RENDERED: DECEMBER 17, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-1532-MR

ESTATE OF CLARENCE H. 

THOMAS, JR. AND ADRIENNE 

MOORE, AS ADMINISTRATRIX OF 

THE ESTATE OF CLARENCE H. 

THOMAS, JR. APPELLANTS 

v. 

APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE LUCY ANNE VANMETER, JUDGE

ACTION NO. 15-CI-04673

KENTUCKY ONE HEALTH 

PARTNERS, LLC; JESSE SABIITI,

1

M.D.; KENTUCKY ONE HEALTH,

INC.; AND SAINT JOSEPH 

HEALTHCARE, INC., DBA SAINT 

JOSEPH HEALTH SYSTEM, INC. 

AKA SAINT JOSEPH HOSPITAL APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: DIXON, McNEILL, AND K. THOMPSON, JUDGES.

 

1 The notice of appeal contained a misspelling of Appellee’s surname. We have opted to utilize

the correct spelling. 
-2-

DIXON, JUDGE: Appellants (the Estate) appeal various orders of the Fayette 

Circuit Court granting Appellees’ motions for summary judgment, denying the 

applicability of res ipsa loquitur, excluding the Estate’s expert’s opinion, and 

rulings on motions in limine. After a careful review of the briefs, record, and law, 

we affirm. 

FACTS AND PROCEDURAL BACKGROUND

Clarence Thomas, Jr., presented to the emergency room at Saint

Joseph Hospital on January 6, 2015. He was evaluated by Dr. Sabiiti in the early 

hours of January 7, 2015, and was ultimately admitted for ongoing care and 

observation. During Thomas’s admission, he developed a pressure wound near his 

coccyx; no infection was noted. Thomas was then discharged on January 23, 2015. 

At this time, Thomas’s care was transferred to Cardinal Hill Hospital 

where he was to undergo two to three weeks of physical therapy. However, 

Thomas left against medical advice on January 26, 2015, only three days into his 

treatment regimen. Thereafter, Thomas received services from Cardinal Hill 

Home Care from January 27, 2015, to March 4, 2015. Reports from his skilled 

nurses indicate that Thomas was noncompliant with wound care during this time. 

Thomas was re-admitted to Saint Joseph Hospital on March 4, 2015, for knee 

surgery, but the procedure was delayed due to an infection in both the coccyx 

wound and in a pressure wound that had developed on his knee. 
-3-

Thereafter, Thomas was in and out of multiple medical facilities,

including Saint Joseph Hospital, Select Services Hospital, Brookdale Richmond 

Place, and the University of Kentucky Hospital (UK), for various health issues,

including the infected coccyx wound, a hip injury resulting from a fall, sepsis, and 

an infection in his knee. Thomas was admitted to UK a final time on October 16, 

2015, and subsequently died there on November 30, 2015. The death certificate 

cited cardiorespiratory failure as the cause of death. 

On December 30, 2015, the Estate filed its complaint asserting claims 

of negligence, gross negligence, wrongful death, loss of love and affection,

2

and 

corporate liability. Appellees moved for summary judgment arguing the Estate 

had failed to timely designate an expert. The Estate objected arguing no expert 

was required under the doctrine of res ipsa loquitur. In an order entered March 7, 

2018, the court determined that the doctrine was not applicable but, in lieu of 

granting summary judgment, afforded the Estate an extension of time to disclose 

an expert. 

The Estate then retained Dr. Jackson who was deposed. At 

deposition, Dr. Jackson opined that the Appellees did not meet the applicable 

standard of care where they failed to: (1) turn Thomas as frequently as necessary, 

(2) provide sufficient skin protection, (3) provide a special mattress, and (4) 

 

2 This claim was dismissed by order entered March 13, 2017, and is not at issue in this appeal. 
-4-

manage his protein levels. Dr. Jackson stated that he did not know how frequently 

Thomas was turned, what skin protection was provided, what type of mattress was 

used, or what Thomas’s protein levels were, but opined the Appellees’ actions 

were clearly insufficient because a wound developed. By way of explanation, Dr. 

Jackson asserted he did not need to know these details because skin breakdown is 

always preventable and, accordingly, any skin breakdown is the product of 

negligence. Dr. Jackson also could not specifically identify who failed to provide 

the necessary care other than to say Dr. Sabiiti failed to order a skin integrity plan. 

On the issue of causation, Dr. Jackson acknowledged that Thomas’s 

wound was not infected at the time he was discharged from Saint Joseph Hospital. 

However, based solely on his experience as the medical director of a nursing home 

for 20 years, where he dealt with wound care and bedsores, Dr. Jackson opined the 

wound became infected at some point before March 4, 2015, and the infection 

migrated to Thomas’s knee. Ultimately, Dr. Jackson believes the skin infection led 

to other recurrent infections which entered Thomas’s bloodstream causing sepsis 

and contributing to his death. Dr. Jackson acknowledged that Thomas had 

multiple health problems, including abscesses in the brain and lung, eye problems 

requiring retinal surgery, a seizure disorder, pneumonia, diabetes, hypertension, 

foot drop–a neuropathy–and achalasia. Dr. Jackson also conceded that he did not 

review Thomas’s medical records from UK for his October through November 
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2015 admission (where Thomas died), the Cardinal Hill Home Care notes from 

January to March 2015 (the time Dr. Jackson asserts the wound became infected), 

Thomas’s primary care records, or Saint Joseph Hospital’s policy and procedures. 

Regarding claimed medical expenses, Dr. Jackson opined that the 

treatment Thomas received after January 23, 2015, was reasonable and necessary. 

When asked how Dr. Jackson could reach this conclusion given his admission that 

he did not review all of Thomas’s medical records, Dr. Jackson asserted Thomas 

needed treatment but conceded he had not seen the numbers and was speculating. 

Dr. Jackson also acknowledged that he was not an expert on hospital service

charges and that he did not have an opinion as to the costs and expenses of the 

services provided to Thomas because he did not know the specifics. 

After deposition, Appellees moved to exclude Dr. Jackson’s testimony 

pursuant to KRE3 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 

U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and for partial summary 

judgment on the punitive damages and vicarious liability claims. After hearing 

arguments, the court found that Dr. Jackson’s testimony was not based upon 

sufficient data and facts where he did not review all pertinent medical records and, 

regarding the standard of care, where he could not identify specific deviations or

even what should have occurred. The court further found that Dr. Jackson’s

 

3 Kentucky Rules of Evidence. 
-6-

testimony was not the product of reliable principles and methods where his

standard of care opinion was inconsistent with Kentucky law and his causation 

opinion was based solely on a bald assertion that he had seen similar cases. As to 

partial summary judgment, the court concluded the Estate had failed to 

demonstrate any affirmative evidence to support punitive damages or vicarious 

liability. 

Accordingly, by an order entered October 14, 2020, the court 

excluded Dr. Jackson’s testimony and granted Appellees summary judgment on the 

punitive and vicarious liability claims. On October 28, 2020, the court entered an 

order resolving Appellees’ various motions in limine. Finally, on November 18, 

2020, the court entered an order granting summary judgment to the Appellees on 

all remaining claims. This appeal followed. Additional facts will be introduced as 

they become relevant. 

ANALYSIS

The Estate claims that the court erred in concluding that the doctrine 

of res ispa loquitur is not applicable and necessitating that the Estate obtain an 

expert. Before we reach the merits, we will address the Estate’s claim that the 

court did not comply with the mandates of Baptist Healthcare System, Inc. v. 

Miller, 177 S.W.3d 676 (Ky. 2005), and conduct a hearing. We disagree with the 

Estate that Miller necessitates a hearing. Miller held that it would be 
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“inappropriate to use a CR[4] 56 summary judgment to resolve what is essentially a 

procedural dispute as to the need for an expert. In such disputes, it is within the 

trial court’s discretion to impose sanctions for failure to comply rather than to grant 

summary judgment[.]” Id. at 681-82. The court’s order granting the Estate 

additional time to retain an expert after determining res ipsa loquitur did not apply 

is consistent with Miller. Therefore, the Estate’s claim of error is without merit. 

We now will consider the merits of the court’s decision that res ipsa loquitur does 

not apply. 

Negligence may not be inferred merely from a poor result. Meador v. 

Arnold, 264 Ky. 378, 94 S.W.2d 626, 631 (1936). Generally, the plaintiff in a 

medical negligence case has the burden to establish by expert testimony that the 

physician breached the standard of care and that the breach was the proximate 

cause of the plaintiff’s injury. Ashland Hosp. Corp. v. Lewis, 581 S.W.3d 572 (Ky. 

2019). However, the doctrine of res ipsa loquitur serves as a limited exception 

where “‘any layman is competent to pass judgment and conclude from common 

experience that such things do not happen if there has been proper skill and 

care[.]’” Perkins v. Hausladen, 828 S.W.2d 652, 654-55 (Ky. 1992) (quoting in 

agreement PROSSER AND KEETON ON TORTS, § 39 (5th ed. 1984)). 

 

4 Kentucky Rules of Civil Procedure. 
-8-

“Whether expert testimony is required in a given case is squarely 

within the trial court’s discretion.” Green v. Owensboro Med. Health Sys., Inc., 

231 S.W.3d 781, 783 (Ky. App. 2007) (citing Keene v. Commonwealth, 516 

S.W.2d 852, 855 (Ky. 1974)). Accordingly, we review for an abuse of discretion. 

“The test for abuse of discretion is whether the trial judge’s decision was arbitrary, 

unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. 

English, 993 S.W.2d 941, 945 (Ky. 1999).

The Estate argues this is a case where a layperson is competent to 

determine negligence based on the medical records alone. The Estate asserts that 

the medical records demonstrate that Thomas developed a coccyx wound during 

his admission, this wound became infected in the 39 days following his discharge 

from Appellees’ care, the infection spread throughout Thomas’s body, and he was 

still suffering from an infection when he was admitted to the hospital the final time 

in October 2015. 

We note that the Estate provided no citation to the appellate record to 

support its assertions regarding the contents of the medical records. Regardless, 

we agree with the court that the processes involved in the development of a wound 

during a hospital admission–especially considering Thomas’s multiple medical 

conditions–and the onset and spread of infection are not within the general 

knowledge of a layperson. See Nalley v. Banis, 240 S.W.3d 658 (Ky. App. 2007) 
-9-

(affirming the inapplicability of res ipsa loquitur where layperson could not have 

determined whether the infection the patient developed after two surgical 

procedures was caused by defendants’ negligence) and Harmon v. Rust, 420 

S.W.2d 563, 564 (Ky. 1967) (affirming summary judgment where expert witness 

was not retained and layperson was without sufficient general knowledge to 

recognize that infection after skin transplant and treatment of severe burns is the 

result of negligence). Accordingly, the court did not abuse its discretion in 

determining that the doctrine did not apply. 

The Estate’s next claim is that the court erred in excluding Dr. 

Jackson’s testimony. The standard of review for evidentiary issues is abuse of 

discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007). The trial 

court’s factual findings “shall not be set aside unless clearly erroneous[.]” CR 

52.01; see also A & A Mechanical, Inc., v. Thermal Equip. Sales, Inc., 998 S.W.2d 

505, 509 (Ky. App. 1999). A finding is not clearly erroneous if it is supported by 

substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 

409, 414 (Ky. 1998).

As an initial point, the Estate posits that, where there is no assertion 

Dr. Jackson does not qualify as an expert, it is per se erroneous for the court to 

preclude a jury from hearing his testimony. We disagree. The law has long 

recognized that the trial judge acts as a gatekeeper regarding the admission of 
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expert testimony, a role which extends beyond merely ensuring a witness’s 

qualifications. In Mitchell v. Commonwealth, 908 S.W.2d 100 (Ky. 1995),

overruled on other grounds by Fugate v. Commonwealth, 993 S.W.2d 931 (Ky. 

1999), the Supreme Court of Kentucky adopted the standard of review articulated 

in Daubert, 509 U.S. 579, 113 S. Ct. 2786, which requires a court to determine

whether the testimony is both relevant and reliable. 

Likewise, KRE 702 provides: 

If scientific, technical, or other specialized knowledge 

will assist the trier of fact to understand the evidence or 

to determine a fact in issue, a witness qualified as an 

expert by knowledge, skill, experience, training, or 

education, may testify thereto in the form of an opinion 

or otherwise, if: 

(1) The testimony is based upon sufficient facts or data; 

(2) The testimony is the product of reliable principles and 

methods; and 

(3) The witness has applied the principles and methods 

reliably to the facts of the case.

(Emphasis added.) 

As the law clearly obligates the court to consider the substance of the 

testimony itself, the Estate’s claim is without merit. 

The Estate challenges the court’s findings that Dr. Jackson’s 

testimony was not based upon sufficient facts or data. Specifically, the Estate 

argues the court erred in accepting without evidence that the medical records from 
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the relevant admission were 2,374 pages–instead of the 150 pages asserted by the 

Estate and which Dr. Jackson reviewed–and that specific skin integrity records 

exist which Dr. Jackson did not review. On these matters, we must agree. The 

only support for these findings in the record comes from the arguments of the 

parties, which are not evidence. Chipman v. Commonwealth, 313 S.W.3d 95, 99-

101 (Ky. 2010). 

However, the court’s decision rested on more than these findings and 

was supported by the record where Dr. Jackson admitted he did not review relevant 

portions of the medical records. Further, Dr. Jackson admitted he did not know 

critical information regarding Appellees’ care of Thomas. While the Estate argues 

this is because Thomas received no skin integrity care and asserts the medical 

record contains no relevant information, this is not supported by the record. Dr. 

Jackson merely testified he did not know, not that the information was not in the 

records or that no protective actions were taken by the Appellees. 

Relatedly, the court determined that Dr. Jackson’s testimony 

regarding breach of standard of care was not the product of reliable principles and 

methods where Dr. Jackson made it clear that he did not need to know the specifics 

of Appellees’ actions because, in his view, skin integrity issues are always 

preventable, and negligence is presumed if a wound occurs. As the court noted, 

this is not consistent with Kentucky law which precludes indulging in a 
-12-

presumption of negligence based on the mere evidence of a bad result. Andrew v. 

Begley, 203 S.W.3d 165, 170-71 (Ky. App. 2006) (citing Meador, 94 S.W.2d at 

631). This finding is not clearly erroneous. 

Likewise, the court’s finding that Dr. Jackson’s causation opinion was 

not the product of reliable principles and methods is supported by the record. It is 

well settled that the reasoning or methodology underlying an expert’s testimony 

must be scientifically valid and capable of being properly applied to the facts. 

Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)

(citing Daubert, 509 U.S. at 592, 113 S. Ct. at 2796; KRE 702). Opinions based 

on nothing more than an expert’s assertion of fact do not meet this standard. Id. 

Herein, Dr. Jackson’s opinion regarding causation (that an infection 

started in the coccyx wound before migrating to the knee and then causing 

recurrent infections and contributing to Thomas’s death) was only supported by his 

bold assertion that he has seen similar cases. Dr. Jackson provided no details

regarding these cases or even identified how they were similar. Further, when 

pressed, Dr. Jackson was not able to articulate a specific basis supporting his 

opinion, such as infection cultures, nor did he attempt to articulate any general 

medical basis for his opinion, such as known properties of infections. 

Because the court’s findings (that Dr. Jackson’s testimony was not 

based upon sufficient facts or data and that it was not the product of reliable 
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principles and methods) are supported by the record, the court did not abuse its 

discretion in excluding the testimony. 

Finally, the Estate contends that the court erred in granting summary 

judgment. Summary judgment is appropriate if “there is no genuine issue as to any 

material fact and . . . the moving party is entitled to a judgment as a matter of law.” 

CR 56.03. “The record must be viewed in a light most favorable to the party 

opposing the motion for summary judgment and all doubts are to be resolved in his 

favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 

1991). However, the party opposing the motion cannot merely rely upon his own 

claims or arguments but must demonstrate significant evidence to prevail. Wymer 

v. JH Props., Inc., 50 S.W.3d 195, 199 (Ky. 2001). We review de novo. Hallahan 

v. The Courier-Journal, 138 S.W.3d 699, 705 (Ky. App. 2004).

Herein, the Estate argues that it established a genuine issue of material 

fact through Dr. Jackson’s testimony and regarding its vicarious liability claim. It 

further argues the court made a factual error regarding the applicability of an 

admission consent form. Having affirmed the court’s decision to exclude Dr. 

Jackson’s testimony, as well as its decision that res ipsa loquitur does not apply, it 

necessarily follows that neither can serve as a basis to preclude summary 

judgment. Additionally, as vicarious liability requires a negligent agent, it further 

follows that summary judgment on the negligence and wrongful death claims 
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necessitates summary judgment as to vicarious liability premised on the same 

facts. See Cohen v. Alliant Enters., Inc., 60 S.W.3d 536 (Ky. 2001). Thus, this 

claim also fails. 

As we have affirmed the court’s grant of summary judgment, we need 

not address the Estate’s claims regarding the court’s rulings on the motions in 

limine. Further, as we have determined that the court did not err in its rulings, the 

Estate’s claim of cumulative error is also without merit. 

CONCLUSION

Therefore, and for the foregoing reasons, the Fayette Circuit Court’s 

orders granting summary judgment, denying the applicability of res ipsa loquitur, 

and excluding the Estate’s expert are affirmed.

McNEILL, JUDGE, CONCURS.

THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY AND 

FILES SEPARATE OPINION.

THOMPSON, K., JUDGE, CONCURRING IN RESULT: I concur 

with the well-written Opinion by the majority, however differ as to my analysis to 

achieve the same result.

Mr. Thomas presented not only a complex prior medical history but 

also multiple comorbidities concurrent with his hospitalization. He also discharged 

himself against medical advice from the rehabilitation facility after only three days. 
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There is no medical evidence in the record of infection at the site of the bedsore 

upon either his discharge from the hospital or from the rehabilitation facility.

But for Mr. Thomas’s own resistance to treatment, his bedsore could 

have been treated and the potential for any further injury or resultant infection 

ameliorated. Further, the developed facts of Mr. Thomas’s case exhibit no causal 

connection between the occurrence of the bedsore and either his later infection or 

his death within the realm of reasonable medical probability.

However, and to be clear, with a different factual situation, I believe 

the incidence of bedsores, and any further injuries resultant therefrom, could 

warrant the application of res ipsa loquitur.

And for those reasons, I concur with the result of the majority. 
-16-

BRIEF FOR APPELLANTS:

Gerry L. Harris

Lexington, Kentucky

BRIEF FOR APPELLEES

KENTUCKYONE HEALTH 

PARTNERS, LLC; KENTUCKYONE 

HEALTH, INC.; AND SAINT 

JOSEPH HEALTHCARE, INC.

D/B/A SAINT JOSEPH HEALTH 

SYSTEM INC. A/K/A SAINT 

JOSEPH HOSPITAL:

Jeffery T. Barnett

Kimberly G. DeSimone

Lexington, Kentucky

BRIEF FOR APPELLEE JESSE 

SABIITI, M.D.:

Clayton L. Robinson

Nick W. Edwards

Lexington, Kentucky