Old Dominion Freight Line, Inc.; And Aaron Marvell Foster v. Frank McMillion, Allen Jones, Carlton Pettus, Hunter Bokker, Bengi Bokker, and Zack Billingsley

2025 Ark. App. 268

• Court: Court of Appeals of Arkansas
• Decided: April 30, 2025
• Status: Published

Opinion

Cite as 2025 Ark. App. 268 (Substituted by 2025 Ark. App. 400) ARKANSAS COURT OF APPEALS DIVISION II No. CV-22-305

OLD DOMINION FREIGHT LINE, Opinion Delivered April 30, 2025

INC.; AND AARON MARVELL FOSTER APPEAL FROM THE ST. FRANCIS APPELLANTS COUNTY CIRCUIT COURT [NO. 62CV-20-141] V. HONORABLE E. DION WILSON, FRANK MCMILLION, ALLEN JONES, JUDGE CARLTON PETTUS, HUNTER BOKKER, BENGI BOKKER, AND ZACK AFFIRMED IN PART; REVERSED AND BILLINGSLEY REMANDED IN PART APPELLEES

ROBERT J. GLADWIN, Judge

The appellants in this case are a trucking company and the driver of a semi-truck who

was involved in a serious accident in St. Francis County. The appellees are two law

enforcement officers and four members of a clean-up crew who alleged they were unwittingly

exposed to hazardous materials. After a week-long jury trial, the appellees received a

combined verdict of $75 million in compensatory damages.

The appellants raise twelve points on appeal.

We affirm in part, reverse in part, and order a new trial on damages.

I. Factual and Procedural Background On April 20, 2018, at approximately 3:00 p.m., a pickup truck driven by Charles

Henley collided head on with a semi-truck on Highway 70 in St. Francis County. The

accident caused the semi-truck, which was hauling two trailers, to flip and catch fire. The

pickup-truck driver died on the scene. There is no dispute that Henley was the sole cause of

the accident.

Aaron Foster was driving the semi-truck for Old Dominion, and the load included

one barrel of formic acid weighing 565 pounds. The Hazardous Materials Transportation

Act (the “HMTA”) requires that a trailer display a placard only if the truck is hauling more

than one thousand pounds of hazardous materials. There was no dispute at trial that Old

Dominion was not required to placard the load involved in the accident.

Foster was still in the cab of the semi-truck when it rolled and caught fire. He kicked

a window out of the truck to escape. Tim Morrow, another Old Dominion driver, happened

to be traveling by the scene just after the accident happened, and he pulled over. Morrow

gave Foster his cell phone to report the accident to Old Dominion. Kristen Phagan witnessed

the accident, and she and her husband also pulled over to assist. She testified that she was

either with or very near Foster in the immediate aftermath.

Keith Ponder was the first law enforcement officer to respond to the scene. At the

time of the accident, he was a trooper for the Arkansas State Police (“ASP”). Ponder testified

that he asked Foster whether he had been hauling hazardous materials and that Foster

replied he was not. Foster and Phagan both testified that Ponder did not ask whether there

were hazardous materials on the truck.

2 Jeff Goff, a deputy for the St. Francis County Sherif’s Department, also responded to

the accident. He testified that he also asked Foster whether the load contained hazardous

materials, and Foster stated it did not.

Law enforcement and other first responders proceeded to work the scene. Frank

McMillion, one of the appellees, was a trooper for the ASP at the time of the accident.

Discussed in more detail below, McMillion testified about his training with the ASP

regarding hazardous materials and said that he was trained to clear the area if a site involved

formic acid. He arrived at approximately 3:53 p.m. McMillion testified that approximately

two hours after he got to the scene, he smelled a strong odor different from the odor of diesel

fuel or other burning materials present at other accident scenes. He became nauseated and

dizzy. McMillion said he went to his car and felt better but that he started experiencing

difficulty breathing and burning in his throat after being on the scene longer.

Another law enforcement officer to respond, Allen Jones, was a corporal with the St.

Francis County Sheriff’s Office at the time of the accident. He is also one of the appellees.

There was testimony that he also felt a burning sensation in his nose while at the site.

Old Dominion contacted FleetNet America to assist with the cleanup effort. FleetNet

called White Motor Company, a tow-truck company. White Motors Company’s employees

reached the scene between 4:00 and 4:30, and the crew included the other four appellees—

Bengi Bokker, Hunter Bokker (Bengi’s son), Zack Billingsley, and Carlton Pettus. If it had

been clear there was hazardous material at the scene, White Motor Company would not have

responded to the scene. Instead, a company that specializes in cleaning up hazardous

3 materials would have responded. While they were on the scene, Bengi, Hunter, Billingsley,

and Pettus all experienced difficulty breathing and had burning sensations in their noses,

throats, and eyes. Some of them also testified they smelled a very strong chemical odor as or

before the symptoms started.

By the time the crew from White Motor was exposed, the accident was no longer on

fire; it was smoldering, and there may have been some smoke.

The first notification to anyone at the scene that the truck contained a hazardous

chemical was at approximately 7:45 p.m. when Old Dominion provided a bill of lading

showing the barrel of formic acid. Formic acid is a corrosive substance that has “acute

toxicity” when vaporized.

All the appellees went to the emergency room on the night of the exposure, some of

them by ambulance. Their specific injuries are discussed below.

The trial for this matter took place December 7–15, 2021. The appellees argued that

Foster and Old Dominion (the appellants) were negligent in their failure to notify the

appellees about the presence of a hazardous material on the truck. They did not seek damages

for medical expenses. Instead, they asked the jury for (1) “the nature, extent, duration, and

permanency of any injury and whether it is temporary or permanent” and (2) “[a]ny pain and

suffering and mental anguish experienced in the past and reasonably certain to be

experienced in the future.” They also sought punitive damages.

4 The trial was bifurcated: phase one was to determine liability for compensatory and

punitive damages and to award an amount for compensatory damages. This opinion

discusses more fully below the events at trial that are relevant to this appeal.

Phase two would have determined the amount of punitive damages. The jury returned

a combined verdict in phase one of $75 million in compensatory damages and found that

the appellants were not liable for punitive damages. Accordingly, there was no phase-two

trial.

The appellants filed a timely motion for new trial or remittitur, arguing the verdict

was excessive. The circuit court never ruled on that motion, and it was deemed denied.

II. Issues on Appeal

The appellants raised twelve points on appeal, and we address each below in roughly

the order they were briefed.

1. Causation

The appellants first urge us to reverse the judgment because the appellees failed to

prove causation at trial. This argument has two distinct facets: (1) that the appellees should

have been required to meet a toxic-tort standard of causation and (2) that the appellees did

not prove proximate causation.

These causation arguments were subject to a motion for directed verdict. “When

reviewing a denial of a motion for directed verdict, we determine whether the jury’s verdict

is supported by substantial evidence.” City of Little Rock v. Nelson ex rel. Nelson, 2020 Ark. 34,

at 5, 592 S.W.3d 633, 638. “In conducting our review, we do not try issues of fact. Rather,

5 we simply examine the record to determine if there is substantial evidence to support the

jury’s verdict. However, questions of law will be reviewed de novo.” Id.

1. Toxic-tort causation

First the appellants contend that the appellees should have been required to meet

the causation standard applicable to toxic-tort cases. This question is a matter of law.

Arkansas has several cases involving chemical exposures that take place over a course

of years. See Chavers v. Gen. Motors Corp., 349 Ark. 550, 79 S.W.3d 361 (2002) (asbestos

exposure); Green v. Alpharma, Inc., 373 Ark. 378, 284 S.W.3d 29 (2008) (chicken-litter

exposure); Richardson v. Union Pac. R.R. Co., 2011 Ark. App. 562, 386 S.W.3d 77 (diesel fuel,

exhaust, creosote, and pesticide exposure). These are unquestionably toxic-tort cases that

have established certain requirements a plaintiff must meet in order to prove his or her injury

was caused by the exposure in question.

For example, in Richardson, this court noted that a plaintiff in a toxic-tort case must

prove general causation, i.e., “whether a particular agent can cause a particular illness,” and

specific causation, i.e., “whether that agent in fact caused the particular plaintiff’s illness.”

2011 Ark. App. 562, at 3–4, 386 S.W.3d at 80. In Chavers, the supreme court established a

test wherein a plaintiff in an asbestos-exposure case must prove exposure, frequency,

regularity, proximity, and specific causation. 349 Ark. at 562, 79 S.W.3d at 369.

The lone Arkansas case involving a one-time exposure is TMG Cattle Co., Inc. v. Parker

Com. Spraying, LLC, 2018 Ark. App. 144, 540 S.W.3d 754. In TMG Cattle, the defendant

sprayed urea fertilizer in a wheat field adjacent to the field where the plaintiff’s cattle were

6 grazing. Eighteen cows were discovered dead around a pond three or four days after the

fertilizer application. Id. at 1–2, 540 S.W.3d at 756. The circuit court granted summary

judgment to the defendant because the plaintiff’s veterinarian “did not definitively link the

cows’ death to the consumption of urea fertilizer.” Id. at 2, 540 S.W.3d at 756 This court

reversed the circuit court’s order, finding that the veterinarian’s opinion gave rise to an issue

of fact regarding causation. The veterinarian had opined that lab results did not show urea

poisoning because they were taken too late but that all the circumstances surrounding the

cows’ deaths led him to believe they had died from ingesting urea. Id. at 7–8, 540 S.W.3d at

758–59. In conducting the analysis, this court declined to apply the Chavers test to those

specific facts. In a footnote, this court stated:

We disagree with this analysis. In a toxic-tort case, the plaintiff’s injuries are generally the result of a series of events occurring over a considerable length of time and under different circumstances. See Ga.-Pac. Corp. v. Carter, 371 Ark. 295, 303, 265 S.W.3d 107, 113 (2007); Baker v. Wyeth–Ayerst Labs. Div., 338 Ark. 242, 992 S.W.2d 797 (1999). This is not a toxic-tort case; this is not a case involving a series of events occurring over a considerable length of time. This was a single event in which eighteen cows died, apparently at once and apparently of the same cause. We therefore decline to consider or apply the “frequency, regularity, and proximity” test to this factual scenario.

Id. at 4 n.1, 540 S.W.3d at 757 n.1.

Arkansas appellate courts have decided a line of cases that distinguish between a

“mass accident” and a “toxic tort.” Both mass accidents and toxic torts can involve injuries

to property or people, so the fact that TMG Cattle related to cattle does not mean that the

same standards are inapplicable to humans. Further, although the cases discussing this

7 difference relate to class-action certification, we consider that the distinction would continue

to apply through the case.

In Baker, 338 Ark. 242, 992 S.W.2d 797, the supreme court analyzed a case in which

the plaintiffs alleged injuries after taking a weight-loss drug. When analyzing the

“predominance” requirement for class certification, the supreme court noted there are

different types of mass-tort actions: “1) mass-accident cases where injuries are caused by a

single catastrophic event occurring at one time and place; and 2) toxic-tort or products-

liability cases where the injuries are a result of a series of events occurring over a considerable

length of time and under different circumstances.” Id. at 247, 992 S.W.2d at 800. Mass-

accident cases are much more likely to be certified as class actions than toxic-tort cases. This

is because in a toxic-tort case, “no one set of operative facts establishes liability, no single

proximate cause equally applies to each potential class member and each defendant, and the

individual issues outnumber common issues.” Id. (quoting Sterling v. Velsicol Chem. Corp., 855

F.2d 1188 (6th Cir. 1988)) (internal quotation marks omitted). In other words, the same law

and facts will usually predominate in a mass-accident case, and the same is not usually true

in a toxic-tort case.

Another class-certification case involved personal injuries and property damages

allegedly caused by vapors and gases emitted from an industrial wastewater treatment system.

Ga.-Pac., 371 Ark. at 303, 265 S.W.3d at 113. The supreme court reiterated its distinction

between toxic-tort and mass-accident cases, stating, “[C]ourts typically distinguish between

mass-accident cases, where injuries are caused by a single, catastrophic event occurring at one

8 time and place, and toxic-tort or products-liability cases, where the injuries are the result of

a series of events occurring over a considerable length of time and under different

circumstances.” Id.

One year later, the supreme court found that the same facts and law would

predominate in a case involving an explosion at a hazardous waste storage and treatment

facility. Teris, LLC v. Chandler, 375 Ark. 70, 289 S.W.3d 63 (2008). Not only did the same

facts and law predominate, but the supreme court also held, “The fact that damages may vary

for members of the class does not defeat the finding of predominance.” Id. at 83, 289 S.W.3d

at 72. Again, the context of class certification is different from the present case, but the

discussion of a mass accident versus a mass tort is instructive.

Given the discussion in the class-certification context, we believe that the TMG Cattle

footnote mentioned above is a correct statement of Arkansas law and that a toxic-tort case

involves a series of events that occur over a time longer than a few hours. This is more in

line with TMG Cattle and the mass-accident cases and not cases that involve a single

catastrophic event that takes place and leads to the appellees’ injuries. For these reasons, we

affirm the circuit court’s decision declining to apply a heightened standard of causation to

the appellees.

2. Proximate causation

“Our case law is replete with the proposition that causation is almost always a

question of fact for the jury and not appropriate for summary judgment.” Green, 373 Ark. at

395, 284 S.W.3d at 42. Because proximate causation is a factual issue, and we are considering

9 the denial of a directed-verdict motion, the standard of review is whether substantial evidence

supports the jury’s verdict. Substantial evidence is “of sufficient force and character to

compel a conclusion one way or another with reasonable certainty. We review the evidence

and all reasonable inferences arising therefrom in the light most favorable to the party on

whose behalf judgment was entered.” Id.

To succeed in a negligence action, the plaintiff must prove proximate cause, which is

“that which in a natural and continuous sequence, unbroken by any efficient intervening

cause, produces the injury, and without which the result would not have occurred.” TMG

Cattle, 2018 Ark. App. 144, at 4, 540 S.W.3d at 757 (quoting Pollard v. Union Pac. R.R. Co.,

75 Ark. App. 75, 79, 54 S.W.3d 559, 562 (2001)). It can be proved using circumstantial

evidence, and “such evidence is sufficient to show proximate cause if the facts proved are of

such a nature and are so connected and related to each other that the conclusion therefrom

may be fairly inferred.” Id. However, “[p]roximate causation cannot be based on mere

coincidence.” Wirth v. Reynolds Metal Co., 58 Ark. App. 161, 169, 947 S.W.2d 401, 405

(1997).

The appellants argue that, even if no toxic-tort standard is required, the appellees still

did not prove proximate causation, and their directed-verdict motion should have been

granted. We disagree.

Dr. Manaker, a pulmonologist and the appellees’ expert, testified that he had

examined the appellees, performed medical tests on them, and reviewed their medical

records. Although he testified that he had not seen any scientific studies linking the

10 appellees’ medical injuries to formic acid, he did testify about how the injuries may have

been related. He testified that reactive airway dysfunction syndrome (“RADS”), exacerbation

of chronic obstructive pulmonary disease (“COPD”), asthma, and rhinosinusitis could all be

caused by exposure to corrosive acids. He also testified that exacerbation of coronary artery

disease could have been caused by the stress induced by the incident. He further testified

that gastroesophageal reflux disease (“GERD”) could be caused by swallowing particles of

formic acid that had vaporized. This is all similar to the circumstantial evidence presented at

the summary-judgment phase by the plaintiffs in the TMG Cattle case—that the cattle had all

been exposed to a substance known to be deadly to cows, there was a group that died at the

same time, and they all appeared to die of the same cause. TMG Cattle, 2018 Ark. App. 144,

at 7, 540 S.W.3d at 758–59. Viewing the evidence in the light most favorable to the party

on whose behalf judgment was entered, there is substantial evidence to support proximate

causation in this case. We affirm on this point.

B. Preemption

The appellants’ next argument is that the circuit court erred when it denied their

motion for a directed verdict on the issue of federal preemption. Because this is a legal issue,

the standard of review is de novo. City of Little Rock, 2020 Ark. 34, at 5, 592 S.W.3d at 638.

Under the doctrine of preemption, a state cannot impose a legal requirement that

conflicts with federal law. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663 (1993).

Preemption is based on the Supremacy Clause of the United States Constitution. Emerald

Dev. Co. v. McNeill, 82 Ark. App. 193, 197, 120 S.W.3d 605, 608 (2003). In a preemption

11 analysis, we are guided by whether the United States Congress intended to preempt state

law. Id. We have noted in the past:

There are three types of preemption: 1) express preemption, where Congress defines explicitly the extent to which its enactments preempt state law; 2) field preemption, where Congress’s regulation of a field is so pervasive or the federal interest so dominant that an intent to occupy the entire field can be inferred; and 3) conflict preemption, where state law stands as an obstacle to the accomplishment of the full purposes and objectives of a federal statute or where compliance with both laws is impossible.

Id. The appellants here argue that express preemption bars the appellees’ lawsuit.

The federal statute at issue is the Hazardous Materials Transportation Act (the

“HMTA”), codified at 49 U.S.C. §§ 5101 et. seq. The purpose of the HMTA “is to protect

against the risks to life, property, and the environment that are inherent in the transportation

of hazardous material in intrastate, interstate, and foreign commerce.” 49 U.S.C. § 5101.

The HMTA contains a lengthy preemption clause at § 5125. A state cannot impose a

requirement “that is not substantively the same as” the provisions of the HTMA regarding:

(A) the designation, description, and classification of hazardous material.

(B) the packing, repacking, handling, labeling, marking, and placarding of hazardous material.

(C) the preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents.

(D) the written notification, recording, and reporting of the unintentional release in transportation of hazardous material and other written hazardous materials transportation incident reporting involving State or local emergency responders in the initial response to the incident.

12 (E) the designing, manufacturing, fabricating, inspecting, marking, maintaining, reconditioning, repairing, or testing a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce.

49 U.S.C. § 5125(b)(1)(A)–(E). Because this is an express preemption clause, this court

should focus “on the plain wording of the clause, which necessarily contains the best

evidence of Congress’ pre-emptive intent.” CSX Transp., 507 U.S. at 664.

The appellants argue they were found negligent for failing to do more than federal

law required, and the HMTA preempts such a finding. They argue first that the circuit court

imposed a heightened placarding duty than required under the HMTA and, second, that the

circuit court imposed a heightened duty to notify the first responders.

As to appellants’ first contention, there was undisputed testimony that the appellants

were not required to display a hazardous-materials placard. Further, the jury instructions

included the statute stating that placarding was permissive, rather than required, when the

hazardous materials weigh less than 1001 pounds. There was undisputed testimony and

documentary evidence that there was less than 1001 pounds of formic acid on the truck.

Unless there is a reason to hold otherwise, this court assumes the jury followed the law as

stated in the jury instructions. KW-DW Props., LLC v. Ark. State Highway Comm’n, 2019 Ark.

95, at 6, 571 S.W.3d 6, 9. The evidence, argument, and jury instructions all make clear that

the circuit court did not impose requirements above those of the HMTA regarding

placarding.

13 The appellants’ other argument is that the circuit court imposed a higher duty of

notification than the HMTA requires. The statute requires, “When an incident involving

hazardous material being transported in commerce occurs, the person transporting the

material, immediately on request of appropriate emergency response authorities, shall

disclose to the authorities information about the material.” 49 U.S.C. § 5110(c).

The regulations relating to this portion of the HMTA further mandate, “A driver of

a motor vehicle containing hazardous material, and each carrier using such a vehicle, shall

ensure that the shipping paper required by this section is readily available to, and

recognizable by, authorities in the event of accident or inspection.” 49 C.F.R. § 177.817(e)

(2024). Additionally, “Each person receiving a shipping paper required by this section must

retain a copy or an electronic image thereof, that is accessible at or through its principal place

of business and must make the shipping paper available, upon request, to an authorized

official of a Federal, State, or local government agency at reasonable times and locations.”

Id. § 177.817(f).

Another regulation states that a shipping company must maintain “emergency

response information” that is “immediately available to any person who, as a representative

of a Federal, State or local government agency, responds to an incident involving a hazardous

material, or is conducting an investigation which involves a hazardous material.” 49 C.F.R.

§ 172.600(c)(2) (2024). “Emergency response information” includes the description and

technical name of the hazardous material—formic acid in this case. 49 C.F.R. § 172.602(a)(1).

14 The appellants argue that they have been held liable for failing to voluntarily or

proactively provide information about the hazardous materials without it having been

requested. First, there was testimony from two first responders—Ponder and Goff—that they

asked Foster whether the load contained hazardous material, and he said no. There was

conflicting testimony that Foster was not asked about hazardous materials, and there was

testimony about why Foster may have been too shaken up to answer accurately. However,

there was substantial evidence presented at trial that appellants violated the precise language

of 49 U.S.C. § 5110.

Arkansas appellate courts have not yet decided a case that examines preemption

related to the HMTA. However, Tipton v. CSX Transportation, Inc., Nos. 3:15-CV-311-TAV-

CCS, -337-TAV-CCS, -497-TAV-CCS & -346-TAV-CCS, 2016 WL 11501426 (E.D. Tenn.

July 7, 2016), is an unreported Tennessee federal district court case that analyzes the

notification provisions of the HMTA and its regulations, and both parties discussed this

case. It is certainly not binding authority, but Tipton is persuasive since it examines a situation

very similar to the one at hand.

Although the plaintiffs in Tipton brought many more claims than the appellees in this

case, the relevant claims involved some law enforcement officers and firefighters who sued a

railroad company and a tank-car company after a derailment. The first responders claimed

that they were exposed to hazardous chemicals for several hours while working on the scene

of the accident but that the railroad company did not notify them of the identity of the

hazardous materials. Tipton, 2016 WL 11501426, at *3. The district court first found that

15 the HMTA governed the notice claims and went on to note that the plaintiffs’ complaint

alleged that the railroad should have “immediately identified the toxic chemical involved in

the derailment, and reported that identity to the emergency responders.” Id. at *14. This is

precisely what the regulations require—that the shipping company maintain emergency-

response information and make it “immediately available to any person who, as a

representative of a Federal, State or local government agency, responds to an incident

involving a hazardous material[.]” 49 C.F.R. § 172.600(c)(2).

The preemption clause in the HMTA notes that any state requirement must be

“substantively the same as” those imposed by the HMTA and related regulations. 49 U.S.C.

§ 5125. A nonfederal requirement is “not substantively the same” unless it “conforms in

every significant respect to the Federal requirement.” Roth v. Norfalco LLC, 651 F.3d 367,

377 (3d Cir. 2011). In this case, the federal requirements were that a driver must notify first

responders of the presence of hazardous materials when asked and that a carrier must have

emergency-response information that is “immediately available” to emergency responders.

When viewing the facts in the light most favorable to the appellees, a finding of negligence

because emergency-response information was not provided for several hours is “substantively

the same as” the HMTA.

For these reasons, we affirm the circuit court’s denial of the appellants’ motion for

directed verdict on the issue of preemption.

C. Professional-Rescuer’s Doctrine

16 The appellants next argue that the circuit court erred when it did not grant them a

directed verdict based on the professional-rescuer’s doctrine.

The “fireman’s rule” was first adopted in Arkansas in Waggoner v. Troutman Oil Co.,

320 Ark. 56, 894 S.W.2d 913 (1995). In Waggoner, the supreme court held that “a

professional firefighter may not recover damages from a private party for injuries the fireman

sustained during the course of putting out a fire even though the private party’s negligence

may have caused the fire and injury.” Id. at 58, 894 S.W.2d at 914.

The supreme court later refined the doctrine in Nowicki v. Pigue, 2013 Ark. 499, 430

S.W.3d 765. In Nowicki, a semi-truck driver ran out of fuel, and his truck broke down in the

left lane of an interstate near Tennessee. A Tennessee Department of Transportation

(“TDOT”) worker was killed in a traffic accident while assisting the driver, and his estate

sued the semi-truck driver and other parties. The supreme court held that the TDOT

worker’s estate was precluded from recovery due to the professional-rescuer’s doctrine. This

was because assisting and protecting motorists, including those who had run out of fuel, was

one of the job duties for TDOT workers. Id. at 8–9, 430 S.W.3d at 770–71. In so holding,

the supreme court “decline[d] to apply a categorical rule but rather evaluate[d] the facts

bearing on whether the worker was paid to assume the risk in question.” Id. at 6, 430 S.W.3d

at 769. It is clear, therefore, that the professional-rescuer’s doctrine applies only if the

appellants were paid to assume the risk of being exposed to hazardous materials.

The inquiry concerning the White Motor Company employees (Hunter, Bengi,

Pettus, and Billingsley) is straightforward. Bengi testified that the accident would have been

17 cleaned up by a completely different company if the appellees had known there was

hazardous material in the truck. They were not paid to assume the risk in question.

Therefore, the professional-rescuer’s doctrine does not apply to those appellees.

The law enforcement officers present a closer case, but viewing the evidence in the

light most favorable to the winning party, we conclude that the professional-rescuer’s

doctrine does not apply to them.

McMillion is a sergeant with the Arkansas State Police who responded to the accident.

He testified that he was trained to determine whether an eighteen-wheeler involved in an

accident was carrying hazardous materials. If so, he would consult a booklet to determine

what to do next. If he had looked up formic acid in the booklet, he would have gotten people

away from the accident and set up a perimeter around it “so that we won’t have any injury

or death to occur from that chemical.” McMillion testified that he is not qualified to do

hazardous-materials cleanup or disposal. After establishing a perimeter, his next step,

according to training, is to call an emergency manager to get a cleanup team to the site.

Allen Jones was a sergeant with the St. Francis County Sheriff’s Department. He did

not testify about his training or how he would handle hazardous materials, but Goff also

worked for the St. Francis County Sheriff’s Department. He testified that he was trained to

ask eighteen-wheeler drivers if they were hauling hazardous materials on an accident scene.

This was for “safety reasons,” including the officer’s safety. Goff testified multiple times that

if he knew a truck involved in an accident was hauling hazardous materials, he would “back

up” and call the fire department to avoid exposure to the hazardous materials. There was no

18 evidence presented at trial that the law enforcement officers were trained to clean up

hazardous materials or that they were trained or expected to conduct an investigation in the

presence of hazardous materials. The appellees’ allegations were not that they experienced

incidental contact with formic acid while clearing the scene of the accident but that they

were exposed over multiple hours during an investigation of the accident site. Drawing all

reasonable inferences in the light most favorable to the appellees, there was substantial

evidence that the professional-rescuer’s doctrine does not apply to McMillion or Jones.

Because the facts establish that the professional-rescuer’s doctrine did not apply to

any appellee, the circuit court did not err when it denied the appellants’ directed-verdict

motion.

D. Jury Instructions

Appellants argue next that the judgment should be reversed because the circuit court

denied their request to give two jury instructions—one containing the toxic-tort-causation

standard and the other containing the professional-rescuer’s-doctrine standard.

“[A] party is entitled to a jury instruction when it is a correct statement of the law,

and there is some basis in the evidence to support giving the instruction.” Barnes v. Everett,

351 Ark. 479, 492, 95 S.W.3d 740, 748 (2003). The standard of review for failing to give a

proffered jury instruction is abuse of discretion. Id.

1. Proximate causation

The proffered instruction regarding proximate causation states:

19 Each Plaintiff must prove by a preponderance of the evidence: (1) that exposure to a certain minimum amount of formic acid for a certain period of time can cause their particular claimed injuries in the general population and (2) that his actual amount of exposure to formic acid in this case was at least equal to that minimum level and length of time.

As discussed above, the toxic-tort standard of causation does not apply to this case.

Accordingly, the appellants were not entitled to this instruction because there could be no

basis in the evidence to support it.

2. Professional-rescuer’s doctrine

The proffered instruction regarding the professional-rescuer’s doctrine states: “If you

find that any one of the Plaintiffs was a first responder paid to respond to accidents such as

the one at issue in this case, then you must find for the Defendants on the claims made by

that particular Plaintiff.”

The appellants also proffered interrogatories regarding the professional-rescuer’s

doctrine that the circuit court denied. There is one interrogatory for each appellee that states:

“Do you find from a preponderance of the evidence that [Appellee] was a professional first

responder at the time he claims to have been exposed to formic acid?” The set ended with

the following instruction: “If you have answered each of the Interrogatories 1 through 6

“Yes,” then please inform the Bailiff that your deliberations are complete and that you

request to return to the Courtroom to deliver your verdict.”

First, as discussed above, the appellees are not subject to the professional-rescuer’s

doctrine, so the appellants were not entitled to present these instructions to the jury.

20 Second, even if they were entitled to jury instructions on the professional-rescuer’s

doctrine, these instructions are not a correct statement of the law. To be precluded from

receiving damages, Nowicki holds not only that the plaintiff must be a first responder, but

also that the plaintiff be paid “to assume the risk in question.” 2013 Ark. 499, at 6, 430

S.W.3d at 769. Just because the appellees were paid to respond to traffic accidents does not

mean they were paid to clean up or investigate a scene where hazardous materials were

present.

For these reasons, the circuit court did not abuse its discretion when denied the

appellants’ motion to give the proffered proximate-cause and professional-rescuer’s doctrine

jury instructions.

E. Exclusion of Evidence Related to Ponder’s Investigative File

The appellants next urge this court to reverse the circuit court because it erred in

excluding evidence regarding Keith Ponder. At the time of trial, Ponder worked for the

Arkansas State Parks and was in charge of the maintenance department. At the time of the

accident, however, Ponder was a trooper for the Arkansas State Police who was dispatched

to the scene. Ponder testified that he asked Foster if he was okay and then asked if he had

hazardous materials on the truck. According to Ponder’s testimony, Foster said there was no

hazardous material on the truck or trailer.

There was testimony that contradicted Ponder’s version of events. When Foster

escaped from the burning truck, he found another Old Dominion driver happened to be

driving by and stopped. Foster used the other driver’s phone to talk to other employees at

21 Old Dominion and reported the accident. Foster testified that Ponder first approached him

“and told me to get the ‘F’ off the phone[.]” He also testified that Ponder did not ask him

about hazardous materials. Kristen Phagan heard the accident happen and witnessed the

aftermath. She testified that she saw Ponder approach Foster and tell “him to get the F off

the phone.” She also said that she did not hear Ponder ask Foster whether he had hazardous

materials on his trailer.

Importantly, another officer—Goff—testified that he asked Foster whether the truck

was carrying hazardous materials and was told no.

Shortly after the accident in this case, Ponder was involved in an investigation by the

Arkansas State Police, and he resigned after the investigation. The circuit court excluded the

investigative file and would not allow the appellants to question Ponder about the

information in it. The appellants argue that they should have been able to submit this

evidence to the jury because it was relevant to Ponder’s state of mind on the day of the

accident and to his character for truthfulness.

The file is 183 pages long, and it contains reports and interview transcripts from the

investigation after which Ponder resigned as well as information about other inquiries or

disciplinary proceedings. The investigation after which he resigned never concluded with any

official fact-finding and did not result in any criminal charges or convictions. The allegations

in the investigation included that Ponder mishandled some drugs he used to train his K9,

lied to his supervisor to get out of a work event, used his status as an officer to induce a judge

22 to reduce a friend’s bond and later to induce the sheriff to release the friend on his own

recognizance, and fled from an incident in which a friend called 911 from Ponder’s house.

During the investigation and during his proffered testimony, Ponder admitted that it

was part of his duties with the ASP to safeguard the drugs used for training his K9, but he

denied that he stole or used the drugs. As to the second allegation, Ponder denied in both

his proffered testimony and in the investigative file that he lied about his reason for needing

to miss the work event, which was several days long. He told his supervisor that his mother

was in bad health, and he needed to be close by. The investigation and his testimony revealed

that he did stay in town, except for a two-and-a-half- to three-hour period one evening in

which he went with friends to Memphis. As to the third situation, Ponder testified that his

conversation with the judge started the investigation, and he admitted inappropriate conduct

during the course of the investigation.

The allegation in the investigation regarding the 911 call is a bit more complex. The

aforementioned Memphis trip was on the evening of April 24, which was a few days after

the accident in this case. Ponder went to Memphis with his ex-wife and a friend named Josh

Martir. Later that night, Martir called 911 from Ponder’s residence, where he was staying

because he had gotten very intoxicated while in Memphis. Martir said he was going to “blow

his brains out.” When the police arrived in response to Martir’s 911 call, Ponder was not

there because he had gone to his ex-wife’s house nearby. Ponder was later asked by his

supervisor and other officers why Martir was at his house. He told them that Martir had

gotten into an argument with his wife and wanted to stay at Ponder’s house, which was not

23 true. During the course of the investigation, Martir told officers that he and Ponder were

romantically involved, and there was evidence that the two men were living together at the

time of the ASP investigation. The investigators asked Ponder why he told his supervisor that

Martir was at his house because of a fight with his wife, and he answered, “It, in my eyes it

looked bad, so I, that’s what I said . . . .I didn’t tell the truth.” He then admitted lying to his

immediate supervisor and troop commander about the circumstances under which Martir

was staying at his house.

After this portion of the interview in the investigative file, Ponder said that he had

violated the following ASP policy:

Employees shall not knowingly make an untrue statement to a supervisor or another employee which relates to the performance of any employee’s official duties. Employees responding to superiors or to questions posed during formal or informal misconduct investigations should candidly and truthfully answer all questions related to the scope of employment and operations of the Arkansas State Police.

In their proffer, the appellants questioned Ponder superficially, asking him only if he

remembered admitting to violating the policy above, and Ponder testified, “I don’t recall

that, no. I don’t recall it.” Further, during the proffered testimony, the appellants asked

Ponder if he remembered saying the quote above that, “It, in my eyes, looked bad, so that’s

what I said. I didn’t-I didn’t tell the truth.” Ponder said he did not remember saying that.

Appellants then asked multiple times if Ponder told a lie when the truth made him look bad,

and he consistently testified that he did not.

24 “We review evidentiary errors under an abuse-of-discretion standard, and the circuit

court’s findings will not be disturbed on appeal unless there has been a manifest abuse of

discretion.” Potter v. Holmes, 2020 Ark. App. 391, at 7, 609 S.W.3d 422, 427. Further, an

evidentiary ruling does not warrant reversal without a showing of prejudice. Id. at 8, 609

S.W.3d at 428. The supreme court has held that it was not an abuse of discretion for a circuit

court to exclude certain evidence to avoid a trial within a trial. See Treadway v. State, 287 Ark.

441, 700 S.W.2d 364 (1985).

1. Rule 404

Arkansas Rule of Evidence 404(a) states that evidence of a person’s character is not

admissible for the purpose of proving he acted in conformity therewith. However, character

evidence may be “admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” Ark. R. Evid.

404(b). Even if evidence is relevant under 404(b), the circuit court can exclude it “if its

probative value is substantially outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” Ark. R. Evid. 403.

First, it was not an abuse of discretion for the circuit court to exclude the entire 183-

page file, which is what the appellants proffered. The appellants themselves cite to fewer than

10 pages in the investigative file. The vast majority of the file was about issues that have

nothing to do with state of mind or character for truthfulness. Instead, it was about the

mishandling of drugs, questionable conduct with a judge and sheriff in a different situation,

25 and other unrelated matters. The investigative file is hearsay, and its probative value is far

outweighed by the risk of confusion and undue delay.

Excluding the proffered testimony also was not a manifest abuse of discretion. The

appellants argue that the investigation showed Ponder’s state of mind on the day of the

accident because earlier that day, he asked and received permission to be excused from a

work event to care for his mother. There was no evidence during the investigation or during

the trial, including during the proffer, that Ponder was distracted, even if there was testimony

that he was rude to Foster. It was not a manifest abuse of discretion for the circuit court to

find that this was not proof of Ponder’s mindset on the day of the accident.

It was also not a manifest abuse of discretion for the circuit court to exclude the

proffered testimony because it does not show a “common scheme” of lying. First, Ponder

denied in both his proffered testimony and in the investigative file that he lied about his

reason for needing to miss the work event, which was several days long. He told his supervisor

that his mother was in bad health, and he needed to be close by. The investigation and his

testimony revealed that he did stay in town, except for a two-and-a-half- to three-hour period

one evening in which he went with friends to Memphis. Neither the investigation nor his

proffered testimony established that Ponder lied to his supervisors about needing to care for

his mother during a multiple-day out-of-town work event.

The appellants argue that Ponder stated in the investigative file that he lies when the

truth makes him look bad. In the proffered testimony, the appellants ask Ponder several

times generally whether he lies to supervisors and others if the truth makes him look bad.

26 He said no each time. That testimony was consistent with the evidence in the investigation.

Two pages of the file establish that Ponder admitted lying about why Martir was at his house

on the night of the 911 call. Ponder did not say the truth would have made him look bad;

instead, he said that the situation looked bad. Further, one lie about why a person was at his

house (days after the accident) does not establish a broad scheme of lying about other aspects

of his life or work.

Establishing the context of Ponder’s statement and explaining the investigation could

have taken a significant amount of time in an already lengthy and complex jury trial.

Allowing this line of questioning would have been confusing and led to undue delay, both

of which substantially outweigh the probative value of the proffered testimony.

Even if it were not confusing, the appellants have not made any showing of prejudice

caused by the exclusion because a different law enforcement officer gave similar testimony,

and the record shows a great deal of evidence that Old Dominion was aware of the accident

but did not notify anyone at the scene that there were hazardous materials involved.

2. Rule 608

The appellants next argue that the investigation file should have been admitted under

Arkansas Rule of Evidence 608, which states:

(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

27 (b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

When determining whether evidence is admissible under Rule 608, the circuit court

must satisfy three factors: “(1) the question must be asked in good faith; (2) the probative

value must outweigh its prejudicial effect; and (3) the prior conduct must relate to the

witness’s truthfulness.” Hill v. State, 54 Ark. App. 380, 382, 927 S.W.2d 820, 822 (1996).

Again, relevant evidence can be excluded under Rule 403 “if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.”

No one has claimed that the appellants were acting in bad faith with their proffer, so

we move to the second factor—whether the probative value outweighs the prejudicial effect.

As to the investigation file, it contained a great deal of information that had nothing to do

with Ponder’s character for truthfulness. Only one or two pages may have had any probative

value, but that is far outweighed by the confusion and undue delay related to the remaining

documents in the file. As to the proffered testimony, there was very little probative value

because Ponder denied the allegations that he lied. Further, there was evidence from other

28 witnesses that established the same fact that Ponder testified to, as well as other evidence

that established Old Dominion’s liability.

As to the third element—whether the prior conduct relates to Ponder’s truthfulness,

the appellants argue that this case is exactly the same as Hill, 54 Ark. App. 380, 927 S.W.2d

820. We disagree. In Hill, a person was convicted of selling drugs. The witness who purchased

the drugs was an undercover officer at the time of purchase, but he later left the police force

after filing a false police report and giving a false statement regarding his vehicle being stolen.

Id. at 381–82, 927 S.W.2d at 821. He was the only witness who proved the sale. The circuit

court prohibited any mention of why the witness left the police force. Id. at 382, 927 S.W.2d

at 822.

In determining whether the false report and false statement were admissible under

Rule 608, this court noted, “[I]t is without question that these instances of misconduct are

related to the witness’s veracity, and were thus probative of his capacity for truthfulness as

required by the rule.” Id. at 382–83, 927 S.W.2d at 822.

As discussed above, it is not “without question” here that the file and the proffered

testimony are related to Ponder’s veracity. Unlike in Hill, it is not even clear from the

investigative file that the reason Ponder resigned was due to the lie he told about why Martir

was at his house because he admitted he had violated many other policies that had nothing

to do with a character for truthfulness.

This is an evidentiary issue that is left to the discretion of the circuit court. Further,

“[a] circuit court has wide latitude to impose reasonable limits on cross-examination based

29 on concerns over confusion of the issues.” Cantrell v. Toyota Motor Corp., 2018 Ark. App.

335, at 16, 553 S.W.3d 157, 168.

The circuit court did not manifestly abuse its discretion when it excluded the

appellants’ proffered exhibit and testimony regarding Ponder.

F. Motion for a New Jury Pool

At the time of trial, Jeff Goff was a sergeant with the St. Francis County Sheriff’s

Office. Judge Wilson does not have a single bailiff who serves in each courthouse. Instead,

when he presides over cases in St. Francis County, the St. Francis County Sheriff’s Office

appoints an officer to serve as bailiff in that particular court. Goff assisted Judge Wilson as

bailiff during some trials during the tenure of the jury pool for this case. The record is silent

as to how many days Goff served as bailiff, whether other officers served, and exactly how

much contact Goff had with any potential jurors during that period.

At the pretrial hearing, Judge Wilson clarified that Goff would not be serving as bailiff

in the trial in this case. The appellants argue that the entire jury pool was tainted by Goff’s

service, regardless of whether he served as the bailiff during the actual trial, and that the

circuit court committed reversible error when it denied their motion to empanel a new jury

pool. They claim that the jury’s previous interactions with Goff as a courtroom officer would

cause the jury to give his testimony as a witness to the aftermath of the accident undue

weight.

During voir dire, appellants’ counsel asked the potential jurors whether they

remembered having interactions with Goff as a bailiff during their time in the jury pool,

30 beginning in August or September (this trial was in December). Counsel also questioned

each person who had already served on a jury about his or her interactions with Goff. Of

those, four served as jurors in this trial. Those jurors stated during voir dire that Goff had

no significant interactions with them beyond his opening doors, making sure they had what

they needed, and making brief small talk. Appellants’ attorney also asked the panel, “Is there

anything about your experience with Mr. Goff that would lead you to believe he is more

trustworthy than the average person such as Mr. Foster, a truck driver?” The jurors answered

no. The appellants also emphasize that they do not believe any misconduct occurred during

this trial regarding Goff, but the fact that he previously served as bailiff for the panel gave an

appearance of impropriety. The appellants did not ask the circuit court to strike for cause

the four jurors who had actually served on a jury while Goff was bailiff. The only remedy

they sought was to empanel an entirely new jury pool.

There are United States Supreme Court cases in which a bailiff testified as a witness

during a criminal trial for which the bailiff was serving. See Turner v. State of Louisiana, 379

U.S. 466 (1965); Gonzales v. Beto, 405 U.S. 1052 (1972). In those cases, the Supreme Court

found reversible error. This case is different for several reasons. First, this is a civil matter

rather than a criminal matter. Also, Goff was not a key witness because another witness

testified to the same thing he did. Further, he did not serve as a bailiff during the trial.

The supreme court of this state has noted that “[b]ecause of the close relationship

between the bailiff and the court itself[,] any action on the part of the bailiff concerning the

jury should be subject to close scrutiny by the court.” Lewis v. Pearson, 262 Ark. 350, 354,

31 556 S.W.2d 661, 664 (1977). In Lewis, the supreme court held that the bailiff’s racist

comment to a juror “was such that the possibility of prejudice was so great that the entire

deliberations were tainted.” Id.

In Garcia-Chicol v. State, 2020 Ark. 148, 597 S.W.3d 631, the supreme court analyzed

a situation in which the bailiff instructed the jury foreman to sign the wrong form. In that

case, the jurors told the bailiff they had reached a verdict in a rape case. There were two

verdict forms—one for rape and one for attempted rape. Although the jury had reached a

unanimous verdict on the rape charge, the foreman asked the bailiff what to do with the

attempted-rape form. The bailiff instructed the foreman to sign the form but did not instruct

him whether to mark it “guilty” or “not guilty.” Id. at 3–4, 597 S.W.3d at 634–35. The

supreme court held that the bailiff’s erroneous instruction “could not have infected the jury’s

deliberations” because it was given after they had reached a verdict. Id. at 6, 597 S.W.3d at

635.

In another case, the supreme court considered whether extraneous information

discussed about one of the trial lawyers was prejudicial. The supreme court noted in its

analysis that “this court has shown a reluctance to invade the sanctity of the jury room in

order to impeach a jury’s verdict.” Watkins v. Taylor Seed Farms, Inc., 295 Ark. 291, 293, 748

S.W.2d 143, 144 (1988). The supreme court in that case also found it significant that the

extraneous information was a matter that concerned the litigants themselves. Id. at 294, 748

S.W.2d at 145. Further, Arkansas Rule of Evidence 606(b) “ensures that jury deliberations

32 should remain secret, unless it becomes clear that the jury’s verdict was tainted by a showing

of extraneous prejudicial information or some improper outside influence.” Id.

It is important to note that the appellants in this case have not alleged any actual

misconduct by the circuit court or by Goff. They also have not pointed to any evidence that

Goff’s previous interactions with the jury pool improperly influenced deliberations. In fact,

when asked whether their previous interactions would influence their view of Goff’s

testimony, the jurors responded that they would not. Appellants’ attorney objected several

times to Goff’s testimony that was speculative or otherwise inadmissible, and most of those

objections were sustained, demonstrating that the circuit court did not give Goff special

treatment in front of the jury. Appellants’ attorney cross-examined Goff by reading

inconsistent statements from his deposition and by questioning him about whether the

person he talked to at the scene was actually Foster. He also elicited testimony that Goff was

friends with one of the appellees, which could have been another attempt to impeach Goff’s

credibility.

Although it is true that some members of the jury had contact with Goff before this

trial when they were serving for different matters, there is no evidence that those interactions

influenced their deliberations any more than the fact that he was a law enforcement officer,

that he made inconsistent statements in his deposition, that he was friends with an appellee,

or any of the other ways a jury determines credibility. The record was not developed

regarding how many other officers served as bailiffs for the jury pool or exactly how much

contact the jurors had with Goff, specifically. Further, the appellants did not seek a less

33 drastic remedy by arguing to the circuit court that only the jurors who had served before with

Goff should have been excused for cause. On these specific facts, we hold that the circuit

court did not err when it denied appellants’ motion to empanel a new jury pool.

G. Admissibility of Expert Testimony

The appellants’ next argument is that the circuit court erred when it did not exclude

or limit the testimony of the appellees’ experts. The admission of expert testimony is

reviewed under an abuse-of-discretion standard. Green, 373 Ark. at 397, 284 S.W.3d at 43.

“To have abused its discretion, the circuit court not only must have made an error in its

decision, but also must have acted improvidently, thoughtlessly, or without due

consideration.” Corbin v. Baptist Health, Inc., 2016 Ark. App. 212, at 3, 490 S.W.3d 317, 319.

The admissibility of expert testimony is governed by Arkansas Rule of Evidence 702,

which states: “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.”

1. Robert Richard

Richard is a hazardous materials transportation expert who testified at trial about the

requirements of the HMTA and testified that the appellants violated those laws. The

appellants argue that Richard explained and interpreted the law for the jury, which they

contend is reversible error.

34 As an initial note, the circuit court did limit Richard’s testimony. The order regarding

the motion to exclude or limit stated, “Robert Richard shall not instruct a juror on whether

a party was or was not negligent. Robert Richard shall not opine directly on the credibility

of any witness. Robert Richard shall not opine on any area outside of his expertise.”

Further, the jury instructions contained some of the applicable regulations and stated,

“A violation of these regulations, although not necessarily negligence, is evidence of

negligence to be considered by you along with all of the other facts and circumstances in the

case.” The jury is presumed to follow the instructions. KW-DW Props., 2019 Ark. 95, at 6,

571 S.W.3d at 9.

The appellants never objected that Richard exceeded the limits set by the circuit

court. Additionally, the appellants did not object to the demonstrative aids shown to the

jury that apparently showed the regulations, and those aids were not included in the record

for this court to review. Therefore, to the extent the appellants’ arguments rely on the

demonstrative aids, that issue is not preserved.

To the extent the issue is preserved, the supreme court has held that a witness can

testify to “evidence of standards[.]” Rhine v. Haley, 238 Ark. 72, 82, 378 S.W.2d 655, 661

(1964). In Rhine, an attorney testified during a legal-malpractice case about “what ordinarily

careful and prudent practitioners in the Greene County area would have done under the

same or similar circumstances.” Id. This is similar to what Richard testified about. He

testified about the regulations and how the appellants could have satisfied the standards.

Again, the jury instructions stated that a violation of the regulations or statutes was “not

35 necessarily negligence,” and the jury is assumed to have followed the jury instructions. As in

Rhine, Richard’s testimony “was for the purpose of furnishing the jury with a guide and a

standard by which to measure appellant’s conduct under the circumstances in determining

the ultimate issue of whether appellant was or was not negligent.” Id. at 83, 378 S.W.2d at

662.

Given these factors, the circuit court did not act improvidently, thoughtlessly, or

without due consideration or abuse its discretion in allowing Richard to testify within the

limitations set in its order.

2. David Dorrity

The appellants next urge us to reverse the judgment because the circuit court allowed

David Dorrity to testify at trial as a trucking-safety expert. They argue that Dorrity’s testimony

concerned matters that were within the common understanding of the jury and were

therefore not helpful to the jury.

This court has held that expert testimony that does not help the jury is inadmissible.

See Bedell v. Williams, 2012 Ark. 75, at 14–15, 386 S.W.3d 493, 503. Expert testimony about

matters within the jury’s common knowledge is not helpful. See id.

The circuit court properly denied the motion to exclude Dorrity’s testimony. In their

expert disclosure, the appellees stated that Dorrity would testify about Old Dominion’s

failure to train certain employees about how to read certain documents and how to

appropriately respond after accidents involving hazardous materials as well as its failure to

develop a system for communicating about hazardous materials. Developing, disseminating,

36 and implementing safety procedures at a trucking company is the type of subject matter that

is not within the common understanding of a juror, and therefore, expert testimony would

be beneficial.

Dorrity’s actual testimony was considerably less technical than the disclosures

indicated, but it did concern developing and implementing systems to respond to accidents

involving hazardous materials. At any rate, the appellants did not object during Dorrity’s

testimony, nor did they object that he was testifying about matters outside the scope of the

appellees’ disclosure.

The circuit court did not abuse its discretion by denying the appellants’ motion to

exclude Dorrity’s testimony.

3. Scott Manaker

Finally, the appellants argue that the circuit court erred when it denied their motion

to exclude the opinions of Dr. Manaker, who was the appellees’ pulmonologist. He testified

at trial about the appellees’ injuries.

In determining whether to allow an expert to testify, “the trial court must make a

preliminary assessment of whether the reasoning or methodology underlying expert

testimony is valid and whether the reasoning and methodology used by the expert has been

properly applied to the facts in the case.” Green, 373 Ark. at 399, 284 S.W.3d at 45. This

assessment is necessary because it ensures the reliability and relevancy of the expert’s

testimony. Id.

37 Dr. Manaker is a board-certified pulmonologist who has worked with patients with

all types of lung disease, including patients who have been exposed to acids and other

hazardous materials. He based his opinions on all this experience. Dr. Manaker conducted

various lung-function tests on the appellees and personally examined each one. He also

reviewed their medical records and researched information about formic acid, specifically,

in forming opinions about the appellees. Dr. Manaker admitted that many of his opinions

were not based on peer-reviewed studies involving formic acid, but that is because there is a

“paucity” of studies on that specific acid. Instead, he testified about how patients are affected

by similar acids.

The appellants also argue that a medical expert must consider differential etiology for

the expert’s testimony to be admissible. It is true that this court considered this factor in

Richardson in determining that an expert’s exclusion was not an abuse of discretion. See 2011

Ark. App. 562, at 4, 386 S.W.3d at 80. However, Dr. Manaker did consider differential

etiologies in this case. He testified about why he believed the formic acid was the cause of

the appellees’ injuries rather than obesity, smoking, or preexisting conditions.

The appellants also argue that Dr. Manaker is engaging in a post hoc, ergo propter hoc

fallacy—in other words, testifying that the appellees’ injuries were a result of the formic-acid

exposure simply because the symptoms occurred after the exposure. “This fallacy confuses

sequence with consequence, and assumes a false connection between causation and temporal

sequence. Post hoc ergo propter hoc is not sound as either evidence or argument.” Schmoll v.

Hartford Cas. Ins. Co., 104 Ark. App. 215, 220, 290 S.W.3d 41, 45 (2008).

38 We disagree that Dr. Manaker engaged in this type of logic. He testified that he had

examined the appellees, performed medical tests on them, and reviewed their medical

records. Although he testified that he had not seen any scientific studies linking the

appellees’ medical injuries to formic acid, he did testify about how the exposure would have

caused the appellees’ injuries. He testified that RADS, exacerbation of COPD, asthma, and

rhinosinusitis can all be caused by exposure to corrosive acids. He also testified that

exacerbation of coronary artery disease is caused by the stress, which was induced by the

incident. He testified that GERD could be caused by swallowing particles of formic acid that

had vaporized. He also explained to the jury why he thought certain conditions worsened at

an accelerated rate due to the exposure.

Given all of this, the circuit court did not abuse its discretion in allowing the

testimony of Dr. Manaker to proceed.

H. Other Evidentiary Issues

The appellants argue that the circuit court committed reversible error on two

additional evidentiary issues: (1) in refusing to admit the appellees’ medical bills and (2) in

admitting hearsay testimony from a nonparty witness.

As noted above, “[w]e review evidentiary errors under an abuse-of-discretion standard,

and the circuit court’s findings will not be disturbed on appeal unless there has been a

manifest abuse of discretion.” Potter v. Holmes, 2020 Ark. App. 391, at 7, 609 S.W.3d 422,

427. Further, an evidentiary ruling does not warrant reversal without a showing of prejudice.

Id. at 8, 609 S.W.3d at 428.

39 1. Medical bills

The appellants argue that the circuit court committed reversible error when it

excluded the appellees’ medical bills.

At trial, the appellees did not seek to recover for their medical bills. Instead, they

sought damages for (1) “the nature, extent, duration, and permanency of any injury and

whether it is temporary or permanent” and (2) “[a]ny pain and suffering and mental anguish

experienced in the past and reasonably certain to be experienced in the future.”

In a pretrial hearing, the circuit court granted the appellees’ motion to exclude their

medical bills. However, as the trial progressed, the circuit court reconsidered that ruling and

amended it. During McMillion’s testimony, the circuit court stated that the appellees’

medical bills would not be admissible unless they brought up their medical treatment. If that

happened, the circuit court would entertain a motion from the appellants to admit that

particular appellee’s medical bills. McMillion was the first appellee to testify, and although

he spoke about his treatment on direct examination, the appellants did not ask the circuit

court to admit McMillion’s medical bills. Jones’s wife testified about his treatment, and

again, the appellants did not ask the circuit court to admit Jones’s medical bills. Bengi Bokker

did not testify about his treatment. The appellants also did not proffer the medical bills for

these three appellees after the circuit court amended its ruling.

By the end of trial, the appellants had successfully moved to admit the bills for Hunter

Bokker, Carl Pettus, and Zack Billingsley and argued in closing about their low amounts.

40 Even though the appellees did not ask the jury for economic damages related to their

medical bills, the appellants contend the bills were relevant to all of the appellees because

the bills could be used to show that the appellees’ injuries were limited.

The failure to raise an issue to the circuit court is fatal to our consideration of that

issue on appeal. Brown v. Ark. Dep’t of Hum. Servs., 2017 Ark. App. 67, at 5, 511 S.W.3d 895,

899. The circuit court changed its ruling regarding the medical records during the first

appellee’s testimony. Despite that, and despite McMillion’s and Jones’s wife’s testimony

about their medical treatment, the appellants never moved to admit those appellees’ medical

bills. The issue is not preserved as to McMillion and Jones.

The appellants also never proffered those bills. “To challenge a ruling excluding

evidence, an appellant must proffer the excluded evidence so the appellate court can review

the decision, unless the substance of the evidence is apparent from the context.” Id. at 7, 511

S.W.3d at 900. In this case, the content of the bills is not apparent from the context. The

appellants wanted to argue in closing that low medical bills should be correlated to a certain

recovery for pain and suffering. Although the appellants made that argument regarding three

of the appellees, we do not know whether McMillion, Jones, and Bengi had bills that were

similar to the other appellees’ or had bills that were much higher. We are precluded from

reviewing this evidence on appeal because it was not proffered, and the appellants cannot

demonstrate prejudice. See id.

The circuit court’s exclusion of the medical bills for certain appellees is affirmed.

2. Thereasa May’s testimony

41 At trial, Thereasa May, an employee of White Motor Company, testified that she

called Old Dominion to ask for the bills of lading, and she did not receive them. Although

she did not know who she spoke to, she testified that she called the number for Old

Dominion that she was given by FleetNet, which is the company that dispatched White

Motor Company on behalf of Old Dominion. May also testified that she felt as if the person

who answered the phone did not think May knew what she was talking about because May

is a woman. May further testified that her coworker, Kendall Pettus, was able to obtain the

bills of lading, which was the first time White Motor Company was made aware of the

hazardous materials. Pettus received the bills of lading within five minutes of calling Old

Dominion.

The appellants argue that this was inadmissible hearsay. We disagree. First, May never

testified about anything that the operator said to her—only how she felt and whether she

received the bills of lading. There is no specific statement to which the appellants are

objecting, and a statement is not hearsay if it is not offered for the truth of the matter

asserted. See Ark. R. Evid. 801(c).

Even if there were a specific statement being offered for the truth of the matter

asserted, the appellants have not shown how they were prejudiced. May’s testimony was

extremely short. Many other witnesses testified that they sought information about

hazardous materials. Even admitting improper hearsay evidence is harmless error “if the same

or similar evidence is otherwise introduced at trial.” Builders Transp. Co. v. Smith, 2024 Ark.

App. 561, at 13–14, 701 S.W.3d 22, 32. Further, May testified that White Motor Company

42 received the information shortly after her co-worker had asked. The exact time White Motor

Company received the bill of lading was not contested.

Admitting May’s testimony was not an abuse of discretion for the reasons listed above,

but even if it were, the appellants have not shown any prejudice. The circuit court’s order is

affirmed on this point.

I. Use of Shadow Jury

The fact that appellees employed a shadow jury during trial is not contested. From

the record, it appears that on day six of the trial, the circuit court noticed a disturbance in

the gallery, asked the parties to stop a video deposition that was playing, and took a matter

up in chambers. After the meeting in chambers, the appellants moved for a mistrial based

on the presence of the shadow jury. The circuit court stated on the record that it had begun

to notice unusual behavior the previous day and said:

I started seeing papers handed out in the audience going from one person to another, going from one person to another. And I really didn’t know what it was. It concerned me, but not to the point of bringing it up. And then again, I saw it here again this morning, happening again. Paper going from one person to another being passed around, passed around, passed around. And so it concerned me because this is a case that’s been going on for a while, and I just wanted to make sure about what was going on in the audience in my courtroom. And it was sort of distracting for the court because the paperwork would go from one person, then it would be passed over to another person, then it would get up and move across the bench to another person. And so that’s when I called a recess today, brought the attorneys in the back, had the bailiff secure what the paper was, and it was at that time that I was informed that it was the lunch menu being passed around for paid jurors that have been paid to sit in this case to offer feedback or whatever to the plaintiffs’ attorneys.

43 The circuit court reprimanded the appellees’ counsel for failing to disclose the presence of

the shadow jury before this disturbance and denied the appellants’ motion for mistrial.

After the circuit court denied the motion for mistrial, the appellants made the

following request:

When you go back on the record to our actual jury, I’m sure that it appears that something was going on. We were right in the middle of an answer from the witness. I ask the court to give an instruction that it had nothing to do with that witness’s answer, question and answer, number one, and number two, that we go back to the question and start with the question if that’s okay.

The circuit court then recessed for lunch, after which, the following exchange took place:

THE COURT: Ladies and Gentlemen, before we took the last break, I took a recess during the testimony. The break had to deal with some external issues I had to deal with. It had nothing to do with the testimony or what was going on on the screen. Okay. All right?

JURY: Yes, sir.

THE COURT: At this time, we’re back on the record. The defense may continue with their witness.

MR. WYATT: Your honor, with the court’s permission, we would like to start with Mr. Dirks on the last question that was stopped right in the middle of the question.

THE COURT: Yes, sir.

MR. WYATT: Okay. Thank you.

On appeal, the appellants argue that the circuit court should have granted its motion

for mistrial or, in the alternative, informed the jury of the shadow jury.

44 A mistrial is “a drastic and extreme remedy that should be granted only when there

has been error so prejudicial that justice cannot be served by continuing the trial or when

fundamental fairness of the trial itself has been manifestly affected.” Madden v. Aldrich, 346

Ark. 405, 424, 58 S.W.3d 342, 356 (2001). We will not reverse the denial of a mistrial

motion absent an abuse of discretion or manifest prejudice to the movant. Id. Further, a

mistrial is only appropriate where any possible prejudice could be removed by an admonition

to the jury. Id. The failure to request an admonition negates a mistrial motion. Id.

Here, the appellants requested an admonition. They received it. The circuit court

instructed the jury that the meeting in chambers was about “external issues” that “had

nothing to do with the testimony or what was going on[,] on the screen.” The appellants do

not offer any argument or evidence that the fundamental fairness of the trial was impacted

in a way that was not removed by this instruction.

To the extent the appellants argue the circuit court should have admonished the jury

differently, the appellants did not request a different admonition.

The circuit court did not abuse its discretion, and no manifest prejudice has been

shown. The circuit court’s denial of the motion for mistrial is affirmed.

J. Bifurcation of Liability for Punitive Damages

Arkansas Rule of Civil Procedure 42(b)(2) states,

[A]ll actions tried before a jury in which punitive damages are sought shall, on the motion of any party and if warranted by the evidence, be conducted in a bifurcated trial before the same jury. The jury shall first determine the liability of the defendant or defendants for compensatory damages, the amount of compensatory damages to be awarded, and, at the discretion of the circuit

45 court, the liability of the defendant or defendants for punitive damages. Should it be necessary, the jury will then determine in a separate proceeding, the liability of the defendant or defendants for punitive damages, if that issue was not decided previously, and the amount of punitive damages to be awarded.

Here, the circuit court bifurcated the trial, allowing the jury to decide all issues

regarding compensatory damages in phase one of the trial in addition to liability for punitive

damages. If the jury had found the appellants liable for punitive damages, then the jury

would determine the amount of punitive damages in phase two of the trial. At the conclusion

of phase one, the jury found that the appellants were not liable for punitive damages, so

phase two was not necessary.

The appellants argue that the circuit court erred when it allowed the jury to determine

punitive-damages liability in phase one of the trial. They argue that Arkansas Code

Annotated § 16-55-211 requires that all issues related to punitive damages be “completely

bifurcated.”

That is not what the statute mandates:

(a)(1) In any case in which punitive damages are sought, any party may request a bifurcated proceeding at least ten (10) days prior to trial.

(2) If a bifurcated proceeding has been requested by either party, then:

(A) The finder of fact first shall determine whether compensatory damages are to be awarded; and

(B) After a compensatory damages award determination, the finder of fact then shall determine whether and in what amount punitive damages will be awarded.

46 (b) Evidence of the financial condition of the defendant and other evidence relevant only to punitive damages is not admissible with regard to any compensatory damages determination.

Ark. Code Ann. § 16-55-211 (Repl. 2005) (emphasis added). The statutory arguments are

not preserved. We do not consider arguments that were not raised below or ruled upon by

the circuit court. Wilson v. Neal, 332 Ark. 148, 154, 964 S.W.2d 199, 202 (1998). During

the pretrial hearing, the appellants made arguments about Arkansas Rule of Civil Procedure

42 and their experience in other courts but did not address the statute above.

Arkansas Rule of Civil Procedure 42 specifically allows the circuit court to combine

the compensatory and punitive-liability stages. This court will not reverse a circuit court’s

decision regarding bifurcation absent an abuse of discretion. Ciba-Geigy Corp. v. Alter, 309

Ark. 426, 436, 834 S.W.2d 136, 141 (1992). “The purpose of Rule 42(b) is to further

convenience, avoid delay and prejudice, and serve the needs of justice. The primary concern

is efficient judicial administration, as long as no party suffers prejudice by the bifurcation.”

Id.

During the pretrial hearing, appellants stated, “We agree that the facts will be the

same to prove compensatory damages and punitive damages. There’s not going to be more

facts introduced in the second trial. . . . The jury heard all the facts of negligence and the

alleged facts of recklessness during the first trial. They remember that.” They noted that they

were seeking bifurcation about “the arguments in the second trial on the issue of punitive

damages.” The appellants contend that the appellees’ arguments during opening statements

and their questions regarding deterring behavior prejudiced phase one of the trial and placed

47 “undue emphasis on the need to penalize” them. However, because Rule 42 specifically

allows this approach and because the appellants agreed below that the same facts would be

used to prove compensatory and punitive liability, we hold that the circuit court did not

abuse its discretion.

K. Use of the Reptile Theory

The Reptile Theory as it relates to lawsuits was popularized by David Ball and Don

Keenan in their book, Reptile: The 2009 Manual of the Plaintiff’s Revolution. Louis J. Sirico, Jr.,

The Trial Lawyer and the Reptilian Brain: A Critique, 65 Clev. St. L. Rev. 411, 412–13 (2017).

The authors use neurobiology developed in the 1960s positing that the human brain consists

of three parts: the reptilian brain, the limbic system, and the neocortex. Id. at 414. According

to this theory, the limbic system responds to emotion and memory, while the neocortex

promotes reflection and rationality. Id. The reptilian portion of the brain, on the other hand,

controls autonomic functions and “the fight or flight response and controls other mainly

hard-wired ritualistic or instinctive behavior.” Id. Although this “tri-une brain” theory is no

longer within the mainstream of neurobiology, it forms the center of the trial strategy

advanced by Ball and Keenan. Id. at 416. At a high level, the strategy involves tapping into

the “reptilian brain” of the jurors because

if the lawyer can show that community safety equates with justice, and that justice lies with the lawyer’s argument, the lawyer can successfully appeal to the reptile brain: “This gives us our primary goal in trial: To show the immediate danger of the kind of thing the defendant did--and how fair compensation can diminish that danger within the community.”

48 Id. at 417 (quoting David Ball and Don C. Keenan, Reptile: The 2009 Manual of the Plaintiff’s

Revolution, at 30 (2009)).

The appellants filed a motion in limine asking the circuit court to prevent the

appellees from using the Reptile Theory, arguing that the strategy involves the use of Golden

Rule arguments and imposes a duty different than that stated in the law. The circuit court

granted the motion in part and denied it in part, ruling: “There shall be no inappropriate

golden rule arguments; that plaintiff shall be allowed to use any trial strategy, including

reptile arguments or any other strategy that does not offend the rules of evidence and rules

of civil procedure[.]” The appellants argue this was reversible error. We disagree.

Because the motion in limine asked the circuit court to exclude certain types of

evidence and arguments, we do not reverse absent a manifest abuse of discretion. See Potter,

2020 Ark. App. 391, at 7, 609 S.W.3d at 427.

Here, the circuit court properly excluded Golden Rule arguments. Indeed, the

appellants objected to Golden Rule testimony during the trial, and those objections were

sustained.

The order regarding the motion in limine also allowed arguments and evidence that

did not “offend the rules of evidence and rules of civil procedure.” It is true that once a

motion in limine “to specific evidence” has been denied, the objection is preserved. Schichtl

v. Slack, 293 Ark. 281, 285, 737 S.W.2d 628, 630 (1987). A motion in limine is used “to

prevent some specific matter, perhaps inflammatory, from being interjected prior to the trial

court’s having decided on its admissibility outside the hearing of the jury.” Id. The order here

49 excluded specific evidence and argument (Golden Rule arguments) but allowed any other

specific evidence or argument that did not “offend” the Rules.

To the extent the appellants now argue that specific testimony or argument violated

the Arkansas Rules of Civil Procedure or the Arkansas Rules of Evidence, they did not object

to that specific testimony or argument during trial, and their arguments are not preserved.

The circuit court had no opportunity to rule on the allegedly offending testimony or

arguments; accordingly, this court has nothing to review. See Platinum Peaks, Inc. v. Bradford,

2015 Ark. App. 548, at 10, 473 S.W.3d 70, 76 (holding that a general objection to a jury

instruction was not sufficient to preserve the issue for appeal).

Further, the jury was instructed on the applicable law, and the jury is presumed to

have followed those instructions. KW-DW Props., 2019 Ark. 95, at 6, 571 S.W.3d at 9.

For these reasons, we hold that the circuit court did not abuse its discretion.

L. Motion for New Trial or Remittitur

The appellants’ final argument on appeal is that the circuit court erred in denying

their motion for new trial or remittitur.

The appellants argue that they are entitled to a new trial pursuant to Arkansas Rule

of Civil Procedure 59(a)(4)–(5), which states:

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: . . . (4) excessive damages appearing to have been given under the influence of passion or prejudice; [or] (5) error in the assessment of the amount of recovery, whether too large or too small[.]

50 Here, the appellants filed a timely motion for new trial or remittitur. The circuit court never

ruled on that motion, so it was deemed denied pursuant to Arkansas Rule of Civil Procedure

59(b).

We review the denial of a motion for new trial for abuse of discretion. Koch v.

Northport Health Servs. of Ark., LLC, 361 Ark. 192, 196, 205 S.W.3d 754, 758 (2005). This is

true whether the circuit court denied the motion through an order or if it was deemed denied

through the operation of Rule 59(b). See id. (stating abuse-of-discretion standard even though

the motion for new trial was deemed denied through operation of Rule 59(b)).

When an appellant argues that the amount of damages is excessive, “this court reviews

the proof and all reasonable inferences most favorably to the appellee and determines

whether the verdict is so great as to shock the conscience of the court or demonstrates passion

or prejudice on the part of the jury.” Vaccaro Lumber v. Fesperman, 100 Ark. App. 267, 269,

267 S.W.3d 619, 621 (2007).

Whether a verdict shocks the conscience or demonstrates passion or prejudice is

determined on a case-by-case basis. Id. at 269, 267 S.W.3d at 622. This court considers

elements that include “past and future medical expenses, permanent injury, loss of earning

capacity, scars resulting in disfigurement, and pain, suffering, and mental anguish.” Id.

The verdict in Vaccaro was $50,000. It was supported by evidence establishing

approximately $5,500 in medical expenses and lost wages. This meant the remaining $44,500

was apparently awarded to compensate the plaintiff for future medical expenses or pain and

suffering. Id. at 271, 267 S.W.3d at 623. The case was remanded for a new trial and remittitur

51 because the plaintiff’s evidence did not support the damages awarded, and the “amount [was]

sufficiently excessive in relation to the evidence presented at trial that it shock[ed] the

conscious of the appellate court[.]” Id. This is because “[a] damages award is not a lottery

ticket[.]” Id. The plaintiff in Vaccaro testified that she had back pain almost every day since

the accident but that she carried on with her normal activities. She also said she was not

taking medication for her pain and had not seen a doctor for the pain since a few months

after the accident. Id.

The appellants also moved for remittitur. “Remittitur is appropriate when the

compensatory damages awarded are excessive and cannot be sustained by the evidence. The

standard of review in such a case is whether there is substantial evidence to support the

verdict.” Id. at 269, 267 S.W.3d at 621.

A seminal case regarding remittitur in a case for pain and suffering is Advocat, Inc. v.

Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003). In Advocat, the supreme court noted:

[T]here is no definite and satisfactory rule to measure compensation for pain and suffering; the amount of damages must depend on the circumstances of each particular case. Additionally, we have held that compensation for pain and suffering must be left to the sound discretion of the jury and the conclusion reached by it should not be disturbed unless the award is clearly excessive.

Id. at 44–45, 111 S.W.3d at 354. The supreme court went on to hold that a compensatory-

damages award of $15 million for pain and suffering caused to a woman who died in the

care of a nursing home “shocked the conscience.” Id. at 48, 111 S.W.3d at 356. Holding that

the circuit court abused its discretion by not granting a new trial based on excessive damages

52 or by ordering a remittitur of damages, the supreme court reduced the compensatory

damages from $15 million to $5 million. Id. at 49, 111 S.W.3d at 357. This was despite the

fact that the plaintiff “suffered considerably and was not properly cared for.” Id. at 44, 111

S.W.3d at 354. The evidence supported factual findings that

Mrs. Sauer died in the care of Rich Mountain from severe malnutrition and dehydration. There was evidence presented that she was found at times with dried feces under her fingernails from scratching herself while lying in her own excrement. At other times, she was not “gotten up” out of her bed as she should have been. Often times, Mrs. Sauer’s food tray was found in her room, untouched because there was no staff member at the nursing home available to feed her. She was not provided with “range of motion” assistance when the facility was short of staff. On one occasion, her son complained to staff that he had found his mother at 3:00 p.m., still in her gown, wet with urine, disturbed, and upset.

Testimony further revealed that at times, there was not enough hot water with which patients could shower. Mrs. Sauer was often times found wet without being changed in four hours. She had pressure sores on her back, lower buttock, and arms on days she was found sitting in urine and excrement. A former staff member remembered seeing Mrs. Sauer at one time with a pressure sore the size of a softball, which was open. Her sores and blisters became infected. She was frequently double-padded, and even triple-padded, rather than single-padded for her incontinence problems. At times, she had no water pitcher in her room; nor did she receive a bath for a week or longer, due to there not being enough staff at the facility. She was described as “always thirsty” and her nursing notes indicated that she was heard moaning and crying. At the time she was hospitalized prior to her death, she had a severe vaginal infection. When she was in the geriatric chair, she was not “let loose” every two hours, as required by law. Finally, Mrs. Sauer was found to suffer from poor oral hygiene with caked food and debris in her mouth.

Id. at 43–44, 111 S.W.3d at 353–54.

The appellees in this case have presented evidence that is far, far less severe. They do

note that their injuries are permanent, and they all have decades of life ahead. On the

53 contrary, Mrs. Sauer was ninety-three when she died and had a life expectancy of only two

additional years, even absent her treatment at the nursing home. While that is true, as shown

above, the appellees have not presented evidence of severe pain and suffering that will last

their entire lives. The only evidence they have presented is that they suffered more at the

time of exposure and that now, a few activities are affected, though not enough to change

their life expectancies or earning capacities. The appellees argued in their briefing and in

oral argument that they will experience a lifetime of feeling as if they are breathing through

a straw. However, none of the appellees testified to that. The phrase was taken from Dr.

Manaker’s testimony in which he stated that it was an analogy he came up with to describe

what some individuals experience.

The courts have reduced awards or ordered new trials for excessive pain-and-suffering

verdicts in considerably less dramatic cases, as well. Vaccaro is but one example. Another is

Mattingly v. Griffin, 235 Ark. 1028, 363 S.W.2d 919 (1963). In Mattingly, the jury returned a

verdict of $8,000 after a car accident, and all but $105 was for pain and suffering. The

plaintiff in that case had strained back and neck muscles. The supreme court affirmed on

the condition of remittitur, holding that “any amount above $5,000.00 for pain and

suffering is excessive.” Id. at 1032, 363 S.W.2d at 922.

In the present case, the appellees only requested damages for (1) “the nature, extent,

duration, and permanency of any injury and whether it is temporary or permanent”; and (2)

“[a]ny pain and suffering and mental anguish experienced in the past and reasonably certain

to be experienced in the future.” They received a total of $75 million, but we now consider

54 the verdict awarded to the appellees individually, in the light most positive to each, as the

nonmoving parties.

2. Frank McMillion

The jury awarded McMillion $25 million, and the circuit court entered judgment for

that amount. At the time of exposure, McMillion felt dizzy, lightheaded, and nauseated.

Later at the scene, he had trouble breathing and felt his nose and throat burning. He went

to the emergency room the day of the exposure and went to another doctor for shortness of

breath one time a few months later. He said that he still experiences shortness of breath and

sometimes feels like a fish out of water when he is trying to exert himself. Although he has

not had to stop his activities, his shortness of breath has caused him to preach shorter

sermons, hunt and fish less, and play with his grandchildren less. When he hunts and fishes,

he gets tired more easily and he cannot walk as far to his deer stand. He also has more trouble

doing physical activities, like moving furniture and yard work. He coughs a lot after eating

and snores more. Dr. Manaker diagnosed him with RADS, which can cause coughing,

shortness of breath, and reduced exercise tolerance. Dr. Manaker also diagnosed him with

worsening rhinosinusitis, which is inflammation in the sinus cavity, worsening GERD, and

worsening coronary artery disease.

While there is more proof of injury than was present in Vaccaro, $25 million for the

worsening of some preexisting conditions and shortness of breath shocks the conscience.

There was no evidence presented of past and future medical expenses. Although Dr.

Manaker testified that the injuries are permanent, and they do affect his life somewhat, it

55 does not rise to the level of a $25 million award. He does not have any loss of earning capacity

(in fact, he has been promoted) or scars. He did testify to some pain and suffering, especially

at the time of the exposure, but the award of $25 million for the pain he described shocks

the conscience and demonstrates prejudice and passion on the part of the jury.

3. Bengi Bokker

The jury awarded $20 million to Bengi Bokker, and the circuit court entered

judgment for that amount. According to his testimony, his injuries and pain and suffering

are less than McMillion’s. At the time of the exposure, Bengi felt like someone put a pillow

over his face, and he could not breathe. This was at the time of exposure only. He also felt a

burning sensation in his nose and throat. He went to the emergency room on the date of the

accident. He still has shortness of breath and tires easily, especially on exertion. He coughs

every day and often feels like he has an obstruction in his throat. His endurance has changed,

and he has to get help at work to complete physical tasks, where he did not have to get such

help before the exposure. When he overexerts himself, he feels like he is running thin of

oxygen and has chest pains. He testified this might happen once a week. He still hunts thirty

to thirty-five days a year. Dr. Manaker diagnosed Bengi with RADS and a worsening of

GERD.

Again, this verdict shocks the conscience. There was no evidence presented of past

and future medical expenses. Although Dr. Manaker testified that the injuries are permanent

and that they do affect his life somewhat, it does not rise to the level of a $20 million award.

He does not have any loss of earning capacity or scars. He did testify to some pain and

56 suffering, especially at the time of the exposure, but awarding $20 million for the pain he

described shocks the conscience and demonstrates prejudice and passion on the part of the

jury.

4. Allen Jones

The jury awarded Allen Jones $15 million, and the circuit court entered judgment for

that amount. At the time of the exposure, Jones told his wife that it felt like a blowtorch was

blowing up his nose, and he became flushed. This was only at the time of the accident. He

was treated at the emergency room the day of the accident, and he has been to a

pulmonologist a few times after. In the days after the accident, skin sloughed off the inside

of Jones’s nasal passages, and he experienced a tingling in the back of his throat. He

continues to experience shortness of breath when doing activities like getting dressed and

walking short distances. He still has dry mouth and pain in his sinuses to the point they feel

like they are on fire sometimes, though he did not testify how often that happens. He has

trouble sleeping, and at night, there is a mucas-type drainage from his nose that stains his

pillows. The shortness of breath has negatively affected intimacy with his wife. He was more

active before the accident and invited friends over more often. Jones testified that the

shortness of breath hinders his reaction time as a law enforcement officer and slows his

actions. Jones missed one day of work after the accident, but he did not seek lost wages. He

also had respiratory problems the month before the accident and smoked until 2020

(approximately two years after the exposure). He testified that his shortness of breath has

gotten better since he quit smoking. Dr. Manaker diagnosed Jones with no new conditions

57 but with worsening of GERD and rhinosinusitis. He also testified that Jones had mild COPD

before the exposure and that it is now moderate.

Jones testified to more severe pain, at least sometimes, than the other appellees.

However, we still believe the $15 million verdict shocks the conscience, given the evidence.

There was no evidence presented of past and future medical expenses. Although Dr.

Manaker testified that the injuries are permanent and that they do affect Jones’s life, they do

not justify a $15 million award, especially considering his injuries were exacerbations of

preexisting conditions, some of which have improved since he stopped smoking. He does

not have any loss of earning capacity (in fact, he has been promoted) or scars. He did testify

to some pain and suffering, especially at the time of the exposure, but awarding $15 million

for the pain he described shocks the conscience and demonstrates prejudice and passion on

the part of the jury.

5. Hunter Bokker

The jury awarded Hunter Bokker $5 million, and the circuit court entered judgment

for that amount. Hunter went to the emergency room the night of the exposure, complaining

of a slight headache and burning throat. His primary symptom is shortness of breath, and

he says it is harder to do his job than it was before the accident. He also has shortness of

breath when using excessive physical force. He testified that it can be painful to rub his nose

at times because skin sloughs off his nasal passages. He went to see a pulmonologist once

after the accident. Hunter did not lose any income, and he still duck hunts around thirty

58 days a year. Dr. Manaker diagnosed Hunter with rhinosinusitis, GERD, and tonsil stones

due to the exposure.

Even though Hunter’s verdict is smaller than the verdicts of the three above, we still

believe $5 million shocks the conscience. There was no evidence presented of future medical

expenses, and the medical bills for his treatment related to the exposure added up to only

$4,254. Although Dr. Manaker testified the injuries are permanent, there was insufficient

evidence that they greatly affect Hunter’s life, considering he is still able to do the things he

could do before the accident but simply feels short of breath on excessive exertion. He does

not have any loss of earning capacity or scars. Further, he testified to only mild pain at the

time of the exposure. An award of $5 million for the pain he described shocks the conscience

and demonstrates prejudice and passion on the part of the jury.

6. Zack Billingsley

The jury awarded Zack Billingsley $5 million, and the circuit court entered judgment

for that amount. Zack testified that at the time of the exposure it felt like someone was

holding a washcloth over his nose, and it took his breath away completely. His eyes and nose

were also burning. Zack was taken by ambulance to the emergency room after the exposure.

He testified that he went to a doctor in Forrest City for shortness of breath one time after

the accident. Since the accident, he can no longer walk long distances while hunting and

now has to park near his deer stand, though he goes deer hunting two or three times a week

during the season. He does not claim any lost earnings and is able to deliver 120–140

packages a day as a UPS driver. While he did not testify to how often or under what

59 circumstances (other than hunting), he said that he has experienced burning air passages and

shortness of breath since the accident. He currently uses an e-cigarette, and he dipped snuff

through 2021. He testified that the injuries have not affected him continuously. Dr. Manaker

diagnosed Billingsley with RADS.

Here, the award of $5 million shocks the conscience. There was no evidence

presented of future medical expenses, and the medical bills related to this exposure totaled

$5,497. Although Dr. Manaker testified that the injuries are permanent, the only seeming

effect is that Billingsley gets winded while hunting. He is still able to deliver 120–140

packages a day as a UPS driver. He does not have any loss of earning capacity or scars.

Further, his only real testimony about pain was that he had pain at the time of the exposure.

Given these factors, Billingsley’s verdict shocks the conscience and demonstrates prejudice

and passion on the part of the jury.

7. Carlton Pettus

The jury awarded Carlton Pettus $5 million, and the circuit court entered judgment

for that amount. Pettus testified that during the exposure, his eyes and nose were burning

and he could not breathe. He felt like someone put a sack over his face during the exposure.

Pettus went to the emergency room the night of the accident and to a pulmonologist

approximately one year after. He said he experienced shortness of breath and wheezing and

had nasal problems for a few months after the exposure. He currently works as a firefighter.

The only specific incident he testified about that showed a continued effect on his life was

that he had to sit down and catch his breath after doing 20–30 minutes of chores while

60 carrying his one-year-old daughter. Dr. Manaker diagnosed him with worsening

rhinosinusitis and worsening asthma.

Like those above, Pettus’s award of $5 million shocks the conscience. There was no

evidence presented of future medical expenses, and the medical bills related to this exposure

totaled $5,405. Although Dr. Manaker testified that the injuries are permanent, the only

seeming effect is that he had to catch his breath after exerting himself during chores. His

permanent injuries are also linked to his preexisting conditions. Pettus is still able to work

as a firefighter. He does not have any loss of earning capacity or scars. Further, his only real

testimony about pain was that he had pain at the time of the exposure. Given these factors,

Pettus’s verdict shocks the conscience and demonstrates prejudice and passion on the part

of the jury.

As discussed in the analysis above, the verdicts were excessive, and the damages were

not supported by substantial evidence. They were so great as to shock the conscience and

demonstrate passion or prejudice on the part of the jury. For these reasons, we conclude that

the circuit court abused its discretion in denying the motion for new trial or remittitur.

Accordingly, we remand for a new trial on damages.

Affirmed in part; reversed and remanded in part.

THYER and WOOD, JJ., agree.

Munson, Rowlett, Moore and Boone, P.A., by: Zachary Hill, for appellants.

61 Bailey & Oliver Law Firm, by: Sach D. Oliver, Frank H. Bailey, T. Ryan Scott, Geoff Hamby,

and Samuel W. Mason; Easley & Houseal, PLLC, by: John I. Houseal, B. Michael Easley, and

Austin H. Easley; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellees.