Wanda Brown and Donald Brown v. Greg Masanelli, M.D.; And South Arkansas Orthopaedics & Sports Medicine Center, P.L.L.C.

2024 Ark. App. 569

• Court: Court of Appeals of Arkansas
• Decided: November 13, 2024
• Status: Published

Opinion

Cite as 2024 Ark. App. 569 ARKANSAS COURT OF APPEALS DIVISION II No. CV-23-437

WANDA BROWN AND DONALD Opinion Delivered November 13, 2024 BROWN APPELLANTS APPEAL FROM THE OUACHITA COUNTY CIRCUIT COURT [NO. 52CV-20-248] V.

HONORABLE SPENCER G. GREG MASSANELLI, M.D.; AND SINGLETON, JUDGE SOUTH ARKANSAS ORTHOPAEDICS & SPORTS MEDICINE CENTER, P.L.L.C. APPELLEES AFFIRMED

WAYMOND M. BROWN, Judge

Appellants Wanda and Donald Brown1 appeal from March 14, 2023 order of the

Ouachita County Circuit Court granting appellees’ motion to exclude the testimony of

appellants’ expert, Dr. Omar Hussamy, based on his failure to use a local standard of care

and appellees’ motion for summary judgment because appellants no longer had an expert to

testify. Appellants argue that the circuit court erred in excluding Dr. Hussamy’s testimony

pursuant to the locality rule and that the court’s grant of summary judgment was also in

error. We affirm.

1 Donald is Wanda’s husband, and he sought damages for loss of consortium. Wanda’s general physician referred her to Dr. Massanelli due to complaints of left

hip pain and weakness. Dr. Massanelli diagnosed Wanda with end stage primary

osteoarthritis of the left hip on January 10, 2017, and recommended a left-hip-replacement

surgery. Wanda underwent the surgery on January 25 and woke up experiencing extreme

pain, weakness, and numbness. Wanda was not discharged from the hospital until January

29. Wanda was subsequently diagnosed by Dr. Eric Brickell of Shreveport, Louisiana, with

a stretched sciatic nerve and foot drop. Dr. John Knowles also diagnosed Wanda with a

severe stretch injury to her left sciatic nerve. Wanda filed her second complaint2 against

appellees on December 23, 2020, alleging medical negligence and seeking damages.

Appellees filed an answer on April 23, 2021, denying the material allegations of Wanda’s

complaint and asking to have the action dismissed. Based on a notice filed on April 1, 2022,

a jury trial was set for April 24–28, 2023. The circuit court also entered a scheduling order

at that time. Appellants informed appellees that they intended to have Dr. Hussamy testify

as their expert in this matter. Appellees had to seek the circuit court’s intervention because

Dr. Hussamy was attempting to charge $2500 an hour to sit down for a deposition with a

required prepayment amount of $20,000. The circuit court entered an order on October

25, finding that the amount Dr. Hussamy was charging was unreasonable and setting his

hourly rate at $900 with only a two-hour prepayment.

2 An earlier complaint had been dismissed without prejudice.

2 The parties subsequently agreed to an amended scheduling order to allow the parties

more time to complete expert discovery. The amended order was filed on October 27, and

it changed the time in which the parties were to name their experts and make them available

for deposition. According to the new schedule, appellants were to provide the names of

their expert witnesses on or before November 15, 2022, and make the witnesses available for

deposition by December 15. Appellees were to provide the names of their expert witnesses

and make the witnesses available for deposition by February 15, 2023. The rest of the

scheduling order remained the same.

Appellees gave notice that they intended to depose Dr. Hussamy in Vero Beach,

Florida, on December 5, 2022. Dr. Hussamy was asked to bring certain items to the

December deposition. The deposition took place as planned. Appellants filed a notice to

depose Dr. Hussamy on February 1, 2023, listing a deposition date of March 20.3 Appellees

filed a motion to exclude Dr. Hussamy’s testimony and supporting brief based on the

standard of care or locality rule on February 16, 2023. According to appellees, at the time

of his deposition, Dr. Hussamy was unfamiliar with the local standard of care in Ouachita

County, Arkansas, in January 2017 and, instead, relied on a national standard of care.

Appellees filed a motion and supporting brief for summary judgment on February 17.

Appellees listed several independent ground for summary judgment: (1) Dr. Hussamy failed

3 At the hearing, it was made clear that it was not actually a deposition but, rather, trial testimony.

3 to satisfy the locality rule, (2) Dr. Hussamy could not testify to a reasonable degree of medical

certainty exactly how or when the injury occurred during Wanda’s left-hip replacement, (3)

Dr. Hussamy’s testimony is unreliable as is the methodology he used at arriving at his

opinions, and (4) he has not performed a surgery of this type since 2012 or 2013.

Appellants filed a response to appellees’ motion to exclude Dr. Hussamy’s testimony

on March 3. They denied the material allegations of the motion and asked the court to deny

and dismiss the motion. In their accompanying brief, appellants argued that Dr. Hussamy

“will testify and demonstrate through his testimony that he is familiar with the standard of

care in Camden, Ouachita County, Arkansas or similar localities.” They indicated that after

they retained Dr. Hussamy as an expert, Dr. Hussamy prepared a report on September 3,

2021, stating that he believed Dr. Massanelli had breached the standard of care by injury

Wanda’s sciatic nerve during surgery. Appellants further stated that at the time of his

deposition, Dr. Hussamy “had not reviewed any demographic information” and that he

“opined that he believed that it did not matter where the hip replacement is performed, that

injuring the sciatic nerve during surgery is a breach of the standard of care.” According to

appellants, Dr. Hussamy had subsequently reviewed the information on Camden and

Ouachita County, Arkansas, and his opinion remained the same. Appellants maintained

that Dr. Hussamy was qualified to testify in this matter and asked that the circuit court not

strike him as an expert witness. Appellants included Dr. Hussamy’s affidavit as an exhibit.

In the affidavit, Dr. Hussamy attempted to show his familiarity with the local standard of

care as it pertained to Ouachita County, Arkansas. He still maintained that Dr. Massanelli

4 deviated from the standard of care by injuring Wanda’s sciatic nerve. He specifically stated

that if “Dr. Massanelli would have placed the retractors properly, used proper pressure, or

not otherwise injured the sciatic nerve during surgery, Wanda Brown would have not been

injured.”

Appellees filed a reply on March 9, contending that Dr. Hussamy’s untimely opinion

should be rejected because Dr. Hussamy confirmed that his two-page disclosure contained

all the opinions he would be giving in the case. And he confirmed that he had not requested

any additional information, documents, or depositions before his own deposition. Appellees

stated the Dr. Hussamy also admitted to only reading thirteen pages of the thousands of

pages of medical records in this case. They contended that the deadline for making changes

to his testimony by errata sheet was January 28, 2023, and Dr. Hussamy made no such

changes. Appellees alleged that it “was not until after [they] filed [their] dispositive motion

that [appellants] or Dr. Hussamy made any effort to meet their burden of proof on the

locality rule.” They also noted that appellants admitted in their response that Dr. Hussamy

was not familiar with the applicable standard of care and that to allow the affidavit to be

admitted “would be patently unfair, and severely prejudicial, and in direct violation of the

Court’s Scheduling Order and Arkansas Rules of Civil Procedure for [appellees] to receive

new, previously undisclosed and untimely opinions on the eve of trial, months after the

Court’s deadline.” Appellees further argued that appellants’ reliance on 2020 census data is

fatally flawed since January 2017 is the only time frame relevant to the claim against Dr.

Massanelli. Appellees also argued that the affidavit was insufficient because it contained

5 conclusionary statements regarding a comparison of the localities without providing any facts

about the surgical practice in 2017. Finally, appellees argue that Dr. Hussamy relied on a

national standard of care, which is against our rules. And the untimely affidavit did not

show that Dr. Hussamy had any factual knowledge of the practice of medicine in Ouachita

County or a similar locality in 2017.

Appellants filed a response to appellees’ motion for summary judgment on March 10.

They denied the material allegations of the motion. In their brief, appellants stated that the

matter should continue to a jury trial, and the jury should be able to decide between

competing medical opinions. They included a copy of Dr. Hussamy’s first affidavit as well

as a new affidavit discussing an independent medical examination he had performed on

Wanda on March 8. In this affidavit, Dr. Hussamy stated that there are four ways in which

Wanda’s injury could have occurred. He stated that he had since reviewed all the medical

records pertaining to the matter and had examined Wanda, and was thus “prepared to testify

at this time more fully than [he] was at the time of my December 2022 deposition.”

Appellees filed a reply and brief in support of their summary-judgment motion on

March 13. They contended that the affidavits submitted were shams and should be

summarily rejected because of their untimeliness and the fact that they contradict Dr.

Hussamy’s sworn deposition testimony.

The circuit court held a hearing on appellees’ motions on March 13. It filed an order

the next day granting appellees’ motion to exclude Dr. Hussamy’s testimony and granting

appellees summary judgment. The order stated in pertinent part:

6 The Court agrees with Defense counsel’s argument that Dr. Hussamy’s testimony must be excluded in this matter. At the time of his deposition, Dr. Hussamy acknowledged that he had no familiarity with the local standard of care. The Plaintiffs must prove a violation of the standard of care “[b]y means of expert testimony provided only by a medical care provider of the same specialty as the defendant, the degree of skill and learning ordinarily possessed and used by members of the profession of the medial care provider in good standing, engaged in the same type of practice or specialty in the locality in which her or she practices or in a similar locality.” [Internal citations omitted.]

Although Plaintiffs concede that Dr. Hussamy did not meet this requirement at the time of his deposition, they assert that they have rehabilitated him with an affidavit filed in response to the Motion to Exclude and the Motion for Summary Judgment. Defendants are correct that to allow this expert’s opinion, which as at the time of deposition in December 2022 was admittedly based on a national standard, to go forward now based on a purported local standard is patently unfair and severely prejudicial to Defendants now on the eve of trial and with a scheduled trial deposition of Dr. Hussamy to be conducted next week in this matter. Moreover, this Court finds merit in Defendants’ argument that the affidavit fails to demonstrate that Dr. Hussamy has gained knowledge as to the appropriate local standard of care in place in Ouachita County in 2017 as that affidavit contains only conclusory statements.

Accordingly, . . . the Court now excludes the testimony of Dr. Hussamy in this matter. As such, Plaintiffs have no other expert witnesses and cannot proceed on this case, accordingly, the Motion for Summary Judgment is also granted. All other pending motions are denied as moot. This matter is final and appealable.

Appellants timely appealed.

Appellants argue that the circuit court erred in excluding Dr. Hussamy’s testimony

pursuant to the locality rule required for expert witnesses in medical-malpractice cases. We

review the admission of expert testimony under an abuse-of-discretion standard.4 In

discussing our standard of review for evidentiary rulings, we have said that circuit courts have

4 Corbin v. Baptist Health, Inc., 2016 Ark. App. 212, 490 S.W.3d 317.

7 broad discretion and that a circuit court’s ruling on the admissibility of evidence will not be

reversed absent an abuse of discretion.5 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. 6 In medical-malpractice actions, unless the

asserted negligence can be comprehended by a jury as a matter of common knowledge, a

plaintiff has the additional burden of proving three propositions by expert testimony: (1) the

applicable standard of care; (2) the medical provider’s failure to act in accordance with that

standard; and (3) that the failure was the proximate cause of the plaintiff’s injuries.7 Our

supreme court has endorsed the locality rule as to the standard of care in Arkansas. 8

Appellants admit that Dr. Hussamy was not familiar with the local standard of care

when he gave his deposition testimony in December 2022; however, they maintain that he

was able to meet the requirements of an expert because of the information contained in his

later filed affidavits. However, this argument is without merit. At his deposition, Dr.

Hussamy admitted that he had no knowledge about Ouachita County and could not

compare it to the locality in which he practiced. He used a national standard of care to reach

5 Id.

6 Id. 7 Ark. Code Ann. § 16-114-206(a) (Repl. 2016). The portion of this statute limiting expert opinions to medical-care providers of the same specialty as the defendant was held unconstitutional in Broussard v. St. Edwards Mercy Health System, Inc., 2012 Ark. 14, 386 S.W.3d 385.

8 Plymate v. Martinelli, 2013 Ark. 194.

8 his conclusion but failed to apply that standard of care to Ouachita County. Dr. Hussamy

also failed to review the extensive medical records in this case, other depositions, or any

information pertaining to Ouachita County or its doctors and/or medical facilities before

giving his deposition testimony. Based on this evidence, it is hard to conclude that the circuit

court abused its discretion by excluding the testimony.

As part of the first issue, appellants also contend that the circuit court erred in finding

that the affidavits supporting Dr. Hussamy’s opinions were untimely. Citing Hill v. Billups,9

appellants argue that an expert witness is allowed to change his or her opinion or testimony

at any time given their review or availability of new information. Here, there was no new

information. The information was available prior to Dr. Hussamy’s deposition, but for

whatever reason, he did not review it. Thus, appellants’ reliance on Hill is misplaced.

One of the reasons the circuit court granted appellees’ motion to exclude Dr.

Hussamy’s testimony was because it was deemed untimely. A scheduling order under Rule

16 of the Arkansas Rules of Civil Procedure “control[s] the subsequent course of the

litigation” because its “primary purpose” is to keep litigation moving forward and to advise

the parties about the deadlines that they are expected to meet.”10 Additionally, a party’s

“failure to meet these deadlines undermines the goals of the scheduling order and prejudices

the other side, which is also subject to discovery deadlines.” 11 Here, the parties agreed to a

9 85 Ark. App. 166, 148 S.W.2d 288 (2004). 10 Rush v. Fieldcrest Cannon, Inc., 326 Ark. 849, 855, 934 S.W.2d 512, 515 (1996).

11 Id.

9 scheduling order that required appellants’ expert witness to be identified by November 15,

2022, and be available for deposition no later than December 15. Any changes to the

deposition testimony were to be made by January 28, 2023, and Dr. Hussamy failed to make

any changes by that time. It was not until appellees filed their motions for exclusion of Dr.

Hussamy’s testimony and for summary judgment did appellants have Dr. Hussamy submit

affidavits to supplement his deposition testimony. The affidavits, submitted March 3 and

10, were untimely, and the circuit court did not abuse its discretion by not relying on them.

Additionally, the circuit court was correct by finding that to allow appellants to submit the

untimely affidavits on the eve of trial would be patently unfair and severely prejudicial to

appellees.

The circuit court also found that the affidavits were conclusory and failed to

demonstrate Dr. Hussamy’s knowledge of the local standard of care in Ouachita County in

2017. Appellants argue that the affidavits were not conclusory but were “specific, adequate,

relevant, and [would] assist the finder of fact in coming to a reasonable and logical conclusion

in this matter.” Looking closely at the information contained in the affidavits, there is

nothing to show actual knowledge of the local standard, and the information contained in

them can only be described as conclusory. Thus, even if the affidavits were admitted, they

were insufficient to show that Dr. Hussamy could testify regarding the local standard of

review.

Accordingly, we hold that the circuit court did not abuse its discretion by excluding

the testimony of Dr. Hussamy, and we affirm on this point.

10 For their second point on appeal, appellants maintain that the circuit court erred by

granting appellees summary judgment. Summary judgment is appropriate if no genuine

issues of material fact exist for trial.12 Once the moving party has demonstrated an

entitlement to summary judgment, Arkansas law shifts the burden to the nonmoving party,

who must show that a genuine issue of material fact remains by meeting proof with proof to

show a genuine issue as to a material fact.13 When the defendant demonstrates the plaintiff’s

failure to produce the requisite expert testimony, the defendant has demonstrated that no

genuine issues of material fact exist and is therefore entitled to summary judgment as a

matter of law.14 Here, Dr. Hussamy relied on a national standard of care during his

deposition, and our supreme court has held that the locality rule is the standard of care in

Arkansas.15 After Dr. Hussamy’s testimony was excluded, appellants did not have another

expert to testify about their negligence claim against appellees. Therefore, appellees were

entitled to judgment as a matter of law.

Affirmed.

HARRISON, C.J., and GLADWIN, J., agree.

Gregory Thomas Attorney at Law PLC, by: Gregory M. Thomas; F. Mattison Thomas III;

and Daily & Woods, PLLC, by: C. Michael Daily, for appellants.

12 Duke v. Mullis, 2024 Ark. App. 419, ___ S.W.3d ___.

13 Id. 14 Johnson v. Schafer, 2018 Ark. App. 630, 565 S.W.3d 144.

15 Plymate, supra.

11 Anderson, Murphy & Hopkins, L.L.P., by: Brandon T. Cole and Mariam T. Hopkins, for