Thomas John Kennedy of Arkansas v. Ausbrooks

Cite as 2016 Ark. App. 62
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-15-489
OPINION DELIVERED FEBRUARY 3, 2016
THOMAS JOHN KENNEDY OF
ARKANSAS, DDS, PC d/b/a
DENTURES AND DENTAL APPEAL FROM THE SALINE
SERVICES; DR. RICKY PERRY COUNTY CIRCUIT COURT,
APPELLANTS [NO. 63CV-11-780]
V. HONORABLE GRISHAM PHILLIPS,
JUDGE
BARBARA AUSBROOKS
APPELLEE AFFIRMED
ROBERT J. GLADWIN, Chief Judge
Appellants Thomas John Kennedy of Arkansas, DDS, PC, d/b/a Dentures and
Dental Services, and Dr. Ricky Perry appeal the order of the Saline County Circuit Court
granting appellee’s motion for a new trial. We affirm.
I. Facts
This appeal originated in 2011 when appellee Barbara Ausbrooks filed a malpractice
lawsuit under the Arkansas Medical Malpractice Act (the “AMMA”) against appellants
arising out of dental care and treatment she received from Dr. Perry in 2010 and 2011.
The four-day jury trial began on September 22, 2014. During the trial, appellee
presented evidence from two expert witnesses in the dental field, as well as another third-
party treating dentist and several lay witnesses. Appellants presented testimony from Dr.
Perry; a dental-expert witness, Dr. Richard Hixson; a treating dentist; a treating physician;
and an employee of the dental clinic.
Cite as 2016 Ark. App. 62
Shortly before the trial, appellee filed a motion in limine in which she argued that
the testimony of appellant’s expert, Dr. Hixson, should be excluded. Dr. Hixson testified in
his deposition that appellants “probably” fell within the standard of care, but he said he did
not know what the standard was; accordingly, his definition was inconsistent and therefore
inadmissible. Dr. Hixson’s deposition revealed, at best, that his “idea” of a standard of care
was a subjective standard. He testified that if there is no dental proclamation from the dental
board, then there is no standard of care in Arkansas. The circuit court denied appellee’s
motion in limine.
At trial, Dr. Hixson’s testimony on direct examination was cursory, and on cross-
examination, he was confrontational with appellee’s counsel and engaged in long narratives.
Appellee’s counsel requested that the jury be excused, and the circuit court attempted to
correct Dr. Hixson’s behavior. When the jury returned to the courtroom, Dr. Hixson
ignored the circuit court’s previous order. The circuit court stopped the proceedings a
second time, excused the jury again, and indicated its displeasure with Dr. Hixson’s
behavior.
On September 25, 2014, after hearing all the evidence introduced by the parties, the
instructions of the court, and the arguments of counsel, the jury returned a unanimous
verdict in favor of appellants. On September 29, 2014, appellee filed a motion for new trial
based on numerous grounds, including the contention that testimony from Dr. Hixson
“appealed to the jury’s prejudice” and “foreclosed other areas of cross examination.” In
support of her request for a new trial, appellee further cited “multiple irregularities and
2
Cite as 2016 Ark. App. 62
surprises,” including a record that reflected the fact that Dr. Hixson’s testimony “changed
at trial.”
A full hearing was held on appellee’s motion on November 6, 2014. After argument
from both parties, the circuit court found that Dr. Hixson’s answers to questions on cross-
examination were “over broad, over the line.” The circuit court further concluded that
“Dr. Hixson essentially accused [appellee’s trial counsel] of being dishonest, of trying to
trick the jury, of trying to fool the jury, and trying to make the jury feel foolish.” Although
the circuit court did not specifically articulate how its interpretation of Dr. Hixson’s
testimony impacted the jury’s decision or affected appellee’s rights at trial, on November 6,
2014, the circuit court granted appellee’s motion for new trial. Appellants filed a notice of
appeal on December 2, 2014, from the order granting appellee a new trial.
II. Standard of Review
This court will not reverse an order granting a new trial unless there has been a
manifest abuse of discretion. See Smith v. Hopper, 2015 Ark. 210, 462 S.W.3d 335. Manifest
abuse of discretion means a discretion improvidently exercised, i.e., exercised thoughtlessly
and without due consideration. English v. Robbins, 2014 Ark. 511, 452 S.W.3d 566. A circuit
court’s factual determination on a motion for a new trial will not be reversed unless clearly
erroneous. Id. at 4, 452 S.W.3d at 570. A showing of an abuse of discretion is more difficult
when a new trial has been granted because the party opposing the motion will have another
opportunity to prevail. Id. Accordingly, the party has less basis for a claim of prejudice than
does one who has unsuccessfully moved for a new trial. Id.
3
Cite as 2016 Ark. App. 62
III. Discussion
Appellants contend that the circuit court’s award of a new trial was an abuse of
discretion because no evidence was presented to suggest that appellee’s substantial rights
were materially affected. Rule 59(a) of the Arkansas Rules of Civil Procedure (2015)
provides that as a prerequisite to granting a new trial, the circuit court must first determine
that the stated basis for a new trial was “materially affecting the substantial rights” of the
moving party. Notably, our supreme court has held as follows with regard to the granting
of a new trial:
We have stated that ‘[a] verdict may not be set aside arbitrarily and without reasonable
cause.’ Granting a new trial on the basis that a witness was generally ‘nonresponsive’
is arbitrary and unreasonable. It invites abuse and threatens the right of trial by jury.
In practical effect it permits the trial court to substitute its view of the evidence for
that of the jury.
Suen v. Greene, 329 Ark. 455, 463, 947 S.W.2d 791, 796 (1997). In Suen, the circuit court’s
grounds for granting a new trial were based on conduct of the appellee’s counsel and because
the circuit court decided it had committed error in not striking the testimony of an expert
witness. Id. at 463–64, 947 S.W.2d at 796. With regard to the expert witness, our supreme
court noted as follows:
[W]e have not found any examples where the answers provided by Dr. Al-Mefty, or
the rulings of the trial court constituted irregularities in the proceedings which
prevented appellee from having a fair trial. . . . While Dr. Al-Mefty exhibited some
reluctance to give answers during cross examination, the trial court guided and
prodded with the result being that the appellee ultimately obtained an answer to each
question.
4
Cite as 2016 Ark. App. 62
Id. at 463, 947 S.W.2d at 795. The Suen court went on to note that “[i]t is well established
that the trial court should not substitute its view of the evidence for that of the jury.” Id. at
464, 947 S.W.2d at 796.
Appellants claim that the facts of this case are similar to those addressed by the Suen
court. Although the circuit court in this case had to admonish Dr. Hixson to answer the
questions and stop editorializing, appellants submit that Dr. Hixson ultimately complied
with that instruction, answered appellee’s counsel’s questions, and the cross-examination
was completed without incident.
Equally as important, appellants claim that appellee has presented no evidence to
suggest that Dr. Hixson’s testimony actually caused any impact on the jury or clear
articulation as to why the testimony negatively impacted appellee, and they maintain that
there is no objective indication of either in the record. Appellants assert that the circuit
court’s decision to grant a new trial based on its own opinion that the testimony was “over
the line,” without any objective evidence that the testimony actually affected the rights of
appellee, is nothing more than a circuit court substituting its view of the evidence for that
of the jury, which is not a permissible basis for granting a new trial under Arkansas law.
We disagree and hold that the circuit court was within its discretion to order a new
trial given the cumulative effect of allowing Dr. Hixson to testify as an expert, where he
had provided a subjective opinion as to the standard of care, had insufficient knowledge of
the facts concerning appellee’s case, and could not state with a reasonable degree of medical
certainty whether Dr. Perry had met the standard of care. Dr. Hixson then engaged in
5
Cite as 2016 Ark. App. 62
confrontational behavior as the final witness in the trial to such an extent that it prompted
the circuit court to halt the proceedings on two separate occasions.
Appellants next argue that the circuit court erred as a matter of law in granting a new
trial under Arkansas Rules of Civil Procedure 59(a)(1) and 59(a)(2). Those portions of Rule
59 read as follows:
(a) Grounds. A new trial may be granted to all or any of the parties and on all or part
of the claim on the application of the party aggrieved, for any of the following
grounds materially affecting the substantial rights of such party: (1) any irregularity
in the proceedings or any order of the court or abuse of discretion by which the
party was prevented from having a fair trial; (2) misconduct of the jury or prevailing
party . . . .
Ark. R. Civ. P. 59. Appellants note that our supreme court has held that a contemporaneous
objection is required when a new trial is sought on the basis of accident or surprise under
Rule 59(a)(3), as well as Rule 59(a)(8) of the Arkansas Rules of Civil Procedure. See Jones
v. Double “D” Properties, Inc., 352 Ark. 39, 98 S.W.3d 405 (2003); Jones Rigging & Heavy
Hauling, Inc. v. Parker, 347 Ark. 628, 66 S.W.3d 599 (2002). The justification for the
contemporaneous-objection requirement was articulated in Lee v. Daniel, 350 Ark. 466,
476–77, 91 S.W.3d 464, 470 (2002) (internal citations omitted):
In Selph v. State, this court noted that the reason for requiring an objection before
the trial court is to discourage ‘sandbagging’ on the part of lawyers who might
otherwise take a chance on a favorable result, and subsequently raise a constitutional
claim if the gamble did not pay off
As such, our supreme court has expressed a clear disfavor for allowing a party to withhold
seeking relief in the form of a mistrial or continuance in the face of apparent grounds for
new trial during the proceedings.
6
Cite as 2016 Ark. App. 62
Appellants point out that counsel for appellee never formally objected to any
testimony of Dr. Hixson. While acknowledging that counsel did request a break so that
counsel for appellants “[could] talk to his witness,” and later requested that “[s]omebody
can tell this man to answer my question in order,” both of which resulted in a halt in the
proceedings and the jury being excused, appellants focus on the fact that there was no formal
objection or specific argument or assertion by appellee’s counsel that Dr. Hixson’s testimony
was materially affecting the substantial rights of appellee. At no point did counsel for appellee
request a continuance, a mistrial, an instruction to the jury, or any other form of relief
indicative of a claim that the information was grounds for a new trial or even harmful to
appellee in general. Counsel for appellants was instructed to speak with Dr. Hixson as
requested by counsel for appellee. Without further objection from counsel for appellee, the
circuit court did sua sponte instruct Dr. Hixson to answer questions and refrain from making
abrasive remarks to counsel during cross-examination. Following that instruction, the cross-
examination continued to completion, and the jury ultimately found in favor of appellants
without any further objection or reference to Dr. Hixson’s testimony. Appellants urge that
the record before us confirms that appellee’s counsel received all relief requested with regard
to Dr. Hixson’s testimony.
Further, upon filing the motion for new trial, appellee’s counsel noted, for the very
first time, that, “[a]fter reflection, undersigned counsel moves the Court to grant a new
trial,” and for the first time contends that Dr. Hixson’s “testimony and demeanor” were
leading to juror reactions and constituted “irregularities and surprises that prevented a fair
trial.” Appellants note that none of these concerns were conveyed to the circuit court during
7
Cite as 2016 Ark. App. 62
the proceedings. And they assert that appellee cannot argue that those concerns were even
implied to the circuit court during the proceedings in light of the testimony in the record
quoted above.
Procedurally, we note that in Hopper, supra, our supreme court held that a failure to
object does not always prevent the circuit court from granting a new trial. It held that the
reason an objection is typically required is to apprise the circuit court of an error, and that
all that is “required” is that the error be directed to the circuit court’s attention in some
appropriate manner, so that the court has an opportunity to address the issue. Id., 462
S.W.3d 355 In Smith, the circuit court’s becoming aware of the error on its own was
sufficient for preservation of error. Here, appellee’s counsel filed a motion in limine before
trial related to Dr. Hixson’s testimony, and at trial, requested that the jury be excused, then
requested that Dr. Perry’s counsel speak with his witness in response to confrontational
behavior and narrative testimony. Appellee claims, and we agree, that under Hopper, this
was sufficient to preserve the objection.
We next address the merits of appellants’ argument, whether Dr. Hixson’s surprise
testimony, lack of knowledge of the standard of care and the facts of the case, which were
admitted over a motion in limine, combined with his prejudicial conduct, supported the
circuit court granting appellee a new trial. In Arkansas State Highway Commission v. Byars,
221 Ark. 845, 256 S.W.2d 738 (1953), our supreme court held as follows:
Whether there is substantial evidence to support a verdict is not a question of fact,
but one of law. Because a witness testifies as to a conclusion on his part does not
necessarily mean that the evidence given by him is substantial, when he has not given
a satisfactory explanation of how he arrived at the conclusion.
8
Cite as 2016 Ark. App. 62
Id. at 851, 256 S.W.2d at 741. The court reiterated that in order to support a verdict the
evidence must be of a convincing nature, imparting qualities of reasonable certainty. Id.,
256 S.W.2d at 741. See also Hamilton v. Allen, 100 Ark. App. 240, 267 S.W.3d 627 (2007)
(holding that a physician-expert’s testimony was insufficient to withstand a motion for
summary judgment when his opinion regarding physician negligence was speculative). The
federal district court for the Eastern District of Arkansas held in Spurlock v. Lawson, 881 F.
Supp. 436 (E.D. Ark. 1995), that the plaintiff had a right to know what the expert’s
testimony would be in order to prepare for trial and acknowledged that the admission of
undisclosed medical-expert testimony which introduced a new theory of liability could
preclude a plaintiff from effectively addressing the charge. See id.
Based on previous case law, combined with Dr. Hixson’s lack of knowledge of the
facts, his speculative view of the required standard of care, and his behavior at trial, we hold
that the circuit court did not abuse its discretion in granting appellee’s motion for a new
trial. Despite the assertion that appellee’s filing a motion in limine to exclude Dr. Hixson
for having an inadequate grasp of the governing standard of care does not count as an
objection to Dr. Hixson’s testimony at trial, and that at the time that testimony could have
been considered helpful to appellee’s case, the record indicates that the circuit court was
aware of appellee’s concerns, stopped the proceedings, excused the jury, and addressed the
issues with Dr. Hixson on two occasions. Further, the circuit court conducted a full hearing
on appellee’s motion for a new trial during which both parties’ arguments were duly
considered. Accordingly, we hold that the circuit court did not err and affirm the grant of
appellee’s motion for a new trial.
9
Cite as 2016 Ark. App. 62
Affirmed.
ABRAMSON and BROWN, JJ., agree.
Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Benjamin D. Jackson, for
appellants.
Sutter & Gillham, P.L.L.C., by: Luther Oneal Sutter, for appellee.
10