RENDERED: SEPTEMBER 11, 2020; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2017-CA-001656-MR

JENNIFER FORD, M.D. APPELLANT

ON REMAND FROM THE SUPREME COURT OF KENTUCKY

APPEAL NO. 2019-SC-000435-DG

APPEAL FROM JEFFERSON CIRCUIT COURT

v. HONORABLE BRIAN C. EDWARDS, JUDGE

ACTION NO. 15-CI-001368

STEVEN J. REISS, M.D.; AND

BAPTIST HEALTH MEDICAL 

GROUP, INC., D/B/A BAPTIST 

NEUROLOGICAL SURGERY APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: LAMBERT, MAZE, AND TAYLOR, JUDGES.

LAMBERT, JUDGE: Jennifer Ford, M.D. appealed from a final judgment of the 

Jefferson Circuit Court in favor of appellee Baptist Health Medical Group, Inc. 

(“Baptist Health”) in Ford’s medical negligence claim. She argued that the trial 
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court failed to strike three jurors for cause, erred in ruling on an evidentiary issue, 

and erroneously permitted Baptist Health to present inappropriate burden of proof 

arguments during voir dire. We affirmed in an opinion rendered May 3, 2019, 

holding, in part, that Ford did not properly preserve her juror strike issue pursuant 

to Gabbard v. Commonwealth, 297 S.W.3d 844, 854 (Ky. 2009), because she 

failed to identify additional jurors she would have stricken with a peremptory 

challenge on her strike sheet after the trial court refused to strike them for cause.

Ford filed a motion for discretionary review with the Supreme Court of Kentucky, 

which the Court granted in an opinion and order entered February 12, 2020. In that 

opinion and order, the Supreme Court vacated our original decision and remanded 

the case for further consideration in light of its recent decision in Floyd v. Neal, 

590 S.W.3d 245 (Ky. 2019). Having permitted the parties to file supplemental 

briefs addressing this case and further considering the matter, we again affirm, 

although this time on the merits. 

On March 23, 2015, Ford asserted a claim of medical negligence 

against Baptist Health in the Jefferson Circuit Court on the grounds that treating 

physician Steven J. Reiss, M.D. (“Dr. Reiss”) negligently failed to timely 

anticipate, identify, diagnose, and correctly address a rare neurosurgical emergency 
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called cauda equina syndrome.1 Ford initially asserted claims against Dr. Reiss, 

but all claims against him were dismissed before trial. Ford claimed she sustained 

permanent injuries as a result of the alleged negligence and was consequently 

entitled to an award of damages to recoup her medical expenses and lost wages and 

compensation for her pain and suffering. 

This matter proceeded to a jury trial against Baptist Health, beginning 

on April 25, 2017. After hearing the parties’ proof, a Jefferson County jury 

returned a verdict in favor of Baptist Health. On May 16, 2017, the trial court 

entered a judgment in accordance with the jury verdict. Ford subsequently moved 

for a new trial pursuant to Kentucky Rule of Civil Procedure (“CR”) 59.05, which 

was denied by order entered September 14, 2017. This appeal followed. 

Before we address the merits of Ford’s claims, we must address two 

procedural issues. First, Ford attempts to appeal from the trial court’s order 

denying a new trial. This Court has consistently held an “order denying [a] CR 

59.05 motion [is] an inherently interlocutory and non-appealable order.” Jones v. 

Livesay, 551 S.W.3d 47, 49 (Ky. App. 2018). When an appellant states she is 

 

1 As described in Ford’s brief, the cauda equina is a bundle of nerves that hang in a free-floating 

manner at the end of the spinal cord and resemble a horse’s tail. These nerves control the 

sensory and motor functions of the bladder, rectum, anus, perineum/labia/vagina, and parts of the 

legs. Permanent injury can lead to permanent incontinence in bowel and bladder, foot drop, and 

other injuries. The cauda equina nerves are susceptible to permanent injury from compression, 

such as from a herniated disc, because they do not have the protective coating possessed by other 

nerves in the spinal cord. 
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appealing the interlocutory order denying CR 59.05 relief, we should ignore it 

because “[t]here is no appellate jurisdiction over the typical interlocutory order.” 

Cassetty v. Commonwealth, 495 S.W.3d 129, 132 (Ky. 2016). Therefore, we 

address only the issues Ford raises as to the final judgment. 

Second, Ford’s brief is deficient. Although not commented on by 

Baptist Health, Ford’s brief lacks a preservation statement for each argument. CR 

76.12(4)(c)(v) requires a statement of preservation: 

so that we, the reviewing Court, can be confident the 

issue was properly presented to the trial court and 

therefore, is appropriate for our consideration. It also has 

a bearing on whether we employ the recognized standard 

of review, or in the case of an unpreserved error, whether 

palpable error review is being requested and may be 

granted. 

Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). “Our options when an 

appellate advocate fails to abide by the rules are: (1) to ignore the deficiency and 

proceed with the review; (2) to strike the brief or its offending portions, CR 

76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice 

only[.]” Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). In this case, we 

elect to ignore the deficiency because Ford’s recitation of the procedural history 

contains numerous cites to the record. 

For her first argument, Ford asserts the trial court erred when it failed 

to strike three jurors for cause, forcing her to use peremptory strikes to eliminate 
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them from the pool. Ford further argues she would have used her peremptory 

strikes to eliminate potential jurors who were insurance company employees or 

were otherwise objectionable (specifically, Juror Numbers 14, 5, and 28; Juror 

Numbers 14 and 28 were sworn in as members of the jury, and Juror Number 14 

was the foreperson). 

Although Baptist Health did not raise a preservation issue in its brief, 

we originally held that Ford’s argument was not properly preserved for appellate 

review, citing Gabbard, 297 S.W.3d at 854 (“[I]n order to complain on appeal that 

[she] was denied a peremptory challenge by a trial judge’s erroneous failure to 

grant a for-cause strike, the [party] must identify on [her] strike sheet any 

additional jurors [she] would have struck.”); and Grubb v. Norton Hospitals, Inc., 

401 S.W.3d 483, 487 (Ky. 2013) (extending the requirement in Gabbard to civil 

cases). While Ford orally informed the trial court which jurors she would have 

struck had it granted the requested for-cause strikes, her strike sheet lacked any 

such notation. Because the Supreme Court of Kentucky made clear in Paulley v. 

Commonwealth, 323 S.W.3d 715, 720 (Ky. 2010), that in “all cases tried after 

finality of our decision in Gabbard,” parties must identify on their strike sheet any 

additional jurors they would have struck in order to properly preserve the issue for 

appeal, and as Ford failed to do so, we held that we could not address her 

unpreserved argument. 
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In her petition for rehearing, Ford cited to the Supreme Court’s 

opinion of Sluss v. Commonwealth, 450 S.W.3d 279 (Ky. 2014), overruled on 

other grounds by Floyd, 590 S.W.3d 245, to support her argument that she had 

substantially complied with the preservation rule by orally stating the jurors on 

whom she would have used a peremptory strike had the jurors in question been 

stricken for cause. 

As to juror Booth, the ultimate issue as to 

preservation is whether Sluss complied with our holding 

in Gabbard that the defendant must identify on the strike 

sheet other jurors he would have struck. Sluss alleges 

that he “substantially complied” with Gabbard by stating 

orally on the record, during a request for additional 

peremptory challenges, that if he was granted additional 

challenges he would have struck four additional jurors, 

which he listed by name. This list included Joyce 

Hedges, who eventually sat on the jury. Sluss argues that 

this statement on the record was enough to preserve his 

challenge under Shane [v. Commonwealth, 243 S.W.3d 

336 (Ky. 2007),] and Gabbard. We agree.

Id. at 284-85. We denied the petition, and Ford sought discretionary review in the 

Supreme Court, which was granted as set forth above. We have now further 

considered our original holding as to preservation pursuant to the Supreme Court’s 

direction. 

In Floyd v. Neal, supra, the Supreme Court of Kentucky thoroughly 

examined the law on for-cause strike preservation, clarified the procedure 

necessary to preserve this argument for review, and prospectively overruled its 
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prior holding in Sluss on this issue. Discussing its holding in Sluss, the Supreme 

Court stated:

[T]his Court made a drastic change to the Gabbard

holding a year later in Sluss v. Commonwealth. . . . [The 

above-quoted passage from Sluss] was the entirety of the 

analysis on the issue of preservation. No supporting case 

law or reasoning for this change to the Gabbard rule was 

discussed. Further, the focus of Sluss was really about 

whether Juror Booth could have been rehabilitated under 

Montgomery v. Commonwealth, [819 S.W.2d 713 (Ky. 

1991),] and to clarify the holding in that case[.] The 

point being, Sluss resulted in a major sea change in the 

Gabbard jurisprudence when at its core it was not even 

about Gabbard. Therefore, the potential problems with 

altering the Gabbard rule in such a way were not 

sufficiently fleshed out. 

Floyd, 590 S.W.3d at 249-50 (footnotes and paragraph breaks omitted). 

The Court then set forth “a definitive statement of the procedure 

required to preserve a for cause strike error[.]” Id. at 250. That procedure consists 

of six steps:

(1) move to strike the juror for cause and be denied; (2) 

exercise a peremptory strike on said juror, and show the 

use of that peremptory strike on the strike sheet, and 

exhaust all other peremptory strikes; (3) clearly indicate 

by writing on her strike sheet the juror she would have 

used a peremptory strike on, had she not been forced to 

use a peremptory on the juror complained of for cause; 

(4) designate the same number of would-be peremptory 

strikes as the number of jurors complained of for cause; 

(5) the would-be peremptory strikes must be made 

known to the court prior to the jury being empaneled; and 

(6) the juror identified on the litigant’s strike sheet must 

ultimately sit on the jury.
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Id. at 252. The Court concluded by stating, “We also prospectively overrule Sluss 

v. Commonwealth’s holding that stating would-be peremptory strikes verbally on 

the record constitutes substantial compliance with Gabbard.” Id. 

In her supplemental memorandum related to the application of Floyd, 

Ford points out that the Supreme Court opted to prospectively overrule its holding 

in Sluss, meaning that Sluss was still good law when her case was tried in 2017. 

Ford then asserts that she had substantially complied with the preservation rule by 

orally stating the jurors she would have used a peremptory strike on had the jurors 

in question been stricken for cause. In its supplemental memorandum, Baptist 

Heath states that the Floyd Court describes Sluss as an aberration and questions 

why the Supreme Court would want this Court to revert to an analysis under Sluss

that would be inconsistent with its holding in Floyd. Because the Supreme Court 

specifically stated that it was prospectively overruling Sluss, we agree with Ford 

that Sluss still applied to her case and that she adequately preserved the issue for 

our review. Therefore, we shall consider the merits of Ford’s argument.2

 

2 Ford has provided this Court with supplemental authority from a recent opinion of the Supreme 

Court in which it confirmed that its holding in Floyd had prospective application: “We further 

note that, although Curry’s trial took place before this Court’s recent holdings in Floyd v. Neal, 

590 S.W.3d 245 (Ky. 2019) and Ward v. Commonwealth, 587 S.W.3d 312 (Ky. 2019), and is 

therefore not subject to their authority, Curry nonetheless also complied with their holdings 

regarding preservation of this issue.” Curry v. Commonwealth, No. 2019-SC-000306-MR, 2020 

WL 2831836, at *6 n.24 (Ky. May 28, 2020). Baptist Health objected to Ford’s citation to this 

supplemental authority, arguing that footnote 24 was referencing the rule in Gabbard, which 

remains the law in Kentucky. At the time of this writing, the opinion in Curry is not yet final, 
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In Ward, 587 S.W.3d at 327-28, the Supreme Court set forth law 

related to jury selection, recognizing the right to an impartial jury as a substantial 

right:

“Defendants are guaranteed the right to an 

impartial jury by the Sixth Amendment to the United 

States Constitution, as well as Section Eleven of the 

Kentucky Constitution. Denial of a defendant’s right to 

an impartial jury is a structural error.” Accordingly, we 

review claims of a tainted jury for structural error. As 

such, harmless error analysis is not appropriate, and 

prejudice is presumed.

Kentucky Rule of Criminal Procedure (“RCr”) 

9.36(1) identifies when a trial court should excuse a juror 

for cause: “When there is reasonable ground to believe 

that a prospective juror cannot render a fair and impartial 

verdict on the evidence, that juror shall be excused as not 

qualified.” A trial court’s decision on whether to strike a 

juror for cause is reviewed for abuse of discretion. 

“Ultimately, ‘[i]t is the totality of all the circumstances 

. . . and the prospective juror’s responses that must 

inform the trial court’s ruling.’” And “the mere fact that 

a prospective juror has been the victim of a crime like the 

crime being tried does not by itself imply a disqualifying 

bias. Additional evidence of bias is required.” “Obvious 

factors bearing on the likelihood of bias are the similarity 

between the crimes, the length of time since the 

prospective juror’s experience, and the degree of trauma 

the prospective juror suffered.”

 

and we did not rely on its holding to determine that Sluss applied in this case. Therefore, we 

shall deny this motion as moot in a separate order. However, even if we were to rely upon the 

Supreme Court’s statement in footnote 24, we disagree with Baptist Health’s interpretation of 

how that footnote applies to the present case. We believe that the footnote confirms that the 

holdings in Floyd and Ward would not apply in cases where the trial was held before those 

opinions were rendered, such as the trial in the present case. This means that Sluss was still good 

law when the trial was held in 2017. If that were not true, the Floyd Court would not have 

needed to specifically overrule Sluss. 
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At the same time, we must adhere to the principle 

“that objective bias renders a juror legally partial, despite 

his claim of impartiality.” It is the “probability of bias or 

prejudice that is determinative in ruling on a challenge 

for cause.” The trial judge must “weigh the probability 

of bias or prejudice based on the entirety of the juror’s 

responses and demeanor. There is no ‘magical question’ 

that can rehabilitate a juror as impartiality is not a 

technical question but a state of mind.”

(Footnotes omitted). With this in mind, we shall consider Ford’s argument.

In the present case, the trial court denied Ford’s motion to strike three 

jurors for cause: two who were receiving care and treatment from physicians 

employed by Baptist Health (Jurors 7 and 43) and one who was professionally 

acquainted with Dr. Reiss (Juror 19). We shall address Jurors 7 and 43 first. 

As she did below, Ford cites to Bowman ex rel. Bowman v. Perkins, 

135 S.W.3d 399 (Ky. 2004), in support of her argument the two jurors’ close 

relationship with Baptist Health through their physicians required that they be 

stricken for cause.

A trial court enjoys wide discretion in ruling upon 

challenges of prospective jurors for cause. 

Commonwealth, Dep’t of Highways v. Devillez, Ky., 400 

S.W.2d 520, 521 (1966). On the other hand, “[t]he 

prevailing rule is that a juror should be disqualified when 

the juror has a close relationship with a victim, a party or 

an attorney, even if the juror claims to be free from bias.” 

Butts v. Commonwealth, Ky., 953 S.W.2d 943, 945 

(1997). A trial court should presume the possibility of 

bias of a juror if said juror has “a close relationship, be it 

familial, financial or situational, with any of the parties, 

counsel, victims or witnesses,” regardless of the answers 
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said juror may give during voir dire. Ward v. 

Commonwealth, Ky., 695 S.W.2d 404, 407 (1985) 

(quoting Commonwealth v. Stamm, 286 Pa.Super. 409, 

429 A.2d 4, 7 (1981)). “Once that close relationship is 

established, without regard to protestations of lack of 

bias, the court should sustain a challenge for cause and 

excuse the juror.” Id.

In our view, a current and ongoing physicianpatient relationship is such a close relationship where a 

trial court should presume the possibility of bias. For 

that reason, we hold that a prospective juror who is a 

current patient of a defendant physician in a medical 

malpractice action should be discharged for cause.

Id. at 402. However, Bowman concerned a three-physician medical practice where 

the jurors in question had a physician/patient relationship with a named defendant, 

which is far different from the situation in this case. 

In its brief, Baptist Health describes the system as follows: “Baptist 

Health Medical Group, Inc. is a comprehensive network which includes more than 

800 physicians and advanced practice clinicians across Kentucky. Its providers 

represent more than 85 specialties. The Baptist Health organization consists of 8 

hospitals and more than 250 outpatient facilities and services.” We must agree 

with Baptist Health that Bowman is distinguishable from this case because neither 

of the potential jurors was a patient of Dr. Reiss, his partner, or his medical office. 

These jurors’ relationships with physicians in separate groups under the Baptist 

Health umbrella do not reach the close relationship set forth in Bowman. As the 

trial court ruled, merely being a patient of a doctor affiliated with Baptist Health is 
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not a close relationship necessitating the striking of that individual for cause. In 

addition, we disagree with Ford’s assertion that the potential jurors could believe 

that a threat to Baptist Health’s corporate entity also constituted a threat to their 

own physician. Therefore, we hold that the trial court did not abuse its discretion 

in denying Ford’s motion to strike Jurors 7 and 43 for cause. 

As to Juror 19, this juror stated that she had a professional 

acquaintance with Dr. Reiss, who was Ford’s treating physician – and whose 

treatment Ford was challenging in her action – as well as an expert witness for 

Baptist Health at trial. The trial court questioned this juror about her relationship 

with Dr. Reiss as follows:

Court: Does anyone here know Mr. Toner or any of the 

individuals that he just introduced? . . .

Juror: Just a professional acquaintance.

Court: Of which individual?

Juror: Of Dr. Reiss.

. . . .

Court: Do you believe that your knowledge of Dr. Reiss, 

would it get in the way of you being fair to Dr. Ford?

Juror: I don’t believe so.

Court: Think you could listen to the evidence, you 

wouldn’t start off leaning in favor of Dr. Reiss? 

Juror: I don’t think so.
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Based upon this examination and the lack of any follow-up questions by Ford as to 

this relationship, we agree with the trial court that there was no reason to presume 

bias as to Juror 19. We therefore hold that the trial court did not abuse its 

discretion in denying Ford’s motion to strike this juror for cause.

Second, Ford argues the trial court erred when it permitted Baptist 

Health to present an implicit comparative negligence defense after granting 

summary judgment on the issue. More specifically, Ford asserts Baptist Health 

was permitted to refer to her as a “sophisticated” patient because she is an 

obstetrician/gynecologist and argues this was a backdoor approach to place blame 

on her. We review a trial court’s evidentiary ruling for abuse of discretion. 

Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000); see 

also Pauly v. Chang, 498 S.W.3d 394, 411 (Ky. App. 2015). “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).

Ford raised this issue as an oral motion in limine during a pretrial 

conference. Although Ford did not submit a written motion in limine regarding 

references to her as “sophisticated,” the parties engaged the trial court in a lengthy 

discussion of Baptist Health’s ability to cross-examine Ford. The trial court denied 

Ford’s motion, despite previously granting summary judgment as to comparative 
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fault, stating, “I’m not going back or reversing my prior order, but I don’t think we 

need to make a blanket total prohibition, which I think would effectively prevent 

them from even cross-examining Dr. Ford.” The trial court further stated, “The 

jury knows that she’s a doctor. I don’t think that there’s any real prejudice that’s 

going to be created by saying that she’s a sophisticated patient. I mean, the jury 

knows that.” Although Ford’s brief cites to repeated references to her 

“sophistication” throughout the trial, her brief does not mention any 

contemporaneous objections to such references. However, “[m]otions in limine

can preserve issues for appellate review, provided they are sufficiently detailed 

about what the moving party intends to exclude.” Montgomery v. Commonwealth, 

505 S.W.3d 274, 280 (Ky. App. 2016) (citing Lanham v. Commonwealth, 171 

S.W.3d 14, 22 (Ky. 2005)). Based on our review of the pretrial hearing, Ford’s 

oral motion in limine was sufficiently specific as to the particular testimony she 

sought to exclude. 

Even though Ford preserved this issue for our review, her argument 

lacks merit. Our rules require litigants to provide this Court with “citations of 

authority pertinent to each issue of law[.]” CR 76.12(4)(c)(v). Ford provides no 

citation to authority in support of this argument and instead makes the unsupported 

argument that referring to her as “sophisticated” somehow implies she interfered 

with Baptist Health’s medical treatment and, thus, was partially at fault for her own 
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injuries. Pauly, 498 S.W.3d at 416. Her argument merely consists of conclusory 

statements and a self-serving interpretation of the facts without indicating to this 

Court what legal authority entitles her to relief on those facts. Without more, we 

will not further evaluate the trial court’s reason for denying Ford’s motion in 

limine regarding use of the word “sophistication” and say no more. 

Ford’s third argument is that the trial court erred in permitting Baptist

Health, during voir dire, to advise the jury the Plaintiff bore the burden of proof 

and to describe that burden. Ford further argues there is no burden of proof in a 

civil case. The trial court heard Ford’s objection and found that Baptist Health 

made no erroneous statements during voir dire. Ford requested the trial court 

admonish the jury that Baptist Health’s assertions regarding the burden of proof 

were incorrect. The trial court made no formal ruling but stated it would remind 

the jury “attorneys do not instruct on the law . . . and that the court has the sole 

obligation to provide the law and the instructions in the case.” The trial court 

indicated it would rule on the issue prior to opening statements. Ford failed to 

request a ruling at that time, so the trial court never directly ruled on the issue. 

“Our case law is well established that a failure to press a trial court for a ruling or 

an admonition on an objection or on a motion for relief operates as a waiver of that 

issue for purposes of appellate review.” Perkins v. Commonwealth, 237 S.W.3d 
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215, 223 (Ky. App. 2007). Thus, Ford waived this issue, so we cannot address her 

argument on appeal. 

For the foregoing reasons, we affirm the judgment of the Jefferson 

Circuit Court.

ALL CONCUR.

BRIEFS FOR APPELLANT:

William F. McMurry 

Mikell T. Grafton 

Louisville, Kentucky

BRIEF FOR APPELLEE BAPTIST 

HEALTH MEDICAL GROUP, INC.:

Gerald R. Toner 

Andie Brent Camden 

Caitlin E. Housley 

Louisville, Kentucky