Thomas John Kennedy of Arkansas v. Ausbrooks

2016 Ark. App. 62, 482 S.W.3d 335, 2016 Ark. App. LEXIS 71
CourtCourt of Appeals of Arkansas
DecidedFebruary 3, 2016
DocketCV-15-489
StatusPublished
Cited by2 cases

This text of 2016 Ark. App. 62 (Thomas John Kennedy of Arkansas v. Ausbrooks) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas John Kennedy of Arkansas v. Ausbrooks, 2016 Ark. App. 62, 482 S.W.3d 335, 2016 Ark. App. LEXIS 71 (Ark. Ct. App. 2016).

Opinion

ROBERT J. GLADWIN, Chief Judge

| ^Appellants Thomas John Kennedy of Arkansas, DDS, PC, d/b/a Dentures and Dental Services, and Dr. Ricky Perry appeal the order of the Saline County Circuit Court granting appellee’s motion for a new trial. We affirm.

I. Facts

This appeal' originated in 2011 when ap-pellee Barbara Ausbrooks filed a malpractice lawsuit under the Arkansas Medical Malpractice Act (the “AMMA”) against appellants arising out of dental care and treatment she received from Dr. Perry in 2010 and 2011.

The four-day jury, trial began on September 22, 2014. During the trial, appel-lee presented evidence from two expert witnesses in the dental field, as well as another third-party treating dentist and several lay witnesses. Appellants presented testimony from Dr. Perry; a dental-expert witness, Dr. Richard Hixson; a treating dentist; a-treating physician; and an employee of the dental clinic.

12Shortly before the trial, appellee filed a motion in limine in which'she argued that the testimony of appellant’s expert, Dr. Hixson, should be excluded. Dr. Hixson testified in his deposition that appellants “probably” fell within the standard of care, but he said he did not know what the standard was; accordingly, his definition was inconsistent and therefore inadmissible. Dr. Hixson’s deposition revealed, at best, that his “idea” of a standard of care was a subjective standard. He testified that if there is no dental proclamation from the dental board, then there is no standard of care in Arkansas. The circuit court denied appellee’s motion in limine.

At trial, Dr. Hixson’s testimony on direct examination was cursory, and on cross-examination, he was confrontational with appellee’s counsel and engaged in long narratives. Appellee’s counsel requested that the jury be excused, and the circuit court attempted to correct Dr. Hix-son’s behavior. When the jury returned to the courtroom, Dr. Hixson ignored the circuit court’s previous order. The circuit court stopped the proceedings a second time, excused the jury again, and indicated its displeasure with Dr. Hixson’s behavior.

On September 25, 2014, after hearing all the evidence introduced by the parties, the instructions of the court, and the arguments of counsel, the jury returned a unanimous verdict in favor of appellants. On September 29, 2014, appellee filed a motion for new trial based on numerous grounds, including the contention that testimony from Dr. Hixson “appealed to the jury’s prejudice” and “foreclosed other areas of cross examination.” In support of her request for a new trial, appellee further cited “multiple irregularities and 1 ¡¡surprises,” including a record that reflected the fact that Dr. Hixson’s testimony “changed at trial.”

A full hearing was held on appellee’s motion on November 6, 2014. After argument from both- parties, the circuit court found that Dr. Hixson’s answers to questions on cross-examination were “over broad, over the line.” The circuit court further concluded that “Dr. Hixson essentially accused [appellee’s trial counsel] of being dishonest, of trying to trick the jury, of trying to fool the jury, and trying to make the jury feel foolish.” Although the circuit court did not specifically articulate how its interpretation of Dr. Hixson’s testimony impacted the jury’s decision or affected appellee’s rights at trial, on November 6, 2014, the circuit court granted appellee’s motion for new trial. Appellants filed a notice of appeal on December 2, 2014, from the order granting appellee a new trial.

II. Standard of Review

This court will not reverse an order granting a new trial unless there has been a manifest abuse of discretion. See Smith v. Hopper, 2015 Ark. 210, 462 S.W.3d 335. Manifest abuse of discretion means a discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. English v. Robbins, 2014 Ark, 511, 452 S.W.3d 566. A circuit court’s factual determination on a motion for a new trial will not be reversed unless clearly erroneous. Id. at 4, 452 S.W.3d at 570. A showing of an' abuse of ’ discretion is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Id. Accordingly, the party has less basis for a claim of prejudice than ' does one who has unsuccessfully moved for a new'trial. Id.

|4III. Discussion

Appellants contend that the circuit court’s award of a new trial was an abuse of discretion because no evidence was presented to suggest that appellee’s substantial rights were materially affected. Rule 59(a) of the Arkansas Rules of Civil Procedure (2015) provides that as a prerequisite to granting a new trial, the circuit court must first determine that the stated basis for a new trial was “materially affecting the substantial rights” of the moving party. Notably, our supreme court has held as follows with regard to the. granting of a new trial:

We have stated that ‘[a] verdict may not be set aside arbitrarily and without reasonable cause.’ Granting a new trial on the basis that a witness was generally ‘nonresponsive’ is , arbitrary and unreasonable. It invites abuse and threatens the right of trial by jury. In practical effect it permits the trial court to substitute its view of the evidence for that of the jury.

Suen v. Greene, 329 Ark. 455, 463, 947 S.W.2d 791, 796 (1997). In Suen, the circuit court’s grounds for granting a new trial were based on conduct of the appel-lee’s counsel and because the circuit court decided it had committed error in not striking the testimony of an expert witness, Id. at 463-64, 947 S.W.2d at 796. With regard to the expert witness, our supreme court noted as follows:

[W]e have not found any examples where the answers provided by .Dr. Al-Mefty, or the rulings of the trial court constituted irregularities in the proceedings which prevented appellee from having a fair trial:.,. While Dr. Al-Mefty exhibited some reluctance to give answers during cross examination, the trial court guided and prodded with the re-suit being that the appellee ultimately obtained an answer to each question.

5Id. at 463, 947 S.W.2d at 796. The Suen court went on to note that “[i]t is well established that the trial court should not substitute its view of the evidence for that of the jury.” Id. at 464, 947 S.W.2d at 796.

Appellants claim that the facts of this case are similar to those addressed by the Suen court. Although the circuit court in this case had to admonish Dr. Hixson to answer the questions and stop editorializing, appellants' submit that Dr. Hixson ultimately complied with that instruction, answered appellee’s counsel’s questions, and the cross-examination was completed without incident.

Equally as ifnportant, appellants claim that appellee has presented no evidence to suggest that Dr. Hixson’s testimony actually caused any impact on the jury or clear articulation as to why the testimony negatively impacted appellee, and they maintain that there is no objective indication of either in the -record. .

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Cite This Page — Counsel Stack

Bluebook (online)
2016 Ark. App. 62, 482 S.W.3d 335, 2016 Ark. App. LEXIS 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-john-kennedy-of-arkansas-v-ausbrooks-arkctapp-2016.