Razorback Cab v. Amon , 498 S.W.3d 346 ( 2016 )

Cite as 2016 Ark. App. 352
ARKANSAS COURT OF APPEALS
DIVISION IV
No.CV-15-946
Opinion Delivered August 24, 2016
RAZORBACK CAB OF FORT SMITH,
INC., and MARK NUNEZ APPEAL FROM THE SEBASTIAN
APPELLANTS COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT
[NO. CV-2013-906]
V.
HONORABLE J. MICHAEL
FITZHUGH, JUDGE
DANAYE AMON
APPELLEE AFFIRMED
M. MICHAEL KINARD, Judge
In this car-accident case, appellants Razorback Cab of Fort Smith and Mark Nunez
(collectively “Razorback”) appeal from a $50,000 judgment in favor of appellee Danaye
Amon. Razorback argues that the circuit court erred in various rulings during the course of
trial. We affirm.
I. Facts
The accident occurred on January 15, 2013, at the intersection of Towson Avenue and
Fresno Street in Fort Smith. Amon was driving north in the inside lane of Towson when the
vehicle in front of her moved left into a center turn lane. Amon continued into the Fresno
intersection at the posted speed limit of forty miles per hour. On the other side of the
intersection, facing south, Mark Nunez was driving a Razorback Cab minivan and waiting
to turn left onto Fresno. He began his turn but did not see Amon coming toward him and
Cite as 2016 Ark. App. 352
collided with her in the middle of the intersection. Amon’s vehicle veered right and came
to rest after striking a railroad-crossing post.1
Following the accident, Amon was transported by ambulance to the emergency room
where she complained of hand, leg, and foot pain. X-rays showed no broken bones or other
serious injuries, so Amon was released with anti-inflammatory and pain medications and was
instructed to follow up with her primary-care physician. Amon later developed back and
neck pain, for which she saw several doctors, including a pain-management specialist; received
additional pain medications and muscle relaxers; and visited a chiropractor. By the end of
April 2013, Amon’s medical doctors had released her from treatment. Her chiropractic
treatment continued through April.
In September 2013, Amon sued Razorback for negligence in connection with the
wreck. Razorback defended primarily on the grounds that Amon was partly at fault and that
her injuries were exaggerated or preexisting. Following a two-day trial, the jury found
Razorback wholly at fault and awarded Amon $50,000, which included compensation for
medical bills, pain and suffering, and vehicular damage. The circuit court entered judgment
on the verdict and denied Razorback’s motion for a new trial. This appeal followed.
II. Closing Arguments
Razorback’s first argument is that Amon’s counsel made an improper “send-a-
message” statement to the jury during trial. A send-a-message statement is one in which the
1
The railroad intervened below and recovered $4,933.23 from Razorback for damage
to the crossing post. The railroad is not a party to this appeal.
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plaintiff in a civil trial asks the jury to award damages for purposes of punishment and
deterrence rather than compensation. Such statements are generally prohibited in cases where,
like this one, no punitive damages are sought. See Stecker v. First Commercial Trust Co., 331
Ark. 452, 962 S.W.2d 792 (1998).
The send-a-message issue arose at trial during the rebuttal portion of Amon’s closing
arguments when her counsel made the following remark:
They [Razorback] are going to keep running until someone catches them and says, it
stops here, and that is what I am asking you to do, to step up and let them know that
safety matters in Arkansas.
Razorback objected, noting that the court had granted a motion in limine prohibiting send-a-
message statements, and asked that the jury be instructed to disregard the remark. The court
declined to do so and instead told Amon’s counsel, “Don’t go any further than that.” Amon’s
counsel quickly completed his closing argument, and Razorback made no more objections.
Following the entry of judgment, Razorback moved for a new trial, which the court denied.
Razorback now appeals the court’s rulings.
Our standard of review imposes a heavy burden on Razorback to demonstrate grounds
for reversal. We accord wide discretion to the circuit court in controlling, supervising, and
determining the propriety of counsel’s closing arguments. National Bank of Commerce v. Quirk,
323 Ark. 769, 918 S.W.2d 138 (1996). We will not reverse a circuit court’s ruling regarding
a closing argument absent a manifest abuse of discretion. Id. An abuse of discretion occurs
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when the circuit court acts improvidently or thoughtlessly, without due consideration. Milner
v. Luttrell, 2011 Ark. App. 297, 384 S.W.3d 1.
We cannot say that the circuit court abused its discretion in this instance. The remark
by Amon’s counsel merely echoed his overriding theme that Razorback was “running” from
its responsibilities by blaming Amon for the accident and failing to produce Mr. Nunez as a
witness at trial.2 Moreover, Amon’s closing arguments, when viewed in their entirety, can
reasonably be viewed as a plea to hold Razorback liable for the accident, rather than a plea
to punish Razorback. See Stecker, supra (holding that a plaintiff’s argument, when viewed in
its entirety, did not constitute a plea for punitive damages); Nishihama v. City and County of
San Francisco, 112 Cal. Rptr. 2d 861 (Cal. Ct. App. 2001) (holding that an alleged send-a-
message argument was less a plea for punitive damages than a plea for a verdict of liability).
In light of these circumstances, coupled with our strict standard of review, we find no
reversible error in the circuit court’s exercise of its considerable discretion in this area.
III. Deposition and Medical Notes of Dr. Collins
Razorback next argues that the circuit court erred in excluding the deposition
testimony of Dr. Vera Collins and in redacting the doctor’s medical notes to remove
references to Amon’s psychiatric treatment and alleged “drug-seeking” behavior.
Amon’s visit to Dr. Collins occurred in mid-April 2013—after Amon had been
released by her car-accident physicians but shortly before she completed her chiropractic
2
Nunez’s deposition was read into evidence.
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treatment. It is undisputed that Amon did not seek additional pain medications or muscle
relaxers from Dr. Collins for her car-accident injuries. Rather, Amon presented to Dr.
Collins with “complaints of recurrent anxiety, which she claims to have had for the past
several years.” Dr. Collins’s notes recited a somewhat inaccurate history of Amon’s recent
medical treatment and medications; quoted Amon’s statement that she could not get in to see
her psychiatrist that week and needed “something for anxiety now”; and concluded with a
strong suspicion that Amon was engaging in “drug-seeking behavior.” The doctor prescribed
Buspar (an anti-anxiety medication) for Amon and advised her to keep her appointment with
her psychiatrist. The doctor also conducted a general exam of Amon and found no
musculoskeletal issues, gait problems, or back/neck problems.
Before trial, Amon moved to exclude Dr. Collins’s notes on the grounds that they
were irrelevant or more prejudicial than probative, given that her visit to Dr. Collins was not
related to the car accident. The court admitted the notes into evidence but redacted those
portions referring to Amon’s psychiatrist and her alleged drug-seeking behavior. Still, the
court ruled that the unredacted notes might be admissible if the doctor were available to
testify at trial and clarify her remarks about the drug-seeking behavior.
Not long thereafter, Razorback took Dr. Collins’s deposition. The doctor testified that
she did not remember Amon but that, based on her notes; her interaction with Amon; her
review of Amon’s other medical records; and the fact that Amon was already “under a chronic
pain management program,” it was her opinion that Amon was drug-seeking. On cross-
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examination, Dr. Collins acknowledged that she did not treat Amon for pain and that her
notes did not reflect any request by Amon for pain medications or muscle relaxers. However,
when Amon’s counsel attempted to probe further into the basis for the doctor’s drug-seeking
diagnosis and asked the doctor to reexamine the records from Amon’s car-accident physicians,
the doctor’s personal attorney, who was present during the deposition, objected and stated
that the doctor was “not here as an expert witness.” The attorney further said that the doctor
was “not going to review other documents and form opinions.”
After the deposition had been taken, Razorback moved to introduce it into evidence.3
The court refused on the ground that Amon’s cross-examination of Dr. Collins had been
impeded by the doctor’s attorney. Razorback now argues that the circuit court erred in its
evidentiary ruling.
The decision to admit or exclude evidence is within the sound discretion of the circuit
court, and we will not reverse that decision absent a manifest abuse of discretion. Brumley v.
Keech, 2012 Ark. 263. Also, a circuit court’s evidentiary ruling will not be reversed absent a
showing of prejudice or that a substantial right of the appellant is affected. Howard v. Adams,
2016 Ark. App. 222, ___ S.W.3d ___.
We first address the circuit court’s decision to redact the psychiatric and drug-seeking
references in Dr. Collins’s notes. We see no abuse of discretion in this ruling. The evidence
showed that Amon had a chronic anxiety issue and presented to Dr. Collins solely for
3
The doctor was out of the country on the date of trial.
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treatment of that issue. Amon sought no compensation from Razorback for her visit to Dr.
Collins or for any anxiety problems or other psychiatric problems. Moreover, none of
Amon’s records from her previous treating physicians stated that she was drug-seeking or that
she was receiving anything more than the ordinary doses of pain and other medications for
her car-wreck injuries. Thus, the circuit court may well have reasoned that Dr. Collins’s
redacted notations bore little, if any, relevance to Amon’s case against Razorback.
We also see no abuse of discretion in the court’s decision to exclude Dr. Collins’s
deposition testimony. It is important to note that Razorback presented Dr. Collins as both
an expert witness and a fact witness. An expert may be required to disclose underlying data
or facts on cross-examination. Ark. R. Evid. 705. Additionally, expert testimony is subject
to being stricken if the expert is unresponsive or resistant during his or her examination. See
generally McCoy v. Montgomery, 370 Ark. 333, 259 S.W.3d 430 (2007) (applying the abuse-of-
discretion standard in affirming the circuit court’s decision to strike an expert’s deposition
testimony for lack of responsiveness). Here, Dr. Collins was forthcoming while testifying on
direct examination that Amon was drug-seeking. However, when Amon tried to elicit more
information during cross-examination on the subject, the doctor’s attorney restricted her
testimony and stated that the doctor would not serve as an expert witness. Given Amon’s
inability to conduct a thorough cross-examination of Dr. Collins with regard to her expert
opinion, and, consequently, the jury’s lack of opportunity to fully evaluate the basis for Dr.
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Collins’s expert opinion, the circuit court was understandably reluctant to admit Dr. Collins’s
deposition into evidence.
Razorback argues, however, that Dr. Collins’s deposition testimony should have been
admitted as a fact witness because her testimony cast doubt on whether all of Amon’s medical
bills were related to the car accident. In particular, Razorback cites the fact that Amon
continued with her chiropractic care after her mid-April visit to Dr. Collins, even though Dr.
Collins testified that Amon suffered no musculoskeletal, neck, or back issues at that time.
This admittedly impeaching proof, however, came into evidence through another
source—the doctor’s own notes. The notes clearly reflected the doctor’s finding that Amon
was not suffering from these types of physical ailments at the time of her mid-April visit.
Exclusion of evidence is not prejudicial if the same evidence was introduced through another
source and was before the jury for its consideration. See generally Findley v. State, 307 Ark. 53,
818 S.W.2d 242 (1991).
Razorback also notes that one of Amon’s previous treating physicians, Dr. Weddle,
indicated that there was “a large anxiety component” to Amon’s complaints of pain from the
wreck. But, as previously mentioned, Amon sought no compensation from Razorback for
anxiety as the result of the car accident. Both Dr. Collins’s notes and Amon’s own testimony
showed that Amon’s visit to Dr. Collins was for the purpose of treating long-standing anxiety
issues. Moreover, Dr. Weddle’s notes were admitted into evidence, thus allowing the jury to
determine if any of Amon’s complaints were anxiety-based rather than caused by the accident.
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For these reasons, we find no reversible error on this point.
IV. Cross-Examination of Dr. Silver/Discovery Issue
Before trial, Amon propounded interrogatories and requests for production to
Razorback, seeking information about exhibits or other items of demonstrative evidence that
Razorback would use at trial. These included a request that Razorback identify items to be
used in connection with cross-examination or impeachment. Razorback objected to this
interrogatory in part but otherwise stated that it would supplement its response.
At trial, Amon’s discovery requests became pertinent during the testimony of Amon’s
pain-management specialist, Dr. Danny Silver. Dr. Silver testified that he treated Amon on
three occasions, during which he prescribed pain medication, and that Amon received proper
care from her chiropractor. Razorback sought to impeach Dr. Silver’s testimony with (1) a
2011 letter of public concern from a medical board in North Carolina, where Dr. Silver had
previously practiced; (2) three Social-Security-disability cases in which Dr. Silver’s assessment
of a patient’s disability was allegedly discounted by an administrative law judge; and (3)
records of a 2014 proceeding before the Arkansas Medical Board. The circuit court refused
to allow Razorback to use these documents because Razorback had not provided them to
Amon during discovery. We review the circuit court’s decision for an abuse of discretion.
Poff v. Elkins, 2014 Ark. App. 663, 449 S.W.3d 315 (discovery rulings); Brumley, supra
(evidentiary rulings).
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A court may impose discovery sanctions when a party fails to supplement its discovery
responses. Ark. R. Civ. P. 37(e). Here, the circuit court apparently determined that, in
fairness, Razorback should have provided the above-mentioned documents to Amon so that
she could prepare Dr. Silver for cross-examination and possible impeachment. The court’s
concern was reasonable considering that Amon’s discovery asked for this particular type of
document. Razorback argues, however, that the documents in question were public records
and therefore freely available to Amon. Regardless of the public nature of the documents, the
relevant point is that, due to Razorback’s discovery violation, Amon was left unaware that
Razorback would use the documents at trial. We therefore find no abuse of discretion in the
court’s ruling.
On a related matter, Razorback argues that the circuit court erroneously allowed Dr.
Silver to offer a nonresponsive “soliloquy” during cross-examination in which he explained
at length a 2010 ruling against him by the Arkansas Medical Board. We defer to the court’s
broad discretion to exercise reasonable control over the mode of interrogating witnesses, Ark.
R. Evid. 611(a) & (b), and decline to reverse on this basis.
V. Cross-Examination of Amon
Razorback argues next that the redaction of Dr. Collins’s medical notes interfered with
its ability to cross-examine Amon as to the nature and extent of her injuries. We adequately
covered this point under an earlier heading and need not address it further.
VI. Denial of New Trial
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According to Razorback, the abovementioned errors by the circuit court warranted
a new trial. As we have found no reversible error to this point, Razorback’s argument is not
well taken.
Razorback does add one argument. It contends that Amon must have been partly at
fault for the accident because she was driving the speed limit (forty miles per hour) when
approaching the Towson-Fresno intersection, which contained a railroad crossing. Razorback
cites Arkansas Code Annotated section 27-51-201(d) (Repl. 2010), which provides that a
vehicle shall be driven at an appropriate reduced speed when approaching an intersection or
a railway crossing.
A new trial was not required. The jury could reasonably have found that, regardless
of Amon’s speed, Razorback was wholly responsible for the accident because Nunez turned
in front of Amon. Further, even if it could be said that Amon violated section 27-51-201,
violation of a statute is not necessarily negligence but only evidence of negligence to be
considered with all other facts and circumstances of the case, as the jury was instructed. See
AMI Civ. 601 (2016).
VII. Jury Instruction
Finally, Razorback argues that the court erred in failing to give the following proffered
instruction:
It is for you, the jury, to determine whether speed, under conditions existing, was
reasonable and prudent. A posted speed limit only fixes the maximum speed allowed,
and does not give a driver the right to drive that fast under any and all conditions.
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Obeying the speed limit is not all that is required of drivers in the exercise of ordinary
care.
We cannot agree. It is not error for the circuit court to refuse a proffered instruction
when the stated matter is correctly covered by other instructions. Edwards v. Stills, 335 Ark.
470, 984 S.W.2d 366 (1998). Here, the court instructed the jury that it is the duty of a driver
to operate her vehicle at a speed no greater than is reasonable and prudent under the
circumstances and that the vehicle must be operated at an appropriate reduced speed when
approaching an intersection or a railway crossing. These instructions do not differ in any
significant way from the proffered instruction.
VIII. Pending Motion
Amon asks us to strike a portion of Razorback’s reply brief. In light of our disposition
of the case, we deem the motion moot.
Affirmed.
WHITEAKER and HIXSON, JJ., agree.
Skinner Law Firm, P.A., by: Jack Skinner, for appellants.
The Buckley Firm, by: William A. Buckley III, for appellee.
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