Thomas John Kennedy of Arkansas v. Ausbrooks

Cite as 2016 Ark. App. 62

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-15-489

OPINION DELIVERED FEBRUARY 3, 2016
THOMAS JOHN KENNEDY OF
ARKANSAS, DDS, PC d/b/a
DENTURES AND DENTAL APPEAL FROM THE SALINE
SERVICES; DR. RICKY PERRY COUNTY CIRCUIT COURT,
APPELLANTS [NO. 63CV-11-780]

V. HONORABLE GRISHAM PHILLIPS,
JUDGE
BARBARA AUSBROOKS
APPELLEE AFFIRMED

ROBERT J. GLADWIN, Chief Judge

Appellants Thomas John Kennedy of Arkansas, DDS, PC, d/b/a Dentures and

Dental Services, and Dr. Ricky Perry appeal the order of the Saline County Circuit Court

granting appellee’s motion for a new trial. We affirm.

I. Facts

This appeal originated in 2011 when appellee Barbara Ausbrooks filed a malpractice

lawsuit under the Arkansas Medical Malpractice Act (the “AMMA”) against appellants

arising out of dental care and treatment she received from Dr. Perry in 2010 and 2011.

The four-day jury trial began on September 22, 2014. During the trial, appellee

presented evidence from two expert witnesses in the dental field, as well as another third-

party treating dentist and several lay witnesses. Appellants presented testimony from Dr.

Perry; a dental-expert witness, Dr. Richard Hixson; a treating dentist; a treating physician;

and an employee of the dental clinic.
Cite as 2016 Ark. App. 62

Shortly before the trial, appellee filed a motion in limine in which she argued that

the testimony of appellant’s expert, Dr. Hixson, should be excluded. Dr. Hixson testified in

his deposition that appellants “probably” fell within the standard of care, but he said he did

not know what the standard was; accordingly, his definition was inconsistent and therefore

inadmissible. Dr. Hixson’s deposition revealed, at best, that his “idea” of a standard of care

was a subjective standard. He testified that if there is no dental proclamation from the dental

board, then there is no standard of care in Arkansas. The circuit court denied appellee’s

motion in limine.

At trial, Dr. Hixson’s testimony on direct examination was cursory, and on cross-

examination, he was confrontational with appellee’s counsel and engaged in long narratives.

Appellee’s counsel requested that the jury be excused, and the circuit court attempted to

correct Dr. Hixson’s behavior. When the jury returned to the courtroom, Dr. Hixson

ignored the circuit court’s previous order. The circuit court stopped the proceedings a

second time, excused the jury again, and indicated its displeasure with Dr. Hixson’s

behavior.

On September 25, 2014, after hearing all the evidence introduced by the parties, the

instructions of the court, and the arguments of counsel, the jury returned a unanimous

verdict in favor of appellants. On September 29, 2014, appellee filed a motion for new trial

based on numerous grounds, including the contention that testimony from Dr. Hixson

“appealed to the jury’s prejudice” and “foreclosed other areas of cross examination.” In

support of her request for a new trial, appellee further cited “multiple irregularities and

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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.

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III. Discussion

Appellants contend that the circuit court’s award of a new trial was an abuse of

discretion because no evidence was presented to suggest that appellee’s substantial rights

were materially affected. Rule 59(a) of the Arkansas Rules of Civil Procedure (2015)

provides that as a prerequisite to granting a new trial, the circuit court must first determine

that the stated basis for a new trial was “materially affecting the substantial rights” of the

moving party. Notably, our supreme court has held as follows with regard to the granting

of a new trial:

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

Suen v. Greene, 329 Ark. 455, 463, 947 S.W.2d 791, 796 (1997). In Suen, the circuit court’s

grounds for granting a new trial were based on conduct of the appellee’s counsel and because

the circuit court decided it had committed error in not striking the testimony of an expert

witness. Id. at 463–64, 947 S.W.2d at 796. With regard to the expert witness, our supreme

court noted as follows:

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

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Id. at 463, 947 S.W.2d at 795. The Suen court went on to note that “[i]t is well established

that the trial court should not substitute its view of the evidence for that of the jury.” Id. at

464, 947 S.W.2d at 796.

Appellants claim that the facts of this case are similar to those addressed by the Suen

court. Although the circuit court in this case had to admonish Dr. Hixson to answer the

questions and stop editorializing, appellants submit that Dr. Hixson ultimately complied

with that instruction, answered appellee’s counsel’s questions, and the cross-examination

was completed without incident.

Equally as important, appellants claim that appellee has presented no evidence to

suggest that Dr. Hixson’s testimony actually caused any impact on the jury or clear

articulation as to why the testimony negatively impacted appellee, and they maintain that

there is no objective indication of either in the record. Appellants assert that the circuit

court’s decision to grant a new trial based on its own opinion that the testimony was “over

the line,” without any objective evidence that the testimony actually affected the rights of

appellee, is nothing more than a circuit court substituting its view of the evidence for that

of the jury, which is not a permissible basis for granting a new trial under Arkansas law.

We disagree and hold that the circuit court was within its discretion to order a new

trial given the cumulative effect of allowing Dr. Hixson to testify as an expert, where he

had provided a subjective opinion as to the standard of care, had insufficient knowledge of

the facts concerning appellee’s case, and could not state with a reasonable degree of medical

certainty whether Dr. Perry had met the standard of care. Dr. Hixson then engaged in

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confrontational behavior as the final witness in the trial to such an extent that it prompted

the circuit court to halt the proceedings on two separate occasions.

Appellants next argue that the circuit court erred as a matter of law in granting a new

trial under Arkansas Rules of Civil Procedure 59(a)(1) and 59(a)(2). Those portions of Rule

59 read as follows:

(a) Grounds. A new trial may be granted to all or any of the parties and on all or part
of the claim on the application of the party aggrieved, for any of the following
grounds materially affecting the substantial rights of such party: (1) any irregularity
in the proceedings or any order of the court or abuse of discretion by which the
party was prevented from having a fair trial; (2) misconduct of the jury or prevailing
party . . . .

Ark. R. Civ. P. 59. Appellants note that our supreme court has held that a contemporaneous

objection is required when a new trial is sought on the basis of accident or surprise under

Rule 59(a)(3), as well as Rule 59(a)(8) of the Arkansas Rules of Civil Procedure. See Jones

v. Double “D” Properties, Inc., 352 Ark. 39, 98 S.W.3d 405 (2003); Jones Rigging & Heavy

Hauling, Inc. v. Parker, 347 Ark. 628, 66 S.W.3d 599 (2002). The justification for the

contemporaneous-objection requirement was articulated in Lee v. Daniel, 350 Ark. 466,

476–77, 91 S.W.3d 464, 470 (2002) (internal citations omitted):

In Selph v. State, this court noted that the reason for requiring an objection before
the trial court is to discourage ‘sandbagging’ on the part of lawyers who might
otherwise take a chance on a favorable result, and subsequently raise a constitutional
claim if the gamble did not pay off

As such, our supreme court has expressed a clear disfavor for allowing a party to withhold

seeking relief in the form of a mistrial or continuance in the face of apparent grounds for

new trial during the proceedings.

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Appellants point out that counsel for appellee never formally objected to any

testimony of Dr. Hixson. While acknowledging that counsel did request a break so that

counsel for appellants “[could] talk to his witness,” and later requested that “[s]omebody

can tell this man to answer my question in order,” both of which resulted in a halt in the

proceedings and the jury being excused, appellants focus on the fact that there was no formal

objection or specific argument or assertion by appellee’s counsel that Dr. Hixson’s testimony

was materially affecting the substantial rights of appellee. At no point did counsel for appellee

request a continuance, a mistrial, an instruction to the jury, or any other form of relief

indicative of a claim that the information was grounds for a new trial or even harmful to

appellee in general. Counsel for appellants was instructed to speak with Dr. Hixson as

requested by counsel for appellee. Without further objection from counsel for appellee, the

circuit court did sua sponte instruct Dr. Hixson to answer questions and refrain from making

abrasive remarks to counsel during cross-examination. Following that instruction, the cross-

examination continued to completion, and the jury ultimately found in favor of appellants

without any further objection or reference to Dr. Hixson’s testimony. Appellants urge that

the record before us confirms that appellee’s counsel received all relief requested with regard

to Dr. Hixson’s testimony.

Further, upon filing the motion for new trial, appellee’s counsel noted, for the very

first time, that, “[a]fter reflection, undersigned counsel moves the Court to grant a new

trial,” and for the first time contends that Dr. Hixson’s “testimony and demeanor” were

leading to juror reactions and constituted “irregularities and surprises that prevented a fair

trial.” Appellants note that none of these concerns were conveyed to the circuit court during

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the proceedings. And they assert that appellee cannot argue that those concerns were even

implied to the circuit court during the proceedings in light of the testimony in the record

quoted above.

Procedurally, we note that in Hopper, supra, our supreme court held that a failure to

object does not always prevent the circuit court from granting a new trial. It held that the

reason an objection is typically required is to apprise the circuit court of an error, and that

all that is “required” is that the error be directed to the circuit court’s attention in some

appropriate manner, so that the court has an opportunity to address the issue. Id., 462

S.W.3d 355 In Smith, the circuit court’s becoming aware of the error on its own was

sufficient for preservation of error. Here, appellee’s counsel filed a motion in limine before

trial related to Dr. Hixson’s testimony, and at trial, requested that the jury be excused, then

requested that Dr. Perry’s counsel speak with his witness in response to confrontational

behavior and narrative testimony. Appellee claims, and we agree, that under Hopper, this

was sufficient to preserve the objection.

We next address the merits of appellants’ argument, whether Dr. Hixson’s surprise

testimony, lack of knowledge of the standard of care and the facts of the case, which were

admitted over a motion in limine, combined with his prejudicial conduct, supported the

circuit court granting appellee a new trial. In Arkansas State Highway Commission v. Byars,

221 Ark. 845, 256 S.W.2d 738 (1953), our supreme court held as follows:

Whether there is substantial evidence to support a verdict is not a question of fact,
but one of law. Because a witness testifies as to a conclusion on his part does not
necessarily mean that the evidence given by him is substantial, when he has not given
a satisfactory explanation of how he arrived at the conclusion.

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Id. at 851, 256 S.W.2d at 741. The court reiterated that in order to support a verdict the

evidence must be of a convincing nature, imparting qualities of reasonable certainty. Id.,

256 S.W.2d at 741. See also Hamilton v. Allen, 100 Ark. App. 240, 267 S.W.3d 627 (2007)

(holding that a physician-expert’s testimony was insufficient to withstand a motion for

summary judgment when his opinion regarding physician negligence was speculative). The

federal district court for the Eastern District of Arkansas held in Spurlock v. Lawson, 881 F.

Supp. 436 (E.D. Ark. 1995), that the plaintiff had a right to know what the expert’s

testimony would be in order to prepare for trial and acknowledged that the admission of

undisclosed medical-expert testimony which introduced a new theory of liability could

preclude a plaintiff from effectively addressing the charge. See id.

Based on previous case law, combined with Dr. Hixson’s lack of knowledge of the

facts, his speculative view of the required standard of care, and his behavior at trial, we hold

that the circuit court did not abuse its discretion in granting appellee’s motion for a new

trial. Despite the assertion that appellee’s filing a motion in limine to exclude Dr. Hixson

for having an inadequate grasp of the governing standard of care does not count as an

objection to Dr. Hixson’s testimony at trial, and that at the time that testimony could have

been considered helpful to appellee’s case, the record indicates that the circuit court was

aware of appellee’s concerns, stopped the proceedings, excused the jury, and addressed the

issues with Dr. Hixson on two occasions. Further, the circuit court conducted a full hearing

on appellee’s motion for a new trial during which both parties’ arguments were duly

considered. Accordingly, we hold that the circuit court did not err and affirm the grant of

appellee’s motion for a new trial.

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Affirmed.

ABRAMSON and BROWN, JJ., agree.
Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Benjamin D. Jackson, for
appellants.
Sutter & Gillham, P.L.L.C., by: Luther Oneal Sutter, for appellee.

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