. Id. Skarupa, with the help of OT and PT, was able to recover her ability to walk and speak but remains blind in her left eye and cannot return to her work as a nurse. Id. Just under a year after her massage, Skarupa filed an action against Owensboro Health and the massage therapist, alleging that the massage she had in March 2012 caused a dissection of her left and right carotid arteries and her ensuing stroke. Id.

In support of her theory of the case, the Plaintiff produced two expert witnesses, one a vascular surgeon and one a licensed massage therapist. Id.  Both testified by video deposition prior to trial. Id. These witnesses were countered by the defense’s three experts: a licensed massage therapist, a medical doctor, and vascular surgeon. Id. Prior to trial, the Plaintiffs’ motion for separation of witnesses pursuant to KRE 615 was granted. Id. The matter proceeded to trial in February 2018. Id.

At trial, it was revealed that all defense expert witnesses had, to some extent, reviewed the depositions, some videotaped, of the Plaintiff’s witnesses. Id. The Plaintiff cried foul, arguing that this review was a violation of KRE 615 and that the Defendants’ witnesses should not be permitted to testify and, later, that the Plaintiff was entitled to directed verdict because the testimony of the Defendants’ experts was not admissible. Id. Both motions were denied by the trial court. Id. at 35. A verdict was returned in favor of the Defendants, and the Plaintiff appealed. Id.

The Kentucky Court of Appeals reviewed several Kentucky cases interpreting KRE 615 and federal cases based on the identical FRE 615.  The court of appeals concluded that KRE “only requires sequestration of witnesses prospectively from the point in time that the rule is invoked.” Id. at 36. The court further explained that while a timely filed motion invoking KRE 615 requires separation ofwitnesses, a motion filed after a witness has already heard another witness’s testimony is not timely. Id. In Skarupa, the Plaintiff did not move under KRE 615 until after the Defendants’ expert witnesses had already reviewed the testimony of other witnesses. Id. As such, the court of appeals held that the trial court had not erred in allowing the Defendants’ witnesses to testify and that the defense’s verdict should stand. 

For more information, please contact Tia Combs at [email protected].