RENDERED: DECEMBER 8, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0343-MR

JOHN MCGAUGHEY APPELLANT 

v. 

APPEAL FROM WOODFORD CIRCUIT COURT

HONORABLE KATHRYN H. GABHART, JUDGE

ACTION NO. 19-CI-00157

JENNY WARNICK APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND KAREM, JUDGES.

THOMPSON, CHIEF JUDGE: John McGaughey appeals from an order of the 

Woodford Circuit Court which denied his motion for a new trial. Appellant argues 

that he was entitled to a new trial due to attorney misconduct and because the trial 

court erroneously allowed certain testimony into evidence. We find no error and 

affirm. 
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FACTS AND PROCEDURAL HISTORY

On June 30, 2018, Appellant and Jenny Warnick were involved in a 

motor vehicle accident. At trial, Appellee claimed that while she was turning 

around in someone’s driveway, she looked to her left and saw Appellant and his 

motorcycle on the ground. Her theory at trial was that Appellant lost control of his 

motorcycle while coming around a nearby curve, causing him to crash. 

Appellant claimed that when he rounded the nearby curve, he saw 

Appellee’s car in both lanes of the road. Appellant then claimed that he did not 

have room to maneuver around the vehicle; therefore, he chose to “lay his 

motorcycle down” to prevent a crash. Both parties agree that there was no 

collision between the two vehicles.

The jury eventually returned a verdict finding both parties fifty 

percent at fault. Appellant later filed a motion for a new trial alleging attorney 

misconduct and the improper inclusion of evidence. The trial court denied the 

motion and this appeal followed. 

STANDARD OF REVIEW

Kentucky Rules of Civil Procedure (CR) 59.01 states:

A new trial may be granted to all or any of the parties and 

on all or part of the issues for any of the following 

causes:

(a) Irregularity in the proceedings of the court, jury or 

prevailing party, or an order of the court, or abuse of 
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discretion, by which the party was prevented from 

having a fair trial.

(b) Misconduct of the jury, of the prevailing party, or 

of his attorney.

(c) Accident or surprise which ordinary prudence 

could not have guarded against.

(d) Excessive or inadequate damages, appearing to 

have been given under the influence of passion or 

prejudice or in disregard of the evidence or the 

instructions of the court.

(e) Error in the assessment of the amount of recovery 

whether too large or too small.

(f) That the verdict is not sustained by sufficient 

evidence, or is contrary to law.

(g) Newly discovered evidence, material for the party 

applying, which he could not, with reasonable 

diligence, have discovered and produced at the trial.

(h) Errors of law occurring at the trial and objected to 

by the party under the provisions of these rules.

We review a trial court’s determination that grounds for a new trial exist under the 

clearly erroneous standard. If such grounds exist, we then review the decision 

whether to grant a new trial for abuse of discretion. Gibson v. Fuel Transport,

Inc., 410 S.W.3d 56, 62 (Ky. 2013).

ANALYSIS

Appellant’s first argument on appeal is that Appellee’s attorney 

referred to Appellant’s vehicle as unit one, which had been prohibited via a motion 
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in limine. Prior to trial, Appellant moved to prohibit the introduction of the police 

report created for this accident. Appellant also moved to preclude any mention 

that Appellant was named as “unit 1” in the report and Appellee was listed as a 

witness. Appellant believed that any reference to Appellant being named as “unit 

one” and Appellee being listed as a witness would cause the jury to infer that 

Appellant was the cause of the accident. In addition, Appellant believed that some 

members of the jury who had been in an accident or were related to police officers 

would know that a person named as “unit 1” in a police report would be considered 

by the police as the cause of the accident. This motion was granted.

During Appellant’s cross-examination, trial counsel for Appellee, 

Bradford Breeding, questioned Appellant about the accident and previous 

statements he made to the officer who created the accident report. Mr. Breeding 

began referencing Appellant’s statements made during a deposition. During the 

deposition, Appellant was asked about the accident report and references were 

made to him being “unit 1.” At trial, Mr. Breeding showed the deposition to 

Appellant and, in order to orient him to the section to which he was referring, 

stated that he was referring to the section where he was named as “unit 1.” 

Counsel for Appellant objected at the mention of “unit 1” and a bench 

conference was held. Mr. Breeding was reminded not to refer to “unit 1.” The 

trial court also admonished the jury not to consider the last question asked by Mr. 
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Breeding. Mr. Breeding then continued with Appellant’s cross-examination and 

again asked about statements he might have made to a police officer. During the 

course of answering the question, Appellant read a part of his prior deposition and 

stated he was described as “unit 1.”

At this point another bench conference was held and Mr. Breeding 

stated he would move on to a different line of questioning. After the bench 

conference, the trial court gave another admonition to the jury. The court told the 

jury to disregard the part of Appellant’s testimony where he read from his 

deposition and stated that any “reference to the term unit one carries no weight in 

this trial.”

Appellant claims on appeal that when defense counsel used the term 

unit one and the elicited testimony where the term was used again, counsel was 

committing misconduct. Appellant claims that the term should not have been used 

at trial due to the motion in limine and that counsel purposefully caused it to be 

said in front of the jury. Appellant believes that this caused the jury to infer that 

Appellant was the cause of the accident.

We believe the use of the term “unit 1” on two occasions, once by 

defense counsel and once by Appellant, does not amount to attorney misconduct. 

First, the statements were fleeting and admonitions were given by the court. 

Second, defense counsel moved on after the second use of the term and it was 
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never mentioned again. Third, we do not agree that the term “unit 1” is so 

common as to improperly influence the jury to infer that Appellant was the cause 

of the accident. While the use of the term was improper, we do not believe it 

influenced the jury to such a degree as to require a new trial. See Risen v. Pierce, 

807 S.W.2d 945, 949-50 (Ky. 1991). The trial court did not err in denying the 

motion for a new trial based on this issue.

Appellant’s second argument is that he was denied a fair trial because 

he was not given certain data from Appellee’s expert witness during discovery. 

Appellant categorizes this as attorney misconduct, for failing to turn over 

discoverable material, and as the trial court’s abuse of discretion, in allowing 

Appellee’s expert to testify over Appellant’s objection. 

Prior to trial, both parties revealed their experts and expert reports 

were exchanged. Later, counsel for Appellant requested an IDRR spreadsheet 

from Appellee’s expert.1 It appears as though the information contained in the 

spreadsheet was sent to Appellant’s counsel, but not the spreadsheet itself. 

Appellant’s counsel again asked for the spreadsheet. Appellee’s counsel discussed 

the issue with his expert and the creator of the software used to create the 

spreadsheet, and believed that releasing the spreadsheet itself would violate a 

1 The experts in this case used a specific computer program to help reconstruct the accident. 

This spreadsheet was used in those reconstructions.
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copyright and licensing agreement. Appellee’s counsel relayed this belief to 

Appellant’s counsel.

On the second day of trial, Appellant’s counsel raised the issue with 

the trial court. Counsel informed the court that Appellee’s counsel had not 

provided all the expert data she had requested. Appellee’s counsel indicated that 

he had provided everything possible and was unclear on what was still outstanding. 

Appellee’s counsel believed Appellant was still requesting the IDRR spreadsheet 

data. As counsel for Appellant, counsel for Appellee, and the trial judge discussed 

the issue, it was clear that there was some confusion over what was being 

requested. It was decided that the two experts would discuss the issue in front of 

the judge and the parties, but outside of the presence of the jury. 

This discussion later took place, and it was revealed that what 

Appellant was actually seeking was information regarding a “Realworks file.” 

This file was related to data used to create 3D reconstruction photographs of the 

accident scene. Appellee’s expert stated that this data could be turned over. Later 

in the day, Appellant’s counsel informed the court that a file purporting to be the 

Realworks file was sent to her, but it could not be opened. Appellant’s expert also 

believed the file was too small to be the Realworks file.2 Appellant’s counsel 

indicated that she did not object to the jury seeing the reconstruction photographs, 

2 The file could not be opened, but the size of the file that was sent could be determined. 
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but did not want them to be included into evidence. The trial court agreed and 

allowed Appellee to show the pictures to the jury, but did not allow them into 

evidence.3 

We find no error here. When discussing this issue, the trial judge 

indicated that she believed the lack of turning over the Realworks file was due to a 

miscommunication between the attorneys and was not intentional. We agree. It 

was not until the two experts discussed the issue with each other on the record that 

the exact nature of the discovery request was revealed. Appellee then attempted to 

turn over the data, but was unsuccessful. In addition, the trial court granted 

Appellant’s request to preclude the 3D images from being included into evidence. 

As this was an unintentional error, Appellant’s request for exclusion of some 

evidence was granted, and Appellant’s counsel thoroughly cross-examined 

Appellee’s expert, we agree with the trial court that a new trial was unnecessary.

Appellant’s final argument on appeal is that the trial court erred in 

allowing certain testimony from lay witness, Jason DeBold. Mr. DeBold could not 

appear live at trial; therefore, portions of his deposition were read to the jury. Mr. 

DeBold witnessed Appellant riding his motorcycle just before the accident. 

3 On appeal, Appellant claims that his trial counsel moved to exclude the entirety of the 

testimony of Appellee’s expert; however, Appellant provides no citation to the record where this 

request was made and we were unable to locate such a motion. The only request made regarding 

Appellee’s expert was that the 3D images not be allowed into evidence, and this was granted.
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Appellant sought to exclude portions of the testimony where Mr. DeBold stated he 

believed Appellant was speeding because the motorcycle made a sound that 

seemed as though it was accelerating. Mr. DeBold also stated that Appellant 

seemed to be “out of control” as he rounded the curve just before the accident site. 

Appellant believes this was improper opinion testimony. 

We disagree and find no error. A lay witness can testify as to his or 

her personal observations, including the speed of a vehicle. Davidson v.

Commonwealth, 548 S.W.3d 255, 260 (Ky. 2018); Clement Bros. Constr. Co. v.

Moore, 314 S.W.2d 526, 530 (Ky. 1958). Mr. DeBold’s statements that Appellant 

was speeding were based on what he saw and heard. In addition, his testimony that 

Appellant seemed to lose control of the motorcycle was also based on what he 

personally observed. Allowing this testimony into evidence was not error.

CONCLUSION

Based on the foregoing, we find no error. The trial court properly 

denied Appellant’s motion for a new trial.

ALL CONCUR.
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BRIEFS FOR APPELLANT:

Kirsten Daniel

Louisville, Kentucky

BRIEF FOR APPELLEE:

Bradford L. Breeding

G. Kirk Smith

Megan E.H. Jordan

London, Kentucky