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Keeping Up With Fratzke v. Murphy: Recent Court of Appeals Case Offers Opportunity for Avoiding Malpractice When Plaintiff Lawyer Fails to Seasonably Answer Interrogatories Requesting Specification of Damages

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The Malpractice Risk:

Our Summer 2003 newsletter includes the article “Another One Bites The Dust! Civil Rule 8.01 Takes Out Plaintiffs (And Their Counsel)” by Ruth H. Baxter. The article begins with this description of the malpractice issue:

You only have to pick up a copy of Kentucky Trial Court Review to read of another plaintiff’s counsel ignoring the Supreme Court decision of Fratzke vs. Murphy (Ky., 12 S.W.3d 269 (2000)) by failing to supplement the client’s answers to interrogatories to state the exact amount of damages, type of damages or both. The result is case dismissal during trial or on appeal. In five reported civil trials this year from a dismissal last January during plaintiff’s opening remarks in a Rowan County suit involving motor vehicle injuries to the most recent dismissal following the parties’ opening statements in a personal injury lawsuit in McCracken County, trial courts granted defense motions to dismiss plaintiff’s claims for failure to answer or supplement CR 8.01(2) interrogatories. Not only is the attorney left explaining to clients why they will never see their day in court, the attorney is now exposed to a significant malpractice claim for failing to follow a well-established rule of civil procedure.

Engle v. Baptist Healthcare System (336 S.W.3d 116 (Ky. App. 2011)):

In this case the Kentucky Court of Appeals appears to have interpreted Fratzke in a way that offers plaintiff lawyers relief for failing to amend damages interrogatories seasonably as required by CR 8.01(2), and exposes defense lawyers to claims when they rely on the absence of plaintiff's compliance rather than getting witnesses to dispute damages. The following extract from Engle addresses the Fratzke issue:

Engle’s complaint … requested an unspecified amount of punitive damages. … one of Baptist’s interrogatories asked Engle to categorize and specify the amount of his damages. In his answer to Baptist’s interrogatory, Engle made no reference to punitive damages.

The trial in this matter concluded on October 9, 2009. After the close of evidence at trial, but before the matter was submitted to the jury, Engle moved to supplement his answers to Baptist’s interrogatories because he wished to specify a sum of punitive damages for the jury to consider. Baptist objected, contending that Kentucky Rule(s) of Civil Procedure (CR) 8.01(2) precluded Engle from supplementing his interrogatories at that time. In support, Baptist cited Fratzke v. Murphy, … which “recognized that a trial court can authorize answers or supplemental answers to interrogatories for good cause, as late as during the trial itself.4 Baptist urged that Engle’s motion was untimely because both sides had already finished presenting their cases. Nevertheless, the trial court granted Engle’s motion to supplement his answers to Baptist’s interrogatories, and the question of punitive damages was submitted to the jury.

In its cross-appeal, Baptist repeats its argument that Engle’s motion was improper solely because it occurred after both sides had presented their respective cases. Baptist urges that, should we remand this matter, Engle should be precluded from seeking punitive damages upon retrial.

However, Baptist presents no authority supporting that a motion to supplement answers to interrogatories is improper within the meaning of Fratzke if it is made after the close of evidence but prior to submitting a matter to the jury. Moreover, Fratzke merely holds that a motion to supplement answers to interrogatories may be granted as late as during trial. We have determined that a new trial is warranted in this matter, the new trial in this matter has yet to occur, and Baptist presents no authority that would prohibit Engle from moving to supplement his answers during the course of retrial. Therefore, we find no error in the trial court’s decision to grant Engle leave to amend his answers to Baptist’s interrogatories.

4 In Tennill v. Talai, 277 S.W.3d 248, 251 (Ky. 2009), the Supreme Court of Kentucky interpreted Fratzke in this manner.

The Court of Appeals may have confused its interpretation of Fratzke by noting at the end of the decision that there will be a retrial and there was no authority before it that would prohibit Engle from amending interrogatories at the retrial. The following language from Fratzke may avoid this confusion:

We note that nothing in the rules precludes a trial court from entertaining a motion to supplement answers to interrogatories after trial has commenced.   However, Fratzke never made such a motion.   Nor is there anything in the record to indicate that she in any way brought her supplemental answers to the attention of the trial court.   Therefore, we hold that Fratzke's attempt to supplement her answers to interrogatories to include amounts claimed for unliquidated damages, which was made on the last day of trial and without leave of court, was ineffective.

Managing the Risk:

The Baxter article recommends these risk management procedures for Fratzke issues:

  • Docket a personal injury case using either a computer system or a reliable manual system, just as in any other file in the office. The client should be contacted at a minimum at thirty-day intervals to obtain updated information about treatment, medical bills and lost wages. By keeping the file current, the client’s claim can be reevaluated periodically and the insurance company or defense counsel updated on recent developments.
  • The response to CR 8.01(2) interrogatories should be immediate. The client must sign the answers to comply with the civil rules. Failing to answer the interrogatories or stating “unknown” or “to later be determined” only leaves a potential Fratzke hole to be exploited later. Pay careful attention to the listing of the type of damages claimed, even if defense counsel’s interrogatories are vague or fail to ask about a type of damage that you seek at trial. Failure to state in answers to interrogatories the intention to seek damages for future suffering, for example, can preclude recovery on that damage at trial.
  • When a motion to set the case for trial is filed triggering the trial judge’s scheduling order, an immediate review of the client’s file is necessary to advise the court of the status of the case. During this review ascertain compliance with CR 8.01(2). Answers to interrogatories should be amended as necessary to provide an updated itemization of damages and a current amount of each of those damage claims. Plaintiff’s counsel should consider that defense counsel in the opening statement could attempt to show the jury that the plaintiff’s answers to interrogatories on damages establish that the claimant is money hungry, greedy or exploiting the minimal injuries sustained. Beware of this risk and state the list of damages accurately and fairly in light of the evidence.
  • The trial brief submitted to the court should outline the factual basis for each damage claim as well as supporting legal authority for the plaintiff’s entitlement to each stated claim. Reference the plaintiff’s most recently updated answers to interrogatories to show awareness of the Fratzke rule.
  • Docket the plaintiff’s case not less than thirty days prior to the scheduled trial date for one last review of the answers to interrogatories. The courts require that answers to interrogatories be updated seasonably. The Supreme Court has explained that updating answers during the pendency of a trial is not seasonable. Counsel should anticipate the closer an update is to trial the more likely a finding that it is not seasonable.

 


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